The Rap Sheet: Nolo's Criminal Law Blog

Many communities are trying to balance their budgets by raising the fines for parking and moving violations.  If they really want to get serious serious, they might look to FInland for guidance.

Traffic fines in Finland have long been based on a formula that combines the severity of an offense with a driver's income.  The idea is that if penalties are to hurt equally, wealthier people should pay higher fines.  Thus some years ago a well-heeled driver was fined $71,000 for driving 43 mph in a 25 mph zone.

Anyone anxious to copy Finland?  

Umar Farouk Abdulmuttalah is the Nigerian airline passenger who is charged with trying to blow up his Detroit-bound airliner on Christmas Day, 2010.  It was recently reported that the government officials who arrested Abdulmuttalah elicited lots of information from him before advising him of his "Miranda rights," including the right to remain silent and the right to talk to an attorney. 

The federal government presently plans to try Abdulmuttalah as a criminal rather than as a terrorist.  If so, the statements made by Abdulmutallah before he was given Miranda warnings may not be admissible in evidence against him at trial.  However, the delay in giving warnings will have little or no impact on the government's case against Abdulmutallah.  Apart from anything he might have told the investigators, the government has plenty of other evidence that it can offer to prove his guilt. 

Thus, the delay in giving Miranda warnings may affect the admissibility of Abdulmutallah's statements, but the delay in no way jeopardizes the government's ability to convict him of an act of terrorism..

Frank Spisak was convicted of horrific murders and sentenced to death in Ohio. But you might forgive him for wondering which side his defense attorney was on.  During the penalty phase of the trial, when the jurors had to choose between life or death, Spisak's lawyer told the jurors that:

1. The murders were gruesome, and he recounted the awful details.

2. Spisak was undeserving of their sympathy.

3. Spisak had not done any good deeds and never had good thoughts.

4. Spisak is demented, he will never be any different, and he has threatened to commit future crimes.

Despite its conclusion that the defense attorney's remarks were "constitutionally inadequate," the U.S. Supreem Court upheld the death sentence.  The reason was that a better argument wouldn't have produced a different result.  As Justice Stevens remarked, even Clarence Darrow wouldn't have been able to save Spisak from a death sentence.

Maybe so, but I bet Darrow would not have sounded like he wanted to cast the first ballot for death.

 

It took the jurors in the Scott Roeder murder trial all of 37 minutes to convict him of the first degree murder of Dr. George Tiller,brushing aside Roeder's immoral defense that the killing was justified because Dr.Tiller performed abortions.  (See my previous day's blog entry for more information about the case.)

Sometimes American juries are derided for their seemingly irrational decisions.  I think it's worth saluting this Wichita, Kansas jury for getting it right. 

Scott Roeder is charged with murdering Dr. George Tiller.  Testifying in his own defense at the trial, Roeder admitted that he killed Tiller.  And the killing was totally premeditated- Roeder bought a gun, practiced his shot, and killed Tiller inside a church.

Roeder explained that he had a good reason for shooting Tiller- Tiller performed abortions.  Roeder had the chutzpah to explain that "It's never up to man to take life," perhaps temporarily forgetting that he did exactly that when he shot Tiller. 

Roeder undoubtedly hopes that the jurors will find this a valid reason for killing, and if not acquit him at least convict him of nothing more serious than manslaughter.

If the jurors accept this disgusting defense, people like Roeder would have a license to kill anyone who disagrees with their religious beliefs.  Maybe today it's an abortionist, but who knows who would be next.  If your God disapproves of homosexuality, no problem, kill homosexuals.  If your God disapproves of inter-racial dating, no problem, kill those couples.  I write in the hope that sanity prevails on the jury and that Roeder spends the rest of his sorry life in prison.  

In the 2009 Melendez-Diaz case (decided by a 5-4 majority vote), the U.S. Supreme Court decided that the Sixth Amendment's Confrontation Clause gives criminal defendants the right to cross examine lab analysts who run tests that determine such matters as the alcohol content of a driver's blood or whether white powder is an illegal drug. Outraged prosecutors in many states have attacked the practical effect of the decision.  They argue that under-funded and under-staffed forensic labs were unable to keep up with the demands for testing even before Melendez-Diaz was decided, and that if analysts have to hang around courtrooms the labs will fall so far behind that cases will have to be dismissed.  Prosecutors also argue that cross examination is unnecessary when analysts don't exercise subjective judgment but instead simply report the results of tests that machines carry out.  

