CrimProf Blog

L.A. Times inaugurates new crime database

The story is here:

Both agencies, like many other police departments throughout the country, have long used computer mapping programs internally to detect crime patterns, develop strategies and determine how to deploy officers. In recent years they have been experimenting with ways to make crime data available to the general public in bulk, electronic form — often hiring outside companies to build online crime maps or, in some cases, posting raw crime data online that can be downloaded.

The Times' crime mapping program, which debuts Thursday, goes a step further, allowing users to analyze crime statistics, search historic crime patterns and receive alerts when several crimes occur in an area over a short period of time. As is common practice when releasing information about reported crimes, the LAPD and Sheriff's Department provide the block where a crime occurs, instead of the exact address.

"Missing Man Looms Large in Murder Trial"

The New York Times has this interesting piece on a murder trial in New Haven, discussing the defense strategy of suggesting at the guilt phase that an accomplice is more culpable in hopes of affecting the jury's penalty recommendation:

Putting Mr. Komisarjevsky figuratively on trial, lawyers with experience in capital cases say, is unlikely to have much effect in this first phase of Mr. Hayes’s trial to determine whether he is to be convicted of the crime. But it is a common defense strategy to plant seeds for a potential second phase of the trial that would determine whether he will be sentenced to death.

If there is a second phase, the jurors will have already heard Mr. Hayes’s version, however credible, that the crime would not have occurred without Mr. Komisarjevsky. While Mr. Hayes was out of the house, his lawyer Mr. Ullmann told the jurors, Mr. Komisarjevsky’s assault of Michaela “changed the scenario.”

"Rights groups urge Obama to halt use of local authorities in immigration enforcement"

Jurist has the story here, regarding this letter sent by more than 500 groups.

Orenstein on Prosecutorial Denial in Postconviction Cases of Actual Innocence

Aviva Orenstein  (Indiana University Mauer School of Law) has posted Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:

As this memorial volume illustrates, Fred Zacharias wrote insightfully on many aspects of the legal profession, covering a wide-range of ethical topics and analyzing many aspects of lawyers’ work. He was interested in the lives of lawyers and believed they owed a duty to society beyond an exclusive focus on individual clients’ interests.

This Article develops a question that intrigued Fred: Prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.

As Fred himself noted, there may be legitimate reasons for prosecutors to deny access to DNA to every prisoner who so requests. Less easy to understand, however, are the confabulations and attenuated scenarios some prosecutors posit to argue that the accused is guilty despite DNA evidence that demonstrates no link to the crime (and sometimes incriminates a known offender).

This article argues that the psychological concept of denial goes a long way in explaining prosecutors’ conduct. Rather than portraying these prosecutors as megalomaniacal abusers of the adversary system who will protect their win-loss ratios at any cost, a theory of denial posits that prosecutors simply cannot face the fact of a wrongful conviction or its implications for the entire system of justice. Ironically, a prosecutor’s desire to do justice and her self-image as a champion of justice renders the fact of wrongful conviction particularly painful. As a result, some prosecutors go to incredible lengths to deny the obvious rather than facing the fact that the system failed and they may have contributed to the injustice.

Part I of this Article briefly summarizes two of Fred’s major articles on the subject of prosecutorial ethics. Part II documents the problem of postconviction DNA exonerations and prosecutors’ varied reactions. These reactions encompass everything from the prompt release of prisoners to the adamant refusal to acknowledge the relevance of the evidence . Part III attempts to add to the current explanations of why some prosecutors refuse to acknowledge errors even after DNA indicates a wrongful conviction. This Part explores, in addition to traditional explanations involving prosecutorial self-interest, incentive structure, and cognitive biases, the role of denial. Part IV examines the bigger picture of denial, looking at how refusal to accept DNA exonerations may mask deeper concerns about the criminal justice system. Finally, Part V draws on these (?) insights about prosecutorial denial to examine structural solutions, including possible changes to ethical codes, to the urgent problems posed by postconviction innocence.

Best-if-killed-by date on lethal drug and the California death penalty

The Los Angeles Times has this story:

California's effort to carry out its first execution in nearly five years collapsed Wednesday when the state Supreme Court ended a furious legal battle, giving a convicted rapist and murderer a reprieve that could last until at least next year.

. . .

Prison officials had scheduled Brown's execution for 9 p.m. Thursday, just three hours before the state's only supply of a key drug used in the lethal injection expires. State attorneys have said that fresh supplies of the powerful anesthetic sodium thiopental could not be obtained until at least next year.

The Supreme Court faulted the state for seeking to carry out the sentence so close to the drug's expiration date, saying that effort had "contributed to circumstances incompatible with the orderly resolution" of legal issues surrounding the death penalty.

Iowa symposium on peremptory jury challenges: call for papers

The call for papers for this proposed symposium marking the 25th anniversary of Batson v. Kentucky follows the jump. A live symposium is anticipated for October 2011.

