CrimProf Blog

Homicide By Failure to Give Medication

Here's a case right out of a crim law final exam: A mother convicted of murder for failure to give her daughter insulin. [Jack Chin]

Pennsylvania Men Freed on Joint Motion of Prosecution and Defense

The men were serving life for a 1987 murder based on the testimony of a prostitute.  But the testimony did not match the physical evidence, and a witness came forward to explain that the murder was committed by others, as part of a botched drug deal.  Story here. [Jack Chin]

Soldiers Chariged with Abusing Afghani Prisoners

Story here. [Jack Chin]

Bush to Nominate Alito to SCOTUS

Story here.  [Mark Godsey]

Ohio: Attorney General Sides with Innocence Project, Against Local DA

CrimProf Blogger and Cincinnati CrimProf Mark Godsey's representation of an innocence project client has lead to a remarkable stand-off between the Ohio Attorney General and a local prosecutor.  Godsey and his students represent Clarence Elkins, who was convicted of raping and murdering an elderly woman and raping her six-year old grandaughter.  Elkins was convicted based solely on the testimony of the surviving six-year old, who has since recanted.  DNA evidence found on the girl's panties and the grandmother's vaginal swab does not match Elkins, but both samples match a convicted sex offender who resembles Elkins and lived in the neighborhood where the crime occurred.  In spite of this evidence, the local DA insists that the conviction is solid.  The Attorney General disagrees, and sent this letter stating that he intends to appear in the state habeas hearing supporting the defendant's release.  Jana Deloach of Akron and Howard Nichols and Pierre Bergeron of Squire, Sanders & Dempsey also represent Elkins with Godsey and his students.  Visit freeclarence.com here.  [Jack Chin]

This Week's Top 5 Crim Papers

This week's top 5 crim papers, with number of recent downloads on SSRN, are::

(1)	179	Rescue Without Law: An Empirical Perspective on the Duty to Rescue David A. Hyman, University of Illinois College of Law, Date posted to database: September 7, 2005 Last Revised: September 20, 2005
(2)	170	Reasonable Suspicion and Mere Hunches Craig S. Lerner, George Mason University - School of Law, Date posted to database: August 25, 2005 Last Revised: September 1, 2005
(3)	131	Repression and Denial in Criminal Lawyering Susan Bandes, DePaul University College of Law, Date posted to database: August 26, 2005 Last Revised: September 16, 2005
(4)	114	Property Rules and Liability Rules, Once Again Keith N. Hylton, Boston University School of Law, Date posted to database: October 5, 2005 Last Revised: October 13, 2005
(5)	99	Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings Mark Godsey, University of Cincinnati College of Law, Date posted to database: August 26, 2005 Last Revised: October 6, 2005

New Article Spotlight: Discrimination in Sentencing Based on Afrocentric Features

Professors William T. Pizzi, Irene V. Blair and Charles M. Judd published Discrimination in Sentencing on the Basis of Afrocentric Features in 10 Michigan Journal of Race & Law No. 2 (2005).  The SSRN abstract: For a long time, social scientists have worried about possible racial discrimination in sentencing in the United States. With a prison population that exceeds two million inmates of whom approximately 48% are African American, the worry over the fairness of the sentencing process is understandable. This article is not about discrimination between racial categories as such, but about a related form of discrimination, namely, discrimination on the basis of a person's Afro-centric features. Section I of the article describes a line of social science research that shows that a person's Afro-centric features have a strong biasing effect on judgment such that subjects are more willing to attach racial stereotypes, both positive and negative, to persons whom they perceive as having stronger Afro-centric features. The authors theorize that what is happening is that Afro-centric features have come to have potency to influence judgment on their own, irrespective of race. Section II describes what happened when the authors took their research out of the laboratory and examined the sentencing of inmates in the Florida prison system. The same results were found: when inmates who had committed similar crimes and who had similar criminal histories were compared, inmates who had stronger Afro-centric features received longer sentences within their racial category than inmates with less pronounced Afro-centric features. This result is disturbing because it suggests sentences that are unfair, irrational, and unjust. http://papers.ssrn.com/paper.taf?abstract_id=808604

Pilot Program in the OC to Track Sex Offenders in Relation to Crime Scenes

From MercuryNews.com: Santa Ana, CA (AP): "While global positioning systems (GPS) are used to track parolees across the country, Orange County [California] will be the first to automatically cross-reference their location with the scene of a recent crime.  The state is paying for the two-year pilot program.

