CrimProf Blog

New Article Spotlight: Criminal Justice and the Challenge of Family Ties

From SSRN.com: Florida State University College of Law CrimProf Dan Markel, Wake Forest University College of Law CrimProf Jennifer M. Collins, and University of California Hastings College of Law Ethan J. Leib recently published Criminal Justice and the Challenge of Family Ties.  Here is the Abstract:

This Article asks two basic questions: when does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system.

Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a 'Spartan' presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome.

Here is what the PrawfsBlawg had to say: You still haven't downloaded it? Ok, here are some of our crazier more provocative claims and findings. 

First, did you know that in fourteen states you could harbor a fugitive without penalty--as long as that person is a family member? We think that's a bad idea and we'll tell you why. 

Second, we think the evidentiary privileges for spouses and family members in the criminal justice system should be eliminated. Full stop.  Read the paper and we'll tell you why. 

Third, we explain why sentencing discounts for people on account of family ties and responsibilities should be eliminated.  We argue that such discounts are wrong, illiberal, and bad policy, and that in the case of the "irreplaceable caregiver," time-delayed sentencing should be used instead where possible.  "What's time-delayed sentencing?" you ask.  Read the paper and we'll explain...

[Mark Godsey]

CrimProf Spotlight: Cynthia Lee

This week the CrimProf Blog spotlights CrimProf Cynthia Lee of The George Washington University School of Law:

After graduating with distinction from Stanford University, Professor Lee attended Boalt Hall School of Law where she served as an associate editor on the California Law Review. Upon graduating from law school, Professor Lee served as a law clerk for the Honorable Harold M. Fong, then Chief Judge of the U.S. District Court for the District of Hawaii.

After her clerkship, she joined the law firm of Cooper, White & Cooper in San Francisco where she practiced for two years. Professor Lee started teaching law in 1993 at the University of San Diego School of Law, where she received the Thorsness Prize for Excellence in Teaching in 1996. In August 2001, she joined the GW Law faculty.

Professor Lee teaches and writes in the areas of criminal law and criminal procedure. She has authored numerous law review articles and two books, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom (NYU Press 2003) and Criminal Law: Cases and Materials (West 2005) (with Angela Harris). Professor Lee was elected to membership in the American Law Institute in 2004, and is currently serving as secretary to the AALS criminal justice section. [Mark Godsey]

CrimProf Kevin Washburn Recieves National Institute of Justice Grant

The National Institute of Justice (NIJ) at the US Department of Justice in Washington DC, has awarded a two-year grant to University of Minnesota Law School CrimProf Kevin Washburn and two other professors totaling $1,472,000 for a project entitled, “A Study of the Administration of Justice in Indian Country.”  Professor Washburn is a principal investigator along with Professors Carol Goldberg and Duane Champagne at UCLA.

The grant work will begin in earnest late this fall.  The project staff will be housed at UCLA.  Professor Washburn will help design the research methodology, interpret the data from several hundred interviews, and work to insure that the survey will produce substantive proposals that can make a difference in public policy surrounding these issues. 

The proposal was organized around findings from important work previously performed by Professors Goldberg and Champagne, as well as Washburn's recent Michigan Law Review article on structural problems with criminal justice in Indian country. [Mark Godsey]

Effective Police Strategy: Combining Family Pressure with the Threat of Criminal Charges to Stop Drug Dealers

From WSJ.com:For over three months, police investigated more than 20 dealers operating in a High Point, North Carolina West End neighborhood, where crack cocaine was openly sold on the street and in houses. Police made dozens of undercover buys and videotaped many other drug purchases.

They also did something unusual: they determined the "influentials" in the dealers' lives -- mothers, grandmothers, mentors -- and cultivated relationships with them. When police felt they had amassed ironclad legal cases, they did something even more striking: they refrained from arresting most of the suspected dealers.

In a counterintuitive approach, police here are trying to shut down entire drug markets, in part by giving nonviolent suspected drug dealers a second chance. Their strategy combines the "soft" pressure from families and community with the "hard" threat of aggressive, ready-to-go criminal cases. While critics say the strategy is too lenient, it has met with early success and is being tried by other communities afflicted with overt drug markets and the violence they breed.

Rest of Article. . . [Mark Godsey]

CrimProf Michael Hoffheimer Helps Plan University of Mississippi's Portion of National Guantanamo Program

The University of Mississippi School of Law is among more than 200 academic institutions nationwide slated to participate in a daylong program Oct.5 focusing on detainees held at the U.S. base in Guantanamo Bay, Cuba.  CrimProf Michael Hoffheimer is helping to organize the University of Mississippi's portion of the program.

