CrimProf Blog

Deep cover: New girl at Millington school partied, made friends -- and sought to score drugs

The new student at Millington Central High School was freaking out in study hall.

She'd just been talking to a boy about scoring some drugs one late September day when she turned to get her purse and couldn't find her cell phone inside.

The slight, pretty girl with dark blonde hair and a darker secret went nuts.

She jumped up and dumped the purse out onto the table, demanding, "Who took my cell phone!?"

The phone's loss itself was of no importance.

But if the thief bothered to call the stored numbers, he'd hear such greetings as: "This is Inspector Charlie Coleman of the Millington Police Department ..."

Word would surely spread through hallways and text messages that the flirty senior who transferred in August, went to class and all the games, partied with them, ate cafeteria food, showed interest in drugs, even used a marijuana image for her wallpaper on MySpace, was with the cops!

Suddenly, her deep-cover operation was imperiled just halfway through the semester.

The fake student ran to the office of assistant principal Bo Griffin, the only person on campus besides principal Ted Horrell who knew her real identity.

"Do you have Charlie's number?'' she recalled asking Griffin, referring to Inspector Coleman, who helped set up the sting.

Police shut her phone off in an hour, before anyone stumbled upon its secrets. [Mark Godsey]

Continue Reading "Deep cover: New girl at Millington school partied, made friends -- and sought to score drugs"

Ruling keeps Oregon criminals from being resentenced

A Marion County case resulted Wednesday in a U.S. Supreme Court decision that keeps hundreds of Oregon criminals from having to be resentenced.

The case was argued Oct. 14, while Hardy Myers was still Oregon attorney general. The 5-4 decision by the nation's highest court upholds the state's position and reverses the Oregon Supreme Court, which ruled in October 2007 that a jury had to make factual findings before a judge can impose consecutive prison sentences on a criminal.

“This is a big win for law enforcement in Oregon,” said Attorney General John Kroger, who succeeded Myers on Jan. 5.

Under Myers, Oregon won all six cases it argued before the U.S. Supreme Court, including a 2006 decision upholding the state’s assisted-suicide law.

In an interview a few days before he ended his 12-year tenure, Myers said the issue before the justices was whether the state and federal constitutional rights to a jury trial also cover findings on which judges base prison sentences.

“A jury would not have been pronouncing a sentence,” Myers said. “But the jury would have been determining facts that control whether the court could impose (longer) consecutive sentences.” [Mark Godsey]

Continue Reading "Ruling keeps Oregon criminals from being resentenced"

Mistakes in fingerprint analysis trigger review of nearly 1,000 LAPD cases

Los Angeles Police Department fingerprint examiners who falsely implicated at least two people in crimes have been linked to nearly 1,000 other criminal cases that authorities say must now be reviewed to ensure that similar errors weren't made.

Nearly two dozen of those cases are awaiting trial in the Los Angeles court system, said Sandi Gibbons, a spokeswoman for Dist. Atty Steve Cooley.

Prosecutors began a review of the cases as part of their work with a multi-agency task force formed by Chief William J. Bratton last fall in the wake of a Times article that revealed that six print analysts with the LAPD latent print section had made critical errors in their work.

"Our goal is to go through all of [the cases] within about three months, starting with the D.A.'s priorities," LAPD Deputy Chief Charlie Beck said. Even though the review focuses on the work of the six analysts, Beck said LAPD officials would conduct random sample tests for the entire latent print unit.

The LAPD's effort to reform the unit, however, has moved slowly because of a lack of funding. Beck said the department has not secured the $400,000 to $500,000 in grants it sought to bring in an outside firm to review practices and protocols of the 80-person fingerprint unit. He said he is determined to move forward with the help of prosecutors and other law enforcement agencies. [Mark Godsey]

Continue Reading "Mistakes in fingerprint analysis trigger review of nearly 1,000 LAPD cases"

Intelligence Court Affirms Wiretapping Powers

A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved.

The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form.

The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.

The Aug. 22 appeals court decision upheld a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications.

“The Department of Justice is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007,” a Justice Department statement said.

The court ruling grew out of a previously undisclosed challenge from a telecommunications provider, which questioned the constitutional authority of the executive branch in ordering it to capture and turn over international communications without court approval.

The telecommunications company, which was not identified, refused to comply and instead challenged its legal basis under the 2007 law.

