CrimProf Blog

Do Federal Judges Question NYPD Credibility in Suppression Cases?

From the N.Y. Times: After listening carefully to the two policemen, the judge had a problem: He did not believe them.

The officers, who had stopped a man in the Bronx and found a .22-caliber pistol in his fanny pack, testified that they had several reasons to search him: He was loitering, sweating nervously and had a bulge under his jacket.

But the judge, John E. Sprizzo of United States District Court in Manhattan, concluded that the police had simply reached into the pack without cause, found the gun, then “tailored” testimony to justify the illegal search. “You can’t have open season on searches,” said Judge Sprizzo, who refused to allow the gun as evidence, prompting prosecutors to drop the case last May.

Yet for all his disapproval of what the police had done, the judge said he hated to make negative rulings about officers’ credibility. “I don’t like to jeopardize their career and all the rest of it,” he said.

He need not have worried. The Police Department never learned of his criticism, and the officers — like many others whose word has been called into question — faced no disciplinary action or inquiry.

Over the last six years, the police and prosecutors have cooperated in a broad effort that allows convicted felons found with a firearm to be tried in federal court, where sentences are much harsher than in state court. Officials say the initiative has taken hundreds of armed criminals off the street, mostly in the Bronx and Brooklyn, and turned some into informers who have helped solve more serious crimes.

But a closer look at those prosecutions reveals something that has not been trumpeted: more than 20 cases in which judges found police officers’ testimony to be unreliable, inconsistent, twisting the truth, or just plain false. The judges’ language was often withering: “patently incredible,” “riddled with exaggerations,” “unworthy of belief.”

***

Full article here. [Brooks Holland]

9th Circuit Upholds Dismissal Sanction for Brady Violation

From Law.com: Roundly denouncing a Las Vegas federal prosecutor for withholding 650 pages of evidence potentially helpful to two lawyers charged in a stock fraud case, the 9th U.S. Circuit Court of Appeals upheld dismissal of all 64 charges and refused to allow a retrial.

"This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available," wrote Judge Kim Wardlaw.

The panel found the Nevada U.S. Attorney's Office violated the constitutional obligation to turn over potentially exculpatory information to the defense under Brady v. Maryland, 373 U.S. 83 (1963).

Five men, including attorneys Daniel Chapman and Sean Flanagan, were charged in 2003 in a 64-count indictment of a complex securities trading scheme called a "box job," in which a small group secretly control corporate shares and manipulate stock through straw officers and shareholders, according to the opinion in U.S. v. Chapman, 2008 WL 1946744.

The government alleged that the defendants made $12 million, which was allegedly laundered through Flanagan and Chapman's law firm and various corporations.

Assistant U.S. Attorney J. Greg Damm, identified in court records as the trial attorney, assured the defense and the trial judge that he had turned over all documents. But one day before trial in 2006, he announced that the case agent, who was not on the witness list, would testify. None of his statements, memos or notes had been disclosed to the defense.

When the trial judge demanded proof the records were given to the defense, Damm said he could not verify the claim and kept no log of the 400,000 pages of discovery given to the defense.

"We are disappointed with the appellate court's decision," said Natalie Collins, spokeswoman for Nevada U.S. Attorney Greg Brower.

She said her office reported the matter to the Justice Department's Office of Professional Responsibility upon dismissal. "OPR's investigation concluded that the U.S. Attorney's Office did not engage in any intentional misconduct," she said.

The 650 missing pages ultimately included rap sheets, plea agreements and cooperation agreements with witnesses, said C. Stanley Hunterton of Hunterton & Associates in Las Vegas, an attorney for Chapman. He said he was not contacted by the OPR about the investigation.

U.S. District Judge James Mahan dismissed the charges in 2006, saying it was impossible to go on with the trial based on the withheld information.

"There never was an explanation by the government about why the documents were not turned over when the court ordered it," said James L. Sanders of McDermott Will & Emory's Los Angeles office, who represents Flanagan.

[Brooks Holland]

Internet Crime Growing

From SFGate.com: Criminal attacks against major Web sites have grown so common that Internet users have no reliable way to know which sites are safe to visit, no matter how well known those destinations are, security experts say.

News of the latest attack comes from Finjan, an Israeli security firm, which is reporting today that last month it found a large cache of information - including confidential medical records, financial records and business e-mails - sitting unprotected on a computer network server in Malaysia.

The data came from more than 40 major financial companies around the world, including the United States, and was stolen from computers belonging to doctors and home users conducting online banking and, in some cases, from machines inside corporate networks that the hackers managed to penetrate and infect. Finjan has notified the companies, which it declined to identify, as well as law enforcement agencies in several countries.

