Results matching “first”

Today at the Supreme Court (plus more on Philip-Morris):  Lyle Denniston has a post on SCOTUSblog briefly summarizing today's U.S. Supreme Court decisions.  Denniston briefly reports on today's decisions in Rivera v. Illinois (07-9995) and Hawaii v. Office of Hawaiian Affairs (07-1372), but devotes most of his post to the "judicial minuet" of Philip Morris USA v. Williams (07-1216).  On two previous occasions--2003 and 2007--, the Supreme Court told the Oregon Supreme Court to reconsider its punitive verdict; and in its most recent decision, the Oregon Supreme Court refused to decide the constitutional issues and based its ruling on state procedural law.  The Supreme Court agreed to hear the case last June, and today it dismissed the case as improvidently granted.  Kent's post on Philip Morris can be found here. 

Federal Judge Temporarily Stops State Texting Prosecution:  At Wall Street Journal Blog, Dionne Searcey reports that yesterday a federal judge blocked a Pennsylvania prosecutor from filing pornography charges against girls engaged in the practice of sexting.  Searcey reports that a group of teenage girls had been discovered sending text messages of nude or partially nude photos of themselves to their buddies in Tunkhannock, Pennsylvania.  The district attorney apparently told the girls he would file charges against them unless they agreed to complete classes teaching them "what it means to be a girl in today's society."  The girls refused, and the ACLU sued, claiming the photos did not violate any obscenity laws and were protected under the First Amendment.  U.S. District Judge James Munley agreed and said the action would violate parental rights.  Doug Berman also has this post at Sentencing Law and Policy.  
 
ACLU and Others Ask White House to Change Anti-Lobbyist Rule:  Marisa McQuilken posts on Blog of the Legal Times that the ACLU and the Center for Responsibility and Ethics in Washington have teamed with American League of Lobbyists in asking the White House to rescind its directive that bars federal agency heads from having in-person or telephone conversations with registered lobbyists about particular projects and funding under the American Recovery and Reinvestment Act.  The Obama Administration issued the directive on March 20 as part of a broader memorandum meant to ensure that funds under the Recovery Act are spent responsibly and transparently. McQuilken reports that the ACLU and CREW sent a letter to White House Counsel Gregory Craig asking the White House to rescind this "ill-advised restriction on speech" that is "not narrowly tailored to achieve the intended purpose."

Detainee Lawyer's Challenge Government's Guidelines:  Jordan Weissmann writes, on  Blog of the Legal Times, that the Guantanamo detainees' defense lawyers are challenging the new definition of "enemy combatants" on grounds that it is still too broad and violates traditional laws of war.  The detainees' lawyers filed a memorandum on Friday arguing that the president is still overstepping his legal bounds.  The document points out that the Authorization for the Use of Military Force (AUMF), on which the Administration has based its detention power, says nothing explicit about detention powers, and that the Supreme Court, in cases such as Hamdi v. Rumsfeld (2004), has chosen to apply a narrow reading of the resolution.  The detainees lawyers claim that the AUMF was meant to prevent the president's detention power to extend further than it would traditional rules of war. 

Prosecuting Teens for "sexting": Doug Berman blogs on Sentencing Law and Policy on the legal and social issues surrounding recent prosecutions for teen "sexting."  Berman reports that last week the ACLU filed a complaint against a Pennsylvania district attorney for threatening three high school girls with child porn charges for appearing partially undressed in cell-phone pictures.  According to Berman, the complaint asserts the D.A. violated the girls' "First Amendment expression rights and their parents' rights to control their children's upbringing."  As Berman notes, this raises some interesting questions as to whether teen "sexting" should draw harsh penalties.  Particularly because in some states, such as New Jersey, it has been reported that the only laws applicable to these cases were intended to punish sexual predators and child pornography traffickers.   

The Ninth Circuit today dismissed Gov. Schwarzenegger's appeal from the order to fork over a quarter billion bucks to a court-appointed receiver to build gold-plated health care for incarcerated felons. They said the order was not a final order for the purpose of the appellate jurisdiction rule. However, they noted,

Very recently, while this appeal was pending, the State advised us that it had filed in the district court a Motion to Replace Receiver with a Special Master and to Terminate the Receiver's Construction Plan. Proceedings in response to that motion, or to a motion for relief from the consent decree if the State should deem it advisable to file one, are proper vehicles for addressing in the first instance the objections the State seeks to raise on this appeal without a sufficient district court record.

Meanwhile, back at the ranch, District Judge Thelton Henderson yesterday denied that very motion, so the Governator can now appeal. Bob Egelko has this story in the SF Chron.

In my prior post on Knowles v. Mirzayance, I noted the unusual lineup of the Justices who did and did not join Part II of the opinion, holding that the Ninth Circuit erred in not deferring to the prior state court adjudication. Justice Stevens, who tends to be among the most defendant-friendly of the Justices, joined this part, while Justice Scalia did not. The decision could have rested simply on Part III, that Mirzayance had no case even if the issue is reviewed from scratch.

A comment I received by phone today* from an informed source suggests an alternative to the explanations bouncing around the blogosphere. Perhaps Justice Stevens wanted to cut off a theory of § 2254(d) he saw as potentially raising a huge barrier for petitioners in the future.

An Attorney is Not Ineffective Because He Has "Nothing to Lose":  At Blog of the Legal Times, Tony Mauro has a post reporting on today's Supreme Court activity.  As noted in Kent's post, the Court decided Knowles v. Mirzayance, rejecting the Ninth Circuit's holding that, in Mirzayance's case, competent counsel would have pursued the insanity defense because counsel had nothing to lose. Justice Thomas' majority opinion stated: "This Court has never established anything akin to the Court of Appeals' 'nothing to lose' standard for evaluating Strickland claims."  Mauro also reports on today's oral arguments in Citizens United v. FEC, a case asking whether the 90-minute anti-Hillary Clinton movie released during the 2008 presidential campaign should be regulated under the McCain-Feingold campaign finance law.

