Thanks to Barry Scheck and the Innocence Project Cornelius Dupree Jr. is free from prison after spending 30 years behind bars for a rape he never committed.

As with most exonerations Dupree’s conviction was based upon an eyewitness misidentification. Police showed Dupree’s picture and the picture of his codefendant to the victim and her male friend in a photo array. The victim picked out the pictures of Dupree and his friend while her male friend picked out neither of the pictures. Dupree was sentenced to 75 years for rape and robbery. But now thirty years later Dupree has been exonerated by DNA evidence.

Out of 265 people exonerated by the Innocence Project, 158 of the individuals, like Dupree were African Americans, 80 were Caucasian. 21 were Latinos, two were Asian American and four were of unknown racial background. One study showed that between 1989 and 2004 there were 120 exonerations for those wrongly convicted of rape. Nearly 90 per cent of these were based upon eyewitness misidentification and although only ten per cent of rape convictions involve White victims and Black rapists fifty per cent of the exonerations involved cross racial misidentification.

In that thirty year period Dupree had at least two opportunities to be paroled but that would required him to except responsibility for a rape he knew he never committed. It is not unusual for a parole board to refuse to parole an individual unless they admit responsibility for the crime. Ironically this means that guilty individuals often spend more time in prison than innocent individuals. Another condition of his parole would have been that he attend a sex offender treatment program. As part of the program the innocent man would have had to show recognition, remorse, restitution and resolution. He refused to do this and he was denied parole.

Under Texas law Dupree may get $80,000 for each year he was in prison and a lifetime annuity. He should get a 2.4 million dollar lump sum payment.

Another problem with false identifications is that as a result of Dupree’s conviction the actual rapist has been free for thirty years and we do not know how many rapes he has committed during that period.

The Court of Appeals of Virginia has joined a number of other courts in finding that attaching a GPS device to a car while it is parked on public property and maintaining contact with the car while a suspect is driving it is not a violation of the Fourth Amendment.

David L. Foltz is a convicted sex offender. He was employed and used a company truck in the course of his employment. He had permission to use the truck to drive to and from work and to stop to go to treatment meetings on his way home. The police knew that there was a series of sexual assaults in the area around his work and his meetings. They further knew that the modus operandi was similar to that used by Foltz in the past.

They attached a GPS unit under the bumper while the car was parked on the street near Foltz’s residence. The unit had the power to keep track of his travel and and to allow the police to track the vehicle in real time.

Five days later a sexual assault occurred. The police checked the GPS log and discovered that the truck was in the area of the crime. The following day they followed the van without using the GPS. They saw Foltz attempt to assault a woman and arrested him.

He was charged with abduction with intent to defile. He moved to suppress the evidence on Fourth Amendment grounds. The motion was denied. He went to trial and was sentenced to life in prison. On appeal the court upheld the denial of the suppression motion. The United State Supreme Court in United States v. Karo held in 1984 that it was not a violation of the Fourth Amendment for a supplier to put a beeper in an ether container and for the police to follow the vehicle by using the beeper.

The Virgina court and several other courts have found Karo to be precedent. They ruled that if it was not a violation of the Fourth Amendment to place a beeper in an ether container and follow the vehicle using the beeper, it is not a violation to attach a beeper to the bumper and electronically follow the vehicle. In both cases electronic devices are being use to accomplish a task that could be done with human eyes. If Foltz drove the truck where he could have been followed by the police in an unmarked vehicle then tracking the vehicle with an electronic device is not a violation of Foltz’s Fourth Amendment privacy rights.

The test for a Fourth Amendment violation is whether the government violates a subjective expectation of privacy that society recognizes as reasonable. While Foltz parked his car on the street, I suspect that if he knew that a GPS device was being attached to the vehicle he would have believed that his privacy was being violated. In fact, if I looked out my window and saw someone putting something under my bumper I would not only think that my privacy was being violated but I may think that it was a bomb and call the police. Certainly, if Foltz parked his car in his garage and officers entered the garage to place the GPS device on the vehicle we would all agree that Foltz had a legitimate expectation of privacy and that the government violated it. But because Foltz is not wealthy enough to have a garage the court finds that he does not have a legimate expectation of privacy. A Fourth Amendment right should not be based upon the wealth or poverty of the defendant.

