Thursday, May 31, 2012
This column, by contributing editor Gabor Rona at Jurist, begins as follows:
Last week, Judge Katherine Forrest decided that the US government's scheme for detaining terrorism suspects without charge or trial is unconstitutionally vague. Meanwhile, 238 members of the House of Representatives voted to confirm a power that could be used to arrest terrorism suspects on US soil, including US citizens, and hold them without charge or trial. So, who's right?
Let's first go back to 2004 when another federal jurist, Judge Joyce Hens Green, asked the government's lawyer a simple question: "If a little old lady in Switzerland gave money to a charity for an Afghan orphanage, and the money was passed to al Qaeda, could she be held as an enemy combatant?" The government declined to rule out the detention of innocent little old ladies as enemy combatants, and Green, not surprisingly, ruled against such a broad detention scheme.
From the New York Times:
GREENSBORO, N.C. — The jury in the federal campaign finance case against former Senator John Edwards said Thursday that it had found him not guilty on one of the six counts against him, and the judge declared a mistrial on the others.
. . .
The verdict came on the third count, which involved donations from the heiress Rachel Mellon. Mrs. Mellon gave more than $725,000 to help Mr. Edwards during his 2008 presidential campaign, during which large sums were spent to cover up an affair between Mr. Edwards and a former staff videographer, Rielle Hunter, with whom he conceived a daughter.
The third count specifically deals with a $200,000 check Mrs. Mellon wrote in 2008 as the Edwards campaign was collapsing. The check was not cashed until after the campaign had ended.
Thomas K. Clancy (University of Mississippi School of Law) has posted The Fourth Amendment's Exclusionary Rule as a Constitutional Right (Ohio State Journal of Criminal Law, Vol. 10, 2012) on SSRN. Here is the abstract:
I am a proponent of the view that the rule is constitutionally based and is an individual remedy for the violation of that person’s Fourth Amendment rights. Both sides of the exclusionary rule debate regarding whether it is a mere tool to enforce deterrence or whether it is an individual right-based remedy have weighty authority and supporters. In my view, the constitutionally-based argument is persuasive: in constitutional law, there can be no right without a remedy. Subsidiary arguments reinforce that view. Those include the absence of any rational or empirical justification for the rule if based on deterrence theory, the lack of authority of the Court to apply the rule to the states absent a constitutional basis, and the coherence of justification of exceptions to the rule’s application if constitutionally based, unlike the ad hoc deterrence rationale, which is a mere substitute for each justice’s subjective assessment as to whether to apply the sanction.
Wednesday, May 30, 2012
Eugene Volokh at The Volokh Conspiracy has this post inspired by the "unfortunate situation involving the apparent arrest of Aaron Walker for blogging about the convicted bomber Brett Kimberlin" and summarizing and linking to an early draft of his forthcoming piece. In part:
A few decades ago, criminal “harassment” usually referred to telephone harassment — unwanted communications to a particular person. Likewise, stalking laws were originally created to deal with people who were physically following a person, or trying to talk to that person. The same has historically been true with regard to restraining orders.
But, increasingly, these laws have been reworded or interpreted in ways that also cover speech about a person, even when that speech is communicated to potentially willing listeners; this is especially true with regard to recent proposals to ban “cyber-harassment” or “cyber-bullying.” And, as the examples given above show, such laws are indeed being used in precisely these ways.
From The New York Times. In part:
Orange County finds itself at the enter of a new wave of laws restricting the movement of sex offenders. The county government and a dozen cities here have banned sex offenders from even setting foot in public parks, on beaches and at harbors, rendering almost half the parks in Orange County closed to them. Ten more cities are considering similar legislation.
And Orange County is far from alone. In recent years, communities around the country have gone beyond regulating where sex offenders can live and begun banning them outright from a growing list of public places.
From North Carolina to Washington State, communities have designated swimming pools, parks and school bus stops as “child safety zones,” off limits to some sex offenders. They are barred from libraries in half a dozen Massachusetts cities, and from all public facilities in tiny Huachuca City, Ariz.
From TalkLeft: the politics of crime. Bottom line, based on review of witness statements:
Zimmerman should prevail on classic self-defense at trial regardless of stand your ground. Raising stand your ground before trial gives him the possibility of a quicker win, and the opportunity to preview the state's strategy before it gets to a jury.
The problem for Zimmerman is the notoriety of this case -- any judge is going to want to avoid making that call and find a reason to let the case go to the jury.
Hat tip: Jonathan Adler at The Volokh Conspiracy.
From the New York Times:
NEW BRUNSWICK, N.J. — A judge on Wednesday offered a spirited defense of the sentence he imposed on Dharun Ravi, the former Rutgers University student convicted of using a webcam to spy on his roommate having sex with another man.
