Pennsylvania child sex crimes law reform and statutes of limitations

Pennsylvania State Rep. Mark Rozzi (who graduated from Muhlenberg High School several years before I did) has spent much of his time since his election in November 2012 advocating for reform of the state's child sex crimes laws. Rozzi himself was the victim of child sexual abuse by a priest at the age of 13.

However, reform efforts have been blocked, as this article indicates, by groups representing the Catholic Church and its insurance companies. According to the article, "[v]ictims say it’s clear that money talked in the Capitol last week because Senate President Pro Tempore Joseph Scarnati’s words were too familiar to be coincidental." The article then quotes Scarnati, Matt Haverstick (a Philadelphia lawyer representing the Harrisburg diocese and Greensburg diocese), and Sam Marshall (CEO of the Insurance Federation of Pennsylvania), all who voice concerns about the constitutionality of the proposed reforms, specifically those involving retroactive changes that would re-open previously lapsed statutes of limitation for civil lawsuits and even criminal charges.

The article points to state campaign finance records and suggests that insurance industry contributions to Scarnati and Senate Majority Leader Jake Corman are part of a insurance industry effort to sway the votes of legislators. That's a fair concern.

But what is also true is that at least some of the contemplated measures in the proposed reforms of the state's child sex crimes laws are in fact likely to be unconstitutional. As this article explains:

The bill, which has moved to the state Senate for final consideration, would specifically reform the state's statute of limitations laws.

Currently, survivors of child sex crimes have until age 30 to file a civil claim and until age 50 to file criminal charges against their abusers. Legislation to reform the law, which has been pushed to the Senate for final consideration, would give victims until age 50 time to file lawsuits and eliminate the statute of limitation entirely for criminal prosecutions.

He has also included an amendment to the bill that would create a two-year "window to justice," during which those survivors for whom the civil window has already closed could file a retroactive civil claim.

Retroactive changes to statute of limitations laws should set off constitutional alarm bells. Depending upon how it is enacted, the elimination of the statute of limitations for criminal prosecutions would almost certainly run afoul of the Supreme Court's ruling in Stogner v. California, 539 U.S. 607 (2003), which held that "a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution."

And while the U.S. Constitution's Ex Post Facto Clause only applies to criminal laws, Pennsylvania's state constitution has a remedies clause that prevents retroactive changes to both civil and criminal statutes of limitations. Regarding this legislation, most experts agree the changes would be unconstitutional (although at least some would disagree). Some have suggested that in the face of uncertain constitutionality, the legislature should pass the law and let the courts decide:

Sen. John C. Rafferty...said it was incumbent on the committee to consider the legislation before it. He said should issues of constitutionality arise, it was best left up to "people in black robes."

But I'm not sure this is right, either. The legislature (and the governor) play important roles in determining the constitutionality of proposed legislation. Deferring constitutionally questionable legislation to the courts is an abdication of responsibility by elected officials.

Reform of the state's child sex crimes laws is an important issue. It is also a highly-charged, emotional one. Finding a solution requires compromise between those who seek justice for victims of child sexual abuse and the restrictions set forth by the U.S. Constitution and Pennsylvania state constitution.

A few collected thoughts on "If you see something, say something"

A few collected thoughts on "If you see something, say something."

Thesis: "If you see something, say something" leads to more interactions with law enforcement authorities than would otherwise occur; and may have the unintended consequence of increasing violent interactions with police.

Thesis: "If you see something, say something" allows authorities to plausibly investigate things that are the result of other people's prejudices (i.e., a man saying a prayer in Arabic on an airplane). Since the authorities did not initiate the investigation, but rather followed up on a tip, they're free and clear of such claims as profiling.

Teen Gets 30 Years in Woodley Park Metro Stabbing

Olijawon Griffin was stabbed and killed last year.

Back in November 2012, I blogged about the murder of Olijawon Griffin at the Woodley Park Metro station:

According to the court documents, a police officer who watched Metro security footage saw Griffin engage one teen in a boxing-style fistfight shortly after 1:15 a.m. and then saw Myers sneak behind Griffin with a knife, stab him in the chest and run.

At the time, I wrote:

Myers "snuck up behind Griffin" which would tend to show deliberation and premeditation, no?

