Results matching “first”

One of the many controversies in the flurry of activity over the Arkansas execution of Ledell Lee was whether midazolam is a sufficient anesthetic for this purpose.  There is surprisingly little in the media reports this morning about whether it worked as intended in this case.  This story in USA Today does not mention the actual result, but the web page does have video of a television report by Marine Glisovic of KATV, a media witness to the execution.  From her report, it appears that the drugs worked as intended.

In my view, the States and the Federal Government should work to restore the supply of thiopental or pentobarbital as quickly as possible and eliminate the need for these more debatable alternatives.  Until that channel is open, though, midazolam appears to be effective when used correctly.

As Bloomberg reports, Justice Neil Gorsuch's first vote in a prominent case is likely to be remembered for a long time:  "Gorsuch's First Big Supreme Court Vote Allows Arkansas Execution"

Justice Neil Gorsuch took his first major action on the U.S. Supreme Court by casting the deciding vote to let Arkansas begin executing a group of death-row inmates.

In a series of orders Thursday night, the high court cleared the state to execute Ledell Lee, one of eight convicted murderers that Arkansas has been trying to put to death before one of its lethal-injection drugs expires at the end of the month. Arkansas executed Lee minutes after the court rejected the last of his requests.

Gorsuch joined his four fellow Republican appointees -- Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy and Samuel Alito -- in the majority. They didn't explain their reasons.

The court's four liberal justices each voted to grant at least one of the requests to halt the executions. Justice Stephen Breyer said the state didn't have an adequate reason to rush.

Since the murder occurred 24 years ago, I'm not sure what "rush" Justice Breyer has in mind.

Feds Cracking Down on MS-13:  The U.S. Attorney General and the head of the Department of Homeland Security are promising to identify and aggressively prosecute members of the brutal Salvadorian gang MS-13.  Sadie Gurman of the Associated Press reports that there are at least 10,000 members of the gang operating in the U.S.  Recently several members were arrested for the machete and baseball bat murders of several high school students and four young men in New Jersey. The former head of the Justice Department's organized crime and gang section told reporters that he believes that stricter vetting at the border is necessary to stop MS-13 members from coming into the U.S., noting some are coached to tell immigration officials they're escaping violence in their home country in order to stay.  "My own view is there has to be some correlation between lax immigration policies and replenishment of the gangs in places where they already existed," he said.

Survivalist Convicted of Killing PA Cop:    Eric Frein, the survivalist who gunned down two Pennsylvania state troopers in 2014, was convicted of aggravated first-degree murder Wednesday.  CBS News reports that Frein targeted the two officers at random and intended to kill more in order to spark a revolution.  The shootings left one officer dead and another permanently disabled. Frein was caught after a 48-day manhunt in the rugged Pocono Mountains. Prosecutors will seek the death penalty for Frein at a sentencing hearing beginning today.  

Media Bias Against the Death Penalty:  Sacramento Bee editorialist Foon Rhee penned this column on the death penalty in California after communicating with CJLF Legal Director Kent Scheidegger yesterday.  Responding to his question on whether the state was ready for frequent executions, Kent wrote: "I don't see California scheduling a rush like Arkansas did or needing to.  Also, California has no intention of using midazolam.  The four alternative drugs in CDCR's new protocol are all barbiturates, and Texas has demonstrated that the single-drug method with barbiturates is the way to go -- dozens of executions performed without significant incident.  The federal court in our method-of-execution case has already ruled that California can go ahead with that method.  We might be looking at one or two a month until the executions that have just been waiting for the method challenges to resolve have been carried out.  After that, the rate would be determined by how fast they come out of the pipeline, which includes federal court review.  The majority of Californians favor these executions being carried out, and I do not see a rate like that having any adverse effect on public support."  After reading the column one might ask, why did he even ask for Kent's opinion? 

   

President Obama issued more sentence commutations than his twelve predecessors combined.  It might be the case, of course, that Mr. Obama is more far-sighted and humane than essentially everyone who sat in the Oval Office since WWII.  Or it might be that Obama's political constituency is more heavily invested in the notion that America is a brutal and racist country that needs a slap in the face to come to terms with its wretchedness.

Sentencing Law and Policy has an entry today about the Sessions era at the Justice Department.  It quotes The Hill magazine, which starts off:

Attorney General Jeff Sessions has brought sweeping change to the Department of Justice. In just two months as the nation's top cop, Sessions has moved quickly to overhaul the policies and priorities set by the Obama administration....

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, said it appears Sessions is resurrecting the tough on crime policies last seen during the George W. Bush administration.  "Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed," he said.  "I don't know if he is really going to be able to persuade the department to follow his lead on this."