Originating at Seton Hall Law School in South Orange, N.J., the 9 a.m.-5 p.m. event features major legal scholars and theologians, and is to be made available via high-quality video streams accessed through the Seton Hall Web site.

UM law professor Michael Hoffheimer said the issue of detainees at Guantanamo has dominated the news recently for a number of reasons. "The Supreme Court rejected administration claims that its treatment of enemy combatants is beyond the rule of law," he said. "The court also ruled that the President may not rewrite criminal rules established by Congress to make it easier to convict the detainees."

In the past month, President George W. Bush sought to introduce legislation that would reinterpret the protections afforded to detainees, make it easier to try them and provide immunities for criminal violations of their rights.

The proposed legislation has been widely rejected by the members of Congress, Hoffheimer said. "The administration released many detainees after the Supreme Court recognized their right to a hearing," he said. "But the problem remains of what to do with the many people still held at Guantanamo and in other detention facilities."

And for many, the problems posed by Guantanamo are symbolic of a much larger issue, Hoffheimer said. "Guantanamo is viewed by many as a symbol of arbitrary rule of a profoundly wrongheaded policy in the fight against terrorism."

Topics to be addressed during the conference include the roles of professional journalists, lawyers and health care providers, such as a journalist's right to publish classified documents about a detainee's death or mistreatment during interrogation and the proper response for military personnel who are asked to violate the laws of war. [Mark Godsey]

D.C.'s Emergency Anti-Crime Legislation at a Standstill for Review

D.C. Mayor Anthony A. Williams is stuck between a rock and a hard place.  His plan to extend emergency anti-crime legislation appears to violate a city statute barring passage of the same law more than once on an emergency basis.  The rationale underlying the city statute is to prevent city officials from circumventing the congressional review period to which D.C. laws are subject.
So city officials are trying to determine whether a 90 day extension of the anti-crime legislation enacted in July would, in fact, violate the city statute.  If it is found to violate the statute, 48 surveillance cameras placed in neighborhoods would have to be turned off until permanent anti-crime legislation could be enacted, which would be December at the earliest. In addition, police no longer would have access to criminal juvenile records and would not be able to hold robbery suspects and handgun offenders until the permanent legislation is passed. And the 10 p.m. curfew for minors would revert to 11 p.m. on weeknights and midnight on weekends. More from WashingtonTimes.com. . . [Michele Berry]

The Neon Sign Reads: REVERSIBLE ERROR

A Michigan lawyer was held in contempt and fined for phrasing his cross examination questions as declarative statements, a perfectly legitimate technique. (See Pozner & Dodd and precedents below). Now he's being forced to appeal.  Here is how the cross proceeded:   

Q: Okay. There  was never a formal partnership actually done up?
A:  No.
Q: And, in  fact, Mr. E was treated more or less like an employee by the company?
A: In what  respect?
Q: He was paid  weekly?
A: That was  what was agreed upon because he didn't have any money.
Q: And, you  were paying him five hundred dollars per week to go out and do all this towing?
A:  Correct.
Q: And, as you  indicated, at some point you stopped paying Mr. E?
A:  Yes.

This method of cross-examination continued until the following question was posed by defense counsel:
Q: Okay. You made your first phone call to Mr. E on the 16th, September 16?
A: I believe - - yes.
THE COURT: Mr. M, I'm not going to warn you again. From now on every time something comes out of your mouth that's worded as a statement, I'm fining you  one hundred dollars. Is that clear?
MR. M: Your Honor, it's- -
THE COURT: Start them with; "were you," "did you," put a "correct," or "is that right" on the end of it. That's fine but I'm not going to rely on your inflection to know if you're testifying or questioning. Is that clear?
MR. M: Your Honor, it's - - it's Pozner and Dodd. It's It's acceptable
THE COURT: Is that clear?
MR. M - - cross-examination.
THE COURT: It's not acceptable in my courtroom. If you don't like it you can appeal me after I'm done fining you. Is that clear?
MR. M: Yes, your honor.
[Tr. at 13-14]

Counsel for petitioner engaged in the lower court's requirement of adding a phrase of questioning for the remainder of the cross-examination. Then the following questions were posed to the witness by defense counsel, at which time defense counsel was held in contempt:

Q: You never specifically said to Mr. E that he did not have permission to keep the computer, correct?
A: That is correct.
Q: Okay. And, you never specifically told Mr. E that he did not have permission to keep the GPS?
A: My messages were he - -
THE COURT: That's one hundred. Phrase it in a question so the witness can answer.  Are you done questioning this witness?
MR. M: No, your Honor.

