Results matching “thomas”

Can Scott Panetti be executed for the murder of his wife's parents, Joe and Amanda Alvarado? We don't know. What is the standard for determining mental competence for execution? We don't know. Can a condemned murderer omit any claim of incompetence in his first federal habeas petition and then claim incompetence in a new petition without meeting the stringent requirements set by Congress for "second or successive petitions"? Yes, but he probably has to ask the state court first, and Congress's limits on relitigation will apply if the state court doesn't blow it.

That's pretty much what today's decision in Panetti v. Quarterman says. Procedural issues are resolved largely as expected, but the substantive Eighth Amendment question is not resolved. Justice Thomas in dissent calls this decision "half-baked."

The bright side of today's opinion is that Justice Kennedy makes clear we are talking about psychotic disorders, not the broad sweep of "mental illness" as including every collection of behaviors that has a code in the APA's Diagnostic and Statistical Manual (DSM). Here is the best part:

Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It is a psychotic disorder.

Here are articles on the case by Pete Yost of AP and Charles Lane of the WashPost.

The new issue of the Journal of the American Academy of Psychiatry and the Law is now available on-line and is freely available for the time being. There are two articles worth noting.

The first profiled here is a new paper examining the myth surrounding the notion of antipsychotic drugs as "mind controlling" agents. That paper has been published here.

The second paper by Thomas Grisso, Ph.D. from the University of Massachusetts Law-Psychiatry Program titled "Progress and Perils in the Juvenile Justice and Mental Health Movement" explores the ever-changing field that is the juvenile justice system.

Ex-deputy set to die Wednesday evening for Houston woman's slaying
Michael Griffith is scheduled to be executed for the murder of Deborah McCormick, while attemting to rob her 12 years ago, reports Allan Turner of The Houston Chronicle. The Texas AG's office issued an advisory in May chronicling the case which can be found here.

Delaware now faces criticism of it's Inmate Executions
Sean O'Sullivan of The News Journal reported on Sunday that attorneys representing inmates argue that "no one knows the exact procedure for executing inmates" and have filed a lawsuit.

Confession essential to case is thrown out
Sarah Lundy of The Orlando Sentinel reported that a murderer's confession will be thrown out because he was not informed of his rights.

Gay Inmate receives Conjugal Visits
Don Thompson of the AP reports that California is now allowing gay and lesbian inmates to receive overnight conjugal visits under the domestic partnership law. Randy Thomasson, President of the Campaign for Children and Families, objects to conjugal visits for both gay and straight inmates. They "are unsupervised...and the guards can't go in there" he said.

Uttecht v. Brown coverage from Charles Lane (welcome back) in the WashPost, David Savage in the LA Times, and Linda Greenhouse in the NYT.

The U.S. Supreme Court dropped the federal sentencing case of the deceased Mario Claiborne, as expected. The order reads:

The Court is advised that the petitioner died in St. Louis, Missouri, on May 30, 2007. The judgment of the United States Court of Appeals for the Eighth Circuit is therefore vacated as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

This order is unlike those issued in state cases, where the high court only vacates its own order granting certiorari and dismisses the petition. Compare Pasch v. Illinois, 510 U.S. 910 (1993). In this federal case, the lower court decision is vacated. The citation to Munsingwear emphasizes that the lower court decision is no longer precedent.

In other Supreme Court action, the Court noted once again the deference due the trial judge in juror challenge questions in Uttecht v. Brown. The decision was 5-4 along the usual lines. Mark Sherman reports for AP. Further comment is here.

The Court also summarily reversed the Tenth Circuit in a prisoner rights case, admonishing them not to be too strict in pleading requirements, especially for pro se prisoners. The decision in Erickson v. Pardus is here. Justice Thomas dissents on the merits, and Justice Scalia dissents from the decision to grant certiorari.

Dog Maul Case: The California Supreme Court decided unanimously yesterday to send back to the Superior Court the case of Marjorie Knoller’s second-degree murder conviction. In January 2001, Knoller and her husband Robert Noel’s two Presa Canario dogs mauled to death 33-year-old Diane Whipple in the hallway of their San Francisco apartment building. Knoller and Noel were originally charged with manslaughter and both paroled from prison in 2004. If the second-degree murder conviction is restored, Knoller would spend 15 years to life in prison as reported by Bob Egelko with the San Francisco Chronicle. The court held that, in granting Knoller's new trial motion, the Superior Court had set the bar for "implied malice murder" too high, but in reversing that order the Court of Appeal had set it too low. The remand directs the trial court to reconsider in light of the Supreme Court's clarification of the standard.