It will come as no surprise to readers that I continue to have doubts about the "ethical standards" of the legal profession, and particularly criminal defense.  I've discussed this at length before.  For present purposes, it can be summarized by saying that resolute honesty is not what you can expect, and not what you're going to get, when professional "ethics" always put the client first and everything else  -- like truthfulness  --  somewhere toward the back of the lawyering bus.

In the controversies over sentencing law, few targets have drawn more ire from the soft-sentencing crowd than mandatory minimums.  There is even an entire organization dedicated to opposing them.  But do they have as big an impact as is widely believed?  David Bjerk has this article in the Journal of Legal Studies.  Here is the abstract:

The US federal mandatory minimum sentences are controversial not only because of the length of the mandatory sentences for even first-time offenders but also because eligibility quantities for crack cocaine crimes are small compared with those for other drug offenses. This paper shows that the impact of these mandatory minimums on sentencing is quite nuanced. A large fraction of mandatory-minimum-eligible offenders, particularly first timers, are able to avoid these mandatory minimums. Moreover, despite lower eligibility thresholds for crack-related offenses, a smaller fraction of those convicted of crack-related offenses are eligible for mandatory minimums relative to those convicted of other drug offenses. Furthermore, while being just eligible for a mandatory minimum increases sentence length on average, the impact is not uniform across drug offenses. Notably, sentences for crack offenders are generally sufficiently long such that, on average, sentences for crack offenders are not impacted by eligibility for a mandatory minimum.

Adam Liptak and Matt Flegenheimer report from the parallel universe of the New York Times on the Gorsuch confirmation vote:

Friday's vote was only possible after the Senate discarded longstanding rules meant to ensure mature deliberation and bipartisan cooperation in considering Supreme Court nominees.

Here in this universe, the requirement of a supermajority to terminate debate has never been a significant factor in Supreme Court confirmations.  Abe Fortas in 1968 did not have even majority support, so while the filibuster was used it was not necessary.  All the Supreme Court nominations since then have either gone to a vote or been withdrawn when it was clear that the nominee did not have even majority support.  The number of Supreme Court nominees in American history who have been denied confirmation because they had majority support but less than the supermajority required for cloture is precisely zero.

Parolee Car Jacking: A Bronx man has been arrested for multiple car jackings at gunpoint. Dray Clark of ABC News reports that 27-year-old Clarence Brooks is the prime suspect in a series of car jackings and shootings that took place on Tuesday. Brooks reportedly shot the driver of the first car he stole and fled the scene, doing the same in a second incident. Brooks will be charged with attempted criminally negligent homicide as well as multiple counts of strong-arm robbery. At the time of the shootings, Brooks was out on parole for recent robbery charges and was already facing charges from a March 21 arrest for being a felon in possession of a weapon and reckless endangerment.

Florida Prosecutor Seeking the Death Penalty: A Florida prosecutor says that he will be seeking the death penalty in the case of a man who is being charged with the murder of his pregnant girlfriend and a police officer. According to Fox News, State Attorney Brad King filed notice of intent Monday to seek the death penalty in the case of Markeith Loyd. Loyd was arrested after a week-long manhunt in January following the murder of his pregnant ex-girlfriend Sade Dixon and the slaying of an Orlando police officer Lt. Debra Clayton. The current Orlando State Attorney Aramis Ayala announced her unwillingness to seek capital punishment in this case or any other, so Gov. Rick Scott reassigned this and 21 other cases to a nearby circuit where King could deal with them.  According to this story in Politico, liberal hedge fund billionaire George Soros pumped nearly $1.4 million in to Ayala's campaign to elect her last November. 
 
Chicago Man Charged in Quadruple Homicide: Charges have been filed in connection with a quadruple homicide that took place in Chicago last Thursday. Jeremy Gorner of the Chicago Tribune reports that 19-year-old Maurice Harris has been charged with four counts of first degree murder according to Chicago police reports. This event accounts for four of the seven lives lost on Thursday. The police are still attempting to discern whether all of these deaths may have been connected, but it is believed that this quadruple homicide was in retaliation for a gangland shooting that had taken place the night before.

I noted here that a Democratic filibuster of Judge Neil Gorsuch would be stupid. Gorsuch is well qualified ("very well qualified," according to the distinctly non-conservative ABA); he has proven to be independent-minded (perhaps more so than I, strictly as an advocate, would prefer); and he is the least doctrinaire candidate that President Trump can be expected to nominate if, as seems probable, he has at least one more vacancy to fill.

There are many ways to misuse numbers to intentionally create a false impression in the mind of the reader.  Such deception is morally no different than lying, in my view, even if one carefully avoids saying anything false.  Tyler Cowen at Marginal Revolution has pointed out an exceptionally egregious example from the New York Times.

