CrimProf Blog

Alabama Indigent Defense System to face Review in SCOTUS

Alabama is the only state that does not provide attorneys for indigent death row inmates throughout their state appeal.  Lawyers representing some of those on death row in the state will soon ask the U.S. Supreme Court to hear a case challenging this practice. The attorneys will ask the Court to determine whether people facing execution have a constitutional right to an attorney as part of their right of meaningful access to the courts. Alabama maintains that it should be able to go it alone in this area despite the life and death risks at stake. 

In Alabama, where 200 people are on death row and few have legal training or money to hire attorneys, a judge has the option, but is not required, to appoint an attorney who can assist those facing execution. The cap on compensation for this court-appointed attorney is $1,000, which must cover expenses associated with hundreds of hours of work that goes into a habeas petition. This means that many Alabama defense attorneys must agree to receive less than the minimum wage for the hours they spend reviewing the trial transcript and appellate record, conducting witness interviews, and completing other investigation and extensive legal research. If those on death row are forced to represent themselves, they have only one year to master the state's rules of criminal procedure, conduct investigations from prison, and prepare and file their own petitions for post-conviction relief. More. . . [Michele Berry]

Add the 198th Name to the List of People Exonerated Through DNA Evidence

Yesterday, the Innocence Project, working with the Missouri State Public Defender's Office, exonerated Antonio Beaver of his first-degree robbery conviction. DNA evidence proved that Antonio did not commit a violent carjacking near the Gateway Arch in St. Louis for which he was convicted in 1997 and sentenced to 18 years in prison.  Beaver’s exoneration comes a decade after he was convicted and more than five years after he began seeking DNA testing to prove his innocence.

Beaver's story:  In August 1996, a man approached a woman’s car as she parked at the Gateway Arch. He told her he was the attendant in the parking lot and that she needed to move her car. As she got back into the car, he threatened her with a screwdriver; a struggle ensued, and the man was cut and bled on the interior of the car. The victim, fearing for her life, stopped fighting and told the man to take her car. Later, she provided a detailed description to police and helped prepare a composite sketch. Although Beaver did not match the victim’s description or the sketch, she ultimately identified him during a substantially flawed police lineup. Although fingerprints in the car (including on the rearview mirror) came from neither Beaver nor the victim, he was tried and convicted in April 1997.

Beaver is the fifth St. Louis County man in five years exonerated by DNA evidence after being wrongfully convicted based on eyewitness misidentification. [Michele Berry]

Guantanamo Confessions Scrutinized under the World's Microscope

Just how significant were the recent Guantanamo confessions?  Jonathan Hafetz, an attorney with NYU Law's Brennan Center for Justice, who represents Guantanamo prisoners calls the confessions the result of "justice on the fly" while Berkeley LawProf John Yoo views the confessions as the result of a balance between protecting national security/gathering wartime intelligence and administering a fair trial with due process protections. Full story. . . [Michele Berry] 

Colorado Considers Legal Fake Addresses...

for domestic violence victims.  Story....

Bump Keys

From CJN:  Central Florida law enforcers believe that some burglars are using cheap, readily available tools called bump keys to rob homes, says the Orlando Sentinel. Burglars use these ground-down keys to open nearly any lock they fit into by giving them a tap -- or "bump" -- with a blunt object. The method leaves little, if any, evidence that a lock has been tampered with. The Orange County Sheriff's Office has identified members of a suspected bump-key ring, including a mother and son arrested in January.

Because it is difficult to find evidence of bump-key use, it is virtually impossible for law enforcement to track the number of burglaries involving the tool. Bump-key burglars tend to break into multiple-family housing units, where all doors are constructed with the same type of lock. At first, law-enforcement agencies suspected maintenance workers were burglarizing apartment and condominium complexes where they worked. Information about the keys, including how to make and use them, is widely available on the Internet. Some Web sites sell professionally made bump keys for as little as $3.  Story..

Prosecutor Screw Up Costs U.S. $100 Million

From MSNBC.com:  WASHINGTON - Poorly written Justice Department documents cost the federal government more than $100 million in what was supposed to have been the crowning moment of the biggest tax prosecution ever.  Walter Anderson, the telecommunications entrepreneur who admitted hiding hundreds of millions of dollars from the IRS and District of Columbia tax collectors, was sentenced Tuesday to nine years in prison and ordered to repay about $23 million to the city.  But U.S. District Judge Paul Friedman said he couldn’t order Anderson to repay the federal government $100 million to $175 million because the Justice Department’s binding plea agreement with Anderson listed the wrong statute.  Rest of story...

