Results matching “first”

The Indiana Supreme Court decided Thursday that the death penalty phase for cop killer Zolo Azania could move forward, reversing a lower court ruling that too much time had passed. According to a Post-Tribune article by Jon Seidel, Azania was convicted of murdering a Gary city Indiana police Lt. George Yaros in 1981 and has been resentenced twice, first for Ineffective assistance (1993) then due to a computer glitch which may have tainted the jury pool in 1996. .

The Boston Federal Court of Appeals upheld the death sentence for triple-murderer Gary Lee Sampson, who claimed that the trial judge erred by allowing photos of the victims and the crime scenes. The court sealed the decision for one week in order to allow attorneys to object to any material that should not be made public. Sampson is the first person in Massachusetts sentenced to death sentence under federal statute. An Associated Press story gives more details .

An accused rapist has gone free because Massachusetts law does not define intercourse by fraud or deceit as rape. AP writer Denise Lavote reports the victim's claim that Alvin Suliveres impersonated her boyfriend (Suliveres' brother) and initiated a sexual encounter with her. For the past half century Massachusetts law has defined rape as accomplished only through means of "force against the will of the victim." The court cited a similar case from 1959 and mentioned that the state legislature has had "ample opportunity" to amend the law to include fraud or deceit.

The people of France elected the tough-on-crime candidate president yesterday. The Canberra Times reports, "As interior minister, he cracked down on drink driving, crime and illegal immigration. He promises tougher sentences for repeat offenders. He is intense, ambitious and blunt.... Visiting a crime-ridden housing project in 2005, he called young delinquents 'scum' and refused to apologise."

Stay Lifted: The U.S. Court of Appeals for the Sixth Circuit today lifted the stay of execution obtained in a rather blatant case of judge-shopping. Attorneys for Philip Workman got a stay from the Middle District of Tennessee, even though his case had previously been in the Western District. The opinion by Judge Sutton notes both the lack of probability of success and the extreme delay in bringing the case 9 years after Tennessee adopted lethal injection, 7 years after the normal review of the case was completed, and long after numerous other death row inmate had brought challenges to injection. The execution is scheduled for Wednesday.

Death Penalty A New Jersey Senate committee has become the most recent venue for a hearing to abolish the death penalty according to an AP story by Tom Hester. This is the logical next step following a legislative-appointed special commission's report in January that found the death penalty costs exceed that of life in prison and that it has no deterrent effect on murderers. Not enforcing the death penalty for 44 years might help explain its lack of deterrent effect in New Jersey. The report somehow also missed Kent Scheidegger's presentation which pointed out the the state's life tenured Supreme Court is the reason the death penalty is not enforced. NJ may well become the first state to abolish capital punishment since it's reinstatement 31 years ago.

Oklahoma will be the first in the nation to permit photo buttons of crime victims to be worn at trials if Gov. Brad Henry signs the bill. According to an AP article, Sen. Jim Reynolds introduced the bill and contends that the buttons will pass any legal muster. Although this issue is one that has previously reached the U.S. Supreme Court in 2006, it was not specifically addressed in Associate Justice Clarence Thomas' opinion when the death penalty for convicted murderer Matthew Musladin was reinstated.

Arizona Gov. Janet Napolitano signed the "Nicole Trazler" bill into law last month which requires that inmates serve longer prison sentences for felonies committed while incarcerated. According to an AP story, Trazler was shot to death on Mother's Day of 2006 by her high-school boyfriend Thomas Bliven. He was released from prison just months prior to this incident in August of 2005 for murdering another high-school girlfriend which he only served 14 years for. The mother of Bliven's second murder victim claims that if this law was already in place it could have prevented her daughter's death since Bliven had been written up for 57 major and minor violations while incarcerated.

Death Penalty: Indiana murderer David Leon Woods was executed this morning as relatives of the 77 year old man he murdered during a burglary looked on according to an AP story from the Indianapolis Star.

The unsolved murder cases of nine Massachusetts women between July 1988 to April 1989, are being re-opened by District Attorney Samuel Sutter. The remains of the nine women were found along the highway, and two more were never found. Now the property of former suspect Kenneth Ponte's previous home is being dug up, just to see if investigators can find anything specific to the case. The full article can be found here.

Leaning Towards Death: Jurors said Thursday that 32-year-old Alex Demolle should be sentenced to death for the strangling death and rape of 11-year-old Jaquita Mack in his Oakland apartment in 1999. The jury convicted Demolle of first degree murder with a special circumstance of raping a child in March. The news article of the trial by Henry K. Lee of the San Francisco Chronicle can be found here.

