Results matching “first”

Kent has noted that abolitionists in California are in full throat attempting to take down that  state's death penalty.  Their main arguments are that it costs too much and takes too long.  One recent piece setting out the case is by George Skelton in the LA Times.  Skelton relies largely on the recent Alarcon and Mitchell article on the death penalty, which Kent has previously deconstructed.

Skelton's attack is, in its way, clever.  He acknowledges that there are some killers who, when conclusively proved guilty, should be dispatched.  Indeed, he says that some should be "appropriately tortured first."  (He doesn't define what torture would be "appropriate," for which I'm grateful, being of the view that torture is barbaric).  But there's a problem, he says:

...the issue here is not about the merits of the death penalty. It's about inefficiencies and priorities. As we raise university tuitions out of sight, whack the poor and lay off cops, do we really want to be spending $308 million to snuff out one individual?

Am I the only one who thinks it's odd to maintain that, in considering whether to abolish the death penalty, we should shuffle off to the side "the merits of the death penalty"?

Hello!!!  If you want to lower the costs of X, you don't ignore the merits of X, and you don't just abolish it in a fit of frustration (however justified). You lower its costs. Under the theory advanced by Skelton, we should abolish imprisonment too, since, whatever its merits  --  which we'll take a pass on examining  --  it costs a bundle (much more than the death penalty), so out it goes.  Ditto with, say, Medicaid.  It might have its "merits," but we're going to walk past those to focus just on its massive and burgeoning costs.  Indeed, Medicaid expenses contribute vastly more to budgetary woes than the death penalty.  If the idea is to cut costs without worrying about the merits, that's the place to go.

Serious people understand that there is a good deal of low-hanging fruit out there to contain the expense and delay of California's death penalty.  I pick some of it after the break.  But Skelton is right about one thing:  California voters are very unlikely to abolish the death penalty unless they can be flumoxed into ignoring its merits.

 

Man Accused of Sex Crimes Allowed to View Child Porn in Jail: Adam Lynn of The News Tribune (WA) reports on a man accused of sex crimes is being allowed to view child pornography while in a Washington jail awaiting trial. Weldon Marc Gilbert is acting as his own attorney in the case, which means he is allowed to review the evidence. In this case, the evidence is more than 100 videos seized from Gilbert's home in 2007. Gilbert is accused of luring more than a dozen young boys to his home and molesting them. Prosecutors say Gilbert videotaped some of the alleged acts. Gilbert has scheduled times when he can view the material, and the room is monitored by corrections officers. Pierce County Jail spokesman Ed Troyer says, "the whole thing is just very strange."

OnStar Helps Apprehend Murder Suspect: WLOX (MS) reports that Jeremy Wayne Manieri, 31, was arrested for the murder of a priest in Florida after authorities used the auto tracking system OnStar to locate the victim's vehicle. Manieri was driving the victim's SUV, which police found at a hotel where Manieri was staying by using the GPS feature. Authorities say that Manieri, a convicted sex offender, is also wanted on a warrant in Escambia County, Florida for grand larceny. Larry McShane of The New York Daily News reports that Manieri was planning on going to Disney World, where he had bought three-day passes for his ex-wife and children, using money he stole from the slain priest.   

Man Arrested After Reporting Marijuana Robbery: The Sun-Times Media Wire (IL) reports that Chicago druggie Max Fleck, 20, was charged with two counts of felony possession of a controlled substance and two counts of possession of cannabis after police found narcotics in his apartment. Police were called to the apartment after Fleck had called the police to report being robbed of two pounds of marijuana and a laptop.

12 year-old Girl Sentence for Cyberstalking: A 12-year-old girl has been given a deferred sentence and ordered to stay out of trouble for six months, attend counseling and perform 20 hours of community service for cyberstalking and first-degree computer trespassing as reported  by Jennifer Sullivan of the Seattle Times.  An 11-year-old co-defendant was also charged and given probation.  According to the charges, after the two girls and the the victim had a falling out, the defendants used the victim's password to post sexually explicit content on her Facebook page and instant-messaged "random individuals" under her name to offer sex acts.  The trial judge refused to grant the prosecution's request that the 12-year-old girl be banned from all social-networking sites for the term of her sentence, ordering instead that an adult supervise her while on social-networking sites.

Ninth Circuit Tosses Arizona Death Sentence:  The Ninth Circuit yesterday vacated the death sentence of Arizona inmate Richard Hurles, who was convicted of raping librarian Kay Blanton before stabbing her to death 37 times with a paring knife.  The court found the trial judge displayed judicial bias and should have recused herself, and ordered a new sentencing hearing to be presided over by a different judge.  Amanda Lee Myers of the AP has this story.

Iowa Sex Offender Inmates Can Be Required to Admit Crimes:  The Iowa Supreme Court today ruled that prison treatment programs can require sex offender inmates to admit their crimes without violating the inmates' right against self incrimination, reports the Des Moines Register.  Convicted sex offender Robert Harkins claimed an Iowa law permitting inmates to earn good time credits for participating in treatment programs, which in some cases requires assuming full responsibility for past offenses, violated his constitutional rights.  A closely divided court disagreed: "Harkins had every right not to be a witness against himself... Now that he has been convicted as a sex offender, though, the State of Iowa may constitutionally establish an incentive for him to obtain treatment in prison by withholding earned-time credits if he declines to participate."

California Death Penalty Abolition Bill Advances:  Parash Dave reports in The Sacramento Bee a bill to abolish the death penalty in California cleared its first legislative hearing yesterday after it was approved by the Assembly's Public Safety Committee.  If Senate Bill 490 receives a majority vote to pass the California legislature, the decision will be left up to voters in the November 2012 election.  Many lawmakers acknowledge that polls show two-thirds of voters support capital punishment, but are nevertheless harping on California's fiscal crisis to argue capital punishment is an exorbitant cost.

