Saturday, January 16, 2010
The case, a high profile one from the San Diego area, is Crowe v. County of San Diego, and the opinion is here. The court reversed the district court's grant of partial summary judgment for the government entities and individuals involved. CrimProf Richard Leo, an expert in the case, in quoted by the court as calling one of the interrogations as “the most psychologically brutal interrogation and tortured confession that I have ever observed.”
From the beginning of the opinion:
This civil rights case arose from the investigation and prosecution of innocent teenagers for a crime they did not commit. Michael Crowe, Aaron Houser, and Joshua Treadway were wrongfully accused of the murder of Michael’s 12-year-old sister Stephanie Crowe. After hours of grueling,psychologically abusive interrogation—during which the boys were isolated from their families and had no access to lawyers—the boys were indicted on murder charges and pre-trial proceedings commenced.
. . .
Michael, Aaron, Joshua, and their families filed a complaint against multiple individuals and government entities who had been involved in the investigation and prosecution of the boys. The complaint alleged, amongst other claims, constitutional violations under the Fourth, Fifth, and Fourteenth Amendments, and defamation claims.
The San Diego Union Tribune has a story on the decision here.
Donald E. Shelton (Eastern Michigan University) has posted The Admissibility of Social Science Evidence in Criminal Cases on SSRN. Here is the abstract:
The rapid development of emerging scientific methods, especially the increased understanding of deoxyribonucleic acid ("DNA"), has had, and will undoubtedly continue to have, an almost stunning impact on our justice system, particularly at the trial level. The forensic applications of these new scientific discoveries have been most dramatically seen in the criminal trial court. They have also caused us to re-examine other forms of forensic evidence that have been rather routinely admitted in our courts. Forensic evidence from social scientists is certainly one of those forms. Which of these forms of scientific forensic evidence have sufficient validity to be used in a criminal proceeding that could take away a person's liberty or even their life? Who answers that question and how?
This paper describes three experiments that cast doubt on the existence of free will. All deal with the phenomenon that, for a variety of reasons, people do not consciously experience events (including their own “choices”) at the exact instant they occur. The existence of these delays is sufficient to cast serious doubt on the possibility of conscious free will, i.e., free will as we usually understand it.
While these experiments do not definitely exclude the possibility of free will, they do provide affirmative evidence that our brains do not consciously make decisions in quite the way that introspection tells us. As such, they throw into question the factual basis of the freewill justification for purposefully inflicting serious human suffering as punishment.
This paper is a break out from an earlier version of my companion paper, Free Will Ideology: Experiments, Evolution and Virtue Ethics, available at SSRN: http://ssrn.com/abstract=1428002.
Friday, January 15, 2010
Mark Klamberg (Stockholm University - Faculty of Law) has posted International Criminal Law in Swedish Courts: The Principle of Legality in the Arklöv Case (International Criminal Law Review, Vol. 9, pp. 395-409, 2009) on SSRN. Here is the abstract:
On 18 December 2006, the Stockholm district court convicted Jackie Arklöv for a crime against international law. It was the first, and until the present date, the only time, liability for a crime against international law has been tried before a Swedish court. This article presents the law applied by the Court, draws attention to the principles of legality, ne bis in idem, and discusses whether a national court in a dualistic legal system can impose criminal responsibility with reference to customary international law.
Alexander Zahar (Griffith University - Griffith Law School) has posted How Judges Think: Strengthening Defence Approaches to Joint Criminal Enterprise and Closing Arguments (Annual Conference of the Defence Bar of the Court of Bosnia and Herzegovina, Sarajevo, December 12, 2009) on SSRN. Here is the abstract:
There is a method used by trial judges at the international criminal tribunals to decide the outcome of a case, and the method is rather fixed and inflexible. A defence lawyer working against the grain of the judges’ method is working in a way that is not as effective as it could be.
