Results matching “first”

Health Care Lawsuits to Rise Against California Counties: Marisa Lagos of the San Francisco Chronicle reports the same nonprofit Prison Law Office that successfully sued California over inmate health care in state prisons has filed a similar suit against Fresno County, and may also take action against Riverside County, over alleged inadequacies over health care for inmates as counties begin to house thousands of offenders diverted from prisons through realignment. The Prison Law Office warns there may be more suits to come. "It's not that these jails were doing well before; it's just worse with realignment," said Don Specter, Prison Law Office director. "In some ways, counties are worse than state prisons ... and certainly the harm on prisoners who stay there longer is going to be greater." San Francisco Probation Chief Wendy Still says she understands the state wants savings, "but don't just move the risk and liabilities to the county level," she said.

Alabama Supreme Court Halts Execution: Eric Velasco of The Birmingham News reports the Alabama Supreme Court on Monday halted the execution of Cary Dale Grayson, which was scheduled for Thursday. In 1994, Grayson and three others picked up hitchhiker Vicki Lynn DeBlieux, who they beat, murdered, and threw off a cliff. Grayson and two of the boys returned to the scene later, where they mutilated DeBlieux's body, stabbing her more than 180 times. They kept a severed finger as a souvenir, which they showed off to others. The 11th U.S. Circuit Court of Appeals last month halted the execution of Tommy Arthur scheduled for March 29 after his lawyers challenged a change in the drugs used in Alabama's lethal injection process. The Alabama Supreme Court issued a stay for Grayson pending further order of the court.

Wisconsin Governor Signs Handful of Criminal Justice Bills: Gitte Laasby of the Journal Sentinel reports Wisconsin Governor Scott Walker signed seven criminal justice bills into law Monday morning. Among them was Senate Bill 173, which will give police, prosecutors, and judges faster access to electronic juvenile records. Mallory O'Brien of Milwaukee's Homicide Review Commission said, "That information has to be shared. If they don't know that they're on supervision in the first place, they're never going to be sharing the information. It just kind of closes a loop that was kind of wide open with no accountability." Walker also signed Assembly Bill 397, also known as Caylee's law, related to penalties for failing to report the death of a child or to report a missing child, moving the corpse of a child, and hiding a corpse to collect public benefits.

Florida Governor Signs Bil Inspired by Caylee Anthony's Death: The Associated Press reports Florida Governor Rick Scott on Friday signed into law legislation inspired by the death of Caylee Anthony. The law increases the maximum penalty for knowingly making a false statement to police about a missing child from a year in jail to five years in prison. Caylee's mother, Casey Anthony, was convicted on four counts of lying to investigators and her four-year maximum sentence was completed by the time she was acquitted of murdering her daughter. If the law had been in effect at the time, she would have gotten up to 20 years in prison.

Last October, in its first decision of the term, the US Supreme Court reversed a decision granting a writ of habeas corpus to Shirley Ree Smith, who had been convicted of the murder her infant grandson.  It was the exemplar of a hard case that threatened to make bad law.  Subsequent developments in the science of shaken baby syndrome cast doubt on the coroner's conclusion regarding cause of death.

Yet the Ninth Circuit's application of Jackson v. Virginia to overturn the conviction was "plainly wrong."  The jury resolved the conflicting evidence in favor of guilt, unanimously and beyond a reasonable doubt, and the state courts properly deferred to the factfinder's decision.

To see the "bad law" potential of this case, see another case reversed by the Supreme Court a few years ago, also from the Ninth Circuit, also based on Jackson v. Virginia.  Troy Brown was guilty as sin of a horrible rape of a little girl.  The case was not capital murder only because she survived, no thanks to Brown.  The Ninth completely botched it.  The unanimous opinion of the Supreme Court is here.  CJLF brief is here.

The criminal justice system does have a safety valve for unusual cases where a properly conducted trial may have reached an unjust result.  That "safety valve" power is vested in the executive branch, not the judiciary.  It is executive clemency.

On Friday, Gov. Brown commuted Ms. Smith's sentence.  David Siders has this post at the SacBee.  Curiously, I couldn't find the commutation statement on the Gov's website.  Update:  Still not on the Gov's site, but I found it here.

The title of this post is the title of a piece in NRO about Chuck Colson, one-time Nixon hatchet man.  Colson went to prison for his part in the Watergate scandal, and is probably best known now for starting Prison Fellowship, a group that purports to help rehabilitate inmates through Bible study.

has been debased in our Tilt-a-Whirl media culture that can't distinguish between notoriety and fame. In contemporary America, redemption begins sometime between the first check-in into rehab and the first cable-TV interview, and reaches completion when everyone gets distracted by someone else's attention-grabbing disgrace.

Colson left government after Nixon's reelection, feeling exhausted and empty. As the furor over Watergate grew, he visited a friend one night, a successful businessman who had converted to Christianity. The friend read a passage from C. S. Lewis: "Pride always means enmity -- it is enmity. And not only enmity between man and man, but enmity to God." Later, Colson sat in his car outside the house weeping alone in the darkness, not tears of sadness nor of joy, but "of relief."

When he realized that the exigencies of his legal defense were inconsistent with the forthrightness entailed by his new faith, he pleaded guilty and became Prisoner 23226 at Maxwell Federal Prison Camp in Alabama.

Serial Killer's Letters Move Forward Execution: Brendan Farrington of the Associated Press reports serial killer David Alan Gore is set to be executed sooner than he expected. Over 5 years, Gore exchanged 200 pages of graphic letters with Las Vegas man Tony Ciaglia, who writes to numerous serial killers, relishing in the details of his murders. In the letters, Gore brags about raping and murdering four teenagers and two women, likening the urge to kill to sexual arousal and describing the murders of two 14-year-old girls as "a perfect experience." His letters were published by author Pete Earley in his book "Serial Killer Whisperer." Scripps Treasure Coast Newspapers columnist Russ Lemmon also published a column discussing the case and the letters. On the same day, the editorial board brought the letters to the attention of Florida Gov. Rick Scott (R), who signed the death warrant despite the 40 other men who have been on death row longer than Gore. Gore is set for execution April 12.

