Crime and Consequences

The U.S. Supreme Court granted certiorari in six cases today, all civil. SCOTUSblog has the details. Criminal cases that were on the conference list for today are likely either denied (to be announced Tuesday) or "relisted" to be considered again at a later conference.

Absent extraordinary circumstances, the docket for this term is set. The next scheduled conference is February 15, and cases taken then will be argued next fall.

Update: The official orders list is now available here. Jason Harrow notes at SCOTUSblog that the Ninth Circuit's share of the Supreme Court docket is down a little this term, 17% of the docket instead of 20%. Possibly that court's increased willingness to correct rogue panel decisions by taking them en banc, noted previously here, has something to do with that.

Posted by Kent Scheidegger at 10:53 AM | Permalink | Comments (0)

The History channel has been running an excellent series on the development of gangs in the United States. Gangland is an intriguing and revealing look at the realities of gangs. Highly recommended.

Posted by Steven K. Erickson at 08:48 AM | Permalink | Comments (0)

Late last month, we noted a welcome trend at the Ninth Circuit to go en banc more often to correct more of the rogue panel decisions that have given that court its reputation. Today that trend continues in Plumlee v. Masto. The case involves a difficult client who demands appointment of a different attorney because of a deterioration in the relationship, even though the attorney appointed for him has no actual conflict and has done nothing wrong. A panel bought the argument, but today the en banc court got it right.

We hold today that the Nevada Supreme Court did not misapply clearly established federal law as determined by the Supreme Court when it ruled that Plumlee’s right to the effective assistance of counsel was not violated by the trial judge’s refusal to appoint a different lawyer.

Only one judge in today's 11-member quasi-en-banc panel dissented from this holding.

Posted by CJLF Staff at 01:27 PM | Permalink | Comments (0)

Mail Call: Memo to wives and girlfriends of jailbirds: If you don't want the jailers to see nude pictures of you, don't mail them to your beloved in the jail. All the mail is opened. Jessica Duran claims that Mesa County, Colorado owes her $100K for "humiliation and emotional distress," reports Gary Harmon in the Daily Sentinel. (Hat tip: How Appealing.)

Penn. CJ: Ronald Castille, former DA of Philadelphia and associate justice since 1993, was sworn in as Chief Justice of Pennsylvania earlier this week, Emilie Lounsberry reports for the Inquirer.

Voter Fraud: As previously noted here, the Supreme Court is presently considering a challenge to Indiana's voter ID law by the Democratic Party in that state. The ID requirement is unnecessary, the argument goes, because voter fraud is a nonproblem. This Saturday, the Nevada Democratic Party is holding caucuses on the Las Vegas Strip for voters who work in that area. To establish their eligibility, the party will require the voters to show ID, according to John Fund in OpinionJournal.com.

DNA Testing: The California Court of Appeal in SF has held that Proposition 69, expanding DNA testing to all registered sex offenders, applies retroactively, Bob Egelko reports for the SF Chron. The case is Good v. Superior Court, A117317.

Posted by CJLF Staff at 09:12 AM | Permalink | Comments (1)

We are still waiting for a decision in Medellin v. Texas, argued October 10. (Briefs are here; argument transcript here.) This is the case on the Vienna Convention on Consular Relations and the International Court of Justice decision on the cases of 50+ Mexican nationals on death row in the United States.

The Court picked some low-hanging fruit today. In New York State Bd. of Elections v. Lopez Torres, the Court answered the question of whether the federal constitution requires primaries in state judicial elections. (Answer, without dissent: of course not.) The opinion is by Justice Scalia, and the case was argued October 3. There is also an eyes-glaze-over tax case, Knight v. Commissioner. This is a unanimous opinion by Chief Justice Roberts in a case argued a mere 7 weeks ago.

At this point, we can start playing the SCOTUS-watchers' favorite parlor game, guessing the outcome of the remaining October cases by guessing which justice they are assigned to. There were nine cases on the initial calendar, but one of them was one-lined per curiam when Justice Kennedy was recused and the others split 4-4. Opinions from that session have been written by Stevens (Gall), Souter (Watson), Ginsburg (Kimbrough), Kennedy (Stoneridge), and Scalia (today's New York case). Assuming the opinions are spread among the justices, as they generally are, this leaves four justices (Roberts, Thomas, Breyer, and Alito) and three cases. In addition to Medellin, there is Washington State Grange, on that state's primary election law, and United States v. Santos, on money laundering.

I expect that Roberts, Thomas, and Alito will all vote for the State in this case. If so, Medellin would win only if Breyer is writing the opinion, and he would be doing that only if Stevens assigned it to him. I'm inclined to think that Stevens would have kept a blockbuster case on presidential power and international court relations for himself if he were making the assignment, but that is admittedly just speculation at this point. Stayed tuned.

Posted by Kent Scheidegger at 03:00 PM | Permalink | Comments (0)

The Colorado Supreme Court holds in Hernandez v. People:

Construing the applicable statutory provisions, the supreme court holds that treatment is not mandated in every case where a sex offender subsequently commits an offense of any kind. Where the recommendations of the sex offender evaluation and the facts of the subsequent case do not support treatment, a sentencing court is not required by section 16-11.7-105 to order treatment. On the other hand, when the sex offender evaluation and the facts of the case support it, the trial court must impose sex offender treatment as a condition of probation. Here, the trial court ordered Hernandez to complete sex offender treatment.