Included in the stolen information were medical diagnoses and insurance details, Social Security numbers, the recorded keyboard strokes of online shopping sessions and e-mails from businesses discussing an impending court case.

The largest banks "were not surprised we found this data," said Yuval Ben-Itzhak, Finjan's chief technology officer. "The second-tier banks were surprised and thanked us very much. Other businesses were also very appreciative - overall, we had a very positive response."

At any moment, thousands of sites are sitting on the Web hosting malicious software code designed to try to steal information, said Mary Landesman, a researcher at ScanSafe, a Web security provider in San Mateo.

The numbers are staggering - in April, Yahoo Inc. detected 7.8 billion links served up by search engines that led to compromised sites. In statistics collected by hackers, who were tracking an attack of their own that was discovered last year by Finjan, 500,000 computers had been infected.

Many of these attacks are invisible to computer users - there are no clues in the appearance of a Web site that you are being redirected to a compromised site.

Full article here. [Brooks Holland]

Wave of New Execution Dates Set

From the New York Times: HUNTSVILLE, Tex. — Here in the nation’s leading death-penalty state, and some of the 35 others with capital punishment, execution dockets are quickly filling up.

Less than three weeks after a United States Supreme Court ruling ended a seven-month moratorium on lethal injections, at least 14 execution dates have been set in six states between May 6 and October.

“The Supreme Court essentially blessed their way of doing things,” said Douglas A. Berman, a professor of law and a sentencing expert at Ohio State University. “So in some sense, they’re back from vacation and ready to go to work.”

Experts say the resumption of executions is likely to throw a strong new spotlight on the divisive national — and international — issue of capital punishment.

“When people confront a new wave of executions, they’ll be questioning not only how people are executed but whether people should be executed,” said James R. Acker, a historian of the death penalty and a criminal justice professor at the State University at Albany.

Texas leads the list with five people now set to die here in the Walls Unit, the state’s death house, between June 3 and Aug. 20. Virginia is next with four. Louisiana, Oklahoma and South Dakota have also set execution dates.

Some welcome the end of the moratorium.

“We’ll start playing a little bit of catch-up,” said William R. Hubbarth, a spokesman for Justice for All, a victims rights group based in Houston.

Read full article here. [Brooks Holland]

Federal Court Upholds College Aid Restrictions for Drug Offenders

From The School Law Blog: A federal appeals court has rejected a constitutional challenge to a federal law that restricts, and in some cases bars, students with drug convictions from participation in federal college aid programs.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled in Students for Sensible Drug Policy Foundation v. Spellings that the controversial sanctions do not violate the double-jeopardy clause of the 5th Amendment.

Read full article here. Sentencing Law & Policy post here. [Brooks Holland]

New Study on the Death Penalty & Race

From the New York Times: About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions. Indeed, Harris County has sent more people to the death chamber than any state but Texas itself.

Yet Harris County’s capital justice system has not been the subject of intensive research — until now. A new study to be published in The Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.

It has never been conclusively proven that, all else being equal, blacks are more likely to be sentenced to death than whites in the three decades since the Supreme Court reinstated the death penalty in 1976. Many experts, including some opposed to the death penalty, have said that evidence of that sort of direct discrimination is spotty and equivocal.

But the author of the new study, Scott Phillips, a professor of sociology and criminology at the University of Denver, found a robust relationship between race and the likelihood of being sentenced to death even after the race of the victim and other factors were held constant.

Read Full article here. [Brooks Holland]

Wesley Snipes Sentenced to 3 Years in Prison

From the New York Times: The actor Wesley Snipes was sentenced to a maximum of three years in federal prison on Thursday for three misdemeanor convictions of failure to file his income taxes.

Mr. Snipes was also sentenced to one year of supervised release. He remained free Thursday, and will be notified later when he should report to prison.

His lawyer requested a facility not too far from his family’s home in New Jersey, and the judge said he would recommend that.

Mr. Snipes was convicted by a federal jury on Feb. 1 on three of the lesser charges that he faced and was acquitted on the most serious charges.

The case was the most prominent tax prosecution since the billionaire hotelier Leona Helmsley was convicted of tax fraud in 1989. Mr. Snipes, who has built a worldwide following acting in films like the “Blade” vampire trilogy, had become an unlikely public face for the tax denier movement, whose members maintain that Americans are not obligated to pay income taxes and that the government extracts taxes from its citizens illegally.

