Crime and Consequences

Gruesome pictures bring jury to tears as they see the room where 7-year-old Nixzmary Brown was bound to a chair, starved and forced to urinate in a litter box. Reported by The New York Times yesterday, Cesar Rodriguez was convicted of manslaughter for killing his stepdaughter. The jury wanted to convict him for murder but felt the prosecution “didn’t really give [them] enough.” Brown’s mother also faces charges in a separate trial. As a result of this case, five bills have been introduced in the Legislature that would increase punishment for child abuse crimes or make it easier for police intervention.

Race and Homicide
In Los Angeles, police officials report that the 35% increase in homicide rates was not due to race. Joel Rubin from the L.A Times reports Police Chief William J. Bratton is counting on a report to refute the myths about racial tension between Latinos and blacks. This is going to be hard to explain considering the recent homicides where Latino gang members are accused of killing blacks. In one instance, 17-year-old football star Jamiel Shaw Jr. was shot and killed near his home after being asked what gang he was associated with.

A new law for Sex Offenders in San Diego
California voters in 2006 approved ‘Jessica’s Law’ to prohibit sex offenders from living within 2,000 feet of schools and playgrounds. Fox 6 News reports the San Diego City Council unanimously passed a bill last month that will prohibit registered sex offenders from coming within 300 feet of places frequented by children.

Sex Offenders challenging Adam’s Law
In Ohio, Brad Dicken reports that offenders are challenging the constitutionality of Adam’s Law. The law is called Adam’s Law after Adam Walsh, who was abducted and killed in 1981 at the age of 6 years old in Florida. According to Dicken, under the law every state must impose uniform sex offender classifications by 2009 or lose federal funds. When the law took effect in Ohio, the state had to reclassify every sex offender in the state to meet the new guidelines.

With a cherry on top
On FOX News, three Mississippi legislators proposed a bill to prohibit restaurants from serving food to obese customers. The chairman of the House Public Health and Human Services Committee says, “It is too oppressive for the government to require a restaurant owner to police another human being from their own indiscretions.” The reason for the bill was to confront the state ranking for having the highest obesity rate in the United States.

Mississippi crack down on illegal workers
In yesterday's Clarion-Ledger, reporter Leah Rupp writes that Gov. Barbour has signed Senate Bill 2988. The law will take effect in July and require large companies to use the eVerify system to determine if a worker is a citizen. Penalties include cancellation of state or public contracts, prohibition from bidding from any contracts for up to three years, and a sentence of up to five years in prison or a fine up to $10,000. The Mississippi Immigrants Rights Alliance estimates there are about 200,000 undocumented immigrants living in Mississippi. Rupp says, “Immigrants rights' advocates fear that the new law could lead to increased racial profiling and hamper economic development.

Posted by CJLF Staff at 01:28 PM | Permalink | Comments (1)

With yesterday's decision in Washington State Grange and today's decision in Snyder, we return once again to our SCOTUS sudoku puzzle, trying to figure out who is writing the remaining cases. The premise of SCOTUS sudoku is that no justice will be assigned a second opinion from a sitting while any other justice has not written any. This is generally true, as illustrated on page 18 of SCOTUSblog's final StatPack from last term. From the inferred identity of the author, we then try to get an inkling of the result. All of this is rank speculation, but it's fun.

Two cases remain from the October sitting: United States v. Santos on the federal money laundering statute and Medellin v. Texas on the Vienna Convention and the International Court of Justice decision. Chief Justice Roberts and Justices Breyer and Alito have not yet written opinions from this sitting. Medellin involves major constitutional questions of both federalism and the separation of powers between the branches, while Santos is a rather routine statutory interpretation case. If Breyer is writing Santos, then either Roberts or Alito is writing Medellin, likely a good sign. Reading over the transcript in Santos, it seemed that the DSG was getting hit harder than counsel for Santos and that Breyer was more favorable to Santos' position than either of the other two. But this is a tenuous inference, and the fact that this seemingly routine case is taking so long indicates that something more is going on behind the scenes. I'm cautiously optimistic on Medellin.

The only remaining criminal case on the November calendar is the kiddie porn vagueness case, United States v. Williams.

