Results matching “first”

Freedom of speech is not unlimited. Threats directed to a a specific target can be a criminal offense.  See Virginia v. Black, 538 U.S. 343 (2003). CJLF brief here.

Some people just love to "flame" others on the Internet.  See this recent discussion of blog comments at SL&P.  A blogger named Hal Turner was very unhappy with a Seventh Circuit decision on the Second Amendment, even though the judges believed with substantial justification that they were duly following a Supreme Court precedent that only the high court itself could overrule. Of course, people do have the right to criticize court decisions until the cows come home. But Turner went further, reports Tom Hays for AP.

Authorities say he then went too far by writing: "Let me be the first to say this plainly: These judges must die. Their blood will replenish the tree of liberty."

[Circuit Judge William] Bauer testified that one of his clerks alerted him to the posting. He recalled being concerned over some of the supportive comments from readers.

"A great number of people thought it was a great idea," he said. "I didn't."

The case was moved to Brooklyn. There have already been two hung juries.

Oakland Gang Sweep:  Police in Oakland and surrounding cities arrested a total of 48 parole and probation violators yesterday in "Operation Gangbusters," reports the Oakland Tribune.  Police also picked up guns, machetes, and over $75,000 in marijuana plants.  The sweep was made easier, in part, due to California's new program requiring some parolees to wear GPS devices so that parole agents can monitor their whereabouts.  (See the San Francisco Chronicle's story about the new GPS monitoring here.) 

New Trial For TX Death Row Inmate:  The AP reports the 5th Circuit Court of Appeals upheld a lower court decision ordering a new sentencing trial for Warren Darrell Rivers based on inadequate jury instructions.  In 1987, Rivers lured an 11-year-old boy to an abandoned house where he beat, sexually abused, and stabbed the boy to death.  Fortunately, the Fifth Circuit rejected Rivers's argument to overturn his conviction based on racially-charged peremptory strikes, although his attorneys might seek further review from SCOTUS. See also Kent's post on this case.

Suppressed Evidence in Canadian Serial Killer Trial:  The Vancouver Sun has this story about the trial of serial killer Robert (Willie) Pickton, who is strongly suspected of killing and dismembering 26 women on his Canadian farm.  (Recommendation - if you chose to read this article, do so on an empty stomach.)  A slew of DNA evidence linking Pickton to the dead women was excluded from his trial for six of the murders, based on a plan to hold a second trial for the remaining 20.  However, after a ruling from the Supreme Court of Canada, those remaining charges have been stayed.  Based on the limited evidence that the court allowed at trial, the jury acquitted him of first-degree murder and instead convicted him of the lesser charge of second-degree murder.

14 People Charged For Supporting Somalian Terrorist Group:  As reported by the AP, the feds charged 14 people today in Minnesota, California, and Alabama for supporting Al-Shabab - a Somalian terrorist group that practices a radical form of Islam similar to that practice by the Taliban.  One of the indictments alleges that several of the female defendants went door to door in U.S. communities raising money for charities, but sending the funds to Al-Shabab efforts.  Al-Shabab members assert allegiance to al-Qaida and have claimed responsibility for two recent bombings in Uganda that killed 76 people.

"Billy the Kid" Feud Lives On:  Rumors that New Mexico governor Bill Richardson is considering a pardon for legendary "Billy the Kid" are concerning descendants of Pat Garrett - the sheriff who supposedly shot the outlaw in 1881, reports the AP.  Garrett's grandchildren and great-grandchildren voiced their objections yesterday to Gov. Richardson, arguing that a pardon would glorify Billy the Kid while casting doubt on Garrett's honor.  Gov. Richardson is allegedly considering the pardon based on a unfulfilled promise of pardon by Territorial Gov. Lew Wallace in return for Billy the Kid's testimony about killings at the Lincoln County War.

Civil Liberties Groups Sue Treasury Dept. to Represent Wanted Terrorist:   The Washington Post reports that the Center for Constitutional Rights and the ACLU sued the Treasury Department and the Office of Foreign Assets Control this week, in an attempt to continue representing Anwar al-Aulaqi, a U.S. citizen who has been named a "specially designated global terrorist" and whom the CIA is authorized to kill.  As a result of this designation, U.S. entities are prohibited from transacting with him without first receiving a license from the OFAC.  The civil liberties groups claim that preventing attorneys from providing al-Aulaqui with free legal services absent a license is a violation of several constitutional guarantees, but OFAC counters that the Treasury Department has in place a general license that authorizes pro bono representation for persons such as al-Aulaqi.  al-Aulaqi is believed to have direct links to Maj. Nidal M. Hasan (the perpetrator of the killings at Ford Hood) and the failed Christmas day bombing of a plane bound for Detroit.

