« December 09, 2007 - December 15, 2007 | Main | December 23, 2007 - December 29, 2007 »
The Government has filed its supplemental brief after argument in the Guantanamo detainee case, Boumediene v. Bush. On Dec. 11, Lyle Denniston at SCOTUSblog had this post on the detainees' supplemental brief. The briefs discuss aspects of habeas history that are tangential at best, such as English practice in World War II.
Robert Loblaw points to a recent 4th Circuit case, U.S. v. Colonna, 06-5237 (4th Cir., Dec. 20, 2007), suppressing evidence obtained during a search of the defendant's home for child pornography involving 24 FBI agents:
The district court found that Colonna was awakened by armed agents and guarded by agents until the search and interview concluded. The home was inundated with approximately 24 officers who gave Colonna and his family members instructions; that is, they told them where to sit and restricted their access to the home. Colonna did not voluntarily request to speak with Agent Kahn. Instead, Agent Kahn requested that Colonna accompany him to a FBI vehicle to answer questions, wherein a full-fledged interrogation took place. Agent Kahn questioned Colonna for almost three hours, albeit with breaks. But, even during these breaks, Colonna was constantly guarded. Although Colonna was not placed under formal arrest, he was told twice that lying to a federal agent was a federal offense. And, at no time was he given Miranda warnings or informed that he was free to leave.
But the District Court held that since the agents informed Colonna that he was not under arrest, no interrogration took place. Not so, says the 4th Circuit:
Indeed, there is no precedent for the contention that a law enforcement officer simply stating to a suspect that he is "not under arrest" is sufficient to end the inquiry into whether the suspect was "in custody" during an interrogation.
And in a footnote:
Agent Kahn testified that he took twenty-three agents because the house was of considerable size; three stories high, four bedrooms, and a large detached garage.
Lili O. Graue, David T. R. Berry, Jessica A. Clark, Myriam J. Sollman, Michelle Cardi, Jaclyn Hopkins, & Dellynda Werline (2007), Identification of Feigned Mental Retardation Using the New Generation of Malingering Detection Instruments: Preliminary Findings, Clinical Neuropsychologist, 21(6), 929-942.
Abstract: A recent Supreme Court decision - Atkins v. Virginia, 536 U.S. 304 (2002) - prohibiting the execution of mentally retarded (MR) defendants may have raised the attractiveness of feigning this condition in the criminal justice system. Unfortunately, very few published studies have addressed the detection of feigned MR. The present report compared results from tests of intelligence, psychiatric feigning, and neurocognitive faking in a group of 26 mild MR participants (MR) and 25 demographically matched community volunteers asked to feign MR (CVM). Results showed that the CVM suppressed their IQ scores to approximate closely the level of MR participants. WAIS-III and psychiatric malingering measures were relatively ineffective at discriminating feigned from genuine MR. Although neurocognitive malingering tests were more accurate, their reduced specificity in MR participants was of potential concern. Revised cutting scores, set to maintain a Specificity rate of about .95 in MR clients, were identified, although they require cross-validation. Overall, these results suggest that new cutting scores will likely need to be validated to detect feigned MR using current malingering instruments.
The authors are all with the University of Kentucky, Lexington. Research Digest Blog has this summary.
Single drug execution: Jason Mumpower, the Republican leader in the Tennessee House of Representatives, has this op-ed in the Tennessean calling on the state to "explore other options, such as the one-drug method form of lethal injection that has not been challenged in any court." (Hat tip: SL&P) Of course, the reason it hasn't been challenged is that no state is using it. Even so, it would be harder for the opponents to challenge it given that their own experts having been saying it is better. Harder, but not impossible, as their present attack on their own previously proffered alternative demonstrates.
Parole hearing backlogs are the subject of a court-imposed deadline in California, according to this AP story by Jason Dearen. A simple way to reduce backlogs is to hold the hearings less often.
The Baze argument on lethal injection will be released in audio on an expedited basis, according to this press release from the Supreme Court.
Salim Hamdan, Osama bin Laden's driver, body guard, and weapons deliverer, is not a prisoner of war and will face a war crimes trial at Gitmo, a military judge has ruled. Ben Fox reports for AP.
