Results matching “first”

Ummmmm, well, maybe we do have some money, after all.  But we socked it away to spend on trees.

California's park system secretly stashed away $54 million even though it was cutting services and threatening to close parks, officials announced Friday, and the department's director resigned as the hidden surplus was revealed.

First Single Drug Execution in Georgia Today: Rhonda Cook of the Atlanta Journal-Constitution reports Warren Hill is scheduled to be executed in Georgia Monday. He will be the first inmate put to death in Georgia using a single drug, pentobarbital. Hill was sentenced to death for using a nail-studded board to beat to death a fellow inmate in 1990. At the time, he was incarcerated for murdering his 18-year-old girlfriend. Update:  The Georgia Supreme Court has granted a stay.  Bill Rankin at AJ-C reports the stay is based on an Administrative Procedure Act claim.

Oregon Death Row Inmate Back in Court Tuesday to Fight Reprieve: Peter Wong of the Statesman Journal reports an Oregon judge will hear arguments Tuesday in twice-convicted murderer Gary Haugen's civil suit against Oregon Governor John Kitzhaber, who issued a reprieve blocking Haugen's death warrant in November. Haugen had waived his appeals. Kitzhaber said he would not allow any executions to be carried out as long as he was governor.

Aurora Shooting Suspect Makes First Court Appearance: Nicholas Riccardi and P. Solomon Banda of the Associated Press report 24-year-old James Holmes, who is accused of going on a deadly shooting rampage at a Colorado movie theater on Friday, made his first appearance in court on Monday. The shooting left 12 people dead and another 58 injured. Holmes, who is being held in isolation at the jail, did not speak at the hearing. Authorities have said that he is refusing to cooperate. Prosecutor Carol Chambers said after the hearing that a decision to pursue the death penalty will be made in consultation with victims' families. Holmes is expected to be officially charged next Monday.

10th Year of Amber Alert Program in CA: Bill Lindelof of The Sacramento Bee reports July 31 of this year will mark the tenth year since the Amber Alert program was implemented statewide in California. According to the California Highway patrol, 234 abducted children have been safely recovered since the statewide adoption of the program.

The NCAA has announced sanctions on Penn State that are unprecedented in their harshness:  fining the school $60 million, banning it from bowl games for four years, and vacating all its wins from 1998 to 2012.  The Wall Street Journal has the story.

The massacre in Aurora, like other such incidents, seems to bring about an unquenchable desire to talk. It's particularly bad among media characters and politicians.  Almost all the talk is rote, platitudinous blather, and I wish it would stop.

Massachusetts House Passes Three-Strikes Bill: Dan Ring of The Republican reports the Massachusetts House of Representatives on Wednesday voted 139-14 to approve a habitual offender initiative that includes 40 crimes. The bill eliminates parole for three-time convicted violent offenders, reduces mandatory minimum sentences for 16 drug violations, and reduces the size of a "school zone" for possessing an illegal drug with intent to distribute. For a crime to qualify as a "strike," felons would have had to be sentenced to at least three years in state prison for that offense. The bill now goes to the state Senate.

Second Judge Rejects Wisconsin Voter ID Law: Patrick Marley of the Journal Sentinel reports a second judge on Tuesday ruled Wisconsin's voter ID law unconstitutional. Dane County Circuit Judge David Flanagan had issued a temporary injunction blocking the law in March, and made that injunction permanent in his decision Tuesday. Dane County Judge Richard Niess also permanently blocked the law in March. The state Supreme Court declined to take up the cases earlier this year, but is expected to eventually do so. Meanwhile in the state of Washington, residents will soon be able to register to vote via Facebook. CNN has this story.

New Jersey Law Mandates Drug Treatment Instead of Prison: NJToday.net reports New Jersey Governor Chris Christie signed into law a bill that will impose mandatory sentencing to New Jersey's drug court program instead of prison for some nonviolent offenders. The mandatory drug court for nonviolent offenders will be phased in over a 5-year period. Participation in the drug court program is currently voluntary. Defendants will undergo an assessment to determine whether they are drug dependent and would benefit from the program and treatment.

Racial Profiling Trial Begins for Arpaio: Jacques Billeaud of the Associated Press reports on Thursday, the trial in which Arizona Sheriff Joe Arpaio and his department are accused of racially profiling Hispanics during patrols began in a federal court in Phoenix. The group of Latinos who filed the civil lawsuit against Arpaio and his department are not seeking monetary damages, but a declaration that Arpaio's office partakes in racial profiling and an order to require the department to make changes. The Department of Justice lawsuit against Arpaio's office includes many of the same racial profiling allegations, but goes further in its accusations. The trial date has not yet been set in that case, but a DOJ lawyer for the agency's civil rights case watched the trial Thursday.

Chief Justice Roberts has issued a stay in the case of Maryland v. King, involving the collection of DNA samples from persons arrested but not yet convicted of burglary or crimes of violence.  After Alonzo King was arrested for assault (for which he was eventually convicted), a DNA sample was taken, and it produced a "cold hit" on an unsolved rape.  From that hit, he was indicted and a search warrant issued, producing another sample which also matched.  He was convicted of first-degree rape and sentence to life in prison.  The Maryland high court decided 5-2 that the statute violates the Fourth Amendment as applied in this case (to an arrestee rather than a convict), that the DNA evidence is "fruit of the poisonous tree" and must be suppressed, and the rape conviction must be reversed.  Curiously, neither the majority nor the dissent discusses the good faith exception either for statutes or warrants, both of which would seem to apply here.

AP has this story.

The US Supreme Court has denied certiorari and a stay of execution in two petitions by Texas murderer Yokamon Hearn.  The orders are here and here.  No dissent is noted.

USCA5 summarizes the crime in their opinion of January 30 this year:  "Hearn and three accomplices abducted Joseph Franklin Meziere from a self-service car wash in March 1998. They took Meziere's car and drove him to a remote location where Hearn killed Meziere by shooting him several times in the head at close range."