CA Supreme Court Chief Justice Nominee Well-Liked By All:  The Sacramento Bee has this story about Tani Cantil-Sakauye, who is expected to be confirmed as the new CA Supreme Court Chief Justice on August 25th.  She currently serves as a justice on the California Court of Appeal, Third Appellate District.  Prior to her appointment to the bench, Cantil-Sakauye worked for the Sacramento District Attorney and fomer CA Gov. George Deukmejian.   

California State Senator Leland Yee has long been on a crusade to exempt from life-without-parole all murderers short of their 18th birthday at the time of crime, even if only a day and regardless of how heinous or numerous their crimes. Now he is resorting to outright misrepresentation to achieve this goal.

Yesterday, the Sacramento Bee had this story by Kim Minugh on Sacto DA Jan Scully's opposition to Yee's bill, SB 399, which is up for a vote in the Assembly.

To underscore her point, Scully cited two recent cases in which juvenile offenders were tried as adults and convicted of first-degree murder: Jimmy Siackasorn, who was 16 when he fatally shot Sacramento County Sheriff's Detective Vu Nguyen; and Frank Abella, who, with another suspect, robbed, tortured and fatally shot disabled William Deer just shy of Abella's 18th birthday.

Yee reacts in a separate story:

"Ms. Scully is misinformed on this issue and her remarks are misguided," said Yee. "The individuals she references will never be released under this bill, and she should know that. The public and the families of victims deserve better than fear-mongering from their elected district attorney.

"She fails to recognize that children have a greater capacity for rehabilitation than adults and that some kids deserve a second chance," Yee said.

Yee's unequivocal statement that they will never be released is a falsehood. He does not and cannot know that to a certainty. They would eligible for consideration for release under his bill, and we know very well that courts sometimes order release for persons eligible even when the parole board denies parole.

Yee's implication that the victims' families are on his side has enraged the National Organization of Victims of Juvenile Lifers.  Their press release is here.

And once more, with feeling, 16- and 17-year-olds are not children.

Heritage Foundation's excellent report on this issue is here.

Canadian Judge Denies U.S. Extradition Request for Suspected Terrorist:  The AP reports a Canadian judge today released Abdullah Khadr, a man suspected of purchasing weapons for al-Qaida and conspiring to kill Americans abroad.  Khadr has been held in Canada on a U.S. warrant since 2005, but the judge today denied the U.S.'s extradition request finding Khadr's self-incriminating statement to U.S. agents was "manifestly unreasonable."

Justice Ginsberg Vows to Stay on Court at Least Until 2012:  Amidst rumors of retirement next year, Justice Ginsberg told the AP she was delighted at the prospect of being one of three female SCOTUS justices (contingent on Kagen's appointment) and that she didn't plan on stepping down for at least another five years.  Last year, Ginsberg's diagnosis of cancer and the death of her husband caused many to think her days on the court were winding down, which she denies.  If Ginsberg remains on the court for at least another year or so, President Obama's last chance to get a nominee through the Senate before the 2012 presidential election will be defeated.

DNA Samples of Arrestees:   Dan Hinkel of the Chicago Tribune has this article on the growing controversy about some states' laws requiring DNA samples from all persons arrested.  23 states currently impose such a requirement, while others require samples only from those actually convicted of a crime.  Some civil liberties advocates oppose the procedure, summing it up as a "Big Brother" tactic.  Supporters argue, however, that for those who haven't committed a crime - i.e. those who don't have a DNA sample sitting in a cold case file somewhere - collection of a sample upon arrest would have no consequences.  Bringing light to this debate, Illinois prosecutors today dropped murder charges against Jerry Hobbs, who has been behind bars for five years for the stabbing deaths of his daughters.  Fortunately for Hobbs, Virginia is one of the 23 states requiring DNA samples from arrestees, and a man arrested earlier this year in the state was a match to sample taken from the crime scene of Hobb's daughters.  If the new suspect had been arrested in Illinois however, a DNA sample would not have been mandated unless a conviction were obtained.

