Friday, December 6, 2013


Thank you for your support as we transitioned from the Criminal Law Brief to the Criminal Law Practitioner.  This semester students and guest practitioners have put out a series of great posts that we hope you enjoyed.  Thanks to all who contributed to make it a great first season with the CLP Blog!  Student posts will be temporarily suspended until January 2014.

IMPORTANT NOTICE:  Please note we will be changing the blog address from to You can also access the blog through the CLP website:, or by googling us or following the blog via email and Twitter.

When we resume again in January 2014 we will be launching a new section -- The Supreme Court Watch -- where upcoming and recent Supreme Court cases and opinions relating to criminal law will be discussed and analyzed.  We will break down the cases with specific analysis for the affect on practitioners.

We are also excited to announce that the first CLP publication will be published and ready for distribution in January 2014!  This publication will consist of four student articles, four practitioner articles, and two editorial pieces. If you are interested in receiving a free copy of the CLP publication, please email us at with your contact information and we will add you to our mailing list.   

If you are interested in submitting an article to the publication, please visit our website for submission details and you may contact us at; or for a blog post, please email us at

Thank you again for reading the CLP Blog and sharing your comments with us.

Happy Holidays!


The Criminal Law Practitioner

Wednesday, December 4, 2013

The Breadth of Admissibility: A Survey of BAC Margin of Error Evidence in DUI Cases

DUI cases make up the bread and butter of most criminal dockets.  One of the primary evidentiary tools for these cases is some sort of BAC testing instrument.  Like any piece of scientific equipment though there is a margin of error inherent in the testing procedure and equipment.  This margin of error has been the source of significant litigation across the United States, where defense attorneys have attempted to introduce the testing margin of error as something for the jury to consider when analyzing the BAC test.  There is a majority and minority view held by the sister-states concerning the admissibility of blood alcohol test margin of error.  The majority view is that margin of error is admissible and can be considered for the weight of the evidence, the credibility of the evidence, or for attacking a statutory presumption of intoxication.  The minority view is that the margin of error is inadmissible because the statute already takes it into account or only goes to the validity of the test and not to its evidentiary value.  It should be noted though that the following is not a complete survey of all fifty states, because some states do not have as extensive case law on point or dip into administrative or civil license forfeiture decisions for basing their analysis on BAC testing margin of error.

Friday, November 29, 2013

Guest Post: Illegal Traffic Stop -- What Can a Police Officer Do When He Pulls You Over?

It is the Cops' jobs to protect the public; one way to do that is through legitimate traffic stops.  But what about when a police officer abuses his power?  How far can a cop go during the traffic stop?  And, what can you do to stop him?

Once the purpose of a traffic stop has been satisfied, the continued detention of a vehicle and its occupants constitutes a second stop, and must be independently justified by reasonable suspicion.

Tuesday, November 26, 2013

Intimidation Gone Digital: Witness and Victim Intimidation in the Age of Social Media

We live in the age of social media where much of our communication occurs through sites such as YouTube, Instagram, Twitter, and Facebook.  Phone calls and letters have been replaced by tweets, snapchats and status updates and our lives are lived for the world to see.  While such sites keep us connected and enable the type of instantaneous communication and access to information that was previously unattainable, social media has now become a vehicle for something much more sinister.  Increasingly social media is being used to intimidate victims, witnesses and criminal informants.  On November, 12, 2013, seventeen year old high school student Nasheen Anderson from East German Town, Pennsylvania was arrested and charged with witness intimidation and terroristic threats. Philadelphia police arrested the teen after he was linked to a Twitter account that named witnesses in several 2012 shootings and a June 2007 homicide.  The Twitter account contained pictures of sealed court documents.  One photo had the caption “EXPOSE ALL RATS” written below it.  Police believe that Anderson may also be behind the “rats215” Instagram account, which has since been shut down.  According to the Philadelphia Inquirer, this account revealed the identities of more than thirty witnesses to violent crimes in Philadelphia and also contained pictures, police statements and witness testimonies.

