Criminal Justice News and VIews

Interesting items related to criminal justice

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Location: Scottsdale, Arizona, United States

I love teaching and sharing knowledge. The Internet is a free passage to an amazing amount of knowledge provided by some of the greatest minds of the day. MIT, Oxford and other universities are now sharing lecture notes with the public and allowing us to dip into the overflowing fonts of wisdom that abound. Yale is but one university that has put actual lectures on the web.

Wednesday, July 27, 2005

Making Sentencing Guideline work to Reduce Recidivism

This is a letter sent by Judge Marcus from Oregon to the Sentencing Commission. He discusses recidivism and how changes in the current system could lower the rate.
He also provides a link to show what Virginia did with its sentencing guidelines and the result that they achieved.

Bin Laden - Today's Blackbeard?

The Summary appeared in the Chronicle Of Higher Education on July 27, 2005

July/August issue of Legal Affairs: Bin Laden, the new Blackbeard?

In 1856 international law recognized two entities: people and states. People followed the rule of their governments, while nations bowed to international pacts. When the Declaration of Paris was signed that year, a category was created for a third group: pirates. Almost 200 years later, says Douglas R. Burgess Jr., an author and expert on international law, the parameters of that category can be used to fight an enemy of today: terrorists.

In 2005 no international law defines terrorism, says Mr. Burgess. Following older standards can work, he says, because terrorists, like pirates, lack the protection of law afforded to citizens. They also lack the sovereignty of legitimate nations. That unique status means pirates can be captured wherever by whomever.

"The ongoing war against pirates," he argues, "is the only known example of state vs. nonstate conflict until the advent of the war on terror."

But how can terrorism be compared to piracy? The corollaries, says Mr. Burgess, can be "profound and disturbing." Both declared war against civilization. Both have prepared their attacks in hiding, whether in a remote cove or in a secret cell. Both have aimed to bring attention to their causes. They share the goals of destruction, homicide, and frustration of commerce. Most important, he says, "both are properly considered enemies of the rest of the human race."

A more effective war against terrorism could be fought, says Mr. Burgess, if these actions were taken: Terrorists would be enemies of all states if an international definition for terrorism existed. Universal jurisdiction would also keep nations from harboring terrorists as freedom fighters by distinguishing between legitimate insurgents and outright terrorists. Above all, though, nations would not balk at helping the United States if a defined crime of terrorism could be prosecuted before the International Court of Justice, in The Hague.

The article, "The Dread Pirate Bin Laden," is available on the Web at

Tuesday, July 26, 2005

New Way of Posting Information

Since so many of the articles that I have posted are quite long, I am going to try to simply give you a summary sentence and then the URL. If you are interested, you can read the full article; if not, you still have a bit of insight into new items.

Hope I get some feedback on your preferred method

LAPD which has suffered bad publicity, to be kind about it, is instituting new software that tracks complaints and other telling data about officers — then alerts top supervisors to possible signs of misconduct.

The system is central to a federal oversight program ordered by the U.S. Justice Department after a wave of abuse allegations in the 1990s cast doubt on the LAPD's ability — and willingness — to police itself. "There definitely needs to be computerized management" of officers, said Andre Birotte, the LAPD's inspector general. "There have been concerns with all the scandals that have gone on within the department."

Read the article:

Monday, July 25, 2005

Perfect Murder?

Commentary by Editor Anne Campbell:
--------------- * Law & Order At Sea

Could this be a perfect murder? We'll need the combined expertise of detectives, forensics and legal minds from TV’s ‘Law & Order’ and its three spin-offs to solve this one: On July 5, George Smith, honeymooning on Royal Caribbean's Brilliance of the Seas, disappeared as the ship sailed between Greece and Turkey. Screams were reported by the passengers in a cabin beneath the Smiths’ around 3 a.m. The next morning, at about 7 a.m. on July 5, a passenger standing on a balcony spotted what looked like blood on a white metal awning that hangs over the ship's lifeboats and alerted cruise officials. A search of the cabins near that section revealed Smith was the only passenger missing. When the ship docked in Kusadasi, Turkey, Smith's wife was questioned and allowed to return home.

It was five days before a Royal Caribbean attorney visited the ship to ask questions about the incident. Turkish police officials had the blood as forensic evidence and offered to take over the case if Smith's family sent their own DNA as a match. They refused, so Turkey turned the case back to Royal Caribbean. According to a RCI spokesperson, the cruise line then handed the case over to the FBI.

Huh? Ok, now I'm confused, so I turned to CruiseMates' Jim Bragg, a retired police officer. "You do not need a body in order to convict anyone of murder. You must have the 'body of the crime,' which is just the high likelihood of the crime being committed and not the actual physical human remains," he said.

But it gets even more complicated than that. Smith apparently disappeared in international waters, so neither Greece nor Turkey has official jurisdiction. In the end, the only country with any jurisdiction over the murder is the Bahamas -- Brilliance of the Seas is a Bahamian-flagged vessel, so the incident – whatever it may have been – technically took place on Bahamian soil. The FBI? The US is out of the loop entirely in this crime – if there was a crime...

Between the Proverbial Rock and a Hard Place

Justice misfires over gun as woman from Alton goes to jail in divorce case
By Paul Hampel
Of the Post-Dispatch
Saturday, Jul. 23 2005

Issued order

She is locked up after refusing to commit a crime by obeying a judge's order to
give the weapon to her husband, a convicted felon.

An Alton woman embroiled in a divorce case spent more than four hours in jail
for contempt of court after she refused a Madison County's judge's order to
return a handgun to her ex-husband, a convicted felon.

Elizabeth "Beth" Ritchie, 30, said that complying with Associate Judge Ellar
Duff's order, delivered at a hearing on Thursday, would have required Ritchie
to commit a crime herself.

It is a felony in Illinois for a felon to possess a firearm, and for anyone to
transfer a gun to a felon.

Duff said in an interview Friday that she did not learn until after the hearing
that Ritchie's ex-husband was a felon, and that she then ordered Beth Ritchie
released from the Madison County Jail.

Ritchie said she tried to explain the situation to Duff in court but was

"I was being ordered by the law to break the law," Ritchie said. "And when I
wouldn't, I got thrown in jail."

Ritchie's ex-husband, Timothy D. Ritchie, 34, a used-car salesman from Wood
River, was convicted in Madison County Circuit Court of felony drug possession
in 1999 and felony theft in 2000. He got probation in both cases.

The Ritchies got married in 2002 and divorced last year. They have a son, now 2
years old.

Beth Ritchie said she did not know of her husband's felony convictions until
she opened a letter in 2003 from the Illinois State Police declining Tim
Ritchie's request for a Firearm Owner's Identification Card.

In a divorce court order splitting possessions, Tim Ritchie was awarded the
pistol, a 9 mm automatic. He said the weapon was a gift from his father.

Beth Ritchie said that, without her husband's knowledge, she had asked her
father, Richard Swift, of Grafton, to take the pistol out of the couple's house
in 2003.

"I was worried about Tim having the gun there, that it was illegal and could
get us both in trouble," she said.

Beth Ritchie said she had mailed certified letters a month before Thursday's
hearing to three court officials - Associate Judge Nelson Metz, State's
Attorney Bill Mudge and Circuit Clerk Matt Melucci - informing them of the
legal dilemma over the pistol. She said she followed the letters up with calls
but never heard back from the officials.

Beth Ritchie attended Thursday's hearing with her father.

Tim Ritchie was also present.

Beth Ritchie said that she explained the situation to Duff but that the judge
refused to listen.

"She said she didn't care about other circumstances, that I had better return
the gun to Tim immediately," Ritchie said.

At that point, Beth Ritchie's father approached the bench, after getting
permission from the judge.

"I could see the letter Beth had written, outlining the whole matter, right
there on the bench in front of her (Duff)," said Swift, 59.

Swift said he asked whether the pistol could be given to Duff to transfer, "so
that we wouldn't be the ones breaking the law."

"At that point, Judge Duff just snapped and ordered my daughter and me arrested
for contempt of court," Swift said.

Swift said Duff quickly recanted the order against him. Beth Ritchie was
shackled and taken away.

"I was crying hysterically. It was terrifying. I had never been arrested for
anything in my life," she said.

Duff said Friday that she had ordered Ritchie arrested because she had been

"This was a disgruntled person who flat out refused, blatantly and
disrespectfully in open court, to comply with a court order," Duff said.

When asked whether Duff knew that complying with the order would constitute a
crime, the judge said she did not know that Tim Ritchie was a convicted felon.

"That did not come out in open court. If they said it did, they are liars,"
Duff said.

When asked whether a court reporter had been present at the hearing, so that a
transcript could determine whether Ritchie and her father were, indeed, liars,
Duff said, "I never said they were liars. You're twisting my words."

Duff said a court reporter was not present at the hearing, which she said was
common procedure for "routine issues."

Beth Ritchie was freed from the Madison County Jail on Duff's order shortly
before 6 p.m. Thursday.

Daphne Duret of the Post-Dispatch contributed to this report.

Sunday, July 24, 2005

Difficulty of Drafting Statutes

The New York Times
July 24, 2005

Road Rules: Redefining Car Seizure

WHEN Suffolk County police officers arrested Salvatore M. Geha, 44, on July 6, a computer check on his driver's license found 204 suspensions since 1988 and $11,442 in unpaid fines on summonses for parking and moving violations, the police said.

The remarkable totals and a quirk of timing turned Mr. Geha, who lives in Central Islip, into Exhibit A in the debate over car-seizure laws on the Island.

Just the day before, the Suffolk County executive, Steve Levy, signed the latest of those laws, empowering the police to seize and sell off the vehicles of motorists caught driving with revoked or suspended licenses. Proponents of the law were quick to cite Mr. Geha as a prime example of why it was needed.

But it appears the law would not apply to him. Hoping to avoid the lawsuits and other problems that plagued Nassau and Suffolk counties' earlier car-seizure laws, which were aimed mainly at drunken drivers, the Suffolk Legislature's new law is written narrowly. Vehicles can be seized only if the drivers had their licenses revoked or suspended for one of a handful of reasons: a conviction for reckless driving or unlicensed operation, a conviction connected to a vehicle-related homicide, or multiple speeding tickets.

The county estimated that only 250 drivers a year would be covered, compared with the thousands who drive with suspended licenses generally, and with the tens of thousands who drive while intoxicated each year, the targets of previous seizure laws.

For his part, Mr. Geha originally attracted a police officer's attention by drinking a beer while standing in front of a convenience store; he was not driving at the time of his arrest, so his car could not be seized under the new law, according to Lt. Harold Armet of the Suffolk police.

