Saturday, October 24, 2009
The article in the Los Angeles Times states, "Samantha Gailey, at 13, was unequivocal in her testimony against Polanski. But her account was turned into something almost benign."
Samantha's testimony that day was unequivocal: She had kept trying to get away from him, putting her clothes back on, saying no repeatedly. She had made up a lie about having asthma to get out of a Jacuzzi. He persisted. She was scared. She did not physically fight him off. He began to have sex with her, then concerned she might get pregnant, switched to anal sex. When he drove her home, he told her not to tell her mom, adding, "You know, when I first met you, I promised myself I wouldn't do anything like this with you."
. . . .
But Samantha's stark testimony has never been seriously impugned, in or out of court. When she sued Polanski years later for sexual assault, he pleaded the 5th when asked if he illegally gave her champagne and part of a quaalude pill, then performed oral copulation on her and sodomized her.
An extensive review of several thousand court documents, as well as numerous interviews, shows a basic dynamic defining the entire saga -- one force trying to drive debate away from a young girl's unshaken allegations, and another trying to reel it back in.
The New York Times article is here. An excerpt:
State officials will soon seek bids from private companies for 9 of the state’s 10 prison complexes that house roughly 40,000 inmates, including the 127 here on death row. It is the first effort by a state to put its entire prison system under private control.
The privatization effort, both in its breadth and its financial goals, demonstrates what states around the country — broke, desperate and often overburdened with prisoners and their associated costs — are willing to do to balance the books. Arizona officials hope the effort will put a $100 million dent in the state’s roughly $2 billion budget shortfall.
Paolo Annino (Florida State University-College of Law), David W. Rasmussen (FSU Center on Economic Policy)and chelsea Boehme Rice (Public Interest Law Center) have posted Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to Nation on SSRN. Here is the abstract:
In May of 2009, the United States Supreme Court accepted two cases that raise the question of whether sentencing juvenile offenders who commit non-homicide crimes to life without the possibility of parole is cruel and unusual punishment. This report is focused exclusively on these juvenile offenders who received life without parole sentences for non-homicide crimes. It compares the sentencing trends in Florida, where both these cases originated, to the rest of the United States.
Researchers surveyed the state departments of corrections around the country and relay their findings in this report. Florida’s practice of sentencing juvenile offenders to life without parole for non-homicide crimes is unique among American states. The data presented in this report show that Florida far exceeds the rest of the nation in number of juvenile offenders sentenced to life without parole for non-homicide offenses. The total estimated number of juvenile offenders serving life without parole sentences for only non-homicide crimes in the United States is 109. Seventy-seven of these juvenile offenders are in Florida. Thirty-nine states have no juvenile offenders who have been sentenced to life without parole for non-homicide crimes.
Friday, October 23, 2009
Crime and Consequences comments on the recent decision of the Supreme Court of Kansas, calling for prompt legislative action to reverse it. In essence, the court construed its self-defense statute to reach "force" in self defense, but not the "threat of force." The opinion in State v. Hendrix is here. It shows the dangers of textualism in the wrong hands, and also shows how annoying cases make bad law. The trial court declined to give a self-defense instruction on the grounds that insufficient evidence had been introduced in support of the defense. Perhaps dubious of that ground, both the Court of Appeals and the Supreme Court said that the instruction was properly withheld because defendant had not used any actual force.
Alec D. Walen (Institute for Philosophy and Public Policy) has posted Comments on Doug Husak: The Low Cost of Recognizing (and of Ignoring) the Limited Relevance of Intentions to Permissibility (Criminal Law and Philosophy, Vol. 3, pp. 71-78, 2009) on SSRN. Here is the abstract:
Doug Husak frames a worry that makes sense in the abstract, but in reality, there is not much to worry about. The thesis that intentions are irrelevant to permissibility (IIP) is a straw man. There are reasons to think that the moral significance of intentions is not properly registered in criminal law. But the moral basis for criticism is not nearly as extreme as the IIP, and the fixes are not that hard to make. Lastly, if they are not made, some people may not get the punishments they deserve, and there will be some extra inequities in the criminal law as a result. But these inequities are not so great that change must be made now. The moral categories that are used may be too crude, but they are also familiar and easy to work with, and that counts for something.