I wondered if Myers was actually culpable for first degree murder rather than second. It turns out I was right:

Myers was indicted on a charge of first-degree premeditated murder while armed and the others were indicted on felony murder. All six were indicted on charges of armed robbery, assault with a dangerous weapon, assault causing significant bodily injury and weapons offenses for their roles in attacks on Griffin and his friend...

The District of Columbia, like many other jurisdictions, allows for accomplices to be charged with murder when someone dies in the commission of another (usually dangerous felony). So while Myers's accomplices didn't actually kill Griffin (or, for that matter, are even accused of killing him), they are charged with felony murder--as if they did kill him.

The now 18-year old Chavez Myers and his friends, charged as adults, will spend a considerable amount of time in prison.

According to this article in the Washington Post, Myers pled guilty to first degree felony murder, and was sentenced to 30 years in prison. The other five accomplices, ages 17 to 20, drew sentences ranging from 15 to 19 years for voluntary manslaughter.

So Myers was indeed convicted of first degree murder, but of the felony murder variety (killing while perpetrating certain crimes, probably robbery) as opposed to the purposeful variety. In the end, the distinction is probably not meaningful--Myers will be in prison for a long time.

Get-away driver gets felony murder charge

Monday was a bad day for two armed robbers, who were both shot and killed by a concealed carry holder. It will also be bad for the get-away driver, who wasn't even in the store when the robbery happened:

About nine hours later, Reading police arrested the man they said was the get-away driver in his Fleetwood apartment.

Alexander Garcia Bialek, 21, was taken into custody late Monday with the help of borough police in the apartment building in the first block of North Laurel Street.

Police said witnesses saw the two robbers speaking to someone in a brown SUV before going into the store. Police gathered surveillance video that showed the SUV, then contacted its owner, who said he had lent the vehicle to Bialek.

Bialek was charged with second-degree murder, robbery and conspiracy.

District Attorney John T. Adams said a person can be charged with second-degree murder if he or she is an accomplice to a felony that results in a death.

The fact that Bialek wasn't in the store doesn't matter. The fact that he didn't kill anyone doesn't matter. The fact that it was his partners who were killed lawfully by the concealed carry holder doesn't matter. According to 18 Pa.C.S.A. § 2502:

(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony...

(d)...“Perpetration of a felony.” The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

Bialek has some long days ahead of him.

Do American criminal laws apply to conduct abroad?

In Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, Justice Scalia, writing for the Court, wrote that "[i]t is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." This is known as the Extraterritoriality Canon. A statute presumptively has no extraterritorial application (statuta suo clauduntur territorio, nec ultra territorium disponunt, p. 268 of Justice Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts).

I previously wrote about this canon here and here.

In Kiobel v. Royal Dutch Petroleum, Chief Justice Roberts's majority opinion relied primarily on this canon in concluding that the Alien Tort Statute does not apply to the alleged conduct:

We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. "[T]here is no clear indication of extraterritoriality here," Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred.

Morrison was about civil laws--but what about criminal violations? Late last month, the Second Circuit ruled that he presumption against extraterritoriality applies:

Section 10(b) and its implementing regulation, Rule 10b-5 [of the Securities Exchange Act of 1934], do not apply to extraterritorial conduct, regardless of whether liability is sought criminally or civilly. Accordingly, a defendant may be convicted of securities fraud under Section 10(b) and Rule 10b-5 only if he has engaged in fraud in connection with (1) a security listed on a U.S. exchange, or (2) a security purchased or sold in the United States.

For more on this case, see here.

"Welcome to Baltimore!"

I was sitting in class last week when a phone in the classroom starting ringing. I thought it was someone's cell phone, but apparently it was a classroom phone in a closet (?). At the same time, another phone started ringing over the room's speaker system. Then a crime alert email was sent out. This is what happened:

On August 28, 2013, at approximately 2:20 pm two males were involved in an altercation at Baltimore and Paca Streets.  As a result of the fight, one male was cut on the hand.  All parties left the area.  The victim went to the University of Maryland Hospital to seek treatment.  Both parties involved know each other.  This is an isolated incident and not campus related.  The University of Maryland, Baltimore Campus Police are assisting the Baltimore Police in reference to this incident.

As you may know the law school is on the northwest corner of Baltimore and Paca Streets. Our professor deadpanned: "Welcome to Baltimore!" Indeed, some students must be new to Maryland and Baltimore specifically because they appeared to express surprise at crime...in Baltimore.

