CrimProf Blog

Constitution Project Study IDs Flaws in Public Defense System

The American legal system guarantees "equal justice under law." Those words, carved in stone on the facade of the Supreme Court, are a constitutional promise that everyone will have the same opportunity for justice.

But a new report by the bipartisan Constitution Project says the United States has broken that promise for poor people accused of crimes. The report is the most in-depth study of indigent defense in decades.

The Gideon Decision

In a hallway of a law firm in downtown Washington, a copy of a handwritten petition hangs framed on the wall. It's two pages, side by side. A stamp at the top says: "January 8, 1962, Office of the Clerk, Supreme Court." A signature at the bottom says, "Clarence Earl Gideon."

On Tuesday morning, Abe Krash stood looking at the petition, remembering a case that he worked on more than 45 years ago. "This eventually led to the opinion and decision by the Supreme Court in the Gideon case," he said.

Abe Krash was a young attorney on the case. It's now considered one of the most important decisions of the 20th century. As Krash describes it, the ruling "held that every person in this country who is tried on a criminal charge is entitled to the assistance of a lawyer, regardless of his financial condition. If he's too poor to hire a lawyer, he's entitled to have one appointed for him by the government."

The Gideon decision helped establish the system of public defenders across the country. Krash returned to his old law firm Tuesday for the release of the report on the state of that system.

'A Basic Constitutional Right'

"It does not paint a pretty picture," said Tim Lewis, one of the report's authors.

Read full article here. [Brooks Holland]

Death Row Inmate Offers Help to Victim's Family

From MSNBC.com: "COLUMBIA, S.C. - Monica Caison figured it was worth a shot, so she fired off a letter, a single paragraph, to the man on death row for kidnapping and killing Alice Donovan during a two-week, 2,300-mile crime spree.

“You say you want to do the right thing,” wrote Caison, the founder of a group that searches for missing people. “I’m here and I’m listening.”

She received Chadrick Fulks’ reply two months later: a map, color photos of the area where he says he left Donovan’s body six years ago, and instructions to look where searchers had not ventured before." Full Story from MSNBC.com... [Michele Berry]

Judge Rejects Obama's Request for Stay in Guantanamo Trial

From Law.com: "A military judge at Guantanamo on Thursday rejected a White House request to suspend a hearing for the alleged mastermind of the USS Cole bombing, creating an unexpected challenge for the administration as it reviews how America puts suspected terrorists on trial.

The judge, Army Col. James Pohl, said his decision was difficult but necessary to protect "the public interest in a speedy trial." The ruling came in the case against Abd al-Rahim al-Nashiri. The bombing of the Navy destroyer in 2000 in the harbor of Aden, Yemen, killed 17 U.S. sailors.

It seemed to take the Pentagon and White House by surprise.

"We just learned of the ruling ... and we are consulting with the Pentagon and the Department of Justice to explore our options in the case," said White Press secretary Robert Gibbs, adding that he doubted the decision would hamper the administration's ability to decide how to move forward from Guantanamo." Full Story from Law.com... [Michele Berry]

Defendant Invokes Morning Constitutional to Obtain New Trial Lawyer

A mistrial was declared Monday when a home-invasion robbery suspect smeared human feces on his attorney's face then threw more at the jury.

Weusi McGowan, 37, was upset because San Diego Superior Court Judge Jeffrey Fraser refused to remove Deputy Alternate Public Defender Jeffrey Martin from the case, prosecutor Christopher Lawson said.

At the mid-morning break, McGowan produced a plastic baggie filled with fecal matter and spread it on Martin's hair and face, then flung the excrement toward the jury box, hitting the briefcase of juror No. 9 but missing the juror himself.

"That juror didn't even see it coming," Lawson said.

The prosecutor said the defendant was compliant after the outburst and was taken into custody without further incident.

After lunch, Fraser dismissed the jury, telling them McGowan would have to get a new lawyer and that his trial would be delayed.

The judge scheduled a status conference for Feb. 9 and raised the defendant's bail from $250,000 to $1 million, finding he is a danger to the community.

