CrimProf Blog

"Polanski loses bid to be sentenced in absentia"

The Los Angeles Times has this latest development here. While the state appellate court had suggested that Polanski seek to be sentenced in absentia, the trial court judge said he was "not bound" by the suggestion and would not sentence Polanski "as long as he remains a fugitive." Polanski has sought to raise claims about prosecutorial misconduct while being sentenced in absentia. According to the article:

In his ruling, [trial court judge] Espinoza cited the fugitive disentitlement doctrine, a 19th century legal principle that bars a fugitive from calling on the help of a court while he is flouting its authority. The 2nd District Court of Appeal upheld the judge's application of the principle in December, but urged sentencing in absentia or other resolution that would address the misconduct claims.

Robinson & Hague on International Law and Responses to Unlawful Aggression

Paul H. Robinson (University of Pennsylvania Law School) and Adil Ahmad Haque  (Rutgers, The State University of New Jersey - School of Law-Newark) have posted Justice & Deterrence in International Law: Improper Limitations on Responses to Unlawful Aggression on SSRN. Here is the abstract:

Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its rules are perceived as obviously unjust. This common sense perspective is supported by social science research showing the importance of law's moral credibility in gaining assistance and compliance, in reducing resistance and subversion, and in helping to shape shared norms. The current practice of victim states' ignoring the legal limitations, with studied indifference to such "violations" by the international community, only legitimizes and habituates law-breaking, further undermining international law's moral credibility.

Interpretations of international law can be constructed that would narrow the gap between the legal rules and moral intuitions regarding the use of defensive force. Such revisionist interpretations may be a useful temporary measure, but are not a solution, because the gap between law and justice can be narrowed but not closed by reinterpretation alone. Ultimately, reform is required of international law's foundational texts, in particular Article 51 of the U.N. Charter.

International law limitations on responses to aggression are also improper for reasons beyond their conflict with the principles of justice instantiated in domestic criminal law. International law and domestic criminal law are importantly different. Most fundamentally, international law lacks an effective law enforcement system. In order to effectively control unlawful aggression, international law needs to have fewer limitations on responses to aggression, not more. A series of examples of such improper limitations are given. They have the unfortunate effect of promoting aggression and instability by undermining effective deterrence. Again, there exist possible reinterpretations of international law that could avoid some of the improper limitations but, ultimately, a reform of international law's foundational texts is required.

Opportunities for reform of international law are rare, but luckily the Assembly of State Parties to the International Criminal Court is currently developing an amendment to the Rome Statute that identifies the crimes over which the Court has jurisdiction. Tragically, rather than taking this opportunity to confront international law's existing problems, the current Draft Amendment compounds those problems by imposing individual criminal liability on leaders of victim states who authorize defensive force against unlawful aggression in violation flawed current law.

Risinger on the NAS Report on Forensic Science

D. Michael Risinger  (Seton Hall University School of Law) has posted The NAS Report on Forensic Science: A Path Forward Frought with Pitfalls (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

American forensic science as an organized field is less than a hundred years old. On balance this relatively young field has almost certainly had a positive impact on the accurate determination of factual guilt and factual innocence in the criminal justice system. However, in the flush of youth, it is not uncommon for claims to outrun capabilities. For several decades now many from the academy and some from forensic science itself have pointed to weaknesses both in various forensic fields, and in the structure of forensic science practice itself—weaknesses which raised the specter of a forensic science that sometimes made unwarranted claims, and that could in practice sometimes aid in the conviction of the innocent. These criticisms were generally dismissed without much examination by the bulk of the forensic science establishment, and the proponents of those claims dismissed as well. However, the National Academy of Sciences (NAS) Committee Report has now made it untenable to treat criticisms as simply the cavils of uninformed academics with nothing better to do. For that report identifies and documents many of the weaknesses that had been pointed out by critics over the years, and it calls for the strengthening of forensic science through a process designed to address those weaknesses. As a well-documented catalogue of the problems of forensic science by a highly credentialed body, this report is hugely important. But as a blueprint for change, it is subject to some serious reservations. The official title of the report is STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD. This paper will address the general route envisioned by the NAS Committee in its report, and some of the more serious roadblocks and pitfalls that one may expect to encounter on that proposed path forward.

"Federal courts effective in prosecuting terror suspects: report"

Jurist has the story here, summarizing a report from NYU's Center on Law and Security. The full report is here, highlights appear here.