In Briscoe v. Virgina (2010) the Court passed up a chance to clarify the scope of Melendez-Diaz.  Briscoe involved the legitimacy of a state law that allowed prosecutors to offer lab test reports into evidence without calling the analysts as witnesses, and then (upon request from the defendant) producing the analysts for defendants to examine as part of the defense case.  The Court chose not to decide whether this procedure is constitutional, instead returning the case to the state for "consideration in the light of the decision in Melendez-Diaz."  So for some time to come, the increasingly bitter confrontation over the scope of the Confrontation Clause continues.

In 2009, 29 convicted defendants were given death sentences in Califonia. This was up from the 20 people sentenced to death in 2008, and was more than the number of death sentences handed down in Texas and Florida in 2009 combined.

Despite the increase in the number of death sentences, California has not carried out an execution in 4 years and probably will not execute anyone in 2010.  As a result, San Quentin's death row houses 697 prisoners, about 20% of the nationwide total.

Many of these prisoners have undoubtedly committed horrible crimes.  But in an era when the state is too broke to spend money on law-abiding students and people who can't afford medical care, spending millions of extra dollars to convict and house "the worst of the worst" seems a terrible waste of public money. LWOP sentences (life without possibility of parole) are a far cheaper alternative that protect society as well as death sentences do.   

Rodney Alcala has twice been convicted of killing 12 year old Robin Samsoe in Huntington Beach (CA) in 1979.  Each time he was sentenced to death.  But both convictions were reversed, so here in Jan. 2010 Alcala is again on trial for killing Robin Samsoe.

Robin has plenty of company this time around.  As Alcala remained in prison, DNA testing linked him to the deaths of 4 other late-1970's CA murder victims.  So Alcala now is charged with 5 murders.

Ironically, Alcala's first conviction was reversed because the trial judge allowed the prosecution to offer evidence of Alcala's violence towards girls other than Robin. Now that evidence rules have changed and Alcala is charged with other crimes, Jury # 3 will hear plenty of evidence suggesting that Alcala is a serial killer.    

Alcala has chosen to represent himself.  That's less of a gamble than it seems.  He is now 66 years old, so even if he is convicted and the conviction is upheld, the chances that he'll be executed are virtually nil.

      

In Dec. 2009, South Carolina's House Judiciary Committee decided not to impeach Gov. Mark Sanford (R) for carrying on a lengthy extra-marital affair at taxpayer expense and lying about it.  Remarkably, the Committee decided that Sanford's behavior does not amount to "serious misconduct."

To some extent I agree with the committee- Sanford is a criminal, not just a bad boy.  Instead of holding onto his office and thanking the committee for its "deliberative approach," Sanford should have resigned months ago.

How sad that Sanford remains in office in an era when the U.S. repeatedly rebukes other countries for their corrupt politics.  The South Carolina Committee's decision shames our entire country.    

Tiger Woods, the great golf pro, has gotten nothing more than a traffic ticket for careless driving after backing his car into a fire hydrant and a tree.  http://www.nytimes.com/2009/12/02/sports/golf/02woods.html?hp

So much for Tiger being a great driver.  If I had to choose between avoiding trees when I'm driving a car and avoiding them when I'm playing golf, I'll choose the former every time.

In the 2005 case of Roper v. Simmons, the U.S. Supreme Court decided that the death penalty cannot be imposed on offnders who were under age 18 when they committed a crime potentially punishable by death.  Four years later, the Court is considering whether juveniles can be sentenced to "life without possibility of parole" (LWOP) or whether such a sentence constitutes cruel and unusual punishment. The cases are Graham v. Florida and Sullivan v. Florida.  In both cases, under-age 18 offenders were sentenced to LWOP for non-homicide crimes.

The issue raises serious line-drawing problems.  For example, might an LWOP sentence be appropriate for a 17 year old murderer but not for a 10 year old murderer?  And if the Court were to decide that an LWOP sentence for a 17 year old is unconstitutional, why would it be constitutional to sentence an 18 year old or a 19 year old to LWOP?    

During oral argument, Chief Justice Roberts tried to arouse his colleagues' interest in a middle ground rule.  Roberts suggested that the 8th Amendment should not be interpreted as an absolute bar to an LWOP sentence for minors, but rather should be read to require courts to take an offender's youth into account when deciding upon punishment, and to make the sentence proportional to the seriousness of the crime.  I don't think that criminal defense lawyers will consider that an appealing compromise.