Al-Marri Pleads Not Guilty:  New York Times reporter John Schwartz writes that accused Al Qaeda sleeper agent Ali Saleh Kahlah al-Marri pleaded "not guilty" on Monday to charges that he provided aid to terrorists.  Al-Marri, one of the first enemy combatants to be tried in a civilian legal system, has been in custody for almost six years.  While he was initially arrested financial fraud and other charges, the government believes he is a sleeper agent pledged to come to the United States as part of a broader attack plan to follow Sept. 11.  The Supreme Court agreed to hear his case in December 2008, but in February President Obama ordered Mr. Marri's transfer from the military back to the Justice Department. He is being tried in Peoria, Illinois where he was indicted on two counts related to providing material support and resources to a terrorist organization.  (Hattip to Howard Bashman at How Appealing for the link.)

"Does the criminal justice system have anything to do with public health?" wonders Joel Jacobson at Judging Crimes.  In a Monday post, Jacobson discusses a possible relationship between CQ Press's release of Crime State Rankings 2009.  While CQ Press's rankings remain controversial, Jacobson sees similarities between the most dangerous states and the unhealthiest states. He also sees some similarities in the number of heart disease and stroke death rates in an area. The relationship between the three is interesting - especially considering Jacobson's promise to further discuss studies describing what violence does to people .

Update: Follow up post on Knowles v. Mirzayance is here.

The U.S. Supreme Court unanimously reversed the Ninth Circuit yet again in another habeas case. As we have noted before, it is not the much-debated "reversal rate" that demonstrates how far out of the mainstream the Ninth is. Rather, it is the number of cases where that court's judgment does not draw even a single affirming vote from the nine jurists of diverse viewpoints on the high court.

In this noncapital murder case, Alexandre Mirzayance did not deny that he stabbed his 19-year-old cousin nine times and shot her four times. The only defense was mental. In the guilt phase, the prosecution had the burden of proving beyond a reasonable doubt that the killing was "willful, deliberate, and premeditated." (Cal. Penal Code § 189.) Mirzayance's psychiatric testimony failed to convince the jury there was even a reasonable doubt of that. So what are the chances that largely the same evidence is going to convince the same jury by a preponderance of the evidence that he "was incapable of knowing or understanding the nature and quality of his ... act and of distinguishing right from wrong at the time of commission of the offense" (Penal Code § 25(b))? Vanishingly small.

Does counsel have an obligation to go for that infinitesimal chance? The Ninth Circuit said yes. The Supreme Court unanimously said no. 

Too Many Thieves In Milwaukee:   The Associated Press reports that two thieves fleeing a jewelry store heist were robbed by another pair of thieves before they could make their escape.  A police lieutenant said after the original thieves were robbed a fight broke out between the four criminals which ended when they jumped in their cars to avoid arrest.  Following a chase, all four were taken into custody.

Tolerating Graffiti seems to be the rule for city leaders in San Francisco. SF Chronicle writer C.W. Nevius reports that a lack of enforcement, mild consequences and the fact that property owners simply get tired of repeatedly painting over tags has resulted in so much graffiti that some freeway signs are unreadable.  The problem has gotten worse since 2004, when the City required property owners to remove graffiti within 30 days for face up to a $500 fine.  The City's Graffiti Abatement Officer says that the taggers have told him that they avoid places like nearby Daly City because they have tougher penalties.  In Seattle, where there is little graffiti, taggers spend six months in jail for a first offense.   

Death Penalty Legislative Update: John Gramlich has this story at Stateline.org on legislative activity in various states -- some considering bills to implement the death penalty better and some considering repeal.
 

Kansas' Death Penalty Debate: Doug Berman has a post on Sentencing Law and Policy with a link to an article in the Topeka Capital-Journal.  The article discusses the debate over Senate Bill 208, which will remove the death penalty as a sentencing option after July 1, 2009.  According to the article, and Berman's post, opponents of the death penalty have made the same arguments (morally wrong and too expensive) in support of the Bill.  In addition, supporters argue that Senate Bill 208 should pass because inmates with a pending death sentence will remain on death row.  Kansas' Attorney General Steve Six believes that abolition of capital punishment for future offenders will trigger new appeals by anyone facing execution in Kansas.  This means that some of Kansas' most notorious murderers could avoid execution and spend the rest of their lives in prison.

The Second Amendment, Originalists, and Chicago:  At Wall Street Journal Blog, Ashby Jones posts his summary of Jess Bravin's piece in Saturday's Wall Street Journal, "Rethinking Original Intent."  The piece centers around a Chicago gun-control case that raises the issue of whether the Second Amendment restricts the city's ability to limit the use of handguns.  According to Jones and Bravin, the issue was not covered by D.C. v. Heller because, unlike Heller, the Chicago case deals with a state statute.  Since the case addresses a state law, and not a federal rule, the issue becomes whether the Supreme Court's ruling in Presser v. Illinois - that the Second Amendment does not apply to the states - is still valid precedent.  Both Jones' post, and Bravin's piece, focus on how else the Supreme Court might make the Second Amendment binding on the states.   

Legal Times to Merge with The National Law Journal:  David Ingram writes on Blog of the Legal Times that Legal Times will merge with The National Law Journal.  The new publication will focus on national legal news, with a special emphasis on Washington, D.C.  The current editor and publisher of the Legal Times will become the editor in chief of the new National Law Journal, and the current publisher of The National Law Journal will continue in that role.  The National Law Journal's website will also be redesigned to include the Blog of the Legal Times.  According to the press release, the first publication of the updated National Law Journal will be available in May.  Orin Kerr also has this post on the merger at Volokh Conspiracy.   

