Results matching “first”

Just punishment for the kidnapping, rape, and murder of 11-year-old Sarah Patterson was finally carried out yesterday, 12 years after the crimes. Michael Graczyk has this story for AP.

As noted in my post yesterday, the claim that the perpetrator was retarded was disproved by the pre-Atkins IQ tests of 78, 80, 86, and 83. They average 81.75, far above the retardation threshold of 70, and even the lowest score exceeds the threshold by more than the margin of error. As Steve Erickson explained, the post-Atkins score of 68 has far less probative value. The AP story says, "Tests administered to Woods put his IQ anywhere from the 60s to the 80s. An IQ of 70 is considered the threshold for mental impairment."

There has been considerable discussion in the blogs about Justice Stevens' complaints of the cruelty of delay in the Tennessee capital case of Johnson v. Bredesen. Links to some of the posts are in yesterday's Blog Scan.

One point that needs further exploration is Justice Stevens' claim that "Johnson bears little, if any, responsibility for this delay." The reason he says that is that the prosecution did not disclose certain evidence until a change in state law gave Johnson access to it. Much of the subsequent litigation involved that evidence. But Justice Stevens cites only the Court of Appeals dissent to support his thesis that "if the State had not withheld exculpatory evidence ... Johnson would not have waited for 11 years on death row before the State met its disclosure obligations." (Emphasis added.) Citing only the dissent is a red flag that we need to check the majority opinion. Did the State default on any disclosure it was obligated to make?

First, it is important to note a commonly misunderstood aspect of the disclosure requirement of the Brady v. Maryland line of cases.  The Sixth Circuit majority summarizes it well in footnote 3 of its opinion.

We note the Kyles Court's iteration of Justice Blackmun's statement in Bagley that "the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. We have never held that the Constitution demands an open file policy . . . and the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate." 514 U.S. at 436-37 (internal citations omitted).

Thus, when a court finds that evidence not disclosed was not material, i.e., very unlikely to have made a difference, as every court that reviewed Johnson's claim did, the court is not making a finding of "harmless error."  It is finding no error at all.  If the evidence was not material, the prosecution had no federal constitutional obligation to turn it over.

So, Justice Stevens' assertion that this case involved "state-caused delay" through supposed violation of the state's "disclosure obligations" rests on a premise that both the state and lower federal courts rejected and the Supreme Court chose not to review.  Justice Stevens says, "The merits of Johnson's Brady claim are not before us; we denied certiorari on this issue several months ago." Yet his laying of the blame for the delay assumes the critical issue on the merits of the claim and assumes it in a way that is contrary to the final adjudication of the claim.

If Justices Stevens and Breyer are really this concerned about delay (and I am too, for different reasons), there is a great deal they can do about it. I'll leave that to another day, though.

Federal Use of Death Penalty Stays the Same:  Doug Berman posts on Sentencing Law and Policy that USDoJ is seeking  the death penalty at roughly the same rate under the Obama Administration as it did under the last Bush Administration AG. Berman links to an NPR article by Ari Shapiro discussing Attorney General Eric Holder's approval of  prosecutors seeking  the death penalty in 7 out of 61 cases - an 11% approval rating.  Shapiro notes that Holder has said he is not a proponent of the death penalty, yet, according to the Federal Death Penalty Resource Center's numbers, this is roughly the same rate at which former Attorney General Michael Mukasey approved federal use of the death penalty - 13%.  Both numbers are still very low, considering that 65% of Americans generally approve use of the death penalty and 57% believe it is fairly administered.  Holder's rate is only half that of the first Bush Administration AG, John Ashcroft.

Petitions to Watch:  Erin Miller posts SCOTUSblog's "Petitions to Watch" for the Supreme Court's conference tomorrow.  On the list are two habeas cases, Ryan v. Scott (09-274), and Ricci v. Kamienski (09-395).  Kamienski involves the 1987 murder conviction of Paul Kamenski, and asks the Supreme Court to resolve the standard of review for federal appellate courts analyzing a sufficiency-of-evidence claims in a habeas petition.  The Third Circuit reviewed the record and concluded "that no reasonable juror could conclude that the evidence admitted against Kamienski at his trial established that he was guilty of murder or felony murder beyond a reasonable doubt...."   The second case, Ryan v. Scott, asks the Supreme Court to address the Ninth Circuit's holding that an Arizona state rule did not provide a basis for an adequate state procedural bar. Specifically, the court held that the rule was not "regularly followed or consistently applied' by the Arizona state courts," based on one Arizona Court of Appeals decision...."  The facts of Scott will be familiar to regular readers of our site.  The Respondent in the case, Roger Mark Scott, was a part of the conspiracy to murder 4-year-old Christopher Milke, the victim in our brief Schiro v. Styers.

Bloggers Comment on Porter v. McCollum:  Both Jonathan Adler and Ed Whalen have raised interesting points regarding the Supreme Court's recent decision in Porter.  On Volokh Conspiracy, Adler comments that the Supreme Court has reversed three ineffective assistance of counsel claim's this term - the most recent being Porter v. McCollum. He writes that each case found the appellate court had been "too solicitous" of the defense, and each case was decided without oral argument. For Adler "it would appear the Court is quite unhappy with how appellate courts are handling ineffective assistance claims."  At NRO's Bench Memos, Whalen points to language in the decision that he believes recognizes an unborn human being as a child.   

"Evidence Theory and the NAS Report on Forensic Science": CrimProf Blog editor Kevin Cole posted a link today to Michael S. Pardo's upcoming article in the Utah Law Review.  In his article, the University of Alabama Law School Associate Professor of Law discusses the National Academy of Sciences' recent report on forensic science and its recommendations.  Pardo writes that although many of the report's recommendations "focus on activities that take place outside of legal proceedings," it also invites courts to respond and improve upon the law's use of forensic evidence.  He believes that courts should focus less on the admissibility of the evidence, and instead examine the sufficiency of the evidence.  

Court Comments on Constitutionality of Death Row Delay:  Lyle Denniston writes on SCOTUSblog that about an hour before Cecil C. Johnson, 53, was put to death by lethal injection today, Justice Stevens, in an opinion that Justice Breyer joined, commented on what Justice Stevens called the "underlying evils of intolerable delay" in Johnson's case.  Johnson was convicted and sentenced to death for three brutal murders he committed in the course of a robbery, he spent 29 years on death row.  According to Justice Stevens, "Johnson bears little, if any, responsibility for this delay."  For those familiar with Justice Stevens' stance on the death penalty, his opinion today, that he "remain[s] steadfast in my view 'that executing defendants after such delays is unacceptably cruel,' " is no surprise. Of course, neither is Justice Thomas' response to the Stevens opinion.  Justice Thomas rejects Justice Stevens' "novel" argument that "lengthy and inhumane delay" would violate the Eighth Amendment's prohibition on "cruel and unusual" punishment.  He writes, "I was unaware of any constitutional support for the argument then."  Marcia Coyle also discusses the "Death Clash at the High Court" on Blog of Legal Times.   Update: Ed Whelan has this post on the opinions at Bench Memos, titled "Justice Stevens' Bizarro World."

