Crime and Consequences

Anti-Spam Law Upheld By a narrow 4-3 vote, the Virginia Supreme Court has upheld the criminal conviction of Jeremy Jaynes for violating Virginia's anti-spam law, Larry O'Dell reports for AP. The court rejected Jaynes' arguments on jurisdiction, First Amendment, vagueness, and the Commerce Clause. The dissent accepted the First Amendment overbreadth argument.

Practicing criminal law can be hazardous to your mental health, reports Lynette Hoffman in the Australian. "New research from Macquarie University, to be published in the international journal Traumatology, has found that criminal law work can have profoundly damaging psychological effects."

Loaded firearms in U.S. Parks
Washington Post writer Christopher Lee reports that the U.S Department of Interior is considering easing restrictions on loaded firearms in national parks. The National Rifle Association supports the proposal and favors conforming park rules to state law. Park advocates and rangers’ organizations contend that the new rules would increase illegal hunting and more deadly domestic disputes. According to the article, there are 48 states that allow people to legally carry firearms for self-defense.

Report: Immigrants less likely to be incarcerated
Inside Bay Area reporter Javier Olvera writes that the Public Policy Institute of California (PPIC) reports that the foreign-born population only makes up 17% of state prison inmates, compared with 35% of the adult male population. The story notes "while the findings are surprising, they don't account for a complete relationship between immigration and crime." For example, it doesn’t included crimes like vandalism and shoplifting from immigrants, which results in jail time. Bill Cole, an advocate for laws that deport immigrants who commit crimes, disagrees with the findings. However, Salvador Bustamante agrees with the report because he says, “Immigrants come to the United States to work, often tying to stay under the radar of authorities and away from criminal activity to avoid deportation.”

Posted by CJLF Staff at 09:14 AM | Permalink | Comments (0)

A trial judge in Connecticut has allowed a claim of the type rejected by the Supreme Court in McCleskey v. Kemp, 481 U.S. 279 (1987) to go forward. This is the perennial claim that statistics show a racial or geographic "bias" in the administration of the death penalty. A long forgotten, but important, fact in the McCleskey case is that the federal district judge, after a full hearing with experts on both sides, found that the study did not prove what its authors claimed it proved. See McCleskey v. Zant, 580 F. Supp. 338 (ND Ga. 1984).

In Connecticut, the first study by the Public Defender came up with the "wrong" answer, so they suppressed it. As noted here, the claim that the study had to be suppressed because the results were not statistically significant does not pass the straight-face test. So now they have a new study that gets the "right" answer, and they can go forward. Katie Melone has this story in the Hartford Courant.

Posted by Kent Scheidegger at 04:00 PM | Permalink | Comments (0)

Americans in Prison: An Associated Press story by David Crary cites a recent report from the Pew Center on the States indicating that one of every 100 adults is in jail or prison. The report points to habitual criminal sentencing laws such as "Three Strikes" for the high incarceration rate, "Getting tough on criminals has gotten tough on taxpayers," said the project's director. It is worth noting that national crime data from the most recent Department of Justice report indicated that 3.8 per one hundred Americans were crime victims in 2006. Studies going back thirty years have also found that repeat offenders, the kind locked up by "Three Strikes" laws, commit several dozen crimes per year. A study in the 1990s by University of Colorado Economics Professor Steven Levitt estimated that the annual cost of keeping a criminal in prison amounted to less that two-fifths of the cost of leaving him on the streets, which supports the proposition that not getting tough on criminals is even tougher on taxpayers, not to mention crime victims.

Lying expert pleads to perjury: John Torkelsen, an expert used by Milberg Weiss et al. in securities litigation, has agreed to plead guilty to perjury, reports Dan Slater at WSJ Law Blog. The DoJ press release is here. Torkelsen stated he was not being paid on contingency when he was, and engaged in a ruse to conceal that fact from the courts.

Posted by CJLF Staff at 03:10 PM | Permalink | Comments (0)

Linda Greenhouse, the New York Times' controversial Supreme Court correspondent, has accepted a buyout offer and will be leaving after 30 years on the beat, Seth Sutel reports for AP.

Officials are cracking-down on criminal immigrants. According to this Washington Post story by Ernesto Londono, strong efforts are being made by immigration officials to locate and deport illegal immigrants and monitor immigrants with criminal records, which is straining the immigration court system. After years of criticism for failing to do enough to deport illegals, federal authorities have formed partnerships with local corrections to monitor immigrants charged with crimes. U.S. Immigration and Customs Enforcement reports that over the twelve month period ending on September 30, it placed 164,000 illegals in deportation proceedings and estimated approximately 200,000 deportations this year.

