Crime and Consequences Blog: Search Results

News Scan

June 3, 2011 2:30 PM | Posted by Christine Dowling

Florida High Court Rules on Relief for Erroneous Death Sentences: The Florida Supreme Court yesterday clarified the appropriate remedy for death sentences reversed because the sentencing judge erroneously overrode a jury recommendation of life. The court previously handled such reversals inconsistently, sometimes remanding the case to the trial court for resentencing and other times remanding for imposition of a life sentence. The court held the latter to be correct. "Once a defendant has demonstrated that the mitigation presented would have provided a reasonable basis for the jury recommendation, the defendant is entitled to a life sentence. Accordingly, we now hold that the proper course . . . is to remand the case to the trial court for imposition of a life sentence. By eliminating the resentencing proceeding on remand, as well as any subsequent appeal, this approach will promote the timely resolution of these cases, and it will foster uniformity in this area." Brendan Farrington of the AP has this story.

A Prostitute Can Be Recruited to Prostitution, California Supreme Court Says: Bob Egelko of the SF Chronicle reports the California Supreme Court yesterday ruled that one who recruits another to "become a prostitute" can be convicted under California's pandering law - even if the recruitee is already a prostitute. Jomo Zambia was arrested in June 2007 for soliciting an undercover policewoman who was posing as a prostitute, after he told her he was a pimp and offered to pay for her housing and clothing if she would work for him. After he was convicted, his attorney argued on appeal that the relevant statute did not prohibit encouraging a current prostitute (or someone posing as one). The court disagreed, noting that "[t]he plain intent and purpose [of the statute] . . . is to deter pimps or others from establishing new working relationships in the unlawful prostitution trade."

"Mr. Blagojevich, you are a convicted liar, correct?": So went the first moments of Assistant U.S. Attorney Reid Schar's cross examination of former Governor Rod Blagojevich during his retrial on corruption charges, reports Chicago Tribune reporters Jeff Coen and Bob Secter. After five days of direct testimony during which Blagojevich seemed "relaxed and sometimes jovial," prosecutors attacked about his past dishonesty while in office. Blogojevich punted the questions, responding "I try to be as truthful as possible. Politics is a difficult business," and characterizing what prosecutors called a "lie" as "a misdirection play in politics." The AP has some additional notable quotations here.

South Dakota Inmates to Get Voicemail System: Megan Luther of The Argus Leader (SD) reports the South Dakota Department of Corrections will soon be adding a voicemail feature to allow callers, for $1, to leave a 60-second voicemail for inmates in state prison. Inmates will be able to check their messages twice a day for no cost. Michael Winder, communications and information manager for the Department of Corrections, says the equipment and operating costs of the system will be covered by the $1 fee and will not cost taxpayers any additional money. Under the current rules, inmates are allowed to place calls, but can only accept emergency incoming calls.

The John Edwards Case

June 3, 2011 10:20 AM | Posted by Bill Otis

Because I think the John Edwards case will present important issues involving crime and consequences (to coin a phrase), I expect to be following it on this blog in some detail. It is also near and dear to my heart in a number of ways. I got my undergraduate degree at the University of North Carolina, where Edwards got his law degree. He was a courtroom lawyer, as was I, although he made a great deal more money. And his challenge to the indictment -- a virtual certainty to be undertaken -- will be decided in the US Court of Appeals for the Fourth Circuit, where I argued more than 100 criminal cases, representing the United States.

So let me make some observations.

Continue reading The John Edwards Case.

Congratulations, Eric Holder

June 3, 2011 10:20 AM | Posted by Bill Otis

I have often been critical of Attorney General Holder for a variety of his Department's decisions, from the Black Panther voting rights dismissal to his incoherent (and dangerous) handling of terrorist interrogations and prosecutions.

Today is a day for congratulating Mr. Holder. Democratic Party big wig, ex-Senator and 2004 Vice-Presidential candidate John Edwards was indicted today on campaign finance corruption charges. The gist of the case is that he funneled money from contributors to help cover up an affair with a campaign aide, and then further to cover up the existence of a daughter he had by her.

Some will try to say that this is merely the work of a holdover Republican US Attorney. Let's get clear on that right now. First, US Attorneys are political appointees who serve at the President's pleasure. If President Obama wanted him out, he would have been out months or years ago. Second, having been a long-time member of both a US Attorney's Office and a politically-appointed officer of the Justice Department, I can tell you with 100% certainty that this indictment was approved in advance at the highest levels, very likely by Holder himself, and if not that, by the DAG with Holder's blessing.

Holder knows that this is not good news for his Party, which is also suffering from the Weiner Matter, into which I shall not go further on a family blog. He also knows that this is likely to be a long, slow torture; if Edwards were amenable to a plea agreement, it probably would have been reached in time to head off the indictment. Accordingly, Holder is due credit and thanks for allowing this case to go forward.

P.S. I could not end this without saying that Edwards may be the most despicable person I have ever run across in public life. To have an affair while your wife is dying of cancer is bad enough; to deny your own child, which Edwards did for years, is pretty much beyond belief. And this is the man John Kerry selected to be a heartbeat away.

The Root of All Evil

May 31, 2011 3:00 PM | Posted by Kent Scheidegger

Conservatives are not the only ones having fun with all the head-scratching over crime trends that confound the Politically Correct conventional wisdom. Richard Cohen has this column in the WaPo:

"Counter to the prevailing expectation that crime would increase during a recession," it actually dropped last year and violent crime is now at nearly a 40-year low. So said the New York Times last week. But what the Times did not report is precisely why it was so surprised to learn, yet again and probably not for the last time, how the "prevailing expectation" may be limited to people who think as did Marx (Karl maybe, Groucho for sure) that money is the root of all evil. On the contrary, evil is.

