Results matching “first”

In California, Judge Fogel toured the new, not-yet-used facility.  Howard Mintz has this story in the San Jose Mercury-News.  Carol Williams has this story in the Los Angeles Times.  Scott Smith has this story in the Stockton Record.

The Ninth Circuit today rejected the attack on Arizona's lethal injection protocol in Dickens v. Brewer, No. 09-16539.  The panel was Judges Hug, Nelson, and McKeown, a relatively prisoner-friendly panel, even for the Ninth. 

First, the Ninth correctly finds that Chief Justice Roberts' plurality opinion in Baze is the controlling one under the Marks rule. Next,

Baze creates a safe harbor for lethal injection protocols that are substantially similar to Kentucky's protocol; the plurality states that such protocols do not create a substantial risk of serious harm. Id. at 61. Arizona's Protocol falls within this safe harbor--it incorporates even more safeguards against maladministration than Kentucky's protocol . . . .

That is also true in California.  So what's left to argue?  The prisoners, Dickens et al., argue about a risk that Arizona will not actually follow its protocol, citing incidents before the protocol's adoption.  The court is not convinced.

And, no, the availability of a one-drug protocol, even if superior, does not make the three-drug protocol unconstitutional.

Virginia Justice Hassell Dies:  Virginia Supreme Court Justice Leroy Hassell has died at the age of 55.  The Richmond Times-Dispatch has this story.  Attorney General Cuccinelli has this press release.

Cell Phone Recorded Man Killing Wife:  Ronald Earl Williams, 45, is on trial in Florida, charged with killing his wife.  In opening arguments yesterday, prosecutors said that Williams accidentally activated his cell phone and called his wife's cell phone.  The voicemail left on the wife's phone recorded Williams saying he was going to kill her, as well as her terrified screams.  Despite Williams' attorney's argument that the killing was not premeditated, prosecutors are seeking a first-degree murder conviction and the death penalty.  The AP has this story.

"Killing Machine" Gets 88 Years in Prison for Killing Two Cellmates:  Kurt Karcher, an Inmate already serving a life sentence for murder, was sentenced yesterday to 88 years to life for strangling two cellmates.  Jurors convicted Karcher of second-degree murder of Scott Manning at a state prison in Lancaster in 2006 and of voluntary manslaughter of Edgar Jimenez at the Twin Towers jail in downtown Los Angeles in 2007.  Sentencing Judge Stephen Marcus referred to Karcher as "essentially a killing machine."  The San Francisco Chronicle has this story.

"House Rejects Extensions of Patriot Act Provisions":  AP writer Jim Abrams reports on the failure of House Republicans to win enough votes to extend the use of three surveillance tools that are crucial to America's post-September 11 anti-terror law.  The GOP leadership brought the bill to the floor yesterday using a special expedited procedure which requires a 2/3 vote.  After 26 Republicans joined 122 Democrats in opposition, the tally was  277-148, seven votes short of passage. The three measures included court-approved roving wiretaps that permit surveillance on multiple phones, a library records provision that gives the FBI court-approved access to "any tangible thing" useful to a terrorist investigation, and the "lone-wolf" provision that permits secret intelligence surveillance of non-citizens not known to be affiliated with a specific terrorist organization.  House leaders must now bring the measure up under the regular procedure, which requires only a majority vote, and have it pass in the Senate before the three provisions expire on February 28.  The White House, said it "would strongly prefer" extending the measures to the end of 2013.  Jena Baker McNeill and Charles Stimson of the Heritage Foundation explain here why letting the provisions expire is a bad idea.

Here is a blog titled Law and Biosciences Daily Digest, by Nita Farahany at Vanderbilt.  The title threw me at first.  "Biosciences" sounds like the whole of life sciences, an immensely broad field.  Turns out the blog is about "neuroscience and behavioral genetics" and their use in law.  The daily digests are summaries of legal opinions.  One follows the jump.  There are also trial transcripts in this post, which could be very useful, particularly if you have notice that the expert in question is testifying for your opponent.

Thanks to Orin Kerr at VC for the pointer.

In 1992, the US Supreme Court rejected an attack on California's gas chamber on the procedural ground that the prisoner had withheld the challenge until the last minute even though the effects of cyanide gas had been well known the whole time.  Justices Stevens and Blackmun dissented, and among the reasons they gave was that all the experts agreed that another method was so much better -- lethal injection.  See Gomez v. US District Court, 503 U.S. 653, 656 & n. 7 (1992) (Stevens, J., dissenting).  California's first post-Furman execution went forward.

The message, loud and clear, was that the method-of-execution challenges could be stopped by adopting the method the prisoners' lawyers proposed.  And so it did, for over a decade.  Now we are back where we were.

I was against the change to lethal injection at the time.  There was something vaguely wrong about medicalizing a procedure that is supposed to be punishment.  The wrongness is no longer vague.

The problem with the gas chamber was not the method but the choice of gas.

