Results matching “first”

News Scan

Revenge Attacks Feared After Biker Gang Shootout:  Following a violent brawl between five rival biker gangs at a restaurant in Waco, Texas that left nine dead, 18 wounded and nearly 200 arrested, police are concerned about retaliatory attacks.  Lisa Maria Garza of Reuters reports that the Twin Peaks Sports Bar and Grill erupted in violence on Sunday afternoon, with rival gang members attacking each other with guns, knives, brass knuckles, clubs and motorcycle chains.  The restaurant, which has been a meeting place for biker gangs, has been closed for at least seven days.  No bystanders or police were injured in the incident.

Immigration Court Backlog Reaches All-Time High:  Last summer's surge of illegal immigrants from Central America has culminated to a record high backlog for federal immigration courts at more than 445,000 pending cases.  Molly Hennessy-Fiske of the Washington Post reports that the backlog has increased by 30 percent since the last fiscal year began, overwhelming immigration courts.  The backlog of juvenile cases alone is 68 percent larger than it was before the flood of immigrants occurred last June.

Change US Park Police Mass Arrest Policies:  A proposed $2.2 million settlement of a class-action lawsuit involving the 2002 arrests of hundreds of protestors would change the way U.S. Park Police handle mass protests.  The AP reports that 400 protestors were arrested at the 2002 International Monetary Fund and World Bank meetings in Washington D.C. by the U.S. Park Police, who are responsible for areas in front of the White House and other key security sites.  A group representing protesters called the settlement "a victory for First Amendment Rights."  The changes outlined in the settlement would prevent police from encircling protestors, require particularized probable cause for any protestor arrest, and fair notice before an arrest.

Is Fatal Asthma Attack Murder?:  A Boston jury will decide if Michael Stallings is responsible for the 2012 death of Kelvin Rowell, who died of an asthma attack after fleeing from gunshots fired by Stallings.  Fox News reports that Rowell's asthma attack was so severe that it rendered him comatose for six weeks before he died.  In order to convict Stallings of murder, the jury will have to find that he "acted with premeditation or with extreme atrocity or cruelty."

Felons May Sell Or Transfer Possession of Guns:  A unanimous ruling by the U.S. Supreme Court on Monday held that a convicted felon may request a court to transfer his guns to a third party instead of surrendering them to the government.  Stephanie Condon of CBS News reports that Justice Elena Kagan wrote in the opinion holding that a court is allowed to transfer a felon's weapons to a third party, "as long as the court is satisfied that the recipient will not let the felon use the weapons or direct their use."  The decision in Henderson v. United States could have far-reaching impact on Americans  convicted of felonies.

Abolitionism Runs Out of Steam

What is left of the moral force of abolitionism  --  the idea that there is never, ever a case where the jury should be able to impose capital punishment  --  in light of the Boston Marathon bombing verdict?

Nothing, as far as I can see.

The major objections to the death penalty were never in the case to begin with: Guilt was certain, race was absent, mental competence not even in question.  It had honest and professional prosecutors, top-flight defense counsel, a seasoned and balanced judge, and ample resources for all.

So what's left of the moral case for abolitionism?

Three arguments I'm able to think of.  None of them works.

News Scan

Jury Condemns Boston Bomber to Death:  The jury in the trial against Boston Bomber Dzhokhar Tsaenaev has handed down a sentence of death for his role in the 2013 bombings at the Boston Marathon, which killed three and wounded hundreds.  Tsarnaev also killed a police officer days after the attacks.  The AP reports that the jury deliberated for 14 hours over a three-day period before reaching a unanimous verdict.  Tsarnaev reportedly showed no emotion while his fate was read aloud in court.

Amtrak Engineer's Phone Records To Be Searched:  Investigators probing Tuesday's fatal Amtrak derailment have obtained a search warrant for cell phone records of the train's engineer, to determine whether he was distracted in the moments that led to the crash that killed eight and wounded dozens more in Philadelphia.  Fox News reports that there are conflicting stories regarding 32-year-old Brandon Bostian's cooperation with investigators.  The engineer's attorney claims that Bostian spoke with police for five hours before he arrived.  Investigators say that they barely spoke with him.  Bostian may face charges as early as Wednesday if Philadelphia's DA's office has sufficient evidence.

Immigration Language Stripped From Defense Bill:  House conservatives voted down a provision outlined in Congress' annual defense policy bill which aimed to help young illegal immigrants enlist in the military.  The AP reports that the issue sparked a heated partisan debate, with Democrats denouncing Republicans for discrimination.  Several Republicans argued that the provision should have never been included in the defense bill in the first place.

