June 6, 2011

The Rap Sheet Has Moved (But in the Electronic World, Not Far!)

The Rap Sheet has moved to the bucoloic community of blog.Nolo.com.

The blog's URL is http://blog.nolo.com/criminallaw/.

Don't leave home without it!

Paul 

April 26, 2011

Sex-Change Surgery for Transgender Inmates?

Lyralisa Sevens is a California transgender prison inmate.  Stevens was born a male but identifies as female. California provides Stevens with hormone replacement therapy, but Stevens is housed with male prisoners because Stevens' male genitalia is intact.  Stevens has sued the state, asking a court to order the state to pay for a sex-change surgery that will result in Stevens' transfer to a female prison.

Stevens claims that a male prison is a dangerous place for an inmate with feminine deportment and breasts. That's probably true.  But judges cannot justify ordering a cash-strapped state to pay many thousands of dollars for a convicted murder's non-emergency surgery. 

The state should take reasonable steps to keep Stevens safe from other prisoners. But at a time when California has had to cut back severely on support for education and social services, an order that Stevens (and undoubtedly hundreds of other prison inmates) is entitled to a sex-change operation would be unconscionable.   

April 21, 2011

Christian Longo's Plea: "After you execute me, please harvest my organs."

Christian Longo is on Oregon's death row, convicted of brutally murdering his wife and three small children.  A healthy man aged 37, Longo has made an interesting humanitarian proposal.  He will drop his appeal of the death sentence.  This will save the state a lot of money. He will also agree to donation of his healthy organs after he is executed.  Since Oregon has waiting lists of people desperate for organ transplants, Longo's proposal could save many lives.

"Yes" to Longo's proposal sounds like a no-brainer.  It sure would to me if I were in need of a transplant.  But Oregon and most states are totally opposed.  Jeffrey Orlowski, executive director of the non-profit Association of Organ Procurement Organizations, is worried about taking advantage of people like Longo: "As a country, we have a high ethical and moral standard that we shouldn't do things to people no matter how disadvantaged they are." What?  Our country's high moral standards allow for executions, but not for organ donations?  Give me a break!

Undoubtedly practical problems exist when carrying out death row inmates' wishes to become organ donors after death.  But moral and ethical problems?  Much better to find a way to provide for "Oregon" transplants!

April 19, 2011

Rehabilitive Sentencing

The US Supreme Court will shortly decide whether a federal judge can lengthen a prison sentence for the purpose of giving a prisoner time to complete a prison drug rehabilitation program.  The case involves Alejandra Tapia, who was convicted of crimes involving drugs and alien smuggling.  The judge gave Tapia a longer-than-usual sentence (though still within statuory limits) in the hope that she would enroll in a prison drug rehabilitation program.  Tapia is challenging the sentence, claiming that the relevant statute, 18 USC Sec. 3582, forbids judges from considering rehabilitative programs when deciding on the length of prison sentences.    

Tapia argues that Congress did not want to use prison sentences to coerce prisoners to participate in rehabilitation programs.  And in fact Tapia refused to partiicpate in a rehabilitation program.  That's sad but hardly surprising: the same thinking that led her into prison in the first place seemingly continues to control her actions.

If the Court upholds Tapia's challenge, perhaps the only effect will be to make sentencing judges more circumspect.  Tapia's sentencing judge indicated that he was lengthening her sentence to give her a chance to enroll in a rehabilitation program.  Had the judge said, "I'm giving you the maximum sentence in order to protect society," that sentence would not violate Sec. 3582.  

At the end of the day, rehabilitation programs probably work best when people are willing and committed to changing their lives.  Hopefully, inmates like Alejandra Tapia will come to view a prison term as an opportunity to enroll in a rehabilitation program or participate in a program like AA or CGA (Criminals and Gang Members Anonymous).  If not, prisons will continue to be revolving doors for many people.  

March 16, 2011

Senate Bill 9: Mitigating LWOP Sentences for Youthful Offenders

Senate Bill 9 is a sensible legislative proposal that deserves to become California law.  The proposed law allows a "second chance" for some prisoners who receive LWOP sentences (Life Without Possibility of Parole) for crimes they committed before the age of 18.

The law provides a second chance for offenders who receive LWOP sentences for aiding and abetting an adult offender. If such prisoners don't have other violent crimes on their record, they can apply for sentence reduction after serving at least 10 years in prison. 