US District Judge Jeremy Fogel will tour San Quentin's new and improved execution chamber tomorrow, long after post-Baze claims have been rejected and executions resumed in other states.  The press corps will be in tow, and two reporters on the tour have these pregame articles:  Scott Smith in the Stockton Record and Howard Mintz in the San Jose Mercury-News.

It's not news at this late date that minorities, and blacks in particular, commit a disproportionate number of crimes (which is why, as Kent has pointed out, they represent a disproportionate share of the prison population).

It is fashionable among those on the Left to ascribe this fact to "white supremacy" and bigotry.  And while no serious person believes that racism has disappeared from the United States, the facts do not support the Left's favored theory.  Instead, the answer is set out in blunt terms by the generally liberal, but independently-minded black columnist, Colbert I. King, in today's Washington Post piece.  As Mr. King notes:

Here we are, another Black History Month: time to lionize great black men and women of the past. Twenty-eight days to praise the first African American to do this and the first African American who did that. Another month of looking back with pride - as we ignore the calamity in our midst.

When Black History Month was celebrated in 1950, according to State University of New York research, 77.7 percent of black families had two parents. As of January 2010, according to the Census Bureau, the share of two-parent families among African Americans had fallen to 38 percent.

We know that children, particularly young male African Americans, benefit from parental marriage and from having a father in the home. Today, the majority of black children are born to single, unmarried mothers.

Nolan Clay has this story in the Oklahoman, touching on several themes.  One is the misrepresentation of the notorious "innocence list."  Another is the difficulty in prosecuting gang-related crimes.  A related issue is why fewer black-victim homicides result in the death penalty.  I will depart from our usual practice here and quote the story in its entirety.

A former death row inmate was arrested Friday, accused of involvement in a gang rape at an Oklahoma City apartment last October.

Paris Lapriest Powell, 37, of Oklahoma City, was identified by DNA evidence as a suspect in the assault of two women, police reported.

The victims said three "males pushed their way into their apartment" sometime after 2 a.m. Oct. 6 "and raped ... and assaulted both of them throughout the night," police reported. One woman described being tied to her bed and blindfolded during the attack.

Kentucky death row inmate Ralph Steven Baze (from Baze v. Rees re: the Kentucky execution drug protocol) is back in court, this time seeking a federal court order for "unfettered access" to interview prison personnel in support of his application for clemency.  The district court ruled, and the Sixth Circuit affirmed, that federal courts lack jurisdiction to order such relief.

First, Baze argues that "the plain language of § 3599(f) provides jurisdiction and authority to prevent . . . interference" with an attorney's efforts to obtain investigative services.

We disagree with Baze's textual interpretation. The relevant provision simply empowers a court to authorize, for purposes of compensation, an attorney to acquire an investigator's efforts--not his total success. Therefore, it does not, as Baze argues, enable a court to order any party that stands in the investigator's way to stand down. To permit someone to seek information is not the same as establishing a substantive right for that person to acquire that information over all possible obstacles.

*                        *                         *

In the alternative, Baze argues that the All Writs Act, 28 U.S.C. § 1651, empowers the district court to order KDOC to allow him to interview prison personnel and inmates.  The All Writs Act provides, in relevant part, that "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." . . . Baze argues that, "because the district court was empowered under 18 U.S.C. § 3599 to authorize counsel to obtain services, the All Writs Act authorizes orders necessary to prevent government officials from interfering with those services." . . . Because section 3599 speaks only to funding, Baze's All Writs Act argument meets the same fate as his section-3599 argument. 

Thanks to commenter "federalist" for the link.

Jury Recommends Death Penalty for Killer:  David Ovalle of the Miami Herald reports a jury yesterday recommended a sentence of death for Brandon Rolle, convicted of fatally shooting Illinois tourist Ronald Gentile.  Prosecutors claim Rolle shot Gentile and stole his jewelry after Gentile stopped to ask for directions.  Rolle later posed at a nightclub with his finger outstretched like a gun wearing the victim's stolen bracelet.  Rolle had a long juvenile arrest record and had served three prison terms, his last one ending 17 days before Gentile's murder.

Man Convicted in 1975 Cold Case Killing:  Tracey Kaplan of the Mercury News reports that convicted sex offender Edward Dees, already serving a life sentence for four sexual assaults, pleaded no contest yesterday to killing Sandra Howard in 1975.  Howard's parents found the 22-year-old newlywed with a cake knife in her chest and a man's tie pulled tightly around her neck, and with evidence that she had been raped and strangled.  Dees was charged in 2007 after DNA evidence linked him to the crime.