Connecticut Supreme Court Reverses Order Freeing Two Men:  The Connecticut Supreme Court today unanimously reversed a lower court's ruling that ordered two men to be freed from their 80-year prison terms.  George Gould and Ronald Taylor were convicted of participating in a deadly robbery of a New Haven retail store in 1993.  A judge last year ordered the two men to be released immediately, accepting their claims of actual innocence based largely on a recanting witness.  The state's high court determined the lower judge applied the wrong standard in evaluating "actual innocence," relying too heavily on the recantation and failing to identify affirmative evidence that the men did not commit the crime.  David Owens has this story in The Hartford Courant. 

At SCOTUSblog, Orin Kerr has this summary of the Fourth Amendment cases for the U.S. Supreme Court term just ended.  There were five, but only three were decided on the merits:  Kentucky v. King on exigent circumstances, Davis v. United States on a good-faith exception to exclusion for a change in case law, and Ashcroft v. al-Kidd on qualified immunity from civil suit.  I think it is worth noting (though Orin does not) that only one of the three was a substantive Fourth Amendment issue.  The other two were about remedies.

What's the take-away from the Term's Fourth Amendment cases?   Three quick observations come to mind.

First, the current Court is rather friendly to the government in Fourth Amendment cases.    Of the three cases on the merits, the government's side won 23 votes and lost only 3 votes.   This Term, at least, none of the Fourth Amendment cases were even close.  Second, it's interesting that Justice Alito wrote two of the three cases....

Finally, it's particularly interesting that neither of the two newest Justices, Justices Sotomayor and Kagan, voted for a defendant or civil plaintiff in any of the three cases.

Casey Anthony to Be Released July 13: Amy Pavuk and Anthony Colarossi of the Orlando Sentinel report court officials have announced Casey Anthony will be released from the Orange County Jail on July 13. Anthony was sentenced to four years in jail for lying to police, with credit for time served. In addition Anthony must pay the court several thousand dollars for the charges. Assistant State Attorney Linda Drane Burdick informed Chief Judge Belvin Perry about the state's interest in collecting investigative costs from Anthony related to the search for Caylee Marie in 2008. A hearing on that issue was set for August 25.

Accused Serial Killer Changes Mind, Wants Attorney: Accused serial killer Joseph Naso, 77, requested legal representation on Wednesday, telling the judge that he can not properly defend himself because his incarceration has limited his ability to conduct legal research and he is having a heard time understanding the law. Naso has been representing himself, telling a judge in May that he knew the case better than anyone and didn't want to use his financial resources on attorneys. (See previous post here.) Naso has $1 million in assets, which includes a home in Reno, NV and Nevada officials recently released $150,000 that was frozen due to another investigation.  Naso is accused of murdering four prostitutes in the 1970s and 1990s throughout Northern California: Roxene Roggasch, Carmen Colon, Pamela Parsons, and Tracy Tafoya. A decision will be made on Friday regarding whether Naso will receive a court-appointed attorney.  The AP has this story.

South Dakota Parole System Under Fire: John Hult reports in The Argus Leader (SD) that the recent killing of a hospice nurse allegedly at the hands of a former prison inmate has called into question South Dakota's parole policy of releasing some inmates without a hearing. James Vernon McVay, 41, is accused of killing 75-year-old Maybelle Schein in her bed two days after he was released into a community transition program.  Under South Dakota law, the parole board doesn't review an inmate unless the person is deemed "noncompliant" with the Individual Program Directive (IPD) the inmate receives from prison officials during the first few weeks of custody.  The IPD system is based on a set of mental and physical evaluations and is designed to focus on rehabilitating the inmate.  If an inmate complies, he or she is released without any review from the state's parole authority.

The Supreme Court's order is here.  It's 5-4, lined up as you would expect.

Leal and the United States ask us to stay the execution so that Congress may consider whether to enact legislation implementing the Avena decision. Leal contends that the Due Process Clause prohibits Texas from executing him while such legislation is under consideration. This argument is meritless. The Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment.

The United States does not endorse Leal's due process claim. Instead, it asks us to stay the execution until January 2012 in support of our "future jurisdiction to review the judgment in a proceeding" under this yet-to-be enacted legislation. Brief for United States as Amicus Curiae 2-3, n. 1. It relies on the fact that on June 14, 2011, Senator Patrick Leahy introduced implementing legislation in the Senate with the Executive Branch's support. No implementing legislation has been introduced in the House.

We reject this suggestion. First, we are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be. In light of Medellín I, it is clear that there is no "fair prospect that a majority of the Court will conclude that the decision below was erroneous," O'Brien v. O'Laughlin, 557 U. S. ___, ___ (2009) (slip op., at 2) (BREYER, J., in chambers), and our task should be at an end. Neither the United States nor JUSTICE BREYER, post, at 1-6 (dissenting opinion), cites a single instance in this Court's history in which a stay issued under analogous circumstances.

My previous post on the case is here.  Bill Otis's take on it is here.  Kenneth Anderson has this post at Volokh Conspiracy, followed by the usual VC comment thread of high intensity and low information.

Update:  Michelle Mondo has this story on the execution in the San Antonio Express.

There is scuttlebutt going around inside the Beltway that liberals are pressuring Justice Ruth Bader Ginsburg, 78, to retire now, lest President Obama lose next year and a Republican successor might have the opportunity to appoint a (presumably conservative) replacement.