The FISA court rejected the telecommunication companies’ challenge. It found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information.

The opinion did not directly rule on the legality of the once-secret operation authorized by President Bush between October 2001 and early 2007, which allowed the National Security Agency to eavesdrop on the international communications of Americans suspected of ties to terrorists. The disclosure of the program’s existence in The New York Times in December 2005 set off a national debate on wiretapping, privacy and the limits of presidential power. Critics charged that Mr. Bush had violated a 1978 law requiring that the government obtain a court order to listen in on Americans’ communications.

Read full article here. [Brooks Holland]

In new tactic, L.A. goes after gangs' money

The city of Los Angeles, plagued by 23,000 violent gang crimes since 2004, including 784 murders and 12,000 felony assaults, announced Tuesday that it had won its first civil judgment, for $5 million, against a criminal gang that had dominated the heroin trade downtown for decades.

The verdict could bode well for another first-of-its-kind lawsuit the city filed last month that goes after all assets of gang leaders, not just those associated with their criminal activity. Both suits seek to plow the money back into improving the neighborhoods affected by the gangs through a fund.

"By giving prosecutors more tools to fight gang activity at the local level, we are protecting our communities at the same time [that] we're able to strengthen our statewide anti-gang efforts," said Gov. Arnold Schwarzenegger in a statement released with the announcement of the $5 million verdict against the 5th and Hill gang in L.A.

The civil suits were filed under different amendments to state laws, one passed in 2007 and one in 2008, designed to strengthen authorities' ability to control gangs. The 2007 amendment allows law enforcement to seize assets associated with criminal conduct. But the 2008 law goes even further – it allows prosecutors to collect damages from gang members' personal assets, too.

The December suit against the 18th Street gang is the first to make use of the 2008 amendment.

"We're sending a message to gang leaders across this city," said City Attorney Rocky Delgadillo at a press conference last month. "If you break the law, we will not only find you, arrest you, and put you behind bars, we will also take away your money, your property, your homes, and your cars. Every penny we strip away will be returned to the neighborhoods."

The tactic of trying to cripple organizations by taking away their assets has been commonly used against the mafia. More recently, it has been used against white supremacist organizations. In 2000, the Southern Poverty Law Center won a $6.3 million verdict against the Aryan Nations that forced the organization to give up its 20-acre compound in Idaho.

The center won its most recent case last November, getting $2.5 million from the Imperial Klans of America on behalf of a teenager assaulted by Klan members in rural Kentucky. [Mark Godsey]

Continue Reading "In new tactic, L.A. goes after gangs' money"

New details emerge about murder scene, fake confessions

Juror and courtroom spectators learned shocking details about the scene of the Truett Street murder and false leads that led police on a wild goose chase.

By Danny Gallagher, McKinney Courier-Gazette

Jurors in the Raul Cortez trial learned the gruesome details of the crime scene he and Eddie Ray Williams allegedly left behind, and the long trail of false leads left by other suspects that threw McKinney police off course for more than four years.

Collin County prosecutors opened their case in the punishment phase of Raul Cortez's trial by laying it out in chronological order, starting with the day of the murder. Rosa Barbosa, 40, had worked her shift at the Cliff's Check Cashing store on W. University Avenue on March 12, 2004 and made plans with fellow employee and friend Nilvia Jasso to take a walk in Towne Lake Park. Jasso closed the store later that evening and went by her home to pick her up, but no one came to the door. She later tried calling her home, but no one answered.

Later that weekend, Jasso learned that Barbosa had been killed, along with her nephew Mark, 18-year-old Austin York and 17-year-old Matthew Self.

Laurie Wilson, Austin's mother, testified that her son went to his best friend Leonard Barbosa's house to play video games and hang out until his 11:30 p.m. curfew.

Keith Self, Matthew Self's father, said Matthew took his father's pickup truck to meet with Leonard and Austin. He also had an 11:30 p.m. curfew that both parents said they always honored.

Wilson said her son never called that night and were woken up by the sound of the doorbell around 4 a.m. Four sobbing teenagers told them they heard Austin had been shot and killed.

Self said his wife, Nancy Self, was also concerned that her son had not called or returned, so Mr. Self went looking for his pickup truck in the Barbosa's neighborhood in McKinney. Police officers arrived at the Self's home later and told them their son had been flown to Baylor Medical Center of Dallas. Mr. Self said the family later make the difficult decision to take Matthew off of life support.