Flurry of Racial Bias Claims From NC Death Row:   The Charlotte Observer reports that the first five cases under the state's 2009 Racial Justice Act have been filed by North Carolina death row inmates.  Under the Act, a capital defendant has an opportunity to prove to a judge that race was a basis in the state's decision to seek the death penalty, and the defendant may rely on county- or state-wide statistics regarding racial disparities in use of the death penalty and peremptory challenges.  If a defendant succeeds, the court can order that a death sentence not be imposed, or vacate the sentence and order the defendant be resentenced to LWOP.  NC's 159 death row inmates have until August 10th to file their claims under the Act.  Kentucky has a similar law.    

For a century now, the Boy Scouts of America has been one of the very few organizations that effectively addresses the true root cause of crime -- lack of a sense of duty and personal responsibility. The WSJ has this editorial on the centennial, the attacks on the Scouts, and the curious fact that President Obama can't find time to address the Jamboree. 

First US Execution of Woman in Five Years:  As Kent noted earlier, a Virginia judge today set a September execution date for Teresa Lewis.  Lewis pleaded guilty to capital murder and was sentenced to death, but later sought to invalidate her plea - an attempt that was rejected by the Fourth Circuit.  If executed, Lewis will be the first woman to be executed in the U.S. in five years, and the first woman in Virginia in nearly 100.  Her defense team plans on appealing the case to the U.S. Supreme Court. 

AZ Appeals Federal Judge's Ruling:  Not surprisingly, Arizona filed an appeal today in the Ninth Circuit, challenging U.S. District Court Judge Susan Bolton's preliminary injunction of the state's controversial immigration law, reports the AP.  AZ Governor Jan Brewer is asking that the appeal be handled quickly, and has indicated her willingness to take the case all the way to the U.S. Supreme Court.

TX Man Gets Death Penalty For Second Time For Beheading Children:  After four hours of deliberation, a Texas jury today sentenced John Allen Rubio to death for beheading his common law wife's three children - a 3-year-old, a 14-month-old, and a 2-month-old - in 2003, as reported by the AP.  Rubio was previously convicted of the murders in 2003 and sentenced to death, but the Court of Criminal Appeals of Texas reversed the convictions based on improperly admitted statements by the mother of the children, who pleaded guilty for her involvement in the crimes and is currently serving a life sentence.  Presiding Judge Noe Gonzales, who claims to have sentenced more people to death than any other judge in south Texas, stated, "I have never seen a crime like this."

Dena Potter has this story for AP on the Sept. 23 execution date for one of the few women on death row, Teresa Lewis of Virginia. She had her husband and his son killed for the insurance money. So why are women such a small portion of death row, not only smaller than their portion of the general population, but also smaller than their proportion of murderers?

Women usually don't commit torture murders, they aren't serial killers and often don't have a history of other violent crimes compared with men who get sentenced to death, said Richard Dieter, executive director of the Death Penalty Information Center. They also typically kill someone they know.

"I think it's those facts, rather than just gender that make the difference," he said.

You could have knocked me over with a feather when I read that. The Death Penalty Information Center actually gave out correct information on the death penalty. There is a first time for everything, I guess.

At SL&P, Doug Berman has a post titled, "New research suggests race of victim impacts NC death penalty administration."  The post links to and quotes this AP article on one more race-and-death-penalty study by the notorious Pierce and Radelet.

These are the same guys who claimed to find racial "disparity" in California death penalty cases even after controlling for the aggravated nature of the homicides. If you read the actual study, though, you find that their "control" was simply to count the number of "aggravating circumstances" with no attempt to account for the fact that some circumstances are far more weighty than others. If the perp. is a mass murderer, that is one aggravating circumstance. If the murder was committed in the course of a commercial burglary, that is also one circumstance. These two cases are equal in P&R's methodology, so if they are prosecuted differently and the races are different, that is evidence of discrimination.

That measure of aggravation is so crude, it is kind of like walking into the forensic lab and seeing a technician measuring the caliber of a bullet with a balsa wood yardstick from the paint store. Um, shouldn't you be using a micrometer?

So how does the NC study control for the highly relevant, powerful factor of the murderer's prior crimes? It doesn't. Not at all. Zip.

