October 27, 2009
"Polanski's victim asks court to dismiss charge"
The L.A. Times has the story here, addressing the publicity the victim has faced:
Some media outlets offered money. Others ambushed her at the airport. Reporters and photographers showed up at her children's schools and at her husband's job. They offered her children toys in exchange for information. They camped out in front of her home in Hawaii and photographed and videotaped her through holes drilled in their cars.
The details are contained in a statement filed with the 2nd District Court of Appeal, in which Geimer's attorney asked that the case against Polanski be dismissed. The statement argues that as a victim of crime, Geimer has a right to "finality" guaranteed by the California Constitution.
Preview of Upcoming Capital Habeas CaseScotusBlog previews Wood v. Allen here. The case, which "questions how a federal court should review the facts determined in a state criminal proceeding under the Antiterrorism and Effective Death Penalty Act (AEDPA)," is set for argument on November 4.
"American Law Institute Council votes to withdraw Model Penal Code section on the death penalty"Doug Berman at Sentencing Law and Policy has the post, quoting extensively from a post by the Death Penalty Information Center. A "Report of the Council to the Membership of the American Law Institute on the Matter of the Death Penalty" is available here. Doug's take: this development "mostly spotlights the strong view of most academics — in contrast to most members of the voting public — that it is preferable to try to end rather than to mend the modern administration of the death penalty."
Poulin on Conflicts and Prosecutorial Duties
Anne Poulin (Villanova University School of Law) has posted Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose? (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise the defendant of the risks inherent in counsel’s situation and possibly accept a waiver from the defendant or disqualify counsel if appropriate.
If defense counsel has an employment relationship with the prosecutor’s office or if counsel faces criminal investigation or charges, the prosecution generally has ready access to the pertinent information, and neither the court nor the defendant is likely to be aware of the problem. Therefore, when a situation exists that may generate one of these two types of conflict, the prosecution must have an obligation to disclose relevant information to the court and the defendant. Imposing the obligation of disclosure on the prosecution will increase the likelihood that courts will be able to address these types of conflict early and appropriately.
Steiker on the Marshall Hypothesis
Carol S. Steiker (Harvard Law School) has published The Marshall Hypothesis Revisited in the Howard Law Journal, assessing Justice Thurgood Marshall's claim that citizens would oppose the death penalty if fully informed about it. Here is an excerpt from the introduction:
In what follows, I will review the empirical studies, the more general changes in death penalty attitudes and practices from 1972 until today, and the changes in the views of individual members of the Supreme Court over the same period. These different grounds of assessment, considered together, do not by any means lead to an unqualified endorsement of Marshall’s argument in its entirety. However, they do suggest that there is more to say on behalf of the Marshall hypothesis than the easy dismissal it sometimes invites. Moreover, these assessments may not only help to explain some of the developments in death penalty attitudes and practices from Furman to the present, but they may also offer some direction to the Court in its continuing role of regulating capital punishment practices under the Eighth Amendment.
October 26, 2009
Kleiman on How to Have Less Crime and Less Punishment
Mark Kleiman (UCLA Department of Public Policy) is guest-blogging this week at The Volokh Conspiracy about his new book, "When Brute Force Fails: How to Have Less Crime and Less Punishment" (Princeton University Press 2009). The first post was today. Here's a summary of the book, from an earlier post:
We have too much crime and vastly too many people behind bars. Is it possible to have less of both? Yes, if the criminal justice system can learn what everyone who has ever successfully raised a child or trained a puppy knows: the right amount of punishment is the minimum that gets the message across, and that minimum effective dose is smaller if rules are clearly communicated and if punishments follow violations swiftly and predictably. There are now working examples of successful strategies based on these principles, but the political and journalistic debate about crime has yet to catch up to progress on the ground. Doing things we already know how to do, we could have half as much crime and half as many people in prison ten years from now as we have today.
Arizona State Seeks Director of Post-Conviction Clinic
The Sandra Day O’Connor College of Law invites applications for a full-time faculty position working in the post-conviction clinic. This position will be on track for continuing status as a Clinical Professor of Law. The remainder of the announcement follows the jump.