Overcrowded Jail Leaves Criminals On The Streets:  Overcrowding in Utah's largest county jail means that fewer criminals are being held and those that are spend very little time inside.  Scott McKane of Fox 13 Now reports that the Salt Lake City Sheriff predicts that the situation is about to get worse, noting that by summer, those who have committed certain offenses will not be booked into his jail at all.  The mayor believes he has a solution and wants to implement a program called Pay for Success, which aims to divert individuals with drug and mental health issues away from jail and into treatment.  Under this plan the provider of treatment is compensated only when the offender has completed the program.

Discretionary Releases Not Tracked By DHS:  The Homeland Security Department's inspector general has released a new report which says that the Department of Homeland Security failed to keep track of the number of times it used prosecutorial discretion to justify releasing illegal immigrants from custody.  Taylor Tyler of HNGN reports that the department's failure to collect and analyze this data means that government funds were likely used inefficiently and national security was compromised.  The report found that at least one agency in DHS, the U.S. Immigration and Customs Enforcement, did collect data regarding prosecutorial discretion, revealing that in FY 2014, the agency recorded 12,757 instances in which ICE officers exercised discretion to release illegal immigrants.

Parolee Found Guilty Murder:  An Atlanta parolee, who strangled his roommate and stole his vehicle to flee to Florida to avoid returning to prison on a parole violation, has been found guilty of murder.  Tyler Estep of the Atlanta Journal-Constitution reports that Tony Mitchell, a four-time convicted felon on parole for robbery, beat and strangled Randy Lewis, whose body was discovered four days later by other roommates.  Mitchell was apprehended 10 days after the crime when he was caught shoplifting at a store in Florida.

No Remorse, No Escape

Once the prosecution pulled back the curtain on the hideousness of the Boston Marathon bombing, I thought Tsarnaev was probably headed for a death sentence. I wrote three weeks ago that his best chance to avoid it lay in taking a big risk  -- get on the stand and say you're sorry:

At first, I agreed with the conventional wisdom that defense counsel would not call their client to the stand.  Now, I have my doubts.  The government's evidence of the savagery and cruelty of this crime in my view makes the death penalty likely unless the defense can move the ball.

I think their best shot to avoid lethal injection is to call Tsarnaev and have him show remorse.  If he does so, and makes a convincing showing, I think he lives. It would help if he broke down in tears of grief in a way that struck the jury as sincere, and not a coached performance.

The defense apparently decided against it; one way or the other, Tsarnaev sat in silence the entire trial, looking (I glean from press reports) mostly indifferent. The best it could do was call a transparent abolitionist zealot, Sister Helen Prejean, to testify that Tsarnaev was, so she claimed, remorseful.

She was effectively impeached on cross-examination, making today's sentence less than a surprise.  There's not much to be happy about in this horrible case, but one thing at least to be satisfied about is that the jury wasn't taken in by the Sister Prejean Show.

Judy Clarke, Not Quite Invincible

I have met Judy Clarke, Tsarnaev's lead counsel, only once.  I thought she was mild-mannered and pleasant.  It was not in a setting where I could assess her abilities as an attorney.

Ms. Clarke has a strong reputation for avoiding the death penalty for the worst of clients; she has done so more than once.  Her reputation is such that, at the time she came into the Boston Marathon bombing case, there was at least one prediction that the prosecution would get scared off and cave in:

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea."  The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole. 

I have often said that what counts in litigation is less the lawyers, whether good or bad, than the evidence.  It is no fault of Ms. Clarke that, even in a jurisdiction notably hostile to the death penalty, her client received it after all.  The hateful, calculated and grotesque manner of these murders was too much to overcome.

What Tsarnaev needed was not a lawyer but a magician.  
I noted here that Sen. Lindsey Graham has proposed establishing a National Criminal Justice Commission.  I'm skeptical of the idea, because such commissions generally either do nothing or make mischief.  When it's the latter, it's because their membership turns out to be selected "experts"  --  experts, that is, as defined by inside-the-Beltway think tanks, academia and politicians with this or that constituency to please.  

Does anyone think that such a Commission would not have a heavy dose  -- maybe 100%  -- of Obama appointees?  Will a Commission consisting of Eric Holder clones (or Holder himself, for all I know) make sound recommendations? Or ones that will compound the problems we already have?

Still, the idea of a Commission is tempting for people who teach law to contemplate, so I came up with some agenda items.  I confess I have my doubts that they are what the Administration has in mind.   
 
