CrimProf Blog

CrimProf Blog Spotlight: Emory Law's Morgan Cloud

This week the CrimProf Blog spotlights Morgan Cloud of Emory Law School. 

"Professor Cloud practiced law as a trial lawyer and litigator in Florida and California before joining the Emory faculty. He is a program director for the National Institute for Trial Advocacy, and lectures to practicing attorneys around the country about trial practice and civil litigation. He has served as chairperson of the Section on Litigation of the Association of American Law Schools. He serves on the advisory board of the Green Bag, a journal devoted to legal history and legal policy issues.

In addition to his Emory courses, Professor Cloud regularly teaches and lectures at other universities. In the United States he has been the Robert Daniels Distinguished Visiting Professor at the University of Iowa College of Law and a Distinguished Visiting Professor in Advocacy and Dispute Resolution at the University of Tennessee. In Europe, he has been a German Marshall Fund distinguished guest lecturer and has taught courses on Corporate Crime in a Global Economy, constitutional theory, and United States law at the University of Konstanz Law School in Germany, at the Central European University in Budapest, Hungary, and at the European Business School in Germany. Professor Cloud lectures regularly to academic and professional groups in the United States and other countries. Recent lectures have been delivered at the University of Heidelberg, the National Judicial College, and the National Center for Justice and the Rule of Law at the University of Mississippi.

His numerous publications include: CONSTITUITIONAL CRIMINAL PROCEDURE, INVESTIGATION TO TRIAL, Fourth Edition (West Group 2005) (with Johnson); CRIMINAL LAW, CASES, MATERIALS AND TEXT, Seventh Edition (West Group 2003) (with Johnson); "Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Supspects" (with Shepherd, Barkoff & Shur) in the University of Chicago Law Review; "Searching through History, Searching for History" in the University of Chicago Law Review; "The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory" in the Stanford Law Review; "Torture and Truth" in the Texas Law Review; "Judges, 'Testifying', and the Constitution" in the Southern California Review; "The Dirty Little Secret" in the Emory Law Journal; and "Pragmatism, Positivism, and Principles in Fourth Amendment Theory" in the UCLA Law Review." 

PI Paul Ciolino to Speak at Arizona

TOP “WRONGFUL CONVICTION” PRIVATE INVESTIGATOR
TO TALK AT THE COLLEGE OF LAW

Internationally renowned Paul J. Ciolino, famous for participating in the release of innocents from prison, will speak at the University of Arizona, Rogers College of Law on: Friday, October 7, 2005, 12:15 p.m. – 1:30 p.m.
Rogers College of Law, Room 140, 1201 E. Speedway (Speedway and Mountain), Tucson, AZ

This presentation is open to the U of A community and to the public.  Pay parking is available in the UA garage at Park and Speedway.

Called “One of America’s top five investigators” by CBS News Anchor Dan Rather, Paul Ciolino is most known for his work in complex criminal and civil investigations.  His participation in wrongful conviction investigations has helped free five men from death row in Illinois.  In February of 1999, he obtained a dramatic videotaped confession from a double murder suspect, which was shown on TV stations across the western hemisphere.

Ciolino is a past national director of the National Association of Legal Investigators, Inc. (NALI), and a past president and life member of the Special Agents Association in Chicago.  In 1999 he was named CII’s “Investigator of the Year.”  Currently Ciolino is the owner of Paul J. Ciolino & Associates, and Dearborn Process Services in Chicago. He is a popular lecturer at both investigation seminars and universities across the country, and appears regularly on CNN’s “Burden of Proof.”  He has also coauthored many leading investigative textbooks such as “Advanced Forensic Civil Investigations.” 

Ciolino will speak about the experiences that have gained him so much national, and international, recognition.

This presentation is sponsored by the Law, Criminal Justice and Security Program/Criminal Law Association. More information about the LCJSP/CLA Fall 2005 Speaker Series and schedule can be found at the College of Law website http://www.law.arizona.edu.

A Moment of Silence in the Cone of Silence

for the late Don Adams, Agent 86, who added so many humorous catchphrases to the language (sound files):

"Sorry about that, Chief."
"And loving it."
"Missed it by that much."
"The old - trick."
"Would you believe?"
"I asked you not to tell me that."
"The part after 'Listen carefully'."
"There's only one thing that bothers me."
"I think we should use the Cone of Silence."
"I happen to know that at this very moment seven coast guard cutters are converging on this boat. Would you believe it? Seven. Would you believe six? How about two cops in a rowboat?"

[Jack Chin, thanks to George Fishman for the funny headline]

Abortions of African American Babies would Cut Crime: William Bennett

5 to 1 he regrets the quote.  Story here. [Jack Chin] Here's Paul Butler at Blackprof.

