Results matching “thomas”

First Hearing Under Racial Justice Act: Paul Woolverton of The Fayetteville Observer (NC) reports Marcus Reymond Robinson is scheduled today to be the first condemned inmate under North Carolina's Racial Justice Act to present evidence of racism in an attempt to convert his sentence to life without parole. Robinson, who is black, was sentenced to death in 1994 for the 1991 killing of a white teenage boy. The Racial Justice Act gives death row inmates in North Carolina the opportunity to claim that their death sentences are the result of racism, and to use statistical trends as proof of racism in the system. All but seven of North Carolina's 158 death row inmates have pending Racial Justice Act claims.

Arizona Prisons Charging Fee to Visit Inmates: Erica Goode reported Monday in the NYT that the State of Arizona has enacted the first of its kind legislation that imposes a one-time $25 fee on visitors to the Arizona Department of Corrections. The fee will only be imposed on those over 18 years of age, and will help address a $150 million maintenance gap for the Arizona Department of Corrections. The Department of Corrections says the fee will serve to keep the facilities safer for visitors and inmates. Prisoner rights groups have the expected reaction -- they have filed lawsuits.

Gold Fever Sweeps the Criminal Underworld: Thomas Watkins of the AP has this so-titled piece about the surge in robberies and burglaries related to gold after the price of the precious metal peaked last month at $1,981 an ounce, an increase of more than $600 from a year earlier. Police in Oakland say dozens of women have had gold necklaces yanked from their necks on the street, and similar stories are emerging from cities nationwide. Earlier this summer, thieves in New Jersey even took off with $400,000 in gold nuggets from a mining museum display. Gold is an easy substance to fence, as jewelry can be melted down, thus destroying the evidence, and sold.

Off topic but interesting.

260 Days For Ruining A Man's Life: Bonnie Eslinger of the San Jose Mercury News reports a 47-year-old San Jose man was brutally beaten in Redwood City Caltrain station by a mob of nine to thirteen assailants trying to rob him. According to San Mateo Deputy District Attorney Karen Guidotti, Thomas Furman, 29, and his mob started to beat the man when he refused to hand over his valuables and tried to walk away. Furman was later caught using the man's credit card and was sentenced to 260 days in the county jail and probation after pleading no contest to burglary and grand theft charges on Monday. The unidentified victim is receiving ongoing care due to a brain injury that leaves him unable to conduct his daily activities.

Death Penalty Considered for Child Murderer: Prosecutors in Missouri are considering seeking the death penalty in the case against accused murderer and kidnapper Shawn Morgan, 43. Morgan is accused of suffocating his three-year-old neighbor Breeann Rodriguez with a white plastic trash bag, holding it over her face and mouth after he spotted the girl standing by his backyard pool. According to a court document, "Morgan states that he felt like it took an hour for the girl to die." Morgan told police he put the girl's body into the same trash bag, and threw it over a railing into a floodway ditch. Morgan has not yet entered a plea.  Chris Perry of CNN has this story.

Optimistic New Strategy for Philadelphia Police: Philadelphia Police Commissioner Charles H. Ramsey released a plan today that continues to encourage the city's officers to look for creative ways of preventing crime, such as asking the city to fix broken streetlights or clean up overgrown lots.  The plan stresses community cooperation and relies on the realization that small problems and the big are interconnected. Ramsey explains: "Law enforcement is a very small slice of what we do. We're not here to feed the criminal-justice system; we ought to be here to starve it. You have got to be able to come up with ways to keep people out of the system and to keep people on the right side of law." Allison Steele of the Philadelphia Inquirer has this story.

Jury Recommends Death Sentence: Steve Fry of The Topeka Capital-Journal reports that after 55 minutes of deliberation, a Osage County jury decided on a death sentence for James Kraig Kahler for the murders of his estranged wife, two teenage daughters, and estranged wife's grandmother. Kahler shot to death the victims during a 2009 rampage through the grandmother's home. He allowed his son, Sean Kahler, then 10, to escape unharmed. When urging jurors to chose a death sentence, assistant attorney general Amy Hanley said the victims "all died with an awareness that gave them the torture of slow death." Under Kansas law, the presiding judge must now determine whether the evidence supports the verdict.

Guilty Verdict in Major San Francisco Gang Trial: A federal jury in San Francisco jury yesterday returned with guilty verdicts for six members of the MS-13 gang in the city's biggest gang trial in many years. During the four-month trial, prosecutors portrayed the men as as leaders of a heavily armed gang that controlled the San Francisco's Mission District through fear and violence. The prosecutors' case largely relied on informants and secretly-taped conversations with the defendants. MS-13 is a violent gang that originated in Los Angeles by El Salvadoran immigrants, and now has 8,000 to 10,000 members in the U.S. Bob Egelko of the SF Chronicle has this report.

Rong-Gong Lin II reports in the L.A. Times:

Los Angeles County Dist. Atty. Steve Cooley said a new state law to force counties, instead of the state, to jail non-violent felons is a "horribly flawed plan" that would increase crime on the streets.

