Results matching “first”

The U.S. Supreme Court issued a new allotment order, assigning Justices to the various circuits.  The Circuit Justice generally rules on extension requests.  Stay requests are also addressed to the Circuit Justice, though these are routinely referred to the full court when there is time to do so.

Justice Gorsuch gets the Eighth Circuit.  Justice Sotomayor keeps the Tenth.  New Justices are typically not assigned the circuits from which they came right out of the gate.  The cases they participated in need to drain out of the pipeline first.  I wouldn't be surprised to see Justice Gorsuch get the Tenth eventually, as Justice Kennedy did the Ninth.

The court also issued an orders list taking up several cases.  The only criminal case taken is a tax fraud case, Marinello v. United States.

Quick takes on U.S. Supreme Court action this morning:

1.  Affirmed the Fifth Circuit in Davila v. Davis, declining to go further toward creating an endless spiral of lawyers getting new claims before the federal courts by accusing prior lawyers of incompetence.  This is a win for CJLF.  Our press release is here.

2.  Sent the cross-border shooting case of Hernandez v. Mesa back to the Fifth Circuit to reconsider in light of the Abbasi decision.  Not too much to consider since they got it right the first time and Abbasi does not in any sense move the ball in plaintiff's direction.  This is a partial win for CJLF as well.

3.  Took up the travel ban case and stayed the orders enjoining its enforcement to the extent they apply to persons with no connection to the United States.  This is a bit of a slap to the lower courts for granting preliminary injunctions that are far broader than their justification.

Two weeks ago, I wrote in this space that Special Counsel Bob Mueller has a conflict of interest (his long friendship with a major witness and possible investigative subject, Jim Comey) that requires his recusal.  I thought the topic sufficiently important that I submitted my entry in slightly revised form to USA Today, which printed it. 

A:  I don't know, but former Obama Administration Deputy Attorney General Sally Yates is making a pitch for the record.

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the "lock them all up and throw away the key" approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

Longtime death penalty abolitionist Prof. Austin Sarat has written an essay admitting what many of us have known for years:  The electorate favors the death penalty and it's not that close.  If the electorate's will is to be honored, we will keep it.  The obvious corollary is that, if it is to be ended, electoral will must be overcome.

...designates special courts to hear challenges to death penalty convictions, limits successive appeals and expands the pool of lawyers who could handle those appeals - all in an effort to speed up executions....

At the same time they approved Proposition 66, California voters also defeated Proposition 62, a measure that would have ended the death penalty for murder and replaced it with life in prison without parole.

Two-thirds of Oklahoma voters supported State Question 776 in November. That question declared that the death penalty cannot be considered cruel and unusual under the state constitution. It added a provision that "any method of execution shall be allowed, unless prohibited by the United States Constitution." It opened the way for Oklahoma to employ the gas chamber, electrocution or the firing squad if lethal injection is declared unconstitutional or is "otherwise unavailable."

The Nebraska electorate, by a margin of 61 percent to 39 percent, reinstated the death penalty just one year after state legislators voted to abolish it.

The U.S. Supreme Court this morning went back into the area of criminal defense lawyers giving bad advice on the immigration consequences of a conviction, a can of worms it opened in its 2010 decision of Padilla v. Kentucky.  Today's case is Lee v. United States, No. 16-327.

Jae Lee was a legal permanent resident who was caught dealing ecstasy.  When offered a plea deal, he asked his retained attorney about immigration consequences and was assured he would not be deported.  "According to Lee, the lawyer assured him that if deportation was not in the plea agreement, 'the government cannot deport you.' "  Wow.  What an idiot, if that was really the basis of his advice.  Dealing drugs is an "aggravated felony" under immigration law.  As such it results in mandatory deportation, and no, Bozo, it doesn't have to be in the plea agreement.