Friday, November 22, 2013

Ineffective Assistance of Counsel in Capital Cases

To Kill a Mockingbird: Atticus Finch and Tom Robinson
The Sixth Amendment of the United States Constitution grants criminal defendants the right to counsel in federal cases.  In 1963 the Supreme Court extended this right to state felony prosecutions in the landmark case Gideon v. Wainwright.  Twenty-one years after Gideon, the Supreme Court in Strickland v. Washington held that the right to counsel really means the right to effective assistance of counsel.  Generally speaking, ineffective assistance of counsel (IAC) can be defined as errors by counsel so severe in nature that the criminal defendant was denied a fair trial.  Strickland provides a specific test.  Under Strickland, a defendant must establish: (1) their trial lawyer’s performance fell short of an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  

Tuesday, November 19, 2013

Self Defense or Murder?: Is the Shooting of Renisha McBride the Next Big Story?

As the country begins to move past the media frenzy that followed the killing (or murder, depending on where you stand) of Trayvon Martin, a new incident has occurred that seems prime to dominate headlines.  Around 1:00 am on November 2, 2013, Renisha McBride drove her vehicle into a parked car in suburban Detroit.  Tests would show that McBride had a blood alcohol content of 0.218%, well above the legal limit in Michigan.  A few hours later, a “bloodied and disoriented” McBride approached the porch of Dearborn Heights resident Theodore Wafer.  Sources report that McBride began to knock on Wafer’s door, prompting Wafer to come downstairs with his shotgun.  Wafer, standing in his home, discharged his weapon through a closed screen door, striking and killing the twenty-four year old McBride.  Wafer then called 911 to report the shooting.  Wafer told investigators that he brought down the shotgun because he believed McBride was attempting to break into his house (though there were no signs of forced entry).  He also claims that the weapon accidentally discharged while he was investigating the situation.  McBride died shortly after and Wafer has been charged with second degree murder.

Friday, November 15, 2013

From Criminal to Star Witness – The Paradox of Cooperating Witnesses in White Collar Cases

Frank DiPascali Mug Shot

Despite Bernie Madoff’s claim that he alone perpetrated the roughly seventeen billion dollar ponzi scheme, the government has pursued charges against a number of other individuals.  After a five-year investigation, at the heart of the prosecution’s case is a cooperating witness.  In August 2009, Frank DiPascali, Madoff's former Chief Financial Officer, pled guilty to ten counts of fraud, conspiracy, and other charges, and admitted to the court, “I helped Bernie Madoff and other people carry out a fraud."  In the ongoing case that began in October against five former employees of Madoff’s financial firm, DiPascali is expected to testify and provide key evidence in hope of reducing the length of the prison sentence he will likely receive. 

Tuesday, November 12, 2013

It's a Mad World: The Insanity Plea in the James Holmes Case and Washington, D.C.

Saint Elizabeths Hospital, Washington, D.C. public psychiatric facility.

James Holmes was charged with 166 counts of murder, attempted murder and other related offenses from his July 20, 2012 shooting rampage in an Aurora, Colorado movie theater that left twelve dead and at least fifty-eight injured.  According to his attorneys, Holmes was in "the throes of a psychotic episode when he committed acts that resulted in the tragic loss of life."  With this admission and the District Court Judge's acceptance of Holmes’s plea of not guilty by reason of insanity, the scope of the trial was transformed from a determination of factual guilt to whether or not Holmes was sane, and thus culpable for his actions.  Insanity pleas have been around since ancient times, and the defense is based on the notion that some people with mental illnesses because of a lack of understanding or because of an inability to resist an urge are not culpable for their actions.  As the defense has developed through time, it has been inconsistently applied throughout the states.   

Friday, November 8, 2013

The Supreme Court Denies Appeal from Wrongfully Accused Duke Lacrosse Players

The Supreme Court refused to hear an appeal from three Duke Lacrosse players who were wrongfully accused of rape in March 2006.  David Evans, Collin Finnerty, and Reade Seligmann filed a lawsuit against the City of Durham, North Carolina, holding it responsible for pursuing the rape charges against them without probable cause.  The charges stemmed from false allegations made by Crystal Mangum, a stripper hired to perform at a team party held on March 13, 2006.  Without any evidentiary basis, Evans, Finnerty, and Seligmann were indicted for Mangum’s alleged rape.[1]  The Supreme Court’s recent refusal to hear their appeal marks the end of the players’ civil rights lawsuit.  Consequently, the Court’s refusal leaves many unanswered questions about the prosecutorial and police misconduct that occurred during the case.