 

Don Quixote Found Mentally Competent

The Supreme Court of La Mancha, in a decision announced by Chief Justice Ruth Bader Ginsburg, found that Don Quixote, alias Alonso Quixana, does not require a guardian. Kali Borkowski reports for SCOTUSblog on the proceedings at the Shakespeare Theatre Company.

News Scan

LA County Jail-ICE Partnership To End:  The Los Angeles Board of Supervisors voted this week to end a program that allowed ICE agents to work inside county jails in order to more efficiently conduct their duties, responding to immigrant advocates who say the partnership was "eroding immigrants' trust in police."  Aaron Morrison of the International Business Times reports that groups who oppose the decision are concerned with how it could endanger the community by making it much more likely for illegal immigrants to avoid rightful deportation.  Those who voiced the strongest opposition were the family members of victims murdered by illegal immigrants.

Gang Rivalry Sparks Increase In Gun Crimes:  Police officers in Rockford, Illinois are combating an increase in gun violence brought on by an intense gang rivalry in the city.  Jeff Kilkey of the Rockford Register Star reports that through April of this year, there were a total of 161 incidents involving gunfire, a 92% from last year.  Police also noted that they seized 75 illegal guns through April, a 36% increase compared to 2014, and have responded to 11% more robberies.

Rapper Should Have Been in Prison:  A gang war in Denver that resulted in the deaths of a dozen gang members from four street gangs was triggered by the murder of a rapper, who had two warrants out for his arrest in two different states.  Kirk Mitchell of the Denver Post reports that Kevie "KL Tha General" Durham, who was fatally shot at a nightclub last November, was on the streets due to a "series of failures by authorities" in both North Carolina and Colorado.  Durham was not transferred to North Carolina where he was facing a robbery charge, and after escaping a halfway house in Colorado, the state's Fugitive Apprehension Unit failed to track him down.

Felon Avoids Earlier Murder Conviction Charged In New Killing:  A convicted felon from Birmingham, Alabama, who avoided a murder conviction almost a decade ago, has been charged with murder again.  Carol Robinson of AL reports that Justin Hendrix is charged in the shooting death last Saturday of Vanderick Lavorne Thomas, during an altercation over drugs and gambling.  In 2007, murder charges against Hendrix were dismissed, but he was convicted of attempted murder charges and cocaine possession, but was released early.

Teacher Fired For Assigning Students To Write Cop Killer:  A third grade teacher from New Jersey has been fired for  instructing her students to write "get well" letters to a convicted cop killer serving a life sentence in Pennsylvania.  Fox News reports that Marilyn Zuniga, a first-year teacher, defends the assignment that students write "get well" letters to diabetes-stricken Mumia Abu-Jamal, who killed a Philadelphia police officer during a routine traffic stop in 1981.  While some of her supporters believe the assignment taught the students compassion for others, opponents felt more deserving victims than a murderer should have been selected. 

A National Criminal Justice Commission?

Senator Lindsey Graham of South Carolina has proposed establishing a National Criminal Justice Commission.

I have doubts about such commissions.  I can't recall one that actually did any good for all the money that was spent on it.  What seems to happen is one of two things: Either it makes decently sensible suggestions that go nowhere (like the Bowles-Simpson Commission); or it makes poor suggestions some of which might get adopted (see, e.g., the Sentencing Commission's parade of defendant-friendly proposals over the last few years).

I have no idea whether there's much chance Sen. Graham's Commission will get created, but I have a couple of ideas, with more doubtless to come, about how such a Commission might approach its job if it ever comes into existence.

News Scan

Triple Murderer Executed In Texas:  Derrick Charles, convicted of murdering his 15-year-old girlfriend, her mother and her grandfather 13 years ago, became the seventh inmate executed in Texas this year after being put to death by lethal injection on Tuesday night.  The AP reports that Charles' attorneys argued that he was mentally incompetent and sought to overturn his death sentence, but the claim was rejected by the U.S. Supreme Court.  The Texas Department of Criminal Justice has two more executions scheduled next month, but only has enough pentobarbital for one of them.

Protests Begin in Wisconsin After Shooting Decision:  Hours after a prosecutor announced that a white officer would not be charged in the March 6 shooting death of an unarmed biracial man, protests have begun in Madison which some fear will become violent as in Ferguson and Baltimore.  Todd Richmond of the AP reports that Dane County's district attorney Ismael Ozanne, a biracial man who identifies as black, said that he "made his decision based on the facts."  On March 6, 19-year-old Tony Robinson was tripping on mushrooms and acted out violently towards several individuals, prompting police to be called.  When Officer Matt Kenny responded to the call, Robinson punched him in the head.  Fearing Robinson would take his gun  Kenny fired seven shots, killing him.

