January 30, 2010
"Abortion Foe Found Guilty in Doctor’s Killing"
The New York Times story is here:
Mr. Roeder’s defense team had hoped the judge in the case, Warren Wilbert, would instruct jurors that they could take into account Mr. Roeder’s motive and consider a lesser conviction of voluntary manslaughter if they believed he held, as Kansas law states, “an unreasonable but honest belief that circumstances existed that justified deadly force.”
But the judge ruled that the circumstances did not meet the requirements for such a conviction, and jurors on Friday were essentially given two choices: convict Mr. Roeder of pre-meditated murder or send him home.
Alper on Physician Participation in Executions
Ty Alper (Berkeley Law School - Death Penalty Clinic) has posted The Role of State Medical Boards in Regulating Physician Participation in Executions (Journal of Medical Licensure and Discipline (Vol. 95, No. 3) on SSRN. Here is the abstract:
The recent increase in calls for physician participation in lethal injection executions is likely to place a spotlight on state medical boards, the only entities empowered to discipline doctors for ethical violations. This article begins by recounting the history of physician participation in lethal injection executions, as well as the opposition of most medical professional organizations to the practice. The current state of the law suggests, however, that the role of state medical boards is quite circumscribed, at least in the majority of states with death penalty statutes that appear to contemplate some level of physician participation in executions. In order to further determine the legality of medical board action, a comprehensive study was conducted of the statutes and regulations governing state medical boards in all 50 states. The study reveals that only a handful of states – and only seven death-penalty states – explicitly incorporate the AMA’s ethical guidelines into their own state ethical codes. The article concludes by suggesting that, where doctors who participate in executions are doing so in order to relieve pain and suffering, it is not clear that a state medical board should intervene even in the rare instance when it would be legally possible to do so.
January 29, 2010
Leo, Costanzo & Shaked-Schroer on Psychological and Cultural Aspects of Interrogations and False Confessions
Richard A. Leo (University of San Francisco - School of Law), Mark Costanzo (Claremont McKenna College) and Netta Shaked-Schroer (Claremont Graduate University) have posted Psychological and Cultural Aspects of Interrogations and False Confessions: Using Research to Inform Legal Decision-Making (PSYCHOLOGICAL EXPERTISE IN COURT: PSYCHOLOGY IN THE COURTROOM, Daniel A. Krauss, Joes D. Lieberman, eds., Ashgate, 2009) on SSRN. Here is the abstract:
False confessions are a major cause of wrongful convictions. In many countries, physical abuse and torture are still used to extract confessions from criminal suspects. Cultural orientations such as collectivism and power distance may influence the tendency to confess, and a suspect's past experience in a country that uses physical abuse during interrogations may render suspects fearful and more prone to falsely confess. After looking at interrogations outside the United States, we examine the issue of why false confessions sometime occur in the U.S. legal system. We prove an overview of the stages of a typical interrogation and provide a psychological analysis of the array of tactics used by police interrogators. Finally, we describe several reforms that hold the potential to dramatically reduce the risk of false confessions.
Ambros on Transnational Use of Torture Evidence
From an international criminal law perspective the question of torture has two aspects. The first is substantive: is the use of torture in all situations, even in the most extreme ones, where torture is applied to save the life of innocents (“preventive torture”), unlawful and must the torturer always be punished? I have tried to find a differentiated answer to this question elsewhere. The second aspect is a procedural one: can evidence obtained by means of torture (“torture evidence”) be used in criminal trials? In states governed by the rule of law and fair trial, the answer is a simple and clear “no” if torture was applied by national authorities and the torture evidence is meant to be used in a subsequent criminal trial. In this situation, of “direct use of torture evidence,” national procedural norms provide explicit prohibitions. These national prohibitions are based on human rights law, in particular Article 15 of the UN Convention Against Torture (CAT).
A more complex question also analyzed in this Article is whether such prohibitions also apply to the transnational use of torture evidence, i.e. situations in which torture evidence obtained in one country and is used in another. One may distinguish between two situations: in the first situation, state A, which has a clear prohibition against the use of torture evidence, sends a suspect to state B, known for its torture practices, to obtain such evidence. In the second situation, state A, in a joint investigation with and inside state B, obtains torture evidence and uses this evidence in a domestic criminal trial in its own territory. The difference between these cases is obvious: in the first case, state B’s torture practice is intentionally and consciously used to circumvent state A’s national torture prohibitions. In the second case, the prohibiting state A obtains torture evidence accidentally, without having intentionally used state B’s torture practices. Transnational use of torture evidence must also be distinguished from the supranational use of such evidence, i.e. its use before international criminal tribunals. After a short explanation of the theoretical point of departure with regard to the use of illegally obtained evidence, we will begin with the supranational level, since it may produce some important findings with a view to the transnational use of torture evidence before national tribunals.