NYPD Trouble: An opinion article in The Wall Street Journal by Judith Miller discusses the federal lawsuits filed by protestors who were arrested during the Republican National Convention in 2004. The suits claim that police arrested nonviolent protestors merely because of their political beliefs. The allegations were based upon an analysis of 600 page "raw intelligence documents" and "summary digests of observations from both the field and the department's cyberintelligence unit" by a New York Civil Liberties Union official. The NYPD says that the surveillance of the convention was to make sure the protestors and New Yorkers were safe.

A common question posed to mental health researchers is whether people with mental illnesses are more violent than those in the general population. For years, the clarion call from advocacy groups was that the answer to this question was a flat "no". However, recent research is beginning to challenge that rather dogmatic view, and in so doing, has enveloped into a controversy. In particular, a recent study from the landmark National Institute of Health CATIE study suggests that for some people with mental illness the answer is yes. Of course, when examining the complex phenomena of mental illness and violent behavior a lot of caveats are in order.

Foreign Treatment: Mexican citizen Jose Medellin, on Texas' Death Row for murdering two teen-aged girls, may get a new sentencing hearing if the Supreme Court upholds a notification requirement of Vienna Convention on Consular Relations treaty, according to this editorial in the Los Angeles Times. Earlier this year the Texas Court of Criminal Appeals may have had the opportunity to settle Medellin's claim by announcing that its earlier review determined the lack of notification did not prejudice his case. Instead the TCCA made a separation of powers issue out of the case with one of its members accusing the administration of engaged in "unprecedented, unnecessary and intrusive" interference.

DNA to the Rescue: The Washington Post has an article out today by Darryl Fears about Jerry Miller, a black man convicted for the rape of a white woman in 1981 who proved to be innocent from DNA. He is the 200th person to be exonerated due to DNA evidence since 1989 and served 25 years in an Illinois prison for rape. It should be noted that DNA evidence has helped identify the guilty in may thousands of cases over the same eighteen year period including, for example, Dwayne Turner for the rape and murder of ten women in Los Angeles (see May 1 News Scan).

Drug Facility Dilemma: Insite, the first facility of its kind in North America (Vancouver, Canada) where drug addicts can shoot up their heroine and cocaine with clean needles with supervision of a nurse, may not be as successful as advertised. The Journal of Global Drug Policy and Practice along with other medical publications assert that Insite's reputation for "reducing overdoses, crime, and HIV risk behavior among injection drug users" have been overstated. Reduced crime is attributed to more police presence and needle sharing is only reduced if the users go exclusively to Insite to shoot up. The full article can be found here.

MacArthur Park Disorder: Los Angeles Police are under fire for inappropriate action at an immigration rally in MacArthur Park on Tuesday. Police Chief William J. Bratton believes the use of force by officers was due to the "dispersal order" announced from a helicopter above the crowd in English only. The editorial in the Los Angeles Times faulted the English only announcement suggesting that it could not be understood or heard over a loud helicopter.

A third aspect of Monday's decision in Scott v. Harris has not received too much notice. It involves a methodological issue, and the mere mention of methodology is generally sufficient to make eyes glaze over. But it's important.

When a case presents multiple issues, as most do, is the court required to decide them in any particular order? Sometimes.  In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court decided that in qualified immunity cases the court should decide first whether the plaintiff's allegations make out a constitutional violation and only afterward decide if that law was clearly established so as to hold the police officer or other official liable for damages. There is considerable grumbling on the Court about that rule.

California Prison News: The recent legislation to solve overcrowding and recidivism in prison passed last week, has been taking some serious criticism. An article in the Los Angeles Times by Jenifer Warren explains what the bill will not do and how much it will ultimately cost. Christian Science Monitor's Ben Arnoldy also has an article critical of the new law. An opinion article in the Sacramento Bee by Daniel Weintraub does however, say that although the legislation may not fix all of California's correctional problems (i.e. parole and sentencing), it is "a good start."

U.S. Supreme Court ruling on the case Scott v. Harris case, mentioned in this blog by Kent Scheidegger, is the first of its kind in the Supreme Court because video footage of the "Hollywood-style car chase" was used to reach a decision. An article in the New York Times by Linda Greenhouse, another article in the Washington Post by Robert Barnes and a piece by David Savage in the Los Angeles Times provide examples of how the print media reported the decision.

