Tomorrow evening (Wednesday), the Gold Coast Chapter of the Federalist Society (Ventura County, CA) will have a program on "Murderers, Terrorists & Treaties: Current Supreme Court Cases on the Treatment of Aliens," discussing the Guantanamo cases and Medellin. The speaker is CJLF Legal Director Kent Scheidegger. Details here.
"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.”
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.
The Supreme Court decided the lethal injection case, Baze v. Rees today. The opinion is here. There is no majority, but I expect the plurality opinion by Chief Justice Roberts will be treated as the authoritative word. A couple of key passages:
Accordingly, we reject petitioners’ proposed “unnecessary risk” standard, as well as the dissent’s “untoward” risk variation. See post, at 2, 11 (opinion of Ginsburg, J.) [footnote omitted]Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment. [footnote omitted]
Slip op. at 11-12.
A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.
Slip op. at 22 (emphasis added)
Ed Silverman over at Pharmalot notes that the Supreme Court denied cert. in the "Zoloft Defense" case, Pittman v. South Carolina.
The "redacted" version of Volume 4 of the Joint Appendix has now been filed with the Court, and it has been added to our Baze v. Rees document collection.
A crime involves four people: the mastermind, an "insider" who exploits his position of trust with the target, and two accomplices. The first two have prior convictions; the latter two have little or no records and cooperate with the police. So, knowing nothing more than this, who would you expect to get the more severe sentences, and who would you expect to receive the lesser sentences?
Continue reading "Yet Another Patently Bogus Discrimination Claim" »
Charles Lane, who formerly covered the Supreme Court for the Washington Post, has a book titled The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction. The subject is the 1873 murder of scores of black men in Colfax, Louisiana, the prosecution of that case by the U.S. Attorney, and the Supreme Court's reversal in United States v. Cruikshank, 92 U.S. 542 (1875). Cruikshank is one of the cases near the end of Reconstruction that effectively gutted the Fourteenth Amendment for a time. Guest-blogging at the Volokh Conspiracy, Chuck has posts on the book and the case here, here, here, here, and here.
The case is a reminder that the worst violations of equal protection of the laws have come not in prosecutions but in failures to prosecute.
The Third Circuit has ordered a new sentencing hearing in the case of Mumia Abu-Jamal, who was convicted of killing Philadelphia Police Officer Daniel Faulkner in 1981. The lengthy 118 page opinion is here and the Fox news story here. Faulkner's memorial site can me found here.
Update:
Michael C. Moynihan over at Reason's blog Hit & Run says:
Remember Mumia Abu-Jamal, the cop-killing NPR contributor who rallied legions of campus radicals during the 1990s to protest his innocence? There was a time when every demonstration —anti-globalization, anti-war, anti-whatever—featured an organized division of "Free Mumia" types. In 2002, the Paris City Council conferred honorary citizen status on Jamal, and in 2006 the city named a street after him. Quite a step down from Rue Eisenhower and Place du Général Patton. But the Mumia cause soon faded—when everyone (but Parisian politicians) realized that he was guilty. In his book Dude, Where's My Country, Michael Moore admitted that "Mumia probably killed that guy."
Perhaps that's one reason why so many folks are skeptical of the various innocence projects which seem heavy on the rhetoric and loose with the facts.
The Supreme Court decided the case of Medellin v. Texas, 5-1-3. The case involves a decision of the International Court of Justice that the United States must reconsider the claims of about 50 Mexican nationals that their rights under the Vienna Convention were violated by the failure of police to inform them upon arrest that they could have the Mexican Consulate notified. In many of the cases, including Medellin, state courts had held that the claim was defaulted by failure to raise it in time. The ICJ held, in essence, that the default rule could not be applied at least to defaults occurring before the consulate had notice of the case. Two years ago, in Sanchez-Llamas v. Oregon, the U.S. Supreme Court disagreed and held that the treaty does not trump state procedural default rules. However, that case did not involve any of the persons whose cases were actually before the ICJ.
Two arguments were made to distinguish the Medellin case from the earlier case. The first one was that the treaty obligations of the United States to submit Vienna Convention disputes to the ICJ and to comply with the ICJ decisions have direct legal force in domestic courts. The second was that a memorandum issued by the President to the effect that state courts would implement the ICJ decision was a proper exercise of the President's authority in foreign affairs.
