Archive for May, 2007
What is appropriate compensation for a wrongful conviction?
May 31st
James Tillman was exonerated a few months ago and last week, the CT legislature voted to compensate him $5 million. On the other hand, Alan Cortzer was denied $1.25 million in compensation by Florida’s legislature. So, this CSM story asks, what do states owe the exonerated? (HT: Corrections Sentencing)
This is a question that an increasing number of states have had to answer in recent years, with the good work of defense attorneys and the Innocence Project, brought about by an advancement in DNA technology and science. But are states adequately prepared to deal with the exonerated? Should there be any remuneration for those wrongfully convicted?
As DNA exonerations become more plentiful – and more publicized – some states are moving on the compensation front. Of the 200 men who have been exonerated based on DNA evidence, about 45 percent have received some sort of compensation, according to the Innocence Project, with amounts that range from $25,000 to $12.2 million.
Twenty-one states, along with the federal government and the District of Columbia, now have standardized compensation laws on the books – offering exonerees amounts ranging from $15,000 total to $50,000 per year of imprisonment. Thirteen states have introduced bills this year to either create or improve compensation for the wrongfully convicted. Some of those bills, like the one that gave Mr. Tillman $5 million, dealt only with individual prisoners, but other states are trying to standardize the compensation.
Texas, where 13 men have been exonerated in Dallas County alone, is considering a package of bills that would, among other things, raise the compensation amount from $25,000 to $50,000 per year of incarceration.
Vermont – which hasn’t yet had a prisoner exonerated by DNA evidence – has passed a comprehensive bill that would provide between $30,000 and $60,000 per year of incarceration as well as access to healthcare and reintegration services. It’s currently awaiting the governor’s signature.
Connecticut did have a bill proposed this session that would have studied the creation of a standardized system, but it didn’t make it past committee.
But these are states that are providing for compensation. What about those that aren’t, like Florida? What of the Alan Cortzers?
“In Florida, if you’re a parolee they give you $100 and a bus ticket,” says Michael Olenick, the Tallahassee attorney who represented Crotzer pro bono. “Al Crotzer got no bus ticket, and no $100.”
He also didn’t get access to counseling, and he says he’s struggled with some things since his release: He still wants to turn his light off at 11:47 every night, for instance, and he keeps everything in his room neat enough to pass a cell inspection.
Neither Mr. Olenick nor Crotzer can be sure why the request for $1.25 million failed, especially after the Florida House unanimously approved it. Senate leaders said they didn’t have the money – a common reason that states cite in not providing compensation. In Crotzer’s case, some also suggested that lawmakers didn’t want to grant any more individual compensation bills, but instead wanted to pass a “global” bill that would address all cases. However, the three such bills that were introduced in past years didn’t go anywhere.
Some believe Crotzer may also have been hurt by the fact that he was convicted of a beer store robbery when he was 18 – a fact that would have excluded him from compensation under one of the laws proposed in Florida.
So what do you think? What would be adequate compensation? Here are some of the laws already on the books:
California: $100 per day of incarceration
Montana: Educational aid for those exonerated through postconviction DNA testing
New Hampshire: Maximum of $20,000
New Jersey: Whichever is greater – twice the amount of the claimant’s income in the year prior to incarceration or $20,000, for each year of incarceration
Tennessee: Maximum total of $1 million
CT Senate passes harsh “Jessica’s Law” and “tender years” exception
May 30th
Yesterday the Senate passed SB 1458 [scroll down to the first full bill discussed], also called “Jessica’s Law”. I’ve blogged about this bill in the past and it really does provide for stiff penalties. It increases the mandatory minimum sentence for sexual assault of a minor under the age of thirteen to twenty five years.
This is also the bill that creates the “tender years” exception to hearsay. My thoughts on this are well documented. I do not like it and I don’t think I ever will.
Not all is bad, though. They amended the “Romeo and Juliet” law to increase the permissible age difference between participants to three years instead of two.
The sad thing is that the bill was based partly on incorrect information:
While the current trend among lawmakers is to move away from mandatory minimum prison terms, Kissel said this was one instance in which such enforcement is necessary. Research has shown that many sex offenders are prone to a pattern of behavior and could offend again if given the opportunity, [Senator] Kissel said.