Defense Wants Nickname Barred from Court

From the AP:  WEST CHESTER, Pa. - A defense attorney has asked a judge to bar any references to his client's nickname — "Scuz" — in his upcoming murder trial, saying the moniker could negatively influence jurors.  Demetrius "Scuz" Fiorentino, 31, of Coatesville, is charged with the April 2004 robbery and shooting death of Joel "Wellz" Taylor, 19, of Queens, N.Y., during a botched drug deal in a Coatesville crack house in Coatesville.  Defense attorney Laurence Harmelin cited the dictionary definition of scuzzball as "an unpleasant, dirty or dangerous person; creep" and scuzzy as "dirty, shabby or foul in condition or nature."  Story . . . [Mark Godsey]

Virginia Prof Faces Criminal Charges

From the Cavalier Daily:  "University Police arrested Martin Straume, an associate professor of research in the University Health System, yesterday afternoon on several criminal charges, including the attempted malicious wounding of a female University graduate student.  According to University Police, the attempted malicious wounding of the graduate student occurred Sept. 13 when Straume allegedly attempted to hit the student with his car near Gilmer Hall.  Straume, 47, also was charged with computer harassment, threatening phone calls, computer invasion of privacy and stalking after the graduate student reported a series of incidents to the police, the release stated."  Story . . .  [Mark Godsey]

Pace to Host Crim Moot Court Competition

The International Program of Pace Law School Proudly announces

The First Annual Pace International Criminal Court Moot Competition

October 14-16, 2005

Please join us for the keynote address

Presented by

Professor David Scheffer

Former U.S. Ambassador at Large for War Crimes &
Chief U.S. Negotiator for the Rome Statute

Friday October 14^th at 6:00 p.m.

Moot Court Room

For more information or to RSVP, see www.law.pace.edu/icc

No Charges in Corpses For Porn Site

A website offers members of the U.S. Armed Forces the opportunity to get free porn in exchange for photos of dead insurgents in Iraq.  The military investigated whether soldiers who contributed to this site were guilty of an offense, and concluded there was not enough evidence of a crime.  Here's WikiNews.  [Jack Chin]  Isthatlegal seems to have broken the story some time ago--congrats, Eric, for the scoop.

New Buie Sweep Case

The Second Circuit suppressed the results of a sweep done after a suspect invited cops into his apartment.  The court found that there were no facts suggesting that someone else might be in th ehouse prepared to launch an attach.  Story here, opinion here.  [Jack Chin, thanks to Jared Hautamaki]

Criminal Law Job at Iowa

THE UNIVERSITY OF IOWA COLLEGE OF LAW seeks applicants for permanent or visiting classroom and clinical faculty positions.  We are interested in all persons of high academic promise, irrespective of prior teaching experience, and wish to enhance the diversity of our faculty by including among our candidates persons of all races, cultural backgrounds, genders, creeds, ages, as well as members of other groups that traditionally have been underrepresented in the legal profession.  Consideration of any applicant for a faculty position may depend upon the current curricular needs of the College.  Although considerable flexibility exists with respect to courses and other assignments, we are particularly interested in hiring people with interest or expertise in criminal law, business law, disability law, immigration, intellectual property, law and economics, regulated industries, and taxation.  Appointment to track and rank will be commensurate with qualifications and experience.  Candidates interested in an academic career in law should send resumes, references, and descriptions of areas of interest to:  Faculty Appointments Committee, College of Law, The University of Iowa, Iowa City, Iowa 52242-1113.

THE UNIVERSITY OF IOWA is an equal opportunity/affirmative action employer.  Women and minorities are encouraged to apply.

Collateral Consequences and Drug Offenders

A new GAO report talks about the effects of various laws denying federal benefits to drug offenders, including food stamps, TANF, and educational benefits.  [Jack Chin; thanks to Margy Love]

Federal Prosecution Trends

Story here. [Jack Chin]

Ray Krone Gets More Money

Ray Krone, who spent 10 years in prison, including 2 on death row, based on bogus bite mark evidence, settled his suit against the City of Phoenix for $3 million.  He already got $1.4 million from Maricopa County.  Story here. [Jack Chin, thanks to Laura Conover]

Iowa CrimProf Tomkovicz and Maryland v. Blake

From a press release:  University of Iowa CrimProf Jim Tomkovicz will be involved in a case to be heard by the U.S. Supreme Court when it opens its new term on Monday, the traditional first Monday in October.

Tomkovicz has submitted an amicus curiae brief to the High Court in the case Maryland v. Blake, a case he believes could significantly reduce Americans' protections against unfair police questioning.

"Legal decisions in recent years have really whittled our Miranda rights down to nothing but the core," said Tomkovicz, an expert on the rights guaranteed in the Supreme Court's landmark 1966 Miranda decision. "The meat has been picked off and there's nothing left but bones."