If there is any proposition of law that should be clear beyond question, it is that a death row inmate cannot attack the method of execution at the eleventh hour and get a stay of execution, when the claim has been known for years. The U.S. Supreme Court made that clear for stays issued by federal courts in the debacle surrounding the execution of Robert Alton Harris in 1992, the first California execution of the modern era. See Gomez v. USDC-NDCal, 503 U.S. 653.

State courts can go their own way, of course, and the Washington Supreme Court just did in the case of Cal Brown, previously noted here. Jennifer Sullivan has this story in the Seattle Times, with links to the victim's family's letter to the judge and the Washington Supreme Court order.

The order is signed by ACJ Charles Johnson, and dissents are noted by CJ Alexander and Justices Owens, Fairhurst, and James Johnson. Hence this disgrace must have been joined by Justices Madsen, Sanders, Chambers, and Stephens.

Note well, people of Washington, that Madsen and Sanders are up for reelection in 2010.

Judge Posner Gives Two Opinions of Prosecutors' Behaviors:  At Sentencing Law and Policy, Doug Berman posts parts of two Seventh Circuit decisions on two very different issues.  Berman finds them noteworthy though because both opinions, written by Judge Posner, comment on the behavior of federal prosecutors.  The first case, U.S. v. Farinella, criticizes the prosecutor's improper statements during her closing arguments, as well as her "additional improprieties."  Judge Posner comments that while the government's attorney argued on appeal that an appropriate sanction might be a "talking-to" from her superior, the panel was "not impressed by the suggestion."  In the second case, U.S. v. Richardson, the Seventh Circuit refused to upset the federal prosecutor's decision not to move for a reduced a sentence unless the defendant dropped his appeal.  In Richardson, the defendant was sentenced to 140 months in prison and then helped the government in an unrelated prosecution.  At the time, the government offered to ask the judge to reduce his sentence based on his cooperation, but only if Richardson withdrew his appeal.  While this tactic might seem improper, the Seventh Circuit found the prosecutor's action to be reasonable.

Justice Thomas Gives Rare Appearance:  Eric Barendsen of Blog of the Legal Times posts on Justice Thomas' talk at Howard University School of Law yesterday.  His appearance was a part of the James M. Nabrit Jr. Lecture Series which has previously featured some of his fellow Justices.  According to Barendsen, the talk focused primarily on Justice Thomas' 2007 book, My Grandfather's Son, but later Justice Thomas gave a summation of his experience during his "brutal" 1991 confirmation hearings.  Justice Thomas stated that the process "was very hard," and he thought about giving up "thousands of times," but he did not.  In other words, Justice Thomas wanted to impart the message that students should not give up.  As Justice Thomas recalled his grandfather saying: "Old man 'can't' is dead. I helped bury him." 

In the federal system, the authorization to seek the death penalty is made centrally by the Attorney General.* I had expected few or no authorizations from AG Eric Holder. That did not bother me much, as there are very few cases that should be both capital and federal. The death penalty is for murder and major crimes against national security, and very few of the former should be federal cases.

There are a few that should be, though, and the AG has authorized the DP in one of the few, John Ellis reports for the Fresno Bee.

Newly appointed Attorney General Eric Holder has authorized prosecutors to seek the death penalty against two inmates at Atwater's high-security federal penitentiary suspected of stabbing and killing a correctional officer last June....

Holder ... sent a two-paragraph letter to acting U.S. Attorney Larry Brown that he was "authorized and directed" to seek the death penalty against Jose Cabrera Sablan and James Leon Guerrero.

The two inmates, who are both from Guam, are charged with first-degree murder in the death of Chowchilla resident Jose Rivera, a U.S. Navy veteran who served four years in the military, including two tours in Iraq.

Rivera, 22, died June 20 when Sablan and Guerrero allegedly stabbed him through the heart with a prison-made shank. Both inmates were already serving life sentences for earlier crimes.

That last fact proves, once again, that a life sentence does not guarantee an inmate will not commit murder.

Monday there was a rather testy exchange among Justices Stevens, Thomas, and Breyer over the claim that long delays in execution are themselves cruel, though hardly unusual. The three opinions "relating to" denial of certiorari in Thompson v. McNeil, No. 08-7369, are available at this page.

Warren Richey has this article on the case for tomorrow's Christian Science Monitor.

Among statistics scammers, one of the favorite weapons is the creative definition. James Taranto of the WSJ has a great example here. The National Center on Family Homelessness released a report saying, "One of every 50 American children experiences homelessness...." The Associated Press reports that claim here, as the story lead.

Now let's take a look at the full report. On page 5, we find that the definition of "homeless" includes persons who are "Sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason (sometimes referred to as doubled-up)." By this definition, my brother-in-law and his family were "homeless" their first few years in America. They lived in my home. Needless to say, they did not consider themselves homeless. Nor did I.

The report says this preposterous definition of "homeless" is written into the No Child Left Behind Act. That is not the silliest thing Congress ever enacted, I suppose, but it's in the bottom tier.

One of the first rules of skeptical reading of studies is to watch those definitions.  As we have noted here more than once, there are people who are guilty as sin on the notorious "innocence list."

The thing that bothers me is that people can put out bogus reports with doctored numbers, and very few people seem to care as long as the policy position being advocated is Politically Correct. The reports are taken seriously and cited in public policy debates as if they were the truth. Organizations that have played fast and loose with numbers retain their reputations, when by all rights they should be treated as having completely forfeited their credibility, and their next report will be taken seriously as well.

The State of Washington intends to finally carry out justice on Friday for the rape, torture, and murder of Holly Washa in the Seattle suburbs in 1991, reports Shannon Dininny of AP. This is significant for several reasons:

First, and foremost, this is the just punishment for Cal Coburn Brown's crime, and he has evaded it far too long already.

