An Interesting Approach to Quality of Life

Many of you learned about Broken Windows Theory and how New York City applied the general principles by going after those who broke minor laws with the idea that little crimes lead to bigger crimes.
Whether or not this was the primary reason, it is a fact that crime in New York City started its downward slide at about the same time. New York then instituted a number of other changes and today has become a relatively safe city.

England has started issuing Antisocial Behaviour Orders. Recent cases included brothers aged 10 and 12 banned from swearing, making rude gestures, damaging property, starting fires and throwing missiles.

A 79-year-old woman was also served with an order for harassing her neighbours.

Home Office minister Hazel Blears is quoted on her belief in the efficacy of these Orders.

While it was "no wonder" some people would breach Asbo conditions, the most important thing was that, if this happened, they were returned to court and action taken against them, she said.

She added: "50% of orders are not breached. That means in 50% of those cases people are now behaving properly and the kind of misery they've been causing has actually stopped."

This was reported in the BBC news. The title of this particular blog is hyperlinked to the article, but I do not know how long the link will last.

It is an interesting concept, however.

A School for Johns

This article appeared in the Charlotte North Carolina Observer and was reported in the Criminal Justice Journalists' News Center


Charlotte To Start "Therapeutic" School For Johns
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Men caught offering women money for sex will soon be going to school after they leave jail, the Charlotte Observer reports. Beginning in August, men charged with soliciting for prostitution will likely be required to take a class where they'll learn about sexually transmitted diseases, addiction, and respect for women. The idea is that it might be easier to change the men who pay for sex than the women who sell it. "If we can convince these men they can't cruise around Charlotte looking for prostitutes, that could diminish the number of prostitutes working the streets," said prosecutor Bruce Lillie. "If we take away that demand, the supply will dry up."

Men facing their first prostitution-related charge can get their case dismissed if they successfully complete the "john school," Lillie said. Judges can sentence others as part of their probation to attend the school. Now, men with no record who plead guilty to soliciting usually get a suspended sentence and a fine. The classes would run two hours weekly for five weeks and cost $220 Cities including Norfolk, Va., Las Vegas and Nashville, Tn. -- have john schools but Charlotte's will be different. In other programs scorned wives and former prostitutes are brought in to shame the men. Charlotte's school will be more therapeutic than punitive. In New York City, more than 1,200 men attended a john school in the last three years and just two were rearrested, the Daily News reported.

Charlotte Observer

Some Major Supreme Court Decisions

Two of these involve the display of the Ten Commandments; one is a Texas case.

The first one listed is an important criminal justice issue which raises the question of police and a restraining order.

CIVIL RIGHTS, CONSTITUTIONAL LAW, INJURY AND TORT LAW

Town of Castle Rock v. Gonzales, No. 04-278 (U.S.S.C. June 27, 2005)
An individual who has obtained a state-law restraining order does
not have a constitutionally protected property interest in having
the police enforce the restraining order when they have probable
cause to believe it has been violated.

To read the full text of this opinion, go to:
http://laws.findlaw.com/us/000/04-278.html


CONSTITUTIONAL LAW, GOVERNMENT LAW

McCreary County v. ACLU, No. 03-1693 (U.S.S.C. June 27, 2005)
A county's manifest objective may be dispositive for determining
whether a display of the Ten Commandments in courthouses violates
the Establishment Clause.

To read the full text of this opinion, go to:
http://laws.findlaw.com/us/000/03-1693.html


CONSTITUTIONAL LAW, GOVERNMENT LAW

Van Orden v. Perry, No. 03-1500 (U.S.S.C. June 27, 2005)
The Establishment Clause of the First Amendment allows the display
of a monument inscribed with the Ten Commandments on the Texas State
Capitol grounds.

To read the full text of this opinion, go to:
http://laws.findlaw.com/us/000/03-1500.html


COPYRIGHT, CYBERSPACE LAW, INTELLECTUAL PROPERTY

MGM, Inc. v. Grokster, Ltd., No. 04-480 (U.S.S.C. June 27, 2005)
One who distributes a device with the object of promoting its use to
infringe copyright, as shown by clear expression or other
affirmative steps taken to foster infringement, going beyond mere
distribution with knowledge of third-party action, is liable for the
resulting acts of infringement by third parties.