Here are a couple precedents upholding the legitimacy of the technique:

Ohio v. Roberts, 448 U.S. 56, 70-71 (1980) ("counsel's questioning clearly partook of cross-examination as a matter of form; footnote references to the cross:
" 'you never gave them. . .'; 'this wasn't then in the pack'; 'you havenever [not] seen [discussed; talked]. . .you never gave. . .'").

and

H.L. v. Matheson, 450 U.S. 398, 401-02 (1981). The witness gave ". . . monosyllabic answers to. . . leading  questions." and here is the example in the case:
Q: At the time that the Complaints in this matter was signed, you were pregnant?
A: Yes
Q: You had consulted with a counselor about that  pregnancy?
A: Yeah.
Q: You had determined after talking to the counselor  that you felt you should get an abortion?
A: Yes.
Q: You felt that you  did not want to notify your parent.
A: Right.

[Michele Berry, thanks to NACDL & Jay Clark]

Senate Weighs ABA Finding that Michael Wallace is Unqualified for US Ct of Appeals

From NPR.org: The Senate Judiciary Committee weighs the nomination of Michael Wallace to the U.S. Court of Appeals, Fifth Circuit. Wallace was deemed unqualified for the post by the American Bar Association in a unanimous vote, saying he lacked the freedom from bias necessary to be an effective judge.  Listen. . . [Mark Godsey]

Profs and Public Defenders Fight to Free Youths from Shackles

In a groundbreaking case, Miami-Dade’s Public Defenders’ Office filed a motion in Juvenile Court this week, challenging Florida’s 11th Judicial Circuit’s policy of using arms and legs shackles on all juvenile pre-trial detainees who appear before it. The policy applies to all juveniles in secure detention, regardless of age, size, gender, pending charges, history of violence, or risk of escape.

University of Miami School of Law Professors Perlmutter and Winick, experts in children and juvenile law and therapeutic jurisprudence, filed a joint affidavit, opining that the indiscriminate blanket policy of shackling all juvenile offenders, in the absence of an individualized determination that the child poses a risk of flight or harm, is anti-therapeutic, prejudicial to their obtaining a fair trial, and antithetical to the rehabilitative aims of the juvenile justice system.

Professor Schnably, an expert in international law, opined in his affidavit that the practice is inconsistent with U.S. obligations under international law to treat all detainees with respect and dignity and to provide children with protections required by their status as children.

At least one judge in the Juvenile Division has already agreed to discontinue the practice, and the three others are considering [Mark Godsey]

CrimProf Gregory S. Gordon Gives His Expertise to the Media

University of North Dakota School of Law CrimProf Gregory S. Gordon has become the local expert on issues related to federal death penalty cases. Specifically he has been interviewed on the trial and penalty phases resulting from the federal criminal charges against Alphonso Rodriguez, Jr. who was charged with the murder of UND student Dru Sjodin.

Professor Gordon joined the faculty of the UND Law School in August 2006. He comes to UND from Washington, D.C. where he most recently worked for the Department of Justice Criminal Division’s Office of Special Investigations. There he helped investigate and prosecute Nazi war criminals and modern human rights violators.

Professor Gordon has been featured on C-SPAN, NPR and Radio France Internationale as an expert on war crimes prosecution and has lectured on that subject at the U.S. Army J.A.G. School and the Harry S. Truman Presidential Museum and Library. [Mark Godsey]

If Violent Crime's a Sport, is the U.S. House the Head Cheerleader?

Here's a take on gun control laws and curbing violent crime from the Huffington Post: "Violent crime 'is becoming more of a sport.'  That's how the Speaker of the Pennsylvania House, John Perzal, characterized the violence that has engulfed Philadelphia and spread throughout Pennsylvannia...On Tuesday 2,000 Pennsylvanians, many of whom had lost loved ones to gun violence, descended on the state capital to demand tougher gun laws to stem the bloody tide of rising gun violence in the state. Across the country, the Department of Justice reported this month that the rate of firearm violence increased almost 50 percent between 2004 and 2005.  Meanwhile, the U.S. House yesterday confirmed its role as "head cheerleader" for gun crime by passing legislation (H.R. 5092) that makes it harder for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to revoke the licenses of corrupt gun dealers. Ignoring, as usual, law enforcement opposition such as the International Association of Chiefs of Police and, well, facts (corrupt gun dealers are the highest volume supplier of illegally trafficked guns), the House voted 277-131 to pass legislation that actually makes ignorance of the law an excuse whenever ATF moves to revoke a dealer's license (which they hardly ever do anyway).The House had more gun happy legislation waiting in the wings, including a bill to further restrict the access of state and local governments as well as law enforcement agencies to the crime gun trace data that is crucial to stopping illegal gun trafficking, but, mercifully, ran out of time to pass it." More from Josh Sugarmann in the Huffington Post. . .  [Michele Berry]

Take-Home Police Cruisers: Driving Away Crime or Driving Up Costs?