The headline of the Times article is "Amid 'Trump Effect' Fear, 40% of Colleges See Dip in Foreign Applicants."  The article states:

Nearly 40 percent of colleges are reporting overall declines in applications from international students, according to a survey of 250 college and universities, released this week by the American Association of Collegiate Registrars and Admissions Officers.

The actual finding of the survey is "39% of responding institutions reported a decline in international applications, 35% reported an increase, and 26% reported no change in applicant numbers."  That is a complete nothingburger, but cherry-picking the first number creates a very wrong impression.

Cowen is too generous in the title of the post:  "This one is a real blooper and I cannot let it pass by."  The word "blooper" implies an innocent mistake or accident.  This looks like intentional deception to me, and that appearance is reinforced by the fact that the misleading story and atrocious headline are still on the NYT website three days after this has been all over the internet.  Additional commentary comes from James Freeman at the WSJ and Eugene Volokh at the Volokh Conspiracy.

We see similar cherry-picking in arguments about criminal justice, but this is such a clear and obvious example of the deceptive tactic that I thought it worth noting here.

Today, the U.S. Supreme Court, 5-3, took a step toward forcing states to consider a broader group of people to be intellectually disabled (formerly called mentally retarded) and thus exempt from capital punishment regardless of how many or how heinous their crimes and regardless of how little they are over the fuzzy and shifting line between qualifying for the diagnosis and being just a little brighter.  CJLF wrote an amicus brief in this case supporting Texas.

It was no surprise in the case of Moore v. Texas that the high court would disapprove of the Texas Court of Criminal Appeals' home-brewed list of seven factors, the Briseno factors.  The court was unanimous on that point.  I was pleased to see that they did not endorse the myth that the factors are based on Steinbeck's Lennie.  Maybe footnote 3 of our brief had an effect.

The more critical question was whether private organizations with pro-defendant agendas (including the American Psychiatric Association and the Association on Intellectual and Developmental Disabilities) have the power to amend the Eighth Amendment so that states must follow their latest pronouncements, rather than their previous pronouncements, in deciding who qualifies for the no-matter-what exemption.  On this essential point the Court hands us a bowl of mush, and Chief Justice Roberts, in dissent, properly takes the majority to task for it.

A second problem with the Court's approach is the lack of guidance it offers to States seeking to enforce the holding of Atkins. Recognizing that we have, in the very recent past, held that "'the views of medical experts' do not 'dictate' a court's intellectual-disability determination," the Court assures us that it is not requiring adherence "to everything stated in the latest medical guide," ante, at 9- 10 (quoting Hall, 572 U. S., at ___ (slip op., at 19)); States have "some flexibility" but cannot "disregard" medical standards. Ante, at 10, 17. Neither the Court's articulation of this standard nor its application sheds any light on what it means.

The whole reason for having a Supreme Court in the first place is to establish a clear rule of law for all the other courts of the nation to follow.  The high court's precedents may not be right in the abstract, but they are "right" by operational definition.  "We are not final because we are infallible, but we are infallible because we are final," as Justice Jackson famously said. 

What should a state supreme court do now if the DSM-IV definition of "retardation" is written into its statute, but the defendant claims the DSM-5 definition is now required as a matter of federal constitutional law under Moore?  A court applying a statutory definition cannot simply "consider" the DSM-5.  A statute must be obeyed unless it is unconstitutional.  Is a statute codifying the DSM-IV standard, constitutional when it was enacted, now unconstitutional because a bunch of politicized psychiatrists, motivated to minimize the number of death sentences, pronounces the definition to have changed? 

Today, the Supreme Court said, "Maybe, maybe not.  You have to guess."  That is not why we have a Supreme Court.  This is an institutional failure.

The WSJ has this editorial on Senate Minority Leader Charles Schumer's decision to call for a filibuster of the confirmation of Judge Neil Gorsuch for the Supreme Court.

On what ground is the drastic action of a filibuster called for?  The hearings have turned up nothing that makes this nominee any more deserving of such a blockade than just about anyone a Republican president could nominate.  He is an originalist, of course, which is exactly what the people who vote for President Trump wanted.

Sen. Schumer says Judge Gorsuch was "groomed by the Federalist Society and has shown not one inch of difference between his views and theirs."  I don't know what he means by "groomed," and the "one inch" remark makes no sense at all.  There is such a variation of viewpoints within the Federalist Society that everyone in it has a wide space of viewpoint from lots of other people in it.

The worst problem is that the confirmation process is getting worse instead of better.  The political pendulum has swung back and forth since the end of World War II, but since the 1980s every time the Republicans have had the White House the Democrats have taken the polarization and partisanship of judicial confirmations to a new level. 