The Director of the post-conviction clinic will work with students on cases involving post-conviction relief in the
Candidates must have a J.D. degree. Candidates must also have teaching, research, and other professional experience appropriate to rank. Applications will be reviewed beginning December 15, 2009; if not filled, reviews will occur on the first of the month thereafter until search is closed. Please submit resume to Ms.
Willingham's Wife Says He Admitted Killings
Addressing the now-infamous Texas execution of a man many now claim was innocent, Kent Scheidegger at Crime and Consequences excerpts the statement of Willingham's wife, published in the Fort Worth Star-Telegram, in which she claims, inter alia, that Willingham admitted his guilt to her. Says Kent:
One thing is certain. Those who contend Willingham was certainly innocent are full of baloney. This is looking more and more like a rerun of the Coleman case. A major news magazine convinced large numbers of people the executed man was innocent. His supporters asserted his innocence as a proven fact. When all the facts were in, he was clearly guilty.
Varied Approaches to Justifying DUI Stop on Basis of TipFourthAmendment.com notes a recent Tennessee Supreme Court case, State v. Hanning, upholding a traffic stop based on an anonymous tip of erratic driving. The case appears to conflict with the approach of the Virginia Supreme Court, which requires independent confirmation of erratic driving before making the stop and which prompted a dissent from the denial of cert by Chief Justice Roberts in Virginia v. Harris.
Featured Download: Robinson on the System of Excuses
It is a good month for excuse doctrine. First, my colleague, Don Dripps, posted his article defending Bentham's view of excuses, summarized here. Now Paul H. Robinson (University of Pennsylvania Law School) has posted a manuscript also prepared for the Texas Tech symposium on excuses: A System of Excuses: How Criminal Law’s Excuse Defenses Do, and Don’t, Work Together to Exculpate Blameless (and Only Blameless) Offenders. This short but interesting piece attempts to build a systematic argument for revising certain aspects of excuse doctrine. Here is the abstract:
Criminal law excuses are analyzed as a group of analogous doctrines working together to exculpate blameless offenders. The analysis reveals that current law doctrine, although it often is not explicit about the parallel and integrated operation of its excuse defenses, does much to perform this exculpatory function. However, the systematic perspective of excuses also reveals some serious shortcomings of current doctrines.
CrimProf posts you may have missed over the weekend:
- "Automated Crime Victim Notification"
- "New York Times editorial calls for ignition locks for all drunk drivers"
- Wildfires and Felony Murder
- Walen on the Relevance of Intentions to Permissibility
- "Stop or I'll Shoot, and in Any Case I'm Guilty of Making a Criminal Threat"
- Annino, Rasmussen, and Rice on Juvenile Life Without Parole for Non-Homicide Offenses
- "Arizona May Put State Prisons in Private Hands"
- "Craigslist Not Liable for Prostitution Ads"
- Skepticism about New Federal Policy on Medical Marijuana
- "How a girl's stark words got lost in the Polanski spectacle"
- Top-Ten Recent SSRN Downloads
- "Ever-Present Surveillance Rankles the British Public"
- Challenge to DNA Sampling of Arrestees
- Student Grading in Innocence Projects
- Symposium on Crime, Criminal Law, and the Recession at Chicago
October 25, 2009
Symposium on Crime, Criminal Law, and the Recession at Chicago
Ellen Podgor has a post at White Collar Crime Prof Blog about the weekend's proceedings here. According to the symposium website, participants included Anton R. Valukas (Jenner & Block), Roger Fairfax (George Washington University Law School), Stuart Green (Rutgers School of Law), Alex Kreit (Thomas Jefferson School of Law), Jens Ludwig (University of Chicago: Department of Economics), Richard McAdams (University of Chicago Law School), Justin McCrary (UC Berkeley Boalt Hall School of Law), Robert Mikos (Vanderbilt University Law School), John Pfaff (Fordham University School of Law), Ellen Podgor (Stetson University College of Law), Jonathan Simon (UC Berkeley Boalt Hall School of Law), Carol Steiker (Harvard Law School), Jordan Steiker (University of Texas School of Law), and Brian W. Walsh (Heritage Foundation).