Trial judges at the ICTY are amenable to be persuaded that an otherwise solidly established legal principle has no application, or no reasonable application, to the facts at hand. The doctrine of joint criminal enterprise provides a good illustration of this point. Here we have a legal principle that is well established in theory, but rather vulnerable in practice. Many trial judges are instinctively aware of this vulnerability, which means that it is a promising area for the development of a defence strategy. At a more fundamental level, judges tend to think about an indictment and the whole resulting trial process in a very particular way. They analyse an indictment into certain elements and they employ their analysis to understand the evidence as it is received on a daily basis in the course of the trial. Their particular analysis defines, in effect, what is relevant and what is not relevant in a trial. It filters out distractions and facilitates a more active and engaged judicial role. The judges’ original analysis persists throughout the case and forms the template for the trial judgement at the end.
Thursday, January 14, 2010
David M. Uhlmann (University of Michigan Law School) has posted Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
The environmental crimes program in the United States has entered its third decade, yet questions remain about what makes an environmental violation criminal. Our environmental laws make only limited distinctions between criminal and civil liability, so theoretically the same conduct could give rise to criminal, civil, or administrative enforcement. This article will reconsider concerns that have been raised historically about the role of criminal enforcement under the environmental laws and will suggest an answer to the question of what makes an environmental case criminal. The article addresses claims that the complexity of environmental law makes it a difficult fit for criminal enforcement and that the mental state requirements for environmental crime make it possible for corporate officials to be convicted for conduct that they do not know is occurring. The article considers the role of prosecutorial discretion in environmental cases and asserts that criminal prosecution should be reserved for cases involving (1) significant harm of risk of harm to the environment or public health; (2) deceptive or misleading conduct; (3) deliberate efforts to operate outside the regulatory system; or (4) significant and repetitive violations of environmental laws. By limiting criminal prosecution to these cases, prosecutors can ensure that criminal enforcement will advance the goals of the environmental regulatory scheme.
You'll notice that the reporters are not bashful about telling you how great their investigative journalism was here. Their "cameras were their for the entire secret test."
In support of a presumption of admissibility in actus reus cases, the article examines both formal and substantive equality justifications for a presumptive rule of admissibility. Part II examines the formal equality argument grounded in the “tit for tat” principle that has emerged in the law of evidence and which applies in this context. The argument is that fairness demands that the Crown be permitted to respond to the usual “whack the complaiant” defence tactics in sexual assault cases. Part III advances a substantive equality argument grounded in the need to take into account the gender bias that persists in similar fact adjudication. A core element of this bias is manifested in our courts failure to properly give effect to the fact that sexual assault is not a crime of sex and passion but one of violence. This bias has had a negative impact on cases as is evident from a survey examining post-Handy cases from 2002-2008 where courts frequently exclude the evidence because of a lack of so-called similarity in the nature of the prior sexual acts. The survey is set out in Part III. Finally, in Part IV, the article identifies and responds to feminist criticisms of a presumptive rule of admissibility.
Wednesday, January 13, 2010
The New York Times has the story on the Kansas prosecution, headlined Manslaughter Defense Remains Open Issue in Doctor’s Killing. In part:
In a hearing here, Judge Warren Wilbert of Sedgwick County District Court refused a prosecution request to bar the defendant, Scott Roeder, from presenting evidence that might support a voluntary manslaughter conviction. But the judge did not promise to allow such evidence, stating instead that he would make such decisions on a “witness by witness” basis as the trial, set to begin on Wednesday, goes along.
Under state law, “an unreasonable but honest belief that circumstances existed that justified deadly force” can constitute voluntary manslaughter.
This chapter discusses the history of the "third degree" to shed more light on the current torture debate. We note that there are numerous parallels between third degree techniques employed by American domestic interrogators in the early twentieth century and coercive techniques used by American military interrogators more recently. This domestic history of torture suggests important lessons for better understanding the dynamics and consequences of military torture and highlights possible pathways to reform. Abandoning abusive interrogation practices in favor of more professional approaches can strengthen institutional legitimacy, restore faith in our systems of justice, improve morale, and result in more reliable intelligence.
