Results matching “first”

A couple of notable cases among the certiorari petitions granted and denied:

In Buck v. Thaler, defendant claimed a constitutional violation based on comments about race by an expert witness.  One small problem, as pointed out by Justice Alito joined by Justices Scalia and, notably, Breyer:

Dr. Quijano's testimony would provide a basis for reversal of petitioner's sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr. Quijano was a defense witness, and it was petitioner's attorney, not the prosecutor, who first elicited Dr. Quijano's view regarding the correlation between race and future dangerousness.

The court took up the juvenile LWOP cases, previously noted here.  A simple grant after so many relists is unusual, but it does happen.

As I have noted previously, Ohio has had a leading role in carrying out justice in the worst murder cases.  The state was the first to successfully implement a single-drug lethal injection protocol, and in 2010 it carried out 8 executions, second only to much-larger Texas.  Executions have been on hold there recently because of a surprising order issued by US District Judge Gregory Frost in July.  That hold is apparently over now, and Judge Frost has denied a request to stay the next scheduled execution.  Andrew Welsh-Huggins has this story for AP.

Convicted 'Southside Slayer' Faces Death Penalty: AP reports in the Washington Post that serial killer Micheal Hughes, 55, was convicted Thursday of three counts of first-degree murder with special circumstances for strangling two prostitutes an a 15-year-old in a Southern California killing streak that spanned from the 80s-90s. Hughes was serving a life sentence for killing four women in 1992-3 when he was charged with the additional murders. Authorities said DNA evidence linked Hughes to the killings. Prosecutors will seek the death penalty when the sentencing phase of his trial begins Monday.

Maryland High Court Upholds Conviction For Child Abuser: Peter Hermann of the Baltimore Sun reports that Erik Stoddard convicted of the 2002 fatal beating of three-year-old Calen Faith Dirubbo was denied a chance for a fourth trial by the Maryland Court of Appeals, who decided to uphold the 40-year prison sentence the child abuser. Stoddard was first convicted of second-degree murder in March 2003 and has been appealing for nearly a decade. According to police, Stoddard beat the child to death because he was unable to toilet-train her.

Lawyers Stabbed: Druggie Convicted:  Joshua Monson, 28, who forfeited his right to legal counsel after he stabbed his attorneys with writing tools was convicted of drug possession Thursday. Surrounded by Snohomish County corrections officers and confined in a restraint chair, Monson told the jurors he'd been framed. Monson still faces a second-degree murder charge connected to the Jan. 2 shooting of Brian Jones, and two counts of fourth-degree assault for the attorney stabbings. AP reports in the Seattle Times.

Arkansas Supreme Court Rules For Criminal Code Review: Andrew Demillo of AP reports on the Arkansas Supreme Court's decision on Thursday to review the state's criminal code because of conflicting laws regarding habitual offenders. Chariel Ali Glaze was convicted as a habitual offender and faced a sentence of 20-30 years from jurors, when he argued that a more recent law required a sentence of between 5-40 years. The court found the conflict between the two laws "irreconcilable." Justice Robert L. Brown wrote in the opinion, "Even though this court has found no repeal by implication in several recent cases, the argument is still consistently being raised by defendants, making at least a review, if not a revision, of our criminal code warranted."

Kent was hopeful that Ohio, for the first time in recorded history, would put together a commission to "examine" the operation of the death penalty that wasn't stacked with either open or closet abolitionists.  After just a couple of days, the reports out of it seem to squelch that hope.

The head of the panel, a retired state appeals court judge named James Brogan, got things started in the usual way, as these things go.  He said, according to news  reports, that he's worried about the discretion state prosecutors have in deciding whether to pursue a death sentence at all:

"Why is it that in one county the prosecutor seeks it on many more occasions than another prosecutor," Brogan said. "Is it because urban crime is so much more serious in a larger city than in a rural community?"....

Brogan said the committee should review the role of evidence in death penalty cases, and he questioned whether the standard of certainty should be changed to "beyond all doubt" instead of "beyond reasonable doubt."

"I am terribly concerned about whether in fact the death penalty is properly applied In this state and I hope we all ask the hard questions that need to be asked," Brogan said.

The hard question that actually ought to get asked, but won't be, is why the will of the people and the judgment of the jury is frustrated so often and for so long over procedural wrangling that a serious system could and would resolve in half the time.  And, for that matter, why procedural wrangling so much occupies center stage when the prepossessing question ought simply to be:  Do we have the right guy?

I never heard of Judge Brogan before, but if the news reports are accurate, he's just the latest in a long line of clueless, gutless jurists who want to play to the Elite Wisdom by ending the death penalty on the installment plan, even while pretending to respect the law.

I don't know whether there will ever be a death penalty commission that seeks honestly to improve the implementation of capital punishment rather than drive it into the ground, but, if there is, this one ain't it.

