Remembering and Thanking Veterans on Memorial Day - A Call for "Good Works" Sentencing Consideration
Especially, during a time of war we should all be thanking the veterans.
Check out Professor Berman's post about Veteran's and Sentences:
http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/thinking_about_.html
Personally, I agree with Professor Berman, that our veteran's deserve some kind of special consideration on sentencing. It seems like common sense that a person's good actions should be considered as well as their bad actions.
After all, we enjoy the freedoms we have in the country due to the many sacrifices of veterans both living and deceased. We should all be thanking the veterans, especially during a time of war.
Why should only the bad actions be considered?
Some related posts by Professor Berman:
My amicus effort to support our troops
Should prior military service reduce a sentence?
Lovely Rita, SCOTUS case...
Why isn't there a prior good works guideline?
A Call for "Good Works" Sentencing Consideration - Remembering Veterans on Memorial Day
Mitigation of Punishment Arguments by Conservatives
A decade ago, the Supreme Court stressed that “[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United States, 518 U.S. 81 (1996).
Attorney General Alberto Gonzales during his confirmation hearings last year stressed that prison is best suited "for people who commit violent crimes and are career criminals." Gonzales also asserted that a focus on rehabilitation for "first-time, maybe sometimes second-time offenders ... is not only smart, ... it's the right thing to do;" in his words, "it is part of a compassionate society to give someone another chance." Similarly, President George W. Bush in his 2004 State of the Union Address spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance."
You can download the Professor Berman's full amicus brief below http://sentencing.typepad.com/sentencing_law_and_policy/files/final_lett_amicus_as_filed.pdf
Check out Professor Berman's blog: http://www.sentencing.typepad.com/sentencing_law_and_policy/
The Race to Incarcerate - Law Review Article
http://moritzlaw.osu.edu/osjcl/Articles/Volume2_2/WalterCReckless/OSU-Reckless-PDF-3-17-05.pdf
WALTER C. RECKLESS MEMORIAL LECTURE
Thinking About Prison and its Impact in the Twenty-First Century
607 OHIO STATE JOURNAL OF CRIMINAL LAW - Vol 2:607 608
By: Marc Mauer*
As is now well known, the United States has attained the dubious distinction of maintaining the world’s largest prison population, both in absolute and per capita terms. This “race to incarcerate,” a record three decade rise in imprisonment, has resulted in a combined prison and jail population of 2.1 million, yielding an incarceration rate of more than 700 per 100,000 population. This rate surpasses that of Russia (which in recent years has achieved substantial reductions in its inmate population through widespread amnesties) and is about five to eight times the rate of most other industrialized nations. Thus, we have the incongruity of the wealthiest society in human history using prison to a degree previously unknown in any democratic society. Regardless of one’s political ideology or beliefs regarding crime control policy, this should be a disturbing development to all.
Analysts contend that these developments have their origins in one or more interrelated political dynamics. These variously include a “tough on crime” movement more focused on the electoral prospects of political leaders than actual social impact; an increasingly conservative public and political climate; a means of social control of the African American population following the demise of the Jim Crow era; and an attempt by a postmodern state to impose a sense of authority over seemingly intractable social disorder. These theoretical approaches are all worthy of analysis, but let us assume for the moment that the goal of mass incarceration has been as stated by its proponents; that is, to enhance public safety through one or more of the various ways that incarceration can produce reductions in crime.
My goal in this analysis is not to address this issue in great detail, but to propose some general findings. I think it is fair to state, based on the evidence and analyses developed by key researchers in the field, the following propositions:
• Mass imprisonment has had an impact on crime, but one that is considerably less than its proponents have claimed.
• To the extent that prison produces significant impacts on crime, we are now well past the point of diminishing returns in this relationship.
• Even to the extent that prison produces reductions in crime, this finding does not tell us whether incarceration is more effective than other social interventions in producing these outcomes.
• Approaches to reducing crime that do not involve additional investments within the criminal justice system have received less attention in the research community and are rarely a subject of sustained analysis in political debate.
Continued analysis of these relationships is important, of course, in order to aid in the development of public policy. But as we have entered the era of mass imprisonment, a new set of dynamics has come into play that calls for an understanding of the ways in which the effect of prison on society is both quantitatively and qualitatively different than in previous times. These effects have been conceptualized as collateral consequences of imprisonment, and they take the form, as my colleagues and I have described in our recent book, of “invisible punishments.”1 They are “invisible” both in the sense that they are rarely acknowledged in the courtroom when they are imposed, and equally rarely assessed in public policy discourse. These themes, and their effects on individuals and communities, should be the subject of careful scrutiny by observers of prison dynamics.
