CrimProf Blog

Murder of Federal Prosecutor Still Unsolved

MSNBC reports:  "It's been nearly a year since Jonathan Luna, an ambitious, charismatic federal prosecutor, was found sprawled face down in a creek in Pennsylvania, stabbed 36 times. But after a secretive, intense investigation, authorities seem no closer to solving the case."  The full story . . .  [Mark Godsey]

ACLU Issues Report on Women's Death Row

The American Civil Liberties Union recently issued a report that analyzes the conditions of women on death row.  Sixty-six cases of women death row inmates are analyzed in the ACLU Executive Report: The Forgotten Population, 10 of whom were executed between 1984 and 2002, and 56 of whom were on death row at some time between April 2002 and December 2003.  The report's findings include that women on death row often live in isolation because of their sparse numbers, and that women are sentenced to death row for crimes that often do not result in death sentences for men.  [Mark Godsey] 

CrimProf Stuart Green: LA Death Penalty Errors "Shocking, Unacceptable"

LSU professor Stuart Green, recently profiled on this blog, was quoted in a story about a study of Louisiana's death penalty system.  The article said in part:

A review of court records since 1999 shows that, of the last 22 inmates removed from death row when their sentences were finally resolved:
•12 had their death sentences reversed and were ordered to serve lesser sentences;
•Six were released after the courts ordered the first-degree murder charges dismissed;
•One died of natural causes; and,
•Three were executed.
Two of the three who were executed were represented by attorneys no longer allowed to practice law, according to the Louisiana Office of Disciplinary Counsel. One of the lawyers was disbarred after being found to have participated in a laundry list of improper behavior involving several cases. The other lost his license because of mental health problems.

Professor Green commented: "That 27 percent of all capital convictions led to exonerations is shocking . . . I can't see how any criminal justice system can tolerate that level of error, particularly in the matter of the death penalty . . . It is unacceptable." [Jack Chin]

New Article Spotlight: The Original Understanding of Unreasonable Searches and Seizures

CrimProf David E. Steinberg of Thomas Jefferson has just published the above-titled article in the Florida Law Review.  The introduction states:

"Today, the Fourth Amendment to the United States Constitution covers most government evidence-gathering activities.  In search and seizure cases, after determining that the Fourth Amendment applies to an investigation, the Supreme Court then specifies the Fourth Amendment standard that governs the law enforcement activity. In some cases, law enforcement officers must obtain a warrant.  In other cases, officers must possess "probable cause," or a "reasonable suspicion."   The Supreme Court's current presumption that the Fourth Amendment typically covers law enforcement investigations is ahistorical. A review of history demonstrates that the Fourth Amendment was intended to proscribe only a single, discrete activity-physical searches of houses pursuant to a general warrant, or no warrant at all.  The framers never intended that the Fourth Amendment would apply to other government evidence-gathering activities.  Accordingly, the Fourth Amendment simply provides no guidelines for random drug tests, sense-enhanced searches, automobile checkpoints, and the many other situations where the Supreme Court has attempted to apply the Amendment."  [Mark Godsey]

Supreme Court Hears Oral Argument in Money Laundering Case Today

Today the Supreme Court will hear oral argument in Whitfield v. U.S./Hall v. U.S. to resolve a split in the circuits as to whether the federal conspiracy to commit money laundering statute, 18 U.S.C. 1956(h), requires an overt act to be committed in furtherance of the conspiracy.  Five circuits have ruled that an overt act is required under the statute, while two have held that it is not.  More ...  [Mark Godsey] 

Man Arrested For Aiding Prison Break By Shooting Cellphones Into Prison With Bow and Arrow

A Swedish man taped two cell phones and a battery charger to three arrows and shot them over the 12-foot wall into a prison yard outside Stockholm, Sweden last week.  After he returned to his car, dogs followed his scent back to the prison wall, and guards were able to find the phone-loaded arrows in the prison yard.

He has been charged with attempting to aid a prison break, and could get up to one year in prison.  More. . .   [Mark Godsey]

New Article Spotlight: Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: Proportionality Relative To What?

