Results matching “first”

First, let us remember what this man did.  In 1977, he gained entry to a home posing as a power company employee.  He bound eight people and shot them while they were helpless, killing six of them.  The next years, he murdered a 17-year-old couple after raping the girl.  Details from the Eleventh Circuit's opinion follow the jump.

As reported in today's News Scan, the Eleventh Circuit vacated the stay entered by the federal district judge.  The U.S. Supreme Court denied three stay application here, here, and here.

CJ Roberts is recused, probably because Ferguson is represented by his old law firm.  No dissents are noted.

The execution was scheduled for 6:00 p.m. EDT, but that time has passed.  There are no press reports as of this writing on completion of the execution.  AP has this story.  David Ovalle has this story in the Miami Herald:

Michael Worley, Belinda's brother and only surviving relative, told The Miami Herald this month that he is upset over years of delays.

"Outrageous is the fact that for 34 years, our tax dollars have been keeping Ferguson alive. Free food, medical care and the ability to communicate with his loved ones and lawyers," he said. "My sister was brutally killed at the age of 17. Her murder shattered our entire family. Life was never the same."

Update:  See follow-up post here.

Manson Family Suspected of Committing 12 Unsolved Murders: Samantha Tata and Robert Kovacik of NBC Los Angeles report that LAPD has opened investigations into 12 unsolved murders similar to those committed by Charles Manson and his followers. LAPD detectives are working to gain access to hours of audio recordings from about four decades ago between former Manson Family member and convicted killer Charles Watson and his lawyer. Smith believes the recordings will help detectives solve the cold cases. Watson, of course, opposes access to the content of the tapes. A Texas Bankruptcy Trustee has custody of the tapes until the LAPD can take possession. Watson is currently serving a life sentence in California's Mule Creek State Prison.

RI City Board Will Not Approve Child Killer's Absentee Vote: Abbey Niezgoda of ABC 6 reports that convicted child killer Michael Woodmansee has asked for an absentee vote from the mental hospital he checked in to upon being released from prison 12 years early. Woodmansee had confessed to sexually assaulting and murdering a 5-year-old boy in 1983.
Paul Davis of the Providence Journal has this update reporting that Cranston Board of Canvassers Chairman said Friday he will not approve Woodmansee's request.

Bay Area Officers Considering Unmanned Drones: Stephanie Chuang of NBC Bay Area reports Bay Area law enforcement agencies are considering replacing helicopters with drones in an attempt to cut costs.  Alameda County Sheriff Greg Ahern tested an Unmanned Aerial System a year ago and is now considering getting the first UAS in California. The drone weighs only four pounds and has a wingspan of four-feet. The birds-eye view the drone would provide, particularly in hostile situations, information unattainable by tactical officers on the ground without endangering their lives. Though drone manufacturers have considered offering police models armed with tasers, rubber bullets, and tear gas, Ahern opposes that option.  

3 Views From CA On Closure and the Death Penalty: Lisa Aliferis of KQED has this article discussing three views on whether the death penalty provides closure. First, Marc Klaas, father of 12-year-old Polly Klaas who was kidnapped and murdered by Richard Allen Davis, opposes repealing the death sentence and argues that the death penalty is the only fair punishment for the most heinous killers. Klaas said he has talked with families of victims who have found closure from seeing the killer of their loved ones executed. Former Warden of San Quentin Jeanne Woodford disagrees saying the desire to have the person who murdered a family member dead is a natural reaction but does not provide closure. Lastly, Gayle Orr, whose 19-year-old daughter was stabbed and killed, supports Prop 34 and argues forgiveness, not execution, is the path to closure.

Opponents of the death penalty regularly claim that a life sentence prevents a killer from killing again just as effectively as an executed death sentence.  But it doesn't.

Bill Lindelof reports for the Sacramento Bee:

The death of an inmate at New Folsom prison is being investigated as a homicide.

The 51-year-old inmate was found unresponsive in his cell a little after 9 p.m. Wednesday during a prisoner count. His name has not been released.

The inmate has been in prison since Dec. 10, 2001, serving a 25-year-to-life sentence from Contra Costa County for assault with intent to commit a sex act. Cause of death was not released.

His 46-year-old cellmate has been identified as a suspect in his death and is being housed in a segregation unit pending the investigation, according to a prison press release. The suspected killer has been in state prison since Nov. 9, 1986, serving a 17-year-to-life sentence from Alameda County for second-degree murder.

In this case, the prior could not have been a death sentence, as that sentence is not available for second-degree murder.  That is why we divided murder into degrees in the first place.  The case illustrates, though, that life-sentenced murderers can and do kill again.

Is the controversial National Academy of Sciences report "Strengthening Forensic Science in the United States: A Path Forward," a "learned treatise" that the defense can use to cross-examine the prosecution's fingerprint expert under FRE 803(18)?

No, said the D.C. Court of Appeals in Gee v. United States.

A jury found appellant Rashaun Gee guilty of first-degree burglary while armed (knife), assault with intent to kill while armed, aggravated assault while armed, malicious disfigurement while armed, and attempted first-degree sexual abuse while armed, all in connection with an attack on victim Rachel Moretta.

The evidence included his fingerprints on the kitchen window (where he entered) and a T-shirt with his skin cells on the collar and blood stains from the victim, both matched by DNA.  The trial court rejected the defense's attempt to discredit fingerprint matching with the NAS report, and the Court of Appeals affirmed.

