Results matching “first”

Court Hears Arguments about Death Penalty Protocol:  The Winston Salem Journal reports the North Carolina Supreme Court heard argument today about whether an administrative law judge had the authority to order the elected officials to revise the state's execution protocol.  Attorneys for five death row inmates argue the North Carolina Council of State failed to fulfill its duties when it hastily approved new execution procedures in 2007 without hearing from those representing condemned prisoners.  After a trial court judge ruled in the Council's favor, the death row inmates sought further review from the state's high court. 

First Amendment Rights Collide in Westboro Case:  John Crisp of Del Mar College in Corpus Christi has this op-ed in the San Angelo Times on Snyder v. Phelps, the recent Supreme Court case upholding the right of the Westboro Baptist Church to peacefully protest at military funerals.  Crisp opines "[t]he opinion's declaration of the reasoning behind judgment by eight members of the court is thoroughly convincing," but that "Alito [the lone dissenter] convincingly challenges the reasoning of the majority opinion."  Crisp concludes that "[l]imiting speech in any way is always dangerous.  But the right to speech is no more important than another essential American right, the right to be left alone, especially when you're grieving."

Convicted Killer Seeking Stay of Execution:  The AP reports attorneys for Arizona death row inmate Eric John King, 47, have filed a second motion with the state's high court seeking a stay from his scheduled March 29 execution date.  King was sentenced to death for fatally shooting a convenience store clerk and a security guard during a 1989 robbery.  His defense team claims jurors should not have been shown a condensed copy of a store surveillance video and that Jones has "no memory of the crime" because he was in an intoxicated state on the night of the robbery. 

New Hampshire House to Vote on Expansion of Death Penalty:  The New Hampshire House is scheduled to vote this week on whether to expand the state's category of death-eligible crimes to include murders during home invasions, reports the AP.  The proposed expansion comes in light of the 2009 fatal slashing death of Kimberly Cates in her home, a crime that, despite its gruesome nature (Andrew Wolfe of The Nashua Telegraph has the details here), was not death-eligible under current New Hampshire law.  

California Wants to Try Illinois Killer Spared by DP Repeal:  The Associated Press reports that when Illinois Governor Pat Quinn abolished the death penalty on Wednesday, he commuted the death sentence of Andrew Urdiales, 46, to a life sentence.  Urdiales was convicted and sentenced to death in 2004 for the 1996 killing of Cassandra Corum.  Urdiales was also previously sentenced to death for killing two Chicago-area women, but his sentence was commuted to a life sentence after former Illinois Governor George Ryan cleared Illinois' death row in 2003.  The Orange County DA is now asking Governor Brown to OK a request for extradition of Urdiales to California for trial for the murders of five women.  In 2009, a California grand jury indicted Urdiales in the murders.  If Brown approves the request he will forward it to Quinn, who will decide whether or not to grant extradition of Urdiales.

Defense Opposes Mental Exam of Arizona Shooting Suspect:  Julie Watson of the Associated Press reports Jared Loughner's lawyer Judy Clarke is opposing a mental exam of her client, stating that it would interfere with her ability to work and develop trust with him.  Loughner, 22, could face the death penalty for the Tucson, Arizona shooting on January 8th that left four dead and Congresswoman Gabrielle Giffords recovering from a brain injury.  U.S. District Judge Larry Burns granted the prosecutors request to give Loughner a psychological evaluation, and set a hearing for May 25 to determine if Loughner is competent to stand trial.  If Loughner is determined to be competent, it could make it more difficult for Clarke to use an insanity defense.

Federal Prisons Are Out of Execution Drug:  Andrew Welsh-Huggins of the Associated Press reports the federal government, along with many states, have run out of the lethal injection drug sodium thiopental.  U.S. Attorney General Eric Holder stated that officials are researching other alternatives to the drug and death penalty procedures.  Oklahoma and Ohio have switched to the use of a surgical sedative, pentobarbital, in lethal injections.  While Oklahoma uses pentobarbital along with other drugs to execute inmates, on Thursday Ohio executed murderer Johnnie Batson using only pentobarbital.  The federal government and other states will have to make a similar switch to pentobarbital or find another alternative.

Jury Recommends Death for Killer:  The Associated Press reports  that David Dewayne Riley Jr., 26, was convicted a second time for killing 38-year-old store clerk Scott Michael Kirtley in a 2005 liquor store robbery.  The jury made a unanimous recommendation that he be sentenced to death.  In 2007, Riley was sentenced to death for the same crime but the conviction was overturned by the Alabama Court of Criminal Appeals in 2009. Nick Lough of WAFF News reports that the conviction was overturned because the judge did not instruct the jury to ignore a previous felony conviction.  

New Cars Could Have Alcohol Detectors:  MSNBC reports that a proposed California law, "The Roads Safe Act," could require an alcohol detector in every car.  If approved, this bill would make $60 million available over the next five years to research and develop an alcohol detecting device that could measure blood alcohol content of someone when they touch the steering wheel or ignition button.  Opponents, such as the American Beverage Institute, say that alcohol detectors should only be used for drunk drivers, not everyone.

Illinois Man Pleads Guilty to Murder and Sexual Assault of 73-year-old Woman: Terry Hillig of stltoday.com gives an updated report on Perry L. Henderson, who yesterday pleaded guilty to one count of first degree murder and one count of aggravated criminal sexual assault against 73-year-old Sandra Wood in her home in Alton, Illinois. Henderson entered an "open" plea, which allows prosecutors to request any penalty available under Illinois law. Madison County Assistant State's Attorney Neil Schroeder said he will request the sentence of natural life in prison. In Illinois, for first-degree murder convictions, parole is not possible until the entirety of the sentence is served. This plea came the day after the Illinois Governor signed legislation to abolish the state's death penalty. Wood's son, Rich Edelman, said he is glad Henderson pleaded guilty but added, "I'm sorry Gov. Quinn signed the bill yesterday." Henderson is a registered sex offender who has been sent to prison six times.     
 

The title of this post is from the headline of this press release from the Quinnipiac Poll.  Here is an excerpt from the press release (emphasis added):

Connecticut voters support the death penalty 67 - 28 percent, inching up to a new high, and say 48 - 43 percent that the penalty for first degree* murder should be the death penalty rather than life in prison with no chance of parole, also a new high, according to a Quinnipiac University poll released today.

Support for the death penalty, 65 - 23 percent in an October 13, 2010, survey by the independent Quinnipiac (KWIN-uh-pe-ack) University, has inched up in every survey since the July 23, 2007, Cheshire murders. Support for the death penalty was 59 - 31 percent January 12, 2005, before the murders. In that same 2005 Quinnipiac University poll, Connecticut voters preferred life in prison without parole over the death penalty 49 - 37 percent.