No, not many. The latest studies show that sex offenders have the lowest recidivism rates. Also notable is the fact that law enforcement agencies have come out against high mandatory-minimums because it makes it difficult to prosecute. Defendants are less likely to accept plea deals and prosecutors have less flexibility in structuring an appropriate sentence.
Here’s another news article with a quote from a prosecutor:
Stephen Sedensky, the State’s Attorney for Danbury Superior Court, applauded lawmakers for taking steps to protect sexual assault victims.
“The legislature realizes the seriousness of these type of offenses and wants the sentences to reflect that,” he said.
He added that the 25-year mandatory minimum for the aggravated sexual assault charge could lead to fewer defendants taking a plea agreement and more cases going to trial.
“It’s too soon to tell whether that will be good for the victims,” he said, noting that the victims could be called upon to testify during a trial. “I’m anxious to see how it will play out in court.”
Well, time will tell how these statutes are utilized and whether they stand up to Constitutional muster.
Technorati Tags: sex offenders, mandatory minimums, connecticut legislation, tender years.
Texas AG seeks to out anonymous blog commenters
May 30th
Scott Henson, over at the always interesting Grits for Breakfast, has been following this story out of Bexar County in Texas (original post and follow up), which chronicles the efforts of the Texas AG, on behalf of Bexar County probation director Bill Fitzgerald to out anonymous blog commenters at a probation officers’ employee blog .
As part of an ongoing feud with his employees over whether the department will unionize, Bexar County probation director Bill Fitzgerald is seeking the identities of anonymous employee blog commenters on a relatively new blog called Bexar Me the Pain.
This is indeed very troubling, not only for those employees targeted, but for what kind of precedent it could set if the “outing” were permitted. Everyone seems to be pretty clear that the comments would be covered by the guarantee of Free Speech under the First Amendment [Note that (as far as I can tell) the AG is seeking the "outing" of the commenters and not the author of the blog.]
Scott asks:
I also wonder what Greg Abbott, the Texas Attorney General, thinks about his minions trying to out anonymous blog commenters, not because they libeled anyone but simply to expose them to possible retaliation? Why would Abbott allow his attorneys to bully Bexar probation officers this way?
And would Google have just turned the information over if plaintiffs’ attorneys hadn’t filed a motion to quash? I’ve wondered about this in the context of Texas Youth Commission commenters on Grits, and this makes me more curious than ever what information Google/Blogger keeps on IP addresses of anonymous blog commenters and under what circumstances they release the information?
Here [pdf] are all the pleadings in this lawsuit, but they total 270 some pages, so here’s the Motion to Quash, which should give you a basic idea of what it is all about. Grits’ coverage of the lawsuit is here and here.
Thoughts on chemical castration
May 29th
Prof. Berman points to this story out of Oregon (via Corrections Sentencing) which says that the state is considering employing chemical castration to prevent “high-risk” offenders from re-offending.
The state is close to approving a Corrections Department budget that includes money to expand the state’s chemical castration program. If passed, the state would pay for high-risk sex offenders to receive twice-monthly shots of Depo-Provera, a testosterone-reducing drug.
Depo-Provera, originally developed as a contraceptive for women, creates sexual apathy in men by reducing the level of testosterone. European countries have used the drug since the 1960s to treat sex offenders. It’s less popular in the U.S., and Oregon is one of fewer than 10 states reported to have chemical castration laws.
Prof. Berman asks whether chemical castration (if proven to work) should be employed (actually, why shouldn’t it be). As readers might guess, I am uneasy with this proposition. There are several assumptions here: That we know that “high-risk” offenders will re-offend; that all “high-risk” offenders will re-offend. This does dip into some “Minority Report” territory. I’m quite uneasy by the idea that we will assume that all high-risk offenders are going to re-offend and we need to stop that by subduing the sexual urge by reducing levels of testosterone.
Those are some mighty assumptions and I’m uncomfortable with that. There are (have to be) better alternatives to this. What if we have an offender that, despite being “high-risk” is rehabilitated and wishes to live a normal life? I see visions of Buck v. Bell.
Btw, here are resources for chemical castration and resources against chemical castration.
Tell me how I’m wrong.