The two prongs of an ineffective assistance claim are deficient performance and resulting prejudice.  Here we have deficient performance in spades.  How about prejudice?  Is a defendant prejudiced by a plea deal when the prosecution has a slam-dunk case for guilt that almost certainly would have resulted in a higher sentence plus deportation anyway?  The majority, per C.J. Roberts, says yes.  Justice Thomas, joined by Justice Alito, dissents.  Justice Gorsuch did not participate.

1.4 Million Illegals Using Stolen SSA Numbers:  An audit by the U.S. Treasury Inspector General found that most illegal immigrants who pay taxes have stolen someone else's legal identity.  Stephen Dinan of the Washington times reports stolen Social Security numbers were used on an estimated 1.4 million returns filed in 2015.  The IRS tries to mark the files of fraud victims with electronic filings but it misses about half of them.  The IRS is not currently allowed to communicate with the Department of Homeland Security to identify who is using the stolen information and where they are.  Identity theft has become one of the most prevalent crimes in the U.S. with over 12 million victims annually. 

Mexico Sets Homicide Record in May:  New government statistics indicate that May was the bloodiest month in Mexico in twenty years with 2,186 reported murders.  Peter Orsi and Lisa Martine Jenkins of the Associated Press report that there have been 9,916 murders in the country during the first five months of 2017, over 2,000 more than at the same point last year.  In 2011, the Mexican government launched a military offensive against the drug cartels operating in the country.  Officials believe that this effort and ongoing wars between the cartels are responsible for the increased killings.  

A:  When the murder victim is a white frat boy.

Solomon Banda reports for AP:

A recent insurance study links increased car crash claims to legalized recreational marijuana.

The Highway Loss Data Institute, a leading insurance research group, said in study results released Thursday that collision claims in Colorado, Washington, and Oregon went up 2.7 percent in the years since legal recreational marijuana sales began when compared with surrounding states.

Legal recreational pot sales in Colorado began in January 2014, followed six months later in Washington, and in October 2015 in Oregon.

"We believe that the data is saying that crash risk has increased in these states and those crash risks are associated with the legalization of marijuana," said Matt Moore, senior vice president with the institute, which analyzes insurance data to observe emerging auto-safety trends.

As always, we should avoid jumping to a conclusion based on one study, particularly a correlational study with a small sample.  The HLDI report is here.

As my last post makes clear, I do not believe religion ought directly dictate secular criminal justice policy.  I am very much of the view, however, that it is the moral anchor of many people's view of wrongdoing, error, punishment and redemption.

Thank you very much for inviting me to speak at this excellent symposium on such an important topic.  And thank you, Jenny, for such a kind introduction.  It reminds me of one of my favorite New Yorker cartoons.  Pictured in the cartoon is a towering statue of a well-dressed man boldly pointing toward the horizon.  Below the man is an inscription that says "Solider, Statesman, Author, Patriot," and then, in smaller font below, it, "But Still a Disappointment to His Mother." 

Salvadorian Held in Muslim Girl's Murder:   A 22-year-old immigrant from El Salvador was arrested Sunday for the murder of a 17-year-old Muslim girl in northern Virginia.  Dana Hedgpeth, Justin Jouvenal, and Julie Zauzmerof the Washington Post report that the victim and a group of friends were walking to a Mosque Sunday morning when police say that a member of the group on a bicycle had an encounter with a motorist who exited his car and chased them with a baseball bat.  The first person he caught up to was Nabra Hassanen.  Her body was later found in a nearby pond. She had been beaten to death. The car and the suspect's description led police to Darwin Martinez.  While the Post neglected to mention it, the Associated Press and Fox News have reported that ICE has placed a detainer on Martinez for entering the country illegally.  

Huge Fentanyl Bust in San Diego:  Federal agents seized nearly 100 pounds of fentanyl from a car and a house in San Diego County on Monday. David Hernandez of the San Diego Union-Tribune reports that this was the largest amount of the powerful synthetic drug ever seized in the U.S.  Three people have been indicted on charges of possession with intent to distribute.  Fentanyl is up to 50 times more potent than heroin and even trace amounts can be fatal.  DEA investigators believe that the drugs were produced in Mexico and smuggled across the border for sale in the U.S.  According to the New York Times, the annual increase in fatal drug overdoses recorded last year was the highest in U.S. history.

