Criminal Justice

  • November 8, 2012

    by Jeremy Leaming

    As Colorado voters were debating whether to support a ballot measure to legalize small amounts of marijuana, some fretted about fueling drug tourism. But the more obvious difficulty Colorado and Washington State, where a similar legalization measure was approved, face centers on the federal government and its law that sees marijuana as more dangerous than heroine.

    As University of Denver law school Professor Sam Kamin told “60 Minutes” not long before the elections, the federal government has not been easy on the states that have legalized medical marijuana use. The government is employing several tactics to undermine the medical marijuana industry in Colorado – a fairly robust one – despite the challenges. Part of what the federal government does, according to Kamin, is to threaten banks with prosecution under the Controlled Substances Act if they help the medical marijuana industry to expand.

    It seems safe to assume for the moment that the federal government will not look any more favorably on the limited legalization laws in Colorado and Washington than it has on states were medical marijuana has been legalized.

    Alison Holcomb an attorney and leader of the campaign for Washington’s Initiative 502, sounded an optimistic note upon its passage, saying the state had “looked at 70 years of marijuana prohibition and said its time for a new approach,” the Associated Press reported. The Seattle Weekly in a Sept. profile of her work, lauded her for bringing together a “jaw-dropping list of sponsors – including travel guru Rick Steves, City Attorney Pete Holmes and former U.S. Attorney and Bush appointee John McKay – and keeps winning more and more endorsements as time goes on.”

    Washington’s initiative creates a system of state-regulated marijuana growers and allows adults to buy up to an ounce. Colorado’s Amendment 64 will allow those over 21 to buy an ounce of marijuana and permit people to grow a limited amount of marijuana.

  • November 1, 2012
    Guest Post

    By Anna-Rose Mathieson, a counsel in the appellate group for O’Melveny & Myers, and a co-author of two amicus briefs for the National Association of Criminal Defense Lawyers in Bailey v. United States.


    Chunon Bailey was pulled over by the police. The officers told him to exit his car, patted him down, and confiscated his keys, wallet, and car. The officers had not seen him break any laws, and found nothing incriminating during their search. They nevertheless questioned and handcuffed Bailey, and drove him away in the back of a police car. 

    Today the Supreme Court considers whether the search and seizure of Bailey was justified based on the sole fact that Bailey had recently left an apartment that the police had a warrant to search. The genesis of this issue is a case decided thirty years ago, Michigan v. Summers, where the Court ruled that police officers executing a search warrant for contraband can detain all occupants of a dwelling while searching the premises. Bailey was no longer on the premises -- the police had watched him leave the house, then followed him for nearly a mile before detaining him -- but the court below thought the rule should be extended to those who had recently left the premises. This extension is significant because the Summers rule gives police broad powers: unlike most Fourth Amendment cases, where the police must show individualized suspicion as to the specific person searched or seized, the Summers rule affords police the power to detain anyone for the duration of the search, even if the person has no apparent connection to the alleged crime and appears totally harmless. And the police can, and often do, handcuff the occupants, even when the search goes on for hours. 

  • October 31, 2012
    Guest Post

    By J. Amy Dillard, Associate Professor of Law, University of Baltimore School of Law


    This morning, the U.S. Supreme Court will hear two cases that address whether the sniff of a dog constitutes a search of a home under the Fourth Amendment and whether a trained drug-sniffing dog’s “alert” gives probable cause for a warrantless search of a vehicle. 

    Where citizens have very low expectations of privacy like the exterior of luggage in an airport terminal, the Court has held that the warrantless sniff of a dog does not violate the Fourth Amendment. But in Florida v. Jardines, a trained police dog, without a warrant, sniffed the front porch and door of a home, where the occupant’s Fourth Amendment privacy interests were at her strongest; he alerted that drugs were within the home by sitting down at the front door. Based on the dog’s alert, police obtained a warrant to search the home and found marijuana plants. At issue in Jardines is whether the defendant had a Fourth Amendment interest in protecting the exterior of her home from a sniffing dog. In Florida v. Harris, the Court must address the reliability of a trained drug-sniffing dog and determine what evidence the government must offer of that reliability when the dog provides the fundamental piece of evidence supporting probable cause to justify a warrantless search of a vehicle. In Harris,a police officer responded to an alert by a trained police dog on the exterior handle of a vehicle and, relying on that dog’s alert, entered the vehicle without a warrant and seized drug contraband. 