The fact that renders the study's conclusion worthless is revealed near the end of the story. The incendiary charge that, "A convicted killer is three times more likely to get a death sentence in North Carolina if the victim is white rather than black" is the first sentence.

How crooked does a Congressman has to be before the "self-policing" House brings charges? There actually is a bottom to the pit, believe it or not. The WSJ has this editorial on "The Rangel Standard." The trial of Charles Rangel will be the first since the ouster of the colorful but crooked James "Beam me up, Mr. Speaker" Traficant eight years ago. 

The full text of the Field Poll is now available here. (Prior post is here.) As expected, the second question was, "Which do you prefer as a penalty for someone convicted of first degree murder - the death penalty or life in prison without the possibility of parole?"  If you wanted to give the answer that conforms to current California law (indeed, the law of every U.S. jurisdiction with the death penalty) -- it depends -- you had to break out of the choices offered and volunteer your own. Real support for an answer is far greater than the number who volunteer it in this way.

A stunning result in this poll is the apparent closing of the racial gap in attitudes on the death penalty. On the basic question, polls have generally shown African-Americans about equally divided, but this one comes in with a whopping 63-28 support. This could be a generational shift. Opposition may be stronger among African-Americans old enough to remember the bad old days.

A new field poll shows continued strong support for the death penalty in California, 70-24 on the basic question. Bob Egelko has this story in the SF Chron, and Michael Gardner has this story in the San Diego Union-Tribune. 

Nationwide over the last several years, when the question is badly worded to ask whether voters favor death or LWOP for first-degree murder, implying they must choose a single punishment for all murders, they split down the middle.  Today's poll as reported in the news stories appears to be consistent with this trend as well.  I will post the exact wording of the question when it is available on Field's site.

The other side loves to crow that they actually pull even on this question. I find it revealing that they can't get a clear majority even when the wording is skewed to the max in their favor.

Former AG Michael Mukasey has this op-ed in the WaPo responding to the Sullivan-Freeh proposal to form a US District Court in Guantanamo Bay for the trial of terrorists. The trial judge of the 1995 embassy bomber case still believes that military commissions are the way to go.

Among other problems, Mr. Mukasey cites the Sixth Amendment requirement of "an impartial jury of the state and district wherein the crime shall have been committed...," which he interprets as requiring juries from the districts where the planes crashed.  I'm not sure that is a big problem, given that much of the crime -- and all of the defendants' acts in the crime -- occurred overseas. The law has long provided for foreign-committed crimes to be tried in stateside districts with domestic juries, and multijurisdictional crimes can be tried in any of the several venues. The venue for a foreign-committed crime is the district where the defendant is first brought after his capture, which would indeed be Gitmo if Gitmo were a district. But it's not.

A potentially thornier problem is the next phrase, "... which district shall have been previously ascertained by law." That seems to me to be a flat prohibition on creating a new district or expanding an existing one ex post facto to try a case in an Article III court with a jury from a district that didn't exist before.

So if we can't draw the jury from Gitmo itself, and if we can't fly the jurors down from New York, for the reasons Mr. Mukasey discusses, what is left? How about a technological fix?  Have the jurors in New York with a big television screen watching the trial being conducted in Gitmo. Or maybe we could have multiple television screens. Have the jurors in a courtroom and put a screen where each of the players would be sitting -- one for the judge, one for the witness, one at each counsel table -- and have a dedicated camera for each screen.

Eugene Sullivan and Louis Freeh propose creation of a Federal District Court for Guantanamo Bay in this WaPo op-ed.  Sullivan is a former CJ of the Court of Appeals for the Armed Forces; Freeh is a former district judge and FBI Director. Their proposal would provide an Article III court and jury for trial of the terrorists without the security problems of the Administration's initial proposal of holding the trials in New York.

About that jury....  District courts generally draw their juries from adult citizens who are residents of the district.  In the case of Guantanamo, that would be military personnel, civilian employees of the military, and their families.  Given how small that population is, the chances of being tapped for jury duty would be far greater than anywhere else in the country.  And, of course, you will probably get a jury that leans more to the prosecution viewpoint than in any other district.