Second, this will be the resumption of executions in Washington after an 8-year hiatus. Although the number of people who support the death penalty has not dropped significantly in recent years, according to Gallup, some supporters are not as strong as they used to be due to a fatigue factor. When executions remain blocked, some people are prone to throw in the towel and assume we will never fix the problems in the review system.

Third, Washington is in the Ninth Circuit. It is important symbolically to demonstrate that it is possible to get death penalty cases through even in the worst circuit (in this case, with a little help from the Supreme Court).

Fourth, Washington is not in the South. One of the strategies of the anti side is to try to isolate the death penalty to the South, then convince the rest of the country that it is just another regional aberration, invoking all the old stereotypes. Resumption of executions in Ohio and now in Washington works against this strategy.

There will, of course, be the usual last-minute throw-everything-against-every-wall paper blizzard.  Let us hope that long-delayed justice will be carried out on Friday nonetheless.

Update: As "federalist" notes in the comments, the Washington Supreme Court has denied a stay. Washington courts press release with links to the orders is here. Seattle Times story by Jennifer Sullivan is here.

Legalizing Marijuana:  Doug Berman posts links to two recent op-eds calling for the legalization of marijuana and other drugs.  The first piece discussed by Berman was printed in last week's Economist and discusses the United Nation's March 2009 meeting "to set international drug policy for the next decade."  The editorial states that because "[p]rohibition has failed" "the least bad policy is to legalise drugs."  A second, more recent op-ed by Dave Stancliff appeared in Eureka's Times-Standard.  His piece calls to "jumpstart California's sagging economy" by legalizing drugs.  The op-ed discusses California's consideration of Tom Ammiano's AB 390, a bill which would "legalize the possession, sale, cultivation, and other conduct relating to marijuana and its derivatives by persons 21 years of age and older."  The bill would setup a system for its taxation and regulation.  On the issue of legalization Berman comments that while he is "not holding my breath...tough economic times certain make this a better possibility now than probably any other time is my lifetime."

Supreme Court Declines to Hear Victims' Challenge to Gunmaker Immunity:  Hat tip to Howard Bashman at How Appealing for providing a link to Greg Stohr's report on the U.S. Supreme Court's decision not to hear victims' challenges to a 2005 law shielding gunmakers from lawsuits that seek to hold them liable for urban violence.  In New York v. Beretta former Mayor Giuliani sought court-ordered changes to industry practices to keep illegal guns out of the city.  Lawson v. Beretta similarly involved nine people who were either injured by gun violence or were representing people killed by assault weapons or machine guns in Washington D.C.  Both cases had been thrown out of lower courts.  According to Stohr, the Obama administration had urged the Court not to challenge the constitutionality of the 2005 Act.  

Comment on Justice Ginsburg's Strickland Dissent:  At Bench Memos, Ed Whalen criticizes Justice Ginsburg's use of judicial dissent as a form of political activism.  In his post, Whalen points to two of the Justice's dissents, Ledbetter v. Goodyear Tire and today's Bartlett v. Strickland, as examples of Justice Ginsburg's political activism.  In her Bartlett dissent, Justice Ginsburg wrote: "Today's decision returns the ball to Congress' court.  The Legislature has just cause to clarify beyond debate the appropriate reading of §2."  Whalen is upset at her steady use of dissent "to invite Congress to legislate on a matter..." Orin Kerr also posts his thoughts on Volokh Conspiracy. 

The felony murder rule is a favorite target of academics and defense lawyers. That is the rule that a killing in the course of certain listed felonies is murder without a showing of intent to kill. The criticism is generally muted, if voiced at all, in the specific case of arson, though. This story by Amy Taxin of AP from Riverside, California, shows why.

Large, destructive wildfires are all too common in the arid "Inland Empire" east of L.A. People often die in them. A person who sets one may not specifically intend to kill anyone, but he has to know that is a strong possibility.

A jury convicted an auto mechanic Friday of murdering five federal firefighters by setting a wildfire that overran them as they defended a home in a rural Southern California mountain community.

Raymond Lee Oyler, 38, was found guilty of five counts of first-degree murder. Because he committed multiple murders and did so while committing another felony -- arson -- he could face the death penalty in a trial phase beginning Tuesday.

At one point, it seemed that the Supreme Court was close to requiring an intent to kill for the death penalty in all cases. They did not do that, however, and California law requires no additional showing for the actual killer in felony murder cases. (There are additional requirements for an accomplice.)  In a case such as this, intentionally starting a wildfire with the knowledge of a strong possibility of resulting deaths is just as culpable a mental state as premeditated murder.

Second Circuit Rules on Mandatory Minimum Statutes:  Doug Berman posts a link to today's Second Circuit decision in U.S. v. Williams.  Williams involved the appeal from judgment against Williams for "a drug trafficking crime which carried a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A), and possession of a firearm in furtherance of that drug trafficking crime, an offense which carried a five-year mandatory minimum consecutive sentence '[e]xcept to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law' under 18 U.S.C. § 924(c)(1)(A)(i)."  A district court in New York had imposed the five-year minimum sentence consecutively, even though the ten-year mandatory minimum was provided for by the predicate the drug trafficking offense.  The Second Circuit held that 18 U.S.C.§ 924(c)(1)(A) was "inapplicable where the defendant is subject to a longer mandatory minimum sentence for a drug trafficking offense that is part of the same criminal transaction or set of operative facts as the firearm offense."

Getting Rid of Peremptory Strikes:  At the Wall Street Journal, Nathan Koppel reports on the "radical" possibility of getting rid of peremptory strikes.  The article briefly discusses two cases that addressed the judge's role in rooting out discriminatory peremptory strikes: Rivera v. Illinois argued before the U.S. Supreme Court last week (CJLF's brief can be found here) and a recent Fifth Circuit decision in Price v. Cain.  Koppel writes that it is unlikely states will get rid of peremptory strikes, but it is possible that states will decide to limit the number of strikes available to each party.   