Children Should Remain in Juvenile Court - Recommends Reports of CDC & MacArthur Foundation
From the National Association of Criminal Defense Lawyers Association:
Recently, organizations from the MacArthur Foundation to the Centers for Disease Control and Prevention (CDC) examined this issue and reached the same conclusion: Transferring children to the adult system is a lose-lose situation for the child and society, and should be done sparingly.
Confining children with adult felons places them at far greater risk of harm than confining them in juvenile facilities. Such youth are far more likely to be sexually assaulted, to be beaten, to be attacked with a weapon, and to commit suicide than those in juvenile facilities.In adult facilities, there are also much more limited educational and counseling opportunities to rehabilitate children so that they can successfully re-enter society. Even if juveniles are not confined with adults, the stigma of an adult conviction will still follow a child through life. While juvenile records are accorded some measure of confidentiality, adult convictions are not. Adult convictions place significant barriers to educational and occupational opportunities in young people's paths -- making it much more difficult for them to get jobs or college degrees. Additionally, trying youth as adults actually harms public safety rather than promoting it. No Enhancement for Public Safety - A report issued last month by the CDC's Task Force on Community Preventive Services found "strong evidence that juveniles transferred to the adult justice system have greater rates of subsequent violence than juveniles retained in the juvenile-justice system." The task force concluded that transferring youth to the adult criminal system was "counterproductive for the purpose of reducing juvenile violence and enhancing public safety. "When terrible events happen, it is natural for us to seek retribution. When the offender is a child, it is tempting to ignore the "technicality" of age and focus on the child's "adult" actions in fashioning the punishment. However, the latest scientific research into the physiology of the human brain has shown what parents -- and the early juvenile court proponents -- intuitively knew all along: The parts of the brain in which decision-making and impulse control are focused are not yet fully developed in teenagers. Young people often make foolish decisions -- not because they are evil and beyond redemption, but because they are young. Dealing with the tragic consequences of the young person's poor judgment is exactly why the juvenile court was established.Let's not turn back the clock and throw away our children's future.
Ten Things Anyone Can Do to Help Exonerate Innocent People
http://www.innocenceproject.org/fix/What-can-I-do.php
Ten Things Anyone Can Do To Help Exonerate Innocent People and Prevent Wrongful Convictions
1. Get connected to stay informed and take actionJoin the Innocence Project's online community to receive regularupdates, action alerts, in-depth news and analysis, and otherinformation. Registration is free. Once you register, you can e-mailyour friends, family and colleagues to ask them to sign up, too.
2. Donate to the Innocence ProjectThe Innocence Project is a nonprofit organization that relies onfinancial support from individuals and foundations.
3. Build relationships with elected representativesCall or meet with your state and federal representatives well beforethe legislative session starts and discuss your concerns. By simplyintroducing yourself to your legislators and their staff before thesession starts and providing a brief overview of innocence-relatedpolicy concerns, you can establish useful relationships with themand help them see the value of supporting legislation that wouldprotect the innocent. When the session starts, they may reach out toyou or take your call because they know you're actively involved inthese issues. For more information and practical tips, see "How toTalk About Innocence-Related Issues with Elected Officials,Organizations, Media, and Others."
4. Connect with a local Innocence Network organizationThree dozen organizations around the country belong to the InnocenceNetwork, and many of them work on these issues at the state andlocal levels. You may be able to help with their policy reformefforts, their community outreach, or other aspects of their work –in a professional capacity or as a volunteer. To find a localInnocence Network contact, go to www.innocencenetwork.org.
5. Reach out to the mediaWhen a local or national media outlet runs a story about anexoneration or the causes of wrongful convictions, call or write tothe reporter to say you are pleased to see the coverage andinterested in seeing additional stories on these issues. Share yourperspective and thoughts about why wrongful convictions must bediscussed and addressed. Write letters to the editor in response toarticles or editorials so that the media – and policymakers who arein a position to help prevent wrongful convictions — know that thepublic is concerned about these issues. For more information andpractical tips, see "How to Talk About Innocence-Related Issues withElected Officials, Organizations, Media, and Others."