Shifting Blame for Clemmons Tragedy:  At Sentencing Law and Policy, Doug Berman writes that the more he "think[s] about [Clemmons'] case and hear[s] details about Mike Huckabee's 2000 clemency decision, the more I want to be sure some blame gets directed toward the poor state of modern re-entry services and the inadequate use of sophisticated risk assessment tools."  Berman links to a Seattle Times article by Nick Perry, Maureen O'Hagan, Jonathan Martin and Ken Armstrong that reports that Maurice Clemmons began to become mentally unhinged back in May.  The reporters write that on May 9th something set Clemmons off and he began throwing rocks at houses, cars and people. He was arrested, let out on bail, and then rearrested in July for failing to appear for his May arraignment.  Clemmons was eventually paroled on November 23rd.  In his blog post, Berman comments that this series of events reinforces his view that states and the federal government can do a better job sorting and monitory the past offenders that present the greatest risk to public safety.  He also advises that we "should not be too quick to lay blame principally on Huckabee for what seems to have been an understandable clemency call back in 2000."

Human Trafficking in North Carolina:  Robin Sax blogs on Women in Crime Ink writes that "[h]uman trafficking is one of the most hidden crimes," and occurring, with very little recognition, right here in the United States.  She posts on the case of Shaniya Nicole Davis, a five-year-old sold as a sex slave by her mother in Charlotte, N.C.  Sax uses the case to applaud the work of local prosecutors for calling this crime "what it is" - human trafficking.  She believes that while human trafficking may be more difficult to prove, the crime must be recognized for what it is because "the first step toward stopping it is to acknowledge that it exists."

You Never Know Who Will Show Up for Jury Service:  Ashby Jones posts on a curious incident in a Birmingham, Alabama courtroom.

SL&P has this post, linking to this post at Stand Down Texas, regarding Bobby Wayne Woods, who has an appointment with the Grim Reaper tomorrow. Reading these posts, you might think that Woods has a substantial argument that he is mentally retarded and hence ineligible for execution. Jumping to that conclusion without reading the opinions in the case would, of course, be foolish. Here are two of the opinions: the Fifth Circuit's 2007 opinion on the retardation issue and its 2002 opinion disposing of the pre-Atkins issues. I've put the facts of the crime after the jump.

A diagnosis of mental retardation requires three elements. Somewhat simplified, they are sub-70 IQ, poor functioning in society, and being that way before 18 (as opposed to, e.g., later brain damage). Let's look at the IQ first. Here are Woods' IQ test results:

1st grade: 78 (WISC)
4th grade: 80 (WISC)
1972 (age 7): 86 (Cal. Short Form)
1998 (age 33): 83 (short form upon entry to Tex. prison system)
recently: 68 (WAIS-III, during Atkins litigation)

Which of these tests is the least reliable? The last one, obviously. It is an outlier from the others and it was given at a time when Woods had the strongest possible incentive to do poorly on a test where effort is essential to validity. From the Fifth Circuit's summary of the state court opinion:

Based on this evidence, the state habeas court concluded that Woods failed to prove each required element by a preponderance of the evidence. Regarding Woods' general intellectual functioning, the court noted, in part, the existence of four IQ test scores placing Woods above the seventy-point cutoff. It also found compelling the fact that Dr. Schmitt, the defense's expert, was the only person to test Woods' IQ below seventy and the only expert who has tested Woods and concluded that he is mentally retarded. The court further noted that Woods' lowest IQ score was attained when he had an incentive to perform poorly, but Woods' IQ scores were higher when he had no such incentive.

Bingo. That is sufficient to dispose of the retardation claim. But there is more. See the opinion for details.

Oh, and what did the sainted Mr. Woods do, BTW?

Some Point and Counterpoint Arguments to Legalizing Marijuana:  Ashby Jones writes on Wall Street Journal's Law Blog, that New Jersey could be the next state to allow residents to use marijuana, when recommended by a doctor, for relief from serious diseases and medical conditions.  According to Jones, New Jersey's Senate has approved the bill and the state Assembly is expected to follow. If the bill reaches the desk of Governor Jon Corzine before he leaves office it will probably become law.  A story by Suzanne Sataline provides more details. Instead of focusing on the politics surrounding the New Jersey legislation, Jones' post focuses on potential tax revenues states might take in were marijuana legalized and regulated.  Jones provides quotes from a "point/counterpoint" debate on whether legalizing and taxing marijuana is really worth the cost.  Stephen Easton writes for the "pro" side that taxing marijuana "could raise $40 billion to $100 billion in new revenue."  Bob Stutman then points out "studies show that the U.S. collects about $8 billion yearly in taxes from alcohol. The problem is, the total cost to the U.S. in 2008 due to alcohol-related problems was $185 billion..."

Sex Offenders in Nursing Homes:  At Sex Crimes, Corey Rayburn Yung provides a link to a Chicago Tribune article that reports many sex offenders living in Illinois' nursing homes are not on the state's sex offender registry.  The article, by David Jackson and Gary Marx, found that only 59 of the 192 sex offenders in Illinois nursing homes -- or less than one in three -- were listed on that online state registry.  The two report that state investigators have documented more than a dozen instances since 2007 in which nursing homes failed to notify local law enforcement that they housed a convicted sex offender, as required by law, or failed to implement care plans to monitor and treat sex offenders inside the facilities.  Jackson and Marx also note that in some cases unregistered offenders have allegedly molested vulnerable residents and even staff. 

Department of Justice Census on Public Defenders' Office:  The American Constitution Society posts a link to the Department of Justice's Census for Public Defender Offices, 2007, and a description of the report by Matt Kelly, the Online Communications Director for the Innocence Project.  The report looks at public defender office staffing, caseloads, expenditures, and standards and guidelines used by the nearly 1,000 public defender offices found across 49 states and the District of Columbia.  Kelly writes that Public Defender Offices have had it rough this year because of staffing cuts, he writes, "BJS study found that the 17,000 attorneys in 2007 were aided by 11,000 support staff - from secretaries to file clerks to investigators and paralegals."  He mentions that prosecutors' offices are feeling the pinch too.  A 2005 DOJ report found that half the prosecutors' offices Nationwide employed 9 or fewer people and had a budget of $355,000 or less.

Amendments to Federal Rules of Appellate Procedure Take Effect Today:  Howard Bashman writes on How Appealing that "[t]oday is the first day of the so-called 'days are days' approach to calculating time."  Now, when the rules speak of "days" in the calculation of time, the rules will mean calendar days regardless of the length of the period at issue. The amendments are available here.  

Supreme Court News:  The Wall Street Journal reports that today the Supreme Court threw out an order by the 2nd Circuit Court of Appeals to disclose the photographs of abused detainees.  The Court cited a recent change in federal law that allows the pictures to be withheld.  At first, the Obama administration supported the release of the pictures, but then switched positions because the pictures could cause anti-American sentiment overseas and endanger troops.  The Court ordered the second circuit to take another look at the lawsuit filed by the American Civil Liberties Union (ACLU).  This case is discussed by Kent Scheidegger here.  The Court has also rejected an appeal from a California death row inmate Kevin Cooper.  Cooper was convicted of murdering four people in 1983.  In 2004, within hours of his execution, the Ninth Circuit halted the execution and ordered genetic testing.  Cooper claimed that the DNA evidence would prove his innocence.  The testing was done, and the Ninth Circuit agreed that the evidence did not prove Cooper's innocence.  More on the Cooper case is available here. 

