Crime and Consequences

Is War on Terror a Crime?
According to Rivkin and Casey in the Wall Street Journal, law professors, activist lawyers, and pundits are accusing the attorneys who have advised the President on the war on terror of aiding and abetting criminal activity. Among these advisers are some of country's finest legal minds. Liberal critics are attempting to fix them with responsibility for government actions ranging from Abu Ghraib to denying habeas rights to Gitmo detainees.

Maryland’s Court redefines the concept of rape
The Johns Hopkins News-Letter reports that the Maryland Court of Appeals (the state's highest court) has redefined the definition of rape to include circumstances when one party withdraws consent after penetration. The Court's decision was announced in Baby v. Maryland, available here.

Blast Your Tunes, Lose Your Wheels
A story by OhMyGov.com reports, on an effort in Sarasota, Florida to adopt a law allowing police to impound vehicles and fine repeat violators if music can be heard from more than 25 feet. Last year police issued 282 citations for loud music from cars.

New Trial for convicted Killer The Arkansas Supreme Court has overturned a murder conviction for a Miranda violation. A story in the Baxter Bulletin reports that the Court's 6-1 ruling found that Brian Edward Robinson's incriminating statements were improperly admitted at trial because they were made after he told the arresting officer that he did not want to talk. Court's opinion is here.

New U.S. Strategy on Afghan Police. “Afghanistan will be a stable, self sufficient state only when it can both defend its borders and provide law and order to its citizens” writes Ann Marlowe in the WSJ. A new American plan aims to strengthen the Afghan National Police (ANP). Major General Robert W. Cone is the commander in charge with the mission to make the 78,000 member police force capable of maintaining local security. We don't need to make these cops as good as the 82nd Airborne," he says, referring to the storied unit that just finished a 15-month rotation here. "We just need to make them two-and-a-half times better than the enemy."

California’s New DNA Rules. Attorney General Jerry Brown is expanding the use of DNA results. The current policy requires exact matches of a suspects DNA before law enforcement is notified. The new policy will release suspect information if 15 of the 26 markers are matched, allowing the identification of relatives as possible suspects. The Attorney General announced this change today at the California District Attorneys Association annual DNA/Cold Case Summit. His press release is here.

Posted by CJLF Staff at 02:10 PM | Permalink | Comments (0)

The Federalist Society is having a program Tuesday in DC on a proposed federal "shield law" for journalists. Details here.

Posted by Kent Scheidegger at 01:43 PM | Permalink | Comments (0)

Ohioans, sit down before you read this. The Sixth Circuit today upheld the conviction and death sentence of Marvallous Keene for "eight counts of aggravated murder, six counts of aggravated robbery, one count of aggravated burglary, one count of burglary, two counts of kidnapping, and two counts of attempted aggravated murder." Judge Gilbert Merritt was on the panel and did not dissent. Among the claims was a supposed equal protection violation for not seeking the death penalty against other murderers who had killed far fewer people. Yes, there are arguments in capital cases so bogus that they don't even pass Judge Merritt's smell test.

Posted by Kent Scheidegger at 01:30 PM | Permalink | Comments (0)

"Robert Loblaw" over at Decision of the Day points to the Seventh Circuit case of Koger v. Bryan, 05-1904 (7th Cir., April 24, 2008) reversing a district court's summary judgment dismissal of inmate Gregory Koger's claim under Religious Land Use and Institutionalized Persons Act. Koger, a member of Thelema, a religion founded by famed devil worshipper Aleister Crowley, sued when the state denied his dietary requests. The post notes Judge Evans concurrence:

RLUIPA, I submit, fosters the potential for mischief and game-playing. Koger’s case is, potentially at least, a pretty good example of that. . . . [W]as his request for a nonmeat diet a mere preference (he practiced yoga) or the result of a sincerely held religious belief? On this record, we have no reason to doubt that it was the latter. But one would not be terribly surprised if Mr. Koger has had a beef tenderloin or a Big Mac since he left the prison a little over two years ago.. . .