Los Angeles serial killer Chester Dwayne Turner was convicted Monday of murdering ten women and the 6-1/2 month old fetus of one of the victims according to this article by John Spano of the Los Angeles Times. Turner raped and strangled his victims between 1987 and 1998. DNA evidence from a 2002 rape conviction linked him to the victims. Check with us later to find out if Snoop Dogg and Mike Farrell launch a protest to oppose a death sentence in this case.

Death Penalty Opinion: Radio commentator Mark Davis of ABC radio explained why he supports the death penalty in this article. He relates how he became an advocate for the death penalty after witnessing an execution by the electric chair in Florida in 1984 when one of the victim's family members said, "Twenty years from now, as I continue to miss holidays, birthdays, every day with my father, I don't want to think of him eating cafeteria meals and reading novels in the exercise yard."

Death penalty investigator Kathleen Cullhane has pleaded guilty of "forgery and falsifying documents on behalf of four death row inmates," according to this article by Louis Sahagun of the Los Angeles Times. Cullhane filed false declarations on behalf of witnesses, jury members, police, and court interpreters seeking clemency for the condemned murderers. Her defense said her actions were in large part because of "her lifelong anti-death penalty beliefs."

This story reports that scientists have for the first time discovered the location where the active ingredient of marijuana (tetrahydrocannabinol) effects the brain. This discovery is due in large measure to the fairly recent discovery of the cannabinoid receptor in humans. This discovery was quite monumental because it proved that the body naturally produces its own "cannabis" known endocannabinoids. It has been shown that cannabinoid receptors are not only located in the brain but also the liver. As such, chronic consumption of marijuana may be associated with liver impairment. Although governmental officials have fired the warning shot about the potency of modern marijuana, there's much more we need to know before making any sweeping statements about the harm of recreational marijuana use. Many people experiment with marijuana without any apparent long term effects. Nonetheless, these studies deserve attention, as it does appear that the potency of most available marijuana is on the rise. The flip side of the scientific progress made in terms of marijuana and the cannabinoid system is that while chronic use of high potency marijuana probably has adverse effects on the body, small doses may indeed have medicinal value.

From today's decision in the police chase case, Scott v. Harris, comes this line that should not be remarkable, but is. "We think it appropriate in this [weighing] process to take into account not only the number of lives at risk, but also their relative culpability." In other words, society should be more concerned with the lives of innocent people than with the life of the person whose intentional, criminal conduct caused the danger in the first place. It is a comment on the state of the Supreme Court's "fleeing felon" jurisprudence that such an obvious statement needs to be made and that it is noteworthy.

Here are some interesting polling data from AP-Ipsos on the death penalty. The AP story by Alan Fram is here. The first question is "Do you favor or oppose the death penalty for people convicted of murder? Is that strongly favor/oppose or somewhat favor/oppose?"

Like most polls on the death penalty, this could be interpreted by some respondents as asking for a single punishment for all murderers, thus understating support for the death penalty for the worst murderers, which is the real issue. To the question as phrased, 42% of Americans said strongly favor, 27% somewhat favor, 17% somewhat oppose, and 13% strongly opposed. Combining the degrees, the result is 69% to 29%* overall, still overwhelming support. In Mexico, where the governing elites are constantly giving us static, the people are 71-26 in favor. South Korea comes in at 72-28. The U.K. and Canada are nearly evenly divided at 50-45 and 44-52, respectively. France is 45-52. Only in the former fascist countries does the opposition win big: Germany 35-62, Italy 31-64, and Spain 28-69.

In a trio of Texas cases today, the Supreme Court waded once again into a problem of its own making. In Jurek v. Texas, 428 U.S. 262 (1976), the high court approved the Texas "special issues" system for death penalty cases, in which the sentence depended on the jury's answer to two specific questions. Two years later, the same court issued its bolt-from-the-blue edict in Lockett v. Ohio, 438 U.S. 586 (1978) that the jury must consider whatever mitigation the defendant offers, without explaining the inconsistency between the decisions. Eleven years later, the court overturned a Texas judgment that complied with Jurek but violated Lockett in Penry v. Lynaugh, 492 U.S. 302 (1989). In the gap between the Penry decision and the Texas Legislature's amendment of the statute, Texas courts struggled to deal with the conflict between their previously approved statute and the new requirements.

Smith v. Texas, comes to the high court through the route of state habeas corpus. It addresses the question of when a state can subject a federal claim to its state procedural limitations on raising objections that were not raised at trial. This decision appears to be a narrow one, based on the unusual situation in this case. Justice Kennedy's opinion for the 5-member majority spends 14 pages on the procedural history.