Tuesday, November 5, 2013

A Refusal of Recusal

The color black is made through a combination of all primary colors.  It is often believed to represent authority and power.  Black is an appropriate color for judicial robes because judges wield considerable power, and their judgments, much like the color itself, are made through a combination of all factors.  A judge’s ability to remain impartial through the course of criminal litigation became the center of the Aaron Hernandez case.

NFL star Aaron Hernandez is charged with one count of first-degree murder and five counts of weapon possession.  These charges stem from the June 17, 2013 killing of Odin Lloyd.  Sports Court Media, a trusted provider of sport and legal analysis founded by Tamara Holder and Linda Baden, reported that on his last court appearance, prosecutor William McCauley demanded that Bristol County Superior Court Judge, Susan Garsh recuse herself from the case.  McCauley cites a long antagonistic history with Judge Garsh as the basis for his request for recusal.  He believes that Judge Garsh would be unfriendly to the prosecution’s case.  Judge Garsh’s recusal would have brought the trial and all pretrial matters under the control of a different judge.  However, Judge Garsh stated that she harbored no ill will or bias, and was not partial towards the Commonwealth or defendant.  This case presents an opportunity to explore the rules and guidelines for judicial recusal, and the options available to the prosecution when a request for recusal is denied.

Friday, November 1, 2013

Checking Your Phone While Driving? Hopefully You Don’t Mind The Police Taking a Look

In an age where more and more personal and private information is being stored on cellphones, an interesting question of law arises concerning the degree of protection such information is afforded during the course of a search by police when a driver is stopped.   This information, traditionally comprised of simple data such as the person you called or texted and the content of that message, now includes, thanks to the development of smartphones, GPS location history, web browser history, pictures (in some cases intimate or explicit), and recent email traffic.  This broad array of personal information makes the search of a cell phone a much more onerous and invasive procedure than it might have been in past ages of “dumb” phones.  While the aggregation and nature of personal content stored on cell phones has increased, so too has the technology available to search this data.   For example, in 2011 Michigan state law enforcement acquired a piece of technology known as CelleBrite UFED, a device capable of grabbing all photos and video from an iPhone within a minute and a half.  In addition to such speed, the device is also compatible with 3000 different phone models, and even has the capability to defeat password protection.  All of this capacity from a device incorporated in 2011. 

Tuesday, October 29, 2013

Probation in the Modern World

In the early hours of Sunday, October 27, 2013, police officers arrested singer Chris Brown and his bodyguard in Washington, D.C.  Early reports allege that Brown and his bodyguard attacked a man outside the W Hotel by the White House.  While a police investigation will determine whether or not Brown is guilty of the crimes he committed, he faces the very serious issue of having violated his probation.  At the time of the arrest, Brown was on probation following his February 2009 arrest for assaulting his then-girlfriend, Rhianna.

Friday, October 25, 2013

Navarette v. California: Will the U.S. Supreme Court Rule in Favor of an Anonymous Tip Exception for Reckless and Drunk Driving?

On October 1, 2013, the United States Supreme Court granted certiorari in Navarette v. California, the case questions whether an anonymous tip about a motorist’s reckless driving is enough reasonable suspicion for a police officer to pull over that motorist, without the officer first corroborating the tip with his own investigation.[1]  This case is timely considering the present division among state and federal courts on this issue.

Tuesday, October 22, 2013

Buccal Swab "Booking Procedures": Lower Courts Struggle to Apply Maryland v. King

On June 3, 2013, the Supreme Court handed down a widely-anticipated opinion in Maryland v. King.  In this case, the defendant’s DNA was collected by the state after an arrest for first-degree assault.  Though he pled to a lesser misdemeanor charge, King’s DNA was found to be a match for an unsolved 2003 rape for which he was eventually convicted.  The Court addressed the following issue: “whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges.”  Justice Kennedy, writing for the Court, did not examine the issue in isolation, but considered it in light of Maryland’s DNA Collection Act, which contained various protections for the accused.  Specifically, DNA could only be collected if the individual was charged with a violent crime, could not be recorded or stored until after the individual was arraigned, and samples would be destroyed if the criminal action did not result in a conviction; further, the DNA could not be used for any purpose other than identification.

Friday, October 18, 2013

Inaccurate Background Checks: An Expunction of Job Opportunities?