Defunding the Adam Walsh Act:  At The Heritage Foundation's The Foundry, Cully Stimson has a post criticizing the Justice Department's lack of support for the Adam Walsh Act.

Does Caperton v. A.T. Massey Coal Have First Amendment Implications?:  Jonathan Adler, over at the Volokh Conspiracy, wonders whether Bradley A. Smith and Jeff Patch correctly interpret Caperton as a political speech issue in the context of judicial elections.  Smith and Patch wrote an op-ed for Tuesday's Wall Street Journal arguing that Caperton "is one of the most important cases this term" because of "the free speech consequences of requiring a judge's recusal based on the spending of an independent group."  

Connecticut is one of the smaller states in the union, and it has a relatively low crime rate, so it stands to reason that there would be relatively few murders that cry out for the death penalty, compared to most other states. There are some, though. In July 2007, the home of William Petit and his wife Jennifer was invaded. Jennifer and their two daughters were killed. William was the sole survivor. Joshua Komisarjevsky and Steven Hayes are charged with the crime, and the State's Attorney is quite appropriately seeking the death penalty. Yesterday, Mr. Petit and his sister testified before the General Assembly's Judiciary Committee, which is considering abolishing the death penalty and letting the very worst murderers off with only life sentence. First, they made Mr. Petit wait eight hours, reports Amanda Falcone of the Record-Journal. Then,

Petit sat before the Judiciary Committee Wednesday not knowing what to expect. He still wore his wedding ring, and as he spoke about his late wife and children, he got emotional. Committee members peppered him with questions - some of them personal: More than one asked him why he couldn't just forgive and whether his support for the death penalty went against his wife's wishes.

Let us hope that the legislators in question have genuinely contested elections next time, and that the transcript is available for use by their opponents.

The Idaho Legislature is considering a bill on execution methods. This story by Kathleen Kreller in the Idaho Statesman emphasizes that the bill eliminates the alternative of the firing squad. The more important aspects, in my opinion, are that it (1) removes details from the statute and leaves them to the director of corrections, and (2) allows a coroner rather than a licensed physician to pronounce death.  The first provision allows the flexibility to change the protocol more easily if a legal challenge succeeds.  The second avoids the Catch-22 of physician involvement being both required by statute and forbidden by the ever-expanding scope of doctors' rules.

The bill status page with a link to the full text is here.

The Texas Execution of Willie Pondexter Tuesday night is reported by AP writer Michael Graczyk. Pondexter has claimed that he was not the killer of 85 year-old Martha Lennox, although he admitted shooting the Clarksville philanthropist during a 1993 burglary.  The woman suffered two gunshots, either of which could have killed her, according to the medical examiner.  Pondexter's accomplice, James Henderson, who fired the other shot, remains on death row. 

Richard Allen Davis, the habitual criminal sentenced to die for the 1993 kidnap and murder of 12-year-old Polly Klaas, sought to overturn his conviction in argument before the California Supreme Court Tuesday.  The AP story by Paul Elias reports on Davis' claim that his video taped confession was taken in violation of Miranda, because the police officer who asked him to call if he wanted to talk about the case did not first inform Davis of his right to an attorney.  The officer's offer came while he was transporting Davis for fingerprinting.  He asked if Polly was still alive, and Davis replied that he had nothing to do with her disappearance.  Davis later called and admitted his guilt.  The state's position is that because the police did not know if Polly was still alive, the question put to Davis was allowable under the "rescue doctrine" exception.

More Miranda:  Ohio murderer William Gardner, on death row for setting a fire that killed five children, lost a bid to overturn his conviction yesterday when the 6th Circuit rejected his claim that he did not understand the Miranda warning he received before admitting the crime.  An AP story reports that Tuesday's decision by the full court overturned a divided panel's 2007 holding that Garner, who was 19 at the time, was too stupid and immature to grasp the meaning of words such as "you have the right to an attorney". Ten of the thirteen judges of the full court voted to reinstate the judgment.   

A New Challenge to Warrantless GPS Tracking:  At Blog of the Legal Times, Mike Scarcella posts on an amicus brief filed in the U.S. Court of Appeals for the D.C. Circuit today in U.S. v. Maynard and Jones.  The amicus brief argues that authorities violated search and seizure law when, without a warrant, they installed a GPS device on a drug suspect's vehicle and tracked the vehicle for a month.  According to the court records, a D.C. federal court judge had authorized investigators to install a GPS device on Jones' Jeep but investigators attached the device in Maryland (outside the scope of the warrant) and did not install the device until after the warrant had expired.  At the trial level, the district court judge denied a motion to suppress evidence, saying that the GPS did not violate Fourth Amendment search and seizure restrictions because investigators could have watched the driver and the vehicle as it went around town.  Today's amicus brief argues the decision was incorrect because GPS tracking reveals "a plethora of intimate information about a person's life, including his or her travel to political meetings, places of worship, news media offices, or the homes of friends or lovers."  [In this blogger's humble opinion, a warrant might be needed to attach the GPS, but actual travel to public meetings isn't exactly the sort of thing where one can claim a reasonable expectation of privacy.]

Today at the U.S. Supreme Court:  In a post titled "Supreme Court Debates Judicial Ethics and Rules on Standing, Refugees," Tony Mauro blogs on today's action at the U.S. Supreme Court.  Mauro first writes about today's oral argument in Caperton v. Massey, a judicial ethics case that will address whether an elected judge's failure to recuse himself from a case in which he received substantial campaign donations from one of the parties violates due process.  According to Mauro, in today's argument the attorney for Massey Coal Co. spent much of his time defending his argument that recusal should not be a constitutional due process issue.  Mauro also writes that at one point Justice Scalia wondered aloud whether a recusal standard for elected judges might also affect appointed judges like himself.  Mauro also briefly summarizes the the two opinions that were handed down today in Summers v. Earth Island Institute and Negusie v. United States.  Kent also posted on implications of Summers for capital habeas litigation here.

