CrimProf Blog

CrimProf Sheri Lynn Johnson Speaks during Death Penalty Awareness Week

In January, the U.S. Supreme Court heard oral arguments in Baze v. Rees, a landmark case considering whether lethal injection is cruel and unusual punishment that violates the Eighth Amendment.

While activist student lawyers across the country wait for this important verdict, they are working to draw attention to death penalty issues. Cornell Law student members of the National Lawyers Guild held a Death Penalty Awareness Week from March 3 through 5, sponsored in part by the Cornell Law Students’ Association and Cornell’s G.P.S.A.F.C.

“At Cornell, students do not even have to wait until they graduate to begin working against the death penalty,” says Ginger McCall ’09, president of the Cornell National Lawyers Guild. She notes that students can do significant work on Cornell’s Death Penalty Project, co-led by law professors John H. Blume and Sheri Lynn Johnson. “Law students are uniquely situated to create change in this area,” she continues. “Students can enact change by raising awareness and educating voters, who will, in turn, influence legislative decisions regarding the death penalty.”

Cornell CrimProf Sheri Lynn Johnson began the week with a lecture about capital punishment on Monday, March 3. In her talk, she examined issues of innocence, race, and mental illness. A second speaker was Muna Ndulo, professor of law and director of Cornell’s Institute for African Development, who spoke about capital punishment from an international perspective.

Later in the week Christopher Seeds, visiting fellow with the Cornell Death Penalty Project, addressed the current moratorium on the death penalty in New York State. After Mr. Seeds’s talk, Deadline, a film about the decision of former Illinois Governor George Ryan to commute the sentences of all Illinois death row inmates, was shown and resulted in some spirited discussion among the students. [Mark Godsey]

CrimProf Laurie Levenson Discusses the Hate Crime Charging Dispute

From dailybreeze.com: Loyola Law School CrimProf Laurie Levenson recently discussed attempted murder and other charges  that were filed Friday against two reputed Latino gang members accused of shooting a black 6-year-old boy in Harbor Gateway.

Despite demands from community activists, prosecutors did not file hate crime allegations against Ernesto Murillo, 25, of Harbor Gateway or Ismael Torres, 26, of Wilmington.

"We will continue to monitor and review the case as the evidence comes in," said Deputy District Attorney John Lonergan of the Hardcore Gang Division.

CrimProf Laurie Levenson said that, despite the emotion of the case, prosecutors have the ethical duty of filing only what they can prove in court.

"Each case has to be evaluated on its own merits," Levenson said. "Even when the community is upset, you just can't file charges unless there is evidence to support it." Rest of Article. . . [Mark Godsey]

CrimProf Daniel Medwed Inspired Former Student Who Drafted Exoneration Bill

A recently-passed Utah statute that provides compensation for prisoners who have been wrongfully convicted and exonerated had its origin in an academic paper by a former S.J. Quinney College of Law student.

Heather Harris, a 2006 College of Law graduate, took Professor Daniel Medwed's Wrongful Conviction Seminar in the Spring of 2005.

"Throughout the class, I got inspired, I got angry, and honestly, I got emotional," Harris says. "I could not believe how these individuals are treated by the public after they were exonerated, much less how they were treated while trying to prove their innocence.  So, to be blunt, rather than just talking about it and whining about it, I decided to see if I could do my part in trying to change it."

Along with her term paper for the seminar, Harris drafted a model exoneration statute, which she later sent to every Utah legislator.  Harris's persistence captured the attention of legislators, who pushed the bill during the 2006 Legislative Session.

As with new ideas, though, the notion of compensating the wrongfully-convicted took time to gain traction. In the interim, Harris refined the proposal with Medwed, a team from the Utah Attorney General's Office and others. The group found that the most compelling case for compensation was economic; exonerees in other states have won far larger judgments using traditional tort claims. So the statute serves Utah as an "insurance" policy against massive damage awards, Harris said.