Put us to Death! Former head of the Sicilian Mafia, and current Italian prisoner, Carmelo Musumeci has written and had distributed a letter stating that life sentences violate the Constitution, therefore demanding the death penalty. Now, after 309 convicted murderers serving their life in prison sentences have signed this letter, it has been sent to President Napolitano for help, according to this (London) Times Online story. Italy’s death penalty was abolished after World War II. A new bill in discussion in a Senate Commission would do away with life sentences if approved. A senior judge is quoted as giving the bill little chance.

"Dr. Death" is Free: The Detroit News reports today that Jack Kevorkian has been released from prison this morning in Michigan as reporters and protesters gathered outside. 79-year-old Kevorkian spent almost 9 years in prison after being convicted in 1999 for the videotaped assisted death of Thomas Youk who had Lou Gehrig’s Disease. After failed appeals, the state’s Parole Board last year granted Kevorkian early release from prison under the condition that he is prohibited to participate in assisting suicides.

Gang-related Killings Drop: Richard Winton and Jill Leovy of the Los Angeles Times report today that gang-related killings in the Los Angeles have dropped 32%, according to statistics released yesterday. Chief William Bratton gives credit to the officers for the decrease, while some officers also credit, “demographic changes, improved trauma care for assault victims and longer prison sentences, are also affecting crime statistics such as homicide.”

Three-strikes laws, for example, have thinned the ranks of some gangs in the LAPD's 77th Division, Det. John Radtke said. "If I sit down and go through the gang list, it's amazing how many names are in jail or dead."

The Supreme Court today "dismissed as improvidently granted" the case of Roper v. Weaver, No. 06-313. The slip opinion is here.

The case involved prosecutor arguments in the penalty phase of a capital case that the defendant claimed were improper. The Missouri Supreme Court disagreed, but the Eighth Circuit agreed. The question before the Supreme Court was whether the Eighth had properly applied the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d). CJLF's brief, by Prof. Barry Latzer of the John Jay College of Criminal Justice, is here.

The habeas petitioner, William Weaver, contended that AEDPA never should have applied to his case. He filed a federal petition pre-AEDPA, but the district court dismissed it as unexhausted because a certiorari petition was pending to the U.S. Supreme Court from the state collateral review. That exhaustion ruling was clearly wrong under law going back decades. Certiorari to SCOTUS is not part of exhaustion of state remedies. The Eighth Circuit declined to interfere, and Weaver did not seek Supreme Court review. He refiled the petition after denial of certiorari in the state collateral case and after enactment of AEDPA.

Meanwhile, back at the ranch, two other defendants prosecuted by the same prosecutor making the same argument got relief in pre-AEDPA petitions. The difference in treatment of these cases is enough to convince five Justices to drop the case without resolving any questions of law. The Court did not decide whether AEDPA should have applied to the refiled petition. The Court did not decide whether the Eighth Circuit correctly applied AEDPA. The Court did not decide whether the arguments were actually improper. The only decision is that, in the quirky and unlikely to be repeated circumstances of this case, the Supreme Court will not interfere and Weaver gets a new sentencing hearing.

Chief Justice Roberts concurs in the drop-kick but not in the stated reasons. Justice Scalia dissents, joined by Justices Thomas and Alito:

A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today'Â’s cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trial——though that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit'Â’s grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away——as perhaps the CourtÂ’'s own opinion can——as the product of law-distorting compassion for a defendant wronged by a District Court'Â’s erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Court'Â’s failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth CircuitÂ’'s decision just what it did unto AEDPA: ignore it.

Supreme Bias is the title of Ed Whelan's review of the Merida & Fletcher biography of Justice Thomas, at National Review Online.

MySpace has revealed that they will not release the names of sex offenders using the site claiming that to do so would violate state and federal laws. An AP article on todaysthv.com states that eight attorney generals from different states made the request since MySpace is one of the most popular social networking sites, especially for young people. The chief security officer assured AG's that they are exercising every effort to ensure that sex offenders are removed from the popular network site.

Death Penalty: A federal judge in Tennessee has rejected the request of a Tennessee cop killer who did not want an autopsy preformed after his execution. Philip Workman executed on May 9, for killing a Memphis police officer in 1981, argued that his religious beliefs prohibited the autopsy. An AP story
by Rose French reports that the judge decided that the state's need to determine if the execution was preformed properly outweighed the murderer's request.