Welcome to Baltimore, indeed.

American Bar Association Citizen Amicus Project results

Back in December, before I had even taken a day of Criminal Procedure, I submitted an essay to the American Bar Association's Citizen Amicus Project:

The 2012-2013 Project focuses on the Fourth Amendment issues raised by law enforcement's warrantless use of trained narcotics dogs to detect narcotics from the outside of a home.  

This term the Supreme Court will hear Florida v. Jardines, a case that questions whether law enforcement's use of narcotic detection dogs in front of a home, without a warrant, violates the homeowner's Fourth Amendment right to be free from unreasonable searches.  The Supreme Court will review one question in the case: 

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

I posted my submission here.

The Supreme Court's opinion is here.

I just found out I received the runner-up award! Pretty good for a part-time 1L don't you think? :-)

Should Ariel Castro be charged with murder?

Ohio Rev. Code Ann. § 2903.01 (West) provides that:

(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy. 

(B) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.

Here are the relevant definitions, from Ohio Rev. Code Ann. § 2903.09 (West):

As used in sections 2903.01 to 2903.08, 2903.11 to 2903.14, 2903.21, and 2903.22 of the Revised Code: 

(A) “Unlawful termination of another's pregnancy” means causing the death of an unborn member of the species homo sapiens, who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues unless and until live birth occurs.

(B) “Another's unborn” or “such other person's unborn” means a member of the species homo sapiens, who is or was carried in the womb of another, during a period that begins with fertilization and that continues unless and until live birth occurs.

What do you think?

United States v. Tsarnaev: Criminal Complaint

United States v. Tsarnaev by Michael Schearer

United States v Tsarnaev: Transcript of Initial Appearance

United States v Tsarnaev by Michael Schearer

Does this look like a consent search?

To be clear: if exigent circumstances existed, it's not evident from the video.

The Boston bombings and the shortcomings of citizen journalism

Consider this article from the Washingon Times's "Communities" section (bold in original article):

Now, the DOJ has announced that Tsarnaev will not be read his Miranda rights, citing the “public danger” exception in the 5th Amendment. But the language in the amendment doesn’t remotely apply to this situation, nor is it even related to the protection against being a witness against oneself. It reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

First of all, Tsarnaev is not in the Army, Navy or militia. Even if he were, the language would only have applied if Tsarnaev had been observed with the bomb in his hands just before committing the crime. The exception gives law enforcement the power to arrest him without first getting a Grand Jury indictment under those circumstances. It doesn’t release the government from the prohibition against compelling Tsarnaev to be a witness against himself after his arrest, which is the basis for Miranda.

If Tsarnaev is guilty, then the public danger was over once he was arrested. The government has no authority to waive any of its obligations for due process. He should be read his rights and allowed to remain silent without molestation. He should have an arraignment where he is given the opportunity to hear the charges against him and enter a plea of guilty or not guilty. If he is unable to afford a lawyer, one should be assigned to him at public expense. His guilt should be decided by a jury of his peers, not the government or the media.

This article confuses the "public safety" exception to Miranda (as articulated in New York v. Quarles, 467 U.S. 649 (1984) with the "public danger" phrase of the Grand Jury clause of the 5th Amendment, which means that members of the armed forces are not entitled to grand juries. No one is claiming Tsarnaev has anything to do with the military, or that he isn't entitled to a grand jury  This has zero, zilch, nothing, to do with Miranda, which (in the 5th Amendment context) has everything to do with the right against self-incrimination. Even the ACLU agrees the public safety exception applies (although they would construe it very narrowly).

Most of the commenters agree uncritically with the article's premise. Not one person (save my comment) addresses the fundamental error that absolutely sinks the author's premise. And few people read the Communities page disclaimer:

This is the Communities at WashingtonTimes.com. Individual contributors are responsible for their content, which is not edited by The Washington Times. The opinions of Communities writers do not necessarily reflect nor are they endorsed by the Washington Times.

Sigh.

Boston bombing roundup

This is a summary of the various posts I've put together on the Boston bombings and follow-on events this week.

This is a brief discussion of the initial bombing as a state or federal crime. Here is a follow-up to that post that identifies 18 USC § 2332a (Use of weapons of mass destruction) as the most likely top federal charge in the case (which carries the death penalty). EDIT: The criminal complaint is here; and § 2332a is indeed the top charge.

