Results matching “first”

In January, the new Governor of Ohio, Ted Strickland, granted reprieves in the cases coming up for execution to give himself more time to consider the clemency petitions. As I noted at the time, clemency is a matter that should be considered carefully, and a short extension is in order when necessary for that purpose.

There are news reports today that Gov. Strickland has decided not to commute or further reprieve the first of these sentences, that of Kenneth Biros, whose reprieve expires next Tuesday. Reginald Fields of the Cleveland Plain Dealer reports here. There is no statement on the Governor's web site at this time, however. It would interesting to see his reasoning. In any event, fears that he would misuse the clemency power to effect a de facto repeal of the death penalty appear to be unfounded.

There are generally two valid reasons to commute a death sentence. One is a realistic doubt of the identity of the perpetrator. That is not at issue in this case, according to this AP story. The other reason is that the crime is a clearly mitigated case of the type where the death penalty is rarely imposed, and its imposition represents a clear malfunction of the sentencing process, even when there is no legal reason for a court to reverse. Lest anyone think that Biros is such a case, here is an excerpt from the Sixth Circuit opinion:

Supreme Court : If the number of amicus briefs indicates the importance of a case before the nation's highest court, then Morse v. Frederick makes the top ten in the current term. A story by the Student Press Law Center reports that 23 amicus briefs have been filed in support and opposition to a high school student's challenge to the 10-day suspension he received for holding up a sign reading "Bong Hits 4 Jesus" as the 2002 Olympic torch relay passed his high school. Oral argument is set for March 19.

DC Gun Ban Struck Down: The federal Court of Appeals for the DC circuit has struck down the district's 30-year-old law banning handguns on Second Amendment grounds. According to a Bloomberg News story by Caryu O'Reilly, this is the first time that any federal circuit has done this. The Washington DC law is the most restrictive handgun ban in the nation. The Court's opinion is here.

Death Penalty: A bill to abolish New Mexico's death penalty died in committee yesterday as reported by Diana M. Alba in the Las Cruces Sun News. The hearing was packed with witnesses on both sides including a former District Attorney who now opposes the DP who said, "There is simply no evidence the existence of a death penalty has a deterrent effect". Some of that non-existent evidence of deterrence is available here.

The California Supreme Court has ruled that out-of-court statements or "testimonial" hearsay is admissible against a defendant when the victim's unavailability is caused by the defendant's own criminal violence. Convicted of murdering his ex-girlfriend Brenda Avie, Dwayne Giles unsuccessfully objected to the introduction of statements given to the police made by his victim several weeks prior to her death and made this the basis for his appeal. According an article in the Metropolitan News-Enterprise by Tina Bay, the court decided that hearsay, usually barred, is admissible under the Crawford v. Washington exception "forfeiture by wrongdoing." The reasoning the court applied was that Giles should not be allowed to benefit from his criminal actions and he forfeited his right to cross-examine Avie under the Confrontation Clause because he was in fact the individual responsible for her unavailability.

Implied Malice Prosecutors are asking the California Supreme Court to interpret the definition of implied malice of second degree murder and to set clear guidelines for the standard as reported here in an AP story by Kim Curtis. This is an issue that came out of the second degree murder conviction of Marjorie Knoller which was immediately reduced to manslaughter by Superior Court Judge James Warren. Knoller's dogs fatally mauled Diana Whipple in 2001 and the high court is being asked to clarify the confusion of the standards between the appeals court, which seems to be too low, and the original court, which seems to be too high.

The Death Penalty for repeat child sex offenders in Texas passed the House according to an AP story by Jim Vertuno. The bill proposes to increase the sentence for first time offenses to 25 to 99 years, life without the possibility of parole or the death penalty as an option for hard-core, second time offenses, and elimination of the statute of limitations for many sex crimes against children. Texas is one of six states who have adopted similar laws in an effort to provide harsher punishment for those who repeatedly prey upon young children.