Body Cameras Raise Privacy Concerns:  Police departments using body cameras to monitor officer behavior are now facing privacy concerns regarding when to keep their cameras rolling.  Maggie Ybarra of the Washington Times reports that both leaving the camera on full time or allowing an officer to shut it off puts an officer at risk of losing his job or violating someone's  privacy rights.  In spite of this, Attorney General Loretta Lynch has announced her plan to implement a $20 million Body-Worn Camera Pilot Partnership Program to help provide law enforcement agencies with the cameras.

CA Judge Allows Serial Rapist To Remain Free:  A California community is outraged after a judge decided not to send a serial rapist back to a psychiatric hospital.  Tami Abdollah and Olga R Rodriguez of the AP report that Christopher Hubbart, or the "pillowcase rapist," was deemed by Judge Richard Loftus as posing no danger to the safety and well-being of others. But residents of the community worry he will rape again.  Hubbart, who was first convicted of rape in 1972, admitted to raping approximately 40 women through 1982, muffling their screams with a pillowcase.

Suspect Identified In CT Serial Killer Probe:  William Devin Howell, behind bars for murdering a woman, has been identified by law enforcement as the suspect responsible for the murders of seven women, whose bodies were discovered in the woods behind a Connecticut strip mall.  Dave Collins of the AP reports that Howell was sentenced in 2003 to 15 years for manslaughter in the killing of a 33-year-old woman.  Howell has yet to be charged in murders of the seven women.

Fool's Gold for Tsarnaev

The defense succeeded in calling Sister Helen Prejean* to the stand as the last witness for Dzhokhar Tsarnaev.  Kent posted about this earlier, wondering what Prejean might have to say that would count as relevant evidence.  In fact, she did have relevant evidence; she testified that she has met with Tsarnaev five times, and that he is remorseful.

Evidence of remorse is, in my view, by far the most likely thing to save Tsarnaev from the death penalty, if anything will.  But I tend to think that defense counsel's success in getting Prejean on the stand will prove the old adage to beware of what you wish for. 

Diversity(?) on the Supreme Court

Prof. David Upham of the University of Dallas notes that there would seem to be a lack of geographic diversity in the background of the members of the Supreme Court:

All studied at Harvard or Yale Law School; almost all spent their pre-Court careers in the Boston-Washington axis of power, working for either the federal government or very prestigious law schools. Four Justices were raised in NYC (Ginsburg, Scalia, Kagan, Sotomayor), one in New Jersey (Alito), two in the Sacrament-San Francisco area (Breyer and Kennedy) . Only one grew up anywhere in the middle (Roberts--Indiana), and only one grew up in the South (Thomas--rural Georgia). Six of the nine (67%) justices, then, come from areas that today have combined, about 3% of the nation's population.  

I should note that Justices Rehnquist and O'Connor went to Stanford Law School (where they finished first and third, respectively, in the Class of 1952).  But, having gone there, I can tell you that Stanford is no more ideologically diverse than either of the others.


A group called the Delaware Repeal Project has a briefing book with the usual collection of spin and half-truths.  Copied below are their "bullet points" in the front of the book, not a single one of which makes an argument of any substance, along with my comments.

• Per capita, Delaware ranks 3rd in executions among states behind Oklahoma and Texas.
Unlike many other states, such as California and Pennsylvania, Delaware has succeeded in carrying out a large percentage of well-deserved death sentences for horrible crimes.  For example, there was David Laurie, who burned down a house to kill his wife and also burned to death three children.  Carrying out sentences in cases such as this when other states are unable to do so is an accomplishment for Delaware to be proud of, not a reason to let such killers off with life in the future.

In states where the death penalty has been obstructed, repeal proponents cite the obstruction as a reason to repeal.  In Delaware, repeal proponents cite nonobstruction as a reason to repeal.
An Associated Press story about the less frequent use of the death penalty in Virginia begins with this paragraph:

A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student [Hannah Graham] is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation.

The bulk of the story concerns a study by law professor John Douglass to the effect that prosecutors in Virginia are seeking the death penalty less frequently in recent years because capital defense has improved.

I have not read Prof. Douglass's study (which is not linked in the AP article), but would certainly be open to doing so.  Prof. Douglass is a former colleague of mine in the US Attorney's Office, and a bright and fair-minded person.

Still, the story has a few problems.

Amateur Hour in Baltimore

I have previously discussed, see, e.g., here and here, the ideologically driven, grandstanding performance of Baltimore State's Attorney Marilyn Mosby in announcing charges, including second degree murder, against six city police officers. Andy McCarthy, who was in charge of appeals for the USAO for SDNY at the same time (many years ago) I had that job for the EDVA, absolutely takes Ms. Mosby apart:

At best, it is amateur hour.