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Offered three choices, 10 percent favor the death penalty for all people convicted of murder; 16 percent say no one should be executed and 73 percent say the death penalty depends on the circumstances of each case.

Illinois Repeal of Capital Punishment:  Following up on yesterday's post, Illinois Gov. Pat Quinn signed legislation yesterday putting an end to capital punishment in the state, making it the third state to abolish the punishment since 2007.  Quinn commuted the sentences of the state's remaining death row inmates to life in prison without parole.  The law becomes effective July 1, 2011.  State Senator William Haine, one of several Democrats to oppose repeal, said Quinn should have pushed for a statewide debate and a referendum on whether to keep capital punishment.  "This removes a remedy of the people of Illinois for great and evil acts of a unique kind: wanton cruelty, terrorism, rape and murder, the butchery of small children, mass murder," said Haine. "It removes a remedy for the community to seek the penalty of death in which someone forfeits one's life for these great wrongs committed to innocent people."  Matt Smith of CNN has this story.

Federal Prosecutors to use "Silent Witness" Procedure in Leak Trial:  Josh Gerstein of Politico reports on a courtroom tactic federal prosecutors are seeking to use to keep secret evidence from the public in the trial of a former senior National Security official, Thomas Drake, who's accused of illegally keeping classified documents at his home, lying to FBI agents investigating the case, and destroying evidence.  The "silent witness" procedure, allows courtroom to be kept open but sensitive evidence is referred to in a code only the judge, lawyers, defendant, and jury can understand.  "The evidence is presented in a public courtroom, but none of the participants are able to talk about what they're reading out loud or show the evidence, yet it's taking place in a so-called open court proceeding," said Jay Ward Brown, a media lawyer in Washington.  The last time the procedure was permitted at trial was in 2005 in the case of an Al Qaeda operative accused of plotting to kill President George W. Bush.  In this case the Judge Richard has yet to rule on allowing it.

Bill Proposed in Connecticut to Collect DNA From Felony Arrestees:  Debra Bogstie of NBC Connecticut reports Jayann Sepich, the mother of a murdered New Mexico woman, is urging Connecticut state lawmakers to pass a bill requiring DNA to be collected from suspects arrested for serious felonies.  As of now, Connecticut requires DNA samples to be taken only from convicted felons.  Sepich's daughter Katie was 22 when she was beaten, raped, and strangled in New Mexico.  The case went unsolved for three-and-a-half years until the suspect was convicted of another crime and was forced to submit a DNA sample that ended up matching Katie's case.  Sepich says that if the sample had been collected upon arrest, the case would have been solved three months after her daughter's death and would have saved police about $200,000 in investigatory costs.  If the bill is passed, Connecticut would be the 25th state to collect DNA samples after serious felony arrests. 

Rhode Island Town Fights the Early Release of Child Killer: Abby Goodnough and Katie Zezima of The New York Times report on the possible early release of Michael Woodmansee, who was convicted of killing a 5-year-old Rhode Island boy in 1975. Woodmansee lured the boy into his home and stabbed him to death. The boy's bones were later discovered in Woodmansee's house. Woodmansee was also charged with the attempted murder of a 14-year-old paperboy. South Kingstown police chief Vincent Vespia, who has read Woodmansee's journal detailing his crimes, says that the shortening of his sentence is "mind-boggling." See prior post here. John Foreman, Jason's father, has threatened to kill Woodmansee if he is released. Locals have planned a rally at the Rhode Island Statehouse in protest to the "earned-time law."

Ohio Carries Out Nation's First Pentobarbital-Only Execution: Jim Provance of The Toledo Blade reports Johnny Roy Baston was pronounced dead at 10:30am this morning, becoming the first inmate in the U.S. to be executed solely by a dose of pentobarbital, a powerful anesthetic. See Kent's post here. Baston was convicted of murdering Chong-Hoon Mah, a former South Korean journalist who emigrated to the U.S. and owned a local shop in downtown Toledo. For 17 years Baston admitted only to the robbery of Mr. Mah and maintained that another man had killed him. But on Friday, the Ohio Department of Rehabilitation and Correction said that Baston had confessed to the slaying after his legal team and family arranged for him to have a polygraph test. Governor John Kasich denied Baston's petition for clemency, after the Ohio Parole Board unanimously recommended against it.

The "three-drug protocol" that has been the primary method of execution in the United States since the early 90s has had two main problems.  First, there was litigation over the possibility that the inmate might not be sufficiently sedated if the first drug, sodium thiopental, was not properly administered before the second and third drugs were used.  Second, there was a supply problem when the lone U.S. manufacture of thiopental first temporarily stopped production and then proposed to move production to Italy, which promptly saw an opportunity to meddle once again in an issue that is none of its business.

The first problem can be corrected by getting rid of the second and third drugs altogether and relying on the single massive dose of sedative to do the job.  The second can be corrected by switching to a different sedative.  There is nothing magic about thiopental.

Ohio and Washington have taken the first step, and Oklahoma has taken the second.  Today, Ohio became the first state to take both.  Johnnie Baston was executed for the murder of Chong Mah.  Rob Stein has this story in the WaPo.

My proposal to get rid of lethal injection altogether is here.

On January 24, the US Supreme Court reversed the Ninth Circuit on the way it had been interfering in California parole decisions, and it did so in unusually strong language.  See prior posts here and here.  Today we were tipped to an unpublished memorandum disposition on Feb. 8 grudgingly implementing that decision, Kutylo v. Vaughn, No. 07-55829.  The main opinion simply affirms on the basis of Swarthout v. Cooke, the Supreme Court decision.  Then the notorious Judge Reinhardt chimes in with this:

Because the Supreme Court has held that whether there is "some evidence" to support a denial of parole, a right that California law affords inmates, is "no part of the Ninth Circuit's business," Swarthout v. Cooke, No. 10-333, Slip Op. at 6 (Jan. 24, 2011), and for that reason only, I reluctantly concur.

That rule -- that alleged errors of state law in state criminal cases are to be dealt with by the state courts and that federal habeas for state prisoners addresses only questions of federal law -- was not new this January.  It has been an integral part of the law since Congress first authorized federal habeas for state prisoners, and it is codified at 28 U.S.C. §2254(a). 

Judge Reinhardt apparently has his nose out of joint because the Supreme Court told him to obey an elementary rule of law that he has been flouting for years.  And this is not the first time the high court has done so.  "We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'"  Swarthout, at 4 (quoting Estelle v. McGuire, 502 U. S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U. S. 764, 780 (1990))).

How many times do they have to explain this before he gets it?