So when all is said and done, the State of Illinois has spent a lot of money defending this case for six years. Koger may end up with a dollar, and his lawyer, Jeffrey L. Oldham, who by the way has done an outstanding job, will get a limited amount of attorney’s fees. A waste of time? Some may disagree, but I lean towards saying “yes.”

Posted by Steven K. Erickson at 11:15 AM | Permalink | Comments (0)

U.S. Sentencing Commission On Retroactivity of Crack Amendment: Thanks to Douglas Berman at Sentencing Law and Policy for his post on the U.S. Sentencing Commission's release of data on the retroactive application of the crack amendment. The Commission's data, found here, compiles the preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). The data compiles cases that were received by the Commission before April 14, 2008. Berman notes that he hopes the data is frequently updated.
Lara Jakes Jordan at the Associated Press also had this story on the Commission's findings.

Vienna Convention Post-Medellin: Howard Bashman at How Appealing provided this post, and a link, to the Second Circuit's decision that failure to inform detained aliens of the prospect of consular notification, as required by Article 36 of the Vienna Convention, cannot be vindicated by a private action for damages. While Article 36 has been addressed by courts in a variety of contexts, the U.S. Supreme Court's decision in Medellin v. Texas did not directly address this issue. Instead, the Medellin decision assumed, without deciding, that Article 36 creates the judicially enforceable right to request that consular officers be notified of their detention.

Posted by Lauren Altdoerffer at 04:00 PM | Permalink | Comments (0)

Yesterday, the U.S. Supreme Court adopted amendments to the Federal Rules of Criminal Procedure. The amendments implemented the Crime Victims' Rights Act (18 U.S.C. §3771). Yesterday's order amended Criminal Rules 1 (Scope; Definitions), 12.1 (Notice of an Alibi Defense), 17 (Subpoena), 18 (Place of Prosecution and Trial), 32 (Sentencing and Judgment), 41 (Search and Seizure), 45 (Computing and Extending Time), 60 (Victims’ Rights), and added Criminal Rule 61 (Title). The Court's order adopting the amendments can be found here.

For the most part, the Court's order rubber-stamped the September 2007 recommendation of the Federal Judicial Conference, which had adopted the May 2007 proposals of the Federal Advisory Committee on Federal Rules of Criminal Procedure. One interesting deviation from the recommendation was the U.S. Supreme Court's decision not to adopt the Advisory Committee's amendments to Rule 45(a) for "Computing and Extending Time." The Court did amend Rule 45(c) slightly to conform to last year's revision of Civil Rule 5.

The amendments take effect December 1 unless Congress acts to the contrary.

Posted by Lauren Altdoerffer at 12:47 PM | Permalink | Comments (0)

Among the powers granted to Congress is the power "To define and punish Piracies and Felonies committed on the high Seas." Art. I § 8 cl. 9. Yes, there really are cases of tyrannical captains and resulting mutinies to this day. The Ninth Circuit ponders the jurisdictional issues in United States v. Shi, No. 06-10389.

Posted by Kent Scheidegger at 11:58 AM | Permalink | Comments (0)

Patrick J. Buchanan has this editorial at Human Events, titled "The Greenhouse Effect":

There is another and larger issue here.

It is the question not of what is decided, but of who decides.

Whether Citizen Stevens abhors the death penalty should not matter to Justice Stevens. For if the constitution provides for a death penalty, and capital punishment has been imposed throughout our history, and the form it takes does not violate the ban on cruel and unusual punishment, Stevens' decision should be automatic, no matter his personal beliefs.

What Stevens is signaling, however, is that his altered opinion of the death penalty may cause him to start voting against it -- that is, to substitute his personal view of capital punishment for the decision of the elected leaders who have voted to retain it.

Posted by Steven K. Erickson at 06:12 AM | Permalink | Comments (3)

From Fox News:

HONOLULU (AP) — A 65-year-old first-time drug offender on the Big Island is facing a maximum 20-year sentence.

The case against farmer David Finley of Volcano involves possession of more than 75 pounds of marijuana. Police say they also found nearly 200 marijuana plants in greenhouses on Finley's 29-acre ranch, along with other drugs.

Circuit Judge Glen Hara has sentenced Finley to two maximum 20-year sentences to be served simultaneously. He said any other sentence would undermine respect for the law and hurt society.