New York State has a car-forfeiture law as well, for cases where a driver's license has been suspended 10 or more separate times for failing to answer a summons or pay a fine. But Mr. Geha would not be covered by that law, either, Lieutenant Armet said, because he was not driving when he was arrested.

Angie Carpenter, a Republican county legislator from West Islip, said she sponsored the new law (which the Legislature passed last month by a 17-0 vote with one abstention) after years of frustration at the prevalence of illegal driving on Suffolk roads.

"I'd hear about these terrible accidents and, invariably, the person who caused it was driving with a suspended license," Ms. Carpenter said. Since Suffolk already seizes cars in some drunken-driving cases, she said, "why can't we seize cars when the person shouldn't be driving because their license was suspended?"

Suffolk and Nassau each enacted D.W.I. seizure laws in the late 1990's, but both were struck down as unconstitutional, primarily on due-process grounds - Nassau's in 2003 and Suffolk's in March 2004.

Nassau revised its approach, dropping seizure at the time of arrest and instead going after the car once the driver has been convicted, according to Barbara Van Ripen of the county attorney's office. She said on Tuesday that the county had about 2,000 open cases awaiting court decisions.

By contrast, Suffolk stuck with seizure on arrest, and revised its law in other ways to respond to the court decisions; the county resumed seizing cars in September 2004.

Sgt. James J. Sullivan, who commands the Suffolk police impound yard in Westhampton, said Suffolk seized 2,389 vehicles from the first law's inception in 1999 until it was struck down, and another 387 since the revised law took effect through July 1.

About 35 percent of the total, or 970 vehicles, turned out not to belong to the arrested driver, and were returned to owners or lienholders. Another 24 percent were worth so little that the county scrapped them. Only 686 vehicles, or 25 percent, had been auctioned off by the county through July 1; another 454 vehicles were awaiting disposition.

Ms. Carpenter and Mr. Levy said in interviews that the new law complied with the courts' standards for the D.W.I. seizure law. It requires a hearing before a judge within days of an arrest to determine whether the vehicle should have been seized; Suffolk's earlier law allowed longer delays and left seizures to the discretion of police officials.

David Bishop, a Democratic legislator from West Babylon who is a lawyer, said the Legislature did not scrutinize Ms. Carpenter's bill closely before voting. Mr. Bishop said his fellow legislators are sometimes too quick to act on law-and-order legislation.

"They basically say: 'What's the title of the bill? Does it sound good? Let's all vote yes,' " he said. "They did not carefully consider the significance of the government expanding its power to seize private property."

Mr. Bishop said his objections to the broad scope of Ms. Carpenter's first draft of the law led to it being narrowed in the final version. But he still believed it was being rushed through, he said, so he abstained.

Mr. Bishop and some criminal defense lawyers cited concerns that the law, like the D.W.I. seizure law, would impose widely different penalties on different drivers for the same offense. An arrested driver loses nothing when a borrowed car is seized, and very little if it is leased or is a clunker. But someone caught while driving a new BMW or Lexus, for example, would effectively be fined $60,000 or more by a seizure.

"Whether that's true or not, it certainly doesn't mean we shouldn't move forward," said Ms. Carpenter, who is the Legislature's deputy presiding officer. "I feel very strongly that we have to do all we can to encourage people to be serious about the penalties."

But David H. Besso, a partner at the Bay Shore law firm of Long, Tuminello, Besso, Seligman, Quinlan & Werner and a former president of the Suffolk Bar Association, said that there were already plenty of severe ways to punish someone who drives with a suspended license. "If you want to put someone in jail, you certainly can, and that's a sufficient deterrent," Mr. Besso said. "This is just a publicity stunt that has no basis in law."

Mr. Besso's firm filed the lawsuit that overturned Suffolk's original D.W.I. seizure law. "I think someone will challenge this, and there will be a winner somewhere down the road," he said of the new law.

Mr. Besso and other defense lawyers said that the courts had not yet spoken on the main constitutional problems with seizure laws: excessive punishment and unequal treatment. The lawyers cited a more prosaic problem - that many drivers never receive notification about license suspensions.

Mr. Levy, the county executive, who is also a lawyer, acknowledged that the seizure law may produce "a disproportionate outcome" in certain circumstances. Last year he gave that as one of his reasons for voting against the original law when he was in the county Legislature. But "those concerns have been dissipated by scaling back the number of vehicles that could potentially be seized," he said last week.

Mr. Besso said he did not see the logic in that: "So what? Unfair is unfair, even if it involves just one defendant."

Mr. Levy called the new law a tool for the prosecution to use for possible plea bargaining, or other leverage that would otherwise not exist. "If someone has 50, 60 or 70 repeat situations, it's not going to matter to us if he's driving a Honda Civic or a Rolls-Royce," Mr. Levy said. "So long as the D.A. is using proper discretion as to when he is seeking a seizure, it should turn out O.K."

But defense lawyers argued that the seizures were civil actions to be pursued by the County Attorney's office, and that prosecutors had no role in them. Thomas Spota, the Suffolk district attorney, did not respond to three requests for comment on that issue.

In any case, the debate over seizure programs looks set to grow beyond cars. Jon Cooper, a Democratic county legislator from Huntington, has proposed a bill that would permit the county to confiscate the assets of anyone convicted of insurance fraud, falsifying business records or other white-collar crimes. The bill is being reviewed by the Legislature's public safety committee.

* Copyright 2005 The New York Times Company

Friday, July 22, 2005

Is Law School in your Future?

Few people think of the student loans from law school
added to the undergraduate loans when planning their future.

Government lawyers try to make ends meet

Proposed law would help pay law school loans

Staff Writer

During the week, Rachel Sobrero spends her time in a Nashville courtroom prosecuting those accused of committing crimes.

On the weekends, the 29-year-old assistant district attorney general waits tables and does other work in an area restaurant.

Across the aisle in the criminal justice system is Assistant Metro Public Defender Mickie Smith Daugherty. When she's finished safeguarding the rights of the accused, the 30-year-old lawyer moonlights as a teacher helping students get into college. Daugherty had a third job, she said, until her doctor told her she was suffering from sleep deprivation.

The reason for the extra work? The low-paying legal jobs, along with large student-loan debt, leave many prosecutors and public defenders struggling financially.

"I think it would be a fair assessment to say that a lot of young attorneys in our office live from paycheck to paycheck," Daugherty said.

Other lawyers in the public defender's office, as well as the district attorney's office, and those in similar posts across the state, have been forced to moonlight just to make a living.

The low pay and high student-loan debt is a national problem.

That's why some in Congress are backing the Prosecutors and Public Defenders Incentive Act, a proposed law that would pay off up to $6,000 a year in student loans provided the attorneys agree to stay in their public jobs for a certain length of time.

The bill, sponsored by U.S. Rep. David Scott, D-Ga., is supported by U.S. Rep. Bart Gordon of Tennessee.

The proposed law, the Murfreesboro Democrat said, is similar to programs offered to doctors, nurses and teachers who get a certain portion of their student-loan debt paid by agreeing to work in underserved areas.

But another reason he said he supports the move is to save money by reducing the appeals in criminal cases.

"We are constantly seeing cases where criminal defendants are sometimes having their sentences overturned because of inadequate representation. I think that this will hopefully stop these kind of appeals."

The law would make it easier to keep good, experienced attorneys, said Davidson County District Attorney General Torry Johnson, who has said he's had at least six lawyers leave his office this year alone.

Others say the high debt is keeping talented lawyers away from public service. "The important thing about this is there are lot of young law school graduates who would like to do some public service work, but they can't because of the amount of educational debt that they have," said Jeff Henry, executive director of the Tennessee District Public Defenders Conference.

Sobrero, the young prosecutor, says she loves her job. But at her salary, a student-loan debt of about $140,000 makes it difficult. Daugherty, who also is committed to her office, said she has a law-school debt of about $100,000.

The starting salary for a Metro assistant public defender is $43,668. For an assistant district attorney, it's $40,440.

A study by the American Bar Association of law school graduates from the 2003-04 school year found that debt from public law schools averages $48,910. The study found that students who had attended private law schools were carrying an average debt of $76,563,

If the law passes, Daugherty, Sobrero and others in their offices said it would be a big help.

"(The law) would make a huge difference," said Sobrero, who hopes to leave her restaurant job at the end of this year even if it means a loss of income by 20%.

"I am at the point where it's getting so hard," she said. "I'm exhausted."

Without some type of relief, the end isn't in sight for Daugherty.

How long does she think she'll be moonlighting?

"Indefinitely, basically," Daugherty said. "I honestly can't see a time in the future when I would not be."

Wednesday, July 20, 2005

Cutting College Aid for Lawbreakers

This article is well worth reading
and then thinking about your own
personal stand on the matter. Letters
to Congresspersons from college students
who are both pro and con the bill being
considered should be valuable input.


July 20, 2005
Cutting College Aid, and Fostering Crime
One of the most irrational initiatives in the war on crime was a decision by Congress in the 1990's to cut off some ex-offenders from federal education aid. It's highly unlikely that anyone has been deterred from lawbreaking as a result. But if people who have paid their debts to society and are seeking new starts are denied education aid, they could well be locked out of the new economy and sent right back through the revolving door into prison.

Congress is revisiting a particularly onerous law under which tens of thousands of students have been turned down for federal grants and loans because of drug offenses, some of them minor and as much as a decade old. A proposed change in the law would improve the picture slightly. It is aimed at penalizing students who commit drug-related crimes while receiving federal aid. It would be better to repeal the provision entirely, as many observers have suggested.

Law enforcement officials have learned over and over again that ex-offenders who get an education and find jobs are far less likely to end up back behind bars. Barring former offenders from school aid makes it virtually impossible for them to get the necessary schooling for joining the mainstream. The law has a disproportionate impact on poor and minority communities, where the drug trade is rampant and young men often have run-ins with the law before they get their lives on track.

By narrowing access to affordable education, the federal government further diminishes the prospects of young people who are already at risk of becoming lifetime burdens to society. Members of Congress are understandably hesitant to cast votes that might brand them as being "soft on crime." But it doesn't take a genius to see that barring young offenders from college leads to more crime - not less. Student aid was never intended for use as a law enforcement weapon. Any attempt to employ it that way will inevitably yield perverse and unfair results.

Copyright 2005 The New York Times Company

Tuesday, July 19, 2005

Something to Think Aout

As of the moment of posting, President Bush has not nominated someone to fill the vacancy caused by the resignation of Justice Sandra Day O'Connor.

This article gives some interesting information about the background of Justices in the past and is well worth reading.