Violent Criminal History for Suspect in Officers' Killings:  New York Times writer William Yardley reports that the "person of interest" in the shooting deaths of four uniformed officers has an "extensive, violent criminal history."  Clemmons had previously been incarcerated in Arkansas, but his lengthy prison sentence was commuted by Mike Huckabee, according to the Seattle Times.  Recently, Clemmons had been arrested in Pierce County, charged with assaulting a police office and raping a child.  Clemmons allegedly walked into Forza Coffee Company cafe and then shot and killed Officer Tina Griswold, 40; Officer Ronald Owens, 37; Sgt. Mark Renninger, 39; and Officer Greg Richards, 42.  The coffee shop was a well known "safe spot" for Lakewood officers.  Ed Troyer, spokesman for the Pierce County Sheriff's Office, says "It's a place where they can plug in their computers, do reports, work and share intelligence with other police officers and agencies." 

Unsuccessful Enforcement of Jessica's Law: Denise Zapata and Kevin Crowe of the San Diego Watchdog Institute report that more than 70% of San Diego's registered sex offenders are violating state law by living too close schools and parks.  In 2006, California voters approved Jessica's Law, which bars convicted sex offenders from living within 2,000 ft of a school or park.  Authorities blame the lack of enforcement on the vagueness of the law.  Tom Tobin, a clinical psychologist and member of the state Sex Offender Management Board, says, "[t]he initiative itself was so badly written, no one knows how retroactive it is."  California's sex offender law has been challenged by four registered sex offenders, whose case is now before the California Supreme Court.  The men challenging the law were paroled before Jessica's Law passed, but their most recent crimes, which were not sex offenses, landed them on the registry.  The men challenged the law after being told they have to move from their home or go back to jail.  According to Zapata and Crowe a ruling in In re E.J., S.P., J.S. & K.T. is expected in February.  Many California municipalities are waiting for the ruling before enacting their own ordinances that restrict where convicted sex offenders can live.  But some cities are not waiting and have already increased the number of restricted areas a sex offender can live in.  Supporting tougher sex offender laws, Senator George Runner is working towards improving the monitoring of sex offenders. 

Block Removed For Ohio Execution:  The Associated Press reports on a previously blocked execution set for Dec. 8th that can now go forward due to a change in Ohio's lethal injection policies because of a federal appeals court ruling today.  The Sixth Circuit's decision  means that Kenneth Biros will be the first inmate executed under the new one-drug IV injection, with a two-drug muscle injection serving as a backup.  The change in drugs renders Biros' argument, that the state's former policy was unconstitutional, invalid.  The court wrote that,"In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure.  Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect."  Biros' attorney, Tim Sweeney, argued that conducting the execution under the new protocol would be "human experimentation, pure and simple." Kent's post discussing the stay is available here.

"The Bird" Makes Pittsburgh Pay:  Pittsburgh Tribune-Review writer Adam Brandolph reports on the Pittsburgh City Council's recent decision to settle a First Amendment dispute, giving a man who gave 'the bird' to a police officer a total of $50,000. The officer initially cited the man for disorderly conduct for the display, but after the county dropped the charge, motorist David Hackbart sued to recover the cost of defending himself.  U.S. District Judge David S. Cercone ruled that the officer had violated Hackbart's First Amendment right to free speech.  With the onset of the holiday shopping season and this case circling each other, try to avoid the first amendment issue.  Enjoy your bird on Thursday only.

Moratorium on Kentucky Executions:  Lexington Herald-Leader writer Jack Brammer reports on the Kentucky Supreme Court's decision that Kentucky may not execute anyone until it adopts regulations in compliance with the law.  The court ruling came in the case of three death row inmates, Thomas C. Bowling, Ralph Baze and Brian Keith Moore, who were challenging the state's lethal injection protocol.  The court said the state Department of Corrections must follow state-mandated administrative procedures before adopting the current lethal injection process of a three-drug cocktail.  The state's top public defenders, a leading anti-death-penalty group, and a group of independent lawyers are asking the court to allow an American Bar Association review of the implementation of the death penalty in Kentucky.  This process could take 12 to 18 months.  Another article by Brett Barrouquere of the Associated Press can be found here. Update: John Schwartz has this story in the NYT.

Most states limit the defendant's ability to appeal when he pleads guilty. Yesterday, the California Supreme Court addressed one aspect of this limitation in People v. Johnson, S166894:

We granted review to resolve a conflict among appellate court decisions addressing the issue whether a defendant who desires to appeal from a criminal judgment on the ground that counsel rendered ineffective assistance regarding the defendant's request to withdraw a guilty or no contest plea first must obtain a certificate of probable cause. The Court of Appeal below, concluding that a certificate of probable cause was required, dismissed defendant's appeal. We affirm the judgment rendered by that court.

Death Penalty, and Strategy for 9/11 Terror Attacks Trial:  New York Daily News writers Robert Johnson and David Saltonstall report that according to a Daily News/Marist poll  77% of New Yorkers believe that Khalid Sheikh Mohammed and his four accomplices will be found guilty.  Some critics, including Mayor Rudy Giuliani say that having the trial in New York City is too risky, too costly, and gives the offenders too many rights.  Although not everyone believes that the terror suspects should be tried in New York, the decision has been made, and New Yorkers are not planning to let anyone down.  Henry Romer, a 51 year old construction manager in midtown Manhattan says, "[t]hose guys don't stand a chance.  There's no question they'll get the death penalty here."  Calvin Seibert, a 51 year old artist from Chelsea states, "New York will get it done, because the families of the people that died won't let them do anything else.  It's just what you have to do."  Polled New Yorkers may want to impose the death penalty on the terror suspects, but Germany says that it can't be done with evidence they collected.  New York Post writer Adam Nichols reports that Germany is sending a team to observe the trial to make sure the evidence they provided does not help sentence the terror suspects to death.  Evidence on the attacks was handed over to the US by the German government on the condition that the death penalty would not be sought.  It's unclear how essential the German evidence is to the convictions. but the suspects do not seem to be concerned about receiving the death penalty, instead they want to be heard.  The Associated press reports that the five terror suspects plan to plead not guilty in order to declare their displeasure with US foreign policy.  The lawyer for Ali Abd al-Aziz Ali says that the men would not deny their role in the 2001 attacks, but "would explain what happened and why they did it."  Many are worried that the decision to try the suspect in New York will provide them with a propaganda platform. 

Ohio's proposed Lethal Injection Method:  Cleveland's Plain Dealer reporter Aaron Marshal reports on Ohio's decision to change the three drug cocktail for lethal injection to a single injection of barbiturates.  Prison officials plan to use a single injection, and if they can't find a suitable vein the dose will be injected into an inmate's chest muscle.  Associate Director of the Death Penalty Clinic at the University of California-Berkeley, Ty Alper, says, "I think this is something that is pretty well accepted.  It's very similar to the way that animals are euthanized -- there's been a lot of testimony about it, and the effects of the anesthetic are pretty well known."  Kenneth Biros could be the first executed by the new method; he is scheduled to be executed on Dec. 8th.   His execution is on hold after he argued the three drug injection caused pain and is cruel and unusual punishment.  Ohio Attorney General Richard Cordray said in court papers that this new method renders Biros' argument moot.  Comments by Biros' attorney can be found in Lancaster Eagle Gazette.  There are skeptics of this new method.  Stuart Youngner says Dutch doctors have extensively studied the issue for their countries, and concluded the three drug cocktail is the best.