But what I don’t understand is in many states, including Virginia, a defendant can be required to surrender his/her Fourth Amendment rights in order to be put on probation. If Foltz had been required to surrender his Fourth Amendment rights when he was put on probation prior to his current arrest he would not have been able to move to suppress the evidence and the GPS issue would not have been raised. In many states new laws mandate that sex offenders must wear a electronic monitor at all times allowing the authorities to keep track of them. Apparently this was not the law in Virginia at the time of Foltz’s arrest but it is certainly becoming more common. We will no doubt be seeing cases challenging these laws on Fourth Amendment grounds in the future.

The Supreme Court of Utah reversed the conviction of Warren Jeffs, the the leader and “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints. for aiding and abetting the rape of Elissa Wall for his role in the compelled marriage of the fourteen-year-old girl to her nineteen-year-old first cousin, Allen Steed.

Jeff’s father and predecessor as leader and “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints, Rulon Jeffs arranged the marriage of Wall to her 19 year old cousin. Despite Wall’s clear reluctance to marry her cousin Warren Jeffs, Wall’s teacher and religious instructor pushed her into marrying him and performed the ceremony. When she asked him for the equivalent of a divorce he denied it.

To convict someone for aiding and abetting a rape it first must be shown that the rape occurred. Rape is unconsented sex. At trial the prosecution argued that Wall was raped under three different sections of Utah’s consent law. The jury was instructed:

An act of sexual intercourse is without
consent of a person under any, all, or a combination of the following circumstances:
1. The person expresses lack of consent through words or conduct; or
2. The person was 14 years of age or older, but younger than 18 years of age, and the actor was more than three years older than the person and enticed the person to submit or participate; or
3. The person was younger than 18 years of age and at the time of the offense the actor occupied a position of special trust in relation to the person.

The Court and the District Attorney, in the rush to convict Jeffs for the high publicity crime confused the instructions regarding aiding and abetting and the underlying crime of rape. For example, the District Attorney argued that Jeffs was more than three years older than Wall when the law requires that the rapist (allegedly Steed) be three years older than the victim. Again, the instruction talks about a special relationship between the rapist and the victim but the District Attorney argued that there must be a special relationship (teacher and religious leader) between Jeffs and Wall. Throughout the trial the District Attorney seem to confuse Wall’s lack of consent to the marriage with the required lack of consent to sex with Steed.

Furthermore, in order to convict Jeffs it was necessary to show that he intended that Steed rape Wall. Yet nowhere in the trial was there evidence that Jeffs told Steed to rape Wall. At the marriage he told the couple to “go forth and multiply and replenish the earth with good priesthood children.” Jeffs was tried on two counts. The first involved the first time the couple had sex when it appears as if Wall did not give consent. The second was after she asked for a divorce and Jeffs told her to obey her husband. But it is not clear that he intended that Steed have unconsented sex with Wall.

The Supreme Court reversed the conviction and ordered a new trial.

Employees from the Stone County (Missouri) jail transported Penny Whitson and four men in the same van to the state Department of Corrections. The van consisted of three section. In the first section were two employees of the jail, one of whom drove the van. In the first caged section behind the driver were three men. In the back caged section was one man, Richard Leach, and Whitson.

The van was dark and noisy. The officers were playing loud music. Whitson alleged that Leach raped her. She did not immediately complain but she complained when the van stopped at a rest stop and when they got to the prison. A rape test at the prison showed mobile sperm.

She sued the deputies in the van for failure to protect her. She also alleged that the jail and supervising officers failed to properly train and supervise the officers.

The District Court granted the defendants motion for summary judgment but the Eighth Circuit Court of Appeals reversed the trial court decision finding that triable facts exist. On a motion for summary judgment the question is whether as a matter of law one party wins and that there are no facts which need to be decided by a jury.

The Eighth Amendment’s prohibition of cruel and unusual punishment places a duty of prison authorities to protect prisoners from injury caused by other prisoners.

