February 6, 2009
Seventh Circuit Affirms Iraqi Spy's Conviction
The 7th Circuit refused to overturn the conviction of a former spy for Saddam Hussein who came to the United States as an unwitting "sleeper agent" for the Iraqi Intelligence Service and obtained U.S. citizenship by lying on his application.
Sami Latchin actively served in the IIS from 1979 to 1993, and was selected as one of the sleeper agents in Hussein's plan to plant spies around the world to gain positions of influence, gather intelligence and influence policy in favor of Hussein's Ba'athist regime.
"All spy programs, of course, operate on deception - the spies pretend to be people they aren't," Judge Evans wrote. "But Saddam's plan took it to a whole new level - not even the spies would know they were part of the program until they were activated many years down the road."
The only sleeper agent planted in the United States, Latchin insisted he went there to "retire." But the government produced evidence that Latchin made several trips to Eastern Europe to meet with "Ali," his handler, who gave him a code name and a cover story should he run into trouble. Ali also paid Latchin $24,000 a year for his services - an amount Latchin later explained as "retirement pay."
He settled in Chicago, where he worked as a counter agent at O'Hare International Airpot. In 1998, he successfully applied for naturalization.
"That may strike the reader as a shock," Evans wrote. "How could a spy for Saddam Hussein - whether past or present - acquire citizenship so easily? According to the government, only by lying."
Read full article here. [Brooks Holland]
February 4, 2009
Judge Permits Flag-Desecration Prosecution in Nebraska
A Sarpy County judge has denied a challenge to Nebraska’s flag desecration statute raised by a Kansas woman who argued it violates her right to free speech.
Judge Todd Hutton ruled Tuesday that prosecutors can proceed with their case against Shirley Phelps-Roper. She is a member of the Westboro Baptist Church of Topeka, Kan., whose members believe that U.S. troop deaths are punishment for the nation’s tolerance of homosexuality. The group has protested at military funerals nationwide.
Authorities say Phelps-Roper let her 10-year-old son stand on an American flag at the funeral of a National Guardsman in June 2007 in Bellevue. They also say she wore a flag as a skirt that dragged on the ground.
Nebraska’s law against flag desecration prohibits intentionally “casting contempt or ridicule’’ upon a flag by mutilating, defacing, defiling, burning and trampling it. Violating the law carries a misdemeanor charge.
The Nebraska Supreme Court is responsible for deciding whether a law violates the state Constitution, Hutton said. The case remains in a county court, which has limited authority.
Nebraska lawmakers didn’t try to change the law after a U.S. Supreme Court case challenged a Texas’ flag desecration law some 20 years ago.
“The Nebraska Supreme Court has held where a statute has been judicially construed and that construction has not evoked an amendment from the Legislature, it will be presumed that the Legislature acquiesced in the court’s findings,’’ he wrote.
“The Nebraska Supreme Court has yet to reconcile the findings’’ in the U.S. Supreme Court’s rulings in the Texas case and other flag cases, Hutton said.
Read full story here. [Brooks Holland]
February 2, 2009
"Defining `Cruel and Unusual' When Offender is 13"
From today's New York Times:
"In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape.
. . . .
"The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.
. . . .
"Mr. Sullivan is 33 now, and his lawyers have asked the United States Supreme Court to consider the question of whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing."
Read the rest of the story here [Mike Mannheimer]
February 1, 2009
New Article Spotlight: Challenging the Practical Importance of the Justification/Excuse Distinction
Arizona CrimProf Jack Chin has posted The Justification/Excuse Distinction: An Argument for its Practical Irrelevance on SSRN. The abstract: "For decades, Joshua Dressler, Paul Robinson, Reid Fontaine and others have debated the distinction between justification and excuse defenses. "Justifications" represent good behavior, while "excuses" relieve criminal liability for socially undesirable behavior for policy reasons. Building on the critiques of Kent Greenawalt and Mitchell Berman, this essay proposes that claims for the practical importance of the debate have not succeeded. The best argument is Joshua Dressler's claim that a robust justification/excuse distinction will send clear moral messages about acquittals. But because acquittals are intrinsically ambiguous, they cannot be used to derive moral judgments. First, because clear cases of innocence or meritorious defense are disproportionately screened out before trial, acquittals disproportionately represent near-convictions. Also, even replacement of opaque not guilty verdicts with special verdicts would send clear messages only if the new verdicts are morally precise. However, "excuse" defenses can be satisfied by "justified" conduct and vice versa, e.g., the Model Penal Code's "justification" of erroneous uses of force based on simple but less than gross negligence. In addition, there are seemingly intractable debates about categorization of defenses. Assigning acquittals to pigeonholes that even specialists dispute cannot send clear moral messages. Other rationales for the practical importance of the distinction, such effects on accomplice or aider and abettor liability of third parties, do not reflect the law under the Model Penal Code or other modern approaches. This essay is part of a symposium at the University of Michigan Journal of Law Reform on Reid Fontaine's work." Full Text here.