6. Become more knowledgeable about wrongful convictions – and spreadthe wordThere are scores of books, films, television specials and otherresources that can deepen people's understanding of the causes ofwrongful convictions, the need for reform, the challenges peopleface after exoneration and other issues. Spend some time learningmore about the issues, and then share books or films with yourfriends, coworkers or community members (some of them are greatgifts!). View a list of list of films and TV specials on the issuessurrounding wrongful convictions.
7. Engage allies in addressing wrongful convictionsEveryone is impacted by wrongful convictions, but some individualsand groups aren't yet involved in preventing injustice. Ask yourfriends, colleagues and community organizations to get involved whenpolicy reforms are being discussed; encourage them to join theInnocence Project's online community. Offer to speak about wrongfulconvictions at a local Rotary, Kiwanis, or similar civic groups'meeting. You can address the group yourself, or you can ask a localInnocence Network representative or professor to speak. During thespeech, encourage people to become more actively involved in theseissues.
8. Work with prisoners and their families in your communityMany exonerees and their families talk about how isolated andignored prisoners feel. Find a local group that works with prisonersand volunteer to get involved however you're needed – whether it'shelping in a prison organization's office or providing support toprisoners and their families. For links to organizations providing arange of services, go to http://prisonactivist.org/links/. Forinformation to share with prisoners (or their families) seeking tocontact the Innocence Project about a case, click here.
9. Learn about local procedures and help improve themMany of the causes of wrongful convictions are decided locally. Forexample, policies and procedures about conducting lineups andrecording interrogations are often set by city and county agencies.As a concerned community member, you have the right to know what thelocal practices are. Contact the city police, county sheriff and/orother local agencies to find out what they're currently doing andwhat the process is for evaluating and revising their policies. Iftheir procedures and policies are not adequate for preventingwrongful convictions, urge decision-makers to change them and reachout to Innocence Network groups to let them know what you'velearned. For more information and practical tips, see "How to LearnAbout Local Law Enforcement Procedures and Help Improve Them."
10. Host a local fundraising and educational eventYou, your friends or a group you belong to can organize an event toraise money for the Innocence Project and educate people aboutwrongful convictions. Some people hold small house parties for sixpeople, while others organize events for 100. Whatever you can dowill help spread the word and support our work.
Must officers administer Miranda warnings before asking consent to search?
According to most criminal defense lawyers, this is still good law, although few Judges will follow it.
Note: Article written by law enforcement counsel
You got nothing to lose and you might renew Oklahoma State law........Oklahoma Bar JournalArticles Vol. 72, No. 15, May 12, 2001 SCHOLARLY ARTICLE
http://www.okbar.org/obj/articles_01/sa051201.htm
Must Police Officers Administer Miranda Warnings Before Asking forConsent to Search?By Scott Rowland who at the time served as Oklahoma Bureau of Narcotics and Dangerous Drugs Control General Counsel, heading up the Bureau's Legal section.Abbreviated / shortened version of article above: There is, perhaps, nothing more axiomatic in criminal law than the rule that police interrogating one who is in custody must advise them of certain constitutional rights, and that if they ask for a lawyer or exercise their right to remain silent, interrogation must cease.1 If a person in custody is not advised of his or her rights, or if they are so advised, invoke those rights and are subsequently questioned in derogation of them, any statements they make will besubject to suppression.2 What is not nearly so clear for criminal lawyers in Oklahoma is whether asking for consent to search is treated as interrogation so that any consent given after a violation of Miranda would also be subject to suppression just as if it were an incriminating statement. Unfortunately, the state of the law in Oklahoma is much more turbid, dating principally to Schorr v. State, a 1972 decision of theOklahoma Court of Criminal Appeals.3 Although subsequent rulings have seriously undercut the legal moorings of Schorr, the court's failure to explicitly overrule it has allowed a wake of confusion spanning nearly three decades. Dennis v. State, 1999 OK CR 23, 990 P.2d 277 (Okla. Crim. App. 1999) (holding that, unlike the Fifth Amendment, Oklahoma Constitution does require a suspect during custodial interrogation be told of the presence of his lawyer on the premises).The Fitful Evolution of the Oklahoma Rule In Schorr, [Schorr v. State, 499 P.2d 450 (Okla. Crim. App. 1972).] the defendant was given a facially defective version of the Miranda warnings, and subsequently consented to a search of his van which yielded marijuana. The Court of Criminal Appeals reversed his conviction. "We must legally conclude that a consent to search, givenduring custodial interrogation must, as a matter of law, be precededby a proper Miranda warning."8 Specifically, the wording used by the officer in giving the warning indicated to the defendant that alawyer would be appointed when he went to court; this was found to be infirm, since Miranda requires advising the suspect a lawyer will be appointed prior to any questioning.9