"Public safety will be seriously jeopardized," Cooley said Tuesday. "We're not kidding. There will be tens of thousands of people let out all over California, who would otherwise be incarcerated.... I've been predicting ... that there will be a spike in crime.

"The state Legislature is abandoning their highest-priority core mission in terms of public safety, shifting it to the counties. And it is a bait and switch. They had a big fiscal problem, so they're abandoning a core mission and the county's going to pick up the pieces, and the public is going to pay the price," Cooley told reporters outside the L.A. County Hall of Administration.

Cooley said there's not enough room in the county jails to house felons who would otherwise go to state prison. Already, county jails are being forced to release their own inmates early.

Cooley is well known in the state (and disliked by some of the hard-core DAs) for his restrained use of the Three Strikes law.  The people who have applauded him for that restraint need to listen to him now.  This bill was a terrible idea, and it needs to be repealed.

Update:  Thomas Watkins of AP has this story on the same subject.  On the SF Chron website, the article is headlined "LA district attorney frets over parolee transfer."  Imagine if the same headline writer had been around on the 18th of April in '75:  "Paul Revere frets over the British coming."

Inmate's "Failure to Warn" Lawsuit to Proceed:  The AP reports a federal judge in Los Angeles has refused to dismiss most of a former inmate's lawsuit claiming that the federal government was negligent in exposing him to potentially deadly disease.  Convicted drug dealer Arjang Panah was transferred to a federal prison in California's Central Valley in 2005, where he contracted coccidioidomycosis ("valley fever"), a disease caused by a fungus found in soil in southwestern United States.  District Judge Gary Feess said the government's immunity in such cases "does not apply to plaintiff's negligence claims to the extent they are based on defendants' failure to warn of the cocci outbreak." 

More Feedback on Police Lineups:  As noted in this earlier post, the New Jersey Supreme Court has ordered that state to change rules governing police lineups.  A piece in Sunday's New York Times by Erica Goode and John Schwartz reports on research raising questions about the reliability of the identification of suspects via lineups, and on efforts by some larger police departments to reduce the pressure on witness and eliminate influence by detectives seeking a suspect. 

Rethinking Clarance Thomas:  "There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarance Thomas is, to put it as bluntly as many liberals do, a dunce and a worm," notes Walter Russell Mead early in this piece from the American Interest.  While liberal pundits and pop academics have stumbled over each other to malign Thomas since the day his appointment was announced, many who actually read Supreme Court opinions have recognized that Justice Thomas' intellectual depth and understanding of the Constitution put him on par historically with some of the Court's best legal minds.  Mead points to a profile of Thomas by Jeffery Toobin in the New Yorker which finally acknowledges that "In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court."  Areas where Justice Thomas is credited with influencing the Court include the First Amendment, Second Amendment and Eighth Amendment.  While characterizing the 2008 Second Amendment decision (District of Columbia v. Heller)  as a constitutional land mine for the left, Mead describes Thomas' effort to seriously restore the Tenth Amendment as "a nuclear bomb." 

A murderer a day shy of his 18th birthday is categorically exempt from a death sentence.  Should that arbitrary cut-off based on chronological age alone similarly exempt him from a true life-without-parole sentence, regardless of the circumstances of the crime and regardless of the length of his criminal record?  Incredibly, a bill to do just that has made it to the floor of the California Assembly.

Margaret Bengs has this article in the Sacramento Bee:

Prosecutors and judges already have discretion in seeking and imposing life-without-parole sentences and have reserved it for the "worst of the worst." Most teen criminals in California are tried in the juvenile court system and must be released at age 25. Of those tried in adult court, only first-degree murder with special circumstances can result in life without parole, and only for 16- and 17-year-olds. All states allow juveniles to be tried as adults in criminal court under certain circumstances, according to the U.S. Justice Department.

U.S. to Stop Deporting Most Illegal Aliens:  Alicia A. Caldwell of the AP reports that many illegal immigrants who have no criminal record will be allowed to stay in the country and apply for a work permit under new rules from the Department of Homeland Security. DHS Secretary Janet Napolitano announced yesterday that the department will focus on deporting illegal immigrants who are criminals or pose a threat to national security or public safety. This decision comes after continued protest by immigrant communities which have criticized the DHS for focusing too much on deporting those whose only offense is being in the country without the proper documents or who have been arrested for traffic violations or other misdemeanors.  House Judiciary Committee Chairman Lamar Smith, R-Texas, said the shift is the administration's "plan to grant backdoor amnesty to illegal immigrants."Missouri City Sets Curfew After Flash Mob Shooting: After a weekend shooting that injured three teenagers who were part of a large late-night "flash mob" gathering in Kansas City, the city on Thursday passed a curfew as early as 9 p.m. for people under age 18, reports Kevin Murphy of Reuters. The ordinance will allow police to issue citations to parents whose children violated the curfew. Passing an ordinance so quickly is unusual, but council members said they had feared a repeat of potentially dangerous gatherings this weekend. 