Senate Bill 9 is a win-win proposal.  The law can help reduce overcrowding in prison while at the same time the possibility of release can motivate prisoners to engage in activities that demonstrate rehabilitation.  Let's hope the bill becomes law quickly.

March 2, 2011

Michigan v. Bryant- Justice Scalia's Ongoing Emergency

Justice Scalia has been the US Supreme Court's driving intellectual force behind a series of Sixth Amendment Confrontation Clause interpretations that have made life difficult for prosecutors.  Begininning with Crawford v. Washington in 2004, these decisions make "testimonial" hearsay statements from non-testifying witnesses inadmissible in evidence against criminal defendants at trial.  The Court is developing the contours of the term "testimonial" as it hops from one case to another.  At the moment, hearsay statements are NOT testimonial (and therefore are admissible against defendants) if witnesses make them to police officers, 911 operators, etc. in the course of an "ongoing emergency."  But hearsay statements ARE testimonial if an emergency has passed and government agents are gathering information about a "past crime."

When he outlined the Crawford approach in 2004, Justice Scalia bragged that it was both historically accurate and an easy bright-line rule for later courts to follow.  But the Court's 2011 decision in Michigan v. Bryant has shoved the bright-line into the dark shadows.  Justice Scalia, suddenly finding himself in a 2 person minority dissenting position, went apoplectic.   

To briefly recount the facts in Bryant, police officers interviewed a fatally-wounded shooting victim.  Close to death, the victim told the police the name of the shooter and the location where he'd been shot.  A police officer testified to the victim's statements at Bryant's trial.  To Scalia, this was an easy example of testionial hearsay.  The shooting had already occurred, and the police were gathering information about a past crime. 

But the 6 other Justices (Justice Kagan had to recuse hereself) didn't see it this way.  Looking at the context as a whole, an ongoing emergency existed when the police interviewed the victim.  The shooter's whereabouts were unknown, the victim was near death, and the questioning was loose and unstructured.  The majority lectured Scalia in his own "house" writing that "We are unwilling to sacrifice simplicity for accuracy.  Simplicity is not always better."  Ouch!

Justice Scalia's bitter and caustic dissent may have been a strategic error.  He wrote that the majority had "demeaned" the Court, reached a "patently incorrect conclusion" and left the Confrontation Clause in a "shambles."  And there's lots more bitterness- read it for yourself.  I think it's possible that Justice Scalia's nasty dissent might backfire on him.  His anger sends a clear signal to future judges that Michigan v. Bryant has liberalized the meaning of "ongoing emergency."  If the case is read this way, the doctrinal mansion that Justice Scalia had erected so carefully on the grounds of the Confrontation Clause might crumble. 

February 28, 2011

Michigan v. Bryant Breathes Life Into Dying Declarations

In Michigan v. Bryant (Feb. 2011), the US Supreme Court ruled that a type of hearsay known as a "dying delcaration" was admissible in evidence to prove a defendant guilty of murder. The big legal issue in the case was the application of the Confrontation Clause to a murder victim's last words. 

In Crawford v. Washington (2004), Justice Scalia began to erect his Monument to the Confrontation Clause.  He was the guiding robed hand that led a majority of the justices to agree that hearsay evidence was inadmissible against a defendant in a criminal trial unless the defendant had a chance to cross examine the person making the statement.  In later cases, the Court ruled that hearsay statements are admissible if they are made during "ongoing emergencies," but not if they are made after an emergency has passed and the police are investigating a prior crime.

In Michigan v. Bryant, Detroit police officers talked to a fatally-wounded gas station attendant who told them that "Rick" (Bryant) had shot him and where the shooting took place. The victim died shortly afterward. The Court ruled by a 6-2 majority that the police were investigating an ongoing emergency when they talked to the victim. Thus, the shooting victim's statement to the police officer was admissible in evidence even though Bryant had no chance to cross examine the victim. 

The outcome demonstrates the fuzziness of the line separating an "ongoing emergency" from a "past crime."  Oddly, in Crawford, Scalia bragged that his new interpretation of the Confrontation Clause was better than the former interpretation because Crawford would provide greater certainty.

Scalia's dissenting opinion essentially dropped an f-bomb on the majority, though he used somewhat more polite terms like "gross distortion of the law" and "shambles of the Constitution."   Scalia sounded a bit like a drowning man who sees the Confrontation Clause passing before his eyes.  For now, Dying Declarations have been given a shot at life. 