Crime and Punishment Symposium at Charleston School of Law

The dates are Feb. 18-19. Keynote address is by Bryan A. Stevenson, executive director, Equal Justice Initiative and professor, NYU School of Law. Panels include Functions of Criminal Punishment in Law and Society; Cruel and Unusual Punishment in the 21st Century; Professional Responsibility and the Case for Actual Innocence; The Death Penalty: History, Function, and Trends; Effects of the Financial Crisis on White Collar Crime; Juvenile Justice: and Schools as Pipelines to Prison. Further information, including a list of panelists, is available here.

Opinion in Wood v. Allen

is here. The syllabus:

Under 28 U. S. C. §2254(d)(2), a federal court may grant a state prisoner habeas relief if his claim was adjudicated on the merits in state court and “resulted in a decision . . . based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Under §2254(e)(1), “a determination of a factual issue made by a State court [is] presumed to be correct,” and the petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.”

Petitioner Wood was convicted of capital murder and sentenced to death in Alabama state court. Two of his court-appointed attorneys, Dozier and Ralph, had significant trial experience, but the third, Trotter, had only recently been admitted to the bar. After exhausting his appeals, Wood sought postconviction relief under Alabama Rule of Criminal Procedure 32, arguing, among other things, that he was mentally retarded and not eligible for the death penalty, and that his trial counsel were ineffective because they failed to investigate and present evidence of his mental deficiencies during the trial’s penalty phase. The Rule 32 court conducted evidentiary hearings and denied the claims initially and on remand. As to the mental retardation claim, it found that Wood had not shown deficits in his adaptive functioning. As to the ineffective-assistance-of-counsel claim, it concluded that he had not established that his counsel’s performance was deficient or that any deficiency prejudiced his defense. In so doing, it made a factual finding that counsel had made a strategic decision not to pursue evidence of Wood’s alleged retardation. Observing that counsel had asked Dr. Kirkland to conduct a mental evaluation, had thoroughly reviewed his report, and had determined that no further investigation was warranted, the court additionally held that counsel appeared to have made a strategic decision not to present their limited mental-deficiency evidence to the jury because having Dr. Kirkland testify was not in Wood’s best interest. It also found no reasonable probability of a different outcome had the evidence developed in the Rule 32 proceedings been presented at trial. Woods subsequently sought federal habeas relief under §2254. The District Court rejected all but his ineffective-assistance-of-counsel claim. The District Court concluded that the state court’s finding that counsel made a strategic decision was an unreasonable determination of the facts. The court further held that counsel’s performance was deficient and had prejudiced Wood, and that the state court’s contrary holdings were an unreasonable application of federal law under Strickland v. Washington, 466 U. S. 668. Reversing, the Eleventh Circuit held that the state court’s rejection of Wood’s ineffective-assistance claim was neither an unreasonable application of clearly established law nor based on an unreasonable determination of the facts. With respect to the facts, it concluded that the evidence in the Rule 32 hearings supported the state court’s strategic-decision finding, and it agreed with the state court’s legal conclusion that counsel’s strategic decision was reasonable and that Wood had failed to show prejudice. Wood’s certiorari petition raises the questions (1) whether, in order to obtain relief under §2254(d)(2), a petitioner must establish only that the state court factual determination on which the decision was based was “unreasonable,” or whether §2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination was correct with clear and convincing evidence; and (2) whether the state court’s strategic-decision determination was reasonable.

Held:

1. Even under Wood’s reading of §2254(d)(2), the state court’s conclusion that his counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. This Court need not reach the question whether §2254(e)(1) applies in every case presenting a challenge under §2254(d)(2), see Rice v. Collins, 546 U. S. 333, 339, because its view of the state court’s factual determination here does not depend on an interpretative difference regarding the relationship between those provisions. While “[t]he term ‘unreasonable’ is . . . difficult to define,” Williams v. Taylor, 529 U. S. 362, 410, it suffices to say that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance. See Rice, supra, at 341–342. Here, the state-court record shows that all of Wood’s counsel read the Kirkland report. Trotter testified that Dozier told him that nothing in the report merited further investigation, a recollection supported by the attorneys’ contemporaneous letters; and Trotter told the sentencing judge that counsel did not intend to introduce the report to the jury. This evidence can fairly be read to support the Rule 32 court’s factual determination that counsel’s failure to pursue or present evidence of Wood’s mental deficiencies was not mere oversight or neglect but the result of a deliberate decision to focus on other defenses. Most of the contrary evidence Wood highlights—e.g., that Dozier and Ralph put the inexperienced Trotter in charge of the penalty phase proceedings—speaks not to whether counsel made a strategic decision, but to whether counsel’s judgment was reasonable, a question not before this Court. Any evidence plausibly inconsistent with the strategic decision finding does not suffice to show that the finding was unreasonable. Pp. 8–12.