Read full article here. [Brooks Holland]

Federal Judicial Vacancies for Appointment by Obama Administration

Courtesy of uscourts.gov, here is a list of the 55 federal judicial vacancies the Obama Administration will have the opportunity to fill by appointment. 18 of the vacancies are considered "judicial emergencies." [Michele Berry]

NPR: "Obama Orders Guantanamo Bay Prison Closure"

NPR.org: On Day 2 of his presidency, Barack Obama signed executive orders "designed to close Guantanamo Bay prison within a year, prohibit extreme interrogation practices and revisit military tribunals for suspected terrorists.

'Shutting the detention facility is intended to show that U.S. foreign policy is in metamorphosis. The message that we are sending around the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism' but will do so 'in a manner consistent with our values and our ideals," Obama said while signing the orders. Full story from NPR.org... [Michele Berry]

Obama's First Move as President

Even before his adorable dance moves with First Lady Michelle (video here), President Obama's first move came in the criminal law arena-- an order via Defense Secretary Robert Gates to military prosecutors in the Guantanamo war crimes tribunals to request a 120 day stay in all pending cases. The stay will allow the Obama administration a chance to review all the pending cases. His order came just hours after his oath of office. Thus far proceedings are frozen in the case against Canadian Omar Khadr, who was captured at age 15 and is accused of murdering a U.S. soldier with a grenade during a firefight in Afghanistan. A stay was also granted in the death penalty case against five prisoners accused of plotting the 9/11 attacks. More from CNN.com... [Michele Berry]

Actor Lillo Brancato Acquitted of Felony Murder

A slain cop's sister cried junk justice last night after a Bronx jury acquitted actor-turned-junkie Lillo Brancato of murdering Officer Daniel Enchautegui.

"I'm disappointed, I'm disappointed," a shocked Yolanda Rosa said. "What message is this sending out to the New York City police officers today?"

Rosa said she was baffled that Brancato was found guilty only of trying to burglarize his buddy's house - the crime that sparked the confrontation that left her brother dead.

"Oh my God," Rosa said. "I waited three long years for this. ... It's wrong."

Patrolmen's Benevolent Association President Patrick Lynch said Brancato was just as guilty as his accomplice, Steven Armento, who shot Enchautegui at point-blank range.

"This would not have happened if not for this animal's drug habit," said Lynch. "The only good thing is that this skunk is not walking out to spend Christmas with his family. The sad part is that neither is Daniel."

Brancato, 32, faces from 3-1/2 to 15 years in prison when he is sentenced on Jan. 9, and prosecutor Terry Gottlieb said she will ask for the max.

"He's going to jail for a very long time," Gottlieb said.

Don't count on it, countered Brancato's lawyer Joseph Tacopina, who said his client has already spent three years in jail awaiting trial and could walk with time served.

"The worst is behind Mr. Brancato," he said. "He's very relieved."

Read full article here. [Brooks Holland]

New Charge for Bernard Kerik

Disgraced former NYPD Commissioner Bernard Kerik's glib response to White House officials when he interviewed to be director of homeland security may land him in prison.

"Nope, it's all in my book," Kerik said when asked in 2002 if there was "anything embarrassing that he wouldn't want the public to know about." In "The Lost Son," Kerik admitted fathering a daughter while he was a soldier in Korea and said his mother, a prostitute, was murdered.

In a beefed-up indictment issued Tuesday, Manhattan federal prosecutors said Kerik should have owned up to his ties to a mob-linked contractor as well as his failure to pay taxes for a nanny he employed.

Kerik attorney Barry Berke said Kerik's statements were not false since the White House query was vague.

The new indictment, which replaces a previous one, still charges that Kerik got free renovations from a would-be city contractor and filed false income-tax returns.

Kerik was forced to withdraw his nomination for homeland security czar shortly after his name was floated.

Article available here. [Brooks Holland]

Plaxico Burress Turns Himself In On Gun Charge

Troubled Giants star Plaxico Burress turned himself into a Manhattan precinct Monday morning where he is expected to be charged after accidentally shooting himself in the right thigh while drinking at a Midtown nightclub.