Today's decision by Chief Justice Roberts rejected both arguments. The treaties are not self-executing, based on an analysis of their language. Although the United States has an obligation under international law, that obligation only becomes a domestic law binding on domestic courts if Congress enacts legislation to implement it. Second, although the President has broad powers in foreign affairs, he cannot transform a non-self-executing treaty into a self-executing one.
On page 25 of the slip opinion, the Court notes, "Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes." We can expect the next stage of this drama to be the introduction of bills to implement the ICJ decision.
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.
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.
Continue reading "The Miura Case: Foreign Judgments, Double Jeopardy, and Ex Post Facto" »
It seems fashionable lately for many scholars to decry our criminal justice polices surrounding sex offenders. Indeed, classifying all sex offenses - from adolescents who take nude pictures of themselves to the worst sex abuse imaginable - seems unwise. Moreover, the civil commitment of sex offenders seems problematic and encompasses an ominous trend to attribute biological causes as the root problem for so many antisocial behaviors, including sexual deviancy. And it is true that the "science" surrounding much of the sex offender debate is a minefield of pitfalls and spurious links.
But those criticisms and limitations do not mean that sex offenders are a minor risk and that all of the retributive rhetoric about them is misplaced. As many forensic psychologists know, conducting a risk assessment evaluation on a convicted sex offender often entails a lengthy tread into the world of recidivism, failed treatment programs, and eternal denial on the part of the offender. A recent, albeit, extreme story regarding the tragic case of Dylan and Shasta Groene demonstrates why public sentiment is so starkly in favor of heavy penalties and restrictions against sex offenders.
Continue reading "The Horror of Our Failed Incapacitation Policies for Sex Offenders" »
In 1990, the voters of California passed Proposition 115, which among other things added a discovery chapter to the Penal Code, §§ 1054.1 et seq. (Most important criminal law is enacted by initiative in California, due to the permanent dysfunctionality of our Legislature.) Among the provisions of this law is: "This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant...." (Emphasis added.) The Legislature can amend the chapter, but only by a 2/3 vote.
What part of "only" did the solons not understand? They enacted a statute, Penal Code § 1054.9, giving new postconviction discovery rights to defendants sentenced to death or life without parole, and they passed it by less than a 2/3 vote. Although on its face the statute does not seem terribly burdensome, in practice it has been used in a much more aggressive manner.
In the case of Barnett v. Superior Court, the California Supreme Court was considering some issues related to the application of this statute, but CJLF asserted in an amicus brief that the whole statute was unconstitutional as an unauthorized legislative amendment of an initiative. (This theory was first advanced by the Contra Costa County District Attorney's Office.) Today the court issued this order:
The above-entitled matter is transferred to the Court of Appeal, Third Appellate District, with directions to establish a briefing schedule and then consider and decide the issues raised in the brief of amicus curiae, Criminal Justice Legal Foundation, filed November 5, 2007, and petitioner's answer to that brief, filed December 17, 2007. (Cal. Rules of Court, rule 8.528(d).) Kennard, J., was recused and did not participate.
Jose Padilla was sentenced to 17 years, 4 months for conspiracy to commit terrorism, Curt Anderson reports for AP. He is a U.S. citizen who was detained on charges of a "dirty bomb" plot, leading to this Supreme Court decision on jurisdiction in habeas corpus cases.
The sentence today does not reflect the most serious charges against Padilla. The information gained from him during interrogation is inadmissible in a regular criminal trial under the Miranda rule.
The AP story says, "Padilla's lawyers argued for a lenient sentence," meaning no more than 10 years. But he has gotten off leniently. If even a portion of the plots alleged are true, he is guilty of "levying war against [the United States], or ... adhering to their Enemies, giving them Aid and Comfort," U.S. Const. Art. III § 3, i.e., treason. The appropriate punishment for that crime is death.
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.
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.
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.
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."
Today, the US Supreme Court granted certiorari in Giles v. California (07-6053), a case that will review whether the Confrontation Clause permits the hearsay statement of a witness who is unavailable for trial because the defendant killed her - even though he did not intend to silence her testimony when he killed her. The California Supreme Court ruled in March of last year that the hearsay statement was admissible, but placed some limitations on how and when the statement would be allowed in court.