The idea is not as loopy as it seemed at first blush.  We should insist, though, that the legislation creating the district also plug the single-juror veto loophole that the Supreme Court read into the federal death penalty law in Jones v. United States, 527 U.S. 373, 380-381 (1999) and codify the interpretation that the Fifth Circuit gave in the same case, 132 F.3d 232, 242-243.  No more terrorists should escape the death penalty the way Zacharias Moussaoui did, with the opinion of one juror overriding the opinions of the other eleven.  (See posts here and here.)  We would never allow a vote of 11-1 for conviction to be an acquittal. Why do Congress and some state legislatures allow the same thing at the penalty phase?

Off-topic but interesting:  Debra Saunders has this column on Australia's new Prime Minister Julia Gillard and how her personal life is not much of an issue. 

Following up on my post on the retirement of Cal. CJ Ronald George, here are some ideas for the next CJ (as well as the Associate Justices and the Judicial Council) to consider regarding fixing California's death penalty.

First, they can simply stop allowing the defense bar to drag out the record certification process and the briefing of capital appeals. Enforce the deadlines and stop giving so many extensions.  Effective representation does not require briefing every conceivable issue, Jones v. Barnes, 463 U. S. 745 (1983), and, no, death is not different in this respect.

Second, reduce the time limit for filing the habeas petition to one year from appointment instead of three. Congress thinks one year is enough. See 28 U.S.C. §2255(f). Virginia gives an even shorter time. Three years is preposterous.

Third, automatically refer every capital habeas case to the original trial judge with directions to expeditiously appoint counsel, complete discovery, conduct any necessary evidentiary hearing, and write a report with findings and recommendations, like the federal magistrate judges do.  It would be a lot easier to get the cases through federal habeas if we had written findings and opinions instead of Cal. Supreme's present "postcard denials."

Fourth, amend the rules on counsel qualifications to expand the pool of qualified attorneys. California's standards are among the most restrictive in the nation, and we are getting little in return for this unnecessary restrictiveness.

Fifth, require every attorney taking appointments in noncapital felony appeals who has the requisite experience to accept capital appointments as well. The appellate projects are so flush with attorneys wanting to do noncapital appeals that they are turning down applications from qualified attorneys in order to keep the ones on their present lists fully employed. Require taking capital cases as well as the price of admission to the club.

All of these measures can be taken by the judiciary alone. We at CJLF urge the Governor to appoint a new CJ with the courage and determination to make this system work.

This just leaves me speechless.  Here are the first few paragraphs:

 

President Obama has not fulfilled his pledge to close the detainee prison at Guantanamo Bay, but he has brought Skype, Playstation3 and "life skills" classes to the detainees at the island facility.

While the 181 men being held in the prison wait to learn their fates after the administration fell through on its January 2010 deadline to move them out,  90 percent now live in a communal environment that includes Skype, the online video chat service, and access to a 17,000-book library. 

That's up from 40 percent of detainees a year ago. 

The "Twilight" series, a hit among so-called "tweens," is also popular with detainees, the camp's "librarian" said.

 

They try to kill us; we give them hit movies.  Can 3D be far behind?

Hatch Opposes Kagan:    In an OpEd published at National Review Online, Senate Judiciary Committee member Orrin Hatch explains his previously announced decision not to support Obama Solicitor General Elena Kagan's nomination to the United States Supreme Court.  "Elena Kagan's record shows that her primarily academic and political experience and her activist judicial philosophy make her inappropriate for serving on the Supreme Court," wrote Senator Hatch.  To support his position  Hatch cites Kagan's characterization of Justice Thurgood Marshall's view that the Constitution should be interpreted to safeguard the interests of people who had no other champion as a "thing of glory," and that, as Dean of Harvard Law School, she praised activist Israeli Justice Aharon Barak as the judge who best represents the rule of law.  The piece also reviews other positions Kagan took while serving at Harvard and with the Clinton administration.     

Felons for Franken:  A story by Fred Barnes of Fox News reports on a study which has concluded that comedian turned Senator Al Franken's 2008 election margin of 312 votes may have been cast illegally by convicted felons.  While Franken's election has been certified and is final, the new information showing that it may have been fraudulent drew no response from the Hennepin County Attorney's Office, the state's largest.  But Phil Carruthers a lawyer with the Ramsey County Attorney's Office said the information is being taken "very seriously" and that the Minnesota Majority, which conducted the study, "had done a good job in their review."   "What we did this time is irrefutable," said the group's Executive Director.  "We took the voting lists and matched them with conviction lists and then went back to the records and found the roster lists where voters sign in before walking to the voting booth, and matched them by hand.  The only way we can be wrong is if someone with the same first, middle and last names, the same year of birth as the felon, and living in the same community, has voted. And that isn't very likely." 

