CrimProf Blog

The "Perp Walk" Phenom

Can a defendant avoid being handcuffed, arrested and paraded in full view of the media? Unfortunately for criminal defendants, including white-collar ones, the answer often is no. The practice of a "perp walk" is becoming increasingly common, and some government attorneys are using it as a prosecution tool. Although defendants have limited protections, defense attorneys and corporate counsel have some options to help protect corporate executives who might soon be taking a perp walk of their own. More from the National Law Journal. . . [Mark Godsey]

SCOTUS Limits Police Search Power

Yesterday, in Georgia v. Randolph (04-1067)the Supreme Court ruled 5-3 that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count.

"We have to admit we are drawing a fine line," Justice Souter wrote for the Court, but added "we think the formalism is justified" and that it will be easier to enforce in practice. Thus, the Court held, if the individual who may be at legal risk of prosecution and thus does not want the police to enter "is in fact at the door and objects," the other occupant's consent to search will not suffice. But, Souter added, if the objector is nearby, and not at the door, an objection by him will not block the search. The Court stressed, though, that police may not take a potentialy objecting tenant away from the home in order to be able to make the search with the other occupant's consent.

Chief Justice Roberts, in his first written dissenting opinion, said the majority fashioned a rule that "does not implement the high office of the Fourth Amendment, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room....The cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a non-consenting abuser." More. . . [Mark Godsey]

Courts, Congress, DOJ Scrutinize Witness Detention Law

After reports that it has been abused in terrorism investigations, a 22-year-old federal law that allows people to be held without charges if they have information about others' crimes is coming under fresh scrutiny in the courts, in Congress, and within the Justice Department. The law allows so-called material witnesses to be held long enough to secure their testimony if there is reason to think they will flee. But lawyers for material-witness-detainees say the law has been used to hold people who the government fears will commit terrorist acts in the future, but whom it lacks probable cause to charge with a crime.

Concerns about how the law has been used have prompted calls from across the political spectrum for a reassessment. That debate has also ignited a broader one: whether the United States should join the several Western nations that have straightforward preventive detention laws. More from NYTimes. . . [Mark Godsey]

Sex Toys Sending Vibrations through the 11th Circuit

A number of states still have laws that make it a crime to sell or distribute sex toys, and over the past several years there has been a notable amount of litigation throughout many southern states concerning whether these laws remain constitutional in the aftermath of the U.S. Supreme Court's ruling in Lawrence v. Texas, which holds that states cannot outlaw homosexual sodomy between consenting adults. Here's a description of cases challenging laws criminalizing sex toy sales and/or distribution, which can be summarized as follows: Sex toy bans are constitutional, except for when they violate First Amendment commercial speech rights, and please be sure to remove the batteries before placing sex toys into checked luggage. [Mark Godsey]

2nd Cir: Overturns White Collar Conviction for Flawed Jury Instructions

On Monday, the US Court of Appeals for the Second Circuit overturned the conviction of Frank P. Quattrone, a former technology investment banker at Credit Suisse First Boston.  The court ruled that the judge presiding over the case gave the jury erroneous instructions and ordered a retrial of Quattrone under a different judge than the one who originally presided over the case.

The jury had convicted Quattrone of obstruction of justice for encouraging the destruction of documents that were being sought by a grand jury and the Securities and Exchange Commission. In writing for the court, Judge Richard C. Wesley said the original judge, Judge Owen's, instructions regarding the requisite mens rea were flawed.  The instructions did not require jurors to determine that Quattrone knew the documents he was asking associates to destroy were the same ones being sought by investigators.  Instead of requiring Quattrone's specific knowledge, it "left a barebones strict liability case." More. . . [Mark Godsey]

SCOTUS Rules on Anticipatory Search Warrants

Yesterday, SCOTUS handed down a decision in United States v. Grubbs, No. 04-1414.  In this case, the court resolved two questions relating to the constitutionality of "anticipatory" search warrants. First, the court rejected an argument that such warrants are categorically unconstitutional. Second, the court held that an anticipatory warrant that does not specify the "triggering" condition for the search does not violate the Fourth Amendment's requirement that a search warrant describe with particularity the place to be searched and the people or items to be seized. [Mark Godsey]

June Terrorism Symposium

June 12-13, 2006, Denver

The National Institute of Justice invites State and local law enforcement officials to learn what the research shows about what works to prevent and respond to terrorism.