Officer Saved by Good Samaritans: A Michigan State trooper is grateful that their are still folks who want to help the police. According to Fox News Trooper Garry Guild attempted to make a traffic stop after sighting a suspicious individual riding a motorcycle. The rider attempted to flee and led the officer on a chase across the freeway. When the rider crashed into a ditch, Guild attempted to effect an arrest, but was attacked and placed in a chokehold by the rider's brother who had been following the chase. Jerry Burnham and his wife stopped to help and a second driver pulled up as well. Together, they overpowered the brothers and assisted Guild with getting the men in custody.  The brothers will be facing multiple charges including assault on a peace officer and resisting arrest.

Richmond Murderer Taken into Custody: An evasive suspect in a 2016 murder case in Richmond,CA, has been taken into custody. George Kelly of the East Bay Times reports that on March 10, 2016, police responded to a report of multiple gunshots and found William Malik Barnes, 15, suffering from multiple wounds to the chest.  Despite the efforts of paramedics, Barnes passed away at the scene. Following an investigation, two suspects were identified and charged with murder with gang enhancements.  The first suspect was quickly located and taken into custody, but the second suspect, Parrish Renee Rauls, 21, who was on probation, went into hiding. Rauls was finally arrested Wednesday morning in West Oakland.  California law considers most convicted felons released from state prison or county jail to be low risk offenders and places them on county probation rather than on the stricter supervision provided by state parole.

NY Calls for Megan's Law Update: Following the arrest of a re-arrest of a habitual sex-offender in Westchester, NY, lawmakers are calling for an update to Megan's Law to account for social media. As reported by CBS New York, the new concerns followed the arrest of David Ohnmacht, a sex-offender who had been released six years ago.  At the time of his release, Ohnmacht assured reporters that he had been reformed and that he no longer posed a threat. "After he got off his five years of supervised post-release probation and supervision, he immediately went back and began to engage in some of these actions," criminal justice professor Robert Castelli, who is familiar with the case, said. Ohnmacht is currently in custody and being charged with exchanging sexually explicit messages and pictures with a 14-year-old girl in North Carolina. He faces a minimum of 35 years in federal prison.

Wisconsin Shooter Claims Four: A shooter took the lives of two bankers, an attorney, and a police officer Wednesday. As reported by The Boston Herald, Police characterized the initial shooting at the Marathon Savings Bank in Rothschild on Wednesday, March 22, as a domestic dispute, but have provided no details about the suspect.  Authorities said late Wednesday that there is no remaining threat to the public. The officer who lost his life was Jason Weiland, 40, a detective and 15-year veteran of the Everest Metropolitan Police Department. He died while attempting to establish a perimeter around the shooter to minimize the threat to the community.

Arrest Made in CO Double Homicide: A suspect has been arrested in connection with the March 12 double homicide in Colorado Springs.  Ellie Mulder at The Gazette reports that Gustavo Marquez,19, was arrested in the murders of Derek Benjamin Greer, 15, and Natalie Partida, 16, who were found dead on the shoulder of Old Pueblo Road in a rural part of the county. Derek was a freshman and Natalie was a sophomore at Coronado High School.  Marquez faces charges of two counts each of first-degree murder, second-degree kidnapping and aggravated robbery and one count of child abuse resulting in death.  In late February, Marquez was arrested on suspicion of attempted second-degree kidnapping, attempted second-degree assault, third-degree assault and child abuse. Three days after that arrest he posted bond and was released.

Two Men Arrested for Shooting at Police:  Two men have been arrested in connection with a recent shooting at a Selma police officer. George McDonald at Alabama News reports that Demarious "Sleepy" Pullom and Calvin Boyd are currently behind bars on charges that include the attempted murder of a police officer. The men reportedly fired at the officer with automatic weapons when the officer attempted to stop their vehicle. The bail for these charges has been set at $5,000,000 each.

LA Mayor Expands Protection of Illegals:  Robert Jablon of the Associated Press reports that Los Angeles Mayor Eric Garcetti issued a directive Tuesday which bars any city employee from cooperating with the enforcement of federal civil immigration laws. Additionally, the directive forbids city workers from giving ICE agents special access to any city facility, including jails, unless required by law.  This directive responds to the Trump Administration's effort to deport illegal aliens who have committed felonies in the U.S.  LA Police Chief Charlie Beck said that calls to police by Hispanics to report crimes have gone down because they are afraid of deportation. But the Wall Street Journal (subscription)  reported a statement in response by ICE saying, '"Rather than transferring convicted criminal aliens to ICE custody as requested, agencies, including the Los Angeles Police Department, are routinely releasing these offenders back onto the street to potentially reoffend, and their victims are often other members of the immigrant community.''  Somehow, that statement did not make it into the AP story.

Here is some background on a case that Senator Durbin asked Judge Gorsuch about this morning.