I pick on the Times out of tough love. The paper's evident surprise at the falling crime rate shows a remarkable tenacity in clinging to shopworn and disproved dogma. Crime is not committed by good people who lose their jobs. It is committed by criminals who never had real jobs in the first place.

Pretrial Identification and State Action

May 31, 2011 2:32 PM | Posted by Kent Scheidegger

In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court addressed due process limitations on a witness's identification of the defendant when there has been a suggestive identification procedure pretrial.

In United States v. Bouthot, 878 F.2d 1506 (1989), the First Circuit decided that because Biggers was about fairness at trial, not pretrial police misconduct as in, e.g., Fourth Amendment cases, it did not matter whether the suggestive pretrial identification was a product of state action.

Last October, in State v. Addison, 160 N.H. 792 (2010), the Supreme Court of New Hampshire declined to follow the First Circuit and limited Biggers to state action.

Two weeks ago, the US Supreme Court denied certiorari in Addison, but today it granted certiorari in a subsequent case following Addison. That case, as titled in the US Supreme Court, is Perry v. New Hampshire, No. 10-8974. In the state court, it was State v. Perry, 2009-0590 (Nov. 18, 2010).

Should all of this be federal constitutional law at all? A great deal of the law of evidence consists of whether we should exclude evidence of dubious reliability or just trust the jury to give it the diminished weight it deserves. Such questions are not generally constitutional. They are the subject of statutes, rules of court, and common law. The right of confrontation and the privilege against self-incrimination are, of course, constitutional because they written into the Constitution in black and white. But does the general mandate of "due process" authorize the Supreme Court to decide questions of evidence law for all 50 states, banning whatever it considers "unfair"? The high court has many times disclaimed such authority and many other times exercised it (or usurped it). It will be interesting to see how this one works out.

Ninth Circuit Clearly Wrong Yet Again

May 31, 2011 8:20 AM | Posted by Kent Scheidegger

The notorious Ninth Circuit has been reversed yet again by the US Supreme Court in a crime-related case. Yet again, not a single member of the high court thought the Ninth's judgment was correct. Yet again, the Ninth was warned by a strong dissent from denial of rehearing en banc by many of its own judges.

The key question in Ashcroft v. al-Kidd is whether a Fourth Amendment attack on a seizure can be made by claiming an invalid subjective motivation, even though the seizure is objectively valid, meeting the requirements of the Fourth Amendment for a seizure of that type.

We thought we had killed that argument off 15 years ago in Whren v. United States, 517 U.S. 806 (1996), but like the monster in a formula horror movie it springs back to life and attacks again. Despite Whren and a host of other Supreme Court precedents on this question, the Ninth Circuit held to the contrary based on a strained inference from the drug checkpoint case, Indianapolis v. Edmond, 531 U.S. 32 (2000). That case involved stops with no individualized suspicion. To think that Edmond is more closely analogous to this case, involving a material witness warrant issued by a magistrate on an individualized showing, than the cases where the Supreme Court has rejected subjectivity, is an enormous stretch.

Far worse than its merits holding, though, was the Ninth Circuit's assertion that the law was "clearly established" in favor of its holding. That is absolutely preposterous. All eight Justices participating agree that this holding is wrong, see the first paragraphs of all three concurring opinions, and the opinion of the Court includes a severe but thoroughly deserved rebuke.

Continue reading Ninth Circuit Clearly Wrong Yet Again.

Why Has Crime Been Falling?

May 30, 2011 2:01 PM | Posted by Bill Otis

We have had a very significant, generation-long decrease in the crime rate. It is now more than 40% lower than it was at its peak 20 or 25 years ago.

Why?

The release-them-now crowd will do anything to avoid telling you the truth. Recently, I saw, among the comments on SL&P, that crime is falling because prospective criminals spend their time browsing the Internet (and I suppose they do -- everyone else does).

Of course, as Kent and I have pointed out, crime has fallen for several reasons. The most important, the one that dares not speak its name (at least not in defense bar circles), isn't that hard to figure out: We have more of the people who commit crime in prison. They aren't out and about to do their thing, so less of their thing is getting done.

As the eminent James Q. Wilson put it recently in the Wall Street Journal:

[W]e have little reason to ascribe the recent crime decline to jobs, the labor market or consumer sentiment. The question remains: Why is the crime rate falling?

One obvious answer is that many more people are in prison than in the past. Experts differ on the size of the effect, but I think that William Spelman and Steven Levitt have it about right in believing that greater incarceration can explain about one-quarter or more of the crime decline. Yes, many thoughtful observers think that we put too many offenders in prison for too long. For some criminals, such as low-level drug dealers and former inmates returned to prison for parole violations, that may be so. But it's true nevertheless that when prisoners are kept off the street, they can attack only one another, not you or your family.

Imprisonment's crime-reduction effect helps to explain why the burglary, car-theft and robbery rates are lower in the U.S. than in England. The difference results not from the willingness to send convicted offenders to prison, which is about the same in both countries, but in how long America keeps them behind bars. For the same offense, you will spend more time in prison here than in England. Still, prison can't be the sole reason for the recent crime drop in this country: Canada has seen roughly the same decline in crime, but its imprisonment rate has been relatively flat for at least two decades.

Continue reading Why Has Crime Been Falling?.

The Leftist Arsenal: Lying and Smearing

May 28, 2011 9:21 AM | Posted by Bill Otis

Kent gives Marc Howard the benefit of a doubt when he marks up to laziness, rather than deceit, Mr. Howard's claim that most of those to be released under Plata will be more-or-less harmless people.

I don't know Marc Howard, so Kent might be right. Still, I have my doubts. Lying about the facts has become a standard part of the Left's debate inventory, along with its first cousin, smearing the opposition.

What paricularly arouses my suspicion is the breezy contempt Howard uses in introducing his soothing "information" about the prospective releasees (emphasis added): "[Conservatives'] panic-stricken reaction conveniently ignores the fact that more prisoners are incarcerated as a result of property, drug, public order, and other crimes than of violent crimes--and presumably the former would stand to benefit from early release."