Illinois to Seek Death Penalty for Harris Brothers:  Edith Brady-Lunny of the Pantagraph (IL) reports that prosecutors will seek the death penalty for Christopher J. Harris and Jason L. Harris for the home invasion murders of Ruth and Rick Gee and three of their children who were found beaten to death in 2009.  The Harris brothers will each face charges of first degree murder, home invasion, residential burglary, and attempted sexual assault, as well as the attempted murder of Tabitha Gee, who was 3 years old at the time of the attack.  Illinois lawmakers voted last month to abolish the death penalty, but Governor Pat Quinn has not signed the bill into law.  The prosecutor has expressed concerns that defense costs currently funded by the State Capital Litigation Trust Fund may fall on the county if the death penalty is abolished before the end of the trial.

California Prison Labor Rules Frustrate Ban on Inmate Cellphones:  Jack Dolan of the Los Angeles Times reports on an obstacle to keeping cellphones away from California's inmates.  The California prison guards union estimates that if officers are required to go through scanners at the beginning of a shift, it will cost millions of dollars more per year collectively to compensate them for the additional "walk time" to get from the front gate to their posts.  Last year, more than 10,000 cell phones made their way into California prisons.  Senator Alex Padilla has responded with a bill that would impose a $5,000 fine for anyone caught smuggling cell phones into prison and lengthen sentences for up to 5 years for inmates caught with cell phones.

Florida Supreme Court Gives Go-Ahead for Execution:  The Florida Supreme Court today ruled death row inmate Donald Dufour is not mentally retarded and can be executed, reports Rene Stulzman of the Orlando Sentinel.  Defour was sentenced to death for the 1982 slaying of Zack Miller, whom Defour met at a bar and shot at very close range.  Defour is also accused of murdering four other people in Florida and Mississippi that same year, and is currently serving life sentences for two convictions.

Convicted Killer Caught After 22 Years on the Run:  John Howell of the West Hartford Patch (CT) reports that Adam M. Zachs, convicted of murdering a man outside a Connecticut restaurant, was recently captured in Leon, Mexico after 22 years on the run.  In 1988, Zachs was convicted of first degree murder and sentenced to 60 years for the fatal shooting of Peter Carone, but fled while out on bail pending his appeal.  Authorities have suspected for years that Zachs was hiding in Mexico and at the time of his arrest, found him married with two kids and running a computer repair business.

Guns Tracked by ATF Found at Border Crime Scene:  Kim Murphy of the LA Times has this story on the growing controversy surrounding a gun smuggling investigation conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives.  Whistleblowers within the agency have indicated that "Project Gunrunner" has focused heavily on illegal cross-border sales of guns, but paid little attention to tracking the guns after the sales.  The controversy has resurfaced after the feds confirmed two AK-47s, purchased for cash and monitored by the ATF, were used in the December gunfight that left Border Patrol Agent Brian Terry dead.

Psychiatrist Sally Satel has a thoughtful article on the change in diagnosis of PTSD by the Veteran's Administration.  As Dr. Satel mentions:

On July 12, 2010, General Shinseki penned an op-ed in USA Today ("For Vets with PTSD, End of an Unfair Process") announcing a new Veterans Administration rule making it easier for veterans suffering from PTSD to file disability claims. Part of the rule was straightforward: The VA would no longer require that a veteran provide documentation of his exposure to combat trauma, seeing how such paperwork is often very difficult for veterans to obtain. Streamlining the lumbering claims bureaucracy is one thing, and welcome it is, but the new rule does not end there. It also establishes that noninfantry personnel can qualify for PTSD disability if they had good reason to fear danger, such as firefights or explosions, even if they did not actually experience it. "[If] a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity, he is eligible for a PTSD benefits," according to the Federal Register. This is a strikingly novel amendment. The idea that one can sustain an enduring and disabling mental disorder based on anxious anticipation of a traumatic event that never materialized is a radical departure from the clinical--and common-sense--understanding that traumatic stress disorders are caused by events that actually do happen to people. However, this is by no means the first time that controversy and ambiguity have swirled around the diagnosis of PTSD (emphasis added).

My Sixth Sense tells me that we'll see this in the civilian context in the near future. 

Ken Armstrong and Jennifer Sullivan of The Seattle Times have this story on Byron Scherf, a Washington inmate accused of strangling to death a 34-year-old female correctional officer in a prison chapel over the weekend.  (Prior post here.)  But first, a brief history of the inmate whom a state report labeled "an easy keeper" who took advantage of "every self-help program available":

Leader of Child Sex Ring in Thailand Sentenced to 25 Years:  CNN reports a federal judge in New Jersey sentenced 64-year-old John Wrenshall to 25 years in prison for running a child sex ring at his Thailand home.  Wrenshall pleaded guilty to conspiring to participate in sex tourism and to produce and distribute child pornography.  Court authorities said that since 2000, Wrenshall arranged illicit trips for Americans and others who paid him to engage in sexual acts with Thai boys, some as young as four.  Wrenshall also "trained" the boys for his clients and permitted customers to videotape and photograph their abuse.