Treating Offenders: Keeping sex offenders in psychiatric treatment after their prison terms , has sparked debate in New York. A three part segment in the New York Times by Monica Davey and Abby Goodnough discusses the pros and cons of Governor Spitzer's civil confinement law citing specific cases from states that already have a form of the law. The other two parts were discussed in yesterday's News Scan. Part III discusses the types of therapy available for sex offenders and how the results of therapy may not work or be valid.

California Supreme Court: The court ruled yesterday that defendant Dwayne Giles has no right "to object to the admission of out-of-court statements of a witness whose unavailability he caused" according to this report by Tina Bay of Metropolitan News-Enterprise. Giles is on trial for the murder of ex-girlfiend Brenda Avie. The prosecution introduced statements made by Avie to police regarding a domestic violence dispute between the couple, this included Giles threatening Avies at knife point. Giles appealed the remarks because he could not cross-examine Avie. The court found the statements admissible under the forfeiture by wrongdoing doctrine.

New trial for 35-year-old Joseph Lee Ard, the first person in South Carolina sentenced to death for fetus death. According to this report by Rick Brundrett, the South Carolina Supreme Court's 3-2 decision held that Ard deserved a new trial because "gun shot residue evidence" was not challenged enough by his defense in 1996.

DNA match to Lorenzo Gilyard for the numerous murders of Missouri women from 1977-1993 were announced Monday in an article by Heather Hollingsworth of AP. Gilyard is on trial for 6 of the 13 murders and faces life without parole. He maintains his innocence.

The Libby verdict is discussed at the Wall Street Journal by James Taranto.

Guest Post by Barry Latzer, J.D. Ph.D., John Jay College of Criminal Justice
There has long been dissatisfaction with the pace of death penalty appeals. Despite a plethora of studies, articles and papers on capital punishment, few academics seem interested in empirically analyzing the time devoted to the capital postconviction process. The reason, though unspoken, seems clear: most want to eliminate the death penalty, not make it more efficient.
Nevertheless, given overwhelming public support and Supreme Court approval (grudging though it may be) the death penalty lives, and seems unlikely to go away. Therefore, there is good reason to study the process, and, where possible, reform it.
Jim Cauthen, my colleague at John Jay College of Criminal Justice, and I just completed a 14-state study of direct appeals in capital cases. We called it Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study. Here are some highlights of our findings:

Justice Department has a new study that discredits prior claims that the death penalty is "hopelessly flawed with errors," according to an article by Richard Willing of USA Today. This study was commissioned to see if there is a way to make the execution process less time consuming. The study challenges the 2000 study by James Liebman, claiming that the system is "broken" because 68% of the cases between 1973 and 1995 were overturned. The study notes that changes in the governing rules are responsible for many of those reversals.

UPDATE: The text of the study is available on the NIJ site.

A fair probability that Kenneth M. Kelley of San Francisco had willingly received child pornography emails was sufficient to support a search warrant for his computer, even though the emails might have been spam, Bob Egelko of the SF Chronicle reports. The opinion is here. Kelley was charged in March of 2005 for "possessing and receiving child pornography." The district court ruled that the search was illegal. However, on Thursday the Ninth Circuit ruled that "the circumstances of their delivery indicated at least 'fair probability' that he had received them willingly," explained Judge Pamela Rymer, joined by retired Justice Sandra Day O'Connor. Dissenting Judge Sidney Thomas however, claims the search violated the Fourth Amendment. Orin Kerr at the Volokh Conspiracy says even the fair probability was not required.

The Ohio lethal injection ruling, previously discussed here, is covered in this AP story.

Over at Overlawyered, there's this post regarding two cases involving police liability. The first case involves a Normal, Illinois police officer who shot and killed 20-year-old Nathan Ruch after he attempted to run down the officer. The decedent's family claims that since the last shot (which was fatal) went through the car's passenger window, the evidence shows that the officer was no longer justified in discharging his shotgun. One wonders how many of us could display the split-second precise judgment that the plaintiff's suggest the officer should have exercised after almost being run down by a speeding car.

