Takings Clause and Foreigners: Thanks to Eugene Volokh at Volokh Conspiracy for his post on the Federal Circuit opinion dismissing a claim that the Fifth Amendment's Takings Clause applied to foreign nationals with no relationship to the United States. While the Takings Clause does not normally arouse our interest, the Federal Circuit's discussion of the Bill of Rights as it applies to foreigners is of interest - especially in light of pending U.S. Supreme Court decisions pending in Boumediene and Al Odah.

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Ohio Murderer May Finally Face Execution Cleveland Plain Dealer reporter Maggi Martin writes that, after 21 years of appeals, double-murderer Richard Cooey may soon receive his sentence. Cooey was sentenced to die on December 1986 for the rape and murder of two waitresses, Wendy Offredo, 21 and Dawn McCreey, 20. Cooey had disabled the victim's car by hitting it with a rock thrown from an overpass. Minutes later he pulled up in his car and offered to take the girls for help. He drove them to a remote area where he raped and strangled them. The most recent delay in Cooey's case was an Eighth Amendment challenge to the state's lethal injection process. With that issue settled, the state attorney is asking the Ohio Supreme Court for an execution date.

Is European Law Enforcement Biased Against Muslims? A Washington Post story by Molly Moore reports that while only 3 percent of all Briton's are Muslim, they make up 11 percent of its prison inmates. In the Netherlands 20 percent of adult inmates and 26 percent of juvenile inmates are Muslims although only 5.5 of the population share that faith. It gets worse, 2% of those living in Belgium are Muslim but they represent 16% of the prison inmates. France beats them all with Muslims making up 12% of the population but an estimated 60-70% of all inmates. Sociologists opine that this represents a failure to integrate Muslim immigrants. But maybe it's a cultural problem. Maybe some immigrants don't want to integrate. Hummm.

More breaking news on the possible first post-Baze execution. Lyle Denniston at SCOTUSblog has this post, with the pleadings, on Georgia murderer William Lynd's certiorari petition and request for stay to the U.S. Supreme Court.

The state's opposition notes that the Georgia Supreme Court's decision rests on the independent state ground that Lynd has already had a state habeas petition and is not entitled to another one. Lynd's reply says that the mere fact that the state court requested merits briefing means its decision was on the merits, not procedural default, and the Supreme Court therefore has jurisdiction. Nope. We slew that dragon 17 years ago. See Coleman v. Thompson, 501 U.S. 722, 744 (1991).

Update: Lyle reports that the Court denied the stay and certiorari at 7:01 ET.

Update 2: "William Earl Lynd was pronounced dead at 7:51 p.m. EDT, Georgia Department of Corrections spokeswoman Mallie McCord told The Associated Press," Shannon McCaffrey reports.

Hat-tip to Paul Cassell at the Volokh Conspiracy for the link to the text of Senator McCain's speech on his judicial appointment philosophy. The speech was given today at Wake Forest University and outlines McCain's conservative philosophy of appointing qualified judges to positions in the federal courts. For McCain, qualified judges are those who will apply the Constitution, and the laws of democratically elected representatives, to each case at hand. This would include "people in the cast of John Roberts, Samuel Alito, and the late William Rehnquist" because these were jurists "who knew their own minds, and know the law, and know the difference." McCain was particularly careful to point out that his appointments would understand the "clear limits to the scope of judicial power" as well as "the clear limits of the federal power."

Continue reading "Senator McCain Explains His Judical Philosophy" »

Georgia Murderer Faces Execution: William Earl Lynd, sentenced to death 18 years ago for the kidnap and murder of his ex-girlfriend, is scheduled for execution tonight as reported in this story by AP writer Shannon McCaffrey. Lynd will be the first murderer executed since last September, when the U.S. Supreme Court agreed to review the lethal injection process in the Kentucky case of Baze v. Rees, decided on April 16.

Update: The Georgia Supreme Court unanimously denied a stay this afternoon. Atlanta Journal-Constitution story here.

DC Sniper: AP reports that John Allen Muhammad has written a letter to prosecutors saying that he wants to drop his appeals, and he asks for their help against the efforts of his lawyers. They claim he is brain damaged.

Do capital defense lawyers oppose every attempt to "volunteer" and claim mental incapacity every time? It seems to happen with great regularity.