Police officers first responded to the alarm call at the Cliff's Check Cashing business on W. University Avenue, then the 911 call from Robert Barbosa, Rosa's nephew, who discovered the bodies in Rosa's Truett Street home. Robert said he could hear Matthew gasping and wheezing for air.

Collin County Medical Examiner Dr. William Rohr said Rosa had a plastic zip tie tightened around her neck and strips of red duct tape over her mouth and wrapped around the top of her head over her eyes. Mark had two gun shots wounds to the head and Austin had three to the head. Dallas County Medical Examiner Dr. Lynn Salzberger said Matthew had a single gunshot wound to thr head. [Mark Godsey]

Continue Reading "New details emerge about murder scene, fake confessions"

Justices Say Evidence Is Valid Despite Police Error

The Supreme Court on Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.

In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court's majority came to a conclusion that will most likely please those who complain about criminals going free on "technicalities" and alarm those who fear that the high court is looking for ways to narrow the reach of the exclusionary rule.

Mr. Herring had gone to the Coffee County, Ala., sheriff's department on July 7, 2004, to retrieve something from his truck, which had been impounded. "Herring was no stranger to law enforcement," as Chief Justice John G. Roberts Jr. observed dryly in his opinion for the court.

And he was no stranger to Mark Anderson, an investigator for the sheriff's department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.

Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.

Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.

Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional under the Fourth Amendment? No, the Supreme Court ruled.

"When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply," Chief Justice Roberts wrote in an opinion joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

"We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule," the majority noted. But the justices said the official errors in the Herring case do not compare with the kind of egregious and deliberate police misconduct that gave rise to the exclusionary rule in the first place.

Deciding when to throw out evidence under the exclusionary rule is a balancing act, the majority said. Is the official misconduct serious enough that the evidence should be disallowed to deter future misconduct, even if criminals sometimes go free?

Not in Mr. Herring's case, the majority ruled, upholding findings by a federal district court and the United States Court of Appeals for the 11th Circuit.

Justices Ruth Bader Ginsburg, John Paul Stevens, David H. Souter and Stephen G. Breyer dissented. "In my view, the court's opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in the law enforcement," Justice Ginsburg wrote.

But in the majority opinion, the chief justice wrote that the exclusionary rule "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free." [David Stout] [Mark Godsey]

Continue Reading "Justices Say Evidence Is Valid Despite Police Error "

More on the Herring Case

As Brooks posted below, the U.S. Supreme Court decided Herring v. U.S. today, continuing on its path of narrowing the Fourth Amendment's exclusionary rule.  A couple of points jumped out at me as I read the opinion.

First, the scope of the opinion is unclear.  The general tenor of the opinion is that mere negligence on the part of the police will rarely if ever result in the exclusion of evidence discovered as a result.  However, the Court hedges, both at the beginning and end of its opinion, potentially narrowing the scope of the ruling to cover only those cases where the negligence occurred at some unspecified temporal distance from the ultimate Fourth Amendment violation.  Thus, the Court wrote that the error here "was the result of isolated negligence attenuated from the arrest," slip op. at 1 (emphasis added), and concluded that the exclusionary rule does not apply "when police mistakes are the result of negligence such as that described here."  Slip op. at 12 (emphasis added).  Thus, the case leaves open the question of the application of the exclusionary rule where the Fourth Amendment violation results from police negligence by the arresting officer him- or herself.

Second, although the U.S. conceded there was a Fourth Amendment violation here, the Court did not decide the issue and seems to imply that the answer is not so clear cut.  However, it is difficult for me to see how a negligent mistake by a law enforcement official resulting in an arrest can be anything other than a Fourth Amendment violation.  [Mike Mannheimer]

Supreme Court Narrows Exclusionary Rule

The Supreme Court on Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.

In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court’s majority came to a conclusion that will most likely please those who complain about criminals going free on “technicalities.”

Mr. Herring had gone to the Coffee County, Ala., sheriff’s department on July 7, 2004, to retrieve something from his truck, which had been impounded. “Herring was no stranger to law enforcement,” as Chief Justice John G. Roberts Jr. observed dryly in his opinion for the court.

And he was no stranger to Mark Anderson, an investigator for the sheriff’s department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.

Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.

Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.

Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional? No, the Supreme Court ruled.

Read full article here. [Brooks Holland]

Incentive program gives prisoners second chance

Some defendants sentenced to imprisonment in the state corrections system now have an opportunity to be paroled early.

Offenders who are eligible for a Recidivism Risk Reduction Incentive program can be released prior to their minimum sentence provided they complete required treatment programs while incarcerated, said Armstrong County President Judge Kenneth Valasek.

A state law passed in November permits the early release for nonviolent offenders sentenced to the state system.

In passing the law, the state legislature is "trying to provide an incentive to state prisoners to successfully complete all the required treatment programs as quickly as possible while they're in prison," Valasek said.

Depending on the length of the minimum sentence, defendants in the incentive program will be eligible for parole at different times.

A defendant whose minimum sentence is three years or less can be paroled in three-fourths of that time, as long as the incentive program requirements have been met, Valasek said. For example, a defendant sentenced to a minimum of 24 months would be eligible for release after 18 months.

Defendants with a minimum sentence of more than three years can be paroled in five-sixths of that time, provided the incentive program requirements are met, Valasek said. For example, a defendant sentenced to a minimum of 48 months will be eligible after 40 months.

There are many eligibility requirements for the incentive program. Defendants being sentenced for the following offenses, among others, would not be eligible for the program: homicide, assault, kidnapping, sex crimes, arson, robbery, homicide by vehicle while driving under the influence, certain drug trafficking offenses and any other crime that results in personal injury. [Mark Godsey]

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Immigration Cases Soar, Represent Half of All Federal Prosecutions

Immigration prosecutions have soared during the Bush administration, representing more than half of all federal prosecutions, up from 18 percent in the first fiscal year of Bush's presidency, according to data from the Transactional Records Access Clearinghouse.

In the most recent available month's numbers, a total of 11,454 immigration prosecutions in September 2008 represents a 700 percent increase from the same month in 2001, the year Bush took office, according to TRAC, which compiles data from the government's own records.

The shift in government enforcement raises the share of immigration cases as a proportion of all federal filings from 18 percent in fiscal year 2001 to 31 percent in 2004, the last year of Bush's first term, to 51 percent by fiscal year 2008, which ended in October.

The numbers bolster concerns expressed by federal judges in border states that their dockets have been inundated with immigration cases. The five federal districts with the largest share of immigration prosecutions in 2008 were the Southern District of Texas in Houston, the District of Arizona in Phoenix, the District of New Mexico in Albuquerque, the Western District of Texas in San Antonio and the Southern District of California in San Diego.

Other regions with high immigration case numbers were the District of Oregon, the Eastern District of Washington and the Western District of Arkansas. By contrast, white-collar crime prosecutions were down by 15 percent from the last year of the Clinton Administration: 8,108 in fiscal year 2008 from 9,532 in fiscal year 2000.

The number of drug case filings has also dropped during the past eight years. The data show, after moderate increases in the early years of the Bush presidency, that drug prosecutions were down by 20 percent to 26,336 in fiscal year 2008 from 32,753 in fiscal year 2001, according to TRAC.

The leading immigration charges include illegal re-entry of a deported alien, harboring illegal aliens and fraud and misuse of visas and work permits. [Mark Godsey]

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A Double Victory for Criminal Defendants

The Supreme Court issued two opinions this morning, both of them striking down lower court opinions that had favored prosecutors. Over at the Sentencing Law and Policy blog, professor Doug Berman is already proclaiming that the decisions offer further proof that theCourt is the "most pro-defendant appellate court in the nation on sentencing issues."

In Chambers v. United States, with Justice Stephen Breyer writing for a unanimous Court, the justices agreed that a conviction on the charge of "failure to report" to prison is not the kind of prior "violent felony" conviction that triggers a 15-year mandatory prison sentence for someone found guilty of illegal possession of a firearm.

"Conceptually speaking, the crime amounts to a form of inaction, a far cry from the purposeful, violent and aggressive conduct" associated with violent crimes under the Armed Career Criminal Act, Breyer wrote. The Justice Department had argued that "failure to report" should be treated the same way a prison escape would be.

Justice Samuel Alito Jr., joined by Justice Clarence Thomas, wrote a concurrence urging Congress to reduce confusion about the law by amending it with addition of a list of specific crimes that trigger an enhanced sentence.