CALL FOR PAPERS: FOR A PROPOSED SYMPOSIUM to mark the 25th anniversary of the
United States Supreme Court’s landmark opinion in Batson v. Kentucky (1986), THE
UNIVERSITY OF IOWA COLLEGE OF LAW invites submissions. The symposium is
prompted by a need for reflection upon what a quarter-century of experience with the revolutionary
constitutional restrictions that Batson and its progeny have imposed on peremptory jury challenges
means for the criminal justice system. Submitted work should be prompted by the Batson doctrine
(its impact, consequences and implications for the future) or, more broadly, by other concerns
regarding the theory and function of the peremptory challenge. We encourage a broad range of
doctrinal and methodological approaches to these questions, and both legal and social science
scholars are welcome to participate. We anticipate a live symposium in October of 2011 and
publication of the completed papers in a to-be-determined format. The conference planners reserve
the right to solicit authors independently of this call for papers and to condition going forward on
sufficient submissions of interest and quality.

Those interested in participating should submit a one paragraph summary of the paper they will
present and an abstract of no more than 750 words that outlines the structure and content of the
paper in more detail. The deadline for expressions of interest is December 15, 2010. More detailed
outlines will be due at a later date. Final manuscripts will be due three weeks before the symposium.

Submit summaries and abstracts via email in either Word or PDF format to: jamestomkovicz@
uiowa.edu. Inquiries about the symposium can be made to Professor Tomkovicz at the
above address.

Burke on Talking About Prosecutors

Alafair S. Burke  (Hofstra University - School of Law) has posted Talking About Prosecutors (Cardozo Law Review, Vol. 31, p. 2119, 2010) on SSRN. Here is the abstract:

This Article explores the narrative that the scholarly literature on wrongful convictions uses to talk about prosecutors. In the prevailing narrative of the wrongful conviction literature, stories of bad prosecutorial decision making in the cases against Genarlow Wilson, the Jena Six, and three Duke lacrosse players are merely high-profile examples of misconduct that happens every day in America’s prosecutors’ offices and courtrooms. What emerges from the current discourse on wrongful convictions is a language of fault — fault placed on prosecutors who fail to value justice at each turn of the proceedings. Separate from the empirical question of how widespread intentional misconduct is among prosecutors, this Article questions the efficacy of fault-based rhetoric in a world in which prosecutors view wrongful convictions as statistical anomalies, their antagonists as uncommonly bad apples, and themselves as ethical lawyers. The rhetoric of fault is counterproductive because it alienates the very parties who hold the power to initiate many of the most promising reforms of the movement. In contrast, this Article suggests the use of a “no-fault” rhetoric that focuses on structural and cognitive impediments to neutral prosecutorial decision-making. A “no-fault” rhetoric that emphasizes how even ethical prosecutors might inadvertently contribute to wrongful convictions carries the potential to fold prosecutors into the movement while simultaneously pressuring them to initiate self-focused reforms.

Stribopoulos on Low Visibility Encounters and Packer's Models

James Stribopoulos  (Osgoode Hall Law School) has posted Packer's Blind Spot: Low Visibility Encounters and the Limits of Due Process vs. Crime Control on SSRN. Here is the abstract:

This paper will proceed in three parts. In Part I, Packer’s seminal theory will be introduced and his two models briefly explained. Next, in Part II, the paper will review the competing accounts of the criminal process that have emerged to challenge Packer’s theory. Finally, in Part III, the paper will offer a critique of Packer’s theory by drawing on the empirical research (reviewed in Part II(a)), as well as the experience in both the United States in Canada since Packer penned his account.

The Suspicious Activity Reporting Initiative

From an op-ed--generally favoring the program but noting objections--entitled "How to Spot a Terrorist" by John Farmer in the New York Times:

Suspicious Activity Reporting begins at the troubling intersection where law enforcement meets intelligence. Its premise is that if potential attacks are to be prevented, and not merely responded to, law enforcement must focus on precursor conduct — surveillance or “casing” of bridges or train stations, for instance — that may not itself be criminal, but may signal a coming attack.

. . .

The Suspicious Activity Reporting program recognizes both the necessity for a focus on precursor conduct and the potential for abuse. It strikes a balance by establishing a uniform process for gathering and sharing information. It seeks to avoid racial profiling and other law enforcement excesses by requiring that the reports be based on the evidence of suspicious conduct, not on what the person looks like or where he comes from.