Zoe Tillman has this report at BLT.

The U.S. Supreme Court has denied a stay to Florida mass murderer John Errol Ferguson.  The Miami Herald had this story yesterday on the Florida Supreme Court's denial of relief and described Ferguson's crimes:

Ferguson was convicted of the July 1977 murders of six Carol City residents during a home-invasion robbery. At the time, it was the worst mass murder in Miami-Dade history.

Ferguson, now 64, also was convicted separately of murdering two teenagers, Belinda Worley, a 17-year-old Hialeah High School senior, and Brian Glenfeldt, 17, in January 1978.

The two teens had gone out for ice cream, and Ferguson pretended to be a police officer when he stopped them. He shot Glenfeldt to death and raped and murdered Worley, and stole her class ring.

The Florida Supreme Court's corrected opinion of October 8 denying Ferguson's third state collateral review petition is here.  Among the claims denied is the notorious Lackey claim that it is unconstitutional to carry out a judgment that the defendant has succeeded in delaying so long.  Justice Breyer and retired Justice Stevens have been favorably disposed to that claim in the past, but the Court has never accepted it.

The Florida Supreme Court's affirmance yesterday of the trial court's finding that Ferguson is sane enough to be executed is here.  The state high court found that Panetti v. Quarterman does not require reconsideration of its standard for competency in Provenzano v. State, which is based on Justice Powell's concurring opinion in Ford v. Wainwright.

Justice Breyer dissents and would grant the stay.  From the docket, it appears that this petition challenges the first Florida Supreme Court decision above.  I suspect that the Lackey claim is the basis of Justice Breyer's dissent, though there is no opinion explaining the basis.  Chief Justice Roberts is recused.

The Bureau of Justice Statistics released its annual survey of crime victimization, and the news is not good.  Violent crime (excluding homicide) is up 17% from 2010 to 2011, and property crime is up 11%.

These numbers are obtained from surveying a representative sample of people, as is done in public opinion polls, about crimes committed against them personally.  That is why it does not include homicide.  It provides a cross-check on the FBI's numbers of crimes reported to police, which suffers the defect of not including unreported crimes.  The BJS press release is here.

Page 7 of the report notes that the FBI's numbers did not increase much in the same period.  "Because the NCVS and UCR measure an overlapping, but not identical, set of offenses and use different methodologies, congruity between the estimates is not expected."  "Looking just at NCVS victimizations that were reported to police, the change in the number of overall violent and property crimes from 2010 to 2011 was not statistically significant."  Is crime up while people are reporting it less?  The percent reported in Table 8 shows some changes in reporting rates for all crimes, with the overall reporting rate down 4% for violent crime and 6% for property crime.  The reporting rate for rape shows a dramatic drop.  The drop is a matter of concern, but it does not account for the variance between the two crime measures by itself.

The good news is that violent crime remains 72% below the levels of 1993, when tough policies began to take hold.  Whether the 2011 increase is the result of the growth of soft policies (mislabeled "smart" by the people who have forgotten history and are trying to condemn us to repeat it) remains to be seen.

Update:  AP has this story on the report.  The story quotes James Alan Fox noting that the NCVS counts non-aggravated assaults that don't show up in the FBI numbers.  That is true.  See the third paragraph of the original post.  Looking at Table 2 of the report, we see that "violent crime" went up 17%, while "serious violent crime," a closer match to the FBI's violent crime index, went up 9%.  The difference in crimes included in the two indexes is a partial explanation, but probably not a complete one.

Does any word in all of law cause as much trouble as "presumed"?

When a defendant in California (and many other states) pleads both not guilty and not guilty by reason of insanity, the sanity issue is held for a second phase, which will happen only if the defendant is found guilty in the first phase.  (Lawyers say the issue is "bifurcated," but that gets Dirty Harry riled up.)

So how to explain this to the regular folks on the jury?  Like this?

The way this works is in the first trial, we decide whether or not Mr. Mills is guilty of murder.... During that process, Mr. Mills is presumed or you have to accept that he is sane.  That he is legally sane for the purposes of reaching that first verdict.  If Mr. Mills is convicted of any crime, then we have a second trial, and the burden shifts to the defense to show by a preponderance of the evidence that Mr. Mills was legally insane at the time the crime was committed.

We will find out if this is okay tomorrow when the California Supreme Court announces its decision in People v. Mills, S191934.  The briefs are here.

Update:  The answer is:

We conclude that although defendant establishes no due process violation, the instruction was erroneous under state law. The question of a defendant's sanity is entirely irrelevant at the guilt phase of a bifurcated trial under section 1026. Therefore, no instruction on the subject should be given. However, the error was harmless in this case.

As noted in the News Scan today, South Dakota carried out its first execution using the single-drug pentobarbital method that is rapidly becoming the new standard.  The crime is described in yesterday's News Scan.  KELO has this report:

[AP's Dave] Kolpack says as the Pentobarbital was administered, Robert appeared to clear his throat before making some heavy gasps.  A short time later, he could be heard snoring for about 30 seconds.