To read the full text of this opinion, go to:
http://laws.findlaw.com/us/000/04-480.html


CRIMINAL LAW & PROCEDURE, SENTENCING

Bell v. Thompson, No. 04-514 (U.S.S.C. June 27, 2005)
In a death sentence case, following the denial of defendant's
petition for certiorari, the Court of Appeals abused its discretion
when it withheld its mandate for more than five months without
entering a formal order.

To read the full text of this opinion, go to:
http://laws.findlaw.com/us/000/04-514.html

An opportunity to see Civil law in action

The continuing story of Natalie Hollaway, the 18-year-old teenager from Alabama, who vanished the night before she was due to fly home to the states is an excellent opportunity to compare the Civil legal system in operation in a criminal case to the workings of our own common law system.

A few things that I have heard discussed:

Those detained may be questioned for up to 11 hours a day.

No attorney may be present when a detainee is interrogated

Parents may not be required to testify against a child

A person is initially detained for 6 hours, then if there is reasonable suspicion/probable cause (both terms were used by those interviewed on the island) a prosecutor decides whether to hold the person for an additional 48 hours. From that point forward, a judge must decide if further detention is allowed. This period of detention/judge decides if more time is needed can continue for quite a long time.

There has been a tendency on the part of many who are interviewed, both those with a connection to the actual case and other so-called experts in the US, to be very critical of the actions of the Aruban authorities with little or no understanding of how the Civil law system works.

Unlike the message that we get from movies and television programs, solving a crime is a lengthy process, especially in the absence of a body. Consider how long it took for Scott Peterson to be arrested, as one example.

Let us not forget that this crime took place in Aruba and therefore Aruba has jurisdiction. When one leaves the United States and goes to another country, the laws of that country and that country alone will determine how our actions will be judged.

The Internet and Google Searches

In a recent civil law case from Indiana, the defendant's claim was upheld and the court cited the lack of a Google search as proof that the plaintiff did not sufficiently attempt to locate the defendant. Since the Court back in 1950 (Mullane v. Central Hanover Bank and Trust Co) stated that due process requires notification and the opportunity for a hearing when one's life, liberty, or property will be adjudicated, locating the individual in order to notify that person involves due process and "due diligence."

The Indiana appeals court in Munster v. Groce (2005) said that since a Google search done by the court had provided an address and other leads to locating the defendant, plaintiff had not been diligent in his attempt to find the defendant in order to provide notice.

You can read the entire case by using the Academic Universe (Lexis-Nexis) database that is available to all UTA students. (library.uta.edu)

Interesting New Laws

This information was emailed to me from the Crime and Justice News.

No-Tell Motels to Credit Cards: New State Laws Coming July 1
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
A smoking ban in Georgia, strict sanctions against sex offenses in Iowa and legal procedures for disposing of unclaimed cremated remains in Connecticut are among hundreds of new state laws that take effect July 1. Stateline.org highlights some of the laws, including a package of Iowa laws designed to protect children from pedophiles by doubling penalties and mandating electronic monitoring of sex convicts.
On July 1, California begins using a Web site to inform the public about certain sex offenders. Montana will require serious sex offenders to register for a satellite-monitoring program, and New Mexico is starting a new sex offender DNA identification system. A number of states are launching new efforts to curb methamphetamine production by limiting the sale of psuedoephedrine, a key component of the narcotic. In six states, new laws taking effect that aim to improve road safety. Among other laws: Mississippi allows municipalities to ban the hourly rental of motel rooms; Georgia restricts a maximum jury award for pain and suffering caused by medical malpractice to $350,000; New York prohibits the unrestricted marketing of credit cards on college campuses, and Idaho allows prosecution of parents who allow their child to become a habitual truant.

Stateline.org

I thought you would find it interesting

Supreme Court Reverses

This case revisits Strictland which deals with ineffective assistance of counsel

SUPREME COURT OF THE UNITED STATES

ROMPILLA v. BEARD, SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 04—5462.Argued January 18, 2005–Decided June 20, 2005

Petitioner Rompilla was convicted of murder and other crimes.

Held: Even when a capital defendant and his family members have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the trial’s sentencing phase. Pp. 4—18.