But the judge said he is convinced Finley is not an evil person. He was arrested Jan. 29, 2007 and already has served 14 months in jail.

The judge said marijuana is fully entrenched in the Big Island way of life with many people starting to use it before they are teenagers.

Make of it what you will.

Posted by Steven K. Erickson at 06:04 AM | Permalink | Comments (0)

Giles Commentary: Yesterday, Richard Friedman's Confrontation Blog had this post by Joan Meier, of George Washington Law School and DV LEAP. Meier's post argues that the conflict between the confrontation clause and the forfeiture principle addressed in Giles v. California cannot be resolved by looking to the Framer's intent or early United States common law. Meier's also argues that Framing-era courts decisions in dying declaration cases and child rape cases indicate the forfeiture principle would have been applied in a case like where the defendant's wrongdoing caused the witness's absence at trial.

Scalia's Use of Di Re in Moore: Orin Kerr at the Volokh Conspiracy comments on the Justice Scalia's use of United States v. Di Re in today's majority opinion of Virginia v. Moore. Kerr's post states that Scalia misapplied Di Re by "saying it was just a case of federal supervisory power" and agreeing Justice Ginsburg that Di Re was "pinned on the Fourth Amendment and not our 'supervisory power.'"

Posted by Lauren Altdoerffer at 03:20 PM | Permalink | Comments (0)

Robot Bums-Rush. AP writer Greg Bluestein has this story about a homemade remote controlled robot built by ex-marine Rufus Terrill. The 300 pound waist high robot marked “security” patrols the street in front of his Atlanta bar after dark, running off vagrants with bright lights, a loudspeaker and a water cannon. The electronic vigilante has enraged neighborhood activists, but Terrill assures that his actions are innocent. He believes the police now patrol more, the parks are safer and there have been no break-ins since the robot hit the streets last September.

Virginia v. Moore: The Associated Press has this take on today's decision to uphold a police search even though the arrest turned out to be improper.

Technicality Puts Lifer on Parole The Charlotte Observer reports that North Carolina murderer Ronald Earl Small was approved for parole after serving a life sentence given to him in 1977 for first-degree murder and assault. Small confessed to brutally beating Alexandria Hill, 18, for refusing to have sex with him in September 1976. Days later she died from her injuries. Because he was convicted before 1994, when the state revised its sentencing laws, Small was eligible for release on parole.

Posted by CJLF Staff at 01:59 PM | Permalink | Comments (0)

Adam Liptak has this article in the New York Times today on the controversy over incarceration rates and how ours is so much higher than Europe's. The article begins with the usual stuff we hear all the time. Later, it quotes Paul Cassell and an article of ours for the proposition that locking up criminals really has saved a lot of people from victimization. The articles cites "specialists" for "dismiss[ing] race as an important distinguishing factor." That is significant, and unusual, as for some folks race seems to be the explanation of first resort on every conceivable subject.

One point I would have liked to see expanded on is this: "From 1981 to 1996, according to Justice Department statistics, the risk of punishment rose in the United States and fell in England. The crime rates predictably moved in the opposite directions, falling in the United States and rising in England."

As noted on this blog Monday, the comparative data are more dramatic than that. Liptak notes elsewhere in the article that the United States has (present tense) lower burglary and robbery rates than England, but omits the fact that this is a fairly recent development. Americans have gone from a much greater risk of these crimes, compared to England and France, to a significantly lower risk. The tougher sentencing has been a big part of that.

Posted by Kent Scheidegger at 11:44 AM | Permalink | Comments (0)

Today is the last day of oral arguments for the U.S. Supreme Court's current term. The term calendar shows "non-argument sessions" (in blue) on Monday of each week from now to June, except Memorial Day. The session is Tuesday that week. Conference days are Thursdays. Looking at the opinion dates for last term, we see that 40 opinions were issued after the conclusion of oral arguments. Of these, 31 were issued on the scheduled non-argument session days, and 9 were issued on Thursdays: June 14, 21, and 28. There are 36 argued cases remaining undecided in the current term.