Man gets life sentence for double murder. On April 4, Los Angeles County Superior Court Judge Michael Johnson will sentence Keven Lee Graff for murder, mayhem and torture. L.A. Times staff writers Tiffany Hsu & Andrew Blankstein report that in June 2004, Graff killed Dr. Morley Engelson with his own kitchen knives. Graff also decapitated Engelson’s neighbor, Robert Lee, leaving Lee’s head at Engelson’s house and the body at his own home. In a plea bargain to avoid a death sentence, Graff admitted his guilt in both murders and asked to address the court at his sentencing, where he will receive two life terms without the possibility of parole.

Britain’s DNA Database Challenged
According to this AP story, two British citizens who have been acquitted of criminal charges are asking the European Court of Human Rights to order the destruction of their DNA samples. The two Britons claim that not destroying their DNA is a breach of their right to privacy and amounts to discrimination. England's DNA database is the world’s largest holding up to 4.5 million samples.

Washington’s New Bill against Street Gangs
A story by Jennifer Sullivan in the Seattle Times reports that Washington is experiencing an increase in youth gang-related crimes. State Rep. Christopher Hurst is pushing a bill (HB 2712) that will add $2.4 million in funding for gang prevention, intervention, and suppression. The bill would create a statewide database of information on gang members available for police use only, and codify the state’s first definition of a “criminal street gang.” This legislation will provide pilot programs and activities for troubled youth. Hurst says, “It’s essentially like treating gangs like organized crime.”

Bill Targets Sex Offenders’ Property
Kentucky Post reporter Jessica Noll writes that House Bill 210 will authorize law enforcement seizure of property from convicted sex offenders. Confiscated houses, money, and personal belongings will be sold and the proceeds used to defray the cost of prosecuting sex offenders such as expert witnesses and forensics. The state's Chief public defender, Daniel T. Goyette, argues that the measure is unconstitutional because states cannot deprive a person of property without affording a prompt opportunity to reclaim items later determined to be unlawfully seized.

Posted by CJLF Staff at 10:19 AM | Permalink | Comments (0)

Another Supreme Court decision day and another lone civil case, with no decision in Medellin v. Texas. There remain three undecided cases from the October calendar: Medellin, the Washington political primary case, and the Santos money laundering case. Four Justices have not yet written an opinion from that session, and it is likely that three of them are authors of the three undecided cases: Chief Justice Roberts, Justice Thomas, Justice Breyer, and Justice Alito. I expect that Medellin is a win if any but Justice Breyer is writing it, but why is it taking so long? It could be that there is a fracture on how to get to the result, and the Court is trying to put together a coherent majority opinion.

Posted by Kent Scheidegger at 08:10 AM | Permalink | Comments (0)

In this Washington Post column last Sunday, David Broder suggested that crime and law enforcement may emerge as a political issue this year. He cites a recent poll conducted for liberal think tank Third Way, showing that 69% of the sample thought that violent crime was a more serious threat than a terrorist attack, chosen by only 19%. The sample, with a respectable 1,139 respondents, offered a fairly broad cross section. Among those willing to declare their political preference, 44% of the respondents were Democrats and 35% were Republicans.

Posted by CJLF Staff at 02:20 PM | Permalink | Comments (0)

In London, the Sun asked readers of its Web site, "Should Britain bring back the death penalty?" The result: "And a staggering 99 per cent of the 95,000 readers who responded to our You The Jury poll said the Government SHOULD reintroduce it."

Internet polls mean very little, as they suffer from a two-stage selection bias. Only those who view the particular story are solicited, and only those who choose to answer it are counted. Even so, 99% of a sample that large is surprising.

Posted by Kent Scheidegger at 04:20 PM | Permalink | Comments (0)

With its grant of certiorari in the case of Chrones v. Pulido, No. 07-544, the U.S. Supreme Court ventures once more into the questions of habeas corpus, harmless error, and deference to the state court's decision on direct appeal. The Court addressed related issues last June in Fry v. Pliler, No. 06-5247. The new case deals with the situation where a jury is given more than one path to a conviction, of which one is right and the other wrong. The Supreme Court addressed that situation in Stromberg v. California, 283 U.S. 359 (1931).