Suspected Cole Bomber to Face Military Tribunal:  Richard A. Serrano and David G. Savage of the LA Times report Abd al Rahim al Nashiri, the suspected mastermind of 2000 bombing of the Cole destroyer, is expected to the the first Gitmo detainee to face a military tribunal during Obama's presidency.  Al Nashiri will be tried under the 2009 revised rules for military tribunals, which tightened the standards for the admissibility of hearsay statements and prohibits military prosecutors from admitting "statements obtained by torture, or cruel, inhuman or degrading statements."  Pentagon officials believe al Nashiri's trial could begin by this summer.

Florida Imposes Waiting Period for Felon Voting:  Florida Governor Rick Scott and other state officials voted unanimously today to impose a waiting period for convicted felons to regain their right to vote.  The previous rule enacted by then-Governor Charlie Crist in 2007 restored the right to vote almost automatically upon a felon's release from custody.  Under the rules passed today, violent felons must wait seven years before applying for their civil rights, while nonviolent felons must wait five.  Peter Wallsten of the Washington Post has this story.

Blagojevich: The Economy's Bad, So Let's Cancel the Retrial:  Rod Blagojevich has asked a federal judge to cancel his retrial and immediately sentence him for his previous conviction, reports the Chicago Sun-Times.  Last summer, Blogojevich was convicted of one out of 24 counts against him, with the jury deadlocking on the rest.  The former governor's defense team claims "A second prosecution of this case is an irresponsible use of taxpayer funds in light of the current economic crisis and Blagojevich's imminent sentencing on the conviction from the first trial."  His attorneys also claim they haven't been paid for their work on his case.  

Burglar Locked in House Calls Police for Help:   After breaking into a house in Portland, Oregon, Timothy James Chapek 24, locked himself in the bathroom and called 911 because he feared the homeowner might hurt him.  When discovered by an occupant of the home, he assured her he had already notified the police.  The Portland Tribune has this story.  Click here to listen to the intruder's 911 call.

Two California Death Row Inmates Die in One Week:  The Associated Press reports California death row inmate Richard Ray Parson, 67, died last week from natural causes while awaiting execution.  Parson was sentenced to death for the 1994 murder of Theresa Schmiedt, the mother of an inmate Parson met in prison.  Parson beat her to death with a claw hammer and stole her purse and bank cards.  The Associated Press also reports a second California death row inmate, James Van Pelt, 54, died over the weekend of natural causes while awaiting execution for the 1985 torture and murder of Frank Aguilar, whom Van Pelt mistakenly thought had killed one of his friends.  54 inmates have died on California's death row since the state reinstated the death penalty in 1978.  13 have been executed.

Convicted Murderer Charged with Cold Case Slayings:  Meghan Barr of the Associated Press reports that convicted murderer Joseph Harwell, 50, of Ohio was charged today with two additional cold case murders.  A DNA hit linked Harwell, currently serving time for a 1997 murder, to the body of Mary Thomas, who was discovered raped and beaten to death in an abandoned building in 1989.  DNA also linked Harwell to the rape and murder of Tondilear Harge, found in an empty lot in 1996.  Cuyahoga County Prosecutor Bill Mason states this is the second serial murderer being investigated in Cleveland's east side, after the bodies of 11 slain women were found in the home of Anthony Sowell in 2009.   

Investigators to Search for More Victims of East Coast Rapist:  John Christoffersen and Matthew Barakat of the Associated Press report  that 39-year-old Aaron Thomas, the suspected "East Coast Rapist," made his first court appearance in a Connecticut courtroom on Monday on charges of raping a woman in front of her baby in 2007.  Investigators say DNA from a discarded cigarette butt links Thomas to rapes in at least four states along the east coast, and possibly additional unreported attacks.  Prosecutor David Strollo also alleges Thomas asked police "Why haven't you picked me up sooner? and "What took you so long to get me?"  Investigators claim Thomas could have been caught years ago if Virginia permitted "familial DNA" testing, used to identify a suspect from a family member's DNA sample, because Thomas had a family member with a sample in a police database.  Familial DNA testing is barred in most states, though Virginia is now moving closer to allowing it.

Jurors Speak About Life Sentence for Cop Killer:  Jeremy Kohler of STL Today reports on two jurors who claim the life or death decision for convicted murderer Todd Shepard was roughly split early on in deliberations.  Shepard was convicted of shooting to death Missouri police Sergeant Michael King.  On the witness stand, Shepard told jurors he had no remorse for the killing and that he and some friends had talked for years about killing an officer to spark an anti-government revolution.  The jurors report that on Friday, they went home with a 10-2 vote in favor of a life term.  On Saturday, the two voters for a death sentence returned to court to vote for a life sentence, with one of the voters allegedly in tears as she switched.  In Missouri, if the jury cannot reach a unanimous sentencing verdict, the decision goes to the judge. 

Ohio to Execute with Single Drug:  Joanne Viviano of the Associated Press reports  that Ohio Governor John Kasich denied clemency on Friday for death row inmate Johnnie Baston, 37, who is scheduled to die this Thursday for the killing of a South Korean immigrant.  If carried out according to plan, Baston will be the first inmate executed in the U.S. with a single dose of the surgical sedative pentobarbital. 

Bill Introduced to Secure Death Penalty for Cop Killers:  Ashley Tarr of the Bedford-Katonah Patch reports that dozens of local law enforcement officers showed their support on Friday for a bill introduced by New York Senator Greg Ball that would reinstate the death penalty for individuals convicted of killing on-duty police, peace, or corrections officers.  A 2004 ruling from the New York Court of Appeals currently prevents prosecutors from seeking capital punishment in these cases.  Since that ruling, eight police officers have been murdered in the state.  Senator Ball states, "If it saves one life as an act of deterrence, and there's no doubt that it will as it has in other states, we will have done our job, not only as a legislature but as a community."

Supreme Court Rules on Inmate Access to DNA Testing:  Michael Graczyx of the Associated Press reports on today's 6-3 Supreme Court opinion allowing Texas death row inmate Hank Skinner to seek DNA testing via a federal civil rights complaint.  Skinner was convicted of killing his girlfriend and her two sons on New Years eve in 1993.  Police found Skinner hiding in a closet a few blocks away from the murder scene, splattered with blood of at least two victims and with a trail of blood leading from the bodies to the closet.  Skinner and his lawyers nevertheless claimed that untested evidence, including fingernail clippings from his girlfriend and two knives found in the house, could exonerate him.  Importantly, the court's ruling today does not hold that Skinner and other inmates have an automatic right to DNA testing, but only that such claims may be filed under the federal civil rights statute.

Capital Punishment in Connecticut:  Bill Kiner has this piece on Patch.com outlining the competing arguments emerging in the Connecticut Legislature over the attempt to repeal capital punishment in the state.  The issue is proving especially controversial in Connecticut right now in light of the upcoming trial against the second alleged perpetrator of the Petit family murders.     

Here is an excerpt from Evan Perez's report in the WSJ, noted in Bill's post:

The White House laid out its legal strategy Monday to indefinitely detain Guantanamo Bay prisoners who can't be tried but are too dangerous to be freed.