As noted in yesterday's News Scan, the retroactive application of lighter sentences for those convicted of crack cocaine offenses began on November 1, with an intitial release of about 1800 crack offenders.  The New York Times carried an accurate and reasonably balanced story about it.  The story quotes yours truly as a dissenting voice. 

The numbers are daunting.  The Sentencing Commission has said that it expects 12,000 offenders will be eligible for release, and that the average amount of time to be deducted from their sentences will be slightly more than three years.  In other words, we could easily wind up with 36,000 more man-years of these offenders on the street  --  whereas, if the old law had been left in place, they'd be in jail.  The average recidivism rate for crack is 30% or perhaps very slightly higher. 

If my math is correct, that means that we'll have roughly 10,800 more future crack offenses coming up, and soon, than if the prior law had been left undisturbed.  This is no small matter.  The association between crack and gunplay is all too well documented, and, with gunplay or wihout, the drug is highly addictive and first class bad news.
 
My question is:  Why, when we hear in such specifics about the alleged benefits of the forthcoming releases, do we not also and simultaneously hear about the additional crime to which they will almost surely lead?  My other question is:  If the public had been told loudly and up front that there would likely be 10,000 more crack crimes with the new regime, would that regime have come about at all?  Or on such a scale?
  
One needn't be a partisan of one side or the other to be convinced that if we're going to be told about the benefits of X, we ought to be told with equal clarity and volume about its drawbacks.  This is as true about the crack releases that begn yesterday as it is about anything else.

Ohio was the first state to change its lethal injection method to a single, massive dose of barbiturate.  Is Ohio on the verge of another first?

AP reports:

A committee charged with examining possible changes to Ohio's death penalty law meets the first time this week.

Ohio Supreme Court Chief Justice Maureen O'Connor has convened the task force while making it clear the committee won't debate whether Ohio should have capital punishment.

The committee, to meet publicly on Thursday at the Ohio State Bar Association, includes veteran prosecutors who have long supported the death penalty, along with defense attorneys who have fought its imposition.

The committee also includes judges, lawmakers, a sheriff, academic experts and a representative of the state prison system.

Among the committee members are several prosecutors who are genuine supporters, rather than the usual token cherry-picked elected DA from the most liberal jurisdiction in the state, as is customary when putting together such committees.  I also recognize on the roster Doug Berman, an academic who leans to the defense side but is not a hard-core death penalty opponent.

So is this an actual balanced committee that will really produce a useful report?  If so, it would be a first in the nation.  All the previous reports have been anti-death-penalty hatchet jobs by stacked committees.  California's commission was such a joke that their very first action was to appoint one of the most strident anti-death-penalty partisans in the state as executive director.  It was like watching a 49s-Raiders football game and seeing Al Davis trot out on the field as chief referee.  The report was predictably worthless.

Is this committee really balanced?  I don't know enough about the full roster to tell.  A commission can have good people on it and still be stacked, as California's was.  But there is enough here to hope that this time will be different.

The US Supreme Court has issued its first opinion of the term.  Not surprisingly, it is a summary reversal finding, once again, that the US Court of Appeals for the Ninth Circuit has overstepped its authority to overturn a state criminal judgment.

Cavazos v. Smith, No. 10-1115, involves the second-degree murder conviction of Shirley Ree Smith for the death of her 7-week-old grandson.  The trial was a "battle of the experts," with the prosecution experts testifying little Etzel was shaken to death, and the defense experts testifying he was not.

The jury believed the prosecution experts and convicted Mrs. Smith of second-degree murder.  The state trial judge and appellate court upheld the verdict.  The federal district court concluded it had no authority to interfere.

The Ninth Circuit has granted relief to Mrs. Smith twice before and had the case sent back by the Supreme Court, only to grant relief again.  This time the high court has had enough.

Death Penalty Upheld 3rd Time For Cop-Killer: Sandra Chereb of AP reports of the Nevada Supreme Court's decision on Thursday to uphold the death penalty for convicted murderer Edward Wilson, 52, who pleaded guilty to the 1979 killing of undercover Reno police officer James D. Hoff.  The officer's body was found under a pile of rocks in a ditch. He had been stabbed repeatedly. Ever since a three-judge panel sentenced Wilson to death he has been fighting the sentence.  Wilson is currently the longest serving inmate on Nevada's death row. His latest petition on habeas corpus challenged the aggravating circumstances used to qualify him for the death penalty. Nevada's highest court rejected the argument in a 6-0 ruling.

DNA Evidence Links Murder to Crime:  Lucas County Common Pleas Court Judge Gene Zmuda sentenced Robert Bowman, 75, to life on Friday for the 1967 murder, kidnapping and sexual assault of 14-year-old Eileen Adams. Adams disappeared on her way home from her Toledo school, and a year later her body was found in a field bound in a braided, brown rug. Her hands were tied in front of her and a cord was wrapped around her neck and attached to her bound ankles. A nail had been driven into the back of her skull. In the early 1980s detectives first tried to link him to the slaying but failed to gather enough evidence to bring charges.  Five years ago a cold case squad reopened the investigation which uncovered new DNA evidence linking Bowman to the killing.  Police arrested him near Palm Springs, CA, in 2008. John Seewer reports in SF Chronicle.
 