Steele Argues Trayvon Martin Exploited: Shelby Steele of the Wall Street Journal writes there are two tragedies which took place in the case of Trayvon Martin; first, an unarmed teenager committing no crime was shot dead, and second, since the 1960s, the black American identity has shifted from common humanity to historical victimization. Steele argues this shift in identity was the worst mistake black Americans could have made. He describes a generation of ambulance-chasing, stating the greatest power current black leaders have "lies in the manipulation of white guilt" through poetic truth. According to Steele, the tragedy in the death of Martin is not the possibility of white racism, particularly since his shooter, George Zimmerman, was Hispanic. The tragedy lies in the desire many black leaders have in combination with the media to exploit tragedies and further their agendas.

Access to Drugs Could Put Executions on Hold: Kimberly Leonard of iWatch News reports a federal judge ruled to block the import of sodium thiopental. An alternative for the lethal injection is pentobarbital, though it is expected that its supplies may become limited. With manufacturers selling pentobarbital directly to health care facilities and the drug having a shelf-life of about 18 months, the stockpiles states bought prior to distribution limitations may expire before use. While the FDA has not approved pentobarbital for use in executions or as anesthesia, Ed Elder, director at Lenor Zeeh Pharmaceutical Experiment Station at the University of Wisconsin-Madison, said the use of drugs in executions may fall outside of FDA oversight, a position the FDA has taken in the past. Mike Rushford of the CJLF said the important thing is not which drugs states use specifically, but to simplify the process so arguments against lethal injections have little ground left to stand on. Rushford said concerns regarding lethal injections are "claims by people who wouldn't want to execute any murderer under any circumstances by any means." Whether states will be able to maintain access to lethal injections and continue executions remains to be seen.

Louisiana Lawmakers Seek to Rewrite Sex Offender Social Networking Ban: The Associated Press reports a bid seeking to rewrite a state law to ban certain sex offenders from social networking sites, such as Facebook, began moving through the Louisiana Legislature on Wednesday. The existing law is argued to violate a convicted sex offender's free speech protections and was declared unconstitutional by a federal judge. The bill is sought by Gov. Bobby Jindal and sponsored by Rep. Ledricka Thierry, and will more narrowly define what specific sites are banned in hopes that it could withstand a court challenge. Thierry's bill would ban anyone convicted of a sex offense against a minor or of video voyeurism from websites whose primary purpose is "facilitating social interaction with other users of the website and which allows users to create web pages or profiles about themselves that are available to the public or other users." The bill is heading to the full House for debate.
 

 

Peter Finn reports in the WaPo:

A senior Pentagon official on Wednesday authorized a new trial for Khalid Sheik Mohammed and four others accused of orchestrating the Sept. 11, 2001, attacks, a step that restarts the most momentous terrorism case likely to be held at Guantanamo Bay, Cuba.

The suspects were first charged in a military commission in 2008, but the case was suspended when the Obama administration came into office and later moved to have them tried in federal court in New York.

That effort collapsed in the face of congressional and local opposition. In April 2011, Attorney General Eric H. Holder Jr. announced that he was reluctantly sending the case back to the military.

In World War II, U-boat saboteur Richard Quirin was arrested June 20, 1942, the Supreme Court decided his case July 31, 1942, and he was executed August 8, 1942.

Where is FDR when we need him?

Until last November, Ohio had been one of the most successful states in terms of finally carrying out justice in capital cases after many years of delay.  They were first to adopt the single-drug method now spreading across the country.  However, executions have been on hold recently.  AP has this story:

Ohio's first execution in six months can proceed, a federal judge ruled Wednesday, saying it appears the state is serious about following its own lethal injection procedures.

The decision by U.S. District Judge Gregory Frost ends an unofficial moratorium dating to November, when members of the Ohio execution team deviated from the official injection procedures when putting a Cleveland man to death.

The changes were minor -- failing to properly check a box on a medical form, for example -- but they angered Frost, who had previously criticized the state for failing to follow its rules.

The judge's decision followed a seven-day trial over the state's lethal injection process last month.

The ruling paves the way for the April 18 execution of Mark Wiles for stabbing a 15-year-old boy to death during a farmhouse burglary.

Arkansas Considers Barring Sex Offenders From Internet Access: Andy Davis of the Arkansas Democrat-Gazette reports the Arkansas Board of Parole is considering whether to adopt a policy which would initially bar all paroled sex offenders from using the internet. Parolees could request permission to access the internet for a specific purpose, such as use in the workplace. The board currently prohibits internet access for certain paroled sex offenders on a case-by-case basis. Kim Knoll, an assistant area manager with the Department of Community Correction, said "parole officers have found that offenders are frequently using the Internet to download child pornography and communicate with children." At issue is whether the policy would infringe upon their First Amendment rights. The board is set to vote Thursday.

New Police Video Released in Florida Shooting Case: Curt Anderson of AP Legal Affairs reports a newly released video from the Sanford Police Department, taken a half-hour after George Zimmerman shot and killed 17-year old Trayvon Martin last month, has some legal experts agreeing that while grainy and far from conclusive, the video does raise questions about Zimmerman's story of self-defense. But Zimmerman's attorney says it does "support his client's story in some respects."  Martin's autopsy report has not yet been released, in which the angle of the bullet wound is significant to corroborate or contradict Zimmerman's account of the confrontation.  Also, Matt Sedensky of AP has this article on the misleading use of photos to shape public opinion of the case, such as the picture of Martin several years younger.

