Results matching “first”

One valid criticism we often hear of modern criminal law is that too often the mental component of crimes, the mens rea or guilty mind, has been watered down or eliminated.  Today, the US Supreme Court took up a case on the mens rea of the federal law on use of a firearm in a violent or drug crime, Rosemond v. United States, No. 12-895.  The Question Presented is:

Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

Rosemond is represented by John Elwood, who writes the Relist Watch feature at SCOTUSblog.  The case was granted at the first conference, not relisted.

Andrew Welsh-Huggins has this story for AP on the possibility of the death penalty in the Cleveland horror case, headlined, "Experts question death penalty in Cleveland case."  Despite the headline, the first expert quoted is OSU Professor Doug Berman saying, "Ergo, Castro, at least as the facts have been described and developed, would seem to be the poster child for the worst of the worst unlawful pregnancy terminator."

Most of the rest of the comments are fairly predictable, but this one set me back in my chair:

It's not unheard of for prosecutors to seek capital charges even when a body hasn't been located. But the Castro case brings up another layer of difficulty given that no human remains of any kind have been found on his property.

"How does the prosecution prove a pregnancy? How do you prove that Castro caused the termination of the pregnancy?" said Michael Benza, a Case Western University law professor who has also represented death row clients.

Well, professor, there is one small difference between this case and the usual missing body case.  There are three living eyewitnesses, one of whom, in each case, was the mother of the deceased victim and the direct victim of miscarriage-inducing beating.  How do you prove it?  Sheesh.

Todd Ruger reports for the NLJ (free registration required):

The U.S. Senate unanimously confirmed Sri Srinivasan to the U.S. Court of Appeals for the D.C. Circuit on Thursday, making him President Obama's first successful nomination to the court and the first new judge there since 2006.

Srinivasan, the principal deputy solicitor general in the U.S. Justice Department, saw his nomination sail through a normally contentious Senate confirmation process. The 97-0 vote reflected his broad support from the legal community and legal pedigree that included work for both Democrat and Republican administrations.

The D.C. Circuit does not handle as many criminal cases as most circuits.  CJLF filed its very first brief in that court just this year.  The circuit has no jurisdiction to review criminal cases from the local D.C. court system, either on appeal or habeas.*

The crime-related cases the D.C. Circuit does handle, though, include some of the most controversial ones.  The Gitmo detainee cases are there.  The lethal injection importation case, noted above, is there.  The habeas "fast track" case will be there shortly.

So where does Judge Srinivasan stand on the issues of greatest importance to enforcement of the criminal law?  I have no idea.  His work as an advocate for the government in his present position is highly regarded, but that work is advocating for positions determined by others.  A Lexis search for articles turned up nothing on criminal law or anything else.  We will have to wait and see.

* No, that doesn't violate the Suspension Clause.  Not even liberal demigods Brennan and Marshall thought it did.

Standard operating procedure in the U.S. Supreme Court is that the party who lost in the lower court asks the Court to take the case, and the party who prevailed there files a "brief in opposition" telling the Court why the case is not worth its time.

Occasionally, though, the prevailing party below joins in the request to take the case up, even though it believes the Court should affirm once it does.  The U.S. Government is the party most likely to do this, as it is uniquely hampered by having to enforce different interpretations of the law in different federal circuits.  Much more rare is such a request by a private party, but one has been filed by Noel Canning, the bottling company that prevailed in the NLRB recess appointments case.  "Respondent does not oppose certiorari because this case presents a constitutional question of extreme importance."

Noel Canning asks the Court to add an additional Question Presented to the two proposed by the Government:

A new study out published in the Journal of the American Academy of Psychiatry and the Law seems to answer the question in the negative.  Psychiatric News has the backdrop:

The researchers assessed 270 Colorado prison inmates charged with violating prison rules and who, after a disciplinary hearing, were placed in one of three prison environments. Subjects in the first group, which included individuals with or without a mental illness, were placed in a super-maximum security environment in which they were locked in their cell 23 hours a day. Inmates in the second group, which also included individuals with or without a mental illness, were assigned to a general-population maximum-security housing unit, where they had more out-of-cell time per day than the first group had.
...