"Are you now or have you ever been a member of the Communist Party Federalist Society?"

Can and should the federal courts invent new kinds of lawsuits, creating causes of action that Congress has not authorized?  The U.S. Supreme Court's thinking on that question has evolved over the years, and it took another step today.

Courts have been creating causes of action for a very long time.  The English courts did so before there even was a Parliament as we now know it, and these are the "common law" causes of action we learned in the first year of law school.  They created common law crimes as well.

But courts do this less than they used to, and the federal courts do less than the state courts.  Many states no longer have common law crimes; the federal courts have never been thought to have the power to create them.

During Reconstruction, Congress created a cause of action for people whose constitutional rights are violated by state and local officials, but not by federal officials.  In 1971, the Supreme Court created such a cause of action under the banner of "for every wrong there is a remedy."  That was the Bivens case, involving an alleged Fourth Amendment violation by federal agents.  In the next few years, the Court expanded Bivens a couple of times to new areas, but then it stopped.

The present Supreme Court term has two cases presenting the questions of what it means to extend Bivens to a new area and whether to do so.  One of those cases was decided today by a short-handed six-Justice Supreme Court.  If the approach of the four-Justice majority is reaffirmed in the next case, then Bivens is effectively frozen in ice.  It will exist within its current scope, but it will not be extended, and nearly any variation on existing themes will be considered an extension.

I argued in my USA Today op-ed that Bob Mueller is too close to his probable star witness, Jim Comey, to serve as the Special Counsel looking into President Trump's asserted conflict of interest in firing Comey, and discouraging Comey from pursuing an investigation of former National Security Adviser Mike Flynn (assuming arguendo that this happened).  As I noted, under the ethics statutes and regulations that govern officers of the Justice Department, Mueller has a long-term relationship with Comey that "may result in a personal ... conflict of interest, or the appearance thereof" (emphasis added).

I ask this question because, at random, I looked at the two most recent entries on Sentencing Law and Policy.  Here they are:

Kent recently noted the numerous and flagrant fabrications by an organization supporting a version of California "sentencing reform."  In the News Scan entry just before his, CJLF's staff discussed the legal settlement Rolling Stone magazine had been forced to cough up as a result of its wonderfully detailed fabrication of a rape at the University of Virginia. The made-up rapists were made-up white males.

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.

Attorney General Jeff Sessions' opening statement today before the Senate IntelligenceCommittee can be found after the break.

It's scarcely news by now that the appointment by Deputy Attorney General Rod Rosenstein of Bob Mueller to be Special Counsel to investigate possible Russian interference in the 2016 election is the Big Story in criminal law circles.

The U.S. Department of Justice issued this press release yesterday.

Attorney General Sessions today issued the attached memo to all Department of Justice components and 94 United States Attorney's Offices prohibiting them from entering into any agreement on behalf of the United States in settlement of federal claims or charges that directs or provides for a settlement payment to non-governmental, third parties that were not directly harmed by the conduct.

"When the federal government settles a case against a corporate wrongdoer, any settlement funds should go first to the victims and then to the American people-- not to bankroll third-party special interest groups or the political friends of whoever is in power," said Attorney General Jeff Sessions.

Darn.  I was hoping that now that the Republicans are in, DoJ would prosecute some deep-pocketed wrongdoers and then settle with them on the condition that they shower CJLF with megabucks.  Can't you just picture our opponents turning purple with outrage?  Well, they would actually be right for once.  But it's not going to happen because AG Sessions is a better, more ethical man than former AG Holder.

Aruna Viswanatha has this article in the WSJ.