Police Dropped Abuse Case Weeks Before Mom Allegedly Shot and Killed Kids:  Police ended their investigation into a Florida mother's child abuse weeks before the woman admitted killing her teenage children because they were "mouthy."  Julie K. Schenecker, 50, is charged with two counts of first-degree murder in the killings of 13-year-old Beau Powers Schenecker and her 16-year-old Calyx Powers Schenecker.  Police ended their investigation due to Calyx's lack of visible wounds, despite the fact that both the mother and daughter admitted the beatings.  Last Thursday, officers found Schenecker at her home covered in blood.  Both children were dead from gunshot wounds.  Schenecker confessed to a murder-suicide plan, but has yet to enter a plea pending a psychiatric evaluation.  CNN has this story.

Several Los Angeles Gang Units Temporarily Dismantled:  Joel Rubin and Scott Gold of the Los Angeles Times report the LAPD has temporarily dismantled anti-gang units in several of its high-crime neighborhoods, after officers refused to comply with a new controversial policy requiring them to periodically disclose their assets and debts.  The officers have been sent back to patrol duties, but there are concerns that the officers' absence from the neighborhoods will set back anti-gang efforts in the city. 

Ex-Marine Murder Defendant Urinates in Courtroom:   Sarah Burge of the Press-Enterprise (Riverside, CA) reports 23-year-old Kesaun Sykes ("Psycho"), one of four ex-Marines facing trial in Riverside County for the deaths of a Marine sergeant and his wife, will undergo a mental exam after urinating and flinging drops of urine during a court hearing on Friday.  The judge suspended the proceedings and ordered a psychiatric evaluation of Psycho.

When the sodium thiopental shortage kerfuffle first arose, I cruised around the 'Net a bit to see who sells the stuff.  There are vendors in India.  Press reports indicate that only American and European sources are approved by the FDA for drugs for medical use.

But of course lethal injection is not a medical use.  The FDA has strict standards to ensure that drugs are safe and effective.  For lethal injection, "safe" and "effective" are opposites.  Some small amount of impurity that could cause a medical patient problems after waking up from the sedative would be a big problem for medical use.  For lethal injection, that is what lawyers call a moot question.

Sure enough, India is where Nebraska got its big stash, JoAnne Young reports in the Lincoln Journal Star.

Will opponents try to make this a basis of a legal challenge?  Of course.  They challenge anything and everything.  Will courts dismiss the challenge summarily?  They should.

This is all short term.  States should move to pentobarbital as quickly as their administrative procedures allow.

Today's News Scan reported the reversal of a first degree murder conviction, all because the defendant was not part of an email exchange between the judge, prosecutor, and defense attorney.  The 5-4 decision by the Washington Supreme Court rested on both federal and state constitutional grounds.  But did the inclusion of a state constitutional provision construct an impenetrable ceiling to further review?

Terrance Irby was charged with first degree murder, accused of bludgeoning a man to death.  In the first day of jury selection, the prospective jury pool completed a standard questionnaire submitted to the court.  That afternoon, the trial judge emailed the prosecutor and Irby's defense attorney, indicating that ten jurors had asked to be released for various reasons.  The prosecutor and Irby's counsel agreed that seven of the ten could be released, and the judge notified these jurors that they were excused.  Following a jury trial, Irby was convicted of first degree murder and sentenced to LWOP.  On appeal, Irby claimed he should have been a part of the just-described email exchange, and that his absence from it was a violation of his constitutional right to be present at trial.  The Washington Supreme Court bought it.

Murder Registry Bill Proposed after Killer Walks:  The Huffington Post reports Illinois state legislator Dennis Reboletti (R) has proposed "Andrea's Law" to track some convicted murderers.  The bill is named after Andrea Will, who was murdered in 1998 at the age of 18.  Her murderer, Justin Boulay, was released last year after serving half of his 24-year sentence. If passed, the bill would apply only to those violent offenders convicted before Illinois passed its "truth in sentencing" laws in 1998, which require those convicted of violent crimes to serve a minimum of 85% of their sentence (100% for murderers).  The bill would target those sentenced before adoption of nonretroactive truth in sentencing laws, such as Boulay, requiring them to register on an online database for 10 years after their release.

Kidney Transplant in Commutation Gets More Complicated:  Jimmie E. Gates of the Clarion Ledger reports on a decision by Mississippi Governor Haley Barbour earlier this month to suspend the life sentences of Jaime Scott and her sister Gladys for their participation in a 1993 armed robbery.  Gladys's release was conditioned on her donating a kidney to Jaime,  whose prison dialysis has cost the state nearly $200,000 a year - a requirement some critics argue is unenforceable.  Doctors recently told both sisters they must lose weight before the transplant can occur.