Whereas some of the inmates' psychological health deteriorated over the course of the study, this was generally not the case, even among inmates in solitary confinement. "We were surprised that only a small number of inmates in segregation got clinically worse," Metzner told Psychiatric News.

Technically, the California Legislature has not actually legalized theft.  It has, however, reduced the consequences to the point that, for some people, it might as well be legal.

Ben Boychuk has this article in the City Journal on the brazen theft of his expensive new laptop from beneath his fingers at a Starbucks in Fontana.

It isn't easy looking at a photo lineup. But one mug shot was unmistakable. I paused for a long moment, and I must have had a strange look because the officer asked if I recognized someone. "Yes," I said. "That's the driver." Of all the forlorn faces staring up at me, his was the only one smiling.

"He was probably smiling because he knew he got one over on you with your computer," the officer said.

"I guess so. But why would he be smiling now, when he's under arrest?"

It didn't take defense-oriented types long to come up with the theory that Dzhokhar Tsarnaev was merely the teenage tag-along to his charismatic older brother when he planted the Boston Marathon bomb.  He wasn't really a Muslim radical, you see, just a fun-loving, impressionable kid.

"F*** America, Boston Marathon Suspect Wrote in Boat."

As police searched for him, and as he lay bleeding in his boat hideout, Boston Marathon bombing suspect Dzhokhar Tsarnaev wrote "F*** America" on the side panel of the boat, police in Massachusetts told ABC News.

Officers said they also discovered the phrase "Praise Allah" on the boat's side panels and several anti-American screeds, including references to Iraq, Afghanistan and "the infidels."

When the IRS scandal first broke, I noted one possible criminal violation, 18 USC §241.  John Malcolm and Hans von Spakovsky have this post at The Foundry, the blog of the Heritage Foundation, noting this a few other possibilities.

Had enough of OJ?

Maryclaire Dale reports for AP:

Dr. Kermit Gosnell gave up his right to appeal and in return will spend life in prison. Gosnell, 72, was found guilty Monday of first-degree murder in a case that became a flashpoint in the nation's abortion debate.

Former clinic employees testified that Gosnell routinely performed illegal abortions past Pennsylvania's 24-week limit, that he delivered babies who were still moving, whimpering or breathing, and that he and his assistants dispatched the newborns by "snipping" their spines, as he referred to it.

Unless Pennsylvania reformed its glacial capital appeals process, there would be no chance of the 72-year-old Gosnell being executed anyway.  (If they got the job done in 6 years, like Virginia, it would have been a strong possibility.)

CBS is reporting that abortionist/butcher Kermit Gosnell has been sentenced to life imprisonment on two of the three first degree murder charges of which he was convicted.  The deal is that he escapes the death penalty in exchange for his agreement to forego all appeals.

PA Abortion Doctor Guilty:  Sarah Hoye of CNN reports that on Monday Pennsylvania abortionist Dr. Kermit Gosnell was convicted of three counts of murder in the first degree. Gosnell performed illegal late term abortions at his "house of horrors" Philadelphia clinic, 21 of which he was convicted for. In addition to other charges, he is accused of killing babies post-birth. Gosnell could face the death penalty. Continued from this News Scan.

OK Sex Offender Restrictions May Ease:  Fox News' Mark Taylor reports on a May 8 federal ruling in favor of convicted sex offender Charles Goodwin, granting him access to Internet use. The ruling currently only applies to federal convictions, but may set a precedent for sex offenders convicted in Oklahoma's lower courts. According to legal analyst David Slane, future convictions may be less restrictive on sex offenders, prohibiting only specific activities related to their offenses.

TX Two-Strikes Child Sex Offender Bill Passes House:  According to a report from Glenn Evans of the News-Journal,  House Bill 1302, a two-strikes bill for child sex offenders, passed unanimously in the Texas House, Tuesday. If the bill becomes law sex offenders convicted of sexual violence against children under age 14 would be sentenced to life in prison without parole upon second offense. The measure will also prohibit-first time offenders from holding job positions where it is determined they may interact with children.

