Melik Kaylan has advice for prospective curator/jailbirds: “The morality around acquiring antiquities parallels that of hunting certain species — it was OK for millennia and suddenly isn’t anymore.” (“A Civilized Solution to Looted Art”, WSJ/OpinionJournal.com, Dec. 14). More on museums in legal hot water: Apr. 28, Dec. 5.
Posts Tagged ‘crime and punishment’
A thought on Tookie
There have to be countless Americans who condemn gangs and haven’t brutally murdered four people, much less founded a gang that is responsible for hundreds of murders and tens of thousands of crimes by itself. Maybe some celebrities can pick one of these men or women and take up their cause.
Witnesses at Tookie Williams’s trial include the woman who sold Williams the murder weapon, his roommate, his roommate’s wife, an accomplice, three citizen-witnesses who corroborated the accomplice’s version of events, a jailhouse informant, and an expert who identified Williams’s own handwritten notes of the incident. Another accomplice, who has been sentenced to life and didn’t testify at Williams’s trial for Fifth Amendment reasons, has never wavered in his identification of Williams as a murderer.
Before his conviction, Williams attempted an escape in a conspiracy that would’ve killed two guards and one of the witnesses against him; he wrote a note indicating that he had obtained dynamite in support of this escape, which was foiled before he could commit additional mass murder. After his conviction, Tookie Williams looked at the jurors and told them he was “going to get all” of them. (One of the jurors, William James McGurkin, was black, contrary to several Williams supporter and press claims that blacks were excluded from the jury.) While in prison, Williams threatened two guards with death in two separate incidents (telling one that “I have dusted many officers on the street, one more would not make any difference,” chemically burned another guard in the eyes, engaged in several fights, and ordered an inmate stabbed by fellow Crips. The LA County’s DA’s office has extensive details.
The only reason Williams had a chance to at least pretend to redeem himself (through children’s books but not through debriefing prison officials on Crip activities, which Williams called “snitching” up to his dying day) is that his appeals (including five separate habeas petitions) took California and the Ninth Circuit twenty-four and a half years to resolve. Rich Lowry and Jack Dunphy have more.
Federal mail fraud and RICO statutes
Prompted by the (ongoing) corruption trial of former Illinois governor George Ryan and co-defendant Larry Warner, University of Chicago lawprof Albert Alschuler has written a series of posts at the Chicago Law Faculty Blog using the trial “to illustrate the unfairness of the mail fraud and RICO statutes”. He notes that “prosecutors call the federal mail fraud statute ‘our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart’, with the closely related Racketeer Influenced and Corrupt Organizations Act (RICO) law second on the list of favorites.
In the Ryan case, the alleged misconduct to be brought out at trial “will cover a twelve-year period and range from failing to register as a lobbyist, to accepting secret consulting fees from a presidential campaign, to giving low-number license plates to campaign contributors.” Are all those things illegal? Well, they might be, ever since Congress added a vaguely worded new section to the mail fraud statute declaring that a scheme or artifice to defraud includes a scheme ‘to deprive another of the intangible right to honest services.’” The interpretations of this language have been so broad that even an elected official’s violation of his announced personal policy on a matter, not otherwise illegal, may be construed to deprive constituents of honest services.
In the Ryan case and others, prosecutors have used the intangible rights doctrine to stand federalism on its head. In effect, federal prosecutors prosecute state officials and private individuals for state crimes in the federal courts. Worse, they use the mail fraud statute to bootstrap minor state crimes and violations of non-criminal regulations into 20-year federal felonies. … Does every broken promise by a politician (“read my lips”) now constitute mail fraud?
The mail fraud statute, Alschuler argues in a third post, encourages “kitchen-sink” proceedings in which a vast assortment of dubious actions, not in fact closely related to each other, get treated as a single vast “scheme” for purposes of prosecution. Finally, a fourth post discusses RICO charges, which prosecutors can build up on a foundation of “predicate acts” that:
may extend over two or three decades. They may include crimes on which the statute of limitations has run, crimes that could not themselves be prosecuted in a federal court, crimes that could not be joined with one another in separate prosecutions, crimes of which the defendant already has been convicted and for which he has been punished, and even crimes of which he has been acquitted in a state court. The courts, if faithful to the statute, have no way to prevent this sprawl.
For our comments on the abuse of the RICO statute by the Clinton and Bush administrations in litigation against tobacco companies, see Sept. 23, 1999 and many other posts.
Overcriminalization watch: five years for “encouraging” aliens to stay
Yesterday, on a party-line 23-to-15 vote, the Republican-led House Judiciary Committee approved legislation sponsored by its chair, Rep. James Sensenbrenner (R-Wisc.), billed as cracking down on illegal immigration. According to Jacob Sullum, reporting at Reason “Hit and Run” (Dec. 8), the bill as brought up in committee:
would impose a three-year mandatory minimum sentence on anyone who, with an expectation of financial gain, “assists, encourages, directs, or induces” two or more foreigners to illegally reside in the U.S. The penalty rises to five years if the encouragement leads to a crime punishable by more than a year in prison. Families Against Mandatory Minimums notes that “the five-year mandatory minimum will nearly always apply because the bill would also increase the maximum penalty for illegal entry to a year and a day and provides mandatory minimum penalties of one to 10 years for those who reenter the country following deportation.”