Mr. Ravi was convicted in March of all 15 charges against him, and sentenced last week to 30 days in jail, 300 hours of community service, three years’ probation and $10,000 to be paid to a fund that helps victims of bias crimes.
James Jacobs (pictured) and Kerry Cooperman (New York University School of Law and affiliation not provided to SSRN) have posted A Proposed National Corrections College (New England Journal on Criminal and Civil Confinement, Vol. 38, 2012) on SSRN. Here is the abstract:
More than four decades ago, Chief Justice Warren E. Burger proposed the establishment of a National Corrections Academy. He envisioned a training center for prison and jail personnel as prestigious, well-funded, and high-powered as the FBI Academy in Quantico, Virginia. Although the National Institute of Corrections established a National Corrections Academy in 1982, this academy has remained extremely small (ten full-time program specialists) and modestly funded ($2.5 annual budget) given the size of this nation’s correctional infrastructure. Today, at a cost of approximately $70 billion per year, more than half a million correctional employees in more than 5,000 correctional facilities across the U.S. house, feed, clothe, supervise, recreate, educate, and provide medical care to nearly 2.3 million inmates, and probation and parole officers supervise an additional 5 million people. Despite the cost and complexity of administering this massive correctional complex, there is no national institution to identify and prioritize correctional-leadership-development needs, evaluate best training practices, develop and disseminate quality curricula, conduct cutting-edge research, and deliver training to a significant number of high-level corrections leaders.
Tuesday, May 29, 2012
From the New York Times. In part:
A technician quickly focused on the computer screen, where the words “multiple gunshots” appeared in large type. She listened to a recording of the shots — the tat-tat-tat-tat-tat of five rounds from a small-caliber weapon — and zoomed in on a satellite map to see where the gun had been fired: North 23rd Street in Milwaukee, 2,200 miles away.
. . .
The detection system, which triangulates sound picked up by acoustic sensors placed on buildings, utility poles and other structures, is part of a wave of technological advances that is transforming the way police officers do their jobs.
But like other technologies, including license plate scanners, body cameras and GPS trackers, the gunshot-detection system has also inspired debate.
Lucian E. Dervan (Southern Illinois University School of Law) has posted International White Collar Crime and the Globalization of Internal Investigations (Fordham Urban Law Journal, Forthcoming) on SSRN. Here is the abstract:
Much has been written about the methods by which counsel may efficiently, thoroughly, and credibly conduct internal investigations. Given the globalization of such matters, however, this article seeks to focus on the challenges present when conducting an internal investigation of potential international white-collar criminal activity. In Part I, this article will examine the challenges of selecting counsel to perform internal investigations abroad. In particular, consideration will be given to global standards regarding the application of the attorney-client privilege and work product protections. In Part II, this article will discuss the influence of data privacy and protection laws in various countries and analyze the challenges of attempting to conduct an American-style internal investigation in such jurisdictions. Part III of this article will examine interactions with employees during international internal investigations and will consider the challenges of complying with varying labor laws and due process requirements around the world. Finally, in Part IV, this article will discuss the hazards of multi-jurisdictional investigations by government agencies. In particular, consideration will be given to decisions regarding the disclosure of investigatory findings and the difficulties of engaging in settlement negotiations in an international enforcement environment.
Sunday, May 27, 2012
|1||2152||A Due Process Right to Record the Police
Glenn Harlan Reynolds, John A. Steakley,
University of Tennessee College of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: April 23, 2012
|2||574||The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: March 29, 2012
|3||504||The Harmful Side Effects of Drug Prohibition
Randy E. Barnett,
Georgetown University Law Center,
Date posted to database: March 13, 2012
|4||352||Implicit Bias in the Courtroom
Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey, Nilanjana Dasgupta,David L. Faigman, Rachel D. Godsil, Anthony G. Greenwald, Justin D. Levinson, Jennifer Mnookin,
University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Massachusetts at Amherst - Psychology, University of California - UC Hastings College of the Law, Seton Hall University - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Hawaii at Manoa - William S. Richardson School of Law, University of California, Los Angeles (UCLA) - School of Law,
Date posted to database: March 21, 2012
|5||324||The Mosaic Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: April 3, 2012
Joshua D. Blank, Nancy C. Staudt,
New York University School of Law, USC Law School,
Date posted to database: April 5, 2012 [7th last week]
|7||283||Ensuring an Impartial Jury in the Age of Social Media
Amy J. St. Eve, Michael A. Zuckerman,
U.S. District Court Judge, U.S. District Court,
Date posted to database: March 13, 2012 [6th last week]
|8||215||Zotero - A Manual for Electronic Legal Referencing
John Prebble, Julia Caldwell,
Victoria University of Wellington, Victoria University of Wellington,
Date posted to database: April 3, 2012
|9||151||What Percentage of DOJ FCPA Losses is Acceptable?