Recent Case Sheds Light on Criminal Immigrants: Garance Burke of the Associated Press reports the recent San Francisco case of a Vietnamese ex-con accused of killing five people has brought back into debate Supreme Court rulings that have allowed thousands of criminal immigrants to be released into U.S. communities when their home countries will not take them back. Two Supreme Court rulings found that immigrants should be released after 180 days unless they are likely to be deported soon, and established that immigrants ordered to be deported for having committed a broad range of criminal offenses cannot be locked up in detention awaiting deportation indefinitely. In cases of an immigrant posing a terrorist threat or considered highly dangerous, such as sex offenders, there are provisions allowing them to be in detention longer. Texas Rep. Lamar Smith (R) is sponsoring a bill challenging the high court's rulings by proposing to expand the pool of immigrants who can be detained for more than six months, or even indefinitely, if they cannot be deported. ICE statistics show 1,612 immigrants with criminal records were released by April of last year, 3,882 released in 2010, and 3,847 in 2009.
  

Victim Notification Law Signed by Idaho Governor: KMVT News (ID) reports Idaho Governor C.L. "Butch" Otter signed into law House Bill 595, which requires those convicted of felonies and misdemeanors to pay $10 to fund VINE (Victim Information Notification Everyday), which notifies victims of their offender's incarceration and court status. Once a victim or other interested person registers in the VINE system, they will be automatically notified when the offender they registered against is released from custody or is scheduled to appear in court by telephone or email. VINE has been managed in the state for almost three years from grants, which expire in 2012. The new law creates sustainable funding for the program. 

3 Executions in Japan, First Since 2010: Minoru Matsutani of the Japan Times reports three inmates were hanged in Japan Thursday, the country's first executions since July 2010. Yasutoshi Matsuda, 44, was convicted of robbing and killing two women in 2001. Tomoyuki Furusawa, 46, was convicted of murdering his 12-year-old stepson and his wife's parents in 2002. Yasuaki Uwabe, 48, was convicted of running over seven people with a car, killing two, and slashing seven other people with a knife, killing three, in 1999. "The right to punish criminals rests on Japanese nationals, and a government poll shows the majority of Japanese support the death sentence," Justice Minister Toshio Ogawa said at a news conference.

Professor Stephanos Bibas has been guest-blogging at SL&P about his new book.  The main theme is how punishment has changed since the old days, and not all of the changes are good.  In today's post, he focuses on prisoners working.

Prisons must change from dens of idleness and crime to places of public accountability, mandatory work, and sustained reform. First and foremost, prisons must force all able-bodied prisoners to work. Governments could abolish restrictions on trade in prison-made goods and prevailing-wage requirements, relying on competitive bidding to raise wages. While medium- and maximum-security inmates would have to work in prison for security reasons, minimum-security inmates could transition back to the outside by working outside of prison, as many already do in halfway houses. Inmates might even be able to prove themselves to employers and so have jobs waiting for them upon release.

On this point, I mostly agree with Bibas.  Of all the reforms we can make within prison, actual employment for every prisoner should be at the top of the list.

Politically, though, is it possible to "abolish restrictions on trade in prison-made goods"?  No.  Organized labor remains a politically potent opponent.  Just picture the news story of a factory closing, laying off its workers, and laying the blame on competition from prison-made goods.

The answer, in my view, is to identify segments of the market where substantially all of the competing goods are imported.  In today's global economy, there are plenty of such segments.  Prison-made goods should be unrestricted in commerce where the competition is substantially all imported, and the prisoners need not be paid wages comparable to outside workers, or even minimum wage.

As an affirmative incentive to work, allow prisoners to purchase an upgrade to their accommodations with a portion of their earnings.  If you were in prison, how many hours would you work to have an individual prison cell, or even a small, enclosed room, rather than sharing a cell with Spike?  As many hours as it took, probably.

Death Sentence Overturned Because 3 Murders Not Especially Heinous: The Associated Press reports the Arizona Supreme Court on Tuesday threw out the death sentences of James Granvil Wallace, who killed his girlfriend and her two children in 1984, ruling that the murders don't meet the legal requirement for being heinous or depraved because "the State has not established beyond a reasonable doubt that Wallace inflicted gratuitous violence on the two victims." Wallace had waited behind the front door for each of his victims to return home separately. When his girlfriend's 16-year-old daughter arrived home first, Wallace attacked her from behind, slamming a baseball bat into her head at least ten times with so much force that the bat broke. Still alive, Wallace dragged her into the bathroom and rammed the broken bat into her neck, down her chest cavity, and out her back. When the 12-year-old boy arrived home shortly after, Wallace bludgeoned him about ten times with an 18-inch pipe wrench, crushing his skull. When Wallace's girlfriend arrived home a couple of hours later, he used the same pipe wrench to kill her, hitting her in the head four or five times. His two death sentences for killing his girlfriend's children were vacated, and the court imposed two sentences of life in prison on top of the life sentence Wallace is already serving for killing his girlfriend. The court's opinion is here.

Suspect in Murder of 5 Should Have Been Deported in 2006: Kevin Fagan, Henry K. Lee, and Justin Berton of the San Francisco Chronicle report the suspect in last week's killing of five people in San Francisco should have been deported back to Vietnam in 2006. After serving eight years in prison for robbery and assault, Binh Thai Luc was taken into custody by federal agents and a judge ordered him deported. Since Vietnamese authorities did not provide the appropriate travel documents, Luc had to be released under the terms of a U.S. Supreme Court ruling in which undocumented immigrants must be released after six months if their country of origin will not allow their return. Police Chief Greg Suhr said the victims - a couple in their 60s, their adult daughter and son, and their son's girlfriend - were bludgeoned and attacked with an "edged weapon." Luc is being held on suspicion of five counts of homicide and one count of use of a deadly weapon.

Sacramento Police Warn of Increase in Aggressive Robberies: KCRA reports there has been an increase in aggressive, strong-armed robberies across both the city and county of Sacramento. "These are dangerous crimes (with a) lot of violence potential," said Captain James Maccoun, of the Sacramento Police Department. In the city, these types of robberies are up 75 percent compared to last year. "These are stick-ups with guns -- multiple suspects," said Maccoun. The incidents are mostly taking place in liquor and convenience stores.