Nelson could serve honorably as surprise Supreme Court pick
Jul 17, 2005 - Omaha World-Herald

Just when we thought there was no new speculation about President Bush's pending replacement of Sandra Day O'Connor on the U.S. Supreme Court, along comes a surprise.

During the president's politically correct consultation with the bipartisan Senate leadership last week, several senators urged that someone be considered who is not already on a lower federal bench, the customary source of previous appointments.

A non-judge! What a concept.

The president apparently welcomed the suggestion, although the names being circulated so far in public all wear black robes or did so in the past. "Would I be willing to consider people who had never been a judge? The answer is: You bet,'' Bush told reporters. He indicated he already was doing so. "We're considering all kinds of people -- judges, non-judges.''

The idea is that a little hands-on political experience, such as O'Connor had in the Arizona State Legislature before becoming a state court judge, might help the nominee reach sensible judicial judgments the country can support.

U.S. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, noted that career lawyers spend too much time with "footnotes and semicolons'' and have "very little contact with people.'' Sen. Patrick Leahy, D-Vt., added that he approved of going "outside the judicial monastery.''

This is not as shocking an idea as it seems at first blush. Chief Justice William Rehnquist, for example, was tapped as an associate justice by President Richard M. Nixon while an assistant attorney general.

Legal historians point out that of the 108 justices who have served on the Supreme Court, only 48 were drawn from the ranks of sitting judges. The others have been practicing lawyers, attorneys general, Cabinet officers, senators, members of the House, governors, solicitors general and law professors.

Indeed, the Constitution does not even require high court justices to have a law degree. It merely says that judges, "both of the supreme and inferior courts shall hold their offices during good behavior.''

Rehnquist's bout with thyroid cancer and a sudden, short hospital stay last week for a fever have created a spike in speculation that Bush may have two vacancies to fill before the new court term begins in October. That would give him an opportunity to name simultaneously both a judge and a non-judge, broadening the public appeal of his choices.

This adds a new dimension to the partisan argument about whether any new justice should reveal his or her ideological leanings or be judged only on that vague category, "character.''

A non-judge would have a different sort of record than a legal scholar, reflecting political choices made in real life with real consequences, instead of writings full of abstract philosophical theory.

So whose name might join the gossip circus now? Sen. Orrin Hatch, R-Utah, former chairman of the Judiciary Committee, has openly lusted for a court seat. Although an ultraconservative, he is fair- minded and could be easily confirmed. Alas, he is 71 years old, a tad ancient for a lifetime seat the president sees as an important part of his historical legacy.

There are other sitting senators as well who are not extremists and could serve honorably with dignity.

Sen. Ben Nelson, D-Neb., a moderate and a leader of the bipartisan "gang of 14'' that derailed a GOP Senate move to kill the right to filibuster judicial nominations, might be an acceptable bipartisan compromise. That also would open up a Democratic seat in a red state that Republicans could reclaim.

First lady Laura Bush is publicly plumping for a woman to replace O'Connor, but gender is not foremost in the minds of most legal interest groups. Bush says he will consider picking a female, but he seems more interested in naming a Hispanic male -- perhaps Attorney General Alberto Gonzales.

Bush also is getting advice from an unusual quarter, the current Supreme Court justices. Senate Minority Leader Harry Reid, D-Nev., said at a recent luncheon that some of the justices said they would prefer "somebody new on the court'' rather than more appellate judges who "sit in their offices and read briefs.''

Despite the importance of the work, it obviously can get boring within those marble judicial halls. Not much dancing in the aisles. But a lot of people would figuratively kill to get there anyway.

© Copyright 2005 NetContent, Inc. Duplication and distribution restricted.

Another Article on Possibility An Innocent Man was Executed

The link to the article is embedded so that you simply click on the title of today's posting.

The obstacles involved are spelled out along with more information about the case itself.

Monday, July 18, 2005

Can Death Row Inmate Get a New Trial?

SF Gate
Motives of gay rights activist questioned 14 years after trial
- Jaxon Van Derbeken, Chronicle Staff Writer
Sunday, July 17, 2005

Clifford Bolden is the only convicted murderer from San Francisco on California's Death Row. Now, through a set of odd circumstances, he has a chance at life.

That chance rests on trying to destroy the credibility of an 81-year-old juror, who 14 years ago wanted and still wants nothing more than to see Bolden die for the killing of a gay man.

The juror in question, Jose Sarria, was an unlikely choice to sit in judgment in such a volatile case. Sarria was a pioneer in the local gay rights movement and is believed to be the first openly gay candidate to have run for public office in the United States. For years he performed as a female impersonator in San Francisco as the "Widow Norton," after the fictional wife of the 19th century San Francisco character Emperor Norton.

Sarria sat on the panel that in 1991 recommended that Bolden be sentenced to death for the 1986 robbery and stabbing of Henry Michael Pedersen, a model and escort Bolden met at the Pendulum, a Castro neighborhood bar. Pedersen had apparently taken Bolden home after a night of heavy drinking.

Since his sentencing, Bolden, 49, has made several legal arguments to the state Supreme Court in two separate challenges. As is common in capital cases, the high court rejected most of them.

Court review ordered

Then, earlier this year, the court ordered a lower court to explore Sarria's role on the jury.

Bolden's appeals team maintains that Sarria told a fellow juror that he had ties to both the defendant and the victim, but never disclosed them in court.

The defense also contends that Sarria refused to deliberate with other jurors, in an apparent effort to avenge the victim and make "a point about being gay."

"Jose Sarria pushed his fellow jurors for a verdict of death with a display of immovable will and inside information,'' Jeanne Keevan-Lynch, Bolden's appeal attorney, argued to the state high court.

The state attorney general's office says the defense claims about Sarria are groundless and that the hearing on his conduct -- which has yet to be scheduled -- will put the matter to rest.

"These are disputed facts that require resolution,'' said Ron Matthias, supervising deputy attorney general. "We think the court has done the right thing here.''

Appeal to Kamala Harris

Bolden's defense is also appealing to the political sensibilities of San Francisco District Attorney Kamala Harris, who like her predecessor, Terence Hallinan, opposes capital punishment and refuses to seek the death penalty.

It's been more than 10 years since a San Francisco jury was asked to sentence a defendant to death, and Bolden is the only one of the 644 condemned inmates in California whose crime was committed in the city.

For his part, Sarria says he's tired of the legal maneuvering.

"He has been sitting on Death Row all this time -- it's unbelievable," Sarria said in a phone interview from his home in Cathedral City near San Diego. "Our justice system needs to be overhauled.''

The crime

Pedersen, 46, an unemployed accountant, was found stabbed to death in the bathtub of his Twin Peaks apartment Sept. 9, 1986. His blood alcohol was measured at 0.36 percent, well over the legal definition of drunkenness. Authorities think Bolden stabbed him in the back, then carved an "L"-shaped wound on his chest after he died.

Bolden's fingerprints were lifted from a glass and bottle in the apartment and his palm print was found on a bathtub wall. Police found some of Pedersen's property at Bolden's apartment, including an identification bracelet, a camera, a camera case and binoculars.

Bolden had been paroled from San Quentin State Prison earlier in 1986 after serving about seven years for two manslaughter convictions, one from San Francisco and one from San Jose.

When Bolden went to trial in 1990, Sarria was impaneled as an alternate juror. He became one of the 12 voting members during the penalty phase after another panelist was excused.

Sarria would seem to have been less than an ideal juror from the defense's perspective. In addition to his career as a female impersonator, he became the first openly gay political candidate in the nation in 1961 when he ran for the Board of Supervisors in San Francisco.

Defense attorneys lodged no objections to Sarria at the time, but Bolden's appellate lawyers came to focus on him as they fought to save their client from the death chamber.

Another juror talks

The defense argued to the state Supreme Court that Sarria had confided to another juror, who has since died, that he knew Pedersen and had helped him get a job at the old Emporium Capwell department store. In a sworn statement in 1996, juror Charlia Verna Sessions said Sarria had talked with her regularly when they rode the bus home from court. One time, she said, Sarria told her that the victim "was a good man.''

In the recent interview, Sarria acknowledged that he did ride the bus for 10 months with Sessions and talked with her. But he denied that he had known Pedersen or had helped him find a job.

"He was a bar person. I was not a bar person,'' Sarria said. "I did not know him. Where they got that notion, I don't know.''

The defense also has argued that Sarria had ties to the defendant, Bolden, that he never disclosed during the trial.

Sessions said in her declaration that Sarria had told her that he knew the man with whom Bolden was having an affair at the time of the killing.

Sarria had helped the man, Andre Montgomery, get a job as an impersonator at the North Beach club Finocchio's, where Sarria performed as the Widow Norton.

After the sentencing, Sarria told a defense investigator that Montgomery had walked into the club one day and announced he had a new "romance of the year" -- who turned out to be Bolden.

Witnesses testified that Montgomery and Bolden had been walking together when police arrested Bolden, and authorities said the two had been sharing an apartment.

"I have the transcripts of the trial. I know how often Montgomery's name came up,'' said Bolden's attorney, Keevan-Lynch. Montgomery was ill with HIV at the time of the trial and died soon after.

Keevan-Lynch contends that Sarria did not tell the court that he knew Montgomery for a reason. "No reasonable explanation, other than desire to avoid removal (from the jury), is apparent,'' she argued to the state Supreme Court.

Sarria said in the interview that he had known Montgomery, but that he hadn't learned that Montgomery and Bolden were lovers until after the trial.

"Andre kept Mr. Bolden a secret,'' he said.

The defense has also used jurors' statements to suggest that Sarria refused to deliberate during the sentencing phase because he had an agenda.

In her declaration, Sessions recalled wondering whether Sarria was fit to serve on the jury. "He was determined to decide the case so as to make some sort of a point about being gay,'' she said.

Another juror, Thomas Shepherd, said in a 1998 sworn declaration that Sarria had announced he stood for death soon after deliberations started and would not change his mind.

"The room was silent for several moments afterwards,'' Shepherd said. "I recalled the judge telling us that we were supposed to deliberate and not take a stand right away. I thought this juror should be removed, but I did not say anything.''

Sarria's demeanor "said we were going to be stuck in this situation until we bent to his will,'' Shepherd said.

Eventually, jurors who favored sparing Bolden's life changed their votes to death.

"I voted accordingly, seeing no hope of getting out without doing what Mr. Sarria wanted, or behaving as he did,'' Shepherd said.

Sarria's response

Sarria denies he made up his mind ahead of time.

"I listened to everything," he said. "My mind was made up when we considered all the evidence.''

When the time came, Sarria said, he was a strong advocate for sentencing Bolden to death and sometimes grew frustrated with other jurors.

One woman suggested that Bolden might be rehabilitated, he said.

