Results matching “first”

Arizona Sheriff Targeted By Justice Department:  An editorial from Investor's Business Daily says Arizona Sheriff Joe Arpaio is being targeted by the Justice Department in a report accusing the sheriff of violating federal law and the Constitution in his department's handling of Hispanics. Assistant Attorney General Thomas E. Perez, head of the department's Civil Rights Division, said a three-year civil investigation found that the sheriff and his deputies engaged in unconstitutional conduct and violations of federal law that jeopardized Arpaio's "commitment to fair and effective" law enforcement. The name Thomas Perez may sound familiar, as he was heavily involved in the decision to drop the voter intimidation case against members of the New Black Panther Party. Nine months before the DOJ first informed Apaio of its investigation, Immigration and Customs Enforcement (ICE) conducted its own investigation of Apaio's office and procedures and did not find anything inappropriate or illegal. The story is here.

Violent Crime Decreasing, FBI reports: Nedra Pickler of the Associated Press reports the Federal Bureau of Investigation released its Preliminary Semiannual Uniform Crime Report Monday for January to June, 2011. As a whole, law enforcement agencies throughout the U.S. reported a decrease of 6.4% in the number of violent crimes when compared with figures reported for the same time period in 2010. The number of property crimes from January to June of 2011 decreased 3.7% in the U.S. when compared with data from the same time period in 2010. The preliminary report is here. However, the National Law Enforcement Officers Memorial Fund reported this summer that for the first half of 2011, the number of law enforcement fatalities increased 14% from the same time period in 2010, with a 33% increase in the number of officers killed by gunfire. 40 officers were killed by gunfire in the first half of 2011, the highest number in two decades.

U.S. Supreme Court Schedules 3 Days of Arguments on New Federal Health Care Law: Jesse J. Holland of the Associated Press reports the U.S. Supreme Court announced Monday that it will hear arguments for three days in March over the Patient Protection and Affordable Care Act, Obama's health care overhaul. Arguments are scheduled for March 26th, 27th, and 28th, with nothing else on the court calendar for that week. The justices will be hearing more than five hours of arguments.

Study Says Brain Scan Isn't Crime Predictor: Maria Cheng of the Associated Press reports the Royal Society, the world's oldest scientific academy, examined how neuroscience is being used in some court cases, and says criminal behavior can't be blamed on how someone's brain is wired, at least not yet. "Having a psychotic brain is not a general defense against a criminal charge, said Nicholas Mackintosh, emeritus professor of experimental psychology at the University of Cambridge, and who led the group that produced the report. "There's no such thing as a gene for violence," he said. The Royal Society concluded it's too soon for the law to be swayed by scientists' understanding of the brain. The scientists said that while some criminals like psychopaths have unique brain structures, these differences are not enough to release them from being legally responsible for their crimes. The report is here.

Newt Gingrich has been raising a lot of hackles lately with his statements about judges and the separation of powers.  In typical Gingrich fashion, he begins with a genuine problem, throws in some real history, and then proceeds to run off the rails.

Joe Palazzolo at WSJ Law Blog has this post, with some excerpts from the last Republican debate.

The basic complaint about "activist judges" is quite valid.  Federal judges generally, and the Supreme Court in particular, have often misused the power of judicial review to strike down statutes they disagree with as a matter of policy, even though neither the text nor the history of the Constitution justifies the decision.  For example, the notion that the Constitution forbids the people of the states from deciding, on a uniform statewide basis, what factors will be considered mitigating in capital cases is utterly unjustifiable as a matter of constitutional law, whatever one thinks of the policy.

It is true that the elected branches are often too deferential to the judiciary.  It is true that Jefferson, Jackson, Lincoln, and FDR had major disputes with the Supreme Court.  Within constitutional limits, the President and Congress should give more attention to reining in overreaching courts.

The second thing we should do is kill all the headline writers.

Here we go again.  Christine Hsu has this story in Medical Daily.

While alcohol has frequently been linked to criminal activity among adults, a new study finds that there is a strong association between childhood drinking and criminal activity.

Researchers at the University of Miami found that the relationship between drinking and criminal activity is not just limited to perpetrating a crime, but also to criminal victimization, for both males and females.

Note that the article is careful to say "association" and "relationship," not that the booze necessarily caused the increase, which a correlational study cannot tell us.  Headlines are generally not written by the reporters who write the stories, and this important distinction was completely missed by the headline writer.  "Underage Drinking Boosts Criminal Activity: Researchers."

Whoever wrote the headline should have to stay after school and write 100 times on the blackboard:

Correlation does not prove causation.
Correlation does not prove causation.
Correlation does not prove causation.
Correlation does not prove causation.
Correlation does not prove causation.