Notice that there is no such thing as legitimate concern -- only "panic-stricken reaction." Notice also that conservatives "conveniently ignore" -- guess what -- exactly the "fact" that isn't a fact at all (and that would therefore be a really good candidate to, ummmm, get ignored!) Notice further that the thousands of inmates to be released are presumably of the harmless variety -- said presumption being based on -- well, what?

Answer: willful blindness and wishful thinking. Kinda like "hope and change," to coin a phrase. Except it gets worse, because (a) presuming that thousands of release decisions will be made correctly by the very system whose years of colossal ineptitude required such decsions to start with would seem, uh, moderately stupid; and (b) within the last 48 hours, we learned that California, without the haste and pressure of a court order, nonetheless released to non-revocable parole hundreds of criminals with "a high risk of violence." But not to worry, now that it has the courts breathing down its neck, and many times the number of release decisions that must be made, California will, we can all presume, be releasing only Mr. Nicey.

I respectfully suggest that the better presumption is that California residents do what I did the day I graduated from Stanford Law School, i.e., move to Virginia.

News Scan

May 27, 2011 10:40 AM | Posted by Christine Dowling

Pennsylvania Supreme Court Strikes Local Residency Restrictions: The Pennsylvania Supreme Court this week struck down an Allegheny County ordinance prohibiting all registered sex offenders from living within 2,500 feet of any child care facility, community center, park, or school. The court found that the residency restrictions "clearly interfere" with the state's sex offender registration scheme, which was adopted to further "the rehabilitation, reintegration, and diversion from prison of appropriate offenders." If enforced, the restrictions would isolate sex offenders to "localized penal colonies of sorts," and would thus "subvert" some of these goals. The AP has this story.

Oklahoma Robbery Victim Found Guilty of First Degree Murder: An Oklahoma jury convicted pharmacist Jerome Jay Ersland yesterday of first degree murder for fatally shooting a masked robber inside a drugstore in 2009, reports Nolan Clay of The Oklahoman. Two female co-workers praised Ersland as a hero who saved their lives that day, but prosecutors alleged Ersland went too far in shooting the unarmed robber five more times after the robber fell to the floor unconscious.

"You know what you did was wrong": Melinda Rogers of The Salt Lake City Tribune has this story on Wednesday's sentencing of convicted kidnapper Brian David Mitchell. Victim Elizabeth Smart, whom prosecutors have praised throughout the trial for her courage and poise, addressed Mitchell: "You took away nine months of my life that can never be returned. But in this life or next, you will have to be held responsible for those actions, and I hope you are ready for when that time comes." As he'd done many times throughout the case, Mitchell sang church hymns throughout the hearing, and did not address the court. Judge Dale Kimball sentenced Mitchell to life, calling his crimes against Smart "unusually heinous and degrading."

California to Change Sex Offender Monitoring: The AP reports that starting next week, California parole agents will significantly change how they monitor and respond to alarms from tracking devices affixed to released sex offenders. The companies that provide the satellite-linked ankle bracelets will begin screening the tens of thousands of alarms that come in each month, weaning out alarms that signal less important problems such as a low battery or lost cell phone signal. The changes are intended to allow parole agents to spend less time reviewing the computer-tracked movements of parolees, and more time in the field responding to the most serious alarms and directly supervising the parolees.

The Qualified Immunity Conundrum

May 26, 2011 3:02 PM | Posted by Kent Scheidegger

A federal statute, 42 U.S.C. Â§1983, allows civil suits against state and local officers for violations of federal rights. That sounds fine except for the fact that those rights are so vaguely defined that in many contexts we won't know whether an action was proper or a violation until a judge rules years later. We don't want cops walking on eggs for fear of being sued on every marginal judgment call so that they don't protect us from the bad guys.

The Supreme Court's solution to this is "qualified immunity." The cop can't be held personally liable unless it was "clearly established" at the time of the act that it was a violation.

Okay, but how does the law become clearly established? Sometimes a precedent may be set by another kind of case, such as a motion to suppress evidence, but some issues don't come up this way. For example, excessive force in an otherwise proper arrest does not typically produce any evidence to suppress.

Continue reading The Qualified Immunity Conundrum.

News Scan

May 26, 2011 12:03 PM | Posted by CJLF Staff

Computer Errors in California Lead to Violent Prisoners Being Wrongly Released: Jack Dolan of the Los Angeles Times reports computer errors prompted California prison officials to mistakenly release as unsupervised parolees an estimated 450 inmates with "a high risk of violence" and more than 1,000 additional prisoners presenting a high risk of committing drug, property, and other crimes. The prisoners were placed on non-revocable parole, a status intended for inmates judged to be at a very low risk of re-offending, are not required to report to a parole officer and can only be sent back to prison if they are caught committing a crime. The program was started in January 2010 to ease overcrowding and let parole officers focus on the supervision of higher-risk parolees. State Sen. Ted Lieu (D-Torrance), a former prosecutor who requested the investigation from the inspector general, says if the state can't properly identify who is eligible for an unsupervised parole program, "how can the public have confidence they can release 33,000 felons safely?"

Texas Bill to Address Backlog of Untested Rape Kits: Brian New of KENS 5 (TX) reports a bill awaiting signature from Texas Governor Rick Perry will require all rape kits to be tested, a move some state lawmakers are heralding as long awaited justice for thousands of rape victims in Texas. Many law enforcement agencies in the state contend there is little benefit to testing rape kits where the suspect is known, but Lynn Blanco with the San Antonio Rape Crisis Center said the benefit to testing all kits is the potential of catching a serial rapist. Each kit costs about a thousand dollars to be tested, and it is still unknown where the Texas Department of Public Safety will get its funding to pay for the tests.