This unhinged.  From the formerly respectable Above the Law:

My anti-Trump, #NeverTrump, #NotNormal bona fides are strong. I wanted Congressional Democrats to draw up impeachment charges before he even took office. I'm also NOT one of these "but Mike Pence would be worse" people. Pence is a problem, but one that exists within normal parameters of political problems. Trump is a cancer who needs to be irradiated from our body politic, and I truly don't give a damn how many "healthy" cells have to go down with him.

But if I could only take one scalp right now, the first one I'd take is Jeff Sessions. Not Trump, not Steve Bannon -- those muppets are here to put white males "back on top." The flaw in their plans is that white men are already on top, and they've been there for 400 years and counting in the New World. Trump and Bannon's false narrative that the white man is "losing" means that they don't really know what to do with all the power they've amassed. How do you win a game you've already won?

Jeff Sessions is not just here for the glory of white males, he's here for the oppression of others.

Yesterday the California Supreme Court heard oral argument in Briggs v. Brown, the case challenging Proposition 66, "the Death Penalty Reform and Savings Act of 2016."  The petitioner, Ron Briggs, who is challenging the initiative, was represented by Christina Von der Ahe Rayburn.  The named respondents are Governor Brown, Attorney General Xavier Becerra, and the Judicial Council, represented by DAG Jose Zelidon-Zepeda.  The Proposition 66 campaign committee, Californians to Mend, Not End, the Death Penalty, successfully moved to intervene in the case, and I represented the committee at the argument.  The hour was divided 30-20-10.

The argument was streamed live.  For those who didn't catch it, a link to the archived video should be posted within a week is now available on this page.

The petitioner's challenge is a scattershot attack, challenging many provisions of the initiative in an effort to bring the whole enactment down.  Press accounts of the argument focused on the issue that was discussed at length, the requirement that the direct appeal and initial habeas corpus petition be completed within 5 years.  In my view, the more important indication from the argument is which issues did not produce any questions for our side from the justices.

It is always dicey to predict from oral argument, but from what does not seem to be seriously at issue, it appears unlikely that the court will invalidate the initiative as a whole or any a substantial portion of it.

The reason the federal judicial branch is not politically accountable is that it is placed by the Constitution outside politics.  Every one of the federal district court judges I've encountered over 40 years in practice understands this.  No matter what their political beliefs, they have conducted themselves with the circumspection and restraint their power assumes, and requires.

The Wall Street Journal is carrying a story that Attorney General Sessions offered to resign .  It begins:

Attorney General Jeff Sessions offered to resign from his post in recent weeks, amid tension with President Donald Trump over his decision to recuse himself from the investigation into Russian meddling in the 2016 election, according to people familiar with the matter....

Mr. Trump's displeasure with Mr. Sessions appears to trace back to the attorney general's decision in March to remove himself from involvement in any Justice Department investigation related to the 2016 presidential race, following the disclosure that he had conversations with a Russian official while advising the Trump campaign. That contact appeared at odds with testimony he gave during his confirmation hearing.

The estimable Doug Berman at Sentencing Law and Policy has this entry about what is to him, and others who sought the mass sentencing reductions they call "sentencing reform," bad news.

Nicole Hong reports for the WSJ:

A federal appeals court Wednesday affirmed the conviction and life sentence of Ross Ulbricht, the mastermind behind Silk Road, an online drug bazaar that was once described by the government as the most sophisticated criminal marketplace on the internet.

In a 139-page ruling, a three-judge panel of the Second U.S. Circuit Court of Appeals in Manhattan upheld a lower court's decision to sentence Mr. Ulbricht, now 33 years old, to life in prison. A federal jury found him guilty in 2015 of seven criminal charges related to Silk Road, including conspiracies to sell drugs and launder money.

In Esquivel-Quintana v. Sessions, No. 16-54, the U.S. Supreme Court today waded once again into the messy question of what is an "aggravated felony" for the purpose of the federal law that says aliens who commit such felonies may be deported.

