Tuesday, October 30, 2012

Can Defendants Confront Their Accusers When They’re Anonymous?

This year, one of the most interesting cases the Supreme Court had considered whether to hear is Elashi v. United States.  This case has ties to terrorism, inevitably bringing into play a certain level of deference to the government’s national security interest; however the central issue is whether the Sixth Amendment to the Constitution allows the government to present evidence from anonymous witnesses.  While Court denied the defendants’ petition for certiorari on October 29, the case involves interesting questions that could be repeated in the future.

The defendants in this case were involved with an organization called the Holy Land Foundation for Relief and Development (HLF).  The defendants claim this organization was a humanitarian charity that sent assistance to Palestinians living in the West Bank and Gaza, which are territories occupied by Israel.  The government, on the other hand, maintains that HLF raised funding for Hamas, which was designated as a Foreign Terrorist Organization.  The defendants were charged with, among other things, providing material support to a foreign terrorist organization, and their appeals were consolidated into one case at the Fifth Circuit.

At trial, the government provided evidence against the defendants using several witnesses who testified under pseudonyms in order to protect the witnesses’ security, as well as national security in a broader sense.  These witnesses included “Avi,” who worked for the Israeli Security Agency and testified as an expert about how Hamas’s financing, and “Major Lior,” who worked with the Israeli Defense Forces and testified in order to authenticate documents seized during a military operation. 

The defendants claim that allowing these witnesses to testify under false names deprived the defendants from being able to meaningfully cross-examine the witnesses about issues like credibility and their background.  The defendants argue that without these witnesses’ names, they could not research their credentials, or look for prior acts that they could impeach the witnesses with at trial.  According to the defendants, without the opportunity to research the witnesses’ backgrounds and without the opportunity to ask these witnesses questions about their history, the defendants could not confront the witnesses adequately under the Sixth Amendment.  The Sixth Amendment requires that defendants have the right to confront witnesses against them, which has been interpreted as the ability to cross-examine them at trial.

The Fifth Circuit Court held that the government was permitted to allow these witnesses to testify under pseudonyms for witness safety and national security purposes.  The Fifth Circuit found that the district court should be allowed discretion when deciding whether it is appropriate to let a witness testify under a false name.  Defendants must only have the opportunity to show the jury the facts that the jury could use to determine whether or not the witness was reliable or believable. 

In this case, the district court applied a balancing test to decide whether to allow the witnesses to testify under false names.  The district court balanced the defendants’ interests in learning the witnesses’ names with the government’s interest in keeping the names secret for witness security and national security.  The circuit court readily agreed, finding that Hamas, as well as other terrorist organizations, had a history of finding the identities of agents such as these witnesses in order to target them. 

The circuit court also found that national security and safety tilts the balance away from the defendants’ need to cross-examine the witnesses.  This is because, among other things, the circuit court found that the government provided the defense with ample material that the witnesses relied upon to formulate their opinions.  The government also agreed to allow the defense to ask the witnesses questions about their background, training and experience, education, and any biases.  As they were allowed such wide latitude to cross-examine the witnesses, the circuit court found that they had adequate opportunity to cross-examine under the Sixth Amendment. 

The defendants’ response to this seems to be that they did not have enough information that would provide potential specific avenues to cross-examine the witnesses.  If the defense had been provided with the names of the witnesses, it would have been able to investigate possible areas where it could have specifically focused its questions. 

The best argument in the defendants’ favor is that the Supreme Court has previously refused to allow the government to present evidence using witnesses who testify under false names in Smith v. Illinois.  That case found that “the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives.”  Further, allowing the defense access to the witness’s identity allows the defense to investigate the witness both in and out of court. 

The circuit court distinguished the Elashi case with Smith because the question in Smith was primarily whether a single witness was credible because that witness was the only one, other than the defendant, to testify about the events at trial.  In Elashi, however, the witnesses were not the only ones to testify at trial, and as such the defendants did not need the same leeway into investigating the witnesses outside of cross-examination.