For criminal defenders an acquittal usually means a job well done.  However, some acquitted defendants can still suffer from their interactions with the criminal justice system, due to the increasing reliance of potentially inaccurate FBI background checks.  These individuals can see their future job opportunities limited because an arrest can remain on their criminal record without an explanation.  An incomplete or incorrect background check can drastically impair a person’s ability to find or hold a job, especially when FBI background checks often fail to report the final outcome of an arrest.  Therefore, those who have been arrested, but have not been charged with a crime, suffer merely for their brief interaction with the criminal justice system.  For these reasons, when faced with a client who is acquitted or arrested and not charged, criminal defense attorneys must aggressively move to expunge arrest records to prevent a future detriment to a client from an inaccurate background check.

Tuesday, October 15, 2013

In-Court Identification: Is It Inherently Prejudicial?

There is a hotly contested battle between the prosecution and the defendant on the reliability of various types of identification procedures.  Anyone in the criminal field will have heard about a photo array or a lineup.  However, there is one type of procedure that seems to fly under the radar: the in-court identification.  This presents a real due process concern because even though eyewitness testimony is unreliable and open to post experience suggestion, it is still very persuasive to juries.  Further, an in-court identification is much more dramatic than a pretrial identification procedure and thus has the potential to compound the persuasiveness to juries.

Friday, October 11, 2013

"Scenes of a Crime": A Documentary Surrounding the Adrian Thomas Case and a Look at False Confession Experts

Scenes of a Crime is a fascinating documentary examining the case and confession of Adrian Thomas.  On September 21, 2008, one of Adrian Thomas’s four-month-old twin sons, Matthew, was taken to the hospital for difficulty breathing.  The admitting doctor identified signs of Sepsis (caused by infection) and started to treat Matthew with antibiotics and ordered testing.  Matthew was transferred to another hospital where Dr. Walter Edge, who was working in the Pediatric Intensive Care Unit, was concerned with fluid around Matthew’s brain.  Dr. Edge suspected the fluid was the result of intentional abuse and notified the police; Child Protective Services removed Thomas’s six other children from the home.  Later at the hospital, Dr. Edge told the detectives “somebody murdered this child, this child [is] going to die.”   

Tuesday, October 8, 2013

No Knock, No Problem?

The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches and seizures.[1]  Traditionally, the common law doctrine governing the reasonableness of police searches of private homes required officers to knock and announce their presence, giving the owner opportunity to answer.  This rule was adopted to limit unnecessary destruction of forced entry into private homes.  In 1970, Congress passed the Comprehensive Drug Abuse, Prevention, and Control Act, which authorized the use of no-knock warrants.[2]  After seeing the dangers of this method, Congress repealed the law in 1974.[3]  The Supreme Court, however, has ruled that in some circumstances, knocks are not necessaryNo-knock searches can be performed with a warrant authorizing entry without announcement.  If a warrant does not authorize entry without announcement, then a court must consider that when analyzing the reasonableness of a search.

Friday, October 4, 2013

Quality Control in an Era of Confrontation

The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions” the accused shall “be confronted with witnesses against him.”[1]  As with all reserved rights, the question arises as to what degree and in what context a defendant may exercise this and other rights.  The United States Supreme Court declared between two cases – Bullcoming v. New Mexico[2] and Melendez-Diaz v. Massachusetts[3] – that “testimonial” evidence includes a sworn report submitted by a lab technician describing the results of laboratory drug tests.[4]  Applying this standard excludes a laboratory report submission under hearsay when a witness is unavailable and the defendant has not had a prior opportunity to cross-examine.  Therefore, a laboratory report prepared in anticipation for prosecuting a defendant requires the prosecution to produce the lab technician who performed the tests for cross-examination.  A certified report from a laboratory will not suffice to secure its admission at trial.

Tuesday, October 1, 2013

Guest Post on the Intersection of Patent Law and Criminal Law: Do you need a patent to protect your design to prevent crime?

If you’re a budding entrepreneur and a bit of a tech whizz, you’ve probably got a number of ideas, designs and concepts under your belt.

Ever wondered whether you should protect these designs and ideas?

A general conversation with friends, an overheard conversation, or just someone who decides they can make some money from your design could easily steal it and pass it off as their own; this is a criminal offence – but only if you have protected your work.