The other decision, Jimenez v. Quarterman, is a Texas case authored by Justice Thomas for a unanimous Court. Thomas ruled that because Texas allows defendants to file untimely appeals of state convictions, the clock for the one-year deadline for filing a federal habeas appeal under Antiterrorism and Effective Death Penalty Act should not start ticking until after that out-of-time appeal is completed. [Mark Godsey]

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Court again rebukes Portage County judge

An Ohio appeals court has upbraided a controversial Portage County judge for a second time in as many weeks " this time for finding a young public defender in contempt.

The 11th Ohio District Court of Appeals found Wednesday that Municipal Judge John Plough "abused his discretion" when he fined attorney Brian Jones for refusing to proceed with trial in 2007.

Jones was just four months out of law school and had been assigned the case only the day before. Jones said he had a duty to his client to be able to prepare. Plough ordered the young attorney held and later fined him.

"I'm glad I've been exonerated," Jones said Friday in a telephone interview.

.

Ian Friedman, president of the Ohio Association of Criminal Defense Lawyers and counsel for Jones in the contempt case, said, "This opinion reinforces the longstanding right to be afforded all individuals accused of a crime; the right to a fair trial and due process should be absolute and not be pushed aside for any reason like clearing a court's schedule."

Attorneys and legal associations from around the country rallied in support of Jones.

John Wesley Hall, an Arkansas lawyer who leads the National As-

sociation of Criminal Defense Lawyers, testified on Jones' behalf. "I don't know that I would have had the ability to have stood up like that, at that age," he said Friday.

Wednesday's appellate opinion, written by Judge Colleen Mary O'Toole, noted that "abuse of discretion" implies that a court's attitude "is unreasonable, arbitrary and unconscionable."

Jones had asked for a continuance so he could review the case before trial and interview witnesses. [Mark Godsey]

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Rejected juror figures in bid for new trial

In September 1997, an overweight black woman was excluded from a criminal trial jury in Binghamton because of a prosecutor’s claim that fat people tend to take sides with the defense.

Now, the black man who was convicted of gun and drug charges in that case may get a new trial.

Seth Dolphy, 32, a state prison inmate, claims the prosecutor used his opinion about the woman’s weight only as a pretext for keeping an African-American off the jury.

A federal appeals court that heard legal arguments on the case in Buffalo last fall has ordered a federal district judge to take a second look at the case of Dolphy, who was convicted in the case by a Broome County jury.

Dolphy, who is from Binghamton, claims he should receive a new trial because his constitutional right to a jury of his peers was violated. He was convicted by an all-white jury and sentenced to a prison term of at least 14 years.

The decision of the Second U. S. Circuit Court of Appeals to order a new look at the case was applauded by Dolphy’s attorney, Robert A. Culp of Garrison.

The claim that overweight people make unfair jurors makes no sense, Culp told The Buffalo News on Monday.

“I don’t claim to have made a study of this, but to me, you don’t look at somebody’s skin color, their weight or their appearance to determine how good a juror they will make,” Culp said. “I thought we were past that kind of thing in our society.”

The highly unusual case was argued in Buffalo’s federal court in October, with Buffalo’s chief federal judge, Richard J. Arcara, temporarily sitting on the appeals court.

In a 1986 case called Batson v. Kentucky, the U. S. Supreme Court ruled that a person cannot be kept off a jury because of race. The high court ruled that a lawyer must have a race-neutral reason for asking that someone be excluded from a jury.

According to court papers, the prosecutor in the Dolphy case — who was not identified by name — told a judge that he wanted a black woman kept off the jury because she was obese.

“I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, heavyset people tend to be very sympathetic toward any defendant,” the prosecutor said. [Mark Godsey]

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The BART shooting: Are violent protests the answer?

What is it people used to say about urban centers during the civil rights protests of the '60s? Tinderbox.

No question that Oakland is a full-on bonfire, soaked in gasoline and just waiting for a match or two. Chronicle columnist Chip Johnson and reporter Henry Lee have provided readers a long running and deep image of a city off its moorings, from hapless (or absent or corrupt) government leaders to rampant homicide.

So is it the fuming frustrations of Oakland that provided the tinder for riotous, violent protest Wednesday night, and the shooting of Oscar Grant in a BART station the flame?

.