In Giles, the defendant was charged and convicted with the murder of his former girlfriend Brenda Avie. According to witnesses, Avie had arrived at the defendant's grandmother's house on the night of the murder, and had talked with defendant for about a half hour. Witnesses then heard the victim yell "Granny" several times followed by a series of gunshots. When witnesses arrived on the scene, they saw defendant standing about eleven feet from Avie with gun in his hands. Defendant then fled the scene and was arrested sixteen days later.
Avie had been shot six times in her torso. Two of the wounds were fatal. Avie had not been carrying a weapon when she was shot.
Continue reading "Giles v. California: Defining the Scope of "Forfeiture By Wrongdoing" " »
In New York, James O'Hare wanted to cash the Social Security check of his roommate, Virgilio Cintron. He had a small problem, though, as Mr. Cintron had died sometime within the preceding 24 hours. Undeterred, Mr. O'Hare and his buddy David Dalaia proceeded to the Pay-O-Matic check-cashing joint with Mr. Cintron in tow, seated in an office chair. Off-duty detective Travis Rapp, eating lunch at a nearby restaurant, thought this looked a tad suspicious and called in the uniforms, report Bruce Lambert and Christine Hauser in the NYT.
In related news, the Supreme Court heard oral argument today in the Indiana voter ID cases, Crawford v. Marion County Election Board, No. 07-21, and Indiana Democratic Party v. Rokita, No. 07-25, transcript here. These cases concern an Indiana law that voters show a photo ID at the polling place. This requirement has a disparate impact on deceased voters. Unlike Mr. O'Hare, persons voting on behalf of the deceased rarely bring the dear departed to the polls with them. Even if they did, after a week or two persons of decomp. do not look much like the pictures on their IDs. Norman Bates would have had a hard time with his mother and her driver's license.
The U.S. Supreme Court will hear oral argument in Baze v. Rees, the Kentucky lethal injection case, on Monday. Briefs and other pertinent documents are collected here. Orin Kerr has this post at the Volokh Conspiracy. Alison Nathan and Douglas Berman have this dialog on SSRN, forthcoming in PENNumbra. (Doug calls it a debate, but they don't really disagree enough to call it that, IMHO.) Adam Liptak has this story in the NY Times on the resistance toward going to a single-drug method.
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.
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.
The California Supreme Court issued an order to show cause in the case challenging the residency restrictions of Proposition 83, approved by the voters last November. Bob Egelko reports here for the SF Chron. The case is In re E.J., S156933. The docket is here.
Procedurally, the case is an "original habeas petition," meaning it was filed directly in the California Supreme Court rather than as an appeal from the decision of a lower court. Unlike the U.S. Supreme Court -- which can only take original habeas petitions when they are, in practice, reviews of other court decisions -- Cal. Supreme has jurisdiction to hear these cases without a lower court decision. The usual practice in noncapital cases is to say "go away and file in another court," but this case was evidently considered important enough to take the fast track. The order to show cause effectively accepts the case for full consideration.
We at CJLF have been unenthused about the residency restriction from the beginning. The requirement that sex offenders live no closer than 2000 feet from any school or park was ill-considered, effectively banning them from densely populated areas. An exodus of sex offenders from San Francisco to Merced is not a good thing. We supported Prop. 83 anyway because of other worthwhile provisions but warned that the constitutionality of this one was borderline.
Winston Churchill once said something to the effect that democracy is the worst form of government except for all the others. In California, we take that a step further. Direct democracy is the worst form of democracy except for the other. If our Legislature were not so dysfunctional, we wouldn't have to make nearly all important criminal law by initiative. But it is, and we do.
The California Supreme Court decided today that a criminal court can order restitution to the spouse of a homicide victim for the lost support the victim would have provided. The opinion in People v. Giordano, S138382 is here. Justice Moreno wrote the opinion, joined by 5 others. Justice Kennard dissented.
Professor Berman yesterday links to the recent 9th Circuit opinion in U.S. v. Mitchell, affirming the death penalty sentence for a defendant involved in a double murder. As the opinion notes, during the sentencing phase, Mitchell offered this mitigating evidence:
The defense presented as mitigating evidence the testimony of family members, friends, and teachers of Mitchell whom they portrayed as an excellent high school student with no disciplinary problems except for a brief suspension for possessing marijuana, who was an outstanding athlete with college football prospects, a leader both in student council and in sports, and respectful towards teachers. (p. 11560)
According to Wiggins v. Smith, defendants have a right to introduce psychologically mitigating evidence, including descriptions of child abuse, neglect, and other unfortunate social factors in determining the appropriateness of a death sentence. In Mitchell, of course, it's the opposite: Mitchell introduced evidence of his relatively uneventful childhood as proof of his good character. Considering Justice Steven's dissent in the recent case Schriro v. Landrigan suggesting that antisocial personality disorder is an "organic brain syndrome" akin to delirium or mental retardation one wonders what constitutes a psychologically relevant aggravating factor in death penalty cases.