At worst, the rash decision by Marilyn Mosby, the Maryland state's attorney for Baltimore City, to bring an array of internally inconsistent charges, including murder, against a half dozen police officers in connection with the death of Freddie Gray is a frightening display of state complicity in mob justice. 

Three of the arrested officers, including the one facing the most severe charge of second-degree murder, are African-American. We'd better hope that black cops' lives matter.

I was attending a conference on Friday. It was thus my good fortune, when asked for a first impression of the charges, not to have heard Ms. Mosby's embarrassing speech announcing them.

The chief prosecutor, in what can only be described as a gift to defense lawyers, proclaimed that she'd brought the charges to show not only "the people of Baltimore" but also "the demonstrators across America" that "I heard your call for 'no justice, no peace.'" When I say this was embarrassing, I am not just making a stylistic critique that prosecutors should not speak like community organizers. It is a professional assessment.

Read the whole article.

Common Sense Prevails

If you are a convicted murderer serving a life sentence, well, sorry, you cannot force the taxpayers to cough up the gigantic bill for the sex change operation you declined to pay for yourself before you went to prison.  The Boston Globe has the story.

The en banc First Circuit reversed a district judge who would have forced the government to pony up for this, and today the SCOTUS denied cert.  No dissents noted.

I'm assuming those who relentlessly decry the high cost of incarceration will applaud today's result.

Will the Mob Tolerate an Acquittal?

The Baltimore State's Attorney today announced charges against six police officers in the death of Freddie Gray.  I have a number of thoughts.

The first is reflected in the title of this entry:  Will the mob tolerate an acquittal? The calls in recent days have been for "justice."  I have considerable doubt whether those doing the loudest calling have much interest in justice.  I think they want to see police officers punished simply because of who they are.  If that is true, then the riots we've seen up to now will pale in comparison to the ones we'll see in the event of an acquittal.  

This is what we need to face:  The evidence will not make any difference to those most inflamed (and I use that word advisedly) about this case.  We've all seen this before  --  most recently with Darren-Wilson-is-Satan-hoax in Ferguson and with the fraternity falsely accused of hosting gang rape at the University of Virginia.

The facts are not the point.  The narrative is the point.

Of course, there is a great deal more to say about this case, only some of which I am able to get to for the moment.

Big Weed

Wonders never cease.  Gerald Uelmen, professor of law and former dean at Santa Clara University School of Law, is someone I have disagreed with, sometimes vehemently, many times over many years and don't recall ever agreeing with.

But there is a first time for everything.  Professor Uelmen has this review in California Lawyer of a book titled Big Weed by Christian Hageseth, and I find myself nodding in agreement with just about every word.

Marijuana is not a harmless substance....  Just like the alcohol and tobacco industries, the marijuana industry will be built on the backs of its most frequent users, and turning casual users into frequent users will be the marketing strategy that drives the industry, just as with alcohol and tobacco. Hageseth makes no effort to assess the potential harmful consequences of promoting marijuana use to the consuming public, which will fuel the billions of dollars in sales that he foresees.
In my view, this promotion by a legal marijuana industry is a far greater threat than legalization as such.  We are pretty close to de facto legalization in California already.

When states legalized alcohol after the 21st Amendment, many of them monopolized retail sales in state-run stores.  When states legalized the numbers racket, they monopolized the "manufacturer" level although using private retailers.

Why not make the legal marijuana business a government monopoly?  I don't see a single good reason not to.

Guilty Plea in NJ Bridge Case

Jill Colvin and Jost Cornfield report for AP:

A former loyalist to New Jersey Gov. Chris Christie arrived at court Friday to plead guilty to charges related to creating a traffic jam near the George Washington Bridge for political purposes, a person with knowledge of the case told The Associated Press.

The person wasn't authorized to release the information before the hearing and spoke on condition of anonymity.

David Wildstein was an official at the Port Authority of New York and New Jersey at the time of the tie-ups. It's not clear what charge or charges Wildstein will plead to. He will be the first person to admit to committing a crime in causing the series of politically motivated traffic jams in 2013.

Federal prosecutors announced an 11 a.m. court hearing in Newark and an early afternoon news conference. The office, which Christie led before stepping down in 2008 to run for governor, has not said who will appear in court and didn't release any other details on the investigation.

So we don't even know what crime was charged here, but this is one of the most despicable abuses of government power in a long time in the sheer wanton cruelty of it.  To punish the people of a city who must commute into New York because of a political disagreement with the leaders of the city (who work in town and don't commute) is mind-bogglingly evil.