The Exoneration and Innocence Assistance statute provides a two-step procedure. First, it establishes a process for post-conviction petitions before judges, easing what had often been an impediment.  Second, those found to be "factually innocent" by clear and convincing evidence --- such as DNA test results or non-DNA evidence, a major innovation in such compensation laws --- are provided financial payment for up to 15 years of the incarceration, based on the average annual wages of Utah workers.

[Mark Godsey]

New Criminal Law Blog: The Faculty Lounge

We’re excited to welcome a new blog into this world.  The Faculty Lounge is a group effort led by two crim profs: Dan Filler (Drexel) and Laura Appleman (Willamette).  They’re joined by Al Brophy (Alabama), Calvin Massey (Hastings), Kathy Bergin (South Texas), and Kevin Maillard (Syracuse).  It’s a general interest law blog, focusing on anything interesting.  Dan has moved his annual Law Faculty Lateral Moves list to his new venue as well.  Members of The Faculty Lounge have been regulars or visitors at Concurring Opinions, Prawfsblawg, BlackProf, PropertyProf, Money Law, Legal History Blog, First Amendment Law Prof, Feminists Law Professors, and elsewhere.    

This is how Dan described the Faculty Lounge mission:  

We imagined a blog that shamelessly embraced  both high theory and pop culture.  A blog that accepted the all-too-true reality that everyone is too damn busy to read anything that isn't engaging.  A blog with multiple voices, some newer and some older.  It seemed to me that we wanted to recreate the experience of a faculty lounge.  Where sometimes people are talking about a great new paper on SSRN, other times they're lamenting the loss of a wonderful colleague to a competitor school, and once in a while they're just amused by a funny bumper sticker they saw on the way to work. [Mark Godsey]

University of Georgia Looking for Visiting CrimProf

The University of Georgia College of Law is looking for a criminal law visitor, for the fall 2008 semester.  If you are interested, please contact Associate Dean Paul Kurtz at [email protected].

DePaul College of Law Needs a Visitor to Teach Crim Law

DePaul College of Law in Chicago will be needing a Visitor to teach
Criminal Law during the spring, 2009 semester.  Please send your resume
to Dean Steven Greenberger at DePaul. [Mark Godsey]

CrimProf Brookbanks Discusses the Effects of New Zealand's Criminal Justice Reform Act

From stuff.co.nz.com: Auckland University CrimProf Warren Brookbanks recently discussed the surge in home detention sentences in New Zealand.

The Criminal Justice Reform Act came into force on October 1 last year and allows judges to sentence offenders directly to home detention.

Between October 15, when the first sentence of home detention was imposed, and February 1 this year, 592 people were sentenced to home detention. This is despite the courts not being fully operational over the Christmas period. Parole Board figures show only 762 prisoners were approved for a similar sentence of home detention in the 12 months to June last year.

Under the old rules the Parole Board was required to interview offenders who were granted leave to apply for home detention by a judge. The Parole Board no longer determines a prisoner's suitability. Judges would act on the same information as the board provided by the Community Probation Service.

CrimProf Brookbanks said the surge in home detention numbers was not surprising."One of the reasons is it's a novel sentence," he said.

"Previously home detention has been tacked onto the end of the prison sentence with the new act it's a sentence in its own right. And I think judges are keen to use it as far as possible to keep people out of jail."

Brookbanks said the trend would put pressure on the Community Probation Service and "could lead to some difficulties in terms of overseeing the vast numbers". Rest of Article. . . [Mark Godsey]

CrimProf Mary Leary Discusses Protocols Needed in Online Child Exploitation Cases

It’s a crime in which the victim is also the criminal—so whom do you prosecute? Underage youths who exploit themselves online can be subject to criminal pornography charges, explained child abuse expert Catholic University CrimProf Mary Leary at a Law School event Feb. 5, but so far courts are applying the law unevenly. Leary, the former deputy director for the Office of Legal Counsel at the National Center for Missing and Exploited Children and the former director of the National Center for the Prosecution of Child Abuse, proposed a better way to deal with what she called “self-exploitation” cases.