Washington State Weighs Prison Overcrowding, Budget Shortfalls: Jennifer Sullivan of The Seattle Times reports the Washington state Department of Corrections says some prisons are facing extreme overcrowding issues after the recent closures of three prisons in the state, as well as a spike in incoming inmates. At one prison, officials announced all single-inmate cells will now house two inmates to give the prison system new beds. The state had planned to open a new prison by 2016, but due to the state's $1 billion budget shortfall, the opening has been pushed back until at least 2018. Reopening closed facilities is not an option because the costs would be too high. The Department of Corrections has already reduced spending through layoffs, prison closures, program reductions, and administrative costs, including the elimination of community-corrections positions after two recent state laws decreased the number of offenders the agency supervises. Department of Corrections officials say since the cuts have changed who gets incarcerated, the typical inmate in the state now is more mentally ill, more violent, more likely to belong to a street gang, more likely to be a sex offender, and highly drug addicted.

Glasses Latest in Criminal Defendant Strategic Attire: Kieth L. Alexander of The Washington Post reports non-prescription "hipster" or "personality" glasses are becoming popular courtroom attire for criminal defendants. "This goes beyond shirts and ties," says Richard Waites, chief executive of a jury consulting firm. "Jurors expect to see defendants wearing those." "If you're wearing glasses, you don't look like what people might expect a criminal to look like," said Chicago-based jury consultant Trent Kelso. Some defense attorneys, though, think it makes their clients look more guilty and suggests they are trying to hide.

Brian Rogers has this article in the Houston Chronicle looking at how Harris County, Texas has handled the cases where death sentences were overturned for "Penry error."

In the 1976 case of Jurek v. Texas, the U.S. Supreme Court looked at the Texas system of deciding the penalty based on the jury's answer to three specific questions and decided it was valid.  In the 1989 case of Penry v. Lynaugh, the Court changed its mind and said, in effect, a fourth question needs to be asked.  It then had the audacity to deny it was creating a new rule that wouldn't be retroactive to completed cases.

So lots of cases with "flawed" jury instructions -- the ones that were perfectly okay in 1976 but unconstitutional in 1989 -- had to be resentenced.  The Texas Legislature didn't really fix the problem for a couple more years, so "flawed" cases piled up until 1991.

In Houston, three have been allowed life sentences and three have been resentenced to death.

"We look at it again, from start to finish, and decide if it is still a death penalty case," said Jim Leitner, the district attorney's first assistant. "We really have to look at who is the worst of the worst."

The office has to balance the time and energy of redoing an old case against finite resources, which may mean a death row inmate can get a deal by pleading guilty to stacked life sentences.

"Even though a jury once decided this is a death penalty case," Leitner said. "We look at what evidence we still have, access to witnesses, strength of the case and the willingness of the person to plead to something that will keep them out of commission forever."

1 of 2 Women on Federal Death Row Removed: Ryan J. Foley of the Associated Press reports U.S. District Judge Mark Bennett on Friday threw out the death sentence of Angela Johnson, one of two women on federal death row. Johnson was sentenced to death on four counts after she and her boyfriend killed five people execution-style, including two children, and buried them in shallow graves in 1993. The bodies were found in 2000. Johnson was the first woman sentenced to death in the federal system since 1976. Bennett said her defense lawyers were "alarmingly dysfunctional," and failed to present evidence about her troubled mental state. The ruling doesn't throw out her convictions. The U.S. Attorney General's office has 60 days to decide whether to appeal or continue seeking the death penalty again Johnson.

Supreme Court Won't Hear Appeal on Hormone Therapy for Inmates: The Associated Press reports the U.S. Supreme Court will not hear an appeal from Wisconsin state officials to reinstate a Wisconsin law banning hormone treatments for transgender inmates. The 2005 law was blocked by a federal judge weeks after its passage, and last year the 7th U.S. Circuit Court of Appeals ruled the law violates the Eighth Amendment because it denies medical treatment. The law was passed after an inmate receiving hormone therapy filed a lawsuit, trying to force the prison to pay for his sex change.

Changes to Missouri DNA Laws Proposed: The Associated Press reports Missouri State Seantor Will Kraus (R) has proposed legislation that would require crime labs to throw away a suspect's DNA sample within four months if a prosecutor decides to not file charges. A DNA sample would be required from anyone registering as a sex offender, as well as from out-of-state offenders who are transferred to Missouri prisons to serve their sentences. SB 789 has been endorsed by the Senate Judiciary Committee, and could be debated in the Senate in the coming weeks.

Washington Considers Changes to Parole, Probation Policies: Jonathan Kaminsky of the Associated Press reports Washington lawmakers are considering a proposed remaking of the state's parole and probation practices, based on a pilot project in the state that focused on "swift and certain" punishment for parole violators. Under the pilot project, parolees would be put in jail for no more than three days for every minor parole violation. Parolees could spend up to 30 days in jail for more serious offenses. House Republicans have sought to exclude murderers, sex offenders, and others convicted of serious crimes from the program. "To put them under relaxed supervision has an impact under public safety," says Rep. Gary Alexander, R-Olympia. "They could re-offend and that would be very devastating." The system is modeled on a program founded in Hawaii eight years ago which has been replicated in localities in over a dozen states. If initiated, Washington's program would be the first statewide program of its kind in the country, and would include both those on parole and probation. The U.S. Department of Justice will start pilot projects in four cities across the country soon. The history of the bill is here.   

One of our readers is highly-regarded, veteran prosecutor in a big city.  I asked how much of an impact she thought Lafler would have in practice.  Her answer:  Not much:

[Y]ou'd be surprised at how few convictions get undone under our [present] Lafler-esque "system." The fact that defendants don't come back to court in droves to claim that their attorneys were ineffective in plea bargaining is, I think, a consequence of basic free market forces. I'll try to explain.

Most defendants are guilty as hell and realize they have the proverbial snowball's chance if they go to trial. Therefore, most defendants want to mitigate their damages in the form of plea bargains rather than going to trial. (My husband's criminal defense practice is based on this premise, as he almost never goes to trial and sees his role as the damage controller, kind of like an insurance adjuster.) 