Lawyer Claims Teenage Girl Will Someday Forget Sex Crimes: Tom Gilchrist of The Saginaw News (MI) reports that the lawyer for former Michigan softball coach Mickey T. Gotwalt, 52, argued to a judge that the 14-year-old female victim of his client's sexual assault crimes will someday forget all about it. Gotwalt pleaded guilty to three counts of second-degree criminal sexual conduct against the female student in return for dismissal of nine other alleged crimes against her. Gotwalt's attorney, Thomas A. Warda of Flint, MI, said to the judge: "I mean (Gotwalt) didn't kill this girl... I mean this isn't - I don't think she's gonna have psychological injury the rest of her life. I mean he'll be in prison, but, you know, she'll have forgotten all about it at some point."  Gotwalt was sentenced to a minimum of seven years and two months in prison.

Tuscan Friars Ask God to Deliver Diarrhea for Basilica Bible Thief: Tom Kington of the Guardian (UK) reports a group of Franciscan friars, angry over the theft of bibles from their church in Florence, have taken an unusual approach to get the thief to come forward by praying that the thief gets struck down by diarrhea and sees the error of his or her ways.  One of the friars admits that it is an unorthodox request but it will be forgiven. "It is not exactly clean language," the friar said, '' but we couldn't put up with it any longer. The Lord and the faithful will understand." Hat tip to Kenneth Anderson at The Volokh Conspiracy for the link.  

Nina Totenberg has this article for NPR on the controversies over the Supreme Court, judicial ethics, and H.R. 862, the bill to make the Code of Conduct applicable to the high court.

While I have been critical of Ms. Totenberg's coverage of the Court on other occasions, I find this piece, well, "fair and balanced."

Capital habeas lawyers regularly denigrate trial counsel for not introducing some item of marginally mitigating evidence or other.  But more is not always better.  Sometimes the evidence can backfire.  Thomas Sheeran of AP reports from Cleveland:

Marine veteran Nolan Coleman testified Wednesday at the sentencing phase of the trial of 51-year-old Anthony Sowell (SOH'-wehl). The jury must decide whether to recommend death or life in prison without parole for Sowell, who killed 11 women.

Coleman testified to highlight Sowell's military service for jurors when they decide whether to spare his life. Coleman testified that a boot camp promotion like Sowell's would mean he was a top recruit.

But under cross-examination, Coleman said Marine training would include how to kill or immobilize with the hands, including pressure points and choking. Most of Sowell's victims were strangled.

If trial counsel had not put Coleman on the stand, habeas counsel would have claimed ineffective assistance for not introducing mitigating evidence.  Now that they did put him on and it backfired, you can bet your bottom dollar that (if Sowell is sentenced to death) they will claim ineffective assistance for opening the door to the backfire evidence.

New iPhone App Fights Back: The San Francisco Chronicle has this article from PRWeb about Thugs Mug, the first safety protection app for the iPhone and iPad 2. When activated the app sends photos to the user's safety contacts along with the GPS coordinates of where the crime is occurring while simultaneously calling 911. The goal of the app is to capture evidence and deter criminals.

No Pensions for Pedophiles: Catherine Lucey and Michael Hinkelman of the Philadelphia Daily News report Pennsylvania state Reps. Brendan Boyle (D) and Kevin Boyle (D) are working on a bill that would disqualify state and municipal workers from getting a public pension if they have been convicted of a sex crime against a minor. Under the state's current pension law, forfeiture rules could cover crimes committed while on duty, but sex crimes committed on employee's own time don't disqualify them. No official action can be taken until September when the state House is back in session.

First Death Row Hearing Under Racial Justice Act: Paul Woolverton and Gregory Phillips of The Fayetteville Observer (NC) report Marcus Reymond Robinson will be the first North Carolina death row inmate to argue to a judge that his sentence should be converted to life without parole under the Racial Justice Act. Robinson was convicted for the 1991 robbery and murder of a 17-year-old boy. Robinson was set to be executed in January 2007, but all executions in the state were postponed indefinitely while the courts sorted out other controversies regarding North Carolina's execution procedures. The Racial Justice Act of 2009 says that death row inmates can seek to have their sentenced converted to life without parole if they have evidence that their sentence was racially motivated. 151 of the 158 inmates on North Carolina's death row are pursuing claims under the Racial Justice Act. Robinson's hearing is scheduled for September 6.

Florida Attorney Asks Supreme Court Justice to Lift Stay of Execution: Bill Kaczor of the AP reports the Florida Supreme Court on Monday ordered a month-long stay of execution for Manuel Valle to allow a trial judge to conduct a fact-finding hearing on whether Valle would feel pain from a new drug Florida plans to use for lethal injection.  Florida Attorney General Pam Bondi filed a request to ask U.S. Supreme Court Justice Clarence Thomas to lift the stay. Valle was sentence to death for killing a Coral Gables police officer and was originally scheduled to be executed on August 2.

