June 2, 2012
Baker & Zhao on Sexual Infidelity and Loss of Control
Dennis J. Baker and Lucy Zhao (King's College London - School of Law and University of Sheffield) have posted Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity (Journal of Criminal Law, Vol. 76, pp. 254, 2012) on SSRN. Here is the abstract:
This article considers the decision of the Court of Appeal in R v Clinton  EWCA Crim 2,  1 Cr App R 26 where Lord Judge CJ speaking for the Court of Appeal held that sexual infidelity could be considered under the third prong of the new partial defence of loss of control, even though it is expressly excluded under the second prong. We argue that sexual infidelity is excluded from being considered under all the prongs of the new defence. It is expressly excluded as a form of qualifying provocation, which means it cannot be considered as a ‘circumstance’ that might prevent a person of D’s sex and age with a normal degree of tolerance and self-restraint from killing. The objective tests in the new defence overlap, because the jury already has objective self-restraint in mind when it is considering the objectiveness of the provocation. When the jury is considering whether a normal person would have been provoked by the victim’s conduct, it is also considering whether a normal person would have exercised self-restraint. Conceptually, these are two aspects of a single broader question: Was it reasonable for the defendant to lose control? Therefore, the jury cannot consider whether sexual infidelity prevented a person of a normal degree of tolerance from exercising control, even if it is a circumstance that relates to some other qualifying trigger. Where sexual infidelity is a (major) contributory trigger for the loss of control, it should not be considered under any of the prongs of the defence. If D has been taunted about his impotence in circumstances where he is enraged by his wife’s sexual infidelity, the defence will only be made out if the jury accepts that the taunts about the impotence constituted objective provocation on their own, and that the taunts about the impotence per se might have prevented a person of normal control and tolerance from exercising self-restraint. The sexual infidelity would have to be compartmentalised, so that the jury would not be influenced by it.
June 1, 2012
"Another High-Profile Failure for a Justice Dept. Watchdog"
From the New York Times:
WASHINGTON — A judge’s declaration of a mistrial on Thursday in the John Edwards campaign finance case was a new setback for the Justice Department’s public integrity section, a once-vaunted watchdog that has been trying to rebuild itself after its botched prosecution of Senator Ted Stevens four years ago.
. . .
The unit’s performance has been faulted by nonprofit groups that seek to limit the influence of money in politics. Melanie Sloan, director of the Citizens for Responsibility and Ethics in Washington, said the Justice Department deserved “to get slammed” for what she portrayed as undertaking a risky prosecution against Mr. Edwards that relied upon a novel interpretation of campaign finance laws, even as it shied away from more traditional corruption cases.
. . .
Daniel Richman, a former federal prosecutor who teaches criminal law at Columbia University, said that the mixed record of the public integrity section — from the cases it did not bring to the decision to prosecute Mr. Edwards — cannot be fairly evaluated without taking into account the additional legal challenges that traditional corruption prosecutions now face.
Shay & Strader on Queer (In)Justice
Giovanna Shay (pictured) and J. Kelly Strader (Western New England University School of Law and Southwestern Law School) have posted Queer (In)Justice: Mapping New Gay (Scholarly) Agendas (Journal of Criminal Law and Criminology, Vol. 102, p. 171, 2012) on SSRN. Here is the abstract:
The 2011 book Queer (In)Justice surveys involvement of sexual minorities in all phases of the what the authors term the "criminal legal system." It examines the treatment of LGBTQ people as criminal defendants, victims, and prisoners. Queer (In)Justice moves beyond the typical focus of gay rights activists and scholars in the criminal law area to address the everyday treatment of LGBTQ people by police, prosecutors, courts, and corrections authorities. Relying heavily on prison abolitionist movement thinking, the book calls into question reliance on criminal punishment as a means of combating violence against LGBTQ people. Although largely anecdotal, and sometimes over-heated in its rhetoric, Queer (In)Justice succeeds in constructing a compelling narrative and mapping out largely uncharted territory. This Review provides an overview and critique of Queer (In)Justice, situating the book within current legal scholarship. The Review then suggests topics for further research in this developing area, taking account of recent developments in the LGBTQ rights movement.
May 31, 2012
"Broad Definitions of Terrorism Will Continue to be Struck Down"
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.
"For Edwards, Mistrial on 5 of 6 Counts"
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.
Clancy on the Fourth Amendment's Exclusionary Rule as a Constitutional Right
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.
In this essay, I make several additional points. First, there are no articulate proponents on the current Court who embrace Weeks’s view that the rule is constitutionally based. Also, the evolution of the basis of the rule in the states is particularly convoluted, based on the influence of Supreme Court developments over the decades. However, in reaction to the high Court’s rejection of a constitutional basis for the rule in recent decades, there have developed some spokespersons for the Weeks rationale – albeit grounding that view on independent state constitutional grounds. Finally, although we are reaching the nadir in the current United States Supreme Court regarding the justification for – and application of – the exclusionary rule, it may simply be another moment in time.
May 30, 2012
The expansion of criminal harrassment prohibitions
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.
"Public-Place Laws Tighten Rein on Sex Offenders"
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.
"George Zimmerman: The Most Likely Scenario"
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.
"Judge Defends Sentence Imposed on Ex-Rutgers Student"
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.
Jacobs & Cooperman on a National Corrections College
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.
This article reprises Chief Justice Burger’s proposal, calling for the establishment of a National Corrections College that would be the nation’s “brain center” for correctional research, curriculum development, and leadership training. As Justice Burger observed three decades ago, an investment in a full-fledged national-level correctional training and research center would “cost less in the long run” than the failure to make such investment.
May 29, 2012
"Shots Fired, Pinpointed and Argued Over"
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.
Dervan on Internal Invevestigations and International White Collar Crime
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.
Per curiam reversal of 3rd Circuit's insufficiency of evidence finding in habeas case
The case is Coleman v. Johnson.
May 27, 2012
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