Chicago Tribune...

reverses its position and calls for abolition of capital punishment

Kangaroo Skinner at Guantanamo

From NPR:  All Things Considered, March 26, 2007 · Leigh Sales, Australian Broadcasting Corporation's national security correspondent and author of the book The Worst of the Worst: The Case of David Hicks. Sales talks about how a kangaroo-skinner found himself at Guantanamo Bay, on trial for providing material support for terrorism.  Listen here.

New Article Spotlight: Orin Kerr

CrimProf Orin Kerr has posted Four Models of Fourth Amendment Protection on SSRN.  Here's the abstract:

The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has repeatedly refused to provide a consistent explanation for what makes an expectation of privacy reasonable. The Court's refusal has disappointed scholars and frustrated students for four decades. This article explains why the Supreme Court cannot provide an answer. It shows that there are four different tests for what makes an expectation of privacy reasonable, not one, and it argues that the Supreme Court has declined to give a single answer because the reasonable expectation of privacy framework is a bottom-up rather than top-down regulatory system. The exclusionary rule requires hundreds and even thousands of narrow rules explaining when an expectation of privacy is reasonable, and the Supreme Court hears too few cases to generate them. The Supreme Court must delegate the process of rule-creation to decentralized lower courts, and the lower courts must announce rules case-by-case. No one top-down approach can regulate this decentralized, bottom-up system, which means that the Supreme Court cannot provide a single answer to what makes an expectation of privacy reasonable. On the other hand, the existing four models reflect the needs of the bottom-up system far better than any single test. The four models provide the tools lower courts need to create localized Fourth Amendment rules that accurately identify reasonable police practices.

Obtain paper here. 

Video of Bait Cars

From NPR:  All Things Considered, March 23, 2007 · Police departments all over the United States are adopting a new method of catching car thieves in the act: the bait car. Bait cars — or decoy cars — are designed to look like the most typically stolen model in a given area.

But they're also rigged with GPS tracking, a remote-control "kill" device that allows police to cut off the engine and lock the doors, and hidden cameras. In one video, two thieves are seen driving away, giggling incessantly and fiddling with the radio.  Watch video here.

Wanted Posters on Pizza Boxes

story...

Habeas Hearing to Be Held at OSU Moritz College of Law

A panel of judges from the U.S. Court of Appeals for the Sixth Circuit will be holding an official session of the Court on Tuesday, April 3 at the OSU Moritz College of Law.

Judges Boyce Martin, R. Guy Cole and Jeff Sutton '90 will hear a complicated federal habeas case in which an Ohio death row prisoner has brought a series of constitutional challenges to the Ohio state court proceedings that resulted in his conviction and death sentence for a murder committed in Summit County, Ohio in the mid-1990s.

The argument will take place at 2 p.m. and members of the public can RSVP to Laura Landy Carr at [email protected] by Thursday, March 29 to reserve seats. Judicial clerks working for Judges Cole, Martin, and Sutton will offer a panel discussion for students after the judges hear arguments.

[Mark Godsey]

One Case is Causing Georgia PD System to Run Low on Cash

From NPR.com: The public defender system in Georgia is running short of money — because of one huge case. The defense of Brian Nichols, charged with killing four people after breaking out of a courthouse two years ago, has cost $1.4 million dollars so far — and it hasn't gone to trial yet.

The case is prompting some people to rethink their whole system for public defenders. Public defenders fear they won't have enough money to represent dozens of indigents all over the state.

This week, the judge in the case postponed Nichols' trial for six months because of the funding issue.

Listen. . . [Mark Godsey]

CrimProf Janine Benedet Explains Monetary Compensation is Unlikely for Acquitted Jet Crash Defendant

From earthtimes.com: The chances of success of Ripudaman Singh Malik, one of the two Sikhs acquitted in the 1985 Air India jumbo jet crash case, in his suits against the Canadian government as well as that of British Columbia for malicious prosecution are extremely low, experts, such as University of British Columbia CrimProf Janine Benedet, said.