"When she said that, I nearly put my hand through the table," Sarria said. "I had to convince her that he had all the chances in the world, he wasn't going to be rehabilitated.''

Keevan-Lynch has written a letter to District Attorney Harris, asking her to review the record and, rather than defend the case, petition the high court to modify Bolden's sentence to life without parole.

Chief Assistant District Attorney Russ Giuntini said the office is limited to carrying out what the state Supreme Court has asked it to do.

"We couldn't go in and say, 'We don't want the death penalty on this,' " Giuntini said. "The hearings are very specifically directed. We couldn't parade into court and say, 'We don't want the death penalty,' even if we wanted to. Our hands are tied.''

Keevan-Lynch insists that Harris "has a choice. I think she has the option, and I have told her this. Kamala Harris is saying she doesn't have a choice, but what is she basing that on?''

Matthias, the deputy attorney general, said he doesn't see how Harris could do what Keevan-Lynch is asking.

"The case is final," he said. "What is she talking about?''

E-mail Jaxon Van Derbeken at

Page A - 1
©2005 San Francisco Chronicle

Thursday, July 14, 2005

Was an Innocent Person Executed

July 14, 2005
Convicted, Executed, Not Guilty

If Larry Griffin were being tried today for the murder of Quintin Moss, he
would almost certainly be acquitted. The evidence is overwhelming that he did
not kill Mr. Moss.
But Mr. Griffin is not being tried today. He has already been executed for
the murder.
While significant, this development is not that much of a surprise to those
who understand that human beings are fallible and that much of the criminal
justice system in the United States is a crapshoot. Whether it is this case or
some other, it is inevitable that we will learn of someone who has been
executed for a crime that he or she did not commit.
Judges and juries are no less prone to mistakes than politicians, reporters,
doctors, engineers or center fielders. Which is why the death penalty should
be abolished.
Larry Griffin's case is probably not the best one for advancing this
argument, but it's the case at hand. He was not a solid citizen. While it seems
clear that he did not commit the crime for which he was executed - the killing of
Mr. Moss - he did plead guilty to killing someone else.
Mr. Griffin's character, or lack of same, does not make the principle at
stake any less valid. This was recognized by Jennifer Joyce, the circuit
attorney in St. Louis, where Mr. Moss was murdered way back in 1980. Ms. Joyce has
taken the extraordinary step of officially reopening a murder investigation
after the defendant was executed.
Quintin Moss was 19 years old and a locally well-known drug dealer when he
was shot 13 times in a drive-by attack on a notorious block in St. Louis known
as "The Stroll." A bystander, Wallace Conners, was also shot but not
seriously wounded.
Mr. Conners, who knew Larry Griffin, saw the men who drove up and opened
fire. He said Mr. Griffin was not one of the men. But he was never called,
either by the prosecution or the defense, to testify at Mr. Griffin's trial.
The key testimony was given by Robert Fitzgerald, a professional criminal who
said he had witnessed the murder and identified Mr. Griffin as one of the
shooters. Mr. Fitzgerald was in the federal witness protection program at the
time. He had a number of felony charges pending and was an admitted user of
heroin and speed.
A Missouri Supreme Court justice said of Mr. Fitzgerald: "The only eyewitness
to the murder had a seriously flawed background, and his ability to observe
and identify the gunman was also subject to question."
There was no physical evidence against Mr. Griffin, and no one else at the
trial placed him at the scene of the attack. But he was convicted nevertheless,
and executed by lethal injection on June 21, 1995.
Mr. Fitzgerald was formally released from custody on the day Mr. Griffin was
One of the reasons we have not had a definitive example of the execution of
an innocent person is that official investigations cease once the death
penalty has been carried out.
In this case, an extremely unusual private investigation was conducted after
Mr. Griffin's death. It was sponsored by the NAACP Legal Defense and
Educational Fund and led by Samuel Gross, a professor at the University of Michigan
Law School. That investigation has pretty much demolished Mr. Fitzgerald's
account of what occurred and prompted Ms. Joyce to reopen the case.
Mr. Conners, the wounded bystander, says flatly that Mr. Fitzgerald, who died
last year, was not at the scene when the attack took place. And a St. Louis
police officer who supported Mr. Fitzgerald's account at the trial now says
that Mr. Fitzgerald told him, "I didn't see nothing."
The officer says he can't explain why he supported Mr. Fitzgerald's false
testimony at the trial.
Professor Gross, who has received extensive pro bono help from prominent law
firms, has given prosecutors the names of three men he believes committed the
murder, and the evidence that points to their guilt.
Ms. Joyce, who is reopening the case, was not in the circuit attorney's
office when Mr. Griffin was prosecuted. She told me in a telephone conversation
yesterday, "I just want to see the truth."
The investigation will be thorough, she said, adding, "I wanted to take an
independent look at it, and if mistakes were made, do what I can to rectify
them, recognizing that there may not be much I could do."

* _Copyright 2005_
( _The New York Times Company_ (

Wednesday, July 13, 2005

Truth IS stranger than fiction

This raises some interesting issues. Educated ex-felons have a lower recidivism rate but considering his crime, there are security issues involved as well.

Should his age at the time of the offense be considered?

We may be reaching a point where we as a society must decide on exactly what we mean by rehabilitation and how far we will go to achieve this.

The Chronicle of Higher Education Today's News

Wednesday, July 13, 2005

U. of Alaska Declines to Admit a Killer to Its Social-Work Program, Raising Questions -- and a Lawsuit


Anchorage, Alaska

Micheal Purcell, who 21 years ago was jailed for 20 years for killing a convenience-store clerk in a botched robbery, is suing the University of Alaska at Anchorage because it has denied him admission to its social-work program. Mr. Purcell, who was released from prison last September and will be on parole until 2014, asserts that the university has breached the State Constitution's guarantee of the rehabilitation of criminals.

The case has set social workers here abuzz over the question of whether a convicted murderer can be rehabilitated and, if so, whether any killer could or should serve as a social worker. The case has also raised questions about what consideration colleges, particularly public ones, owe to applicants with criminal records at a time when more and more institutions are seeking protection from legal liability by carrying out criminal-background checks of prospective faculty and staff members.

The American Civil Liberties Union of Alaska, which is representing Mr. Purcell, argues, in a state-court filing, that the university acted arbitrarily and unfairly in reviewing his application for admission.

The process began when an interview committee, consisting of two faculty members and one community member, recommended last year that Mr. Purcell be admitted. But in December the full faculty of the social-work program voted, 6 to 4, not to admit him. A university review committee, consisting of four faculty members and one student, all from outside the social-work program, endorsed that rejection in May. And finally, in June, the dean of the College of Health and Social Welfare, Cheryl Easley, upheld the decision.

University officials are declining to discuss the case while it is being litigated.

Mr. Purcell, now 37, was 16 in 1984, when he shot and killed the clerk of a convenience store during an attempted robbery. While serving a prison term, he completed a high-school-equivalency program. After his release, while living in a halfway house, he enrolled in courses at the university and earned good grades, mostly A's and B's.

Members of the social-work faculty have acknowledged that he is a strong student. He has completed most of the requirements of a social-work degree, has been active in volunteer work, and even served a term as president of the Social Work Club. He still needs, however, to complete an internship and some course work if he is to receive a degree in social work, and for that he needs formal admission to the social-work program.

The faculty vote against admitting Mr. Purcell relied on a policy, adopted in 2000 by the School of Social Work, that applicants may be rejected if they have a criminal record that leaves them "unfit for social-work practice."

The policy, university officials have noted, reflects state regulations about who may hold a social-work license. The policy was adopted after a student was admitted but then was discovered to have had a felony conviction for the sexual abuse of a minor. Since the policy was adopted, university officials have said, students have been rejected for having felony convictions or such misdemeanors as driving under the influence of alcohol.

Mr. Purcell and the Alaska chapter of the ACLU say they are basing their lawsuit on an article of the state's Constitution that grounds the criminal law, in part, on "the principle of reformation." Mr. Purcell says that the university, as a state institution, must judge whether he has reformed from his criminal past and that it has failed to do so, but has simply rejected him on the assumption that he has not.

In appealing the rejection, Mr. Purcell wrote in a letter to Ms. Easley, the dean of health and social welfare: "Even though I have made a bad decision in the past, I am striving to make myself a better person and the world a better place to live in."

The director of the School of Social Work, Beth Sirles, reportedly told the university review committee that Mr. Purcell should not be admitted because his crime had been so serious and because the social-work code of ethics puts the well-being of clients, not practitioners, first.

Lawyers for the ACLU argue that if former prisoners like Mr. Purcell are not given the opportunity to work, they will not be able to return to useful lives in society.

The review committee that upheld the full faculty's vote urged the School of Social Work to consider revising the criminal-background policy "to require consideration of specific mitigating factors pertaining to rehabilitation of applicants with felony records," according to its May report. The report also said that Mr. Purcell "can make a significant contribution to the university and community." Social-work faculty members will discuss changing the policy when they return to the campus, in August.

Mr. Purcell is now working as a kitchenware salesman. He told local reporters that he plans to enroll in core courses at the university in English, history, and mathematics in the fall, or that he may seek to enroll at an institution outside Alaska. His lawyer at the ACLU, Jason Brandeis, said on Monday that his client is no longer taking calls from the news media.

Copyright © 2005 by The Chronicle of Higher Education

Tuesday, July 12, 2005

Limiting Habeas Corpus Reviews

This article is from the Death Penalty Information Organization. It reprints an article from the Washington Post that is well worth reading.

No matter how you feel about this proposed bill, it should cause you to pick up the telephone and call your local Representative and Senator (all have local offices so there is no long distance charge to consider). The public needs to be heard about this since it has all types of ramifications.

Proposed Legislation Would Starkly Limit Federal Review of Death Penalty Appeals

A bill proposed by Rep. Daniel Lungren of California and Sen. Jon Kyl of Arizona would strip the federal courts of much of their power to decide whether death row inmates have been given a fair trial and could result in the execution of innocent defendants. The bill is entitled the Streamlined Procedures Act of 2005. The Washington Post editorialized about the measure:

Stop This Bill
Sunday, July 10, 2005; Page B06

CONGRESS HAS a novel response to the rash of prisoners over the past few years who have been exonerated of capital crimes after being tried and convicted: Keep similar cases out of court. Both chambers of the national legislature are quietly moving a particularly ugly piece of legislation designed to gut the legal means by which prisoners prove their innocence.