2. Because Wood’s argument that the state court unreasonably applied Strickland in rejecting his ineffective-assistance claim on the merits is not “fairly included” in the questions presented under this Court’s Rule 14.1(a), it will not be addressed here. Pp. 12–13.

542 F. 3d 1281, affirmed.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which KENNEDY, J., joined.

Argument Transcript from Fair Cross-Section Habeas Case

The transcript in Berghuis v. Smith is here. Here is the description of the issue from ScotusWiki, which also links to briefs and the opinion below:

Whether the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply “clearly established Federal law” under 28 U.S.C. § 2254 when it rejected a state prisoner’s Sixth Amendment fair cross-section claim and whether the Sixth Circuit erred in applying the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires).

Logan on the Adam Walsh Act

Wayne A. Logan  (Florida State University College of Law) has posted The Adam Walsh Act and the Failed Promise of Administrative Federalism (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed to date on state influence on agency rulemaking, and provides an important cautionary tale for future agency-based criminal justice mandates that will likely come to pass.

GVR in Capital Case

In Wellons v. Hall, the Court granted cert, vacated, and remanded for reconsideration in light of Cone v. Bell. The opinion is here. Justice Scalia, joined by Justice Thomas, dissented, and Justice Alito, joined by the Chief Justice, dissented separately.

Supreme Court Issues Per Curiam Opinion in Court Closure Case

The opinion in Presley v. Georgia, reversing the trial court's exclusion of a spectator during criminal voir dire, is here. Justice Thomas dissented in an opinion joined by Justice Scalia.

Cloud Computing and the Fourth Amendment

FourthAmendment.com notes recent press attention to this student note, Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing, in the Minnesota Law Review. From FourthAmendment.com:

As computer file storage expands offsite, what are the expectations of privacy? Is a password enough? It should be. The Supreme Court has yet to rule on much of anything with computers or the Internet and the Fourth Amendment, still, in 2010.

"The Honest Services Argument and the Culture of Deceit"

Bill Otis has this post at Crime and Consequences on the "honest services" fraud theory. In part:

The case is a conundrum for conservatives. On the one hand, it features a criminal statute whose breadth seems rife with opportunities for prosecutorial overreach -- and Big Government is nowhere more menacing than in its power to imprison those not in step. On the other hand, the slide toward a culture of dishonesty, in which deceptiveness and outright lying increasingly threaten the trust essential for commercial and civic life, is scarcely something conservatives can welcome.

Blakey on the Rise and Fall of the Mob

G. Robert Blakey  (Notre Dame Law School) has posted Organized Crime: The Rise and Fall of the Mob on SSRN. Here is the abstract:

Seeking a single definition of “organized crime” is a futile quest. “Organized crime” is a social construct. Whatever the case with natural entities, it has no “essence” in the traditional sense of the term. Thus, the meaning of “organized crime” is a question of the purpose for which it is used. Various definitions work well or ill in varying circumstances. Using one definition in each circumstance is problematic.

Forms of organized crime were present in the United States from its earliest days. Apart from Prohibition, organized crime, used in the sense of the Mafia or the Mob, did not come to national attention until the 1950’s, when its operations received widespread publicity, as the result of congressional investigations. Nevertheless, because we have traditionally thought of crime control as a local matter, the federal government did not at that time get into the fray in a major way. Even then, its responses had little impact on the Mob. In fact, the Mob reached its apex in the United States in the 1960’s. Following recommendations of the President’s Crime Commission in 1967, which studied organized crime, in particular the Mob, in detail, Congress acted in 1968 to authorize court-ordered electronic surveillance. In the 1970’s, it authorized other evidence gathering tools, set up the witness protection program, established sentencing guidelines, and enacted the anti-racketeering act, or RICO.