Extending the presumption of innocence, I will assume for now that Gov. Christie knew nothing of this particular operation.  Even so, a leader establishes a tone and a culture for his office.  He does that through his own words and actions and through his selection of the people to staff the office.  This office had a culture where someone could do something so cynically, despicably cruel, and nobody goes running to the boss to say, "Oh my God, do you know what this jackass is doing?!"  Is that the kind of office culture we want in the West Wing?

Update:

Time reports a major policy address given by Hillary Clinton.  Its article starts:

Hillary Clinton called on Wednesday for broad criminal justice reform and renewed trust between police officers and communities, reflecting the former first lady's evolution from supporting the policies instituted by her husband two decades ago...

In part of her speech, Ms. Clinton said (emphasis added):

It's a stark fact that the United States has less than 5 percent of the world's population, yet we have almost 25 percent of the world's total prison population. The numbers today are much higher than they were 30, 40 years ago, despite the fact that crime is at historic lows.

I will save for a later post any discussion of the mind-bending density of the "despite" remark. For now, I want to focus on this line in the Time piece:

Clinton planned Wednesday's speech in November, months before she announced her candidacy, according to former New York Mayor David Dinkins, who introduced her.

That would be the same David Dinkins whose stewardship became a catchword for incompetence principally because of the sky-high amount of crime during his administration.  It took Dinkins only a single year in office to "achieve" the highest number of murders in one year, 2245, ever recorded in New York City. Last year, after two decades of Rudy Giuliani and Michael Bloomberg, the number was 328.

Academia, Still Stark Raving Mad

About four months ago, I discussed demands by law students at Harvard, Columbia and Georgetown law schools (full disclosure:  I teach part time at Georgetown) for a postponement of exams because of the "trauma" they were experiencing from a couple of news stories, most prominently the failure to indict Ferguson, Mo., police Officer Darren Wilson for murder.  (The fact that he had not committed murder or any other crime was not considered particularly relevant).

In the class I teach, I will generally say something or other about gathering evidence before charging people with crimes.  I even occasionally mention the tiresome requirements of due process.  But I tend to be behind the times.

My anachronistic view of teaching law was highlighted again today by this story:  "If you help Freddie Gray protesters in Baltimore, you can defer an exam."

The Ghost Game

For the first time in major league history, a game will be played before an audience of zero.

The Baltimore Orioles decided that, given the riots, arson and looting, it was too risky to have fans at the ballpark for the game this afternoon against the Chicago White Sox.

The Washington Post reports, inter alia:

The decision to play in an empty ballpark will cost the Orioles revenue: no ticket sales, no concessions, no parking. The first two games of the series against the White Sox, scheduled for 7:05 p.m. starts Monday and Tuesday nights, have been postponed, and the club announced it will make up those games in a 4:05 p.m. doubleheader on May 28 at Camden Yards.

Of course, it's not just the Orioles who will lose revenue.  It's the dozens of people  -- generally not people at the top of the economic ladder  --  who man the concession stands and carry hot dogs, ice cream and drinks up and down the aisles for sale to the fans.

Those losses will barely count among all the other, more appalling ones, that have come from this lawlessness.   But those people work for their money.  So, even if their losses don't count with The Elite, they will count with me.

News Scan

Parolee Released Two Days Prior To Murder:  A New York man who opened fire inside a pub last weekend shooting seven people, one fatally, was a parolee released on bail less than two nights before.  WHEC reports that the suspect, David Alligood, was arrested for a misdemeanor assault charge some 30 hours before the shooting occurred and had a criminal past, including being on parole for a drug conviction.  A town supervisor said that granting bail to Alligood "is another case where the parole system broke down."

State To Remove Doctors From Executions:  House lawmakers in North Carolina are attempting to end the de facto moratorium on the death penalty by permitting any medical professional to carry out executions.  Amanda Lamb of WRAL reports that House Bill 774, or the Restoring Proper Justice Act, would no longer require a physician to preside over executions, an issue that has caused problems regarding a physician's medical ethics.  The new legislation would allow any licensed physician assistant, advanced degree nurse, registered nurse, paramedic or EMT to participate, although a physician would still have to be the one to pronounce a murderer dead.

Murder, Violent Crime Up in Charlotte, NC:  The Charlotte-Mecklenburg Police Department in North Carolina is concerned that an increase in stolen guns is partly to blame for the sharp rise in murders and other violent crimes during the first three months of the year.  Gavin Off of the Charlotte Observer reports that homicides are up by 80 percent, rapes have increased 34 percent, and aggravated assaults are 33 percent compared to the first quarter of 2014.  Katrina Graue, deputy chief of CMPD, believes that the 30 percent increase in gun theft is putting more firearms on the streets and creating more opportunities for criminals.