Of course defendants are entitled to present mitigating evidence during trial and sentencing. Such evidence should include salient psychological factors that could impinge on culpability. Yet the reduction of character evidence, psychologically speaking, into exclusively mitigating evidence seems the trend in our criminal justice system these days. This course follows the emergent and popular claim by many scholars that biology is destiny -- and that biology always seems to show a lack of choice by defendants to conform their behavior to the criminal code. Yet such claims should be viewed with a healthy dose of skepticism. As I discuss in this brief essay, history is a great teacher and history is replete with examples of scientific claims once viewed as promising and certain only to be viewed by future generations as downright foolish. Our legal traditions have always placed a great burden upon defendants wishing to exculpate or mitigate their guilt based on psychological factors alone since our system also cherishes individual choice and autonomy. But with choice and autonomy comes responsibility. Few predispositions, childhood histories, and other misfortunes should arguably negate that responsibility given the breathtaking implications such a course would have for our criminal code.
Landrigan was officially decided by the Ninth Circuit on remand, following reversal by the Supreme Court in Schriro v. Landrigan. Denial of habeas affirmed.
Parole Violation Warrants: "We consider whether an administrative warrant issued pursuant to 18 U.S.C. § 4213(a) for the retaking of an alleged parole violator is subject to the oath or affirmation requirement of the Fourth Amendment’s Warrant Clause. We hold it is not and therefore affirm the denial of petitioner’s habeas challenge to his detention on an unsworn parole violator warrant." Sherman v. U. S. Parole Comm'n.
Chutzpah: Once upon a time, the comical exemplar of that term was the man who murdered his parents and then begged for mercy on the ground he was an orphan. The joke was no longer funny after the Menendez Brothers. Here is a good candidate for a new exemplar from a real Ninth Circuit case.
Russell Laroy Holland appeals his conviction and sentence for mailing threatening communications and threatening the President of the United States. He maintains that the district court judge who imposed the sentence should have recused himself after Holland obtained the judge’s home telephone number and left at least one threatening message prior to his sentencing.
Hey, it was worth a shot. No argument is too preposterous if you get the right panel in the Ninth, and you don't know the panel when you write the brief. Mr. Holland's opus, however, went to Judges Thompson, Kleinfeld, & Bybee. Affirmed.
The "bottom side" briefs are in for Medellin v. Texas. All except the not-yet-filed reply brief are collected here. The summary of argument from the CJLF brief is after the jump.
In the California prison litigation, Judges Lawrence Karlton and Thelton Henderson issued an order for a three-judge district court, Don Thompson reports for AP. Congress has provided that only a special three-judge panel can issue a prisoner release order. The panel will consist of two district judges and one circuit judge, designated by Chief Judge Mary Schroeder of the Ninth Circuit. The process is governed by the Prison Litigation Reform Act available here. A decision of the three-judge district court is appealable directly to the U.S. Supreme Court.
The U.S. Supreme Court today issued its long-awaited decision in Rita v. United States. The Court held that a federal court of appeals can presume on appeal that a within-Guideline sentence is reasonable in the post-Booker regime. Copious commentary on the direct implications of this decision for federal sentencing is available at Sentencing Law and Policy. Lyle Denniston at SCOTUSblog had this analysis at 10:03 a.m. A commenter asks how he can do that. Good question.
Also of interest are the implications of this decision for Blakely challenges to state sentencing systems, particularly the "how the heck do we cope with Cunningham" cases presently pending before the California Supreme Court. I think the decision bodes well for the argument that only minimal adjustment is needed for the existing cases and that the legislative fix for new cases is valid.
In the old cases, the defendants are claiming that all facts going into the decision to impose the upper term must be found by the jury. Nope.
This Court's Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence.... The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant's sentence unless the judge finds facts that the jury did not find (and the offender did not concede).