Doug Berman at Sentencing Law and Policy agrees with the Times and also provides a useful list of his prior posts on "technocorrections." Like Doug, I believe these approaches hold great promise. If these techniques can displace harsh sentences in some significant set of cases, they will be a great boon.
Thanks to Kent Scheidegger at Crime and Consequences for this post, which quotes a press release from the California Department of Corrections and Rehabilitation that begins:
In its effort to keep crime victims informed, the Office of Victim and Survivor Rights with the California Department of Corrections and Rehabilitation (CDCR) is asking crime victims to register for a new automated system that will soon provide real-time information about the custody status of their offenders....
Thursday, October 22, 2009
A guest post by L. Song Richardson (Depaul University College of Law) at ACSBlog, concluding after reviewing the oral argument:
Padilla v. Kentucky has the potential to define the scope of the right to the effective assistance of counsel in the guilty plea context that will have consequences for citizens and non-citizens alike. Ultimately, however, the Court might avoid the difficult and thorny issues the case raises by finding that Mr. Padilla cannot establish that he suffered prejudice; he cannot demonstrate that a rational defendant would have insisted on going to trial had he received accurate advice.
When one thinks of “wrongful convictions and reliability in the criminal justice process” one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence. But this Essay presents a new dimension to this issue - the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling - all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results.
The rest of the report can be found here along with the initial coverage of Somer Thompson's disappearance here.
There are so many sex offenders living within blocks of where 7-year-old Somer Thompson vanished Monday that when their homes are represented by pins on a digital map they create a cluster so thick it overlaps in places.
Law enforcement officials have interviewed at least 75 registered sex offenders who live within a 5-mile radius of the second grader's home on Orange Park, Fla., but state officials say there are some 161 convicted offenders in that area.
Marc DeGirolami’s recent manuscript about the choice-of-evils defense, noted here by CrimProf, raises interesting questions about the relationship of the defense to criminal law theory. He cites several scholars for the proposition that choice-of-evils is more at home with a consequentialist than a retributivist justification for punishment. He then argues that the consequentialist account is inconsistent with forfeiture of the defense for those who bring about the necessity for choosing among the evils in question.
We disagree with the idea that pure retributivists would reject a necessity defense. And we also disagree that forfeiture of the defense is appropriate for those who cause the necessity in question, except possibly for reasons that do not implicate deep theoretical concerns.
The idea that retributivists would reject a necessity defense may be explained, in part, by the increased likelihood that retributivists would reject an unconstrained approach to choice of evils. Those attracted to a deontological theory like retributivism are more likely to be attracted to deontological constraints on killing in a case like Dudley & Stephens, for example, than would pure consequentialists (who would not be “pure” if they rejected welfare-maximizing killings).
John Temple (West Virginia University School of Journalism) has published The Last Lawyer: The Fight to Save Death Row Inmates with University Press of Mississippi. Here is a description from the publisher's website:
Ken Rose has handled more capital appeals cases than almost any other attorney in the United States. The Last Lawyer chronicles Rose's decade-long defense of Bo Jones, a North Carolina farmhand convicted of a 1987 murder. Rose called this his most frustrating case in twenty-five years, and it was one that received scant attention from judges or journalists. The Jones case bares the thorniest issues surrounding capital punishment. Inadequate legal counsel, mental retardation, mental illness, and sketchy witness testimony stymied Jones's original defense. Yet for many years, Rose's advocacy gained no traction, and Bo Jones came within three days of his execution.
Wednesday, October 21, 2009
SAN BERNARDINO, Calif. (AP) -- Almost six years after a wildfire destroyed nearly 1,000 homes in Southern California, prosecutors say they have enough evidence to charge a prison inmate with arson and murder in connection with the 2003 blaze.
San Bernardino County District Attorney Michael Ramos said Tuesday that a special criminal grand jury indicted Rickie Lee Fowler, a 28-year-old prison inmate, on arson and murder charges in connection to the wildfire that has been linked to five heart attack deaths.
TOPEKA, Kan. (AP) -- Kansas' attorney general said Tuesday that a state lab has a backlog of more than 38,000 DNA samples and suggested budget problems could keep some crimes unsolved longer.
Attorney General Steve Six said the Kansas Bureau of Investigation lab handling DNA testing doesn't have enough money to keep up with samples submitted by law enforcement agencies. State funding for the lab is 4.8 percent lower than two years ago, and the KBI's share of state dollars has dropped nearly 13 percent.