Priority for Backlogged Rape Kits:  Louisville, Kentucky's WLKY writer Steven Tellier reports on the problem of backlogged rape kits and the push to make them more of a priority.  Many times a rape kit is the only evidence linking a victim and their attacker.  But many of these kits go untested for months or years.  More funding would solve the problem.  The backlog problem has been brought to the attention of the US Senate and House of Representatives.  This month, in both houses, bills have been introduced that attempt to increase funding and decrease rape kit backlogs. 

Lauren's blog scan today notes an article by Jules Epstein proposing a "metric" for prosecutors' decision to seek the death penalty. In the article, we find that he is not actually proposed an objective measurement, as one might think from the term "metric."  His main point seems to be that prosecutors should assess the "deathworthiness" of the case as the main issue in deciding whether to seek the death penalty. Well, that is largely what most offices have been doing the whole time.

Strive For Unbiased DNA Database:  Guardian commentary writer, Gavin Phillipson, discusses the incomplete national DNA database and his solution to make solving a crime more than just chance.  DNA evidence is an essential tool to solving crimes, but if a person is not in a DNA database, the evidence will not lead authorities to them.  The British Government is now proposing to keep the the DNA of those never proven guilty for only six years.  Then they will dump it.  Phillipson does not see the government's proposal as a workable solution.  He believes instead of limiting people from the database, they should be including everyone.  According to Phillipson, not only would an all inclusive database "radically increas[e] its effectiveness", but it would also eliminate the claim that the database singles out minorities.   

NY Terrorist Trial: The WaPo has two contrasting pieces on AG Holder's decision to try Khalid Sheik Mohammed et al. in civilian court in New York. Charles Krauthammer blasts the decision, saying it gives the terrorists a second round of propaganda for one deed. "Just as the memory fades, 9/11 has been granted a second life -- and KSM, a second act: '9/11, The Director's Cut,' narration by KSM."  On the other hand, former Bush Administration DoJ officials James Comey and Jack Goldsmith surprisingly make a better case for Holder's decision than Holder did.

Tulsa Police Using DNA to Solve Non-Violent Crimes: Tulsa's KOTV writer Lori Fullbright reports on the success of Tulsa police solving property crime by using DNA evidence.  In the past month, 10 burglaries have been solved with DNA evidence.  Detectives say that you would not believe how much DNA burglars leave at a crime scene.  Sgt. Brandon Watkins says, "Some leave behind clothes; their hat will come off or their gloves come off.  They'll do something to leave behind large amounts of DNA: throw a cigarette down, spit - people leave behind traces." Officers hope that the new method of crime solving will deter crime.

Brain Scan to Determine Guilt or Innocence:  Ingfei Chen writes in the Stanford report that brain-scanning lie detection technology has debuted in justice system.  In two cases, in California and New York, defendants accused of first-degree murder, were able to receive the lesser charge of manslaughter after presenting brain scans that established diminished capacity.  Although brain scans have been used in criminal proceedings, some believe that the science is not reliable enough to be used.  Law Professor Hank Greely stated that maybe society will someday find a technological solution to lie detection, "but we need to demand the highest standards of proof before we ruin people's lives based on its application."  The legal consequences could be a problem.  For example, does a brain scan invade a defendant's right to privacy or the Fifth Amendment Right against self-incrimination.  In United States v. Scheffer, four justices said that a lie detection test, regardless of accuracy, should not be admitted into federal court because it would infringe on the jury's role as the human "lie detector" in the courtroom.  Most likely the evidence of a brain scan will be used to predict recidivism rather than find guilt or innocence.  Parole boards have started to use evidence based on predictions of behavior, and a brain scan could be an effective predictor of recidivism.  Former Justice Sandra Day O'Connor, who is presiding over the Law and Neuroscience research project, says, "Our jails are overloaded, and they are overloaded with people who have committed drug crimes.  So it just becomes enormously important to figure out how people get addicted to drugs and what we can do to sever that connection if we can."      

The University of California Regents have voted once again to increase the "fees."  The fees are really tuition, but they call them fees to maintain the facade that U.C. doesn't charge tuition to California residents. Alan Duke has this story for CNN.

The regents claim this is a last resort with no alternatives left. Oh, really?  They've cut everything that isn't necessary to the core mission of operating a university?

Among the things they should have axed a long time ago is the Death Penalty Clinic at Boalt Hall. The clinic states its "mission is to offer a program that helps students develop outstanding legal skills and to serve clients facing capital punishment." The first part is a legitimate function of a law school clinical program, but there is no reason for it to be solely on the defense side of the ledger. The last part is simply not UC's mission. While taking California cases may be a mere shift of dollars that would otherwise be spent elsewhere in the government, the clinic is not limited to California. The taxpayers and students of California should not be paying to represent death row inmates in others states, and they most certainly should not be paying for an anti-death-penalty advocacy group.

So, regents, before you hike fees another penny, ax this program.

Another place to cut is by not admitting students who are not ready for the university yet.  Some of the student protesters chanted, "We're fired up. Can't take it no more" [sic]. They clearly need a year or two of remedial courses in basic grammar and should go to community college first.

Fact Checking, Morality and the Death Penalty:  Yesterday, Judging Crimes blogger Joel Jacobsen posted his thoughts on Sarah Palin and Stephen Reinhardt.  The connection may not be entirely obvious, but Jacobsen makes his point quickly.  First, Jacobsen takes a look at the criticism that Sarah Palin is getting for not fact-checking her new book.  He then points out that the criticism is unfair when one considers that the media has yet to attack Stephen Reinhardt "despite this weeks ritual Supreme Court per curiam slapdown" in Belmontes.  As Kent pointed out on Monday, the Supreme Court's decision marks the third time the Supreme Court has vacated the Ninth Circuit (and Reinhardt's) decision in Belmontes' case.  Jacobsen argues the "slapdown" occurred because of Reinhardt's take on the facts.  Jacobsen believes that for some judges "their opposition to the death penalty is of such overriding moral significance that the law and the facts don't matter, and in particular the violent death of a 19-year-old girl doesn't matter.  They find it easy to dismiss her suffering..."  Ed Whalen also has a post on NRO's Bench Memos critiquing Judge Reinhardt. 

Thin Line Between Life and Death:  At Women in Crime Ink, blogger Donna Pendergast posts on the gruesome 1989 murders of Wanda and Glenn Tarr by Joseph Passeno and Bruce (Christoper) Michaels.  The two were arrested, after bragging about their "thrill kill" to schoolmates, and sentenced as adults to life in prison without parole.  Pendergast then goes on to discuss Sullivan v. Florida and Graham v. Florida. She argues that while Sullivan and Graham have generated debate on rehabilitation, she believes an "antisocial predator who has spent years or decades in prison is extremely unlikely to be able to reintegrate into society."  She writes, "as a prosecutor, I want [the LWOP for juveniles] tool in my arsenal."  

