CrimProf Blog

Extended Stay for National Guard in New Orleans

After six crime-related deaths over Thanksgiving weekend, the New Orleans police chief plans to ask the governor to keep National Guard troops in New Orleans through June 2007.  The Guard was supposed to end its stay at the end of 2006. Soldiers began patrolling New Orleans neighborhoods last June 2006 after five teenagers were killed in a shooting. The Guard focused on areas most devastated by Hurricane Katrina so police could focus on higher-crime areas.  Since June, 300 National Guard troops have patrolled New Orleans and assisted in about 1,400 arrests.  The soldiers cannot make arrests, but they can detain people until a police officer arrives. Story from washingtonpost.com. . . [Michele Berry]

Death Penalty News

Kentucky Supreme Court Upholds State's Lethal Injection Process: The Kentucky Supreme Court rejected claims by death row inmates that the state's lethal injection process risks wanton and excruciating pain in violation of the ban on cruel and unusal punishments. The Court upheld a 2005 lower court ruling similarly rejecting the claims of inmates Ralph Baze and Thomas C. Bowling. In its unanimous ruling, the Supreme Court held: "Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain. But the prohibition is against cruel punishment and does not require a complete absence of pain." Story from Death Penalty Information Center. . .

Mentally Ill on Death Row: There is growing concern among national mental health and legal organizations regarding inmates on death row who are severely mentally ill. Many of these inmates had been exhibiting clear signs of mental illness at the time of their crimes, and some, like Scott Panetti in Texas and Guy LeGrande in North Carolina, were allowed to represent themselves at trial, despite their bizarre behavior. Mr. Panetti, who was hospitalized 14 times for mental problems prior to his trial, represented himself in a cowboy suit and tried to subpoena Jesus Christ. The trial devolved at times into chaos and gibberish. Mr. LeGrande, who is scheduled to be executed on December 1, represented himself wearing a Superman T-shirt and called the jurors "Antichrists." UPDATE: Guy LeGrande's execution in North Carolina was stayed pending a 60-day mental health evaluation. Story from DPIC. . .

Florida Schedules Last Execution of 2006, Non-English Speaking Pro Se Inmate: The last execution scheduled for 2006 involves a Florida inmate, Angel Nieves-Diaz, who defended himself at his trial and needed an interpreter because he did not speak English. Diaz, a native of Puerto Rico, was convicted and sentenced to death in 1986 for a murder in connection with a robbery of a bar in Miami in 1979. The case sat idle for 5 years until an accomplice, who was already serving a life sentence, came forward implicating Diaz. The accomplice received another life sentence. Story from DPIC. . . [Michele Berry]

CrimProf Alan Young Discusses Shifting Burden of Bail to the Accused

From TheStar.com: Osgoode Hall Law School CrimProf Alan Young recently discussed the Canadian federal government's tabled legislation that would reverse the onus at bail hearings for those accused of serious crimes involving guns.

Instead of requiring Crown attorneys to establish why an accused person should not be released, the new law would shift the burden to the person charged to show why he or she should be granted bail.

"It's a part of the criminal justice process that's remained largely invisible to empirical research," said CrimProf Alan Young.

"Proposing reverse onus (provisions) is a complete shot in the dark, because we don't know if the current regime is effective," he said. "We don't have any real sense of compliance rates or the recurrence of violence while out on bail." Rest of Article. . . [Mark Godsey]

CrimProf Michael Hoffheimer and Son Write "The Beatles and Philosophy"

University of Mississippi School of Law CrimProf Michael Hoffheimer and his 17-year-old son have co-authored a chapter in the book "The Beatles and Philosophy."

The contribution of Michael and Joseph Hoffheimer discusses the songs of Beatles member George Harrison and argues that Harrison's interest in Eastern philosophy added depth to the Beatles and helped change the course of Western popular culture.

Father and son agree that their work on the project was enjoyable. "My dad did most of the actual writing, but I compiled a chronology, contributed ideas and proofread," Joseph said.