The Supreme Court denied certiorari in this case on October 29, 2012.  This is likely because even if the defendants convinced the Court that they had a constitutional right to confront their accusers under the Sixth Amendment with the benefit of knowing their real names, the defense would still have to prove that the trial court’s error was not harmless.  In order to show that the error was not harmless, the defense will have to show that a reasonable jury might have significantly differed in their opinions about the witness if the defense had been allowed to know their identities.  The problem with this standard in Elashi is that the defense does not have the information it needs to conduct that investigation into the witnesses.  As it does not have that information, it cannot show the Court that it would have been able to change the jury’s mind about the witnesses’ credibility.

It is a shame this case will not proceed to the Supreme Court.  Whether the government would now be allowed to present witnesses under false names at trial would have far reaching effects, even to cases not dealing with terrorism.  Prosecutors would likely be able to convince more witnesses to testify at trial if they did not have to reveal the witnesses’ true names.  Many witnesses are scared of retribution if they testify at trial, even if they were the victims of the crime.  If the Supreme Court took this case, it would have the opportunity to reverse its holding in Smith, and give prosecutors more ability to put criminals behind bars. 

Bonnie Lindemann
Blogger, Criminal Law Brief

DOJ Seeks to Stop the “school-to-prison pipeline” in Meridian, Mississippi

In the past, groups like ACLU and NYCLU have filed suits where policies and practices have led to the exacerbation of the “school-to-prison pipeline” problem. [1] In December of 2011, the U.S Department of Justice began investigating these practices in Lauderdale County in Meridian, Mississippi.  The Department of Justice revealed its findings on August 10, 2012, and gave the city 60 days to address the violations listed in their report.[2]  During the 60 days the city did not fully cooperate with the Department of Justice to resolve the inadequacies.

On Wednesday, October 24, 2012 the U.S Department of Justice filed a suit against the state of Mississippi, the city of Meridian and Lauderdale County for violating the constitutional rights of children under the Fourth, Fifth and Fourteenth Amendments.  The violations include failure to assess probable cause prior to arresting children, and failure to provide due process.  Presently, children in Lauderdale County are being treated like criminals, being arrested in school and incarcerated simply upon the requests of school staff, without the arresting officer assessing probable cause.

All this is being done in the name of zero tolerance policies.  The most common zero tolerance policies in schools are those concerning use or possession of drugs or weapons.  These were instituted in order to prevent drug abuse and violence in schools.  More recently, harsher consequences have been instituted for possessing weapons in the wake of tragedies such as those in Columbine and Virginia Tech.  Many argue that these policies have gone too far in some cases with punishments that are too harsh. [3]

What about zero tolerance policies for minor infractions?  Should students who commit minor infractions such as a student being late to class, not adhering to dress code standards, or talking back to teachers be arrested and incarcerated?[4]  In Lauderdale County, a significant number of children are arrested not for the possession of drugs or weapons but for the minor infractions listed.  Most people would reasonably expect that such an offense would warrant a detention, or in the worse-case scenario suspension rather than incarceration.  The Meridian Police Department’s actions indicate that they are required to arrest children if school staff requests it, without the need to establish probable cause.  In many instances children are not read their Miranda rights prior to admitting formal charges and are held without a hearing for more than 48 hours.

Here we see the lack of providing adequate safeguards to ensure that children, who are vulnerable individuals, are protected since they are unable to defend themselves.  Additionally, the children who are most often affected by these policies are those in protected classes:  minorities and children with disabilities.  Removing children from school for such minor infractions does not only violate their rights under the Fourth, Fifth, and Fourteenth Amendments, it also denies them of a brighter future and opportunities.  Policies like this, that take a child out of school for several days hinders their academic progress.  They also discourage students from attending and completing high school due to the severity of the punishments instituted and causes them to distrust the system that is supposed to be in place to look out for their best interest.

Tuesday, October 23, 2012

Giving Birth in Shackles

On October 17, 2012, it was announced that the Virginia Board of Corrections approved tentative regulations to restrict the use of shackles on pregnant inmates.  Virginia’s regulations to restrict the shackling of pregnant inmates come just weeks after California passed Assembly Bill 2530 (AB 2530).[1]  The Virginia regulations will permit handcuffing pregnant inmates during transportation outside the jail but it will prohibit all restraints during labor and delivery.[2]  AB 2530 completely bans the use of shackles on pregnant inmates while they are in labor, delivery, recovery, and even after delivery.  California’s bill prohibits restraint by the wrists, ankles, or both, unless it is deemed necessary for the security of the inmate or the safety of the staff or public.  A federal court has concluded shackling pregnant inmates during labor and delivery is unconstitutional.  Yet, many states continue to use this unconstitutional practice. 