A heartening re-integration story
May 29th
Reader Ilah points to this story about how a family (with three young children) has accepted a released sex offender into their neighborhood [I guess SC has no residency restrictions].
“My husband and I discussed it before we even met Paul [Allan] that we will not go at it like everybody else goes at,” said Cheri Irvin. “We will not run from him out of fear.”So the family made a decision.
“I think the best thing that we can do for someone in this situation, is to accept them back into society with limitations.”
As a result, Paul Allan is now welcome in their home, but not alone with their children. He considers Cheri to be like his sister. This hasn’t stopped neighbors from unleashing their anger, though.
It can be a difficult commitment, because anger at Allen can be directed toward the Irvins.”I have some people that refuse to even be around me,” said Cheri Irvin. “And if any of my things are near them, it’s like, don’t touch them because they are friends.”
“We’ve had notes on our front door warning us he’s a sex offender and we need to stay away from him and all that,” said Joshua.
“It’s a feeling of rejection,” said Allan. “And hate, just pure hate for me.”
A letter was sent to the news station (which lead to the story), which alleged that he was “bothering children and handing out candy on Halloween” (which apparently is against the law). Turns out the kids were the Irvin’s.
This is the way to go. Reintegration into society has to be accompanied by inclusion, not rejection. Rejection, in my opinion, serves to only drive people further into their bad habits and we have re-offenders.
I’m glad to see stories like these, because it preserves my faith in humanity.
Monday Morning jumpstart – Tuesday version
May 29th
With the holiday yesterday, the jumpstart has been delayed by a day. Here are some interesting stories I hope you folks like:
- What’s the matter with Kansas…..rape sentencing? [extensive discussion in the comments]
- The de facto death penalty moratorium in North Carolina
- “The Question” and compassion.
- “Pre-parole” an oxymoron under current Texas parole board. [CT's "parole scheme" also has come under judicial fire]
- In the “what next for this family?” category: Jessica Lunsford’s brother arrested for sex crime.
- Sad irony in crash that killed prosecutor and follow up post.
- Capital Defense Weekly’s weekly roundup.
- Another taser problem.
Public Defender blogs search
May 28th
Added to the sidebar on the right is a public defender blog specific search. Many thanks for Greg of PD Stuff for sharing the code.
Taken from his post announcing the search box:
At the top of the sidebar is a search engine created especially for Public Defender Stuff.
The engine only searches these sites:
* All of the public defender blogs, including a couple of defunct sites
* SCOTUSblog
* Sentencing Law and Policy
* Legal Reader
* How Appealing
* FourthAmendment.com
* Capital Defense Weekly
* CrimProf
* TalkLeft
* Grits for Breakfast
* Trial Ad Notes
* Indefensible
* JuvieJournal
* Sui Generis
* Robert Ambrogi’s Law Sites
* Sex Crimes
I have also added a few more sites to the this list:
- The Confrontation Blog
- Eyewitness ID Blog
- SexCrimeDefender
- Appellate Law & Practice
- Austin Criminal Defense
- Crime and Federalism
- Criminal Appeal
- Defending people…
- AEDPA law and policy
The idea is to separate the wheat from the chaff before the search even starts, focusing on the blogs out there that we already know and trust. Search, for example, “search and seizure” and compare it with a general-web Google search. The general search returns as its top links an overview of the concept, while the PD Stuff search brings you recent developments, thoughts and nuances from some of the best legal minds in the business.
Try it out and see what you think, then let me know if you think the search could benefit by adding a specific site or blog.
The search is powered by Google Co-op and if you’d like to add it to your blog I can send you the code to put on your sidebar. Just send me an email.
two new blogs
May 28th
A Memorial day two-fer! While setting up the blog search box, I came across two blogs written by the same person: sui generis and the very new legal antics. While sui generis deals with new york law, legal antics is a legal humor blog. We all need to laugh at ourselves sometimes, so go on over and check it out. They’ve both been added to the ‘roll.
Drug courts
May 27th
Woman in Black posted about drug courts the other day. She wondered how they were handled in other jurisdictions and whether they gave too much power to judges.