New Hampshire Bill Would Expand Death Penalty to Include Home Invasion Murder: Garry Rayno of the New Hampshire Union Leader reports a bill approved by the state Senate Judiciary Committee that will go to vote in the Senate next week would expand the state's death penalty to include murder committed during a burglary or attempted burglary in an occupied structure. The bill is named for Kimberly Cates, who was murdered in 2009 home invasion. Sen. Jim Luther (R-Hollis) said that the expansion of the death penalty is warranted because it addresses murder committed in a person's home, a very sensitive location.

Cats' DNA Helps Catch Abusers: Andy Newman of The New York Times has this story about the first convictions in New York City using animal DNA. In the case of Scruffy, a 1-year-old tabby also known as Tommy Two Times who was so badly burned he had to be put down, burnt tissue found in a vacant room was matched to a sample from Scruffy. In the case of Madea, found badly beaten, an investigator noticed a suspicious umbrella and dried cat saliva was matched to the cat. Only a handful of similar cases have been won in the U.S., although in many cases the existence of DNA evidence encourages defendants to plead guilty.

News Scan

May 25, 2011 9:40 AM | Posted by CJLF Staff

Jury Render's Verdict in Sacramento Homeless Camping Trial: Cynthia Hubert of the AP reports a federal jury in Sacramento issued a mixed verdict yesterday in a class action suit on behalf of homeless people whose possessions were seized and destroyed in city police sweeps. The jury found the city failed to properly notify homeless people of how they could retrieve property removed from the illegal camp sites and implement policies for handling and storing those possessions. At this time it is unclear to what extent this verdict will have on future city policies for responding to homeless campsite complaints, or to what extent the homeless will be compensated for their lost property.

California Denies First Medical Parole: Don Thompson of the AP reports California parole officials yesterday rejected early release for 42 year-old Corcoran State prison inmate Steven Martinez, a convicted kidnapper and rapist who became quadriplegic after a prison fight. Martinez hoped to be the first prison inmate released under a new law that took affect this year aimed at cutting the number of inmates and cost of care in the nation's largest prison system. However, after a four-hour hearing parole board Commissioner John Peck said, "the 42 year-old inmate would pose an unreasonable threat to public safety, because he has said others could carry out his repeated threats against prison nurses and guards."

Murder Case Juror's Dismissal Improper: Bob Egelko of the San Francisco Chronicle reports the Ninth U.S. Circuit Court of Appeals on Monday overturned the conviction of Tara Williams, convicted of the 1993 murder of a convenience store clerk in Long Beach. The court found that trial Judge Richard Romero had gone too far in trying to end a jury deadlock after two days of deliberation by subjecting the lone holdout juror to an improper and broad ranging judicial inquisition. In a 3-0 ruling the court stated, "the constitutional right to a jury trial includes jurors freedom to deliberation without coercion." This ruling will entitle Williams to a new trial.

Former Street Preacher Convicted of Kidnapping Elizabeth Smart Set for Sentencing: The AP reports today's sentencing of 57 year-old Brian David Mitchell will end the heartbreaking ordeal that stalled for years after Mitchell was declared mentally ill and unfit to stand trial in state court. Mitchell was convicted of the 2002 kidnapping and unlawful transportation of a minor across state lines for the purpose of having illegal sex with then 14 year-old Elizabeth Smart. Smart, now 23, will speak at the sentencing hearing and publicly confront her kidnapper for the first time. Mitchell faces the possibility of a life sentence for each charge. Update: Mitchell was sentenced to life in prison.

Jared Loughner Incompetent to Stand Trial: U.S. District Judge Larry Burns today found suspected mass shooter Jared Loughner incompetent to stand trial, citing two recent court-ordered mental evaluations that claim Loughner cannot assist in his defense due to mental illness. Judge Burns said Loughner has an irrational distrust of his attorneys and delusions that prevent him from considering his legal defenses. Loughner had an outburst during the hearing, reportedly saying "thank you for the freak show," and was forcibly removed by court officers. Michael Martinez of CNN has this story.

DEA Stops Arizona Execution

May 25, 2011 9:22 AM | Posted by Kent Scheidegger

Suppose on a dry, clear, sunny day you are driving on a lightly traveled freeway. A highway patrol officer clocks you at 71 where the speed limit is 70. Is he obligated to pull you over and write a ticket? Of course not. Yes, you are in violation, but your conduct does not present the danger that is the underlying purpose of the speed limit law. Driving 71 is not materially less safe than driving 70. The officer has discretion to not cite you, and nearly all officers would refrain.

Federal regulation of drugs has two purposes: to insure that drugs used for medical purposes are safe and effective and to keep them out of the hands of drug abusers. Neither purpose is implicated by the use of drugs to execute a death sentence.

Continue reading DEA Stops Arizona Execution.

Steady Decline in Major Crime Baffles Experts

May 24, 2011 11:39 AM | Posted by Kent Scheidegger

The title of this post is the headline of this NYT article by Richard Oppel (hat tip, SL&P). As has become routine, the experts are baffled because none of their pet theories about what causes crime rates to rise and fall fit the data. The once-popular demographic theory -- it's all about the percentage of young men -- crashed and burned when the baby-boom-echo crime wave failed to materialize. The economic theory near and dear to left -- crime goes up when Jean Valjean must steal bread to feed his starving family -- does not fit the present crime drop during a recession.

Continue reading Steady Decline in Major Crime Baffles Experts.

Refusing to Take Yes for an Answer

May 23, 2011 3:43 PM | Posted by Bill Otis

I could not help but be struck by the juxtaposition of today's two major crime and punishment stories. The first, which Kent has covered, is the Supreme Court's decision that overcrowding in California's prisons has caused constitutionally unacceptable conditions, and therefore prisoners by the thousand must be released from this overstuffed system.

The second, which oddly is getting less coverage, is that this same overstuffed system continues to produce remarkable reductions in the crime rate. This maintains a trend -- which not coincidentally developed over the last two decades of "incarceration nation" -- in which crime has dropped to the lowest level in fifty years.