President Barack Obama issued an executive order to conduct periodic reviews of the cases of nearly 50 detainees who will be held under "the law of war" at the base in Cuba.

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The news came in tandem with an administration announcement of plans to conduct new military tribunals at Guantanamo. Defense Secretary Robert Gates rescinded a 2009 order that had frozen the filing of new charges against detainees imprisoned at the U.S. Naval base there.

Among the likely new trials expected is that of Abd al-Rahim al-Nashiri, the accused plotter of the 2000 bombing of the USS Cole in Yemen, U.S. officials said.

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In Monday's announcements, the administration remained silent on the most prominent prisoners at Guantanamo, those accused of plotting the Sept. 11, 2001, terrorist attacks.

In November 2009, Attorney General Eric Holder announced civilian criminal trials in New York City for Khalid Sheikh Mohammed and other alleged 9/11 plotters.

So, we have a step in the right direction, but KSM needs to be brought to trial.  The trial should be by military commission, but if it is to be a civilian trial, Congress must first repeal the single-juror-veto rule for the federal death penalty.  A life sentence imposed by a single juror over the objection of the other 11 was bad enough in Moussaoui's case, but it would be intolerable for KSM.

Anything less than death for KSM is failure, and failure, Mr. Holder assures us, is not an option.

This last week I was invited to participate in a debate hosted by the University of Hawaii Law School chapter of the Federalist Society.  The topic was whether terror suspects should be given Miranda warnings.  I had the privilege of squaring off with an exceptional opponent, Lt. Colonel Dan Mori, a JAG Corps attorney who has seen service in both Iraq and Afghanistan, and who has represented a Gitmo detainee.

Unlike my drug legalization debate with Professor Doug Berman at Ohio State, the Hawaii event was not videotaped.  For those who might be interested, I set forth below my opening statement, explaining why Miranda is a regimen for a different, less deadly age.

Death Penalty Upheld for Convicted Murderer on Third Try:  Lawrence Buser of The Commercial Appeal (TN) reports the Tennessee Supreme Court yesterday upheld the death sentence of Richard Odom, who was convicted of the 1991 rape and stabbing murder of 77-year-old Mina Ethyl Johnson.  Odom has been sentenced to death by three different juries, but the case has always been overturned on appeal.  In 1992, the state's high court overturned his death sentence after finding the murder did not meet the legal definition of heinous, atrocious and cruel.  In 2004, after another jury verdict, the same court overturned his second death sentence after finding that prosecutors should not have been allowed to give the jury graphic and violent details of a prior murder by Odom.  In 2007, Odom was sentenced to death for the third time, a sentence that was upheld yesterday.

Nevada Supreme Court Rejects Pleas from Two Murderers:  Cy Ryan of the Las Vegas Sun reports the Nevada Supreme Court yesterday affirmed the first-degree murder conviction of Robert Lamb, sentenced to two consecutive life terms without parole for shooting to death his younger sister in 2004.  Prosecutors alleged Lamb shot Susan Bivans eight times in a school parking lot, angry because he had been left out of his father's will.  The Nevada Supreme Court yesterday also denied the petition of death row inmate Robert Ybarra Jr., who claimed he was mentally ill and could not be executed.  Ybarra was sentenced to death in 1981 for the murder of his girlfriend Nancy Griffin, 16, whom he raped and set on fire in the Nevada desert.  Griffin was discovered wandering naked in the desert and was able to identify Ybarra as the perpetrator before she died a day later.

Bill Introduced to Abolish Death Penalty in Florida:  Jennifer Hancock of the Examiner reports Florida House Representative Michelle Rehwinkel introduced a bill yesterday to eliminate the death penalty in Florida, claiming it will save the state $50 million per year in taxpayers' money.  The bill is not expected to pass.  Harping on the alleged annual savings, Hancock writes the people of Florida "should be actively considering whether they would rather kill people or have teachers." 

Governor Quinn Still Deciding on Bill to Abolish Death Penalty:  Deanna Bellandi of the Associated Press reports on Illinois Governor Pat Quinn's upcoming decision to abolish the death penalty in the state.  A moratorium on capital punishment in Illinois has been in effect for 11 years, though the state currently has 15 inmates on its death row.   Governor Quinn claims his decision will rest on his conscience, but the article notes various other factors that may weigh on his decision, including alienation of the African American community or the support of those legislators who voted for the abolition bill.  Steve Huntley has this column in the Chicago Sun-Times, opining that any alleged flaws with the capital punishment system do not warrant protecting those convicted of brutal murders to receive the "fate [they] earned." 

When Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, the primary feature was supposed to be a reform that promised states a rapid and efficient trip through federal review if only they provided adequate counsel for state collateral review, which most states did at the time anyway.  That reform was spiked by hostile federal courts who did not want to be subject to the time limits and gave the statute a cramped construction to avoid implementing it.

In the Patriot Act reauthorization bill, Congress took the decision of whether a state qualified away from the federal habeas courts, with their conflict of interest, and gave it to the US Attorney General with de novo review by the US Court of Appeals for the District of Columbia Circuit, the one circuit that does not do state-prisoner habeas.

The act also provided for the Attorney General to promulgate regulations to implement the mechanics for certifying whether a state qualified, which was supposed to be a quick process.  Inexplicably, the Bush Administration Justice Department dragged its feet and did not publish final regulations until the end of the Administration.

The California Habeas Corpus Resource Center then commenced litigation to block the regulations, something it is not authorized to do under the statute creating it, and filed in a federal district court that would be subject to the time limits, a court Congress intended to cut out of this process due to its conflict of interest.  The Obama Administration Department of Justice failed to fight this blatant violation of the intent of Congress.

On top of all that, the Obama DoJ rescinded the already long overdue regulations and announced an intent to replace them.  Many supporters of justice, myself included, feared the worst.

In-prison drug abuse programs are something that many people think we need more of.  However, given prisoners' propensity to file lawsuits over every microscopic detail of life within prison, does having a program include not only the cost of the program but also the cost of litigating every prisoner gripe about it?  Maybe not, even in the Ninth Circuit.  Today, that court held in Reeb v. Thomas,

This case requires us to decide whether a district court has subject matter jurisdiction to review the Bureau of Prisons' ("BOP") individualized residential drug abuse program ("RDAP") determinations, a question of first impression in this Circuit....  Because we hold that 18 U.S.C. § 3625 precludes judicial review under the Administrative Procedure Act ("APA") of the BOP's individualized RDAP determinations made pursuant to 18 U.S.C. § 3621, we vacate and remand to the district court.

Reeb's specific gripe, BTW, was, "After exhibiting disruptive behavior in group counseling sessions on several occasions, Reeb was expelled from RDAP on April 2, 2008."

