CrimProf Blog

Fatal Police Shooting of Mentally Ill Hostage-Taker Did Not Violate ADA

Police officers did not violate the Americans with Disabilities Act when they fatally shot a mentally ill hostage-taker, the U.S. Court of Appeals for the Fourth Circuit held Feb. 12 (Waller v. Danville, Va., 4th Cir., No. 07-2099, 2/12/09).

The decedent's sister argued that the officers did not face exigent circumstances because they waited two hours before taking action. She also contended that they should have reasonably accommodated his disability by not banging on the door and yelling at the decedent, but instead calling mental health professionals, contacting his family members, or seeking to administer medications to him.

But Judge J. Harvie Wilkinson III, while stopping short of recognizing an “exigent circumstances” exception to ADA liability, said that the officers' reasonable belief “ ‘that this was a potentially violent hostage situation' … cannot help but inform” the ADA inquiry. He further concluded that the accommodations proposed by the sister were unreasonable, while the steps taken by the officers—including speaking with their supervisors, deploying a hostage negotiator, and attempting to calm the situation by waiting at least two hours before entering the premises—were reasonable under the totality of the circumstances, and thus satisfied any ADA duty of accommodation.

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Study Shows Immigration Offenses Increasing the Number of Latino Federal Convicts

The sharp growth in illegal immigration and increased enforcement of immigration laws have dramatically altered the ethnic composition of offenders sentenced in federal courts. In 2007, Latinos accounted for 40 percent of all those convicted of federal crimes and one third of all federal prison inmates, according to a new study by the Pew Research Center, a non-partisan think tank.

Nearly half of all Latino offenders, or about 48 percent, were convicted of immigration crimes. Drug offenses were the second-most prevalent charge among Latino federal convicts, according to the report, which was made public on Wednesday.

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Preserving DNA Evidence to Prove the Potential Innocence of a Man Scheduled for Death Today

Today the Innocence Project of Florida (IPF) is filing a motion to preserve evidence in the case of Wayne Tompkins, who is scheduled to be executed at 6 PM EST by lethal injection. Tompkins was convicted of murdering Lisa DeCarr in 1983, though doubts persist as to the true identity of the victim. IPF believes a new round of DNA testing should be conducted in order to banish all doubt, and today's action represents the first step toward acquiring that testing.

"If the victim in this case wasn't Lisa DeCarr after all, that means Wayne Tompkins was convicted of a murder that never took place. It's pretty bizarre that the Governor is about to execute a person when these kinds of questions remain," said Seth Miller, Executive Director of the Innocence Project of Florida. Several individuals have signed affidavits claiming to have seen DeCarr alive since the alleged murder.

"The Governor should remember two other cases, Frank Lee Smith and Ricky McGuinn," said Miller. Frank Lee Smith died on death row in Florida before DNA testing proved he was innocent. In Ricky McGuinn's case, his Texas execution was stayed, then DNA testing proved his guilt, and his execution was reset. In both cases, DNA testing proved vital to the establishment of culpability.

IPF is moving a court to notify the appropriate institutions that they have a statutory obligation to preserve all evidence pertaining to Tompkins' case for 60 days, even if he should be executed. IPF wants a robe, a sash, and samples of the victim's bones to be preserved, with confidence that a new round of DNA testing, using methods that have not been used in this case, will likely yield the identity of the victim.

Miller added, "There are serious doubts left in this case, and we fully intend to get to the bottom of what really happened. Tompkins shouldn't be executed when such important questions as the identity of the victim remain. Some day soon, we will make sure the truth comes out." Read More. . .
[Bobbi Madonna]

DOJ Maintains State Secrets Position from Bush Administration

In the first major national security case of the Obama administration, lawyers representing the government took the exact same position as the Bush administration. Government attorneys asked a judge to throw out a torture case, citing the need to preserve state secrets. Some human rights activists now say they feel betrayed by an administration that had promised greater openness and transparency.

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Second Circuit Holds Second Amendment Not Applicable to States

The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held (Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09).

The statute at the center of this case, N.Y. Penal Law §265.01(1), provides criminal penalties for possession of a broad range of items, including weapons used in martial arts. The plaintiff was charged under the statute after police found fighting sticks, or nunchaku, in his home. He ended up pleading guilty to a different charge and then filed a lawsuit against the county prosecutor and others seeking a declaration that the law offends his Second Amendment right to bear arms.