What this means, specifically, is that, in the era of "incarceration nation," thousands fewer of our fellow citizens have been beaten, robbed, raped, swindled and yoked than was the case in the "compassionate" era of the sixties and seventies.

What is even more remarkable is that last year's dramatic crime reduction came at a time of continuing economic hardship and high unemployment. This is most strange, since, as we have been lectured for years, it's economic hardship that produces crime (as opposed to, say, the nature of society's response).

No normal person thinks that prisoners should be deprived of baseline medical care; they can't be, period. But we know now (as if we didn't before) that imprisoning people who commit crime produces less crime. We therefore also know that releasing them will produce more crime -- and the more released, the more crime is coming. Refusing to acknowledge this fact is just flat-out dishonest.

PLRA and the Three-Judge Court

May 23, 2011 3:10 PM | Posted by Kent Scheidegger

One of the many problems with prison litigation is that the cases tend to end up in the hands of the most pro-prisoner, anti-law-enforcement judges. In the Brown v. Plata case decided by the Supreme Court today, that problem hit a new low. Congress had required in the Prison Litigation Reform Act that a prisoner release order can only be issued by a special three-judge district court -- a throwback to days of yore when trial courts commonly had multiple judges for important cases. Well in this case the three-judge court was the criminals' dream team -- Circuit Judge Reinhardt and District Judges Henderson and Karlton. If counsel for the prisoners could have chosen the three judges in the entire federal judiciary most likely to rule in their favor, those are very likely the three they would have chosen.

Continue reading PLRA and the Three-Judge Court.

News Scan

May 23, 2011 10:03 AM | Posted by CJLF Staff

Violent Crimes Declined Last Year: The AP reports the Federal Bureau of Investigation announced today that "violent crimes in the U.S. fell 5.5% from last year, with the biggest drop in the South." The crime rate dropped in all four categories of violent crime, murder, rape, robbery, and aggravated assault, and in all four regions of the country, the South (7.5%), the Midwest (5.9%) the West, (5.8%), and the Northeast (0.4%). Preliminary statistics from 2010 were compared with 2009 and based on information from more than 13,000 law enforcement agencies. The FBI's release is here.

New York Closes Loophole in Child Molestation Crimes: Sexual assault of a child 11 or 12 years of age may now be charged as first-degree felony sexual abuse in New York, reports Rocca LaDuca of the Observer-Dispatch (NY). The recent legislation, signed into law last week by Governor Andrew Cuomo, closes a gap in New York's previous sexual assault laws that left the highest felony only if the victim was younger than 11. Though the apparent legislative glitch was made known to legislators four years ago, opposition to tougher penalties from some lawmakers delayed the fix. "The loophole that existed was allowing children 11 and 12 years old to be molested and the crime that was committed was the equivalent to stealing a pack of cigarettes," said Oneida County District Attorney Scott McNamara. "That is wrong. They are not equal in crime and they shouldn't be equal in punishment."

Sentenced to the Kiddie Pool: After pleading guilty to rafting on a flooded river without life preservers and lying about it, an Ohio couple found themselves serving time in an unusual spot - a kiddie pool during a weekend festival, adorned in life jackets and handing out water safety brochures. Searchers spent hours looking for Grace Nash, 20, and Bruce Crawford, 22, last month after they were spotted in the flooded Grand River. The couple made it to safety, but lied to an official about being in the water. The AP has this story and picture.

News Scan

May 20, 2011 11:51 AM | Posted by Christine Dowling

Investigators in 1982 Tylenol Case Want Unabomber's DNA: FBI officials are seeking a new DNA sample from "Unabomber" Ted Kaczynski as part of their investigation into the 1982 Tylenol incident, in which seven people died after taking pills laced with potassium cyanide. The unsolved case was reopened in February 2009, prompted by the 25th anniversary of the crimes and advances in forensic technology made since the original investigation. An FBI spokesperson says Kaczynski has refused to provide a sample voluntarily, though Kaczynski claims in a handwritten motion filed earlier this month that he would provide a sample if the FBI would satisfy a certain condition (which is unknown at this time). About 60 items seized from Kaczynski's Montana cabin in 1996 will soon be up for grabs on an online government action, with proceeds to benefit four of his victims. As of yesterday, bidding for his 35,000-word handwritten manifesto stood at more than $12,000. CNN has this story.

Jury Recommends Life Without Parole for Mother Who Microwaved Baby: An Ohio jury recommended a sentence of life without parole for China Arnold, convicted of killing her 28-day-old daughter by placing her in a microwave, reports the AP. The jury had the option of recommending a death sentence, but selected life instead after six-and-a-half hours of deliberation. This was the third time Arnold had been tried for the crime; the first trial ended in a mistrial, and her second conviction was overturned by an Ohio appellate court last November.

Indiana Ruling Sparks Protest: The AP reports a ruling by the Indiana Supreme Court (see previous post here) that there is no constitutional right to resist unlawful police entry into a home has sparked outrage from lawmakers, threats to the court, and a planned rally against the ruling at the statehouse. Despite claims that the ruling "pretty much wipes out the Fourth Amendment," law professor Ivan Bodensteiner says the decision brings Indiana in line with around 40 other states that don't recognize a common law right to resist illegal police entry. Bodensteiner also clarifies that the ruling doesn't permit police to enter home unlawfully, but only holds that if they do, the resident's remedy is to file a civil claim against the officer rather than resort to physical violence.

Memo to Carjackers: Check the Fuel Gauge: Joshua Melvin of the San Mateo County Times reports a suspected carjacker's getaway plan was foiled when the stolen car ran out of gas. Stephen Allen, 20, allegedly ordered a mother and child out of their car in a restaurant parking lot, then made it about eight miles down the road before hitting empty.