Electric Chair Execution:  CrimProf Blog links to a Jurist article by Jaclyn Belczyk reporting on the Tuesday execution of Larry Bill Elliott.  Elliott was convicted of a 2001 double murder and chose to be electrocuted by electric chair. Virginia Governor Tim Kaine refused to intervene, and the U.S. Supreme Court denied a stay.  Belczyk writes that the last execution via electrocution occurred in South Carolina in June 2008.

SCOTUS "Academic Round-up":  SCOTUSblog writer David Stras posts that Stefanie Lepore has published "The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General" on SSRN.  The article discusses the Solicitor General's role as a "a special type of amicus" who gets to act as adviser and advocate to the Supreme Court, and respond to the Court's invitation to express the views of the United States in given petitions for certiorari.  It tracks the development of the Solicitor General's role as "the Tenth Justice," and argues the relationship is mutually beneficial for the Court and the S.G. Stras notes that while there are many empirical articles that show the importance of the Solicitor General in persuading the Court to grant cases, Lepore's article is the first article he has read "that actually traces the history of the device to its origins."

"Failure is not an option," Eric Holder declared before the Senate Judiciary Committee, regarding the civilian criminal prosecution of 9/11 mastermind Khalid Sheik Mohammed. A post by Mike Scarcella at BLT is here. In addition, President Obama predicted both a conviction and a death sentence, Mark Sherman reports for AP.

I didn't like the "failure is not an option" expression even when it was new and arguably clever. It has grown even more irritating with age and triteness. Few people choose to fail, and sometimes failure happens despite every possible effort. "All the king's horses and all the king's men..." and all that. What he means, I suppose, is that every possible effort will be made to avoid failure. But will every possible effort from the executive branch alone, which is all he can directly control, be enough?

First, what is "failure" in this case? Anything less than a death sentence is failure. The prosecution of Zacharias Moussaoui was a failure. Can Holder guarantee that the KSM trial will not end like Moussaoui's, despite the President's prediction. No.

As noted in this post, the single-juror veto rule in federal civilian capital cases presents a grave danger of failure. The federal system can and should adopt the California rule that the jury verdict on penalty must be unanimous one way or the other, just as it is on guilt. That requires an act of Congress. If Holder is serious about making every possible effort to avoid failure, he should be pressing hard right now for such an act.

Supreme Court Media Coverage:  This term the U.S. Supreme Court has agreed to hear several crime related cases.  The media and academics have followed suit.  SCOTUSblog's Erin Miller notes in her Wednesday Roundup that last Saturday, C-SPAN aired interviews with the lawyers who argued Graham v. Florida and Sullivan v. Florida.  Also, the Federalist Society's SCOTUScast, posted its "Cert. Granted SCOTUScast Debate" for the Second Amendment case, McDonald v. City of Chicago.  In the debate, George Mason University School of Law Professor Nelson Lund moderates a discussion between Clark Niely, a Senior Attorney for the Institute for Justice (and co-counsel for the plaintiffs in District of Columbia v. Heller), and Kurt Lash, a Loyola Law School Professor.  The two discuss whether the Privileges or Immunities Clause of the Fourteenth Amendment makes the Second Amendment applicable to the States and invalidates Chicago's ordinance prohibiting the possession of handguns in the home.

Attorney General Holder Comments on Criminal Justice System:  Doug Berman posts on Sentencing Law and Policy that AG Holder has recently given "[t]wo notable speeches" on criminal justice and sentencing.  Berman first addresses yesterday's speech at the Financial Fraud Enforcement Task Force Press Conference where Holder announced the launch of an interagency Financial Fraud Enforcement Task Force to combat financial crime.  In his speech Holder stated, "In the tough economic environment we face today, one of this Administration's most important missions is to draw upon all of the resources of the federal government to fight financial fraud in all of its forms."  He believes the new task force will hold criminals accountable and stop future financial meltdowns.  The second speech, given Monday at the Brennan Center for Justice Legacy Awards Dinner, focused on the importance of effective defense counsel, and urged federal, state, and local governments to provide better services to indigent defendants. Holder believes, "that if more Americans knew more about how some of their fellow citizens experience the criminal justice system, they would be shocked and angered...."  Berman notes that he does not always share this belief.  He states that when it comes to to repeat and violent offenders he is not sure "whether many members of the public would truly be 'shocked and angered' about how these defendants experience the criminal justice system."

9/11 Victim's Family Upset Over Civil Trials for Terrorists:  At Blog of Legal Times, Mike Scarcella reports that in a personal conversation with Attorney General Holder, Alice Hoagland, who lost a son when Flight 93 crashed in a Pennsylvania field, told Holder that she takes "great exception to your decision to give short shrift to the military commissions."  She told Holder, ""I think I speak for many 9-11 families when I say that we are heartsick and weary of the delays and the machinations. I am afraid the theatrics are going to take over at this point, and I very much regret that."  According to Scarcella, Holder asked Hoagland to trust the administration.  He stated, "There are reasons why bringing this case in an Article III court, when it comes to the admissibility of certain evidence, is really the right way to go and really maximizes our chances of getting a successful outcome."  At Volokh Conspiracy, Eric Posner hypothesizes on how the DOJ may view the civilian trials for 9/11 terrorists. 

New Biography on Justice Scalia: Over the past two days Bench Memos' Ed Whalen, a former clerk for Justice Scalia, has been commenting on Joan Biskupic's new biography, An American Original: The Life and Constitution of Justice Antonin Scalia.  Whalen's take on the biography is not too positive.  In his first post he notes, "The book is well written, much more so than I expected from my occasional encounters with Biskupic's reporting.  It is also in many places more evenhanded than I expected.  And I found the first four chapters particularly interesting."  The remaining posts (here, here and here) flesh out Whalen's criticisms.

Google Adds Case Law to 'Scholar':  Ashby Jones of Wall Street Journal's Law Blog has the details here.    

Recent studies of the deterrent effect of the death penalty (since 2000) have been done mostly by economists. Abstracts and citations are collected here. Although not conclusive, the weight of the evidence favors a deterrent effect, regardless of what you may hear from the anti-side spinmeisters. These studies tend to look at long-term effects.

Earlier, there were many studies done by criminologists. These studies examined short-term effects. They would ask if homicides went down after an execution and whether it mattered if the execution was well publicized. The results were mixed, but many of these studies found no deterrent effect. I have long been skeptical of this method, because I do not believe the recency effect is as important a component of deterrence as these researchers seem to believe. In a sense, I give criminals more credit for intelligence than they do. I begin with the hypothesis that an awareness that the state has the death penalty and actually enforces it will cause some people to refrain from killing. That is consistent with the general principle that incentives matter in human behavior; anyone who claims that the death penalty is an exception has the burden of proof. Awareness of the death penalty may be heightened by a recent, well-publicized execution, but it doesn't go away in a month. So a finding that the recency component of the deterrent effect, if any, is below the level a study could have detected doesn't tell us anything significant from a policy perspective. It tells us nothing about whether there is a total deterrent effect, the sum of short and long term effects, which is what we really want to know.

The September issue of Criminology, volume 47, number 4, has a new study on the short term effects.