L.A. Compliance Checks Result in Arrests, Discovery of Violations:  CBSLA reports on a three-week compliance check operation in Los Angeles which resulted in the arrests of 21 probationers, all with sex crimes on their records. The 137 checks also found children present at a residence where an offender convicted of sexual offense against children was living. Additionally computers, phones, and drugs were seized during the operation. Probation Department Assistant Chief Margarita Perez says over 61 percent of probationers are high risk to very high risk; Only one to two percent are assessed as low risk. Perez states that the figures are contrary to the situation presented by the media.

When the story of the Cleveland horror first broke, I said that the crimes, however horrible, could not be capital because there was no murder.

Now we have learned more.  There may indeed have been murders in the house of horrors.  Brandon Blackwell reports for the Plain Dealer:

The man accused of kidnapping and imprisoning Amanda Berry, Gina DeJesus and Michelle Knight in his home could face the death penalty, says Cuyahoga County Prosecutor Timothy J. McGinty.

McGinty said Thursday that he will pursue charges against Ariel Castro "for each act of aggravated murder he committed by terminating pregnancies" during the women's decade of captivity.

The Cleveland Plain Dealer reports:

Cleveland police this afternoon announced that they have charged Ariel Castro with four counts of kidnapping and three counts of rape in connection with holding Amanda Berry, Gina DeJesus and Michelle Knight captive for the last decade.

Police Capt. Ed Tomba said Pedro and Onil Castro will not be charged, though they have warrants on misdemeanor cases, to be heard Thursday morning.

City Prosecutor Victor Perez said there was no reason to believe the brothers were involved. Kidnapping charges against Ariel Castro include the 6-year-old child found in home.

Also in the Plain Dealer, Brandon Blackwell reports on what we know so far about the case, including:

CA Counties Frustration Mounts as Law Enforcement Struggles Under AB109:  Kurtis Alexander of the Fresno Bee reports problems are mounting for California law enforcement under realignment, as a combination of limits on parole time and overcrowding cause parole violators to be released quickly or not incarcerated at all. In the first two months of realignment Fresno County Jail ran out of space and was forced to adopt a non-incarceration policy towards violators. San Joaquin and Merced counties have taken to similar methods. Merced County Sheriff Mark Pazin says the problem is affecting jails throughout California. Mark McDavitt, a Fresno sex offender, was caught and released six times for violating parole until he was charged with annoying or molesting a child after he accosted girls in a park. Another parolee and sex offender Jerome DeAvila raped and murdered his 76 year old grandmother in Stockton last year. Parole agents express frustration with the lack of ability to enforce compliance under AB109, and say that with no threat of incarceration, parolees will continue to do as they please.

CA Officer Shot in Coulton, Suspects Held:  John Asbury of the Press Enterprise reports correctional officer Tom Dennie, 52, was shot Thursday night at a Coulton, California gas station en route to work. Two suspects, Christopher Josephat Marquez, 24, and Anthony Gomez Jr., 31, have been arrested. Gomez, discharged from parole in March, 2012 has an extensive criminal history. It is reported that after asking Dennie for directions, the two suspects opened fire, shooting the officer in the leg and head. The suspects were apprehended shortly after the incident, and are being held on $1 million bail. Dennie remains in critical condition at last report.

TX Shooter Sentenced to Death:  Juan A. Lozano of the Associated Press reports Bartholomew Granger, 42, received the death sentence, Thursday, for the fatal shooting of Minnie Ray Sebolt, 79. Granger ambushed his daughter in March, 2012 outside of the courthouse where she went to testify against him for a case of sexual assault. Granger's attack resulted in Sebolt's death, the near death of his daughter and the wounding of one other woman. The jury recommended the death penalty after 2 hours of deliberation.