If lots of cases got challenged and thrown out later on grounds of ineffective assistance, the net result on the "market" would be that prosecutors would change their behavior accordingly by not offering very many plea bargains. Therefore, due to these market forces, the vast majority of defendants do not challenge their convictions unless 1) their attorney really was ineffective, or 2) there is some other problem they are seeking to avoid (e.g., immigration consequences or a three-strikes life sentence). It is also worth noting that in my office, our policy is to charge conservatively at the outset, and to add charges and/or enhancements or amend charges if the case is going to trial. Accordingly, barring unforeseen circumstances, the most favorable plea offer will always be the first offer. All the defense attorneys know this, which keeps our "market" relatively stable as well. 

An anonymous commenter on Sentencing Law & Policy succinctly states why Lafler is a disaster:

Lafler is potentially revolutionary in that the State is now entirely at the mercy of defense counsel when it offers a plea.

Prior to Lafler, a competent prosecutor could try a clean case and present sufficiently solid evidence that any minor mistake by the trial judge would be a harmless error. Equally, by presenting an overwhelming case at trial, the prosecutor could try to make a solid case that any incompetence by trial counsel would not be [later seen as] prejudicial.

Under Lafler, however, [the same] overwhelming case which defeats a trial ineffectiveness [claim] now helps prove that counsel was incompetent in advising his client to go to trial [in the first place]. I think most prosecutors could have lived with ineffectiveness limited to failure to advise -- that [is something] a prosecutor can cure on the record prior to a plea expiring.  But including misdavising is open season for attorneys opting to fall on the sword for their client which is not as infrequent as the Kennedy opinion assumes.

NJ Bill Introduced to Collect DNA Samples for Minor Crimes: Charles Hack of The New Jersey Journal reports New Jersey Senator Nicholas Sacco (D-North Bergen) introduced legislation this week to collect DNA samples from those convicted of disorderly persons offenses. He said the goal of the bill is to reduce the number of unsolved crimes. New Jersey's current state DNA law requires DNA samples from anyone convicted of a first- to fourth-degree crime. Disorderly persons offenses include shoplifting goods under $200, criminal mischief, defiant trespass, simple assault, disorderly conduct, and prostitution. The bill has been referred to the Senate Law and Public Safety Committee.

Oklahoma Citizens to Vote on Removing Governor from Nonviolent Parole Process: The Edmund Sun (OK) reports the Oklahoma Senate on Monday approved Senate Joint Resolution 25, which will put on the November ballot an option for voters to take the governor out of the parole and pardon process for nonviolent offenses. The resolution only had to be approved by both chambers of the legislature, and does not have to be considered or approved by the governor, to go on the ballot. SJR 25 would amend the state Constitution and give the board total power to decide parole requests for nonviolent offenders. The governor would still review parole requests for violent crimes. "No other governor in the country is involved in their state's pardon and parole process for nonviolent offenses," said Oklahoma Senator Josh Brecheen, one of the author's of the resolution. "We're the last state in America to task our governor with this responsibility."

Connecticut Legislative Committee Approves Death Penalty Repeal: Ken Dixon of Greenwich Time reports Connecticut's Judiciary Committee on Wednesday approved a bill that would repeal the state's death penalty and replace it with life in prison without the possibility of parole. Although the bill only applies to future crimes, many predict that if passed, those currently on death row would have grounds for appeal. The bill now goes to the Senate. 

There is presently a lot of discussion over the shooting of Trayvon Martin by George Zimmerman in Sanford, Florida on February 26.  CNN has this story.  Perhaps the most sensible comment is the one by, of all people, Jeffrey Toobin.

"Clearly, the question at the heart of the case is whether Zimmerman reasonably felt threatened," Toobin said. "On this issue, the evidence currently seems murky."

Never wanting to waste a good crisis, though, some people are using this controversy to attack "stand your ground" laws.  These laws say that if you are unlawfully attacked, you can resist.  You are not required to retreat from a place where you have a right to be.

These laws do not give a person a right to be the aggressor and certainly not to be a vigilante, which is the charge being made against Zimmerman.

Overall, the law tends to be too restrictive of the right of self-defense, not too lax.  If the other guy is the aggressor, you should be allowed to use as much force as you need to defend yourself, and if he is hurt or killed, that's what he gets for attacking you in the first place.  The same is true of anyone who breaks into your home.  The possibility that someone may be home and shoot a burglar dead is an occupational hazard of burglary.  To avoid that hazard, don't break into homes.  Easy enough.

Government cannot provide us with sufficient protection.  In California, especially, our government is in the process of putting criminals on the street who should be in prison because it cannot afford the inflated price of our prisons.  If government is not going to protect us from them, the least it can do is allow us to protect ourselves.

Well that was quick.

The U.S. Supreme Court decided Martinez v. Ryan yesterday.  See post here.  A Texas murderer, Jesse Joe Hernandez, wants to invoke it in a successive petition in Texas state court, claiming his first collateral review lawyer was ineffective.  Brandi Grissom has this story in the Texas Tribune.

No dice says Texas CCA.  Doesn't meet the statutory criteria for a successive petition.  A concurring opinion agrees that this is correct given Texas CCA's past interpretation of the statute but asks the Legislature to amend it.

Martinez is based on the U.S. Supreme Court's assessment of the equities.  It is not constitutional law binding on states.  State courts need not follow it for state proceedings.  Where state statutes are contrary, they cannot.

The rule of Coleman v. Thompson, 501 U.S. 722 (1991) has for 21 years protected state judgments from a never-ending spiral of ineffective assistance claims. Without the Coleman rule, there would be no end to attacks on a judgment because every new attack could claim the alleged ineffectiveness of the prior lawyer as cause for not having raised the issue in the previous attack. In capital cases, such a never-ending spiral means an indefinite delay, and hence denial, of justice.

The opinion of the Court in Martinez v. Ryan assures us that it "qualifies Coleman by recognizing a narrow exception...." (Slip op. at 6, emphasis added.) Yes, it does, for now. Justice Scalia warns in dissent that the narrowness will not last.