Tax deniers assert variously that the tax laws are valid but do not apply to them, that no law makes anyone liable for taxes and that the government tricks people into paying. Promoters of tax denial claim that people can legally stop paying income taxes by executing certain documents, or by not signing others, like tax returns. Courts have rejected all these arguments.

Thursday, after a day-long hearing, Federal District Judge William Terrell Hodges talked of the importance of deterrence in tax cases and noted that, despite Mr. Snipes’ apology in court, he had a years-long record of defying the tax laws.

No fine was imposed. The judge left that to the civil process.

Read the full article here.

Professor Douglas Berman has blogged on the Snipes case in detail. See e.g., here and here.
[Brooks Holland]

Arzona Justice Project Moves to Sandra Day O'Connor Law School

The Arizona Justice Project, a non-profit organization dedicated to exonerating those wrongfully convicted and correcting other manifest injustices, is moving to the Sandra Day O'Connor College of Law at Arizona State University. For 10 years, the Project has been housed at Osborn Maledon, P.A., where attorney Larry Hammond has served as chair.

The move is made possible by a $150,000 grant from the Arizona State Bar's non-profit foundation, the Arizona Foundation for Legal Services and Education, which also will allow the Project to hire its first permanent staff, including an executive director, a development director and an administrative assistant.

"The Arizona Justice Project has long set a high standard for the quality of its work in its pursuit of the rights of those who have been denied the justice our legal system has been set up to guarantee," said Dean Patricia White of the College of Law. "The quality of the legal work its volunteers have provided, and the enormous commitment to justice that they have shown, have made it a national exemplar.

"We are very proud to welcome the Project to the Sandra Day O'Connor College of Law and are confident that those standards will continue and that our students and faculty will benefit enormously from the opportunity presented by its being here." Hammond praised the move.

"The Arizona law schools have been the lifeblood of this Project from the beginning, but this relocation will allow us to work at levels never before possible," Hammond said. "Arizona Attorneys for Criminal Justice (AACJ) and all of those who have volunteered with the Project over the last decade owe a tremendous debt of gratitude to Dean White, the Sandra Day O'Connor College of Law, and to the Bar Foundation's leadership."

Professors Bob Bartels at Arizona State University and Andy Silverman at the University of Arizona have coordinated work at the law schools. Students from Phoenix School of Law also will participate.

"The project runs on volunteer work, and the best source is law students," Bartels said. "Moving to the law school will make it easier for the students and will forge a connection with faculty members who are experts in the area." Bartels said it is also more feasible for the Project to conduct its research in an academic environment.

CrimProf Carrie Sperling, a visiting associate clinical professor at the College of Law, has been chosen as executive director. Sperling spent five years as an assistant professor at the University of Oklahoma College of Law in Norman, Okla., and has more than a decade of experience in civil rights and post-conviction relief litigation.

"You learn that mistakes can be made, innocent people convicted," Sperling said. "Someone has to hold the system accountable. My real excitement is the ability to bring in students to get hands-on experience in the real world. It exposes them to a side of the law they might not have thought about. And these are rewarding cases." [Mark Godsey]

Crack Convicts Could Be Released

From cnn.com: New sentencing guidelines were expected to lead Monday to the early release of more than a dozen federal inmates convicted on crack-cocaine charges.

Approximately 1,600 federal inmates are currently eligible to ask a court to reduce their sentences because of December's decision by a federal agency to make retroactive reduced sentences for some crack-cocaine related convictions.

The decision was based on the stark difference in terms handed out for crack convictions versus those convicted on charges for powder cocaine.

Judges could reduce sentences for nearly 20,000 inmates following the decision by the U.S. Sentencing Commission -- an independent federal agency that advises all three branches of government on sentences. Advocates of the sentence reduction say it is only fair, but the Justice Department counters and says that the move will allow dangerous criminals back on the street.

The Justice Department is concerned "that so many people would be released all at once -- people who have shown that they are repeat offenders, and without the possibility of any kind of transition or re-entry program to bring them from prison back to the streets," Deborah Rhodes, an associate deputy attorney general, told CNN.

But lawyers and groups that have been pushing for the change in sentencing disagree. They say that most of these prisoners are not hardened criminals, and that judges will have to approve any reduction on a case-by-case basis and will not grant an early release to those considered dangerous.