Habeas corpus is the age-old legal process by which federal courts review the legality of detentions. In the modern era, it has been the pivotal vehicle through which those on death row or serving long sentences in prison can challenge their state-court convictions. Congress in 1996 rolled back habeas review considerably; federal courts have similarly shown greater deference -- often too much deference -- to flawed state proceedings. But the so-called Streamlined Procedures Act of 2005 takes the evisceration of habeas review, particularly in capital cases, to a whole new level. It should not become law.

For a great many capital cases, the bill would eliminate federal review entirely. Federal courts would be unable to review almost all capital convictions from states certified by the Justice Department as providing competent counsel to convicts to challenge their convictions under state procedures. Although the bill, versions of which differ slightly between the chambers, provides a purported exception for cases in which new evidence completely undermines a conviction, this is drawn so narrowly that it is likely to be useless -- even in identifying cases of actual innocence.

It gets worse. The bill, pushed by Rep. Daniel E. Lungren (R-Calif.) in the House and Jon Kyl (R-Ariz.) in the Senate, would impose onerous new procedural hurdles on inmates seeking federal review -- those, that is, whom it doesn't bar from court altogether. It would bar the courts from considering key issues raised by those cases and insulate most capital sentencing from federal scrutiny. It also would dictate arbitrary timetables for federal appeals courts to resolve habeas cases. This would be a dramatic change in federal law -- and entirely for the worse.

The legislation would be simply laughable, except that it has alarming momentum. A House subcommittee held a hearing recently, and the Senate Judiciary Committee is scheduled to hold one and then mark up the bill this week. Both Judiciary Committee chairmen surely know better. House Judiciary Chairman F. James Sensenbrenner Jr. (R-Wis.), after all, has fought for better funding and training for capital defense lawyers. And Senate Judiciary Chairman Arlen Specter (R-Pa.) has long opposed efforts to strip federal courts of jurisdiction over critical subjects. Neither has yet taken a public position on the bill. Each needs to take a careful look. It is no exaggeration to say that if this bill becomes law, it will consign innocent people to long-term incarceration or death.

(Washington Post, July 10, 2005, editorial).

Monday, July 11, 2005

Exonoration Statistics

Exonerations in the United States, 1989 through 2003

University of Michigan Law School
University of Michigan Law School
University of Michigan at Ann Arbor - Law School
University of Michigan at Ann Arbor
Children's Hospital of Philadelphia

Journal of Criminal Law and Criminology, Vol. 95, No. 2, 2005

Here's the abstract:

In this paper we use reported exonerations as a window on false convictions generally. We can't come close to estimating the number of false convictions that occur in the United States, but the accumulating mass of exonerations gives us a glimpse of what we're missing. We located 340 individual exonerations from 1989 through 2003, not counting at least 135 innocent defendants in at least two mass exonerations, and not counting more than 70 defendants convicted in a series of childcare sex abuse prosecutions, most of whom were probably innocent. Almost all the individual exonerations that we know about are clustered in the two most serious common felonies: rape and murder. They are surrounded by widening circles of categories of cases that include false convictions that are rarely detected, if ever: rape convictions that have not been reexamined with DNA evidence; robberies, for which DNA identification is useless; murder cases that are ignored because the defendants were not sentenced to death; assault and drug convictions that are forgotten entirely; misdemeanor convictions that aren’t even part of the picture. Judging from our data, any plausible guess at the total number of miscarriages of justice in America in the last fifteen years must run to the thousands, perhaps tens of thousands, in felony cases alone. We can, however, see some clear patterns in those false convictions that have come to light. For rape the dominant problem is eyewitness misidentification - and cross-racial misidentification in particular, which accounts for the extraordinary number of exonerations in rape cases with black defendants and white victims. For murder, the leading cause of the false convictions we know about is perjury - including perjury by police officers, by jailhouse snitches, by the real killers, and by supposed participants and eyewitnesses to the crime who knew the innocent defendants in advance. False confessions also played a large role in the murder convictions that led to exonerations, primarily among two particularly vulnerable groups of innocent defendants: juveniles, and those who are mentally retarded or mentally ill. Almost all the juvenile exonerees who falsely confessed were African American. In fact, one of our more startling findings is that 90% of all exonerated juvenile defendants were black or Hispanic, an extreme disparity that, unfortunately, is of a piece with racial disparities in our juvenile justice system in general. Nearly a quarter of exonerated defendants had been sentenced to death, despite the fact that death row inmates make up only about one-quarter of one percent of the population American prisoners, and a much smaller proportion of the those who pass through our prisons over time. This appears to reflect two simultaneous patterns: capital defendants are more likely to be convicted in error, and false convictions are more likely to be detected when the defendants are on death row. That means that capital defendants who are not sentenced to death, or defendants in similar murder prosecutions in which the death penalty was not sought, may be in the worst position of all: they may suffer the same high risk of false conviction as death row inmates, but get no benefit from the comparatively high chance of exoneration after conviction.

Internet Crimes present interesting venue questions

The 2nd Circuit located in New York recently
took an appeal that raised the question of
proper venue and jurisdiction when the crime
uses the Internet as the means of commission.

It was a case of first impression.

The case involved a male member of the human species
who posted a notice in a chatroom offering to exchange on a
one-to-one basis pictures of young children. By virtue of the
other postings in the chatroom and the wording of his posting
itself, child pornography was desired.

An agent in ae Computer Crimes Unit physically located in New York
entered the chatroom and followed the directions to enter the site
where the pictures, with titles that leave no doubt as to the
content, were located.

18 U.S.C.A. § 2251(c) criminalizes making, printing, or
publishing notice or advertisement seeking or offering
to receive, exchange, buy, produce, display, distribute,
or reproduce, visual depiction involving use of a minor
engaging in sexually explicit conduct.

Rowe who was from Kentucky was found guilty by a
New York jury and appealed on the basis of,
among other issues, jurisdiction. He claimed that
being tried in New York was a violation of his
Sixth Amendment right ("[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district
wherein the crime shall have been committed...")

Venue is also mentioned in Article 3 section 2 which states that
"Trial of all Crimes ... shall be held in the State where the
said Crimes shall have been committed ...."

But with the Internet the "crime" itself can take place anywhere
in the world. The U.S. Supreme Court has said that where a crime
consists of different parts with different localities, the crime
may be charged in any of those localities. In this instance the court
used the location of the computer from which the agent entered the
chatroom and subsequently Mr. Rowe's private computer

The Internet has created a new legal specialty involving computer
crimes. File sharing and hacking have been featured in the news
as courts dealt with these issues -- The United States Supreme Court
itself dealt with the sharing of copyrighted files at the end of the Term.

This case was a good example of how the law evolves as statutes are
interpreted and facts in situations never considered are found to
fit the criminal action described.

Friday, July 08, 2005

Arizona Prosecutors want TV Shows to have Disclaimers

This appeared in Crime and Justice News, an email service that I subscribed to.

Prosecutor Seeks Disclaimers On TV Crime Shows
Some Arizona jurors may be under the spell of the "CSI Effect" - looking solely for scientific proof and disregarding witnesses and police testimony, says the East Valley (Az.) Tribune. Maricopa County prosecutor Andrew Thomas last week asked local affiliates of NBC, ABC and CBS to put a disclaimer at the beginning of television shows like "CSI" and "Law & Order" stating that the programs are fiction.

In a new study by the county prosecutor's office, 38 percent of more than 100 prosecutors believed they had at least one trial with an acquittal or hung jury because forensic evidence wasn't readily available, despite a convincing amount of other information. About 40 percent of the time, jurors mention things such as latent prints, ballistics, or mitochondrial DNA. "The shows give the impression that these are the types of things we should be looking for in trials," Thomas said. Officials are confident that adding disclaimers would provide a much-needed dose of reality to drama seekers.


One of the television channels had a program on recently that showed the major difference between the workings of a forensics unit and what is portrayed on CSI.

Do you think that the so-called "Reality" genre type of programs that are such a large part of the television line-ups contribute to citizens' believing what they see on television to be the absolute truth?

How do we, or can we, assist citizens to understand that television shows are fiction and that just because a talking head on a program says something, it may not be pure fact?

More states need to follow Wisconsin

A number of inmates who were eventually exonerated were often sentenced because of confessions that the individual later claimed was not voluntary or false. Wisconsin will now require that all interrogations of juveniles for both misdemeanor and felony offenses be taped. How this will effect the number of "coerced" juvenile confessions remains to be seen. By coerced I do not mean physical coercision but psychological.

Here is the article

The Milwaukee Journal Sentinel Online

Original URL:

Interrogations must be taped
State court ruling applies to juveniles
Posted: July 7, 2005

Law enforcement agencies statewide were ordered Thursday by the state Supreme Court to immediately begin electronically recording juvenile interrogations in both felony and misdemeanor cases.

The number one thing kids say about why they falsely confess is that
'I just thought
I'd get to go home.'

- Eileen Hirsch,
assistant state public defender

The groundbreaking decision, which left some financially strapped police departments wondering how they will pay for additional recording equipment, was widely praised by attorneys, judges and others who said it would protect both children and police from false accusations.

"It's an excellent decision and long overdue," said John Birdsall, president of the Wisconsin Association of Criminal Defense Lawyers. "It's going to be an adjustment for both the district attorneys and the police, but it is a welcome change."

Milwaukee County Children's Court Judges Mary Triggiano and Joseph Wall said the new requirement will help them get a clearer picture of the circumstances of juvenile confessions and could save court time.

"It will likely lead to pretrial resolutions of more cases because there may not be any dispute as to what happened" during the interrogation, Wall said.

The ruling says audiotaping is sufficient to meet the requirement, "but videotaping may provide an even more complete picture" of the interrogation.

The decision involved the case of a 14-year-old Milwaukee County boy who was found guilty in a May 2001 robbery at a fast-food restaurant. Court records state that he was arrested at his home and taken to a Milwaukee police station, where he was handcuffed to a wall in an interrogation room and left alone for about two hours.

The boy continually denied being involved in the crime and made several requests to call his parents, but was refused. After about 5 1/2 hours of interrogation, he signed a statement, prepared by one of the detectives, confessing to the crime.

The boy's appeal argued that his confession was involuntary. In Thursday's decision, the court found that the boy's confession had been coerced. It noted that his young age made him "uncommonly susceptible to police pressure" and that he was of "low-average" intelligence. While the boy had been arrested twice in the past for misdemeanors, in those cases he was released after he answered questions from police, was never found delinquent and was allowed to go home.

"Not only did the detectives refuse to believe (the boy's ) repeated denials of guilt, but they also joined in urging him to tell a different 'truth,' sometimes using a 'strong voice' that 'frightened' him," the decision says.