The Summer's First Riot:  Hundreds of rioters tore up downtown Oakland Thursday night after a Los Angeles jury convicted Bart police officer Johannes Mehserle of involuntary manslaughter for the Jan. 1, 2009 shooting death of Oscar Grant, according to this story by San Francisco Chronicle reporter Henry K. Lee.  Most of the damage, which included the setting of fires, spraying graffiti, breaking store front windows and doors, and looting,  occurred in a six block area near City Hall. This morning the city's police chief reported that 3/4 of those arrested were not Oakland residents.  Indicative of the mindset of the protesters were statements such as "Kill all Cops,"  "Riot for Oscar,"  and "Say no to work, yes to looting," spray painted on building walls.   NPR writer Richard Gonzalez reports that the Justice Department's Civil Rights Division will review the case. 

Death Sentence Upheld:  More Oakland crime news.  Chronicle writer Bob Egelko reports that the California Supreme Court has upheld the death sentence of Gregory Tate for the brutal 1988 murder of social worker Sarah LaChapelle.  The victim's body suffered 24 stab wounds and 28 puncture wounds.  When her son discovered her, she had a butcher knife and a barbeque fork sticking out of her body and her ring finger had been cut off.  The decision  notes that Tate was found with the victim's car, belongings, and blood on his clothes.  His initial alibi was that a man named Fred killed the victim and loaned him the car.  The story changed when police informed Tate that Fred had been in jail at the time of the murder.  Among his claims on appeal, Tate attacked challenges to several potential jurors, claimed that he was tricked into waiving his Miranda rights, and suggested that the prosecutor's facial expressions constituted misconduct. 

This is not a political blog, but politics affects who sits in the Senate, and who sits in the Senate affects what kind of federal judges and Supreme Court Justices will be confirmed.  This in turn affects, among many other things, what sort of gun rights we have (McDonald) and what the limits of sentencing are under the Eighth Amendment (Graham). 

Thus today's Gallup poll is worth noting.  It reports,

Thirty-eight percent of independents approve of the job Barack Obama is doing as president, the first time independent approval of Obama has dropped below 40% in a Gallup Daily tracking weekly aggregate. Meanwhile, Obama maintains the support of 81% of Democrats, and his job approval among Republicans remains low, at 12%.  *  *  *

Over the past year, Obama has lost support among all party groups, though the decline has been steeper among independents than among Republicans or Democrats. Today's 38% approval rating among independents is 18 percentage points lower than the 56% found July 6-12, 2009. During the same period, his support has fallen nine points among Democrats (from 90% to 81%) and eight points among Republicans (from 20% to 12%).

 

President Obama, of course, won with an overall majority of 53% by taking the independent vote and increasing that part of the electorate represented by young and minority voters.  But with those voters historically showing up at low levels for off-year elections, and with the independents fleeing Obama in droves, the message is clear:  Either such nominees as Goodwin Liu and Robert ("sadism is a mitigating factor") Chatigny get confirmed in the next six months, or not at all.

 

 

 

We finally have a transcript of Day 2 of the Kagan confirmation hearings. Here is her exchange with Senator Durbin on the death penalty:

Holder Accused of Bias:  A story from Fox News reports that a former Justice Department attorney has accused Attorney General Eric Holder and political appointees in the Civil Rights Division of ordering him and other lawyers to drop charges against the New Black Panther Party. The charge was for violating the Voting Rights Act by threatening and intimidating voters in Philadelphia during the 2008 general election.  In an OpEd piece in last Friday's Washington Times, J. Christian Adams wrote, "Based on my firsthand experiences, I believe the dismissal of the Black Panther case was motivated by a lawless hostility toward equal enforcement of the law."  Adams, now a lawyer in Virginia said the voter intimidation case against the Black Panthers was  "the simplest and most obvious violation of federal law I saw in my Justice Department career."  In a written statement, a Justice Department spokesperson dismissed Adams' claims as a "good faith disagreement."   Adams notes that, at a meeting with one of the Division's senior deputies to discuss dropping the charges, the former Voting Section chief Christopher Coates became so angry that his supervisors had refused to even review staff memos on the facts supporting prosecution, that he threw them at the deputy.  The department subsequently removed all of Mr. Coates' responsibilities and sent him to South Carolina.