"Judges have a lot of discretion," Virginia public defender Michael Nachmanoff told CNN. His office filed 16 motions for early release and expects at least four of his clients to be set free Monday, with some others going to halfway houses. Rest of Article. . . [Mark Godsey]

FBI Attempts to Develop a Voice Fingerprint

From NPR.org:  The FBI is trying to develop a system that could make your voice as unique and recognizable as your fingerprint. Although not yet at its peak potential, the technology currently helps investigators with tasks such as verifying Osama bin Laden videos and locating gunshots.

Running an audio clip of someone's voice through the system, called FASR, prompts bright squiggly lines to rise and fall. Each voice is quite distinct. While the pattern isn't as definitive as DNA, the FBI says, FASR gets pretty close.

When a new Osama bin Laden audio or video tape pops up on the Internet, the forensic analysts at the FBI Audio Lab in Quantico, Va., process the voice through this system. The results allow them report whether the tape is authentic.

It doesn't matter what language is being spoken, Steven Lanser who heads up the FBI audio team says. Regardless of whether one is speaking Arabic, Urdu or English, a voice follows a particular pattern.

Rest of Article. . . [Mark Godsey]

O.J. Simpson and the Claim of Right Defense

OJ does seem to have taken personal property by force or fear, implicating NRS 200.380, the robbery statute.  However, he evidently asserts that he was engaging in a sting operation to obtain the return of his stolen memorabilia-- a claim of right to the property he took.  Is that a defense?  Well, it is at common law (see 88 A.L.R.3d 1309 (1978)) As the California Supreme Court said in People v. Tufunga, 987 P.2d 168 (1999): "The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery. At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate the animus furandi, or intent to steal, of that offense. (See 4 Blackstone, Commentaries 230 (Blackstone).) Since robbery was viewed as an aggravated form of larceny, it was likewise subject to the same claim-of-right defense. (Id. at pp. 241-243.)"  However, for obvious reasons, not all jurisdictions continue to follow the common law rule.

Too bad for OJ that he is not in California; a quick search did not reveal to me on which side of the split  Nevada falls.  But parts, at least, of the Nevada criminal code were based on California's statutes, and therefore the California authority may be persuasive. Kramer v. State, 60 Nev. 262, 108 P.2d 304 (1940).

Jack Chin

OSJCL is Now Available

The new issue of the Ohio State Journal of Criminal Law is now available online. 

The symposium for the issue, "Mercy and Clemency," was guest edited by Professor Stephen Garvey (Cornell), and includes articles by Stephanos Bibas, David Dolinko, R.A. Duff, Stephen Garvey, Heidi Hurd, Jeffrie Murphy, Mary Sigler, and John Tasiolas.

Also in this issue:

• Judge Nancy Gertner, From Omnipotence to Impotence: American Judges and Sentencing.
• An article by a current law student and parolee (James Binnall) commenting on the Supreme Court's recent Fourth Amendment Samson decision, which authorized suspicionless searches of parolees.
• Professor Joan Krause's critique of an earlier Commentary by Joshua Dressler, on battered women.
• Professor Dan Markel's critique of Professor Wayne Logan's University of Pennsylvania Law Review article, Horizontal Federalism in the Age of Criminal Justice Interconnectedness,  followed by a reply by Professor Logan.
• Sociology professor Theresa Severance's intriguing description of her jury duty experience in a capital case (Practicing What I Preach: A Professor in the Venire).
• Professor Christopher Slobogin's provocative essay, The Liberal Assault on the Fourth Amendment.
• and Professor Thomas Davies's review (An Account of Mapp v. Ohio That Misses the Larger Exclusionary Rule Story) of Carolyn Long's book, Mapp v. Ohio: Guarding Against Unreasonable Searches and Seizures. [Mark Godsey]

New Criminal Law Review Journal

University of California Press Journals + Digital Publishing is proud to announce that commencing with Volume 10, Issue 1, it will assume publication of New Criminal Law Review: An International and Interdisciplinary Journal. The journal, formerly known as Buffalo Criminal Law Review, is focused on examinations of crime and punishment in domestic, transnational, and international contexts. New Criminal Law Review provides timely, innovative commentary and in-depth scholarly analyses on a wide range of criminal law topics. The journal will move to a quarterly publication schedule and will release issues in January, April, July and October.

"The New Criminal Law Review picks up where the Buffalo Criminal Law Review left off, by providing an international and interdisciplinary outlet for cutting-edge scholarship on issues related to criminal law and state punishment, featuring a mix of articles, essays, commentaries, and book reviews, along with symposium issues on topics of theoretical and practical importance."  More Info. . . [Mark Godsey]

9th Cir: Willful Ignorance of Crime = Knowledge

Yesterday, the 9th Circuit published an opinion allowing juries to be instructed that a defendant's willful ignorance of a crime amounts to knowledge of the crime.  In other words, if a defendant claims she didn't know she was committing a crime, but she probably should have known, her state of mind is akin to knowlege.  Needless to say, defense attorneys take issue with the ruling.