The California law at issue in Cunningham did forbid the upper term unless the judge found one aggravating fact. After that, Rita confirms, judge fact-finding is okay. In the new law, there is no fact-finding requirement at all.
Five years ago, CJLF submitted a brief in Bell v. Cone, 535 U.S. 685 (2002), stating:
On August 10, 1980, Gary Cone murdered Shipley O. Todd, age 93, and his wife Cleopatra Todd, age 79. State v. Cone, 665 S. W. 2d 87, 89-90 (Tenn. 1984). Over twenty-one years later, justice remains on hold, even though Cone’s identity as the perpetrator has never been in doubt. See id., at 90.
Justice is still on hold, but the Sixth Circuit decided Cone's case for the third time yesterday, finally getting it right. The first time they were reversed 8-1, cited above. The second time, they were reversed summarily, without dissent.
On the third round, Judge Merritt dissents, wanting to reopen a claim the court has already rejected, i.e., that the state withheld evidence of Cone's own drug use. Withheld evidence claims are particularly strange when the underlying fact to be proved involves the defendant himself, not the crime, and the defendant is well aware of the fact. As the majority notes, in this case the jury had ample evidence that Cone was a drug user. They just didn't find it all that mitigating.
This case is a perfect example of taking way too long and spending way too much in resources litigating issues that have nothing to do with guilt. Perhaps the end is finally near.
As mentioned previously here and here, female sex offenders have become more visible within the past few years. Mike Pechar at Interested-Participant has a series of posts highlighting the disparate sentences that female sex offenders are receiving these days. One case involves teacher Jeri Deanne Perez who plead guilty to three felonies involving a sexual relationship she had with a 14 year old boy. Perez received a 10 year sentence. In contrast, teacher Rebecca Withrow pleaded no contest to having sex with an 11 year old boy and received a 120 day sentence. In a similar story, Krystal Gehret was convicted of having sex with two 14 year old boys. It was also alleged that Gehret intimidated one of the victims in order to dissuade him from testifying. Gerhret was just sentenced to an 11-23 month prison term plus 1 year probation.
There may be details in these cases that explain the vastly different sentences that these women have received. Indeed, many opponents of mandatory minimum sentences argue that judges should have wide discretion so that fair and appropriate justice is delivered. But one wonders what those facts could be in these cases that would justify a 10 year sentence in one case and 120 days in another. Additionally, as many of the comments on Pechar's blog suggest, sentences for female and male sex offenders seem quite disparate despite the criminal acts being almost identical.
The Supreme Court today decided Bowles v. Russell, regarding the time limit to appeal a civil judgment under 28 U. S. C. § 2107. Federal habeas corpus petitions by state prisoners are considered civil cases for this purpose, among others. The Court split 5-4, with the majority sticking to the traditional view that the limits in this section are jurisdictional and therefore can't be waived regardless of circumstances. There has been a trend recently to cut back on what is considered "jurisdictional," which is the main point of the dissent. The AP has this story on the case. Tony Mauro weighs in at Legal Times, saying "the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term."
This decision won't affect the habeas statute of limitations, which the Court has already said is not jurisdictional. See Day v. McDonough, 547 U. S. 198, 205 (2006).
The Supreme Court decided Fry v. Pliler, No. 06-5247, today. The Court was unanimous on the main legal question they had taken the case to resolve. When a state court finds no federal constitutional error, and therefore does not do any harmless error analysis, a federal habeas court which does find error still applies the habeas harmless error rule of Brecht v. Abrahamson, 507 U.S. 619 (1993), not the direct appeal standard of Chapman v. California, 386 U.S. 18 (1967). The Chapman rule is more favorable to the defendant. In announcing the Brecht rule, the Supreme Court gave several reasons, only one of which was that in the case before it the state court had already done a harmless error analysis. The Eighth Circuit had erred in finding that Brecht was limited to that situation, and the other circuits had decided to the contrary.
The Supreme Court today "dismissed as improvidently granted" the case of Roper v. Weaver, No. 06-313. The slip opinion is here.
The case involved prosecutor arguments in the penalty phase of a capital case that the defendant claimed were improper. The Missouri Supreme Court disagreed, but the Eighth Circuit agreed. The question before the Supreme Court was whether the Eighth had properly applied the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d). CJLF's brief, by Prof. Barry Latzer of the John Jay College of Criminal Justice, is here.