The Sixth Amendment guarantees a criminal defendant "the assistance of counsel for his defence."  The Supreme Court has interpreted that right to include the effective assistance of counsel.  However, a judgment cannot be overturned on the ground of ineffective counsel unless, in addition to the lawyer being ineffective, the defendant makes a showing of resulting "prejudice."  The meaning of "prejudice" in various circumstances has been the subject of a lot of cases since the high court established that standard in 1984.

The purpose of the Sixth Amendment is to guarantee a fair trial.  If the defendant does indeed receive a fair trial, can he get the judgment overturned on the theory that a better lawyer would have gotten him a plea bargain?  That idea seems strange, given that there is no right to a plea bargain and that the defendant received the fair trial the Constitution entitles him to.  We took that position in an amicus brief in Lafler v. Cooper, 566 U.S. 156 (2012).  Four justices agreed with us, but five did not.

Judge Gorsuch took the same position as the Lafler dissenters three years earlier in the case of Williams v. Jones, 571 F.3d 1086 (2009).  Williams was a murderer, but there is no discussion of the facts in the opinion.  Judge Gorsuch's dissent says, "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial.  By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome."

I think he was right.  In any case, this opinion is well within the mainstream, as indicated by the 5-4 split in the Supreme Court.

In a post a few days ago, I noted what was advertised as a scholarly article arguing that "data-driven" analysis, assessed through the lens of law and economics, tells us that we can and should abolish prison.  I had my doubts, as did everyone who commented on the entry.

Drug Offender Arrested for Murder:  A habitual drug offender was arrested in Dayton, Ohio Monday for the murder of 20-year-old woman.  WDTN TV reports that 38-year-old Chuckie Lee was taken into custody for the shooting of Taylor Brandenburg early Sunday.  The victim was babysitting when she heard a noise at about 3:00 am, and went outside to investigate.  According to police, she was shot by Lee who had just left a nearby bar after fighting over money with a parent of one of the children Brandenburg was babysitting.  Lee had served time in prison for drug offenses and had additional convictions for drugs, assault and weapons violations. 

Sentencing Bills Criticized:  Ohio legislators are being chastised by the ACLU and defense attorneys for introducing bills to increase sentencing as reported by Jackie Borchardt at cleveland.com.  At a recent news conference an ACLU spokesperson complained that 17 bills to increase sentences have been introduced this year.  In recent years the Ohio legislature has moved away from "tough on crime" sentencing to reduce prison overcrowding and provide alternatives to incarceration focused on rehabilitation for non-violent offenders.  It should be noted that between 2014 and 2015 violent crime increased in Ohio, including a 7.7% spike in murder, a 8.6% increase in rape and a 7% rise in aggravated assault.

Crackdown on Gun Criminals Supported in Chicago:  The Superintendent of the Chicago Police Department joined the families of murder victims to testify in support of legislation that would increase prison sentences for criminals who use guns. Jessica D'Onofrio, John Garcia and Evelyn Holmes of ABC7 report  that the bill would increase the sentences for repeat gun offenders. Right now judges can sentence repeat offenders to a range of three to 14 years for unlawful possession of a weapon, The proposed law would increase the minimum to seven years.  A mother who lost her her 20-year-old daughter and unborn granddaughter in a shooting last year said she believes that the person who killed her family was a repeat offender.  "I don't think that's the first killing he did, and it might not be the last. Until these laws are enforced there are going to be killings in Chicago," Weaver said.

This is off topic but too good to pass up.

Since 2011, California has gone further than other states in the rapid dismantling of its tough-on-crime policies, so we have been keeping track of California crime rates as compared with the nation as a whole.  Here are graphs showing 2011 to 2015 with data from the FBI's Uniform Crime Reports.*

The "realignment" bill, AB109, took effect in October 2011, and one would not expect much effect in the first couple of months.  So we can consider 2011 to be a base year.  California shows a jump in violent crime the following year while the rate for the country as a whole was essentially flat.  California had a sharp jump in property crime for 2012, while the national rate was declining.

Kristine Phillips reports for the WaPo:

In 1991, Michigan man Gregory Green stabbed his wife in the face and chest, killing her and their unborn child. Then, he called 911 and waited for police to come.

After serving about 16 years in prison for murder, Green was released on parole with the support of family and friends, including a pastor who lobbied on his behalf and whose daughter Green would marry.

"Gregory and I were friends before his mishap and he was incarcerated," Fred Harris, a pastor in Detroit, wrote to the Michigan parole board in August 2005. "He was a member of our church ... I feel he has paid for his unfortunate lack of self control and the damage he has caused as much as possible and is sorry."

"If he was to be released he would be welcomed as a part of our church community and whatever we could do to help him adjust, we would," Harris wrote again a year later.