"It's one of those great tools to potentially identify a suspect, but it also helps us eliminate those people who have not committed the crime," Sheriff Michael S. Carona said Friday.

Under the system, the sheriff's department will send the state Department of Corrections and Rehabilitation information on crimes committed in its jurisdiction.  If a parolee was within 500 feet of a crime scene, the state will notify the sheriff's department. The department can also ask which parolees were closest to a crime scene.

This week, GPS tracking began for 21 high-risk sex offenders in Orange County. Officials expect to increase the number to 40 within two weeks.  Carona said he wants to expand the system to include all high-risk sex offenders, along with gang members, drug dealers and stalkers. Eventually, it should include all people on probation or parole, Carona said....

Monitoring a parolee with GPS costs the state $8.75 per day along with the $9.70 per day it costs to supervise someone on parole." Story... [Mark Godsey]

"Business is Booming for White Collar Criminal Defense Bar"

From Law.com: (The National Law Journal): "Business is booming for the white-collar criminal defense bar. Corporate officials -- both the legitimately worried as well as the unnecessarily paranoid -- see themselves as possible criminal targets and are lawyering up. What's spurring this significant ramp-up in corporate defense work? A major shift in the federal government's approach to corporate crime, says one white-collar criminal defense lawyer...

It all stems from the government's practice of considering indictments not just against individuals but also against companies, he said. Companies can avoid or defer prosecution by handing over to the government any findings from their internal investigations or implicating wrongdoers. That Justice Department policy was in effect earlier but was underscored in 2003 in the so-called Thompson memo, issued by then-Deputy Attorney General Larry D. Thompson...

In theory, creating conflicts between a company and its allegedly criminal officials helps the government get to the facts of a case faster. In practice, it has been a boon for defenders. "It's absolutely a criminal defense lawyers' employment initiative," said Stephanie A. Martz, director of the White Collar Crime Project at the National Association of Criminal Defense Lawyers. "Definitely, this is a boom time right now."

Even so, many white-collar defenders decry the Justice Department's cooperation program. "The fact that business is good doesn't mean that it's either pleasant or healthy for the system," said Joseph F. Savage Jr., a former prosecutor and member of the white-collar defense team at Goodwin Procter in Boston.

"When I first started [defense work], the government would go after people, not typically the company," he said. "Now it's a given the company is in the mix."

The Thompson memo says that indicting corporations for wrongdoing "enables the government to address and be a force for positive change of corporate culture, alter corporate behavior, and prevent, discover, and punish white collar crime."  The memo adds that in gauging the extent of a corporation's cooperation, the prosecutor may consider the company's willingness "to identify the culprits within the corporation, including senior executives; to make witnesses available; to disclose the complete results of its internal investigation; and to waive attorney-client and work product protection."...

Prosecutors use cooperation pressure as a "very powerful tool," said Mary Jo White, chairwoman of New York-based Debevoise & Plimpton's 200-plus-lawyer litigation practice... But coercing a company to cooperate by waiving a privilege under threat of indictment is "being asked for too routinely and too often," White said. "Prosecutors shouldn't be saying, 'Waive the privilege or else be indicted.'" Story... [Mark Godsey]

One Way Ticket to Federal Court

From SeattleTimes.com: "A Southern Oregon woman used a stolen credit card to buy a state lottery scratch-it ticket that was worth $1 million...Christina Goodenow, 38, of White City was lodged without bail in the Jackson County Jail on charges of theft, forgery, identity theft, credit card fraud, possession of methamphetamine, computer crime and a parole violation.