The Fort Wayne City Council, like many city councils, allow Fort Wayne police officers to take their cruisers home and use them off duty.  Is it a crime deterrent (as this article claims) or a feel good policy that Fort Wayne cops have come to see as a benefit of the job (the question raised in this article)? [Michele Berry]

White Collar Sentencing: Where's the Parity?

From Forbes.com: "It’s easy to become perplexed at the massively disparate consequences laid down on former Enron finance chief Andy Fastow versus that of Bernie Ebbers, former chief executive of WorldCom. Both committed massive frauds where countless shareholders and employees lost billions, yet one will be able to take his son to get his driver’s license, while the other will likely die an old man behind bars. Whether you are bullish or bearish on prison penalties, this doesn’t make sense, does it? Should there not be some semblance of parity?"  Closer examination here discusses the method behind the two prison sentences. [Michele Berry]

Five Frat Brothers are the First to Face Florida's New Hazing Law

miamiherald.com: Five fraternity brothers are set to go on trial in Tallahassee in the first case under Florida's new anti-hazing law, passed last year. Named the Chad Meredith Act in honor of the University of Miami student who drowned in a hazing incident five years ago, the law takes a mighty swipe at age-old fraternity and sorority hazing rites of passage.

Under the new law, authored by Rep. Adam Hasner, R-Delray Beach, hazing that results in serious injury or death is a third-degree felony punishable by up to five years in prison, even if the victim consents.

According to the police complaint with the Leon County Sheriff's Office, victim Marcus Jones was among 26 pledges taken to an abandoned warehouse in Tallahassee. There, they were blindfolded, taunted, slapped, paddled with wooden canes and jabbed with boxing gloves. By the time Jones got home, his parents would see the bloodied clothes and towels and rush him to an emergency room; he lost a pint of blood. He had a hematoma on his buttocks and required surgery, stitches and a drainage tube. Rest of Article. . . [Mark Godsey]

The Answer to Preventing Teen Drug Use: Eating Dinner

From latimes.com: Research by a substance abuse center at Columbia University shows that one of the most effective ways to keep children off alcohol and drugs is for parents to simply to sit down with them at dinnertime.

The annual teen survey, conducted by the National Center on Addiction and Substance Abuse at Columbia University, has consistently revealed a strong correlation between the frequency of family dinners and teen substance abuse risk. This year, 58% of teens reported having dinner with their family at least five times a week — the same as in the last few years and an increase since 1996, the first year the survey was done.

The obstacles to family dining are clear. One out of four teens say both their parents work late. Twenty-two percent say their family is too busy, and 21% say conflicting schedules are to blame. Also, 18% said that either the family does not choose to eat together or is watching television at mealtime. Rest of Article. . . [Mark Godsey]

Newsday Analysis: Why Sex Offender Clusters Form

From Newsday.com: A Newsday analysis shows that Coram and Gordon Heights have by far the highest concentration of Level 2 and 3 sex offenders on Long Island: 39 convicted sex offenders live within a half-square-mile area.  Fifteen reside on one block alone, and 11 properties house multiple offenders.

It's no accident that so many sex offenders ended up in this small area, according to experts, politicians and offenders themselves. Newsday's analysis shows that this cluster came about for a variety of reasons, including the low cost of rentals, their location more than a quarter-mile from schools or playgrounds, which is required by law, and the willingness of some landlords to accept sex offenders.

Department of Social Services also plays a large role in forming clusters. DSS officials insist they do not "place" offenders in homes or neighborhoods. Rather, they say they give offenders vouchers to pay for housing, advertisements for vacancies, and phone numbers for brokers and landlords willing to accept offenders; but offenders are responsible for choosing a residence. Rest of Article. . . [Mark Godsey]

CrimProf Charles J. Ogletree Jr. Speaks at Criminal Justice and Equality Discussion

Harvard University Law School CrimProf Charles J. Ogletree Jr. and Visiting Professor of Law Derrick Bell at Pitt, will participate in a discussion titled “150 Years After Dred Scott: Is the Most Criticized Case in American History Still Relevant?” at the University of Pittsburgh School of Law on September 27 to discuss criminal justice and equality.