'It's possible, but it requires not just that you were tried and found not guilty and suffered damages,' CrimProf Janine Benedet was quoted as saying by the Globe and Mail newspaper.

Singh and co-accused Ajaib Singh Bagri were arrested in October 2000, 15 years after Air India flight 182 crashed off the coast of Ireland, killing all 329 passengers and crew. He spent approximately four years in jail and millions of dollars defending himself in the case.

'Defendants who are acquitted are not ordinarily entitled to damages, even though they spent time in jail and may have suffered personally. Showing that evidence was fabricated would not be enough,' CrimProf Benedet said. 'The court would also require evidence of an improper purpose,' she added. Rest of Article. . . [Mark Godsey]

High Costs of Death Penalty Brings Georgia System to a Standstill

From the DPIC:  Because of the high costs of pursuing death penalty cases, Georgia's public defender system has run out of funds.  Most of state's 72 capital cases have been brought to a standstill.  The judge in one recent high-profile case has put off jury selection until September 10 because of the funding crisis.

The high-profile case involves Brian Nichols, who has been charged with the 2005 courthouse shooting that left a judge, and three other victims dead. Because the death penalty is being sought for Nichols, the case has cost the state's public defender system $1.4 million to date, an expense that has led the office to request $9.5 million in additional funding from the legislature to keep its operations running through the end of June 2007. (Nichols has agreed to plead guilty and accept life without parole if the death penalty option is dropped.)  Mike Mears, director of the Georgia Public Defender Standards Council, which manages the public defender system, said the Nichols case "is testing the will of the state of Georgia with regard to whether or not the death penalty is worth the amount it costs."

Judge Hilton Fuller, who is presiding over the Nichols case, said the "issue of funding" and the "complexities of this case have prevented an orderly and uninterrupted" method of proceeding. The state has assigned five prosecutors to the case, and Fuller, who is personally overseeing the defense counsel's spending, has authorized four defense attorneys for Nichols.  Fuller said the Public Defender Standards Council had done all it could to pay expenses in the case, but he added, "We cannot expect it to provide funds that don't exist." At least one of the three private attorneys representing Nichols is billing the state at half the hourly rate he normally charges.

Georgia is not the only state grappling with the high costs of the death penalty. The Colorado House Judiciary Committee recently voted to abolish capital punishment and replace it with a sentence of life without parole. The state would reallocate money currently spent on capital punishment to help solve approximately 1,200 cold-case homicides. Colorado, which has spent $40 million on capital punishment in 30 years, has executed one person and two others are on death row. In Arizona, Maricopa County has been overwhelmed by a surge in death penalty cases. Officials there have said that prosecutors may not seek the death penalty in some cases to save money.

Fitzgerald's Justice Ranking Rankles Chicagoans

Morning Edition, March 21, 2007 · U.S. Attorney Patrick Fitzgerald, fresh from the Libby trial, shows up on a Justice Department's list of prosecutors who had not distinguished themselves. His fellow Chicagoans say that ranking is nonsense.  Listen to NPR report here.

The CIA and Psychological Torture at SIU

CARBONDALE, Ill. — An historian who specializes in CIA covert operations, the global drug trade, colonial empires in Southeast Asia and the modern-day Philippines will visit Southern Illinois University Carbondale to talk about how the CIA developed and has used psychological torture.

Alfred W. McCoy, J.R.W. Smail Professor of History at the University of Wisconsin-Madison, will begin his free, public lecture at 7 p.m. Tuesday, April 3, in the auditorium of SIUC's Hiram Lesar Law Building. A reception will follow.

McCoy's talk draws on material from his most recent book, "A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror," published last year by Metropolitan Books.

He will be available from 4:30 to 6 p.m. the day of the lecture at Rosetta Stone Bookstore in the Campus Shopping Center, 214 W. Freeman St., to sign copies of that book.

The CIA tried to block publication of McCoy's first book, "The Politics of Heroin in Southeast Asia," which explored links between opium and "The Company." Translated into nine foreign languages and now in its third edition, it has become a standard in studies of worldwide drug trafficking.

A later work, "Closer Than Brothers," published in 1999, focused on CIA torture training within the Philippine military, a book which led directly to his exploration of what 50 years of spreading and practicing psychological torture have done to America. McCoy maintains that so-called "no-touch" torture harms not just the victims but the perpetrators, too.