The exception is: "Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." What are "initial-review collateral proceedings"? On page 5, the Court defines them as "collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial." Okay, is that "first occasion" as a matter of rules or "first occasion" as a practical reality? The Court tells us at several points that it means first occasion as a matter of rules.

The US Supreme Court decided Martinez v. Ryan today, holding that ineffective assistance of counsel in state collateral review can be "cause" for default of a claim of ineffective assistance of trial counsel, potentially allowing that claim to be litigated in federal court.

The opinion claims this is a narrow exception, but it could potentially undo much of the promise of speeding up federal review of state capital cases that we thought would follow from last term's decisions in Walker v. Martin and Cullen v. Pinholster.  As we know, there is no limit whatever to capital habeas attorneys' attacks on every prior attorney in the case.  We can expect to see in every federal habeas petition a claim that some attack on trial counsel was left out by the state collateral counsel, and that omission is alleged to be ineffective assistance.  That issue will have to be litigated in the federal court, rather than the dismissal at the threshold on the state court record that should be the norm.

Update:  On a second reading, it appears the decision is narrower than I originally thought.  See my follow-up post, Martinez is narrow, for now.

We should also not forget the bullet dodged in this case.  The petitioner's Question Presented was: "Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first postconviction counsel specifically with respect to his ineffective-assistance-of-trial counsel claim."

The answer was no under Pennsylvania v. Finley, and it remains no today.

Oklahoma Execution Carried Out: Katie Fretland of the Associated Press reports Timothy Stemple was put to death by lethal injection Thursday at a state prison in Oklahoma. Stemple and his accomplice were convicted of beating his wife repeatedly with a plastic-covered baseball bat, then running her over with a pickup truck along a Tulsa highway in 1996, in an attempt to collect insurance money. Oklahoma's Department of Corrections said last month the state has only four doses of the lethal injection drug pentobarbital left. Stemple's is the first of three scheduled executions in Oklahoma over the next two months.

Anti-Illegal Immigration Bill Passed in Mississippi House: Fox News Latino reports Mississippi House members passed 70-47 an anti-illegal immigration bill that would require an arrest to be made before requesting documentation proving legal status. Failure to provide proof of citizenship after an arrest could then result in deportation. After not passing once before, controversial provisions were removed which include an officer's ability to ask about a person's immigration status in a traffic stop, the possibility for officers to arrest a person for not carrying identification, requiring schools to count undocumented immigrant students, and the ability for municipal utilities to refuse power, water, sewer, and other services to illegal immigrants. House Judiciary B Committee Chairman Andy Gibson said he tried to craft a bill that would survive court challenges. The bill now goes to the Senate.

Oklahoma Man Who Killed Wife Set for Execution Today: Steve Olafson of Reuters reports Timothy Shaun Stemple, 46, is scheduled to be executed at 6 p.m. local time in Oklahoma today for murdering his wife in 1996 to collect almost $1 million in life insurance benefits. Trisha Stemple, 30, was beaten with a baseball bat before being run over with a pickup truck and left on the side of a road beside her car. One of her tires was punctured with a drill to make the crime look like a random carjacking. Stemple was having an extramarital affair at the time and enlisted his girlfriend's 16-year-old cousin to be his accomplice, who testified against him in exchange for a life prison term. Stemple will be the second man executed in Oklahoma this year.

Bringing Criminals Face-To-Face With Victims Doesn't Affect Recidivism: Eleanor Bell of the Australian Broadcasting Company reports the New South Wales Bureau of Crime Statistics says a program that brings youth offenders face-to-face with victims of crime makes no difference in the rate at which they re-offend. The bureau looked at almost 1,000 youth referred to a Youth Justice Conference and compared them to the same number of youth dealt with by that state's Children's Court. The bureau found that young offenders made to confront their victims reoffend at the same rate as those that go through the Court. The bureau's Dr. Don Weatherburn says there still are community benefits to this type of program. "It works in the sense that it makes the victims of crimes or victims who participate in these processes much more satisfied, less angry about the offence," he said. "But it doesn't work to reduce juvenile reoffending, because it doesn't really address the causes of juvenile offending."

Blago Goes to Prison: The Associated Press reports former Illinois Governor Rod Blagojevich has entered a federal prison in Colorado this morning to begin his 14-year sentence for multiple corruption convictions. Blagojevich, 55, is the second former Illinois Governor to go to prison for corruption. "I'm leaving with a heavy heart, a clear conscience and I have high, high hopes for the future," said Blagojevich.

NY Legislature Agrees on DNA Bill: Mirela Iverac of WYNC News reports New York state lawmakers reached an agreement late Wednesday on a bill to expand the state's DNA database to collect samples from all offenders convicted of a felony and most misdemeanors. According to Governor Andrew Cuomo, this will make New York the first "all crimes DNA" state in the nation. Only those convicted of marijuana possession will not have to provide a DNA sample, as long as they have not previously been convicted of another misdemeanor or felony. The bill allows defendants in certain criminal cases to obtain DNA testing prior to trial to demonstrate innocence, and allows certain convicted criminal defendants to have access to the database.

Court Rules Herzog Placement Valid: Jordan Guinn of The Stockton Record reports California's 3rd Appellate District Court ruled Loren Herzog was rightfully paroled to the state-issued trailer in a fenced-in compound outside High Desert Prison, where he committed suicide earlier this year. The decision reversed a previous ruling from a Lassen County trial court that ruled Herzog's placement in the county was not in the best interest of the public and that the California Department of Corrections and Rehabilitation had illegally paroled him there. The CDCR had appealed that decision. According to the court ruling, "It was only after the Department determined that his prospective placement in San Joaquin County would locate Herzog within 35 miles of victims and witnesses that it exercised its discretion to find a more suitable placement." Even though Herzog died during the appeals process, a ruling was made on the topic because the court said the issue of a parolee being unwanted in multiple counties is likely to be a reoccurring issue.   

