Tuesday, June 18, 2013
"Do You Have A Right to Remain Silent? Thoughts on the “Sleeper” Criminal Procedure Case of the Term, Salinas v. Texas"
This interesting post is by Orin Kerr at The Volokh Conspiracy. In part:
[I]t’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege. Recall that under the pre-1965 caselaw, a suspect only has a Fifth Amendment right against self-incrimination when 1) he asserts his right formally and 2) a failure to answer would subject him to punishment under the law. A judge then is called in to rule on the assertion, and the judge either rules that the suspect has to answer the question or not. Salinas deals with part (1); it tells us that the Fifth Amendment privilege in the pre-arrest questioning has to be asserted. But I wonder, why does that even matter given that the second requirement won’t be met? And why does it matter when a judge isn’t going to be called on to review the assertion of the privilege and the suspect isn’t going to be compelled to answer the question?
From The Los Angeles Times:
Theirs was a messy marriage that ended in divorce. Five years later, their rocky relationship rekindled, the Orange County couple flew to Europe for a romantic cruise.
But on the morning of May 26, 2006, Lonnie Kocontes reported his ex-wife Micki Kanesaki missing to ship authorities. Her body was found a day later in the sea off the Italian coast.
. . .
The fact that a crime committed half a world away is being tried in a U.S. court "isn't a common thing," said Senior Deputy Dist. Atty. Susan Price.
"The crime commenced in California and culminated" on the ship, Price said. "Researching the cruise in California, buying the ticket in California, having them sent to you in California ... driving to the airport. Those represent intent and are preparatory acts" that give prosecutors jurisdiction in the case.
From The New York Times:
Gen. Keith B. Alexander, the head of the National Security Agency, said on Tuesday that American surveillance had helped prevent “potential terrorist events over 50 times since 9/11,” including at least 10 “homeland-based threats.” But he said that a vast majority must remain secret to avoid disclosing sources and methods.
. . .
Mr. Joyce described a plot to blow up the New York Stock Exchange by a Kansas City man, whom the agency was able to identify because he was in contact with “an extremist” in Yemen who was under surveillance. Mr. Joyce also talked about a San Diego man who planned to send financial support to a terrorist group in Somalia, and who was identified because the N.S.A. flagged his phone number as suspicious through its database of all domestic phone call logs, which was brought to light by Mr. Snowden’s disclosures.
Frank Dobbin (Harvard University) has posted Review of J.C. Sharman, The Money Laundry: Regulating Criminal Finance in the Global Economy (2012 American Journal of Sociology 118(3):850-852) on SSRN. Here is the abstract:
Why have 180 countries around the world, including the tiny Pacific island nation of Nauru, with a population of 11,000, no financial institutions, 90% unemployment, and a national debt 16 times its GDP, adopted anti–money laundering policies? Why, when the world’s financial elites suspect that these policies are ineffective, and cost more in regulatory and compliance effort than they save by preventing money laundering, would so many countries jump on the bandwagon?
Bruce A. Green (Fordham University School of Law) has posted The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process 'Too Long, Too Expensive, and Unpredictable . . . In Pursuit of Perfect Justice'? (Duquesne University Law Review, Vol. 51, No. 735, 2013( on SSRN. Here is the abstract:
In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which . . . defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of Justice Scalia’s complaint.
Monday, June 17, 2013
John Martorano is a porpoise of a man inside a massive suit jacket. His face disappears into the fat of his neck. When he takes the stand today—tinted eyeglasses, polka-dot tie, pocket square—he tells us he is 72 years old, divorced, and unemployed. Also, he has murdered 20 people.
. . .
Shockingly, Martorano strolled into the courtroom today a free man. He confessed to those 20 murders, but his plea agreement got him sentenced to 14 years. He only ended up serving time from 1995 until 2007. It’s almost unfathomable that a coldblooded killer like this is walking the streets. The government was so consumed with nailing Whitey, it was willing to cut this monster a break.
Doug Berman at Sentencing Law & Policy has this post. In part:
The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendidoctrines, ranging from the prior-conviction exception ofAlmendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities. If Alleyne(which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term. (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)
Mar Jimeno-Bulnes (University of Burgos - Faculty of Law) has posted American Criminal Procedure in a European Context (Cardozo Journal of International and Comparative Law (JICL), Vol. 21, No. 2, 2013) on SSRN. Here is the abstract:
Research is focused on the field of comparative criminal procedure. Classical distinction between accusatorial and inquisitorial approaches, which are found in common law and civil law systems respectively are examinated. Inquisitorial criminal procedure, which is followed in continental Europe, has a pejorative connotation by contrast to accusatorial one.