John Hult with the Argus Leader says Robert opened his eyes after three or four deep breaths, but there was no movement after that.  The warden called in the coroner's assistant at 10:15 p.m.  She checked for a pulse on Robert's wrist, neck and two places on his chest.  She examined him for six or seven minutes.  She left at one point to confer with the warden before returning to the chamber and checking for a pulse again.  Minnehaha County Coroner Kenneth Snell came in to check for a pulse and Robert was pronounced dead within one minute, at 10:24 p.m.  His body was taken away from the Penitentiary at 10:52 p.m.

Video of the statement of Lynette Johnson, the widow of correctional officer Ron Johnson, is also on the KELO site.

Eric Robert was already in prison for a de facto life sentence, so an additional term of imprisonment for the murder of Officer Johnson would have been no sentence at all.

SD First Use of Single-Drug Execution: The Associated Press reports that Eric Robert was executed Monday night by lethal injection. Robert was pronounced dead at 10:24 p.m. He was the first inmate executed with the single-drug lethal injection method in South Dakota. Continued from this news scan.

CA Senator Says Realignment Disregards Public Safety: The Sierra Sun Times has this statement from California Senator Tom Berryhill who argues realignment has shifted responsibility for some dangerous criminals to local counties and disregards public safety. Senator Berryhill outlines the crimes committed so called low-risk offenders which have occurred as a direct result  of AB 109 including rape, stabbings, attempted murder, robberies, playground stalking, and attacks on police officers. One particularly hard hit community noted by Senator Berryhill is Fresno. In Fresno County, the jail is too full to hold anyone on a parole violation including sex offenders, who violate parole by hanging around parks or schools.  Until a child is molested or hurt these offenders cannot be put in jail.

SD Set to Execute Inmate: Amber Hunt of the Associated Press reports that Eric Robert is set to be executed in South Dakota Monday night at 10:00 p.m.  It will be the first execution in SD in five years. Robert pleaded guilty to murdering a prison guard during an attempted escape in 2011. At the time Robert was serving an 80 year sentence for kidnapping. The guard was killed after Robert and an accomplice hit him with a pipe and covered his mouth with plastic wrap. Robert then put on his uniform and attempted to escape with his accomplice in a box on a pushcart. When suspicious guards approached them, Robert attacked one of them and was eventually subdued when more guards arrived. Robert says his only regret is that he did not kill more guards and successfully escape. Robert has never appealed his sentence, and SD Gov. Dennis Daugaard will not intervene to stop the execution.

Realignment Has Negative Impacts in CA: Scott Thomas Anderson of Gold Country News Service reports on a study by the Public Policy Institute of California on the effect of AB 109 (realignment) on counties. The study found that 17 counties were operating under court ordered capacity limits and that 93 percent of all county jails were already at full capacity before realignment. As a result jails are being forced to release various types of inmates who are awaiting trial, based on a threat index that considers a criminal's most recent offense. A Roseville police spokesperson said that these so called nonviolent offenders are still dangerous. Local jails are housing hardened criminals who used to be sent to prison, and this changed the environment in many jails. California Police Chiefs Association President Scott Seaman reported that police chiefs all over California are concerned about the impact of AB 109. Both the state Police Chiefs Association and the California District Attorneys Association oppose realignment.

Oakland's Violent Crime Wave Taking Toll on Officers: Dawn Edwards of the Examiner reports that the recent violent crime wave is becoming a major challenge for the Oakland Police Department. Officers are under pressure due to a dramatic increase in crime, which includes 11 murders in October so far and a record-setting 3,000 demands for service a day.

20 CA Prison Employees Fired for Phone Smuggling to Inmates: Jack Dolan of the Los Angeles Times reports that the Office of the Inspector General (OIG) has investigated 419 rule violations by prison employees in the first six months of 2012.  Among these are 54 allegations of smuggling cellphones to inmates, which has resulted in the firing or resignation of twenty employees.  Among the remaining thirty-four, allegations against thirteen have been dropped while the rest remain under investigation.  Most of the reported cellphone smuggling has been motivated by money or romances between inmates and employees.  Corrections officials claim that new cellphone towers capable of blocking reception to any unapproved phone will be in place by 2015.

In Miller v. Alabama, the U.S. Supreme Court held that laws prescribing a mandatory sentence of life without parole for murders committed when the perpetrator was under 18 are not permitted.  The judge must be able to exercise discretion.

The first thing that should have been obvious is that the case makes no change in the states where the LWOP sentence is discretionary and not mandatory.  In footnote 10, the opinion lists California Penal Code §109.5(b) as an example of a discretionary statute.  Clear as crystal, right?

Never underestimate the ability of result-oriented judges to misconstrue the clearest of holdings.  People v. Moffett, A133032A, involved the sentence of an armed robber just barely short of the threshold of 18.  He was a major participant in the robbery and threatened victims with death at gunpoint.  His accomplice murdered Police Officer Larry Lasater, for which he was sentenced to death.  The trial judge was well aware she had discretion, considered all the circumstances of the case, and decided life without parole was the appropriate sentence.  The Court of Appeal reversed, based not on the actual holding of Miller but on some of Justice Kagan's overly expansive language and its perception of the "spirit" of the decision.

The Attorney General should seek California Supreme Court review of this decision, and that court should emphatically reverse.

Bob Egelko has this story in the San Francisco Chronicle.  Officer Lassiter's mother has a comment to the story under the name "mom257."