"It is time for Wisconsin to tackle the false confession issue and take appropriate action so that the youth of our state are protected from confessing to crimes they did not commit," the decision says.
Other confessions questioned

Thursday's case was not the first time the confession of a juvenile in Milwaukee County was challenged. In a decision earlier this year, Children's Court Judge Michael Malmstadt threw out the confession of a 14-year-old boy who was one of six suspects charged in the death of David Rutledge, 54, who was beaten by a gang of juveniles and adults in July 2004.

In his decision, Malmstadt noted that the child had no previous arrests and was questioned by police for close to 15 hours before he signed a confession, and that "the record is sparse with respect to the manner of the interrogation."

A hearing on whether the confession of a 13-year-old charged in the same case was valid is continuing. In that instance, the child had significant learning disabilities and was also questioned for at least 15 hours, according to motions filed by his attorney. Police have denied any misconduct or coercive acts in obtaining the confessions.

"The number one thing kids say about why they falsely confess is that 'I just thought I'd get to go home,' " said Eileen Hirsch, an assistant state public defender, who represented the boy in Thursday's Supreme Court decision.

"They are confessing to murders and armed robberies and other crimes, and we know that you are never going to go home after you do that," Hirsch said. "But they don't know that because they are kids. They believe that the only way they are going to go home is if they agree with the authority figures."

Milwaukee County District Attorney E. Michael McCann called the Supreme Court decision reasonable, but added that he was concerned about the impact on the high volume of misdemeanor cases.

"Say a kid is taking stones to knock out street lamps," he said. "That's generally a misdemeanor offense. The cop catches him. 'What are you doing here?' Do you tell him to remain quiet until he gets to the police station? It definitely creates problems."

Recording is required in all future cases "where feasible, and without exception when questioning occurs in a place of detention," the ruling says.
Police agencies react

Milwaukee police commanders met to discuss the decision Thursday afternoon and figure out what the department needs to do to comply with the order, said police spokeswoman Anne E. Schwartz.

The department currently does not tape any interrogations, which are done in several locations, she said.

"We need to come up with a stopgap until we acquire the appropriate equipment," she said. "We are coming up with a plan."

Waukesha police Capt. Mike Babe called the decision an unfunded mandate.

"It's going to involve more time and more money. And who's paying for it? It's going to be the taxpayers," Babe said.

State Rep. Mark Gundrum (R-New Berlin) said he plans to introduce legislation later this year that would encourage recording of both juvenile and adult interrogations by requiring that juries be told it is state policy to record such interrogations. The bill also would provide money for equipment from fines paid by criminals.

Dave Sheeley and John Diedrich of the Journal Sentinel staff contributed to this report.

From the July 8, 2005, editions of the Milwaukee Journal Sentinel

Thursday, July 07, 2005

Sounds like a Grocery Store Newspaper Headline but appears to be true

A former student sent this to me, and I decided to post it because bail issues and incarceration of those involved, or suspected of being involved, in sex acts involving minors has become a major policy issue across the country. A number of children lately have been kidnapped/murdered by individuals who had been charged and served time for sexual assault incidents in the past and were on parole. In the Idaho case the accused received a $15,000 bail for an offense involving the molestation of a minor and then went on to kill three people and kidnap Shasta and Dylan; the latter is believed to have also been killed.

In this instance there is no indication of previous arrests for this person that have been released to the public. But whether or not bail should be granted to those accused of sex offenses against children is becoming a hot topic.

Did you know that the Constitution does not mention anything about "innocent until proven guilty"? The Bill of Rights simply gives protection against acts of government and enumerates rights one has after being accused in the 6th Amendment.

The Constitution also does not use the term arrest in the 4th Amendment. It requires probable cause for both searches and seizures. The United States Supreme Court determined that seizures covered both inanimate objects and humans.

SPARTANBURG, SOUTH CAROLINA (FOX Carolina News) - A Campobello teen is accused of raping one neighbor's dog and another neighbor's two little girls. Now the dog has died and charges against the teen have been upgraded.

After receiving word that the dog died possibly because of the rape. Fox Carolina called the Solicitor's office to see if now new charges would be filed against the teen. An hour later Solicitor Trey Gowdy called to say that the charges will be upgraded to the "most serious animal cruelty charges they have on the books."

The dog's owner Sylvia Jones says, "At first when it happened, I couldn't eat or sleep every morning I'm waking up thinking Princess is there but she's not.

Princess's little dog house is empty now. Sylvia Jones says she died of internal bleeding this past Sunday because of the rape. "The vet told me she had a little blood in her urine and that she was bleeding inside."

Sylvia says she and her husband would not have believed Cory Williamson raped Princess exactly two weeks to the day she died had they not seen it with their own eyes.

"When I got here we were laying on the deck looking at him and he had his pants down and he was doing sexual activity with the dog like a man would do to a woman."

The Jones family says Princess wouldn't eat or play anymore after the attack. "She (Princess) couldn't even sit down, her bottom was swollen sore."

Sylvia says she knows Princess was just a dog, but she wants people to know that Princess was also a part of her family. A family that now has been forever changed. "She looked so pitiful. It's sad, there was nothing I could do for her."

Neighbors worry that if Williamson is accused of raping a dog and molesting two girls in the same neighborhood, who knows what might happen next.

Neighbor Bill Johnson says, "As a community we shouldn't have to watch our kids every second they're playing. We want him out of this neighborhood."

The Solicitor's office says it wants to make sure Williamson is out of this neighborhood while he's awaiting trial on the molestation and dog rape charges so they are requesting that his bond be revoked. Williamson's bond hearing will be held next Friday.

Original posting date: 6/9/2005 11:23:04 PM EST

All content © Copyright 2001 - 2005 WorldNow and FOX CAROLINA. All Rights Reserved.

Shaken Baby Syndrome

Periodically I will share with you interesting sites that I learn about.

The site provides some interesting information about shaken babt syndrome.

On the left hand side of the page the top section called Shaken Baby Syndrome 101 is accessible to all readers. The remaining information is for members of the legal defense bar.

Wednesday, July 06, 2005

The "Right" Choice Depends on One's Perspective


When Sandra Day O'Connor announced her resignation from the United States Supreme Court on Friday, July 1, 2005, groups ranging from Christian conservatives to big business, to women's groups to the ACLU to "fill-in-the-blank" began to mobilize their forces. Lists of members and supporters would be used by each of these groups and heaven alone knows how many others to encourage letters to Senators in support of or against the President's nominee depending on the group's primary concerns.

Before going any further, two simple questions for you: Did you vote in the last election? Did you vote in the election that selected your state Senator?

Those who take the right to vote for granted and don't bother to exercise that privilege should not be whining or complaining if the side they favor does not come out on top.

Another blessing that comes from our democratic way of life is the right to express one's opinion to legislative representatives. But before racing to pen one's thoughts, take the time to become informed. No matter who is nominated, you can be sure that there will be tons of information written about why or why not this individual is perfect for the Supreme Court seat.

Read commentary from both sides of the political spectrum or two sides of any hot-button issue that gets your own personal blood boiling. Ofttimes you will think you have tumbled into Wonderland alongside of Alice because it does not seem possible that different writers are talking about the same human being.

Since the term "Conservative" is so often seen when talk of the Court vacancy arises, I am constantly reminded of the variations that can be associated with that term. The first of the two articles that follow does an excellent job of explaining different branches of conservatism and indicating who on the current Supreme Court is representative of that perspective.

The second article looks back at the Supreme Court Term just ended and in one-sentence summaries of the various holdings also lists which Justices voted in the majority and minority for each of these opinions.

The various interest groups would have you believe that the position on one topic alone should serve as the qualifier or disqualifier for appointment to the Court. But obviously the Court's holdings cover a wide variety of topics. I doubt that a position on eminent domain ever was considered with any previous Supreme Court nominee, and yet this decision more than any other this Term has upset a multitude of citizens and is causing Congress to consider ways to ameliorate the holding.

Taken together these two articles should help you to determine the judicial philosophy that you find closest to your own beliefs.

July 3, 2005
So What's the 'Right' Pick?

WHEN Justice Sandra Day O'Connor announced her intention to resign from the Supreme Court, President Bush promised to nominate a successor who would "faithfully interpret the Constitution."

He is widely expected to appoint a judicial conservative, but the crucial question for the country is what kind of judicial conservative.

Judicial conservatism, after all, is not a monolithic movement: It is a catchphrase for very different approaches to constitutional interpretation that often lead to dramatically different results in cases ranging from affirmative action to abortion and states' rights.

Several of the leading candidates said to be on Mr. Bush's short list - like Judge J. Michael Luttig of Virginia and Judge John Roberts of Washington - defy easy categorization. But it's clear that justices from each philosophical camp would reach very different decisions in the cases Americans care most about. Consider abortion. "A traditionalist conservative might make his peace with Roe v. Wade, saying the country has accepted it," said Akhil Amar, a constitutional law professor at Yale University. "But an original intent person would say: Where does it say that in the Constitution? A deference person would say that legislatures can decide the optimal rate of change, and libertarians will divide based on their answer to a philosophical question about the beginning of life."

Affirmative action cases might be decided in similarly different ways by the various conservative camps. "O'Connor, the pragmatist, relied on the fact that the country had come to accept some affirmative action," Professor Amar said. "A libertarian like Justice Thomas might say affirmative action offends an idea of merit."

According to legal scholars and Supreme Court historians, at least five different types of judicial conservatism are represented on the current Supreme Court and on President Bush's short list. As he ponders his first Supreme Court nomination, President Bush can choose from the following menu:

Originalist Conservatives

Since the 1980's, the most influential movement in conservative legal circles has insisted that the text of the Constitution should be strictly interpreted as it was originally understood by its framers and ratifiers. The leading originalist (who also sometimes calls himself a textualist) is Justice Antonin Scalia, who insists that respect for original understanding is the only way of separating law from politics.

"When this president and this party talk about strict constructionism or faithfully interpreting the law, they mean textualism and originalism," says Jack Goldsmith of Harvard Law School, a former Bush administration official.

Many of the names of President Bush's shortlist, like Judge Michael McConnell of the United States Court of Appeals for the 10th Circuit, are widely considered to be originalists, although not all of them embrace the label.

Libertarian/Constitution in Exile Conservatives

This strain of judicial conservatism is consistently anti-government and pro-individual liberties, especially including economic liberties. On the current court, the leading representative of these libertarian conservatives is Clarence Thomas.

"Sometimes, the libertarian conservatives are associated with originalism, because in many cases the original understanding comports with their conception of limited government," says Professor Goldsmith of Harvard. "But sometimes there is a conflict, and the real commitment of the libertarians is to individual liberty, not original understanding or judicial restraint."