The co-authors learned a lot about Harrison in writing the chapter. Professor Hoffheimer said he was surprised to find out that George the Beatle first saw a sitar while filming HELP! and soon was studying the Indian instrument and recording with it. Joseph added, "I learned a lot about George's post-Beatle career, such as his Concert for Bangladesh, which included Ravi Shankar, Eric Clapton, Bob Dylan, Leon Russell, Billy Preston and Ringo." [Mark Godsey]

This Week's Top Five Crim Papers

The top 5 crim papers for this week, with number of recent downloads, from SSRN are:

(1)	106	Structural Reform Prosecution Brandon L. Garrett, University of Virginia - School of Law, Date posted to database: September 20, 2006 Last Revised: September 24, 2006
(2)	59	Whimsical Punishment: The Vice of Federal Intervention, Constitutionalization, and Substantive Due Process in Punitive Damages Law Jenny Miao Jiang, University of California, Berkeley - School of Law (Boalt Hall), Date posted to database: October 12, 2006 Last Revised: October 30, 2006
(3)	46	Finding Bickel Gold in a Hill of Beans Douglas A. Berman, Ohio State University - Michael E. Moritz College of Law, Date posted to database: September 13, 2006 Last Revised: September 13, 2006
(4)	42	Disposing of Children: The Eighth Amendment and Juvenile Life Without Parole After Roper Hillary J. Massey, Boston College, Date posted to database: August 29, 2006 Last Revised: August 29, 2006
(5)	40	Confirmation Bias in Criminal Investigations Barbara O'Brien, Phoebe C. Ellsworth, University of Michigan at Ann Arbor - Department of Psychology, University of Michigan Law School, Date posted to database: July 5, 2006 Last Revised: September 22, 2006

Governor Critiques Gun Christmas Tree Ornaments

From philly.com: Nothing says Christmas quite like a glittery black handgun hanging from the tree.

Urban Outfitters Inc. - no stranger to controversial products - is offering the 5-inch-long, Chinese-made gun ornament for $6 in its stores and catalogs this year.

"Bust a cap in your tree with this superglittery ornament in the shape of a handgun, complete with a satin ribbon for hanging," the online description of the revolver says. It is meant, the retailer says, as an "ironic twist" on the holidays.

"Twisted" is more like it, said Kate Philips, Gov. Rendell's spokeswoman. "The governor doesn't find it humorous or clever to display weapons that are responsible for taking hundreds of lives each year as if they are decorations," she said. Rest of Article. . . [Mark Godsey]

CrimProf Spotlight: Leonard E. Birdsong

This week, the CrimProf Blog spotlights Barry University Dwayne O. Andreas School of Law CrimProf Leonard E. Birdsong. 

Professor Birdsong teaches Criminal Law, White Collar Crime, Evidence, Federal Jurisdiction, and Immigration Law. He received his Juris Doctor degree from the Harvard Law School in Cambridge, Massachusetts in 1973.

Immediately after law school, he was an attorney with the law firm of Baker & Hostetler. Later he served as a diplomat with the State Department with various postings in Nigeria, Germany, and the Bahamas. Professor Birdsong also worked as a federal prosecutor, first as an Assistant United States Attorney for the District of Columbia, and later as a Special Assistant United States Attorney for the U.S. Virgin Islands.

After leaving government service, Professor Birdsong was in private practice in Washington, D.C., where he specialized in trial work ranging from criminal defense work to political asylum matters. While in private practice, Professor Birdsong was also involved with broadcast work. He has done on-air TV legal analysis work for Fox News, CNN, Court TV, BET TV News, and for W*USA Channel 9 in Washington, D.C.

During this same period, he also produced and hosted several radio talk programs in the Washington, D.C., and Baltimore areas. Currently, Professor Birdsong is occasionally invited to appear as a legal commentator on Fox News and MSNBC. [Mark Godsey]

NY Judges Make a Plan to Reform the Old Town and Village Court System

From NYTimes.com: New York’s top judicial officials outlined a plan on Tuesday to begin reforming the state’s 300-year-old system of town and village courts, which have been criticized for decades as outmoded, poorly supervised and unfair.

The plan, announced here by the state’s chief judge, Judith S. Kaye, included changes that have been recommended for years by defense lawyers and legal experts. Among them were plans to increase training for the justices, to improve their supervision and to better monitor whether they are protecting basic legal principles like the constitutional right to a lawyer.

The courts — known as justice courts — are also to be required for the first time to keep a word-for-word record of their proceedings, like other courts in the state.