Walking with no sign of a limp from the bullet wound, Burress stepped out of a black Cadillac Escalade in front of the NYPD's 17th Precinct just after 8 a.m. Wearing dark jeans, a white collared shirt and a black jacket, he stared straight ahead as he walked and ignored shouts from an assembled group of reporters and fans.

His lawyer said the wide receiver would be arraigned at 1 p.m. at Central Booking and would plead not guilty to charges of criminal possession of a weapon.

"He's standing tall," said attorney Benjamin Brafman. "He's a mature adult handling this very well, I think, under the circumstances."

"He...has been overwhelmed by the outpouring of support from people who I think understand that he's a fundamentally decent man in a difficult situation," Brafman said.

Burress, 31, was partying at the Latin Quarter nightclub with teammates after midnight Saturday when he fumbled with the gun tucked in his waistband, accidentally firing a single round that ripped through his right thigh.

Burress, who signed a $35-million contract extension in the wake of the Super Bowl win, has been a season-long distraction to the Giants and his Big Blue bosses hinted before yesterday's game that the receiver's tenure in the Meadowlands may be coming to an end.

Burress' lawyer stressed that his client can still suit up for the defending champs.

Read full article here. [Brooks Holland]

Georgia Supreme Court Promotes Marriage to Fight Crime

A dozen billboards around the state that urge Georgians to "Get Married, Stay Married" are sponsored not by a church or family-values group but by the Supreme Court of Georgia through its Commission on Children, Marriage and Family Law.

Chief Justice Leah Ward Sears said that the 48-foot-wide, 14-foot-tall billboards are one of the few things a jurist can do to battle high crime rates, high divorce rates and low numbers of fathers raising their kids.

Along with the "Get Married, Stay Married" slogan, each sign shows a happy-looking mother, father and child and one of two messages: "Children do better with parents together" or "For Children's Sake."

"We paid $50,000 to get about $500,000 worth of billboard space to send this vital message," Sears said, noting that the costs of the billboards themselves were paid by the Georgia Bar Foundation and "not state money." The billboard space was donated by the Outdoor Advertising Association of Georgia, which donates unused billboard space to charitable, civic and governmental organizations.

Sears' comments came in an interview last week at a more substantive part of her crusade -- a two-day conference on marriage for about 250 lawyers, social workers, clergy people and therapists. The event was sponsored by the high court's commission and the New York-based Institute for American Values, which calls itself a "private, nonprofit, nonpartisan organization that contributes intellectually to strengthening families and civil society in the U.S. and the world."

Sears said the summit was the first event of its kind sponsored by the Georgia high court.

The costs were borne by private foundations, "with very little state money," she added, although she did not specify how much. Participants paid fees to attend, and the Institute for American Values paid speakers' honoraria and transportation costs.

Read full article here. [Brooks Holland]

When a Gun Isn't a Gun?

U.S. attorneys had a conundrum on their hands -- they had the evidence to prove a convicted felon was in possession of a gun, but they couldn’t prove the gun was a gun.

What attorney’s had on their hands was an American double-action revolver that was manufactured between 1880 and 1941.

The problem is that federal code states that the weapon is not a firearm unless it was manufactured after 1896. Without a definitive production date, the gun was inadmissible as evidence.

At the time, the attorneys were trying to charge Lawrence Ray Cook with possession of the weapon.

Omaha police picked up Cook last September after a hit-and-run crash. U.S. attorney Joe Stecher said that Cook left the scene but he flagged down officers later to tell them he caused the crash.

“His testimony was that he swerved to miss two pedestrians and he hit another car. And as he was driving away they threw the revolver in the back of his car through the open window,” Stecher said.

The attorney said that Cook couldn't explain how the revolver got into his pocket.

However, it didn't matter because couldn't prove what Cook had was a gun.

But they proved something else instead.

“Two rounds of live ammunition and an empty casing gave us the ability to prosecute for felony in possession of ammunition,” Stecher said.