In the case, Leeander Blake, a teenager, was arrested between 4:30 and 5:00 a.m. by police in Annapolis, M.D. as a suspect in a murder investigation. Blake, who was wearing only boxer shorts and a tank top, was placed in an Annapolis Police Department holding cell. As questioning began, he immediately invoked his right to an attorney and the police left.

A half-hour later, however, a police detective returned and presented Blake with a document that specified the charges. The document stated, in capital letters, that the penalty for first-degree murder was "DEATH," even though Blake, as a juvenile, could not be executed under Maryland law. A second police officer in the room then said to Blake "I bet you want to talk now, huh?" The first officer replied by telling the second officer that Blake didn't want to talk, that he had asked for a lawyer, and that the officers couldn't talk to him at that time. The officers then left the cell. Twenty-eight minutes later, when the first officer returned to the cell with Blake's clothing, Blake asked if he could "still" talk to the officers. He subsequently made incriminating statements to the police before consulting with an attorney.

Blake's attorney convinced the trial judge to suppress the incriminating statements because they had been given without the presence of an attorney even though Blake had requested one. The Maryland Court of Appeals agreed with that ruling and the State of Maryland took the case to the U.S. Supreme Court.

Tomkovicz agrees that the prosecution should not be able to use Blake's statement at his trial. In its decision in Edwards v. Arizona, the Supreme Court has previously held that the police are prohibited from initiating the interrogation of a suspect who has clearly requested an attorney. Once the right to counsel is invoked, interrogation is permissible only if an attorney is present or if the suspect himself initiates communications with the authorities and waives his Miranda rights.

"When Blake asked for an attorney, that should have ended all questioning immediately," Tomkovicz said. "But by returning to his cell with the erroneous and threatening statement of charges and then overtly challenging him to 'talk now,' the officers improperly ignored Blake's request for a lawyer's assistance and initiated a forbidden interrogation. This conduct clearly jeopardized his Fifth Amendment privilege not to be compelled to be a witness against himself."

Maryland admits that the officers did improperly initiate contact with Blake, but claims that the first officer's response to the second officer's conduct showed respect for Blake's right to counsel and "cured" any impropriety. 

Tomkovicz has argued that the officers "violated the Edwards doctrine and improperly approached Blake after he asked for a lawyer" and that "this sort of violation should be considered incurable. The officers here crossed a bright line and could not undo the harm they caused."

In his brief, Tomkovicz asks the justices to ensure that Fifth Amendment rights are preserved by adopting a demanding standard for police who continue to question suspects after Miranda rights have been invoked.

"Criminal suspects have to meet a very demanding standard when they ask for an attorney," he said. "Anything less than a clear, unequivocal request for an attorney does not trigger their entitlement to counsel, according to past Court decisions. In my view, the Court put in place an equally demanding standard for police questioning after a suspect informs them that he needs assistance."

The court will hear oral arguments in the case Nov. 1.

Tomkovicz is an expert in criminal law and criminal procedure and has written four previous amicus curiae briefs to the Supreme Court. He was enlisted to write the brief by the National Association of Criminal Defense Attorneys.

STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Suite 371, Iowa City, Iowa 52242-2500.

MEDIA CONTACT: Tom Snee, 319-384-0010, [email protected].

Connecticut: Law Enforcement Agencies Propose New Eyewitness ID Procedures

Leaders in Connecticut's law enforcement community have devised changes to the State's eyewitness ID procedures.  These changes will offer more expansive procedural protection than the procedure the State's Supreme Court urged in a decision last week--that police tell future witnesses, who are about to view a suspect or a photo array, that the perpetrator of the crime "may or may not" be present.

From the Journal Inquirer on NACDL.com: "[T]he development of the new procedures has been going on for months and involves the 13 regional state's attorneys, the Connecticut Police Chiefs Association, and officials in charge of the state-police and municipal-police academies.

Even before the Supreme Court issued its decision [last] week in a case involving the knifepoint robbery of a pedestrian on an East Hartford street, the law-enforcement group had reached a consensus on a set of changes that includes the one urged by the high court...While refusing to overturn the robbery conviction of former Hartford resident Laquan Ledbetter, 22, the Supreme Court strongly suggested that police tell future witnesses who are about to view a suspect or a photo array that the perpetrator of the crime "may or may not" be present.

If police fail to do so, the court ruled, the trial judge must instruct the jury that the approach taken 'tends to increase the probability of misidentification.'  Psychological research has shown that witnesses tend to pick the person in a photo array who looks most like the criminal. The warning that the criminal "may or may not" be present is designed to reduce that tendency.

Morano, [the Chief State's Attorney,] said the 'may or may not' warning was one of the changes the law-enforcement group had decided on before the Supreme Court decision. If police follow the new procedure consistently, he said, there will be no need for any trial judge to give the cautionary jury instruction set out in the decision.