Obama "Present": In the Illinois Senate, Barack Obama had a tendency to vote "present" on contentious bills, including tough crime bills, report Raymond Hernandez and Christopher Drew in the NYT. (Hat tip: Corrections Sentencing). Is this political fence-straddling? Regarding one such bill, "Mr. Obama’s aides said he was more concerned about whether the bill would be effective rather than with its political consequences. They did not explain why he did not just vote no."
Senator Jon Kyl of Arizona has delivered a small Christmas present to AUSA's, federal-case defense lawyers, and federal judges who deal with collateral review petitions by federal defendants. He added Section 511 to H.R. 660, the Court Security Improvement Act, to finally put subdivision designations on the paragraphs of the ungainly 28 USC § 2255. He notes at page S15790 of the Congressional Record that this is for convenience of reference and not a substantive change in the law. The House agreed to the Senate amendments yesterday, and the bill is headed to the White House.
The bill also moves one circuit judge seat from DC to the Ninth, to be filled by the next President. Maybe President Kucinich will nominate Stephen Yagman. Oops, sorry, this is Christmas, not Halloween.
Jonah Lehrer over at Frontal Cortex has a post (hat tip: Corrections Sentencing) that says in pertinent part:
What does this have to do with neuroscience? I think neuroscience is our last, best, and only hope of actually dealing with the drug problem. While addiction is an extremely complicated phenomenon, we now know that the brain utilizes a single chemical mechanism - the dopamine reward pathway - for everything from heroin to gambling to cigarettes. Of course, the molecular details differ in each context, but the general principle is the same. If science can find a way to selectively block the addictive properties of dopamine - without inducing a terrible range of side-effects - the societal payoff would be immense. Of course, nobody is sure that such a pharmaceutical is even possible, but even if scientists can engineer a mildly effective treatment that only works for specific substances, I think it would dramatically change the way we approach the War on Drugs.
This is an attractive and seductive idea. With all of the advances in neuroscience and addictions it's easy to believe that biological science will give us a cure for a phenomenon that is principally biochemically based. Yet it's also quite simplistic and ignores the graveyard of promising addiction treatments of the past that led us down the road of disappointment. The dopamine system is terribly complex. It is globally involved with brain function to the point of ubiquity. Thus, it is associated with a plethora of behaviors so that it is at least nominally linked to all of them. The idea that our understanding of a common dopamine pathway surrounding addictions is tantamount to a molecular key which unlocks the proverbial sobriety door belies the vast territory of the brain that remains a mystery. Our understanding is simply not that great; in many respects the field of neuroscience remains in its infancy. This is not to discount the discoveries of the field; indeed neuroscience has made tremendous discoveries about the brain that should be celebrated. Moreover, there are many promising novel pharmaceutically-based treatments for addictions deserving of our attention. But it's false hope to think that any of these current or foreseeable treatments will lead to a paradigm shift in how we deal with addictions. Ultimately, internal motivation is the key factor for long-term sobriety. For all of the methadone, buprenorphine, and varenicline, the divide between those who succeed and those who fail with sobriety lies mainly outside of biology and chemistry.
"There was no evidence that the defendant's race was related to procedural and sentencing advancement," that is, to the likelihood that a death-eligible case would move forward to a penalty trial and from there to a death sentence.
Since 2003, the Chief Public Defender of Connecticut has had in hand a study that says this but refused to release the study until it came out in litigation yesterday. Lynne Tuohy has this article today in the Hartford Courant.
The State's Attorney had previously tried to get the study released without success. This story in the Courant last week by Katie Melone says the defense claimed it was work product. For one government agency to use the work product doctrine to hide from another government agency a document of basic evidentiary facts (not legal reasoning or impressions) produced with taxpayer dollars is stretching that doctrine, to put it mildly.
Today's article, linked above, says, "Chief Public Defender Susan Storey said Tuesday that it was questions about the statistical significance of the report, and not conclusions that the race of the defendant did not play a role, that prompted her office to withhold its release."
Baloney. Statistical significance is something you deal with in the discussion of what the results mean. The fact that the results are not "statistically significant" is never a reason for suppressing a study.