While the officials said that many town and village justices are diligent, Judge Kaye said a sweeping reform program was called for by what she called enduring concerns about the courts. The system has survived a century of calls for radical overhaul by governors and commissions, and an important legal challenge in the 1980s. Rest of Article. . . [Mark Godsey]

NY Court Stikes Down Psychiatric Confinement of Prioners After Release Date

From NYTimes.com: New York's highest court yesterday struck down the Pataki administration’s practice of confining sex offenders in psychiatric hospitals after their prison terms end and ordered immediate hearings to determine whether those being held should be released.

The 7-0 decision by the state Court of Appeals was a sharp rebuke to Gov. George E. Pataki, who last year ordered the confinement of 12 sex offenders after lawmakers failed to agree on legislation that would have explicitly permitted such detention.

In yesterday’s ruling, the court found that the state erred in using mental hygiene laws to confine the 12 men, 11 of whom are still held involuntarily at psychiatric hospitals in New York City. The men had legal protections as prisoners that entitled them to hearings before being ordered confined upon their release, the court found.

“These people were characterized as being free citizens. The fact is that they were prisoners, and were entitled to the protections built into the correction law before they can be sent from prison to a psychiatric hospital,” said Stephen J. Harkavy of Mental Hygiene Legal Service, a state agency that represented the 12 men. Rest of Article. . . [Mark Godsey]

Cali Commission Recommends Limitingthe Use of Jailhouse Snitches' Testimony

From latimes.com: The state Legislature should limit the use of testimony by jailhouse informants in criminal trials, according to the latest report issued by a blue ribbon commission examining problems of wrongful convictions in California.

The California Commission on the Fair Administration of Justice said lawmakers should enact a statute barring convictions based on the testimony of an in-custody informant, unless the account is corroborated by independent evidence.

Similar corroboration should also be required for jailhouse informant testimony presented in the penalty phase of a capital murder case, according to the 20-member commission, which is chaired by former California Atty. Gen. John Van de Kamp.

The recommended controls, if adopted, would parallel current state law mandating corroboration if testimony by a defendant's accomplices is to be introduced.

Jailhouse informants have been implicated in a number of wrongful convictions, including 46% of those reviewed in a study by professors at Northwestern University Law School, the report noted. Critics say it is all too easy for informants to gather information about their fellow inmates' charges and fabricate testimony to persuade prosecutors to offer them leniency on their cases.

Of the 117 death penalty appeals pending in the state public defender's office, 17 featured testimony by in-custody informants and six included testimony by informants out on bail or otherwise in "constructive custody."

Consequently, the commission said "confidence in the reliability of testimony of arrested or charged informant witnesses is a matter of continuing concern to ensure that the administration of justice in California is just, fair and accurate." Rest of Article. . . [Mark Godsey]

CrimProf Sharon Dolovich Believes in Reform over Prisoner Shipment

From SignOnSanDiego.com: UCLA Law CrimProf and prison expert Sharon Dolovich recently stated that California should lower its population of inmates through key reforms, instead of shipping them out of the state.

Faced with packed prisons, the California Department of Corrections and Rehabilitation is transferring inmates to out-of-state facilities for the first time. About 2,200 inmates, all volunteers, will be moved to private, medium-security prisons in four states, including the Florence Correctional Center in Arizona.

“The assumption of this move is that there's nothing else California can do,” she said. “But in fact we have a lot of people incarcerated who shouldn't be incarcerated.”  Dolovich stated.

Like Romero other critics, Dolovich believes California's parole and sentencing policies are overly stringent. She studies both private and public prisons. She says one type is not necessarily better than the other, and that both operate under financial pressures and often lack adequate oversight.

Rest of Article. . . [Mark Godsey]

14-Year-Old Forced to Marry Testfies Against Polygamist Leader

From NPR.com: A young woman who says polygamist leader Warren Jeffs forced her to marry -- and have sex -- at age 14 offered dramatic testimony Tuesday in a courtroom in St. George, Utah.

Jeffs is the leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS Church. He's charged in Utah with two counts of "rape as an accomplice."

Tuesday's hearing was to determine whether the case will go to trial. It was the first time that Jeffs faced his accuser, the young woman who is the primary witness against him. She was 14, she told the court, when Jeffs ordered her into a "spiritual marriage" with her first cousin, a 19-year-old at the time, and then forced her to have sex with him. Such marriages are not legally recognized. Jeffs allegedly told the woman her salvation depended on her compliance.