Oregon Inmate Seeks New Death Warrant: Helen Jung of The Oregonian reports a lawyer for condemned inmate Gary Haugen says a Marion County circuit judge should issue a new death warrant for Haugen, after Governor John Kitzhaber announced in November that he would not allow any executions to proceed while he is governor. Haugen was sentenced to death in 2003 for killing a fellow inmate at Oregon State Penitentiary, where he was serving a life sentence for the 1981 murder of his ex-girlfriend's mother. Haugen was scheduled to be executed in December. Haugen's lawyer cites several reasons why the reprieve is not valid. Haugen says the decision leaves him in limbo, where he cannot be executed nor receive a commutation of his sentence, and amounts to cruel and unusual punishment.

DNA Match Leads to Arrest in 1974 Slaying of Teen Girl: Harry Harris of the Oakland Tribune reports a DNA match led to the arrest of Curtis J. Tucker for the 1974 murder and sexual molestation of a 13-year-old girl in Oakland. The girl was found by her mother, beaten to death in the bathroom of their apartment. DNA from a semen stain on the girl's shirt was matched to Tucker, whose DNA was in the nationwide database from a 1978 arrest for rape in Washington. Tucker also served time in prison for a 1972 felony burglary conviction in Oakland, where he posed as a deliveryman, broke into a woman's apartment, and tried to sexually assault her. This case is believed to be the oldest cold case investigated by Oakland police.

Woman Raped at Occupy New Haven: NBC Connecticut reports a female member of the Occupy New Haven movement was raped in a tent at the Occupy camp. Police charged England Gamble with first-degree sexual assault and first-degree unlawful restraint. Gamble was convicted of first-degree sexual assault in 1991. The state sex offender registry said he did not register his address after being released from prison in 1996. 

CA Bill to Create Banned Persons List for Sporting Events: Demian Bulwa of the San Francisco Chronicle reports Mike Gatto (D-Los Angeles) has introduced a bill that would ban people convicted of serious or violent felonies at major league sporting events from such events for up to five years. Those caught attending a game while banned would be guilty of a misdemeanor, punishable by up to a year in jail and a fine of up to $10,000. The Department of Justice would also publish and maintain an online database of those banned from sporting events, which would include their criminal history. Sports teams would be asked to contribute money to fund the online list of banned fans, and to pay those who provide information that leads to the arrest of violent spectators. The text of the bill is here.

Turning Murderers Into Victims: Lester Jackson has this piece in American Thinker about some Supreme Court Justices' tendencies to sympathize with murderers more so than victims. Dr. Jackson notes in an email that the headline was the editor's choice, not his.     

Judge Rules Wisconsin Voter ID Law Unconstitutional: Patrick Marley of the Journal Sentinel (WI) reports Dane County Circuit Judge Richard Niess on Monday ruled Wisconsin's voter ID law violates the state constitution. Last Tuesday, another Dane County Judge, David Flanagan, halted the law for the upcoming April presidential primary and local elections. Wisconsin Attorney General J.B. Van Hollen said he will appeal the decision. There are currently four lawsuits pending against the state's voter ID law, which was approved by Governor Scott Walker in May. Photo IDs were required to vote in the state for the first time in February.

California Proposes Changes to Prison Gang Policies: Don Thompson of the Associated Press reports California prison officials on Friday released a draft of new regulations for dealing with prison gangs, especially policies that keep some gang members in isolation for years. Instead of renouncing their gang membership, gang members could earn more privileges and get out of the isolation units sooner if they stop engaging in gang activities and participate in rehabilitation and anger management programs. Terry Thornton, a spokeswoman for the Department of Corrections and Rehabilitation, said instead of focusing on separating and suppressing gang members, the new system would focus on trying to change the behavior of gang members through rewards and punishment. Gang associates would no longer be automatically sent to the security housing units, and many could continue to live in the general prison population.

Missouri Advances Changes to Parole and Probation: Wes Duplantier of the Associated Press reports the Missouri House and Senate last week both passed plans to overhaul the state's parole and probation systems. For every month they go without a violation, non-violent parolees or probationers would be given an additional 30 days of credit toward their sentence. Some felons who violate parole or probation for the first time would be given 120-day "shock" jail sentences instead of being returned to prison longer. The plans may not end up saving the state as much money as originally thought because of differences in the policy suggestions by a working group and the actual legislation passed by lawmakers.    

Solyndra pushed its way into the news primarily as an example of how the "enlightened" push for "green energy" could prove to be a taxpayer-financed disaster, not to mention a brewing scandal, as it turned out that millions were being shoveled into what was widely known to be a failing project, but one that was near and dear the the heart of one of Mr. Obama's billionaire campaign bundlers.  Someone must have forgotten that when the government picks business winners and losers, political considerations are never far behind  --  and, thus, neither is the smell, and often the fact, of corruption.

Perhaps the greatest example of cluelessness in the pages of the New York Times was their bafflement a few years ago over the fact that the prison population was still rising even though the crime rate was falling, apparently unable to discern a possible link between the two. ("Crime Keeps on Falling, But Prisons Keep on Filling" was the impossible-to-lampoon, Onion-worthy headline.) Or as one wit put it: we started lowering the crime rate when we finally acknowledged that the "root cause" of crime is criminals, and treated them accordingly.

...is when Gloria Allred wants you to bring it.

Even before Roper v. Simmons, California provided by statute that murderers under 18 at the time of the crime could not be sentenced to death.  So what do you do with a 17-year-old who commits a crime that would warrant death if committed by an adult?  Sentence to life-without-parole, obviously.

California further provides discretion to the judge for the 16s and 17s who commit first-degree murder with special circumstances.  The penalty is never mandatory.  Everyone in prison with an LWOP sentence under these circumstances has that sentence because the judge determined it fit the crime.

There is a drive underway to extend a possibility of parole to every under-18 murderer regardless of the circumstances of the crime.  Chris Megerian reports in the LA Times on a report by the notorious Human Rights Watch.

The report claims that half of California's juv-LWOPers did not personally commit the murder.  I seriously doubt that.  I certainly wouldn't take HRWs word for it.