The second case involves the Sixth Circuit's reversal of a trial court's finding of liability when the police failed to arrest a drunk driver who later killed another motorist. As overlawyered quips, why is this a federal case?

Cold civil rights cases may be reopened by the FBI. An AP story by Chris Talbott, explains that the Southern Poverty Law Center gave the FBI a list of 74 unsolved cases linked to racial discrimination. U.S. Attorney Dunn Lampton believes however, the cases will remain cold because the statute of limitations federally would have expired, and some of the accused were already cleared in court.

Death penalty again for 41-year-old Robert Wayne Holsey, who shot to death 26-year-old Dep. Wayne Robinson IV. Tim Sturrock's story reports that Holsey was sentenced to death ten years ago, but last year, Georgia Superior Court Judge Neal Dickert "overturned the death sentence, citing ineffective defense counsel." The high court overturned that decision Monday.

Tape of a murder victim's ordeal with her attacker will be heard by a jury Tuesday in Ocean County, NJ. The tape is 46 minutes in length and was found on the victim, Kathleen Weinstein (44). She was held at gunpoint and forced into her car at a restaurant parking lot; she turned on a tape recorder in her pocket when taken. An AP story by Jeffrey Gold explained the tape included pleas from Weinstein and her even trying to help attacker, Michael LaSane (27) find a job. His guilty plea in 1997 was overturned in 2005, he then pleaded not guilty. The tape is copyrighted to the victim's husband and prosecution is trying to ban media access to the tape. LaSane could face "life plus 60 years in prison, with no parole consideration before 60 years."

Mistrial for the courthouse shooting involving Deputy Kimsey Gray, according to a Georgia AP story. Deputy Gray was screening the possible jury members for his case. In August, Gray was attacked with his gun by inmate Timothy Lamer Jones when transporting Jones and three other inmates, Mark Joseph McCarthy, Joshua Shane Marlow, and Bobby Dwayne Martin from court back to jail. Jones was killed and the other three "were charged with conspiring to escape."

More sex offender proposals, this time in Nevada. Governor Jim Gibbon's proposal consists of three parts. First, GPS trackers for offenders that will probably offend again, second, registration before prison release, and finally, "DNA samples from out of state offenders who move to Nevada." All according to KVBC/DT news.

Specific details about sex offenders on Florida police departments' website is the latest sex offender proposal by State Senator Nancy Argenziano as reported by Eddy Ramirez of St. Petersburgh Times. Argenziano wants the public to know details like if the offenders are "repeat offenders...[prey] on children....Romeo and Juliet cases...young adults sexually involved with a teen who could not legally give consent." This is in order for the public to know which offenders to really look out for.

A recent commentary in the journal Scientific American makes a number of assertions regarding pedophilia that are noteworthy -- not because they are insightful, but because they make such egregious assumptions about pedophilia.

Early Release for California prisoners in order to relieve prison over-crowding is now an option that Gov. Schwarzenegger is considering due to the pressured deadline set by federal judges. Supposedly "non-violent" offenders will be the candidates for the early release plan in order to prevent intervention from the federal courts as reported here by Mark Martin. The assumption that criminals specialize and that a person who is in for a "nonviolent" crime does not commit violent crimes is dubious.

The deceptively named group "Taxpayers for Improving Public Safety" issued a press release denouncing "scare tactics" intended to convince the Legislature and the judiciary to allow transfers and construction of additional cells. The release contains this revealing line: "We should all recognize that although at first blush the release of thousand's [sic] of inmates may sound like a wonderful thing...."

Juror Questions: The Supreme Court of Arkansas ruled that judges are acting improperly when allowing questions from jurors to be posed to witnesses and that this practice must end. The order states that this type of questioning "may cause delay, prejudice or error" as reported here by AP.

Racial Discrimination during jury selection is the reasoning a Hinds County Circuit Court Judge gave when he threw out Elicia Hughes' murder conviction and ordered a new trial. The District Attorney who tried the case was surprised and stated in an article by Jimmie E. Gates that witnessing a trial court judge order a new trial before an appeal was a first for her. The judge believed that a mistake was made early in the trial therefore exercised the right to correct it; however, the DA plans to re-try Hughes in the near future.