 Incarcerated women are forced to go through labor while their legs are shackled together, their hands are handcuffed to the hospital bed, and in some cases a secured chain is placed across their pregnant bellies connecting their hands and feet.  This practice of forcing pregnant women to give birth in shackles is not only cruel, inhumane, and degrading but it is a form of torture.  
Shackles during labor and delivery pose several problems.  It poses an extreme health risk to the mother and baby because the shackles limit a doctor’s ability to examine the mother.  In one case, a woman’s legs were shackled together and the correctional officer left; the shackles prevented her from opening her legs in order to give birth to her baby.  In another case, a women’s hip was dislocated as a result of being shackled during labor and delivery.  Shackles also prevent pregnant women from getting into optimal positions for child birth.  These restrictions make it impossible for pregnant women to move around and find positions that help alleviate the labor pains.    
Many people in this country are under the assumption that a person loses all of their rights once they are convicted of a crime and sent to jail.  This is evident by the lack of concern or attention given to shackles on pregnant inmates during labor and delivery, prison rape, and inhumane prison conditions.  People view these things as an extension of punishment.  But, when a pregnant woman is arrested for a petty crime such as check fraud or shoplifting she does not expect to be shackled during labor and delivery as a part of her punishment for this crime.  And judges certainly do not make this a condition of their sentence.  Although prisoners lose some of their constitutional rights, they are still protected by the Eighth Amendment of the Constitution which prohibits cruel and unusual punishment.
Pregnant women in labor are in a vulnerable state; they are in the process of bringing life into the world.  Moreover, they are experiencing unbearable and uncontrollable pain.  If a pregnant inmate in labor was able to escape, the pain of labor would not allow her to get far before being caught.   Doctors, nurses, and ambulance EMT have all been opposed to shackling pregnant inmates during labor and delivery.  Some healthcare professionals have even voiced their concerns to correctional officers as they struggled to care for pregnant inmates in shackles.  Not only is this practice cruel, inhumane, and degrading, it is unnecessary and should be prohibited.
Tonya Davis
Blogger, Criminal Law Brief

Friday, October 19, 2012

Is the Use of Checks Covered by Texas Money Laundering Law?

Tom Delay, the former U.S. House Majority Leader convicted for money laundering, made his appearance in court on October 10, 2012 to make his case for innocence. [1]  Mr. Delay has been free on bond since his sentencing in 2011 and since then spent his time making appearances on the reality television show "Dancing with the Stars." [2]  If Mr. Delay loses his current appeal, he can potentially appeal to the state's Court of Criminal Appeals.  However, if the conviction is upheld, Mr. Delay may face up to three years in prison and five years of probation. [1]

Since his conviction, Delay has maintained that he did nothing wrong, the prosecution was politically motivated, and that he did not intend to break the law.  "I can't be remorseful for something I don't think I did," stated Delay to the judge at his trial.  Mr. Delay was convicted of illegally channeling $190,000 in corporate donations to Republicans running for Texas statehouse, and Texas law prevents corporate donations to local races. [2]  Mr. Delay's lawyer, Brian Wice, argued on appeal on the issues of whether checks were included in the state's money laundering laws.  Mr. Wice believed that the legislature didn't intend to criminalize the use of checks as a means of committing money laundering.  Wice argued that if Texas had intended to include checks in the definition of funds for the state's money laundering law, checks would have been included in the statute when Texas first passed the law in 1993. [3]  However, the law was amended in 2005 to include checks.  Wice claimed that although Delay's actions were potentially distasteful to people, he did not commit a crime.  In Delay's favor, the appellate judges expressed doubt of how donations made to Delay's PAC became considered proceeds of criminal activity under the money laundering statute.