Read full article here. [Brooks Holland]

Dismissed Stevens Juror Lied to Go to the Racetrack

As it turned out, her father had not died. Marian Hinnant merely wanted to go to the races. And, she was not about to let the trial of Senator Ted Stevens get in her way.

On Monday, Ms. Hinnant stunned a courtroom when she confessed she had concocted a story about her father’s death to be let off the jury that would, a day later, convict Mr. Stevens of Alaska on ethics violations.

Ms. Hinnant said she had lied to attend the Breeders’ Cup at Santa Anita racetrack in California.

Just hours before the jury delivered the guilty verdict on Oct. 27, a new juror was seated to replace Ms. Hinnant. Judge Emmet G. Sullivan of Federal District Court was sympathetic when he learned of Ms. Hinnant’s apparent loss but he was troubled that she failed to return phone calls to his chamber and ordered her to appear in court.

Ms. Hinnant, 52, was accompanied Monday by A. J. Kramer, the federal public defender, who said she had lied about the death. “She used that as an excuse,” Mr. Kramer said, according to witnesses. Ms. Hinnant then began rambling about horse breeding and other topics, people in court said.

Judge Sullivan interrupted her, saying: “I am thoroughly convinced you would not have been able to deliberate” and dismissed her.

Read full article here. [Brooks Holland]

Unprecedented Number of Federal Judges under Investigation?

U.S. District Judge Samuel Kent is the first federal judge to be indicted for alleged federal sex crimes, but he's only the latest in a string of jurists to face misconduct allegations in 2008, for behavior such as frequenting a topless club or lying under oath.

Nationwide, four other federal judges are being investigated for, among other things, taking cash from lawyers, using an escort service, posting nude photos on a personal Web site and abusing power in court.

The flurry of federal disciplinary activity appears unprecedented under the modern review system, established by Congress in 1980, according to experts and official court statistics.

``As far as I know, we've never had anything like this,'' said Arthur Hellman, a federal judicial disciplinary expert and professor at the University of Pittsburgh law school.

Kent, who sat on the Galveston bench for 17 years before being transferred to Houston last year, is the only federal judge to confront an ongoing public criminal investigation.

He's been indicted but pleaded not guilty to charges he improperly touched a female court employee and attempted to force her to perform oral sex.

He faces a trial on Jan. 26 before U.S. District Judge Roger Vinson of Pensacola, who was specially assigned to oversee the case.

Four other federal judges in California, Colorado and Louisiana confront various stages of judicial disciplinary review - including U.S. District Judge Thomas Porteous Jr. of New Orleans, who is being investigated for possible impeachment by the judiciary committee of the House.

Read full article here. [Brooks Holland]

Cell Phone Cameras and Crime Reporting

One morning last month, a 28-year-old woman was struggling up the stairs at the Dyckman Street elevated station on her way to work. Normally, she would hold her skirt around her legs, but that day she was juggling a cup of coffee, a gym bag and her purse.

She sensed the presence of someone too close to her on the stairs. She turned and saw a man peering into his cellphone. A passer-by confirmed her suspicion: The man had taken photographs under her skirt.

“I said I had to do something,” the woman said on Thursday. “Since he is taking pictures of me, I am going to take pictures of him.”

She said she followed the man onto the southbound No. 1 train, walked through several cars and found him on a seat. She prepared her cellphone camera. He looked at her and mumbled something. “And I told him ‘smile’ because I am going to the police,” she said.

he took a picture, e-mailed it to the police and filed a report. On Tuesday, an officer at the 110th Street subway station at Central Park West approached a man matching the photograph, the police said. According to the police, the man, identified as Aaron Olivieri, 36, told the officer, “I hope I am not the person you are looking for.” Then he said he knew why he was being stopped: because a woman on a train had taken his picture and accused him of a crime.

Mr. Olivieri was arraigned in Manhattan Criminal Court on Wednesday on misdemeanor charges of unlawful surveillance, attempted sexual abuse and harassment, a criminal complaint said. A man who answered the phone at his apartment referred calls to Mr. Olivieri’s lawyer, who could not be reached for comment on Thursday afternoon.