The First Congress, fulfilling an agreement made to secure ratification, proposed twelve amendments to the Constitution on September 25, 1789.  (See here and here.)  Ten of them (originally numbered III to XII) were ratified 220 years ago today.  These ten are known as the Bill of Rights.

The Bill of Rights was not, of course, intended to be a "detailed code of criminal procedure," as Judge Friendly noted the Supreme Court had made it by 1970.  There is nothing in it about letting the murderer go free because the constable blunders.  It most certainly does not forbid a police officer to ask an arrestee if he wants to talk about a crime merely because he has previously asked for a lawyer for an unrelated crime.

So today let us raise a glass to the real Bill of Rights and renew our resolve to scrape the barnacles from the hull.

DNA to Help Police Identify Suspect's Eye Color: New Scientist Magazine reports scientists at Erasmus University Medical Centre in the Netherlands have developed IrisPlex, which can predict from a sample of DNA whether a person has blue or brown eyes with 94 percent accuracy. The UK could use IrisPlex immediately, while the Dutch Ministry of Security and Justice is expected to approve the kit in the coming weeks. According to Manfred Kayser, one of the developers of IrisPlex, it is the first validated tool to help police identify suspects by predicting a visible trait. This could be especially helpful in cases where DNA has been recovered from a crime scene but police can't find a match in a DNA database. However, IrisPlex is not accurate enough to secure convictions in court.  

Blagojevich to Report to Prison March 15: The Associated Press reports U.S. District Judge James Zagel agreed Tuesday to allow ousted Illinois Governor Rod Blagojevich to report to prison March 15. He had previously been ordered to begin serving his 14-year sentence on February 16. Blagojevich's attorneys asked for the extension so he could help his family move into a new home.  

Eleventh Body Found Along New York Beach Area: The Associated Press reports police announced Tuesday that they believe they have discovered the skeletal remains of Shannan Gilbert. Her disappearance last year sparked the investigation that led to the eventual discovery of ten homicide victims near a beach on Long Island. The remains were found about a quarter mile from where authorities found Gilbert's pants, shoes, pocketbook with ID, and other personal items last week. While police now believe a lone serial killer is responsible for the deaths of the ten bodies discovered, Suffolk County Police Commissioner Richard Dormer reiterated Tuesday that police believe Gilbert likely drowned. Five of the ten victims have been identified. Gilbert's mom said, "I have no reaction until I get a positive ID from the medical examiner."

The Wall Street Journal continues its coverage on the problems of overcriminalization and overfederalization.  Gary Fields and John Emshwiller have this article today, focusing on the mens rea problem, the state of mind required before a forbidden act is considered a crime.  They highlight the plight of Lawrence Lewis, who received a criminal conviction for diverting a backed-up sewage system to a drain he believed, mistakenly, led to the city's sewage treatment system.

The mens rea problem is also discussed in CJLF's recent brief in the Stolen Valor Act case.  We urge the Court, among other things, to interpret the statute as applying only to knowing falsehoods, and we quote the classic opinion by Justice Jackson:

"Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.⁹ As the state codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation." Morissette v. United States, 342 U. S. 246, 251-252 (1952).

Footnote 9 quotes Justice Holmes, "Even a dog distinguishes between being stumbled over and being kicked."

The mens rea element is important for two reasons.  The first, as the article notes, is to avoid punishing and stigmatizing as criminals people such as Mr. Lewis who simply made a mistake.  The second, and also important, is to avoid diluting the moral force of the criminal law.  The stigma that rightly attaches to being a criminal needs to be reserved for people who make a choice to do evil.  If it is not so reserved, it is in danger of losing that force.

Once again, the US Supreme Court has summarily and unanimously reversed a federal court of appeals for failure to observe the command of Congress that federal habeas is only to correct clearly wrong state court decisions, not to substitute the federal court's judgment for the state court's on close questions.  The case is Hardy v. Cross, No. 11-74.

Does it violate the Confrontation Clause of the Sixth Amendment when a witness testifies at a defendant's first trial, with cross-examination, but disappears before the retrial, and the prior testimony is read at the second trial?  Generally not, as long as the prosecution made a good faith effort to locate the witness.  See Ohio v. Roberts, 448 U.S. 56, 75 (1980) (overruled on other grounds in Crawford v. Washington, 541 U.S. 36 (2004).)

Comparing the efforts made in this case with those deemed sufficient in Roberts, it seems quite clear that they were more than sufficient.  The state courts so held.  The Seventh Circuit held that this decision was not only wrong but unreasonable, the AEDPA standard for overturning the state court judgment in this manner.  That decision was itself unreasonable, so clearly so that the high court did not even need to take merits briefing and hear argument.

The loony fringe caucus in Congress wants to amend the First Amendment to exclude "for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests" as well as ban any expenditures regarding elections by such entities.  Eugene Volokh at the eponymous blog has this post noting that this would effectively ban newspaper editorials on election issues. This blog, being funded by a nonprofit, could apparently still opine.