Hearn's lawyers claim he is retarded and therefore ineligible for execution under Atkins v. Virginia, but they have a small problem.  Hearn's various IQ tests have come in at 74, 82, 88, and 93.  The threshold for retardation is 70.

The margin of error of the test is (theoretically at least) 5, so a person with a score of 74 has a very small chance of having an actual IQ of 70 or below, but a 74 score alone establishes a strong probability that he is not retarded.  The range of scores in this case illustrate that the testing and scoring actually have a considerably broader range of error than the theoretical 5.  One source of error on a performance test such as this is that a person can score low simply by not trying hard.  High scores do not suffer from that problem.  You can fake low, but you can't fake high.

The Texas CCA rejected Hearn's lawyers' creative attempts to get around this clear indication he is not retarded.  Then they run to federal court seeking habeas relief.  Their argument that the state court's decision is "unreasonable," the standard set by Congress before the habeas court can interfere, is frivolous.

AP has this story, noting that Hearn has not challenged the state's switch to the one-drug method.

Update:  Corrie MacLaggan of Reuters has this story, quoting a TexDCJ spokesman saying that the single-drug execution "was carried out without incident."

Execution Date Set for SD Man Who Raped, Killed 9-Year-Old Girl: The Associated Press reports a judge has set an execution date for South Dakota death row inmate Donald Moeller for sometime between October 28 and November 3. The exact date and time will be determined by prison officials.  "Moeller was convicted in 1997 for the rape and killing of Becky O'Connell.  'It's been long and drawn out and uncalled for, and now he says he's ready?' the girl's mother, Tina Curl, said. 'Huh. Why didn't he say he was ready 22 years ago?'"

CA Gov Signs Bill to Let Death Row Inmate Help in Victim Search: The Associated Press reports the governor's office announced Tuesday that California Governor Jerry Brown signed Assembly Bill 2357, giving the secretary of the California Department of Corrections and Rehabilitation the authority to allow death row inmates to be taken off death row to help investigators search for the remains of victims. The bill was created to be applicable specifically to the case of serial killer Wesley Shermantine. The provisions in the bill are valid until January 1.

Trial Begins Over Nebraska's New Sex Offender Laws: Lori Pilger of the Lincoln Journal Star reports on Monday, the trial began over changes to Nebraska's sex offender laws passed by lawmakers in 2009. Some three dozen sex offenders who would be affected by the changes had sued the state, saying the new laws were unconstitutional and violated their First Amendment rights. Under the new laws, sex offenders would have to disclose to law enforcement online names they use and websites where they've posted comments. They would also have to consent to searches of their computers and software. Sex offenders would also be banned from using social networking sites, instant messaging services, or visiting chat rooms that can be accessed by minors. The trial is expected to last two weeks.

Georgia Switches to Single Drug Execution: Rhonda Cook and Bill Rankin of the Atlanta Journal Constitution report on Tuesday, Georgia's Corrections Commissioner Brian Owens said the state will switch to using a single lethal injection drug, pentobarbital, instead of three for executions. Owens rescheduled Wednesday's execution of Warren Hill until Monday. "The department has been using pentobarbital in its execution process and based upon the experience of other states and competent medical testimony the drug has proven to be effective," said a statement released by the state's Department of Corrections.

Illinois Governor Signs 3 Crime Victim Bills: Michelle Manchir of the Chicago Tribune reports Illinois Governor Pat Quinn has signed three new laws that will increase assistance from the state to victims of crime and their families. Law enforcement officials will be required to provide a copy of victims rights to a victim of any crime within 48 hours of their first contact. These rights must also be posted outside all criminal courtrooms in the state. The bills also streamline contributions to a state fund that provides assistance to crime victims, and increases the maximum awards for services such as funeral or burials.

CA Bill to Remove Criminals from Classrooms Dies: Larry Sand, a retired teacher and current president of the California Teachers Empowerment Network, has this piece in City Journal about California Senate Bill 1530, which failed to pass out of the Assembly Education Committee. The California Teachers Association strongly opposed the bill, which would have added language allowing school boards to suspend an employee for "serious or egregious unprofessional conduct." The Los Angeles Unified School District asked for changes to be made to existing law to speed up the process of removing certain teachers after the arrest earlier this year of longtime elementary school teacher Mark Berndt, who was arrested on 23 counts of committing lewd acts on children between the ages of seven and ten. The bill would have streamlined the process by curtailing the number of steps required in the process of firing a criminal teacher. "In a state where pedophiles aren't allowed to live near a school, these legislators don't seem to have a problem with them teaching in one," Sand writes.

Florida Allowed Access to Fed Database for Voter Purge: Charles Babington of the Associated Press reports the Department of Homeland Security has agreed to let the state of Florida have access to the federal SAVE (Systematic Alien Verification for Entitlements) database, a list of resident noncitizens maintained by the department. The decision could affect other states such as Colorado that have asked for similar access to the database. Florida has agreed to only challenge voters if the state provides a "unique identifier," such as an "alien number," which are usually assigned to foreigners living in the U.S. with visas or other permits such as green cards.

San Francisco Doing Realignment "Right": Demian Bulwa of the San Francisco Chronicle reports San Francisco is not facing jail overcrowding issues because of efforts made before realignment was enacted to find alternatives to incarceration. San Francisco has even proposed its jails now take custody of inmates two months before their prison discharge date to help them obtain "the things they are going to need to be successful," said acting Sheriff Vicki Hennessy. Barry Krisberg, a criminologist at UC Berkeley's law school, said San Francisco is "showing how to make realignment work... San Francisco is doing what people who conceptualized realignment envisioned - a fundamental shift in the way California handles nonviolent, nonserious offenders." An analysis of the "nonviolent, nonserious" ex-prison inmates now supervised by probation officers instead of parole agents in San Francisco found, as of the end of June, that the average convict had eight previous felonies, and over half previously had a violent, sexual, or weapons-related offense. "The population is high-risk with high needs," said Wendy Still, the adult probation chief. John Loftus, a San Francisco police commander, said burglaries increased 16 percent and auto boosting more than 12 percent in the first half of 2012.