Much water has passed under the harmless-error bridge since Stromberg. In more recent cases, the Court has divided errors into "structural" and "trial." Structural errors are reversible without any inquiry as to whether the error was prejudicial in the individual case. Such errors are rare. Most errors are judged under a harmless error standard. On direct appeal, an appellate court asks if a federal constitutional error was "harmless beyond a reasonable doubt," the Chapman test. On habeas corpus, and for nonconstitutional errors at any phase of review, "an error is harmless unless it had substantial and injurious effect or influence in determining the jury’s verdict," the Kotteakos/Brecht test.(Fry, slip op., at 3, internal quote marks omitted.)

On May 24, 1992, Ramon Flores was shot to death during a robbery of the Shell gas station where he worked in San Mateo, California (about 15 miles south of San Francisco). Michael Pulido was convicted of first-degree murder and sentenced to life in prison for this crime. After telling several different stories, he finally settled on claiming that his uncle, Michael Aragon, committed both the murder and the robbery, and that he (Pulido) only joined the crime after Mr. Flores was already dead. Pulido's version of what happened is inconsistent with the fact that his fingerprints are on a can of Coke left on the store counter. Also, his fingerprints and not Aragon's are on the stolen cash register.

On appeal, the California Supreme Court decided that if Pulido's version were believed, that would not be felony murder under California law. However, the state court applied harmless error analysis and found no need to reverse because the jury had rejected Pulido's claim under another finding -- the "special circumstance" finding that the murder was committed while the defendant was engaged in or was an accomplice to a robbery. See People v. Pulido, 15 Cal. 4th 713, 936 P. 2d 1235 (1997).

On federal habeas, the Ninth Circuit applied its precedent in Lara v. Ryan, 455 F.3d 1080 (CA9 2006), which "held that such error was structural and that 'where a reviewing court cannot determine with absolute certainty whether a defendant was convicted under an erroneous theory' reversal is required." Pulido v. Chrones, 487 F. 3d 669 (CA9 2007). The requisite certainty was not present, said the Ninth, because the special circumstance instruction itself had an error that made reliance on an invalid theory possible.

I suspect the Supreme Court's answer will be that the habeas court should have simply applied the straight Brecht test. See Fry, slip op., at 7. Introducing (or reintroducing) a third standard into the harmless error mix has little to recommend it. The kind of error involved here is not so different from other kinds of errors as to call for a different standard. Whether Pulido would get relief under that test is a question they are likely to leave for the Ninth Circuit on remand.

Posted by Kent Scheidegger at 02:36 PM | Permalink | Comments (2)

SCOTUS takes Fourth Amendment case: Today the Supreme Court agreed to review a 4th Amendment case next term regarding warrantless searches of automobiles. The Washington Post reports that Rodney J. Gant was arrested in Tucson, Arizona about 10 feet away from his parked car and placed in the back of a police car while officers searched his car. They found cocaine and other drug paraphernalia. Last year the Arizona Supreme Court reversed Gant's conviction, holding that the search violated the 4th Amendment. The case is Arizona v. Gant, 07-542

Surveillance Law for Expanded Spy Powers. As posted in a previous news scan President Bush would like the House to act on legislation the Senate has passed and allow the government to monitor phone calls and emails by suspected terrorists. AP reporter Ben Feller, writes in the Washington Post “the law targets foreign terrorists threats and allows eavesdropping on communications involving people in the U.S.”. A sticking point for House Democrats is whether to extend legal immunity to companies that have assisted the NSA at intercepting suspect communications in the past.

Three NYPD officers on trial
According to this AP story by Tom Hayes, three undercover officers are on trial for killing Sean Bell and wounding two of his friends on the night before Bell was to be married. Assistant DA Charles Testagrossa points out that one of the three officers did not show his badge or wait for backup before confronting the three men. Bell and the others were shot in front of a strip club where his bachelor party was held hours before the wedding. Defense attorney James Culleton said, “While clearly this was a tragedy, no crime was committed.” The officers pleaded not guilty to manslaughter and reckless endangerment.

No Remedy for CA death penalty appeals
Chief Justice Ronald M. George has dropped his bid to ask voters to adopt a constitutional amendment allowing intermediate-level appellate courts to review death penalty cases. Earlier this year the Court unanimously agreed that the change would help reduce the backlog of capital cases awaiting direct review before the high court. A story by Henry Weinstein in the Los Angeles Times reports that in California it takes an average of 17 years to complete the judicial review of a capital case, which is twice the national average. Chief Justice George has decided to withdraw his proposal because of California's current fiscal crisis.

Posted by CJLF Staff at 09:57 AM | Permalink | Comments (0)