Statistical significance is an aspect of the way statistical analysis in these types of studies has traditionally been done since the pre-WWII work of R. A. Fisher. If your research hypothesis is that A and B are correlated, you set up a null hypothesis that A and B are not correlated. The rule of thumb is that a correlation is "statistically significant" if you can reject the null hypothesis with 95% confidence. That is, the chance that the true correlation is zero and that the correlation you observed is just random variation is less than 5%. But that is only a rule of thumb, not magic. See generally, Jacob Cohen (1990), Things I have learned (so far), American Psychologist, 45(12) 1304-1312.
A study with results that do not meet the traditional criterion of "statistical significance" still tells us something, and what it tells us may be "significant" in the broader sense of being important. If the correlation between A and B is not statistically significant, we can calculate with some degree of confidence an upper limit of the true correlation. That is, if the correlation coefficient had been greater than X there is a 95% percent chance we would have seen it, so it very likely somewhere between 0 and X. If "less than X" means that B is at most a minor factor in determining A, that is a "significant" result in the broader sense. Statisticians, criminologists, and even lawyers can argue about the significance of facts, but that disagreement is no basis for suppressing the facts.
The methodology of the study might also be questioned. After reading it, I have some serious doubts. Again, though, criticisms of that type would be a reason to release your criticisms along with the study, not a reason to suppress the study.
The Chief Public Defender has some serious explaining to do. What we've heard so far doesn't cut it.
On the underlying question of "disparity," what we see in this study is what we've seen before. Race-of-defendant bias is either zero or so low as to not be a major factor, and this is not the first time the opponents' own study has shown that. There is a claim of so-called race-of-victim bias, meaning the death penalty is not applied often enough in black-victim cases, but that is not an argument for overturning the well-deserved sentences of those who have been sentenced already, as I have explained before. So-called "geographic disparity" is simply not a problem. As Judge David Baime said in the New Jersey disparity litigation, the various jurisdictions within a state are not supposed to "march in lock-step."
This report is not a bombshell, but its suppression reinforces the impression that the opposition regards truth as expendable in its crusade against the death penalty.
Doug Berman highlights a potential case that might be granted cert by the Supreme Court involving a 30 year sentence for a teen who killed his grandparents when he was 12 years old. Ed Silverman adds an interesting twist to the case: apparently the convicted defendant, Christopher Pittman, was taking the antidepressant Zoloft at the time of the killings. There's been a lot of allegations that antidepressants have the propensity to cause suicides, particularly in children. Yet there's strong evidence against this notion (including an international study). The link between antidepressants and violence against others is even less compelling (View image)
Update: The Last Psychiatrist has this very good post about the misinterpretation of a study examining the perception of violence, kids, and mental illness:
I had thought the entire infrastructure of psychiatry rested on the very foundational idea that psychiatric disorders, especially depression, are responsible for increased risk of violence to the self. And these quotes are even more weird given that they come from Ohio and Indiana-- the two states responsible for over half the increase in female youth suicides in the whole country. You know, the increase that everyone is blaming on antidepressants.But words are lies, and you can use loose language like "violence" and "dangerous" and "youth" and "kids"-- bending its meaning to whatever you need it to mean at that moment-- to make any point you want. The actual arguments for this position can be be flipped when necessary (e.g. Nasrallah saying a school shooting isn't "evil" but "medical illness.") You can do this if you manipulate words, e.g. conflating school shooting and suicide to "violence," and then making "violence" mean what you need it to mean at that moment.
Robert Loblaw posts about the 10th Circuit's work in the case Attorneys v. Oliver, 07-4097 (10th Cir., Dec. 18, 2007). The court affirms the disciplinary action against attorney D. Bruce Oliver who, inter alia, argued:
Oliver testified that “it’s okay not to respond” to orders to show cause because the order itself said “if you don’t [respond] your case is going to be dismissed.” . . . He felt that if the court thought a response necessary it “would say, ‘You know, you need to respond to this, and failure to respond will result in sanctions.’”
Res ipsa loquitur.
Scott Gottlieb had this editorial in yesterday's Wall Street Journal discussing the Justice Department's recent criminal prosecutions of pharmaceutical companies for marketing prescription drugs to physicians for "off label" uses. Ted Frank gives his views as well Ed Silverman. Both make good points and there's much to dislike about the heavy handed use of criminal sanctions to enforce corporate behavior in these cases. Yet, Gottlieb's essay falls short.