Today, the U.S. Supreme Court agreed to address whether Billy Joe Magwood's second habeas petition, filed in 1997, was a "second or successive claim" under 28 U.S.C. §2244(b).  Magwood's Petition for Certiorari is asking the Court to address whether his claim is "second or successive" when he could have challenged his previously imposed (and now vacated) sentence on the same grounds.  A three judge panel for the Eleventh Circuit thought Magwood's petition was successive, but Magwood's attorneys, Jeffrey Fisher and Pamela Karlan of the Stanford Law School Supreme Court Litigation Clinic, see things differently. 

Magwood, a former jail inmate in Coffee County, Alabama, shot and killed Sheriff Grantham on March 1, 1979.  He was convicted and sentenced to death in 1981.  In 1983, he filed a petition for habeas corpus challenging his sentence under Alabama's 1975 Death Penalty Act.  A district court granted relief, finding the sentencing court had failed to consider certain mitigating circumstances.  Magwood was re-sentenced in 1986.  The Alabama trial court considered Magwood's additional mitigating circumstances, and again sentenced Magwood to death.  Both the Alabama Court of Appeals and the Alabama Supreme Court affirmed.   

"Medicalizing mass murder": In the WaPo, columnist and psychiatrist Charles Krauthammer punctures the notion that Nidal Hasan is a victim of secondary PTSD.  Krauthammer does this by noting that "[m]edicalizing mass murder not only exonerates.  It turns the murderer into a victim, indeed a sympathetic one."  The portrayal of Hasan as a possible victim, which has been advanced over the past week by the major media, may become the narrative for his defense now that he is facing trial by a military court and a possible death sentence as reported  by WSJ writers Yochi J. Dreazen, Peter Spiegel and Evan Perez. 

9/11 Defendants to be Tried in NY:  AP writer Devlin Barrett reports that five Guantanamo Bay detainees, accused of conspiring in the 2001 terrorist attack on the U.S., will be tried in New York federal court.  Among the defendants will be Kahlid Sheikh Mohammed, who has identified himself as the mastermind of the attack.  Attorney General Holder also announced that five other detainees accused of attacks on the military will be tried before a military commission.  The decision to try the 9/11 defendants in civilian court is reported to be a key step in the President's plan to close Gitmo.  It confirms that the administration intends to address the attack, which left nearly 3,000  dead, as a criminal act.  The sister of the airline pilot whose plane was hijacked and flown into the Pentagon responded to the announcement saying "We have a president who doesn't know we're at war." 

Governor Schwarzenegger - CA can comply with inmate release order:  AP writer Don Thompson reports that the Schwarzenegger administration has announced that California could comply with a federal judicial panel's August order to release over 40,000 prison inmates, if the judges choose to bypass the state legislature and pre-empt existing laws.  The administration's revised inmate release plan, released Thursday, presented the panel with options available to comply with their earlier order.  According to the Governor's Corrections Secretary "If the Legislature didn't make these changes, the court under its own powers could either waive state law...or order the state not to accept certain inmates."  The Secretary noted that California plans to appeal the release order to the Supreme Court.

Ohio Announces Plans to Switch to Single Lethal Injection Drug:  AP writer Julie Carr Smyth reports that Ohio has become the first state to adopt a single drug procedure for lethal injections.  This method has never been tested on United States inmates.  In papers filed today, the state informed the U.S. District Court that it has decided to switch from a three-drug cocktail to a single injection of thiopental sodium into a vein. The state will also have a separate two-drug muscle injection available as a backup.  The idea for a single drug lethal injection procedure has been used in euthanizing animals and debated by states for some time, but Ohio is the first to drop the three-drug approach in favor of one dose. 

From the California Supreme Court today in People v. Concha, S163811:

Reyas Concha, Julio Hernandez, and Max Sanchez attempted to murder Jimmy Lee Harris. During the attempt, Harris responded in self-defense by stabbing Max Sanchez to death. Relying on the so-called provocative act murder doctrine, the jury convicted defendants Concha and Hernandez of first degree murder for the death of Sanchez. We granted review to determine whether a defendant may be liable for first degree murder when his accomplice is killed by the intended victim in the course of an attempted murder. We hold that a defendant may be convicted of first degree murder under these circumstances if the defendant personally acted willfully, deliberately, and with premeditation during the attempted murder.

I'm not a big fan of prosecutions such as this. The death of Sanchez was not a crime. The world is a better place without him. Concha and Hernandez should have been prosecuted for their crimes against Harris, but that's it.

"Death Penalty Rare, Executions Rarer in Military":  Associated Press writer Mark Sherman reports on the rarity of capital punishment in the military.  Though Major Nidal Hasan, the suspect in the shooting rampage at Fort Hood, could face the death penalty, he will be prosecuted by a military justice system that has not executed a person since 1961, although five men sit on the military's death row at Fort Leavenworth.  Authorities would have had more reason to take the case to federal court if they had found evidence Hasan acted with the support or training of a terrorist group, but investigators  believe he acted alone, without outside direction.  Before a military execution can be carried out, the president must personally approve.  The President's involvement sets military death-penalty cases apart.  The President can commute any federal death sentence, civilian or military, but must personally approve each military execution and sign an order to carry it out.  This makes the execution a political act of the president, subject to the differences of each administration.

UK Moves to Decrease DNA Database:  Associated Press writer Sylvia Hui reports on the UK's decision to decrease the size of their database.  Britain said Wednesday it plans to get rid of DNA profiles of most innocent people after six years in response to a European Court of Human Rights ruling that said keeping the information indefinitely was a violation of privacy.  The DNA of terror suspects could still be held indefinitely, even if they are not charged with terrorist offenses.  Britain has one of the largest DNA databases in the world, with profiles of over 5 million people, or 8 percent of their population.  Human rights groups are calling the six year retention of DNA unethical, and violating the spirit of the Court's ruling to get rid of innocent peoples'  DNA profiles.  Britain's government said that DNA data is essential for fighting crime and providing justice for victims.  The Home Office said that between April 1998 and September 2009 there were more than 410,589 crimes with DNA matches, providing the police with leads on the identities of offenders.

Some California Inmates Striving for Death Penalty:  LA Times writer Carol J. Williams reports on a problem that CA's penal system is facing with the current state moratorium on executions and an appeals process that can last for decades.  Most recently, white supremacist gang hit man Billy Joe Johnson got exactly what he asked for of the jury that convicted him of first-degree murder last month, a death sentence.  It was not remorse that drove him to his request, but the expectation of more comfortable living conditions on death row coupled with the knowledge that the executioner would be decades away if it came at all.  Compared to Virginia, where Beltway sniper John Allen Muhammad was put to death Tuesday night, capital punishment in California is a process that has become so bogged down by legal challenges it viewed by some as an empty threat.  "This is a dramatic reaffirmation of what we've already known for some time, that capital punishment in California takes way too long," Kent Scheidegger, Legal Direct for the Sacramento based Criminal Justice Legal Foundation, said of Johnson's gamble on life on death row.