Convicted Serial Killer Charged in Two Additional NY Deaths:  Jennifer Peltz of the Associated Press reports that Rodney Alcala, a California death row inmate, will be charged with two more killings in New York.  Alcala was found guilty last year of the 1970s strangling of four women and a young girl in California.  After his conviction, authorities released hundreds of photos of women found in Alcala's storage locker.  These photos helped prosecutors reopen cold case files that led them to suspect Alcala in the two additional killings in New York.  Prior to last year's conviction, Alcala had been convicted and sentenced to death twice for the California girl's murder, but both verdicts were overturned on appeal.

Texas Short on Lethal Injection Drug:  Russell Goldman of the ABC News reports that Texas has enough of the lethal injection drug to execute only two out of the 317 inmates on death row.  Texas will likely look to the execution process in Ohio and its upcoming plans to start using pentobarbital.  Johnnie Baston, a convicted Ohio death row inmate, is the first inmate scheduled to be injected with this new drug in that state.  (See yesterday's News Scan.)

A Day on the Other Side of the Bench:  Montgomery County Circuit Judge Joseph M. Quirk recently arrived at court for his job of the day - Juror No. 4 in a criminal theft case, conducted in a courtroom a few floors above his chambers.  Judge Quirk stated he was pleased to serve the role of the juror and that he made it a point to jump into the discussions during the jury's deliberations.  Jurors laughed when learning their fellow juror's profession after the close of trial.  WaPo staff writer Dan Morse has this story.  Hat tip to How Appealing. 

Judge Richard Posner has a second article criticizing "the Bluebook," the citation form manual jointly published by several law schools and used by most law reviews outside Chicago.  The first article was published in 1986 and titled "Goodbye to the Bluebook," a title Judge Posner now recognizes was naive.  The article is entertaining if you dislike the Bluebook, though I doubt any of you dear readers dislike it as intensely as Judge Posner does.  Eugene Volokh and Ilya Somin have posts at VC.

I find that a surprising number of law students and recent graduates think the Bluebook is Holy Writ and that all other forms of citation are "wrong."  I once received a letter from a rookie opposing counsel who made a snotty reference to the "poor citation style" in my brief.  In fact, the brief in question scrupulously cited authorities in the style of the official reporter for the court in which it was filed, as do all CJLF briefs.

California attorneys must unlearn the Bluebook-as-Gospel fallacy immediately upon graduation.  Our state courts have their own style manual, which is quite different from the Bluebook.

The most prestigious organization to ignore the Bluebook is, of course, the Supreme Court of the United States.  Unlike the California courts, they don't publish their own style manual for the public, but they do have one internally.  Read the slip opinions or the bound volumes on the Court's website, and you will see that they do not follow the Bluebook.  CJLF's U.S. Supreme Court briefs also follow the Court's style, not the Bluebook, to the extent we can infer their rules from the opinions.

The Bluebook may be followed by nearly everyone in academia, but not in the judiciary.  Neither the nation's highest court nor the courts of the largest state follow it.  We use it at CJLF only for articles in law reviews that require it and for briefs in the federal courts of appeals, which apparently follow it.

Ohio Will Be First State to Use Pentobarbital Alone During Executions:  The AP reports that in March, Ohio will being using pentobarbital during executions, in light of the nationwide shortage of sodium thiopental.  Oklahoma also switched to pentobarbital last year as part of its three-drug protocol, but Ohio would be the first state to use the drug alone.

DNA Match Leads to Arrest in 1983 Chicago Murder:  Jason Meisner of the Chicago Tribune reports on the arrest of Anthony Kemp, accused of the fatal stabbing death of a man during a home invasion in 1983.  Kemp, who has spent much of the past 20 years in prison for burglary, sexual assault, and armed violence convictions, was linked to the crime after his DNA profile in a nationwide database matched a crime scene sample.  His arrest marks one of several cold cases cracked by Chicago police since 2007 with the help of DOJ funds.

Legislator Proposes Reinstating Death Penalty in New Jersey:  New Jersey Senator Robert Singer (R) introduced a bill to reinstate the death penalty in the state for those convicted or murdering a child, killing a police officer in the line of duty, or committing a fatal terrorist attack.  The legislature repealed capital punishment in the New Jersey in December 2007.  Megan DeMarco has this story in The Star-Ledger (NJ).

Adjusting to Graham :  Lynda Waddington of The Iowa Independent has this story on a study bill pending before the Iowa Senate Judiciary Committee, which would allow some juveniles sentenced to LWOP to be eligible for release hearings after serving 25 years.  The proposed legislation comes in response to the Supreme Court case Graham v. Florida.  The Iowa Supreme Court, like courts in a number of other states, has had difficulty reconciling Graham with an incompatible statutory structure.  The story notes an anomalous result of a defendant convicted of first-degree kidnapping being eligible for parole earlier than if he had been convicted of second-degree.

For the third time in two weeks, the U.S. Supreme Court has reversed a Ninth Circuit decision in a crime-related case without a single Justice concluding the Ninth was correct.