I have disagreed with Justice Ginsburg in most of her votes in criminal cases, including her disastrous votes in both halves of Booker, first finding that the Federal Sentencing Guidelines did not survive the reasoning of Blakely, and then switching sides to implement a remedy of "advisory" guidelines.  I have explained the calamitous results of that remedy here.

Having said that, Justice Ginsburg is a person of principle.  She takes law, and the idea of law, seriously, for however much conservatives disagree with most of her outcomes.  She is also a person of courage, having battled an exceptionally deadly form of cancer.  And she is a person of strength, belied by her seemingly frail build.

The pressure for her to resign is creepy and classless, as Yale law professor Stephen Carter explains in this piece.  I hope she resists, and I'm reasonably confident she will. 

Harvard law professor Alan Dershowitz has a piece in today's Wall Street Journal titled, "Casey Anthony: The System Worked."

My first reaction was to think  --  then we need to change the system.  In fact, however, the column mostly just makes the mundane point that, for good reason, a criminal trial requires proof beyond a reasonable doubt, this being an essential safeguard against the power of the state.

So far, so good.  Indeed, one wonders why Prof. Dershowitz goes to the trouble of stating the obvious.  But there is one point at which he goes critically astray.  He states, "...a criminal trial is not a search for truth. Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt."

In a strictly formalistic sense, that's right, but in reality, it's more an expose' of the deficiencies of formalism.  His error is in omitting what exactly is to be proved beyond a reasonable doubt, namely, the truth about the defendant's conduct and state of mind.  The idea that "a criminal trial is not a search for truth" is at best very distorted, and, taken on its own terms, poisonous.

When truth gets put in second place, we already know what fills the vacuum left at the top, i.e., gamesmanship.  It just won't do to dismiss truth-seeking as the mission only of scientists, and morality as the off-there-somewhere business of philosophers.  Justice  --  the merger of truth and morality  --  is, instead, the indispensable backdrop that gives resonance to, and assures continued public support for, the requirement of proof beyond a reasonable doubt.  When these things are dismissed as easily as Professor Dershowitz seems to, and when in consequence Casey Anthony-type verdicts start to proliferate, we are certain to see growing pressure to junk the very civil libertarian safeguards Professor Dershowitz rightly values.

Absolutely nothing  --  or that is what many disgusted readers might say.  To which I reply:  I hear you.

But I think there are a couple of lessons  --  maybe more, but two I want to discuss just now.

First, as I said in an earlier post, we can learn that acceptance of fallibility and error, even outrageous error, is part of adult life.  I think, as many, many others do, that Casey Anthony almost certainly had some degree of criminal involvement in her daughter's death.  The acquittal on every felony charge strikes me the same way the OJ verdict did, namely, as an inexplicable blunder and a miscarriage of justice.

But, as I also said in that post, law is a bunch of trade-offs.  It's easily possible, for example, to imagine a country with no Double Jeopardy Clause, in which a reviewing court (or king or president) could toss the acquittals as farcical and order a new trial.  

The Double Jeopardy Clause was not written by people who thought acquittals are inevitably factually correct.  It was written by people who knew full well that some of them are wrong or even vile, but for whom restraining the awesome power of the state to hound its enemies was, on balance, the more important virtue.

Trade-offs and acceptance of error are not guaranteed to make us happy in the short run; indeed, they are pretty much guaranteed to do the opposite.  But the Framers did not write our Constitution for the short run.  We have become the leading country in the history of the world by honoring their foresight. 

Death Penalty Sought in Fort Hood Killings:  The commanding general of the Fort Hood military post announced today that accused murderer Maj. Nidal Hasan will be tried in a military court and face the death penalty, reports Angela K. Brown of the AP.  Hasan is charged with 13 counts of premeditated murder and 32 counts of attempted murder stemming from a November 2009 shooting spree.

Alleged Rape Victim Testifies at Accused Serial Killer's Trial:  Thomas J. Sheeran of the AP reports a woman who said she was raped by accused serial killer Anthony Sowell defended her accusation during an aggressive cross examination today by Sowell's defense team.  The woman told jurors she was choked and violently raped by Sowell after a night of partying in October 2009, about a week before police discovered the first two bodies in his home.  Jurors were also shown a cellphone video that prosecutors say show a woman falling from an attic window of Sowell's home and a naked man, identified by the witness as Sowell, attempting to move her motionless body.  Sowell's defense team questioned her about her conflicting versions of the attack, including her claim to police that her injuries were from a car accident - a story she testified she told to save her life. 

ATF Head Denies Knowing Details of "Fast and Furious" Operation:  In his first detailed comments about ATF's "Fast and Furious" gun tracking operation, acting ATF Director Kenneth Melson claimed he had only a superficial understanding of the program until after the controversy erupted.  Melson's claims contradict testimony and previously-released documents indicating that he had much more involvement in the operation, including emails released at a hearing last month showing Melson seeking to watch from his desk live hidden camera footage from cooperating gun shops that sold ATF-tracked guns.  Evan Perez has this story in The Wall Street Journal. 

Humberto Leal is scheduled for execution in Texas tomorrow.  He was convicted of the rape and murder of Adria Sauceda, just 16, in 1994.  Among the evidence against him was Adria's bloody blouse found in his home.  AP story is here.

The Vienna Convention on Consular Relations requires notification of the consulate when a foreign national is arrested.  Leal immigrated to the U.S. from Mexico at the age of 1 1/2.

Article 36(2) of the Vienna Convention provides that rights under it must be asserted within the procedural rules of the jurisdiction.  In Breard v. Greene, 523 U.S. 371 (1998), the United States Supreme Court held (correctly, in my view), that this includes the same procedural default rule that applies to other rights, including those established by the Constitution.