Goodenow purchased the winning ticket Oct. 9 in Central Point, using a credit card that belonged to her mother-in-law, Inez Cornett, who died more than a year ago...Goodenow made the trip Oct. 12 to Oregon Lottery headquarters in Salem to accept a check of $33,500. The $1 million grand prize is paid out over 20 years...A search warrant served at her home Thursday turned up some methamphetamine, but little money."  At this point, no one knows what happened to the first $33,500 payment. Story... [Mark Godsey]

Use of Cell Phones as Warrantless Tracking Devices--Struck Down

From washingtonpost.com: "The FBI may not track the locations of cell phone users without showing evidence that a crime occurred or is in progress,..In separate rulings over the past two weeks, judges in Texas and New York denied FBI requests for court orders that would have forced wireless carriers to continuously reveal the location of a suspect's cell phone as part of an ongoing investigation. Other judges have allowed the practice in other jurisdictions, but the recent rulings could change that.

Depending on a wireless phone's capabilities, carriers can determine either precise or rough locations of users when they make or receive calls, a feature primarily used for emergencies.

On Tuesday, a coalition of technology and privacy groups filed suit challenging a Federal Communications Commission order that would make it easier for law enforcement to monitor e-mail and other Internet-based communication.

In the New York and Texas cases, the courts approved FBI requests for other information from the wireless carriers, including logs of numbers a cell phone user called and received calls from.  Court orders for that information require law enforcement agencies to show only that the information is relevant to an ongoing investigation.

But the FBI also sought cell-site locations, which the courts said amounted to the ability to monitor someone's movements. The judges ruled that such information requires law enforcement to show "probable cause" that a crime has been or is being committed.

Justice Department officials countered that courts around the country have granted many such orders in the past without requiring probable cause. Such orders granted quickly, they said, are critical in tracking fugitives and kidnappers, for example. The officials said that in their interpretation, cell phones are not tracking devices. And even if they are, they said, not all tracking devices require a showing of probable cause.  The officials...said that only when someone has an expectation of privacy does the higher threshold need to be met and that cell phone use does not qualify.

Both [Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York] and federal Magistrate Judge Stephen Wm. Smith of the U.S. District Court for the Southern District of Texas, rejected that argument, and said the government was relying on creative and contrived legal theories." Story... [Mark Godsey]

CrimProf Blog Spotlight: Georgia State's Mark Kadish

This week the CrimProf Blog spotlights Mark J. Kadish of Georgia State Law.

"Mark Kadish graduated from New York University School of Law in 1967. He served in the Judge Advocate Generals Corps. from 1968 through 1971. He was an associate in the law firm of Bailey Alch and Gillis, in Boston MA from 1971 through 1974. He continued in private practice in Atlanta, GA specializing in defending federal criminal cases. He jointly published Volume I of Criminal Law Advocacy, wrote numerous articles for professional journals and lectured nationally.

Professor Kadish was an Adjunct Professor in the Emory University Law School masters program teaching litigation skills. He was a faculty member of the Advanced National Trial Advocacy College and Co-Faculty Director of the Atlanta Bar Association College of Trial Advocacy. He was Chair of the Criminal Defense Section of the Association of Trial Lawyers of America.

He joined the Law School in 1990. He has been the Director of the Lawyer Skills Development Program. He teaches various components of this program, including the second year required Litigation Workshop Course. He also teaches Advanced Issues in Trial Advocacy, a civil litigation seminar course. He has published several law review articles in the areas of criminal procedure.

His public service includes an appointment by the Mayor of Atlanta to review the city court system. He has also taught senior courses at Mercer University. He has been a speaker at various judicial conferences and bar association seminars. He was a part-time pro hac judge in the Atlanta Municipal Court and is currently a part-time magistrate judge in the State Court of Fulton County. He teaches educational programs to magistrate judges. He is a commentator on various television and radio station programs."

Bullet Proof Benches and 'Smart' ID Cards: A Look at New Courthouse Security Proposals

From Law.com (New York Law Journal): "In the wake of a series of unsettling breaches of courthouse security around the nation, the Office of Court Administration on Wednesday released a comprehensive set of 47 proposals to better protect New York courthouses.

A 10-member task force of court officials offered an amalgam of proposals, both large and small, to bolster security. They ranged from providing all 1,200 state-paid judges with bulletproof benches to insuring that prisoners change into civilian clothes before they are brought to courthouses for appearances.

The 51-page report is available on the court system's Web site at www.courts.state.ny.us.

In the last decade, the court system has handled 1,300 threats to judges without any serious disruption of courthouse routine, said Chief Administrative Judge Jonathan Lippman, who ordered the review.

