May 26, 2012
"Statement of Williams & Connolly on DOJ's "Laughable" Punishment of Ted Stevens's Prosecutors"
White Collar Crime Prof Blog links to the statement.
"With Personal Data in Hand, Thieves File Early and Often"
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.
May 25, 2012
"Texas alligator killing wasn't self-defense"
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.
"Two Prosecutors in Stevens Case Cited for Professional Misconduct"
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.)
"ACLU sues DOJ over surveillance information"
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.
Stay denied in Rhode Island death penalty transfer case
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.
May 24, 2012
"Trayvon's killer said to make self-incriminating statements"
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.
"Crime to Call a Juror to Make Her Feel Sorry About Her Vote?"
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.
"How to End Stop-and-Frisk Abuses"
From an editorial in the New York Times:
Commissioner Raymond Kelly of the New York Police Department issued a weak statement last week on efforts to “increase public confidence” in the city’s abusive stop-and-frisk program, which ensnares hundreds of thousands of mainly minority New Yorkers every year. Mr. Kelly seems to believe that tinkering at the margins will cure the program’s constitutional flaws. It will not.
New York should learn from Philadelphia, where the stop-and-frisk policy was the subject of a 2010 class-action suit for racial discrimination and violations of Fourth Amendment guarantees of freedom from unreasonable searches and seizures. Like New York police officers, Philadelphia’s were accused of using race as the basis for stops. Philadelphia settled the suit, accepting a consent decree that explicitly defined and prohibited illegal stops and put in place a court-appointed monitor to oversee stop-and-frisk practices.
. . .
By pointing out the vague and unlawful criteria used to justify stops in New York, the court decision suggested a kind of road map to reform. In tens of thousands of cases, for example, officers reported “furtive movement.” They reported that other stops had taken place in “high crime areas,” when, in fact, some had not. And, in more than 10 percent of all stops, officers reported a “suspicious bulge” — suggesting a gun — in the clothing of people they stopped, but seized guns only 0.15 percent of the time.
Opinion holding that double jeopardy clause does not bar retrial on greater offense after jury announces deadlock on lesser offense
Chief Justice Roberts wrote the opinion for the Court in Blueford v. Arkansas. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.
May 23, 2012
Criticism of Rhode Island's effort to keep prisoner from feds to avoid death penalty
The post, at Crime and Consequences, also notes that the governor is represented in his stay application in the US Supreme Court by Akin Gump, not the RI AG.
"Controversial Instructions at Core of Edwards Case"
From the New York Times. In part:
Although jurors have been weighing the complex and tawdry story of a concealed mistress, an illegitimate child and a cover-up — all financed with money from wealthy friends — the question of guilt or innocence hinges on a single question: Did the money amount to gifts — as Mr. Edwards contends — or illegal and improperly reported campaign contributions, as the government contends?
The jurors, who ended their fourth day of deliberations on Wednesday, are being asked to determine whether the donors gave the money with the “purpose to influence an election.” The phrase prompted a rigorous disagreement between the defense and prosecution in the courtroom over whether the law requires that influencing an election be the sole reason for giving money, as the defense team interprets the law, or only one of the reasons, as the prosecution sees the case.
Haque on Law, Morality, and War
Adil Ahmad Haque (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Law and Morality at War (Criminal Law and Philosophy, Vol. 6, 2012) on SSRN. Here is the abstract:
This article, written as part of a Special Issue on the legal philosophy of Jeremy Waldron, offers a general account of the relative scope of the morality of war, the laws of war, and war crimes. I propose an instrumentalist account of the laws of war, according to which the laws of war should help soldiers conform to the morality of war. The instrumentalist account supports Waldron’s conclusion that the laws of war justifiably prohibit attacks on civilians even if it turns out that some civilians lack a moral right not to be killed. Importantly, the instrumentalist account also offers what Waldron thinks impossible: a non-consequentialist defense of the failure of the laws of war to prohibit the killing of nonthreatening combatants. Finally, I argue that new war crimes can be broader than the morality of war as well as established laws of war and that many of the arguments for defining war crimes more narrowly than either the morality of war or the laws of war are unconvincing. In all of these ways, I hope to carry forward Waldron’s project of exploring the relationship between law and morality in war.
May 22, 2012
"For Native American Women, Scourge of Rape, Rare Justice"
From The New York Times. In part:
One in three American Indian women have been raped or have experienced an attempted rape, according to the Justice Department. Their rate of sexual assault is more than twice the national average. And no place, women’s advocates say, is more dangerous than Alaska’s isolated villages, where there are no roads in or out, and where people are further cut off by undependable telephone, electrical and Internet service.
The issue of sexual assaults on American Indian women has become one of the major sources of discord in the current debate between the White House and the House of Representatives over the latest reauthorization of the landmark Violence Against Women Act of 1994.
A Senate version, passed with broad bipartisan support, would grant new powers to tribal courts to prosecute non-Indians suspected of sexually assaulting their Indian spouses or domestic partners. But House Republicans, and some Senate Republicans, oppose the provision as a dangerous expansion of the tribal courts’ authority, and it was excluded from the version that the House passed last Wednesday. The House and Senate are seeking to negotiate a compromise.