This doesn't make it right, as several thousand SFGate commenters made clear in a fugue of response, a sizable piece of it pulled as abusive. The damage to downtown property didn't help anyone, didn't solve any mysteries, didn't make anyone's life better, authorities more accountable or Oakland more liveable. It's like holding yourself hostage.

I get that it's complicated. But neither does that make it right and saying so doesn't make me guilty, as one commenter accused other comments, of "racism, classism, and general kneejerk bigotry."

A number of the comments that did make it on SFGate had the tint of a racial lens. It wasn't explicit but implicit in some of the references to both the protestors and Mr. Grant as "thugs" with criminal histories and intent.

While the grainy video images of the fatal BART incident appeared to be a kind of Rodney-King, black/white showdown, the Oakland PD has come some distance from the Riders days; the Mayor, if you can find him, is African-American with a long history of activism and, in what would have been a shock to all citizens back in the 60s, a black man is about to assume the presidency of the United States.

So it's not clear whether race was actually another match to the pyre, rather than just an easy outlet and excuse for action and comment. [Mark Godsey]

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Speedy Trial Case Before Supreme Court This Week

After he was charged with hitting his girlfriend in the face, career criminal Michael Brillon sat in jail without bail for nearly three years, going through six public defenders before being tried for assault.

The delays paid off -- for Brillon, anyway: A Vermont court threw out his conviction and freed him from prison last spring, saying his Sixth Amendment right to a speedy trial had been violated.

Now, the U.S. Supreme Court is taking up the case, trying to decide whether delays caused by public defenders can deprive a criminal defendant of that right. In particular: Whether governments can be blamed for such delays because they're the ones who assign and pay the lawyers for indigent defendants.

Forty states and 15 organizations -- state governments, county governments, the U.S. Conference of Mayors, a victim's rights' group -- are backing the Vermont prosecutor's appeal of the ruling, worried that if it stands, criminal suspects will try to game the system and get the result Brillon did.

"You're greasing that slippery slope," said David Parkhurst, an attorney with the National Governors Association, which filed a friend-of-the-court brief in support of the prosecutor's appeal. "That's the big concern here."

Brillon, a 46-year-old construction worker whose criminal past includes convictions for sexual assault on a minor, felony obstruction of justice and cocaine possession, was charged with aggravated domestic assault over the 2001 incident with his girlfriend, who is the mother of his child.

Held without bail, his case inched along as lawyer after lawyer asked for postponements and eventually withdrew or were replaced at Brillon's request.

Read full article here. [Brooks Holland]

Crime And Punishment: A Primer

Though the U.S. crime rate has been on a steady decline since the early 1990s, some caution that tough economic times could drive crime rates back up.

Lately, several high-profile white collar capers have captured the national attention, reigniting the conversation about appropriate punishment for non-violent, but egregious offenses.

As News & Notes kicks off a month-long series on crime, Farai Chideya gets a primer on crime and punishment from Franklin Zimring, a law professor at the University of California, Berkeley.

He's the author of The Great American Crime Decline. [Mark Godsey]

Listen to "Crime And Punishment: A Primer"

Bad Economy May Fuel Hate Groups, Experts Warn

For 20 years, Bart McIntyre has tracked white supremacist movements, even spending two years undercover in Alabama to penetrate a violent young band of criminals who called themselves the Confederate Hammerskins.

Away from his wife and young daughter, McIntyre took the alias "Mark," attended Ku Klux Klan rallies and educated himself in racist propaganda. He and a law enforcement partner ultimately helped build criminal cases that sent more than 10 men to prison for their involvement in the murder and vicious beatings of black men in the Birmingham area in the early 1990s.

Now, as McIntyre prepares to retire from the Bureau of Alcohol, Tobacco, Firearms and Explosives, he and other analysts are warning that the threat from hate groups and splinter organizations connected to the Klan should not be underestimated, especially at a time of economic unrest.

"In society, you have a very small number of people who are going to push the envelope and take it to the next step," said McIntyre, the resident ATF agent in charge in Roanoke.

Veteran investigators say they have advocated for increased attention to the problem since late September, when the nation's economic troubles widened, giving white supremacists a potent new source of discontent to exploit among potential recruits.