This is only a panel decision, though, so the en banc Ninth Circuit can still impose a litigation burden on the program.

1991 'Batgirl' Murderer Due a Parole Hearing:  Michelle Cummiskey (dubbed "Batgirl"), sentenced to 25 years to life in prison plus one additional year for extreme violence for the 1991 slaying of Sacramento man Philip Inhofer, is due for a parole hearing this month.  Cummiskey, a former prostitute at the Mustang Ranch brothel outside Reno, stabbed Inhofer 32 times, bludgeoned him with a blunt object, stuffed his body into the closet of his mobile home, and stole his Mercedes.  Investigators gave Cumminskey the nickname "Batgirl" because of a tattoo of bats on her arm and a tattoo of a vampire bite with blood droplets on her neck.  Cummiskey's parole hearing will be held on March 10 at the Valley State Prison for Women in Chowchilla, California.  Bill Enfield of the Sacramento Bee has this story.

Police Body Cameras Prove to be Effective in Minnesota:  Caroline Lowe of CBS Minnesota has this story on the Burnsville Police Department in Minnesota,  the first law enforcement agency in the state to utilize body cameras.  The officers like the video tool, typically worn on their hat or headband, claiming it helps capture a better image of what is going on when they are out on the streets.  Officers also say the technology has helped clear allegations of police misconduct within minutes, instead of several weeks.  According to Officer Shaun Anselment, "We are able to get the true emotions at the scene.  We are able to see what officers did, what suspects did."  Since the department started using body cameras, they no longer use the more expensive dash cams. Several other Minnesota police agencies, including the Minnesota State Patrol, and the Burnsville Fire Department are looking to get their crews equipped with the cameras. 

Parole Denied for Sirhan Sirhan:  In follow up of yesterday's post, Robert F. Kennedy's assassin was denied parole Wednesday.  The California panel's decision was based on Sirhan's failure to understand the "magnitude" of his crimes.  Commissioner Mike Prizmich of the California Board of Parole Hearings noted Sirhan failed to participate in self-help programs and demonstrated immature behavior.  The parole board was also disturbed by Sirhan's mischaracterization of the injuries of the five other people he shot 1968 as "flesh wounds," when in fact they were much more serious.  Wednesday marked Sirhan's 14th parole hearing.  He will be eligible for parole again in five years.  Michael Martinez of CNN has this story.

Judge Overrides Jury Recommendation and Sentences Murderer to Death:   An Alabama judge yesterday overruled a unanimous jury recommendation of life without parole, instead imposing a sentence of death for convicted murderer Courtney Lockhart, reports Bob Johnson of the AP.  Lockhart was convicted last year of killing Auburn University freshman Lauren Burk, whom he abducted at gunpoint, forced to disrobe, and shot in the back as she tried to escape his car.  While imposing the sentence, Judge Walker noted that Lockhart had been suspected in five robberies in Alabama around the time of the murder, but that jurors had not heard this evidence during trial.

Robert F. Kennedy's Assassin Faces Parole Board:  CNN reporter Michael Martinez reports that Sirhan Sirhan, the convicted assassin of Robert F. Kennedy, will appear before a parole board in the Pleasant Valley State Prison in Coalinga, California today for the first time in nine years.  Sirhan will be supported by two psychologists and one of the surviving shooting victims in the 1968 assassination, William Weisel.  The chances of Sirhan being released are slim, according to LA County Deputy District Attorney David Dahle.  Sirhan, 66, is serving a life sentence and roughly ten percent of California's life-sentenced convicts are granted parole.

Proposed Bill Would Make TSA Screening Agents Possible Sex Offenders:  With the public outrage towards enhanced airport security measures, a proposed bill sponsored by Rep. George Lambert, R-Litchfield has been introduced to the House Criminal Justice and Public Safety Committee in Concord, New Hampshire.  HB 628 would make the touching or viewing of a person's breasts or genitals by a government security agent a sexual assault.  The bill would also require Transportation Security Administration agents convicted of sexual assault to register as tier 3 sex offenders.  A petition has been presented to the committee along with 145 signatures supporting the bill.  The committee has yet to make an immediate recommendation on the bill.  Garry Rayno of the New Hampshire Union Leader has this story.  The story does not discuss the obvious federalism issues of a state legislature trying to regulate the conduct of federal officers.

Prosecutor May Seek Death Penalty Quickly in Prison Killing:  Seattle Times staff writer Jennifer Sullivan reports on Snohomish County Prosecutor Mark Roe's decision to act quickly in deciding whether to seek the death penalty against prison inmate Byron Scherf, who is accused of killing corrections officer Jayme Biendi in January.  In the State of Washington, once a defendant is charged with aggravated first-degree murder in superior court, prosecutors have 30 days from the arraignment to decide whether to seek the death penalty.  Roe has hinted that he may not wait the entire 30 days.  "This is a somewhat unique situation in that the suspect has been a prison inmate for a good part of his adult life.  Many records already exist," Roe said.  More on Byron Scherf's criminal record can be found here.

The US Supreme Court today decided Pepper v. United States and Snyder v. Phelps.

The particular issue in Pepper is whether, when a case comes back to the trial court after a successful appeal, the judge can consider in sentencing evidence of the defendant's rehabilitation while the case was on appeal.  The Court says yes, to no one's surprise.  The more interesting aspect of the case is in the discussions about guideline sentencing versus discretionary sentencing more generally.  From Justice Alito's separate opinion:

Some language in today's opinion reads like a paean to that old regime, and I fear that it may be interpreted as sanctioning a move back toward the system that prevailed prior to 1984. If that occurs, I suspect that the day will come when the irrationality of that system is once again seen, and perhaps then the entire Booker line of cases will be reexamined.

Congress really needs clean up the mess from Booker.

Snyder involves a common-law infliction of emotional distress suit against the repugnant Phelpsians and their bizarre practice of staging protests at military funerals.  The suit in this case was based on the content of speech and therefore violated the First Amendment.  However,

Maryland now has a law imposing restrictions on funeral picketing, ... as do 43 other States and the Federal Government... To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland's law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.

Kent and I wrote a number of times about the "compassionate release" of the Lockerbie bomber/mass murderer,  Abdelbaset Ali Mohmed al-Megrahi, by Scotish authorities.  Al-Megrahi had only a few weeks to live, so we were told.  As Scottish Justice Secretary Kenny MacAskill huffed in the characteristically superior style of European Higher Wisdom, "Our justice system demands that judgment be imposed but compassion be available. Our beliefs dictate that justice be served but mercy be shown."

This sounded like a bunch of baloney at the time, and I said so.