 

Leary, currently an assistant visiting professor of law at Catholic University, spoke to a crowded room of more than 60 Virginia Law students at the event, sponsored by the Virginia Journal of Law and Policy. Leary is writing an article on the subject for the journal. Virginia Law professors Anne Coughlin and Stephen Smith responded to her  remarks.

 

Juveniles or teens are practicing “self-exploitation when they take sexually explicit photos of themselves and others and distribute them, without coercion or grooming from an adult," Leary said. She cited recent news stories from several states in which teens had taken photos of themselves or others using their cell phones, the images of which were then distributed to friends, some of which ended up on unrelated Internet sites.

 

“The reality is that whenever a juvenile …creates the images of sexually explicit activities and then distributes them, they have now produced child pornography and they have now distributed it,” she said.

 

Prosecutors are unsure how to proceed. “On the one hand we have taken…a very aggressive stance with regards to child pornography…and consequently we have pretty severe criminal penalties,” she said. Pointing to the more lenient juvenile court model, Leary continued, “On the other hand…we recognize that often destructive behaviors by a minor can be the result of someone perhaps not fully mature enough to appreciate the social harm of the activity they are causing.” Rest of Article. . . [Mark Godsey]

CrimProf Henry Karlson Discusses Smothered Baby Case

From indystar.com: Indiana University School of Law-Indianapolis CrimProf Henry Karlson discusses the case of an Indianapolis woman accused of smothering her son by passing out on top of him began drinking gin as much as 12 hours earlier.

Marion County prosecutors filed a single neglect charge Friday against Latasha McMorris. A few hours earlier, the sobbing mother had her first court appearance.

McMorris, 24, now faces the prospect of 20 to 50 years in prison if she is convicted of causing the death of her 2-year-old son. Sheldon Bartley Jr. died about an hour after McMorris' boyfriend found him beneath her just after midnight Wednesday at an Eastside motel.

CrimProf Henry Karlson rejected the idea that the incident was an accident."A drunken driver who travels at 150 mph and hits a school bus and kills children -- is that an accident?" Karlson said. "I think they charged this case the correct way." Rest of Article. . . [Mark Godsey]

CrimProf Abraham Dash Comments on the Exclusion of Evidence in Homeland Official's Murder Trial

From washingtonpost.com: University of Maryland School of Law CrimProf Abraham Dash comments on the evidence being excluded in the trial in which homeland security official Keith Washington is accused of shooting two unarmed furniture delivery men.

Evidence about a psychiatrist's report in 1995 that said Washington, then a police officer, had "fleeting homicidal and suicidal thoughts" and "fits of internal rage" will not be admitted, a judge has ruled. Allegations that Washington used excessive force during his more than 16 years as an officer, including two incidents that led two lawsuits, will probably not be mentioned, except to rebut other evidence, legal experts said.

"It does complicate matters for the state's case in chief," the portion of the trial when the prosecution presents its evidence, said CrimProf Abraham Dash.

"But the defense has to be very careful, too," he said. "I don't see how the defense can avoid putting Washington on the stand. That can open a lot of problems." Rest of Article. . . [Mark Godsey]

CrimProf Jeremy Horder to Present "Law Reform, Government, and the Law Commission" at University of Maryland Law School

On Tuesday, February 12, Distinguished Visiting Professor Jeremy Horder will present "Law Reform, Government and the Law Commission: The Case of Murder." The presentation will take place at 5 p.m. in the Ceremonial Court Room at the UNiversity of Maryland School of Law

Jeremy Horder is a Professor of Criminal Law at Oxford University in England, where he has been a Chairman of the Law Faculty and a Chair of the Trustees of the Oxford Institute. In January 2005, he also was appointed as a Law Commissioner for the Law Commission of England and Wales. Professor Horder has an LLB from Hull University and a BCL, MA, and DPhil degree from Oxford University. [Mark Godsey]

CrimProf Keith Findley Gets Client a New Trial in Shaken Baby Case

Twelve years after Audrey Edmunds of Waunakee was sent to prison on charges of shaking a baby to death, a Wisconsin appeals court has overturned her conviction and ordered a new trial, based on new research on shaken baby syndrome.