Friday, September 27, 2013

The Evolution of WCL’s Only Criminal Law Publication: Introducing the Criminal Law Practitioner

On behalf of the 2013-2014 Executive Board, we are pleased to formally announce our publication’s transition from the Criminal Law Brief to the Criminal Law Practitioner.  Building on the strong foundation from our many publications as the Criminal Law Brief, which identified key issues and recent developments in the criminal law field, our journal now seeks to take our articles one step further by discussing the practical application of prevalent and controversial issues in criminal law.  This is something many other criminal law journals and publications have yet to delve into and we are very excited to initiate what we hope will be an enduring trend.  To reflect the new mission of our publication, we implemented the name change from the Criminal Law Brief to the Criminal Law Practitioner.

Tuesday, September 24, 2013

Corruption in the Courtroom

Judges play an important role in the criminal justice system.  They are the only party in the system that must remain completely neutral.  Because judges remain neutral, we entrust them with various decisions that can affect the outcome of a case, such as ruling on motions relating to the admissibility of evidence and determining whether there is sufficient probable cause for warrants.  To ensure these issues are decided in the fairest manner, it is crucial that judges do not have a stake in the litigation presented before them. 

Friday, September 20, 2013

Juries: The Community Conscience in America

There it is.  “Breaking News: Verdict reached!” scrolls along the bottom portion of your television screen or appears as a notification on your newest smart phone.  We have all seen it.  We have all waited in nervous anticipation for it.  We flick to the nearest news channel, turn up the volume, and crowd around the screen as the criminal trial enters the final stretch.  Those final words are then composedly uttered, “We the jury find the defendant…”

Tuesday, September 17, 2013

A Refreshing Reminder of Why Jury Duty Matters: A Review of Andrew Guthrie Ferguson's Book on Jury Duty

Andrew Guthrie Ferguson, Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action

Google “jury duty” and you will quickly find websites dedicated to teaching you ways to avoid it.  Many websites compare jury duty to getting a cavity filled at the dentist, having to wait in the never-ending line at the Department of Motor Vehicles, or even wrestling an alligator.  In Why Jury Duty Matters, author Andrew Guthrie Ferguson provides an inspiring and educational analysis of the importance of serving as a juror in the United States court system, ultimately reminding us of our civic duty in the context of our constitutional history.

Monday, August 19, 2013

A Shred of Light into the District of Columbia’s Juvenile Justice System

The H. Carl Moultrie Courthouse, Superior Court of the District of Columbia
“The reformers who championed the establishment of juvenile courts in the United States envisioned a system in which youthful law violators would receive treatment and other forms of rehabilitation and thereby become productive members of society without forever being tarnished by criminal records as a result of youthful indiscretions.”[1]  This idea has unfortunately largely remained in the abstract; instead, many juvenile offenders face high recidivism rates throughout the United States.  Specifically, “an average of fifty-five percent of youth released from state custody in the United States are rearrested within a year, and an average of twenty-five percent are re-incarcerated in adult or juvenile custody within the same period.”

Tuesday, August 13, 2013

Why Not to Hate Jury Duty

Jury duty.  Universally dreaded, with sympathy for a friend or colleague who has been called, communicated with a knowing roll of the eyes, and a story about how to get out of it.  There is even a wikihow page entitled, "How to Get Out of Jury Duty."  Yet, jury duty is regarded by courts and civics teachers as one of the most important civic responsibilities a citizen can perform; it has been a crucial part of our democratic system for over 200 years.  The right to a jury trial is a fundamental right afforded by the Sixth Amendment of the United States Constitution, and the Due Process Clause of the Fourteenth Amendment.  A defendant charged with anything more than a petty crime, typically a crime with a penalty of more than six months of incarceration, has a right to trial by jury, made up of between six and twelve of his or her "peers."[1]  Jurors are reflective of the community at large; there is no education requirement, though jurors must be citizens, over the age of eighteen, and fluent in English, with few other restrictions.      

Wednesday, July 31, 2013

The Downside of Being a Celebrity Prisoner: Protective Custody and its Relation to Solitary Confinement

Aaron Hernandez
On June 27, 2013, former Patriots tight-end Aaron Hernandez was denied bail in his upcoming trial for the murder of Odin Lloyd.  Until his verdict and sentencing, or alternatively a lower bail order from the judge, Hernandez will be confined in a Massachusetts state prison.  For the everyday citizen, this may seem purely procedural.  The accused is taken from the court room to the holding center, where he is then processed and booked.  Most prisoners are then entered into the general population where they await trial.  For Hernandez, a well-known football player with the New England Patriot, the situation is very different.