There’s been a lot of discussion about child pornography statutes, including the 200 year sentence of an Arizona teacher for possession of such materials (details here). But a few new worldwide developments highlight some interesting differences:

• This story is quite interesting. Two teenagers (ages 16 & 17) took some nude photos of themselves and emailed them to each other. Somehow they were discovered and a criminal prosecution followed for production and possession of child pornography. There was no evidence that the defendant (apparently only the female was charged) had distributed the images outside of her boyfriend and the only images in question were of her. Under a Florida precedent, the teens could not be charged for having sex, but the Florida First District Court of Appeals upheld the child pornography prosecution. Thus, the defendant will endure the label of being a sex offender for life because she took some nude photos of herself. Update: The opinion is here; the child abuse chapter of Florida Statutes is here.

• This story reports on a possible new law in Hungary which would allow personal possession of child pornography for images of children aged 14-17 years. Many argue that much of the child pornography is produced and distributed from Russia and Europe (and it was briefly legal in Denmark back in the 1970s), thus, this development is curious.

• Finally, this story, reports that the Netherlands may prosecute virtual child pornography under existing laws. Of course, the Supreme Court struck down a similar law in Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002).

The "bottom side" briefs in the Supreme Court case of Fry v. Pliler, No. 06-5247, have been filed. Our collection of the briefs is available here. We have also uploaded the Joint Appendix, which includes the unpublished opinions of both the state and federal appellate courts and the federal district court. The petitioner seeks to carve out an exception to the harmless error rule of Brecht v. Abrahamson, 507 U.S. 619 (1993).

1964 Klan case: A federal judge in Jackson, Mississippi refused to throw out federal kidnapping charges against a reputed Klansman in connection with the 1964 deaths of Charles Eddie Moore and Henry Hezekiah Dee, according to this AP story. Kidnapping was a federal capital offense in 1964, but Congress made it noncapital in 1972. Federal law has no statute of limitations for capital offenses, but the usual limit for noncapital cases is 5 years. See 18 U.S.C. §§ 3281, 3282(a). The judge held that the 1972 repeal did not impose a time limit retroactively on earlier cases.

Early Intervention System for the San Francisco Police Department was approved Wednesday by the Police Commission. An article by Susan Sward of the San Francisco Chronicle noted: "the planned computerized system will track use of force, citizen complaints, internal department complaints, officer involved shootings whether anyone is hit or not, legal claims and law suits against officers on-duty accidents and vehicle pursuits." Supervisors will be able to identify problems with officers' conduct faster.

Legislative hearing on the Death Penalty in Georgia Tuesday showed mixed views. Monica Lorraine's (WMGT-TV) report explained that the reform would allow the death penalty in cases without a unanimous jury.

Tennessee's sex offender registry list could double by adding out of state offenders "regardless of when and where they were convicted," reported here by Adam Longo. His report also shows statistics on the amount of sex offenders in different counties, besides those registered. The proposal however is under scrutiny because it is supposedly the first "online sex offender registry that would apply retroactively." An anonymous "local advocate" says Smith v. Doe, 538 U.S. 84 (2003) is distinguishable.

The pro-criminal lobby is apparently on a roll in Maryland. That state already has a relatively lenient rule on allowing convicted felons to vote. First offenders have their right to vote restored immediately upon completion of probation or parole, and even repeaters need wait only three years thereafter. Some states disenfranchise convicted felons for life. But even current Maryland law is not enough for some legislators and advocates, according to this story by Ovetta Wiggins in the Washington Post. Proponents of the change make the usual racial arguments.

Bishop Adam J. Richardson Jr. said it is "unconscionable" that 140,000 former offenders, including 8 percent of Maryland's black population, are disenfranchised because of the voting laws.