. . .
Reasons for the high rate of sexual assaults among American Indians are poorly understood, but explanations include a breakdown in the family structure, a lack of discussion about sexual violence and alcohol abuse.
Rape, according to Indian women, has been distressingly common for generations, and they say tribal officials and the federal and state authorities have done little to help halt it, leading to its being significantly underreported.
"District Court Suppresses Evidence After Government Obtained Warrant, Made Copies and Returned the Original Computers, But Did Not Search (Or Finish Searching) the Copies In a Reasonable Period of Time"
From Orin Kerr at The Volokh Conspiracy, who also links to the opinion. Professor Kerr's take, in part:
It sounds like Judge Irizarry was really annoyed by the Government’s conduct. At the same time, I have trouble understanding exactly what Fourth Amendment principle Judge Irizarry thinks was violated here. She seems to be assuming that the Fourth Amendment ensures a right to the privacy of information seized pursuant to a search warrant if the information seized is not within the scope of the warrant. The idea seems to be that the government needs to complete its review of seized information quickly so the data outside the scope of the warrant can be taken outside the government’s reach — kind of a duty to separate the digital wheat from the digital chaff in a reasonable period of time, even if the government has warrants and the owners have their computers back.
"Second Circuit allows CIA to withhold interrogation documents"
Pardo on Evidence Theory
The past few decades have seen an explosion in theoretical and empirical scholarship exploring the law of evidence. From a variety of disciplines and distinct methodological perspectives, this work has illuminated important issues regarding types of evidence, legal rules and doctrine, the reasoning processes of judges and juries, the structure of proof, and the normative considerations underlying these various issues. This Article takes up the theoretical project writ large. Exploring the landscape of evidence scholarship, the Article examines a number of methodological and meta-theoretical questions: What would a successful evidentiary theory look like? By what criteria should assess such a theory? What is the purpose of such theorizing? What is the relationship between the theoretical and empirical projects? In exploring these questions, the Article identifies criteria by which to evaluate theorizing in this area.
To that end, the Article first identifies two considerations that underlie any theoretical account of the evidentiary proof process and its components: factual accuracy and allocating the risk of erroneous decisions. Next, it articulates and defends general criteria by which to evaluate theoretical accounts in evidence scholarship in light of these considerations. Finally, it applies the general criteria to evaluate two theoretical accounts — a probabilistic conception and an explanatory conception — and concludes that the probabilistic conception fails and the explanatory conception succeeds in light of the theoretical criteria. Along with clarifying evidence theory, the Article also clarifies the relationship between theoretical and empirical scholarship in this area.
May 21, 2012
Davis & Leo on Interrogation-Induced False Confessions
Deborah Davis and Richard A. Leo (pictured) (University of Nevada, Reno and University of San Francisco - School of Law) have posted The Problem of Interrogation-Induced False Confession: Sources of Failure in Prevention and Detection (in Stephen Morewitz & Mark Goldstein, eds., The Handbook of Forensic Sociology and Psychology (Springer, 2013 Forthcoming)) on SSRN. Here is the abstract:
Interrogation-induced false confessions are a systemic feature of American criminal justice. In the last few decades, scholars have assembled evidence of instances of false confessions that resulted in wrongful convictions. Despite procedural safeguards and a constitutional prohibition against legally coercive interrogation techniques, American law enforcement continues to elicit false confessions. In particular, American law enforcement interrogation techniques display two problematic features that have the potential to increase the occurrence of false confessions: (1) an assumption of guilt that promotes the misclassification of innocent suspects as likely guilty; and (2) the still-coercive nature of interrogation tactics that include strong incentives promoting confession as the mechanism to achieve the best legal outcomes and that contaminate the content of the confessions they elicit.
In this article, we address two questions: (1) Why do false confessions occur, and what can be done to prevent them?; and (2) Why do false confessions remain undetected once elicited, and what be done to more successfully identify them when they do occur? We particularly emphasize the role of failures of relevant knowledge and understanding among those who elicit and misjudge false confessions.
Lee & Persson on Human Trafficking and Regulating Prostitution
Samuel Lee and Petra Persson (New York University (NYU) - Leonard N. Stern School of Business and Columbia University) have posted Human Trafficking and Regulating Prostitution on SSRN. Here is the abstract:
This paper studies how prostitution laws affect trafficking and voluntary prostitution. Neither legalization nor criminalization can simultaneously protect voluntary prostitutes and unambiguously reduce trafficking. We propose an alternative, 'hybrid' policy that combines legal, strictly regulated brothels with severe criminal penalties for johns who buy sex outside of them. This achieves both objectives, restoring the free market outcome that arises in the absence of trafficking. If a regulator wants to eradicate all prostitution instead, the optimal policy criminalizes all johns. Criminalizing prostitutes is undesirable: It penalizes victims and fails to eradicate trafficking. We discuss cross-border trafficking, sex tourism, social norms, and the political will to enact prostitution laws.
Today's criminal law/procedure cert grant
Issue summary is from ScotusBlog, which also links to papers:
- Clapper, et al., v. Amnesty International, et al.: Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using 50 U.S.C. 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.