Alabama Conducts Pentobarbital Execution

May 19, 2011 4:56 PM | Posted by Kent Scheidegger

Chalk up one more state to avoid the thiopental supply problems in lethal injection executions by switching to pentobarbital. Katherine Sayre of the Press-Register reports from Atmore, Alabama:

[Jason] Williams ... was the first inmate in Alabama to be executed using pentobarbital in the state's three-drug lethal injection. The state was forced to change the drug after a shortage of sodium thiopental across the U.S.
* * *
Williams killed four people and injured three others during a shooting rampage in south Mobile County in the early morning hours of Feb. 15, 1992.

Gerald Paravicini, 46, Freddie Barber, 50, Linda Barber, 45, and Bryan Barber, 22, were shot and killed in their homes off Padgett Switch Road about 6 a.m.
* * *
Defense lawyers for Williams challenged the use of pentobarbital, arguing that it hasn't been proven to cease consciousness or otherwise stop the ability to lose pain. His lawyers that that violated the constitutional ban against cruel and unusual punishment.

The US Supreme Court order denying a stay is here.

Cloture Fails on Liu

May 19, 2011 11:30 AM | Posted by Kent Scheidegger

The Senate has rejected, 52-43, the attempt to break the filibuster on the nomination of Goodwin Liu to the Ninth Circuit. A 3/5 majority was required under the Senate rules.

During the Bush Administration, Senator Barack Obama supported the use of the filibuster to block judicial nominees. Professor Goodwin Liu forcefully advocated considering a nominee's viewpoints, not just objective qualifications. A nominee should be rejected, he said, if his viewpoints were "out of the mainstream."

Putting those two together, filibuster of this nomination is the right thing to do. One could, of course, take the opposite of those positions. Many Republicans did during the Bush Administration, and many Democrats have been saying similar things in the present debate. However, it would be very wrong for one party to unilaterally disarm and allow the other to have free rein whenever it has the White House and a Senate majority while that other party shows no such restraint and blocks votes based on viewpoint alone. Such unilateral disarmament would result in a skew of the judiciary.

The 43 Senators voting no, despite heavy pressure and groundless accusations of racial motive, did the right thing and the courageous thing. Thanks and congratulations to them all.

Update: Looks like Bill and I were posting at the same time. The WSJ had this article before the vote this morning.

Update 2: ABC News' Matthew Jaffe reports:

The vote was largely along party lines, with only a few exceptions: Nebraska's Ben Nelson split with his fellow Democrats to vote against Liu, while Alaska's Lisa Murkowski voted for Liu.
Utah Republican Orrin Hatch voted present, while four senators did not vote at all: David Vitter, R-Louisiana; Jerry Moran, R-Kansas; Kay Bailey Hutchison, R-Texas; and Max Baucus, D-Montana.

News Scan

May 19, 2011 9:03 AM | Posted by CJLF Staff

Indiana School District Wants to Allow Bus Drivers to Search Students: The Associated Press reports a school district in western Indiana wants to allow its bus drivers to search students for drugs or weapons. The proposal would give bus drivers the authority to search a student and their belongings if there is an immediate threat of harm or danger to others on the bus.

Be Careful What You Ask For: Peter Busch of KPHO CBS 5 News (AZ) reports convicted rapist Timothy Boles's petition for a new DNA test to clear his name from a 1988 sexual assault backfired on him. Not only did the results confirm his conviction in the case, they also linked him to an unsolved 1991 rape case involving a 12-year-old girl. The Arizona Justice Project paid for the new DNA tests for Boles, who is already in prison for life. "As they push for these efforts of exoneration, we're likely to see additional cases. I don't think this will be the only one we ever see," said Maricopa County Attorney Bill Montgomery.

Third Women Sentenced to Florida's Death Row: Kaustuv Basu of FloridaToday.com reports Margaret Allen, 45, was sentenced to death today for the kidnapping and murder of her friend, Wenda Wright. Allen will now be the third woman on Florida's death row. Prosecutor Garry Beatty said Wright was tortured to death. "If that doesn't justify the death penalty, how bad does it have to get?" said Beatty.

First Medical Parole Hearing in California: Sam Stanton of the Sacramento Bee reports Steven Charles Martinez, a quadriplegic and inmate at Corcoran State Prison, will become the first state prison inmate to face a medical parole hearing that starts on Tuesday. Former Gov. Arnold Schwarzenegger signed a state law in September as a cost-saving measure that would allow inmates who are in a vegetative or highly incapacitated state and deemed to pose no threat to society to win release from prison with the approval of the Board of Parole Hearings. Taxpayers provide $500,000 annually for Martinez's medical care. Martinez's case has gone before the state Board of Parole Hearings in 2008 and 2010 under California's "compassionate release" program, and the board denied his release both times. "Martinez's mental state remains unchanged," the board concluded last September. "He remains a violent person capable of using others to carry out his threats."

A Smorgasbord of Lies

May 18, 2011 7:52 PM | Posted by Bill Otis

Kent has noted an article discussing possible defenses for the illustrious Dominique Strauss-Kahn, the jet-setting Frenchman who for the moment heads the IMF, and who has been accused by New York authorities of attempting to rape a maid in his $3000 a night suite at a posh hotel.

Although I have been a lawyer for more than 30 years, I admit I'm slow to catch on. Not once does the article suggest that DSK just tell the truth; indeed, the word "truth" is completely absent. What gets discussed is what might sell, and how it might be made to sell. Whether the possible stories coincide with the reality of what happened appears to provoke zero interest either in the authors or anyone they interviewed.

The typical defense line, on those rare occasions when asked about this devil-may-care attiitude toward the truth, is to talk about something else: It's the government's burden; the state has all the resources; the Framers were more concerned with the abuse potentially bred by state power than with private misbehavior, no matter how serious.

And all that is true. But, as this case is in the process of teaching us, it's also cynical, dispiriting, an indulgence for dishonesty, and an invitation to injustice. Is this the best we can do?