Green was released in 2008 and later married Faith Harris. They had two daughters, Koi, 5, and Kaliegh, 4.

A heart-warming story from the Land of the Second Chance, right?  Read on.

Illegal Charged in Fatal Car Crash:  An illegal alien who had been deported five times, has been charged with causing a February 19 accident that killed a 42-year-old Southern California woman.  Gregory Wilcox of the Los Angeles Daily News reports that Esturado Alvarado has been charged with more than 20 felonies and misdemeanors since 1990 and, according to ICE, had been deported to Mexico five times, most recently in 2011.  The Los Angeles Police Department said that Alvarado was drunk and speeding down Sepulveda Boulevard in an SUV when he T boned Sandra Duran's Toyota Camery, killing her and injuring her son and his girlfriend.  At the time of the accident, Alvarado was fleeing from another accident he had caused.  Los Angeles is a among the most illegal immigrant-friendly cities in the U.S.  

Sex Offender Charged in 1977 Murder:  DNA has linked a Florida man, who served time in prison for sex crimes, with the 1977 rape and murder of a 16-year-old Utah girl.  The Gebhardt Daily reports that Patrick McCabe was extradited last weekend from Florida to Utah to face charges of first degree murder and aggravated sexual assault after his DNA was found on the halter top used to gag 16-year-old Sharon Schollmeyer during her rape and murder in December of 1977.  McCabe, who was the building manager for the victim's apartment at the time, has admitted that he raped and killed the girl after using his pass key to enter her apartment while she was asleep.  Her nude body was later found in a half full bathtub by her mother.  A DNA sample was taken from McCabe after he was convicted and sentenced to prison in 1999 for the sexual assault of a minor.   

The State of Texas seized $201,100 that Lisa Leonard said was from the sale of her home and the State said was drug money.  The trial court found the latter by the preponderance of the evidence, and the State kept the money.

Is preponderance good enough?  Forfeiture exists in the twilight zone between civil and criminal law, and an argument can be made that a higher burden is required.  Justice Thomas discusses the question in his statement today in Leonard v. Texas, No. 16-122.  So does Justice Thomas think the Court should take this case up?  No:

Unfortunately, petitioner raises her due process arguments for the first time in this Court.  As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.

So anyone defending a forfeiture action in a state with a preponderance standard needs to make the due process argument all the way up the ladder.

I have not commented on the allegations that Attorney General Sessions had illicit contacts with the Russians, and lied about it during his confirmation hearings, because I have been around this town long enough (more than 40 years) to spot a politically-inspired concoction when I see one.  The idea that Sessions is or was a Russian collaborator  --  in essence, Benedict Arnold slyly impersonating a wahoo Alabama conservative all these years  --  is something you'd expect to read in the Onion, not the NYT (although it's getting harder to tell the difference). Same deal with the idea that the plain-spoken former state prosecutor has learned the smooth talking schtick of the defense bar.

It predictably turns out (and it didn't take that long) that the whole thing was  --  how shall I say this?  --  fake news. Vanity Fair, not known as a mouthpiece of the Republican Party, looks in detail at the allegations against Sessions and concludes:

As things clear up, we may be seeing a collapsing soufflé. And as with so many soufflés served up by the press in recent months, it emerged from the oven to oohs and ahs--this time, with me among the oohers and ahers--only to sink, first slowly, then quickly. Next, it will go into the trash, and we'll bake another. It's tiring. It's boring. And above all it's supremely damaging to the press. If you want people to believe you, then develop a reputation for believability.

The New Check on Executive Power:    Syndicated columnist Charles Krauthammer has this piece on the emergence of state attorneys general as a force to curb the excesses of the executive branch of the federal government.  While the founders intended for Congress to serve as the check on President, he notes that Congress has allowed itself to become an increasingly subordinate branch, acquiescing its authority in order to avoid political consequences.  "Into that vacuum stepped the states. Florida and 12 others filed suit against Obamacare the day it was signed. They were later joined by 13 more, making their challenge the first in which a majority of states banded together to try to stop anything. "  The most successful effort was to block President Obama's executive order which would have legalized 4 million immigrants.  Democrats have noticed, and are  utilizing blue state AGs to block executive orders by President Trump, such as the immigration ban.    

Washington Three-Time Murderer Will Not Face DP: In Vancouver, Washington, a man being prosecuted for three counts of 1st degree murder as well as an attempt to escape from jail will not be facing capital punishment. The Washington Times reports that Brent Luyster, will plead not guilty Monday to three counts of aggravated murder, attempted murder, unlawful possession of a firearm, possession of a weapon by a jail inmate, malicious mischief and attempted escape. While multiple murder is a death penalty offense in Washington prosecutors have stated that they will not be seeking it for Luyster and instead will seek life without the possibility of parole.