The December sitting includes the blockbuster Gitmo detainee case, Boumediene v. Bush. Justices Kennedy, Souter, and Ginsburg have not yet written opinions from this sitting. The only other remaining case from the sitting is one of those terminally boring river cases, New Jersey v. Delaware. Doesn't look like a home run for the Administration, but they may yet beat out a bunt. Don't expect a sweeping statement that in the absence of a contrary statute the executive can do anything it wants with foreign prisoners without judicial interference, but a holding that the Detainee Treatment Act and Military Commissions Act are sufficient to meet (or will be construed to meet) whatever constitutional requirements may exist is quite possible.

Posted by Kent Scheidegger at 10:22 AM | Permalink | Comments (0)

Today the U.S. Supreme Court decided the case of Snyder v. Louisiana, No. 06-10119. There were 5 black veniremembers in the 36 who survived the for-cause stage of jury selection, and the prosecution peremptorily challenged all 5. That looks bad, even when it's justified, and the prosecutor needs to have good reasons ready. In this case, the prosecutor's reasons for challenging one venireman were that he looked nervous and that he was concerned about missing class. The Supreme Court held, 7-2, that was not sufficient, despite the trial judge's acceptance of the explanation.

Note that this case arose on direct review, so the habeas deference standard of 28 U.S.C. § 2254(d) is not involved. However, this case is now "clearly established" Supreme Court precedent, and it will surely be cited in most Batson cases from this point onward. Note at page 6 of the slip opinion that the Court is unwilling to presume that the trial judge relied on his own observation of the venireman's demeanor without any statement from the judge to that effect. Once again, we see the importance of making the record.

Posted by Kent Scheidegger at 07:47 AM | Permalink | Comments (0)

As mentioned previously, the idea that pedophilia is a mental illness on par with schizophrenia or other strongly biologically caused illnesses of the mind is weak. Yet that hasn't stopped many from suggesting otherwise. And when it comes to the civil commitment of sex offenders, the Supreme Court has concluded that a link between a mental abnormality and volitional control is necessary to justify commitment.

To establish whether someone is a sexual predator, courts almost always rely on psychological experts to ascertain whether the criteria are met. Even if states retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment, the experts must utilize behavioral science to arrive at their conclusions. After all, that's why the courts entertain behavioral experts in these matters instead of, say, automotive experts. Like most areas of science, behavioral science experts use tests to help them formulate their opinions; and in the area of sex offender assessments, the tests used vary widely and are applied in a variety of clinical and legal situations. But the sheer ease in which these same tests can confirm a mental abnormality in one case and suggest a high risk for recidivism among someone without mental illness in another says a lot about the strange marriage between behavioral science and criminal law.

In State v. Langenkamp, 2008 Ohio 1136; 2008 Ohio App. LEXIS 1017 (March 17, 2008) the Court of Appeals of Ohio upheld determination that the defendant was a sexual predator for the purposes of classification for his criminal sentence and future residency registration requirements. Since this was not a civil commitment matter, the mental abnormality issue of Kansas v. Hendricks, et al. was not an issue. Indeed, the prosecutor stated:

The Court has in the record Dr. Martin's report from Forensic Psychiatry Center for Western Ohio dated 12/28/06, which we had a motion hearing on. Dr. Martin found that there was no mental illness or retardation of the Defendant.

But that didn't prevent the experts and the court from giving considerable weight to the various psychological tests used to assess the defendant, including the discredited Rorschach Inkblot Test. Of course, psychological tests can be used for a variety of purposes and are not limited only to the diagnosis of formal mental illnesses. Yet the same tests used in Langenkamp are employed ubiquitously in civil commitment determinations to assert the presence of an underlying mental illness in satisfaction of the mental abnormality prong the various statutes require.

Perhaps this is of no consequence since legal determinations are about legal definitions, which include criminal behavior. And as the facts in Langenkamp suggest, one need not be an expert to ascertain that much of the defendant's life history is repugnant to its very core and his propensity for recidivism seems his penchant. Yet when the law invokes behavioral science to support the notion of mental abnormalities in need of care and treatment in civil commitments contexts while also using those same concepts to support enhanced criminal sanctions then one can truly understand how "the science of psychiatry... informs but does not control ultimate legal determinations."