Judge Stays Murderer's Execution:  Robert Pruett's execution death for the stabbing a prison guard to death 15 years ago was stayed by a Texas Judge on Tuesday, hours before it was to be carried out.  Michael Graczyk of the Associated Press reports that although the U.S. Supreme Court denied Pruett's claim that a second DNA test should be performed on a metal rod used in the murder, Judge Bert Richardson announced that it "not impossible to conceive" that the new test could be favorable for the defendant.  The Supreme Court also denied Pruitt's claims of ineffective assistance and a failure to consider evidence of his dysfunctional childhood.  The judge has ordered the test results be made available by May 28.  

Sex Offender Rotation Angers Milwaukee Leaders:  A secret state program that rotates dangerous sex offenders through homes in neighborhoods near schools and families has Milwaukee officials and residents outraged.  Colleen Henry of WISN reports that after the sex offender residency restriction legislation passed last fall, many sex offenders were left homeless, and state workers began shuffling them through a circuit of 10 homes.  Residents of the neighborhoods where these homes were located were never informed of the presence of sex offenders in their communities.

Poll Shows American Majority Oppose Immigration Policy:  A new poll released by Rasmussen Reports reveals that the majority of Americans surveyed oppose President Obama's executive action allowing five million illegal immigrants to remain in the country.  Kevin Derby of the Sunshine State News reports that 56% oppose the executive order, while 35 percent support it.  Also, 60 percent feel the President should work with Congress rather than act on his own.

The WSJ has this editorial, titled The Blue-City Model with the above subhead.  Here is the portion on-point for this blog:

The dysfunctions of the blue-city model are many, but the main failures are three: high crime, low economic growth and failing public schools that serve primarily as jobs programs for teachers and administrators rather than places of learning.

Let's take them in order. The first and most important responsibility of any city government is to uphold law and order. When the streets are unsafe and crime is high, everything else--e.g., getting businesses to invest and create jobs--becomes next to impossible.

People also start voting with their feet. Mayor Stephanie Rawlings-Blake has stated that one of her goals is to attract 10,000 families to move to Baltimore. Good luck with that after Monday night.

It's not that we don't know what to do. Rudy Giuliani proved that in New York City, which he helped to revive in the 1990s starting with a revolution in policing that brought crime rates to record lows. A good part of this was policing in areas that had previously been left to the hoodlums.

His reward (and that of his successor, Mike Bloomberg, who built on Mr. Giuliani's policies) was to become a villain of the liberal grievance industry and a constant target of attack. Few blue-city mayors elsewhere have been willing to take that heat.


In my last entry, I cited a Washington Post story on the President's remarks about the hooligan-driven anti-police rioting in Baltimore.  I noted that the President seemed to enter the Twilight Zone in taking the view that "long stints in prison" for Baltimore's criminals have contributed to its problems.  In fact, keeping criminals off Baltimore's streets is one of the few things that has helped alleviate its problems.

But the Post's reporting is none too swift either.  The Post's story says:

For Obama, there is a certain sense of déjà vu as Baltimore struggles with the aftermath of another death of a black man, apparently at the hands of police and seemingly without any crime having been committed.

Many critics believe Obama did not show enough passion or persuasion to connect with or restrain angry African Americans after the killing of Michael Brown by a police officer in Ferguson, Mo. Instead, Obama sounded calls for restraint, lawful demonstrations, commissions of inquiry and slow, steady progress toward reform.

Where to start?

The First Amendment Inside-Out

According to its initial assessment, the University of Michigan thought that freedom of speech did not include screening the Oscar-nominated movie, "American Sniper," because a group of Muslim students preposterously claimed that the showing would create an "unsafe" environment.  I blogged about it here. After a public outcry  -- and only after  --  did University administrators decide the movie could be shown after all.

But free speech is not entirely moribund.  It lives on in the form of rioting, and, worse, the official invitation to riot.

Harken unto these words from the mayor of Baltimore, whose city, as I type, is becoming engulfed in an anti-police riot.  (I'm taking this story, not from any "right wing" source, but from CBS News in Baltimore):

I made it very clear that I work with the police and instructed them to do everything that they could to make sure that the protesters were able to exercise their right to free speech," [Mayor] Rawlings-Blake said. "It's a very delicate balancing act. Because while we try to make sure that they were protected from the cars and other things that were going on, we also gave those who wished to destroy space to do that as well.