In his opinion for a 15 member en banc panel, Judge Alex Kozinski said, he wanted to "clear away the underbrush"..."of narrow, heavily fact-dependant and at times contradictory opinions that have been difficult for both judges and litigants to navigate" regarding when "knowledge" exists.  Ten of the fifteen members of the panel agreed that trial judges should have broad discretion in instructing a jury that a defendant's willful ignorance amounted to knowledge of criminal activity.

The majority opinion came in the case of Carmen Heredia, caught driving her aunt's car from Mexico into Arizona with about 350 pounds of pot in the trunk. Heredia said she hadn't known about the drugs, though she admitted she'd been suspicious of the overwhelming smell of fabric softener--and of her aunt's explanation that she'd spilled some in the car. U.S. District Judge John Roll of Arizona gave the jury a "Jewell instruction," telling them that if Heredia had intentionally ignored criminal conduct, they could decide she'd had knowledge of it.  Story from The Recorder at Law.com. . . [Michele Berry]

Debate of Criminalizing Dumping Homeless Patients

From latimes.com: Despite the public outrage over the dumping of homeless patients on Los Angeles' skid row, there is growing debate about whether criminalizing the practice would solve the problem.

As the number of suspected dumping cases reached 55 last week, a state senator announced legislation that would make it a misdemeanor for hospitals to transport patients and leave them on the streets against their will.

But some legal experts question whether the law could be effective without a parallel effort to provide more shelter and services for chronically ill homeless patients who are well enough to leave the hospital but have no place for continuing medical services.

There are only about 40 "recuperative beds" available in L.A. for homeless people who need medical attention after being discharged from hospitals, officials said, and there is general agreement that's not enough. The proposed law, legal experts say, might be vulnerable, because it seems to make hospitals alone responsible for finding care for these patients.

"It is more complicated than it first appears," said Russ Korobkin, a UCLA law professor who teaches health law. "Requiring hospitals to be responsible for the patients and not leave them in the gutter is a first step. But you've got to have a second step of providing some government-funded beds for recovery."

Otherwise, he and others said, the law essentially creates an "unfunded mandate" — which could be challenged in court — that hospitals must not only treat the sick but also find housing for them upon their release. Rest of Article. . . [Mark Godsey]

FLA considers Attacks on Homeless as Hate Crime

Story... [Mark Godsey]

L.A. City Council Passes Lost Gun Report Ordinance

From LATimes.com: In an attempt to prevent gun sales to criminals, the Los Angeles City Council approved an ordinance Wednesday that requires residents report the loss or theft of their guns to police within 48 hours.

The ordinance, which goes into effect next month, also requires anyone who had a gun stolen or lost in the last five years to report the loss. Mayor Antonio Villaraigosa's press office said he supports the measure and would allow it to become law.

Residents who fail to report a loss of their weapon face a misdemeanor charge and up to one year in jail. The ordinance applies to all guns, including rifles and shotguns.

Rest of Article. . . [Mark Godsey]

New Law Curtails Habeas Corpus

From LATimes.com: The military tribunals bill signed by President Bush on Tuesday marks the first time the right of habeas corpus has been curtailed by law for millions of people in the United States.

Although debate focused on trials at Guantanamo Bay, the new law also takes away from noncitizens in the U.S. — including more than 12 million permanent residents — the right to go to court if they are declared "unlawful enemy combatants."

Before Tuesday, the principle of habeas corpus meant that anyone thrown into jail in the U.S. had a right to ask a judge for a hearing. They also had a right to go free if the government could not show a legal basis for holding them. The Latin term for "you have the body," habeas corpus is considered one of an accused person's most basic rights. Rest of Article. . . [Mark Godsey]

L.A. City Council Approved Gun Loss Report Ordinance

From LATimes: In an attempt to prevent gun sales to criminals, the Los Angeles City Council approved an ordinance Wednesday that requires residents report the loss or theft of their guns to police within 48 hours.

The ordinance, which goes into effect next month, also requires anyone who had a gun stolen or lost in the last five years to report the loss. Mayor Antonio Villaraigosa's press office said he supports the measure and would allow it to become law.

Residents who fail to report a loss of their weapon face a misdemeanor charge and up to one year in jail. The ordinance applies to all guns, including rifles and shotguns.