Update:  It's even worse than I thought.  Under the heading "Troubling Facts About California Law and Practice" (page 3), the report says, "Nearly half of the youth sentenced to life without parole did not actually commit the murder." (Page 4.)  The authority cited for that statement is page 36 of HRW's 2008 report on the same subject. 

However, page 36 of the 2008 report does not say that.  The only statistic on that page is this:  "Respondents reported that in 56 percent of cases in which there was an adult codefendant, the adult received a lower sentence than the juvenile."  That figure, even if accurate, says nothing about the percentage of juvenile LWOP cases in which the juvenile did not personally commit the murder.

But wait, it gets even worse than that.  Who are the "respondents"?  If you were doing a study on crime, who are least reliable people you could possibly ask?  The criminals themselves, of course.  So who did HRW ask?  You guessed it.  A footnote says, "This data is based on survey data, which may be inaccurate due to the memory, perception, or self-perceived self interest of the respondents."

This is how completely fallacious claims become something that "everyone knows."  An interest group does an agenda-driven study with bad methodology and dubious sources.  They produce a report.  The qualifier is dropped into an inconspicuous footnote.  Another report cites the first report for something it doesn't really say and omits the qualifier.  Then a major newspaper reports what the study says uncritically without any checking at all.

Voila!  We now have an established fact that our Legislature can rely on to let murderers out of prison.

As Kent mentioned yesterday, a divided panel for the Ninth Circuit has upheld the involuntary medication of accused Tucson shooter Jared Loughner. The decision is long and traverses the mess that is our present-day involuntary medication doctrine.  But after my initial reading I'm reminded of this insight:

The issue is not whether psychiatrists should medicate people who are obviously psychotic and dangerous-- you don't need an APA amicus curiae brief for that.  The issue is whether you want to force all prison psychiatrists to be responsible for the "treatment" of every violent person out there, simply because they are "dangerous." 

The APA has always wanted the answer to be yes.  And here, again, they do not understand the consequences of this.  I can thus say, according to the strictest definition of the term, that the APA is completely insane.

There is, of course, much more to it than that - the opinion raises a number of issues related to standard of review, whether an administrative hearing is sufficient or judicial review is necessary, who's interests should form the standard, and whether Sell v. United States, 539 U.S. 166 (2003) eviscerates Washington v. Harper, 494 U.S. 210 (1990) once a defendant is committed for determination and restoration of competency to stand trial. 

I'm still thinking about the case but wanted to highlight two areas with some (very) initial thoughts. 

First, it may be the case that Harper's penological interest standard is more accommodating to the government's interest than the medically appropriate standard offered in Riggins v. Nevada, 504 U.S. 127 (1992), but they are not contrary.  For someone like Loughner, the overwhelming medical and scientific evidence strongly suggests pharmacological treatment is not only appropriate but necessary and vital.  For people with schizophrenia, psychiatric medication is indispensable whether they are dangerous or not.   

Second, Harper's dangerousness criterion is vague but is also necessary.  It is vague because saying someone is dangerous always begs the question of determinacies: for how long and under what conditions will someone be dangerous?  We often do not know the answer to this question but prison officials do need swift ways of handling dangerous and mentally ill inmates.

I hope to have more thoughts in the coming days.  

AP reports from Gainesville, Georgia:

Authorities say a north Georgia high school went on lockdown thanks to an auto correct error in a text message that was sent by a student to a wrong number.

The Gainesville Times (http://bit.ly/y9muQo ) reports that a student at Lanier Technical College sent a text message that meant to say "Gunna be at West Hall this afternoon" but auto correct changed the first word to "Gunman."

When the text message went to a wrong number Wednesday, the recipient alerted law enforcement and West Hall high school and middle schools were locked down. The lockdown was lifted after authorities traced the message to the student and realized the text was not a threat.

Hall County Sheriff's office spokesman Sgt. Stephen Wilbanks says the student had no intention to do any harm.

The previous two posts discussed the Ninth Circuit's opinions in the Arizona cases.  A separate note is in order regarding Arizona's decision to drop the three-drug protocol and follow Ohio and Washington to the use of the single-drug method.  There is no good reason not to at this point.  The concern that it would take the inmates too long to die has been refuted.  From the Arizona Republic article:

It was the first Arizona execution carried out with a single drug instead of a three-drug cocktail. But result was the same. Execution started at 10:23 and ended at 10:33, roughly the same amount of time that the execution with the three-drug protocol took. Moormann died with a peaceful look on his face.

The Ninth Circuit issued three opinions in Arizona capital cases yesterday: Towery v. Ryan, Moormann v. Schriro, and Towery v. Brewer.

When the US Supreme Court first took up Maples v. Thomas, I was worried that if Maples won lawyers for capital inmates would start routinely shoehorning their garden-variety criticisms of the effectiveness of prior habeas counsel into "abandonment" claims and that some courts might actually buy that.  The first part of that concern has indeed come to pass.  The second hasn't, yet.  In Towery v. Ryan, Towery's prior counsel abandoned on habeas a weak claim that had been rejected by the Arizona Supreme Court.  That is entirely proper.  The US Supreme Court has expressly held in a capital case that winnowing out weak claims to focus on the stronger ones is not only permitted, it is quality advocacy.  The Ninth Circuit does not mention the latter point, but it does hold that leaving out the weak claim is not abandonment, which is sufficient to distinguish Maples.  Moormann v. Schriro is similar on the abandonment issue.  Moormann further claimed that he is retarded now, even though he wasn't before.  The Ninth correctly rejects the claim, noting that onset before 18 is a standard condition for a retardation diagnosis, and Arizona is well within its rights to insist on that criterion.

Even though the abandonment claims were rejected, a lot of unnecessary time and resources went into rejecting them.  Congress's strict, and mostly successful, toughening of the successive petition rule is endangered by the creation of new issues to litigate.

I will address the lethal injection claim in the next post.

Moormann was executed 10:23 to 10:33 MST, Michael Kiefer reports for the Arizona Republic.