Georgia DA Seeks Death Penalty for Murderer of Law School Student: Amy Leigh Womack and Joe Kovac Jr. report in the Macon Telegraph that Bibb County (GA) District Attorney Greg Winters announced his intention to seek the death penalty for Mercer University law graduate Steven McDaniel, 26, if he is convicted for the June dismemberment killing of his classmate, 27-year-old Lauren Giddings. Her dismembered torso was found wrapped in plastic bags and stuffed in a trash can beside her apartment in downtown Macon. McDaniel was her next-door neighbor. Billy Giddings, Lauren's father, wonders if the prospect of the death penalty will put pressure on McDaniel to cooperate with authorities and provide information about where the rest of Lauren's remains are. 

World's First Clinic for Stalkers Opens in London: The Press Association (UK) reports the world's first clinic aimed at treating stalkers opened in London Thursday. "If we can treat stalkers, then we can save lives," said Dr. Frank Farnham, a consultant psychiatrist and one of the founders of the clinic. Dr. Farnham said the service will initially deal with referrals from courts for the assessment of stalkers, and if further treatment is needed, an 18-month course would be provided as a less expensive and more effective option for courts than a prison sentence for stalking-related offenses. 

CDCR to Convert Women's Prison to House Low-Level Male Inmates: The California Department of Corrections and Rehabilitation announced today its decision to convert the Valley State Prison for Women (VSPW) in Chowchilla to a facility that will house low- to medium-security adult male inmates. The CDCR says the conversion will help to reduce inmate overcrowding among the adult male population and avoid staff layoffs at the institution. The conversion is expected to be completed by July 2013.

Connecticut Man Given Death Penalty for Deadly Home Invasion: John Christoffersen of the Associated Press reports after five days of deliberations, a jury condemned Joshua Komisarjevsky to death Friday for killing a woman and her two daughters in their home. Komisarjevsky will join his accomplice Steven Hayes on Connecticut's death row. Komisarjevsky and Hayes were both on parole at the time of the murders. The 2007 attack has drawn comparisons to the crime described in "In Cold Blood," and sparked tougher state laws for repeat offenders and home invasion crimes. 

This op-ed in today's WSJ, with the above title, is one of those articles that is more important for who says it than for any originality in what is said.

Floyd Abrams is widely regarded as a First Amendment hero among folks who favor a broad interpretation of that enactment.  So does he think Julian Assange is a hero?  Not at all.  He finds "much to deplore."

None of this means that if WikiLeaks or Mr. Assange were brought to trial in this country that they would have no basis for claiming First Amendment protection. They would and should. Whatever the legal result, it would not absolve Mr. Assange of conduct that has put many people at great risk, or indeed, may already have cost some of them their lives.

"When delicate information is at stake, great prudence is demanded so that the information doesn't fall into the wrong hands and so that people are not hurt," the German newspaper Die Welt commented upon WikiLeaks' bulk release of unredacted State Department cables. That such self-evident language seems alien to Julian Assange and to WikiLeaks says it all.

Appeals Court Orders Reconsideration of Inmate's Death Sentence: The Associated Press reports the 9th U.S. Circuit Court of Appeals Wednesday ordered the reconsideration of California inmate Jesse Gonzales' death sentence. Gonzales was sentenced to death in 1981 for the 1979 shooting death of a Los Angeles County Sheriff's deputy. The divided three-judge panel sends the case back to state court to review whether psychological reports which were not disclosed by prosecutors about a jailhouse informant, who testified during the guilt and penalty phases of Gonzales' trial, could have helped sway the jury against a death sentence. The opinion is here.

Thou Shalt Not Tweet: Jeannie Nuss of the Associated Press reports the Arkansas Supreme Court on Thursday threw out a death row inmate's murder conviction and sent the case back to a lower court for a new trial. Attorneys for Erickson Dimas-Martinez, who was convicted for the shooting death of 17-year-old boy, appealed his 2010 murder conviction because a juror continued to tweet during the trial after being given specific instruction by the judge not to do so. Dimas-Martinez's lawyers also complained that another juror slept during court proceedings. An assistant attorney general argued before the state Supreme Court that the juror's tweets were about his feelings and not specifics about the trial. The opinion is here.

FBI to Change Definition of "Rape": Rheana Murray of New York Daily News reports the FBI's definition of "rape" will be updated for the first time since 1929. According to the FBI's website, the proposed new definition is "penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." The definition currently in use is: "Carnal knowledge of a female forcibly and against her will." An agency panel voted on Tuesday to change the definition, and the new definition is still awaiting approval by FBI director Robert Mueller.