DA Seeks Death Penalty For Double Murder Case: A Pennsylvania prosecutor  is seeking the death penalty for Colin Abbott, 40, who allegedly murdered his wealthy father and stepmother and tried to cover up the crime by telling relatives the couple died in a fatal auto-crash. Concerned relatives could not confirm the crash and contacted state police. Police found remains and speculate the victims where shot and burned with the remains scattered on Abbott's small farm  AP reports.  

Michelle Mondo reports for the Houston Chroncle:

Singing to God, praising Yahweh and even asking Jesus to torment District Attorney Susan Reed so "she, too, finds the Lord," convicted cop killer Frank Garcia was loud just before his execution Thursday -- but he was not repentant.

His last statement began before all the witnesses were in the death chamber, and at no point during a rambling 10-minute speech did he apologize for or even mention the 2001 fatal shooting of San Antonio Police Officer Hector Garza, which landed Garcia on death row.

*                                  *                               *

Laura Andersen, who said she has become good friends with Garza's widow, said Garcia's last words weren't what she expected.

"I've always seen him to be more stoic," she said. When asked about Garcia not showing any remorse she said, "It only confirmed that the state made the right decision."

On Thursday afternoon, the Texas Court of Criminal Appeals denied a request for a stay of execution and last-minute appeal, issuing a two-page order just after 11 a.m. that stated Garcia's lawyers didn't meet the burden of proof in showing that he meets criteria for mental retardation.

A dissent by three judges stated that because a case before the U.S. Supreme Court could affect the Texas appeals process, the court should have granted a stay until the high court makes its ruling.

The CCA dissent says,

Since granting review in Martinez, the Supreme Court has stayed the execution of several condemned Texas inmates who argued, as does the applicant today, that the ineffectiveness of initial state habeas counsel with respect to an issue that may be raised for the first time only in a post-conviction application for writ of habeas corpus proceeding ought to justify allowing the inmate to raise that issue for the first time in a subsequent writ application.

However, later that day, the U.S. Supreme Court denied certiorari and a stay.  No dissent is noted.  Maybe that's a good sign for the Martinez case.

Texas Cop Killer Scheduled to be Executed Today: The Associated Press reports that Frank Garcia, 39, is scheduled to be executed in Huntsville, Texas at 6pm local time today for the murder of a police officer. San Antonio police Sgt. Hector Garza was shot in the head four times by Garcia as he responded to a domestic violence call. Garcia said he aimed for Garza's head because he knew police officers wore bullet-proof vests. Garcia also turned the gun on his wife and shot her three times in the head and face. The San Antonio Police Officers Association will send at least 50 representatives from the department on chartered buses to Huntsville in time for the execution tonight.

Judge Extends Order Halting College's Drug Testing of Students: Jim Salter of The Associated Press reports a federal judge extended a temporary restraining order halting a Missouri college's drug testing of students. Linn State Technical College calls for the drug testing of all first-year students and some returning students. Last month the ACLU filed suit challenging the constitutionality of the drug testing, and Tuesday U.S. District Judge Nanette Laughrey, who granted a temporary restraining order in September, extended the order through November 8. The suit claims the program violates the Fourth Amendment right of students against unlawful search and seizure. Jason Williamson, an attorney for the ACLU, said the extension was made to allow Linn State time to decide how to proceed, and doesn't think Laughrey is likely to change her mind.

Man Whose Murder Conviction Was Overturned Then Reinstated Dies During Appeal: The Associated Press reports Ronald Taylor, 53, who was awaiting a new appeal trial after his overturned murder conviction was reinstated, died of cancer Tuesday at his home in Connecticut. Taylor and co-defendant George Gould were convicted of shooting a grocery store owner to death in 1993, and were sentenced to 80 years in prison. Taylor and Gould were released in April 2010 when a state Superior Court judge ruled them victims of "manifest justice" and declared them "actually innocent" after a key witness recanted her trial testimony. In July, the state Supreme Court reinstated the murder convictions, saying Gould and Taylor hadn't proven their innocence and ordered a new appeal trial for the men. Gould was ordered back to prison in August, but Taylor was allowed to remain free while fighting cancer. Taylor's attorney, Peter Tsimbidaros, says his death doesn't make the case moot. "It's such a unique case and the facts are so extraordinary that Ron's case should continue," he said. The new appeal trial is scheduled to begin in January. 

Last week, Bill had a post on the book by the late William Stuntz titled "The Collapse of the American Judicial System."  The book had been reviewed by Justice Stevens.