CT Death Row Inmate Seeks Execution: The Wire Report of CT Post News reports Connecticut death row inmate Steven Hayes intends to waive his appeals and be executed. Hayes along with his accomplice were convicted of the brutal home invasion attack on the Petit family in 2007, which included the rape and murder of Jennifer Hawke Petit, and the murders of her two daughters Hayley, 17, and Michaela, 11.  The husband and father was beaten and thrown in the basement and barely escaped with his life after the murderers set fire to his home.  Both Hayes and his accomplice were convicted and sentenced to death. Hayes has repeatedly tried to kill himself. He currently claims that the prison staff is torturing him and subjecting him to cruel and usual punishment. Although Hayes previously told one of his attorneys that he would not oppose appeals of his sentence, he now says that following automatic review in the Connecticut Supreme Court, he plans to forgo appeals and habeas in order to expedite his execution. He said that he would formally announce his intentions this week. .

FL Execution Delayed 2 Days: David Ovalle of the Miami Herald reports that the scheduled October 16 execution of Florida death row inmate John Errol Ferguson will be delayed for two days to allow his attorneys more time to file appeals. Ferguson was convicted of murdering six residents during a home invasion robbery in 1977.  He was separately convicted of killing two teenagers in 1978. The young couple had gone out for ice cream when Ferguson, pretending to be a cop, stopped them. Ferguson shot the young man in the head, and raped and murdered the girl, stealing her class ring. Ferguson's attorneys argue he is severely mentally ill and not competent for execution. Bradford Circuit Judge David Glant will rule on the appeal Friday.

First Street Gang Designated Transnational Criminal Organization: The Los Angeles Times reports that the street gang Mara Salvatrucha MS-13 was designated by the Federal Government Thursday as a transnational criminal organization.  U.S. Treasury Department is now able to freeze financial assets from the gang and its members. Also, financial institutions are prohibited from transacting with any gang members. The gang is estimated to have 30,000 members in 40 U.S. States and in the District of Columbia. MS-13 is an El Salvadorian street gang, with much of the money generated by the gang funneled to leadership in El Salvador.   

We continue our series on the errors in two articles on the death penalty costs by Judge Arthur Alarcon and his law clerk, Paula Mitchell (mostly the latter, I suspect).  See the intro, part 1, and a post on Mitchell's partisan letter to the editor.

How often do you read in the news that a murderer has pleaded guilty and accepted a life sentence in order to avoid the death penalty?  It seems like it happens every week.  In any event, it is certainly not a rare occurrence.  How often does that happen in states that do not have the death penalty?  Prosecutors in those states tell me anecdotally that it is rare there.

If a murder case ends in a plea bargain, the cost of trial is zero.  The cost of appeals and habeas corpus will probably be zero, as the murderer will generally not want to overturn the favorable deal and risk a more severe sentence.  If he does challenge the bargain, the cost will typically be much less than a challenge to a full trial, as the grounds of challenge are sharply restricted.

Any reasonable, good faith estimate of the net cost of the death penalty would therefore necessarily include an offset for the savings resulting from these plea bargains.  How much offset do Alarcon and Mitchell chalk up for this factor?

Zero.

There are now 15 murderers on California's death row who have completed all the normal appeals, i.e. through denial of certiorari on the federal habeas petition.  A description of the cases is here.  The U.S. Supreme Court today declined to take up the case of William Charles Payton.  Twice before, the Ninth Circuit had overturned Payton's death sentence only to have those rulings vacated by the high court.  The third time was the charm.

One of the 15 has an Atkins retardation claim pending.  (Prosecutors tell me its meritless.)  The other 14, more than the total number California has executed from the restoration of capital punishment to the present, are being held up solely by the lethal injection litigation.

We could start setting dates tomorrow if Jerry Brown and his prison chief, Matthew Cate, would get off their duffs and do their jobs.  The single-drug method is well established, and the federal court has ruled twice that California can proceed with it.  The Legislature has granted CDCR a special authority to adopt temporary regulations, without jumping through the Administrative Procedure Act hoops, simply by declaring an "operational need."

Brown promised in his gubernatorial campaign he would enforce the death penalty.  Get off your duff and keep your promise, Mr. Brown.

The Supreme Court opinion in Payton's case from last round is here.  I have copied the facts of the crime from that opinion after the jump.

Bob Egelko has this story in the San Francisco Chronicle on California's death penalty repeal initiative.  What's wrong with the story?  The hardest part of writing this post was deciding where to begin.

Let's start with the description of the federal lethal injection litigation.  "Since the injunction [in 2006], state officials have appealed every order by federal and state judges...."  The implication is that the state has been fighting hard to carry out the death penalty, and inherent delays have prevented it.  There is just one problem.

The statement that the state has appealed every order of federal judges is a patent falsehood.

Judge Fogel's "conditional denial" of a preliminary injunction was appealed by Morales, not the state.  When it ripened into a grant, the state did not appeal.  In 2010, after the Supreme Court had decided Baze v. Rees and after the CDCR had promulgated the protocol as a regulation under the Administrative Procedure Act, murderer Albert Greenwood Brown intervened and got an injunction that permitted the state to proceed only by modifying its protocol to a single drug.  That order was appealed by Brown, not the state.  On remand from the Ninth Circuit, Judge Fogel issued an unconditional stay, and the state did not appeal.  On December 10, 2010, Judge Fogel denied the state's motion to dismiss, and the state did not appeal.  On January 19, 2011, murderers Mitchell Sims and Stevie Fields intervened and got a stay, and the state did not appeal.  Three weeks later, the Ninth Circuit rejected a challenge to Arizona's substantially equal three-drug protocol, and the state did nothing.