The implied holding of this caseis that asking for consent to search is the functional equivalent of interrogation, although this phrase is not used by the Schorr Court.The Schneckloth case does not squarely address whether Miranda warnings are required before asking for consent to search, and infact by its terms is limited to cases where the one being asked to give consent is not in custody.25 However, the opinion does stress repeatedly that in assessing the totality of the circumstances, no single factor should be controlling, and thus an over whelmingmajority of state courts, and all federal appellate circuits, employ Schneckloth's "totality of the circumstances" test for voluntariness, and view the administering of Miranda rights as one factor to be weighed in that analysis. The totality of the circumstances test is also used in Oklahoma to test the voluntariness of consensual searches, but a requirement of Miranda warnings if the suspect is incustody appears to be an additional burden of the State.The first of these post-Schorr cases was Case v. State 10 in which aconsent to search was found to be involuntary because there was no evidence in the record that he had been given the proper Mirandawarnings prior to giving the consent while he was in custody. "It is clear that the defendant was in custody and under interrogation atthe time the Sheriff sought permission to search the truck. There isno evidence in the record that he was informed of his Miranda rights as required by Schorr v. State."11"While it is true that a request for consent to search made after defendant requests counsel is improper as it is the functional equivalent of express questioning, see Kreijanovsky v. State, 706P.2d 541, 545 (Okl.Cr.1985), appellant has failed to establish that he requested counsel."
Conclusion: In summary, the current body of law in Oklahoma surrounding this issue is ambiguous at best. For example, a District Court Judge facedwith the issue in a criminal case might see the remnants of Schorr,Kreijanovsky, and Trice and conclude that the Miranda doctrine has full application to law enforcement requests for consent to search.But further research would yield an apparently opposite view point by the Court of Criminal Appeals in Cannon, and still further research would show Oklahoma's practice starkly different from federal caselaw. This last point alone may cast severe doubt on the continued life expectancy of the cases following Schorr, given the OklahomaCourt of Criminal appeals' long history of interpreting Oklahoma's Constitution closely in accord with the U.S. Constitution and caselaw on Fourth and Fifth Amendment protections.32
Prison Boot Camps - What We Have Here is a Failure to Cum-municate!!!
National Institute of Justice Study Conclusion Prison Boot Camps Ineffective OR What We Have Here is a Failure to Cum-mun-nicate!!! Cited below: RID - Boot Camps banned in Florida by Gov. Jeb Bush in 2005
History: http://en.wikipedia.org/wiki/Boot_camps
Boot camps were banned in Florida on June 1, 2005, through legislation signed by Florida Governor Jeb Bush after 14-year-old Martin Lee Anderson was murdered by drill instructors who forcibly inserted ammonia tablets into his nose . Anderson attended Bay County Boot Campin Panama City, Florida.[1] After the mid-1990s, the number of boot camps declined. By 2000, nearly one-third of State prison boot camps had closed--only 51 camps remained.
The average daily population in State boot camps also dropped more than 30 percent.[3]
Boot camps originated in the South ---- Georgia, Arkansas, Florida, Texas --- NOT considered progressive sources of penal reform. What we have here is a failure to cum-mun-ni-cate !!!
They don't teach you how to get a job or job skills or solve your mental problems or learn to read but they do teach the meaner to be meaner and the tougher to be tougher. Sir, yes sir or Mam, yes mam. The National Institute of Justice conducted a 10 year long study of boot camps and their report is available at the web site: http://www.ojp.usdoj.gov/nij
or http://www.ncjrs.gov/txtfiles1/nij/197018.txt
or www.ncjrs.gov/pdffiles1/nij/197018.pdf
The National Institute of Justice (NIJ) sponsored an analysis of research conducted over a 10-year period beginning in the late 1980's. This analysis concluded that [See above link for the report dated (2003)] - it concluded: Mixed Results: Participants reported positive short-term changes in attitudes and behaviors; they also had better problem-solving and coping skills. With few exceptions, these positive changes did not lead to reduced recidivism.