The number of U.S. hate groups has increased by 48 percent, to 888, since 2000, according to experts at the Southern Poverty Law Center, an independent organization that monitors racist movements. [Mark Godsey]

Continue Reading "Bad Economy May Fuel Hate Groups, Experts Warn"

Federal rules bode ill for federal judge

Next month's trial of U.S. District Judge Sam Kent is likely to be a sad and sordid affair.

According to federal indictments, one handed down Tuesday, two former female employees accuse him of sexually forcing himself on them. He contends that both, for differing reasons, are lying.

The evidence against Kent will hardly be edifying.

To refute it, Kent's lawyer, highly-regarded Dick DeGuerin, will have to attack the credibility of the women.

But modern rules of evidence, say legal experts, limit traditional methods of attacking the character of accusers. And a federal rule instituted in the 1990s may open Kent's own past behavior to examination.

In the first case, involving Kent's former case manager Cathy McBroom, DeGuerin has described the relationship as "enthusiastically consensual."

He suggested she turned on Kent because she had made a mistake in her job that might get her fired.

Kent himself said at a court hearing, "For the record I absolutely intend to testify, and we are going to bring a horde of witnesses."

Clearly he would like to see McBroom on trial.

There was a time when the standard defense in sexual assault cases was to try the accuser, to challenge a woman extensively on her sexual history and paint her as a slut.

But that changed in the 1970s when most states and the federal government passed "rape shield" laws designed to protect women from suffering "a second rape" on cross examination, said Fred Moss, a former federal prosecutor who is now an evidence expert at the SMU Dedman School of Law.

He said a defendant can sometimes get in evidence of his own history with the accuser, but it is very difficult to get in evidence regarding the person's history with others.

Steven Goode, a University of Texas School of Law professor who has written several textbooks on both federal and Texas rules of evidence, said the "rape shield" laws give rape victims the same protections generally given to defendants.

Prosecutors are not allowed to use "extraneous acts" to show that somebody is a "bad person."

"Just because someone has acted badly in other cases doesn't prove that he did in this case," Goode said.

"Courts had allowed evidence of a rape victim's background in contravention of this rule," he said. "Rape shield laws brought rape cases into conformity."

But in 1994, federal rules were taken a step further.

They were amended to allow judges to admit the past behavior of the defendant in sex cases. [Mark Godsey]

Continue Reading "Federal rules bode ill for federal judge"

Samuel Buell Criminal Law Professor at the Washington University School of Law

Professor Buell's writing and teaching focus on criminal law and on the regulatory state, particularly regulation of activity in corporations and financial markets.  His courses include Criminal Law, Securities Regulation, and a seminar in Advanced Topics in Regulation of Financial Markets.  He joined the faculty of Washington University School of Law as an associate professor in July 2006 after serving as a visiting assistant professor at the University of Texas School of Law.

Professor Buell's publications include "The Upside of Overbreadth," NYU Law Review (2008); "Criminal Procedure Within the Firm," Stanford Law Review (2007); "Novel Criminal Fraud," NYU Law Review (2006) (selected for 2006 Stanford-Yale Junior Faculty Forum); "Reforming Punishment of Financial Reporting Fraud," Cardozo Law Review (2007); and "The Blaming Function of Entity Criminal Liability," Indiana Law Journal (2006).

Professor Buell graduated magna cum laude from Brown University with an A.B. in History and summa cum laude from New York University School of Law, where he received awards for finishing first in his class, publishing the best law review note, authoring the best criminal law paper, and displaying outstanding scholarship, character, and professional activities.  He was an editor of the New York University Law Review and was elected to the Order of the Coif.

Following law school, Professor Buell clerked for the Honorable Jack B. Weinstein of the United States District Court for the Eastern District of New York.  He practiced as an associate with Covington & Burling in Washington, D.C. before joining the United States Department of Justice, for which he worked as a federal prosecutor, leading cases of national significance in New York, Boston, Washington, and Houston.  Professor Buell twice received the Attorney General's Award for Exceptional Service, which is the Department of Justice's highest honor.

Professor Buell frequently comments on white collar crime and federal criminal law for the New York Times, the Wall Street Journal, the Washington Post, National Public Radio, The News Hour, the Christian Science Monitor, the Los Angeles Times, the Chicago Tribune, the Houston Chronicle, Time Magazine, USA Today, and other media outlets.  He has been an op-ed contributor to the Los Angeles Times and has authored a legal commentary blog for the Houston Chronicle. [Mark Godsey]