Posted by Kent Scheidegger at 09:59 AM | Permalink | Comments (0)

The Supreme Court today decided Virginia v. Moore, holding 8-1-0 that an arrest based on probable cause is not a violation of the Fourth Amendment even though the officer was not authorized by state law to arrest for that offense. David Moore was properly stopped for driving with a suspended license. The officers arrested him instead of citing him, as they were supposed to do, and the search incident to arrest revealed 16g of crack.

The actual question in the case is the admissibility of the crack in evidence. The drastic, disproportionate, ill-advised remedy of exclusion of valid evidence once again spills over into the substantive law of the Fourth Amendment.

The case really wasn't too difficult in light of two precedents. Atwater v. Lago Vista, 532 U.S. 318 (2001) held that there was no "minor offense" threshold on arrests under the Fourth Amendment. A state can, if it wishes, authorize arrests for any offense, no matter how trivial. Many states do, of course, apply a threshold, as the Virginia statute did in this case.

The other important precedent is California v. Greenwood, 486 U.S. 35 (1988). The Court settled 20 years ago that a state constitutional limitation on searches is not automatically bootstrapped into the federal Fourth Amendment. The people of California had wisely repealed the state exclusionary rule in 1982, but the state court precedents construing the constitutional search and seizure provision more broadly than the U.S. Supreme Court had construed the Fourth Amendment were still in force. Hence, searching the garbage placed outside for collection was a violation of the state but not federal constitutional provision. The federal constitution did not operate in this situation to require exclusion of evidence obtained in a manner that violated state but not federal limitations.

That remedial issue was also central to today's decision:

If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations.... Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures.

Moore would have us ignore, however, the limited consequences Virginia attaches to a police officer’s failure to follow the Commonwealth’s summons-only instruction. For such an infraction, the officer may be disciplined and the person arrested may bring a tort suit against the officer. But Virginia law does not demand the suppression of evidence seized by an officer who arrests when he should have issued a summons.

The Fourth Amendment, today’s decision holds, does not put States to an all-or-nothing choice in this regard. A State may accord protection against arrest beyond what the Fourth Amendment requires, yet restrict the remedies available when police deny to persons they apprehend the extra protection state law orders.

Posted by Kent Scheidegger at 08:36 AM | Permalink | Comments (0)

Last Friday, this post at Capital Defense Weekly said, "Monday’s order list will give a better understanding of which challenges may or may not meet the plurality’s standard." Yes, I think so. Over at SCOTUSblog, Lyle Denniston writes, "The Supreme Court, without a specific explanation of why it was doing so, chose a single path on Monday in dealing with" a slew of capital cases. The number of capital cases the Court turned down is reported as 11 by Lyle and by an AP story. However, I count 14, including a rehearing denial. The cases are listed at the end of this post.

Lyle seems surprised that the Court gave no explanation for its actions. I do not find this remarkable. The Court usually does not give a reason for denial of certiorari. Moreover, looking at the lower court opinions, none are obviously "certworthy" in light of the Baze opinion's rejection of most of the defense arguments.

Lyle devotes a paragraph to Berry, noting that the petitioner filed a supplemental post-Baze brief and that the Court didn't mention the brief. However, as previously noted here, the brief was irrelevant to the basis of the decision below, which was that Berry's eve-of-execution suit was untimely. This was so obvious that the state did not even bother to respond. Cooey and Biros are similar. The Sixth Circuit held that the statute of limitations had run. Nothing in Baze requires reconsideration of that holding. The USCA11 decision in Arthur was also on timeliness grounds.

The USCA decisions in Bower, Crowe, and Middleton and the Florida Supreme Court decision in Johnson are just regular capital case decisions with no mention of lethal injection. If an injection claim was added at the rehearing or certiorari petition stage (I don't have access to those documents), it would have been untimely.

The USCA8 decision in Taylor is clearly correct on the law in light of Baze. The CA held that Taylor had not shown a substantial risk, and Baze held that was a threshold requirement. No need to review this decision any further.

