DNA Evidence Used For Inculpation and For Exoneration

In the past twenty years, advances in forensic DNA technology have revolutionized the American criminal justice system. DNA analysis not only has the power to exonerate the innocent, it also has the potential to eliminate suspects in many cases as well. A recent article in the Science Section of Thursday’s New York Times shows that it also helps apprehend the guilty. The article discusses an investigative technique called "surreptitious sampling" where law enforcement officers tail a suspect until he or she discards an item like a cigarette butt, a soda can, a disposable coffee cup, a tissue or similar trash that the officers can use to retrieve a DNA sample for comparison to DNA recovered at a crime scene. This method of gathering evidence also includes giving a suspect a can or glass during interrogation and keeping it to test for a DNA sample.

Critics claim this practice constitutes an unreasonable search and seizure under the Fourth Amendment and therefore violates the privacy rights of the accused and of citizens in general. However, some courts have held that such DNA material was abandoned when the suspect threw away the cigarette or coke can and that there is no need for a court to approve such evidence gathering or issue any type of warrant. In 2007, the Appeals Court of Massachusetts, in Commonwealth v. Cabral, 866 N.E.2d 429, held that the a defendant had no reasonable expectation of privacy in his saliva that he spit on the sidewalk and that the DNA evidence collected from the sample was admissible. Other lower court judges generally agree with such reasoning. How the US Supreme Court will address the issue is discussed in a 2006 article in the Journal of Law, Medicine & Ethics entitled “Is Obtaining an Arrestee’s DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?”

As the NY Times article suggests, there will be a number of different approaches to this problem in years to come. Permitting the use of evidence gathered through surreptitious sampling may require that law enforcement meet a standard of reasonable suspicion. Adding this requirement would ensure that random people are not subject to such surreptitious sampling. Courts so far have sided with the police as it has long been accepted since the US Supreme Court case of California v. Greenwood, 486 U.S. 35 (1988) that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left outside of a home for collection based on a theory of reasonable expectation of privacy.

Episode 022 – Conversation with Nick Reiter, Class of 2008

Episode 022 – Conversation with Nick Reiter, Class of 2008.mp3

In this conversation, we hear from the Editor-in-Chief of the Brooklyn Journal of Law and Policy, Nick Reiter of the Class of 2008. The Journal of Law and Policy began in 1993 and usually publishes two issues each year. Its mission is to analyze and promote the debate of law-related issues and public policy through articles written by legal scholars, law students and distinguished members of the legal and policymaking communities. Nick talks about his article, Dollars for Victims Of "Victimless" Crime: A Defense Of Drug Dealer Liability Acts published in Volume XV, No. 3 (Winter 2007) of the Journal at pp. 1329-1374. He also talks about the support from Prof. David Reiss, Prof. Margaret Berger and the journal members in helping him in the management of the journal this year. Nick also discusses plans for next year's journal under the management of Seth Cohen, the incoming Editor-in-Chief.

SoYouWantToBeALawClerk

Today's Wall Street Journal Law Blog reports on a new website that offers practical advice to law students looking for judicial clerkships.

The site, http://www.soyouwanttobealawclerk.com/, was started this past February by Ellen Carey, a 32-year-old clerking veteran. In an interview with the Law Blog, she talks about what led her to create the website and gives some details about the clerkship application process. The website's menu has links to the Application Process (with practical tips about the best time to apply, letters of recommendation, writing samples. cover letters and resumes); the Interview; Job Hunt Strategies; On-The-Job Advice; and FAQs. There is also a fairly extensive list of Clerkship Vacancies from around the country with links to useful resources like the Clerkship Notification Blog, the US Courts Job Vacancies Page and the Federal Law Clerk Information System web page.

Brooklyn Law School offers a variety of resources and assistance to students interested in applying for post-graduate judicial clerkships. For the current version of the Clerkship Manual and other information about applying for clerkships, BLS students can consult the Judicial Clerkship page on the Career Center webpage http://www.brooklaw.edu/career/studclerkships.

Source: WSJ Law Blog, SoYouWantToBeALawClerk? A New Web Site Claims to Lead the Way by Dan Slater, March 28, 2008

E-Voting and the Integrity of Elections

Episode 021 – Conversation with Josh Benfey, Class of 2009.mp3

In this pod cast, we hear from Josh Benfey, Class of 2009 and a member of the BLS chapter of the American Constitution Society, one of over 160 law school chapters of the American Constitution Society for Law and Policy. The ACS was founded in 2001 and is one of the nation's leading progressive legal organizations. Its projects address a range of issues such as: Access to Justice; Constitutional Interpretation and Change; Criminal Justice; Democracy and Voting; Economic, Workplace and Environmental Regulation; Equality and Liberty; Religion Clauses; Separation of Powers and Federalism; and International Law and the Constitution Working Group. This week, the BLS chapter of ACS hosted a screening of “Hacking Democracy”, a non-partisan, critically-acclaimed, Emmy-nominated 2006 documentary from HBO. The film addresses electronic voting machines which, since the 2000 presidential election, count nearly 90% of US votes.

See the trailer for the film.