Edmunds’s attorney,University of Wisconsin Law School CrimProf Keith Findley, co-director of the Wisconsin Innocence Project at the UW Law School, called the January 31 decision "absolutely wonderful" for Edmunds, who has always insisted on her innocence. Edmunds was a day-care provider when the seven-month-old child died after being dropped off with her in 1995.

"It’s an enormous decision for Audrey, but I also think it’s absolutely the right decision," Findley said. "It’s the just outcome in this case."

Edmunds has been serving an 18-year sentence after being convicted in 1996.

At the time of Edmunds’s conviction, doctors who raised the questions that are now being asked were viewed as extremists, Findley said, while now they are part of the mainstream. [Mark Godsey]

Criminal Law Conversations Invitation

Criminal Law Conversations

 Leading Scholars Debate the Fundamental Questions of Modern Criminal Law

 http://www.law.upenn.edu/phr/conversations/status/ 

    *  Peer-engaged B community of scholars nominates works on which to comment

    *  Short comments (800 words) by those interested, with author response

    *  Direct engagement allows debating scholars to "join issue"

    *  Website makes submissions publicly and immediately available

    *  Process designed to promote thoughtful responses and efficient time management 

Kin Ferzan and Paul Robinson invite criminal law scholars from around the world to contribute to an exciting peer-engaged project of criminal law "conversations" to be published collectively as a book. Concise "core" papers not to exceed 5000 words (approximately ten single-spaced pages) presenting a theory or position will each be followed by a number of short comments (normally no more than 800 words B approximately two pages or less), with a final reply to the comments by the original core paper author.

The goal of Criminal Law Conversations CLC is to promote thoughtful critiques of important issues. Too often opposing advocates talk past each other. CLC's web-based virtual "conversations" are designed to help opponents join issue. The website is not a blog but rather a vehicle for nominating and organizing the project's topics and contributors.

Strong emphasis is placed on well written, accessible presentations about enduring ideas, without requiring elaborate documentation or intricate analysis. Our hope is to produce a final volume that will have an audience beyond the community of criminal law scholars

The selection of core texts will be made by the criminal law scholarly community at large, as people express interest in the topics on which they would like to comment. All scholars are invited to submit nominations for the subject of a "core text" based on either previously published articles or new material. All are also invited to submit comments on any one or more of the nominated core texts.

Because not all contributions will be included in the published volume (although they may be permanently available on the website, the process by which CLC is assembled is designed to shape a contributor's investment of time according to the likelihood of publication. An initial contribution may be simply a short note, with more demanding submissions required only after it appears that the core paper and its responses are developing into a collection likely to be included in the final published volume.

Through a process, the book collection will be assembled by late 2009. Oxford University Press has expressed an interest in publishing the volume. In addition, there will be a permanent CLC website that contains core texts and commentaries not included in the published volume. The permanent website also will allow the future submission of comments on the published volumes contents, and may be used to produce subsequent collections.

Fro More Information, please contact [email protected] [Mark Godsey]

Death Penalty Authority Victor Streib to Teach at Elon University School of Law

Victor Streib, a noted national authority on the death penalty and its application to women and juveniles, will teach spring semester courses in criminal law and criminal procedure At Elon University School of Law

Streib serves as the Fisher Professor of Law at Ohio Northern University College of Law, where he was dean from 1996 to 2000. He is a prolific author with more than 300 books, book chapters, article and papers. His work has been cited 28 times in United States Supreme Court opinions.