It appears from the bill’s text (PDF) that the prohibition on “encouraging” or “assisting” illegals to remain in this country is by no means meant to reach only persons who engage in organized long-distance smuggling of aliens; the requisite “expectation of financial gain” from the continued presence of an alien couple might consist (or so it appears) of reaping the benefit of employing one member of the couple in, say, a housekeeping, gardening or home-repair capacity (Judiciary press release, Washington Post).
Rape defendant cleared by claiming “sexsomnia”
Canadian “Jan Luedecke was acquitted of sexual assault after a judge ruled he was asleep during the attack — a disorder known as ‘sexsomnia.'” His alleged victim was drinking at a party, fell asleep on a couch, awoke to find Luedecke having sex with her, and immediately went to the police to charge him with sexual assault. She says she will appeal Justice Russell Otter’s decision. Otter further ruled that, though Luedecke claims not to be able to control his sleep-sex, he does not have a mental disease requiring review of his condition by a mental health board.
The Toronto Sun has an entertaining interview with another man who claims to suffer from sexsomnia: “His symptoms are brought on by alcohol, he said. He rarely remembers having sex upon waking up. … [It] came close to ending his marriage. After a party one night, the man found himself in bed with his wife’s friend.” And cads everywhere cheer the new excuse, as “I was really drunk” gives way to “I was asleep.” (Natalie Pona, “It’s ruled sleep sex”, Toronto Sun, Nov. 30; Natalie Pona, “She’ll fight it all the way”, Toronto Sun, Nov. 30; Natalie Pona, “Sexsomnia nightmare”, Toronto Sun, Dec. 1 (hat-tip to W.F.)).
Today’s police chase lawsuit roundup III
- Antonio Chatman has already pled guilty to charges of fleeing police (the third time he’s been in trouble for doing so in his lengthy criminal history) and resisting arrest, but now claims that he jumped upon a Dumpster to give himself up, and sued the city of Johnstown and police officer Michael Page over its use of Obi, a police dog that bit him when he fought the apprehending dog. A jury didn’t buy his story.
On Thursday afternoon, Page shook hands with and thanked the jurors who cleared him. The 35-year-old also said the threat of a lawsuit can haunt officers as they make split-second decisions on the street.
“You have these type of things in the back of your mind,” Page said. “And unfortunately, that hesitation may cause me or somebody else to get hurt.”
Chatman’s attorneys argue that Page should have been equipped with a baton, though Page was over 50 feet away. (Mike Faher, “Jurors clear police dog”, Tribune-Democrat, Nov. 18; Id., “Police defend dog accused of biting”, Nov. 16; Id., “Officers testify in dog-bite lawsuit”, Nov. 15; Id., “Police-dog bite lawsuit begins”, Nov. 14). The district court had granted summary judgment, but the Third Circuit reversed (as the law required them to do) because of the “he said, he said” factual dispute. Unless Pennsylvania prosecutes Chatman for perjury, he will suffer no consequences for bringing the lawsuit.
- Patrick Sterling was fleeing police after being caught drag racing when he lost control of his Honda Civic and killed a thirteen-year-old pedestrian, Dennis Howard. So, of course, the family is suing the town of Orange. (Gerard A. Frank, “City faces lawsuit in boy’s death due to chase”, East Orange Record, Nov. 17; Scott Weinberger, “Family’s Claim About Cop Unfounded”, WCBS, Nov. 11).
- A Houston policeman complains about the safety implications of the city’s implementation of police-chase regulations. “Basically, that’s telling the crooks out there to just go on and do what you want and get away with it, because we’re not going to be chasing you.” The city denies that the revisions are the result of lawsuit fears, though it has been subjected to litigation over an innocent killed by a criminal fleeing police. (Jeff McShan, “HPD: To chase or not to chase”, KHOU, Nov. 23).
- An interview of a teenage car thief provides more support for the proposition that regulating police chases just encourages criminals to drive dangerously more often: “The police in the District would see us and chase us, but once they saw us go over 70 miles an hour they stopped.” In the words of one policeman, “If the [DC and Maryland] police were allowed to do their job and chase stolen cars, people wouldn’t run from the police. They don’t have this problem in Virginia. If you steal a car in Arlington, the Virginia State Police will chase you all the way to Georgia.” DC has gotten sufficiently lawless that Police Chief Charles Ramsey’s car has been stolen. (Michael Patrick Carney, “‘Don’t hurt me, I’m just a kid'”, Washingtonian, Dec. 2005).
Earlier coverage: Oct. 26; Mar. 29; Mar. 15 and links therein.
“How Many Laws Did You Break This Week?”