For this reason, libertarian conservatives like Justice Thomas are even more willing than traditional originalists like Justice Scalia to overturn decades of judicial precedents with which they disagree and to encourage judicial activism in cases protecting economic liberties.

The favorite Supreme Court candidate of the judicial libertarians is Janice Rogers Brown, recently confirmed by the Senate to the United States Court of Appeals for the District of Columbia. Liberals consider her one of the most radical potential nominees.

Traditionalist Conservatives

Traditionalist conservatives believe that judicial wisdom is built up slowly, and judges shouldn't depart radically in any direction from the Constitution as it has been interpreted in case law over the ages. "The traditionalist conservatives were in the judicial mainstream for at least half a century after the New Deal," says Professor David Strauss of the University of Chicago. Their leading representative during the Warren era was Justice John Marshall Harlan. On the current court, they are best represented by Justice David Souter.

Traditionalists are reluctant to overturn judicial precedents except in the exceptional cases, like Brown v. Board of Education, which outlawed school segregation. On Mr. Bush's shortlist, the leading traditionalist conservative is J. Harvie Wilkinson of the United States Court of Appeals for the Fourth Circuit, whom some administration officials reportedly consider too moderate.

Pragmatic Conservatives

Judicial pragmatists believe in reaching practical decisions that will help the institutions of government function smoothly. They are less concerned with the text or history of the Constitution and more interested in empirical evidence about the effects of their decisions in everyday life.

"Lewis Powell, Sandra Day O'Connor's judicial mentor, followed the same trajectory as Justice O'Connor: they both began as tradition-minded conservatives and ended up as conservative-minded pragmatists," Professor Goldsmith says.

In addition to Justice O'Connor, other pragmatists on the current court are Chief Justice William Rehnquist and Justice Stephen Breyer. All voted last year to regulate the detention of enemy combatants over dissents by Justices Scalia and Thomas.

"From my perspective, Justice O'Connor didn't give enough weight to the role of text, history and principle in constitutional law," says Steven Calabresi of Northwestern University Law School, a leading conservative scholar. "I think one concern with Attorney General Alberto Gonzales, who is on President Bush's shortlist, is that he would be too much of a pragmatist as well."

Social conservatives in particular fear that Mr. Gonzales is too liberal (and too pragmatic) on questions involving affirmative action and abortion.

Deferential Conservatives

One of the oldest strains of judicial conservatism says that courts should play a very limited role in American politics and should rarely, if ever, strike down laws passed by the state legislatures and Congress. On the Supreme Court, the leading advocates of judicial deference to legislatures were Felix Frankfurter and, during the Warren era, Byron White.

During the postwar period, conservative presidents starting with Richard Nixon claimed to want to appoint justices who would allow political battles to be fought in legislatures, not courts. But today, few liberal or conservatives justices or judges consistently believe in judicial deference.

"There is no consistent devotion on the right or the left for judges who defer to the political process across the board," says John Yoo, a law professor at the University of California at Berkeley and a former Bush administration official. "I don't think any of the judge pickers believe in it either."

How will President Bush choose among a dizzying variety of judicial conservatives? "I think O'Connor's leaving makes Bush's job easier," Professor Yoo says. "He's now free to replace O'Connor with a like-minded pragmatist like Gonzales who will win political points with Hispanics but upset his base. Since Bush is likely to have a chance to replace Chief Justice Rehnquist, too, he could reassure social conservatives that they'll get a reliable originalist for the chief's slot."

Other conservative scholars think the game of musical chairs might lead to a different result. "I think Bush will focus on replacing Justice O'Connor with someone who shares his stated philosophical goals of originalism and textualism," said Professor Goldsmith of Harvard. "Once he does that, he can focus on what criteria he will use in selecting a chief."

With one Supreme Court nomination imminent, and another very likely on the horizon, it's clear that Mr. Bush will have an opportunity to satisfy and infuriate conservatives of many stripes. Whatever choice he makes will define not only the Supreme Court but his own conservative legacy.

Jeffrey Rosen is a law professor at George Washington University and legal affairs editor of The New Republic.