Both inquisitorial and accusatorial models are seen as irreconcilable and as having conflicting characteristics. However, in practice, both models are not as different as the abstract descriptions suggest.
Sunday, June 16, 2013
Montré Denise Carodine (University of Alabama - School of Law) has posted 'Street Cred' (UC Davis Law Review, Vol. 46, 2013) on SSRN. Here is the abstract:
The killing of unarmed teen Trayvon Martin by a neighborhood watch captain and the purported lackadaisical response to that killing by the Sanford, Florida Police Department riveted the country and sparked an important conversation regarding the breakdown of the relationship between the police and the communities that they serve. Regardless of one’s opinion on what happened the night that Martin was killed, it is undeniable that this entire case has jeopardized the already fragile relationship between law enforcement and not only the Sanford community, but communities across the nation. This Essay considers the effect of the dysfunctional relationship between the police and the communities that they serve on the perceived reliability of the evidence that police provide in our criminal justice system on a daily basis.
Michael Frakes (pictured) and Matthew C. Harding (Cornell University - Law School and Stanford University - Department of Economics) have posted The Extensive and Intensive Impacts of Criminal Law on the Incidence of Crime: Evidence from Expansions in the Scope and Severity of Statutory Rape Laws on SSRN. Here is the abstract:
We explore the deterrent impacts of statutory rape laws, drawing on substantial within-state variation in criminal statutes over time. Our analysis facilitates an evaluation of both the impact of initially criminalizing previously permissible activities — a largely unexplored margin — and the subsequent impact of severity enhancements. We proxy the targeted behavior using live birth rates among mothers of different ages. Using a novel methodological framework designed to codify multi-faceted legal structures, our results are consistent with a deterrent impact of statutory rape laws, though one arising predominantly from the initial incidence of an operable felony statute itself.
|1||379||Background Checks and Murder Rates
Clayton E. Cramer,
College of Western Idaho,
Date posted to database: April 12, 2013 [2nd last week]
|2||219||Discovery and Darkness: The Information Deficit in Criminal Disputes
University of Wisconsin Law School,
Date posted to database: May 9, 2013 [4th last week]
|3||178||Federal Public Defense in an Age of Inquisition
Federal Defenders of New York,
Date posted to database: May 2, 2013 [5th last week]
|4||165||Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal
John D. Ciorciari, Anne Heindel,
University of Michigan - Gerald R. Ford School of Public Policy, Documentation Center of Cambodia,
Date posted to database: May 26, 2013 [new to top ten]
|5||160||Effective Plea Bargaining Counsel
American University, Washington College of Law,
Date posted to database: April 20, 2013 [6th last week]
|6||131||Crime in Cyberspace: Offenders and the Role of Organized Crime Groups
Peter Grabosky, Roderic Broadhurst, Brigitte Bouhours, Mamoun Alazab,Steve Chon, Chen Da,
Australian National University (ANU), Australian National University (ANU) - Research School of Social Sciences (RSSS), Australian National University, Australian National University (ANU), Australian National University Cybercrime Observatory (ANU) - Regulatory Institutions Network (RegNet) , Australian National University (ANU) - School of Regulation, Justice and Diplomacy,
Date posted to database: February 4, 2013 [7th last week]
|7||109||Rape Law in India: Problems in Prosecution Due to Loopholes in the Law
Amity Law School,Delhi(IP University),
Date posted to database: April 15, 2013 [8th last week]
|8||109||Transplant Tourism: The Ethics and Regulation of International Markets for Organs
I. Glenn Cohen,
Harvard Law School,
Date posted to database: April 22, 2013 [9th last week]
|9||108||Implicit Racial Bias in Public Defender Triage
L. Song Richardson, Phillip Atiba Goff,
University of Iowa - College of Law, UCLA Department of Psychology,
Date posted to database: May 3, 2013 [10th last week]
|10||96||Foreign Official Immunity: Invocation, Purpose, and Exceptions
Ingrid B. Wuerth,
Vanderbilt University - Law School,
Date posted to database: April 23, 2013 [new to top ten]