CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Tuesday, August 24, 2010

"Plotting Doubted in WikiLeaks Case"

The New York Times has this story:

STOCKHOLM — Although Swedish prosecutors have yet to complete their review of sexual abuse accusations that two Stockholm women made last week against Julian Assange, founder of the WikiLeaks Web site, those who say they have detailed knowledge of the case discount conspiracy theories linking it to efforts to discredit WikiLeaks.

Mr. Assange had suggested over the weekend that the tortured sequence of events at the Stockholm prosecutor’s office had been prompted by the Pentagon as part of what he called a program of “dirty tricks to ruin us.” The prosecutors had issued a warrant for Mr. Assange’s arrest on suspicion of rape on Friday night, which was followed within 24 hours by the cancellation of the warrant and a formal retraction of the implication that a rape had occurred.

August 24, 2010 | Permalink | Comments (0)

Monday, August 23, 2010

Fersko on Anonymous Juries

Seth A. Fersko has posted United States v. Wecht: When Anonymous Juries, the Right of Access, and Judicial Discretion Collide (Seton Hall Law Review, Vol. 40, No. 763, 2010) on SSRN. Here is the abstract:

The United States was a young country in 1807 when proceedings began in Aaron Burr's treason trial. The former vice president sat accused of treason for allegedly conspiring to wage war against the United States. By all accounts, the trial was such a spectacle that the country had not seen anything like it before, even during the colonial period. Although newspapers at the time virtually ignored the courts, the Burr trial “captivated the American public's attention,” and the newspapers happily obliged the public's interest. The news reports were so invasive and the editorials were so provocative that Burr alleged that the coverage prejudiced the jury against him. Acknowledging that some jurors might have formed opinions, Chief Justice John Marshall, serving as the trial judge, instructed the jury to remain open to the evidence and witness testimony. Despite the prejudicial media coverage, the jury acquitted Burr of treason.

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August 23, 2010 | Permalink | Comments (0)

Miller on Allowing Defendants to Present Evidence They Rejected Favorable Plea Bargains

Miller colin Colin Miller  (John Marshall Law School) has posted Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains. Here is the abstract:

Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions…” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.

This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains. It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.

August 23, 2010 | Permalink | Comments (0)

Sunday, August 22, 2010

Southwest Criminal Law Conference Aug. 27-28 in Colorado

Sessions, to be held at the University of Colorado and Denver University, will address topics such as "Reasonable Rape"; "Search and Seizure in a Post 9/11 World"; "Racial Profiling"; "National Security, Civil Liberties, and the War on Terror"; and the Arizona immigration law; Further information is available from Carolyn Ramsey (Colorado) or Sam Kamin (Denver).

August 22, 2010 | Permalink | Comments (1)

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 2705 A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070 Gabriel J. Chin, Carissa Byrne Hessick, Toni M. Massaro, Marc L. Miller,
University of Arizona James E. Rogers College of Law, Arizona State, Sandra Day O'Connor College of Law, University of Arizona College of Law, University of Arizona - James E. Rogers College of Law,
Date posted to database: May 29, 2010
2 199 Broken Lives from Broken Windows: The Hidden Costs of Aggressive Ordermaintenance Policing
Babe Howell,
CUNY School of Law,
Date posted to database: May 18, 2010 [3rd last week]
3 181 Palestine and the International Criminal Court: Asking the Right Question
Michael G. Kearney,
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: July 3, 2010 [new to top ten]
4 138 More Different than Life, Less Different than Death
William W. Berry,
University of Mississippi School of Law,
Date posted to database: May 25, 2010 [9th last week]
5 136 Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should be Teaching Law
Lawrence Rosenthal,
Chapman University - School of Law,
Date posted to database: June 27, 2010 [6th last week]
6 131 Status as Punishment: A Critical Guide to Padilla v. Kentucky
Gabriel J. Chin, Margaret Colgate Love,
University of Arizona James E. Rogers College of Law, Law Office of Margaret Love,
Date posted to database: July 10, 2010 [4th last week]
7 125 Selected Salient Evidentiary Issues in Employment Discrimination Cases
Lynn McLain,
University of Baltimore School of Law,
Date posted to database: July 12, 2010 [new to top ten]
8 108 One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research
Jon B. Gould, Richard A. Leo,
George Mason University - School of Public Policy, University of San Francisco - School of Law,
Date posted to database: May 27, 2010 [5th last week]
9 94 Reconsidering Reprisals
Michael A. Newton,
Vanderbilt University - Law School,
Date posted to database: June 9, 2010 [7th last week]
10 94 Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development
David B. Wexler,
University of Puerto Rico - School of Law,
Date posted to database: June 23, 2010