The cases of a group of Mexican nationals, including Leal, went to the International Court of Justice.  That court held in 2004 that the procedural default rule could not be applied, at least in the circumstances of these cases.  The prisoners were entitled to hearings on the merits of their Vienna Convention claims, it said.

Kent warned this morning about our slide back to insecurity  --  back to a country where ordinary people will bear a heavier burden of wondering about their safety and the security of their children, homes and property.  I would like to elaborate, to note that our country seems to be in the grasp of a poisonously short-sighted trend in which we sacrifice tomorrow's well-being for today's fleeting succor.

This is most obvious in criminal law in the accelerting trend, in California and many other states, to save money on the current budget by releasing prisoners before their sentences are complete.

Even if one could trust the easy assurances that these will be only much-fabled "low level, non-violent" sort of prisoners (have you ever heard the defense bar reference anything but the "low level, non-violent" prisoner?), we would still be in for more crime.  The quiet  --  very quiet  -- premise of these release plans is that, hey, we can afford a bit more crime.

This all depends, of course, on what is meant by "we," "can afford," and "bit."   

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."  This is the most famous sentence of the declaration signed 235 years ago today. But the next two sentences are equally important:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Safety is essential to happiness.  We are not happy living in a state of seige.  We are not productive when we must devote energy and attention to protecting ourselves and what we have already earned from predators, rather than concentrating on new productive endeavors.  And that is why we created government in the first place.

Yet in some places government seems to have forgotten that public safety is its first and foremost mission.  In California, we are entering an era that has been called "misdemeanor anarchy."  That is actually an understatement, because the list of crimes one can commit with a near-certainty of not suffering any substantial punishment includes many crimes that have been considered felonies up to now.

Delaware Supreme Court Reverses "Murder's" Murder Conviction:  Sean O'Sullivan on DelawareOnline reports Delaware's high court in a 3-2 decision reversed the first degree murder conviction of Allen J. "Murder" Taylor, after concluding a videotaped statement by a key witness implicating Taylor should not have been introduced at trial because it was coerced.  The court also expressed concerns about the prejudicial effect of Taylor's street name, advising that "in the retrial, the court should make an effort to delete all references to Taylor's nickname, if possible."

Texas Man Sentenced to Death for Murdering Family:  Melody McDonald of the Star-Telegram (TX) reports a Texas jury yesterday sentenced John "Johnny" Hummel to death for fatally stabbing his pregnant wife and beating to death his father-in-law and five-year-old daughter with a baseball bat in 2009.  During closing argument, Tarrant County prosecutor Miles Brissette reminded the jury that Hummel first attempted to kill his family by poisoning their dinner with rat poison, but that his wife fortuitously had thrown out the food thinking it was spoiled. The next day, Brisette said, Hummel went "room by room" killing his family members.  Hummel's defense team countered that Hummel had never learned how to deal with his emotions as a child.

Experts Conclude Critical DNA Evidence in Amanda Knox Trial is Unreliable:  A review by two court-appointed experts concludes that much of the DNA evidence used to convict American exchange student Amanda Knox of sexually assaulting and murdering her roommate was unreliable and possibly contaminated.  The 145-reports states that "international procedures for inspection and international protocols for gathering and sampling exhibits have not been followed."  The experts will present their review in court next month.  Alessandra Rizzo of the AP has this story.

Details Emerge About Night of Washington Prison Guard Slaying:  Diana Hefley and Scott North of The Herald (WA) report that more than 1,600 pages of police reports released yesterday detail the night that Washington inmate Byron Scherf is accused of murdering corrections officer Jayme Biendl, who was found strangled to death in a prison chapel.  The reports state that Scherf was also discovered in the chapel and that after he was returned to his cell, he repeatedly chewed and sucked on his fingernails.  Scherf has been charged with aggravated murder and could face the death penalty. 

Chicago Beach Closures: Weather or Gang Violence?:  Adam Zielinski of WLS Radio (Chicago) reports the "unprecedented closure" of a popular Chicago beach on Memorial Day has prompted controversy over whether the beach was closed due to high temperatures (around 88 degrees), as claimed by police and Chicago Mayor Rahm Emanuel, or gang violence, as indicated by several beachgoers.  A collection of 911 calls obtained by WLS Radio report threats and fighting, but Chicago Police Supt. Garry McCarthy maintains the closure was weather-related only and had no connection to gang activity.

Much of the discussion on the Supreme Court today will likely be in the violent video game case, Brown v. Entertainment Merchants Assn., No. 09-1448.  (Gov. Moonbeam is automatically substituted as a party for the Governator.  See S.C. Rule 35.3.)

It's not really up our alley, so I won't discuss it in depth on this blog.  The split among the Justices is interesting, though.  Justice Scalia takes a straight First Amendment approach along the same lines the Supreme Court used in olden days to legalize pornography.  This is content-based regulation.  Strict scrutiny applies.  The statute fails that test (as statutes almost always do).  Justices Kennedy, Ginsburg, Sotomayor, and Kagan concur.

Justice Alito, joined by Chief Justice Roberts, concur in the judgment.  They would strike down the statute on due process grounds as too vague, leaving to another day what they see as difficult First Amendment questions regarding applying old rules to new technology.

Justice Thomas does not see the First Amendment question as difficult.  Speech to minors bypassing the parents is not within "the freedom of speech" protected by the First Amendment as originally understood.

Justice Breyer believes the statute passes strict scrutiny, and he appends a 15-page list of "peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games."

This should throw a wrench into the "justice agreement statistics."