Streib has served as appellate counsel in several death penalty cases involving juveniles, including Thompson v. Oklahoma, the landmark 1988 case that established a Constitutional minimum age of 16 for the death penalty. He has testified before Congressional committees and as an expert witness in death penalty trials nationally. Frequently sought for media interviews, Streib has been quoted on violent crime and the death penalty in the New York Times, Wall Street Journal, Washington Post and Time magazine. He has also appeared on CBS’ 60 Minutes, CNN’s Larry King Live and NBC’s Today Show.

Streib also serves as an adjunct professor of law at Indiana University at Bloomington. He was a professor of law at Cleveland State University’s Law College from 1980 to 1996, and he previously taught at New England School of Law and Indiana University’s Department of Forensic Studies. His visiting professor positions were at the University of San Diego and Michigan State University, and he was a visiting scholar at the Ohio State University Center for Law, Policy and Social Science. He will serve as visiting professor at Elon.

Streib earned a law degree from Indiana University at Bloomington and a bachelor’s degree in industrial engineering from Auburn University. [Mark Godsey]

CrimProf Richard Dieter Discusses the Cons of One Representing Themselves in a Death Penalty Trial

From post-gazette.com: Catholic University Law School CrimProf Richard Dieter discusses the problems with a person representing themselves in a capital murder trial. This is in regards to Patrick Jason Stollar, who is charged with robbing and killing an elderly Upper St. Clair woman, who has made a tactical decision that most lawyers say is extremely ill-advised. He is acting as his own lawyer in a death penalty case.

"The brain surgery of the legal profession is death penalty cases. It's not something any lawyer should do, much less a non-lawyer,"

Experienced capital defense lawyers often work in pairs and spend a year preparing for trial. They interview witnesses, dig up records, do research, reinvestigate facts and locate experts.

The American Bar Association guidelines for taking on a death penalty case, the standard used by the U.S. Supreme Court and more than 50 state and federal courts, recommend hiring a licensed attorney with a commitment to "zealous advocacy," oral advocacy skills, complex negotiation and writing skills, expertise in fingerprints, ballistics, forensic pathology and DNA evidence, aptitude in presenting mental health evidence and trial advocacy skills, including jury selection, cross-examination of witnesses, opening statements and closing arguments.

Mr. Stollar, a former day laborer who has attempted suicide several times in jail, does not have a law degree.

It is very uncommon for defendants to represent themselves in capital cases, experts say.

Notable exceptions include Texas death row inmate Scott Panetti, who dressed like Tom Mix and tried to subpoena Jesus Christ and John F. Kennedy at trial. Ted Kaczynski, known as the Unabomber, wanted to represent himself, but ended up taking a plea. Rest of Article. . . [Mark Godsey]

CrimProf Peter Henning Discusses Perjury

From freep.com: Wayne State University College of Law CrimProf Peter Henning explains that judges who learn of perjury in their court can hold a witness in contempt, or ask the prosecutor to investigate with regards to the recent testimony by Detroit Mayor Kwame Kilpatrick and his top aide Christine Beatty.

About 20 lawyers have been disciplined for perjury or facilitating perjury by the state's Attorney Discipline Board since its creation in 1978. Director John Van Bolt said a typical penalty is a suspension of 3 to 4 years.

The Michigan Rules of Professional Conduct, which govern attorneys, say even nonpracticing lawyers in public office can be sanctioned for dishonesty. "Lawyers holding public office assume legal responsibilities going beyond those of other citizens," the code states. Rest of Article. . . [Mark Godsey]

Swiss CrimProf Mark Pieth Wins Transparency Award

From afp.com: One of the winners of this year's Transparency award was Swiss Basil University CrimProf Mark Pieth, credited with playing a leading role in securing international implementation of the Anti-Bribery Convention drawn up by the Organisation for Economic Cooperation and Development (OECD) think-tank

Cobus de Swardt, Transparency's Managing Director, said the Convention was "widely regarded as the gold standard for monitoring mechanisms" and had "helped to stem the supply side of corruption".

Under Pieth's leadership, the OECD body that monitors corruption in business "has the courage to criticise even the most powerful, including the United Kingdom, Germany and Japan," de Swardt said.