MS-13 Gang Members Face Murder Charges: Two members of the notorious El Salvadorian gang MS-13 appeared in a Houston court Wednesday to face the charges of murder and kidnapping that were being brought against them. Daniela Sternitzky-Di Napoli and Brian Rogers at Chron report "Diego Hernandez-Rivera, 18, and leader of the group Miguel Alvarez-Flores, 22, also known as "Diabolico," were arrested Monday on charges of aggravated kidnapping in one case and murder in a second in the shooting death of an unidentified woman's body found earlier this month on a Houston road." As they were being tried, the two suspects were observed smiling and waving to the camera. Both of the suspects are in the country illegally, a trait that is common among members of MS-13, one of the most deadly street gangs in the United States.

President Trump's speech yesterday confirmed that the "law-and-order candidate" will indeed be the law-and-order President.  His remarks on that topic were necessarily general, given the breadth of his address and the number of topics covered.

Earlier the same day, Attorney General Sessions spoke to the National Association of Attorneys General.  His remarks as prepared for delivery, dated the day before, are posted on the DoJ website.  Here are some excerpts.

First, let's put things in context.  Overall, crime rates in the United States remain near historic lows.  Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak in the early 1990s.  Many neighborhoods that were once in the grip of gangs and drugs and violence are now vibrant places, where kids can play in the park and parents can enjoy a walk after sunset without fear.  There is no doubt that in the past four decades  -  under leadership from both political parties, and thanks above all to the work of prosecutors and good police using science and professional training  -  we have won great victories against crime in America.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we've seen clear warning signs  -  like the first gusts of wind before a summer storm  -  that this progress is now at risk. 

The latest FBI official data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent  - the largest one-year increase since 1991.  The murder rate increased 11 percent  -  the largest increase since 1968.  The rape rate increased by over 4 percent, and the aggravated assault rate rose by nearly 4 percent.

If this was a one-year spike, we might not worry too much.  But the preliminary data for the first half of 2016 confirmed these trends.  The number of violent crimes in the first half of last year was more than 5 percent higher than the same period in 2015.  The number of murders was also up 5 percent over the same period the year before, and aggravated assaults rose as well.

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Mississippi Shooter in Custody: A Mississippi man accused of three shootings and two murders was arrested Wednesday, bringing the multi-state manhunt to a successful close. Fox News reports that Alex Deaton, 28, has been apprehended on suspicion of his involvement in multiple shootings and carjacking, resulting in two fatalities. Deaton was captured in Kansas in the process of jumping state lines in an attempt to stay ahead of the police pursuing him.  He is suspected of February 22 strangling death of his girlfriend, Heather Robinson, 30, in Rankin County, the February 23 shooting death of Brenda Pinter in a church in Neshoba County, and the February 24 shooting of a jogger in Rankin County.

Recent Parolee Faces Robbery Charges: A man released on parole last month has been arrested on suspicion of his involvement in a robbery. According  to  Katie Sobko at North Jersey, "Jerome Farris, 37, faces charges of attempted robbery, resisting arrest and criminal possession of a controlled substance. He reportedly has 32 prior arrests and was released in February on parole for robbery. Farris was reported to have accosted a woman at an ATM, trying to take her wallet and debit card.

Eight Executions Set for April: The Governor of Arkansas signed an order Monday to schedule double executions on four separate days in the upcoming month of April. Steve Barnes at Reuters reports that Republican Governor Asa Hutchinson announced that executions will take place in pairs from April 17 to 27.  "This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims' families who have lived with the court appeals and uncertainty for a very long time," he said in a statement. Unfortunately the state is currently lacking potassium chloride, one of the three drugs preferred to the state's lethal injection process.  If the state acquires the drug, these will be the first executions in Arkansas since 2005.

There are legislative happenings in Alabama, Florida, Mississippi, and Iowa on the death penalty.

In Florida, it seems that they are barrelling down the road to a single-juror veto law, and nobody is even raising the alternative of a true unanimity law.  Why the state's prosecutors are not up in arms about this just baffles me.

Seriously, folks, do you really want a system where a hard-core opponent of the death penalty can lie on Witherspoon-Witt voir dire to get on the jury, cross his arms in deliberation and just say "no, no, no, no matter what," and impose his will over the judgment of the other 11 jurors?  That is what you will get if this train isn't stopped. 

Require unanimity one way or the other or at least a majority for a life verdict, and otherwise declare a mistrial and retry the penalty phase with a new jury.