Medellin Execution Date Set: The Blog of Legal Times has this post on the decision to set Jose Medellin's execution for August 5, 2008. In March 2008, the Supreme Court ruled that an International Court of Justice judgment was not binding domestic law, and Medellin was not entitled to further review of his conviction and death sentence. CJLF submitted an Amicus Brief in the case. The brief can be found here. See also press coverage in today's News Scan.

Predicting Lethal Injection Review Post-Baze: Lyle Denniston at SCOTUSblog has this post on proceedings in the Fourth Circuit on the question of whether Virginia's lethal injection protocol satisfies the constitutional standards articulated in Baze v. Rees. Virginia filed its petition with the Fourth Circuit last Friday, its brief can be found here. Denniston reports that Virginia's brief focuses heavily on the argument that the district court anticipated the U.S. Supreme Court's decision in Baze, and applied the same constitutional standards to uphold Virginia's method. This brief is in response to Christopher Scott Emmett's April 16th petition to the Fourth Circuit urging the Fourth Circuit to send the case back to the district court to determine if Virginia's protocol adequately resembles the lethal injection upheld in Baze v. Rees. Emmett's petition can be found here. Denniston's post notes that the Fourth Circuit's decision could lead the way by setting an example for other courts to follow when reviewing state lethal injection protocols.

Media Coverage on Execution's Post-Baze: Over at Sentencing Law and Policy Douglas Berman also has this comment on the news stories that have reported on scheduled executions in the wake of Baze v. Rees. Based on the media coverage, and politician silence after the Baze decision, Berman predicts we will not see a "serious change in capital" punishment "even if we see a few executions every week for the rest of 2008."

Civil Rights Pioneer Mildred Loving, a black woman who challenged Virginia’s ban in interracial marriage, died Friday in her home. On June 12, 1967, the Supreme Court upheld Mildred and Richard Loving’s right to marry. Washington Post writer Dionne Walker reports, “the ruling struck down laws banning racially mixed marriages in at least 17 states”. The story is available here.

Editorial Supports Victims' Rights: In a rare break from sympathizing with criminal defendants, the LA Times editorial page is defending introduction at trial of the statements of a murder victim in the Supreme Court case of Giles v. California.

Blinded by Reality. Apparently unaware of multiple studies showing that keeping habitual criminals and drug dealers behind bars is far cheaper than releasing them back into society, Washington Post writers Keith Richburg and Ashley Surdin report as fact, the decades-old claim by the Sentencing Project (read Reduce Sentencing Project) that the opposite is true. The story quotes the groups executive director: “Do you want to build prisons or do you want to build more colleges." ...... Hello?.. open the prison doors and any supposed savings will be spent building more morgues, rape crisis centers and drug clinics.

Texas Sets Date for Medellin: Michael Graczyk of AP reports, that Texas has set an execution date of August 5 for murderer Jose Medellin. CJLF has been involved in Medellin's case since 2005 and filed a brief on behalf of one of his victim's families in Medellin v. Texas, decided last March.

Six murders over a video game WWSB ABC News reports, that the Florida Supreme Court heard arguments today challenging the conviction of three defendants for the 2004 massacre of six people in a Deltona home. The defense attorney argues that the three defendants should have received separate trials. One defendant was convicted and sentenced to LWOP. The other two received death sentences. A fourth accomplice pleaded guilty and received LWOP. The victims were killed over the theft of an X Box video game.

The anti-DP crowd is crowing over another "exoneration," once again obscuring the distinction between inability to reprosecute and actual proof (or even evidence) of actual innocence. DPIC, for example, has this description of the case of Levon Jones in North Carolina. The headline begins "Innocence" even though the text of the story does not claim he is actually innocent.

The district attorney's press release is here. It turns out the witness recantation is only in an affidavit prepared by defense counsel. That is the weakest of all forms of evidence. It is not unusual for a person to sign a statement under pressure from a persistent lawyer or investigator only to say something quite different when speaking in his or her own words on neutral ground. But in this case, the witness won't speak to anyone from law enforcement. The DA believes she has been intimidated by the defendant. Two other witnesses in the case are dead.

What does it mean to be "exonerated"? The Oxford online dictionary says, "1 officially absolve from blame. 2 (exonerate from) release (someone) from (a duty or obligation)." If a person is released and the charges are dropped, the person is "exonerated" in the second sense. He has no remaining duty or obligation. He is not, however, absolved from blame in the sense of having been affirmatively shown to be blameless.