January 28, 2010
Bradley on Reconceiving the Fourth Amendment and the Exclusionary Rule
Craig Bradley (Indiana University School of Law-Bloomington) has posted Reconceiving the Fourth Amendment and the Exclusionary Rule (Criminal Law Symposium, Chicago-Kent Law Review, 2010) on SSRN. Here is the abstract:
In Herring v. United States, the Supreme Court indicated both that it was undertaking a major revision, essentially an abolition, of the exclusionary rule and at other times, including in it's stated holding, suggested that it was only reducing the rule's force in a minor way. This article reconceives the exclusionary rule in light of the reasonableness language of the Fourth Amendment. It argues that the best approach to exclusion, unlike the Court's past approach, or it's proposal in Herring, is to exclude evidence only when there is a violation of the Court's Fourth Amendment rules and that violation is "unreasonable" or negligent on the part of police. This compromise would eliminate much of the conservative opposition to the rule while maintaining it as an effective deterrence to police misconduct.
Symposium on "Forensic Science: A Blueprint for the Future"
at UCLA on Thursday, Feb. 18. Information about the conference, presented by UCLA's Program on Understanding Law, Science, and Evidence (co-director Jennifer Mnookin pictured), is here. From the website:
Forensic science - from latent fingerprint analysis to firearms identification to DNA - is often among the most significant evidence introduced in criminal cases. Over the last few decades, it has also been the subject of significant controversy, with defense attorneys arguing that long-accepted forensic techniques lack scientific validation, and prosecutors vociferously defending their accuracy and reliabiity.
Last February, the National Academy of Sciences (NAS) issued a major and long-awaited report assessing the strengths and limitations of forensic science in the United States. The report explicitly criticized the lack of empirical and research basis underpinning some of the claims routinely made by many forensic scientists in court, and called for significant changes and major overhaul to our system of forensic science. This NAS report, which spurred congressional hearings and was recently cited in the Supreme Court, quickly garnered a great deal of attention from scholars, practitioners, and political stakeholders alike.
One year after this report, what, if anything has changed? This public symposium takes the one-year anniversary of the report as an opportunity to reflect on the aftermath of the National Academy report, its effects on courts, practitioners, scholars, and the forensic science community. But even more important, this symposium look forward to ask what does the future hold for forensic science? Flashing forward one decade or two, what should we expect, what should we fear, and what should we hope for? In this one-day symposium, key stakeholders will consider and help to create a blueprint for the future of forensic science.
This symposium, organized by UCLA's new Program on Understanding Law, Science, and Evidence (PULSE), brings together leading participants the forensic science debates, including forensic practitioners, attorneys, law professors, psychologists, and judges, to engage in robust presentations and debates about the future of forensic science.
Interesting Posts on the FCPA Africa StingThe DOJ's release announcing the indictments under the Foreign Corrupt Practices Act is here. Mike Koehler (Butler University-Business) has this post at the FCPA Professor blog and another here featuring commentary by Dru Stevenson (South Texas College of Law) on entrapment issues related to the case.
January 27, 2010
Sheyn on Jury Trials in the Ukraine
Elizabeth R. Sheyn has posted A Foothold for Real Democracy in Eastern Europe: How Instituting Jury Trials in Ukraine Can Bring About Meaningful Governmental and Juridical Reforms and Can Help Spread These Reforms Across Eastern Europe (Vanderbilt Journal of Transnational Law, Vol. 43, No. 3, 2010)
on SSRN. Here is the abstract:
A dysfunctional judicial system in which bribes are welcome, rather than banned or frowned upon, is difficult to imagine, particularly in light of the prohibitions placed on such conduct in the United States. And yet just such a system is currently in place in Ukraine.
One of the factors likely contributing to the corrupt nature of Ukraine’s judiciary is the lack of a jury trial system; Ukraine has never had a single criminal or civil jury trial despite the fact that the right to a jury trial, at least in criminal cases, is guaranteed by its Constitution. This Article argues that Ukraine can and should make room for juries in its judicial system and provides a framework for both criminal and civil jury trial implementation. Although the use of juries will not remedy all the problems plaguing Ukraine, it can bring this country closer to achieving a truly democratic form of government. Additionally, other former Soviet Republics, especially those that closely resemble Ukraine in terms of their economic, political, and cultural characteristics, could learn and benefit from Ukraine’s example in this respect.