That leaves the state court decisions in Williams, Walker, Frazier, and Velazquez. These are all cases where the state court summarily rejected a method-of-execution claim. Walker, for example, simply says, "The trial court did not err in rejecting Walker's claim that lethal injection is unconstitutional, as Walker proffered no evidence to sustain his claim." In Williams, on the other hand, the trial court considered evidence produced in another case, so there is some factual record on the state's recently revised protocol. Even so, the state court rejected the claim with cites to earlier decisions going back to Dawson v. State, 274 Ga. 327 (2001), in which it through out the electric chair and upheld the alternative of lethal injection. Frazier and Velazquez are also terse denials based on precedents.

Conceivably, if the Court had understood its Baze opinion as merely opening the door to more injection litigation, as Justice Stevens claimed, it might have vacated the decisions in one or more of these state cases and remanded for reconsideration in light of Baze. On the other hand, a vacate-and-remand is unnecessary if Baze resolves as much as the plurality says it does. This, I suspect, is the answer to the question I asked Monday on why Justice Stevens thought it necessary to remind everyone that denial of certiorari implies no opinion on the merits and why he chose Frazier and Velazquez to make that statement.

Justice Stevens is correct, of course, that denial of certiorari is not a precedent. Lower courts are not legally bound to read anything into it. However, for court-watchers interested in where things are headed, decisions such as this can give a clue to the current thinking of the Court's majority. The fact that the Court simply denied certiorari rather than vacating and remanding, as it often does with a slew of pending cases after a major decision, is an indication that Baze did indeed resolve more than Justice Stevens said and more than most of the anti-death-penalty commentators are saying.

Here are the cases:

06-11830 June 13, 2007 http://www.supremecourtus.gov/docket/06-11830.htm
Joseph Williams v. Georgia
Supreme Court of Georgia (S06P0675) September 18, 2006

07-303 September 7, 2007 http://www.supremecourtus.gov/docket/07-303.htm
Michael Anthony Taylor v. Larry Crawford, Director, Missouri Department of Corrections, et al.
USCA-8 (06-3651) June 4, 2007

07-395 September 24, 2007 http://www.supremecourtus.gov/docket/07-395.htm
Thomas D. Arthur v. Richard F. Allen, Commissioner, Alabama Department of Corrections, et al.
USCA-11 (07-13929) September 17, 2007

07-6243 September 4, 2007 http://www.supremecourtus.gov/docket/07-6243.htm
Kenneth Biros v. Ted Strickland, Governor of Ohio, et al.
USCA-6 (05-4057) March 2, 2007

07-7348 October 29, 2007 http://www.supremecourtus.gov/docket/07-7348.htm
Earl Wesley Berry v. Christopher B. Epps, Commissioner, Mississippi Department of Corrections, et al.
USCA-5 (07-70042) October 26, 2007

07-8315 December 18, 2007 http://www.supremecourtus.gov/docket/07-8315.htm
Lester Leroy Bower, Jr. v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division
USCA-5 (03-40980) August 16, 2007

07-8434 January 2, 2008 http://www.supremecourtus.gov/docket/07-8434.htm
Allen L. Nicklasson v. Don Roper, Superintendent, Potosi Correctional Center
USCA-8 (05-3318) June 21, 2007

07-9096 February 1, 2008 http://www.supremecourtus.gov/docket/07-9096.htm
Samuel David Crowe v. Hilton Hall, Warden
USCA-11 (05-16918) June 27, 2007

07-9402 February 20, 2008 http://www.supremecourtus.gov/docket/07-9402.htm
Richard Allen Johnson v. Florida
Supreme Court of Florida (SC04-1972) July 5, 2007

07-9486 February 25, 2008 http://www.supremecourtus.gov/docket/07-9486.htm
John Middleton v. Don Roper, Superintendent, Potosi Correctional Center
USCA-8 (06-2907) August 17, 2007

07-6234 September 5, 2007 http://www.supremecourtus.gov/docket/07-6234.htm
Richard Wade Cooey, II v. Ted Strickland, Governor of Ohio, et al.
USCA-6 (05-4057) March 2, 2007

07-9052 January 30, 2008 http://www.supremecourtus.gov/docket/07-9052.htm
James Frazier v. Ohio
Supreme Court of Ohio (2005-1316) October 10, 2007