In Swarthout v. Cooke, No. 10-333, the Ninth Circuit took it upon itself to review whether California's parole authority and state courts had correctly applied the standard under state law for deciding when to parole a person convicted of murder or attempted murder.  (Only a few crimes in California still have these "indeterminate" terms with discretionary release by the parole board.  Most have "determinate" terms with a set term of years which may be reduced by credits for working or behaving in prison. Noncapital murder is one of the few.)

The parole board* decides when and whether to grant parole based on whether the public safety requires keeping the murderer locked up, and the state courts review whether there is "some evidence" supporting the board's decision.  What is the federal question here?  There isn't any.  There is a federal constitutional minimum of due process, but there is no claim in this case that California's procedures do not meet it.

Harrington v. Richter, No. 09-587, decided 7-1-0 today by the US Supreme Court, is a landmark decision in the law of federal habeas corpus. The opinion is as rich with nuggets as any I have seen from the Court in some time.  One in particular makes the opinion stand out, though.  The Court has finally comes to grips with the true nature of the most controversial provision of the habeas reforms in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA): 28 U.S.C. §2254(d).

Pharmaceutical Companies Won't Sell Injection Drug to Kentucky:  Documents obtained by the Associated Press show that two pharmaceutical companies will not sell sodium thiopental to Kentucky for the state's executions.  One company claimed its refusal was because a medical doctor was not involved in the process, even though Kentucky law prohibits doctor participation during executions.  These emails are the first public records of companies refusing to sell the drug to a state for this purpose.  Brett Barrouquere of the AP has this story. 

Video of Toddler with Pot Pipe Lands Parents in Jail:  Beatriz Valenzeula of the Victorville Daily Press (CA) reports a San Bernardino County couple is behind bars after a video surfaced of their 23-month-old child puffing on a marijuana pipe.  Police arrested mother Melanie Soliz, 20, over the weekend, and father Blake Hightower, 24, later turned himself in.  Both admit to possessing medical marijuana cards, but could not explain why they would give their baby the pipe and videotape it.

Op-Ed on Chancellor Birgeneau's Statement:  Dan Walters of The Sacramento Bee has this response to UC Berkeley Chancellor Robert Birgeneau's statements on the Loughner case (prior post here).  "It was not the first time that Birgeneau had offered up a laughably illogical observation on current events.  A few years earlier, he had claimed that protesters against the construction of a new sports training center were motivated by 'racism against our underrepresented minority student athletes.' . . . Birgeneau is a physicist by academic training, someone schooled in rigorous scientific research.  Without a scintilla of proof, however, he ascribes racist motives to an entire state and even to demonstrators against a campus project."

The Deliberation Part Might Be Tough For Him:  Fox25 Boston reports Sal Esposito - a cat from East Boston - was summoned for jury duty after his owners listed him as a "pet" on the recent Census.  "Sal's owners tried to have him disqualified due to his inability to speak or understand English, but were denied.  Unless the matter is resolved, [owner] Anna Esposito said she will take the feline to court to perform his civic duty on March 23."

Slightly more than four years ago, in November 2006, Wisconsin voters approved a non-binding referendum to restore the death penalty.  The vote was not particularly close  --  55.5% to 44.5%.  The measure called on the Legislature to enact a death penalty for first degree murder convictions supported by DNA evidence.  However, since the Legislature was controlled by Democrats, and the Governor was an abolitionist, the will of the voters was ignored.

Times have changed.  In the last election, Wisconsin voters threw out the old crowd, putting a Republican in the Governor's mansion and giving Republicans control of both houses of the Legislature.  What was impossible four years ago has become doable today.

A restoration of capital punishment in Wisconsin would shake abolitionism to its roots.  Wisconsin was among the first states to abolish the death penalty and has not had an execution for 160 years.  It's the capital of modern progessivism.  And it can scarcely be dismissed as a retrograde Confederate hold-out, which is a typical smear abolitionists use against retentionists.

Abolitionists think "reform" means a one-way street toward restricting, or ending, the death penalty.  "History is on our side" is what we constantly hear.  I don't know the exact political landscape in the Badger State, but given the 2006 referendum and the 2010 legislative and gubernatorial change, I have to believe Wisconsin has a chance to show that history is actually on the people's side.

The Pennsylvania item in today's News Scan illustrates one problem with Pennsylvania's death penalty.  That state has the "single juror veto" rule under which a single juror can effectively give the defendant a life sentence despite the contrary opinion of the other 11.  Better methods include those in California, where the jury must be unanimous one way or the other, and Florida, where a nonunanimous jury can make a recommendation to the judge.

The larger problem, though, is the interminable appeals process.  Departing Governor Ed Rendell has this letter to the legislature.  It is surprising to me that the head of the state government can be so keenly aware of the problem yet so utterly clueless that the solutions are well known and require only the political will to enact.

The time lapse between conviction and execution generally results from capital defendants' efforts to exhaust every legal challenge to their conviction and death sentence that is available to them under state and federal law. That is the way it should be; every meritorious issue must be raised and addressed.