Friday, July 19, 2013

No Money? No Freedom

On July 16, 2013, nineteen year-old Justin Carter will have his day in court.  But roughly five months ago, the teen was arrested and charged with making a terroristic threat on his Facebook page. He has been in jail ever since.  Carter’s nightmare started when another player in the Facebook game “League of Legends” called Carter “crazy.”  Carter responded with what he believed to be a humorous and witty retort, “I’m f***ed in the head alright.  I think I’ma [sic] shoot up a kindergarten and watch the blood of the innocent rain down and eat the beating heart of one of them.”  Just two months after the horrific shootings at Sandy Hook Elementary School, a Canadian woman who saw the post did not find it humorous or witty.  In what some might consider “Facebook stalking,” the woman discovered Carter’s address and noticed that it was close to an elementary school.  She promptly notified police, who then arrested the young teen.  Apparently, Carter’s humor was also lost on the Texas judge who set bond at an astronomical $500,000, which Carter’s family could not afford.

Wednesday, July 17, 2013

UDC School of Law Professor Andrew Ferguson Weighs in on the Role of Juries and Their Verdicts

On Saturday, July 13, 2013, the jury in the State of Florida v. George Zimmerman returned a verdict of not guilty for second-degree murder and manslaughter for the fatal shooting of Trayvon Martin.  After the jury returned the verdict, an expected flurry of news and social media erupted, some in support of the verdict and many others criticizing it.  Given the contentious issues surrounding the case, a vast amount of media attention has honed into the jury and what occurred during the jury's deliberation.  One can hope that the jury deliberation of the Zimmerman trial was similar to the one that took place in the famous stage play and movie, Twelve Angry Men, where the jurors carefully examined all the evidence in their quest for the truth and banished personal prejudices from their deliberation.  On the other hand, many fear that racial biases may have affected the deliberation of the Zimmerman jury that was made up of five Caucasian women and one Hispanic woman.  Whether the deliberation was similar to that of Twelve Angry Men or corrupted by racial bias, many questions remain.

In his article, "The Zimmerman Trial and the Meaning of Verdicts," Professor Andrew Ferguson of the University of the District of Columbia, discusses the Zimmerman jury, the (at the time undelivered) verdict, as well as juries and their verdicts in general.  

Friday, July 12, 2013

Due Process in the Context of Jones-Farmer Hearings: Implications of Kaley v. United States

On March 18, 2013, the United State Supreme Court granted certiorari in Kaley v. United States.  Docket No. 12-464.  The case represents a complicated but narrow legal issue regarding the scope of a defendant’s right to challenge an order seizing property that the government claims is subject to forfeiture when the defendant asserts that the property is necessary to pay legal fees.  Typically, these seizure orders come during an ex-parte hearing where the government needs to show property is subject to forfeiture based on probable cause.  Those assets are then frozen until the conclusion of an underlying criminal proceeding.  The Federal Circuits permit defendants to challenge the traceability of those assets in post-indictment, pretrial Jones-Farmer hearings.  The Circuits are split, though, as to whether a defendant may challenge the evidentiary support and legal theory of the underlying charges or only the traceability of the property the government claims is subject to forfeiture.  

Sunday, July 7, 2013

We Live in This Society, Lets at Least Be Real About It

In 2009, North Carolina enacted the Racial Justice Act (RJA) in an effort to combat implicit racial bias through the use of several possible measures, most significantly, statistical evidence. Later in 2012, the legislature amended the Act aiming to address what appeared to be only explicit bias, in contrast to its original purpose. Under the RJA, courts were permitted to commute the sentences of death row inmates to life in prison without the possibility of parole, upon a showing of racial discrimination.

Friday, June 21, 2013

Murder or Manslaughter: California’s Standard for Provocation

What kind of provocation will suffice to constitute heat of passion and reduce a murder charge to manslaughter in California?  This is the question the Supreme Court of California answered on June 3, 2013, in People v. Beltran.  The government argued that the provocation must be of the sort that would cause an ordinary person of average disposition to kill.  However, the court rejected this argument, relying on the same rationale it adopted nearly one hundred years ago in People v. Logan[1].  The court held that provocation into the heat of passion is sufficient to constitute manslaughter only when an ordinary person of average disposition “would be induced to react from passion and not from judgment.”