August 22, 2010 | Permalink | Comments (0)

Saturday, August 21, 2010

Gans on "DNA-only" Cases

Jeremy Gans (University of Melbourne) has posted Ozymandias on Trial: The Problem of Fair DNA-Only Hearings on SSRN. Here is the abstract:

Two recent Australian cases have placed the commanding role of DNA evidence in contemporary criminal trials under close scrutiny. In one, the latest entry in the national catalogue of miscarriages of justice, an inquiry found: '[T]he DNA evidence was, like Ozymandias’ broken statue in the poem by Shelley, found isolated in a vast desert. And like the inscription on the statue’s pedestal, everything around it belied the truth of its assertion. The statue, of course, would be seen by any reasonably perceptive observer, and viewed in its surroundings, as a shattered monument to an arrogance that now mocked itself. By contrast, the DNA evidence appears to have been viewed as possessing an almost mystical infallibility that enabled its surroundings to be disregarded.' In the other, all too briefly engaging the attention of the nation’s top court, the defendant submitted: 'It is the basic contention of the applicant that the conviction was unsafe because the only evidence against him was DNA evidence. We submit that in principle he should not have been convicted on DNA evidence alone, but particularly in the facts of this case where there was additional evidence which was in part exculpatory he should not have been convicted.' In short, the cases raise the question: is a trial based solely on DNA evidence a fair one?

This paper uses the two Australian cases in order to explain why the question of the fairness of DNA-only hearings is not only important, but also subtle and difficult. It first describes the nature of each hearing and the response to problems that arose or were said to arise in them. In each case, it develops an alternative argument that a common flaw in such cases is the absence of evidence of the origins of the DNA match. This complex category of evidence, often vital but nearly always dangerous, signals a fraught future for DNA-focussed hearings.

August 21, 2010 | Permalink | Comments (1)

Buchhandler-Raphael on Rape as Sexual Abuse of Power

Michal Buchhandler-Raphael has posted The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power on SSRN. Here is the abstract:

What is rape? What are the harms, risks and values that the criminal prohibition on rape attempts to promote? How should criminal law properly conceptualize the offense of rape? Does submission to sexual demands in light of threats to inflict non-physical harms, such as economic and professional harms including firing or demotion, constitute rape? Scholars have been grappling with these questions for several decades, attempting to better align society’s perceptions about the criminal regulation of sexual misconduct with the ever-evolving social perceptions about sexuality and gender norms.

This Article argues that while rape law reform has accomplished significant changes in the past decades, it has since stalled. What might account for this stagnation is the turn to consent. This move is conceptually misguided, failing to effect instrumental change both in the courts as well as in social norms. The result is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims. Statutory definitions of rape are inept and require an overhaul to better capture the harm and wrongdoing of rape that many victims still experience.