Rest of Article. . . [Mark Godsey]

Need a Gun?. . . Go to Washington State

From seattletimes.com: Washington is one of the more liberal states in the country when it comes to regulating citizens who want to carry a concealed weapon, experts say. The law, often referred to as a "shall issue" law, requires law-enforcement agencies to issue a concealed-weapons permit to all citizens who meet a specific list of requirements.

To carry a concealed pistol in Washington, applicants must be at least 21 years old, have no outstanding warrants, no felony convictions and no conviction or pending trial or sentence for fourth-degree assault, coercion, stalking, second-degree reckless endangerment, first-degree criminal trespass or violation of a protective order against a family member. The permit covers concealed handguns.

Though some states require that applicants complete training to carry a concealed pistol on themselves or in a car, Washington state has no such regulations. There is a background check, and licenses must be renewed after five years. Rest of Article. . . [Mark Godsey]

"Sweetheart Swindler" Charged With Hate Crime

An 18 year-old woman who flirted with elderly men in grocery stores and charmed them into giving her access to their bank accounts, etc., has been charged with a hate crime for choosing her fraud victims on the basis of age.  [Mark Godsey]

New OH Rule: Sexual Offenders can be Publicly Identified w/o Being Charged With a Crime

From toledoblade.com: An Ohio legislative panel yesterday rubber-stamped an unprecedented process that would allow sex offenders to be publicly identified and tracked even if they've never been charged with a crime.

A recently enacted law allows county prosecutors, the state attorney general, or, as a last resort, alleged victims to ask judges to civilly declare someone to be a sex offender even when there has been no criminal verdict or successful lawsuit.

The rules spell out how the untried process would work. It would largely treat a person placed on the civil registry the same way a convicted sex offender is treated under Ohio's so-called Megan's Law.

The person's name, address, and photograph would be placed on a new Internet database and the person would be subjected to the same registration and community notification requirements and restrictions on where he could live.

A civilly declared offender, however, could petition the court to have the person's name removed from the new list after six years if there have been no new problems and the judge believes the person is unlikely to abuse again. Rest of Article. . . [Mark Godsey]

Attorney Stabs Man He Suspected of Child Molestation: Case Raises Questions of EED Success

From Law.com: Last week's arrest of a Connecticut lawyer in the fatal stabbing of a neighbor he allegedly believed had sexually assaulted his 2-year-old daughter has captured the attention of the state's legal community, which has seen several of its members convicted of theft and embezzlement, but few for crimes of passion.

In the days after Fairfield patent attorney Jonathon Edington's Aug. 28 arrest in the slaying of Barry James, the intrigue over the alleged murder turned to questions over Edington's possible defense strategy. To M. Hatcher "Reese" Norris, of Butler Norris & Gold in Hartford, Edington's case is strongly reminiscent of one he had 14 years ago, where evidence of Extreme Emotional Disturbance convinced the prosecutor to let the defendant plead to manslaughter.

EED, a rarely successful statutory affirmative defense available only in murder cases, permits defendants to be found guilty of manslaughter if they can show that, at the time of the crime, they were so overwhelmed by a triggering event that they could not conform to the requirements of the law, New Haven Public Defender Thomas Ullmann explained. Successful EED defenses don't permit acquittals -- only a reduction to manslaughter.  Rest of Article. . . [Mark Godsey]

Court Overturns Mom's Conviction for Son's Suicide

NEW HAVEN, Connecticut (AP) -- The Connecticut Supreme Court on Monday overturned a mother's conviction on charges that she contributed to her 12-year-old son's suicide by creating an unsafe and unhealthy home.  Judith Scruggs of Meriden was convicted of risk of injury to a minor in 2003, a year and a half after her son, J. Daniel, hanged himself with a necktie in his closet.  Legal experts said it was thought to be the first time a parent had been convicted over a child's suicide.  Rest of article....

Crim Prof Doug Beloof Speaks Out About the Illusion of Criminal Victim Rights

Under Oregon's victims' rights laws, crime victims are allowed to attended to attend court appearances and speak -- but not legally challenge sentences.

"What you have is what I would call illusory rights," said Doug Beloof, a Lewis and Clark Law School professor and national expert on victims' rights. "For every right, there must be a remedy. In Oregon, these rights have not yet come into conformity with the traditional American civil rights model because there is no enforcement in the appellate courts."

Beloof said victims should be able to go to court if they believe their rights are violated. That would bring Oregon in line with several other states and a federal law that went into effect last year.