Q:  What happens when a city invites a riot in the name of "free speech"?

A:  It gets a riot.  Whether it gets any speech, I don't know.


Priorities for the New Attorney General

The Crime Report is published daily by the Center on Media, Crime and Justice at the John Jay College of Criminal Justice in New York.  It includes investigative articles by a number of veteran crime reporters, plus analysis and commentary.

It asked me to write a memo for Loretta Lynch setting out what I believe should be her priorities as she takes the helm at Main Justice.  My response is here.  I start with questions about what model of leadership she should adopt (Michael Mukasey).  I go on to suggest how she should react when the White House starts to push her (push back) and what to do about the fact that by far most of the members of the majority party in the Senate opposed her (reach out to them).

I continue by making suggestions about what direction to take in dealing with drugs, over-criminalization, the decaying sentencing guidelines, assaults on the First Amendment (especially on campus), criminal justice "reform," the culture of grievance and racial preference, the growing chorus against police and prosecutors, calls for mass clemency, and enforcement of the death penalty.

That's for starters.  My extremely unsolicited (by Ms. Lynch) advice is set forth after the break. 

Why We Have the Death Penalty, Vol. MMM

I wrote a few days ago to emphasize an item it might have been easy to miss in the News Scan.  I do so again today.  My reason for both entries is the same:  They give concrete examples of why we cannot trust the constant assurance that we'll be just as safe if we dumb-down sentencing and/or abolish the death penalty.  

The reason we can't trust this assurance is simple.  It's false. Today's item is particularly instructive:

Supermax Inmate Convicted of Murder:   CBS Colorado reports that a leader in the Mexican Mafia prison gang has been convicted of the murder of another inmate.  Silvestre Rivera, sentenced to prison for a string of bank robberies in California and Arizona, was found guilty of stomping and kicking 64-year-old Manual Torez to death ten years ago at the federal Supermax prison in Southern Colorado.  The maximum sentence Rivera can receive is LWOP.  It was the first murder ever at that facility. 


News Scan

Medical Pot Law Dies In Florida:   The effort to pass a medical marijuana law during the current legislative session has "gone up in smoke" according to this story (registration required) by Bradenton Herald reporter Michael Auslen.  The chief proponent, Republican State Senator Jeff Brandes, had conceded that his bill is effectively dead this session.  He said he plans to work through the summer to draft legislation that will gain enough votes to pass next year.

Colorado Senate Passes Fetal Homicide Bill:  The Republican controlled Colorado Senate passed legislation classifying the killing of an unborn child as murder.  Megal Verlee of Colorado Public Radio reports that the measure was introduced in response to the  recent assault on a pregnant woman in which her unborn baby was cut from her womb as reported here .  Abortion advocates are opposed to the bill, arguing that if passed it might permit the murder prosecution of a woman who chooses to terminate her pregnancy. 

Supermax Inmate Convicted of Murder:   CBS Colorado reports that a leader in the Mexican Mafia prison gang has been convicted of the murder of another inmate.  Silvestre Rivera, sentenced to prison for a string of bank robberies in California and Arizona, was found guilty of stomping and kicking 64-year-old Manual Torez to death ten years ago at the federal Supermax prison in Southern Colorado.  The maximum sentence Rivera can receive is LWOP.  It was the first murder ever at that facility.   

 

Tsarnaev, Silence, and Remorse, Part II

Kent has noted that, on the current uncertain state of the law, prosecutors would be taking a risk if they use Tsarnaev's (presumed) silence as evidence of lack of remorse.  I concur.  But there's more to this story.

At first, I agreed with the conventional wisdom that defense counsel would not call their client to the stand.  Now, I have my doubts.  The government's evidence of the savagery and cruelty of this crime in my view makes the death penalty likely unless the defense can move the ball.

I think their best shot to avoid lethal injection is to call Tsarnaev and have him show remorse.  If he does so, and makes a convincing showing, I think he lives. It would help if he broke down in tears of grief in a way that struck the jury as sincere, and not a coached performance.

And there's the rub.  I have seen not a lick of evidence that Tsarnaev actually feels any differently than he did the day of his capture.  That afternoon, he scribbled a note to the effect that he was in a Holy War against the United States, and if there was "collateral damage," in the phrase made immortal by his fellow butcher Timothy McVeigh, well......tough.

My guess is that it will depend on defense counsel's assessment whether Tsarnaev can pull it off, and that he won't break out in an anti-American diatribe during cross-examination.  Having to make judgments like that is one of many reasons I'm happy I did not become a defense lawyer.
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