Student Grading in Innocence ProjectsThe New York Times article, Prosecutors Turn Tables on Student Journalists, discusses a prosecutor's subpoena for "the grades, grading criteria, class syllabus, expense reports and e-mail messages" of students in the innocence project at Northwestern's journalism school, to ascertain "whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate" the subject of their investigation.
Challenge to DNA Sampling of Arrestees
The article, entitled DNA Profiling: You May Be Next, by Patrick Kollman, discusses a recent challenge to a California ballot proposition:
Proposition 69, passed in 2004, made California one of now 21 states that require DNA sampling for some arrestees. This voter-approved initiative mandated that this extend to all felony arrestees by Jan. 1, 2009—and the legal backlash has already begun.
Earlier this month the American Civil Liberties Union of Northern California (ACLU-NC) filed a lawsuit against the state of California charging that the statute on DNA collection violates search and seizure laws under the Fourth Amendment, and due process under the 14th Amendment.
The ACLU’s lawsuit has fueled the debate over the limits and scope of DNA sampling even as its use is accelerating. In August 2007, eight states required DNA samples from some arrestees. That number has continued to rise, jumping 50 percent—from 14 states to 21—just this year. In April the federal government began taking samples from suspects arrested on federal crimes, and will also collect DNA from detained undocumented immigrants.
Hat tip: FourthAmendment.com.
"Ever-Present Surveillance Rankles the British Public"
This interesting article about an ongoing concern, heightened by a recent incident, is in the New York Times. Here's an excerpt:
The law in question is known as the Regulation of Investigatory Powers Act, or RIPA, and it also gives 474 local governments and 318 agencies — including the Ambulance Service and the Charity Commission — powers once held by only a handful of law enforcement and security service organizations.
Under the law, the localities and agencies can film people with hidden cameras, trawl through communication traffic data like phone calls and Web site visits and enlist undercover “agents” to pose, for example, as teenagers who want to buy alcohol.
In a report this summer, Sir Christopher Rose, the chief surveillance commissioner, said that local governments conducted nearly 5,000 “directed surveillance missions” in the year ending in March and that other public authorities carried out roughly the same amount.
Top-Ten Recent SSRN Downloads
|1||208||The Torture Lawyers |
Jens David Ohlin,
Cornell Law School,
Date posted to database: September 10, 2009
|2||171||Blaming the Brain |
Steven K. Erickson,
University of Missouri at Columbia - School of Law,
Date posted to database: September 12, 2009
|3||158||Empirical Work in International Law: A Bibliographical Essay |
Tom Ginsburg, Gregory Shaffer,
University of Chicago Law School, University of Minnesota - Twin Cities - School of Law,
Date posted to database: August 5, 2009
|4||154||Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended |
Frank O. Bowman III,
University of Missouri School of Law,
Date posted to database: September 10, 2009
|5||140||Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms |
University of Virginia School of Law,
Date posted to database: August 13, 2009 [6th last week]
|6||136||Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional |
John Marshall Law School,
Date posted to database: August 18, 2009 [5th last week]
|7||134||Finding Bernie Madoff: Predicting Fraud by Investment Managers |
Stephen G. Dimmock, William Christopher Gerken,
Michigan State University - Department of Finance, Auburn University - Department of Finance,
Date posted to database: September 11, 2009
|8||132||The Future of the Attorney-Client Privilege in Corporate Criminal Investigations |
Cindy A. Schipani,
University of Michigan - Stephen M. Ross School of Business,
Date posted to database: August 10, 2009 [new to top-ten]
|9||121||Law, Legal Institutions, and the Criminalization of the Underclass |
David Ray Papke,
Marquette University - Law School,
Date posted to database: August 4, 2009 [8th last week]
|10||119||Governing Corporate Compliance |
Miriam H. Baer,
Brooklyn Law School,
Date posted to database: September 16, 2009 [9th last week]