Designed to eliminate voting problems that occurred in the 2000 election, especially in Florida, touch screen voting machines have had a history of security flaws in states such as Florida, New Jersey and Ohio. Law suits and congressional reports have questioned the reliability of e-voting. A recent NY Times article reports on a New Jersey lawsuit challenging the results from voting machines used in the February 8, 2008 primary election. Another recent news report tells of calls to shift away from paperless systems citing the 18,000 uncounted votes in the 2006 elections in Florida's 13th district that critics attributed to error or tampering with the electronic voting machines. A House Judiciary Committee Report requested by Rep. John Conyers entitled "Preserving Democracy: What Went Wrong in Ohio" raised questions about electronic voting in the 2004 presidential election. The GAO issued a Report of E-Voting Challenges in April 2007 citing concerns that included “vague or incomplete voting system standards, system design flaws, poorly developed security controls, incorrect system configurations, inadequate testing, and poor overall security management." Despite these concerns and legislative efforts by Sen. Bill Nelson (FL) and Rep. Rush Holt (NJ) bill to pass the Voter Confidence and Increased Accessibility Act of 2007 to amend the Help America Vote Act of 2000 to require voter-verified permanent paper balloting, the 2008 elections will likely use electronic voting.

Episode 020 – Conversation with Margaret Hanson, Class of 2008

Episode 020 – Conversation with Margaret Hanson, Class of 2008.mp3

In this pod cast, we hear from Margaret Hanson, Class of 2008, and Editor-in-Chief of the Brooklyn Journal of Corporate, Financial and Commercial Law. Founded in 2005, it is the newest of the student-run journals at BLS and is devoted to business law topics, specializing in corporate, financial and commercial law subjects, including securities and bankruptcy law. Margaret talks about the benefits of working on a scholarly journal and the lessons learned as Editor-in-Chief. She also discusses plans for the upcoming year for the journal with the new Editor-in-Chief, Andrew Kirkpatrick and the new Managing Editor, Paul Schwartz.

Iranian Gays Seek Asylum in UK to Avoid Execution in Iran

The cases of a twenty-year-old gay Iranian in London on a student visa and a forty-year old Iranian lesbian show the complex legal, political and personal issues in the law of political asylum. The stories highlight governmental policies with profound human rights implications: Iran’s barbaric policy of executing its citizens for homosexual conduct by a method of slow strangulation designed to maximize suffering; the British Home Office policy of reducing the number of successful asylum applications and increasing the rate of refugee deportation; and a flawed EU agreement designed to work out an orderly political asylum application process for refugees.

According to CNN International, Mehdi Kazemi, originally sought asylum in the UK after learning that his boyfriend had been executed in Iran after saying, under torture, that he and Kazemi had been in a gay relationship. The British Home Office, rejecting Kazemi's request, ordered him to be deported in a written statement saying that even though homosexuality is illegal in Iran, it did not believe that gays were routinely persecuted purely on the basis of their sexuality. After he was ordered deported, Kazemi fled to the Netherlands where the Council of State (the highest administrative court in the Netherlands) rejected Kazemi’s plea for asylum on the grounds that it had to comply with the Dublin Regulation and return Kazemi to Britain. Under the Dublin Regulation, adopted by the EU in 1997, an asylum seeker must lodge an application for asylum in the first EU country where he or she arrives. The Dublin Convention was designed to prevent “asylum shopping” and is an effort to harmonize asylum policies in the EU.

The European Parliament adopted a resolution this past Thursday (by a vote of 46 to 2 with 12 abstentions) urging a solution to the case, pointing out that the Iranian authorities "routinely detain, torture and execute persons, notably homosexuals" and that "Mehdi's partner has already been executed, while his father has threatened him with death". It also urged EU members “to take action to prevent similar situations in the future, while acknowledging that the Commission has announced, for 2008, amendments to the Dublin Regulation”. The resolution also cited the case of an Iranian lesbian, Pegah Emambakhsh, whose asylum application had been denied by UK authorities despite fears that she would face execution if deported to Iran. A report in the British newspaper the Independent gives the details of her case.

For now, Kazemi’s asylum application is under review by the British Home Office which has announced a temporary stay on his deportation. "This is very positive. But reconsidered doesn't mean he'll get a permit, they could still deny what he is asking," Kazemi's Dutch lawyer told according to a Reuters report.

Episode 019 - Conversation with Jared Goodman, Class of 2009

This week, the Student Animal Legal Defense Fund hosted a screening of Earthlings, a 95 minute documentary narrated by Joaquin Phoenix. The film is an in-depth examination of factory farming and mankind's dependence on animals for food, clothing, entertainment and use in experimentation. Using hidden cameras and other footage, the film chronicles the day-to-day practices of industries that rely on animals for profit – industries such as the leather and fur trades, the sports and entertainment industries and the medical and scientific professions. The film also focuses on animal abuse in pet stores, puppy mills and animal shelters. See the trailer.



In this conversation, Jared Goodman, President of the BLS Student Animal Legal Defense Fund, and SALDF member Kathleen Christatos, Class of 2010, discuss the film and the work they do as the local chapter representing the Animal Legal Defense Fund.

Episode 019 - Conversation with Jared Goodman, Class of 2009.mp3

Readers interested in learning more about the subject can check out books from the BLS Library collection including Peter Singer's In Defense of Animals: the Second Wave, Call # HV4711 .I6 2006.

The BLS Library has a fairly extensive collection of related material such as the seminal, philosophical 1983 treatise The Case for Animal Rights by Tom Regan, Call # HV4708 .R43 1983 and Steven M. Wise's Rattling the Cage: Toward Legal Rights for Animals, Call # HV4708 .W57 2000.