New Lawsuits Threaten to End of Judicial Immunity:  Wall Street Journal writer Ashby Jones reports on the concept of absolute judicial immunity, and how today we are seeing it called to question.  People who believe they have been wronged by a judge can ask the judge to reconsider, appeal to a highe court or, if they suspect judicial wrongdoing, ask a bar association to investigate.  People cannot usually sue.  Absolute Judicial Immunity shields judges when they issue a ruling that makes someone unhappy.  A set of civil lawsuits filed against two former Pennsylvania judges is testing this doctrine of immunity.  In January, federal prosecutors filed fraud charges against Mark A. Ciavarella and Michael T. Conahan for allegedly sending numerous juveniles to detention centers over several years in exchange for more than $2.6 million in kickbacks.  After these criminal charges, several lawyers have filed civil suits seeking monatary damages on behalf of dozens of families, stating that the judges violated their civil rights.  "On one level, it seems outrageous to ban someone from suing a corrupt judge," states University of Pittsburgh law professor Arthur Hellman, "But if you allow plaintiffs to pierce the immunity by alleging bad motive, it opens the floodgates."

The new issue of Engage, the journal of the Federal Society's Practice Groups, is out, just in time for the National Lawyers Convention. The table of contents and a link to a PDF of the full issue are here.

Among the articles is one by CJLF's Lauren Altdoerffer comparing the U.K.'s statutorily prescribed interrogation warnings with the U.S.'s judicially crafted Miranda rule. A key difference in the U.K. is that the suspect is advised that his silence can be used at trial if he raises something he would reasonably have been expected to say upon arrest. For example, an arrestee with a real alibi would be expected to say so immediately. A criminal who wants to concoct a false alibi needs to line up people willing to lie for him first. There is a logically valid inference from silence in that situation, and the trier of fact should be allowed to consider it.

Contrary to popular myth and the prescribed Miranda warnings, the Fifth Amendment does not contain a right to remain silent. It says, "nor shall any person ... be compelled in any criminal case to be a witness against himself...." That is not the same thing.

Josh Blackman is liveblogging the Convention here.

New Supreme Court Justice Biography:  Erin Miller posts on SCOTUSblog that USA Today writer, Joan Biskupic, has published a new book on Justice Antonin Scalia.  The book, American Original, is being advertised as "The first full-scale biography of the Supreme Court's most provocative -- and influential -- justice."  SCOTUSblog's Tom Goldstein had the opportunity to interview Biskupic about her book.  The podcast covers Scalia's family, his "[t]wo passions: religion and Roe," and her predictions on Justice Scalia's legacy.  Ashby Jones posts more on Justice Scalia at the Wall Street Journal's Law Blog.  Jones' post wonders how Justice Scalia would have voted in Brown v. Board of Education. 

Coverage of Yesterday's Supreme Court Arguments:  Howard Bashman has compiled an extensive list of the media's coverage for oral arguments in Sullivan v. Florida and Graham v. Florida.  Our News Scan rounded up coverage from the New York Times and the LA Times this morning, and Kent's posts on Graham and Sullivan are available here and here. 

Justice Alito's Concurrence in Bobby v. VanHook:  At Blog of Legal Times, Marcia Coyle reports on what she calls, "A Justice's Curious Comment About ABA Guidelines For Death Penalty Lawyers."  Coyle's post reviews Justice Alito's concurring opinion, which emphasized his view that no "special relevance" should be given to the American Bar Association's guidelines on the appointment and performance of defense counsel in death penalty cases.  According to Coyle, Justice Alito's opinion reflects his belief that the ABA, an organization with limited membership, does not "reflect the views of the bar as a whole."  It is up to the courts to determine whether a defense lawyer's work meets the constitutional standard, not the ABA.  Those who support use of the guidelines, like Eric Freedman a member of the ABA's death penalty steering committee, believe "the ABA guidelines are only guides to putting content on the very vague Strickland standard."   

Federalist Society's National Lawyers Convention in Washington D.C.:  The Federalist Society will be holding its annual National Lawyers Convention this Thursday, Friday and Saturday at the Mayflower Hotel.  Justice Alito will be speaking Thursday evening, and former Attorney General, Michael B. Mukasey, will be speaking Friday.  The schedule is available here.    

Ever since Virginia elected the anti-death-penalty Tim Kaine as its governor four years ago, I have been concerned that in his lame-duck period he might follow the path of convicted felon George Ryan and start issuing commutations en masse. He promised not to, but politicians have been known to break promises before.

It's a good thing that DC sniper John Allen Muhammad is the first execution of Kaine's lame-duck period. If he commuted this sentence, the backlash would be enormous. If he does not, then any large scale commutations will look even more unprincipled.

Today, Kaine's office issued this press release:

"Muhammad's trial, verdict, and sentence have been reviewed by state and federal courts, including the Supreme Court of Virginia, United States District Court for the Eastern District of Virginia, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court. Having carefully reviewed the petition for clemency and judicial opinions regarding this case, I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts.

"Accordingly, I decline to intervene."

Good. Now just keep that up through the end of your term.

Now this is really sweet. The Sullivan case contains a major jurisdictional question of whether the state court decision rests on independent state grounds. Counsel for Sullivan, Bryan Stevenson, completely ignored that question in his principal brief on the merits. The State addressed it in their brief, and so did CJLF in our amicus brief. In his reply brief, Stevenson finally addressed the point.

On the first page of his argument, Stevenson only gets two sentences out on the point he really wants to argue before Justice Ginsburg cuts him off and directs him back to jurisdictional point. Then he takes fire from her and Justices Sotomayor, Scalia, Kennedy, and Alito (i.e., a majority) for the next ten pages before he is able to say another word about the underlying question.

But Justice Ginsburg isn't finished with him. When he comes back for rebuttal, there is this on page 48:

Is Sentencing a Juvenile to Life in Prison Cruel and Unusual Punishment?: Washington Post writer Robert Barnes reports that the US Supreme Court will hear arguments today on whether sentencing a juvenile to life in prison without parole is a violation of the Eighth Amendments ban on cruel and unusual punishment.  USA Today writer Joan Biskupic also reports on the cases.  The two cases that are at the center of the controversy are Graham v Florida and Sullivan v Florida.  In 2003, Terrance Graham was sentenced for armed robbery for attempting to rob a restaurant.  In 2005, Graham took part in a home invasion.  At that time, he was on probation for the 2003 robbery conviction.  Graham, a few days short of his 18th birthday, was sentenced to life imprison without parole.  The other petitioner, Joe Sullivan was sentenced to life in prison without parole for the 1989 rape of an elderly woman.  Today there are an estimated 111 defendants nationwide serving a life sentence for a crime other than murder that they committed when under 18. In support of Florida, the Criminal Justice Legal Foundation has submitted a friend of the court brief, found here.  Our Legal Director, Kent Scheidegger, also recently took part in this New York Times debate.  This is not the first time that the US Supreme Court has heard arguments on sentencing juveniles.  In 2005, the Court was asked to decide whether a state could sentence juvenile murderers to death.  The Court ruled that a state cannot execute any murderer under the age of 18.  Some hope that the Court will use the same reasoning to determine whether juveniles should be sentenced to life without parole for committing a crime other than murder.  Those supporting Florida say that this penalty is reserved for the worst offenders and is used to make the community safer.    