This argument commits the common fallacy of looking at people as faceless members of racial groups rather than as individuals with free will. The individuals who have lost their vote lost it by their individual choice to commit a serious crime. The group they belong to should be irrelevant in a society dedicated to judging people by the content of their character and not by the color of their skin.

A Justice Department audit found numerous problems in terrorist-related investigations. An AP story by Lara Jakes Jordan explains that federal prosecutors used unrelated violations such as "marriage fraud" in the terrorism cases. The Department's Inspector General Glenn A. Fine said most of the statistics examined were diminished or inflated.

An elementary school vice principal in Bakersfield could face the death penalty for the murder of his three children, wife and mother-in-law. 44-year-old Vincent Brothers was charged with five counts of first degree murder for Joanie Harper, their children Marques (4), Lyndsey (2), and Marshall (6 weeks), and Harper's mother Ernestine (70). The five were shot and stabbed to death on July 8, 2003. The AP story by Garance Burke also reports a possible change of venue by Defense Attorney Michael Gardina and allegations of involvement from Brothers' brother for a credible alibi.

Cop killer, 39-year-old Steven Bixby (S.C.) was convicted on Sunday for the shooting deaths of Sgt. Danny Wilson and Georgia State Constable Donnie Ouzts in 2003. Meg Kinnard's story reports that Bixby and his parents were upset over 20 ft of their land being used to expand the highway. Bixby and his father claimed they would kill any officer who came on their property. Bixby wrote letters to his girlfriend detailing the killings and explaining how he could have killed more and signing off as "chaotic patriot Steve." Sentencing begins today and he could face the death penalty.

"Deliverance by DNA" is the third installment of Canadian journalist Mary Vallis' articles investigating America's Death Penalty in National Post. How Appealing Blog also discussed the stories here. The final article talks about DNA evidence that is proving some death row inmates' innocence. Specifically, Kirk Noble Bloodsworth, the first inmate proven innocent by DNA for the 1984 brutal rape and murder of a young girl named Dawn in Maryland. The article tells his story and provides some statistics on death row such as, "123 people in 25 states have been released from death row," (Death Penalty Information Center). As with so many articles on this subject, the article mentions the number released in the same sentence with the word "exonerated" to create the false impression that everyone on the list was actually innocent. This claim continues to surface despite being thoroughly discredited.

Tougher laws on sex offenders is becoming a trend in many states. Illinois has hopped on the band wagon for online restrictions towards sex offenders as well as "mandatory treatment and evaluation and residency restrictions" as reported here by Paige Winfield of the Naperville Sun.

Tomorrow is federal sentencing day in the Supreme Court, with the much anticipated oral arguments in Rita v. United States, No. 06-5754, and Claiborne v. United States, No. 06-5618. An interesting article by Frank Bowman is available here via SL&P. While suggesting what the Court should do about Blakely, Bowman reiterates his belief that it was a "huge mistake" in the first place. I second the motion. A commenter at SL&P suggests he dump the hackneyed Humpty Dumpty quote at the top of the article. I'll second that motion, also.

Also at SL&P, Doug Berman gives us this "shameless self-promotion" of links to his prior work on the cases and on Blakely and Booker issues generally.

Lyle Denniston at SCOTUSblog has this post. The Medill write-ups are here and here.

Justice Thomas: How Appealing has this page image of today's LA Daily Journal containing (below the fold) a review by Edward Loya of Henry Mark Holzer's book, “The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative’s Perspective.” The review focuses primarily on Justice Thomas's much-maligned (and misunderstood) opinion in Hudson v. McMillan, 503 U.S. 1 (1992).

Justice Kennedy's appearance before the Senate Judiciary Committee is covered here by Jan Greenburg of ABC.

First-time DUI offenders may have to install an ignition device that checks their blood alcohol level by breathalyzer, before the car can start and periodically checks while driving. A failed test results in the car flashing and honking until the keys are removed. The bill, SB177 will change the current law from a decision made only by a judge to a requirement for first-time offenders. The article by Matthew Yi in the San Francisco Chronicle also reports that out of all the DUI convictions in 2003, only 3.8% required the ignition device. However, a 2004 DMV study showed "no difference in recidivism or other traffic convictions" between first-time offenders with the device and those without it.