Continue reading A Smorgasbord of Lies.

Academic Advice for the DSK Defense

May 18, 2011 4:37 PM | Posted by Kent Scheidegger

Joseph Ax and Jennifer Golson have this article for Reuters on possible defense strategies in the DSK case. Trashing the victim is high on the list, despite the shield law. Then, there are two suggestions from academics:

At the same time, the defense could try to emphasize Strauss-Kahn's own character, arguing he was not the sort to commit sexual assault, said Todd Berger, who teaches criminal law at Rutgers University School of Law at Camden.

Or his lawyers could point to Strauss-Kahn's troubled history with women -- among other reports, a French journalist accused him of trying to force himself upon her in 2002, and his affairs have long been considered an open secret in France -- as evidence that he suffers from mental illness, said James Cohen, a professor at Fordham University School of Law.

I would suggest he not try both of those tactics before the same jury. Actually, either one would bring in evidence of DSK's "troubled history," a history I noted here might not be admissible in the prosecution's case in chief. The second tactic would require the defense to bring the evidence in itself; the first would open the door to that evidence in rebuttal.

Graham, Isakson, McCain Oppose Cloture on Liu

May 18, 2011 1:53 PM | Posted by Kent Scheidegger

David Ingram reports at BLT:

Three Republicans who have rarely supported filibusters of judicial nominees said today they will vote to filibuster appellate nominee Goodwin Liu, a bad omen for Liu a day before a crucial Senate vote.
Republican Sens. Lindsey Graham (S.C.), Johnny Isakson (Ga.) and John McCain (Ariz.) said they plan to vote against ending debate on Liu's nomination. The vote is scheduled for 2 p.m. on Thursday, and Liu needs 60 votes to advance to a final confirmation vote. A judicial nominee of President Barack Obama has never been successfully filibustered, but Liu may be the first.
In separate comments, the three senators all cited the same reason for opposing Liu: the law professor's 2006 testimony against the confirmation of Justice Samuel Alito Jr.

News Scan

May 18, 2011 1:39 PM | Posted by Christine Dowling

Alleged Serial Killer's DNA Sample is Missing: The investigation of alleged Ohio serial killer Anthony Sowell is getting messier, reports Rachel Dissell of The Plain Dealer (OH). Last week, Ohio prosecutors announced that an untested rape kit was a match to Sowell and that the rape kit had been obtained before five of Sowell's alleged 11 victims went missing. Now Ohio officials admit that although a DNA sample was collected from Sowell while he was in prison in the 1990s, the sample was never processed or entered into the state's database. The Virginia lab, to which Ohio sent its DNA samples for testing pending completion of the state's lab, also discovered recently 200 biological samples that had never been tested. Sowell's sample is not among the 200.

Pennsylvania County Jury Recommends Death Sentence for First Time in 25 Years: Riley Yates and Pamela Lehman of The Morning Call (PA) report a Northampton County jury yesterday recommended a sentence of death for quadruple-murderer Michael Ballard - the first such sentence in the Pennsylvania county since 1987. In what prosecutors call a "slaughter" and "massacre," Ballard last summer stabbed to death his former girlfriend, her father, her deaf, blind, and wheelchair-bound grandfather, and a neighbor who heard screaming in the home and tried to help. At the time of the murders, Ballard was on parole for slitting the throat of a man in 1991 and stealing the dead man's wallet and car. The jury reached its unanimous decision after two hours of deliberation.

Court Did Not Follow Proper Procedure When Closing Drug Cartel Sentence: The Fifth Circuit yesterday ruled a federal district court in Houston did not follow proper procedures when it closed to the public the sentencing of Osiel Cardenas-Guillen, former head of a notorious Mexican drug cartel. At the time of his 2003 arrest in Mexico, Cardenas-Guillen was considered by the government to be "one of the most wanted, feared, and violent drug traffickers in the world." The government requested a closed sentencing proceeding for reasons of public safety and the district court agreed, sentencing Cardenas-Guillen in February to 25 years and ordering him to forfeit $50 million in a closed proceeding held without any public notice. The Houston Chronicle, who had previously attempted to keep the proceedings in this case open to the public, discovered the closed courtroom on the day of sentencing and was denied access. The Fifth Circuit found this to be error: "the press and public have a First Amendment right of access to sentencing hearings, and [] the district court should have given the press and public notice and an opportunity to be heard before closing the sentencing proceeding in this case." Dane Schiller of the Houston Chronicle has this story.

News Scan

May 17, 2011 9:04 AM | Posted by CJLF Staff

Supreme Court Refuses Appeals for Three Condemned Texas Inmates: The Associated Press reports the U.S. Supreme Court has denied the appeals of three men on death row in Texas, two of whom were convicted of killing children. See Monday's orders list. No execution dates have been set for any of the three men.

Convicted Ohio Killer Release Prompts Push for Victim's Rights: The Associated Press reports Thomas Craft of Ohio will be released from prison next month, 11 years after he was convicted of killing and dismembering his wife and leaving her body parts at various sites in Michigan, including in a McDonald's dumpster. The pending release has prompted his former wife's family to push for "Lynette's Law," legislation that would require victim approval of the conditions of an inmate's post-release supervision. After learning that Craft planned to moved to Wisconsin to be near the couple's sons following his June release, Lynette Craft's family successfully petitioned the prisons department for in-state monitoring of Craft, who will spend the next five years in a half-way house in Ohio.

Mississippi Execution Scheduled for Later Today: The Associated Press reports Rodney Gray is scheduled to be executed in Mississippi today at 6pm local time after the U.S. Supreme Court denied a stay of execution. Mississippi Governor Haley Barbour also denied Gray's bid for clemency. Gray was sentenced to death in 1996 for killing a 79-year-old woman whose body was discovered on a bridge in 1994 with a fatal shotgun wound in the head.

