Tag: Criminal Law

Arnold, Digital Media, and the Resurrection of Boyd – Postscript (Comment) by Brian M. Hoffstadt

From Volume 81, Number 1 (November 2007)
DOWNLOAD PDF

In the fall of 2006, United States District Judge Dean D. Pregerson handed down United States v. Arnold, which held that U.S. Customs agents violated the Fourth Amendment when they searched a laptop computer belonging to an inbound international traveler at Los Angeles International Airport without any particularized suspicion. The Ninth Circuit recently overturned the district court’s ruling, but the district court’s analytical approach remains of vital interest. That is because the decision was the first in the nation to find that the “border exception” to the Fourth Amendment—which permits law enforcement to conduct suspicionless, routine searches of personal items crossing the international border or its functional equivalent—did not apply to laptop computers. Given its novelty and potential implications for all digital media, it is hardly surprising that the district court’s ruling in Arnold has grabbed the attention of the press, law student commentators, civil liberties lawyers, and, most notably, other judges.

 

81_PS8

Remedies for California’s Death Row Deadlock – Article by Judge Arthur L. Alarcón

From Volume 80, Number 4 (May 2007)
DOWNLOAD PDF

The unconscionable delay in the disposition of appeals and habeas corpus proceedings filed on behalf of California’s death row inmates continues to increase at an alarming rate. It is now almost double the national average. Procedural changes must be made to the manner in which death penalty judgments are reviewed to avoid imprisoning a death penalty inmate for decades before the condemned prisoner’s constitutional claims are finally resolved.

This Article identifies the woeful inefficiencies of the current procedures that have led to inexcusable delays in arriving at just results in death penalty cases and describes how California came to find itself in this untenable condition. It also recommends structural and procedural changes designed to reduce delay and promote fairness. These recommendations include: transferring exclusive jurisdiction over automatic appeals from judgments of death away from the California Supreme Court to the California Courts of Appeal; requiring that capital case state habeas corpus petitions be filed in the trial court with the right to appeal to the California Courts of Appeal, rather than filing the petitions with the Supreme Court in the first instance; providing adequate training and compensation for counsel appointed to represent indigent death row inmates; and providing continuity of counsel for state and federal habeas corpus proceedings. These changes would significantly reduce delay and promote a more just resolution for death penalty inmates and society.

 

80_697

Beyond Conspiracy? Anticipating Prosecution and the Challenge of Unaffiliated Terrorism – Article by Robert M. Chesney

From Volume 80, Number 3 (March 2007)
DOWNLOAD PDF

There is a continuum that runs from contemplation to completion of a criminal act. Precisely how early along that continuum does federal criminal liability attach in circumstances involving potential acts of terrorism?

The significance of this question became apparent during the summer of 2006 in the wake of a string of arrests in terrorism-related cases both at home and abroad. The first set of arrests came in Toronto in early June, when approximately seventeen men were taken into custody by the Royal Canadian Mounted Police on charges that they had acquired three tons of ammonium nitrate and were planning to bomb a variety of targets in Ottawa. Eventually, two U.S. citizens also were arrested in connection with this group. Meanwhile, in late June, local and federal agents in Miami arrested the head of an obscure religious sect known as the Seas of David, along with six followers, on charges that they were conspiring to carry out a bombing campaign, possibly to include the Sears Tower in Chicago. Two weeks later, the press reported that officials in Lebanon and elsewhere had arrested participants involved in a plot to destroy the Holland Tunnel, which runs under the Hudson River between New Jersey and New York City.

In each of these cases, U.S. government officials have gone out of their way to calm the public by emphasizing that the plots were disrupted at a preliminary stage. Speaking of the Miami arrests, for example, Federal Bureau of Investigation (“FBI”) Deputy Director John Pistole observed that the plot was “more aspirational than operational.” But the early nature of prosecutorial intervention in these and other terrorism-related cases has not been welcomed in every quarter. The prospect that the government has adopted a policy of prosecuting suspected terrorists at the earliest available opportunity has generated criticism from both the civil liberties and national security perspectives, with the former contending that we risk prosecuting dissenting thought uncoupled from culpable action and the latter contending that such a policy would sacrifice the benefits of additional intelligence and evidence gathering.