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August 21, 2010 | Permalink | Comments (0)

Friday, August 20, 2010

Bandes on the Strange Persistence of the American Death Penalty

Bandes Susan A. Bandes (DePaul University - College of Law) has posted The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty (CRIMINAL LAW CONVERSATIONS, Paul Robinson, Stephen Garvey, and Kimberly Kessler Ferzan, eds., Oxford University Press, July 2009) on SSRN. Here is the abstract:

This short essay is a core text for Criminal Law Conversations, followed by my reply to comments by Stephanos Bibas and Douglas Berman, LaJuana Davis, Joseph Kennedy, Terry Maroney, Jeffrey Murphy, Robert Schopp, Mary Sigler, and Carol Steiker. The core text is adapted from my article "The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty," 42 Studies in Law, Politics and Society 21 (2008).

The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values. In this article I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will contribute to the clarity of the debate. The focus on emotional variables reveals that the boundary between instrumental and expressive values is porous; both types of values are informed (or distorted) by fear, outrage, compassion, selective empathy and other emotional attitudes. Moreover, emotion theory illuminates the dynamics of the polarized debate. Though history, culture and politics are essential aspects of the discussion, both the resilience of capital punishment in the U.S. and the nature of the death penalty debate can be better understood by taking account of emotional variables.

August 20, 2010 | Permalink | Comments (0)

Thursday, August 19, 2010

Buell on the mail fraud cases

Buell samuel Samuel W. Buell  (Duke University School of Law) has posted The Court's Fraud Dud (Duke Journal of Constitutional Law & Public Policy, 2010) on SSRN. Here is the abstract:

In this contribution to a collection of essays on the Supreme Court’s October Term 2009, I comment on the Court’s trilogy of mail fraud cases, disposed of principally through Justice Ginsburg’s opinion in Skilling v. United States. The Court’s solution to the problem of "honest services fraud" was tidy but somewhat arbitrary and quite shallow. The Court seemed to recognize that the cases presented the problem of how to deal with frauds that involve indirect benefits to violators and/or intangible harms to victims. This can be termed the "relationship and context problem" in fraud or, if one prefers, the "duty problem." But the Court failed to engage with this problem conceptually, missing a golden opportunity to develop the jurisprudence of fraud that is not likely to arise again for a long time. I explain the problem, demonstrate that it is not limited to the recent tempest over the "honest services" statute and its constitutionality, and suggest some directions for addressing it that the Court might have pursued.

August 19, 2010 | Permalink | Comments (0)

"Clemens to Be Indicted for Perjury in Doping Testimony"

The New York Times has the story here:

Federal authorities have decided to indict Roger Clemens on charges of making false statements to Congress about his use of performance-enhancing drugs, according to two people briefed on the matter.

August 19, 2010 | Permalink | Comments (1)

Wednesday, August 18, 2010

Professor Ellen Podgor receives NACDL award

Podgor ellen Congrats to Ellen! From the press release:

Washington, DC­ (Aug. 18, 2010) – Stetson Law Professor Ellen S. Podgor was awarded the 30th annual Robert C. Heeney Memorial Award, the National Association of Criminal Defense Lawyers’ most prestigious honor, Aug. 14 at its 52nd Annual Meeting in Toronto, Ont. This award is given annually to the one criminal defense lawyer who best exemplifies the goals and values of the Association and the legal profession.

August 18, 2010 | Permalink | Comments (0)

Cassidy on Ethics and Plea Bargaining

Cassidy michael Michael Cassidy  (Boston College Law School) has posted Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:

In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices employed by prosecutors in the plea bargaining context that in his view violate a prosecutor’s duty to “do justice,” but yet presently are entirely unregulated. He then demonstrates how a focus on efficiency, equality, autonomy and transparency might help prosecutors avoid these ethical minefields.

August 18, 2010 | Permalink | Comments (0)

Tuesday, August 17, 2010

"Divided Jury Convicts Blagojevich of Single Count"

The story is at the New York Times site:

CHICAGO — Rod R. Blagojevich, the ousted former governor of Illinois, was convicted on Tuesday of making false statements to the Federal Bureau of Investigation, but the jury in the corruption case against him also reported that it was hopelessly deadlocked on the 23 other counts against him.