Texas seeks harsher punishment for sex offenders who harm children 14 and under. 25 years minimum for first-time offenders, possible death penalty charge for repeat offenders, GPS tracking for life, and doubling the statute of limitations from 10 to 20 years after the victim turns 18 are the four main points in Lt. Governor David Dewherst's "get tough measure" filed Wednesday, as reported here. Questions on the constitutionality of the death penalty for sex-offenders and difficulty in convicting offenders are being raised.

Oklahoma House passed a bill Wednesday that bars registered sex offenders from talking to children via the internet according to an AP story. Offenders must register their online identities and are banned from social networking sites (i.e. myspace). Author of the bill, Rep. Paul Wesselhoff said the legislation would also prohibit physical contact with children "to include contact over the internet" through state law.

The only woman sentenced to the federal death penalty since 1953 is requesting a new trial. A Missouri AP story explains, Angela Johnson 42, and boyfriend Dustin Honken, were convicted for the drug related murders of federal drug informants Greg Nicholson and Terry DeGeus, Nicholson's girlfriend Lori Duncan, and her two girls Kandace (10) and Amber (6). Johnson is appealing her conviction because of various problems in her first trial including an error on the verdict forms.

A Kentucky bill for monitoring convicted sex offenders online was approved by a Senate committee Wednesday. An AP story by Joe Biesk explained that under Senate Bill 65, sex offenders must register their screen names or face one to five years in prison (first time), or five to ten years (second). This bill parallels the federal bill in Congress.

GPS tracking bracelets will be worn permanently by offenders that are sexually violent starting July 1 in Wisconsin. University of Wisconsin Madison Law Professors however, explain the new law is unconstitutional in this AP story by Todd Richmond. The Corrections Department would put the trackers on the offenders after prison release. If an offender goes in a prohibited "zone" the bracelet will alert police.

78 convicted sex offenders were kicked out of public housing in New York on Friday. An AP story explains the offenders were living in the housing illegally and were discovered by comparing a list of public housing residents to the sex offender registry. "Lifetime registrants of a sex offender list may not live in public housing," according to Federal Law.

Battered-women's syndrome was the reason Hudie Joyce Walker was granted a new trial by the Second District Court of Appeal in Los Angeles, according to Bob Egelko's article in the San Francisco Chronicle. She was charged with the second-degree murder of her husband Thomas Walker and is serving a 19 year sentence up to life. She was granted a new trial because had the court allowed psychiatric testimony on battered-women's syndrome, she might have been convicted of voluntary manslaughter.

The death penalty for the murder of 17-year-old Stephanie Sanchez and her fetus (three months gestation) was given Wednesday in Texas to 23-year-old Adrian Estrada according to an AP story by Elizabeth White. The former youth pastor's death penalty ruling is the first for the death of a fetus in the state. DNA tests showed Estrada was the father of the unborn baby.

"A survey by the Metropolitan Council in Minnesota finds that residents of the Twin Cities are more concerned about crime than any other issue. This marks the first time since the 1990s that crime tops the list of concerns," explained a CBS story reported by Esme Murphy of WCCO TV Minnesota.

A 7-4 vote to abolish the death penalty in Colorado and use the money from death penalty cases to try to solve cold case files was decided Wednesday by a House committee in an AP story by Steven K. Paulson.

Abolishing the death penalty was also the topic in Montana on Wednesday. A story by Daniel Testa of NewWest.net explained that the Senate Judiciary Committee heard from proponents of Harrington's Bill, that would make life in prison without parole the "the most severe punishment available to prosecutors and juries in the state."

As noted in the News Scan today, USA Today has an article on proposals "broadening the death penalty," supposedly "countering a national trend toward scaling back its use." Doug Berman at SL&P has this post lumping all proposals together and condemning them as "symbolic politics, not serious policy-making," without any examination of the merits of individual proposals. Actually, the proposals vary widely in their merit.