07-8946 January 25, 2008 http://www.supremecourtus.gov/docket/07-8946.htm
Juan Velazquez v. Arizona
Supreme Court of Arizona (CR-04-361-AP) August 9, 2007

06-10966 May 1, 2007 http://www.supremecourtus.gov/docket/06-10966.htm
Gregory Walker v. Georgia
Supreme Court of Georgia (S06P0992) October 2, 2006

Posted by Kent Scheidegger at 03:49 PM | Permalink | Comments (0)

Today's Supreme Court oral arguments in Giles v. California started and ended well for the Petitioner, Giles, a man who was convicted for the first degree murder of his former girlfriend Brenda Avie. In today's arguments, Petitioner contested the admissibility of a testimonial statement Avie had made to police officers following a domestic dispute between the Petitioner and Avie. The domestic dispute occurred sometime before Giles shot Avie in what he claimed was self-defense. At Giles' murder trial, the California court allowed the officer to testify about Avie's statements. The statements were admitted under California's rules of evidence as evidence of Giles' propensity to commit acts of domestic violence.

Throughout her main argument, Petitioner's attorney stuck with the point that the Confrontation Clause as understood by the Framers, as well as the common law, prohibited a testimonial statement from being admitted as evidence unless other evidence showed the defendant intended to tamper with the witness and prevent his testimony at trial. Justice Scalia often chimed in to help her with this argument, reminding the Court that Crawford v. Washington had already defined the contours of the Confrontation Clause. Post-Crawford, testimonial statements are inadmissible at trial unless the defendant has had an opportunity to cross-examine the witness.

While Justice Breyer attempted to draw Petitioner into a discussion as to whether strict adherence to the common law made sense in all cases, Justice Scalia and Petitioner reminded the Court that the exception to the Confrontation Clause advocated by California was not recognized under Crawford.

In response, the Respondent, California, argued for a rule that the common law did not recognize a confrontation right for a person who had murdered the witness against him. This rule is broader than the current Federal Rule of Evidence 804(b)(6) which requires proof of an intent to silence or tamper with a witness before a testimonial statement may be admitted against the defendant. Both Chief Justice Roberts and Justice Kennedy expressed concern over this rule with the Chief Justice expressing concern that if such a rule were allowed it would not be limited to those cases where it is most necessary, for example, domestic violence cases.

Respondent failed to satisfy these concerns by articulating a rule that could both satisfy the Justices' desire to preserve the right to confrontation, but allow testimonial statements made by the victim regarding the manner in which he or she was killed. Respondent's best argument for adopting California's rule was that dying declarations were allowed under the common law as a hearsay exception, and the Court should view this as "insight into how the common law would have devalued the confrontation rights of the killer."

While she initially seemed to side with California, Justice Ginsburg's closing comments appeared to favor the Petitioner. During Petitioner's rebuttal Justice Ginsburg asked if all that Petitioner wanted was harmless-error analysis. Petitioner's response that yes, all Petitioner wanted was a fair trial with a rule that was not "concocted for the broad purpose of eviscerating Crawford" may have sealed the deal.

If the Court does decide for Petitioner it will be interesting to see how states that have adopted rules like the one advocated by California will respond. Post-Crawford, there remain strong policy arguments for allowing a testimonial statement made by a battered wife or abused child to be admitted at trial when the defendant has killed the witness, even though he or she may not have killed to silence the witness at trial. While Giles may not be the case that decides this rule, hopefully one will come along that does.

Posted by Lauren Altdoerffer at 03:40 PM | Permalink | Comments (0)

Mumia Abu-Jamal: Steven D. Levitt, at Freakonomics Blog authored this post, cautioning against the uninformed support of convicted murderer Mumia Abu-Jamal. Mumia Abu-Jamal was convicted and sentenced to death for the murder of police officer Daniel Faulkner in 1981. The federal district court granted habeas relief as to the death sentence but denied relief on the guilt verdict. The Third Circuit affirmed last month in this decision. Levitt's post encourages those who support Mumia to read Murdered by Mumia written by Maureen Faulkner and Michael Smerconish. Maureen Faulkner is Daniel Faulkner's widow, and offers a victim's perspective of the Mumia legal battle. Levitt writes: "If you are a college student, or a Hollywood celebrity, thinking about publicly proclaiming Abu-Jamal’s innocence, I strongly recommend that you read this book first."