But, he added, the recent slaying of a judge and two court employees in an Atlanta courtroom and the murder of the husband and mother of a federal judge in Illinois "prompted a top-to-bottom review of security procedures throughout the state to make sure that we have the most modern, state-of-the-art security procedures possible."

OCA will spend $342 million, or nearly 17 percent of its $2.1 billion budget, for security in the current fiscal year, which ends March 31. There are 3,500 court officers statewide, an all-time high, with 2,500 deployed in New York City.

Among the report's recommendations:

• Expand statewide statutory authorization in 23 counties for defendants to make routine court appearance via video teleconferencing and eliminate a requirement that the defendant consent to the video appearance.

• Make crimes against judges and court personnel designed to impede the judicial process aggravated offenses similar to the higher designation given to crimes committed against witnesses, jurors and crime victims.

• Establish SWAT-like teams of specially trained court officers to respond to emergencies and serious judicial threats.

• Clarify guidelines on the handcuffing of prisoners to require that they be rear-handcuffed at all times except when appearing before a jury or at an extended hearing.

• Establish a dormitory facility for the training of court officers upstate.

• Issue bullet-resistant vests to all state-paid court officers and develop a way to pay for them.

• Develop a "smart" identification card for court employees and attorneys who use photo ID cards to bypass security searches upon entering courthouses. The new cards would use computer technology to identify the card holder and could be canceled electronically once the card holder is no longer entitled to enter a courthouse without being searched.

• Study whether state court officers should be subject to ongoing performance standards, including periodic assessment of their physical skills."

Story... [Mark Godsey]

New Orleans Cops Fired

A smart Arizona cop told me that a lot of the New Orleans cops who "deserted" might well have been ghost employees holding no show jobs; they didn't show up for Katrina because they didn't exist.  In any event, dozens have been fired. Story here. [Jack Chin]

CrimProfs on Libby Indictment

Including Viet Dinh (Georgetown), Erwin Chemerisky (Duke), Michael Cahill (Brooklyn), Andrew Levy (Maryland), Mark Godsey (Cincinnati) and Jack Chin (Arizona).  Story here.

Libby Indictment Text Here

http://lawprofessors.typepad.com/law_librarian_blog/2005/10/grand_jury_indi.html

New Article Spotlight: Innocence, Harmless Error and Federal Wrongful Conviction Law

"Innocence, Harmless Error, and Federal Wrongful Conviction Law", by U. Va. CrimProf Brandon Garrett,  Wisconsin Law Review, Vol. 35, 2005.  SSRN abstract:  This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth defeating and concealed evidence of innocence. This Article contends that in a civil case, the harmless error rules that limit remedies for violations of criminal procedure rights do not apply. Further, though not generally recognized as such, the Supreme Court has created internal harmless error rules to accompany each of the relevant fair trial claims: the Brady v. Maryland right to have exculpatory evidence disclosed; the right to effective assistance of counsel; the right to be free from suggestive eyewitness identification procedures; and the right not to be subject to a coerced confession. Civil claims suggest the transformative result that for each right, harmless error insulation is stripped away. This Article concludes by reflecting on how wrongful conviction suits may spearhead wide-ranging reform of our criminal justice system and renew substantive development of the constitutional right to a fair trial." Paper available here: http://papers.ssrn.com/paper.taf?abstract_id=794792

SCOTUS to Decide Whether to Fill in Crawford's Blank Spots

From Law.com: (The National Law Journal): "The outcomes of thousands of criminal cases hang in the balance while the U.S. Supreme Court decides whether to clarify when out-of-court accusations may be used in lieu of in-court testimony without violating defendants' Sixth Amendment right to confront witnesses.

Both the National District Attorneys Association's point man on the confrontation clause and the National Association of Criminal Defense Lawyers agree that the time is ripe for the court to satisfy its promise to fill in the blanks it intentionally left when it decided Crawford v. Washington, 541 U.S. 36 (2004).

Two petitions for certiorari that raise confrontation clause issues -- in the context of excited utterance exceptions to hearsay rules -- are pending before the court. Both Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705, domestic violence cases, are listed for action by the court at its Oct. 28 conference. The court's decision on whether it will hear the cases is expected on Oct. 31.