The purpose of the reforms that followed Furman v. Georgia was to make the death penalty less arbitrary and more proportioned to the offense and the offender. Too much discretion and too little guidance heightened the risk that the decision would turn on illegitimate factors, especially race of the defendant. In the years since, the Supreme Court has boiled this down to two main requirements: narrowing the class eligible to be considered for the death penalty followed by a discretionary decision on whether to actually so sentence a defendant found eligible after considering individual circumstances.

Fairness and arbitrariness necessarily work in both directions. A fair system neither arbitrarily sentences a person to death for a crime nearly everyone else would get life for, nor does it arbitrarily yield a life sentence for a crime that clearly warrants death. Proposals to change the definition of the eligible class or to revise the discretionary decision-making process should be judged on whether they make the system fairer in both directions, not on a reflexive basis of "expansion is bad, contraction is good" or vice-versa.

California Department of Corrections stated Friday that in the next few months, they will start involuntary transfers of inmates to out of state prisons in a story by Andy Furillo of the Sacramento Bee. Up to 2,200 inmates may be transferred due to lack of "bed space."

Possible death penalty charges for the intentional homicide of an unborn fetus and first-degree murder of the mother were announced Thursday in Illinois for 24-year-old Tiffany Hall, in AP story by Jim Suhr. Hall also admitted to drowning the other three children of the victim, 23-year-old Jimella Tunstall. They were found in a washer and dryer. There are no charges yet for the children's deaths, and Hall pleaded not gulity to the first-degree murder and intentional homicide charges.

Tasercams are being used by Louisiana Sheriffs in an AP story. Mini cameras are attached to the bottom of the tasers and begin recording after the safety is removed. The camera can record up to 1 1/2 hours, with sound in any type of lighting. The recordings could then be downloaded to a computer and burned to a cd. The department upgraded the tasers to avoid lawsuits of excessive force and misconduct. At least four people died from past taser incidents. Sheriff Harry Lee hopes the cameras "[will] address some of the complaints about taser abuse."

74-year-old farmer, Kenneth Englund of Bradford Township Minneapolis was charged with second-degree assault for holding a thief at gunpoint (with an unloaded gun) until authorities arrived according to an AP story. The thief, 28-year-old Christian Harris Smith was charged with misdemeanor theft of $5 worth of gasoline from a neighboring farm. The criminal complaint said Englund chased the thief, a woman, and a three-year-old at 70 mph calling authorities, asking if he should "blow them away." Englund's reason for chasing Smith was because the nearest sheriff's dept. was in Cambridge Minn. 15 miles out from Bradford Township, leaving enough time for Smith to escape.

Internet Predators. In a story by Joe Garofoli of the San Francisco Chronicle, Myspace is supporting a measure in Congress called the "Keeping the Internet Devoid of Sexual Predators Act of 2007. The measure proposed Tuesday would make it a crime for anyone 18 years or older to misrepresent their true age with the intentions to engage in sexual conduct with a minor. Critics see this as nothing more than an attempt to "window dress" the true issue. These criticisms include that only the dumbest of pedophiles would actually use their email address, (which is required to be disclosed by the Act) and that it is too easy to obtain another unknown email address, therefore the proposed law would only put a minor dent in the major issue of sexual predators who prey on innocent children via internet.

Death Penalty. According to a story In the Fort Wayne Journal Gazette by Niki Kelly, Indiana is debating a bill which would prohibit the mentally ill from receiving the death penalty. Adoption of such a law would make Indiana the first state to allow a judge to determine, in the beginning of a case, if the accused suffers from any severe mental illnesses. Critics of this bill feel that Indiana legislators do not trust their citizens to weigh the evidence to arrive at the appropriate conclusion at the sentencing hearing.

Howard Bashman over at How Appealing has this post regarding the death sentence for a man convicted of killing 2 Staten Island detectives. He notes that this is the first successful death sentence (albeit via a federal prosecution) in NY in quite some time. A New York Times story by Michael Brick is here, and a Washington Post column by Jabari Asim is available here.