More. . . [Mark Godsey]

Prof Arrested for Destroying Anti-Abortion Crosses

Hindsight is 20-20, I guess, but this class project seems ill-concieved.  A prof at Northern Kentucky University urged her students to destroy a series of crosses placed on campus by a right to life group.   The students and faculty member did it, were arrested, and now face criminal charges.

NJ: Admission of Priest's Statement of Homosexuality Causes Reversal of Conviction

A priest, "Michael F.", convicted of abusing a youthful male parisoner, had his conviction reversed because his statement that he was struggling with homosexuality, made to the police att he time of his arrest, was admitted in his criminal trial. A three-judge panel of the Appellate Division concluded: "The admission of this statement injected into this case the specter of a jury deciding defendant's guilt on the unfounded association between homosexuality and pedophilia. Moreover, defendant's fear that the statement would be used to draw unwarranted conclusions was realized when the judge reminded the jury that defendant stated that he was homosexual."

Another interesting passage in a NJAD decision caught my eye: said the court: "In a brief, which was
unnecessarily lengthy, defendant advances ten errors allegedly committed by the trial court during defendant's Cape May County jury trial. The excessively wordy and repetitive 104 page "brief" made it more difficult for us to discern whether defendant was advancing any meritorious allegations. After our careful review of the record, however, we conclude that several errors were made that require reversal of defendant's conviction and a new trial."  Well, as a former law clerk I am sympathetic to the court's irritation with a prolix brief.  On the other hand, as a former appellate defender, I can't help but notice that the wordy and repetitive brief won; somehow the advocate caught the court's attention.  Counsel must have been doing something right. [Jack Chin]

FL: "Pumping Party" Conviction Reversed

A Florida man convicted of felony murder based on injecting store-bought silicone into people who wanted cut rate, amateur plastic surgery was convicted of murder when one "patient" died.  The Florida District Court of Appeals reversed the conviction, holding that a doctor's testimony that the silicone inections led to death was insufficient.  Story here, opinion here.

Dan Filler on the Right to Counsel

Here.   He explains why the Strickland v. Washington approach does not work in the context of the right to choose counsel.

Texas CrimProf Examines Abortion Law's Criminal Loophole

University of Texas CrimProf Samuel Buell wrote this article appearing in the LA Times on abortion law's criminal loophole.

The article reads, "What if the Supreme Court overrules Roe vs. Wade by allowing South Dakota's new abortion statute to pass constitutional review? Abortion, which has been governed in our time by constitutional law, again would be a matter of criminal law. The chief question would be: Who goes to prison?

South Dakota's legislators included this language in their new law: "Nothing in this act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty." If abortion is a crime, why excuse the woman from punishment?" Read more. . . [Mark Godsey]

Concurring Opinions on the Necessity Defense

The Concurring Opinions Blog has an interesting post here on a necessity defense case arising out of Katrina.

Online Federal Criminal Trial Manual

Here's something useful and free on line: Donald S. Voorhees; Genevra Kay Loveland, Manual on Recurring Problems in Criminal Trials (Fifth Edition 2001)  [Jack Chin, thanks to Tom Mauet]

US Army Officer Convicted of Negligent Homicide

Story here. [Jack Chin]

The Taking of Pelham BVD: They're Not Wearing Any Pants

A number of NY pranksters (their site here) were arrested for disorderly conduct in the midst of a pantsless subway ride.  Here's the statute: NY Penal Law § 240.20 Disorderly conduct . A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.  Disorderly conduct is a violation.

It is clearly not 1, 2, 3, 4, or 6.  There are no facts suggesting obstruction of pedestrian traffic (5).  The question, then, is the applicability of (7), a hazardous or offensive condition, without legitimate purpose.  If street mimes are legal (a big if), then street absurdist comedy should be also.  In any event, how is walking around in shorts hazardous or offensive?  From the photos what these people were wearing could be swim trunks or gym shorts, no naughtly bits showed.

Indeed, another provision of the Penal Law addresses indecent exposure, and it does not cover this.  Shouldn't that give rise to a "safe harbor"? See NY Penal Law Section 245.01: "A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment."

My prediction: If challenged, the case will be dismissed; skits and protests have not been held to constitute disorderly conduct in the absence of some specific interference with pedestrian traffic or something else that arguably fits into one of the categories.  People v. Losinger 63 Misc.2d 577, 313 N.Y.S.2d 60 (City Ct. 1970);  People v. Mehdi, 29 N.Y.2d 824, 277 N.E.2d 673 (N.Y. 1971).