I must now confess error.  It was not so much baloney as a pack of outright lies, compounded, we now find out, by international blackmail and big-time payoffs.  The whole astoundingly corrupt story is covered in this Powerline entry.  Its first two paragraphs read:

The most interesting news story of the morning comes from Libya, where it is claimed that Abdelbaset Ali Mohmed al-Megrahi, the Lockerbie bomber, secured his release by blackmailing Muammar Qadaffi, who in turn bribed England's Labour government to let him go:

Abdelbaset Ali Mohmed al-Megrahi allegedly threatened "revenge" on Col Gaddafi unless he was returned home to his family, prompting the dictator to spend £50,000-a-month on lobbying and legal fees in a campaign to secure the terrorist's release.

Most of the criminal defense bar's nonstop yammering about "compassion" is nowhere near as reprehensible as the Lockerbie release story; it's merely the last gasp of the guilty trying a shopworn courtroom stunt.  Still, the Lockerbie tale is worth remembering the next time defense counsel starts in on you for being short on "compassion."

P.S.   Al-Megrahi, the man about to kick the bucket when released, now lives as a celebrity in Libya, a year and a half after being freed.

 

Convicted Killer Denied Parole:   A story by Paul Srubas of the Green Bay Press Gazette reports that murderer Rey Moore, 64, has been denied parole for his part in the 1992 killing of a co-worker.  Moore was one five employees at the James River Paper Mill in Green Bay, convicted of participating in the murder of mill worker Tom Monfils by tying a weight around his neck and throwing him in pulp vat.  Monfils was killed after the group learned that he had told police that one of them planed to steal an extension cord from the Mill.  Like Moore, the other accomplices received life sentences.

NY Lifer Gets Another Sentence for Cold Case Killing:  Joe Arena of WIVB in Buffalo reports that murderer Frederick Wooten, 53, has been convicted and sentenced to 5 to 15 years for the 1993 strangling murder of Karyn Snead, a co-worker at Buffalo General Hospital.  The cold case was solved while Wooten was serving a life term for the 1994 rape and murder of 30-year-old Denise Broughton.  

28-year-old Could Face Death Penalty in Teen Murder:  Santa Monica Times writer April Charlton reports that prosecutors plan to seek the death penalty if 28-year-old Ty Michael Hill is convicted of the 2010 killing 15-year-old Dystiny Myers.  Hill has been charged with first degree murder, kidnapping, torture, and aiding and abetting in the murder of Myers.  Four others are also being charged in connection with this case.  Allegedly, Myers died after being drugged, beaten, duct-tapped, and had a glove shoved down her throat.  The victim's charred body was discovered last September in a remote area of San Luis Obispo County.

Mother Sentenced to Death for Murder of her Daughter:  Angela Darlene McAnulty on Thursday became the first Oregon woman sentenced to death since state voters restored capital punishment in 1984.  Karen McCowen of The Register Guard reports  that McAnulty, 42, was convicted of the 2009 killing of her 15-year-old daughter Jeanette.  At her trial jurors heard evidence indicating that McAnulty deprived Jeanette of food and water while beating her regularly which eventually led to her death.  Jeanette's father Richard McAnulty has also been charged with aggravated murder and his trial is set for May.

SCOTUS smackdown of Ninth Circuit -- again:  SF Chron Token Conservative Debra Saunders has this post, with the foregoing title, on the Martin decision.
 

I've blogged before about opaque phrases like "smart on crime"  --  phrases that have no very obvious definition, but that inevitably turn out to mean a bunch of proposals to empty the prisons or not put anyone in them to start with. 

A first cousin of "smart on crime" is "smart policing."  I have been largely unable to tell what that means, but being a suspicious man, I've had an inkling it means something bad.  Today I think I got a clue, courtesy of this story.  It seems that a police captain is suing the deputy chief for directing him to order his officers to attend a not-entirely-conventional event at the local mosque:

 A Tulsa police captain has filed a federal lawsuit claiming his civil rights were violated after he was reassigned and placed under investigation for refusing to order officers to attend a voluntary social event at a mosque.

 *************************

The events leading to the lawsuit started last week when members of the Tulsa Police Department were invited to attend a "Law Enforcement Appreciation Day" at the Islamic Center of Tulsa.  It was advertised as a social gathering featuring food, an opportunity to watch a Muslim prayer service, and an invitation to join lectures on beliefs, human rights and women.

According to [Fields' attorney], no one responded to the invitations and no one volunteered. The following day, Fields received a directive ordering him to find officers to attend.

Now your guess is as good as mine as to what this is actually about.  It's no doubt a good thing for the police to know their community.  But you have to wonder what's going on when they're ordered to watch the prayer service of a particular religion, and to participate in lectues about whatever Islamic religious leaders think of "human rights" and "women."  What would the reaction be if the police were ordered to do the exact same thing, except in a speaking-in-tongues, evangelical Christian church?

When I was growing up, the cops were supposed to catch crooks, and that was about it.  On the other hand, when I was growing up, it was a long, long time ago.  No one had heard of sensitivity training, political correctness, or "smart policing."

 

Answer:  When politics trumps everything else.

Today we hear that the Department of Justice will no longer defend the constitutionality of the Defense of Marriage Act.  This blog is, of course, not about gay marriage, but there is a much, much larger issue at stake.  

The Department has a long tradition of defending an Act of Congress when any reasonable argument can be made in its behalf.  This tradition is essential lest one administration be allowed simply to nullify duly enacted laws it views as politically or ideologically unpalatable.  Such a practice would grievously undermine stability and predictability, which are at the heart of the rule of law.  It would also create a gross expansion of executive power the Founders refused to indulge, i.e., a retroactive veto.  The President is authorized under the Constitution to veto legislation that arrives on his desk.  There is no provision authorizing him to veto legislation a previous Congress passed and a previous President signed.  But that is, for any practical purpose, what President Obama did today.

If the electorate now favors gay marriage, so be it; as I say, that is not the subject of this blog.  Let Congress repeal the DOMA, and President Obama can sign the repealer.  But make no mistake about it.  What we have today is a politics-first attack on the rule of law itself, and an attack undertaken simply to pander to Obama's left wing base.  Bill Clinton's midnight pardons look good by comparison.

Incidentally, we have been down this treacherous road before.  I traveled it myself.

Police Officer Fatally Shot in St. Petersburg:  Tamara Lush of the Associated Press reports that Officer David Crawford, 46, was fatally shot Monday night after investigating a report of a suspicious person.  Police are still searching for the suspect while nearby schools and streets have been closed.  Crawford is the third officer in the last month to be killed in St. Petersburg, Florida.

Appeals Court Blocks Parole for 73-year-old:  Bob Egelko of the San Francisco Chronicle has this story about a First District Court of Appeal ruling which has denied parole for Jimmie Sole, 73.  In 2008, the State Parole board granted parole to Sole but Governor Arnold Schwarzenegger overruled the board in 2009.  Sole pleaded guilty to second degree murder in 1980 and was sentenced to 15 years to life for murdering his ex-wife Joyce Williams.  Sole had been convicted of assaulting Williams prior to her death and his extensive criminal record has been linked to alcohol abuse.