DNA Testing: The Georgia Supreme Court heard oral argument yesterday in a challenge to that state's DNA testing law, reports Carlos Campos in the Atlanta Journal-Constitution. Unlike the usual claim that the law sweeps too broadly, counsel for convicted rapist Kenny Quarterman contends that the law is too narrow. Only convicted felons who actually go to the slammer get tested, and that supposedly denies them equal protection of the law. Of course, equal treatment is only required for persons similarly situated. Those felons sent to prison have been adjudicated to be worse than those granted probation.

Cal. Injection Coverage: Henry Weinstein in the LA Times, Bob Egelko in the SF Chron, and Denny Walsh in the Sacto Bee.

Doug Berman at SL&P discusses H.R. 563 by Congressman Duncan Hunter, also noted on the NYT's political blog. The bill provides, "It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated." These are the two Border Patrol agents convicted for shooting a drug smuggler.

If the bill were to pass and be signed by the President, which is unlikely, its constitutionality is doubtful under Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Deciding cases is the judicial power, and issuing pardons is executive. The legislative power is to make the law by which cases are decided, not to decide them. As Justice Scalia notes in Plaut, the Constitution's relatively strict separation of powers was adopted in reaction to the unhealthy mixing that was common in the states in the Articles of Confederation period.^*

Constitutional questions aside, though, if Congressman Hunter and his 99 cosponsors believe that the verdict in this case is an injustice, and if they can actually pass a bill, why not do it the right way and clarify the substantive law? If the use of deadly force in these circumstances should not be a crime, then Congress can and should enact a statute saying so, applicable not only to these two officers but to all similarly situated.

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.

It is no surprise that the murderers won in Abdul-Kabir v. Quarterman and Brewer v. Quarterman. Given the Supreme Court's decisions in the past few years in Texas death penalty cases tried before the 1991 amendment to the Texas statute, it was to be expected that they would find a way to reverse. What is surprising and disappointing is the utter disingenuousness of Justice Stevens's opinion and, especially, the fact that Justice Kennedy would join it.

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.

Our regular scan of the SCOTUS docket for new capital cases turns up the interesting name of Marlo Thomas v. State of Nevada, No. 06-10347. Notwithstanding our disagreements with That Girl on multiple issues of policy, a death sentence strikes us as a bit harsh.

But seriously, folks, the opinion below rejects Thomas's claims that Crawford v. Washington, 541 U.S. 36 (2004) applies to the penalty phase. The Nevada Supreme Court considers this claim separately as to eligibility and selection, and rejects it for both. For eligibility, this is an issue that SCOTUS will probably have to address at some point.

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.

Thanks to crimepsychblog for a link to this interesting review article, titled Cognitive Science and the Law. Authors Thomas A. Busey and Geoffrey R. Loftus discuss the many fascinating areas of cognitive psychology which have great enhanced our understanding of how people process and remember information. Much of this research has shown how some aspects of police investigation are subject to imperceptible, but flawed cognitive processes, especially bias.

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.

The Supreme Court affirmed denial of Florida death row inmate Gary Lawrence's habeas petition in a 5-4 decision. An AP story by Pete Yost states the reason for the denial is due to the expiration of the one-year filing time frame allotted by the federal Anti-terrorism and Effective Death Penalty Act of 1996. Justice Clarence Thomas wrote the majority opinion and stated that the language in the law is clear that the time limit is not tolled during the time to file a certiorari petition for U.S. Supreme Court review of the state collateral proceeding. The contrary interpretation would give defense attorneys for death row inmates an incentive to delay as long as possible.

Superior Court Judge Gail Ohanesian ruled that Gov. Schwarzenegger's actions of transferring prisoners to private correctional facilities in other states is illegal and California's problem of prison overcrowding cannot be dealt with in this manner. The governor was outraged with the decision claiming that he absolutely refuses to allow early release for dangerous criminals and states that this "is a threat to public safety" as reported in an AP story by Don Thompson. The judge decided that the governor's actions violates the California Constitution as well as the state law.

The fix for California's death penalty process is scheduled for a hearing Friday, but the issue at hand is whether or not to hold a public hearing in private in order to protect the doctors from being labeled executioners. The concern is that medical experts may not be willing to offer any help if the hearing goes public. David Kravets, reports for AP.