(a) Rompilla’s entitlement to federal habeas relief turns on showing that the state court’s resolution of his ineffective-assistance claim under Strickland “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” this Court, 28 U.S.C. § 2254(d)(1). The state court’s result must be not only incorrect but also objectively unreasonable. Wiggins, supra, at 520—521. In judging the defense’s investigation in preparing for a capital trial’s sentencing phase, hindsight is discounted by pegging adequacy to “counsel’s perspective at the time” investigative decisions were made and by giving deference to counsel’s judgments. Strickland, supra, at 689, 691. Pp. 4—5.

(b) Here, the lawyers were deficient in failing to examine the court file on Rompilla’s prior rape and assault conviction. They knew that the Commonwealth intended to seek the death penalty by proving that Rompilla had a significant history of felony convictions indicating the use or threat of violence, that it would attempt to establish this history by proving the prior conviction, and that it would emphasize his violent character by introducing a transcript of the rape victim’s trial testimony. Although the prior conviction file was a public record, readily available at the courthouse where Rompilla was to be tried, counsel looked at no part of it until warned by the prosecution a second time, and even then did not examine the entire file. With every effort to view the facts as a defense lawyer would have at the time, it is difficult to see how counsel could have failed to realize that not examining the file would seriously compromise their opportunity to respond to an aggravation case. Their duty to make all reasonable efforts to learn what they could about the offense the prosecution was going to use certainly included obtaining the Commonwealth’s own readily available file to learn what it knew about the crime, to discover any mitigating evidence it would downplay, and to anticipate the details it would emphasize. The obligation to examine the file was particularly pressing here because the violent prior offense was similar to the crime charged and because Rompilla’s sentencing strategy stressed residual doubt. This obligation is not just common sense, but is also described in the American Bar Association Standards for Criminal Justice, which are “ ‘guides to determining what is reasonable,’ ” Wiggins, supra, at 524. The state court’s conclusion that defense counsel’s efforts to find mitigating evidence by other means were enough to free them from further enquiry fails to answer the considerations set out here, to the point of being objectively unreasonable. No reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations what they recalled. Nor would a reasonable lawyer compare possible searches for school reports, juvenile records, and evidence of drinking habits to the opportunity to take a look at a file disclosing what the prosecutor knows and plans to read from in his case. Pp. 5—14.

(c) Because the state courts found counsel’s representation adequate, they never reached the prejudice element of a Strickland claim, whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result … would have been different,” 466 U.S., at 694. A de novo examination of this element shows that counsel’s lapse was prejudicial. Had they looked at the prior conviction file, they would have found a range of mitigation leads that no other source had opened up. The imprisonment records contained in that file pictured Rompilla’s childhood and mental health very differently from anything they had seen or heard. The accumulated entries–e.g., that Rompilla had a series of incarcerations, often related to alcohol; and test results that would have pointed the defense’s mental health experts to schizophrenia and other disorders–would have destroyed the benign conception of Rompilla’s upbringing and mental capacity counsel had formed from talking to five family members and from the mental health experts’ reports. Further effort would presumably have unearthed much of the material postconviction counsel found. Alerted to the school, medical, and prison records that trial counsel never saw, postconviction counsel found red flags pointing up a need for further testing, which revealed organic brain damage and childhood problems probably related to fetal alcohol syndrome. These findings in turn would probably have prompted a look at easily available school and juvenile records, which showed additional problems, including evidence of a highly abusive home life. The evidence adds up to a mitigation case bearing no relation to the few naked pleas for mercy actually put before the jury. The undiscovered “mitigating evidence, taken as a whole, ‘might well have influenced the jury’s appraisal’ of [Rompilla’s] culpability,” Wiggins, supra, at 538, and the likelihood of a different result had the evidence gone in is “sufficient to undermine confidence in the outcome” actually reached at sentencing, Strickland, supra, at 694. Pp. 14—18.

355 F.3d 233, reversed.

Souter, J., delivered the opinion of the Court, in which Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed a concurring opinion. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined.

Judges and Plea Bargains

Textbooks tend to give the impression that although judges can accept or reject a plea bargain, acceptance is the rule nearly always. An article in the New York Times today discusses a rejection and the reasoning behind what the judge ordered. It is well worth reading for insight into the federal system.

June 18, 2005
Judge's Move Casts Doubt in Ferry Case
By SEWELL CHAN

This article is available on the New York Times web site as well as via the UTA digital library for current students.