Our state is really getting on the bandwagon about “problem-solving courts” but I have really mixed feelings about them. In general, I believe in treatment; we have an enormous meth problem, and meth addicts don’t fix themselves. Send them to prison, they come out and use; put them on straight probation, they use; put them on supervised, they use. But our drug courts seem to be giving too much power/authority to the judges involved, and not nearly enough due process. People get terminated with no hearing at all when the team decides, for example.
I have no experience with drug courts. However, I think that “problem solving” courts and dispositions are preferable to simple incarceration (let’s face it; rehab is no longer a part of incarceration), but they have to be done right. Part of the process of getting over an addiction is failing and trying again, harder. Zero tolerance policies don’t really work and aren’t helpful to anyone. There has to be a long term commitment to each offender’s rehabilitation program.
What do you guys think? How do your states handle drug courts?
The PD blawgosphere has discussed “drug courts” before. [PD Stuff has a fantastic pd blog search tool]
First Myspace purge casualty
May 26th
“Who me?
Yes you!
Couldn’t be!
Then who?”
goes the familiar poem. Except MySpace didn’t ask that last question. In fact, MySpace (after erroneously deleting a young woman’s profile), didn’t say much of anything to her. This is what I was afraid of.
In MySpace’s “search and removal” of sex offender profiles with the assistance of Sentinel, there was a legitimate concern that there would be incorrect matches and people who were not sex offenders would get caught in the net.
Jessica Davis experienced just that.
It took nearly a week for Jessica Davis to get an explanation about why MySpace had labeled her a sex offender and pulled her profile from the social networking Web site.And when her name was finally cleared, it wasn’t because of anything MySpace did.
In fact, the response she got from MySpace simply said:
Your profile has therefore been removed from MySpace.com. Please do not attempt to re-register on MySpace.com. Registered sex offenders are not allowed on MySpace.If you believe this designation was made in error, you may appeal your removal by writing to AccountSafe@myspace.com within 14 days. Please note that if you make a false appeal, MySpace may bring this to the attention of the appropriate law enforcement authorities.
So why did she get flagged? Well, there is a Jessica Dawn Davis who is a registered sex offender. Their birth dates are two days and two years apart and they live in (the entire State of) Florida at “roughly the same time”, according to Sentinel’s CEO. Awesome.
Let’s ignore the fact that they don’t really look anything alike. (See picture above – courtesy abcnews.com). As far as I can find, her profile hasn’t been restored and she has had to spend two weeks to clear her name. Guilty until proven innocent, indeed.
Updated spam protection
May 25th
I have updated the spam protection on this blog (over 3 months, I have received over 900 spam comments) by adding a second plugin. It is stronger and more intuitive, but also needs to learn. So if any of your comments or trackbacks are swallowed, please send me an e-mail. I will check the queue regularly to retrieve incorrectly identified comments.
Additionally, I have enabled comment moderation for first time commenters.
CT House passes bill requiring registration of e-mail address
May 25th
Yesterday, CT’s house of representatives passed HB 7085 unanimously (search for 7085), which requires that sex offenders register their “electronic mail address, instant message address or other similar Internet communication identifier, if any“. The bill, however, states that such “identifiers” shall not be public records. It now awaits a vote in the Senate.
For what it’s worth, Myspace supports this bill.
Also, this bill confers residency restriction determinations on the Risk Assessment Board.
(d) The board shall use the risk assessment scale to determine which offenders should be prohibited from residing within one thousand feet of the real property comprising a public or private elementary or secondary school or a facility providing child day care services, as defined in section 19a-77.
It also makes computer techs mandatory reporters.
Sigh.
Previous coverage: “proposed legislation” category.
AEDPA blog
May 24th
There’s a new blog in the blawgosphere: The AEDPA Law and Policy Blog. Here’s the latest post:
The Sixth Circuit, sitting en banc, reversed an earlier panel decision and held today that the police can make a limited inquiry of a suspect held in custody who has asked for a lawyer when the police are informed by a third party that the suspect has changed his mind and wishes to make a statement. In this case, the third party was the suspect’s mother.
It has been added to the blogroll.
Technorati Tags: habeas corpus, aedpa
Interesting FL cases
May 24th
CDW is reporting three very interesting Florida opinions. In all three cases, a guilty verdict was overturned. In Offord v. State [pdf] (a capital case), the death sentence was overturned as disproportional.