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Federal Sex Offender Law Faces State Resistance

An aggressive federal effort to keep track of sexual offenders is at risk of collapse because of objections from states and legal challenges from sex offenders and others.

The effort, approved by Congress three years ago, requires all states to adopt strict standards for registering sex offenders and is meant to prevent offenders from eluding the authorities, especially when they move out of state.

The law followed several heinous crimes by sex offenders on the run, including Joseph E. Duncan III, who in 2005 fled North Dakota, where he had been registered, and committed sex crimes and murder in three states, ending with the torture and killing of a 9-year-old boy in Montana.

An estimated 100,000 sex offenders are not living where they are registered, according to the National Center for Missing and Exploited Children, which collects the data from the states and provides it to the United States Marshals Service and other federal agencies.

But officials in many states complain about the law’s cost and, in some instances, contend their laws are more effective than the federal one. The states also suggest that the federal requirements violate their right to set their own policies and therefore may be unconstitutional, at least in part.

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Seventh Circuit Affirms Iraqi Spy's Conviction

The 7th Circuit refused to overturn the conviction of a former spy for Saddam Hussein who came to the United States as an unwitting "sleeper agent" for the Iraqi Intelligence Service and obtained U.S. citizenship by lying on his application.

Sami Latchin actively served in the IIS from 1979 to 1993, and was selected as one of the sleeper agents in Hussein's plan to plant spies around the world to gain positions of influence, gather intelligence and influence policy in favor of Hussein's Ba'athist regime.

"All spy programs, of course, operate on deception - the spies pretend to be people they aren't," Judge Evans wrote. "But Saddam's plan took it to a whole new level - not even the spies would know they were part of the program until they were activated many years down the road."

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Judge Permits Flag-Desecration Prosecution in Nebraska

A Sarpy County judge has denied a challenge to Nebraska’s flag desecration statute raised by a Kansas woman who argued it violates her right to free speech.

Judge Todd Hutton ruled Tuesday that prosecutors can proceed with their case against Shirley Phelps-Roper. She is a member of the Westboro Baptist Church of Topeka, Kan., whose members believe that U.S. troop deaths are punishment for the nation’s tolerance of homosexuality. The group has protested at military funerals nationwide.

Authorities say Phelps-Roper let her 10-year-old son stand on an American flag at the funeral of a National Guardsman in June 2007 in Bellevue. They also say she wore a flag as a skirt that dragged on the ground.

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"Defining `Cruel and Unusual' When Offender is 13"

From today's New York Times:

"In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape.

. . . .

"The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

. . . .

"Mr. Sullivan is 33 now, and his lawyers have asked the United States Supreme Court to consider the question of whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing."

Read the rest of the story here [Mike Mannheimer]

New Article Spotlight: Challenging the Practical Importance of the Justification/Excuse Distinction

Arizona CrimProf Jack Chin has posted  The Justification/Excuse Distinction: An Argument for its Practical Irrelevance on SSRN.  The abstract: "For decades, Joshua Dressler, Paul Robinson, Reid Fontaine and others have debated the distinction between justification and excuse defenses. "Justifications" represent good behavior, while "excuses" relieve criminal liability for socially undesirable behavior for policy reasons. Building on the critiques of Kent Greenawalt and Mitchell Berman, this essay proposes that claims for the practical importance of the debate have not succeeded.  The best argument is Joshua Dressler's claim that a robust justification/excuse distinction will send clear moral messages about acquittals. But because acquittals are intrinsically ambiguous, they cannot be used to derive moral judgments. First, because clear cases of innocence or meritorious defense are disproportionately screened out before trial, acquittals disproportionately represent near-convictions. Also, even replacement of opaque not guilty verdicts with special verdicts would send clear messages only if the new verdicts are morally precise. However, "excuse" defenses can be satisfied by "justified" conduct and vice versa, e.g., the Model Penal Code's "justification" of erroneous uses of force based on simple but less than gross negligence. In addition, there are seemingly intractable debates about categorization of defenses. Assigning acquittals to pigeonholes that even specialists dispute cannot send clear moral messages. Other rationales for the practical importance of the distinction, such effects on accomplice or aider and abettor liability of third parties, do not reflect the law under the Model Penal Code or other modern approaches. This essay is part of a symposium at the University of Michigan Journal of Law Reform on Reid Fontaine's work." Full Text here.