Victor Tadros (University of Warwick - School of Law) has posted Criminalization and Regulation (R.A. Duff, L. Farmer, S.E. Marshall, M. Renzo, and V. Tadros, BOUNDARIES OF THE CRIMINAL LAW, Oxford: OUP, Forthcoming) on SSRN. Here is the abstract:
What ought to be the scope of the criminal law? The most familiar way to approach this question is to consider what moral constraints there might be on the decision whether to criminalize some conduct. It is not permissible to criminalize some conduct, it might be argued, unless that conduct is harmful, or it is publicly wrongful, or it is deserving of punishment, or some combination of these. Answers of this kind are likely to be highly indeterminate. The best efforts to produce principled constraints on the criminal law, even were they endorsed by policy makers, might do little to constrain its expansive and expanding scope. Even if we think that there are many constraining principles and each must be satisfied for criminalization to be permissible, our principles would warrant the criminalization of many things that we do not wish to see criminalized.
Tuesday, January 12, 2010
Cindy R. Alexander (U.S. Securities and Exchange Commission) has posted On the Nature of the Reputational Penalty for Corporate Crime: Evidence on SSRN. Here is the abstract:
Recent literature on optimal sanctions for corporations has focused on coordination and refinement of criminal, civil, and market-based sanctions. This paper contributes to emerging evidence on the reputational penalties that public corporations pay for federal crimes. First, it is shown that offenses harming only private parties and not government tend to be addressed through civil or market-based and not criminal sanctions. Second, when criminal allegations do arise, they are often surrounded by reports of terminated or suspended customer relationships and of management or employee turnover. These reports are more frequent if damaged parties are customers, as in fraud, than if they are third parties, as in environmental crime, and if stock prices decline significantly at the first news of crime. All of these features are consistent with characterizations of reputational penalties found in the literature. Findings on the non-atomistic nature of damaged parties suggest directions for future research.
is here. Here is the syllabus:
After the Ohio courts sentenced respondent Spisak to death and deniedhis claims on direct appeal and collateral review, he filed a federal habeas petition claiming that, at his trial’s penalty phase, (1) the in-structions and verdict forms unconstitutionally required the jury to consider in mitigation only those factors that it unanimously found to be mitigating, see Mills v. Maryland, 486 U. S. 367, and (2) his counsel’s inadequate closing argument deprived him of effective assistance of counsel, see Strickland v. Washington, 466 U. S. 668. The District Court denied the petition, but the Sixth Circuit accepted both arguments and ordered relief.
The New York Times article is here:
A federal judge in Manhattan was asked on Monday to dismiss an indictment against a terror suspect whose lawyer argued that his nearly five-year detention in secret C.I.A. prisons and later at Guantánamo Bay, Cuba, was “perhaps the most egregious violation in the history of speedy-trial jurisprudence.”
The judge, Lewis A. Kaplan of United States District Court, listened as a lawyer for the suspect, Ahmed Khalfan Ghailani, indicated that he was not challenging the government’s authority to decide to detain his client or the wisdom of that decision. The government held Mr. Ghailani to try to obtain intelligence about Al Qaeda.
But the government “cannot have it both ways,” said the lawyer, Peter E. Quijano.
Once these decisions are made, he added, “they can’t just simply change their mind, their political mind, 57 months later, and say, ‘You know, that indictment before Judge Kaplan? Let’s try it now.’ ”
The judge did not say when he would rule. The debate over the significance of the delays in bringing Mr. Ghailani to trial arises in a case that is seen as crucial because it could foreshadow a key issue in the prosecution of Khalid Shaikh Mohammed, the professed organizer of the 9/11 attack, and four other Guantánamo detainees accused in the plot who were recently ordered to New York for trial.
First, the hearsay rule has earned its unpopularity. It excludes too much probative evidence with too little justification. This is especially true of the uncompromising, eighteenth-century version of the hearsay rule the Supreme Court has now read into the Sixth Amendment. Second, by treating the Confrontation Clause as, first and foremost, a codification of eighteenth-century evidence rulings, the Crawford line of cases diverts attention from dimensions of confrontation not captured by the hearsay rule – dimensions that may grow increasingly important as scientific evidence plays a larger and larger role in criminal prosecutions. Third and finally, by constitutionalizing the hearsay rule, but only as it applies to evidence introduced against criminal defendants, Crawford threatens to impede the cross-fertilization between the doctrines governing out-of-court statements in criminal cases and the parallel rules in civil cases.
Monday, January 11, 2010