The boot camps that did produce lower recidivism rates offered more treatment services, had longer sessions, and included more intensive post release supervision. However, not all programs with these features had successful results. Under a narrow set of conditions, boot camps can lead to small relative reductions in prison populations and correctional costs. Adult recidivism. A multisite evaluation sponsored by NIJ could not establish a difference in recidivism between adult boot camp graduates and comparison group members, although the research indicated that more treatment services, longer programs, and intensive post- release supervision may lower recidivism.
[4]Other research on adult boot camps in Georgia and Illinois found no difference in recidivism.[5] An evaluation of Washington's Work Ethic Camp[6] (WEC) actually found higher recidivism, from high rates of revoked parole. Most of these were technical violations.[7] One study found that Oregon adult boot camp graduates had significantly lower recidivism than the comparison group, but results were flawed because camp dropouts were excluded from the analysis.[8]After the mid-1990s, the number of boot camps declined. By 2000, nearly one-third of State prison boot camps had closed--only 51 camps remained. The average daily population in State boot camps also dropped more than 30 percent.
[3]NIJ evaluation studies consistently showed that boot camps did not reduce recidivism regardless of whether the camps were for adults or juveniles or whether they were first-generation programs with a heavy military emphasis or later programs with more emphasis on treatment. NIJ-sponsored boot camp researchers agree that correctional boot camps might achieve small relative [14] reductions in prison populations.
Boot camps could reduce the number of prison beds needed in a jurisdiction, which would lead to modest reductions in correctional costs. Other countries have been closely watching the boot camp system in the US but so far have been slow to copy it, if at all.
In Canada and Europe many see US society as highly militarised for which the military style boot camps are just another example. After having shed a very militaristic past, Europeans tend to be quite wary of military influence in civil society.
As well, the tactics employed in most boot camps are considered to infringe on the human rights of the affected and to be rather totalitarian. Therefore in Canada participation in boot camp programmes are voluntary, so as to avoid any challenges under the Canadian Charter of Rights and Freedoms under which treatment at boot camps could be seen as an infringement on a youth's right to not be subject to cruel and unusual punishment and to ensure security of person. Canada started a boot camp projectfor non-violent juveniles with subtle but distinct differences from the American models. The first one was opened in 1997 in Ontario. Unlike in the US system it is not possible to trade or shorten a jail sentence with a significantly shorter boot camp programme. Canadian boot camps do not have the time frame of 90 to 180 days and they are restricted to juveniles up to the age of 17 and not yet open for female offenders. The judges do not directly possess the authority to send a youth to a boot camp. They may impose a sentence of secure or open custody. The latter is defined as, "a community residential centre, group home, child care institution or forest or wildernesscamp . . .". Once an open custody sentence is granted, a correctional official decides whether a sentence is served in a boot camp programme. But the ultimate decision rests with the young person and the decision is made purely on the merits of the programme because the time served remains the same. The Canadian system is too young to show any comparable results but research has been done among US boot camps with different emphasises, e. g. more on drug treatment or education than solely on military drill. According to the findings treatment has a slightly positive impact on the reduction of recidivism over strict discipline. However, altogether there are no research findings in favour of boot camps in light of any of the initial intentions.
Recidivism rates in the US among former prison inmates and boot camp participants are roughly the same.
Yet, the effects of boot camps are controversially disputed, some surveys claiming lower re-offence rates, others showing no change as compared to persons serving normal time.
Surveys also show different results concerning the reduction of costs. Critics add, that the emphasis on authority can only result infrustration, resentment, anger, short temper, a low self-esteem and aggression rather than respect.
According to a report in the New YorkTimes there have been 30 known deaths of youths in US boot camps since 1980.
Winning Criminal Defense Themes - Prepare the End Game First
The general idea for this comes from the NACDL seminar materials.From: "What it Takes to Win Your Case" - "Themes, Theories, andFacts Beyond Change" by Richard Tegtmeier, Colorado Springs, CO,presented Nov. 2002, in Chicago, IL.
It suggests the idea of preparing for a trial by:If you know where you are wanting to go or the final destination,then you can determine what you need to do to get there or whatroute to take.
Where do you want to go?
If you know what you want to say in the closing argument, then youwill know what you have to prove to get there.