The Eleventh Circuit summarized the facts of the Warren Hill case:

In 1990, while Hill was serving a life sentence for the murder of his girlfriend, he murdered another person in prison. Using a nail-studded board, Hill bludgeoned a fellow inmate to death in his bed. As his victim slept, "Hill removed a two-by-six board that served as a sink leg in the prison bathroom and forcefully beat the victim numerous times with the board about the head and chest as onlooking prisoners pleaded with him to stop." Hill III, 587 S.E.2d at 618. Hill "mocked the victim as he beat him." Id. Even locked up in jail for one murder, Hill continued to kill.

Hill's advocates now claim he is mentally retarded.  But a funny thing happened on the way to his trial 21 years ago.  Again from the USCA11 opinion:

Although Georgia already prohibited executing mentally retarded defendants at the time of Hill's trial, direct appeal, and initial state habeas petition, Hill did not claim he was mentally retarded until five years after his 1991 trial. In 1996, Hill amended his state habeas petition to allege mental retardation for the first time, and he later claimed that Georgia's reasonable doubt standard of proof in O.C.G.A. §17-7-131 violated the Eighth Amendment.

Mental retardation is, of course, a matter of degree rather than a clean yes/no question.  The yes/no line drawn by Atkins is artificial, subjective, and fuzzy, so it is possible to disagree in any case close to the line.  The Georgia statute hailed as a great advance by the Politically Correct types when it was enacted is now being assailed by them because it placed the burden of proof to qualify for this categorical exclusion on the defendant, beyond a reasonable doubt.  Even without the categorical exclusion, of course, the defendant can always argue any degree of impairment as a circumstance in mitigation.

Today, the Georgia Board of Pardons and Paroles issued a short press release saying they denied clemency.  As usual, they did not state why.  That is a regrettable practice.  It would go a long way toward improving public confidence in the system if they said something like, "On our independent review of the evidence, we do not believe Hill is retarded by any standard."

Oh, BTW, the correct term is "retarded," not "disabled."  The term "disabled" embraces a wide variety of mental conditions, and we are only talking about one here.  You could say "developmentally disabled," but the word "disabled" alone doesn't do the job.

FBI Says No Evidence Zimmerman is a Racist: Jeff Weiner and Rene Stutzman of the Orland Sentinel report records released Thursday by the FBI show after federal civil-rights investigators interviewed dozens of people who know George Zimmerman, no one said he was a racist or had ever shown racial bias. The police detective who interviewed Zimmerman on the night of the shooting, Chris Serino, said Zimmerman has a "little hero complex" but is not a racist. The FBI became involved in the case after the Department of Justice launched a civil-rights investigation into the shooting of Trayvon Martin. Zimmerman has been charged with second-degree murder, but says he shot Trayvon in self-defense.

Spike in Burglaries in Kern County: KGET 17 News reports there has been a spike in break-ins and burglaries in Kern County, and Sheriff's deputies say it is expected to get worse. The county's probation department says the increase may be related to the number of inmates being released from jail early. "We have conversations with people we arrest who say now is the time to commit crime because the sentencing is not significant," said Lt. Laura Lopez, Kern County Sheriff's Department. "That is a problem. Folks don't see the penalties being that significant. And, I don't have a quick fix for that," said Lt. Lopez. "There is no room in the jail to hold everybody. They're holding the most serious offenders. The ones that are actually serving time do very little time in jail," said David Kuge, Chief Probation Officer. "If they take their full sentence here, they know they're only going to serve several months and get out. Three or four months in custody is very little time as far as they're concerned," Kuge explained. Residential burglaries for the first six month of 2012, compared to the first six months of 2011, are up 32 percent in Kern County. Burglaries at businesses have increase 8 percent. In the city of Bakersfield, burglaries have gone up 12 percent.

Massachusetts Court Rules on Indigent Defendants: Denise Lavoie of the Associated Press reports the Massachusetts Supreme Judicial Court, in a series of rulings on Friday, tightened rules regarding when defendants are eligible for court-appointed lawyers. The court ruled that the burden of proof is on the defendant to prove indigence. The court also ruled that retirement fund accounts may be considered when determining whether a defendant is indigent, as well as the disposable net monthly income of a defendant's spouse or significant other or the defendant's parents if they live at the same residence and significantly contribute to household expenses.

Oklahoma Acquires 20 Additional Doses of Lethal Injection Drug: Megan Rolland of NewsOK reports Oklahoma has acquired 20 additional doses of pentobarbital, the first drug administered as part of the state's three-drug lethal injection process. The state previously had one dose remaining. As reported in yesterdays News Scan, an attorney for Oklahoma death row inmate Michael Hooper had filed a lawsuit to halt Hooper's August 14 execution because there was no backup if the dose of pentobarbital failed.

2 Iowa Juvenile LWOP Cases to be Resentenced: Trish Mehaffey of The Gazette reports the Iowa Court of Appeals on Wednesday overturned the life sentences of two inmates convicted of first-degree murder at age 17, after the U.S. Supreme Court's ruling last month on mandatory juvenile life without parole sentences. Christine Lockheart and Thomas Bennett will now face resentencing. The District Court will be able to consider mitigating factors in determining sentencing. Lockheart was convicted of stabbing to death a retired bus driver in 1985. Bennett was convicted of shooting a disabled man to death during a robbery in 1998.

Chicago Police Will Only Detain Illegal Immigrants for Serious Crimes: Fran Spielman of the Chicago Sun-Times reports Chicago Major Rahm Emanuel and U.S. Rep. Luis Gutierrez (D-Chicago) on Tuesday unveiled the new so-called "Welcome City" ordinance, which prohibits police from detaining illegal immigrants unless they have been convicted of a serious crime or are wanted on a criminal warrant. "If you're an immigrant and you have no criminal background, I don't want that to be prohibitive from you contacting the police," Emanuel said. "I can't be advocating for the community to work with the Police Department if people are [so] worried about their immigration status that they don't report a crime," he added. Gutierrez said that with illegal immigrants less suspicious of police, it will be tougher on the gangs contributing to Chicago's spike in homicides.