CrimProf Richard S. Frase of Minnesota has recently posted the above-titled paper on SSRN.  The abstract states:

This article examines constitutional proportionality requirements. The focus is on the assessment of lengthy prison sentences under the Eighth Amendment. However, the proportionality principles discussed have much broader application, both within and outside the field of sentencing. In the wake of the recent California three-strikes cases, upholding sentences of 25-to-life and 50-to-life imposed on two repeat property offenders, it is very unclear when a prison term will be held to violate the Eighth Amendment, and on what precise grounds. Justices Scalia and Thomas believe that the concept of proportionality is unworkable; they assert that the concept is inherently tied to retributive sentencing goals, yet the Court's cases specify that the Constitution permits sentences to be based on a variety of non-retributive (crime-preventive) goals. What does it mean to say that a penalty is disproportionate relative to non-retributive goals? None of the justices has ever addressed this question, and scholars have not done so in any systematic way. The answers to this question can be found in the Court's own cases. This article identifies one retributive and two non-retributive proportionality principles which are implicit in Eighth Amendment decisions, and also in cases from many other fields of constitutional law. The same three principles also find strong support in lower court decisions, in constitutional cases from other Western countries, and in regional and international law. The article examines the many forms these principles have taken, and suggests how they can be used to make proportionality analysis of prison terms more precise and more meaningful. The article is principally addressed to scholars, lawyers, and judges seeking to interpret the Eighth Amendment and its state constitutional counterparts. However, these proportionality principles can also be helpful in formulating subconstitutional sentencing law and policy. A third goal of the article is to increase awareness of proportionality principles that are implicit in U.S. law but rarely identified as such.  [Mark Godsey]

Supreme Court Grants Cert. Today in Habeas Case

According to U.S. Law Week, The U.S. Supreme Court today granted review today in Dodd v. United States, No. 04-5286.  The question presented: "Does the one-year limitations period in 28 U.S.C. § 2255 ¶ 6(3) for a prisoner seeking to vacate, set aside, or correct a sentence on the basis of a constitutional right newly established by the Supreme Court begin to run on the date when the Supreme Court recognizes the new right or on the date when either the Supreme Court or controlling federal circuit court holds that the right applies retroactively to cases on collateral review?"  [Mark Godsey]

Exoneration Roundup

Florida Today features a story on a jailhouse snitch, due to be released from prison, whose tall tales may have caused the execution of an innocent person; another unlucky cellmate who allegedly confessed was later cleared by DNA.  In Kentucky, a day case sex abuse conviction was reversed and the charges dismissed based on manufactured evidence; scathing but unpublished opinion here.  An Arizona man sentenced to death primarily based on bitemark evidence proffered by the same dentist/legislator whose erroneous testimony convicted Ray Krone will have a hearing on his claim of innocence.   The Winston Salem Journal has a five part series on a brutal attempted murder case in which, they suggest, the wrong person was convicted.  A Missouri man incarcerated since 1987 hopes that a DNA test now being performed by Cellmark will clear him of a rape conviction.  Kansas authorities are seeking DNA samples from police officers who worked on an unsolved series of murders between 1974 and 1986; the alleged reason is that if and when the killer is captured, it will "head off potential legal maneuvers"; sounds more like they are looking for a suspect.  North Carolina reports a backlog in DNA testing. [Jack Chin]

Supreme Court to Hear Two Criminal Cases Today

On Monday November 29, the Supreme Court will hear arguments in Ashcroft v. Raich, an appeal from Ninth Circuit Court of Appeals, questioning the consitutionality of the Controlled Substances Act of 1970 as applied to patients who use marijuana for medical purposes in states that have legalized such use.  The complaint accuses John Ashcroft, the Justice Department, and the DEA of unconstitutionally exceeding their authority by "embarking on a campaign of seizing or forfeiting privately-grown intrastate medical cannabis from California patients and caregivers, arresting or prosecuting them, mounting paramilitary raids against them, harassing them, and taking other civil or administrative actions against them."  Angel Justice and Drug War Rant offer background and interesting perspectives on the case.