Steven K. Erickson, JD, LLM, PhD
Department of Psychiatry

Michelle L. Erickson, MD, MBA
Department of Pathology and Laboratory Medicine

Yale University

As mentioned previously, the open-access journal PLoS Medicine has an article claiming that current lethal injection protocols are problematic and audaciously calls for the abolition of the death penalty despite the authors declaimer that “our study is necessarily limited in scope and interpretation.” That limitation, of course, does not bar the authors and the editorial commentary from suggesting that lethal injection violates the Eighth Amendment’s ban against cruel and unusual punishment. Rightly or wrongly, what constitutes cruel punishment under the Constitution seems to be an evolving matter of legal interpretation. As such, getting the science right seems all the more important since the courts often turn to science to inform them of empirical matters when forming their interpretations. This, of course, presents problems since science is inherently exponential: we know more every day and what is thought as scientific fact today may be tomorrow’s scientific fad. Nonetheless, the authors of the PLoS article have raised some vital questions about the lethal injection protocols in several states that is worth commenting on.

From an AP story on a North Carolina poll (emphasis added):

The poll found that 58 percent of adults support the death penalty, but only 48 percent said it's always the most appropriate punishment for those convicted of first-degree murder, according to researchers at Elon University.

Imagine that. Only a shade less than half support a death penalty law vastly more severe than the present law, under which only a small fraction of the most heinous murderers are sentenced to death.

The actual poll is here. "It depends," the answer that reflects the law actually in controversy, is a "volunteered" answer, yet over 10 percent gave it. In polling, the number who actually favor a position is greater than the number who volunteer that option when it is not given. This is a very badly done poll.

Here, by way of comparison, is the euthanasia recommendation of the Royal Dutch Society for the Advancement of Pharmacy, a translation of which is available here.

Based on the information and considerations in Chapter 3, the KNMP's Euthanasics Task Force has amended its original recommendations as follows:

Parenteral administration
Intravenous administration is the most reliable and rapid way to accomplish euthanasia and therefore can be safely recommended.
A coma is first induced by intravenous administration of 20 mg/kg thiopental sodium (Nesdonal) in a small volume (10 ml physiological saline). Then a triple intravenous dose of a non-depolarizing neuromuscular muscle relaxant is given, such as 20 mg pancuronium dibromide (Pavulon) or 20 mg vecuronium bromide (Norcuron).

The present California protocol provides for 6.5 g or 6500 mg. That is more than triple the KNMP's recommended coma-inducing dose even for a 100 kg (220 lb) inmate.

The PLoS article in the news today cites the KNMP as authority for the proposition that pentothal alone is not recommended, but it curiously fails to mention what that organization does recommend.

The Washington Post article by Rob Stein notes at the end:

In an editorial accompanying the paper, the editors of the journal said they were not publishing the study in the hopes of prompting improvements to the protocol. Instead, they are hoping it will fuel a campaign to abolish executions.

Nothing is worse for science than being driven by a political agenda.

The transcript of oral argument in Brendlin v. California is now available. The question presented is whether a traffic stop of a vehicle amounts to a seizure of the passenger so that he has standing to challenge the legality of the stop. During petitioner's argument, it seemed that the case might be decided on a Wong Sun question of whether the evidence was so far removed from the alleged illegality that it would not be suppressed in any event. However, during the state's argument, the justices appeared to back off from that and return to the question presented. Orin Kerr has some first-hand observations at the Volokh Conspiracy.

Va. Tech & Guns: James Q. Wilson has this op-ed in the LA Times subtitled, "Why one reaction to Virginia Tech shouldn't be tightening firearm laws." The New York Times has a contrary view in an editorial yesterday.

Copycats: Three different incidents of copycats have already occurred after Monday's horrible killing spree at Virginia Tech. Matthew Yi's article in the San Francisco Chronicle reported on 28-year-old Jeffery Thomas Carney (Yuba City), who claimed he would "make Virginia Tech look mild." He turned himself in last night around 9:30. Reports came to Police Wednesday after Carney confessed to his Pastor and Aunt of possessing "an AK-47, poison, and explosives." Another incident in California was reported on by Allison Hoffman of the Associated Press. Cristobal Fernando Gonzalez (32) made a threat over his website that he intended to kill 50 students at San Diego State University. Gonzalez claimed he made the phony threat for more publicity to his site. If Gonzales is found guilty of "making a threatening communication via the Internet," he could get 5 years in prison and $250,000 fines. NASA's Space Center in Houston also had a scare after a gunman was reported at the center. The gunman "killed a male hostage and then himself." The complete article by Bruce Nichols can be found here.