I frequently comment at Sentencing Law and Policy because, among other reasons, I like to keep my finger on the pulse of what the other side is thinking.  The fellow who runs that blog, Prof. Doug Berman, is a liberal/centrist  --  an eclectic and sometimes innovative thinker who mostly, but not absolutely always, sides with the defense. 

The commenters are something else.  Some are anti-American hotheads.  Some are ex-cons.  Some are defense counsel, who can range from snark specialists to extremely thoughtful and fair-minded people.  A few are conservatives and/or libertarians.

The reason I bring this up is that I have found some common blind spots that recur on the Left no matter what the topic.  Right now I want to talk about three of them.  They are the failure fully to understand that (1) every act of government, in law enforcement and otherwise, costs money; (2) every institution of government is unavoidably fallible, because human beings are unavoidably fallible; and (3) everything in life involves trade-off's, often painful ones.

After the break, I give some in-the-news examples of where these errors crop up.  Right now, I want to emphasize what an appreciation of these errors, taken together, means, to wit, that it's frivolous for our opponents to engage in blinkered sloganeering and think they've made an "argument."  For example, to bullhorn constantly about the costs of X, without being candid about what X achieves, or the costs the alternative to X is likely to create, is unpersuasive and dishonest. 

Even more than dishonest, it is, I have come to believe, childlike  --  not in the sense of charming or innocent, but in the sense of bedazzlement with things that sparkle combined with disinterest in things that don't, but are equally or more important to the task at hand.   The juvenile quality of Leftist thinking, perhaps more than anything else, is what makes it consistently untrustworthy in matters of consequence.

Man Sentenced to 30 Years After Admitting to Crime on CHP Job Application: The Los Angeles Times has this story about Christian Hernandez, 31, who admitted he had recently viewed child pornography in a background questionnaire when he applied to join the California Highway Patrol. During a search of Hernandez's home CHP investigators found a collection of child pornography on his computer, including photos showing him molesting a girl in his bedroom. Hernandez received a maximum sentence of 360 months in prison, and also faces trial on additional molestation charges.

U.S. District Judge Rules Florida's Death Penalty Unconstitutional: David Ovalle of the Miami Herald reports a Miami federal judge has ruled that the Florida death penalty statute is unconstitutional because it leaves open the possibility that the sentencing judge, rather than the jury, makes the factual findings necessary for imposition of the death penalty. U.S. District Judge Jose E. Martinez made the ruling specifically in the case of Paul H. Evans and ordered that he receive a new sentencing hearing. The ruling will likely be argued in appellate courts for years, but if it survives appeals it could force lawmakers to change the statute and give convicts new avenues for appeal. The judge's order can be accessed here. (Thanks to Sentencing Law and Policy for the link.)

New York City spends $5,000 on 800 Neon Smocks for Rikers Island Visitors: Reuven Blau of the New York Daily News reports female visitors to Rikers Island who violate the dress code will be issued a size XXL neon green T-shirt. The smocks are designed to reduce the sexual desires from inmates. Jail officials also hope the T-shirts will help reduce the amount of contraband that is smuggled in. The city spent $5,000 on 800 T-shirts, which will be laundered daily. Norman Seabrook, president of the Correction Officers' Benevolent Association, says the shirts are a waste of money and instead the city should be spending money on hiring more correction officers.

Probationers Don't Take Well to Georgia Farm Work: Ray Henry and Kate Brumback of the AP report the experiment under way in Georgia to encourage probationers to fill the 11,000 vacant jobs in the agriculture business is proving unsuccessful so far. The first group of probationers started work last week on a farm owned by Dick Minor and during the first two days, all the probationers quit by mid-afternoon. "It's not going to work.  No way. If I'm going to depend on the probation people, I'm never going to get the crops up," said Benito Mendez, one of the farm's crew leaders.

Arkansas High Court Halts Three Executions: John Lyon of Arkansas News Bureau reports the Arkansas Supreme Court today halted the executions of Jason Farrell McGehee, Bruce Earl Ward, and Marcel Wayne Williams, who were all scheduled for execution this summer.  The three men are plaintiffs in a lawsuit alleging that a 2009 state law authorizing the director of the Department of Correction to choose the drugs used for lethal injection amounts to an unconstitutional delegation of authority.

Conviction in Sweat Lodge Deaths: Bob Oretega of The Arizona Republic News reports an Arizona jury yesterday found James Arthur Ray guilty of three counts of negligent homicide for the deaths of Kirby Brown, 38; James Shore, 40; and Liz Neuman, 49, in a sweat-lodge he ran in 2009.  Prosecutors had sought convictions for manslaughter, but the jury's convictions on the lesser charge indicates it did not find that Ray was aware or recognized that risk of death caused by the manner in which he ran the sweat lodge.  Ray is eligible for probation and faces a maximum of 11 years and three months behind bars.      

MSNBC is carrying this story about the acquittal of a Dutch politician on charges of "hate speech," that being, among other things,  that Islam is an inherently violent religion and that the Koran should be banned.

The question is why there should have been a criminal case against a politician for such a thing as "hate speech" to begin with.  Yes, we all know that the Netherlands are not governed by the Constitution of the United States, but any liberal Western country should be beyond prosecuting a case like this.

There were two things that struck me as particulary noteworthy here.  First, it apparently was not the prosecutors' idea to launch this case; it seems the judicial branch ordered that it be undertaken  --  "Even the prosecutors called for his acquittal, saying that his remarks may be offensive, but they are part of legitimate political debate."

Second, I hope the irony is not lost on the defendant that he won his hate speech acquittal by defeating the charge that, among other things, he suggested that a book be banned.