Rest of Article. . . [Mark Godsey]

Professor Twining wins Evidence Award

University of Miami School of Law Evidence Prof William Twining was one of two recipients of the Association of American Law Schools (AALS) Evidence Section's Inaugural John Henry Wigmore Awards for Lifetime Achievement in Elucidating the Law of Evidence and the Process of Proof.

The awards, named for the pioneering legal scholar in the field of Evidence, were presented at the Evidence Section's luncheon on January 5th, 2008 at the AALS Annual Meeting in New York. UM Law School Dean Dennis O. Lynch remarked: "This award represents Professor Twining's outstanding scholarly contributions to the field of evidence. We are very proud of having had him as a colleague on our faculty for over twenty years." [Mark Godsey]

CrimProf Floyd Feeney Discuses Police New Found Use for the Term: "Person of Interest"

From sacbee.com: UC Davis CrimProf Floyd Feeney explains the term "person of interest"  in light of Sacramento County sheriff's detectives called Agustine Munoz a "person of interest" after his estranged wife's body was found in a ditch in November.

Around the same time, Sacramento police called Miguel Carranza a "person of interest" after his ex-girlfriend was gunned down with her new boyfriend.

Carranza has since been named a homicide suspect. Munoz – now in jail on other charges – remains a "person of interest."

"It's a broad and somewhat ambiguous term," said UC Davis CrimProf Floyd Feeney. By using a vague term, authorities may feel they are more in control of the situation, he said.

In recent years, the term "person of interest" has become a familiar part of the law enforcement lexicon across the country.

Critics say it's a nebulous euphemism for "suspect" that can tarnish someone's name when investigators are still a long way from gathering enough evidence for an arrest.

Law enforcement officials say it can mean "suspect." But they also use it for "accomplice," "witness" or "someone with key information about a crime." Rest of Article. . . [Mark Godsey]

CrimProf Spotlight: Jennifer B. Sargent

This week the CrimProf Blog spotlights Vermont Law School's Jennifer B. Sargent.

CrimProf Jennifer B. Sargent specializes in criminal law, clinical practice, and legal and judicial ethics. As director of the J.D. Internship and Judicial Externship programs, she places, supervises, and mentors students in field-based, clinical internships.   The courses she has taught at Vermont Law School include Criminal Procedure, Criminal Law (General Practice Program), Introduction to Clinical Practice (J.D. Internship Orientation), Legal Profession, and the Professional Responsibility/Judicial Ethics seminar.

Professor Sargent earned her B.A. degree from Emory University in 1989 and her J.D. degree from Suffolk University Law School in 1992. She worked as a judicial law clerk to the justices of the Vermont Superior, District and Family Courts in Washington and Orange counties from 1992 to 1993. She then worked as a managing attorney, assistant appellate defender and staff attorney with the New Hampshire Public Defender from 1993 to 2000. In 2002, New Hampshire Governor Jeanne Shaheen appointed Professor Sargent as the special justice of the Littleton, Lancaster, and Haverhill district courts. She shares her time between Vermont Law School and the New Hampshire District Court. In 2003, the New Hampshire Supreme Court appointed Professor Sargent to the Hearings Committee for the New Hampshire Professional Conduct Committee. 

In 2005, Professor Sargent became a faculty member of the National Judicial College, where she lectures on various topics to judges from around the United States.  She is also a Visiting Associate Professor at Dartmouth College in Hanover, New Hampshire for the fall 2006 term, teaching freshman expository writing.  Professor Sargent has lectured on district court criminal practice, effective opening statements, and closing arguments for the New Hampshire Bar Association’s Continuing Legal Education Program. She has lectured for the New Hampshire Public Defender’s Continuing Legal Education Program on domestic violence litigation and substantive legal issues in sexual assault cases. She has also lectured to the pro bono Domestic Violence Emergency (DOVE) program in New Hampshire on issues of domestic violence and divorce. [Mark Godsey]