Lockerbie Bomber Makes an Appearance at a TV Rally: BBC News reports that Lockerbie bomber Abdelbaset al-Megrahi made a televised appearance at a rally of members of Megrahi's tribe broadcast live from Tripoli.  Megrahi was released in August 2009 on compassionate grounds because he suffered from prostate cancer and was thought to have only three months to live.  A presenter at the rally introduced Megrahi and announced that "half of the world conspired against" Megrahi.

Scott Douglas Gerber has this article in the National Law Journal (emphasis added):

The liberal media have published a flood of stories in recent months criticizing what they consider the ethical problems of conservative U.S. Supreme Court Justice Clarence Thomas....

The media would have the American people believe that we are in the midst of Thomas-gate: a series of ethical problems so sinister and serious that they make Thomas unfit to serve on the bench. In reality, however, we are simply witnessing the latest episode of the media's 20-year crusade against the nation's highest-ranking African-American jurist. Bluntly put, it is apparently an unforgivable sin in the eyes of the media for Thomas to be both black and conservative. It is difficult to forget, for example, that the Times famously editorialized that Thomas was "the youngest, cruelest justice" only four months into his first term on the Court and that the Times has also opined on several occasions, and without credible supporting evidence, that Thomas is not an impartial judge. 

Nothing could be further from the truth.

The author bio at the end of the article:

Scott Douglas Gerber is professor of law at Ohio Northern University Pettit College of Law and senior research scholar in law and politics at the Social Philosophy and Policy Center. His eight books include First Principles: The Jurisprudence of Clarence Thomas (New York University Press 1999; expanded ed. 2002)....

For two examples of misleading coverage of Justice Thomas, see posts here and here.

The US Supreme Court argument calendar for October, the beginning of the new term, is now available.  The criminal and related cases are:

Monday, October 3:  Reynolds v. United States, standing to challenge rules under the Sex Offender Registration and Notification Act (SORNA).

Tuesday, October 4:  Three habeas cases:

Maples v. Thomas:  Ineffective assistance of counsel on state collateral review as cause for a procedural default.

Martinez v. Ryan: Similar to Maples.  Also whether the constitutional right to counsel extends to the first collateral review.

Howes v. Fields:  When a prisoner incarcerated for another crime is "in custody" for the purpose of Miranda.

Tuesday, October 11:  Greene v. Fisher:  As of what time does a federal court ask whether the law was "clearly established" as contrary to a state court decision for the purpose of federal habeas review.

Wednesday, October 12:  Florence v. Board of Chosen Freeholders:  Strip searches in jail.

The long overdue execution of Thomas Paul West in Arizona is scheduled for tomorrow.  A panel of the Ninth Circuit today denied leave to file a successive petition.  This is the same panel (Judge O'Scannlain, Wardlaw, and Callahan) who affirmed denial of West's first habeas petition a year ago.

West is also litigating Arizona's abrupt switch from thiopental to pentobarbital.  His US Supreme Court petition for certiorari to review the state court's rejection of that claim is here.  The docket on his stay application is here.  AP has this story on the Arizona Supreme Court's rejection of that claim.

Update (7/19 @ 07:30 PDT):  KVOA Tucson has this story on the reaction of the family of Donald Bortle, who was beaten, bound, robbed, and left to die by West 24 years ago.

Update 2 (7/19 @ 10:40):  US Supreme Court orders denying a stay are here and here.  No dissent is noted.

Update 3:  Mission accomplished.  Catherine Holland has this story at azfamily.com.

The US Supreme Court's next term does not formally begin until October, but we can already see a major theme shaping up.  There are five cases on the right to counsel, and none of them directly involves counsel's representation in a criminal trial.

William Baude of Robbins, Russell has this article on SSRN on the actual innocence problem, with particular reference to the Troy Davis case.  His bottom line is that judges should not stretch existing procedures, thereby exceeding the limits of their legitimate authority.  Rather, legislatures should adjust the procedures to take better account of importance of actual innocence.

I have come to a similar conclusion in many years of litigating AEDPA.  AEPDA was a hammered-out compromise and therefore nobody's idea of an optimum solution.  It had many problems as a result.  The biggest deficiency, in my view, is that Congress cracked down too hard on the very few habeas petitioners with substantial claims of real "got the wrong guy" innocence and not hard enough on the much larger number who merely contest the sentencer's discretionary choice of sentence within the legal range for their crime.

From the 2006 election to the present, I have been content that Congress do nothing on habeas, given the grave danger that they would enact legislation moving in the wrong direction.  If the balance shifts a bit further in the next election in the same direction as the last, it may be safe to go in the water again.  We could make an actual innocence exception to the statute of limitations to match the one in the successive petition rule.  We could even make a substantive actual innocence ground of relief in capital cases.  In return, review of sentencing claims already decided by the state courts should be boosted from the present so-called "deference" standard to the Stone v. Powell rule used for Fourth Amendment claims.