New York Senate to Vote on Violent Felony Offender Registry: NewsLI.com (NY) reports the New York Senate is set to vote today on "Brittany's Law," a bill that would require violent offenders to register with the New York State Department of Criminal Justice Services upon release from prison. The law is named for 12-year-old Brittany Passalacqua, who was murdered along with her mother in 2009 by a violent convicted felon on parole after serving part of his sentence for assaulting his infant daughter in 2003. The violent felony offender registry would be similar to the New York State Sex Offender Registry and would require offenders to register annually after their release from prison. Several other states have established a violent felony offender registry, including Montana, Illinois, Indiana, Florida, Kansas, Louisiana, Nevada, and Oklahoma.

Convicted Sex Offender Gets 830 Years to Life: The Associated Press reports 44-year-old Bennie Dale Moses of West Sacramento has been sentenced to 830 years to life for sexually abusing a young girl for nine years, beginning in 2000 when she was 12 years old. In March he was convicted on 62 counts of sex and oral copulation with a child, where Yolo County Superior Court Judge Stephan Mock ruled that Moses had previously been convicted of 12 separate "strike" offenses.

First Conviction Under Federal Hate Crimes Act: The Lovely County Citizen (AR) reports that the Justice Department announced today that 19-year-old Sean Popejoy of Arkansas pleaded guilty in federal court to one count of committing a federal hate crime and one count of conspiring to commit a federal hate crime. This is the first conviction for a violation of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, enacted in October 2009. Popejoy could face a maximum punishment of 15 years in prison.

American Society of Magazine Editors' Disgraceful Award: Cully Stimson has this so-titled post on The Heritage Foundation's blog, regarding Scott Horton's receipt of the American Society of Magazine Editors' award. Horton published a story in Harper's Magazine in January 2010 claiming the deaths of three Gitmo detainees in 2006 were "most likely" caused by U.S. personnel, rather than suicides as confirmed by Navy investigators. Stimson writes Horton's story "was a complete fiction and its flaws have been exposed from every conceivable quarter," including military officials and classified documents published by Wikileaks. For Horton to receive an award for such a piece, Stimson opines, "does not reflect well on the standards for reporters" and is "a disgrace."

Whole Lotta Recusin' Goin' On

May 16, 2011 9:31 AM | Posted by Kent Scheidegger

With apologies to Jerry Lee Lewis, there was a whole lotta recusin' goin' on at the US Supreme Court in this morning's orders list.

In the previous list of May 2, there were only six recusals. There were four federal cases in which former SG Kagan was recused, a common and expected occurrence during her first year after that transition. There were also two Second Circuit cases in which sophomore Justice Sotomayor was recused, also expected.

Today, in contrast, there were thirteen recusals. There are eight cases in which the United States or a federal official is a party, with Justice Kagan recused, plus one Second Circuit case, with Justice Sotomayor recused. That is a bump from the previous three lists, but within normal variation. On top of that, though, Chief Justice Roberts is recused in three cases and Justice Kennedy in one.

Continue reading Whole Lotta Recusin' Goin' On.

Bivens and Private Prisons

May 16, 2011 8:40 AM | Posted by Kent Scheidegger

The US Supreme Court today agreed to take up the question of Bivens suits against employees of privately operated federal prisons, granting certiorari in the case of Minneci v. Pollard, No. 10-1104. The SCOTUSblog page, with links to cert-stage documents, is here.

Continue reading Bivens and Private Prisons.

Reason Number Eight Zillion Why the USA Is a Great Place

May 14, 2011 8:16 PM | Posted by Bill Otis

"Equal Justice Under Law" is the motto inscribed above the entrance to the Supreme Court. It is also the object of relentless derision from those who view the American criminal justice system with contempt. To them, the system is simply a tool for the upper class to intimidate those farther down the ladder. Cases are not about evidence, and citizens are not indicted because of their behavior. Instead, cases are about bigotry, economic or racial or both, and citizens are indicted to put them in their place.

You might think this weary, Marxist-style critique would have given up the ghost by now. Not exactly. Read any defense-oriented blog and you'll see it has just as much currency as ever.

So I had to take note when I saw tonight that the head of the IMF -- an international Mr. Big who must define the upper class if anyone does -- got taken off his first-class flight to Paris and arrested on the word of a hotel maid that he had sexually assaulted her. MSNBC has the story.

Anecdotes can be misleading, for sure. But every now and again, you see one that gives you a reminder. In this incredibly fair-minded and decent country, Equal Justice Under Law is not just a slogan.

A Case Worth Dropping

May 14, 2011 7:21 PM | Posted by Bill Otis

The New York Daily News puts it as well as anyone:

Despite the heroic success of just one week ago, in which American intelligence and military might combined to kill the biggest enemy of civilized society, the U.S. government could still proceed with prosecutions against the CIA interrogators whose work contributed to that victory.

Compare and contrast the mixed messages.

Message one: When announcing Osama Bin Laden's killing, President Obama said, "We give thanks to the countless intelligence and counterterrorism professionals who've worked tirelessly to achieve this outcome."

Message two: On Tuesday, CIA Director Leon Panetta admitted that the agency's use of "enhanced interrogation techniques against some of those [suspected terrorist] detainees" played a role in tracking Bin Laden down.

Message three: In August, Attorney General Eric Holder appointed a prosecutor to investigate alleged CIA interrogation abuses - a move that could lead to charges against some of the very people who helped get Bin Laden.

Message four: Career federal prosecutors had closed a probe of the same matter with a no-action recommendation.

It matters not whether the agents in question contributed a little or a lot to Bin Laden's death. They did their best at a time when the United States was horrified by the prospect of another attack to safeguard their fellow Americans.

Laud them, don't pursue them.

Drop the damn prosecutions.

Results matching “first”

Search

Recent Entries

Monthly Archives

Issues

Links

Blogs

Facebook