The Court will also hear arguments in Howell v. Mississippi.  The question presented is whether, in death penalty cases, a state court can refuse to give a jury the option of finding a defendant guilty of at least one lesser offense if it is recognized by state law and supported by evidence.  More on Howell . . .   [Mark Godsey]

Cleveland Prosecuting Recanted Allegations of Domestic Abuse

The Cleveland Plain Dealer reports on two domestic violence cases prosecuted notwithdtanding recantations by the complainants; one resulted in conviction, the other in acquittal.  Story here. [Jack Chin]

Oregon Sheriff Condones Imposter Patrol Car

Need a solution to leadfoots speeding through your neighborhood?  If the sheriff's office in your county is as tolerant of officer impersonation as the Benton County Sheriff's Office in Oregon, maybe you can design an imposter police patrol car and hope to scare speeders into slowly traveling through your neighborhood.  That's what Rick Pyburn of Albany, Oregon did.  He painted a police car onto plywood and hid it in some bushes near his home.  The decoy cruiser has proven so effective that Pyburn plans to market and sell copies of his design.  When questioned about the imposter, the Benton County Sheriff's Office said they don't mind Pyburn's decoy car, they only wish they had more deputies available to patrol for speeding.  More... [Mark Godsey]

Aborigines and Police Clash in Australia's Palm Island

Outraged over the death of Cameron Doomadgee, a 36 year-old Aboriginal man who died of a punctured lung sustained while in police custody, a mob of angry Australian Aborigines burned a police station and a court house on Friday November 26.  An autopsy showed that Doomadgee also had 4 broken ribs.  All of his injuries resulted from a scuffle between Doomadgee and the police while being escorted from a prison van on Palm Island, a Queensland State island off of the east coast of the state's mainland. 

Earlier this year, riots erupted in Sydney after Aborigines accused Sydney police of causing a young Aboriginal man's death.  The man fell off of his bicycle and was impaled on a fence as he was being chased by a Sydney police squad car.  More... [Mark Godsey] 

New Article: Unsafe Verdicts

Seton Hall CrimProf D. Michael Risinger has forthcoming in the Houston Law Review "Unsafe Verdicts: The Need for Reformed Standards for the Trial and Review of Factual Innocence Claims."  The abstract states: "DNA analysis has resulted in a troubling number of exonerations in both capital and non-capital cases. While these cases show that significant numbers of factually innocent persons are convicted of crimes that they did not commit, most such convictions remain hidden because they occur in cases where DNA analysis has no application. This article seeks to show the coordinate failure of the two main current visions of the trial. On one hand, the standard model of the trial has obscured the proper normative warrant of the jury, while at the same time inappropriately insulating jury verdicts of guilt from review because of excessive deference to jury evaluation of live testimony. On the other hand, the model of the trial put forth by adversary enthusiasts celebrates the jury's normative warrants, but obscures the shortcomings of current adversary processes when such a normative warrant is inapplicable, that is, in criminal cases where the practical issue is the actual innocence in fact of the defendant. Either account of the trial allows judges, especially appellate judges, to avoid responsibility for conviction of the factually innocent. This article asserts that claims of actual innocence in fact (strictly defined) possess a moral purchase far superior to other moral claims that animate the legal process. It proposes reforms intended to recognize the special moral position of innocence-in-fact claims and to make real the legal system's commitment to truly responsive standards of reasonable doubt in regard to such claims." Draft here. [Jack Chin]

Lori Hacking Case Breaks the Bank

The Salt Lake Tribune reports that the investigation of the Lori Hacking case has used up almost the entire annual DNA and forensic investigation budget for the State of Utah; it cost over $300,000, not counting the cost of regular police salaries.  A major component of the expenses were incurred searching landfills by hand.[Jack Chin]

CrimProf Blog Professor Spotlight: Stephanos Bibas

This week, the CrimProf Blog spotlights Stephanos Bibas of the University of Iowa College of Law.  Bibas writes:

"I was born in New York, the oldest of three children, and spent my summers growing up working in Dad's restaurants (like every other Greek-American kid, it seems).  Starting in high school, I became very involved in debate and public speaking and enjoyed constructing and analyzing arguments.  I continued to develop my public speaking/debate skills through Parliamentary Debate at Columbia University, which proved to be a rewarding experience in many ways.  I took these skills with me to Oxford University where I earned my Masters in jurisprudence and a 1st place Speaker Award in the World Debate Championships.  It was throughout college that I started thinking about teaching law.  But, since I had no lawyers in my family, it took me a while to figure out what kind of law I would want to do. 