Evaluation of Kentucky's Death Penalty:  Louisville Courier- Journal writer R.G. Dunlop reports that many believe Kentucky's death penalty system is ineffective.  Since Kentucky reinstated its death penalty in 1976, 92 defendants have been sentenced to death, but only three have been executed.  More than one-third of the state's 36 current death row inmates have been there at least two decades.  This has caused critics to question whether Kentucky's death penalty system is worth it.  David Sexton, former prosecutor for the state Attorney General believes, it is inappropriate to apply a cost-benefit analysis to crimes that may be "too reprehensible ... to reduce the equation to some sort of business decision."  The cost of the death penalty is also an issue in California.  According to a study released by the anti-DP Death Penalty Information Center, California is spending $137 million per year in capital cases and has not carried out an execution since January 2006.   But the death penalty can save the states the cost of a trial as a negotiation tool.  Sacramento Bee writer Julie Johnson reported that the I-5 strangler, Roger Reece Kibbe, pleaded guilty to killing Lou Ellen Burleigh in 1977, and Lora Heedrick, Barbara Ann Scott, Stephanie Brown, Charmaine Sabrah and Katherine Kelly Quinones, in 1986, to elude the death penalty.  While some states are evaluating the effectiveness of their death penalty, Kentucky last addressed the issue in 2002.  Governor Steve Beshear said that he supports the death penalty "for violent and heinous crimes, and that public safety should not be sacrificed because of economic or budgetary concerns."      

The U.S. Supreme Court today summarily reversed the Sixth Circuit for relying too much on ABA Guidelines when deciding a capital ineffective assistance case. There was no dissent. Justice Alito wrote separately to say he didn't think the Court had devalued the ABA Guidelines quite enough.

The opinion in Bobby v. Van Hook, No. 09-144, is here. The lower federal courts dithered with this case so long that it actually predates the provisions of the Antiterrorism and Effective Death Penalty Act of 1996. Yes, this case is a habeas petition filed 14 years ago.* 

Post-Booker Sentencing Disparities:  At Sentencing Law and Policy, Doug Berman posts on the "blame game" for the increasing number of sentencing disparities taking place in courts.  As our News Scan demonstrates, sentencing disparities have recently been the subject of some media criticism, and Berman comments that it may not be fair to blame judges for the increased disparity in sentencing outcomes after Booker.  Berman believes that judges are probably the least likely to blame for sentencing disparities, and instead places blame on Congress, the U. S. Sentencing Commission, The Supreme Court and the circuit courts, and the Justice Department.  Berman believes these actors deserve more blame than judges, because sentencing judges are "principally focus on achieving individualized justice in the individual cases they address each day."  Ashby Jones comments on today's Wall Street Journal article on WSJ's Law Blog. 

Sex Offender Residency Restrictions in the California Supreme Court:  At Sex Crimes yesterday, Corey Rayburn Yung posted on oral arguments in a California case addressing sex offender residency restrictions.  Yung's post expands on the media coverage of the case, briefly mentioned in Monday's News Scan, and adds that the "California case could be important in the overall scheme of residency restriction law."  Yung believes that because California is the most high profile state to have its highest court review sex offender registry restrictions, the decision could have a wide effect.  A decision is expected within 90 days of oral arguments.

Can Ineffective Assistance of Counsel Be Legal Malpractice?:  That's what Jonathan Adler wonders on Volokh Conspiracy.  Adler's post notes that "it is rare that defense attorneys are sanctioned for providing inadequate assistance to capital defendants," even though it is commonly claimed by capital defendants in their appeals. This could be because it deters criminal defense attorneys from taking capital cases, but it could also lead some attorneys to "tank" bad cases.  Adler points to the the Sixth Circuit holding in Johnson v. Mitchell as an example.  Johnson is the rare case of a defense attorney who secured a new capital trial by arguing that the defendant's first defense attorney was ineffective for failing to investigate the defendant's background for potential mitigation evidence.  The same attorney then proceeded to make the same error when he represents the defendant in the new trial.  Adler wonders whether the attorney's deficient representation was a product of incompetence or design.  He also believes the attorney should be sanctioned.  

Specter Speaks, He Wants the Justices on T.V.:  At Blog of Legal Times, David Ingram reports on Senator Specter's (D-PA) Senate floor speech advocating televising sessions of the U. S. Supreme Court.  According to Ingram, the Senator's speech was meant to get a "sense of the Senate" and  line up his colleagues behind a resolution to place cameras in the Supreme Court.  His speech points out that the justices have not exactly been camera-shy and several have appeared on television shows like Primetime, CBS News and 60 Minutes.  Specter has pushed legislation for television coverage in the past, but it never won Senate approval. The new resolution, he said, is a more "restrained and modest approach."

From the en banc Ninth Circuit in a federal criminal case, United States v. Hinkson, No. 05-30303:

Today, after review of our cases and relevant Supreme Court precedent, we re-state the "abuse of discretion" standard of review of a trial court's factual findings as an objective two-part test. As discussed below, our newly stated "abuse of discretion" test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

Applying our "abuse of discretion" test, we affirm the district court's rulings.

Sounds a tad like 28 U.S.C. §2254(d), doesn't it? The opinion is by Judge Bea, with the dissent by Judge W. Fletcher. The vote is 7-4. Hinkson is a tax loony who had the misfortune to draw a Ninth Circuit pseudo-en-banc panel with a majority of persons of sense. In poker, that's called a "bad beat." The portion of the opinion summarizing Hinkson's claim is after the jump.

The Questions Presented in Wood v. Allen, argued today, have to do with the requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA) on federal courts' treatment of state court findings of fact. Yet for the first three pages of his argument, counsel for Wood didn't say a word about the fact findings but instead talked about the application of the Strickland v. Washington ineffective assistance of counsel standard.

The Justices weren't too pleased about the ruse of getting certiorari on one question and then arguing another question. Justice Alito leads off on page 5. Then the Chief chimes in. Then Justice Sotomayor asks it again on pages 8-9. So does Justice Ginsburg on page 14. When counsel returns for rebuttal, the Chief has counted quotations of the statute, 28 U.S.C. §2254, and notes that the "application" prong of the statute ((d)(1)) is quoted 11 times in the body of the petition but the "fact" prong ((d)(2)) is not quoted at all. "Now, I think there's a huge difference between (d)(1) and (d)(2). We've been talking about (d)(2) in a case that was only brought under (d)(1)."

It will be interesting to see how they deal with this. Justices who believe that a death-sentenced inmate has a solid claim on the "application" point (as Justice Ginsburg apparently does, p. 14) may be willing to waive the question-smuggling rule, as the Court has discretion to do.  However, several of the Justices, probably a majority, are much less impressed with the claim and may deliver a rebuke about misstating the question.

There is also a nugget in the argument for writers of Supreme Court briefs. When the opinion below is both published in the regular reports (e.g., the F. 3d) and reprinted in the appendix to the certiorari petition, should you cite to particular points in the decision with the page in the F. 3d or the page in the appendix?

Apparently the F.3d (or other official or quasi-official report). On pp. 11-12, counsel cites to a point in the App. to Pet. for Cert. Justice Kennedy asks for the F.3d page. Counsel doesn't have it. It's a small point, perhaps, but just one more thing to go wrong in what is already a high stress situation.

This is one more reason for numbering the paragraphs of opinions, as they do in avant-garde jurisdictions such as Mississippi.