In order to prevail in a civil rights suits for damages resulting from injury caused by another inmate a two part test must be proved. First, objectively the inmate must prove that “the deprivation of rights was sufficiently serious; i.e., whether the inmate “is
incarcerated under conditions posing a substantial risk of serious harm. . . The second requirement is subjective and requires that the inmate prove that the prison official had a sufficiently culpable state of mind.”

The defendants wrongly claim that since the officers did not have specific information that Leach, the alleged rapist, was a danger to Whitson that summary judgment was appropriate. But as the Court points out that a substantial risk of injury can exist without the officers knowing specific information about Leach’s dangerousness. For example other officers may have received complaints or jail regulations may require particular steps be followed when transporting male and female inmates together. None of these issues were raised on summary judgment and therefore triable facts remain to be determined at trial.

Prosecutors released portions of Jaycee Lee Dugard’s diary. Dugard was kidnapped when she was eleven years old as she waited for a school bus outside her family’s South Lake Tahoe home. Last year after spending eighteen years in captivity she was found and released. Phillip and Nancy Garrido have been charged with kidnapping and raping Dugard, She had two children by Phillip Garrido who are now 12 and 15 years old.

Dugard’s diary shows mixed feelings towards the Garridos. At the same time that she wants to be ‘free” she says that she would never do anything to hurt them. Such feelings are consistent with the Stockholm Syndrome. The Stockholm Syndrome affects people who have been kidnapped and who spend long periods in captivity. Initially, after they are kidnapped they feel angry and shocked. But later they feel helpless and lack of control. It is not unusual for victims suffering from the Stockholm Syndrome to develop close feeling of attachment to their captors.

Experts in the field attribute these feelings to the total control that the captors have over their victims. The diary seems to support this thesis. Thirteen years into her captivity Dugard wrote, “It feels like I’m sinking. … this is supposed to be my life to do with what I like … but once again he has taken it away,” But she also wrote, “I don’t want to hurt him … sometimes I think my very presence hurts him. So how can I ever tell him how I want to be free. Free to come and go as I please … Free to say I have a family. I will never cause him pain if it’s in my power to prevent it. FREE.” This shows the mixed feelings of those kidnapped. When she received a kitten from the Garridos for her birthday two years after she was kidnapped, Dugard wrote in her diary, “I got (a cat) for my birthday from Phil and Nancy … they did something for me that no one else would do for me, they paid 200 dollars just so I could have my own kitten.” This certainly show the total control the Garridos exhibited over her.

Marcus A. Wellons was tried and convicted for rape and murder in Georgia.He was sentenced to death. They must have a strange sense of humor in Georgia. At the end of the trial the jurors gave the judge a chocolate penis and the bailiff a chocolate imitation of a women’s breasts. I do not know what the judge or the bailiff thought but the United States Supreme Court was not amused.

But before the matter got to the Supreme Court Wellons moved for formal discovery and an evidentiary hearing regarding the incident. First he raised the issue on appeal. But he was told that was inappropriate because there was not a written record. Then he raised the issue on a writ of habeas corpus in the state court but he was told that since the issue was decided on appeal a writ of habeas corpus was inappropriate. Finally he went into Federal Court. By the time he got to the Eleventh Circuit Court of Appeals he was told that since the issue was decided in the state court he could not raise it in Federal Court and in any case he loses on the merits.

The United States Supreme Court saw it differently. First, between the time the Eleventh Circuit decided the case and the Supreme Court heard the case, it decided Cone v. Bell, ruling that the fact that the question was raised on direct appeal does not provides an independent and adequate state ground for denying review on habeas. All agree that the Eleventh Circuit violated what was decided in the Supreme Court Cone’s decision. Second the Supreme Court in reviewing the work of the lower courts came to the conclusions that the lower courts did not answer the question as to whether Wellons gets formal discovery and an evidentiary hearing. Rather they attempted to answer whether the conviction should be reversed for the jury’s bad judgment. But as the majority points out that question cannot be answered until after the discovery and the evidentiary hearing is completed. They therefore remanded the case to the Eleventh Circuit to consider the Cone issue.The minority (Roberts, Thomas, Scalia, and Alito) feel that since the Eleventh Circuit ruled not only on the Cone issue but also on the merits that the decision on the merits remain and a remand is inappropriate.