Panelists will describe their challenges and experience in interactive, dynamic sessions.

Visit http://www.ojp.usdoj.gov/nij/events/register_ts.html to register.

Topics

 

• How to identify warning signs.
• What local prosecutors are doing to combat terrorism.
• Ways to improve cooperation between law enforcement and Arab communities.
• Securing shopping malls and seaports.
• Money laundering: Do you know it when you see it?

Who should attend? Law enforcement officers, policymakers, researchers, criminal justice practitioners, community members, public health officials, social scientists, and anyone interested in learning more about strategies to combat terrorism.

Harvard Reentry Conference

M  A  C  D  L Massachusetts Association of Criminal Defense Lawyers

The Criminal Justice Institute and the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School will co-host a national conference, entitled ReThinking Re-Entry: Confronting Perpetual Punishment, on March 31 - April 1, 2006.   Among the topics which panelists will discuss and explore in depth are addiction, community impact, disenfranchisement, economics and education, employment, housing, mental health, public policy, and women/families.   This conference will bring together a broad cross-section of stakeholders - academics, corrections officials, community based organizations, formerly incarcerated people and their families, youth, service providers, government officials and representatives of the media.   To learn more, go to

www.law.harvard.edu/academics/clinical/cji/events.htm

DNA Exoneration for Texas Rape

A 47 year old man did 18 years before being exonerated; he was convicted after being picked out of a lineup.

Welcome to the Blogosphere: Second Circuit Sentencing Blog

Cardozo adjunct crimprof and criminal defense lawyer Harlan Protass recently created the “Second Circuit Sentencing Blog” (http://www.fedsentencinglaw.com).  It is an analytic library of all substantive sentencing decisions in the Second Circuit (including district courts).  It is well worth checking out. (Jack Chin)

SCOTUS: Hears Confrontation Clause Case

SCOTUS may be poised to make it more difficult to prosecute cases of domestic violence when victims are unwilling or unable to testify in court. Yesterday, the Court heard the appeals of two men who were convicted of assaulting women based, in one case, on a recorded 911 call, and, in the other, on a police officer's testimony of what the victim told him.

Over the past two decades, prosecutors in domestic-violence and child-abuse cases have relied heavily on testimony by police officers and counselors who interviewed the victims when those victims could not or would not appear in court. But Scalia insists the Constitution guarantees all defendants a right to confront their accusers in court, and he sees no basis for an exception in cases of domestic violence or child abuse.

Since the Crawford v. Washington decision, prosecutors have relied more on recorded 911 calls and on "spontaneous" statements given to police officers who arrive at a crime scene. The theory is that these statements are uniquely revealing and distinct from formal testimony and, therefore, should be allowed in court. But the Supreme Court appears ready to close that option in the pair of cases heard yesterday. Scalia wrote for a 7-2 majority in the Crawford case, and the two dissenters — Chief Justice William Rehnquist and Justice Sandra Day O'Connor — are now gone. More from Seattle Times. . . [Mark Godsey]

Vermont: Lawyer Found in Contempt during Rule 11 Change of Plea

On March 10, the Vermont Supreme Court affirmed a trial court's decision summarily finding a criminal defense lawyer in contempt during a Rule 11 change of plea. The only dissent was by a trial court judge sitting by designation in the Supreme Court. 

The key paragraph in the dissent reads:
"To my knowledge, this is the first time in Vermont that an attorney has been criminally convicted and held in jail for efforts to protect a client's rights.  This is of even greater concern given that
attorney in this case never had the opportunity for a hearing.  Rather, he was subject to a criminal conviction and yet received less due process than someone who is charged with a noise complaint or a speeding ticket.  While the trial judge must have the power to maintain order and preserve respect for the institution of the court, this cannot be done at the expense of procedural fairness.

The decision, In re Duckworth, can be found here. [Mark Godsey, thanks to Wayne Young]

Quoted CrimProfs

Houston CrimProf Sandra Guerra Thompson is quoted in this article from the Houston Chronicle about jurors' reluctance to consider a not-guilty-by-reason-of-insanity (NGRI) verdict. Instead, she explains, jurors lean towards conviction because jurors often feel a responsibility to keep defendants off the streets, and they fear that an insanity verdict will too easily allow the defendant's release into society.