Today's crim law and procedure cert grants

Issue summaries are from ScotusBlog, which also links to cert documents and opinions below for some of the cases (and likely in all of the cases soon):

• Kentucky v. King: Under what circumstances can lawful police action impermissibly ”create” exigent circumstances that preclude warrantless entry?
• United States v. Tinklenberg: Whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, or is instead excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial.
• Bullcoming v. New Mexico : whether it violates the Constitution’s right to confront witnesses against the accused for a trial judge to admit the testimony of a crime lab supervisor to discuss a forensic test that the supervisor did not personally conduct or observe.
• Freeman v. United States.: whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission has reduced the sentence range, even if the judge had already accepted a plea deal involving a longer time in prison
• Sykes v. United States .: whether it is a “violent felony” justifying a longer sentence under the armed Career Criminal Act for a suspect to use a vehicle to flee from police after being ordered to stop

Maroney on Adolescent Brain Science after Graham v. Florida

Terry A. Maroney  (Vanderbilt Law School) has posted Adolescent Brain Science after Graham v. Florida (Notre Dame Law Review, Vol. 85, 2010) on SSRN. Here is the abstract:

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without possibility of parole for a non-homicide crime committed when the offender was under the age of eighteen. In an earlier Article, The False Promise of Adolescent Brain Science in Juvenile Justice, this author noted the pendency of Graham and its companion case, in which petitioners and their amici offered neuroscientific arguments closely paralleling those made by the defendant in Roper v. Simmons. Kennedy’s opinion in Graham clarified what his opinion in Roper had left ambiguous: the Court believes neuroscience relevant to general propositions as to the normal developmental course of adolescence. As the cases’ potential impact was set to one side in False Promise, the Essay both supplements that Article and reflects on its conclusions.

I predict that Graham’s most dramatic effects will have little to do with developmental neuroscience. Its most significant downstream effects likely will manifest in evaluation of term-of-years sentencing and opportunities for parole. As to adolescent brain science, I argue that the Graham Court gave it the maximum weight it presently can bear. The decision therefore provides welcome support for legal policy-makers – whether in courts or legislatures – who seek to draw modestly on such science in reinforcing commitments to the special legal status of youth. But the predictable post-Graham temptation to place even greater weight on developmental neuroscience should – for the many reasons articulated in False Promise, which remain unaltered – be resisted.

"Should sex offenders get GPS before leaving prison?"

From today's San Diego Union-Tribune, questioning the California regime under which prisoners have one business day after release to report to their parole officer to get their GPS device:

At least twice in the past month, sex offenders prompted multi-agency manhunts in the North County when they refused to be monitored by GPS — a responsibility that falls on the offenders when they get out of prison.

One man, who is accused of committing a sex crime the day after being paroled, was caught days later, while the second surrendered to authorities three weeks after going offline.

The murder-manslaughter line in the news: conviction in Adenhart case

The Associated Press reports on today's conviction of the drunk driver who killed three people, including a pitcher for a major-league baseball team:

Prosecutors said they charged the case as a second-degree murder instead of the lesser charge of manslaughter because Gallo had a previous DUI conviction, had specific knowledge of the dangers of drinking and driving from his own experience and had signed a court form from the earlier case saying he understood he could be charged with murder if he drove drunk again and killed someone.

To win a murder conviction, prosecutors had to show Gallo acted with implied malice: intentionally drove drunk; acted with a conscious disregard for human life; and knew from his personal experience that he could kill someone.

. . .

Prosecutors had alleged in the two-week trial that Gallo, whose blood-alcohol level was nearly three times the legal limit, spent hours drinking beers and shots with his stepbrother at three different bars before running a red light and T-boning the car driven by Stewart.

Prosecutor Susan Price told jurors during her closing argument that Gallo . . . had been repeatedly warned by friends, family and court officials about the dangers of drinking and driving, but his arrogance and need to party prevented him from learning the lesson.

Gallo's attorney said her client believed his stepbrother was his designated driver and only drove after his stepbrother became too intoxicated and asked him to take the wheel. By that point, Goodman argued, Gallo was too drunk to realize the consequences of driving drunk.

"U.S. Tries to Make It Easier to Wiretap the Internet"

From the New York Times:

WASHINGTON — Federal law enforcement and national security officials are preparing to seek sweeping new regulations for the Internet, arguing that their ability to wiretap criminal and terrorism suspects is “going dark” as people increasingly communicate online instead of by telephone.

Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble encrypted messages

. . .

James X. Dempsey, vice president of the Center for Democracy and Technology, an Internet policy group, said the proposal had “huge implications” and challenged “fundamental elements of the Internet revolution” — including its decentralized design.

Markel, Collins & Leib on Criminal Justice and Family Ties

Dan Markel , Jennifer M. Collins (pictured) and Ethan J. Leib  (Florida State University College of Law , Wake Forest University - School of Law and University of California - Hastings College of the Law) have posted Privilege or Punish: Criminal Justice and the Challenge of Family Ties (D. Markel, J. Collins and E. Leib, PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES, Oxford University Press, 2009) on SSRN. Here is the abstract:

This book answers two basic but under-appreciated questions: first, how does the American criminal justice system address a defendant's family status? And, second, how should a defendant's family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination? After surveying the variety of "family ties benefits" and "family ties burdens" in our criminal justice system, we explain why policymakers and courts should view with caution and indeed skepticism any attempt to distribute these benefits or burdens based on one's family status. This is a controversial stance, but we argue that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one's family ties or responsibilities.