In a paper published by the Golden, Colo.-based Independence Institute, Mike Krause and Chelsea Johnson examine the problem of overcriminalization in one state, Colorado. (Publication # IP-9-2005, Sept., PDF). More: via Mike Cernovich, here’s word of a symposium on overcriminalization in the American University Law Review with contributions from (all PDF): Ellen S. Podgor, John S. Baker, Jr., John Hasnas, Peter J. Henning, Erik Luna, Sara Sun Beale, Geraldine Szott Moohr, and Paul Rosenzweig.
UK roundup
Sainsbury’s, the British grocery chain, says it will have to go back on a plan to sell Christmas puddings with “lucky sixpences” inside because of health and safety regs under which they are regarded as a choking hazard; instead it will attach the coins to “collectors’ cards” and suggest that customers place them under the plate or placemat of a lucky family member. “[G]ood luck charms have been added to Christmas puddings for more than 500 years.” (David Derbyshire, “Unlucky sixpences miss out on Christmas”, Daily Telegraph, Oct. 18). For an analogous U.S. story involving the New Orleans specialty, “king cake”, see Feb. 1-3, 2002. The police force in Derbyshire, England, has tested its dogs to see whether their barking is in compliance with the Control of Noise at Work Regulations being introduced next April; the canines’ level of noisiness barely passed muster under the new standard, and modifications such as earplugs for police may needed when use of the dogs in anti-crime work combines with another source of noise such as that of a crowd. (Nick Britten, “Police take the lead on barking regulations”, Daily Telegraph, Oct. 27). For more on British and EU noise regulations, see Nov. 10, 2005 (kids’ playing); Sept. 2, 2005 (Army tanks); Jan. 12, 2004 (orchestras); Mar. 8-10, 2002 (bagpipes); Dec. 22-25, 2000 (military brass bands and gunfire during infantry training). In Worcester, England, teenager Natasha Hughes, who is accused of grievous bodily harm directed at another woman and was charged with violating her bail conditions, will not have to wear an electronic monitoring anklet after she successfully argued that the device violated her fashion sense and looked bad with skirts. (Nick Britten, “You can’t tag me. . . I like to wear skirts”, Daily Telegraph, Nov. 11). For a similar argument made in this country, see Dec. 4, 2000 (exotic dancer). And the following exchange was heard on the floor of the House of Lords this Wednesday:
Lord Mackenzie of Framwellgate: My Lords, is my noble and learned friend aware of the case that I read about recently in which there were three main suspects for a crime: a rich lawyer, a poor lawyer and a tooth fairy? Needless to say, the rich lawyer was arrested because the other two were figments of the imagination.
Lord Falconer of Thoroton: My Lords, it does the House no credit to do anti-lawyer jokes.
(Hansard, Nov. 16). Reader Bob Clarke, of Birmingham, U.K. who called this exchange to our attention, writes: “I don’t think that my learned Lord should drop his day job and start being a stand-up comedian. He made the same joke in 2000“.
Jahkema “Princess” Hansen
Fourteen-year-old Jahkema “Princess” Hansen was dating 28-year-old murder suspect Marquette Ward. Police detectives visited Hansen to see if she had any information about the murder over a PCP-laced marijuana cigarette, which she allegedly witnessed. She told them she didn’t, and then (according to prosecutors) went to Ward and asked for compensation for keeping quiet. The night after the interview, a friend of Ward’s, Franklin Thompson, allegedly stormed Hansen’s DC townhouse and shot her dead, execution-style. (Ward and Thompson have plead not guilty to the two murders, and go to trial in March.)
But what makes this sordid story one for Overlawyered was the reaction of Hansen’s mother, Judyann Hansen, who, through her attorney, Donald Rosendorf, sued the Washington, DC, police department, blaming them for Hansen’s death. “Any time a police officer sets foot in that neighborhood, it gets around and it gets around fast,” Rosendorf said. Thus, he argued, the mere fact of the interview created a legal duty to provide special protection for Hansen. A D.C. Superior Court judge has disagreed, and dismissed the suit. (Henri E. Cauvin, “D.C. Police Not Liable in Witness’s Death, Judge Rules”, Washington Post, Nov. 10). A Marc Fisher column in the WaPo in February painted a more sympathetic portrait of the Hansen family (which included two adult sons serving time for crack-dealing), which led to a Charlotte Allen fisking.
Update: Jamie Olis wins resentencing
Last year, as has been mentioned in this space (May 18, 2004, Oct. 19, 2005) a Texas judge handed down a sentence of 24 years in prison to Dynegy executive Jamie Olis, convicted by a jury of committing accounting fraud which advanced his employer’s aims but from which he did not benefit personally. Now Fifth Circuit Judge Edith Jones has handed down a ruling (PDF) finding that Olis is entitled to resentencing and laying down guidance which likely will result in a shorter sentence. Tom Kirkendall is covering the story as usual (Nov. 1, Nov. 4) as is Larry Ribstein (Nov. 1).