Giles Argument: Lyle Denniston reports at SCOTUSblog on today's argument regarding the Confrontation Clause and the murdered witness.

Baze Comments: Volokh Conspirator Paul Cassell has this clarification to his earlier comment on Justice Stevens' opinion in Baze, with links to his prior posts and Orin Kerr's in the same blog.

Posted by Lauren Altdoerffer at 01:37 PM | Permalink | Comments (0)

Fight Crime, Shoot Back: The owner of an Oakland liquor store, shot in the leg during and attempted robbery last Saturday, shot back with his own gun, hitting the robber three times according this report by SF Chronicle writer Henry K. Lee. It was the second time in two days that area store employees had defended themselves against criminals. Another Chronicle story reports that tonight, the Oakland Police Chief will announce his new plan to reduce crime, which has been spiraling out of control in the city for the past several years.

Posted by CJLF Staff at 09:31 AM | Permalink | Comments (0)

SCOTUS Podcasts: The Federalist Society has podcasts on the Kennedy v. Louisiana argument by Bill Otis and on the Baze v. Rees decision by Kent Scheidegger.

Reaction to Baze Commentary: SCOTUSblog has posted a commentary by Eric Berger, an assistant professor at University of Nebraska College of Law. Berger's commentary responds to Kent Scheidegger's April 18th commentary that the Court's opinions in Baze v. Rees will allow states with protocol's similar to Kentucky's to move forward with their executions. Berger argues that because there are often discrepancies between States' written protocols and actual implementation of the protocol, cases challenging whether actual lethal injection implementation causes severe pain may still be necessary.

Kennedy and Eighth Amendment jurisprudence: Doug Berman at Sentencing Law and Policy has posted his thoughts on the oral arguments in Kennedy v. Louisiana here. Berman's post expresses his hope that the Court's Kennedy decision will "revive" the Eighth Amendment to give the current vague standard of "evolving standards of decency that mark the progress of a maturing society" clearly defined parameters.

Does the Commerce Clause Allow Congress to Regulate Interstate Moves By Sex Offenders?: Ilya Somin posted this comment at the Volokh Conspiracy on a federal court decision to strike down part of the Adam Walsh Act because the Act violated the Commerce Clause. Somin states the Adam Walsh Act does not violate the Commerce Clause as interpreted by the U.S. Supreme Court's decision in Gonzales v. Raich. Somin argues that any interstate movement by a sex offender qualifies as "economic activity" as defined by Raich because the offender is engaged in the consumption of commodities - such as gas and food - as the offender moves from one state to another. Somin believes that while this definition of "economic activity" is too broad, the Adam Walsh Act is valid under current precedent.

Ninth Circuit Allows Border Search of Laptop: Howard Bashman at How Appealing discussed the Ninth Circuit's decision that will allow the prosecution of a child pornography case to go forward. The defendant in United States v. Arnold had successfully argued to the district court that reasonable suspicion was required to search his laptop at the border. Today's Ninth Circuit opinion rejected Arnold's argument that "laptop computers are fundamentally different from traditional closed containers," and, therefore, a higher standard of "particularized suspicion" is not required to search a laptop at the border.

Posted by Lauren Altdoerffer at 02:18 PM | Permalink | Comments (0)

This post is by Julia Wobbe, a student at California State University, Sacramento.
There has been much controversy about the incarceration rate in the United States, which is much higher than in European countries. It is informative to consider these differences in the context of how comparative crime rates have changed over time. The European Sourcebook of Crime and Criminal Justice, (2nd ed. 2003) and (3rd ed. 2006), reveal the rate of violent crimes and the prison population rate. United States data are given by the FBI’s Uniform Crime Reports and the Bureau of Justice Statistics website.