I headed off to law school at Yale where I was the Symposium Editor for the Yale Law Journal and very involved in Moot Court.  I decided to clerk directly out of law school in the U.S. Court of Appeals for the Fifth Circuit, but after two years, I moved from Dallas to Washington, D.C. to become a litigation associate at Covington & Burling.  I litigated predominately white-collar criminal defense, appeals, First Amendment, employment discrimination, toxic torts, and insurance cases.  But after a few years with the firm, I didn't let the chance to clerk for Justice Kennedy of the US Supreme Court pass me by.

After clerking for Justice Kennedy, I went off to the U.S. Attorney's Office for the Southern District of New York to gain some trial experience and become a real lawyer.  And it was there that I discovered I loved criminal law.  The human drama, the fast-paced excitement, the morality play, and the tragedies in victims' and defendants' lives all fascinated me.

There, I saw a lot of things that professors and appellate judges missed.  Litigation on the ground looks a lot different from litigation viewed from the ivory tower.  The parties are most certainly not fully informed, rational actors.  Poverty, variable lawyer quality, intelligence, and myriad other factors influenced the way cases came out.  And very few cases involved trials; most of the action was in charging, plea bargaining, and sentencing.  The process of plea bargaining, moreover, looked a lot different from the abstract models that economists hypothesized.

When I left prosecuting and went to Yale for a research fellowship, to prepare for the teaching market, I began writing my first article about Apprendi v. New Jersey and all of these ideas began to jell.  I saw that everyone had been proposing and analyzing rules suited for an ideal world of jury trials, in part because cases that are tried are the ones that are appealed and result in appellate precedents.  But in the real world of guilty pleas, where 95% of cases are plea-bargained, these rules looked very different.  So that's how I started to focus on the rules of charging, plea bargaining, and sentencing, examining how the actors used their power to manipulate these rules to serve their interests."

For a list of Bibas' forthcoming articles and published articles with links, click here.

Each Saturday, CrimProf Blog will spotlight on one of the 1500+ criminal justice professors in America's law schools. We hope to help bring the many individual stories of scholarly achievements, teaching innovations, public service, and career moves within the criminal justice professorate to the attention of the broader criminal justice community.  Please email us suggestions for future CrimProf profiles, particularly new professors in the field.

Ninth Circuit Holds That Search Incident to Arrest May Take Place Before Actual Arrest

Last week, the Ninth Circuit held in U.S. v. Smith that an officer may proceed to search a suspect incident to arrest even if the suspect is not yet under arrest, as long as the officer has the requisite probable cause to arrest the suspect when the search took place.  The court stated:  "A search incident to arrest need not be delayed until the arrest is effected. Rather, when an arrest follows 'quickly on the heels' of the search, it is not particularly important that the search preceded the arrest rather than vice versa.  So long as an arrest that follows a search is supported by probable cause independent of the fruits of the search, the precise timing of the search is not critical."  [Mark Godsey]

Drug Diversion and Recidivism

UCLA researcher David Farabee reports that drug defendants diverted from jail thanks to a 2000 ballot initiative are more likely to be rearrested for drug offenders than those who were incarcerated.  More here.  Meanwhile, a survey reports that a majority of Canadians support decriminalizing personal use of marijuana; 45% report using marijuana at some point in their lives.  More here. [Jack Chin]

Eleventh Circuit Holds That Witness Testimony By Two-Way Video Teleconference Violates Confrontation Clause

The Eleventh Circuit ruled this week in U.S. v. Yates that witness testimony via two-way video teleconference violates the Sixth Amendment right to confrontation.  In doing so, the court rejected the government's arguments that the procedure was necessary because the witnesses were "essential" to the prosecution's case, were located in Australia and thus beyond the subpoena power of the U.S., and had refused to travel to the U.S. to testify.   [Mark Godsey]

DUI + Death = Murder

An Alabama man was convicted of murder for killing three people while driving drunk; he received 25 years; another Alabama man was sentenced to life. A California woman is also facing murder charges for a hit and run incident that occurred while she was allegedly drunk.  It does not seem that long ago that a death during a DUI was thought of as a tragedy, but not murder.  (Meanwhile, a Florida DUI prosecutor was arrested after blowing a .23; her three children were in the car, a circumstance which in that county often leads to felony charges; in October, a Sunnyvale, CA police officer was "arrested for allegedly driving under the influence of alcohol with a slew of firearms and a dead pig in his truck.")  [Jack Chin]