The problem is that one cannot say that an issue is meritorious until it is addressed.  To have any finality in the system, we have to have a mechanism to cut off some categories of claims at some point, even though we are aware that the few such issues might be considered "meritorious" in the abstract

The obvious and just place to draw the line is between substantial claims of actual we-got-the-wrong-guy innocence and all the others.  The bulk of capital litigation goes into the "all the others" category.  Claims that go only to the sentencer's discretionary choice of penalty within the legal range for the offense simply do not need to be considered in any review after the first.  If we have the right guy and he receives a penalty within the legal range for the crime he chose to commit, that is not a miscarriage of justice.

While Congress and this body have enacted laws to help curtail and streamline the appellate process in capital cases, the length of time between the imposition of the sentence and actual execution, if it occurs at all, can be decades and is still too long. Victims' survivors are frustrated; the police are frustrated. The lengthy appeals process not only costs taxpayers substantial money, but it also robs the victims' families and friends of peace of mind, and they get no closure.

Yes, all true.

I would ask you to explore whether there can be any additional steps taken that allow for a thorough and exhaustive review of the facts and the law in each case, but that would significantly shorten the time between offense and carrying out the sentence.

Of course there is.

To be continued . . . .

CJLF has sent a letter to Illinois Governor Pat Quinn, urging him to veto the death penalty repeal bill.  The PDF version is here.  The text is after the jump.

If you live in Illinois, contact the governor and urge him to veto this most misguided piece of legislation.  His contact page is here.

Scheduled Execution:  Tim Talley of The Oklahoman reports on today's scheduled execution of Oklahoma death row inmate Jeffrey David Matthews, convicted of murdering his 77-year-old great-uncle in 1994.  Prosecutors allege that after Matthews and another man broke into Otis Earl Short's home, Matthews shot the elderly man in the head at close range while the other man cut the throat of Short's wife (who ultimately survived the attack).  Three execution dates were set for Matthews last year, but each one was postponed after challenges to either Matthews's guilt or the state's planned method of execution.

Bizarre Murder-by-Stove Conviction Affirmed:  In what reads like a law school exam question, a felony-murder conviction stemming from a stolen stove was affirmed last week by a California appeals court.  Prosecutors alleged that Cole Allen Wilkins stole several major appliances from a Riverside construction site, put them untied in the back of his truck, and fled down a freeway.  When a stove fell onto the highway, a Los Angeles County Sheriff's deputy on his way to work swerved to avoid it and was fatally crushed by a cement truck.  Wilkins was convicted of first-degree murder and sentenced to 26 years to life. The appellate court affirmed the murder as a death occurring during the commission of a felony: "Here, the act that caused the homicide - the failure to tie down the load of stolen loot - occurred at the scene of the burglary, not 60 miles later when part of the unsecured load fell off the back of defendant's truck."  Larry Welborn of The Orange County Register has this story.

NH Governor Endorses Expanded Death Penalty Eligibility:  New Hampshire Governor John Lynch last week endorsed expanding the state's death penalty to include "heinous" home invasion murders, reports Joseph G. Cote and Kevin Landrigan of The Nashua Telegraph (NH).  The Governor's endorsement comes in light of the 2009 brutal hacking death of a 42-year-old mother Kimberly Cates inside her home by two alleged co-defendants, neither of whom are eligible for capital punishment under the current law.  Opponents of the expansion claim it will be difficult to word the law so as to target crimes against innocent victims such as Cates and not, for instance, murders resulting from turf fights that result in a death.

Supreme Court Denies Challenge to Oregon Jury Law:  The U.S. Supreme Court today declined to revisit the issue of whether the Sixth Amendment's unanimous jury requirement for criminal cases is binding on the states.  Oregon law provides that a criminal defendant may be convicted by ten jurors (except in first degree murder cases).  Louisiana has a similar law, but all other states impose a unanimity requirement.  Lee Gross of FoxNews has this story. 

Missouri Governor Commutes Death Sentence:  Jim Salter of the AP reports Governor Jay Nixon today spared the life of Richard Clay, reducing the convicted murderer's death sentence to life in prison without the possibility of parole.  The governor's statement indicated he is "convinced of Richard Clay's involvement in the senseless murder of Randy Martindale," but did not explain the reason for the commutation.  Clay was set to be executed after midnight on Wednesday.

Change of Venue Denied in Second New Hampshire Machete Case:  New Hampshire Judge Gillian Abramson today rejected a change of venue request from alleged murderer Christopher Gribble, filed in light of alleged co-conspirator Steven Spader's first-degree murder conviction, reports WMUR (NH).  Judge Abramson also denied a request from Gribble's defense team that the prosecution refrain from using emotionally-charged words such as "slaughter" and "ambush" during trial.  The judge stated:  "If I see prosecutorial misconduct, I will address it, but short of that, I'm not going to turn into a thesaurus up here."