Cigarette Butt Leads to Arrest in 31-Year-Old Murder Case: Reuters reports DNA from a cigarette butt has led to an arrest in a 31-year-old Maine murder case. In 1980, 20-year-old Rita St. Pierre's partially nude body was found near a road. Her body had been bludgeoned and run over by a vehicle. Jay Mercier was identified as a person of interest, but during the initial investigation police did not find enough evidence to arrest him. A police detective collected one of Mercier's cigarette butts after police had questioned him outside his house last year. The DNA from the cigarette butt matched sperm found found on St. Pierre's body. The DNA match enabled police to obtain a warrant to swab Mercier's mouth for more DNA and other tests. On Monday Mercier, who was arrested in September and denied bail, entered a plea of not guilty to murder in state court in Somerset County, Maine.

A popular feature on newspaper websites is a "fact checker" page, which purports to check the statements of public figures against the facts.  These features have been controversial, as they are frequently alleged to have a political bias or to get the facts wrong themselves.

The Oregonian and PolitiFact have this page on a statement by Clatsop County, Oregon DA Joshua Marquis that opponents of the death penalty are "in a minority of about 25 percent."  They rate that statement as "half true."  See also this post by Ryan Kost.  How do the assertions of fact justifying this rating stand up to scrutiny?

California Serial Killer Up For Parole: Don Thompson of The Associated Press reports Juan Corona, who was once the nation's worst known serial killer, is making his seventh bid for parole Monday from Corcoran State Prison. In the 1970's Corona murdered and mutilated the bodies of 25 farm workers and buried them in orchards in Yuba City, near Sacramento. None of the victims relatives are expected to be at the hearing. Sutter County District Attorney Carl Adams said it's a sad testament to Corona's crimes since he targeted people who had few relatives. Corona was sentenced to 25 concurrent life sentences in 1982. He was not eligible for the death penalty because California's capital punishment law had been ruled unconstitutional at the time.

Jury to Decide Fate of Connecticut Murderer: Brian Vitagliano of CNN reports a jury began deliberating Monday whether to sentence Joshua Komisarjevsky to death or to life in prison. Komisarjevsky was convicted in October on 17 charges including three counts of murder, four counts of kidnapping, and charges of burglary, arson, and assault in connection with the deadly home invasion of the Petit family. Steven Hayes, the first defendant to stand trial in this case, was sentenced to death after being convicted of 16 of the 17 charges. Prosecutors argued that Hayes and Komisarjevsky went into the Petit home, beat and tied up Dr. William Petit, raped and strangled his wife, molested one of their daughters, then set the house on fire before attempting to escape. The two daughters were tied to their beds and died of smoke inhalation. Dr. Petit managed to escape. Prosecutor Michael Dearington described the ordeal as hours of "terror that no person should endure." "How many people do you have to kill before the death penalty is appropriate?" he asked.

Virginia Inmate Appeals Dismissal of Sex Change Lawsuit: Dena Potter of The Associated Press reports Ophelia De'Lonta, a transgender Virginia inmate, has appealed the dismissal of her lawsuit asking the state to pay for her to have a sex change operation, and says the decision should be decided by a jury. U.S. District Judge James Turk tossed out De'Lonta's lawsuit in October, saying that the state was adequately treating her gender identity disorder and that De'Lonta was not being denied medical care, only her preferred treatment -- surgery. In 2004, De'Lonta was awarded the right to hormone treatment and psychotherapy, as well as other allowances like being able to wear some female clothing. Although the hormones have caused her to develop breasts and other feminine features, De'Lonta says the therapy is no longer effective and she can't control the urge to mutilate her genitals and continue her attempts to do so unless she gets the $20,000 surgery.

The US Supreme Court took up only one case in its orders list today.  The question involves qualified immunity in a civil suit against Secret Service agents.  Plaintiff Steven Howards confronted Vice President Cheney at a Colorado shopping mall back in 2006.  His confrontation went beyond verbal into very mildly physical, and an agent arrested him when he falsely denied contact.  He claims retaliation in violation of the First Amendment.  The District Court granted the agents qualified immunity, and a divided panel of the Tenth Circuit reversed in part.

The three habeas cases we've been watching are relisted yet again for next week.

Hmmm.  Confronting the Veep.  Arrest.  First Amendment implications.  Qualified immunity.  Why do I get the feeling I've seen this movie before?