In late April, a few members of our Foundation's Board and I toured San Quentin, the oldest prison in California and home to the state's death row.  While I have been through some other state prisons, San Quentin was different.  It was opened in 1852 as the state's first prison.  It was located on a 432 acre point facing the San Francisco Bay because, at the time, the city was overrun with crime.   Although it's obvious that the prison has been expanded over the years,  walking through the main gate into the actual prison compound is like stepping back in time.  The gate itself is original and large enough to accommodate a stagecoach.  Inside the compound is a grassy quad flanked by the gate wall, a cell block, a hospital and a building housing several small churches.  In addition to death row, which is isolated from the rest of the prison, roughly 4,500 inmates are housed inside the main prison.

Following the links in Steve's post on the DSM-5 led me to this post by Allen Frances.  Neuroskeptic refers to Frances as "the creator of the more reliable DSM-IV."  Frances begins with a process criticism of the way the DSM-5 was created and approved (emphasis added):

This is no way to prepare or to approve a diagnostic system. Psychiatric diagnosis has become too important in selecting treatments, determining eligibility for benefits and services, allocating resources, guiding legal judgments, creating stigma, and influencing personal expectations to be left in the hands of an APA that has proven itself incapable of producing a safe, sound, and widely accepted manual.

New diagnoses in psychiatry are more dangerous than new drugs because they influence whether or not millions of people are placed on drugs -- often by primary care doctors after brief visits. Before their introduction, new diagnoses deserve the same level of attention to safety that we devote to new drugs. APA is not competent to do this.

Diagnoses are also dangerous because of their potential to convince gullible jurors, and sometimes even judges, to let criminals off with less than they actually deserve. 

Brian Z. Tamanhana of Washington U., St. Louis Law School has this article with the above title on SSRN.  He charges his fellow lefty law professors with hypocrisy and is well aware he will lose some friends.  Here is the abstract:

Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation's highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.

Understanding that their client faces the realistic possibility of execution, Dzhokhar Tsarnaev's lawyers, now including death penalty expert Judy Clarke, are reported by NBC News to have hustled into discussions with the government to take capital punishment off the table in exchange for Tsarnaev's cooperation.

Mike Rogers, Chairman of the House Intelligence Committee, has some questions for Eric Holder about how it came to pass that a Magistrate Judge, with an Assistant US Attorney in tow (or was it the other way around?) manages to show up in Dzhokhar Tsarnaev's hospital room to make sure he lawyers up, and thus clams up, in the middle of what had been a productive FBI interrogation about Dzhokhar's imminent terrorist plans  --  plans that we now know included a trip to Times Square to continue the fun.

I would like more information as to who determined that the proceedings [in a hospital involving the magistrate judge who Mirandized Rogers] would occur at that time and place while [FBI] questioning was still ongoing. I have received information suggesting that the Magistrate Judge may have appeared sua sponte to conduct the proceeding in a way that may have not been fully coordinated with the intelligence needs of the FBI. My understanding is that the normal practice places the duty to take the defendant to court (and accordingly discretion as to timing consistent with the rules) on law enforcement, and not the court.

The University of Chicago Law School has for many years been one of the nation's leaders, and is known to be more open to conservatives (or at least less hostile to them) than the other top schools.  It holds its reunion this weekend.

Up to now, I have not heard anyone ask how, exactly, a magistrate judge and an Assistant US Attorney happened to wind up in the Boston bomber's hospital room to conduct an initial appearance hearing, and to do so before the pre-Miranda interrogation was anything close to competed.

[A]re judges supposed to read suspects their Miranda rights while they are in police custody? I wouldn't have thought so, and not just because I haven't seen it done on TV. As Bill Otis reminds us, Miranda restricts the government's ability to use evidence collected absent the warning. But it's the government's call as to whether it wants to run the risk of having evidence excluded in order to obtain potentially valuable evidence from a suspect. 

*****************

I can't help but that suspect that it was the Obama administration that decided Tsarnaev should receive the Miranda warning. After all, wasn't it the prosecutor who brought the judge to Tsarnaev's hospital room in the first place? And isn't it almost certain that the local prosecutor, an assistant U.S. attorney, acted on instructions from the highest level of the Justice Department? Line prosecutors don't make decisions about how to treat terrorists in high profile cases when there is time to consult the DOJ.