The implementation of jury trials in Ukraine is particularly important because this country, “once considered a worldwide symbol of an emerging, free-market democracy that had cast off authoritarianism, is teetering. And its predicament poses a real threat for other European economies and former Soviet republics.” Ukraine - widely considered “a linchpin for stability in Europe” - has a population of “46 million people and a highly strategic location a collapse in Ukraine could wreck what little investor confidence is left in Eastern Europe, whose formerly robust economies are being badly strained.” Further, governmental problems in Ukraine could “cause neighboring Russia, which has close ethnic and linguistic ties to eastern and southern Ukraine, to try to inject itself into the country’s affairs. What is more, the Kremlin would be able to hold up Ukraine as an example of what happens when former Soviet republics follow a Western model of free-market democracy.” Introducing a jury trial framework in Ukraine - particularly one that is more effective than that currently being used in Russia - will aid in the legitimization of the Ukrainian government and court system, thereby helping to stabilize the presently tumultuous relationship between Ukrainian citizens and their government.
Robinson et al. on Modern Irrationalities of American Criminal CodesThomas Gaeta , Matthew Majarian , Megan Schultz and Douglas M. Weck (students at the University of Pennsylvania Law School) have posted The Modern Irrationalities of American Criminal Codes: An Empirical Study of Offense Grading on SSRN. Here is the abstract:
The Model Penal Code made great advances in clarity and legality, moving most of the states from a mix of common law and ad hoc statutes to the modern American form of a comprehensive, succinct code that has served as a model around the world.
Yet the decades since the wave of Model Code-based codifications have seen a steady degradation of American codes brought on by a relentless and accelerating rate of criminal law amendments that ignore the style, format, and content of the existing codes. The most damaging aspect of this trend is the exponentially increasing number of offense grading irrationalities found in most modern American codes.
This Article documents the practical and prudential importance of getting offense grading right – that is, having the grade of each offense or suboffense reflect its relative seriousness in relation to all other offenses – then illustrates just how wrong things have gone, using a case study of offense grading in Pennsylvania, one of the better modern American codes.
The critique of Pennsylvania, and its conclusions, does not rely upon the value judgments of the authors but rather upon an empirical study of the judgments of Pennsylvania residents regarding the relative seriousness of more than a hundred existing Pennsylvania offenses. The results suggest a startling conflict between the law's grading judgments and those of the community it governs, as well as a variety of kinds of logical irrationalities and internal inconsistencies.
The process by which these grading irrationalities have been and continue to be created is examined, and solutions for fixing and, perhaps, avoiding these problems in the future, are explored.
January 26, 2010
"Supreme Court's McDaniel ruling will have minimal impact on habeas corpus practice"Jurist has the piece here.
Stucke on Optimal Deterrence, Behavioral Economics, and Antitrust
Maurice E. Stucke (University of Tennessee College of Law) has posted Am I a Price-Fixer? A Behavioral Economics Analysis of Cartels on SSRN. Here is the abstract;
This article considers why executives risk prison, their careers, and their status in the community, and violate the antitrust laws. The generally accepted approach today is that price-fixers behave as “rational” profit-maximizers. Executives engage in a cost-benefit analysis to see if the benefits from the crime are worth taking the risks. To achieve optimal deterrence, the economic theory goes, the antitrust penalty should equal the violation’s expected net harm to others (plus enforcement costs) divided by the probability of detection and proof of the violation. Despite increasing antitrust fines and jail sentences, cartels continue to exist. Before the United States responds with greater fines and jail sentences, it makes sense to evaluate several assumptions underlying optimal deterrence theory. In reviewing the behavioral economics literature, policymakers will have a better grasp of the situational and dispositional factors that promote price-fixing.
Another Problem for the Criminal Law Model: Cyberattacks
The New York Times article is here. In part:
These recent events demonstrate how quickly the nation’s escalating cyberbattles have outpaced the rush to find a deterrent, something equivalent to the cold-war-era strategy of threatening nuclear retaliation.
Symposium on "Sharing the Blame: the Law and Morality of Punishing Collective Entities"Scheduled for Friday, Feb. 5, at Brooklyn Law School. Additional information is here.
January 25, 2010
"Court OKs 'John Doe' warrants based only on DNA"How Appealing links to the A.P. story and to the California Supreme Court's 5-2 opinion holding that these warrants suffice to commence a criminal action for statute-of-limitations purposes.
Mirandizing Suspected TerroristsBill Otis at Crime and Consequences has this post criticizing the "knee-jerk default to a crime-and-punishment model" in dealing with suspected terrorists, commenting on the decision to Mirandize the Christmas-day bomber.
Today's Crim Law/Procedure Cert Grant
The Court granted cert in Abbott v. United States and Gould v. United States and consolidated the cases. Here is a description of the issues in Abbott from ScotusBlog, which also links to opinion below and cert papers:
(1) Whether the term “any other provision of law” of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction?
Per Curiam Opinion in Briscoe v. Virginiais here. The one-paragraph opinion vacates the judgment below and remands for further proceedings not inconsistent with Melendez-Diaz v. Massachusetts.
Facelift for Westlaw and Lexis (Kolber)
According to the New York Times, Westlaw and Lexis are about to modernize their web interfaces. It's about time! The article is short on details, but having read it, I'm not very optimistic that the updates will be anything near what they could and should be. Three years ago, I put my wishlist up on Prawfsblawg (see also the helpful comments there). I've reprinted the post after the jump.
Many of us spend a lot of our time using online reseach services, yet I think the blawgosphere has been largely silent about how these services can be improved. This is all the more surprising because Westlaw and Lexis charge many of their customers hundreds of dollars per hour, often just to access public documents! Here are some preliminary suggestions for improvements to Westlaw, the service I principally use. Feel free to chime in with your own suggestions, or to tell me that I've missed some features that Westlaw actually does offer:
(1) Place bluebook-formatted citations to all sources at the top of every document. By cutting and pasting these uniform citations, Westlaw can save time for attorneys, law clerks, professors, students, and law review editors. I realize that citation formats vary by jurisdiction but Westlaw could offer default preferences based on one's preferred jurisdiction or citation style. In any event, right now, many documents offer no citation at all, and those that do hardly resemble any bluebook-style. When I use Westlaw's "copy with reference" feature, the reference often puts the document title in ALL CAPS, a format that virtually no one uses.
(2) Allow me to create multiple projects in Westlaw. I would like to drag-and-drop particular cases or other documents into a project folder (that may contain subfolders, as well). I'd like it if I could highlight particular passages of a case or article on screen, add comments to the document, and have all this information stored in my project folder. Documents and notes in these projects should be searchable. We should be able to give access to a project to certain other Westlaw users, like those at the same school or law firm.
(3) Speed up the interface and search tools. Westlaw's data set, large as it is, is just a fraction of the size of Google's. Yet Google is much faster and is free! (I do think Westlaw has sped up noticeably, though, in recent years.)
(4) Now that most people have broadband connections to the Internet, Westlaw can stop dividing up large cases and law review articles into difficult-to-search pieces.
(5) It's time for Westlaw to buy up the .pdf's for law reviews. Westlaw's format is rather unwieldy. Relatedly, it is sometimes confusing when cases offer page numbers in multiple formats, especially when the page numbers happen to be numerically close. Put a check box at the top of each case that allows me to see only the page numbering styles that I want to see.
(6) If additional features complicate the service, allow us to pick whether we would like beginner, intermediate, or advanced services. The amount of control that we're given over the search function (not enough now!) could also vary based on this selection. My colleague, Tom Smith, has made progress in developing alternative search methods, which suggests that Westaw has yet to do all it can to make its key feature--searching large amounts of text--as helpful as possible. Your turn. . .
Featured Download: Morris on the Greatest Legal Movie of All Time
Grant H. Morris (University of San Diego School of Law) has posted The Greatest Legal Movie of All Time: Proclaiming the Real Winner (San Diego Law Review, Vol. 47, No. 2, 2010) on SSRN. Here is the abstract:
In August, 2008, the ABA Journal featured an article entitled: “The 25 Greatest Legal Movies.” A panel of experts, described in the article as “12 prominent lawyers who teach film or are connected to the business” selected “the best movies ever made about lawyers and the law.” This distinguished panel ranked its twenty-five top legal movies, choosing To Kill a Mockingbird as its number one legal movie. The panel also selected twenty-five films as “honorable mentions,” which were listed in alphabetical order. In my opinion, however, the real greatest legal movie of all time was not selected as the winner. It was not ranked in the top twenty-five. It was not included in the twenty-five honorable mentions so that it would rank in the top fifty. I would wager that it was not even considered by the panel as a candidate for inclusion as a “legal” movie. In this article, I discuss the movie that should have been ranked first. I compare my choice with the experts’ choice, describing similarities and differences between the two movies. In To Kill a Mockingbird, an African American man is wrongfully accused of raping a white woman. Despite the best efforts of his attorney, he is convicted of that crime. Prejudice prevails over justice. In the movie I have chosen, another victim of prejudice is able to succeed due to the best efforts of his attorney. Justice prevails over prejudice. That difference convinces me that the movie I have selected is truly the greatest legal movie of all time.
His choice: "Dumbo." You'll need to read the article to understand the case.
January 24, 2010
"Biden Says U.S. Will Appeal Blackwater Case Dismissal"
The New York Times has the story here:
BAGHDAD — Vice President Joseph R. Biden Jr. promised Iraqi leaders on Saturday that the United States would appeal the dismissal of manslaughter charges against five Blackwater Worldwide security contractors involved in a deadly shooting here that has inflamed anti-American tensions.
, , ,
In December, in a decision that was a blow to the Justice Department and unleashed anger and disbelief in Iraq, a federal judge threw out the five guards’ indictment on manslaughter charges, citing misuse of their statements that violated their constitutional rights. The judge’s scathing and detailed ruling was expected to make any appeal difficult.