Last year at this time, we were feeling good about the term just completed.  We had racked up major victories settling long-standing and important problems with decisions such as Harrington v. Richter and Cullen v. Pinholster.

This year, about all we can say is, "Well, it could have been worse."  A summary of the criminal and related cases for the term is available here.

Last July, I noted that the right to counsel would be a major theme, with five cases involving defendants complaining about their lawyers.  The defendants were the prevailing parties in four of the five, but in none of the five did the prevailing side get the prize it wanted.

Ohio Governor Commutes Admitted Killer's Death Sentence: Kim Palmer of Reuters reports Ohio Governor John Kasich on Tuesday commuted the death sentence of John Jeffrey Eley to life in prison without the possibility of parole. Eley was convicted for shooting a man to death during a 1986 robbery. He confessed to the killing and was sentenced to death in 1987. He was scheduled to be executed July 26. The Ohio Parole Board voted not to grant clemency for Eley. It is the third time the governor has commuted a death sentence in a little over a year.

Brazil Implements Another Program to Reduce Sentences: The Associated Press reports a program at a prison in Brazil's southeastern Minas Gerais allows inmates to reduce their sentences in exchange for riding stationary bikes, which are hooked up to a battery that generates power to light street lamps in the town at night. For every three eight-hour days of pedaling, participants in the voluntary program get one day taken off their sentences. See our previous post here about federal inmates in Brazil getting reduced sentences through a reading program.

Oklahoma Death Row Inmate Sues State Over Three-Drug Execution: Sean Murphy of the Associated Press reports Oklahoma death row inmate Michael Hooper on Tuesday asked a federal court to halt his execution scheduled for next month because the state has only one dose left of pentobarbital, the first drug used in the state's three-drug lethal injection process. An attorney for Hooper said if the drug fails to render him unconscious, the state has no backup plan. "It's never not worked," said Oklahoma prisons spokesman Jerry Massie. Hooper is scheduled to be executed August 14 for the 1993 killings of his 23-year-old ex-girlfriend, and her two children, ages 5 and 3. He shot each victim twice in the head, and buried their bodies in a shallow grave in a field. "The (Oklahoma Department of Corrections) protocol is outmoded and, compared to the one-drug protocol now employed by four other states in over 20 executions, creates a risk of cruel and unusual punishment which is now unacceptable," Hooper's attorney Jim Drummond wrote in the motion.

Australian Press Considers California Death Penalty Repeal Debate: The Australian Broadcasting Company reports on one of the upcoming decisions Californians will be making at the polls this November - whether or not to abolish the state's death penalty. Sandy Friend, whose 8-year-old son Michael Lyons was sexually assaulted and murdered by California death row inmate Robert Rhodes, says, "They're not just normal criminals. These are very, very evil, sadistic criminals and I feel that the only punishment that is anything of justice for a family like mine and my community is death." Kent Scheidegger, CJLF's legal director, says death penalty opponents are pushing the measure now because of the state's budget crisis, even though the costs of the death penalty are a small fraction of the entire state budget.

CA Supreme Court Clarifies Scope of Restitution: Bob Egelko of the San Francisco Chronicle reports the California Supreme Court ruled unanimously on Monday that under the state's restitution law, the victim of a property crime is entitled to an amount of restitution that will allow them to restore the item to its previous condition. The court said that if the property damaged by a crime can be repaired, the criminal who damaged it must pay the cost, instead of the victim having to find a replacement at a comparable price. The decision came in the case of Leroy Stanley, who in 2009 pounded on a pickup owned by Patricia Short-Lyster while it was parked outside her home, severely denting it and making a rear door inoperable. Stanley appealed the $2,800 repair bill he was ordered to pay, saying the amount of restitution he is ordered to pay should be limited to the value of the property. 

Sheri Qualters has this article in the NLJ (free reg. required):

The U.S. Court of Appeals for the First Circuit has rejected the claims of two researchers seeking to quash subpoenas issued to Boston College by the U.S. government on behalf of British authorities. The United Kingdom wants interview materials of a former Irish Republican Army member as part of its investigation of a kidnapping and murder.

Idaho Updates Execution Policy: The Associated Press reports Idaho state officials and news organizations filed an agreement with Boise's U.S. District Court on Monday on a new policy that will allow witnesses to view the entire execution procedure. Although journalists were allowed for the first time to view the entire procedure at the June 12 execution of Richard Albert Leavitt, the state and news organizations had to agree on the wording of a permanent execution access rule in order for the lawsuit filed by the news organizations to formally come to an end.

San Quentin Prison Spokesman Answers Questions About Scott Peterson: FoxNews.com reports a list of questions about death row inmate Scott Peterson was recently submitted to San Quentin prison by Fox News Channel San Francisco bureau correspondent Claudia Cowan and producer Mike Lundin. The answers were provided by prison spokesman Samuel Robinson. He said Peterson is allowed 5 hours of outdoor recreational activities daily. Since his arrival at San Quentin, Peterson has not had a job assignment and has not taken any classes.

Chicago Mayor Defends Strategy as Homicides Spike: Don Babwin of the Associated Press reports Chicago Mayor Rahm Emanuel and Police Superintendent Garry McCarthy defended their new gang-fighting strategy Monday as Chicago homicides are up nearly 38 percent so far this year from last year. Instead of large, specialized units dropping into crime-ridden areas for a short amount of time, beat officers are now staying in specific areas on the streets. Emanuel also announced on Monday a plan for the city to spend $4 million to board up or tear down vacant buildings where gangs hide out, deal and store drugs, and hide guns.

CA Man Awaiting Sentencing Escaped from Medium-Security Placement: Cathy Kelly of the Santa Cruz Sentinel reports that on Friday, Richard Norman Sasse escaped from the medium-security Rountree Detention Center in Santa Cruz County. Sasse has not yet been sentenced for allegedly robbing a woman last year. Sheriff's Sgt. Steve Carney said Sasse should be considered dangerous. He was placed in Rountree in December, after completing an assessment by jail staff that looks at an inmate's criminal history. Sasse would not qualify as a non-serious, non-violent, or non-sexual offender under realignment, and overcrowding in the county's jail caused by realignment may have influence his placement. Carney said Sasse would "potentially not" have been placed at Rountree if it were not for the stress on the overcrowded maximum-security county jail. "Back in the old days, they would have been able to manage population at County Jail and not have to use Rountree as an extra place to put people," he said.