Killer Sentenced to Death in Beheading:  AP writer Brent Kallestad reports that a jury has recommended the death penalty for Gary Michael Hilton, 64, for the 2007 killing of Cherly Dunlap, 46.  Hilton is already serving a life sentence for pleading guilty to killing Meredith Emerson, 24, about a month after Dunlap's disappearance.  Both victims were beheaded and their remains were found in forests in Georgia where Hilton camped.  Hilton is also a suspect in three other murders, two in North Carolina and one in Florida. 

Prosecutors May Seek Death Penalty in Arizona Case:  A story by Nogales International writer Jonathan Clark reports that Juan Antonia Villa, 38, is being charged with the first degree murder of his wife Christina Carrizoza Villa, 35, after fatally stabbing her in their Nogales apartment.  Villa allegedly confessed to killing Carrizoza and was carrying a 3-inch blade when he was arrested.  Superior Court Judge Kimberly Corsaro will determine if there is probable cause for Villa to be tried for first degree murder at the preliminary hearing on March 4th.  While the determination to pursue the death penalty against Villa will largely be a law-and-order issue, Silva said, prosecutors also plan to reach out to Carrizoza's family members for their feelings.

Leon Neyfakh has this long article in the Boston Globe on predicting recidivism and the use of such predictions in sentencing and parole decisions.

Part of the controversy over the use of risk assessment tools goes to the dual purpose of punishment.  We punish for both utilitarian and retributive purposes.  The practical reasons to punish are to (1) deter other potential wrongdoers with the example, (2) incapacitate the individual wrongdoer, at least for a time, and (3) hopefully rehabilitate the individual.  Risk assessment informs us on the latter two points.

The retributive purpose is to punish evildoers because they deserve it, period.

The two philosophies of punishment are in harmony when it comes to punishing repeaters more severely than first-timers.  Recidivism is the single strongest predictor of repeating again, and the repeaters deserve more punishment as a matter of simple justice.  For other factors, though, things get more complicated.  Is it moral to punish someone more severely due to a "risk factor" beyond his control?

Alan Johnson has this story in the Columbus Dispatch:

When Frank Spisak was going on "hunting parties" targeting blacks in Cleveland, Ronald Reagan was president, a stamp cost 20 cents and the Cincinnati Bengals played in the Super Bowl XVI.

More than 10,000 days later, Spisak, 59, a triple murderer, was executed today at the Southern Ohio Correctional Facility near Lucasville. The time of death was 10:34 a.m.

That is a good way of illustrating how preposterous the delay is in a case with no question of guilt.  Whether Spisak's mental issues were sufficient to warrant a penalty less than death is something reasonable people can disagree on, but it does not warrant decades of litigation.  A trial, an appeal to review the trial, and an application for executive clemency are all the process that is due.  All other reviews should be limited to guilt-related issues.

Johnson also adds a nice touch on Spisak's last words.

Before the lethal chemical began flowing, Spisak recited -- in German -- the first seven verses from the 21st chapter of from the Book of Revelation. He had trouble reading the passage, which had to be moved closer to him.

He apparently did not read the eighth verse, which says: "But the cowardly, the unbelieving, the vile, the murderers, the sexually immoral, those who practice magic arts, the idolaters and all liars -- they will be consigned to the fiery lake of burning sulfur. This is the second death."

Doug Berman has this post on the case.  He also notes that the executions so far this year are dispersed around the country, not concentrated in one or two states.  The states are Oklahoma (2), Alabama, Georgia, Missouri, Texas, and Ohio.

That's right, 67.  Meghann M. Cuniff of the Spokesman-Review (WA) reports:

A Spokane man who avoided prison as a teenager for his role in a murder because a judge believed he could be rehabilitated marked his 67th arrest in the past five years over the weekend.

Nicholas Adam Limpert, now 25, pleaded not guilty Tuesday to a first-degree burglary charge. If convicted, it would be his 10th felony since 2007.

*                         *                         *

Limpert's criminal history began at age 15 with the November 2000 robbery and murder of a disabled janitor in northwest Spokane. The decision to allow him to be charged as a juvenile angered the victim's family, who said they doubted he could be rehabilitated.

Now news of a dizzying post-detention arrest record has the judge who sentenced him wondering the same thing.

"He probably should have been tried as an adult," said Neal Rielly, who retired last fall after 15 years as a Spokane County Superior Court judge. "If I ruled the other way, it was a mistake."

Oakland Officials Say Gang Injunction is Showing Results:  A report by Oakland City Attorney John Russo and Police Chief Anthony Batts notes that drug arrests in Oakland are down nearly 70 percent since a gang injunction was approved in June, as reported by Demian Bulwa and Matthai Kuruvila of the SF Chronicle.  The injunction specifically prohibits 15 named gang members from being on the streets after 10 p.m. and from being in contact with other alleged gang members in a 100 block area.  The report will be presented to a City Council committee next week.  The city hopes to secure another gang injunction in another neighborhood.

Jury Will Decide Almaleki's Fate:  My Fox Phoenix reports that closing arguments were heard yesterday in the case against Faleh Almaleki, who is on trial for the first degree murder of his daughter Noor and the attempted murder of her roommate Amal Khalaf.  Almaleki is accused of running them both down with his SUV in 2009.  Prosecutors have characterized the Iraqi man's actions as an "honor killing", because his daughter had become too westernized.  The defense claims it was an accident.  After the crash, Almaleki fled the country.  He was later apprehended in London and extradited to Phoenix.

Montana Senate Adopts DP Repeal:  Stephen Dockery of the Associated Press reports that on Monday, the Montana Senate endorsed a bill to repeal the death penalty in a party line 26-24 vote.  Democrats supporting the repeal argued that the risk of putting an innocent person to death is too high, it is applied in a racially disproportionate manner and the death penalty process it too expensive.  Opponents argued the death penalty removes dangerous criminals from prison and encourages defendants to plead guilty to avoid the possibility of a death sentence, which actually saves the cost of a trial and appeals.  The proposal faces one more vote in the Senate before it moves to the House, which is controlled by Republicans 68-32. 

Judge In Second Petit Murder Trial Stays:   The New Haven Register reports that Superior Court Judge Brian T. Fischer denied the defense motion to remove Judge Jon C. Blue from Joshua Komisarjevsky's trial for the 2007 home-invasion murders of Jennifer Hawke-Petit and her daughters, Michaela, 11, and Hayley, 17 and the attack on Dr. William Petit Jr.  The defense claimed that Judge Blue, who had presided over the conviction and sentencing of Komisarjevsky's accomplice Steven Hayes, could not impartially handle the trial of their client.  Judge Fischer denied the motion, stating that nothing he had heard in court "gives rise to a reasonable question regarding (Blue's) impartiality." 