* Copyright 2005 The New York Times Company

July 4, 2005

Court's Term a Turn Back to the Center
WASHINGTON, July 3 - Justice Sandra Day O'Connor's unexpected retirement announcement last week shifted public attention toward her legacy and the Supreme Court's future and away from the term that just concluded. But the term - apparently not the Rehnquist Court's last, after all - contained its share of notable developments that, taken together, cast a shadow of ambiguity over Chief Justice William H. Rehnquist's legacy.
The court's federalism revolution stalled, while the revival of property rights, which appeared to be taking off not long ago, crashed and burned on a riverbank in New London, Conn.
The court displayed a growing concern about the death penalty, with the majority suggesting that lower courts had taken the Supreme Court's impatience with prolonged appeals too far toward short-circuiting defendants' rights. The justices also gave broad interpretations to three federal antidiscrimination laws.
Justice Stephen G. Breyer displaced Justice O'Connor at the court's center of gravity, casting the fewest dissenting votes - 10, to Justice O'Connor's 11 - in the 74 cases that were decided with full opinions.
As the Rehnquist Court ended a 19th year and appeared poised, unexpectedly, to begin a 20th, it was almost as if a constitutional centripetal force had been at work in recent years, pulling the court back toward the middle in many areas of its docket, including federalism, affirmative action, religion and abortion. The result frustrated conservatives and raised the stakes for the appointment of Justice O'Connor's successor.
The court's six discrimination cases from this past term provide an example. Three were brought under the Constitution's guarantee of equal protection, and the others required an interpretation of three different federal statutes.
In all six cases, with Justice O'Connor in the majority in four, the court adopted a broader reading of the relevant provision, not necessarily handing victory to the particular individuals but keeping avenues of legal redress open for the future.
Beyond these case-specific trends, the voting patterns this term were unusual.
In recent terms, the five most conservative members of the court, Chief Justice Rehnquist, Justice O'Connor, and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, displayed a striking degree of cohesion. They voted together, for example, in half of the 18 5-to-4 decisions in the 2003-2004 term. In the past five terms, their alliance in the most closely divided cases ranged from a low of just over one-third of the cases in one term to a high of 70 percent of them in another.
But in the latest term, which began Oct. 4 and ended June 27, the five voted together in only 18 percent of the cases decided by five-member majorities, 4 out of 22. (Four of the 22 cases were decided by votes of 5 to 3, with the chief justice not participating.)
Although theories were available to explain votes that looked anomalous, some of the alignments turned heads. For example, Justices Scalia and Kennedy joined Justice Breyer and Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg to reject the states' rights position in the California medical marijuana case. Justice Breyer provided the crucial fifth vote for Chief Justice Rehnquist's opinion upholding the Ten Commandments monument on the grounds of the Texas State Capitol.
In 48 split decisions this past term, Justices Ginsburg and Breyer, President Bill Clinton's two Supreme Court appointments (and the only two current justices to have been appointed by a Democratic president), were on opposite sides in 11. Justices Scalia and Thomas, who are often mistakenly viewed as ideologically inseparable, were on opposite sides in 12.
After their 11 years together, what has gotten into these nine justices?
Nelson Lund of the George Mason University School of Law, who was a law clerk for Justice O'Connor during the court's 1987 term, said in an interview that there was a tendency to blame her for outcomes that have disappointed Professor Lund's fellow conservatives. "But the easy explanations are not quite adequate," he said.
Pointing out that courts proceed incrementally, informed by precedent and by the facts of each case, Professor Lund continued: "There is a deep current of common-law thinking that pervades our legal system. Our courts rarely make a lot of big lurches. Usually when they make a big step, it's because people didn't realize how big a step it was, and then they pull back."
Kathleen M. Sullivan, a liberal legal scholar and former dean of Stanford Law School, offered a similar observation. The court's recent behavior may be "as much psychological as jurisprudential," she said in an interview.
Professor Sullivan said some of the term's more surprising outcomes may reflect the fact that the Supreme Court, its membership stable while the lower federal courts have had considerable turnover, is now by some measures to the left of some of the federal appeals courts.
She said some justices may have been alarmed to find that the appeals courts were carrying their opinions further than intended or were applying them in unanticipated ways. This, in turn, may explain why in several decisions this year, including rulings for defendants in death penalty cases, the Supreme Court did not articulate new legal principles so much as correct what it saw as erroneous lower court opinions, a role it usually avoids. "The middle justices have seen themselves as guardians of the court's integrity even at the price of inconsistency," Professor Sullivan said.
The term was something of a triumph for Justice Stevens, the longest-serving associate justice and a vigorous 85-year-old who has no plans to retire; in fact, this week he is interviewing applicants for clerkships for the court's term that begins in October 2006.
Of his several major opinions, by far the sweetest for him must have been his majority opinion in Gonzales v. Raich, declaring that federal authority trumped California's medical marijuana initiative. Justice Stevens, a Republican named to the court by President Gerald Ford and now arguably the most liberal justice, has been adamant in resisting the states' rights tilt of the court in a series of federalism cases. He also wrote for the majority in the eminent domain case, Kelo v. City of New London, and in an important age discrimination case, Smith v. City of Jackson.
Justice Stevens filed one particularly notable dissenting opinion during the term, in a case that prohibited states from discriminating against out-of-state wineries. In Justice Stevens' view, the intent of the 21st Amendment, adopted in 1933, was to give states free rein in regulating alcohol use and commerce within their borders. To support his argument, he drew on a resource no other justice had available: a memory of the repeal of Prohibition. "My understanding (and recollection) of the historical context reinforces my conviction" about the meaning of the amendment, he said.
Course corrections were made by justices across the ideological spectrum, even in areas of the docket not usually seen as lightning rods. For example, the court upheld the federal beef marketing program that finances the "Beef, it's what's for dinner" advertising campaign through assessments on cattle producers, even on those who object to paying.
A Supreme Court decision fours years earlier had found that a similar program amounted to compelled speech in violation of the First Amendment. The decision used language that, if taken to a logical conclusion, suggested a new constitutional basis for attacking a range of government programs, even taxation.
So in an opinion by Justice Scalia, who had joined the earlier decision, the court tacked back, shutting the door on that First Amendment theory before it could gain momentum. Chief Justice Rehnquist also changed sides.
In the constant dynamic of stability and change inside the court, justices find different comfort levels. With Justice O'Connor's departure, change will now come, for the first time in 11 years, from outside the court as well.
Criminal Law and Sentencing
The court's continuing re-examination of the respective roles of judges and juries in criminal sentencing produced a transformation in federal guidelines.
The decision in United States v. Booker, No. 04-104, was really two separate 5-to-4 opinions supported by two different coalitions of justices. First, Justices Stevens, Scalia, Souter, Thomas and Ginsburg held that the federal sentencing guidelines were unconstitutional because they gave judges power that, under the Sixth Amendment's right to a trial by jury, belonged to the jurors - namely, the power to make the factual findings that determine the sentence.
A second coalition, composed of Chief Justice Rehnquist and Justices Breyer, Kennedy, O'Connor and Ginsburg, then ruled that the problem could be fixed by making the guidelines advisory rather than mandatory, restoring to federal judges some of the discretion that Congress had taken away 21 years earlier.
In another case, the court ruled 5 to 4 that the Constitution categorically bars capital punishment for crimes committed before the age of 18. Justice Kennedy's opinion in the case, Roper v. Simmons, No. 03-633, overturned a 1989 precedent that had set the age at 16. The Roper decision also concluded that the American public, as well as the world, had turned against the death penalty for juveniles. Justices Scalia, Thomas and O'Connor dissented, along with Chief Justice Rehnquist.
For only the third time in 20 years, the court overturned a death sentence on the ground that the defendant had received a constitutionally inadequate defense. Justice Souter's 5-to-4 opinion in Rompilla v. Beard, No. 04-5462, was joined by Justices Stevens, Ginsburg, Breyer and O'Connor.
In Deck v. Missouri, No. 04-5293, the court ruled 7 to 2 that it is unconstitutional to use shackles to restrain a prisoner during a death penalty sentencing hearing unless there is a particular reason for doing so. Justice Breyer said for the majority that shackling was inherently prejudicial and required "adequate justification." Justices Thomas and Scalia dissented.
The court also ruled that in making a routine traffic stop, the police can allow a trained dog to sniff the car for drugs without the need for any particular suspicion of a narcotics violation. Justices Souter and Ginsburg dissented in the case, Illinois v. Caballes, No. 03-923, and the chief justice did not vote.
In Castle Rock v. Gonzales, No. 04-278, the court held that the police do not have a constitutional duty to enforce a court-issued domestic order of protection. The 7-to-2 decision overturned an appeals court ruling that allowed a woman to sue a Colorado police department for failing to take action after her estranged husband violated a restraining order by kidnapping their three daughters, whom he then murdered.
The mandatory arrest language on the order could not displace the police department's ordinary exercise of discretion, the court held in an opinion by Justice Scalia, over the dissenting votes of Justices Stevens and Ginsburg.
Property Rights
In what was perhaps the term's most disputed decision, the court ruled that fostering economic development is an appropriate use of the government's power of eminent domain. The 5-to-4 decision in Kelo v. City of New London, No. 04-108, upheld a plan in the economically depressed Connecticut city to replace an old residential neighborhood with office space and a conference hotel. The majority opinion by Justice Stevens was joined by Justices Kennedy, Souter, Ginsburg and Breyer.
The court also unanimously upheld Hawaii's rent-control law for gasoline stations, rejecting the oil companies' argument that limiting their rate of return amounted to an unconstitutional "taking" of private property. The case was Lingle v. Chevron U.S.A. Inc., No. 04-163.
Two decisions on government display of the Ten Commandments looked in opposite directions, with only Justice Breyer joining the majority in each of the 5-to-4 rulings.
In Van Orden v. Perry, No. 03-1500, the court found that the display of a six-foot-high Ten Commandments monument on the grounds of the Texas State Capitol did not amount to an unconstitutional "establishment" of religion. Chief Justice Rehnquist wrote the opinion, joined by Justices Breyer, Kennedy, Scalia and Thomas.
In McCreary County v. American Civil Liberties Union, No. 03-1693, the court held that the framed display of the Ten Commandments on the walls of two Kentucky county courthouses, although surrounded by other texts of historical interest and secular content, was unconstitutional. Justices Souter, O'Connor, Ginsburg and Stevens, along with Justice Breyer, voted in the majority.
Also, the court ruled unanimously that a new federal law, the Religious Land Use and Institutionalized Persons Act, does not violate the separation of church and state in requiring prison officials to meet inmates' religious needs. Justice Ginsburg's opinion in Cutter v. Wilkinson, No. 03-9877, warned, however, that prison security remained a "compelling state interest" and that demonstrated problems in accommodating inmates' requests would be resolved in favor of prison officials.
The federal law that bars sex discrimination in schools and colleges also prohibits school officials from retaliating against those who bring complaints of such discrimination, the court ruled in Jackson v. Birmingham Board of Education, No. 02-1672. The 5-to-4 decision expanded the scope of the law known as Title IX to include protection for whistle-blowers. Justice O'Connor's majority opinion was joined by Justices Stevens, Souter, Ginsburg and Breyer.
Also, employees who sue for age discrimination do not have to prove that the discrimination was intentional, the court ruled. The 5-to-3 decision in Smith v. City of Jackson, No. 03-1160, applied to the Age Discrimination in Employment Act, the "disparate impact" theory of liability long familiar under the laws against race and sex discrimination. Employees need not produce a smoking gun, but can win by showing that a policy has the effect of discriminating against older workers, regardless of an employer's motivation. The dissenters were Justices Thomas, Kennedy, and O'Connor. Chief Justice Rehnquist did not participate.
In Spector v. Norwegian Cruise Line Ltd., No. 03-1388, the court ruled 6 to 3 that the Americans With Disabilities Act protects the rights of passengers who sail on cruise ships that call at American ports, even ships that fly under foreign flags, as most do. However, ships will not be required to make major structural alterations. The dissenters were Justices Scalia and O'Connor and Chief Justice Rehnquist.
The court also overturned a 20-year-old murder conviction in Texas on the ground that the jury selection had been infected by racial discrimination. The 6-to-3 decision in Miller-El v. Dretke, No. 03-9659, was the court's second ruling on behalf of the death row inmate, Thomas Miller-El. The dissenters were Justices Thomas and Scalia and Chief Justice Rehnquist.
In another case, the court ruled that a California prison policy that temporarily segregates new or newly transferred inmates by race, for the stated purpose of preventing gang violence, was constitutionally suspect and not entitled to the judicial deference that is usually accorded to prison administration policies. The vote in Johnson v. California, No. 03-636, was 5 to 3, with Chief Justice Rehnquist not participating. Justice Stevens said in his dissent that the policy was flatly unconstitutional. Justices Scalia and Thomas, dissenting on different grounds, said the court should have deferred to prison officials.
Reasserting federal authority, the court upheld the power of Congress to prohibit and prosecute the possession and use of marijuana, even in California and the 10 other states that allowed it for medical purposes. A federal appeals court had ruled that the noncommercial cultivation and use of marijuana that did not cross state lines fell outside Congress's constitutional authority to regulate interstate commerce.
The vote in Gonzales v. Raich, No. 03-1454, was 6 to 3. The surprise was not that Justices Stevens, Ginsburg, Souter, and Breyer voted with the majority, but that Justices Kennedy and Scalia defected from their usual states' rights allies to vote to uphold federal power.
Rejecting state protectionism in the national wine market, the court overturned liquor laws in New York and Michigan and ruled that states that allow in-state wineries to ship directly to consumers must give the same privilege to out-of-state wineries. The vote in Granholm v. Heald, No. 03-1116, was 5 to 4, with Justices Kennedy, Scalia, Souter, Ginsburg and Breyer in the majority.
The court rejected a claim of federal pre-emption and allowed suits to go forward in state court claiming negligence in the design and manufacture of pesticides and herbicides. These products are regulated under a federal law, the Federal Insecticide, Fungicide and Rodenticide Act, and the Bush administration had argued that this statute, which does not allow private lawsuits in federal court, also implicitly blocked the states from opening their courts to such suits. The vote in Bates v. Dow AgroSciences L.L.C., No. 03-388, was 7 to 2, with Justices Thomas and Scalia dissenting.
The court ruled unanimously that driving under the influence of alcohol, even when serious injury results, is not a "crime of violence" for which an immigrant should face automatic deportation. Chief Justice Rehnquist wrote the opinion in Leocal v. Ashcroft, No. 03-583, which rejected the Bush administration's interpretation of federal immigration law.
Meanwhile, Cubans who entered the United States during the Mariel boatlift in 1980 and subsequently committed crimes cannot be subjected to open-ended detention, the court ruled in a 7-to-2 decision. Although these Cubans, as many as 1,000 of the 125,000 who arrived in the boatlift, are now deportable, Cuba will not take them back. They may not be held for more than six months without a special reason, Justice Scalia said for the court in Clark v. Martinez, No. 03-878. Justice Thomas and Chief Justice Rehnquist dissented.
Immigrants from Somalia may be deported despite the lack of a centrally functioning government in Somalia to receive them, the court ruled 5 to 4 in Jama v. Immigration and Customs Enforcement, No. 03-674. The dissenters were Justices Souter, Stevens, Ginsburg and Breyer.
The court unanimously overturned the criminal conviction of the accounting firm Arthur Andersen for shredding documents related to its work for Enron as that company was collapsing in 2001. Chief Justice Rehnquist said for the majority in Arthur Andersen v. United States, No. 04-368, that the judge's instructions to the jury failed to require the necessary proof that the firm knew its actions were wrong. The victory came too late for Andersen, which lost its clients and its licenses and now has 200 employees, down from 28,000, wrapping up the firm's affairs.
In another unanimous opinion, the court reinstated a copyright-infringement suit by Hollywood studios and the music industry against two file-sharing services whose software enables users to download copyrighted movies and songs.
Overturning an appeals court ruling in favor of the services, Grokster and StreamCast Networks, the court held that a company shown to induce copyright infringement can be liable even if its products also have lawful uses. While sending the case, Metro-Goldwyn-Mayer Studios v. Grokster Ltd., No. 04-480, back to the lower courts, the justices made it clear that they believed the plaintiffs had presented ample evidence of inducement.
Upholding an interpretation by the Federal Communications Commission, the court ruled that cable companies do not have to allow rivals to offer high-speed Internet access over their systems. The 6-to-3 decision in National Cable & Telecommunications Association v. Brand X Internet Services, No. 04-277, was a victory for cable in the competition to provide broadband service. Justices Scalia, Souter and Ginsburg dissented.
In another case, the court ruled unanimously that federal bankruptcy law shields individual retirement accounts from creditors. The decision in Rousey v. Jacoway, No. 03-1407, extended the protection already provided to 401(k) accounts and company pension plans.
The court also raised the bar for investors bringing securities fraud cases. The mere accusation that a company's misrepresentations inflated the stock price is an insufficient basis for a suit, the court ruled unanimously in Dura Pharmaceuticals Inc. v. Broudo, No. 03-932. Instead, investors must claim at the outset that it was the artificially high stock price that actually caused their losses.

• Copyright 2005 The New York Times Company