In an article for the political newsletter "Counterpunch," McCoy notes that Congressional hearings on the CIA's use of torture took place four times between 1970 and 1988, with no noticeable results. He hopes the photographs from Abu Ghraib and the widespread revulsion they engendered will at last force a change.

"Through these photographs from Abu Ghraib, we can see the reality of these interrogation techniques," he writes. We have a chance to join fully with the international community in repudiating a practice that, more than any other, represents a denial of democracy."

Sponsors of McCoy's lecture include the SIUC departments of anthropology, cinema and photography, history, psychology, sociology and women's studies, the University's Global Media Research Center and School of Law, the Peace Coalition of Southern Illinois, the Shawnee Green Party, the Unitarian Fellowship program committee and the Carbondale Friends Meeting.

New Article Spotlight

Lisa Kern Griffin of UCLA has posted Compelled Cooperation and the New Corporate Criminal Procedure on SSRN.  Here's the abstract:

In response to the broad scope of the Enron-era frauds, the federal government has adopted novel strategies to manage the complexity of corporate criminal investigations. Chief among these innovations are the cooperation requirements set forth in the Department of Justice's (DOJ) Thompson Memorandum (along with its successor, the McNulty Memorandum) and the increased use of deferred prosecution agreements (DPAs) between prosecutors and corporations. Under these current practices, the federal government has declined or deferred charges against firms themselves and has shifted liability to the employee level, indicting and convicting over one thousand individuals since the July 2002 creation of the Corporate Fraud Task Force. This Article explores a gap in the constitutional protections afforded those individual defendants. Prosecutors' dependence on compelled cooperation is expedient but has unexamined consequences: a bypass around corporate employees' Fifth Amendment privilege against self-incrimination and the potential to degrade self-regulation. These costs arise, in part, from the merger of public governmental investigations and private corporate compliance efforts.

Part I details the policies and practices of the "war on corporate crime," with a particular focus on the factors set forth in the Thompson and McNulty Memoranda and the terms of current DPAs. Part II discusses how the convergence of cooperation doctrine with the shift to individual targets results in significant unfairness for the individual employees compelled to incriminate themselves in the context of internal investigations directed by the government. That normative burden may not be offset by enforcement benefits. Although effective corporate crime prevention often requires the cooperation of insiders, the means used to obtain it may actually increase the difficulty of detecting fraud by discouraging oversight and minimizing recordkeeping. Part III argues that the government's pursuit of DPAs and application of a civil regulatory model to criminal enforcement creates distortions because individual liberty rather than a financial sanction is at stake, prosecutors do not engage in negotiated governance, and judicial oversight at the investigative stage is minimal.

Part IV addresses the constitutional implications of outsourcing corporate criminal investigations. Employees interviewed by internal investigators pursuant to the terms of a pending deferred prosecution agreement should enjoy immunity analogous to the Garrity shield that protects public employees. Several strands of Fifth Amendment theory are consistent with the argument that economic pressure such as the threat of job loss can rise to the level of constitutionally significant coercion. That pressure, although delegated to corporations to apply, may be attributed to the government as state action when a DPA is pending. As a practical matter, extending immunity may also enhance compliance investigations by privileging truthful information and the interests of good-faith employees.

Download the article here.  [Mark Godsey]

Attempt to Repeal Death Penalty in Nebraska...

falls one vote short. 

CrimProf Wolfgang Mitsch Appeals Convicted Cannibal's Case to Germany's Highest Court

From USATODAY.com: University of Potsdam Crimprof Wolfgang Mitsch is appealing the murder conviction of a German man who admitted killing and eating an acquaintance he met over the Internet to the Germany's highest court, his attorney said Monday.

Co-Counsel Harald Ermel said he and Mitsch consulted with client Armin Meiwes before taking the move. It was not clear when the top court might consider the case.

Last month, Germany's Federal Court of Justice rejected as "clearly unfounded" Meiwes' appeal against his conviction and life sentence. Mitsch maintains that the sentence was disproportionate and violated the constitution.

Computer technician Meiwes was sentenced last May to life in prison after being retried and convicted for murdering Bernd Juergen Brandes in a case that both fascinated and appalled Germany.

Rest of Article. . . [Mark Godsey]