Today, Paul Cassell has a review of the book in the WSJ.  From Cassell's review, the book may be better than one would infer from its unfortunate title.

Perhaps aware that "collapse" in the book's title requires justification, Mr. Stuntz begins by reviewing some statistics. As he shows, in the 1950s, 1960s and early 1970s, amid the largest crime wave in American history, the U.S. prison population declined. Imprisonment rates plummeted to some of the lowest ever seen in the modern Western world. High-crime neighborhoods, as Mr. Stuntz puts it, were "abandoned to their fate."

*                         *                      *

Mr. Stuntz readily acknowledges what many legal scholars do not: America's current lock-'em-up philosophy has dramatically helped to reduce urban crime.... Even so, Mr. Stuntz counts these declines as a pyrrhic victory, given that violence per capita in the U.S. today remains significantly higher than in 1950.

Adam Liptak and Michael Shear have this article in the NYT about the federal judiciary as an issue in the presidential campaign.

Denunciation of judicial overreach is, of course, a grand tradition in the Grand Old Party.*  The party's very first successful presidential candidate made attack on a Supreme Court decision a major theme of his campaign.  Denouncing that decision was controversial at the time, but nearly everyone today agrees he was correct.

Liptak and Shear report:

Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a "rogue" court that is "consistently radical."

Professor Robert Blecker of New York Law School has a Kindle book with the above title on Amazon.  According to Amazon's reviewer (who is obviously a death penalty opponent), the first half is Blecker's argument for capital punishment.  The second half recounts his experiences interviewing convicted criminals in Lorton Central Prison.

They do it again.  Hence this local Washington, DC story.  It seems that last night, one Vitaly Davydov beat to death his roommate in a mental facility.  As the story notes:

You may also recognize Davydov's name. He was convicted of beating his psychiatrist, Doctor Wayne Fenton, to death in Rockville five years ago.

Now if he was "convicted," what that means is that he was not insane; you can't convict insane people, because a murder conviction requires criminal mens rea and the capacity to understand what you were doing.

I also thought the final paragraph of the story was noteworthy:

Davydov is now charged with first and second degree murder. Police are still trying to establish a motive.

Let me see if I can suggest a motive:  He's big and strong and 24 years old, likes killing, and has figured out that society isn't all that serious about doing anything to stop him.

 

Massachusetts Judge Orders New Trial for Serial Killer: On Thursday, Chief U.S. District Judge Mark Wolf threw out the death sentence, ordering a new trial for the serial killer Gary Sampson, on the grounds that he was denied his constitutional right to have his sentence decided by an impartial jury. Wolf had already investigated previous jury biases as reported here, but found that one of the jurors proved to have a "high risk" of sentencing Sampson based on her life experiences she never disclosed. Mike Rizzo the father of one of Sampson's victims told reporters: "I wish I could say I was surprised. I'm not surprised, I'm extremely disappointed and phenomenally outraged at the fact that one man with the ego the size of Judge Wolf's tried to overturn the good work done by so many people in coming to the right decision many years ago." AP has this story in the Washington Post.

Prison Realignment Reduces Jail-time: Andy Furillo reports in the Sacramento Bee of Judge Ben Davidian's decision to give long-time criminal Herbert Hale Sr. a 2.5 year county-jail term instead of the usual 21 years in prison, making him the first Sacramento inmate affected by the state's new realignment plan that went into effect Oct. 1. Hale was arrested by police in January for the purchase and transportation of 10-bindles of black-tar heroin outside McClatchy Park. California's prison reduction has caused far more "low-level" offenders, like Hail, to be sentenced to county jails that are not adequate for long-term lockups, hence the short term despite their criminal histories.

Lawsuit Claims Alabama Counties Keep Blacks Off Juries: The Equal Justice Initiative filed a federal lawsuit Wednesday alleging that Houston and Henry counties in south east Alabama create obstacles to exclude blacks from some juries. The lawsuit claims that in a series of cases between 2006-2010 where the death penalty was imposed, blacks only made 5% of the jurors in the two counties that contain 29% and 23% respectively.

Ex-Con Sentenced For Life for Xmas-Slaying: Cook County Judge James B. Linn sentenced Lee Cration to life imprisonment for shooting retired state employee and civil rights activist Ralph Elliott while on parole for a 1985 murder conviction. As Judge Linn handed down the sentence for Cration he stated parolee as a danger and a menace and telling him, "This court has no mercy for you. You will never have an opportunity to hurt an honest person again." Lauren Fitzpatrick has this story.

Texas Wife Finally Faces Charges For Husband's Death: Mary-Ann Rivera, 76, finally faces charges for the 1970 murder of her husband which she allegedly doused with hot grease. Rivera was a fugitive for more than four decades having fled from Texas to Lake Park, Georgia on a bail of $10,000 with her children.Though many of her Georgia friends question the arrest after all of this time, especially with her old age and poor health, spokeswoman for the Harris County District Attorney's Office, Donna Hawkins stated: "The defendant was charged with committing a rather brutal murder of her husband. Although she was able to elude authorities for over 40 years, she ultimately must face judgment in a court of law for the murder of her husband." CBS News has this story.