How many orders by federal judges has the state actually appealed in this matter?  Zero.  I have uploaded the docket.  Read it for yourself.  There are two notices of appeal, both by inmates.  Although this is not the most important point in the story, it is the one with the clearest and most objective true and false.  The statement is just flat false, and it is very easy to check.

Under the Apprendi rule, a finding of fact that increases the maximum punishment a defendant may receive must be found by a jury, unless the defendant waives jury trial, and must be proved beyond a reasonable doubt.

How about a fact that increases the minimum punishment a defendant must receive?  The Supreme Court previously said no, but today it took up the case of Alleyne v. United States, No. 11-9935, to reconsider.  In its unpublished memorandum in this case, the Fourth Circuit held:

Mass. Man Pleads to Killing His Family, Gets LWOP: The Associated Press headlines Thomas Mortimer IV pleaded guilty to killing his wife, mother-in-law, and two young children in Massachusetts in 2010. The killings occurred during an argument over a bounced check Mortimer sent to the IRS. Mortimer stabbed his wife more than a dozen times and broke her nose with a frying pan. His mother-in-law was found dead near the door apparently attempting to flee the scene. Mortimer also killed his two-year-old daughter and four-year-old son; slitting their throats.  Mortimer fled leaving behind a written confession. He was caught the next day. Mortimer pleaded guilty to aggravated first-degree murder and was sentenced to life without parole.

TX DA Will Seek Death Penalty: Jennifer Emily of the Dallas Morning News has this article on how Dallas County District Attorney Craig Watkins will be seeking the death penalty for Franklin Davis for the rape and murder of a 16-year-old girl. Davis was facing charges on four counts of sexual assault, when he allegedly abducted the 16-year-old victim from school and murdered her to prevent her testimony. The girl's body was found, shot and strangled. Davis was charged in the murder Wednesday. 

2 Arrested in Border Patrol Death: E. Eduardo Castillo and Jacques Billeaud of the Associated Press report federal police arrested two men Thursday suspected in the shooting death of a U.S. Border Patrol agent in Arizona according to Mexican law enforcement. No other details have been disclosed at this time. This is an update of this earlier news scan.   

During the Warren Court era, Judge Henry Friendly noted, the US Supreme Court expanded the Bill of Rights into a detailed code of criminal procedure, to which a new chapter is added every year.  Not surprisingly, the same issue in a criminal trial may be the subject of a constitutional claim and a provision of the actual code of criminal procedure enacted by the legislature.  Does a state court have to separately address the federal constitutional question when it believes its state law covers the ground?

That is the question in the first criminal case to be heard in the US Supreme Court this term, Johnson v. Williams, to be argued Wednesday.  The case relates to dismissing jurors who are unwilling to deliberate.  That issue is governed by section 1089 of California Penal Code, and of course it also has overtones of the Sixth Amendment right to jury trial.

The California Supreme Court established the rules for dismissing a juror in these circumstances in People v. Cleveland, 25 Cal.4th 466 (2001).  That case contains no separate Sixth Amendment analysis, but it relies on cases that discuss the Sixth Amendment aspects of the problem.  The court considers the views of some of the federal courts of appeals, notes it is not bound by them, and sets a somewhat different standard.  There can be little doubt, taking the opinion as a whole, that the California Supreme Court believes that the Cleveland standard is compatible with the Sixth Amendment, even though some of the lower federal courts might disagree.  The Cleveland standard is not contrary to or an unreasonable application of any Supreme Court precedents, which is the standard set by Congress for a lower federal court to overturn a state judgment on the merits.

In the present case, the California Court of Appeal applied Cleveland and affirmed the conviction.  Does the court also have to say "and we also reject the Sixth Amendment claim" before the "deference" standard of 28 U.S.C. §2254(d) applies on federal habeas?  Judge Reinhardt of the Ninth Circuit, in his never ending quest to evade the strictures of that section, said the lack of such a statement authorized the Ninth Circuit to review the Sixth Amendment claim de novo.

We thought we had settled this in Early v. Packer, 537 U.S. 3, 8 (2002).  We will see what kind of reception the Ninth Circuit's opinion gets in oral argument tomorrow.

Update:  After-argument post is here.

In the September 25 Los Angeles Daily Journal, Paula Mitchell, the anti-death-penalty crusading law clerk to Ninth Circuit Judge Arthur Alarcon, has a remarkable letter to the editor.  The LADJ is not available online to nonsubscribers, but I have uploaded a scan of the letter here.  (Pretty sure that's "fair use.")

The letter has two parts, one responding to a Sept. 14 article about Judge Alarcon's and Ms. Mitchell's follow-up law review article, and the second responding to a Sept. 17 op-ed by James Bozajian opposing Proposition 34.

In the first two paragraphs, Ms. Mitchell takes umbrage at the implication that she (a federal law clerk) is engaged in a partisan effort arguing on one side of the initiative controversy.  In the remainder of the letter, she makes a partisan argument on one side of the initiative controversy.