San Diego DA Responds to Realignment: Dana Littlefield of the San Diego Union-Tribune reports in San Diego County, one offender supervised by local probation since being release from prison has been arrested on a murder charge, and five others on attempted murder charges. "I think it's cause for concern,"  said District Attorney Bonnie Dumanis. As of last week, Dumanis said about 1,300 cases had been sentenced under realignment in San Diego County, where defendants will serve their sentence in jail rather than prison. "I've been pretty consistent in saying that I don't think this was a well-thought-out plan," she said. "The issue is Sacramento has put us in jeopardy, and we're doing our best to keep the public safe." The San Diego Association of Governments analyzed crime statistics from the last three months of 2011, which were the first three months realignment was in effect, and compared them to the same time period in 2010. The results showed a 6 percent uptick in property crimes. 

LA County Looks to House Inmates in Central Valley Jails: Andrew Blankstein and Jason Song of the Los Angeles Times report the Los Angeles County Sheriff's Department is in discussions with two Kern County cities to use their jails to house up to 1,000 low-level offenders due to concerns of overcrowding. The Sheriff's Department is also considering talks with two other Central Valley cities. Since realignment went into effect, more than 5,000 inmates who would previously have been housed in state prisons have been shifted to Los Angeles County. Assistant Sheriff Cecil W. Rhambo Jr. said the department is also considering using electronic monitoring for some defendants accused of drug crimes and prostitution rather than jail detention, and releasing more women with electronic monitoring systems. Last year, sheriff's officials told The Times that the idea of sending inmates to a facility outside the county would only occur under extreme circumstances. According to the Sheriff's Department spokesman Steve Whitmore, the county's early release policy already calls for nonviolent offenders to serve 20% of their jail terms. Whitemore added that documented gang members will serve their full sentences. Rhambo said other violent offenders serve 75% of their jail terms.

Counties Vary in Approach to Realignment: Vauhini Vara of The Wall Street Journal reports that as counties have begun experimenting with how to manage the inmate shift from the state prison under realignment, local residents in Kern, Merced, and San Joaquin counties have protested the early releases of criminals from overcrowded jails. Kern County Sheriff Donny Youngblood says he understands the outcry. "It's a put-'em-in-custody kind of county--we don't have a lot of sympathy for people who commit crimes," he said. Barry Krisberg, a criminal-justice expert at the University of California, Berkeley, refers to realignment as "...'justice by geography,' depending on where you get arrested." Kern County has nearly doubled the amount of inmates supervised on electronic monitoring and other out-of-custody programs since October. Local Bakersfield bicycle shop owner Jesse Frederick said he is sympathetic to the sheriff's dilemma, but worries, "It can be like the Wild West out there if we're not careful."

Four Inmates Have Racial Justice Act Hearing: Allen Reed of the Associated Press reports lawyers were already testing the boundaries of the reworked Racial Justice Act days after the North Carolina legislature overrode the Governor's veto of the scaled back law. Four death row inmates - two black men, one American Indian woman, and one European man - convicted of first degree murder in Cumberland County are seeking to have their sentences reviewed. Friday's hearing was held before Superior Court Judge Greg Weeks, the only judge who has reduced a death sentence to life in prison without the possibility of parole under the original Racial Justice Act. Nearly all of the state's death row inmates applied for a reduced sentenced under the 2009 law. The revised law provides a clear framework for future convictions, but currently at issue is whether the appeals made by inmates before the law was changed will be applied under the original law or under the new version. Judge Weeks set an October 1 date for the evidentiary hearing.

New Jersey Lawmaker Wants to Expand State's "Megan's Law" to Internet: Matt Friedman of the Statehouse Bureau reports that New Jersey State Senator Christopher "Kip" Bateman (R, Somerset) submitted a bill Monday to require sex offenders to list on social networking websites the crime they were convicted of, their address, where the crime took place, a description of their physical appearance, and a link to their entry on the state's official sex offender registry. The bill is based on a similar law recently enacted in Louisiana. "In many ways, sex offenders can use the Internet as a venue and a means to plot and begin to carry out their crimes against vulnerable and unsuspecting victims," Bateman said in a statement. "This legislation supplements Megan's Law to assist law enforcement agencies in stepping up their increasingly successful efforts targeting and fighting Internet sex crimes." Offenders would face up to 18 months in prison and as much as a $10,000 fine for violating the law.

The rule of Martinez v. Ryan, allowing ineffective assistance of collateral-review counsel as "cause" for not raising IAC of the trial lawyer in the first state collateral review, only applies in states that have a rule against ever raising IAC on direct appeal.  In all other states, Coleman v. Thompson is still the law, and Martinez v. Ryan changes nothing.  I noted this limitation in this post the day Martinez came down.  Today the Fifth Circuit agreed, albeit in a divided decision, in Ibarra v. Thaler, No. 11-70031. 

In short, Texas procedures do not mandate that ineffectiveness claims be heard in the first instance in habeas proceedings, and they do not by law deprive Texas defendants of counsel-and court-driven guidance in pursuing ineffectiveness claims.

Accordingly, Ibarra is not entitled to the benefit of Martinez for his ineffectiveness claims, as Texas procedures entitled him to review through counselled motions for new trial and direct appeal.

See also, Dansby v. Norris, 8th Cir., June 21, 2012:

Martinez does not apply here, because Arkansas does not bar a defendant from raising claims of ineffective assistance of trial counsel on direct appeal. Arkansas law permitted Dansby to raise a claim of ineffective assistance in a motion for new trial and on direct appeal. [Citations.]