On crowded subways and streets, women have long been targets of deliberate jostling, groping, obscene photography and indecent exposure. In 2006, a police sting netted 13 men charged with groping or flashing, and other men have been arrested in recent years after being identified by cellphone pictures. One Web site, hollabacknyc.com, encourages people to share their stories and cellphone photographs. “Send us pics of street harassers!” the Web site says.

On Sept. 9, the police started tapping into the ubiquitous technology by inviting people who witness crimes to take pictures with their cellphone cameras, if safety permits, and to send them along when they make 911 calls.

Read article here. [Brooks Holland]

Video from 11th Circuit Excessive Force Case Finds Way to YouTube

When Judge Beverly B. Martin this month dissented to a federal appeals decision in favor of a sheriff's deputy accused of civil rights violations for using a Taser on a handcuffed man, she urged that a video of the events in question be published with the opinion.

The suggestion of Martin, a district court judge sitting by designation with the 11th U.S. Circuit Court of Appeals, went unheeded. But James V. Cook, the Tallahassee, Fla., attorney representing plaintiff Jesse Daniel Buckley, apparently took Martin at her word.

On Monday Cook placed a copy of a video shot by a squad car camera on YouTube. The six-minute video can be found under the term "Buckley v. Haddock." Cook said Tuesday he is preparing a motion for an en banc rehearing.

The video shows how Florida sheriff's deputy Jonathan Rackard three times used a Taser on Buckley, who had been stopped for speeding and then refused to sign the traffic citation. Buckley is handcuffed, sobbing and sitting cross-legged on the ground. Each Taser jolt administered a five-second, 50,000-volt electric shock, according to the 11th Circuit decision.

In the majority opinion, Chief Judge J.L. Edmondson found that Rackard's actions were "not outside the range of reasonable conduct under the Fourth Amendment." Judge Joel F. Dubina concurred, although he wrote separately that Rackard's third use of the Taser against Buckley was unconstitutional.

Martin disagreed, writing "that the Fourth Amendment forbids an officer from discharging repeated bursts of electricity into an already handcuffed misdemeanant -- who is sitting still beside a rural road and unwilling to move -- simply to goad him into standing up."

Article from Law.com available here. [Brooks Holland]

Violent Crime Reported Down in 2007

Data released Monday by the FBI show violent crime dipped slightly nationwide in 2007. That ended two years of increases in murders, robberies and other kinds of the worst crime in U.S. cities.

An estimated 1.4 million violent crimes were reported across the country last year - about 10,000 fewer, or a 0.7 percent drop, than 2006.

The number of burglaries, car thefts, arsons and other property crimes also dropped by 140,000, or 1.4 percent. That marked the fifth year of property crime decreases, the FBI said.

Justice Department spokesman Peter Carr said the decline is the result of crackdowns on gangs, drug dealers and gun crimes, and he used the drop to call on Congress for $200 million in additional funding to continue such efforts.

Read full article here. [Brooks Holland]

States Restore Voting Rights for Ex-Convicts

Striding across a sweltering strip-mall parking lot with her clipboard in hand, Monica Bell, a community field organizer in Orlando, Fla., was looking for former convicts to add to the state’s voter rolls.

Antonious Benton, a gold-toothed 22-year-old with a silver skull-shaped belt buckle, a laconic smile and a criminal record, was the first person she approached.

“I can’t vote because I got three felonies,” Mr. Benton told Ms. Bell. He had finished a six-month sentence for possession of $600 worth of crack cocaine, he said. But Ms. Bell had good news for him: The Florida Legislature and Gov. Charlie Crist, a Republican, changed the rules last year to restore the voting rights of about 112,000 former convicts.

“After you go to prison — you do your time and they still take all your rights away,” Mr. Benton said as he filled out a form to register. “You can’t get a job. You can’t vote. You can’t do nothing even 10 or 20 years later. You don’t feel like a citizen. You don’t even feel human.”