The question is messy for two reasons.  First, making legal consequences depend on judgments entered under the varying criminal laws of 50 states, the federal government, and the various other self-governing entities is an inherently messy problem.  Second, the law is poorly drafted and fixing it has not been a priority for Congress.

This case deals with the "age of consent" problem.

OK Appeals Court Upholds Death Sentence:   An Oklahoma appeals court has ruled that while the victim impact statements by the mother, father and stepmother of a murdered 25-year old woman and her two young children, recommending a death sentence for the murderer were improper, they amounted to harmless error and should not be the basis for overturning his sentence.  Ken Miller of the Associated Press reports that Shaun Bosse was convicted and sentenced to death for the brutal 2010 murders of his girlfriend, her 8-year-old son and 6-year old daughter.  "Overwhelming evidence" indicated that Bosse stabbed the woman and her son to death and locked the little girl alive in a closet before setting the house on fire.  Last October in Bosse v. Oklahoma the U.S. Supreme Court vacated and remanded the Oklahoma court's decision which held that the family members' recommendation of a death sentence were allowable, but invited the lower court's consideration that the statements were harmless error. 

More on Immigration & Terrorism:   The recent Manchester bombing highlighted the difficulty progressives have in admitting the connection between immigration policy and Muslim jihadist terrorists.  In her piece "The Left's Unilateral Suicide Pact" in today's City Journal, Heather MacDonald makes the case that the West's terrorism problem is most certainly an immigration problem.  The notion that suicide bomber Salman Abedi was a British citizen, and therefor would not have been stopped by a tightening of immigration policy is tunnel vision.  "...a second-generation Muslim immigrant with a zeal for suicide bombing is as much of an immigration issue as a first-generation immigrant with a terrorist bent. The fact that second-generation immigrants are not assimilating into Western culture makes immigration policy more, not less, of a pressing matter. It is absurd to suggest that Abedi picked up his terrorist leanings from reading William Shakespeare and William Wordsworth, rather than from the ideology of radical Islam that has been imported into Britain by mass immigration," writes MacDonald.        

Hit man and repeat murderer Thomas Arthur was finally executed in Alabama last night after dodging seven prior execution dates.   Kim Chandler has this story for AP.

Arthur filed a last-minute petition in the U.S. Supreme Court, and Justice Thomas (the assigned Circuit Justice for the Eleventh Circuit, including Alabama) granted a temporary stay while the Court considered it.  The Court lifted the stay and denied relief barely in time for the execution to be carried out before the warrant expired at midnight.

The petition had to do with the state's use of midazolam as the first drug of the protocol.  An additional wrinkle was the defendant's request for his lawyer to have a cell phone to make a call if things went badly.  Justice Sotomayor dissented alone.

The midazolam problem is entirely artificial and entirely unnecessary.  The federal government needs to bring down the barriers that are presently preventing the states from importing barbiturates from willing suppliers in Asia.  Is anyone in the government paying attention?

Update:  Kim Chandler and Jay Reeves have this follow-up story for AP on racing the clock.

The Association for Los Angeles Deputy Sheriffs has this post with the above title:

As the nation gets ready for Memorial Day, a day to remember the people who died while serving in the nation's armed forces, the past week signaled a welcome change in attitude towards law enforcement from the highest leadership in the nation. From the symbolic act of lighting the White House in blue during that week to an executive action directing a review of federal law that could lead to legislation making it a federal crime to attack law enforcement officers, there has been a sea of change in support for law enforcement.
 
Under the prior administration, law enforcement was often in the crosshairs of a rush to judgment. The pattern that started from the first days with the knee jerk condemnation of Cambridge Police Sergeant James Crowley for "acting stupidly," and continued non-stop with the invitation to the White House of a rapper who had a song dedicated to a fugitive cop killer, or using a police memorial service to defend anti-police protestors and lecture on criminal justice "reform" and gun control. 

Kent noted today's travel ban case, decided in an opinion written by Chief Judge Roger Gregory of the Fourth Circuit.