In fact, Offord’s case is notable because it is one of the most documented cases of serious mental illness this Court has reviewed. Through the uncontradicted medical records, a picture emerges of an individual with two serious mental illnesses—schizophrenia and bipolar disorder—who has been in and out of institutions since he was just five or six years old. During a 2001 hospitalization in Texas, the staff considered Offord’s prognosis poor and predicted that he would be unable to function well outside of a facility. This proved to be an accurate assessment because Offord was admitted to hospitals numerous times during 2002, 2003, and 2004. After coming to Florida, he was admitted to Bay Behavioral four times, the last on July 4, 2004, only weeks before the murder.In addition, Offord was receiving permanent social security disability payments because of his mental illness. Although Offord also has a substance abuse problem, his medical history indicates that his mental health significantly contributed to the murder.. . .
In Kopsho [pdf], a juror who held the following beliefs was allowed to sit on the jury. Thankfully, a new trial was ordered.
Like juror Russell in Overton, Mullinax expressed a belief that the law should require a defendant to testify. Most importantly, when asked if he could set aside his personal beliefs while deliberating, Mullinax repeatedly answered that he was not sure if he could disregard a defendant’s decision not to testify. Mullinax never stated that he would be able to deliberate impartially if seated on Kopsho’s jury were Kopsho to decide not to testify. Mullinax’s consistently equivocal responses raise reasonable doubt about his fitness as a juror.
How the heck did he make it onto the jury….
Finally in Mendoza [pdf], there was a remand to conduct an IAC hearing. Counsel was alleged to have done (or not done) the following:
Mendoza asserts that his counsel was ineffective because his counsel relied on inconsistent theories as to the identity of the shooter in opening and closing statements; failed to call Lazaro Cuellar to testify; deficiently prepared the sole defense witness at trial; did not hire an investigator; failed to investigate and present mitigating evidence; improperly opened the door to otherwise inadmissible evidence; and called an improper witness at the penalty phase.
Good stuff from CDW, as always.
CT persists with “tender years” bill despite Crawford
May 23rd
The Connecticut legislature is set to vote on a “tender years” exception statute. In spite of the obvious Constitutional hurdle of Crawford, the sponsors of the bill are pressing ahead. This is the text of the proposed statute:
Sec. 9. (NEW) (Effective July 1, 2007) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal, juvenile or civil proceeding if
- the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy,
- the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and
- either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent nontestimonial admissible evidence of the alleged act.
For the purposes of this section, “child” includes a person who is chronologically thirteen years of age or older, but who has a mental or developmental age of less than thirteen years because of mental retardation or developmental disability.
I have highlighted the problematic portions of the statute. Firstly, what is “apparent authority”? Does a simple command such as: “Come here” constitute “apparent authority”? Does kidnapping constitute “apparent authority”?
Secondly, it only allows to “provide the adverse party with a fair opportunity to prepare to meet it”. It does not require that the opponent of the statement have the opportunity to cross-examine the declarant at the time the statement was given, as required by Crawford.
Finally, what does the legislature mean by “independent nontestimonial admissible evidence”? Does a statement by the victim to her mother count?
It seems that there is a general belief that children under an arbitrarily chosen age are more prone to truthful statements. I am unsure of the veracity of this belief and whether it is supported by empirical evidence. Furthermore, as practitioners will attest, children are susceptible to suggestion – suggestion that is more often than not planted by a parent or someone in a position of authority (or apparent authority
).
Hopefully the legislature will take note of Crawford and realize that the statute as written is problematic.
Here [pdf] is the written testimony of the Connecticut Criminal Defense Lawyers’ Association in opposition to this statute.
Here [pdf] is the written testimony of the Chief State’s Attorneys’ Office, which seeks to clarify the difference between testimonial and non-testimonial statements.
Here [pdf] is a general statement in opposition by the Chief Public Defender’s Office.
Here [pdf] is a statement by the Judicial Branch asking that the legislature not move forward with this bill, since the issues are currently being considered by the Code of Evidence Oversight Committee.
Previous coverage:
- “tender years” and Crawford
- tender years exception to hearsay
- tender years II
- tender years III
- “anti-innocence” bills: tender years IV


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