Little happened in the efforts to control the Mob until the 1980’s, when the FBI finally learned how to use these new law enforcement tools. Today, the Mob, throughout the United States, is a shallow of its former self. The legal tools and administrative changes to control or eliminate it are in place. Its final elimination is a matter of the political will to continue to provide the necessary law enforcement resources. The sun has not set, but it is twilight for the Mob.

Leo and Gould on Wrongful Convictions and Social Science

Richard A. Leo (Univrsity of San Francisco - School of Law; pictured) and Jon B. Gould have posted Studying Wrongful Convictions: Learning from Social Science (Ohio State Journal of Criminal Law, Vol. 7, 2009) on SSRN. Here is the abstract:

There has been an explosion of legal scholarship on wrongful convictions in the last decade, reflecting a growing concern about the problem of actual innocence in the criminal justice system. Yet criminal law and procedure scholars have engaged in relatively little dialogue or collaboration on this topic with criminologists. In this article, we use the empirical study of wrongful convictions to illustrate what criminological approaches – or, more broadly, social science methods – can teach legal scholars. After briefly examining the history of wrongful conviction scholarship, we discuss the limits of the (primarily) narrative methodology of legal scholarship on wrongful convictions. We argue that social scientific methods allow for more precise and accurate depictions of the multifactorial and complex nature of causation in wrongful conviction cases. In the main body of this article, we discuss and illustrate several social science approaches to the study of wrongful conviction: aggregated case studies, matched comparison samples, and path analysis. We argue these methods would help criminal law and procedure scholars to better understand the causes, characteristics, and consequences of wrongful convictions than a purely narrative approach. Finally, we offer concluding thoughts about improving the dialogue between criminal law and criminology on the subject of wrongful conviction.

Anthony and Findlay on Teaching Indigenous Issues in Criminal Law and Procedure

Thalia Anthony (University of Sydney - Faculty of Law) and Mark Findlay  (University of Sydney - Institute of Criminology) have posted Teaching Indigenous Issues in Criminal Law and Criminal Procedure: Dispossession and Recognition on SSRN. Here is the abstract:

This paper focuses on how the teaching and learning of Indigenous issues can be incorporated into the Criminal law and Procedure curricula. It argues that incorporation should be framed around themes of historical dispossession and legal recognition. This paper address how teachers can include Indigenous perspectives across the topics without rewriting the whole course. Rather by addressing issues relating to distinct Indigenous criminal laws and procedures and problems of Indigenous over-representation in the criminal justice system, the Priestley 11 requirements can be met. Therefore, the article is both intended to shed light on thematic approaches to teaching Indigenous crime issues and redesigning aspects of the criminal law/procedure curriculum without a complete overhaul.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	217	Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 Mary Ellen O'Connell, Notre Dame Law School , Date posted to database: November 6, 2009 [2nd last week]
2	204	Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan Jordan J. Paust, University of Houston - Law Center, Date posted to database: December 11, 2009 [4th last week]
3	182	Amicus Brief in Mcdonald v. Chicago: On Behalf of the International Law Enforcement Educators and Trainers Association, et al David B. Kopel, Independence Institute, Date posted to database: November 22, 2009
4	148	Fifty State Survey of Adult Sex Offender Registration Laws Brenda V. Smith, American University - Washington College of Law, Date posted to database: December 3, 2009 [8th last week]
5	106	Democracy as the Rule of Law Paul Horwitz, University of Alabama School of Law, Date posted to database: November 9, 2009 [6th last week]
6	101	Unintended Collateral Consequences: Defining Felony in the Early American Republic Will Tress, University of Baltimore - School of Law, Date posted to database: December 4, 2009 [5th last week]
7	90	Habeas Corpus for the Twenty-First Century, Chapter One Nancy J. King, Joseph L. Hoffmann, Vanderbilt University School of Law, Indiana University-Bloomington, Maurer School of Law, Date posted to database: December 4, 2009 [new to top ten]
8	88	Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too) Doug Keller, Author - affiliation not provided to SSRN, Date posted to database: December 1, 2009 [7th last week]
9	83	Towards a More Reasonable Approach to Free Will in Criminal Law Stephen T. O'Hanlon, Temple University, Date posted to database: November 4, 2009
10	82	The Dog that Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals Amy E. Sloan, University of Baltimore - School of Law, Date posted to database: November 14, 2009