Commenting on the Web:  Two posts put up today, one by Eugene Volokh at Volokh Conspiracy, and one by David L. Hudson Jr. at First Amendment Center discuss potential legal repercussions of blogging or commenting on the World Wide Web.  Volokh's post discusses a Louisiana Capital Post-Conviction Project attorney's threats to silence the blog comments of Patrick Frey, a Los Angeles County Deputy District Attorney, and the author of the blog "Patterico's Pontifications."  Apparently, Frey wrote a long and detailed post analyzing allegations that 2 prosecution experts in a Louisiana murder case manufactured evidence that helped send the Louisina attorney's client, Jimmie Duncan, to death row.  Duncan's attorney then threatened to file an ethics complaint against Frey if he did not stop commenting on her case.  Volokh wonders if Frey's speech is protected by the First Amendment.  At First Amendment Center, David L. Hudson Jr. writes about Maryland's decision in Independent Newspapers Inc. v. Brodie and how it affects plaintiffs' ability to file libel suits to unmask anonymous online critics. The decision now requires a plaintiff to establish a prima facie case of defamation before a court must unmask the anonymous commentor.    

In social sciences, all studies have limitations and all make assumptions. To the extent that policy decisions are based on them, those decisions are based on knowledge that is less than perfect. What degree of confidence should we require of a study before we consider it in policy-making? Setting the threshold too high can result in an assumption that is even less likely to be true than the one we consider unworthy.

In a comment to Doug Berman's post on my study on the effect of plea bargaining effect on the net cost of capital punishment, commenter "Overburdened Statistics" says that he once thought that we should go with the best information we have available, but now he would apply a more selective filter. At least in the context where a decision has to be made, I think he was right the first time.

Legislatures in several states are being asked to make a decision of monumental importance, to repeal the death penalty. One of the primary arguments is that they will save large amounts of money in trial costs by avoiding the more expensive capital trials. The most widely publicized studies on cost do not include the plea bargaining effect in their calculations. Yet there is no way to avoid making some assumption or estimate of this effect. A study that simply ignores it, as the Urban Institute study of costs in Maryland does, implicitly assumes the effect is zero. Whatever the limitations of my estimate are (and I note some of them in the paper), can anyone seriously claim that zero is a better estimate?

Defending Criticism of Pleasant Grove City v. Summum:  At Bench Memos, Ed Whalen and Matthew Franck defend the Supreme Court's decision in Pleasant Grove City v. Summum against Alan Wolfe's attack at the New Republic blog.  Whalen's post can be found here, and Franck's is here. Both men agree with the Supreme Court's holding that the First Amendment's Free Speech Clause did not give a private group a right to place a permanent monument to the Seven Aphorisms in a city park even though other donated monuments were previously erected.  Both men also rejected Wolfe's argument that the Supreme Court made up a "law out of whole cloth..."  According to Whalen, Wolfe "finds deeply offensive the whole notion of a government's freedom to express its views[,]" despite the fact that the government speech doctrine allows the government to express its views without being subject to First Amendment scrutiny.  

Life Without Parole in Juvenile Cases:  Thanks to Doug Berman at Sentencing Law and Policy for directing us to Michelle Durand's article in the San Mateo Daily Journal discussing California Senator Leland Yee's proposed Bill 399.  Yee's proposed bill would "tweak" California's current law so those convicted under age 18 could have their terms reviewed after 10 years for possible re-sentencing.  Bill 399 follows Senator Yee's Bill 999 proposal to California's Penal Code to prohibit a juvenile who commits a crime from being sentenced to more than 25 years to life in prison.  California's Proposition 21 requires that juvenile charged with murder and special circumstances must be tried, and therefore sentenced, as an adult.

Justice Stevens Speaks at Newseum:  Tony Mauro posts about Justice Stevens appearance last night at the Newseum.  Mauro reports that Justice Stevens appeared to moderate a  discussion on the decision Marbury v. Madison with panelists Clifford Sloan, and David McKean, the authors of a new book called The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court.   Sloan is a partner at Skadden, Arps, Slate, Meagher & Flom, and David McKean, staff director of the Senate Foreign Relations Committee.  Justice Stevens role as moderator did not provide much insight into his views on Marbury, but Mauro reports, Justice Stevens did state that analyzing Marbury "for six week or seven weeks" during his first year at Northwestern Law School "'was the beginning of my legal career."' 

89 year old Manhattan DA to step down: After 35 years as "a prosecutor who has locked up murderous mobsters, corrupt CEOs and thousands of other criminals for five decades," Manhattan District Attorney Robert Morgenthau will not run for re-election, reported in an article by Samuel Maull, of the Associated Press. During the interval when New York had a death penalty, Morgenthau was notorious for his refusal to use it under any circumstances.

Conviction without body: Placer County has successfully prosecuted their first murder case without a body. The Associated Press writes, "a state appeals court has upheld a conviction for the murder in 2005 of a 27-year-old woman who was last seen leaving a Placer County tribal casino." According to the Third District Court of Appeals in Sacramento, there was enough evidence for the conviction and the convicted will serve a 59 years-to-life sentence.

Strained budget excuse to abolish death penalty?: In an article by Diane Jennings of the Dallas Morning News, "death penalty opponents across the country are using the plight of strained state budgets as an added reason to abolish the final sanction." In Texas, the leading state of death penalty executions, those efforts will not work. While the argument of cost has become the debated issue, Dudley Sharp, who monitors death penalty legislation said, "expense 'should not be the primary factor,' for "it's like saying, 'incarceration costs more than probation, so we should get rid of incarceration and only probate people.' It's ridiculous." CJLF's recent study calling into question the premise that repeal would save money is discussed in this post.