1. First look at the jury instructions that you want the jury to begiven for your client's theory of the defense. Don't try to force adefense into the trial if it doesn't ring "true." Be consistent. Ifyour client ran a red light which resulted in a death but was notintoxicated, admit your client ran a red light which resulted indeath but that he was not intoxicated. Be consistent. (Manslaughter -felony vs. Negligent Homocide - misdemeanor)
2. Argue a powerful defense and not a negative defense. Don't argue --- the state failed to prove it's case---- which implies --- myclient is guilty but let him off because the state failed to provethe case ---Instead argue that the client lacks the intent or that they have thewrong man or that he is innocent or innocent of the charged offense.However, what-ever the defense has to ring true to the jury and beconsistent with the facts.When you look at the facts use your own intuition and your emotions.Most juries react emotionally to the facts. You must anticipatetheir emotions. Use your intuition and your emotions. You may wantthe jurors to "associate" with the emotions of your client. Successwith a jury can be related to how well the jury relates to theclient's reactions, decisions, and feelings in the case.
3. Next go to closing argument. Ask yourself what you want to beable to tell the jury when you stand to give them the reasons forfinding your client not guilty.Give a synopsis of your closing to non-lawyers and aks them their opinion. What they think of your theory and why people would reactthe way your client reacted.When you run these questions by ordinary people, you will see the natural reactions of people to life circumstances and their gut-level reaction to the case will give you insight that is GENUINE,CLEAR, AND HONEST.
If you know what you want to say in the closing then you will knowwhat you have to prove to get there.There are certain "facts beyond change" or core facts that cannot bechanged in any case. Your theory of defense must be consistent withthese "core facts."Jurors decide cases based upon emotions or their gut-levelinstincts. Every case has a "dominant" emotion. Determine what that dominant emotion may be or could be.
If the theory is self defense --- ask questions during jury selection relating to that dominant emotion ---Tell your investigator what your theory of the defense is and whatyou expect to argue during closing argument and what jury instructions you anticipate so that the investigator can find facts in support of the theory of defense.
We live in a world of 15 second sound bites and themes and the juryexpects them.Decide what your theory of defense will be and design some short sound bites and themes for the jury. Be consistent with the corefacts and the emotions.
Most juries decide the cases primarily based on instinct and emotions. The law and the facts are secondary.Tell the jury your defense theme and defense sound bites just like you would talk to a friend. Be human.
Revocation May Be Improper When New Case Dismissed
See the Thompson v. State case - link: http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=59149
See the Hole v. State case - link:
http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=59130
See: Thompson v. State, Okl.Cr., 487 P.2d 740 (1971) and Hole v.State, Okl.Cr., 486 P.2d 645 (1971). In both of these cases the only evidence presented at the revocation hearing was a judgment and sentence on a conviction during a period each defendant was on probation for a prior offense. Subsequently, each conviction, the subject of the judgment and sentence admitted at the revocation proceeding, was reversed on appeal. This Court held the revocation being solely predicated upon the conviction, the judgment and sentence in evidence and that conviction being reversed, the orderrevoking the suspended sentence should be vacated as that order is not supported by the evidence.
Above is from: Phipps v. State, 1974 OK CR 219, which upheld therevocation even though the underlying basis - a new criminal case was dismissed for lack of evidence --- had a revocation hearing where the court heard witnesses testify as to the underlying new criminal offense even though it was dismissed without a trial forlack of evidence.
See the link: to Phipps:
http://www.oscn.net/applications/oscn/deliverdocument.asp?id=368&hits=
Summary of Search Incident to Arrest Law
From Barry Derryberry:
The good OCCA cases on search incident to arrest are outlined below.