Defendants first crime in 1984 was attempted second degree assault which resulted when he forcibly inserted his fingers in a woman's vagina in a restroom at a bar. Nineteen years later, he was charged with possession of a schedule two controlled substance and introduction of contraband into a detention facility and ultimately plead to simple possession. After initially refusing to submit to a sex offender evaluation, on the advise of counsel, defendant complied resulting in a recommendation that he receive treatment. According to the opinion, the evaluator found the defendant's denial of guilt in both crimes as well as his scores on various sexual deviancy measures as supportive of the recommendation:

The evaluator rated Hernandez as being at high risk for a repeat sexual offense based upon his: (1) denying having sexually assaulted the previous victim; (2) taking no responsibility for possessing cocaine in his most recent offense; (3) exhibiting defensiveness throughout the evaluation process; (4) lacking victim empathy; (5) lacking motivation to engage in offense specific treatment; (6) having previously used coercive force against a female adult victim and registering arousal levels to a female adult and a female teen in a coercive sexual situation, in comparison to a consensual sexual male/female adult encounter, during the assessment; and (7) having a considerable substance abuse history.

One wonders how effective treatment will be for this recalcitrant offender.

Posted by Steven K. Erickson at 05:38 AM | Permalink | Comments (0) | TrackBacks (0)

Homicides in San Francisco reached a ten-year high in 2007, while the murder rate in other big cities, such as Los Angeles and New York declined. A story by Cecilia M. Vega in today's San Francisco Chronicle reports that murders were up in other bay area cities as well, with drug-related shootings driving the numbers. It should be noted that San Francisco voters support law enforcement policies which are unusually tolerant. It is a sanctuary city for illegals, and DA Kamala Harris, has taken a softer approach to the enforcement of "Three Strikes" and has kept her promise not to enforce the death penalty.

Death Penalty: As posted earlier, in the aftermath of the New Jersey Legislature's vote to abolish capital punishment, opponents have focused on other states where beachheads have already been established. Among these states is Maryland, where a 2003 University of Maryland study has been widely cited for showing that the application of the sentence is racially biased, although a closer look at the numbers refutes that interpretation. That same year former Governor Parris Glendening instituted a one-year moratorium. Last year Governor Martin O'Malley tried, but failed, to get the state legislature to abolish executions. Reporter Jennifer McMenamin has a story in this morning's Baltimore Sun reporting that, according to a recent poll, 57% of Maryland voters want to keep the death penalty for the worst murderers, a 24% margin over those supporting abolition of the punishment.

The Nine: Yet more errors in Jeffrey Toobin's notorious book are pointed out here by Gideon Kanner and on VC by Ilya Somin. Previous posts on this book are here and here, and a post about a Toobin article on habeas corpus is here.

Posted by CJLF Staff at 09:51 AM | Permalink | Comments (0)

In Calloway v. Montgomery, No. 07-1148 (USCA7, Jan 14, 2008), Judge Evans has some fun with a murderer who ducked the rap by adopting the unlikely alias of Robert Ducks. It actually worked for 22 years. The opinion deals with two issues: (1) What is the "clearly established" Supreme Court precedent on lesser included offense instructions in noncapital cases? Answer: there isn't any. (2) Does it present an Apprendi problem for a judge to decide which local offense a prior offense from another jurisdiction corresponds to? Answer: no. "Almendarez-Torres still lives."

Posted by Kent Scheidegger at 01:57 PM | Permalink | Comments (1)

The U.S. Supreme Court's Monday orders list is here. No surprises. The cases granted for briefing and argument this term were announced after the conference on Friday, including the Giles case discussed here.

Among the cases turned down today is Black v. California, the California Supreme Court's decision on remand after Cunningham. See People v. Black, 41 Cal. 4th 799, 161 P.3d 1130 (2007).

Orin Kerr has this post at VC on the oral argument in Virginia v. Moore this morning. "On the whole, the argument went extremely well for Virginia. In the first half hour, the Justices seemed to think Virginia's position was so obviously correct that they appeared rather bored." Look for a frothing denunciation of the opinion in the 2009 pocket part of LaFave's Search and Seizure.

Posted by Kent Scheidegger at 09:14 AM | Permalink | Comments (0)

Child Molester Jesse Friedman, who plead guilty in 1988 to 13 counts of molesting children in the basement of his Long Island home, has lost his bid to have his conviction overturned. Friedman was the subject of the award-winning film "Capturing the Friedmans" which was nominated for an Oscar in 2003. The purportedly non-fiction film alleged that the police and prosecutor conspired to convict Friedman and his father by withholding evidence that at least one of their accusers had been hypnotized, according to this Associated Press story.

Repeat felons convicted of auto theft, drunk driving, forgery, fraud and drug dealing may never spend a day in prison if California Governor Arnold Schwarzenegger's proposal to save money by reducing prison and parole costs goes into effect, as reported in an Associated Press story by Don Thompson. Recently, perennial sentencing opponent and Berkeley Law Professor Franklin Zimring was quoted saying that the proposal would be an "interesting experiment." Hardly an experiment, even a slight knowledge of history and policy research confirms that the result would be an increase in crime and crime victims. "As far as I'm concerned, this entire program is an act of insanity," said Kern County District Attorney Ed Jagels.

Pennsylvania is apparently not waiting for a decision in Baze v. Rees to modify its lethal injection protocol. "The [not yet final] plan, a result of negotiations between Secretary of Corrections Jeffrey Beard and Rep. Daylin Leach, D-Montgomery, involves brain wave monitoring technology to ensure any inmate being put to death is fully unconscious before the final phase of an execution," reports Charles Thompson of the Patriot-News.

Implanted monitors are the next step after the GPS ankle bracelets for tracking offenders. The UK appears to be on the verge of doing it, raising a hue and cry. Brian Brady has this story in the Independent. (Hat tip: SL&P.)

Posted by CJLF Staff at 09:11 AM | Permalink | Comments (0)