Today is the first Monday in October, the official opening of the US Supreme Court's term.  The court issued an orders list from last Monday's "long conference."  As expected, no new cases are taken up for decision.  The certiorari petitions granted from the long conference were announced last week.  (See here and here.)  There are a few cases sent back for reconsideration in light of precedents set last term. 

There is an odd case of a litigant who sues the court and the justices themselves.  Justice Kagan, as the only justice not recused, renders the decision that the court lacks a quorum and ditches the case.  (Not one of your more difficult decisions.)

Pennsylvania did not succeed in getting review of the decision of their state supreme court that George Banks, whose death sentence was reinstated by the US Supreme Court in 2004, is presently too crazy to execute.  No. 11-952.  CJLF brief in the prior case is here.

Serial murderer Alfredo Prieto, sentenced to death in both California and Virginia, did not get review of the affirmance of his direct appeal in Virginia.  No. 11-10967.

The court turned down the habeas case of Gitmo detainee Abdul-Rahman Suleiman, No. 12-137.  DC Circuit opinion is here: "The only issue we need examine then is whether the district court erred in concluding that Suleiman was part of the Taliban."  Nope.

As "federalist" notes in the comments, the court has evidently relisted the Balentine case, No. 12-5906, previously noted in this post.

As explained in the intro post, this is a first in a series of posts examining errors in the Alarcon and Mitchell (A&M) articles in Loyola LA Law Review on the California death penalty.

I will begin with A&M's use of the case of David Murtishaw, who died of a heart attack 32 years after he was first sentenced to death.  A&M claim that this is an example of the wasteful system.  Actually, this case is an example of courts wrongly overturning valid judgments.  Further, the case illustrates how changes subsequently made would have prevented what happened in that case.

A&M do not even mention what Murtishaw did.  Writers whose goal is to convince readers of an anti-death-penalty position generally omit or soft-pedal the facts of the crime.  Given that the bottom line here is justice, however, the facts are essential, and we should always begin with the crime.

Defendant and his brother-in-law went shooting in the desert.  They came across four USC students shooting a film for a cinema class.  Murtishaw shot them all.  Two died at the scene.  One died two days later.  The fourth survived and testified.  There is no doubt whatever in this case that Murtishaw callously murdered three people.  This is an exemplar of the kind of crime that warrants the death penalty.

Prop. 36 Forum: CJLF President Michael Rushford took part in a KQED Radio forum today in opposition to California Proposition 36. He was joined by Prop 36 proponents San Francisco District Attorney George Gascon, and Stanford Law School lecturer Mike Romano, and fellow opponent Marin County Sheriff Bob Doyle. Prop. 36 would weaken the state's Three Strikes sentencing law by making habitual criminals whose third conviction is for a non-violent, non-serious felony ineligible for a third strike sentence of 25-years-to-life. If passed the measure would eliminate the discretion of the District Attorney and trial judge to determine if a convicted felon with two priors for violent or serious crimes is enough of a threat to public safety to justify the third strike sentence.  The measure would authorize the re-sentencing and the likely release of over 3,000 of CA's 8,800 third strike felons. The link to the audio is here. The current CJLF Advisory which reviews Prop. 36 is here.

Jury Recommends Death for CA Arsonist: The Associated Press headlines report that a jury recommended the death sentence for California arsonist Rickie Lee Fowler Friday. Fowler was convicted of arson and five counts of first-degree murder in August. The fire Fowler set burned more than 91,000 acres and 1,000 buildings over nine days in 2003. Fowler was serving a sentence for burglary when charged, and was sentenced to three 25 to life terms for sodomizing an inmate while awaiting trial for the fire. A judge will decide on the jury sentencing recommendation in an upcoming hearing.

CA Death Row Inmates Have Taken More Than 1000 Lives: Pacovilla Corrections Blog has this  response to claims that justice would be served by passage of Proposition 34, which would abolish the death penalty and make life without parole the sentence for aggravated murder.  The piece notes that the 729 killers on death row were convicted of murdering at least 1279 people. Of those, at least 230 were children, 75 were between the ages of 18-20, and 82 were older than 65. At least 211 of their victims were raped, 319 were robbed, 66 were executed, and 47 were tortured. The total includes 43 law enforcement officers and 7 security guards. 11 of the murderers were sentenced to death for killing fellow inmates. 14 death row inmates in California are responsible for about 300 additional murders they were not sentenced to death for.

Phil. Killer Granted Stay of Execution, New Penalty Phase: Sheila Steffen of CNN headlines reports that condemned  murderer Terrance Williams was granted a stay of execution and new penalty trial by Philadelphia Judge M. Teresa Sarmina Friday. Williams had been convicted of beating his victim to death with a tire iron, and was scheduled to be executed October 3. The killing was considered part of a robbery, but recently claims were made that the victim had sexually abused Williams beginning at six years old. Judge Sarmina found Williams' verdict may have been different had the abuse allegations not been withheld from the trial.

NY Association Fights Against Parole for Cop Killers: Mary Murphy of Pix 11 News reports the families of murderer police officers are forced to relive the pain of losing their loved ones biannually when preparing victim impact statements for the New York Parole Board. The Patrolman's Benevolent Association (PBA) has been working to ensure cop killers do not receive parole. A new link on the PBA's official website titled "Keep Cop Killers in Jail" lists inmates still serving time for murdering an officer who were convicted between 1968 and the present has generated more than 200,000 letters to the NY State Division of Parole.