To say the obvious, there are plenty of uses for a robust criminal justice system that calls to account dangerous and destructive behavior.  Suppressing political speech is not among them.  

 

Judge Allows Georgia Execution to Proceed:  A Fulton County judge has rejected an attempt by Georgia death row inmate Roy Blankenship to halt his Thursday execution, reports Greg Bluestein of the AP.  Blankenship's attorney argued that Georgia's switch to pentobarbital would cause pain and suffering during the execution, but state attorneys countered that the drug has been used in more than a dozen executions.  Superior Court Judge Wendy Shoob also noted that every court to address the issue has found the use of pentobarbital constitutional.

ICE Announces Arrests of Over 2,400 Convicted Criminal Aliens:  Immigrations and Customs Enforcement announced yesterday that it's seven-day "Cross Check" enforcement operation in May led to the arrest of more than 2,400 convicted criminal aliens and immigration fugitives.  The nationwide operation involved the collaboration of more than 500 ICE agents, as well as other federal, state, and local law enforcement officers, and targeted aliens with serious convictions including armed robbery, drug trafficking, and sexual crimes against minors.  Craig Johnson has this story on CNN.

Suspect "Facebooks" During Hostage Standoff With Police:  Jennifer Dobner of the AP reports a Utah man held a woman hostage in a hotel overnight during a 16-hour standoff with police - all while posting Facebook statuses to keep his family and friends updated.  Jason Valdez's first post read, "I'm currently in a standoff ... kinda ugly, but ready for whatever," and he later added pictures of the female hostage with the caption "Got a cute 'Hostage' huh."  One of Valdez's friends also warned via a Facebook post that a SWAT officer was hiding in the bushes.  SWAT officers eventually swarmed the hotel and arrested Valdez, who is currently in critical condition from a self-inflicted gunshot wound.  Authorities are also discussing whether some of Valdez's friends should be charged with obstruction of justice for hampering a police investigation.

Ah, you mean 17-year-olds, a la Roper v. Simmons, are not children?  You don't say.  

Like chopping down an oak tree with a hatchet, the Supreme Court today took another chunk out of the abominable rule that courts must blind themselves to valid, probative evidence as a means of enforcing the Fourth Amendment.  The vote was 7-2 overall.  Justice Alito wrote the opinion, joined in full by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and, interestingly, Kagan.  Justice Sotomayor wrote a separate opinion concurring in the judgment and noting that the rule established was not as broad as the dissent implied, but she did not express any disagreement with anything in the majority opinion.  The opinion in United States v. Davis is here.  CJLF's amicus brief is here.

The Supreme Court established nearly thirty years ago in United States v. Leon that evidence should not be suppressed when the police rely on a magistrate's decision to issue a search warrant.  If good-faith reliance on a magistrate's assessment of probable cause is good enough, shouldn't reliance on a decision of law by a United States Court of Appeals be good enough?  Obviously, so the defendant had to get creative to argue to the contrary.  One argument was that applying the good-faith exception to this circumstance would effectively return to the old framework for retroactivity law abandoned in Griffith v. Kentucky and Teague v. Lane.  Another was that suppression of evidence was needed to create the incentive and standing needed to bring cases questioning precedent to the Court for review.

First Medical Parole Granted in California: Sam Stanton of The Sacramento Bee reports Craig Lemke, 48, has become the first person granted medical parole through a new California state law that authorizes the release of incapacitated inmates. Lemke is also the first three-strikes inmate to be released through a ruling by the state Board of Parole Hearings. The new law is designed to save the state millions of dollars in medical care for incapacitated inmates and guarding such inmates full time. There is ongoing debate about whether three-strikers should be allowed early release by medical parole.

Two Executions Scheduled for Today: Corrie MacLaggan of Reuters reports Lee Taylor, 32, is scheduled to be executed by lethal injection in Texas later today. Taylor was serving a life sentence for aggravated robbery when he fatally stabbed a fellow inmate in 1999. Taylor will be the fifth inmate executed in Texas this year. Monique Fields of Reuters reports Eddie Duvall Powell, 41, is scheduled to be executed at 6pm local time in Alabama for raping, sodomizing, and murdering a 70-year-old woman in 1995. Powell's execution will be the fourth in Alabama this year.

Oldest Ward of the State to be Released: Stephen Baxter of the Santa Cruz Sentinel reports Donald Gerald Schmidt, 39, will be released from a youth correctional facility sometime between today and June 25. Schmidt was tried as a juvenile when he was 16 and convicted of molesting and drowning a 3-year-old in 1988. Schmidt has had parole hearings every two years since 1997. Santa Cruz County prosecutors argued that Schmidt has a mental disorder that makes him a danger to the public and should continue to be incarcerated. He has been in youth lockups since his conviction, making him the oldest ward of the state. Most juvenile offenders are released from the state system at age 25.

Latin American Countries Join Fight Against HB 87 Immigration Law: Greg Bluestein of the AP reports that 11 countries, including Mexico, Brazil and Argentina, filed briefs late Wednesday asking a federal judge to block Georgia's new immigration law before it takes effect, arguing the law could possibly jeopardize the current ties between the U.S. and Latin America.  As it stands HB 87 would allow law enforcement to check the immigration status of a suspect who cannot provide identification and empowers them to turn over anyone found to be in the country illegally to federal authorities.  People who harbor illegal immigrants and immigrants who present false documents when applying for a job could also be charged under HB 87. 

Lesson Learned: Before You Honk at a Cop Make Sure Drugs Aren't in the Car!: Sebastian Force of WPIX (NY) reports that after Michael Rost, 30, honked his horn twice at a police officer in a middle of investigating a civil matter, the officer pulled Rost over and ask for his credentials. When Rost opened the glove compartment, he also revealed a steel pipe and a plastic baggie that had leafy substance in it. Rost was arrested and charged with possession of drug paraphernalia and several other offenses.