On the other hand, Prosecutor Holly Taylor argued that judges shouldn't consider such a narrow interpretation of the Texas money laundering law, and checks were meant to be considered. [3]  Taylor referred to other cases in review in other appellate courts around the states and stated that crimes were being prosecuted in money laundering by individuals using checks, and the penal statute would should not be strictly construed. [3]  Additionally, Taylor argued that while corporate money can legally be used to pay for administrative costs, Delay's PAC told companies that the funds would be provided directly to the campaigns, turning their money into criminal proceeds. [3]

Should the money laundering laws be strictly construed, or should the money laundering laws be more loosely constructed to include checks?  The money laundering laws and Texas election laws may not provide a clear answer, but the purpose of the law would be better served if the money laundering laws are more loosely construed to include checks.  Although the money laundering laws did not initially intend to include checks, the law was amended in 2005 to include checks.  This amendment implies that Texas did intend to include checks within the scope of money laundering.  The amendment was probably made to adjust to changing technologies.  Additionally, Delay's PAC told corporations that the contributions would go straight to the campaigns, instead of paying for administrative costs.  Delay's PAC had the intention of including the $190,000 for administrative costs that could be linked to campaigns.  Delay's PAC ended up benefiting the campaigns indirectly, and Delay's intention was clear in his PAC's statement to the companies.  Therefore, Delay violated the money laundering laws with his use of checks.  It would be unsurprising to see a former House Leader missing from "Dancing with the Stars" if Delay's conviction is upheld.

Amelia Wong
Blogger, Criminal Law Brief

Video by: Youtube, Associated Press

[1] http://www.latimes.com/news/nation/nationnow/la-na-nn-delay-texas-court-20121009
[2] http://online.wsj.com/article/SB10000872396390444657804578048631024407880.html
[3] http://www.washingtonpost.com/national/convicted-ex-us-house-majority-leader-tom-delay-to-argue-his-case-before-appeals-court/2012/10/10/22981ee6-12a9-11e2-9a39-1f5a7f6fe945_story.html

Tuesday, October 16, 2012

California Puts the Death Penalty Issue to Referendum

This November, voters in California will be doing more than checking a box for a presidential candidate.  Proposition 34 on the ballot asks voters to abolish the death penalty in favor of lifetime prison sentences without the possibility of parole.  The proposed statute would apply retroactively, automatically commuting current death row prisoners’ sentences to life imprisonment.  If California decides to abolish the death penalty, it will be the 38thstate to do so.  Just last year, both Illinois and Connecticut outlawed capital punishment by passing laws in the state legislature.  California will leave the decision up to its state citizens by putting the question to a referendum.  According to California state election law, Proposition 34 will only be repealed if it receives more “No” votes than “Yes” votes

As of the National Association for the Advancement of Colored People’s (NAACP) most recent survey, California has the most death row inmates of any state in the country with 724.  Despite the increasingly high number of death sentences handed down in California, only thirteen executions have been carried out since 1977.  This seemingly inefficiency has many former California supporters questioning their support of the death penalty.  One editorial in the Sacramento Bee characterized California’s system as an “outlawed, flawed, and expensive system of punishment that needs to be replaced with a rock-solid sentence of life imprisonment with no chance of parole."  The newspaper, which had previously supported the death penalty, urges its readers to vote in favor of Proposition 34 rather than invest in more money into a broken system.

The cost of the death penalty has also become a concern for longtime supporters, including former district attorney of L.A. County, Gil Garcetti.  Garcetti observed, “I was a supporter and believer in the death penalty, but I've begun to see that this system doesn't work and it isn't functional.  It costs an obscene amount of money."  The costs in a capital case remain exponentially higher in all aspects from trying the case through housing the inmate.  A recent study explained that jury selection costs the state $200,000 more in capital cases.  Additionally, it costs $100,000 more a year to house a death row inmate in state prison.  The appeals process adds to the already steep costs, with state and federal habeas petitions costing the state approximately $1.7 billion.

Cost isn’t the only factor weighing against California’s capital punishment system.  Studies also suggest that capital punishment is not a conclusive functional deterrent to crime.  One study by the National Research Council recommends that public officials not use studies interpreting homicide rates to legislate death penalty issues.  The Council explains that these studies usually have three fundamental flaws.  First, they do not factor in the number of noncapital punishments that may be imposed.  Second, the studies use incomplete or implausible models of potential murderers’ perceptions of and response to the use of capital punishment.  Finally, the estimates of the effect of capital punishment are based on statistical models that make assumptions that are not credible.