Butler University College of Business,
Date posted to database: March 23, 2012 [10th last week]
|10||160||American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice, by William Stuntz
Vanderbilt University - Law School,
Date posted to database: March 28, 2012 [9th last week]
Saturday, May 26, 2012
From the New York Times:
MIAMI — Besieged by identity theft, Florida now faces a fast-spreading form of fraud so simple and lucrative that some violent criminals have traded their guns for laptops. And the target is the United States Treasury.
. . .
The criminals, some of them former drug dealers, outwit the Internal Revenue Service by filing a return before the legitimate taxpayer files. Then the criminals receive the refund, sometimes by check but more often though a convenient but hard-to-trace prepaid debit card.
Friday, May 25, 2012
From Google News, this link to a Texas television station's website. In part:
Patrick Miller and Keyon Ivory said they were fishing in the Trinity River near the Fort Worth Nature Center & Refuge May 9 when the alligator swam swiftly toward their two-person boat, prompting both men to jump out and Miller to shoot it.
The Fort Worth Star-Telegram reports Friday that state game wardens have determined the alligator killing was not in self-defense.
Maybe they should have claimed they saw something metallic in the gator's foot.
A Justice Department internal investigation of the botched prosecution of Ted Stevens concluded two prosecutors committed reckless professional misconduct and should be sanctioned through forced time off without pay.
DOJ officials recommended Joseph Bottini be suspended without pay for 40 days and James Goeke be suspended for 15 days without pay. DOJ did not find that either assistant U.S. attorney acted intentionally to violate ethics rules, a finding that is contrary to a parallel criminal investigation. . . .
OPR concluded in a 672-page report the government violated its obligations under department policy and constitutional principles to disclose certain information to Stevens’s lawyers, Assistant Attorney General Ronald Weich said in a seven-page letter to Senate Judiciary Chairman Patrick Leahy (D-Vt.) and House Judiciary Chairman Lamar Smith (R-Texas.)
The story is at Jurist:
The American Civil Liberties Union (ACLU) [advocacy website] filed a Freedom of Information Act (FOIA) [official website] lawsuit [complaint, PDF; press release] against the US Department of Justice (DOJ) [official websites] Wednesday seeking information on the use of electronic surveillance tools. At issue are tools called pen registers and trap and trace devices which allow law enforcement to monitor phone calls, emails and websites visited under the Pen Register Act [text]. The attorney general is required to report annually to Congress about its use of these surveillance tools, but the ACLU claims that these reports are incomplete because they don't include law enforcement agencies within the DOJ.
ScotusBlog describes the controversy. In part:
The case turns on the meaning of the Interstate Agreement on Detainers Act. Normally, that law is used to make it easier for one state to obtain custody of an individual who is in another state, for prosecution for a crime in the demanding state. The federal government, however, is covered by the Act’s provisions, too.
When the federal government formally asked Rhode Island to hand over Pleau, the state — exercising what it believes is its right under the Act — refused, based on the state’s public policy against death sentencing. The government, however, then went into federal court, and obtained a formal writ commanding Rhode Island to turn over Pleau, despite the governor’s objections. As of now, the federal government’s argument has prevailed, as the en banc First Circuit Court ruled in May that Rhode Island must obey the writ. The Circuit Court split 3-2 on the issue.
Thursday, May 24, 2012
From Reuters, via Yahoo.com. In part:
ORLANDO, Florida (Reuters) - Neighborhood watch captainGeorge Zimmerman made statements to police that help establish his guilt in the second-degree murder case against him for killing unarmed black teenager Trayvon Martin, prosecutors said in acourt filing on Thursday.
The claim came in a motion by prosecutors to keep some of Zimmerman's statements under seal pending his trial in a case that triggered civil rights protests across the United States, while sparking widespread debate over guns, self-defense laws and U.S. race relations.
Eugene Volokh has this post at The Volokh Conspiracy, discussing the particulars of the statute in question but in terms with wider applicability. In part:
Baker was charged with jury tampering, under a statute that provides, “A person who … in retaliation for anything lawfully done by any witness or juror in any case, harasses such witness or juror, commits an aggravated misdemeanor.” “Harassment” is in turn defined as, “with intent to intimidate, annoy, or alarm another person, … [c]ommunicat[ing] with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose, and in a manner likely to cause the other person annoyance or harm.”
. . . .
I’m quite troubled by such laws that prohibit a considerable amount of conduct, much of which would be constitutionally protected, and then try to avoid this overbreadth by limiting the prohibition to conduct that lacks a “legitimate purpose.” Who can know what purposes the legal system will eventually find “legitimate”? If you want to punish threats, punish threats. If you want to punish behavior that has the purpose of assisting some crime, punish that. But don’t just leave to future prosecutors, judges, and juries the decision about what’s “legitimate” and what isn’t — and thus leave citizens uncertain about what’s allowed and what’s not.