If the teenager is sitting in the car when the cops come up and say we're arresting you for curfew violation, that would appear to be within the core of the search incident to arrest (hereafter: "SIA") doctrine. If he's outside the car, the case can be likened to Fields (below) & others you could find around the country, where courts have held the space the arrestee occupies is the parameter of the search, i.e. can't go to adjacent rooms under SIA doctrine. However, a SCt case decided a couple of years ago kills this argument (I think it's Thornburgh), where arrest occurred when the motorist was at the rear of the vehicle, and SCt held that permitted search ofthe entire vehicle. Your stand is on the below OCCA cases, which are not automatically abrogated by SCt rulings, and independent Art.II Sec. 30. You might have an argument that the cops created the exigency, which is a no-no, because they could have let the drivergo with a ticket and that would have resolved the concern about thekid accessing a weapon in the car.Defendant exits vehicle prior to arrest. Fields v. State, 463 P.2d1000 (Okl.Cr. 1970) After being stopped by the police for no tag light, Def exited vehicle and approached the officers' vehicle. One officer frisked the Def while the other searched the vehicle. Gun found in the glove compartment. Incident to a lawful arrest, the arresting officer may search the person, as well as the immediate area within his control, forweapons he might be able to reach or for other evidence or contraband he might seek to destroy:The area of permissible search will be governed by the proximity of the arrestee to the point of search and the possibility of the arrestee having access to the area or place searched while he is inthe custody of the arresting officer. The search was unjustified because the Def had already left hisautomobile when arrested and searched by the officers. If the Defhad remained in his car, a search of the interior of his automobilewould have been justified. Therefore, the search extended beyond lawful limits in connection with an arrest. Defendant handcuffed and placed in patrol car at time of search.Norton v. State, 501 P.2d 877 (Okl.Cr. 1972). Def and his companion arrested & confined in separate police carswhen the officers began search of Def's car. Officers seized a nailbar which linked the Def to a recent burglary. Search, clearlybeyond the reach of the Def as he sat in the patrol car, exceeded the area in which it was reasonable to search for a weapon.(Thompson v. State is similar)Def arrested inside of home, but officers search vehicle indriveway. Sitsler v. State, 603 P.2d 1142 (Okl.Cr. 1979) Def had been arrested inside of his home and transported to the jail.Officers left Def's vehicle in the driveway unattended for twenty tothirty minutes before returning to search the vehicle. The officers seized a knife which they believed to have been taken during arecent robbery. Def was subsequently convicted of robbery with afirearm. OCCA: Chimel limits such a search to the arrestee's person and the area "within his immediate control--construing that phraseto mean the area from within which he might gain possession of a weapon or destructible evidence." When a person is arrested insideof his house, a car parked in the driveway cannot be considered tobe within the arrestee's immediate control. Therefore, the searchwas illegal and the seizure of the knife was also illegal.Def restrained and car locked. Castleberry v. State, 678 P.2d 720 (Okl.Cr. 1984). Both Defs were restrained - one handcuffed, the other was on theground with an officer pointing a gun at him - at the time of thesearch. The officer took the Def's keys, unlocked the doors and trunk, and searched the car. As a result of the search, the officer seized cocaine from a Band-Aid box from the interior of the car andnarcotics from a suitcase found in the trunk.Since the car doors and trunk were locked, there was no danger ofthe Defs procuring a weapon or destroying evidence from the interiorof the car once the officer gained possession of the Def's keys. Therefore, search far exceeded the bounds of a permissible search ofthe area within his immediate control.
Limits on Material Witness Law - Article in OBJ
Shortcut to: http://www.okbar.org/obj/articles07/041407youngblood.htm
Oklahoma's Material Witness Law: Time for Change By Karen YoungbloodFrom the Oklahoma Bar Journal - April 14, 2007
On a cold day in January 1923, Joe Riddle was detained in the ChoctawCounty jail in Oklahoma where he remained until the Oklahoma Court ofCriminal Appeals ordered his release the following October.1 Nevercharged with a criminal act, Riddle's stay in the county jail cameabout because he witnessed Bill Johnson's unlawful sale ofintoxicating liquor. Riddle probably did not realize it at the time,but he was one of Oklahoma's more fortunate material witnesses. Oncehis case went to the Oklahoma Court of Criminal Appeals, the attorneygeneral sided with Riddle and agreed his detention was unlawfulbecause Johnson's liquor violation was not a felony.
Admission of Lab Reports in Violation of 6th Am - New Cases
http://confrontationright.blogspot.com/
In State v. March, 2007 WL 828156, the Missouri Supreme Court joinedother jurisdictions in holding that a lab report prepared for use inprosecution is testimonial. I believe this result is clearly correct, and appropriately the court did not appear to endure much angst in reaching it. The decision sharpens the conflict among thestates. The Supreme Court will have to resolve this matter.
Oregon Supreme Court holds admission of lab report violates right to confrontation
The Oregon Supreme Court decided (4-27-07) State v. Birchfield, holding that the trial court violated the accused's right underArticle I, sec. 11 of the state Constitution "to meet the witnessesface to face" when it introduced a lab report without presenting the testimony of the criminalist who prepared it or demonstrating his unavailability. The court also holds that a process giving heaccused the right to subpoena the witness is no substitute for theconstitutional right. The court does not reach contentions under the federal Constitution. Very nice result, crisply reached, immune fromfederal review, doesn't help set up a conflict for certiorari purposes. The decision leaves open the possibility that the court would saythat if the criminalist is available the report can come in even absent an opportunity for confrontation. But clearly that issue isnot reached in this decision.