Medical Marijuana Update

Today's USA Today reports that the U.S. House on Wednesday rejected 264-161 an amendment that would have barred the Justice Department from prosecuting medical-marijuana users who are following state laws.

Celebrities and the Justice System

An article in today's New York Times raises the issue of whether the prosecutors of celebrities are held to a higher standard

June 15, 2005
Debating the Role of Celebrity in the System
By JONATHAN D. GLATER
The acquittal of Michael Jackson on all counts against him has prompted a debate once again of what role celebrity plays in America's criminal justice system.

It is an interesting article that you can access directly from the New York Times or from the UTA digital library (if you are a UTA student).

In a convoluted way, this case also tied into the last posting on peremptory challenges. The Jackson jury represented the community which is primarily Anglo although there were a few Hispanics on the jury as well. I heard one "talking head" comment that Jackson did not stand a chance with a jury from this area.

Once again the "talking heads" were filling airspace and making unfair comments about an American jury.

Whether a verdict is right or wrong in the eyes of any individual makes no difference. In American when the jury acquits, that is the end of the matter. When the jury convicts, it is a high barrier to get a conviction overturned.

The jury spoke and there are too many other more important matters going on to spend time and energy arguing whether or not the verdict made sense. Let's move on.

Peremptory Challenges

The U.S. Supreme Court decided two cases this Term that involved Batson challenges. Should you want to see the decisions themselves, here is the URL: http://laws.findlaw.com/us/000/03-9659.html and http://laws.findlaw.com/us/000/04-6964.html

The first case was MILLER-EL v. DRETKE [03-9659] and the second was JOHNSON v. CALIFORNIA [04-6964]

In Miller-El in a concurring opinion, Justice Breyer stated:

In Batson v. Kentucky, 476 U. S. 79 (1986), the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection. In his separate opinion, Justice Thurgood Marshall predicted that the Court's rule would not achieve its goal. The only way to "end the racial discrimination that peremptories inject into the jury-selection process," he concluded, was to "eliminat[e] peremptory challenges entirely." Id., at 102-103 (concurring opinion). Today's case reinforces Justice Marshall's concerns.

Without a focus on race, gender, or any other characteristic, I wonder whether elimination of peremptory challenges might not be an idea whose time has come. Consider the time and money spent on voir dire and multi-page questionaires and jury consultants, etc. Why wouldn't 12 members of the community for whom no legal obstacles were present be acceptable?

Is it conceivable that such a group might be predisposed toward either the prosecution or the defense? Of course, but jurors have shown time and again that they take their job very seriously and do in fact listen to the evidence and settle on a verdict to which all agree.

Do you think we should keep peremptory challenges? PLEASE comments are not to focus on race or other discriminatory elements but simply to address whether the peremptory should be retained.

Originally these challenges were allowed so that each side could strike a set number of venirepersons for any reason, undisclosed, whatsoever. Today Batson and other decisions have changed the rules for the use of peremptory challenges.

My point is simply that if you took away peremptory challenges neither side could use them and the jury would be composed of ordinary citizens. Might that not be a good idea?

Supreme Court

California voters in a referendum agreed to allow the use of marijuana for medical reasons.

The Supreme Court ruled that state medical marijuana laws do not protect users from the federal law that bans the drug.

The case was
GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al.

The case was decided on the basis of the right of Congress to regulate interstate commerce. Justice Thomas was one who dissented and stated the following:


Justice Thomas, dissenting.
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.


Justice O'Connor, with whom The Chief Justice and Justice Thomas join as to all but Part III, dissenting.
We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U. S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting).
This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U. S. 619, 635 (1993); Whalen v. Roe, 429 U. S. 589, 603, n. 30 (1977). Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause--nestling questionable assertions of its authority into comprehensive regulatory schemes--rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U. S. 598 (2000). Accordingly I dissent.

Congress has the power to pass legislation that would allow the use of medical marijuana which the citizens of some, but not all or even a majority of the states, favor.

The question then becomes whether this is an action that should be considered. The arguments against taking this action is that there is no scientific data in support of the use of medical marijuana although many, including the women who brought the case, claim it has given them considerable relief.

Should consideration be given to allowing marijuana for medical reasons and if so who would determine the allowable conditions and how would the drug be limited to those only in need?

Thought?