Victim's Family Speaks Out After Death Sentence Reprieve: Meghan Kalkstein of KATU News (OR) reports the family members of Gary Haugen's first victim are speaking out against Oregon Governor John Kitzhaber's decision to grant Haugen a reprieve. Haugen was scheduled to be executed December 6. Mary Archer, Haugen's first victim, was 38-years-old when he killed her in 1981. While Haugen wasn't put on death row for his first crime (he was given a death sentence after killing another inmate), Archer's family members say what Kitzhaber did is still an injustice to all of his victims. Ard Pratt, Archer's former husband, said Kitzhaber called him before he made the announcement. "When he told me that, I told him exactly what I thought of what he was doing, and the fact that he's a coward for not following through," Ard Pratt said. The family says the Governor could have taken action sooner, instead of waiting weeks before the scheduled execution. "... he went right ahead and let everybody get dragged through the mud," said Kathy Pratt, Mary Archer's daughter. They worry that the victims associated with Haugen will have to relive the pain if they have to go through this process again. "I would really rather not but it's an obligation that I have to do that to see that justice is finally done," Ard Pratt said.

Ohio Bill Would Require Victim Notification of Parole Hearings: Marc Kovac, the Capital Bureau Chief for Dix Communications, reports legislation introduced in the Ohio Senate would require prosecutors to inform crime victims and their families in advance of their perpetrators parole hearings. The bill has been titled Roberta's law in memory of a young girl who was raped and stabbed to death. Her family was not notified when her assailant was paroled, and instead her father read about it in the newspaper. Her family did not have the opportunity to speak at the parole hearing. Under current state law, prosecutors are only required to contact victims about parole hearings for offenders if victims request to be notified. Under the proposed legislation, prosecutors would be required to contact victims 60 days before parole hearings, parole board recommendations on early release, or sentence commutations regardless of whether notifications were requested. The legislation would also include voluntary manslaughter in the list of sexually oriented offenses that comply with sex offender registration requirements. 

The Supreme Court today took up a case of the application of the Apprendi rule (jury trial of facts that increase maximum sentence) to fines in the case of Southern Union Co. v. United States, No. 11-94.  First Circuit opinion is here.

The Court also took up a case on harmless error analysis, Vasquez v. United States, No. 11-199.  Seventh Circuit opinion is here.

The Court took up and consolidated two cases, Dorsey v. United States, No. 11-5683 and Hill v. United States, No. 11-5721, relating to the reduction in crack cocaine sentencing.  Doug Berman has this post at SL&P.

These are all kind of nuts-and-bolts, fill-in-the-details type cases.  No blockbusters.  The three habeas cases we have been watching, Hardy v. Cross, Wetzel v. Lambert, and Cash v. Maxwell, have been relisted yet again for the December 2 conference.

The Court turned down the case of Faulkner v. United States, No. 11-235.  The police had stopped Faulkner without probable cause but then discovered an outstanding warrant.  The Eighth Circuit held the evidence obtained in the subsequent search of the car was admissible.  Wong Sun, purged taint, and all that.  In footnote 4, the Eighth noted the then-recent grant of certiorari in Tolentino v. New York, but the high court subsequently dropped that case.  (CJLF brief here.)

Riverside County to Charge Offenders for Jail Time: Phil Willon of the Los Angeles Times reports starting in December, Riverside County will bill criminals in county lockups up to $142 a day. Already in California, Placer County charges inmates up to $118 a day, and Madera County $73 a day. In accordance with state law, a judge must first determine that a defendant has the ability to pay before the county can seek an incarceration fee. Riverside County Supervisor Jeff Stone acknowledges that most convicted criminals will not be able to pay but estimates that up to 25% may be able to pay some amount, which could bring in at least $6 million a year to the county. "In these very challenging economic times, every dollar counts for counties, especially when you're $80 million in the hole," Stone said. "If you do the crime, then you're going to do the time and you're going to pay the dime."

Justice Department Sues Utah Over Immigration Law: Josh Loftin of The Associated Press reports the U.S. Justice Department filed a lawsuit Tuesday challenging Utah's immigration enforcement law, signed by Utah Governor Gary Herbert in March. The law requires those arrested for serious crimes, ranging from certain drug offenses to murder, to prove their citizenship and gives police the discretion to to check citizenship status on traffic infractions and other lesser offenses. The Justice Department argues that Utah's enforcement law preempts federal authority and could lead to the harassment and detention of authorized visitors and American citizens. Attorney General Eric Holder in a statement, "The federal government is the chief enforcer of immigration laws ... it is clearly unconstitutional for a state to set its own immigration policy." Other states that have been sued by the Justice Department after passing strict enforcement laws are Arizona, Alabama, and South Carolina.

Joseph Brean reports in the National Post:

[A] new report in the journal Psychological Science, which claims to show "how unacceptably easy it is to accumulate (and report) statistically significant evidence for a false hypothesis."

...[T]wo scientists from the Wharton School of Business at the University of Pennsylvania, and a colleague from Berkeley, argue that modern academic psychologists have so much flexibility with numbers that they can literally prove anything.

Kent has been doing a better job than I of covering OWS.  This is largely because Kent is more industrious, and industry is what it takes to keep up with the ever-lengthening list of crimes and other assorted bad behaviors going on. 

