CrimProf Blog

Preserving DNA Evidence to Prove the Potential Innocence of a Man Scheduled for Death Today

Today the Innocence Project of Florida (IPF) is filing a motion to preserve evidence in the case of Wayne Tompkins, who is scheduled to be executed at 6 PM EST by lethal injection. Tompkins was convicted of murdering Lisa DeCarr in 1983, though doubts persist as to the true identity of the victim. IPF believes a new round of DNA testing should be conducted in order to banish all doubt, and today's action represents the first step toward acquiring that testing.

"If the victim in this case wasn't Lisa DeCarr after all, that means Wayne Tompkins was convicted of a murder that never took place. It's pretty bizarre that the Governor is about to execute a person when these kinds of questions remain," said Seth Miller, Executive Director of the Innocence Project of Florida. Several individuals have signed affidavits claiming to have seen DeCarr alive since the alleged murder.

"The Governor should remember two other cases, Frank Lee Smith and Ricky McGuinn," said Miller. Frank Lee Smith died on death row in Florida before DNA testing proved he was innocent. In Ricky McGuinn's case, his Texas execution was stayed, then DNA testing proved his guilt, and his execution was reset. In both cases, DNA testing proved vital to the establishment of culpability.

IPF is moving a court to notify the appropriate institutions that they have a statutory obligation to preserve all evidence pertaining to Tompkins' case for 60 days, even if he should be executed. IPF wants a robe, a sash, and samples of the victim's bones to be preserved, with confidence that a new round of DNA testing, using methods that have not been used in this case, will likely yield the identity of the victim.

Miller added, "There are serious doubts left in this case, and we fully intend to get to the bottom of what really happened. Tompkins shouldn't be executed when such important questions as the identity of the victim remain. Some day soon, we will make sure the truth comes out." Read More. . .
[Bobbi Madonna]

DOJ Maintains State Secrets Position from Bush Administration

In the first major national security case of the Obama administration, lawyers representing the government took the exact same position as the Bush administration. Government attorneys asked a judge to throw out a torture case, citing the need to preserve state secrets. Some human rights activists now say they feel betrayed by an administration that had promised greater openness and transparency.

Five former terrorism detainees brought the lawsuit, Mohammed et al. vs. Jeppesen DataPlan Inc. The men accuse Jeppesen, a Boeing subsidiary, of providing logistical support to the CIA for "torture flights" to overseas prisons.

Bush administration lawyers had argued there was no way to try this case without revealing state secrets. Activist groups and newspaper editorial pages hammered the Justice Department for taking that position, but a trial judge agreed and threw the case out.

As the government prepared to argue the case again before three judges at an appeals court Monday, observers wondered whether the Justice Department would change course now that there is a new president and a new attorney general. The government did not change course.

ACLU attorney Ben Wizner, who represents the detainees, said in a phone interview after arguments, "The Obama administration, which came to office on a promise of greater transparency — on a promise of ending these practices — stood up and made exactly the same arguments that were made by Bush lawyers to throw out torture victims' lawsuits. And that's a profound disappointment."

Read full article here. [Brooks Holland]

Second Circuit Holds Second Amendment Not Applicable to States

The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held (Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09).

The statute at the center of this case, N.Y. Penal Law §265.01(1), provides criminal penalties for possession of a broad range of items, including weapons used in martial arts. The plaintiff was charged under the statute after police found fighting sticks, or nunchaku, in his home. He ended up pleading guilty to a different charge and then filed a lawsuit against the county prosecutor and others seeking a declaration that the law offends his Second Amendment right to bear arms.

Incorporation Doctrine

For the first half of its life, the U.S. Constitution's Bill of Rights was interpreted as constraining only the federal government—not the states. However, in the late 1800s and early 1900s, the U.S. Supreme Court began ruling that certain rights were incorporated into the limits on state governments imposed by the 14th Amendment's due process clause. The provisions selected for incorporation so far include most, but not all, of the rights that come into play in criminal cases. For example, the right to indictment does not apply to the states.

Back before the incorporation doctrine took hold, the Supreme Court held, in United States v. Cruikshank, 92 U.S. 542 (1875), and Presser v. Illinois, 116 U.S. 252 (1886), that the Second Amendment is a limitation only on the power of the federal government and thus does not constrain state regulations. The Supreme Court's subsequent Second Amendment cases, United States v. Miller, 307 U.S. 174 (1939), and District of Columbia v. Heller, 76 U.S.L.W. 4631 (U.S. 2008), both involved federal regulations, so the incorporation issue was not really in play. Nevertheless, in a footnote in Heller, the Supreme Court had this to say:

With respect to Cruikshank‘s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

The Second Circuit, in contrast, has directly addressed the incorporation issue in recent years. In Bach v. Pataki, 408 F.3d 75, 73 U.S.L.W. 1677 (2d Cir. 2005), the court rejected a challenge to a state gun-control law on the ground that the states' power to regulate firearms is not limited by the Second Amendment right to bear arms.

Read full article here. [Brooks Holland]

Federal Sex Offender Law Faces State Resistance

An aggressive federal effort to keep track of sexual offenders is at risk of collapse because of objections from states and legal challenges from sex offenders and others.

The effort, approved by Congress three years ago, requires all states to adopt strict standards for registering sex offenders and is meant to prevent offenders from eluding the authorities, especially when they move out of state.

The law followed several heinous crimes by sex offenders on the run, including Joseph E. Duncan III, who in 2005 fled North Dakota, where he had been registered, and committed sex crimes and murder in three states, ending with the torture and killing of a 9-year-old boy in Montana.

An estimated 100,000 sex offenders are not living where they are registered, according to the National Center for Missing and Exploited Children, which collects the data from the states and provides it to the United States Marshals Service and other federal agencies.

But officials in many states complain about the law’s cost and, in some instances, contend their laws are more effective than the federal one. The states also suggest that the federal requirements violate their right to set their own policies and therefore may be unconstitutional, at least in part.

Despite a looming July deadline, no state has been deemed compliant with the law, and some are leaning toward ignoring major requirements. As a result, one of the toughest child-protection initiatives in the nation’s history is languishing.

“We support the intent, and I’m sure every one of my attorney general colleagues supports the intent,” said Mark J. Bennett, the attorney general of Hawaii. “But we believed we couldn’t follow every single provision because, legally and practically, some of the provisions didn’t make sense.”

Some sex offenders and civil liberties groups have also taken court action to block the law’s provisions. In Ohio, a man convicted 15 years ago of “gross sexual imposition” involving a teenage girl is challenging the requirement that he remain on the state’s registry of sex offenders for the rest of his life, instead of the 10 years previously required by Ohio law.

“That’s not what I want my children to grow up with,” said the man, Darren L. Coey, 35.

Members of Congress say they may try to address some of the problems with the law. Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, said through a spokeswoman that he planned “to determine whether revisions and improvements can strengthen compliance, and then to quickly make whatever changes may be needed.”

While some of the law’s backers acknowledge that the states have legitimate concerns, they remain fundamentally committed to the law, and suggest that the delays leave a patchwork of differing state laws that keep children unnecessarily vulnerable to predators.

Read full article here. [Brooks Holland]