January 4, 2011

The Governator Becomes The Commutator

As Arnold Schwartzenegger's term as California governor drew to a close in 2011, he commuted Esteban Lopez's prison term from 16 to 7 years. Schwarzenegger's decision was controversial, as many last-minute executive favors of this sort tend to be. 

In this case, Esteban Nunez was the son of Schwarzenegger's political crony, formerr CA Speaker Fabian Nunez.  Estaban had pleaded guilty in 2007 to voluntary manslaughter.after he was part of a group of inebriated idiots who took out their anger at being refused admission to a San Diego fraternity party by attacking and stabbing some party-goers, killing student Luis Dos Santos.

Predictably, Esteban's lawyer praised the justness of Schwarzenegger's decision, claiming that his client's 16 year sentence was overly harsh, a result of the judge trying to avoid any question of favoritism.  But for many San Diego community leaders, Santos' family and Esteban's prosecutors, Schwartzenegger's decision was unfair payback to a good buddy.

In a criminal justice system devoted to fair and open procedures, the executive power of pardon and clemency seems anachronistic.  Why should state governors and the US President be able to override a judicial system that already provides for multiple ways to redress possible unfairness?  But the power extends back to ancient Babylonian and Hebrew law, and it seems that no system of government can live without it.     

January 3, 2011

The Scott Sisters: My Kingdom for a Kidney

In December 2010, Mississippi Gov. Haley Barbour commuted the life sentences of sisters Jamie and Gladys Scott- so long as Gladys donates one of her kidneys to her ill sister within a year.

Gov. Barbour's decision is probably illegal as well as impractical. He is in essence charging Gladys the value of her kidney to secure parole. Yet parole is supposed to recognize inmates' rehabilitation, not their ability to pay for their releases. And what will the Governor do if it turns out that Gladys is not a suitable kidney donor-- throw her back in prison?   

Turns out that the sisters were serving a life sentence for a robbery that netted them a total of $11.  But if a life sentence constitutes cruel and unusual punishment for their crime, their release should have been based on that reason rather than Gladys' willingness to donate a kidney.

On the other hand, think of the possibilities if Gov. Barbour's decision starts a trend. States may set up parole conditions that resemble insurance policies that pay people amounts that differ according to the body part that an insured person loses. Donation of kidneys or liungs are biggies, worth a sentence reduction of at least 5-10 years.  Donation of a spleen?  Not so important, maybe advance a parole date by a few months. Donation of a brain to Gov. Barbour?  Priceless.      

December 1, 2010

John Wesley Ewell- Three Strikes and Out

John Wesley Ewell has been charged with murdering Hanna Morcos, Denice Roberts, and Leamon and Robyn Turnage in their suburban Los Angeles homes in September and October of 2010. The charges are a nightmare for opponents of 3 Strikes Laws.  With previous robbery convictions on his record, Ewell had been charged with relatively minor crimes that could have been used as Third Strikes and put Ewell into prison for the rest of his life.  Yet in each case, prosecutors exercised leniency and refused to file Strike 3 charges. As a result, Ewell was a free man when he allegedly committed the 2010 murders.

Supporters of 3 Strikes laws will no doubt call for their use even when a third strike crime is a minor one.  However, predicting future violence is tricky. Studies suggest that most offenders with 2 strikes on their record don't commit additinal viuolent crimes. 

And California is already under a court order to release prisoners. If 3 Strikes laws were strictly enforced, where would the extra prisoners be housed?  And in a state whose budget is already a train wreck, where would the money to pay for all the additional inmates come from?

We all need to mourn the deaths of innocent victims.  But we also have to recognize that discretion is a necessary component of our criminal justice system.  We have no choice but to trust to officials and experts to identify offenders who are likely to commit violent crimes if they are shown mercy.  But mistakes are inevitable.  

November 15, 2010

Lawyers and "The Social Network"

The Social Network has been rightfully acclaimed as one of the best films of 2010.  What I want to focus on is the film's positive portrayal of lawyers.  In a film whose subtitle might have been "College Kids Go Wild," the film's lawyers are refreshing models of reason.

The Social Network depicts the dramatic events leading to the creation and development of Facebook.  Depositions in two civil damages lawsuits against Mark Zuckerberg, Facebook's creator, are the backdrop for the story. During the depositions scenes, lawyers question and defend Zuckerberg and interact with each other. 