As I discussed in a previous post, there’s much talk about sex offenders but a lack of good science. One of the most discussed areas in terms of sex offenders is risk of recidivism. While some say recidivism risk is relatively low among sex offenders, others disagree and praise the severe civil restrictions mandated for many sex offenders. Where does the truth lie? Like so many things in life, it’s a mixed bag.

As expected, the Supreme Court reversed the decision of the Ninth Circuit in a deportation case, Gonzales v. Duenas-Alvarez.

The Texas Special Issues

Tomorrow is Texas day in the Supreme Court, as the Court once again confronts a mess of its own making. The underlying problem is the Texas system of "special issues" in capital cases. That system was designed in the wake of Furman v. Georgia, 408 U.S. 238 (1972). In that case, the Supreme Court told Congress and the states that all their death penalty statutes were unconstitutional, but it wouldn't tell them precisely why or how to fix them; they had to guess.

   Today's decision in Burton v. Stewart resolves a habeas procedural issue that should have been obvious. (See my postargument post here.) A defendant whose conviction is affirmed but whose sentence is reversed in the state court cannot file one federal habeas petition attacking the conviction and then go back with a second petition attacking the resentencing after exhausting his state remedies on the second round. That is a successive petition, and it is subject to stringent, almost-never-met conditions of 28 U.S.C. § 2244(b). The briefs in the case are collected here.

   The odd thing here is that five federal jurists so casually brushed off the state's successive petition argument: the magistrate judge, the district judge, and the three judges of the court of appeals panel. Clear statements that there is only one final judgment in a criminal case -- the one including the sentence -- go back at least as far as the 1937 Berman case, quoted on page 9 of the opinion and page 8 of my brief.   A second petition attacking the same judgment is successive, unless the first one was dismissed on a ground not going to the merits, such as failure to exhaust state remedies.

   The case is worthwhile to clear up a point that apparently wasn't obvious enough. It probably won't be the subject of many law review articles.

   Doug Berman at SL&P asks if the Court should just have "dismissed as improvidently granted" (DIG'd, in SCOTUS parlance).

More details on the Panetti case are available in this story by Linda Greenhouse in the NYT.

Despite, or perhaps because of, his mental disorders, Panetti chose to represent himself at his trial, and so long as he met the standard of competence to make that decision, the trial judge had no choice under the Supreme Court's 1975 decision in Faretta v. California, 422 U.S. 806. Justice Blackmun had warned in dissent that the Court was creating a constitutional right to be a fool. In some cases, that means being a crazy fool. When a marginally competent defendant makes a Faretta motion, the trial judge is caught between Scylla and Charybdis. If the judge denies the motion and a reviewing court determines that the defendant was, in fact, competent to make the foolish choice, the resulting Faretta error is reversible per se. If the judge grants the motion, the trial can become a farce. Although reexamining Faretta is not the question presented in the present posture of this case, we can hope that the Court will understand that but for its ill-advised decision, Panetti would have had a lawyer who could have made a good case in mitigation from his mental illness and quite possibly avoided the death sentence in the first place. In an appropriate case, the Court should provide trial judges some slack between the level of competence at which the judge must allow the defendant to represent himself at the level at which he must not.

The New Jersey Death Penalty Study Commission has issued its report, and to the surprise of almost no one, they recommend that the Legislature do officially what the New Jersey Supreme Court has done unofficially, abolish capital punishment in New Jersey.

New Jersey has not executed a single murderer in the modern (post-Gregg) era. When the commission asked me to testify, I took my first real look at that state's capital cases. Although I have become somewhat jaded by many years of working in this area, I was truly surprised at the brazenness of the NJSC's obstruction of capital punishment. What I found is worse than the California Supreme Court under the notorious Rose Bird. Yes, it is even worse than the Ninth Circuit.  Here is an excerpt from my testimony:

The blogger at Ohio Death Penalty Information has been having convulsions this week over a couple of my remarks.