So Adam Liptak writes in the NYT. I have a different view.

Last June, the Supreme Court term ended with restraint and a cliffhanger, as the court left the Voting Rights Act intact and ordered re-argument in Citizens United, the big campaign finance case.

A year later, the profile of the court led by Chief Justice John G. Roberts Jr. is fundamentally changed. Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.

Really?  Let's look first at the criminal cases, the ones I know the most about.

Repeat Felon Sought for Killing Cops:  Florida police are searching for 24-year-old Dontae Rwshawn Morris, wanted for the early morning murder of two Tampa police officers during a traffic stop.  An AP story by Tamara Lush reports that the stop occurred at 2:15 am when officers noticed a red Toyota Camry without a license plate.  A man and woman were in the car when the officers approached, and the man was identified as Morris, who was wanted on a bad check charge.  A few minutes after the stop a passerby called 911 to report that the two officers were down.  Officer Jeffery Kocab is survived by a wife nine months pregnant with their first child.  Officer David Curtis was the married father of four boys.  Morris, who had been in prison twice for dealing cocaine, had been out for two months.  In 2006 Morris beat charges of attempted murder, aggravated battery and attempted robbery.  In too many states criminals like this are being released early to save money.

NAACP Backs Legalizing Pot:  Noting that blacks are disproportionally arrested for marijuana crimes, the NAACP of California announced that it supports California Proposition 19, which legalizes the possession and cultivation of marijuana for personal use.  AP writer Marcus Wohlsen reports that the NAACP announcement has outraged a coalition of black religious leaders.   Coalition President Ron Allen said the civil rights group's position disregards the harm to the black community caused by drugs.  "The NAACP does not represent the African-American community when it comes to legalizing marijuana," Allen said.  The Regulate, Control and Tax Cannabis Act of 2010 has qualified for California's November 2, 2010 general election ballot.    

 

Come November, the death penalty debate is going to get a shot in the arm, so to speak.

Doug Berman reports on SL&P that the well-tattooed former drug user, now local Houston judge, Kevin Fine, will convene a hearing November 8 on whether the death penalty is forbidden by the Eighth Amendment under the theory that it presents too grave a risk that innocent people will be (and have been) executed.  Doug quotes a Texas newspaper report as saying:

Fine initially granted the motion [to forbid the death penalty] in March, declaring the law unconstitutional because he believed it is safe to assume innocent people have been executed.  He also questioned whether society, considering the recent history of death row inmate exonerations, can continue to ignore this reality. 

 

There are at least three problems immediately evident here.  One is that "this reality" is no such thing.  There is not a single case in at least the last 40 years in which any neutral body  -- a court or anything else  --  has found that an innocent person has been executed.  The shrillness of these executed-but-innocent claims is matched only by their mendacity, as Justice Scalia demonstated in his devastating concurrence in Kansas v. Marsh.

Second, it's a mystery why the defendant in the case before Judge Fine should benefit, on supposed innocence grounds, from proof, if there were any, that an innocent person had been executed in a different case.  Absent a showing that the present defendant is arguably innocent  --  and no such showing has been made to my knowledge  --  an innocence error elsewhere is irrelevant.  The defense argument here is to be taken no more seriously than an argument that, because innocent people have sometimes been convicted and imprisoned, imprisonment in every case violates the Eighth Amendment.

But it's the third reason that really rings the bell in this case, and shows what a con job it is.

There's a good deal of hand-wringing going on about the United States as "incarceration nation." This is typically followed by a call for more "humane" or "creative" sentencing such as counseling and anger management.  These represent more enlightened options for the much-ballyhooed "first-time, non-violent" offender  --  which apparently means all of them, since the "incarceration nation" crowd is seldom able to locate an inmate who might actually be dangerous.  Counseling and anger management will do.

Hence this delightful story from near my hometown:

 

ALEXANDRIA, Va. (AP) -- A former priest and anger-management counselor who pulled a gun in a traffic dispute on two men who happened to be U.S. Marshals has been sentenced to a year in prison. Fifty-seven-year-old Jose Luis Avila of Annandale pleaded guilty earlier this year in U.S. District Court to assaulting a federal officer.