Alabama CrimProf Dan Filler is quoted in this article from the Boston Globe about hardline drunk driving statutes, such as Rhode Island's law, that criminalizes refusing to take a breathalyzer test.  Filler notes that crim pro jurisprudence treats automobiles different, giving them less constitutional protection, for public safety reasons.  So once laws like this gain popularity and pass constitutional muster, it's tough for the courts to take back power from law enforcement in the future. 

Case Western CrimProf Michael Scharf is quoted in this article from Reason Online about the lessons the judges presiding over Saddam's trial should learn from how Milosevic's trial was handled; and this article from Ohmy News about how Bosnia will focus its genocide suit against Serbia, as a country, now that they can no longer try Milosevic.

[Mark Godsey]

Arizona CrimProf Jack Chin is quoted in this article about collateral consequences. [JC]

Have they Considered GMail? FBI Does without Email

CNN reports that FBI agents are going without .gov accounts for cost reasons.  Not all of the agents and analysis have a need to be connected to the internet, FBI spokespersons say. 

California Pot-Candy Ring Busted

A California drug operation is guilty of passing off its dope-laced chocolate treats as name-brand confections.  The dealers prepared such such sound-alike items as Toka-Cola, Pot Tarts, Puff-A-Mint Pattie, Stoney Ranchers, Munchy Way, and Buddahfinger.  It is one thing to sell a little dope, but these IP law violators can expect to face the full consequences of the law.

Quattrone Gets New Trial

The Second Circuit reversed his conviction.  ConglomerateBlog's take here. [Jack Chin]

Sentencing Symposium Brings CrimProfs to Pacific McGeorge

A 2005 Supreme Court decision that changed a key part of the federal sentencing system drew a panel of distinguished legal scholars from around the country to Pacific McGeorge on March 10.

Pacific McGeorge Professor Michael Vitiello introduced the lineup for the symposium on U.S. v. Booker. Among the speakers was distinguished constitutional law Professor Erwin Chemerinsky of Duke Law School.

The Booker Court declared that the judges’ federal sentencing guidelines were invalid and that the 6 th Amendment required juries, not judges, to find facts relevant to sentencing. The symposium, sponsored by the McGeorge Law Review, explored criminal sentencing in the post-Booker world.

Participants included: Professor Diane Coursell, University of Wyoming School of Law; Norman Bay, University of New Mexico School of Law; Benji McMurray, law clerk, U.S. 10 th Circuit Court of Appeals; Professor Michael O’Hear, Marquette University Law School; Professor Deborah Young, Cumberland School of Law; Professor Myrna Raeder, Southwestern University School of Law; Professor Peter Henning, Wayne State University Law School; Professor Eric Luna, University of Utah S.J. Quinney College of Law; and Professor Barton Poulson, Utah Valley State College.

For more information about any story or event, contact Mike Curran, Publications/Media Relations, [email protected] or 916-739-7115

This Week's Top 5 Crim Papers

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

(1)	200	Law, Science, and Morality: A Review of Richard Posner's 'The Problematics of Moral and Legal Theory' John Mikhail, Georgetown University - Law Center, Date posted to database: January 24, 2006 Last Revised: March 15, 2006
(2)	163	Uses and Abuses of Empirical Evidence in the Death Penalty Debate John J. Donohue, Justin Wolfers, Yale Law School, University of Pennsylvania - Business & Public Policy Department, Date posted to database: December 19, 2005 Last Revised: February 10, 2006
(3)	152	Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data Mark Denbeaux, Joshua W. Denbeaux, Seton Hall University - School of Law, Denbeaux & Denbeaux, Date posted to database: February 21, 2006 Last Revised: March 6, 2006
(4)	105	The Japanese American Cases - A Bigger Disaster than We Realized Eric L. Muller, University of North Carolina at Chapel Hill - School of Law, Date posted to database: February 6, 2006 Last Revised: February 15, 2006
(5)	95	Giarratano is a Scarecrow: The Right to Counsel in State Capital Post-Conviction Proceedings Eric M. Freedman, Hofstra School of Law, Date posted to database: January 6, 2006 Last Revised: March 8, 2006

US News: Article on Warrantless Physical Searches

US News reports that the government may have been engaging in warrantless physical searches in the United States based on national security considerations.

Dan Ackman: Dispatches from a Mob Trial

Reporter Dan Ackman has a very interesting feature on Slate regarding the trial of two cops for acting as mob enforcers. [Jack Chin]