Felony disenfranchisement — often a holdover from exclusionary Jim Crow-era laws like poll taxes and ballot box literacy tests — affects about 5.3 million former and current felons in the United States, according to voting rights groups. But voter registration and advocacy groups say that recent overhauls of these Reconstruction-era laws have loosened enough in some states to make it worth the time to lobby statehouses for more liberal voting restoration processes, and to try to track down former felons in indigent neighborhoods.

“You’re talking about incredible numbers of people out there who now may have had their right to vote restored and don’t even know it,” said Reggie Mitchell, a former voter-registration worker for People for the American Way. In Florida, “we’re talking tens of thousands of people,” he said. “And in the 2000 election, in the state of Florida, 300 people made the difference.”

A loose-knit group of national organizations working to restore voting rights includes the Association of Community Organizations for Reform Now, or Acorn (Ms. Bell’s employer); the National Association for the Advancement of Colored People; and the Brennan Center for Justice.

Two other groups, the Sentencing Project and the American Civil Liberties Union, said they had given briefings to officials for Senator Barack Obama’s presidential campaign about how to register former felons. But the Obama campaign has been reluctant to acknowledge any concerted effort. [Mark Godsey]

Continue Reading "States Restore Voting Rights for Ex-Convicts"

Banks to Blame for Surge in Bank Robberies?

Bank robberies are up 50% this year, and the NYPD says it's the banks' fault, the Daily News has learned.

The number of bank jobs hit 265 by Sept. 2, compared with 177 by the same time last year.

Police say the problem isn't that crooks are working harder - it's that banks aren't doing enough to protect their money.

Police Commissioner Raymond Kelly is expected to call in bank execs in the coming weeks to press them to shore up security at local branches, top brass and officers in the city's bank robbery squads told The News.

"The new thing with banks is to be 'friendly' to customers. Branches look like lounges - no glass partitions, no security guards," said a police source who investigates bank robberies.

"They are 'friendly,' all right - 'friendly' to thugs who 'withdraw' other people's money."

The NYPD held a similar security bank summit in 2003 and asked banks to follow 14 "best practices," from the use of digital cameras and exploding dye packs to bulletproof bandit-barriers for tellers' booths.

Bank robberies dropped dramatically, from 408 in 2003 to a low of 229 in 2005.

Since then, the crooks - often career criminals who averaged about $4,800 per heist - seem to have regained the upper hand.

"There's a concern that adherence to best practices has slipped, and that it's reflected in the increase," Deputy Police Commissioner Paul Browne said. He wouldn't discuss specific banks.

Read full article here. [Brooks Holland]

"Preppy Killer" Sentenced to 19 Years on Drug Charges

Preppie killer Robert Chambers was sentenced today to 19 years in prison for drug-dealing - more time than he got for strangling Jennifer Levin in 1986.

The 42-year-old prep school grad agreed to the long stretch as part of a plea bargain that allowed him to avoid a life sentence.

The hearing in Manhattan Supreme Court was a brief, cut-and-dried affair.

His hands cuffed, a jean-clad Chambers showed little emotion except to smirk at girlfriend Shawn Kovell, who was sitting in the audience with his father.

Kovell's presence caused a stir in the courthouse and a threat by prosecutors to put her behind bars.

She was busted with Chambers on coke-dealing charges in October but spared prison and ordered by prosecutors to enter drug rehab.

When prosecutors spotted her in the courtroom, smiling at her boyfriend, they were furious. They called the rehab and hauled Kovell before the judge who sentenced her to probation in December.

"She's apparently wandering around the city without an escort," said Assistant District Attorney Dan Rather Jr.

"It should be made clear that she complies with the conditions of the plea agreement or she goes to jail."

Justice Charles Solomon said he would contact the drug program, Paladia in the Bronx, for a status report.

Kovell had no comment, but Chambers' dad seemed thrilled his son's gal pal would remain free.

"They lost," he said of prosecutors, chuckling.

Chambers got 15 years in prison after he admitted he killed Levin during "rough sex" in Central Park, one of New York's most infamous crimes.

Read full article here. [Brooks Holland]