The Lower house of Poland’s Parliament approved mandatory chemical castration upon release from prison for anyone convicted of raping a child under 15 or a close relative. Passage by the upper house of the Parliament is expected.

Mandatory castration has been a major goal of Prime Minister David Tusk who calls pedophiles, “degenerates.” When the issue of human rights is raised he says that he does not believe “one can use the term ‘human’ for such individuals, such creatures. Therefore I don’t think protection of human rights should refer to these kind of events,”

The advantage to chemical castration over physical castration is that it is not permanent and it can be reversed. But it is not 100 per cent effective and it does not work with everyone. It is not mandatory in any other EU nation, although voluntary programs exist in Sweden, the Czech Republic and Denmark, as well as Canada. At least nine state in the United States use chemical castration often only for repeat offenders. These states include California, Florida, Georgia, Iowa, Louisiana, Montana, Oregon, Texas, and Wisconsin.

The current push for mandatory castration legislation in Poland was initiated by the discovery of Joseph Frizl who is accused of having two children by his young daughter,

Yesterday a statute took effect in Texas. All prosecutors and parole boards now have access to DNA evidence for crimes for which the statute of limitations has passed. This will allow them to use the information to attempt to lengthen the sentence of individuals for crimes in which the statute of limitations has not passed.

For example, say a defendant’s DNA matches that in a rape twenty years ago. Since the statute of limitations has passed he cannot be convicted for the old crime. But now he is charged with a rape that happened last year. The prosecutor could use the evidence of the old rape to attempt to get the defendant the maximum sentence in the newer crime.

If the information is only given to prosecutors and parole boards the law may well violate Wardius v. Oregon In Wardius the Supreme Court said that due process demands that discovery must be mutual. In other words if a statute allows a prosecutor access to information it must also allow the defense access to the information.

If the defense is given the information, the cost of defending the case goes way up as defense counsel needs to hire experts to test the DNA and challenge the validity of the police lab’s testing of the twenty year old substance.

While the law allows evidence to be used at sentencing that may not be admissible at trial, the use of DNA to show prior criminal activity where there was no trial or adversarial testing of the evidence may also violate due process. DNA evidence is very incriminating. Yet we know it is not 100% accurate and before its use to aggravate a sentence it should be subject to a jury using a beyond a reasonable doubt standard.

Four Liberian immigrant boys are charged with the rape of an 8 year old Liberian girl in Phoenix. The oldest boy is 14. A second boy is 13 and the two youngest are 10. The 14 year old is being tried as an adult and entered a plea yesterday. He is charged with with one count each of kidnapping, sexual assault and attempted sexual conduct with a minor, and five counts of sexual conduct with a minor.The District Attorney also wants to charge the 13 year old as an adult.

The allegation is that the four boys lured the girl into a shed in their apartment complex with a promise of gum, restrained her and raped her.

After the alleged rape the girl’s father was quoted as saying that he did not want the daughter anymore–that she had shamed the family. Child Protective Services then took the eight year old out of the household.

The children, and all of them are children, come from a country where children are raped all too often. According to Doctors without Borders which treated 275 rape victims in the first four months of this year in Liberia, 61 per cent of the victims were under 13 years old and 28 percent of the victims were under 5 years old. Rape only became illegal in Liberia in 2006.

According to an Associated Press article the fourteen year old was raised in a refugee camp in the Ivory Coast. He came to the United States with his mother and his sister in 2005. His father is still in Africa.

The girl cannot understand why she has been taken away from her family. Instead of receiving the support she needs, she thinks she is being punished for the rape.

The criminal justice system in Phoenix has failed all of the children. The girl has been removed from her family and her support system. Her family needs counseling and help but putting her with strange people is the wrong thing to do. She feels like she is being punished–exactly the wrong feeling for her to have.

The boys, particularly the 14 year old are being punished for behavior that they committed without any evil intent. They came from a country where rape was an everyday thing. It was not even illegal when they left the country. Now they are in a strange country being treated as adult and being held to adult standards. They are in serious need of help and counseling, as are other refugees from war torn countries. But incarceration is not the solution.