Still, it's not all bad behavior.  Some of it is the sort of refinement you'd expect from......well.......from one of those execrable one percenters who is (gasp!) living high on the hog by, of all malevolent things, having a successful job.

When I ran across this story, the very first thing I thought of was the Black Sea mansions Soviet commissars managed to get ahold of while working for The Good of The Masses. 

The names change, the venues change, and economic systems change, but what doesn't change is the fact that people who have talent come out ahead of people who don't.

Propensity for crime changes with age, in part because of physical changes and in part because of experiences we have along the way.  One major attitude-changing life event is having children.  Is parenthood a factor in the decline of criminality with age?  So find Kerr, Capaldi, Owen, Wiesner, and Pears in Changes in At-Risk American Men's Crime and Substance Use Trajectories Following Fatherhood, Journal of Marriage and Family, v.73, pp. 1101-1116 (Oct. 2011).  Here is the abstract:

No good reason.  CJLF's press release follows the jump.

2002 Death Sentence Stands: On Thursday, a federal appeals court rejected the August decision (reported here) made by a three-judge panel to overturn the 2002 death sentence of Marvin Gabrion. The panel's decision was based on the jury not being told about Michigan's longstanding ban on capital punishment. Gabrion was able to receive the death penalty because the body of his victim was found on federal land. The 6th U.S. Circuit Court of Appeals will now hear the case. Rina Miller of Michigan Radio has this story.

Cold-Blooded Contract Killer Faces Death Penalty: Jack Dolan of the L.A. Times reports that on Thursday James Fayed, who was convicted earlier this year for the 2008 contract killing of his wife, was sentenced to death in Los Angeles County. Fayed received the death penalty for first-degree murder and 25 years to life for the conspiracy to commit murder. Fayed's attorney, Steve Meister, argued the futility of imposing the death sentence in California "where condemned inmates live for decades and many die of natural causes." The wife's brother said it is hard for family members to find complete peace with Fayed alive.

Massachusetts House Passes Habitual Offender Legislation: Benjamin Paulin of the Dover-Sherborn Patch reports that Massachusetts has passed legislation that modifies current laws governing cases of habitual criminals, giving them longer sentences. Under the new law repeat offenders will have to face 2/3 of their sentence as opposed to half before becoming eligible for parole. Habitual offender status is realized when an offender convicted of any two major crimes is convicted of a third major crime. Under the new law, upon the third offense the offender would be marked parole ineligible altogether and imprisoned for the maximum term provided by law.

DNA Evidence Solves 13-Year-Old Cold Case Murder Mystery: Thirteen years ago, ten-year-old Anna Palmer was found dead on the front porch of her Salt Lake City home with five stab wounds to the throat and a severely beaten body. There were no witnesses, and detectives did not find any obvious evidence or apparent suspects. In 2009 detectives turned to Sorenson Forensics, which determined "that fingernails from the victim would be something that might yield probative results." Palmer's fingernails were taken into the lab and tested. Sorenson Forensics was right. Analysts discovered DNA that belonged to Matthew Breck, who lived only a block away from the Palmers at the time of the murder. Breck was serving a 10-year sentence in Idaho for a sex-related crime involving a child when he was charged with the aggravated murder of Palmer. In August 2011 he was sentenced to life in prison. Sandra Yi from KSL (Utah) has this story.  

 

Court Rules You Can't Use Cell Phone At Red Light: Bob Egelko of The San Francisco Chronicle reports the First District Court of Appeal in San Francisco ruled Monday that a driver who is stopped at a red light is technically "driving" and still prohibited from using a handheld cell phone. Carl Nelson of Richmond, CA had appealed the $103 citation that he received in 2009 when a police officer saw him dialing a phone and holding it up to his ear while at a stoplight. Nelson argued that the 2007 state law that prohibits using handheld devices only applies when a vehicle is in motion. In the 3-0 ruling, Justice James Lambden said the law was intended to cover "persons driving on our public roadways, who, like (Nelson), may pause momentarily while doing so in order to comply with the rules of the road." Nelson's lawyer said the ruling disregarded the state Supreme Court's definition of driving from a 1991 case and would appeal the decision to the state's high court. The 1991 ruling involved a man arrested for drunken driving after police found him asleep at the wheel of a car that was legally parked with its motor still running. His arrest was thrown out by the state Supreme Court, which ruled that driving requires "proof of volitional movement of a vehicle."

California Medical Parolee May Be Returned For Lewd Acts: Don Thompson of The Associated Press reports Peter Post, 33, a former inmate who was released November 3 under California's new medical parole law is back in custody and make have his parole revoked for committing lewd acts days after his release. Post was released to a long-term care facility in San Diego after being found to be permanently physically incapacitated. Post was returned to a 24-hour secure medical facility November 10 after exposing himself and committing a sexual act in front of female nurses at the private facility. Terry Thornton, a spokeswoman for the Department of Corrections and Rehabilitation, said Post's ability to commit the acts could mean he is still a public safety risk and may have physically improved enough to complete the rest of his 31-year sentence. Post will undergo a medical evaluation before the board rules on whether to revoke his parole or not.