CONFRONTATION AND THE PRELIMINARY HEARING (aka Excluding Lab Reportsfrom Preliminary Hearings without a Sponsoring Witness in Violationof Crawford v. Washington)by D. MICHAEL HAGGERTY, II
See:http://www.okbar.org/members/sections/criminal/news12.pdf
I. INTRODUCTIONThe right of confrontation was recently thrust back onto centerstageby the groundbreaking U.S. Supreme Court decision in Crawford v.Washington, 541 U.S. 36 (2004). In rejecting the standard foradmissibility of hearsay, at least for "testimonial" hearsay, whichit had created in Ohio v. Roberts, 448 U.S. 56 (1980), the Courtopened up questions regarding the admissibility of evidence whichhad been settled for nearly 25 years.
Adversarial System vs. Inquisitorial System
From the online encyclopedia - wikipedia.org
The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of the different advocates representing their party's positions and not on some neutral party, usually the judge, trying to ascertain the truth of the case.
The inquisitorial system that is usually found on the continent ofEurope among civil law systems (ie. those deriving from the Roman orNapoleonic Codes) has a judge or a group of judges who work together whose task is to investigate the case before them.
The adversarial system also disposes of the canard whereby lawyersare often asked how they can represent someone if they believe that person to be guilty (or innocent for that matter, although this might be a more difficult position): counsel must not deceive thecourt but his client is entitled to have the best presentation ofthe case laid before the tribunal and to have the evidence fully tested. As an accused is not compelled to give evidence in a criminal adversarial proceeding, he may not be questioned by prosecutor orjudge unless he chooses to do so. However, should he decide to testify, he is subject to cross-examination and can be found guiltyof perjury. As the election to maintain an accused person's 'rightto silence' prevents any examination or cross-examination of thatperson's position, it follows that the decision of counsel as to what evidence will be called is a crucial tactic in any case in theadversarial system and hence it might be said that it is a lawyer'smanipulation of the truth.
Certainly, it requires the skills of counsel on both sides to be fairly equally pitted and subjected toan impartial judge.Peter Murphy in his Practical Guide to Evidence recounts aninstructive example. A frustrated judge in an English (adversarial)court finally asked a barrister after witnesses had producedconflicting accounts, 'Am I never to hear the truth?' 'No, my lord,merely the evidence', replied counsel.It has also been argued that a trial by a jury of one's peers may bemore impartial than any government paid inquisitor and a panel of his peers. In the United States the right to a trial by a jury of one's peers who are common citizens is guaranteed by the UnitedStates Constitution. Furthermore, some countries with an inquisitorial system do use jury trials for some categories of crime. Interestingly, some countriessuch as Japan before 1943 which used to have a right to jury trial,rarely used them, as there is a popular belief that any defendantwho requests a jury trial has a case that is so weak that they arewilling to risk pleading their case before strangers rather than professional judges. Hence, jurors in those countries are very unsympathetic toward defendants. (Jury system in Japan was suspendedin 1943. In 2004, whole new lay-judge system was enacted in Japan and will be installed in 2009. In this system, 6 jurors and 3 judgeswill discuss and judge a case together.)
Articles on Oklahoma Criminal Law and Defenses
http://www.okbar.org/members/sections/criminal/default.htm
OBA Criminal Law SectionAbove is the link to the OBA Criminal Law Section newsletters which has great interesting articles on criminal law. Very interesting.
Forensic Sciences Web Sites
American Academy of Forensic Sciences http://www.aafs.org
American Academy of Forensic Examiners http://www.acfe.com
Society of Forensic Toxicologists http://www.soft-tox.org
American Board of Criminalists http://www.criminalistics.com/ABC
American Society of Crime Laboratory Directors http://www.ascld.org
Forensic Science Society http://www.forensic-science-society.org/UK
Association for Crime Scene Reconstruction http://www.acsr.com
Crime Scene Investigation http://www.crime-scene-investigator.net
Forensic Files http://www.courttv.com/onair/shows/forensicfiles
The Actual Innocence Database - Legal Research
The Actual Innocence Database - Legal Research
The law library at UT has compiled an Actual Innocence database,containing citations (and links) to current articles, scholarship andother materials regarding wrongful convictions.
The materials are classified into what are considered the primarycauses of wrongful conviction: Forensics/DNA;Eyewitness identification; False confessions;Jailhouse informants; Police and/or prosecutorial misconduct; andIneffective representation.
http://web.austin.utexas.edu/law_library/innocence/