The outcome is hard to predict.  But with the death penalty already off limits and a widepsread belief that violent juvenile crime is out of control, the odds seem against a ruling that LWOP sentences for juvniles are unconstitutional in all situaitons. 

Robert Lee Thompson was convicted and sentenced to death for participating in a convenience store robbery that culminated in a store clerk's death. As Thompson's execution date nears, Texas Governor Rick Perry has to decide whether to follow the recommendation of the Texas Board of Pardons and Paroles that Thompson's sentence be reduced to life imprisonment.  

Gov. Perry, the right thing to do is to follow the parole board's recommendation.  Thompson's co-participant in the crime, Sammy Butler, was the clerk's killer and yet he was given a life sentence.  Thompson actively participated in the robbery and unsuccessfully tried to kill a second clerk.  Society needs to be protected from him.  But it's not fair to punish an accomplice more harshly than a killer.  Society does not need Thompson put to death.    

POSTSCRIPT: Gov. Perry refused to follow the parole board's recommendation.  Thompson was executed on Nov. 19, 2009.

Lynne Stewart is an ex-NY civil rights lawyer.  She was disbarred in 2005 after she was convicted of passing messages from imprisoned terrorist Sheikh Omar Abdel-Rahman to his followers.  Stewart was sentenced to serve 20 months in prison, but she remained free on bail while her case sat before a Court of Appeal.  On November 17, 2009, the Court of Appeals not only affirmed the conviction but added injury to injury by ordering the trial judge to re-consider the "lenient" sentence.  Stewart might have angered the judges by bragging to her followers in 2005 that she could "serve 20 months standing on my head."

 

Civil rights lawyers especially were infuriated by Stewart's conviction.  They condemned it as a violation of free speech and an interference with attorneys' obligation to defend clients zealously.  But to me, Stewart has only herself to blame.  As a condition of meeting with her client Abdel-Rahman in prison, Stewart agreed not to pass messages from him to followers who were waiting for a signal from him as to whether to ignore a cease-fire agreement.  Nevertheless, Stewart talked to the press about statements that Abdel-Rahman had made to her during their prison meeting.  

It's hard to see how keeping her mouth shut about what Abdel-Rahman told her would have interfered with Stewart's ability to represent her client.  Nothing she told the world would have produced helpful evidence for her client.  The condition she agreed to aside, Stewart might also have acted unethically by talking about a confidential client communication.  Stewart knew what she was doing and sought to embarrass the U.S. government.  She has a long and honorable history of helping the powerless and disenfranchised, and it's sad to see her in prison so late in her life.    

I never realized how hard it could be for prisoners to give birth until I read the decision in the case of Nelson v. Correctional Medical Services, (8th Cir., October 2009).  A very pregnant Nelson was in an Arkansas prison, doing time for a non-violent crime.  When Nelson went into labor she was taken to a nearby hospital to give birth. A correctional officer who accompanied Nelson to the hospital repeatedly shackled Nelson's legs to the sides of her bed during labor.  The officer removed the shackles only when the nurses needed to check on Nelson's readiness to deliver, and then immediately replaced them.  The officer removed the shackles for good only after Nelson went into the delivery room.

Nelson is suing the correctional officer for a variety of injuries that she claims resulted from the constant shackling.  The injuries allegedly include a permanent hip injury, torn muscles and a hernia, and lots of unnecessary pain.  The correctional officer claimed "immunity from suit," arguing that Nelson had no right to sue her because she was carrying out her official duties.  The Court decided that the officer was not immune from suit, because she should have known that her actions constituted cruel and unusual punishment under the Eighth Amendment.

This was an "en banc" decision, meaning that numerous 8th Circuit federal court judges participated in the decision.  Amazingly to me, 5 judges dissented from the result and argued that the correctional officer was immune from suit.  Their reasoning was that shackling women during labor was such a widespread and routine practice that the correctional officer couldn't have realized that she was doing anything wrong.

Can it possibly be true that non-violent women in labor are routinely shackled to hospital beds?  Are pregnant women in labor really flight risks?  Strnagely enough, I can't recall ever seeing a woman who is just about to give birth racing down the street with a prison guard giving chase.  Surely the correctional officer could have thought of a better way to keep watch on Nelson duirng labor.  The correctional officer's actions caused needless suffering, and she should have to compensate Nelson for the harms she caused.