Friday, June 14, 2013

Jerry Lee Jenkins: Wrongfully Convicted, Never Gave Up

June 7, 2013 is a day Jerry Lee Jenkins will always remember.  It was the day he joined over three hundred other men and women who were exonerated with the use of post-conviction DNA testing.  Mr. Jenkins had been fighting to prove his innocence since he was wrongfully convicted in 1987 for the brutal rape of a young woman in Waldorf, Maryland.  On the evening of February 6, 1986 the woman, a real estate agent, was at a model home when a man came in, concealed his face with a stocking and pulled a knife on her.  The man covered the woman’s face and proceeded to rape her.  The woman was able to get a partial glance at his face.  The woman would later admit at a photo lineup with Mr. Jenkins and to the jury that Mr. Jenkins looked like the man who attacked her but she was not sure it was him.  An expert from the FBI testified at trial that Mr. Jenkins was within four percent of the population that could have contributed to the biological material left at the crime, which is still a large pool of possible offenders.  Mr. Jenkins was convicted regardless. 

Friday, June 7, 2013

DNA Testing the Next Chapter - The Supreme Court's Ruling in Maryland v. King

On June 3, 2013 the Supreme Court issued its 5-4 opinion in Maryland v. King, holding that when a suspect is arrested with probable cause for a serious offense it is a reasonable search for the officers to collect a DNA swab from the suspect.  Writing for the majority, Justice Kennedy analogized the DNA swab to fingerprinting and photographing as legitimate and routine police booking procedures.  The case before the Court involved Mr. King who, in 2009, was arrested for first and second-degree assault  and had a DNA sample taken as part of the routine booking procedures for serious offenses in Maryland.  Maryland law allows DNA samples to be taken from arrestees charged with violent crimes, burglaries, and attempts to commit either a violent crime or burglary. Md. Pub. Saf. Code Ann § 504(a)(3)(i) (Lexis 2011).  The DNA sample was matched to an unsolved rape case from 2003, and Mr. King was subsequently charged and convicted for the 2003 rape.  Mr. King moved to suppress the DNA evidence as it violated his Fourth Amendment rights, and the Maryland Court of Appeals agreed with Mr. King finding that the DNA swab, in this context, was an unreasonable search.  The Supreme Court reversed the Maryland Court of Appeals’ decision.

Friday, April 19, 2013

Can Silence = Guilt in Pre-Arrest, Pre-Miranda Questioning?

On Wednesday April 17th, 2012 the Supreme Court heard oral arguments in the case Salinas v. Texas.[1]  This case will test an issue that has deeply divided the circuits—whether, even before an arrest, an individual has the right to remain silent during an interview with police, and suffer no legal consequences from this action.   So far, ten lower federal and state courts have ruled that the Fifth Amendment does apply to silence before arrest, and before police have the duty to give Miranda warnings, with about as many lower courts ruling that it does not. 

Tuesday, April 16, 2013

Article 60 of the Uniform Code of Military Justice: Is Hagel’s Proposed Change an Appropriate Response?


On April 8, 2013, new Defense Secretary Chuck Hagel announced[1] that he has ordered the Pentagon to prepare legislation to Congress that would change Article 60 of the Uniform Code of Military Justice (UCMJ).[2]  Sec. Hagel wants to amend the UCMJ to take away the ability of convening authorities to change the findings of a court-martial for major offenses that would normally require a court-martial. A convening authority is the military officer responsible for appointing court members and the military judge for a court martial. Sec. Hagel also wants to require convening authorities to provide written decisions for their decisions to overturn minor offenses.  Sec. Hagel’s statement said “[t]hese changes . . . would help ensure that our military justice system works fairly, ensures due process, and is accountable.”

Thursday, April 11, 2013

An Analysis of the Counterfeiting Problem

On March 28, 2013, Suffolk County officials busted five suspects of an international counterfeiting ring.[1]  The ring sold fashion knockoff items of brands such as North Face, Uggs, Coach, Louis Vuiton, Tory Burch, Michael Kors, Oakley, Kate Spade, Nike, Prada, Tiffany, and other brands stored in Queens facilities.[2]  Every imported item, manufactured in China, was a counterfeit.  All five suspects have been indicted on conspiracy and trademark counterfeiting charges.[3]  This recent news event is an example of direct anti-counterfeiting efforts to fight the counterfeit market.  The fashion industry is one of many industries to have fallen prey to counterfeiting, but legislation and action by the courts and law enforcement have directly impacted the effects and attempts of market penetration by counterfeiters.  This is important because counterfeiting, if expanded to a large scale, can create hazards and a destructive environment –such as when the New York City Metropolitan Transit Authority unknowingly bought counterfeit trains from a manufacturer that ended up falling off the tracks.