Cop Killer Sentenced: Gang member David Hill (23) was sentenced to life without parole today for the 2004 murder of SFPD Officer Isaac Espinoza (29) and the attempted murder of his partner, Officer Barry Parker. Jaxon Van Derbeken, Marisa Lagos, and Wyatt Buchanan of the San Francisco Chronicle also report that jurors rejected a first-degree murder allegation. An enhancement, however, on his second degree murder charge for killing a police officer got him a life sentence without parole.

Gun Control: "Alameda County's ban on possessing guns at the Pleasanton fairgrounds" was upheld by U.S. District Judge Martin Jenkins yesterday. An article by Bob Egelko of the San Francisco Chronicle explains that gun show promoters believe the ban violates their Second Amendment right to own guns. The promoters' attorney, Donald Kilmer believes that the recent federal court ruling overturning D.C.'s handgun ban supports his clients' rights.

The transcript of the argument in Panetti v. Quarterman is available here. Some earlier posts on the case here include a note on this case and the Faretta rule, this post on the filing of the bottom side briefs, and posts here and here on the supplemental briefing.

Virginia-Tech Update: Three articles were written in the Washington Post today discussing the massacre. The first article by Ian Shapira and Tom Jackman gives a more detailed recap of the events that took place yesterday. The gunman was said to be armed with "a 9 mm semiautomatic and a .22-caliber handgun, both with serial numbers obliterated." 7:15 a.m. he killed a young woman and her resident adviser in one of the dorms, then at 9:45 another shooting occurred at the science and engineering building (Norris Hall) shooting 30 faculty, staff, and students. Then took his own life. The second article by Alec MacGillis and Adam Kilgore brings up the issue of the two hour time gap between the shootings where students were not properly notified. It was not until after the killing spree at approximately 10:16 a.m. that students got an email telling them not to move. The third article by Dan Eggen and Paul Kane regarding the postponement of Attorney General Alberto R. Gonzales' testimony to the Senate Judiciary Committee due to the shootings. The New York Times also has three articles out. The first article by John M. Broder and Christine Hauser and the second article by Shaila Dewan focus on eye witness testimonies at the time of the shooting. The third article by Christine Hauser identifies the killer as Cho Seung-Hui, 23 a South Korean English Major.

Panetti Case: Howard Bashman collects articles on the Panetti case, to be argued tomorrow, at How Appealing. Our notes on the briefs are here and here.

N.Y. Addicts: New York is suffering a dilemma with their repeat addicts that come into "hospital detoxification units so often that dozens of them spend more than 100 nights a year in those wards." The article by Richard Perez-Pena of the New York Times, also pointed out that for every 30,000 patients, $300 million dollars was paid to the hospital for detox, and $50 million is spent on the first 500 most expensive patients.

Stealing From Law Firms A private investigator was sentenced to 2-1/2 years in prison and $307,103 in restitution for cheating several big U.S. law firms out of thousands, according to this AP story by Larry Neumeister. Michael Lair (46) of Montana "pleaded guilty to wire fraud earlier this year," and accepted around $200,000 from law firms pretending to have access to information on high profile lawsuits.

32 Killed in a massacre on the Virginia Tech campus as reported by Sue Lindsey of the Associated Press. So far no motive has been discovered for the shootings committed by an unidentified gunman who killed himself before he could be arrested.

Implied Malice The California Supreme Court will soon decide if a San Francisco woman who's vicious 140 lb. dogs mauled a neighbor to death, can be found guilty of second degree murder. A Los Angeles Times story by Maura Dolan reports a superior court judge vacated defendant Marjorie Knoller's second degree murder conviction, deciding that she was not aware that taking her dogs out was likely to result in someone's death. After the judge's holding was overturned by the First District Court of Appeals, Knoller appealed to the state Supreme Court. The case was argued March 6.

Jury Selection: Lyle Denniston at SCOTUSblog has this preview of tomorrow's argument in Uttecht v. Brown, regarding challenges for cause to jurors in capital cases and review of those challenges on federal habeas corpus.

California is building a new execution chamber at the Big Q, according to the Sacramento Bee. Cramped space and poor lighting were among the problems holding up long overdue justice for the 1981 rape and murder of Terri Winchell, then 17.