California Jails Getting More Prisoners Than Expected: Richard Winton and Andrew Blankstein of The Los Angeles Times report the number of state prisoners being diverted to county jails is significantly higher than officials had estimated, prompting counties to speed up efforts to make arrangements for the extra inmates. Los Angeles County has booked over 300 more inmates by now than projected, and Orange County has booked more than double the amount of inmates the state had estimated. According to an internal report by the district attorney's office, Los Angeles County has the funding to open an additonal 1,800 beds but expects to receive 8,000 state prisoners in the next year. In Kern County last week the Sheriff's Department freed 50 parole violators because they had no jail beds for them. Riverside County Sheriff's Chief Deputy Jerry Gutierrez said his jail will be full by January.   

The US Supreme Court denied a stay of execution to Ohio triple murderer Reginald Brooks.  Four times.  Orders are here, here, here, and here.  No dissents are noted.

Kantele Franko reports for AP that the execution proceeded. There is no question of identity of the perpetrator in this case.  Brooks "fatally shot his three sons while they slept in 1982, shortly after his wife filed for divorce."

Prosecutors acknowledged Brooks was mentally ill but disputed the notions that it caused the murders or made him incompetent. They said he planned merciless killings, bought a revolver two weeks in advance, confirmed he'd be home alone with the boys, targeted them when they wouldn't resist and fled on a bus with a suitcase containing a birth certificate and personal items that could help him start a new life.

The Court also denied a stay to Florida triple murderer Oba Chandler.  Matthew Hendley has this post at the Broward-Palm Beach New Times.  The post incorrectly says the stay was denied by Justice Thomas.  Standard procedure is for stay applications to be submitted to the Justice assigned to the circuit, who then regularly refers the application to the full Court for decision, except in emergencies.  That is what happened in this case.

Update:  Alan Johnson reports in the Columbus Dispatch, "Those witnessing the execution behind glass about 10 feet away gasped but said nothing as Brooks first glared at and 'flipped off' his ex-wife, the mother of the three children he murdered nearly 30 years ago after she filed for divorce."

Two Executions Scheduled For Today: Brent Kallestad and Tamara Lush of The Associated Press report (registration required) Oba Chandler, 65, is scheduled to die by lethal injection today at the Florida State Prison. Chandler was convicted in 1994 for killing a woman and her two daughters while they were on vacation in Florida. In Ohio, Alan Johnson of The Columbus Dispatch reports Reginald Brooks, 66, is scheduled to be executed this afternoon for killing his three son ages 11, 15, and 17 in 1982. Brooks used a gun he had recently purchased to kill his sons while they slept in their beds.

Stay of Execution Denied For Convicted Idaho Killer: Laura Zuckerman of Reuters reports a federal judge Monday refused to grant a stay in the execution of Paul Ezra Rhoades, 53, who is scheduled to die by lethal injection Friday in Idaho for murdering two women. Rhoades sought a stay while his legal challenge that Idaho's method of execution breached his constitutional protections against cruel and unusual punishment was being weighed by the courts. U.S. Magistrate Judge Ronald Bush said there was little chance that Rhoades would prevail in his lawsuit. It will be Idaho's first execution in 17 years.

Man Who Volunteered DNA Convicted of Three Murders: The Associated Press reports Francisco Acevedo, 43, was convicted Monday of killing three women in New York after giving a DNA sample as part of an optional parole application. Acevedo was in prison on a drunk driving charge in 2009 when his blood sample was matched to the three killings. Acevedo was convicted for the 1989, 1991, and 1996 murders where each woman was found naked, bound at the hands, strangled, and facing upward. His sentencing is scheduled for January 17, where he could face a prison term of 75 years to life. 

Justice On Hold: Jim Mustian of the Ledger-Enquirer has this article (registration required) about the case of James Douglas Andrews, 42, who has served 19 years on death row in Georgia without filing an initial appeal. Since 1993 Andrews' initial motion for a new trial has been held up in Muscogee County Superior Court. According to Anne S. Emanuel, a death penalty expert and professor of law at Georgia State University College of Law, "until that motion is ruled upon, the clock on an appeal will not start running." Andrews is the oldest of three cases (1994, 1998) that remains similarly stalled at step one of the appeals process and have not filed mandatory appeals to to the Georgia Supreme Court. 

Aleisha Orr of the Sydney Morning Herald reports:

Lawyers have spoken against the West Australian government's plan to adopt the toughest organised crime laws in the country, which could see bikies banned from associating.