Friday, April 5, 2013

Cell Phone Tracking: “Hello… is this Uncle Sam?”

On March 28, 2013, an Arizona federal court heard arguments regarding the admissibility of incriminating evidence collected by the FBI using a sophisticated cell phone tracking device, the “Stingray,” in the case of Daniel Rigmaiden.[1]  In 2008, Daniel Rigmaiden was arrested for his alleged involvement in organizing a multi-state operation to defraud the IRS.  Raigmaiden and his conspirators allegedly used approximately 175 different IP addresses to file over 1,900 fraudulent tax returns, and made over $4 million in the process.[2]

Tuesday, April 2, 2013

Dog Sniff at Home Declared a 4th Amendment Search

On March 26, 2013, the Supreme Court decided Florida v. Jardines, affirming the Florida Supreme Court’s 5-4 decision that a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment.[1]  This case follows closely behind Florida v. Harris, where the Court in February ruled that an alert from a well-trained narcotics detection dog certified to detect illegal contraband is sufficient to establish probable cause for the search of a vehicle, reversing the Florida Supreme Court.[2]  The decision in that case was unanimous.

Special Coverage: Should Marriage be Sex-blind?

 The Supreme Court held oral arguments for two same-sex marriage cases this past Tuesday and Wednesday.  Both cases have drawn so much attention that people started to line-up in the front of the Court the Friday prior.  Interestingly, not everyone in line wanted to be part of the historic moment; instead, some of them were paid to be there so interested parties could get the limited seats to the courtroom on the day of the argument—this is the first time that people line up three days in advance at the Supreme Court.[1]  Clearly, this shows the historic prominence of these two cases. 

Friday, March 29, 2013

Should Strict Liability for Knowledge of Possession be Enough for a Conviction?

On March 15th, 2013, the Massachusetts Supreme Court ruled in Commonwealth v. Romero[1] that the driver of a vehicle, who knew a passenger had possession of a firearm, could not be held criminally liable based on the driver’s knowledge alone.  In Romero, the defendant was charged with possession of a firearm and a jury found him guilty.  However, the defendant did not have physical possession of the firearm.  The firearm was physically possessed by a passenger in the defendant’s vehicle.

Tuesday, March 26, 2013

Elmo Puppeteer Charged with Fourth Underage Sex Accusation

On March 19, 2013, Kevin Clash, most famously known for his role as Elmo’s Puppeteer, has been charged with his fourth underage sex accusation.  Since the allegations arose, Clash has resigned from his role as Elmo’s Puppeteer.[1] Clash is accused by Sheldon Stephens, 24, of “baiting him into an X-rated affair fueled by crystal meth when he was just 16.”[2] Stephens claims that Clash sent chauffeurs to deliver Stephens from his home in Harrisburg, Pennsylvania to New York for crystal meth sex parties.  Stephens’ lawsuit accuses Clash of sexual battery for child sexual abuse, travel with intent to engage in illicit sexual conduct, and coercion and enticement to sexual activity.[3]  The suit states, “While in the apartment, Clash smoked crystal meth while engaging in sexual activity with Sheldon.  Clash also gave Sheldon ‘poppers’ as a sexual aide. While Clash had sexual contact with Sheldon, the chauffer watched and masturbated.”[4]

Friday, March 22, 2013

Are Mandatory Minimums Really a Thing of the Past?

Snitch[1], a movie dealing with mandatory minimum sentencing was released on the big screen last month.  The movie was based on true events surrounding the lives of James Settembrino[2] and his son Joey Settembrino[3].  The movie depicts a situation where eighteen year old Jason Matthew was an unwilling participant in a drug operation.  Jason’s friend set him up by sending him a large amount of illegal drugs through the mail.  When Jason retrieved the package he was arrested and charged with the distribution of narcotics.  Jason was facing up to thirty years in prison.  John Matthews, Jason’s father, agreed to become a snitch and set up drug dealers for the government in order to reduce his son’s sentence.  While the movie arguably involved bad acting and a poor portrayal of our criminal justice system, it did create a platform for the discussion of mandatory minimum sentencing.