One of the favorite slogans of the "Incarceration Nation" crowd is, "Schools Not Prisons!"  This is shorthand for the argument, such as it is, that the money we spend on prisons would be better spent on schools.

There are at least two tacit assumptions going on here.  The first is that we're not getting all that much for the money we spend on imprisonment.  The second is that we'd get a good  return, or at least a better one, by putting the money into education.

Both assumptions are, not merely wrong, but demonstrably preposterous.  I have shown previously that the money we invest in imprisonment has reduced serious crime  -- murder, rape, robbery and so  on  --  by more than one million episodes a year.  I am not aware of any domestic program, ever, that has had such dramatic and beneficial results.

And what's the return on the much larger amount of money we have spent on education?  While billions upon billions have been poured into schools and  teachers, and education spending per pupil has doubled over the last forty years, the improvement in educational attainment has been  --  ready now?  --  zip.

That's  zip, as  in zero.  The charts tell the tale (courtesy of John Hinderaker at Powerline).  This is something to remember next time someone from Occupy Wall Street, or whatever, starts chanting "Schools Not Prisons."

The text of the Constitution explicitly contemplates capital punishment, and the Eighth Amendment was not understood by its authors as banning it.  Instead, the purpose of the Eighth Amendment was to ban particularly vile ways of imposing it, or other punishments, such as disembowling and burning at the stake.

Q:  So why have we developed a jurisprudence in which the Supreme Court views itself as empowered to ban capital punishment in one class of cases or another, or, indeed, to ban it altogether, see Furman v. Georgia?

A:  Because the Court, in disregard of the limited and strictly judicial function assigned to it by the Constitution, has decided that it should become the arbiter of when there is a "national consensus" against capital punishment, or against various applications of it.

One can scarcely imagine a job for which the Court is less suited either by its capabilities or  --  and more importantly  --  its Constitutional role.  Has it dawned on anyone that the discernment of a national consensus on questions of criminal punishment is quintessentially a job for the elected branches? 

Well yes, it has.  It has dawned on the brilliant Richard Epstein.  His article, well worth the time to read  it all, says, inter alia, this:

 

A most unfortunate line of Supreme Court cases, which first held that this decision on the use of the death penalty was unconstitutional, set the Court on the wrong path. In his recent musings, Justice Stevens' argument against the death penalty boils down to his judgment that the possibility of error in death cases is enough to tip the case in favor of its abolition.

In this instance, it is hard to see how this particular observation, whether true or false, is anything other than a straight political judgment unmoored from the text or purpose of the Constitution. There are in fact many individual cases in which I have been deeply troubled by the application of the death penalty. In some cases, it strikes me as a clear violation of the right to due process for the state to refuse to use DNA evidence to resolve uncertainty over the identification of the proper offender. But it is a stretch to say that procedural concerns in some cases should lead to a constitutional ban on the death penalty in all, especially since (as against the federal government) both the prohibition against cruel and unusual punishments and the guarantees of due process are both found in the Bill of Rights.

Taken as a whole, what is so troublesome about Justice Stevens' general views is the unmistakable sense that he has erased the line between what he thinks of as politically unwise and constitutionally required...

Alabama Set to Execute Man for Murder of Infant Son: Kelli Dugan of Reuters reports Christopher Thomas Johnson, 39, is scheduled to die by lethal injection at 6 p.m. local time at the Holman Correctional Facility in Atmore, Alabama for the 2005 murder of his 6-month-old son. Suffocation and head trauma were cited as the causes of death of Johnson's son, and the forensic pathologist who performed the autopsy testified at trial that the infant suffered at least 85 separate injuries. Johnson represented himself at trial and plead guilty. He was sentenced to death in February 2007. Johnson's stay on death row could possibly be one of the shortest on record in the U.S., says one law professor. Johnson will be the sixth inmate executed this year in Alabama, and the 38th nationwide.  See also prior post here.

Record Number of Illegal Immigrants Deported: The Associated Press reports U.S. Immigration and Customs Enforcement said it deported almost 400,000 people, the largest number in the agency's history, in the fiscal year that ended in September. ICE Director John Morton said about 55% of those deported had misdemeanor or felony convictions. Of the 396,906 people deported, more than 1,000 were convicted of homicide; 5,800 were sexual offenders; and about 80,000 were convicted of drug related crimes or of driving under the influence.