 

80_425

Motive’s Role in Criminal Punishment – Article by Carissa Byrne Hessick

From Volume 80, Number 1 (November 2006)
DOWNLOAD PDF

Motive plays an important role in criminal law. It is necessary to prove liability for some offenses; it is a key component of several defenses; and it has been a traditional consideration at sentencing. Motive’s role in criminal punishment has grown through the adoption of hate crime sentencing enhancements and the rise of substantive sentencing law. And motive has an important role in punishment theory, as it reinforces the centrality of shared moral judgments, which are indispensable to any system of criminal law. Yet despite motive’s increasing importance in criminal law, its treatment is inconsistent and incomplete. This Article proposes an expanded role for motive in criminal punishment, in which a defendant’s motive for committing any crime may result in a sentencing increase or decrease. The proposed sentencing system not only will result in a greater correlation between a defendant’s punishment and her individual blameworthiness, but also will increase sentencing uniformity, because it clarifies the aggravating and mitigating nature of various motives ex ante.

 

80_89

(Re)Constitutionalizing Confrontation: Reexamining Unavailability and the Value of Live Testimony – Note by Raymond LaMagna

From Volume 79, Number 6 (September 2006)
DOWNLOAD PDF

The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” Despite the sweeping tone of this declaration, the Confrontation Clause has been misunderstood, maligned, and misapplied by courts for the last century. At its core, confrontation reflects society’s notions of justice and procedural fairness. Confrontation developed under Roman law as a production requirement, unconnected to cross-examination. It was designed to ensure fair criminal procedure by requiring witnesses to testify live before both the accused and the trier of fact. In response to notorious abuses in England, where defendants were convicted without witnesses testifying live at trial, confrontation was included in the Bill of Rights by the Framers. But a mere century later, courts began to misconstrue the grant, sapping it of its intended meaning.

 

79_1499

Closing a Resentencing Loophole: A Proposal to Amend 28 U.S.C. § 2255 – Note by Julie Austin

From Volume 79, Number 4 (May 2006)
DOWNLOAD PDF

Historically, habeas corpus relief has provided a remedy in extraordinary cases for prisoners incarcerated in violation of the U.S. Constitution. Habeas relief brings to mind gross injustices – prisoners serving sentences for crimes they did not commit or prisoners who are incarcerated because they were not represented by counsel at their trials. Yet under current law, prisoners serving enhanced federal sentences may reduce their sentences without necessarily proving that any constitutional violation or error has occurred.

 

79_909

The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington – Note by Jeanine Percival

From Volume 79, Number 1 (November 2005)
DOWNLOAD PDF

A woman calls 911 and says, “Please. I need an ambulance. My husband just attacked me and I’m eight months pregnant. He hit me in the stomach and I’m bleeding. I think I’m losing the baby.” The home is located outside a small town. When the police and ambulance arrive after some time, the wife is unconscious at the bottom of a staircase and the woman’s husband is there, claiming to have just arrived home to find his wife in this condition.

The wife has bruises all over her body and the baby is lost, but shortly after being admitted to the hospital and regaining consciousness, she flees and is nowhere to be found. There are no witnesses, and the husband insists the wife fell down the stairs. The husband has no prior domestic violence convictions, but the wife’s medical history reveals a number of other “accidental injuries.” The wife has no friends and has not spoken to her family since the couple married two years ago. Her coworkers can testify that they suspected the husband was abusive. They can also testify that the wife was not allowed to drive, spend money, or attend social events.

Prior to the Supreme Court’s March 2004 decision in Crawford v. Washington, the wife’s 911 call would likely have been admitted in court under a hearsay exception and used to secure the husband’s conviction. But following Crawford, if the wife could not be brought into court, the statement would be inadmissible. Given that there is no evidence besides the 911 call that directly implicates the husband as the cause of the wife’s injuries, prosecutors would be unlikely even to file a case against the husband, let alone convict him.

 

79_213

Negotiating Sex – Article by Michelle J. Anderson

From Volume 78, Number 6 (September 2005)
DOWNLOAD PDF

Adrienne had just turned thirteen. Late one autumn night, after her siblings and parents had fallen asleep, she crawled out of bed, walked downstairs to the basement, unlocked and opened the sliding glass door, and slipped outside.

It was Mike’s idea. He was a varsity basketball player from a nearby high school. Mike proposed they both sneak out and meet on the street halfway between their houses. Wanting Mike to like her, Adrienne agreed.

Mike never showed.

At that hour, the suburban streets were still. Adrienne walked three miles to Mike’s house, where she found him waiting in his front yard. He signaled for her to come into the house. “Don’t make any noise because my parents are asleep,” he said. “They’d kill me if they found us in here.” So throughout the night, Adrienne remained silent.

Mike led her downstairs into the family room. Now that she was inside his house, a deep fear set in, and Adrienne panicked. In her words, “I just completely left my body.” She does not know how her clothes came off. All she remembers is coming back to the intense pain of Mike ramming inside her. He was ripping her apart. She blacked out.

 

78_1401