Once more, with feeling, "actual innocence" in this context means "got the wrong guy."  It does not mean that the defense team dredges up a psychiatric prostitute who will swear the defendant couldn't have formed intent because he had consumed too much alcohol, sugar, or whatever.  See page 29 of CJLF's brief in Maples v. Thomas.

CJLF has filed this friend-of-the-court brief in Maples v. Thomas in support of the State of Alabama.   Maples is a double murderer who was represented by the big-name New York law firm of Sullivan & Cromwell for his state collateral review petition.  However, the big shots blew the deadline to appeal because (1) they didn't bother to inform the state court of a change in the attorneys handling the case; (2) the firm had a strange policy of not letting the attorneys use the firm name in their appearance -- even though the firm touts the work on its web site; and (3) when notices of decision addressed to the individual, departed attorneys arrived at the firm's mail room, the mail room sent them back to the court.

Contrary to what you may have read, Maples was not "abandoned" by the two departed associates.  They left the firm knowing that others at the firm, including a partner, were working on the case.  Maples was actively represented by attorneys at the big firm at all relevant times.

Maples is now represented by former Bush Administration Solicitor General Gregory Garre.  I don't get why so many Bush Administration lawyers are doing work contra bono publico.  Has the country completely run out of worthy causes for volunteer work?

The summary of argument from our brief follows the jump.

The New York Times is a relentless and not especially honest crusader against the death penalty.  At one point recently, as Kent noted, the Times claimed it is now "undeniable" that the death penalty does not deter murder, a claim that is wildly and demonstrably false.  See, e.g., the research collected here by CJLF.

The Times' most recent zinger is in a sidebar by Adam Liptak.  The piece is an unalloyed whack at Alabama's judicial override in death penalty cases.  Under Alabama law, the trial judge may override a jury's recommended sentence, whether life or death.  Since on any number of occasions the override has resulted in the imposition of a death sentence, the NYT is having none of it.

You will not be surprised to learn that the examples Mr. Liptak presents are designed to make the override look as bad as possible.  Thus:

Alabama judges have justified their decisions to override in favor of death on other grounds as well. Judge Dale Segrest, who retired in 2001, said he had rejected one jury's recommendation that a white defendant's life be spared on the ground of racial equality. "If I had not imposed the death sentence, I would have sentenced three black people to death and no white people," he said at a sentencing hearing in 2000.

Judge Charles C. Partin, who sat in Bay Minette, said the defendant before him was probably not mentally disabled, a factor that may have figured in the jury's life verdict. "The sociological literature suggests that Gypsies intentionally test low on standard I.Q. tests," he wrote in a 1990 sentencing order.

Gads, this is really terrible!  How has it survived all this time?  Still.......still.......if you keep reading, you'll see, thirteen paragraphs down the page, and four from the end, one small and cleverly worded line that might tip you off, if you're very, very observant, that there's something you haven't been told.
 

Death Penalty Sought in Fort Hood Killings:  The commanding general of the Fort Hood military post announced today that accused murderer Maj. Nidal Hasan will be tried in a military court and face the death penalty, reports Angela K. Brown of the AP.  Hasan is charged with 13 counts of premeditated murder and 32 counts of attempted murder stemming from a November 2009 shooting spree.

Alleged Rape Victim Testifies at Accused Serial Killer's Trial:  Thomas J. Sheeran of the AP reports a woman who said she was raped by accused serial killer Anthony Sowell defended her accusation during an aggressive cross examination today by Sowell's defense team.  The woman told jurors she was choked and violently raped by Sowell after a night of partying in October 2009, about a week before police discovered the first two bodies in his home.  Jurors were also shown a cellphone video that prosecutors say show a woman falling from an attic window of Sowell's home and a naked man, identified by the witness as Sowell, attempting to move her motionless body.  Sowell's defense team questioned her about her conflicting versions of the attack, including her claim to police that her injuries were from a car accident - a story she testified she told to save her life. 

ATF Head Denies Knowing Details of "Fast and Furious" Operation:  In his first detailed comments about ATF's "Fast and Furious" gun tracking operation, acting ATF Director Kenneth Melson claimed he had only a superficial understanding of the program until after the controversy erupted.  Melson's claims contradict testimony and previously-released documents indicating that he had much more involvement in the operation, including emails released at a hearing last month showing Melson seeking to watch from his desk live hidden camera footage from cooperating gun shops that sold ATF-tracked guns.  Evan Perez has this story in The Wall Street Journal. 

Humberto Leal is scheduled for execution in Texas tomorrow.  He was convicted of the rape and murder of Adria Sauceda, just 16, in 1994.  Among the evidence against him was Adria's bloody blouse found in his home.  AP story is here.

The Vienna Convention on Consular Relations requires notification of the consulate when a foreign national is arrested.  Leal immigrated to the U.S. from Mexico at the age of 1 1/2.

Article 36(2) of the Vienna Convention provides that rights under it must be asserted within the procedural rules of the jurisdiction.  In Breard v. Greene, 523 U.S. 371 (1998), the United States Supreme Court held (correctly, in my view), that this includes the same procedural default rule that applies to other rights, including those established by the Constitution.