Death Warrant Issued for Idaho Killer: Sven Berg of the Idaho Falls Post Register reports Bonneville County Judge Jon Shindurling issued a death warrant for Paul Ezra Rhoades in Idaho yesterday for murdering two women in 1987. Rhoades also received two life sentences for the second-degree murder of a convenience store clerk around the same time. Rhoades has filed a lawsuit against the state, saying that Idaho's method of lethal injection amounts to cruel and unusual punishment. The state has asked that the court throw out the lawsuit. Rhoades' execution is scheduled for November 18. It would be the first execution in Idaho since 1994, and the second since 1957. 

Reader mjs alerts me to a Slate article pointing to the reason crime has continued to decrease even as the recession and its aftermath linger. 

Now it's a little odd that anyone would feel the need to "explain" a new cause for the continuation of a trend  that's been underway for 20 years or so.  But when you see what the explantion is, and who's pushing it, the oddness vanishes.

The theory is that crime has continued to decline because Barack Obama got elected, and the cheerleaders  for this theory are  --  you guessed it  --  a bunch of academics who were swooning for exactly that!

Yes, the article does begin with a mumbled admission that the reasons for the generation-long drop in crime are already fairly well understood.  It even admits, albeit quickly and quietly, that increased incarceration and more aggressive policing are in the mix.  But the real reason, you see, is that Obama's election has "given the government more legitimacy."

Let's accept this conclusion arguendo, notwithstanding the fact that the government beforehand was perfectly "legitimate" under any comprehensible standard, whether or not you would have preferred Kerry to win the 2004 election. 

The new argument is baloney anyway, because its tacit premise is absurd.  The premise is that the folks otherwise inclined to knock over the gas station or belt granny with a tire iron to get her purse are first assessing their "faith in governmental and social institutions," as opposed to, say, their desire for more moola.

You have to wonder whether the people pushing this theory have spent even ten minutes in a criminal courtroom.  If they had, they might understand that the real reason people commit crime is to get money without working for it, and the real reason they refrain is when they think "governmental and social institutions"  --  namely jail  --  will be waiting for them if they get caught.

Gallup announced this poll today, showing Americans favoring legalization of marijuana 50-46.  The 95% confidence interval for sampling error of the poll is +-4%, so we can't say if that's a majority or a plurality, but it is the first time that the ayes have exceeded the nays.

If I had written the release, though, I probably wouldn't have used the term "record high."

(CJLF has not taken a position on this issue.)

Bugler, sound charge!

Today the US Supreme Court agreed to take up the constitutionality of the Stolen Valor Act in United States v. Alvarez, No. 11-210.  Prior post, with links to earlier posts, is here.  Today's orders list is here.

Update:  Robert Barnes has this story in the WaPo.  Eugene Volokh has this post at the eponymous conspiracy.

The causes of crime is a very difficult subject to study, so we should always skeptical when a study comes out showing something new.  Methodology should be probed and results confirmed by other studies before we make policy decisions based on any study.  But something unusual has happened with regard to RAND's surprising result that neighborhood crime went up when marijuana dispensaries were closed.  AP reports:

A nonprofit think tank has removed a study from its website that said crime increased near medical marijuana dispensaries in Los Angeles after they were closed.

Warren Robak, a spokesman for Santa Monica-based Rand Corp., says the organization is reviewing the study released last month and has removed it from circulation.

The Los Angeles city attorney's office had said the report's findings were deeply flawed and demanded a retraction.

The study, first reported by the Los Angeles Times, looked at crime reports in the 10 days before and after Los Angeles officials shuttered the pot clinics last summer after a new ordinance went into effect. The analysis showed crime increased about 60 percent within three blocks of a closed dispensary compared with those that remained open.

RAND is a far better source of studies on crime than agenda-driven outfits such as the Sentencing Project.  If there are problems with the study, it is to their credit that they have withdrawn it for revision.  Upon review, it may very well come to the same conclusion.  But this incident sounds one more note of caution about pouncing on what "studies show."

South Dakota Weighs Execution Change: John Hult from AL Media reports on how the supply shortage of lethal injection drugs has caused South Dakota to consider a one-drug lethal injection protocol.  On September 23, the DEA advised South Dakota, among other states, against using foreign-produced sodium thiopental due to concerns about its importation. As a result, several states switched to the substitute chemical pentobarbital for the three drug protocol. Lundbeck, the Danish company that makes pentobarbital, ceased sales to states that utilize lethal injection in August. Kent Scheidegger noted that most states bought up large supplies of pentobarbital before Lundbeck's decision to restrict sales and aren't in danger of shortages in the near future. South Dakota's shortage makes it the first state to have to delay executions due to this restriction.

Supreme Court Reviews Strip Searches In Jail: The Supreme Court heard arguments Wednesday in Florence v. Board of Chosen Freeholders of Burlington County, involving a challenge to strip searches in jails and whether jailers should required to  meet some new standard before such searches are allowed. The issue has been raised in the case of Albert Florence, who was arrested on a warrant for an unpaid traffic fine and strip-searched in two county jails. The current standard, which is supported by state corrections officials and the Obama administration, allows close searches for anyone entering the general jail population. Florence's Attorney argued that prisoners with minor charges can be asked to disrobe and shower while being watched at a distance, but they should not have to submit to a more thorough search absent suspicion that they are hiding something. Mark Sherman reports for AP.  