The Supreme Court in Martinez was clear that its "narrow exception" to Coleman was limited to the situation in which the State barred the defendant from raising a claim of ineffective assistance on direct appeal. 132 S. Ct. at 1316. The Court was not silent about a possible extension of Martinez to a State that does not impose such a bar. The Court did not expressly reserve judgment, as it sometimes does when a question is debatable. The Court was explicit about the finite scope of its decision: "The rule of Coleman governs in all but the limited circumstances recognized here." Id. at 1320.

Thanks to Ed Marshall for the tip.

California Prisoner Charged With 1986 Vermont Murder: The Associated Press reports California state prisoner David Allan Morrison is being charged with first-degree murder in the 1986 strangling of a Vermont woman. Sarah Hunter disappeared in September 1986, and her body was found two months later. DNA tests linked hair strands found in Morrison's car to the victim. Vermont State Police Lt. Tim Oliver said Morrison was a suspect immediately after Hunter's death, but at the time investigators didn't have the evidence needed to charge him. Morrison left Vermont in early 1988, and was arrested later that year on charges of attempted murder, sexual assault, and kidnapping in Chula Vista, Calfornia, which he eventually pleaded guilty to. His abandoned car was also seized by police in 1988. Hair found in the car was matched to Hunter.

CA Bill Would Temporarily Release Death Row Inmate to Help in Search for Victims: The Associated Press reports a bill passed unanimously by the California Senate and Assembly would take effect immediately if signed by Governor Jerry Brown to allow California serial killer Wesley Shermantine to be temporarily taken off death row to help investigators search for the remains of more victims.  The bill authorizes the Secretary of the Department of Corrections and Rehabilitation to remove an inmate "for the purpose of permitting the inmate to participate in or assist with the gathering of evidence relating to crimes." This provision will be valid until January 1, 2013. The most current version of the bill is here.

CA Man Mistakenly Discharged from Parole Faces Murder Charge: Lee Romney of the Los Angeles Times reports prison officials say a clerical glitch led to Charles Anthony Edwards III being mistakenly discharged from parole. Edwards walked out of Atascadero State Hospital and eventually made his way to Santa Cruz, where prosecutors say he brutally stabbed a shop owner to death on a busy sidewalk.

LA Grand Jury Releases Realignment Report: Christina Villacorte of Los Angeles Daily News reports the Los Angeles County Civil Grand Jury said realignment could diminish probation officers' ability to adequately supervise probationers and cause county jail overcrowding. "The caseload for the current deputy probation officers has increased dramatically for each deputy probation officer to monitor and supervise adequately," the civil grand jury wrote. The civil grand jury also noted, "The number of N3s (sent to) L.A. County from October 2011 through mid-March 2012 is well above the projected numbers by the Los Angeles County Sheriff's Department." The Los Angeles County Sheriff's Department expected to receive 7,000 to 8,000 non-violent, non-serious, and non-sexual offenders during the first year of realignment. However, the county admitted almost 5,000 of those offenders in just the first four months of realignment.

CA Senate Approves "Anti-Arizona" Immigration Bill: The Associated Press reports that under a bill approved by the California state Senate, lower-level offenders will no longer be detained on immigration holds, and officers would only refer those convicted of serious felonies to immigration officials. The bill passed along party lines 21-13 Thursday, and now goes to the Assembly. The most recent version of the bill is here.

Maayan Lubell reports for Reuters:

Israeli researchers have developed a medicinal marijuana that can ease the symptoms of some ailments without making patients "high".

Cannabis has more than 60 constituents called cannabinoids. THC is perhaps the best known of those, less so for its medical benefits and more for its psychoactive properties that give people a "high" feeling.

But cannabis also contains Cannabidiol, or CBD, a substance that some researchers say has anti-inflammatory benefits. Unlike THC, it hardly binds to the brain's receptors and can therefore work without getting patients stoned.

If the new strain really does have the medical benefits without the high, this would be the perfect solution for those who actually do want medical marijuana for medical reasons.  The feds should be able to reclassify the new strain, state-law-authorized medical marijuana dispensaries could sell it without fear of federal prosecution, and all would be well, right?

Except for one thing.  The people who are using the whole "medical" marijuana movement as a scam to legalize a recreational drug would be frustrated.

AP reports:

Scott Peterson on Thursday filed the automatic appeal of his 2004 death sentence to the California Supreme Court, maintaining as he always has that he had nothing to do with the murders of his wife Laci and unborn son Connor.

Peterson's attorney, noted death penalty lawyer Cliff Gardner, filed the 423-page document eight years after a San Mateo County jury found the former fertilizer salesman guilty of suffocating a Laci and dumping her in the San Francisco Bay on Christmas Eve 2002.

Actually, what Peterson's lawyer filed was the appellant's opening brief.  The "appeal" is automatic, and nothing needs to be, or is, filed.  (In all other cases, an appeal is commenced by filing a "notice of appeal.")  The case is S132449.  The docket and other info can be retrieved by pressing the Case Information button on the California Supreme Court's website and entering that number.  The actual date of the judgment is March 16, 2005.

So why did it take so long to file the opening brief?

First, there was a four-year delay in appointing counsel.  California's Judicial Council has needlessly restricted the pool of attorneys by imposing an unnecessarily restrictive definition of who is deemed "qualified."  On top of that, capital defense bar culture tells defense lawyers that they must file massive documents briefing every conceivable point.  (U.S. Supreme Court precedent is flatly contrary, see Jones v. Barnes, 477 U.S. 527, 536 (1986), but hey, when you're on a crusade, you can't let a minor matter like U.S. Supreme Court precedent squarely on point stand in the way.)  Few people want to do that, and California lets lawyers take appointments for noncapital felony appeals (a comfortable practice for which there is a surplus of lawyers) while declining to take capital ones.

Second, California's rules and its Supreme Court allow lawyers way too much time and too many pages to file the brief.  The defense side likes to point to the massive records in California capital cases.  The rule provides that the brief be filed in 210 days plus 15 days for each 1000 pages of record over 10,000.  The record in this case was indeed very large, but 44% of it was jury questionnaires, and the questionnaires filled out by venire members who neither served nor were challenged are irrelevant.  Then despite the long time granted by the rule, counsel asked for and received nine extensions of time to file.  Why does the California Supreme Court just roll over and give counsel so many extensions of time?  Because it doesn't have enough alternatives to crack down, for the reasons noted in the previous point.