The cases of a group of Mexican nationals, including Leal, went to the International Court of Justice.  That court held in 2004 that the procedural default rule could not be applied, at least in the circumstances of these cases.  The prisoners were entitled to hearings on the merits of their Vienna Convention claims, it said.

9th Circuit Halts Forced Medication of Jared Loughner:  The AP reports the Ninth Circuit late Friday ordered federal prison officials to stop forcibly medicating Jared Lee Loughner.  A federal district judge ruled last week that officials could administer anti-psychotic medication, deferring to prison doctors who determined Loughner posed a danger.  Briefing by federal prosecutors and Loughner's defense team must be submitted by tomorrow.

Case Closed on 130-Year-Old Murder Case:  A British coroner has identified a skull found in a British garden as the remains of Julia Thomas, a wealthy widow who was murdered by her housekeeper in 1879.  The coroner's ruling closes the case on the 130-year-old murder.  The AP has this story.

Texas Town Lays Off Entire Police Force:  The east Texas town of Alto, population 1,200, has been left with no police force after the city council cut the police budge to zero, reports CBS News.  The patrol cars have been placed in an impound lot and all five police officers furloughed for at least six months.  CBS News Correspondent Don Teague says Alto has been experiencing a crime spree recently, including the burglary of a construction company located across the street from the now-vacant police station. 

There have been several stories in newspapers lately focusing on Justice Clarence Thomas.  Unfortunately, these stories have invariably been skewed so as to give the reader a distorted view of Justice Thomas's jurisprudence.

The most recent installment is this article by David Savage in Saturday's Los Angeles Times.  He brings up the old Hudson v. McMillian controversy from 1992.  Justice Thomas's dissent in this case is among the most misrepresented opinions in the modern history of the Court.

Notwithstanding my deservedly strong condemnation of the Ninth Circuit's record this morning, it is a large court with some (not enough) very good judges.  Today in Bible v. Ryan, USCA9 correctly enforced the most successful of Congress's 1996 reforms, the strict limit on a second federal habeas petition by a murderer who has already had one petition heard and rejected.

Twenty-three years ago, Richard Bible kidnapped, molested, and murdered Jennifer Wilson, age 9.  His appeals took far too long, culminating in a Ninth Circuit opinion issued two years ago.  He has an execution date of June 30.  He waited until this spring, ten years after Arizona enacted a DNA testing law, to ask for testing of some hair found at the crime scene.

As is so often true in these cases, the test would not prove anything even if it did come out the way Bible claims.  "Whatever the DNA testing of the hair
evidence might reveal, it could not refute the overwhelming inculpatory evidence
presented at Bible's trial."

The panel of Judges Gould, Clifton, and Bybee denied permission to file a second habeas petition and denied a stay of execution.

Update (6/29):  The US Supreme Court today denied a stay of execution and a petition to review the decision of the Arizona Supreme Court in the same case.  The high court has no jurisdiction to review the Ninth Circuit's denial of permission to file a successive petition, and no petition for rehearing is permitted in the Ninth itself.  See 28 U.S.C. §2244(b)(3)(E).

Update 2:  Judge Thomas of USCA9 issued an order authorizing Bible to petition for rehearing of the stay order despite the fact that petitioning for rehearing of the successive petition order (without which there is no reason to stay) is expressly forbidden by law.  Bible filed the petition, the state responded, and no judge called for a vote, resulting in denial -- all within one day.  Courts, even USCA9, can move on these things when they want to.  It shouldn't take an imminent execution to make them want to.  AEDPA was supposed to fix that.

Judge Blocks Parts of Georgia's Illegal Immigration Law: Jeremy Redmon of The Atlanta Journal-Constitution reports U.S. District Court Judge Thomas Thrash has temporarily halted portions of Georgia's new anti-illegal immigration law pending the the outcome of a lawsuit challenging its constitutionality, including a section that empowered police to investigate the immigration status of suspects who they believe have committed crimes and cannot produce identification.  Judge Thrash also rejected several other challenges to the law and upheld the portion that would require many Georgia businesses to use the federal E-Verify system.  In his order, Judge Thrash characterizes the "widespread belief that the federal government is doing nothing about illegal immigration" as "the belief in a myth" and that the concerns expressed by the federal government and Mexico "underscore the conflict between [the Georgia law] and federal immigration law."

Accused Arizona Shooter's Attorney Seeks to Stop Forced Medication: John R. Emshwiller and Tamara Audi of The Wall Street Journal report that attorneys for Jared Loughner, the accused shooter of Rep. Gabrielle Giffords and 18 others, have filed an emergency motion seeking to block federal authorities from forcibly medicating him. The motion alleges that federal prison officials declared Loughner to be a danger to others, thereby permitting forced medication, but the Bureau of Prisons spokeswoman said she could not comment on whether such medication has begun.