1983 Cold Case Heats Up With DNA Evidence:  Oklahoma District Attorney Mike Fields has filed first-degree murder charges against known felon, Lester Blackbear in connection to a 1983 cold case that the former DA dismissed for being too weak. A DNA match has implicated Blackbear in the rape and beating death of Ola Kirk in her Geary home. Coincidentally, the felon was arrested by U.S. Marshalls in Pheonix, Arizona, after he failed to register as a sex offender when he moved.  He was scheduled to be released Wednesday.  He will now remain in jail for his trial. Fields hasn't decided if he will purse life imprisonment or a death sentence. Adrianna Iwasinski reports in Oklahoma Own.

The big drive to save money is on.  I'm all for it  --  as long as we're saving it in the right places.  That would be, for example, bloated nanny state entitlements, which we have known for years we can't afford and shouldn't be handing out anyway.  (The lesson my parents taught was that you make your own way and pay your own bills. And yes, I know, I'm an anachronism).

Still, there's broad agreement, I would hope, that we'd cut back on a lot before we'd cut back on the first obligation of government, that being to secure the physical safety of the citizens and prosecute those who jeopardize it.

So much for that, at least in Topeka, Kansas.  Want to belt your wife around?  Have at it.

The cynicism of liberals is just astounding.  For how many decades have they told us we could, and should, spend without limit?  Now they say they've discovered frugality  --  only it's a frugality aimed at programs they never liked to begin with, like the police and prosecutors.  The actual cause of our impending bankruptcy  --  entitlement addiction  --  will go unaddressed while women get beaten up.

This is where it leads.  And this is only a preview. 

 

Today is the 100th anniversary of direct democracy in California.  Laurel Rosenhall has this post at the SacBee's political blog.  Among the first initiatives was women's suffrage, nine years before the Nineteenth Amendment.

The initiative process certainly has its drawbacks, but overall the voters' judgment has been better than the Legislature's, and initiatives have done far more good than harm.  This is especially true in the criminal justice area.

"Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time."  -- Winston Churchill

In California we carry that a step further.  Direct democracy is the worst form of democracy except for the other one.

Plata's legalized jailbreak has begun.

We have been assured, as we always are with these things, that only "nonviolent, nonserious and nonsexual offen[ders] will be released back to the county probation system."  Kent made quick work of that one.  And that's not counting the eye-opening story described in the first paragraph of this  entry.

Time to get a Rottweiler.

Parole Denied For Women Who Cooked Husband: Gosia Wozniacka of the AP reports that Omaima Nelson, a California woman serving a life sentence for the killing, chopping, and cooking of her husband during Thanksgiving 1991, was denied her second bid for parole Wednesday. Nelson argued that she should be paroled because she was a changed person, claiming to be sorry and claiming that she killed in self-defense. Due to her long criminal history, lack of responsibility, and failure to complete educational and vocational programs, the two-person panel of the state Board of Parole found that Nelson continued to be a danger to society. Parole commissioners said Nelson will not be eligible to seek parole again for 15 years -- the maximum period she can be held without another hearing.

Judge Allows Alleged Murderer's Road-trip: Gene Johnson of AP reports that in an oral ruling Monday, Washington Judge Micheal Moynihan decided to allow accused murderer Peggy Sue Thomas to take a two-week, five-state road trip so she can attend her half-sister's memorial service, receive dental care, and attend to a few other chores. Thomas is charged with killing a man in 2003.  Despite protests from Island County Prosecutor Greg Banks, Thomas is free on $500,000 bail, and had her arraignment delayed a week to Oct. 31 to accommodate the trip. While Thomas will be on a GPS monitoring device, there will be various non-signal points along the trip that might not immediately report if she flees the country. Banks stated: "That's the first time I've ever seen anything like that. We're sure hoping she comes back."

Alabama Immigration Law Leaves Police Uncertain: After a meeting on Thursday with the Department of Homeland Security, Mobile Police Chief Micheal T. Williams announced there are too many gray areas to begin enforcement of the Alabama's new Immigration law, which continues to be disputed by the U.S. Justice and Department and civil rights groups. The law expressly prohibits profiling but states that an officer can make an arrest when "reasonable suspicion exists that the person is an alien who is unlawfully present in the United States." Police are also prohibited from raiding job sites where illegal immigrants might be working and must consult the federal government when determining if someone is illegal or not. Due to the confusion, John Jenkins, the state's Deputy Director of Homeland Security, told the group of 50 officers from across Mobile and Baldwin counties to consult with their city attorneys for clarification. David Ferrara of the Press-Register reports.  

Q:  What's even better than a suppression motion?