OH Man Pleads Not Guilty in Triple Murder: The Associated Press reports Curtis Clinton has pleaded not guilty of strangling an Ohio woman and her two children Thursday. Clinton is charged with killing a mother and her 3-year-old and 18-month-old children in their home. Clinton has previously plead guilty to the strangling death of another Ohio woman and served 13 years in prison for involuntary manslaughter. Clinton could face the death penalty if convicted.

An intermediate appellate court in Florida has held that Miller v. Alabama, forbidding automatic life-without-parole sentences for under-18 murderers, is not retroactive to cases on collateral review in that state.  (Hat tip: SL&P)  The case is Geter v. State, No. 3D12-1736, Third District Court of Appeal.

Florida still uses the old Linkletter/Stovall approach to retroactivity, created by the U.S. Supreme Court in the 1960s but abandoned by it in the 1980s in Griffith v. Kentucky and Teague v. Lane.  (See our recent brief in Chaidez v. United States for some of the history and citations.)  States can follow this old approach if they want to under Danforth v. Minnesota.  (They shouldn't, IMHO.)  Those that do not generally follow Teague.  Because Linkletter/Stovall is more favorable to the defendant than Teague for collateral review, this case should be useful even in the latter states.

(For cases that were still on direct review when Miller was decided, the Griffith rule requires retroactive application in all states.)

Must have been an interesting oral argument:  the murderer, now 28, not a lawyer, against the Attorney General, not a deputy.  The facts of the case are after the jump.

Mass. to Appeal Murderer's Sex Reassignment: The Associated Press reports Massachusetts prison officials announced Wednesday the state will appeal U.S. District Judge Mark Wolf's decision to grant convicted murderer Michelle Kosilek's request for sex reassignment surgery. Koselik, named Robert when convicted of murdering his wife in 1990, has been receiving hormone treatment and lives in an all male prison, as a woman. Prison officials argue that allowing the surgery would put Koselik at risk for sexual assaults from other inmates. Many insurance companies consider the surgery elective; transgender inmates are typically treated with hormone treatments and psychotherapy. The state Department of Corrections argues denying the request would not violate Koselik's Eighth Amendment rights as Koselik is already receiving adequate treatment. The surgery would cost taxpayers up to $20,000. 

High-Risk Sex Offender Attacked Victim Twice: Janon Fisher of the US Daily News reports Jonathan Stewart allegedly attacked and raped his victim twice on Saturday in New York according to prosecutors. Stewart, a high-risk level 3 sex offender, chased his victim down after she escaped his first attack and violently raped her again. The victim managed to escape a second time and fled naked; Stewart remained in pursuit until he saw her talking with police. Officers found a shirtless Stewart shortly after. Stewart had been previously convicted of robbing and sexually assaulting two women with a knife in 2004. He was arraigned Sunday.

Daughter, Sister of Murder Victims Opposes Killer's Parole: Larry Welborn of the Orange County Register reports that Lynette Duncan, the daughter/sister of two victims of murderer Brett Thomas, is traveling from the East coast to a correctional facility in San Diego to argue against his parole. Thomas and his accomplice Mark Titch shot Duncan's father to death with a shotgun in front of their home. One of the pellets hit her 18-year-old sister in the heart, killing her.  The pair also shot Duncan's mother, who survived the attack. Five days prior, Thomas and Titch gunned down a drive-in dairy employee during a robbery attempt. The nude body of the their first victim, Laura Anne Stoughton, 20, was found Jan. 21, 1977, on a rocky hill in East Orange, her hands clutching a crucifix. Both men pleaded guilty to taking four lives in California over the course of nine days in 1977 and were sentenced to life in prison. Fortunately for both killers, California did not have death penalty in January of 1977.  It was reinstated by the Legislature, over Governor Jerry Brown's veto, in August of that year, too late to apply to them.  

Our friends on the other side of the aisle love to say that the United States is the only Western democracy that still has the death penalty.  Any conservative who so limited his survey of other countries on any topic would be swiftly denounced as Eurocentric and racist for excluding the views non-Western cultures and persons of color.  It's okay for the left, though.  They have immunity, you see.

Tsuyoshi Tamura reports for the Asahi Shimbun:

A faith healer who beat six followers to death was hanged on Sept. 27, making her only the fourth woman to be executed in Japan since 1950, the Justice Ministry said.

Sachiko Eto, 65, was one of two convicted murderers put to death, taking to seven the number of executions carried out this year.

Eto's punishment was carried out at the Sendai Branch Detention House in northeastern Japan.

The slayings occurred during "exorcism" rituals in Sukagawa, Fukushima Prefecture, in 1994 and 1995. Two of the victims were male. Eto ordered the fatal beatings, which involved blows with heavy wooden sticks used for Taiko drumming, and took part in them with her followers.

Our opponents like to say that retaining the death penalty puts us in the same category as Iran, etc.  That is preposterous.  If you are going to classify countries by their criminal justice systems, the first-level categorization has to be on fundamental matters of due process of law.  Having or not having the death penalty comes considerably lower on the classification tree.

So having due process of law, not punishing people for their religion or speech, and having the death penalty puts us in the same category as Japan.  Given a choice between being categorized with Japan or, say, Italy, I'd take Japan any day.