The Nebraska Legislature defeated an attempt to severely limit the death penalty, three weeks after turning down an outright repeal, according to this story in the Omaha World-Herald.

In Montana, efforts to revive a failed death penalty bill were also defeated, according to this AP story.

New York AG Andrew Cuomo will not support the Queens DA's valiant attempt to get the Court of Appeals to overrule its atrocious LaValle decision and reinstate New York's death penalty, the Daily News reports. Proceedings in People v. Taylor were previously noted here.

In Missouri, the House passed a bill touted as making the death penalty "mandatory" for cop-killers, but it really does not. Nor could it, under Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisiana, 431 U.S. 633 (1977).

Duke Rape Case: All charges have been dropped against the Duke lacrosse players accused over a year ago of raping an exotic dance during a party. The Associated Press story reports how North Carolina Attorney General Roy Cooper gave a damning assessment of how District Attorney Mike Nifong handled the case.

Sentencing law in California is being threatened by Senator Gloria Romero's SB 110, which would create a sentencing commission with the power to set sentencing policy. A story by Andy Furilo in the Sacramento Bee reports that Romero is touting the bill as a way to ease prison overcrowding, which suggests her commission would release inmates and shorten sentences.

Cold Case Challenge The San Diego District Attorney is asking the Court of Appeal to overturn a judge's 2005 ruling to dismiss charges against a man suspected of murdering his parents in 1980. The cold case unit of the San Diego PD built the case according to a story in The Union Tribune by Jose Luis Jimenez. In her ruling, Superior Court Judge Joan Weber decided that the defendant could not receive a fair trial due to the lengthy delay and poor investigation conducted by the police department. Before the appellate court the District Attorney argues that defendants are entitled to a fair trial but not a perfect one.

The Supreme Court of West Virginia has ruled that convicted murderer Anthony Ray Whitt deserves a new trial since he was denied his constitutional right to confront a witness during his first trial. An article in the Charleston Daily Mail by Justin D. Anderson reports that Whitt originally admitted to bludgeoning his father's mistress to death in 2001, but later changed his story once he found out the actual cause of death. Whitt attempted to call his former girlfriend, Lorie Day, to the stand but was denied since she invoked her Fifth Amendment right against self incrimination. The state's highest court found this to be reversible error. A dissent by Justice Elliott "Spike" Maynard is available here.

The New Jersey Supreme Court ruled on Wednesday that prosecutors can use evidence that is relevant to "consciousness of guilt" in the retrial of former NBA basketball player Jayson Williams. Reported in a story here, Williams allegedly attempted to conceal evidence by jumping into a pool and wiping down the shotgun that was used to shoot Costas "Gus" Christofi on Valentines Day in 2002. Williams was previously acquitted of aggravated manslaughter, but jurors could not reach an agreement on the charge of reckless manslaughter which he now faces in a re-trial.

In People v. Cage, S127344, the California Supreme Court has issued its first major decision applying Crawford v. Washington, 541 U.S. 36 (2004) as clarified in Davis v. Washington and Hammon v. Indiana.

Cage was charged with assault by means likely to produce great bodily injury. Her son, John, was taken to the hospital with a 5-6 inch gash on his face and neck. There, he told the doctor and a police officer that his mother had inflicted the wound with a piece of broken glass. Applying the "purpose" language of Davis, the court held that the statement to the police officer was testimonial but the statement to the doctor was not. By the time the officer spoke to John, the confrontation was over and medical personnel were treating him for his injury. The officer's questioning of John was investigation, not emergency response, as in Hammon. On the other hand, the doctor's simple question, "What happened?" was for the purpose of determining treatment, not taking testimony.

Defendant made the creative argument that the California law requiring health professionals to report suspected child abuse transformed this medical inquiry into testimonial interrogation. The court rejected that argument.

The California court criticized and declined to follow the decision of the West Virginia Supreme Court of Appeals in State v. Mechling, 633 S.E.2d 311 (2006). That case held that a statement to a neighbor regarding what happened, made after the emergency was over, was testimonial. The California court reads Crawford and Davis as excluding from "testimonial" statements made without the solemnity and purpose associated with testimony. Nontestimonial statements are not limited to those made during an emergency.

As the police officer's rendition of John's statement was merely cumulative, the court held 6-1 that it was harmless error under the Chapman v. California, 386 U.S. 18 (1967) standard.