Much of the discussion on the Supreme Court today will likely be in the violent video game case, Brown v. Entertainment Merchants Assn., No. 09-1448.  (Gov. Moonbeam is automatically substituted as a party for the Governator.  See S.C. Rule 35.3.)

It's not really up our alley, so I won't discuss it in depth on this blog.  The split among the Justices is interesting, though.  Justice Scalia takes a straight First Amendment approach along the same lines the Supreme Court used in olden days to legalize pornography.  This is content-based regulation.  Strict scrutiny applies.  The statute fails that test (as statutes almost always do).  Justices Kennedy, Ginsburg, Sotomayor, and Kagan concur.

Justice Alito, joined by Chief Justice Roberts, concur in the judgment.  They would strike down the statute on due process grounds as too vague, leaving to another day what they see as difficult First Amendment questions regarding applying old rules to new technology.

Justice Thomas does not see the First Amendment question as difficult.  Speech to minors bypassing the parents is not within "the freedom of speech" protected by the First Amendment as originally understood.

Justice Breyer believes the statute passes strict scrutiny, and he appends a 15-page list of "peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games."

This should throw a wrench into the "justice agreement statistics."

Today the U.S. Supreme Court decided Bullcoming v. New Mexico, the sequel to Melendez-Diaz v. Massachusetts on lab techs and the Confrontation Clause.  The decision was 5-4 for most of the opinion, written by Justice Ginsburg and joined by Justices Scalia, Thomas, Sotomayor, and Kagan.  One part of Justice Ginsburg's opinion, though, was joined only by Justice Scalia.  The dissent is by Justice Kennedy joined by Chief Justice Roberts, and Justices Breyer and Alito.  For cases in this line, the lineup typically does not follow the usual "conservative v. liberal" labels.

Bullcoming rear-ended another vehicle and took off but was apprehended.  He was obviously drunk without any forensic evidence, but the lab test showed his blood alcohol at .21.  In New Mexico, topping .16 qualifies for aggravated DWI, also known as "drunk as a skunk."  By the time of trial, the lab tech who did the analysis and prepared the report was on "unpaid leave" for undisclosed reasons (which probably means some kind of discipline issue).  Another tech testified as to lab practices.

The New Mexico Supreme Court in Bullcoming thought it could get around Melenez-Diaz by saying the tech was a "mere scrivener," simply recording what comes out of the machine.  I worked in labs for several years, both as a worker bee and later as a manager, and I knew that holding was, well, bull.  The technician's skill and meticulousness matters.  When a sample was especially important, I made damn sure the test was done by one of the good ones.

So where does this leave us as a practical matter?  Testimony in every case by the technician who ran the sample is potentially a huge problem.  People leave organizations, not always on good terms.  People sometimes die before their time.

Like chopping down an oak tree with a hatchet, the Supreme Court today took another chunk out of the abominable rule that courts must blind themselves to valid, probative evidence as a means of enforcing the Fourth Amendment.  The vote was 7-2 overall.  Justice Alito wrote the opinion, joined in full by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and, interestingly, Kagan.  Justice Sotomayor wrote a separate opinion concurring in the judgment and noting that the rule established was not as broad as the dissent implied, but she did not express any disagreement with anything in the majority opinion.  The opinion in United States v. Davis is here.  CJLF's amicus brief is here.

The Supreme Court established nearly thirty years ago in United States v. Leon that evidence should not be suppressed when the police rely on a magistrate's decision to issue a search warrant.  If good-faith reliance on a magistrate's assessment of probable cause is good enough, shouldn't reliance on a decision of law by a United States Court of Appeals be good enough?  Obviously, so the defendant had to get creative to argue to the contrary.  One argument was that applying the good-faith exception to this circumstance would effectively return to the old framework for retroactivity law abandoned in Griffith v. Kentucky and Teague v. Lane.  Another was that suppression of evidence was needed to create the incentive and standing needed to bring cases questioning precedent to the Court for review.

Joan Biskupic has this article in USA Today on Justice Thomas's record in criminal cases.  Her theme is accurately reflected in the headline, "Clarence Thomas takes hard line on defendants."  That is true in many ways, many of which are summarized in the article.

But how does Biskupic deal with Justice Thomas's key role in the Apprendi and Crawford lines of cases?  Those two pro-defendant lines have made revolutionary changes, and Justice Thomas has had a major role, including providing the decisive fifth vote in Apprendi.  This term he refused to join Justice Sotomayor's opinion in Michigan v. Bryant, which may have significantly undercut Crawford, although he agreed with the result on narrower grounds.  What does the USA Today story say about that?

Nothing.

The US Supreme Court decided two federal sentencing cases today.

Sykes v. United States involves the chronic problem of defining a "violent felony" for the purpose of the three strikes provision of the Armed Career Criminal Act.  (If that sounds familiar, see Monday's post on the "serious drug offense" provision of the same act.)  How about fleeing an officer in a car?  The facts of the case are nowhere near the kind of chase involved in Scott v. Harris.  Even so, the Court affirmed the sentence.  Those who like to track Justice agreement and label them by ideology should note the split -- Kennedy joined by Roberts, Breyer, Alito, and Sotomayor and joined in the judgment by Thomas.  Scalia, Kagan, and Ginsburg dissent.