This is a brief summary of one woman's account of how the fear of the bombing has impacted her.

The Officer Down Memorial Page for MIT Patrol Officer Sean Collier is here.

Here is a brief summary of exigent circumstances, as seen after the assassination of RFK.

The case that gave birth to the "public safety exception" to Miranda is New York v. Quarles, 467 U.S. 649 (1984). The FBI's description of the public safety exception is here. Some analysis with particular relevance to this case is here. EDIT: The transcript of the suspect's initial appearance is here.

At 8:42 PM on Friday night, I reported the suspect in custody and reposted it here.

There is also imagery associated with these events: thermal imaging used in the final minutes (with raw video here), and the moment of capture, and the capture as announced via the scoreboard from the Reds/Marlins game.

Outside links of interest are Orin Kerr's posts on House-to-House Searches and the Fourth Amendment and Tsarnaev and Miranda Rights.

Facial recognition software didn't help identify the Boston suspects, even though images of both were in databases.

Reddit's involvement in trying to crowdsource the case are discussed here (from the perspective of the sister of a misidentified suspect) and here (discussing Reddit's impact on the FBI's official investigation).

Here's a video that seems to blur the line at when a consentual search takes place.

Finally, my post on the shortcomings of citizen journalism.

From the scoreboard at the Reds/Marlins game

Thermal images were key to Boston bombing suspect’s arrest

The moment of capture

Scanner feed: SUSPECT IN CUSTODY (8:41 PM)

Scanner feed: SUSPECT IN CUSTODY
— theprez98 (总统) (@theprez98) April 20, 2013

Re: Federal or state crime?

In a recent post, I briefly discussed one example of a federal law that the Boston bombers may have violated. An alert reader points to another: 18 USC § 2332a - Use of weapons of mass destruction:

(a) Offense Against a National of the United States or Within the United States.— A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction—
(1) against a national of the United States while such national is outside of the United States;
(2) against any person or property within the United States, and
(A) the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
(B) such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;
(C) any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or
(D) the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce;
(3) against any property that is owned, leased or used by the United States or by any department or agency of the United States, whether the property is within or outside of the United States; or
(4) against any property within the United States that is owned, leased, or used by a foreign government,
shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.
(b) Offense by National of the United States Outside of the United States.— Any national of the United States who, without lawful authority, uses, or threatens, attempts, or conspires to use, a weapon of mass destruction outside of the United States shall be imprisoned for any term of years or for life, and if death results, shall be punished by death, or by imprisonment for any term of years or for life.
(c) Definitions.— For purposes of this section—
(1) the term “national of the United States” has the meaning given in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22));
(2) the term “weapon of mass destruction” means—
(A) any destructive device as defined in section 921 of this title;
(B) any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;
(C) any weapon involving a biological agent, toxin, or vector (as those terms are defined in section 178 of this title); or
(D) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life; and
(3) the term “property” includes all real and personal property.

As I mentioned in my original post, there may be other more relevant federal statutes that cover these crime that will emerge as more details come out. And that still remains true.

And--you can add the murder of MIT police officer Sean Collier to the list of crimes.

Exigent circumstances

A little bit about exigent circumstances:

Shortly after midnight on June 5, 1968, Sirhan Sirhan assassinated Sen. Robert Kennedy in Los Angeles. About ten hours later, LAPD officers went to Sirhan’s home and conducted a warrantless search for evidence of a conspiracy. Although the officers had no specific reason to believe that Sirhan was involved in a conspiracy to kill other political leaders, the California Supreme Court ruled the entry was justified because the potential threat was so serious. Said the Court, “Although the officers did not have reasonable cause to believe that the house contained evidence of a conspiracy to assassinate prominent political leaders, we believe that the mere possibility that there might be such evidence in the house fully warranted the officers’ actions.”

Source here. h/t @ClueAx.

Keep Calm and Carry On

That's the message of Bruce Schneier. But not all agree. This is sad and unfortunate:

Candace Rispoli was cheering on a friend in the race when the festive atmosphere turned into a "terrifying hell."
...
Even though Rispoli suffered only minor injuries, the attack has changed her life forever.

"I know I personally will never participate in an event of this nature in a city in fear that something like this could happen again. My hands have still not stopped shaking," she said.

I hope Ms. Rispoli is able to be strong and overcome her fear. Because succumbing to fear is just what they want.