  • October 25, 2012
    BookTalk
    Failed Evidence: Why Law Enforcement Resists Science
    By: 
    David A. Harris

    By David A. Harris, Distinguished Faculty Scholar and Professor of Law, Associate Dean for Research, University of Pittsburgh School of Law


    The news everywhere today is full of headlines like “DNA Cracks Cold Case.” Popular culture is topped by television programs like CSI, in which police are more likely to use test tubes and high-tech gadgetry than guns and handcuffs to solve crimes. The bad guys better watch out: science is now the handmaiden of law enforcement.  And with that kind of partnership, criminals don’t stand a chance. 

    But my new book, Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012), exposes this picture for the myth that it is. Aside from DNA and analytical chemistry, police and prosecutors usually resist science, sometimes very vocally.  This scientific work concerns the basics of how police gather the evidence that prosecutors use in court every day: eyewitness identifications, suspect interrogations, and basic kinds of forensic evidence, like fingerprint analysis, and hair and fiber identification.  This science has been peer reviewed and published and replicated for years – sometimes for decades.  It tells us not only what the problems are in these basic areas of investigation, but how to fix them.  And yet, there is resistance to re-calibrating our police and prosecutorial practices so that they are consistent with the best of what science can teach us.  The question at the heart of Failed Evidence is why.  If we understand where that resistance comes from, we can find ways to overcome it, so that we can stop convicting the innocent, and get the real guilty parties off the street.

  • September 19, 2012

    by Jeremy Leaming

    In what he called one of the first hearings in a long stretch of time exploring domestic acts of terrorism, Sen. Dick Durbin (D-Ill.) led a Senate hearing that included testimony from a young man whose mother was shot and killed in August while praying at a Sikh temple in Oak Creek, Wis. The senator noted early on that the massacre at the Gurdwara in Oak Creek was not an isolated incident, and that acts of violence against Sikhs, South Asians, Arabs, Muslims, and other communities of people are on the rise, and have been for some time.   

    Durbin, throughout the hearing, expressed concern that more action was needed to counter domestic violence targeting groups of people because of hatred toward their ethnicity, religion, sexual orientation or gender identity. He cited a 2010 FBI report showing that 6,600 hate crimes were reported in 2010. (That report revealed that a wide swath of communities was targeted by hate crimes. For example, the FBI said 47 percent of the crimes were racially motivated, 20 percent were triggered by hatred of the victims’ religion, 19 percent targeted the LGBT community, and 13 percent were based on ethnicity or national origin.)

    Durbin said those numbers are likely low. “In a 2005 study the Bureau of Justice Statistics believes even those crimes reported are just a fraction of those that actually occur. In the week following the Oak Creek shootings, there were numerous attacks on mosques, including a mosque burned to the ground in Joplin, Missouri. A shooting in a mosque in my home state, Martin Grove, Ill., while 500 worshipers were praying inside.”

    “According to the Justice Department,” Durbin continued, “the increase in discrimination against mosques since 2010 ‘reflects a regrettable increase in anti-Muslim sentiment.’ At the same time, African-Americans continue to be targeted by a majority of racially motivated hate crimes. Jewish Americans continue to be victims of religiously motivated hate crime. Latinos are the victims of most ethnically motivated hate crimes and hundreds of LGBT Americans are victims of violent hate crimes every single year.”

    Durbin and others who testified lauded the passage early in the Obama administration of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which encourages partnerships between federal and state law enforcement officials to work more effectively against hate crimes. But the senator and others who testified suggested that more should be done by the DOJ to aggressively investigate hate crimes, to report on hate crimes, and that Congress should do more to help fund preventive measures, such as education and training initiatives for law enforcement officials.

    Likely expecting criticism from lawmakers who might argue that Congress should focus almost exclusively on international born terrorist threats, Durbin said that the government should not and would not lessen its efforts to defeat Al Qaeda. “But we can’t ignore the threat of homegrown, non-Islamic terrorism," Durbin said.

    Also speaking to an international community, some of which conflates protection of free speech with condoning criminal actions, Durbin said, “So let me be clear, under our Constitution we punish criminal acts, not free speech, no matter how offensive or hateful it might be.”