When comparing crime rates with other countries, it is important to make sure that the data is compatible; thus we compared the standard definitions of the European Sourcebook to the definitions from Uniform Crime Reports. The standard definitions of offenses in the European Sourcebook were devised to allow national correspondents to provide the necessary data for their countries and to specify whether or not they meet the standard definition. The standard definition of robbery was among the few violent offenses that was met by most of the European countries. The definition of assault, for example, was much broader in England than in the larger continental countries. Rape statistics are also problematic to compare across countries, as cultural differences may produce widely varying reporting rates. For these reasons, this analysis compares robbery rates only.

Four European countries were selected for this comparison: France, Germany, Italy, UK: England and Wales. (For crime statistics, England and Wales are one unit. Scotland and Northern Ireland are separate.) After compiling the data of interest, robbery rates were compared between the countries over a time span of nine years—from 1995 to 2003. The chart consisted of robbery rates per 100,000 population and provided some interesting results. It revealed that in 1995, United States had a much higher robbery rate than any of the European countries. However, while the robbery rate in most European countries was increasing, the robbery rate in the United States was decreasing. The table below the chart shows incarceration rates per 100,000 population among the four European countries and the United States over the same nine years. The table shows that the United States had a much higher incarceration rate than all of the European countries. Amongst the European countries, England and Wales had the highest incarceration rate and the sharpest increase.

While the incarceration rate is much higher in the United States than Europe, it is quite plausible that this higher rate is responsible, all or in part, for the very different trend in crime rates. Americans were once in much greater danger of robbery than Europeans, but no longer.

Posted by Irma Abella at 01:52 PM | Permalink | Comments (0)

Genetic Informants. Washington Post writer Ellen Nakashima reports on a new tool that is helping to identify suspects through a relative's DNA. The initial use of this tool was in the BTK murder case. Police in Kansas obtained a court order to collect a pap smear sample from Dennis Rader's daughter, which eventually lead to his arrest for the killings in 2005. The ACLU is mostly against this.

Update on Court denials of DP appeals
Updating our earlier post, the AP’s Michael Graczyk
reports, on the three DP cases denied by the Court this morning.

Giles v. California
Oral argument will be held in Giles tomorrow. An AP story by reporter Mark Sherman discusses the case. Giles was sentenced to 50 years in prison for the first-degree murder of Brenda Avie, based in part on the introduction of statements the victim made before she died. Giles argues that introducing the statements violated the Sixth Amendment. California Attorney General Jerry Brown wants the high court to uphold the conviction.

More DNA: The federal government plans to begin DNA testing of everyone arrested by a federal law enforcement agency, rather than only after conviction, as noted previously here. The John Birch Society is against it, and the ACLU agrees. "A Chicago study in 2005 found that 53 murders and rapes could have been prevented if a DNA sample had been collected upon arrest," according to the AP story.

Posted by CJLF Staff at 10:51 AM | Permalink | Comments (0)

The Supreme Court denied certiorari this morning in several capital cases it had been sitting on since the fall, when it took up the lethal injection case of Baze v. Rees. The cases include Taylor v. Crawford (Missouri), No. 07-303, Biros v. Strickland, No. 07-6243, and Cooey v. Strickland, No. 07-6234, both from Ohio, Berry v. Epps (Mississippi), No. 07-7348, and Arthur v. Allen (Alabama), No. 07-395. As previously noted here, the stay of execution previously granted in Berry terminates automatically upon the denial of certiorari. Ditto in Arthur.

The Court also denied certiorari in other capital cases that had not been held up, but were briefed and decided on a normal schedule, e.g., Bower v. Quarterman (Texas), No. 07-8315 and Nicklasson v. Roper (Missouri), No. 07-8434.

In two of today's denials, Justice Stevens chimes in with a reminder that denial of certiorari does not imply an opinion on the merits. See Velasquez v. Arizona, No. 07-8946 and Frasier v. Ohio, No. 07-9052. Curious that he chooses two direct appeals from state courts to make these statements, not any of the federal actions. I'm not sure what, if anything, is implied by that.

The Supreme Court-imposed moratorium is over. Now we will see how quickly justice can be resumed in the several states and whether Supreme Court intervention is necessary in certain circuits.

Mark Sherman reports here for AP.

Posted by Kent Scheidegger at 07:55 AM | Permalink | Comments (1)