In January, Avila was driving by the marshals near his home. He honked his horn because he believed they were standing in the road. When he thought one of the marshals made an obscene gesture at him, he pulled out a loaded handgun.

The 12-month sentence was in line with what prosecutors had sought. Defense lawyers wanted probation or time served; Avila has been jailed since January.

Avila has also been ordered to undergo anger management.

 

Honestly, you can't make up stuff like this.

The Supreme Court handed down its three honest services opinions this morning (Skilling, Black and Weyhrauch).  By far the most important is the Skiling case.  Seldom has a defendant suffered a more devastating win.

Skilling, it will be recalled, was one of the Enron executives who made a fortune short-selling the stock while lying to shareholders and employees about Enron's true financial condition.

Skilling won what was certainly the most hyped part of the case.  That is, he won the vacating of his conviction for conspiring to violate the honest services statute, on the ground that the conviction came about under what the majority decided was an excessively broad construction of the law.  But that is pretty much as far as it went for Skilling.  The conviction was not reversed; it was remanded to the lower courts to determine whether the error was, against the backdrop of the other massive evidence of Skilling's deceitful behavior, harmless.  
 
Almost everything else in the case was bad news for Skilling and other honest services defendants.

Today the Supreme Court dropped the other shoe left from Burton v. Stewart, 549 U.S. 147 (2007).  When a state prisoner gets federal habeas relief on punishment but not guilt and is then resentenced, does the successive petition rule bar any claims in a new habeas petition that could have been raised in the first one?

No, says the Court in Magwood v. Patterson. Interesting lineup on this one. Justice Thomas writes the opinion, joined by Justice Scalia in full and by Justices Stevens, Breyer, and Sotomayor in all but one part. Justice Kennedy dissents joined by CJ Roberts and Justices Ginsburg and Alito. Justices Breyer, Stevens, and Sotomayor don't like the part of Justice Thomas's opinion that they think tends to undermine Panetti v. Quarterman, 551 U.S. 930 (2007).

I expect to have more to say on this interesting opinion later.

Homebuyer Tax Credit for Inmates:  As noted in Steve Erickson's post earlier today, over the past year our government gave about $9 million of your money in the form of homebuyer tax credits to 1,295 prison inmates, including 241 who are serving life terms.  AP writer Stephen Ohlemacher reports that an Inspector General at the Treasury Department found that roughly 14,100 people fraudulently took $27.7 million in tax credits as first-time homebuyers, in one case 67 people took the credit for supposedly buying the same home.  None of the inmates took the credit on a joint return, eliminating the chance that a spouse actually did purchase a home. 

Innocence Hearing in Davis Case:  The U.S. District Court in Savannah heard argument and reviewed evidence today from attorneys representing condemned cop-killer Troy Anthony Davis.  Last August the U.S. Supreme Court ordered the lower court to hear Davis' claims that he did not murder Savannah police officer Mark Allen MacPhail in a Burger King parking lot 29 years ago.  A story by Bill Rankin in today's Atlanta Journal Constitution reports that for the hearing the high court required that the evidence presented  "clearly establish" Davis' innocence.  In his dissent to the order, joined by Justice Thomas, Justice Scalia called the hearing a "fools errand" because Davis' innocence claim is "a sure loser."  Anti-death penalty groups have been holding vigils in Savannah and Atlanta in support of Davis.  For the record, Officer MacPhail, the 27-year-old father of two, was off duty when he heard cries from a homeless man being pistol whipped in a Burger King parking lot.  As MacPhail ran to the victim's aid, he was shot three times by a man identified by witnesses and other evidence as Davis.

Krissah Thompson reports in the WaPo:

The first of several studies looking into the arrest last summer of Harvard professor Henry Louis Gates Jr., which attracted the interest of President Obama and became a national controversy, essentially clears the Cambridge, Mass., police department of the charge of racial profiling.

The report by the New England Center for Investigative Reporting, which was published Thursday in the Boston Globe, bases its findings on a review of the department's handling of disorderly conduct cases from 2004 to 2009.

Of the 392 adults arrested for disorderly conduct, 57 percent were white and 34 percent were black. That racial breakdown almost exactly mirrored the racial composition of the population that Cambridge police investigated for disorderly conduct, the center's analysis shows.

Note that is population investigated for the offense in question, not the general population. Rochelle Sharpe and Maggie Mulvihill explain in the Boston Globe: