Friday, September 23, 2011
James Finckenauer (Rutgers School of Criminal Justice) and Stuart P. Green (Rutgers School of Law–Newark)(pictured) are the co-editors of what promises to be a highly useful new website here. The free site will offer online reviews of books in criminal law, criminal procedure, and criminal justice, and readers can subscribe to get email updates when new material is added. The distinguished advisory board is here.
In State v. Wright, 253 P.3d 838 (Mont. 2011), the Montana Supreme Court rejected a defendant's claim that allegedly false and misleading expert testimony and closing argument about the number of individuals with a particular DNA profile who lived in the state amounted to a violation of due process of law. However, the opinion does not adequately articulate the nature of the error in the testimony and is ambiguous in its discussion of the appropriate limits on the admission of DNA source-attribution testimony. This essay explains that the expert's testimony is an instance of an "expected value fallacy." This fallacy consists of thinking that the expected number of matching DNA profiles necessarily is the only plausible number of such profiles.
Thursday, September 22, 2011
Thomas M. Place (The Pennsylvania State University) has posted Closing Direct Appeal to Ineffectiveness Claims: The Pennsylvania Supreme Court's Denial of State Constitutional Rights on SSRN. Here is the abstract:
The article addresses an important issue involving rights protected by the Pennsylvania Constitution. Today, thousands of defendants in Pennsylvania are denied any opportunity to challenge their convictions on the grounds that their trial lawyer was ineffective. This occurs even though the Pennsylvania Constitution guarantees every defendant the right to direct appeal. The fact that an increasingly large number of defendants are without a remedy to protect their right to effective assistance of counsel at trial is the result of the Pennsylvania Supreme Court’s decision to bar direct appeals of claims of trial counsel ineffectiveness and instead, defer such claims to the statutory post-conviction process which is closed to defendants who are no longer in custody. If a defendant receives a sentence of short duration, increasingly common in Pennsylvania (more than 14,000 sentences imposed in 2009 were for less than one year), and the defendant completes his sentence while direct appeal or the post-conviction process is pending, the defendant has no remedy to challenge the effectiveness of trial counsel.
Michael H. Meidinger has posted Peeking Under the Covers: Taking A Closer Look at Prosecutorial Decision-Making Involving Queer Youth and Statutory Rape (Boston College Third World Law Journal, Vol. 1, 2011) on SSRN. Here is the abstract:
Queer youth are in a precarious position today. In comparison to their heterosexual peers, queer youth are disproportionately punished in the criminal justice system, and they may be more vulnerable to being prosecuted for statutory rape. Queer youth may be selectively prosecuted for statutory rape because prosecutors are given broad discretion in whom they prosecute and heterosexual intimacy norms may be part of their decision‐making process. In light of the significant barriers before a defendant alleging selective prosecution, especially for juvenile defenders, limited discovery orders like the one at issue in Commonwealth v. Washington may be a pragmatic way to make equitable change.
Juliet P. Stumpf (Lewis & Clark Law School) has posted Doing Time: Crimmigration Law and the Perils of Haste (UCLA Law Review, Vol. 58, No. 1705, 2011) on SSRN. Here is the abstract:
Crimmigration law wastes one of the law’s most valuable tools: time. It eschews the temporal gauges that criminal law and immigration law rely on to evaluate who should be included or expelled from society. Instead, crimmigration law narrows the decision whether to exclude or expel the noncitizen from the nation to a single moment in time: the moment of the crime that makes the noncitizen eligible for deportation or incarceration for an immigration-related offense. This extraordinary focus on the moment of the crime conflicts with the fundamental notion of the individual as a collection of many moments composing our experiences, relationships, and circumstances. It frames out circumstances, conduct, experiences, or relationships that tell a different story about the individual, closing off the potential for redemption and disregarding the collateral effects on the people and communities with ties to the noncitizen.
Wednesday, September 21, 2011
A a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek to create a topography of Dylan-as-jurisprudential scholar, and will seek to do this by looking at selected Dylan songs in these discrete areas of law (and law-and-society):
• Civil rights
• Inequality of the criminal justice system
• Governmental/judicial corruption
• Equality and emancipation (political and economic)
• Poverty, the environment, and Inequality of the civil justice system, and
• The role of lawyers and the legal process.
George C. Thomas III (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Two Windows into Innocence (Ohio State Journal of Criminal Law, Vol. 7, p. 575, Spring 2010) on SSRN. Here is the abstract:
Stories about innocent defendants who serve many years in prison before they are conclusively exonerated by DNA testing are by now sadly familiar. Although the reaction of policy makers has so far been strangely muted, there are concrete steps that can be taken to reduce the risk of wrongful convictions at an acceptable cost. This essay examines two relatively modest but important changes that some states have made and recommends that they be made more broadly. According to the Cardozo Innocence Project, the single most common cause of wrongful convictions is mistaken eyewitness identifications. States like New Jersey and North Carolina have implemented fundamental changes in eyewitness procedures that include keeping records of the procedure and requiring the eyewitness to indicate the degree of certainty. The essay recommends these and other reforms that will help protect innocent defendants. The other “window into innocence” is to permit criminal defendants to discover the State’s case in much the same manner as civil litigants are permitted to discover the other party’s case. Florida has had a liberal criminal discovery policy since 1972 without evidence of undue burdens on victims or costs to administer the process. Ten other states permit criminal discovery either as a matter of right or by leave of the court. Though liberal criminal discovery does potentially burden victims, there are ways of ameliorating that burden. One can argue that all defendants have a right to discover the State’s case but that argument has particular cogency when the defendant is factually innocent of the crime charged when defendants. When defendants make a threshold showing of innocence, the paper argues, the State should pay the defense lawyer’s time to take depositions of the State’s witnesses.
Tuesday, September 20, 2011
Proceedings began today in Italy in the trial of seven earthquake experts accused of manslaughter. The experts allegedly gave reassurances that tremors in the L'Aquila region in Central Italy were not expected to lead to an imminent, major earthquake. Over three hundred people died in the earthquake that later occured in April 2009.
All of the commentary from seismologists that I have read emphasizes how difficult (or virtually impossible) it is to predict earthquakes with any precision. I give some reasons here why a case like this would be highly unlikely in the United States. Based on this AP article, it sounds like more important hearings will commence on October 1.
All of the news articles I have read describe the crime at issue as "manslaughter," though one commenter to an earlier post on this blog (see here) suggests that the crime "omicidio colposo" might be translated as a kind of "negligent or involuntary manslaughter." Further clarifications are welcome in the comments.
Monday, September 19, 2011
Chad Flanders (Saint Louis University - School of Law) has posted Cost as a Sentencing Factor: A Theoretical Inquiry on SSRN. Here is the abstract:
In sentencing offenders, should judges take into account the different costs of possible punishments? In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year). Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.
Frank O. Bowman III (University of Missouri School of Law) has posted Getting Away with Murder (Most of the Time): A Sesquicentennial Analysis of Civil War Era Homicide Cases in Boone County, Missouri on SSRN. Here is the abstract:
In the quarter century centered on the Civil War, 1850-1875, fifty-three homicide cases came before the courts of Boone County, Missouri, of which Columbia, home of the University of Missouri, is the county seat. To remarkable degree, the story of these killings, told in this article, is a chronicle of the place and period.
The article’s method might be described as “murder as social history.” Its narrative thread is an effort to explain the remarkable fact that only twelve of the fifty-three defendants charged with murder were ever convicted of any form of criminal homicide. The explanation requires an introduction to Missouri history, economy, and geography, a reconstruction of the law enforcement and court systems of a state that had only recently been on the edge of the American frontier, an exploration of the law and politics of slavery in the period beginning with the Kansas-Missouri border war, an understanding of the operation of martial law during the guerilla conflict that plagued Missouri throughout the Civil War, and a primer on Reconstruction-era Missouri politics.
University of San Diego School of Law,
Date posted to database: September 8, 2011 [new to top ten]
|2||250||Re-Thinking Illegal Entry and Re-Entry
Georgetown University Law Center ,
Date posted to database: July 14, 2011 [3rd last week]
|3||189||The Causes of Growth in Prison Admissions and Populations
John F. Pfaff,
Fordham University - School of Law,
Date posted to database: July 15, 2011 [4th last week]
|4||178||Solicitation, Extortion, and the FCPA
Joseph W. Yockey,
University of Iowa College of Law,
Date posted to database: July 28, 2011 [6th last week]
|5||175||The Child Pornography Crusade and its Net Widening Effect
University of South Carolina - School of Law,
Date posted to database: August 24, 2011 [new to top ten]
|6||157||Mental Disorder and Criminal Law
University of Pennsylvania Law School,
Date posted to database: July 24, 2011 [8th last week]
|7||156||Rawls' Concept of Reflective Equilibrium and its Original Function in 'A Theory of Justice'
Georgetown University - Law Center,
Date posted to database: July 21, 2011
|8||150||The Execution of Cameron Todd Willingham: Junk Science, an Innocent Man, and the Politics of Death
Paul C. Giannelli,
Case Western Reserve University - School of Law,
Date posted to database: August 26, 2011 [new to top ten]
|9||148||Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively
Deborah W. Denno,
Fordham University School of Law,
Date posted to database: August 15, 2011
|10||133||Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: August 29, 2011 [new to top ten}