Beyond deterrence, perhaps the most compelling factor that undermines the use of capital punishment is the increasingly high number of wrongful convictions cases.  To date, five men who were sentenced to death in California have later been found innocentThe reasons for conviction in the cases range from prosecutorial misconduct to ineffective representation and insufficient evidence.  Given the finality of capital punishment, even one wrongful conviction should have California voters thinking twice about Proposition 34 at the polls this November. 
The decision California voters have in front of them this year on Election Day is monumental.  In a state where budget concerns have been an issue for years, it only seems logical that the outdated, money-sucking capital punishment system should be abolished.  If California does abolish the death penalty, then the remaining few states that have also been considering abolition may choose to follow suit.  Voters who have previously supported the death penalty in embracing the mantra, “Let the punishment fit the crime,” should consider the overwhelming evidence suggesting that the system is ineffective in preventing crime, cost prohibitive, and unjust.

Ali Eacho
Junior Blog Editor, Criminal Law Brief 

Friday, October 12, 2012

Art Theft: The Unseen Masterpiece

Sometime between September 12 and September 14, 2012, burglars broke into the Santa Monica home of wealthy bond expert, Jeffrey Gundlach.  While the exact target of the burglars remains unknown, they surely recognized the monetary value of Mr. Gundlach’s vast collection of expensive artwork from famous artists such as Joseph Cornell, Piet Mondrian, Guy Rose, and Philip Guston.  Sparing little, the burglars fled with roughly $10 million of Mr. Gundlach’s possessions including thirteen paintings, a multitude of expensive watches, and bottles of fine wine.  In an ending seemingly scripted for Hollywood, the burglars piled into Mr. Gundlach’s red Porsche Carrera 4S and drove away into the night, but only after remembering to close the garage door on the way out.

Enthralling tales of art theft captivate American society.  Whether Harrison Ford is battling crooks to recover stolen artifacts in Indiana Jones; or Sean Connery and Katherine Zeta-Jones are snatching Rembrandts and ancient Chinese masks in Entrapment; or Matt Damon, George Clooney, Brad Pitt, and Julia Roberts team up to swindle the Imperial Coronation Egg in Ocean’s 12; one thing is certain, art thieves are rich, sexy, and smart.  Perhaps not surprisingly, the art thief as portrayed by Hollywood, lives primarily on the big screen and not in reality.  However, that is not to say that art theft is not a real problem.  The Department of Justice estimates the art crime industry to be worth roughly $6 billion a year, only surpassed by drug trafficking and the arms trade as the most profitable criminal trades over the last fifty years.

With such a large economic impact, it would be reasonable to infer that art crime garners a substantial amount of attention by law enforcement and the American public alike.  Unfortunately, such an inference would be inaccurate.  Art crime attracts little study from criminologists and underwhelming funding from government agencies.  The FBI’s Art Crime Team is composed of fourteen dedicated agents and three attorneys.  Only a few police departments such as Los Angeles and New York have special art crime teams, and according to the FBI, most countries do not have dedicated art crime police forces.  

Nevertheless, Congress has established a body of law to combat art crime.  The passage of the National Stolen Property Act (NSPA) criminalized the trafficking of stolen goods worth over $5,000.  In 1983, Congress passed the Cultural Property Implementation Act (CPIA) to stem the flow of black market artifactsinto the United States by imposing strict limitations on art likely obtained illegally.  The CPIA also established the Cultural Property Advisory Committee within the U.S. State Department to advise the president on issues involving cultural property.  More recently in United States v. Shultz, the Court of Appeals for the Second Circuit delivered a blow to corrupt art dealers by holding that NSPA extends not only cultural property stolen from private individuals, but to property stolen from foreign governments as well.  But while the law may be recognizing the significance of combating art crime, the public seems to be lagging behind.

It is likely that the public views art crime as just another property crime.  It is easy to devalue the cultural significance of stolen artwork that only indulges the private eyes of the wealthiest members of society, such as Mr. Gundlach.  However, theft from private collections is only a part of the larger problem.  Antiques are routinely looted from archeological sites and then sold on the black marketBut crimes against ancient, buried artifacts rarely generate the headlines necessary to make the public aware of the problem.