There is no question that off label uses of pharmaceutical drugs is both endemic and necessary. Moreover, as Daniel Carlat has emphatically suggested finding physician education not sponsored by the pharmaceutical industry is almost impossible; physicians rightly or wrongly rely on drug companies to inform them about the latest developments in pharmaceuticals. But when drug company representatives enter the realm of advising doctors on non-FDA approved uses they are indeed entering treacherous territory. Drug representatives, on the whole, have no medical training and are merely passing along company script when advising physicians about medications. This may be fine when we're talking about FDA approved uses; after all these uses were subjected to rigorous formal trials, peer review, and extensive overview by the FDA. Off label uses are exactly that: not used in conjunction with the science that supports their official use, and hence, almost devoid of the review that gives us assurances that the medicines are safe and effective. As such, the FDA concern about this practice is justified albeit the criminal path may be the wrong method to correct it by.
Convicted felons have a seemingly inexhaustable supply of reason for not submitting to the DNA testing that Congress has required. In United States v. Zimmerman, the Ninth Circuit affirmed in part, reversed in part, and remanded for consideration of Zimmerman's complaint that the drawing of blood violates his religious beliefs.
On one hand, it is tempting to say that the government should have just gone to another method rather than spending the money to litigate this issue. On the other, if the government bends every time a prisoner asserts a claimed and probably fabricated religious objection, it's going to end up doing a lot of bending.
Jane Brody has this piece in the New York Times which discusses recent findings regarding how teenagers perceive and deal with risk:
Is it that teenagers think that they are immortal or invulnerable, immune to the hazards adults see so clearly? Or do they not appreciate the risks involved and need repeated reminders of the dangers inherent in activities like driving too fast, driving drunk, having unprotected sex, experimenting with drugs, binge drinking, jumping into unknown waters, you name it?None of the above, says Valerie F. Reyna, professor of human development and psychology at the New York State College of Human Ecology at Cornell. The facts are quite the opposite. Scientific studies have shown that adolescents are very well aware of their vulnerability and that they actually overestimate their risk of suffering negative effects from activities like drinking and unprotected sex.
That's funny, I thought the psychological community was in agreement that "the characteristics of adolescents" were "as a group, are not yet mature in ways that affect their decision-making." At least that was the position of the American Psychological Association when it came to the juvenille death penalty. Indeed, the APA stated in it's brief that during adolescence the "brain has not reached adult maturity, particularly in the frontal lobes, which control executive functions of the brain related to decision-making." What they failed to mention, however, is that the process of myelination (which is what the APA brief was alluding to) is not complete until around age 50.
A good reason why institutions like APA should not take such strong positions on issues like the juvenile death penalty is because the science is rarely as settled as they make it out to be. We have a lot yet to learn about the human brain and development. Yet, when science enters the legal and political arena it risks its credibility when later discoveries, like those mentioned in the Times article, undermine positions that were so strongly held in the past.
Interrogation Overreaction: Stuart Taylor at National Journal asks, "Does Congress really want to make it unlawful for the CIA to threaten to slap Osama bin Laden (if he is captured) in the face?" (Hat tip: How Appealing)
Executions numbered 42 this year, down 11 from last year mostly because of the Baze v. Rees injection litigation, reports Robert Barnes in the Washington Post. New death sentences are also down for various reasons, one of which is simply the decline in the number of murders, according to "a prominent death penalty proponent."
New Jersey: "Marilyn Flax, whose husband was abducted and murdered in 1989, vowed to work against Corzine and the lawmakers who voted last week to abolish the death penalty. 'I will make sure my voice is used and they are not re-elected,' she said" in this AP article byTom Hester.
"Children." That is how the soft-on-crime crowd likes to refer to people under 18 when they commit crimes. Of course, when teenagers are victims of crimes, that word is completely inappropriate. The 14- and 16-year-old girls raped and murdered by Jose Medellin were "young women," i.e., adults, according to counsel for Medellin. Is there any other context in modern society where people routinely refer to teenagers as "children"? Try standing in front of a class of high school seniors and saying, "Good morning, children," and see what kind of reaction you get. When we want to refer to all persons below the age of majority, we generally say "minors" or "juveniles."