In court, the young woman sobbed, cried and dabbed at tears as Jess watched her dispassionately. She described learning of her spiritual marriage, and said she was horrified and resisted. She also described the horror of her husband trying to consummate their marriage, which eventually he did.

Listen. . . [Mark Godsey]

UK: Police Urge State-funded Prescription of Heroin to Addicts

In England, senior police officer, Howard Roberts, urged the UK to follow Holland and Switzerland's lead and begin the state-funded (NHS-funded) prescription of heroin to addicts, in efforts to treat them and reduce crime.  The program would cost £12,000 a year for each addict to be treated this way, but proponents believe the treatment would be cost-effective in the long run because users steal at least £45,000 worth of property a year to feed their addictions. Widespread trials of such programs in Holland and Switzerland show users turning away from crime to feed their habits when they were prescribed drugs. Story from IndependentOnline.  Meanwhile, here in the U.S., debate continues (here and here) over Louisiana's controversial "heroin lifers" case. [Michele Berry]

Flaunting Booty Shots on MySpace Leads to Mug Shots

Seven dimwitted teenage thieves have been arrested and charged after they posted pictures of themselves on MySpace, posing with thousands of dollars worth of stolen jewelry, laptops, firearms, and televisions. Now the only pics they're posing for are mug shots. Story. . . [Michele Berry]

New Orleans: Court Orders Hiring of More Indigent Defense Attorneys, Critics Question Motives

Nine New Orleans criminal court judges have ordered the board overseeing the city's indigent defense system to hire more full-time public defenders. The order, issued on Monday by judges with the Criminal District Court, said mismanagement of the Orleans Parish Indigent Defender Program has effectively denied poor defendants their 6th Amendment right to proper legal representation. Under the order, the public defenders office must hire an additional attorney for each section of court by December 1. Currently, there is just one attorney in each of the 12 courtrooms. The office also must give the judges a list of all capital cases and the attorneys assigned to those cases. 

While most consider the court order a postive, several judges have been critical of a decision to make the program's lawyers work full time instead of maintaining a side-line practice. Critics argue that the sudden switch to full-time lawyers pushed out a handful of veteran attorneys at a time when they were needed. Critics also question why the indigent defense board has hired prominent, out-of-state lawyers, including Yale CrimProf Ronald Sullivan Jr., former head of Washington D.C.'s public defender office, to redesign the office, train and recruit new public defenders, when in-state lawyers would have cost less. 

Many counter the criticism with the old saying, "it's a much-needed, long-term investment."  Story from KATC.com. . . [Michele Berry]

Deck the Cars with Digital Cameras...

Fa la la la la, la la la la.  Beginning next week, the Los Angeles Police Department will begin installing digital video cameras in some patrol cars to better track how arrests are made.  Arrest tactics have been an issue under scrutiny since the recent surfacing of two amateur videos, shot by passers-by, documented forceful tactics by officers. Officials hope to install cameras in most of the 300 patrol cars in that bureau by the end of next year, with the goal of expanding to the rest of the force over the next three years. As of Monday, the LA City Council approved $5 million for the cameras. Story from washingtonpost.com. . . [Michele Berry]

Man Who Killed Record Number of Pedestrians With his Car Recieves. . . . Probation?

From latimes.com: For 25 minutes Monday, a judge attacked George Russell Weller's "enormous indifference" and "unbelievable callousness" in running down and killing 10 pedestrians in a Santa Monica open-air market. The 89-year-old deserved prison for his crime, the judge said. But in the end, Los Angeles County Superior Court Judge Michael Johnson placed Weller on probation, finding that his age and poor health undercut any value to imprisonment.

"Mr. Weller deserves to go to prison, but because of and only because of his rapidly declining health, I will place him on probation," Johnson said in a withering critique of Weller's behavior during and after the 2003 crash.

The toll from Weller's 20-second drive through the Santa Monica Farmers' Market on July 16, 2003 — 78 people killed or injured — included the highest number of pedestrian fatalities from a traffic accident in California history.

"It's not closure for me," said Lily Hoffman, whose 78-year-old father, Movsha, died in the crash. Her mother, Esther, now 77, who was at his side, was seriously injured. "I'm not satisfied at all." Weller "was grossly negligent. This trial accomplished nothing." Rest of Article. . . [Mark Godsey]

Govt. May Start Hair Drug Testing Employees

From newsday.com:  Men pay to make it grow. Women spend lavishly to dye, cut and coordinate it with their wardrobe. But these days, hair isn't just a key accessory to looking good.