Guantanamo Trouble: As discussed in yesterday's post by Kent Scheidegger, the Supreme Court refused to hear the appeals of detainees at Guantanamo Bay. The 45 detainees wanted to challenge the Military Commissions Act of 2006 that restricts federal courts from hearing appeals from the detainees considered enemy combatants. The Supreme Court's denial means that detainees do not have the right to habeas corpus petitions. Two articles, the first by Linda Greenhouse of the New York Times and the second by Amy Goldstein of the Washington Post, further discuss the story.

The Right to Vote: Florida's Governor, Charlie Crist wants the reinstate the right to vote for convicted felons. Currently, Florida, Kentucky, and Virginia ban voting for all convicted felons according to an article by Abby Goodnough of the New York Times. Governor Crist may make it a provision for the felons to pay restitution to victims before receiving their voting rights. The article also points out that Florida can "grant blanket clemency to everyone who completes their sentence."

552 Texas Juveniles will be released starting tomorrow according to a story by Ralph Blumenthal of the New York Times. Thousands more are due for release but had their sentences extended; a revised Texas Youth Commission is reviewing those cases. This came after mistreatment and sexual abuse of the juveniles became public.

First death penalty trial for a woman in South Dakota began yesterday according to this AP story by Carson Walker. Daphne Wright (43) was charged with kidnap and murder of Darlene VanderGiesen (42), a friend of Wright's girlfriend, Sallie Collins. Walker is accused of hacking VanderGiesen's body with a chainsaw and burning it after killing her. Evidence includes receipts for a chainsaw and garbage bags two days after VanderGieson's disappearance.

Nearly unnoticed between Gitmo and global warming, the Supreme Court issued this order in Panetti v. Quarterman, No. 06-6407, a case on mental competency for execution previously discussed here:

The parties are directed to file supplemental briefs addressing the following question: Must petitioner’s habeas application be dismissed as “second or successive” pursuant to 28 U.S.C. §2244? The briefs, not to exceed 15 pages, are to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Wednesday, April 11, 2007.

The Supreme Court denied certiorari in the Guantanamo detainee cases, Boumediene v. Bush, No. 06-1195, and Al Odah v. Rumsfeld, No. 06-1196. Justices Stevens and Kennedy were evidently the swing votes, and they issued a joint opinion "respecting" (i.e., concurring in) the denial of certiorari.

The first reason they cite is the "traditional rules governing our decision of constitutional questions," meaning don't decide them unless and until it is truly necessary, citing Justice Brandeis's concurrence in Ashwander v. TVA, 297 U.S. 288, 341 (1936). Justice Breyer's dissent from denial of certiorari, joined by Justices Souter and Ginsburg, says the constitutional issues are ready for decision, as the D.C. Circuit has already decided that the Gitmo detainees have no constitutional rights, so there is nothing further to decide. In addition, the Suspension Clause right they claim is for the common law's speedy remedy for relief from unlawful detention.

Guest Post by Thomas Gede

While the issue may be novel, the decision in People v. Ramirez (Calif. 3d DCA, 3/28/07) (finding a state court suppression remedy in a federal Indian civil rights statute for evidence seized by tribal police without probable cause from a non-Indian on Indian land) is rather strained. I do not see how the federal statute at issue constrains, preempts or imposes a duty on the state trial court or proceeding. The statute is the Indian Civil Rights Act, or ICRA, which was enacted in 1968, to address the presumed non-applicability of the Bill of Rights to the actions of tribal governments. The Supreme Court had made clear in Talton v. Mayes, 163 U.S. 376, in 1898, that the Fifth Amendment did not constrain the Cherokee Nation from using tribal grand juries whose number of members did not meet the requirements of federal constitutional law, and ultimately and more broadly, that the Bill of Rights simply do not apply to constrain tribal governments in their exercise of self-government. Congress simply restated the Bill of Rights, with certain important exceptions, as statutory law to bar tribal governments from violating the rights there stated. It is clear that the Bill of Rights still does not apply to tribal governments, but it is equally clear that Congress, exercising its plenary power in Indian affairs, does and did have the power to impose the statutory restrictions in ICRA as a limitation on the tribes' inherent powers.

The "bottom side" briefs were filed today in Panetti v. Quarterman, the "too crazy to execute" case. Briefs on both sides are collected here. In a couple of ways, this is a case study in the hazards of constitutionalizing a generally agreed rule.