So that is why we have seven years from trial court judgment (and automatic appeal) to the appellant's opening brief -- problems that are completely fixable at no additional cost if California's Legislature, Judicial Council, and Supreme Court only had the backbone to do so.

The New York Times had a predictable, gushing editorial in praise of the SCOTUS decision in Miller v. Alabama, and suggesting that the door is open to counsel-assisted re-sentencings for about 2000 youthful murderers.

There are so many assertions in this editorial that are flat-out wrong or deeply misguided, I am not sure where to start. To begin, as my post headline and introduction highlights, this editorial seems to assume that all long-ago sentenced juve murderers will get the benefit of the new procedural rule of Miller. But, as I stressed in my very first Miller aftermath post here, states can (and will?) argue that Miller is inapplicable to final juve LWOP sentences imposed long ago because it is a new rule of criminal procedure that should not apply retroactively under Teague.

This editorial also seems misguided when it asserts that mandatory LWOP sentenced defendants "can't initiate a review if they cannot afford a lawyer." These defendant surely can (and should) initiate a habeas petition pro se; a lawyer is not absolutely necessary here (or ever) to bring a habeas petition. Though it is surely true that a high-quality lawyer will likely be better able to develop a stronger habeas claim (and make stronger points at any full resentencing), it is certainly not true that review cannot be initiated without a lawyer.

This editorial also seems misguided when it suggests that the mandatory LWOP sentenced defendants who have already "been in prison 21 years" or longer now must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." In fact, even if these long-serving LWOPers get the benefit of Miller's new rule, they still can be constitutionally resentenced to LWOP and thus can still be sentenced to die in prison as long as that decision is made individually by a judge or jury bases on the specific case facts.

This early preview from an article forthcoming in the journal Science has the details:

The most startling thing about the latest scandal to hit social psychology isn't the alleged violation of scientific ethics itself, scientists say, or the fact that it happened in the Netherlands, the home of fallen research star and serial fraudster Diederik Stapel, whose case shook the field to its core less than a year ago. Instead, what fascinates them most is how the new case, which led to the resignation of psychologist Dirk Smeesters of Erasmus University Rotterdam and the requested retraction of two of his papers by his school, came to light: through an unpublished statistical method to detect data fraud.

The technique was developed by Uri Simonsohn, a social psychologist at the Wharton School of the University of Pennsylvania, who tells Science that he has also notified a U.S. university of a psychology paper his method flagged.

That paper's main author, too, has been investigated and has resigned, he says. As Science went to press, Simonsohn said he planned to reveal details about his method, and both cases, as early as this week.

If it proves valid, Simonsohn's technique might find other possible cases of misconduct lurking in the vast body of scientific literature. "There's a lot of interest in this," says Brian Nosek of the University of Virginia in Charlottesville, who recently launched an examination of replicability in social psychology findings (Science, 30 March, p. 1558).

The method may help the field of psychological science clean up its act and restore its credibility, he adds--but it may also turn colleagues into adversaries and destroy careers. The field will need ample debate on how to use it, Nosek says, much the way physicists had to grapple with the advent of nuclear physics. "This is psychology's atomic bomb," he says.

Simonsohn already created a stir last year with a paper in Psychological Science showing that it's "unacceptably easy" to prove almost anything using common ways to massage data and suggesting that a large proportion of papers in the field may be false positives. He first contacted Smeesters on 29 August 2011 about a paper on the psychological effects of color, published earlier that year. The two corresponded for months, and Smeesters sent Simonsohn the underlying data file on 30 November. Smeesters also informed a university official about the exchange. Simonsohn says he was then contacted by the university.

Sex Offender Strikes Again: The Associated Press reports an Oregon man on parole for trying to infect children with HIV attacked a 10-year-old boy at a Wendy's over the weekend. Police say Adam Lee Brown pulled the victim into a bathroom, attempted to sexually assault him, and stabbed him several times. Brown, who is HIV-positive, was convicted in 1993 of three counts of first-degree sodomy, each with a child. He pleaded no contest to reduced charges. The initial charges included attempted murder because of his HIV status. Brown spent 11 years in prison, earning time off of his 15-year sentence.

Georgia Schedules Execution for Double Murderer: Bill Rankin of The Atlanta Journal-Constitution reports a death warrant for Georgia death row inmate Warren Hill was signed Monday. He is scheduled to be put to death by lethal injection on July 18. Hill was serving a life sentence for killing his girlfriend when he bludgeoned to death a fellow inmate with a nail-studded board in 1990.

New Mexico DNA Law a Success: Jeri Clausing of the Associated Press reports New Mexico Governor Susana Martinez says last year's expansion of the state's DNA testing law is helping to put more criminals behind bars. Katie's Law, named after Katie Sepich, was originally passed in 2006 and required DNA samples from suspects arrested for violent felonies. Last year the law was revised to extend the testing requirement to all felonies. Sepich was a student at New Mexico State University when she was raped and murdered in 2003. Her killer was identified through DNA evidence after he was convicted of another crime. Martinez says the law has led to a 92 percent increase in matching suspects to crimes.

Twitter Must Hand Over Protester's Tweets: Tiffany Kary of Bloomberg News reports New York State Supreme Court Judge Matthew A. Sciarrino ruled Twitter Inc. must turn over information about Occupy Wall Street protester Malcom Harris' tweets. The ruling denied the company's request to quash a subpoena from Manhattan District Attorney Cyrus Vance, Jr. Twitter must turn over tweets posted by Harris from September 15 to December 30, 2011. Harris was arrested with about 700 other protesters on the Brooklyn Bridge on October 1.

North Carolina Legislature Overrides Racial Justice Act Veto: Jake Seaton of NBC17.com reports the North Carolina state Legislature on Monday voted in favor of overriding Governor Perdue's veto of changes to the Racial Justice Act. The new law limits how statistics can be used by death penalty defendants trying to prove racial bias was a factor in their case. "The House override vote was 72-48 - exactly [the required] 60 percent majority."