It also can give government agencies a way to determine who might be abusing drugs in the workplace. Currently, the federal government is reviewing whether to expand its existing employee drug-testing guidelines to include analyzing hair for evidence of illicit drug use.

As screening methods for hair, saliva and sweat have improved in recent years, there has been a long-running and often contentious debate over whether these should be added to the current gold standard, the urine test.

Forensic experts agree there are benefits to both urine and hair analysis. Although urine testing can find traces of a drug for about five days after being ingested, trace amounts of a chemical substance entrapped in the cortex of a hair strand can be found up to three months later.

But in July, the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration abruptly backed away from a proposal that would allow federal agencies the leeway to include saliva, sweat and hair testing along with urine tests, officials said.

Rest of Article. . . [Mark Godsey]

Charges Dropped Against Naked City Prosecutor

From enquirer.com: Charges against a former Hamilton, OH city prosecutor accused of naked after-hours strolls in public buildings will be dropped because of a technicality, a special prosecutor said today.

Special Prosecutor Steve Tolbert said there was an error in the charges that will require dismissal of the case. It was not immediately clear if the charges will be refiled.

Former prosecutor Scott Blauvelt, 35, of Hamilton has pleaded not guilty by reason of insanity to two counts of public indecency.The charges stem from incidents in the city's Government Services Center on Oct. 4 and Oct. 5 that were caught on a security camera. Blauvelt worked in that building.

Blauvelt's lawyer, Mike Gmoser, has suggested that his client's behavior may be related to a mental illness, medication and/or a brain injury that resulted from a 2005 car wreck in which Blauvelt also had been naked.

More recently, Blauvelt told investigators he had been "doing similar things for about the past five years," but didn't know why -- and officials learned that he also had walked naked in the city building Sept. 25. Rest of Article. . . [Mark Godsey]

Khat Fights and Cultural Clashes

When should culture be taken into account in criminal prosecutions and to what extent?   Though used sparingly, carving out cultural exceptions in drug laws is far from a novel concept.  Not that long ago, SCOTUS allowed a small Brazil-based church in New Mexico to continue the use of hallucinogenic tea, which contains the illegal drug DMT.  The Utah Supreme Court dealt with the question fairly recently, too, when it decided that a couple that started a religion using peyote for ritual shouldn't face federal drug charges. 

This past week, in Wisconsin, Liban Moalin, 37, an Ethiopian-born Canadian citizen was convicted of possession of a controlled substance with intent to deliver, in what some people are calling a "culturally insensitive drug case."  Moalin's conviction was based on his possession of khat, an evergreen shrub grown in East Africa and the Arabian peninsula and prized for its stimulating properties.  For millennia, East Africans and Arabs have chewed the plant's leaves and stems as a stimulant.  The Village Voice explains that khat is used the same way as the leafy version of chewing tobacco, balled into a side of a cheek. But the chewing lasts for hours and hours (usually some liquid— water, tea, or soda—is needed to ward off dry mouth) and the juice is swallowed, not spit out. 

Moalin was arrested in January after he took delivery of a shipment of the plants from a friend in Italy. But the shipment had been intercepted by U.S. Customs agents, then was delivered to Moalin by a Madison police detective posing as a Federal Express employee. The jury rejected claims by Moalin's attorneys that he didn't know khat was an illegal drug because it is the active ingredient in khat--cathinone, and not the plant itself--that is listed as a controlled substance in state law.  Assistant District Attorney Kenneth Farmer countered that marijuana itself isn't mentioned in statutes either, only its active ingredient, tetrahydrocannabinol is listed.  But everyone still knows it's illegal to use or possess.

Increasingly, police are cracking down on khat in cities where there are concentrations of East African immigrants.  These crack downs lead some to think that khat prosecutions represent a clash of cultures, aimed at targetting Muslims and finding legitimate, albeit pretextual, bases for deportations.  Still, others ask, what's wrong with enforcing the laws of the land, regardless of the offender's cultural background?  More on Khat from the Village Voice and the Moalin conviction from the Wisconsin State Journal  [Michele Berry]