Update:

Corey Yung has some reactions to this post, including this astute observation:

There are definitely sex offenders who are mentally ill, but that is true of any criminal population. However, society doesn't label all thieves "kleptomanics" because a subset of the thief population are, in fact, kleptomaniacs. Treating all sex offenders as "sick" or "ill" is a mistake that courts, legislators, and policy groups often make.

Posted by Steven K. Erickson at 05:49 AM | Permalink | Comments (0) | TrackBacks (0)

The big news today in the press and the blogs is the argument in the D.C. gun case, District of Columbia v. Heller. The transcript is available on the Supreme Court website, and there is audio at CSPAN.

CJLF did not file a brief in Heller. We apply our limited resources where they are most needed. Everybody and his dog filed in Heller, and one more brief on the massive heap would be unlikely to make any difference. We have occasionally filed briefs despite a large number of amici where we had some special expertise to add, such as a historical perspective on habeas corpus in the Guantanamo detainee cases, but that wasn't the case in Heller.

Even so, we are following the case with interest. Guns are an issue that cuts both ways when it comes to the interests we serve -- victims of crime and the law-abiding public. Guns are used both to commit crimes and to defend against crimes. We have supported the rights of victims of crime to use force in self-defense and to arrest perpetrators, and twice we have supported defendants in criminal cases where we believed the defendant was the victim and the supposed victim was the perpetrator. At the same time, we support the authority of the government to punish more severely people who use guns to commit crimes and to bar possession of guns by convicted felons.

For these reasons, we are hoping for a moderate result in Heller. The D.C. law barring law-abiding people from possessing handguns in their own homes for self-defense is over the top. In the oral argument today, it appears that Justice Kennedy is going to come out as a strong proponent of a right of self-defense, and that is a good sign. On the other hand, we hope that Doug Berman's wish does not come true, and that the decision does not provide substantial grounds for arguing that gun possession is a fundamental right that cannot be lost, even by committing a felony.

On page 78 of the transcript, the attorney for the challengers said this:

In the Fifth Circuit, for example, we have the Emerson decision now for seven years, and the way that that court has examined the Second Amendment when they get these felon and possession bans and drug addict and possession challenges, what they say is, these people simply are outside the right, as historically understood in our country. And that's a very important aspect to remember, that the Second Amendment is part of our common law tradition, and we look to framing our practices in traditional understandings of that right to see both the reasonableness of the restrictions that are available as well as the contours.

Sounds good to us. Mark Sherman, reporting on the case for AP, concludes that the Court is leaning toward recognizing an individual right independent of the militia but subject to some regulation.

Posted by Kent Scheidegger at 02:23 PM | Permalink | Comments (0)

Japanese media are abuzz with the case of Kazuyoshi Miura, a Japanese businessman accused of killing his wife and then claiming they had been mugged during a visit to Los Angeles in 1981. But the Los Angeles District Attorney has a problem. Miura was previously prosecuted for this crime in Japan. The LA Times website has stories on this case all the way back, including this recent one. Miura was originally convicted, but the conviction was reversed and an acquittal entered by a higher court.

Miura is presently in jail in Saipan in the U.S. Commonwealth of the Northern Mariana Islands awaiting extradition to L.A. He is represented by Mark Geragos, who has filed this motion to quash and points and authorities.

This case is not really about the constitutional double jeopardy clauses, state or federal. The constitutional limit does not preclude a second prosecution by a different government, as we saw in the Rodney King case. Instead, the case is about California's statutory rule which, at the time of the crime and the time of the Japanese decision, said that a prior prosecution in another country was a complete defense. The statute was amended in 2004 so that foreign judgments are no longer a bar, although the defendant gets credit for any time actually served in the foreign prison.

Could such a statute apply retroactively? Stogner v. California, 539 U.S. 607 (2003) held that a change in the statute of limitations enacted after the time had already run could not apply retroactively to revive a barred prosecution. I can't see how this is distinguishable. Geragos makes this argument in part V.

But do we even need to reach the constitutional question? As a matter of statutory interpretation, was AB 1432 of 2004 intended to apply retroactively to already barred cases? Nothing in the bill says so. As the U.S. Supreme Court reminded us again today in Washington State Grange v. Washington State Republican Party, it is a "fundamental principle of judicial restraint that courts should [not] 'anticipate a question of constitutional law in advance of the necessity of deciding it.'" Applying both the principle that statutes are presumed nonretroactive and the doctrine of constitutional doubt, the right answer seems to be that AB 1432 does not apply to strip a defense already vested by the effective date of the legislation. Geragos curiously does not make this argument.