The folks pushing death penalty repeal bills are making two promises. First, life imprisonment will provide as much protection to the public as the death penalty in terms of incapacitating murderers from killing again.* Second, substituting life imprisonment for the death penalty will save big bucks in trial costs. What they don't mention is the incompatibility of these two promises. To get the same number of never-release sentences as we get now, a lot more murder cases would have to go to trial, and that increase may largely or entirely offset the savings from eliminating capital trials.

In a study we released today in working paper form, we track murder cases in a sample of 33 of the 75 largest counties in the country. The data are from 1988, one of the few compilations of the data items needed for this study. Not surprisingly, guilty pleas in murder cases with sentences of life in prison or terms over 20 years are nearly four times as common in states with the death penalty as in those without it: 19% versus 5%.

What will happen to the cases in that 14% difference if the state repeals the death penalty? Either cases that would otherwise have been pleaded go to trial or murderers that would otherwise have received life or long sentences get shorter ones. The first option costs dollars, and the second costs lives.

The only previous study on the subject that I found was Ilyana Kuziemko (2006), Does the threat of the death penalty affect plea bargaining in murder cases? Evidence from New York's 1995 reinstatement of capital punishment, American Law and Economics Review, 8(1), 116-142. Her answer was that the second option predominated. In states without the death penalty, more murderers get off with lesser sentences.

CJLF's press release is here. The working paper is here.

Execution in Virginia scheduled for tonight: Jerry Markon, of the Washington Post, writes "the killer of a Winchester police officer, whose case became a flash point in the debate over Virginia Gov. Timothy M. Kaine's views on the death penalty, is scheduled to be executed tonight by lethal injection." Fallen Sgt. Timbrook was chasing a probation violator when he was shot and killed by Edward N. Bell. "An attorney for Bell said the execution should be stopped because his attorneys at trial failed to present any positive 'mitigating' evidence about his life that could have spared him." However, Gov. Kaine said he found "no compelling reason" to grant clemency. As of now, "the execution [remains] scheduled for 9 p.m." See also our Tuesday News Scan post. Update: Bell had to be forcibly carried to the execution, Dena Potter reports for AP.

Crime labs need upgrade: After a two year study, the National Academy of Sciences, found that the nation's forensic crime labs are in dire need of an overhaul. "The panel recommends that Congress create an independent National Institute of Forensic Science that could formulate standards for various forensic disciplines, regulate training and accreditation, and lead research," writes Carol Cratty and Jeanne Meserve of CNN.com. According to the NAS report, "many of the labs are 'underfunded and understaffed, which contributes to case backlogs and makes it harder for laboratories to do as much as they could to inform investigations and avoid errors.'" Chairman of the Consortium of Forensic Science Organizations, Peter Marone, "who also served on the National Academy of Sciences panel, told CNN 'the great majority of labs are doing first-rate work top to bottom, and make an enormous contribution to public safety.'" The National District Attorneys' Association response is here.

Crime cameras: Nate Carlisle, of the Salt Lake City Tribune, writes "after decades of rushing police to Pioneer Park when a crime is reported, Salt Lake City has decided to keep someone--or something--watching the park permanently." Police and residents are tired of the park being resting grounds for the homeless and a drug dealing hot spot. Karen McCreary, the executive director of the American Civil Liberties Union of Utah is opposing the cameras. McCreary is claiming that "the potential threat of personal privacy and individual civil liberties outweigh the benefits," but D. Christian Harrison, president and chair of the Downtown Community Council, said "the park we have is a unique space and sometimes you need to take unique action."

Ohio sets June 3 execution date: Cindy Leise, of the Chronicle-Telegram reports that "the Ohio Supreme Court has set a June 3 execution date for a man who kidnapped an Amherst woman, locked her in the trunk of her car and burned her alive." Daniel E. Wilson, now 39, was 21 when he admitted he had killed Carol Lutz. Sadly, Lutz was not his only victim. Years earlier, when Wilson was only 14, he broke into an elderly man's home, broke his hip, ripped out the phone, and left him for dead. The man died because he was unable to contact medical emergency. Wilson's attorneys are arguing that he deserves a new sentence while stating "that the death sentence imposed in 1992 by former Lorain County Common Pleas Judge Lynett McGough was improper." Really? For now, Wilson is scheduled to be the third execution for Ohio this year.

The Ohio Parole Board has recommended clemency for Jeffrey Hill, who murdered his own mother and ransacked her home to get money to buy cocaine. Intrafamily murders such as this one have an unusual dynamic in that the victim's family is also the defendant's family. In this case, they were all in favor of clemency, and the Parole Board listed that factor first in its recommendation.

The compelling and unanimous opinion of victim Emma Hill's family who favor clemency in this case. the have suffered tremendous loss, and execution would add further to their suffering. The victim's family favors the possibility of parole release.

The full text is here.  A report by Andrew Welsh-Huggins for AP is here.

We at CJLF consider clemency to be an essential part of the process and generally do not take a position on whether it should be granted in a particular case. We do think that the clemency decision should be made earlier, though, without waiting for federal habeas corpus to run its full course. In this case, much litigation expense could have been saved if this recommendation had been made earlier (assuming the governor agrees).

U.S. Supreme Court Chief Justice worries about 'partisanship': Arthur Rotstein, of the AP, writes a story surrounding Chief Justice John Robert's worries. Recently, Roberts was asked, "whether growing partisanship in the confirmation process poses a significant threat to the independence of the judiciary."  His response was, "the courts as a whole are very concerned about partisanship, politicization, seeping into the judicial branch."

An end to Maryland's death penalty?: An editorial in the Washington Times, discusses Governor Martin O'Malley's campaign to abolish the death penalty. "Mr. Miller [the Senate President] is a relative moderate who favors the death penalty" mentions the writer, "but he's under pressure from the orthodox liberals who dominate the Maryland Democratic Party." Fortunately, "the governor's last repeal bill died in 2007 on a 5-5 vote in the Senate Judicial Proceedings Committee, and it was not even considered last year." While politicians argue back and forth, a recent poll "showed that 53 percent of Marylanders support the death penalty, while 41 oppose it."