Furthermore, it is easy to view art theft as a victimless crime.  Paintings do not shoot bullets, explode, or have adverse health effects like drugs and arms.  After all, Brad Pitt and George Clooney steal for revenge or excitement, and Sean Connery merely wants some additions to his private collection.  Such a view of art theft does not, however, delve deep enough into the world of art crime.  Underneath the Hollywood veil, there is a world of international organized crime with ties to funding all types of illicit activities from drug trafficking, to the arms trade, to possibly terrorism.

It has been alleged that hijacker, Mohammad Atta, tried to sell looted Afghani artifacts in Germany to obtain funding for the 9/11 attacksThe International Council of Museums recently reported that it plans to produce a list of valuable ancient artifacts located in Syria.  It then plans to distribute the list to police agencies around the world in hopes of stemming the international trade of looted artifacts for gunsStill, not all art theft is linked to organized crime and the funding of violent activities; the extent of such connection is unknown.  Nevertheless, one must only dust off the history books to see that it is by no means a new phenomenon.

Perhaps what Hollywood fails to establish, and what the general public might not realize, is that art theft is a crime against world cultures.  Unfortunately, art crime results in far more than monetary loss; it is often an unrecognized loss for history.

Jared Engelking
Blogger, Criminal Law Brief

Wednesday, October 10, 2012

Doing Time “Gangham Style”

Many people are familiar with the dancing inmates of the Cebu Provincial Detention and (DRC) thanks to their rendition of Michael Jackson’s “Thriller” that went viral on Youtube.[1]  Well these dancing inmates are at it again, this time with a performance of Psy’s “Gangham Style”, the music video that now holds the Guinness World Record for most likes on Youtube.  Cebu’s rendition of this music video has been uploaded for a little more than a week and already has over three million views.[2]  While these videos are entertaining they also bring another question to mind.  Is this choreographed exercise program at CPDRC a good form of rehabilitation?

CPDRC is a maximum-security prison located in the Philippines.  The inmates there are charged with murder, rape, drug-trafficking and other serious offenses, yet they practice a growing repertoire of dance routines up to four hours every day.[3]  This program, started by Byron Garcia the security consultant for the prison, originally began as prisoners’ marching in uniform to the beat of a drum, and evolved into dancing to pop music.  Garcia’s attempts to draw attention to the benefits of his new program had been ignored by other prisons in the area so he began posting Youtube videos of these dances.  His plan worked thanks to the popularity of the “Thriller” video;  by the end of 2007, eight other prisons in the Philippines had adopted some of Garcia’s new methods, including dance.[4]

So what exactly are the benefits of this program used in the CPDRC?  Garcia states that weekly outbreaks of violence have subsided, inmates’ health have improved, and recidivism rates (repetition of criminal activity) are down.  One inmate in the prison stated “I like dancing.  It is a way we get to show the world that even if we ended up in prison, we are not totally damaged people.”  Other similar programs in the United States have seen similar results.  The Rehabilitation through the Arts program currently operates programs in five men and women’s New York State correctional facilities.[5]  These programs include theatre, dance, creative writing, voice and visual art.  Studies done on participants in these programs have shown that men involved in these programs have completed educational programs beyond the GED than the comparison group.  They also report a higher level of positive coping and have had fewer infractions and spent fewer days locked in their cells as a disciplinary measure.  This program also builds communication, conflict management skills, self-confidence, trust and literacy skills. 

There have been some speculations that this program may not be all it seems.  Some people have stated that the public performances put on by the inmates are nothing more than a profit making measure and that because of this the inmates are being forced to dance.  I can understand how something like this, with paying admission to watch the inmates dance could lead to corruption or the desire to use the shows just to make money.  However, if it is controlled I do not see how it is a problem to have an extra income for the prison.  Even if this is not done, the idea itself of using dancing is still a good one. 

What are your thoughts on using dance as a means of rehabilitation in prison?  Personally I cannot see something like this as a bad thing.  It gives prisoners a way to not only have fun and exercise but also gives them something to care about.  The inmates at the CPDRC put on live shows for spectators every month and everything I have read indicates that they really enjoy it.  The events have even inspired a twelve part web series called Prison Dancer that may become a Broadway musical.[6]  Personally, anything to me that gets people involved in dancing is a good one.  It gives individuals, even prisoners, a way to channel their energy into something good. 

Nicole Irwin
Blogger, Criminal Law Brief