Of course, teenagers are neither children nor adults. This is a transition stage of life, and we need to consider it separately. On the question of whether teenagers who commit crimes should be tried in regular criminal court or juvenile court, the correct answer is, "It depends." This AP story by Helen O'Neill provides a prime example of a case where juvenile court was absolutely the wrong answer.
[O]ne summer night in 1987, Craig Price crept across his neighbor's yard, broke into a little brown house on Inez Avenue and stabbed Rebecca Spencer 58 times. She was a 27-year-old mother of two. He was 13.
Two years passed before Price struck again.
Joan Heaton, 39, was butchered with the kitchen knives she had bought earlier that day. The bodies of her daughters, Jennifer 10, and Melissa 8, were found in pools of blood, pieces of knives broken off in their bones; Jennifer had been stabbed 62 times.
They eventually caught him.
Yet even as police and prosecutors celebrated the capture of Rhode Island's most notorious serial killer, they were reminded of a grim reality.
In five years, Price would be free to kill again.
Price was a month shy of his 16th birthday. As a juvenile, he would be released from the youth correctional center when he turned 21 _ the maximum penalty under Rhode Island law at the time. His records would be sealed. The 5-foot-10 inch, 240-pound killer would be free to resume his life as if the murders had never occurred.
The law was on his side and Price knew it.
As described in the story, Price has been kept in prison through extraordinary efforts. That should not have been necessary. Price was not a child. Juvenile court disposition should not even be considered in a case like this. Committing murder on more than one occasion should be automatic life-without-parole for a teenager. It should be an automatic death sentence for an adult.
From the NCJRS Weekly Accessions List:
Attitudes of Members of the Association for the Treatment of Sexual Abusers Towards Treatment, Release, and Recidivism of Violent Sex Offenders: An Exploratory Study, Journal of Offender Rehabilitation, Volume:44 Issue:4 Dated:2007 Pages:17 to 24, Michael J. Engle ; Joseph A. McFalls Jr. ; Bernard J. Gallagher III: "The findings suggest that the popular belief that sex offenders cannot be cured is shared by professionals who work with and/or study these offenders. A large majority (63 percent) of the professional respondents reported little hope for a cure, and 88 percent reported a fear of recidivism after treatment."
Prosecutorial Discretion and the Imposition of Mandatory Minimum Sentences, Journal of Research in Crime and Delinquency, Volume:44 Issue:4 Dated:November 2007 Pages:427 to 458, Jeffery T. Ulmer ; Megan C. Kurlychek ; John H. Kramer: "The analysis found those prosecutors’ decisions to apply the mandatory minimum were significantly affected by the type and characteristics of offenses, guideline sentence recommendations, prior record, mode of conviction, and gender. Legally relevant factors, such as case processing concerns (rewarding guilty pleas) and social statuses (gender, ethnicity, and age) shaped prosecutors’ perceptions of blameworthiness, community protection, and their decisions to apply mandatories."
Fingerprinting Reforms at Hand, Law Enforcement Technology, Volume:34, Issue:10, Dated:October 2007, Pages: 128, 130 to 133, Douglas Page: "This article describes a novel method of detecting fingerprints by using X-rays, which don't disturb the print and reveal chemical markers that could give investigators new clues for tracking suspects and missing persons."
Victims' Rights is the subject of this story by Emma Schwartz in U.S. News and World Report. Paul Cassell is quoted. (Hat tip, How Appealing)
Surveillance legislation appears poised to pass the Senate in largely the form favored by the Administration, Siobhan Gorman and Evan Perez report in the WSJ.
Timmendequas's Law was signed by Gov. Jon Corzine in New Jersey. Tom Hester reports here for AP. The "On the Net" feature at the bottom of the story gives links to two web sites, both on the anti side.
Fixing Bad Credit. We've all seen those sleazy commercials claiming to be able to fix the credit ratings of people who don't pay their bills. Turns out some of these outfits actually did -- by bribing credit bureau employees. The Ninth Circuit in United States v. Betts affirmed the conditions of supervised release for the employee regarding employment restriction and a Samson-type search condition but reverses on applying windfalls to restitution and abstention from alcohol.