This book breaks new ground by offering an important synthetic view of the intersection between crime, punishment, and the family. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the panoply of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one's family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that should be of interest to anyone interested in the improvement of our criminal justice system.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	209	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
2	198	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 [3rd last week]
3	196	Palestine and the International Criminal Court: Asking the Right Question Michael G. Kearney, London School of Economics & Political Science (LSE) - Department of Law, Date posted to database: July 3, 2010 [2nd last week]
4	158	Cracked Mirror: SB1070 and Other State Regulation of Immigration through Criminal Law Gabriel J. Chin, Marc L. Miller, University of Arizona James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law, Date posted to database: July 26, 2010
5	149	Selected Salient Evidentiary Issues in Employment Discrimination Cases Lynn McLain, University of Baltimore School of Law, Date posted to database: July 12, 2010
6	145	Statistical Knowledge Deconstructed Kenneth W. Simons, Boston University - School of Law, Date posted to database: September 7, 2010 [7th last week]
7	141	An e-SOS for Cyberspace Duncan B. Hollis, Temple University - James E. Beasley School of Law, Date posted to database: September 3, 2010 [6th last week]
8	129	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
9	111	Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias Michael Cassidy, Boston College Law School, Date posted to database: August 9, 2010 [new to top ten]
10	111	Fourth Amendment Pragmatism Daniel J. Solove, George Washington University Law School, Date posted to database: August 27, 2010 [9th last week]

Krishnan & Kumar on Speedy Trials in Comparative Perspective

Jayanth K. Krishnan (pictured)

and C. Raj Kumar  (Indiana University Maurer School of Law and O.P. Jindal Global University (JGU)) have posted Delay in Process, Denial of Justice: The Jurisprudence and Empirics of Speedy Trials in Comparative Perspective (Georgetown Journal of International Law, Vol. 42, 2011) on SSRN. Here is the abstract:

Criminal law scholars regularly maintain that American prisons are overcrowded and that defendants in custody wait long periods of time before having their cases brought to trial. A similar refrain is made of the penal process in India – the world’s largest democracy, an ally of the United States, and a country with a judiciary that has drawn upon American criminal procedure law. In fact, the situation in India is thought to be much worse. Accounts of prisoners languishing behind bars for several years – and sometimes decades – awaiting their day in court are not uncommon. And many Indian prisons are one hundred-to-two hundred percent over-capacity, where conditions are squalid and weaker inmates face serious physical harm.

In this study, we examine the current state of the Indian criminal justice system. Beginning in 1979, the Indian Supreme Court, referencing the American constitution’s Sixth Amendment, held that defendants had a fundamental right to a speedy trial. We examine the evolution of the Indian jurisprudence on this matter, which has been quite favorable for defendants, but then move beyond this line of inquiry by empirically evaluating whether the positive court rulings have translated into tangible changes for the criminally-accused. As our findings suggest, there exists a major gap in India between these encouraging judicial pronouncements and how this right plays-out in reality, which we believe provides an important perspective for comparative and criminal law scholars.

Lee, Laube & Parness on State Crime Victim Recoveries

Laura Lee , Edmund Laube and Jeffrey A. Parness  (pictured) (affiliation not provided to SSRN , affiliation not provided to SSRN and Northern Illinois University - College of Law) have posted State Crime Victim Recoveries (Cleveland State Law Review, 2010) on SSRN. Here is the abstract:

Crime victim recoveries are typically available in American states through three separate, but related, avenues: a criminal proceeding (with or without a formal charge); a related civil claim (including a pre-suit settlement); and, a related administrative or special court proceeding. Multiple avenues can be pursued simultaneously. These avenues often, but not always, have constitutional as well as statutory foundations.

Unfortunately state crime victims often go without recovery. Barriers to recovery include intrastate and interstate confusion over terms like restitution and victim. More can be done for victims, especially during criminal case sentencing. Unlike federal district courts, state criminal courts typically have general jurisdictional authority allowing broader opportunities for crime victim recoveries at the close of criminal cases. Better crime victim recovery procedures are especially warranted where there are explicit state constitutional law interests.

"DOJ asks appeals court to uphold ruling on Arizona immigration law"

Jurist has the story here.

"Murderer-rapist denied execution stay; execution set for Wednesday would be California's first in 5 years"

The L.A. Times has the story here.

A federal judge on Friday denied a stay of execution for murderer-rapist Albert Greenwood Brown but gave the condemned man a choice whether to die Wednesday by a single injection or the state's recently revised three-drug method.