Texas's Alleged "Twilight Rapist" is Prison Employee:   Authorities believe 53-year-old Billy Joe Harris might be Texas's "twilight rapist," reports Anita Hassan of the Houston Chronicle.  Harris is facing burglary charges after he was caught fleeing from an elderly woman's home over the weekend, and police are looking into whether he is also behind 14 other rapes and attempted sexual assaults in the area, all taking place during the evening and early morning hours in 2009 and against women between the ages of 65 and 91.  Harris has worked on and off for the Texas Department of Corrections for more than 12 years

Way back in 1969, Justice John Harlan wrote a prescient dissent in Desist v. United States, 394 U.S. 244, urging the Warren Court to desist from its approach to retroactivity of the new rules it was then creating at a brisk pace.  He was a lone voice in the wilderness at the time, but his view is now, largely, the law, having been adopted for direct appeals in Griffith v. Kentucky, 479 U.S. 314, in 1987 and for collateral review in Teague v. Lane, 489 U.S. 288, in 1989.

The basic rule of the Harlan view is that new rules apply retroactively to cases pending on direct appeal when the new case comes down but not to overturn judgments that have become "final" by the completion of the appeal process.  However, he noted two exceptions.  In reverse order, the second exception is for fundamental procedural reforms, and it explained his continued concurrence in granting habeas relief to people convicted of felonies without counsel.  Gideon v. Wainwright, 372 U.S. 355, was then only six years old.  In all the years since Teague, the Supreme Court has never found any new procedural rule "fundamental" enough to qualify, and it has never cited any case newer than Gideon as an example of such a rule.

The first exception is for new rules that render the conduct for which the defendant was convicted not a crime.  First Amendment cases were the big thing back then, with people being convicted on obscenity charges for materials that the Supreme Court would later decide were protected speech.  But the principle is not limited to the First Amendment, and that brings us to Heller.

Judicial appointments, and particularly the Chief Justice appointment, are widely regarded as the worst mistakes in Jerry Brown's first round as Governor of California.  Brown himself has cited President Eisenhower's "biggest damn fool mistake I ever made" comment in this regard.

Has he learned?  We are going to find out sooner than expected.  Justice Carlos Moreno has announced his retirement.  Howard Mintz has this story in the San Jose Mercury-News.

We now have a split of authority on the constitutionality of the Stolen Valor Act, 18 U.S.C. §704(b), making it a crime to falsely claim an award of a military medal.  As noted in previous posts here and here, the act had been held unconstitutional by a District Court in Colorado and by the Ninth Circuit.

Eugene Volokh has this post pointing us to a decision by a District Court in Virginia upholding the act.

If this decision goes up to the Fourth Circuit and is affirmed, we will then have a "circuit split" worthy of the Supreme Court's attention.

Call for Action on "Melissa's Bill":  Joan Vennochi has this editorial in The Boston Globe, calling for Massachusetts lawmakers to vote on "Melissa's Bill," a decade-old bill mandating maximum sentences and parole ineligibility for repeat felons.  The bill was proposed in light of the 1999 murder of Melissa Gosule, who was abducted, raped, and murdered by a repeat offender.  The bill has languished for years in a judiciary committee, but has recently been revived after the recent shooting death of a police officer, allegedly by a released parolee with three life sentences.  Vennochi criticizes the state legislature's hands-off approach: "Letting the proposal die in committee is the coward's way out.  It deserves a vote and those lawmakers who don't support it should have the decency to look into the eyes of [victims'] relatives left behind and tell them why."

First Execution of 2011 Scheduled for Tonight:  Oklahoma is scheduled to carry out the first execution of the year, reports Naimah Jabali-Nash on the CBS Crimesider blog.  Billy Don Alverson, 39, was sentenced to death for the 1995 beating death of a convenience store supervisor in Tulsa.  Prosecutors say Alverson and three other men beat the victim with a baseball bat, delivering a total of 54 blows and leaving his body in the store's cooler.  The other three defendants were also sentenced to death, and one was executed in 2009.

Oregon Court Weighs in on Viewing Child Porn:  The Oregon Supreme Court today ruled that accessing, and presumably viewing, kiddie porn on the internet does not amount to "possession."  The court reasoned: "Looking for something on the Internet is like walking into a museum to look at pictures -- the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them."  Aimee Green of The Oregonian has this story.

Comic Relief:  A stupid criminal story or two is always good to lighten the mood.  Terry Sanginiti of The News Journal (DE) reports 44-year-old John Finch broke into a Wilmington, Delaware home, drank five bottles of liquor over the course of a few days, and finally called 911 when he couldn't figure out a way out.  After rescuing him from the house, police promptly arrested him.  And Lisa A. Davis of Tampa Bay Online reports a Florida teen, after being arrested on burglary charges, took several bites of a patrol car's back seat.  The sheriff's office estimates the teen caused $300 in damage.