Assets under attack: metal theft, the built environment and the dark side of the global recycling market

This paper explores the effects of, and apparent cause of, unprecedented levels of metal theft from the built environment (both in the UK and globally) in the period 2005 to 2008. Readily accessible and unguarded metallic elements present in the built environment, such as manhole covers, road signs, church roofs, electricity substations, rail cable, statues, memorial plaques, wiring and piping have all been pillaged, causing major distress, disruption and/or repair expense. This paper describes the relationship between soaring metal prices for copper and lead and economic demand in China and examines the contemporary legal, policy and practical responses to the metal theft phenomenon. Through this analysis the paper shows how metal theft raises some unusual (and uncomfortable) questions about what happens when recycling becomes too successful in terms of its financial attractiveness and the ease of integration of materials back into the materials markets. The paper explains that whilst neither metal theft nor attempts at its regulation are new, the scale of contemporary metal theft calls for a greater focus and co-ordination of asset defence and enforcement action at national policy level.</p

Lie Detection: The Supreme Court\u27s Polygraph Decision

In United States v. Scheffer, decided this past Term, the Supreme Court considered for the first time the admissibility of polygraph evidence. The Court held that exclusion of such evidence on behalf of a criminal defendant was supported by valid justifications and offended no constitutional right to present a defense

The Prosecutor as Minister of Justice

Times have changed. Today, prosecutors are on top of the world. Their powers are enormous, and constantly reinforced by sympathetic legislatures and courts. The awful instruments of the criminal law, as Justice Frankfurter described the system,1 are today supplemented with broad new crimes, easier proof requirements, heavier sentencing laws, and an extremely cooperative judiciary, from district and state judges, to the highest Court in the land

The Prosecutor\u27s Obligation to Grant Defense Witness Immunity

The author enumerates the three most common situations in which the courts have required the prosecutor to offer immunity to defense witnesses: (1) to safeguard the defendant\u27s right to essential exculpatory testimony; (2) where the use of the prosecutor\u27s powers to grant immunity causes such distortion in the fact-finding process as to require granting immunity to defense witnesses; and (3) where immunity is required to remedy prosecutory misconduct such as the intimidation of witnesses. The use of the missing witness instruction to avoid reaching the constitutional issue is also discussed

Proving the Defendant\u27s Bad Character

The classic study of the American jury shows that when a defendant\u27s criminal record is known and the prosecution\u27s case has weaknesses, the defendant\u27s chances of acquittal are thirty-eight percent, compared to sixty-five percent otherwise. Because of the danger that jurors will assume that the defendant is guilty based on proof that his bad character predisposes him to an act of crime, the courts and legislatures have attempted to circumscribe the use of such evidence. Some prosecutors, however, although well aware of the insidious effect such prejudicial evidence can have on jurors, violate the rules of evidence, as well as ethical standards, by deliberately introducing inadmissible evidence in order to obtain a conviction, despite the risks involved

A Penal Colony for Bad Lawyers

In this article I set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation. The Sixth Amendment right to counsel--the so-called “sacred” right--seeks to ensure at least a reasonable degree of lawyering skill. Also, professional codes seek to ensure zealous and meaningful representation. Nevertheless, these standards are very broad, and bad lawyering often escapes sanctions or even notice. Ironically, although bad defense lawyering, in my opinion, happens at least as often as bad prosecuting, the latter appears to have elicited more criticism by the media and the academic community. Why this disparate treatment of prosecutors and defense lawyers? It is a curious dichotomy, especially since bad lawyering by defense attorneys, as documented in many studies, accounts for at least as many miscarriages of justice as misconduct by prosecutors. To be sure, just as most prosecutors behave fairly and professionally, so do most defense lawyers represent their clients with skill and dedication. But, just as some prosecutors behave dishonorably, some defense lawyers behave incompetently. However, bad prosecutors are excoriated; bad defense lawyers are marginalized or ignored. Thus was born the idea--borrowed loosely from Kafka--of a “Penal Colony” as a disruptive innovation to improve the quality of American lawyers and punish the bad ones

Prosecutorial Ethics and Victims\u27 Rights: The Prosecutor\u27s Duty of Neutrality

In recent years, enhanced legal protections for victims has caused victims to become increasingly involved in the criminal justice process, often working closely with prosecutors. In this Article, Professor Gershman analyzes the potential challenges to prosecutors\u27 ethical duties that victims\u27participation may bring and suggests appropriate responses

Constitutionalizing Ethics

The purpose of this essay is not to weigh in the wisdom or utility in revising New York’s Constitution. However, in my opinion, one of the most compelling reasons to amend New York’s Constitution is the need to incorporate into the fundamental charter a meaningful code of ethics, including procedures for its enforcement, and sanctions for violations. New York over the past fifteen years has experienced more scandals, criminal prosecutions, and convictions of lawmakers and other government officials for corruption than any state in the nation. It is certainly arguable that the extent of New York’s corruption, and the widespread cynicism and distrust of the New York government, may be attributable to the state’s inability to enact meaningful and enforceable ethics laws. The public perception appears to be that New York’s government is not working for them and that some officials subordinate the good of the state to their own personal gain. It is this crisis in government ethics that to me offers one of the strongest arguments for amending the constitution to bring about meaningful ethics reforms

Prosecutorial Misconduct in Presenting Evidence: Backdooring Hearsay

Rules of evidence are designed to bring about just and informed decisions. One of these rules, the hearsay rule, is designed to ensure that juries receive reliable evidence, and that out-of-court statements ordinarily are inadmissible. Prosecutors are well aware of these evidentiary restrictions, but occasionally seek to circumvent them. The author describes methods used by some prosecutors to manipulate the hearsay rule and thereby distort the truth-finding process of the trial