The habeas petitioner, William Weaver, contended that AEDPA never should have applied to his case. He filed a federal petition pre-AEDPA, but the district court dismissed it as unexhausted because a certiorari petition was pending to the U.S. Supreme Court from the state collateral review. That exhaustion ruling was clearly wrong under law going back decades. Certiorari to SCOTUS is not part of exhaustion of state remedies. The Eighth Circuit declined to interfere, and Weaver did not seek Supreme Court review. He refiled the petition after denial of certiorari in the state collateral case and after enactment of AEDPA.
Meanwhile, back at the ranch, two other defendants prosecuted by the same prosecutor making the same argument got relief in pre-AEDPA petitions. The difference in treatment of these cases is enough to convince five Justices to drop the case without resolving any questions of law. The Court did not decide whether AEDPA should have applied to the refiled petition. The Court did not decide whether the Eighth Circuit correctly applied AEDPA. The Court did not decide whether the arguments were actually improper. The only decision is that, in the quirky and unlikely to be repeated circumstances of this case, the Supreme Court will not interfere and Weaver gets a new sentencing hearing.
Chief Justice Roberts concurs in the drop-kick but not in the stated reasons. Justice Scalia dissents, joined by Justices Thomas and Alito:
A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today's cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trial—though that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit's grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away—as perhaps the Court's own opinion can—as the product of law-distorting compassion for a defendant wronged by a District Court's erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Court's failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit's decision just what it did unto AEDPA: ignore it.
From today's decision in the police chase case, Scott v. Harris, comes this line that should not be remarkable, but is. "We think it appropriate in this [weighing] process to take into account not only the number of lives at risk, but also their relative culpability." In other words, society should be more concerned with the lives of innocent people than with the life of the person whose intentional, criminal conduct caused the danger in the first place. It is a comment on the state of the Supreme Court's "fleeing felon" jurisprudence that such an obvious statement needs to be made and that it is noteworthy.
Justice Scalia, with his usual subtlety, begins today's decision in Scott v. Harris by asking, "Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?" The answer is obviously "yes," but the Eleventh Circuit saw the "facts" for its consideration on summary judgment differently.
The Mississippi Supreme Court today upheld the conviction of Edgar Ray Killen for the 1964 killings of Michael Schwerner, James Chaney, and Andrew Goodman. The AP story is here. Killen's 1967 trial in federal court had ended in a hung jury. The decision goes through a number of issues, but the most interesting is the delay-in-prosecution claim. Vague allegations that witnesses have died and memories have faded don't cut it without pointing to specific testimony that is now unavailable. Then there is a remarkable passage:
A couple of recent en banc actions in the Ninth Circuit are worth noting. Today the court denied rehearing en banc in the case of United States v. Black, 05-10640, a decision issued in October and amended yesterday. The case involves the question of when police responding to a domestic violence call can enter an apartment without a warrant due to exigent circumstances. The question produced some unusual alignments. Judges Betty Fletcher and Marsha Berzon split on the panel. The dissenters from denial of rehearing en banc were Judges Kozinski, Reinhardt, Kleinfeld, and Berzon.
On Friday, the court granted rehearing en banc to review a habeas opinion by Judge Reinhardt, with Judge Bybee dissenting, in Smith v. Baldwin, No. 04-35253. Judges Reinhardt and Hug find that Smith qualifies for the "actual innocence" exception to the procedural default rule by presuming as true facts they say the prosecution wrongfully prevented him from establishing. As noted previously, there is an encouraging trend in the Ninth to grant rehearing en banc in cases of panel decisions favoring the defendant or habeas petitioner, in contrast to the earlier unwritten rule that en banc was a single-edged sword, exclusively for overturning decisions favoring the state.
We don't often comment on employment law on this blog, but I suppose it was only a matter of time before "disparate impact" litigation was extended to its logical extreme.* The Southeastern Pennsylvania Transportation Authority doesn't want Douglas El as a bus driver to drive around people with mental and physical disabilities because he is a murderer. El claims this constitutes discrimination on the basis of race. "[H]e argued that the policy has a disparate impact: because African Americans and Hispanics are more likely to have a criminal record...." The Third Circuit did not reject this claim out-of-hand, but only because of a lack of evidence on El's part. (Hat tip: Decision of the Day.)
It is true that this is a very old murder conviction entered when El was very young. Even so, it's still a murder conviction, and the notion that the Civil Right Act prohibits an employer from discriminating between criminals and law-abiding people, especially when hiring employees to care for particularly vulnerable people, strikes me as bizarre.