Ogletree earned the Bachelor and Master of Arts degrees in political science at Stanford University in 1974 and 1975, respectively, and received his law degree in 1978 from Harvard University. Named professor of law in 1993, Ogletree has served as director of Harvard's Criminal Justice Institute and as both faculty director and associate dean of clinical programs at Harvard.

His books include All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education (W.W. Norton & Company, 2004) and From Lynch Mobs to the Killing State: Race and the Death Penalty in America (coedited with Austin Sarat; New York University Press, 2006).

Bell received his law degree from Pitt's School of Law in 1957, after having earned his undergraduate degree at Duquesne University in 1952. Former litigator with the NAACP Legal Defense Fund from 1960 to 1965, Bell is said to have worked in every aspect of civil rights. Appointed to the Harvard University Law School faculty in 1969, Bell left Harvard in 1981 to serve as dean at the University of Oregon School of Law. He returned to Harvard in 1986, but left again in 1992 to pursue his current position as a visiting (full time) professor of law at the New York University School of Law. [Mark Godsey]

New Article Spotlight: Scalian Skepticism and the Sixth Amendment in the Twilight of the Rehnquist Court

From SSRN.com: Chapman University School of Law CrimProf Katherine M. Darmer recently published Scalian Skepticisim and the Sixth Amendment in the Twilight of the Rehnquist Court.  Here is the abstract:

While the late Chief Justice William Rehnquist left behind a rich criminal procedure legacy marked by pro-government successes in the Fourth and Fifth Amendment contexts, this paper argues that Rehnquist's vision failed with respect to the Sixth Amendment.

In both the Federal Sentencing Guidelines and Confrontation Clause contexts, Justice Scalia marked out very different positions than Rehnquist on both the scope of the right to trial by jury and the right of cross-examination. Ultimately, Scalia's views prevailed, and part of the legacy of the "Rehnquist Court" is now the invalidation of the U.S. Sentencing Guidelines and a "testimonial" approach to the Confrontation Clause.

Ultimately, Scalia's skepticism of the judiciary stood in marked contrast to Rehnquist's more pragmatic approach to the Sixth Amendment and resulted in pro-defendant rulings based on a more "purist" view of the constitutional rights of criminal defendants. [Mark Godsey]

CrimProf Nancy J. King Will Direct Habeas Corpus Study

Vanderbilt University Law School has received a grant of approximately $250,000 from the National Institute of Justiceto complete a study of the processing of habeas corpus cases in U.S. District Courts.

The study, directed by Vanderbilt Law School CrimProf Nancy J. King, will analyze four general categories of information about these cases, including processing times, operation and application of defenses and other limitations on review, claims raised and merits review.

“This study will make available, for the first time, comprehensive empirical information about the processing of capital and non-capital habeas petitions in U.S. district courts under the Antiterrorism and Effective Death Penalty Act of 1996,” Professor King said. “The overall goal of the research is to provide impartial findings and analyses that will be useful to Congress, courts, attorneys and researchers in assessing habeas policy.” Rest of Story. . . [Mark Godsey]

CrimProf Jerry Uelmen Speaks at Snitch Testimony Conference

Santa Clara University Law School will be hosting a Snitch Testimony Conference with Santa Clara County District Attorney George Kennedy, Exoneree Gloria Killian, and CrimProf Jerry Uelmen leading the discussion on October 4, 2006.

Gloria Killian was released from prison on 8/8/02 after serving more than 16 years on a sentence of 32 years to life for a crime that she did not commit. Throughout her trial and incarceration she always maintained her innocence. In March 2002 the Ninth Circuit Court of Appeals determined that her conviction was based solely on perjured testimony and overturned her conviction. Snitch testimony figured prominently in Ms. Killian’s case. Ms. Killian is now the Executive Director of her own non-profit organization, the Action Committee for Women in Prison (ACWIP).

Professor Uelmen did indigent criminal defense work at Georgetown while earning a LL.M. degree. In 1970, he joined the faculty of Loyola Law School in Los Angeles, where he taught Criminal Law and Procedure, Evidence, Trial Advocacy, Legal Ethics, and Counseling and Negotiation. He also served as associate dean for two years and maintained an active part-time criminal defense practice, participating in the defense of Daniel Ellsberg in the Pentagon Papers trial and successfully challenging the murder conviction of Gordon Castillo Hall. He served as dean at Santa Clara from 1986 to 1994. In 1994–95, he served on the defense team for the trial of People v. O.J. Simpson. Professor Uelmen was recently named Executive Director of the California Commission on the Fair Administration of Justice. More Info. . . [Mark Godsey]