The end of the FBI's ability to obtain information from Tsarnaev is only the latest consequence of the left's exaltation of undue process over considerations of national security and public safety. For congressional lawmakers who are demanding an explanation for the handling of the Tsarnaev interrogat[ion], there it is.

The WSJ's Saturday Essay this week is by U. Penn. Professor Adrian Raine on neuroscience and crime.  This is not (and not intended to be) a balanced look at the research with its limitations and criticisms.  Raine is an advocate.

Take the case of Donta Page, who in 1999 robbed a young woman in Denver named Peyton Tuthill, then raped her, slit her throat and killed her by plunging a kitchen knife into her chest. Mr. Page was found guilty of first-degree murder and was a prime candidate for the death penalty.

Working as an expert witness for Mr. Page's defense counsel, I brought him to a lab to assess his brain functioning. Scans revealed a distinct lack of activation in the ventral prefrontal cortex--the brain region that helps to regulate our emotions and control our impulses.

In testifying, I argued for a deep-rooted biosocial explanation for Mr. Page's violence. As his files documented, as a child he suffered from poor nutrition, severe parental neglect, sustained physical and sexual abuse, early head injuries, learning disabilities, poor cognitive functioning and lead exposure. He also had a family history of mental illness. By the age of 18, Mr. Page had been referred for psychological treatment 19 times, but he had never once received treatment. A three-judge panel ultimately decided not to have him executed, accepting our argument that a mix of biological and social factors mitigated Mr. Page's responsibility.

Raine apparently considers this to be a correct result.  It is not, IMHO, unless Page's condition actually rendered him lacking in free will, which I very much doubt.

A more profound understanding of the early biological causes of violence can help us take a more empathetic, understanding and merciful approach toward both the victims of violence and the prisoners themselves. It would be a step forward in a process that should express the highest values of our civilization.

In this passage we see the danger.  Some people slip much too easily from explaining to excusing.  A scientific test that merely shows some factor correlated with a propensity to commit acts of violence should not be regarded as mitigating.  As long as a person has the choice to commit the crime or not, he should be held fully responsible for the choice.  Letting murderers and rapists off easy on weak excuses is most definitely not "the highest values of our civilization."  It is a step on the downward spiral.

FL Man Sentenced to Death:  The San Francisco Chronicle reports that a judge sentenced  Victor Guzman, 40, to death in Florida Thursday. Guzman was convicted last year of the December 2000 fatal stabbing of an 80-year-old woman. The victim was found naked in her home with 58 stab wounds. In 2004, Guzman's DNA was matched to a sample taken from the scene. His DNA also linked him to the 2002 rape of a 12-year-old girl.

KY Killers Will Have DNA Evidence Tested With New Methods:  Andrew Wolfson of the Courier-Journal reports that a unanimous Kentucky Supreme Court decision on Thursday set precedent allowing convicted murderers access to DNA testing results that was not available at the time of their trials.  Garr Keith Hardin and Jeffrey D. Clark were convicted in 1995 for the 1992 murder of Rhonda Sue Warford. As a result of the court's decision they will be given access to new DNA tests of hairs found clasped in the victims hands that were not available when they were first tried. Kentucky had required post conviction DNA tests only for death penalty cases.

IN Man Charged With 1977 Murder:  Fox News and the Associated Press report that Michael V. Ackerman was arrested Wednesday in Indiana for the January 17, 1977 murder of his then-girlfriend's 18-month-old son. The cause of death was originally listed as multiple injuries/undetermined. The child's sister, who was 3-years-old at the time of the murder, led to the reopening of the case. In February, she told authorities that she had been present during the killing. Ackerman is charged with second-degree murder and could face 15 to 25 years or life in prison.