South Africa is a country with a huge crime problem.  Today, the government released its 2012 Victims of Crime Survey.  An interesting question asked the households which crimes they feared most, with multiple responses permitted.  Housebreaking/burglary was first, followed by home robbery, street robbery, and murder.  See also this story on iafrica.com.

An persistent error of the soft-on-crime crowd is to underestimate the severity of burglary, classifying it as "only a property crime."  That is because they see things from the criminal's viewpoint.  A criminal who break into a home and steals the television wants property and has not applied violence to any person, so it's a property crime.

From the victim's viewpoint, burglary is crime of psychological violence.  It is an invasion of our inner sanctum.  Some people can't live in their homes any more and have to move.  Replacing the television and fixing the door are trivial in comparison to the psychological injury.

In the previous attempt to amend California's Three Strikes law by initiative, the dummies proposed to take residential burglary off the "serious" felony list.  Big mistake.  I was on a panel at a Three Strikes symposium a while back and Tom Hayden, of all people, denounced what a mistake undervaluing burglary was.  I was pleasantly surprised.

Colo. Shooter to Submit DNA and Palm Print: The Associated Press reports Dark Knight shooter James Holmes was ordered Tuesday to submit a palm print and DNA sample to authorities by Arapahoe County Judge William B. Sylvester in Colorado. The print will be compared with a print found on the inside of the Aurora theater exit door Holmes allegedly entered through before opening fire on movie-goers, killing 12 and wounding 58. The DNA sample will be compared to other evidence collected at the scene.

DNA Links Dead US Prisoner to BC Kidnapping, Killing: Dominique Debucquoy-Dodley of CNN headlines reports that authorities announced Tuesday that Bobby Jack Fowler was linked by DNA evidence to the 1974 kidnapping and murder of a 16-year-old girl in British Columbia.  Fowler had died in 2006 while serving a sentence in an Oregon prison for a violent attack on a woman in 1995. Fowler is suspected of the murders of two teenage girls in Oregon from 1995. He is also a person of interest in a 1992 double homicide in Oregon and in nine of the 18 open cases of missing girls in Canada from 1969-1995.

Newspapers Sue to view PA Execution:  Two Pennsylvania newspapers have filed suit to force state corrections to allow them to view the entire execution of murderer Terrance Williams next week.  Amy Worden of the Philadelphia Inquirer reports that her paper and the Patriot News in Harrisburg have asked a federal judge to keep the curtain open so that reporters can watch the state's first execution in 13 years, arguing that by limiting what witnesses see to only the administration of the the lethal drugs, the state is violating their constitutional rights.  Williams, an habitual criminal, received the death sentence for murdering Amos Norwood in 1984.  Patriot News writer Donald Gilliland reports that a few months earlier, prior to his 18th birthday, Williams murdered 50-year-old Herbert Hamilton.  In both cases Williams was engaged in a sexual relationship with his victims.   

Sextuple murderer Robert Wayne Harris was executed in Texas yesterday.  See AP story here; prior post here.

How did Texas's single-drug method, adopted in July, work?  Michael Graczyk reports in the AP story, "He snored briefly as the lethal dose of pentobarbital began, then all breathing stopped."

California's three-drug method remains mired in litigation because of the risk of extreme pain when the second and third drugs are injected, if the first has not been administered properly.  The single-drug method carries a risk of snoring.

Get off your duff, Jerry.

As we have noted here many times, polls on the death penalty vary dramatically depending on how you ask the question.  (See here and here.)  The generic question Gallup has been asking since the 30s has generally shown about 2/3 of the people in favor of the death penalty for the last couple decades.  The worst way to ask the question, among those commonly used by pollsters, is to force the respondent to choose one penalty for all murders, or perhaps all first-degree murders, and offer the choice of death or life in prison.  That question has generally produced a roughly even split.

If that were actually the question, I would say life in prison myself, as strong an advocate of the death penalty as I am.  But of course it is not.  The actual public policy question is what penalty to impose on the worst murderers.

Public Policy Institute of California has a poll out asking the question the worst way: "Which of the following statements do you agree with more? The penalty for first-degree murder should be the death penalty; or the penalty for first degree murder should be life imprisonment with absolutely no possibility of parole."  Note "the penalty," definite article and singular noun.  Death for worst and life for the rest is not offered as an option.

They get 42% for death and 50% for LWOP among likely voters.  That's a bit of a shift from the usual.  They count 8% for "don't know."  I wonder how many actually said, "That's not the question, dummy."

Remember how death row "exonerees," sometimes mere hours from execution, have made the rounds on the abolitionist circuit, and sometimes before law school audiences and Congressional committees, to alert us to how dangerous the death penalty is?  That once an innocent prisoner is killed, there's no going back?

After his release [when his 1974 conviction was overturned because of false testimony from a government witness], Brown took the name Shabaka and frequently spoke out against the injustice and finality of the death penalty, including to a U.S. House Judiciary subcommittee in 1993.

Richard Blumenthal, now a U.S. senator from Connecticut, represented Brown on appeal as a volunteer attorney for the NAACP Legal Defense Fund. He was in private practice at the time.

Blumenthal said in 1987 that the Brown case changed his view of the death penalty "because it provided such a dramatic illustration of how the system could be fallible and cause the death of an innocent person."