*"All rights tend to declare themselves absolute to their logical extreme." Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (Holmes, J.).
The Sixth Circuit today denied the state's motion to lift the stay of execution in the Biros case, previously noted here, pending resolution of the petition for rehearing en banc in the Cooey lethal injection litigation, previously noted here.
Update: Governor Strickland's office has posted his statement on the web site. It does not give his reasoning for the decision to deny clemency.
The en banc Ninth Circuit today once again corrected an out-of-the-mainstream panel decision in a habeas case. Robert Comer is an Arizona inmate sentenced to death whose attorneys are trying to challenge his sentence over his objections. In DP parlance, he is a "volunteer." The Ninth previously ordered the district court to determine if he was competent to withdraw his petition, and that court determined that he was. On September 13, a three-judge panel ordered the case to go forward anyway, with this holding:
We agree with the District Court that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer’s waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution. We therefore deny the State’s and Comer’s motions to dismiss the appeal and proceed to review the District Court’s denial of Comer’s federal habeas petition.
Today the 15-judge "en banc" court corrected this jaw-dropping violation of the Article III "case" or "controversy" limitation on the judicial power. The opinion is per curiam. Judge Pregerson dissents alone, reprinting the panel opinion.
The Ninth's increasing willingness to correct fringe panel opinions favoring the defense position* is a welcome, if overdue, development, as previously noted here. If this keeps up, maybe the Supreme Court can spend less of its time correcting obviously erroneous decisions from the Ninth.
*In this unusual case, the defense position is the position of the defense lawyer over the objection of the client.
David Kravets reports on the case for AP. In Monday's New York Times, Adam Liptak had a piece on Comer, which How Appealing has made temporarily available to nonsubscribers via this link.
Curt Anderson of AP reports:
A jury decided Wednesday that a convicted sex offender should get the death penalty for the kidnapping, rape and murder of 9-year-old Jessica Lunsford, who was buried alive in trash bags just yards from her home.The jury, on a 10-2 vote, brushed aside pleas for mercy and a life sentence from defense lawyers based on claims that John Evander Couey, 48, is mentally retarded and suffers from chronic mental illness. Jurors deliberated for about one hour.
One hour? Now that's Exhibit A in the case for nonunanimous penalty verdicts.
The Raich medical marijuana case has finally been redecided by the Ninth Circuit, nearly two years after it was remanded by the Supreme Court in Gonzales v. Raich. Judge Pregerson wrote the opinion, joined by Judge Paez, denying injunctive relief. Judge Beam, visiting from the Eighth Circuit, concurs in the result but "dissent[s] from the court’s expansive consideration of the doctrine of common law necessity as well as from several of the factual findings and legal conclusions applied to this issue and other claims before the court."
In other Ninth Circuit action, the court decided issues on the crime-fraud exception to the attorney-client privilege in the ongoing Napster case.
Over at Overlawyered, there's this post regarding two cases involving police liability. The first case involves a Normal, Illinois police officer who shot and killed 20-year-old Nathan Ruch after he attempted to run down the officer. The decedent's family claims that since the last shot (which was fatal) went through the car's passenger window, the evidence shows that the officer was no longer justified in discharging his shotgun. One wonders how many of us could display the split-second precise judgment that the plaintiff's suggest the officer should have exercised after almost being run down by a speeding car.
The second case involves the Sixth Circuit's reversal of a trial court's finding of liability when the police failed to arrest a drunk driver who later killed another motorist. As overlawyered quips, why is this a federal case?
The California Supreme Court today issued a decision in Taus v. Loftus, S133805. This is the civil suit by the subject of a controversial case study in recovered memory of childhood abuse against debunker Dr. Elizabeth Loftus et al. The Court of Appeal had whittled the plaintiff's claims down to four, and now there is one.
For the reasons discussed above, we conclude that the Court of Appeal erred in holding that plaintiff’s action should be permitted to go forward with regard to (1) Loftus’s alleged statements at the October 2002 conference relating to Jane Doe’s position in the military, (2) Loftus’s disclosure of plaintiff’s initials at the March 2003 deposition, and (3) defendants’ alleged action in obtaining information from confidential court records. At the same time, we also conclude that the Court of Appeal correctly determined that plaintiff’s action for improper intrus