I mean, for crying out loud, the idea that seeing someone walking around in shorts would alarm New Yorkers is preposterous. [Jack Chin]

Why aren't Websites Listing Escorts Guilty of Facilitation

Or some other crime?  This MSNBC story on rating and contact sites for "escorts" is on thin ice, I would think, yet operates openly.  There may be some special federal statute or something that protects internet site operators in this context, but it would seem to constitute facilitation. See, e.g., this North Dakota statute: "12.1-06-02. Criminal facilitation 1. A person is guilty of criminal facilitation if he knowingly provides substantial assistance to a person intending to commit a felony and that person, in fact, commits the crime contemplated, or a like or related felony, employing the assistance so provided. The ready lawful availability from others of the goods or services provided by a defendant is a factor to be considered in determining whether or not his assistance was substantial. This section does not apply to a person who is either expressly or by implication made not accountable by the statute defining the felony facilitated or related statutes." [Jack Chin]

Oregon Criminal Bench Book Available Online

Here.

Mom Helps Baby's Killer Go Free

When her infant son was murdered in his crib in 1991, Jennifer Watts couldn't believe that her boyfriend did it, even though no one else was in the house at the time.  She testified for him, and he was acquitted.  A few months ago, he confessed to the police, but double jeopardy prevents another trial.  Story here. [Jack Chin]

MA: state can Pull Plug on Future Murder Victim

A youg girl in a persistent vegetative state can be removed from life support, says the Massachusetts SJC.  That means that her stepfather, implicated in her death, might be subject to murder charges.  Story here, opinion here. [Jack Chin] Update: She's responding to stimuli; no plans to remove artificial feeding.

Court Grants Cert. on Duress Issue

Story here; 5th Circuit Opinion affirmance here.  According to SCOTUSBLOG, the court granted cert. on the burden of proof issue--does the government have to disprove the duress defense beyond a reasonable doubt, or does the defendant have to prove it to a preponderance? [Jack Chin]

CT: Skakel Conviction Affirmed

Story here, opinion here, concurrence here. [Jack Chin]

LA Crime Level Hits 50-Year Low

Story.....[Mark Godsey]

NY's Son of Sam Law Passes Constitutional Challenge

From New York Law Journal: "New York's Son of Sam Law, which gives crime victims the opportunity to recover damages from convicted perpetrators, passes constitutional muster, a state appeals court has ruled. The panel said the statute is civil in nature and that it was enacted to give victims an opportunity to obtain restitution, not to punish convicted criminals. In 1991, the U.S. Supreme Court overturned a previous version of the law as unconstitutional." Read More from Law.com. . . [Mark Godsey]

New York High Court Limits Depraved Murder Statute

From New York Law Journal: "In an opinion with the potential to alter dramatically the course of homicide prosecutions, the New York Court of Appeals has greatly restricted the scope of the depraved indifference murder statute. The opinion was drafted to ensure that prosecutors no longer routinely pursue alternate and mutually exclusive theories of intentional and depraved-mind murder. It made clear that the theory should not be used as a "fallback" for a jury unwilling or a prosecutor unable to establish an intentional act of murder." Read More. . . [Mark Godsey]

Garnett on Obscenity

Prawfsblawg's Rick Garnett blogs this decision on whether  obscentity prosecutions are still viable given Lawrence v. Texas. The Conglomerateblog has a link to a story on internet child porn; here's an MSNBC story about a crackdown on child prostitution. [Jack Chin]

TX: Mom's Conviction thrown Out

This is a textbook example of how miscarriages of justice occur.  A poor teen mom's baby dies.  It looks likely that the death was caused by a medical error.  But a biased medical examiner rules it murder (other cases done by this person have also been reversed).  A defense lawyer advises the mom to plead guilty so she will get probation; she gets 17 years.  The Texas Court of Criminal Appeals said that if the facts had been presented, likely a not guilty verdity would have been returned. Opinion here. [Jack Chin]

CO: Make My Day Law Acquittal

A Colorado man who shot an assailant who was in his car and driving away was acquitted by a Colorado jury under Colorado's "make my day law."  An author of the law said the outcome was wrong, that the law was designed to permit shooting assailants entering a home, not leaving.  Story here. [Jack Chin]

Columbia Students Charged With Felony Hate Crimes

For drawing swastikas in the dorms. [Jack Chin]

Murder by Perjury?

If one commits perjury in a capital case, and thereby causes the wrongful conviction of an innocent person, is the perjurer guilty of murder? Maybe, according to a Texas prosecutor, who is considering charging a witness who says he lied under police pressure.&nbs