Posted by Kent Scheidegger at 10:00 AM | Permalink | Comments (2)

The Supreme Court issued one opinion today in the political case of Washington State Grange v. Washington State Republican Party, No. 06-713. For criminal law practitioners, the case is primarily of interest for the Court's continuing hostility to "facial" challenges to statutes. In United States v. Salerno, 481 U.S. 739, 745 (1987), the Court set the hurdle for such a challenge almost impossibly high: "that no set of circumstances exists under which the Act would be valid.” The Court has waffled since, but facial challenges remain much more difficult than they were in earlier times, and today the Court rejected a facial challenge to Washington's "blanket" primary, telling the plaintiffs to wait until the law is actually applied and then challenge it as applied.

For Court-watchers, the lineup is interesting. Justice Scalia, the author of Salerno, dissents, claiming that the case meets that standard. Justice Thomas wrote the opinion from which Justice Scalia dissents, further refuting the nonsense that he just follows Scalia. Justice Kennedy, the "swing vote" who was always in the majority last term, is in the dissent again.

Still waiting on Medellin and Boumediene. Maybe tomorrow.

Posted by Kent Scheidegger at 07:56 AM | Permalink | Comments (1)

DNA database: According to Gary Pugh, who is soon to be the chief spokesperson for the Association of Chief Police Officers’ (ACPO), England does not collect enough DNA samples from the “right people” and could benefit from targeting samples from younger people to prevent future crimes. As reported in this story from The Press Association, the ACPO says that the statement is entirely Pugh’s opinion and they do not support his position. The Liberal Democrats condemned this idea of adding unsuspected young people to a DNA database. Police in England and Wales can take DNA from anyone arrested on a suspicion of a crime and keep their DNA on file for life.

New crack cocaine guidelines have caused many inmates to file for shorter sentences. A story in the Houston Chronicle and AP, reports that this action follows the new guidelines adopted last December by the U.S. Sentencing Commission to reduce the disparity between sentences for possession of crack cocaine vs. powder cocaine. The Assistant U.S. Attorney in Tyler, Texas said 80 inmates have already been released. He expects another 80 to be released within the next two weeks. Around the country, approximately 800 inmates have been released from the 20,000 who are eligible for a sentence reduction under the new guidelines.

High School dropout wins his own murder case: Washington Post reporter Ruben Castaneda writes that defendant Harold Stewart has received a not guilty verdict on charges of first-degree and second-degree murder. Steward, a high school dropout represented himself during the three day trial. Circuit Court Judge Vincent Femia, a judge for Prince George County, said, “It would make you wonder about the quality of the case, if a guy who knew nothing about the law could kick your [expletive]."

Victims' fund assists felons reports Josh Mitchell in the Baltimore Sun. "Nearly $1.8 million from the [Maryland Criminal Injuries Compensation Fund] has been awarded to drug dealers, violent offenders and other criminals since 2003, according to a Sun analysis of thousands of records obtained through the Maryland Public Information Act."

Guatemala death penalty vetoed: "Guatemalan President Alvaro Colom on Friday vetoed a bill that would have reinstated capital punishment and given the president the power to commute death penalty sentences," reports Juan Carlos Llorca for AP. "If (the death penalty) were a disincentive, we would reinstate it," Colom said. "But we have studied cases in various states in the United States, and it doesn't dissuade" crime. Evidently the President is unaware that the heavy preponderance of recent studies in the United States conclude that the death penalty does deter murder when actually enforced. The reinstatement passed the Congress by a majority sufficient to override the veto, so this story may not be over.

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

The Monday orders list is here. Among the cases listed in Friday's conference post, the Court granted certiorari in Melendez-Diaz, the lab report confrontation case, Sarausad on state-law issues and habeas, and Ice on Apprendi and consecutive sentencing. The Court denied certiorari in Bentley on confrontation and a child's abuse report. Also granted is a pro se petition in a Texas habeas case, Jimenez v. Quarterman, No. 07-6984.

Posted by Kent Scheidegger at 08:38 AM | Permalink | Comments (0)