A:  Offing the government's star witness.  That way, you don't have to worry about an appeal.

The feds have indicted a prominent New Jersey defense lawyer, Paul Bergrin, for murdering a government witness in a case he was defending, a fellow named Kemo McCray.  I have no personal knowledge of the case, and the judgment about Bergrin's guilt vel non will, obviously, have to await a jury's consideration.  But New York magazine has a fascinating article about it.  For example, these two paragraphs:

" 'No witness, no case'--that was Paul's motto," said one attorney [who knew him]. "There was this guy with a tattoo of the scales of justice on his back. Below the scales was the quote, 'No witness, no case--Paul Bergrin.' When your customers are all criminals, what's better advertising than a prison tattoo?"

Everyone had his Paul Bergrin ­story--how he started off with one client, then switched to another defendant in the same case, got the second guy to flip against the first, and kept the money from both. There were tales of how Bergrin planned to open a $30 million gambling casino in the Costa Rican cloud forest. And of course, there was the whorehouse deal. Bergrin had taken control of one of Manhattan's ritziest escort services and started bringing a steady stream of cops, lawyers, and even a prison official to the brothel's Worth Street headquarters, where the samples were free.

The trial wll be fascinatng to follow, if the government can persuade anyone to testify.

 

Jury Deliberates Death Penalty For Federal Case: Ashley Meeds of Las Cruces Sun-News reports that a New Mexico federal jury is expected to decide this morning whether to give the death sentence to violent gang member, Larry Lujan, 32, who was convicted of the 2005 kidnapping and murder of Dana "Joe" Grauke. Assistant U.S. Attorney Mark A. Saltman states: "Some crimes are so cruel, so heinous, and show such an utter disrespect for human life that they deserve the ultimate punishment." Saltman refered to Lujan's kidnapping of the teen, forcing him to perform oral sex on him, then cutting his throat so deep  with a meat cleaver, it nearly beheaded him, and dumping his body in a canal afterward. The trial took place in federal court because the murderer drove Grauke's body over state lines.

Gang Member Convicted for Killing Deputy: Hudson Sangree of the Sacramento Bee reports on a Yolo County juror's decision to convict gang member Marco Antonio Topete, 32, of first-degree murder with the special circumstances of lying in wait, murder to avoid arrest, murder by a gang member and murder of a peace officer. The prosecution argued the "killing of the Deputy was a premeditated murder intended to let Topete - a violent parolee with two felony strikes against him - get away." Topete faces the death penalty when his sentencing trial begins October 12.

Muslim Lawsuit Sparks Pork Ban in Ohio Prisons: In 2009 Ohio prison officials responded to a lawsuit by Muslim inmates by removing all pork products from prison menus, according to this story by AP writer Andrew Welsh-Huggins.  Ironically, the inmate's lawsuit had nothing to do with pork products, but instead claimed that the state is restraining Muslim inmates' religious freedoms by not providing meals prepared according to Islamic law, known as halal, while at the same time supplying Jewish prisoners with kosher meals. The lawsuit continues, while the Ohio worries a new menu could hurt them financially given the current budget situation. The trial is expected to take place in January. 


 

Transcripts are available for the oral arguments in Maples v. Thomas and Martinez v. Ryan.

In the Maples argument, both attorneys took a lot of flak, and the argument bogged down in the peculiar facts of the case.  There were a lot of "I don't know" type responses.  The reason for the sparse record on these questions is that Maples's claim morphed on its journey to the Supreme Court, so a lot of questions about whether he was "abandoned" by his attorneys did not get answered in the District Court.  Hard to predict how the case will come out.  A remand for more fact-finding is a possibility.  But I expect it will set a relatively narrow precedent.

In Martinez, I think it is more clear that counsel for petitioner will not get the rule he wants.  He argues for a broad extension of the Douglas v. California right to counsel on the first appeal to cover claims on collateral review that could not have been brought earlier.  The corollary is that when counsel is constitutionally required, ineffectiveness of that counsel is cause for a procedural default of a claim, allowing it to be raised in federal habeas.

At page 17, Justice Kennedy asks, "Can I leave this argument with the judgment that you have offered me no limiting principle on how many proceedings there must be ... before there's an end to the argument that previous counsel were inadequate?"  Not a good sign for the defense side.

Earlier, at page 11, Justice Sotomayor asks about "a huge reliance interest that has developed since Finley and its progeny...."  See CJLF Brief at 20.

[Some of Justice Ginsburg's questions, as transcribed, don't make sense.  I suspect she was speaking softly and the stenographer had trouble understanding her.]

I expect the Finley rule, that there is no right to counsel in collateral review, will survive.

In a pre-argument post at SL&P Doug Berman noted, "The Maples case seems likely to generate the most media attention, in large part because it is a capital case.  But I think the Martinez case in the most important and potentially the most consequential of this trio."  The first statement was correct.  I think the second is also.