DePierre v. United States asks the seemingly easy question of whether "cocaine base" in the drug statute means "cocaine base" or whether Congress used that term when it really meant "crack cocaine," which is one variety of cocaine base.  The Court holds unanimously that the statute means what it says.  Opinion by Justice Sotomayor.  Justice Scalia grouses separately about the use of legislative history (which he considers bunk) to interpret a statute that is clear on its face.

Note that we are now seeing former SG Kagan in federal criminal cases, so the cases from which she is recused have apparently been largely flushed from the pipeline.

A federal statute, 42 U.S.C. §1983, allows civil suits against state and local officers for violations of federal rights.  That sounds fine except for the fact that those rights are so vaguely defined that in many contexts we won't know whether an action was proper or a violation until a judge rules years later.  We don't want cops walking on eggs for fear of being sued on every marginal judgment call so that they don't protect us from the bad guys.

The Supreme Court's solution to this is "qualified immunity."  The cop can't be held personally liable unless it was "clearly established" at the time of the act that it was a violation.

Okay, but how does the law become clearly established?  Sometimes a precedent may be set by another kind of case, such as a motion to suppress evidence, but some issues don't come up this way.  For example, excessive force in an otherwise proper arrest does not typically produce any evidence to suppress.

Supreme Court Refuses Appeals for Three Condemned Texas Inmates: The Associated Press reports the U.S. Supreme Court has denied the appeals of three men on death row in Texas, two of whom were convicted of killing children. See Monday's orders list.  No execution dates have been set for any of the three men.

Convicted Ohio Killer Release Prompts Push for Victim's Rights: The Associated Press reports Thomas Craft of Ohio will be released from prison next month, 11 years after he was convicted of killing and dismembering his wife and leaving her body parts at various sites in Michigan, including in a McDonald's dumpster. The pending release has prompted his former wife's family to push for "Lynette's Law," legislation that would require victim approval of the conditions of an inmate's post-release supervision. After learning that Craft planned to moved to Wisconsin to be near the couple's sons following his June release, Lynette Craft's family successfully petitioned the prisons department for in-state monitoring of Craft, who will spend the next five years in a half-way house in Ohio.

Mississippi Execution Scheduled for Later Today: The Associated Press reports Rodney Gray is scheduled to be executed in Mississippi today at 6pm local time after the U.S. Supreme Court denied a stay of execution. Mississippi Governor Haley Barbour also denied Gray's bid for clemency. Gray was sentenced to death in 1996 for killing a 79-year-old woman whose body was discovered on a bridge in 1994 with a fatal shotgun wound in the head.

New York Senate to Vote on Violent Felony Offender Registry: NewsLI.com (NY) reports the New York Senate is set to vote today on "Brittany's Law," a bill that would require violent offenders to register with the New York State Department of Criminal Justice Services upon release from prison. The law is named for 12-year-old Brittany Passalacqua, who was murdered along with her mother in 2009 by a violent convicted felon on parole after serving part of his sentence for assaulting his infant daughter in 2003. The violent felony offender registry would be similar to the New York State Sex Offender Registry and would require offenders to register annually after their release from prison. Several other states have established a violent felony offender registry, including Montana, Illinois, Indiana, Florida, Kansas, Louisiana, Nevada, and Oklahoma.

Convicted Sex Offender Gets 830 Years to Life: The Associated Press reports 44-year-old Bennie Dale Moses of West Sacramento has been sentenced to 830 years to life for sexually abusing a young girl for nine years, beginning in 2000 when she was 12 years old. In March he was convicted on 62 counts of sex and oral copulation with a child, where Yolo County Superior Court Judge Stephan Mock ruled that Moses had previously been convicted of 12 separate "strike" offenses.

First Conviction Under Federal Hate Crimes Act: The Lovely County Citizen (AR) reports that the Justice Department announced today that 19-year-old Sean Popejoy of Arkansas pleaded guilty in federal court to one count of committing a federal hate crime and one count of conspiring to commit a federal hate crime. This is the first conviction for a violation of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, enacted in October 2009. Popejoy could face a maximum punishment of 15 years in prison.

American Society of Magazine Editors' Disgraceful Award:  Cully Stimson has this so-titled post on The Heritage Foundation's blog, regarding Scott Horton's receipt of the American Society of Magazine Editors' award.  Horton published a story in Harper's Magazine in January 2010 claiming the deaths of three Gitmo detainees in 2006 were "most likely" caused by U.S. personnel, rather than suicides as confirmed by Navy investigators.  Stimson writes Horton's story "was a complete fiction and its flaws have been exposed from every conceivable quarter," including military officials and classified documents published by Wikileaks.  For Horton to receive an award for such a piece, Stimson opines, "does not reflect well on the standards for reporters" and is "a disgrace."