This is a vitally important distinction when the policy implications of cases such as this are considered. The requirement of proof beyond a reasonable doubt, along with other protections for the defendant, means that we tolerate a lot of guilty people going free. That happens on initial trials, such as O.J. Simpson, and it happens when convictions are set aside and cases are sent back for retrial. The fact that a few cases cannot be successfully reprosecuted a decade or two after the crime does not mean that the defendants were innocent. A few are, but not all or even most.

The federal courthouse in San Diego was hit by a bomb about 1:40 a.m. Sunday. Angelica Martinez has this story in the San Diego Union-Tribune.

Thomas Sowell has this column on Barack Obama, noting that eagerness to have a black President is not a good reason to elect this particular person as President:

Just the power to nominate federal judges to trial courts and appellate courts across the country, including the Supreme Court, can have an enormous impact for decades to come. There is no point feeling outraged by things done by federal judges, if you vote on the basis of emotion for those who appoint them.

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"DNA matches aren't always a lock" is the headline of this LA Times story by Jason Felch and Maura Dolan. Cases where a suspect is identified by a "cold hit" database search involve different probability considerations than the typical case where a person already a suspect based on other evidence is confirmed as the perpetrator by a DNA test.

By analogy, if you buy a lottery ticket for a drawing, the chances that your ticket will win are extremely small. However, the chances that somebody will win from that drawing are often pretty good. If the chance that a person would match a profile if selected at random are one in a million and the database searched for that profile has millions of people, then there is a decent chance that an innocent person will be a random match. Of course, with fresh samples and modern techniques, the random match probability is 1/quadrillions, not millions, so the chance of random false positive remains very small. With old, degraded samples and only a few markers available, though, the chance of a false positive match is significant.

Is this story accurate? I would be interested in hearing from DNA experts.

The Constitution and Judicial Supremacy: At Bench Memos Ed Whelan and Matthew J. Franck have two posts on the Senate resolution that declared John McCain a "natural born" citizen under Article II, Section 1, of the Constitution of the United States. Matthew Franck's post reacts to today's Washington Post article by Matthew Dobbs. The post disputes Dobbs' claim that a Constitutional amendment might be necessary to clarify what is meant by "natural born" in Article II. Whelan's post adds to Franck's post by taking up Franck's statement, " 'Congress cannot legislatively change the meaning of the Constitution.' That's true. Somehow it never seems to occur to most law professors that neither can the Supreme Court judicially change the meaning of the Constitution." Whelan adds his own thoughts as they relate to Lawrence Solum’s “Semantic Originalism”.

The Takings Clause and the Fourth Amendment: Orin Kerr at Volokh Conspiracy posted his reaction to Ilya Somin's textualist reading of the Fifth and Fourth Amendments and their possible interplay. Kerr disagrees with Somin's argument that there is significance in the fact that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. He also specifically addresses Somin's point that the Framers didn't experience seizures of property owned by innocent third parties.

Justice Resumed?: Bill Mears at CNN has this story on post-Baze executions scheduled in Georgia and Mississippi next week.

Intelligent Life at a College Newspaper
An editorial in San Diego State University's paper, The Daily Aztec, suggests that "America's tough and distinct approach to crime and punishment" has driven crime rates down. Columnist Holly Wells also notes that when comparing the cost of incarceration with the cost of leaving criminals on the streets, "prison is a bargain." She also compares U. S. sentencing policies with those in England, concluding that "when America got tough...crime rates dropped. When England got soft on crime, rates increased."

Hispanics lead in cocaine convictions: An AP story reports that according to government data, Hispanics now make up the overwhelming majority--60%--of federal offenders facing powder-cocaine charges. Part of the reason is that most of the powder-cocaine entering the U.S. has been coming through Mexico since federal law enforcement cracked down on trafficking through Florida. Another factor is the dramatic shift in focus from users to suppliers. The story notes that cocaine possession represented less than 4% of federal convictions in 2007, while 96% involved drug traffickers, manufacturers and distributors. No Virginia, the prisons are not full of non-violent folks caught using drugs.

Federal Sentencing at the Ninth Circuit: Douglas Berman at Sentencing Law and Policy posted his thoughts on today's Ninth Circuit sentencing decision in Tapia-Romero, No. 05-50121 (9th Cir. May 1, 2008). Berman's commentary questions whether the Ninth Circuit was correct to uphold the district court's determination that "cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment." Berman wonders how far the decision will be taken, and whether it will lead to the prohibition of cost-benefit analysis in all federal sentencing determinations.