Georgia Governor Offers Labor Solution After Crackdown on Illegal Immigration:   The AP reports Georgia Governor Nathan Deal yesterday offered a solution to the growing need of agricultural laborers after the state's crackdown on illegal immigration has reportedly scared off workers - hire people on probation to do the work.  The state's correction department has already launched a pilot program matching unemployed probationers, who are generally required to seek work, with employers, sending more than 15,000 people to a south Georgia vegetable farm on Monday.  An unscientific study showed around 11,000 job openings in Georgia's agricultural economy.

Texas Execution Scheduled for Tonight:  Texas death row inmate and triple murderer John Balentine is scheduled for execution tonight, reports Michael Graczyk of the AP.  Balentine was sentenced to death for shooting to death three teenagers in Amarillo more than 13 years ago.  The Supreme Court declined to hear Balentine's appeal on Monday, but a second appeal currently pending before the court argues his appellate lawyers failed to raise claims that his trial counsel was ineffective in not presenting mitigating evidence about Balentine's background and character.  Randy Sherrod, one of Balentine's trial attorneys, says the defense team tried to find evidence to persuade the jury to impose a life sentence instead of death, but that they "couldn't find anyone to say anything good about him."  Update:  The Supreme Court granted a stay of execution pending the disposition of Balentine's petition for writ of certiorari filed yesterday (docket no. 10-11036).  Michael Graczyk of the AP has this story.

Federal Jury in Connecticut Decides Death Sentence for First Time Since 1988:  David Owens of The Hartford Courant reports a federal jury in New Haven, Connecticut today decided Azibo Aquart should be sentenced to death for the gruesome murders of three people in 2005.  Aquart, the founder and leader of a drug trafficking crew that primarily sold crack cocaine, was convicted last month of beating to death three people with a baseball bat over a drug dealing dispute.  The U.S. Attorneys office said this is the first time a federal jury in Connecticut has found a defendant should be sentenced to death since the federal death penalty was reinstated in 1988.

California Realignment Plan Threatens Inmate Firefighting Program:  California Governor Jerry Brown's plan to shift responsibility for tens of thousands of inmates from state prison to county supervision may threaten the state's prisoner firefighting program, reports the AP.  Through the program low-level offenders are able to complete training in fire camps, earn a daily wage and good time credits, and obtain skills and licenses that may help them gain employment after their release.  4,300 state prison inmates work on the front lines of California's wildfires each year, making up nearly half of the state's wildland firefighters.  Under Governor Brown's realignment plan, many of the low-level offenders eligible for the fire program will be under county supervision and it is uncertain whether county sheriffs will elect to send inmates through the program. 

Adam Liptak has this story in the NYT on David Baldus, who died Monday at the age of 75.  Baldus was the lead researcher in the study on race and the death penalty that went to the U.S. Supreme Court in McCleskey v. Kemp.  Regrettably, Liptak's story perpetuates the myth that Baldus's findings are unquestioned fact.

The study's findings have often been misunderstood. They did not show that blacks were significantly more likely to be sentenced to death than whites. What the study found was that people accused of killing white victims were four times as likely to be sentenced to death as those accused of killing black victims. In other words, a death sentence often hinged not on the race of the defendant but on the race of the victim.

But what a study "found" is not necessarily the reality of the matter.  Baldus's study was the subject of a full-blown trial in Federal District Court.  The court found that the models purporting to show race-of-victim bias were invalid for omission of legitimate variables.  Include those variables, and you get a different result.

Virginia Defendant Could be First to Die Under Fetus-Mother Death Law:  Bill McKelway of the Richmond Times-Dispatch reports Gregory L. Nelson Jr., 27, could be the first to be executed under a 2004 Virginia law that allows imposition of the death penalty for the murder of an expectant mother and her fetus.  A grand jury handed down an indictment yesterday charging him with the capital murder of 24-year-old Susana Cisneros, who was found slashed to death outside a restaurant where she and Nelson had worked.  Cisneros was pregnant at the time and had told family members that Nelson was the father, though the prosecutors says this fact that has not yet been confirmed.

How Do You Dismantle A Meth Lab?:  Daniel Potter of NPR has this so-titled piece on states' efforts to handle the dangerous and costly process of dismantling methamphetamine-cooking labs.  Tennessee, which leads the nation with more than 2,000 meth lab busts last year, reportedly paid $4.5 million last year to certified contractors to neutralize and haul away the poisonous materials used in the meth-cooking process.  The federal government funded these cleanups until budget cuts this spring, leaving law enforcement officials worried that smaller counties will not report meth labs to avoid the $2,000-$3,000 per lab cleanup bill.

Border Issues Not Confined to Border:  John MacCormack of the San Antonio Express-News has this story about the fight against illegal immigration in rural Brooks County, Texas.  Sheriff deputies several times a week encounter groups of illegal immigrants sneaking through towns and ranches in the county, and more than 100 bodies have been found lost or abandoned by smugglers in the brush since 2009.  Though several hundred Border Patrol agents work in the county, much of the burden falls to local agencies.  And because the county is not considered a "border county," it does not receive federal aid.  "It's not our problem, but it's become our job,"  said Brooks County Sheriff investigator Daniel Davila.

This article by Diane Jennings on death penalty delays is on the Bellingham Herald site today.  It was originally in the Dallas Morning News, but it's behind the DMN paywall there.  The story includes this gem of a quote:

"There are no frivolous issues when you're trying to save another man's life," said Patrick Metze, director of the Capital Punishment Clinic at Texas Tech School of Law.