Prof. John Pfaff has an interesting post up over at PrawfsBlawg that highlights the common misconception that the incarceration rates in the United States are largely due to drug offenses.  As he discusses:

Two things jump out on this graph. First, after a rapid rise the percent of drug offenders peaks at 21.8%, in 1990. Second, from 1990 forward the fraction steadily declines, with only a few upticks here and there, to 18.4% in 2008; by 2009, it was down to 17.8%. In other words, in 1990, nearly 80% of all prisoners were non-drug offenders, and by 2009 that percent had risen to more than 84%. And almost all of these other inmates are serving time for violent or property offenses.

Adding in the federal system, which is much more drug-focused--about half of all federal prisoners are serving time for drug crimes--does not change numbers or trends much: 24.1% in 1990, 22.1% in 2009. This is unsurprising: despite the extensive (in fact, quite excessive) attention it receives from legal academics, the federal system held only 13.5% of all prisoners in 2011, and until the 2000s it wasn't even the largest prison system in the country, lagging behind California.

Since this data is presumably derived from publicly available sources, one wonders why it has taken so long for the message to get out. 

The Obama Administration has filed its certiorari petition in the recess appointments case, previously discussed in this post.  Lyle Denniston has this post at SCOTUSblog.

The case arises from President Obama's unprecedented assertion of the authority to make "recess appointments" when he decides the Senate is actually in recess, even though the Senate itself conducts "pro forma" sessions so as not to be in recess.

The petition assails the Court of Appeals decision on its overbroad holding but curiously omits any significant defense of the President's remarkable assertion at the root of the case.  The three subheads of Reasons for Granting the Petition are:

A. The President's Recess-appointment Authority Is Not Confined to Inter-session Recesses
B. The President May Fill a Vacancy That Exists During a Recess of the Senate, Even If the Vacancy Did Not First Arise During That Recess
C. The Court of Appeals' Decision Would Have Serious and Far-reaching Consequences

All of those things could be true and yet the judgment below, even if not the opinion in its entirety, would still be obviously correct.

As discussed in my previous post, I think this is one of those rare circumstances where a summary affirmance is in order.

  A bit more response to the ACLU-subsidiary's attack on California Senate Bill 779.  Their email is appended to this post.

   During the Prop 34 campaign, the proponents were running around saying things like "This is an opportunity to have a debate on the death penalty."  Okay, we had the debate, and the people decided to retain it.

    With repeal off the table, the choices are to keep the ineffective, expensive status quo or implement the reforms to make the system work.  SB 779 is a broad reform to remove the many unnecessary obstacles to implementation of the death penalty while keeping and improving needed reviews.

    The most important reform is state habeas corpus.  This review is for claims based on facts outside the record, and it belongs in a trial court.  No other state does it like we do.  The state supreme court mulls over it for years and then issues a one-paragraph order that just says whether the claims are defaulted, denied on the merits, or both.   A trial court decision that actually addresses the claims would be far better.

    Also, most cases should only get one state habeas review.  Randy Kraft is on his 10th, even though he was caught with the body of his last victim in his car.  Repeated reviews should be reserved for substantial claims of actual innocence.

    Various other reforms are also included such as clarifying that the Administrative Procedure Act does not apply to execution protocols, abrogating 1DCA's erroneous decision.

    Now, as for the gas chamber and Minsker's ridiculous statement:

The ABC story I linked in my last post is headlined, "Simple Boston Bomb Plot Hatched Without Foreign Help, Authorities Believe,"  This is its second paragraph:

For all the power of the two explosions at the Boston Marathon finish line, and for all the dramatic gun fights on the streets of Watertown, and for all the suppositions about the role of disciplined, well-trained terrorists, the college student reportedly told investigators the whole attack was devised from the Internet. The two brothers, he said, had no direction or financing from governments or rogue groups overseas.

ABC News carries this story about the first disclosures of Dzhokhar Tsarnaev to his interrogators.  It recounts:

Authorities tell ABC News they now believe the two foreign-born brothers were inspired to violence by the Internet preaching's of al Qaeda leader Anwar al-Awlaki, the charismatic American-born radical jihadist, who has been dead now for more than a year. They used instructions from an al Qaeda Internet magazine to make their pressure cooker bombs.