New Jersey study claims Megan's Law is not a deterrent: Beth DeFalco, of the Associated Press, reports that a recent study is concluding the law "hasn't deterred repeat offenders." According to the report, "registering sex offenders in New Jersey makes it easier to find them when they are accused of crimes, but does little to alter the types of sex crimes committed or the number of victims." Megan Kanka's mother, whose case spurred enactment of the law, said "the laws were never intended to alter the behavior of sex offenders. It was to provide an awareness to the public, which it has done."

Obama to meet with victim's families of USS Cole and Sept. 11: Catherine Herridge, for Fox News, writes about how President Obama's Jan.22 order is affecting the families of victims lost to the bombing of USS Cole and the Sept. 11 attacks. Many learned only through Fox of "the charges in the al-Nashiri case being dropped." It was suspected Al Queda bomber Abd al-Rahim al-Nashiri who confessed last year during a Guantanamo hearing, saying he had helped organize and direct the bombing. Disappointment reigns.  "We've already waited eight years for justice. Justice delayed is justice denied," said retired Navy Cmd. Kirk S. Lippold, the commanding officer of the Cole when it was bombed in Yemen. Though White House press secretary claims the President is still interested in 'swift justice', Senator James Inhofe of Oklahoma reminded, "we must be careful not to send a message to our enemies abroad that were are letting up in our prosecution of the war on terror."

Execution will not be delayed: Garry Mitchell, of the Associated Press, reports that death row inmate Danny Joe Bradley will remain on schedule to be executed February 12, 2009. In 1983 Bradley was convicted for raping and murdering his stepdaughter. Bradley's attorney has attempted more than once to have his case re-examined. Since DNA testing of evidence was not available back in 1983, an "appeal to the Alabama Supreme Court in 2001 granted him a stay of execution pending DNA testing." Some of the evidence had been lost, but the bedding items that did remain were tested and confirmed Bradley's guilt beyond doubt, according to Alabama's capital litigation chief, Clay Crenshaw. Bradley's execution will be the "second of five scheduled in the first five months of this year."

New Jersey's Supreme Court: Reading Miranda warning once is sufficient
Eli Segall of the Associated Press writes about New Jersey's Supreme Court ruling "that a convicted child molester did not need his Miranda rights repeated to him during a police interrogation." The man, whose name was withheld in the article, was initially called into the police station to discuss "claims that his uncle had molested a 9-year-old female relative." Upon his arrival he was read his Miranda rights, and soon after "court records say the man confessed to a range of illegal sexual acts with the girl." The man's appeal, which can be found here, claimed he should be given a new trial because "detectives should have repeated his rights." In the opinion, Justice Barry Albin wrote "when someone is read their Miranda rights, the warnings 'strongly suggest, if not scream out, that a person is a suspect'."

The Normalization of Evil: Judea Pearl, the mother of murdered journalist Daniel Pearl, has this op-ed in her son's newspaper. "But somehow, barbarism, often cloaked in the language of 'resistance,' has gained acceptance in the most elite circles of our society. The words 'war on terror' cannot be uttered today without fear of offense. Civilized society, so it seems, is so numbed by violence that it has lost its gift to be disgusted by evil."

A Different Shade of Green: "Because we care about your life - death penalty for murderers and kidnappers," reads a poster by the Partido Verde Ecologista de Mexico, reports Stephen Gibbs for the BBC.

Richard Allen Davis was once one of the most notorious criminals in America. His brazen kidnapping of Polly Klaas from her own bedroom and subsequent murder of the 12-year-old girl sparked the outrage that led to enactment of California's "Three Strikes" law. His long overdue appeal is finally up for oral argument in the California Supreme Court in March. Why no coverage?  It's on the same calendar as the gay marriage case.

Prison Health Care: Debra Saunders has this column in the SF Chron on the excesses of California's prison receiver.  "They [the prisoners] aren't animals, but they aren't entitled to facilities that far exceed those available to the average law-abiding taxpayer. As [AG] Brown noted, California is spending 'almost three times what the federal government is spending, more than two times what the average Californian gets. When is enough enough?'"

Stay of Execution Brief for Tennessee Prisoner:  Tom Goldstein of Akin, Gump, Strauss, Hauer & Feld has posted his brief requesting a stay of execution for Steve Henley on SCOTUSblog.  He also provides links to Tennessee's response, and Henley's Reply.  Henley, who is on death row for two counts first-degree murder and one count aggravated arson, is asking for a stay of his pending execution under 28 U.S.C. § 2101(f), pending its decision in Harbison v. Bell, because it is unclear whether he has the right to have his Federal Public Defender defend him during state clemency proceedings.  Henley is scheduled to be executed at 1a.m. Central Time, February 4, 2009.

Update: The Supreme Court's orders denying the stay and certiorari, without dissent, are here and here.  An AP story on the execution is here.

A Follow Up on Peretti and Rozzi's Supreme Court Study:  Wall Street Journal Blog has a post by Ashby Jones providing more information on the Supreme Court study discussed in yesterday's Blog Scan.  Jones' post provides a few more details on when Justices have decided to retire their robe: "Thurgood Marshall and William Brennan, two famously liberal justices who resigned while George H.W. Bush was in office. Nixon appointees Lewis Powell and Harry Blackmun each stepped down during Bill Clinton's tenure (though neither was known as a firebrand conservative)."  The article discussed in Jones' post, "How do U.S. Supreme Court justices time retirement? The answer may not be what you think" by Marcia Coyle, can be found here.  For those who have already skimmed Peretti and Rozzi's study, the coolest thing about Jones' post is this zoomable photo of the Supreme Court at Inauguration.