The Alabama Senate voted 30-1 to end judicial overrides of jury penalty verdicts in capital cases.  Brian Lyman has this story for the Montgomery Advertiser.  SB16 provides that it is not retroactive.  It deletes the word "advisory" before "verdict" and requires the judge to sentence according to the verdict

Existing law says that a jury can return a death verdict by a vote of 10 jurors or a life imprisonment verdict by a majority vote.  If neither of those thresholds is met (i.e., between 6-6 and 9-3), "the trial court may declare a mistrial of the sentence hearing."  That's fine except for the "may."  Could a judge allow a minority of jurors to prevail over the majority by declining to declare a mistrial?  Perhaps readers familiar with how things actually work in Alabama can enlighten us.

9 Refugees Arrested In Austria Gang-Rape:  Nine asylum-seeking refugees have been arrested and charged in connection with the New-Years gang-rape of a 28-year-old teacher.  Jon Lockett at The Sun reports that the victim was visiting Vienna with a friend. They were indulging in a night of heavy drinking during which, four Arab-speaking men escorted her from a bar without her friend's knowledge. She was taken to a nearby apartment where five more men were waiting to assault her. All but one of the men denied the allegations of rape in spite of DNA evidence of six of the men recovered in and on the victim. They face up to 15 years each in prison.

It's PC to Let Them Riot: Heather Mac Donald at the City Journal has this piece on police complacency in the face of rioting and violence in the name of political correctness.  The recent rioting at UC Berkley to stop a scheduled lecture by right-wing provocateur Milo Yiannopolous, provided a clear example of police standing down to avoid confrontation, while masked rioters set fires, destroyed property, and attacked opponents. 

2 DC Officers Injured in Shooting: Two D.C. Police officers suffered gunshot injuries Thursday night during a shootout with an unnamed suspect.  According to Ellison Barber at USA Today, both officers sustained non life-threatening injuries during the shootout with the suspect, just 2 miles from the Nation's Capital. The suspect was killed in the exchange. The two officers are receiving treatment for their injuries. It is unclear who fired first, although the two officers are reportedly a part of a crime-suppression unit operating in D.C.

Refugee Murder Suspect Poorly Vetted:  An Afghan asylum-seeking immigrant is being tried as an adult for the rape and murder of a young German coed following the discovery that he had been lying about his age. Emily Chan at Daily Mail reports that "Hussein Khavari was arrested for the rape and murder of 19-year-old medical student Maria Ladenburger in Freiburg, south-west Germany" last December. The European Union's inability (or unwillingness) to thoroughly vet refugees admitted into Western Europe allowed Khavari to claim that he was 17 years old at the time of the murder, ensuring that he would be tried as a juvenile, facing a maximum sentence of 10 years. Fortunately, he didn't get away with this. A subsequent investigation revealed that Khavari was at least 22 years of age at the time of the rape and murder, and will now be tried as an adult for the crime.  The investigation also revealed that Khavari was sentenced to ten years in jail in Greece after he threw a 20-year-old coed off a cliff on the island of Corfu in May 2013.  Unfortunately he was placed in a youth detention center and released at least 7 years early.  Tough luck for the German girl.

Baby Justice never stood a chance.  He was born with methamphetamine in his system and found frozen to death under some bushes along a slough bank 19-days later at the hands of his high, meth-addicted mother.

Baby Justice is dead.  His mother is in jail for second-degree murder and his father, Frank Rees, who has a history of meth related arrests and supposedly thought that the baby's mother "was clean", was arrested yesterday for his role in Baby Justice's death.  The baby was found dead almost exactly two years ago.  His mother was convicted by a jury almost six months ago.  Evidence at the mother's trial established that the baby's father was administering meth to the mother both days before and after his birth.  This evidence is what led to Rees' arrest.  Rees, 31, is now facing felony charges of involuntary manslaughter, child endangerment, and administering methamphetamine.  Yolo County District Attorney Jeff Reisig stated that "Under California law, when another individual's unlawful or reckless conduct in the face of known risks is a substantial factor that contributes to the death of another person, criminal liability may be established."

In a jailhouse interview yesterday, Rees said "I can almost guarantee you this is going to be thrown out, . . .  The DA should come here and give me an apology. I lost my son. I think I've been through enough."  Really?  Rees may not have physically taken the baby out to the slough that night, but he's been described as a "as a womanizing, meth-addicted, paranoid ex-convict who wielded intense control over [the baby's mother] first as her drug connection, then as the father of her child" and had dosed the baby's mother "with veterinary-size syringes of methamphetamine mixed with acetone in the days before their son's death."  Who should be apologizing to who here?

Rees' new girlfriend, who herself was arrested last month for possession of meth, just gave birth to Rees' 6th child.  This new baby girl was born two months premature and it is probably safe to say that meth is in her system as well.

Baby Justice stood no chance and now there is another baby struggling to survive.  Her mother most likely uses meth and her father is in jail facing manslaughter charges for his role in the death of the half-brother she will never meet.  The sad cycle continues.