No one in this case disputes that an insane person may not be executed, just as no one disputed that in Ford v. Wainwright, 477 U.S. 399 (1986). That was the rule at common law, and it was the law in all states with the death penalty well before Ford. The main issue in Ford was who decides whether a condemned inmate is insane and what process is due. However, Ford's transformation of that rule from a universally agreed principle of common and statutory law into a federal constitutional rule means that litigants are now expecting the United States Supreme Court to mark out the boundaries of who is actually "insane" for this purpose. The common law rule was vague, limited by the era's limited understanding of mental illness. (How limited? See The Madness of King George and be very glad you didn't live back then, even as king.)

Virginia Governor Tim Kaine announced that he has vetoed five bills relating to the death penalty. Although there are five bills, they represent, in essence, two proposals. One of them (HB2348 and SB1288) modifies Virginia's "triggerman rule." The other (HB 2750, HB 2347, and SB 1116), includes in the definition of capital murder the killing of a judge or witness for the purpose of interfering with official duties or testimony. Gov. Kaine's statement is that he does "not believe that further expansion of the death penalty is necessary to protect human life or provide for public safety needs."

To merely ask whether legislation expands or contracts the death penalty is simplistic. All capital murder statutes since Furman v. Georgia, 408 U.S. 238 (1972) have, and are required to have, a mechanism that narrows the class of murderers eligible for the death penalty to some meaningful subset of the class of all murderers. The purpose is to make the death penalty less arbitrary by narrowing the jury's consideration of that penalty to cases defined in some objective way to a group that the legislature determines are generally the worst kind. To perform this function, the narrowing factors should neither be so broad as to sweep in most murders nor so narrow as to arbitrarily exclude murders that do belong at the aggravated end of the range.

Virginia's current death penalty law generally excludes anyone who is not a "principal of the first degree," meaning the person who actually did the killing. Distinguishing between degrees of principals and between principals and accessories before the fact is archaic. See generally 2 W. LaFave, Substantive Criminal Law, § 13.1(e) (2d ed. 2003). The triggerman is not uniformly more culpable than others involved in the murder, as the D.C. sniper case made abundantly clear. The leader of a conspiracy who orders another to kill is more culpable, not less, than the person who carries out the order. Virginia law at present allows the death penalty for nontriggermen only in cases of murder for hire, organized crime, and terrorism. John Allen Muhammad was sentenced under the third exception. In Maryland, which has a stricter triggerman rule, he was not eligible for the death penalty at all.

The vetoed legislation would have expanded the rule to allow the death penalty in cases otherwise eligible if the nontriggerman shared the intent of the triggerman to commit a willful, deliberate, and premeditated murder. By allowing the same penalty for both perpetrators when they are equally culpable and eliminating an arbitrary exclusion, the bill would have made Virginia's death penalty a better fit between culpability and sentence. In cases where the accomplice really is less culpable, that fact can be considered by the jury as a mitigating circumstance.

The judge/witness bill is of lesser magnitude, but such cases are rare enough that this proposal cannot reasonably be considered a significant expansion of the death penalty. The Governor's purported reason does not justify his veto.

According to this AP story, the bills passed by a sufficient margin to override the vetoes.

Is PTSD a real diagnosis? Can damage to the brain impair moral decision making? Two new studies examining these topics are worth reading.

The first study by researchers at Harvard Medical School titled Is PTSD Caused by Traumatic Sress? suggests that for many folks there is no link between traumatic events and PTSD. The question that naturally flows from this is whether PTSD is being over-diagnosed.

The next study, titled Damage to the Prefrontal Cortex Increases Utilitarian Moral Judgements appears in the journal Nature and examines damage to the ventromedial prefrontal cortex (sorry, no easy link for description) and moral decision making.

Update: Mind Hacks has some good comments on the PTSD study.

Mental health evidence is a hotly contested area these days. Much of debate centers around two areas: what are behavioral health experts qualified to opine on and how good are their opinions. My colleagues and I have published two papers in this month's issue of Family Court Review on the limits of common psychological tests in family court matters. Although these tests are used most frequently in civil matters such as custody and visitation, they are also used in potential criminal matters such as allegations of abuse or neglect. Our first study concludes that many of the tests used by psychologists for family court evaluations lack scientific rigor to be used ethically in deciding issues such as custody and childhood attachment. Our second paper responds to our critics. Of particular concern are the numerous projective measures (e.g., inkblots) that are often used with children. Most of these tests have no demonstrative validity or reliability in ascertaining important psychological constructs at issue in these cases. Similar to a previous study (.pdf) I published in the New York Bar Journal years ago, inkblot tests are of a particular concern because of the extensive problems surrounding their psychometric properties. One wonders when the American Psychological Association will finally call for their prohibition (I'm not holding my breath)...