To date, it is solidly established law that the constitutional right to counsel, and hence the right to effective counsel, ends with the first appeal. Effectiveness review after that creates the danger of an unending spiral of every lawyer litigating the effectiveness of the lawyer before him.  The recent grant of certiorari in Martinez v. Ryan is a troubling indicator the Supreme Court might be considering tinkering with this established law.

Ohio Governor Spares Condemned Killer of Two Scheduled to Die Next Week:  The AP reports Ohio Governor John Kasich today spared the life of death row inmate Shawn Hawkins, saying he had no doubt of Hawkins involvement in the 1989 double murder, but that "[p]recise details of that role are frustratingly unclear to the point that Ohio shouldn't deliver the ultimate penalty in this case."  The governor's decision came after the Ohio Parole Board recommended the same last month, citing several possible problems with Hawkins' case.  Hawkins is the first death row inmate to receive clemency since Kasich took office in January and the seventh to be spared since Ohio resumed executions in 1999.  

Danish Pharmaceutical Company Seeks to Block Access to Execution Drug:  Peter Stanners of The Copenhagen Post reports the Danish pharmaceutical company Lundbeck, makers of the drug Nembutal (generically known as pentobarbital), met with a human rights organization this week to discuss ways to prevent the drug from being used in executions in the United States.  The meeting represents a reversal of Lundbeck's previous position on the use of its drugs, as the company in March said there was little it could do to prevent the ultimate use of its drug and dismissed forcing distributors to sign "end user agreements" to prevent the drug from being sold to prisons.  "We have now realised that even though we can't be completely certain where the drugs end up we should work towards making it harder for the prisons to get the drugs," said Lundbeck spokesperson Mads Kronborg.

More Than 100 Arrested in California Gang Sweep:  California authorities raided more than 50 properties and arrested 101 suspected members of the "Nuestra Familia" gang, a Northern California gang tied to the state prisons and Mexican drug cartels and characterized by California Attorney General Kamala Harris as "one of the most vicious and lethal gangs in our state."  This week's sweep, conducted by more than 300 state, federal, and local agents, was the fifth and largest in two years targeting gang members in Central California.  Yesterday's arrests included two street commanders who controlled operations in Madera and Merced counties.  "Literally, they've been terrorizing these two counties," said Harris.  Don Thompson of the AP has this story.

I have thus far avoided putting up an entry on the Casey Anthony trial, even though, notwithstanding John Edwards' indictment and Rep. Wiener's Excellent Internet Adventures, it's the most prominent criminal case out there.  I've stayed away because this site is (and we hope it remains) different from and better than People Magazine.  But even more than that, the Casey Anthony trial is simultaneously disgusting and oddly routine.

It's disgusting for the obvious reasons; there's only so much you can, or would want to, say about a mother who suffocates her two year-old daughter and tosses her corpse into the woods. 

It's routine because the outline of the defense, although in one way a surprise (having been sprung the first day of trial) is, at this point, standard issue:  A cacophany of lies; free-floating and grotesque accusations against others; lots of "bad memory;" going to the hilt playing the victim (of childhood sexual abuse (what else)); and claims of panic  --  said panic having lasted a month or so while the defendant declined to call the cops to report her daughter missing, then extending considerably longer while she made up an involved story about how she left the child with a non-existent baby sitter.

Although lying is off-the-shelf inventory for criminal defense, I must say the defense here has taken it to a different level.  Ms. Anthony, her counsel tells us, lied about her toddler's "accidental" death because she was molested as a child by her father.  (I believe the brother has been thrown in for good measure).  The logical relationship of such abuse to the parade of lies years later has not been entirely explained.

Yikes.  It makes you nostalgic for the Twinkie Defense.

For those interested, part of the story is here.

'Baseline Killer' Trial Begins Today:  Michael Kiefer of The Arizona Republic reports the capital murder case will begin today against Mark Goudeau, 46, who is already serving a 438 -year prison sentence for the September 2005 sexual assaults of two sisters in Phoenix.  Police and prosecutors believe Goudeau is the 'Baseline Killer' who terrorized Phoenix for 13 months in 2005 and 2006 and killed 9 people.  He faces 74 felony charges, including nine counts of first-degree murder (for which he could face the death penalty), 11 counts of kidnapping, 12 counts of armed robbery, and 14 counts of sexual assault.  Goudeau was arrested in 2006 after police got a DNA hit from the 2005 rapes.

Death penalty opponents are adamant that capital punishment is a violation of "human rights."  Amnesty International, for example, could hardly be more explicit:  "The death penalty is the ultimate denial of human rights," see this site.

I have never been real sure of the source of authority to declare that a punishment perfectly legal in countries with more than half the world's population (including India, the world's largest democracy) is a violation of "human rights," nor am I sure of what objective and agreed upon standards are used to decide what a "human right" is.

Evidently, I need to find out right quick, because it seems that we have a new one:  Access to the Internet.  And no, I am not making this up.  MSNBC reports that said access has been declared a "human right" by none other than Frank La Rue, a 'special rapporteur' for the UN's Human Rights Council (emphasis added): 

The UN report defines Internet access to include both free information flow as well as access to infrastructure, "such as cables, modems, computers and software, to access the Internet in the first place."

Well that's cool.  I trust the UN will be sending someone over in short order to give me up-to-date cables, modems, computers and software.  I also trust someone else  --  although I'm not sure who  --  will pick up the tab for this, since I think it's a no-no to charge for, you know, human rights.

Moral of story:  Next time you hear abolitionists start in on "human rights," watch your wallet (in addition to your chance for justice).