Attorney General Christian Porter hopes to shatter the core of outlaw bikie gangs with the new law, which would make WA's organised crime laws the toughest in the country.

Gary Fields and John Emshwiller have this article in the WSJ.

An explosion of criminal prosecutions in the nation's overextended federal courts has left civil litigants from bereaved spouses to corporate giants waiting years for their day in court.

The logjam, prompted particularly by criminal cases related to drugs and immigration, as well as by the proliferation of more-obscure federal criminal laws, threatens the functioning of the nation's judicial system, say some judges and attorneys.

"We need the resources to do both" civil and criminal law, says W. Royal Furgeson, a senior federal judge in Dallas. If decisions on contracts, mergers and intellectual-property rights "can't be reached through quick and prompt justice, things unravel for business."

But everybody needs more resources, so the first thing we should do is look at the federal courts to see what they are doing that can be done by state courts or does not need to be done at all.

After the argument in Greene v. Fisher, I wrote this post on the confusion between (1) the nonretroactivity rule of Teague v. Lane and (2) the rule of generally not relitigating in federal court issues already decided by the state court (with 2 exceptions) in 28 U.S.C. §2254(d), part of the Antiterrorism and Effective Death Penalty Act of 1996.

In Greene, the petitioner's argument, in essence, was that whether the state court decision was clearly wrong (one of the exceptions to §2254(d)) should be judged as of the same date as the date for retroactivity of new rules under Teague.  As I explained in the prior post, these two rules are entirely different in nature, even though they often point to the same result, and there is no good reason for making them turn on the same date.

Back in 2000, in Williams v. Taylor, we came within one vote of having §2254(d) minimized to little more than a codification of Teague.  Today, I am pleased to report, all of the nine Justices of Supreme Court are clear on this point.  The unanimous opinion of the Court says,

We have explained that AEDPA did not codify Teague, and that "the AEDPA and Teague inquiries are distinct." Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam). The retroactivity rules that govern federal habeas review on the merits--which include Teague--are quite separate from the relitigation bar imposed by AEDPA; neither abrogates or qualifies the other.

Note well the characterization of §2254(d) as a relitigation bar, a term first used by the Supreme Court in Harrington v. Richter last term.  See also the previous post and my law review article, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888 (1998).  This is the key to understanding §2254(d).

Congrats to the Philadelphia DA's Office and Ron Eisenberg.

Question:  What is more disgusting than a spoiled Hollywood celebrity who thinks she can thumb her nose at the law, and nothing serious can be done to her?

Answer:  The realization she may be right.

Greg Risling of AP reports on Lindsay Lohan's latest revolving door visit to the LA County Jail.  The judge got serious and ordered that she spend 30 days in lockup.  She was there 4 hours and 47 minutes.  If my math is correct, that's a 99.3% discount.

"As pathetic as it sounds, this is not necessarily special treatment," said Adam H. Braun, a defense attorney who was not involved in the case. "It just depends how full the jail is when someone surrenders. If it is filled to capacity or nearly full, offenders like her are the first ones let go so more serious offenders can be held."

Lack of consequences for misbehavior is the first step toward dissolution of society.  Sure, we have to give priority to violent offenders.  But offenders of all kinds need to know there are real consequences.  Few minor offenders should actually go to jail, but a realistic threat of jail needs to be there to enforce compliance with the lesser sanctions.  At present, it just isn't there for too many cases.

Supreme Court Upholds Death Sentence: Allan Turner of The Houston Chronicle reports the U.S. Supreme Court has rejected convicted Houston killer Duane Buck's request to overturn his death sentence. The Supreme Court stopped his September 15th execution in order to decide whether to review the case. Buck was sentenced to death for the murder of his former girlfriend, Debra Gardner and her friend, Kenneth Butler. He also shot his sister, Phyllis Taylor, who survived. The issue before the court was testimony in the trial's punishment phase. Psychologist Walter Quijano on cross examination said being black could contribute to to Buck's "future dangerousness" in prison.

Supreme Court to Hear Case on Warrantless GPS Tracking: Mark Rockwell of Government Security News reports the Supreme Court will hear arguments on Tuesday, November 8th regarding whether or not warrantless uses of GPS tracking devices violates the Fourth Amendment of unlawful search and seizure. Legal experts have said this case could be a landmark in how law enforcement is allowed to use advancing technology. The case they are reviewing is one where the FBI and local law enforcement were tracking a suspected drug dealer. They put a  tracking device on the suspects Jeep. The device gave law enforcement the suspect's location seven days a week for four weeks. The Court must decide whether the tracking was a "search" and whether the installation of a GPS tracking device on a private vehicle is a "seizure." Law enforcement lawyers argue warrantless GPS tracks public behavior that is observable by anyone not using the technology.