Amazingly for a Hollywood movie, the lawyers behave professionally and competently.  Certainly the lawyers reflect their clients' emotions and beliefs in the merits of their claims. But the lawyers don't scream or try to humiliate anyone.  At least one of Zuckerberg's lawyers also displays sincere concern for his personal well-being. If other movies take their cues from the success of The Social Network, perhaps movies will stop depicting lawyers as greedy and unethical pond scum.   

October 5, 2010

Tyler Clementi's Suicide: Manslaughter Charges Are Not Warranted

Tyler Clementi's suicidal jump off the George Washington Bridge has been followed by cries for manslaughter charges against Dharun Ravi and Molly Wei, the two Rutgers students who allegedly used a webcam to broadcast Clementi having sex with another male.   

However, prosecutors can only file charges that they believe they can prove beyond a reasonable doubt. In this situation, to justify involuntary manslaughter charges a prosecutor would have to believe that it can be proved that Ravi and Wei acted in reckless disregard of a substantial risk.  But while Ravi (Clementi's roommate who actually set up the webcam) and Wei may have been foolish and perhaps cruel, no evidence thus far suggests that they could have reasonably anticipated that Clementi would commit suicide.  So far as we know Clementi had never attempted suicide or even discussed suicide with the students. Indeed, there's some evidence that Clementi considered a variety of responses, including changing roommates, before committing suicide. His death is a tragedy, but it does not justify manslaughter charges.

October 4, 2010

Bingo!- You're Under Arrest!

Alabama casino operators and a number of state legislators have been arrested on bribery and corruption charges.  The casino operators wanted to add electronic Bingo machines to their casinos. Alas, their effort to convince the Alabama legislature to change state law to allow what amounted to slot machines in casinos stalled, So the casino operators turned to bribing legislators and apparently found some ready takers. If a judge eventually calls out B-10, that may refer to the sentences these worthy representatives of our democracy receive.
August 30, 2010

Blagojevich Verdict and Unanimous Juries

Former Illinois Governor Rod Blagojevich was recently convicted of lying to the FBI.  But his trial resulted in a hung jury on numerous other counts, including the most signfiicant charge that he tried to auction off Pres. Barak Obama's vacated US Senate seat to the highest bidder.  

Since the jury hung 11-1 in favor of convicting Blagojevich of trying to sell the Senate seat, the government will no doubt re-try that and other charges in front of a new jury. Obviously relieved by his temporary reprieve, Blagojevich stated that the lone holdout had reaffirmed his faith in God. God of course did not create the rule that jury verdicts have to be unanimous.  Perhaps of greater surprise to many people, neither did the Constituition. While most states provide for unanimous verdicts in criminal cases, that requirement is not part of the Constitution.  The US Supreme Court has upheld convictions based on verdicts of 10-2.  

The outcome of what might come to be known as Blagojevich # 1 is either a great testament to the criminal jury's role as a buffer between the government and ordinary people, or a ludicrous and expensive example of how a single irrational juror can allow an obviously guilty and dismal politician to momentarily escape justice. In recent years, seemingly irrational trial outcomes have prompted outcries for doing away with unanimous verdict requirements in criminal cases (see the first trial of the Menendez Brothers and the O.J. Simpson fiasco).  But there's been no retreat from the rule, and I doubt the Blagojevich verdict will produce any changes.   

July 8, 2010

Mehserle Convicted of Involuntary Manslaughter

As I predicted, an LA convicted former police officer Johannes Mehserle of involuntary manslaughter in the shooting death of Oscar Grant on a train platform on New Year's Day 2009.  Since Mehserle was charged with murder, I am sure that he and his attorneys are satisfied with the verdict.  Merserle will probably have to serve some time in jail, but with involuntary manslaughter probation instead of jail is a possibility. 

This is a case where the jury seems to have gotten it right.  Though the tragic shooting of a black victim by a white police officer understandably generated anger in Oakland, where the shooting took place, it's hard to be convinced beyond a reasonable doubt that Merserle intended to kill Grant. At the same time Mehserle is justly responsible for firing a gun that he testified he thought was a Taser.  Police officers are trusted with deadly weapons, and they have to be accountable for mistakes such as the one that Mehserle made.

Good move to have the trial in LA rather than Oakland.  Now let's hope that all the communities stay peaceful and that there's no repeat of the iots that took place in Oakland following Grant's tragic death.