Death Row Inmate Reveals Failed Oyster Suicide Plan: Christina Ng of ABC reports Connecticut death row inmate Steven Hayes revealed in a recent interview his failed plan to commit suicide by eating a dozen oysters. He is deathly allergic to oysters. Hayes, who was sentenced to death for the 2007 home invasion murders of a woman and her two daughters, said he wrote a series of letters in which he bragged about killing 17 other women, hoping that the letters would be intercepted and turned over to law enforcement authorities. Hayes hoped that once authorities believed he was a serial killer, they would offer him pizza, soda, and a dozen oysters with hot sauce in exchange for information on the killings. "I planned to eat them and have them find me dead in my cell the next morning," Hayes said. Hayes has attempted suicide several times before, but says he will not give up his appeal because he promised his lawyer he wouldn't do that.

LAPD Embraces "Predictive Policing": Greg Risling of the Associated Press reports a new "predictive policing" program being used by the Los Angeles Police Department and police in Santa Cruz uses the same model for predicting aftershocks after an earthquake to determine where to send police officers to intercept crimes in progress and deter would-be criminals. The program has been implemented in five LAPD divisions that cover roughly 1.3 million people. There are plans to implement the program citywide by next summer.

Jerry Brown Shifts More Crimes: Don Thompson of the Associated Press reports California Governor Jerry Brown last week signed legislation that shifts ten crimes back to state prisons that had been shifted to county jails under realignment. The new law also shifts additional crimes to county jails, including possession of certain dangerous items such as certain explosives, various knives, and weapons like guns or swords hidden in other objects. Check fraud and defrauding the state's food stamp program are also now punishable by stays in jail instead of prison. Senator Doug La Malfa said he was "mystified about how this is going to help public safety in California." Another new law will allow sheriffs to release inmates up to 30 days early, up from five days, to comply with jail population caps. Inmates can also be released on electronic monitoring immediately instead of having to first serve at least 30 days in jail for a misdemeanor or 60 days for a felony. Assemblyman Jim Nielsen (R, Gerber) said the changes mean "more un-rehabilitated criminals on the streets, serving only a tiny fraction of their sentences in jail."

Brian Stelter at the NYT has this story on the initial misreporting of the health care decision on both CNN and Fox News Channel.  On Fox, the error was corrected "a moment later," but CNN continued to report the wrong result for six minutes.

The source of the error was that reporters jumped to the result from the fact that a majority rejected the Commerce Clause as a basis for the individual mandate, which everyone expected to be the main battle.  (James Taranto has this column at the WSJ on Justice Ginsburg's "bitter concurrence" on this point.)  They didn't wait for the decision on the alternative theory that the mandate is a tax.

This isn't the first time major news media have gotten it wrong.  It isn't even the first time this week.  As Bill and I noted Monday, the AP report on the juvenile LWOP case, Miller v. Alabama, was seriously wrong.  Even worse, because everyone was focused on the Arizona case, it didn't get corrected with near the speed of Thursday's faux pas.  Late in the day, I was still seeing the wrong report on major newspaper web sites.

House Votes Holder in Contempt: Stephen Dinan of The Washington Times reports the House on Thursday voted 255-67 to hold Attorney General Eric Holder in contempt of Congress in the investigation of the "Fast and Furious" gun-walking operation. It is the first time an attorney general has been held in contempt by a chamber of Congress.

Judge Rejects Fed's Request to Block Florida Voter Purge: The Associated Press reports U.S. District Judge Robert Hinkle on Wednesday rejected a lawsuit from the Department of Justice filed earlier this month to block Florida's purging of ineligible voters from the state's voter rolls. Hinkle said federal voting laws do not cover voters who should never have been allowed to vote in the first place. Ron Labasky, the legal adviser for the association that represents county election supervisors, sent a memo to supervisors late Wednesday, telling them that they can now remove a person from the voting rolls if they have "sufficient documentation" that someone is not a U.S. citizen. Labasky said the ruling resolves whether counties can continue with the purge while multiple lawsuits associated with the purge still exist.

Chicago Latest City to De-Criminalize Marijuana Possession: Kristen Mack of the Chicago Tribune reports the Chicago City Council voted Wednesday to issues tickets for someone caught with 15 grams or less of marijuana instead of arresting them. Currently, those convicted of marijuana possession face a misdemeanor charge and a punishment of up to six months in jail and a $1,500 fine. More than 18,000 people were arrested in Chicago last year for marijuana possession. Police officers will still arrest people caught smoking marijuana or in possession of it on park or school grounds, anyone under 17 caught with marijuana, or anyone believed to have been trying to sell marijuana. The new policy goes into effect August 4.

CA Meets Second Prison Population Reduction Benchmark: The California Department of Corrections and Rehabilitation reports it has reached the second population benchmark under the prisoner reduction order. As of June 27, 2012, the inmate population in California's 33 prisons was to be at no more than 155 percent of design capacity, or 124,000 inmates. CDCR Secretary Matthew Cate said they had already reached that number in mid-April.

The Supreme Court's decision in the Stolen Valor Act case, United States v. Alvarez is here.

This is a profoundly disappointing decision.  Government prohibits speech and other forms of expression which are false or even have a potential to mislead under circumstances much less compelling than those in this case.  In the Gay Olympics case, for example, the Court upheld a prohibition on the use of a historical word to describe an athletic event because it might dilute the trademark given by Congress to one organization.  In trademark law, Congress prohibits selling cheap imitations of expensive items even if the buyer is very well aware it is not the famous brand, and the only deception is of the people who see the buyer and think the item is the expensive one.  Justice Alito notes in the dissent, "Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country's top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags."

The Court has needlessly stretched the First Amendment out of shape to create a constitutional right to lie.  Our core constitutional rights are debased, not enhanced, by stretching them out of shape to extend far beyond their proper scope. This is a sad day for America's genuine heroes, and it is a sad day for the Constitution.