. . .

Judge James B. Zagel of Federal District Court accepted the jury’s verdict on the false-statements count on Tuesday and declared a mistrial on the remaining counts, the bulk of the case. Federal prosecutors said immediately that they would try Mr. Blagojevich once more.

August 17, 2010 | Permalink | Comments (0)

Forman on School Searches

Forman sarah jane Sarah Jane Forman  (Washington University School of Law in St. Louis) has posted Countering Criminalization: Toward a Youth Development Approach to School Searches on SSRN. Here is the abstract:

This article focuses on one aspect of school disciplinary enforcement: the search and seizure of students and their property while at school. School search and seizure policy is important because it is not an area of the law that has been frequently examined by legal scholars in the context of youth development. Youth development is becoming part of the discussion around juvenile justice reform with regard to culpability and sentencing, Eighth Amendment issues involving the constitutionality of death or life without parole sentences for juveniles, and in the Fifth Amendment context. However, little has been said about how the scientific and psychological research that is used to support these arguments could be applied to Fourth Amendment jurisprudence. This article is the first in a trilogy of projects that will explore how the school environment effects youth development and identity. Beginning with this article, I advance a theory of juvenile rights that accounts for adolescent development without eschewing autonomy and equality concerns.

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August 17, 2010 | Permalink | Comments (0)

Monday, August 16, 2010

"DOJ ends DeLay criminal probe without filing charges"

Jurist has this report.

August 16, 2010 | Permalink | Comments (0)

Aviram, Seymour & Leo on Good Faith Doctrine

Aviram hadar Hadar Aviram (pictured), Jeremy Seymour and Richard A. Leo  (University of California, Hastings College of the Law , University of California, San Francisco - Hastings College of the Law and University of San Francisco - School of Law) have posted Moving Targets: Placing the Good Faith Doctrine in the Context of Fragmented Policing (Fordham Urban Law Journal, Vol. 37, 2010) on SSRN. Here is the abstract:

The debate sparked by Herring v. United States is a microcosm of the quintessential debate about the scope of the Fourth Amendment’s exclusionary rule and ultimately the appropriate breadth of police authority and constitutional review by courts. Offering a new reading of the decision, this article argues that Herring reflects a healthy dosage of real politic and an acknowledgment that American policing is characterized by a fragmented, localized structure with little overview and control, and much reliance on local agencies. Part I presents the authors’ interpretation of Herring as a case hinging upon the question “who made the mistake?” as the decisive element in establishing good faith. The authors rely on the actual holding of Herring in light of its facts, on the Court’s previous decision in Evans, and on the current circuit split with regard to illegal predicate searches to conclude that a narrow and reasonable reading of the Herring doctrine is appropriate. Part II discusses problematic implications, detailing potential abuses and disincentives of not holding one police agency accountable for the mistakes of another. The authors argue that a “moving target” government party to the criminal process is fundamentally unfair to defendants without proper safeguards. Part III offers a solution: a multivariate analysis of the proper deterrence incentives, which will not only provide protection to the citizen tackling “moving targets,” but also clearer and more detailed guidelines for future decisions.

August 16, 2010 | Permalink | Comments (0)