"At Northern Border, Agents Fight Drug War on Ice":  Chris Hawley of the Associated Press reports on the drug war in the largely "forgotten border" between the U.S. and Canada.  A report by the U.S. Government Accountability Office states that the terrorist threat from Canada is higher than from Mexico, because only 32 miles of the nearly 4,000-mile border "reached an acceptable level of security" from Border Patrol during fiscal year 2010.  The DOJ also estimates that 20 percent of the high-potency marijuana produced in Canada is smuggled through a 10-mile stretch of the border located in a Mohawk reservation, an area whose thick forestry and small islands provide ideal hiding spots for drug runners.  Politics on the reservation make drug enforcement even more difficult, as federal agents encounter "a lot of intimidation techniques" and rarely enter the territory without a tribal escort.  Two large signs at an intersection on the reservation state:  "Yes, 'terrorists' come thru [the reservation].  They are N.Y.S.P. [state police], Border Patrol, ATF, FBI, etc., etc.!"  

It's no secret that both the state and federal governments have vastly overspent their means.  The main culprits are, for the states, Medicaid, followed closely by overly generous public employee pensions; and, for the feds, Social Security and Medicare.

The budget crunch has led to an increasing number of proposals to trim costs by releasing prison inmates.  It is no exaggeration to say that this has become the No. 1 theme on Doug Berman's Sentencing Law and Policy, as it was yesterday when the President announced his budget.

Doug quotes one report as saying:

President Obama's proposed federal budget for the year starting Oct. 1, issued today, calls for a 2 percent increase in the Justice Department's spending but a major cut in the Office of Justice Programs and Community Oriented Policing Services (COPS) office, both of which provide state and local anticrime aid.  Describing the reductions as "tough choices," the White House still seeks $600 million to hire "first responders," including police officers and sheriff's deputies.

The proposed budget includes a solid increase for the FBI but a reduction for the Drug Enforcement Administration. It would cut funding for juvenile justice and child safety programs.

Left unsaid in the report is that the President's budget proposes no reform whatever  --  not a dime  --  in the explosive entitlement spending that is, by any measure, the heart (and lungs and liver) of the budget crisis.  

Our overspending might indeed have come to the point that we will have to save short-term dollars by releasing prisoners.  But to allow those releases while intentionally doing nothing about the major spending problem is an abdication of leadership of astonishing proportions.

Levy Murderer Gets 60 Years:  Jessica Gresko of the Associated Press reports that the man convicted of first-degree murder in 2001 for the disappearance and death of Washington intern Chandra Levy, was sentenced today to 60 years in prison.  Levy's remains were found in Rock Creek Park, the same location where repeat felon Ingmar Guandique had attacked other female joggers. Prosecutors had asked for a life sentence arguing that Guandique showed no remorse and has had a history of violence. 

Defendant Could Face Death Penalty in Campus Stabbing:  Henry K. Lee of the San Francisco Chronicle reports that Laungastasi Ahio, 21, who has been charged with fatally stabbing Jared Afu, 19, and could face the death penalty after prosecutors added a special circumstance allegation of murder while lying in wait.  Prior to the murder, prosecutors allege Ahio and Afu had argued over a woman at the campus of Mills High School in Millbrae, CA.  If Ahio is found guilty, he will be eligible for the death penalty or life in prison without parole. 

State Court Reinstates Murder Conviction:  Adam Lynn of The News Tribune reports that the Washington State Supreme Court has reinstated the murder conviction of Kristina R. Grier, 50.  The unanimous decision overturned an appellate ruling ordering new trial based on her ineffective assistance of counsel claim.  Grier was convicted of second degree murder and sentenced to 18 years for shooting Gregory Owen, 29, during an argument in her home.   In a strange twist, the jury declined to find she was armed with a handgun when she shot Owen.  The lower court held that, by failing to request that the jury be allowed to consider convicting Grier on a lesser charge, the defense attorney was ineffective. The Supreme Court noted that the "all-or-nothing approach" taken by defense counsel was reasonable under the facts of the case. 

 

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," Justice Oliver Wendell Holmes famously wrote for the Supreme Court in Schenk v. United States, 249 U.S. 47, 52 (1919). It also does not protect urging draft resistance in wartime, which is the actual holding of the case.

How about yelling "bitch" in a theater?  How the issues change with the times.  David Hudson at the First Amendment Center has this post on an unpublished opinion of the Kansas Court of Appeals In the Matter of H.A.-G.  (Thanks to How Appealing for the tip.)  The profanity by itself probably wouldn't have done it, but "'H.A.-G's adjudication of disorderly conduct was based upon her disruptive conduct in the movie theatre and not based solely upon her speech,' the appeals court wrote."  Kansas does not make the full text of unpublished opinions available on its court web site.

BTW, does it really help to identify a juvenile by her initials when the initials are distinctive in a way that everyone who knows her will recognize them?  One more reason not to give kids hyphenated names.

The folks who want to repeat the sentencing mistakes of the 1960s are putting a lot of effort into the repackaging of old ideas.  Today the Constitution Project announced with great fanfare this report titled with the repackagers' favorite term, "Smart on Crime."  (Every con man tells you it would be smart to accept his deal, and you would be a fool to pass up the great opportunity.)

The bulk of the report is pro-thug.  The death penalty chapter proposes eviscerating AEDPA, the exact opposite of the change actually needed.  Astonishingly, the report asserts that "death sentences are disproportionately imposed on people of color."  In a debate with me on NPR on November 7, 2007, Constitution Project President Virginia Sloan said, "It's not the race of the defendant that is the major factor, and I don't think there are many studies that claim that."  Right.  The basis for the new, contrary assertion is our old friend, the Fallacy of the Irrelevant Denominator: "with African Americans comprising more than 40% of today's death-row inmates while constituting only 12% of the national population."  If you use the relevant denominator, murderers, there is no disproportion.

The first chapter is on overcriminalization and overfederalization, legitimate beefs that I have noted here before.  But they are fair-weather federalists.  They call for increased federal involvement in juvenile justice, an issue with little legitimate federal role.

The Constitution Project claims a "diverse coalition" for their soft-on-crime proposals.  Most of the coalition members listed on page vi are decidedly lefty, such as George Soros's Open Society Institute.  They also list Cato Institute, a libertarian organization allied with conservative free-marketers on economic issues but listing left on criminal law issues (even though they deny it).  Institute for Justice is similar.

Chapter 1 claims the Heritage Foundation as a contributor, and they do have a project on the overcriminalization and overfederalization issues, but Heritage is conspicuously missing from the coalition list on page vi.  We will try to clarify where Heritage stands on this.  I very much doubt they endorse the bulk of this report.