Standard instructions

Under the new procedure, Morano said, a police officer showing a suspect or photo array to an eyewitness will be expected to read a set of standard statements from a form, just as police read the famous Miranda warnings to suspects before interrogating them.

He said those statements will include reminders that it is as important to clear innocent people as to identify the guilty and that people's appearance can change due to changes such as hair styles -- and the statement that the perpetrator may or may not be present. In addition, the officer will say that police will continue to investigate the incident "whether you identify someone or not."

The form also will include a space for the officer to write down any statements the witness makes while viewing the suspect or the photo array. The witness will subsequently be asked to sign the form to confirm what was said.

In addition, the form will include instructions to the officer: not to use words, gestures, or expressions that indicate who the suspect is; to stand outside the field of view of the witness, if practical, in order to avoid giving even subtle, nonverbal feedback; and to avoid making any comment on an identification made by the witness.

The last instruction is designed to avoid the following problem, which has been uncovered by psychological research:

Witnesses who are told they have picked the suspect from a photo array tend to become more confident in the identification. Judges and juries, in turn, give great weight to the confidence of the witness in deciding whether to believe the identification."  Other proposed procedures were rejected. More... [Mark Godsey]

Blog Watch: White Collar CrimeProf Blog in the NYTimes

From NYTimes.com: "Should white-collar criminals receive harsher sentences than street thugs or drug peddlers?...Ellen S. Podgor of the White Collar Crime Prof Blog doesn't think so...While deterrence may work for common criminals, "the SHAME in the community is by far the harshest punishment felt by the white-collar offender," Ms. Podgor writes.

Maybe. But given the shamelessness with which these crimes were committed, relying on shame as a deterrent seems inadequate, somehow. The Tyco execs were taken to state prison, not the relatively comfortable federal system. Brooks Holland, a lawyer, ruminates on Prawsfblog whether prison conditions should be a consideration in sentencing. His take is that most judges wouldn't buy it." Story... [Mark Godsey]

Study Finds Link Between Historical Lynchings and Death Sentences

From the DPIC:  "Recent research has revealed a close correlation between the U.S. states that historically carried out the most lynchings and the states that today have the highest homicide rates and most death sentences.  In a study led by sociologist Steven Messner of the State University of New York at Albany, county data from 10 southern states where historically reliable information on vigilante lynchings between 1882 and 1930 is available were examined (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee). The study then compared this information to more recent homicide data compiled from 1986 to 1995 by the FBI and National Center for Health Statistics. The comparison revealed that the counties with the most lynchings had the highest homicide rates, and the counties with fewer lynchings had comparatively fewer murders, even when researchers controlled for factors such as population, poverty, low levels of education, the percentage of young people in the population, the unemployment rate, and the percentage of single-parent households. Messner noted that "lynching seems to matter and is relevant to our understanding of contemporary lethal violence" in the South. The latest issue of the American Sociological Review contains more information about this study.

In a second study conducted by sociologists David Jacobs and Jason T. Carmichael of Ohio State University and Stephanie L. Kent of the University of Nevada, Las Vegas, research revealed that the number of death sentences for all criminals - black and white - was higher in states with a history of lynchings. The link was particularly strong when the researchers analyzed only death sentences for black defendants. The sociologists theorize that the death penalty became a legal replacement for the lynchings of the past, and that the number of death sentences in states with the most lynchings increased as the state's population of African Americans grew. The researchers noted that this trend suggests that "current racial threat and past vigilantism largely directed against newly freed slaves jointly contribute to current lethal but legal reactions to racial threat." This research will be published in an upcoming issue of the American Sociologial Review."  [Mark Godsey]

Mob News: Gotti, Tocco

RIP Albert "Caesar" Tocco, a mob boss who died in prison, convicted after his own wife testified against him.  He committed some of the murders featured in "Casino," and, according to thestory, cheated his own daughter at tic-tac-toe.  John Gotti Jr., who had an acquittal and a mistrial at his latest trial, was granted bail, but some doubt that he has gone legit.  [Jack Chin]

Dartmouth Student Shot After Altercation with Cal. Football Players

Meleia Willis-Starbuck, a female Dartmouth College student home in California for summer break called a friend on her cellphone for help after she got in a beef with some male University of California foorball players.  The friend showed up with a gun, started shooting, accidentally killed Willis-Starbuck; he was arrested last week after two weeks on the run.  Story here. [Jack Chin]

Shooting Rampage by Child Porn Convict

In upstate New York, a former employee of a nail polish factor who had been fired for possessing child pornography on a company computer returned to the factory to shoot his former bosses.  Three people were shot, none fatally as of the time of the report.  [Jack Chin]