Sunday, August 15, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 2641 Arizona Senate Bill 1070: A Preliminary Report
Gabriel J. Chin, Carissa Byrne Hessick, Toni M. Massaro, Marc L. Miller,
University of Arizona James E. Rogers College of Law, Arizona State, Sandra Day O'Connor College of Law, University of Arizona College of Law, University of Arizona - James E. Rogers College of Law,
Date posted to database: May 29, 2010
2 342 War and Peace in the Jury Room: How Capital Juries Reach Unanimity
Scott E. Sundby,
Washington and Lee University - School of Law,
Date posted to database: May 12, 2010
3 198 Broken Lives from Broken Windows: The Hidden Costs of Aggressive Ordermaintenance Policing
Babe Howell,
CUNY School of Law,
Date posted to database: May 18, 2010
4 120 Status as Punishment: A Critical Guide to Padilla v. Kentucky
Gabriel J. Chin, Margaret Colgate Love,
University of Arizona James E. Rogers College of Law, Law Office of Margaret Love,
Date posted to database: July 10, 2010 [5th last week]
5 105 One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research
Jon B. Gould, Richard A. Leo,
George Mason University - School of Public Policy, University of San Francisco - School of Law,
Date posted to database: May 27, 2010 [6th last week]
6 98 Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should be Teaching Law
Lawrence Rosenthal,
Chapman University - School of Law,
Date posted to database: June 27, 2010 [new to top ten]
7 91 Reconsidering Reprisals
Michael A. Newton,
Vanderbilt University - Law School,
Date posted to database: June 9, 2010 [9th last week]
8 90 Retributivism Refined - Or Run Amok?
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: May 17, 2010
9 86 More Different than Life, Less Different than Death
William W. Berry,
University of Mississippi School of Law,
Date posted to database: May 25, 2010 [new to top ten]
10 86 Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development
David B. Wexler,
University of Puerto Rico - School of Law,
Date posted to database: June 23, 2010 [new to top ten]

August 15, 2010 | Permalink | Comments (0)

Saturday, August 14, 2010

Jochnowitz on Claimed Error in Clemency Cases

Leona Deborah Jochnowitz (PhD Candidate, School of Criminal Justice, University at Albany) has posted Missed or Foregone Mitigation: Analyzing Claimed Error in Missouri Capital Clemency Cases (Criminal Law Bulletin, Vol. 46, No. 3, pp. 347-427, 2010 ) on SSRN. Here is the abstract:

This research is an exploratory study which captures the prevalence of the types and reasons for claims of missed mitigation in 36 of 80 un-reversed Missouri death penalty cases reaching the clemency stage of review from convictions between 1980-1995. Missed mitigation claims raised in clemency cases may be claims of persistent error which undermine the reliability of death penalty sentencing. The research identifies the conditions which might contribute to the prevalence of claimed error. The study concludes that missed mitigation claims are ubiquitous in un-reversed capital cases which have passed all rounds of judicial inspection and have reached clemency. The high prevalence of sentencing error claims shows that structural overhaul of the capital trial may be needed.

August 14, 2010 | Permalink | Comments (0)

Stinneford on Evolving Standards of Decency

Stinneford_john John F. Stinneford  (University of Florida Levin College of Law) has posted Evolving Away from Evolving Standards of Decency (Federal Sentencing Reporter, Vol. 23, No. 1, 2010) on SSRN. Here is the abstract:

In Graham v. Florida, the Supreme Court held that imposing a life sentence without possibility of parole on a juvenile nonhomicide offender violates the Cruel and Unusual Punishments Clause. To support this conclusion, the Court found that there was a societal consensus against the punishment, despite the fact that such punishment was authorized in the federal system, thirty-seven states, and the District of Columbia, and despite the lack of any apparent trend toward abolition of the punishment. Graham represents the fourth time in the last eight years that the Supreme Court has found a societal consensus against a punishment that appeared to enjoy significant public support. Graham is the second case in the last two years in which the Court found a societal consensus against a punishment that appeared to be increasing, rather than decreasing, in popularity.

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August 14, 2010 | Permalink | Comments (0)

Friday, August 13, 2010

"Blagojevich Jurors Still Can’t Agree"

From The New York Times:

CHICAGO — Jurors deliberating in the federal corruption trial of Rod R. Blagojevich, the former governor of Illinois, told the judge Thursday that they had not reached agreement on a majority of wire fraud charges, major parts in the government’s case.

. . .

[T]he jury stated Thursday that it had reached unanimous agreement on only two of more than a dozen wire fraud charges, and so far were “unable to agree” on the rest.

August 13, 2010 | Permalink | Comments (0)