Before Crawford, any hearsay could come in -- even when a witness did not testify -- if the hearsay exception was firmly rooted and traditional, and if a judge found the statement to be reliable and trustworthy in the circumstances in which it was made. Ohio v. Roberts, 448 U.S. 56 (1989).

Crawford bars testimonial hearsay introduced by the prosecution unless the defense has an opportunity to question the person who made the statement, and that person is unavailable at the time of trial. With some exceptions, the court explicitly decided that it would 'leave for another day' a more specific definition of 'testimonial.'...

Barbara Bergman, president of the NACDL and a visiting professor at Washington's Catholic University of America Columbus School of Law, noted the "tremendous confusion in federal and state court decisions as to the meaning of 'testimonial' in the context of Crawford.

"Judges have struggled to see where particular cases fit -- like 911 calls -- that fall between the cracks of the concrete definitions of testimonial that the court laid out," Bergman said." Story... [Mark Godsey]

Here's a chart from The National Law Journal, of where the various courts currently stand:

Where courts stand
Admissibility of "excited utterances" that describe criminal activity to governmental agents under the confrontation clause.

Nontestimonial
Statement can be used at trial without the accuser or witness testifying: 1st and 8th circuits
Intermediate state courts in: Colorado Ohio Tennessee
It depends
Circumstances dictate whether or not the statement can be used at trial without the accuser or witness testifying: 2nd and 9th circuits
High courts in: Connecticut District of Columbia Indiana Maine Minnesota Nebraska North Carolina Washington
Intermediate state courts in: Alabama Alaska California Michigan New York Pennsylvania Texas Wisconsin
Testimonial
Statement cannot be used at trial without the accuser or witness testifying: 6th and 10th circuits
High courts in: Georgia Massachusetts
Intermediate state courts in: California Florida Hawaii Illinois Kentucky Ohio Texas  [Mark Godsey]

No Tricks, No Treats, No Kids for Sex Offenders in New Jersey

From MSNBC.com: Newark: (AP): "New Jersey sex offenders who face supervision under Megan’s Law will be confined to their homes on Halloween and will be under orders not to answer the door when trick-or-treaters come calling.  It will be the first time sex offenders in New Jersey will be subject to a curfew.

The rules were issued by the state Parole Board in a recent letter to the 2,200 offenders it supervises.

The offenders must be indoors by 7 p.m. Monday and cannot answer their door when trick-or-treaters knock. They cannot attend parties where there are children, and cannot take any children, including their own, out in search of treats."  Story... [Mark Godsey]

New Article Spotlight: Wilfully Blinded: On Date Rape and Self-Deception

Willfully Blinded: On Date Rape and Self-Deception, Harvard Journal of Law & Gender, by Howard CrimProf  Andrew E. Taslitz.  SSRN Abstract: This article takes seriously the proposition that many men are telling the truth when they say that they honestly believed that a woman in a date rape case had consented when she in fact did not do so. The article argues, however, that the men are generally truthful at a conscious level, while being aware unconsciously that the truth is otherwise. Furthermore, the absence of conscious awareness is the result of self-deception. Drawing on research in philosophy and cognitive psychology, this article defines the various forms of self-deception and explains how they work in date rape cases. Date rape liability often involves a negligence analysis: Should the man have known of the woman's non-consent? Yet the penalties imposed for negligent date rape are often quite severe, more so than for most crimes of negligence. The article argues that self-deception is best understood as a form of negligent conduct but explains why it is morally far more reprehensible than other sorts of negligence. Next, the article responds to concerns about the morality of punishing men for unconscious thoughts and the problems posed for proving those thoughts and for free will. In particular, the article suggests a form of negligence liability in date rape cases that is meant to discourage male self-deception in sexual intercourse and that does not require proving what any individual male's unconscious state was in a particular case. The article further responds to arguments about the wisdom of such an approach given that it will unquestionably catch some non-self-deceiving males. The law's fear of imposing liability for unconscious desires is based upon a flawed conception of the nature of the conscious and unconscious minds that ignores the teachings of cognitive science. Those teachings establish that there are strategies for changing unconscious thoughts that motivate socially undesirable action even when we are not in the short run aware of the contents of our unconscious mind.