Tougher sentencing for sexual predators in Texas has a victim's advocacy group worried that it will encourage more aggressive acts by the offenders, one being murder. The tougher laws that the AP story reports includes the death penalty for violent two time child molesters, but only in the worst cases. However, the Texas Association Against Sexual Assault still is not at ease with the resolve stating that since children are usually the only witness to the crime, offenders would be inclined to exercise every effort to ensure not being caught.

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.

Crime Rates: David Muhlhausen has this article on the Heritage Foundation site discussing how government policies affect crime rates. He contends that some federal grant programs are ineffective and can be cut without affecting crime rates. He cites research to the effect that the prison buildup of years past was a major factor in bringing down crime rates but that releases once those prisoners have completed their sentences have contributed to recent increases in crime.

Gitmo Detainees: Sen. Christopher Dodd has introduced a bill to "strike[] at the core of the Military Commissions Act of 2006 by giving detainees access to U.S. courts," according to this story by Josh White in the Washington Post. The bill is modestly titled the "Restoring the Constitution Act of 2007." The text of S. 576 is not yet available on Thomas.

The Ninth Circuit has ruled that a U.S. Attorney's appeal of a ruling to deny a sentencing enhancement is barred by the Double Jeopardy Clause as reported in a Metropolitan News-Enterprise story by Tina Bay. In the District Court, Judge Robert M. Takasugi cited Blakely v. Washington to reject a sentencing enhancement under the Armed Career Criminal Act for 3 time convicted felon Dominique Blanton on the ground that a nonjury juvenile adjudication could not be used for this purpose. The Ninth Circuit upheld that decision finding that the appeal exposes the defendant to Double Jeopardy.

Sex offenses committed by juveniles have increased to the point where states are considering laws which allow them to be included in sex offender registries according to a story reported by Jason Miles.

Acquitted After deliberating four hours a New York jury acquitted Benjamin Odierno 73, of the murder of his 58-year-old wife even though he admitted stabbing her approximately 40 times. Odierno claimed self defense against his wife of 27 years, stating that her constant violent outbursts for the last ten years is what led him to kill her, according to an AP story here.

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."

Pamela MacLean had this story in the National Law Journal this morning on increased en banc reviews in the Ninth Circuit. (We had previously noted here an Ninth Circuit en banc decision overturning a criminal case panel decision in favor of the defendant, something new and refreshing here in the Far West.) As if on cue, the Ninth decided in favor of the government in an immigration case. The question involves the validity of regulations allowing a lower level government employee to renew a removal (deportation) order previously issued by an immigration judge when the alien walks back in through the revolving door. Every other circuit to consider the question has upheld the regulation, but a panel of the Ninth issued one of those idiosyncratic decisions the court is notorious for, striking them down.

Today's decision, like the one noted in my previous post, shows the ideological fault lines between the left and the hopeless left. In the majority are three judges appointed by Republican Presidents, Judges Kozinski (author), Rymer, and Bybee, plus Democrat-appointees Chief Judge Schoeder and Judges Hawkins, Graber, and Gould. The dissenters are Judges Thomas (author), Pregerson, Reinhardt, and W. Fletcher.

Although the Ninth remains a liberal court and will be one for the foreseeable future, there appears to be a spark of hope that judges with enough sense that they do not consider reversal by the Supreme Court to be a "badge of honor" may now hold the balance of power. It would help if the White House and the Senate would put some priority on filling the vacancies with persons of sense and doing so promptly to further nudge the notorious Ninth back toward the mainstream.

That is the title of an op-ed by Jan Crawford Greenburg in today's Wall Street Journal. Here is the opening paragraph:

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive -- and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years

This is not news to those of us who actually follow the Court and read the opinions, but it may be news to many who simply stick to assumptions formed long ago on dubious information and never bother to check the facts.

The Supreme Court today reversed the decision of the Ninth Circuit in Carey v. Musladin. The Court was unanimous in the judgment, with six Justices joining the opinion of the Court by Justice Thomas. Justices Stevens, Kennedy, and Souter each wrote separate opinions concurring in the judgment.

The overturned Ninth Circuit decision is a prime example of exactly the kind habeas decision Congress meant to prohibit when it enacted the Antiterrorism and Effective Death Penalty Act of 1996. The Ninth Circuit overturned a state court decision and substituted its own opinion, even though there is no controlling Supreme Court precedent and other courts are divided on the question. The case involves whether a conviction must be overturned because the victim's family wore buttons with his picture. Cases on this and similar questions from other courts, many of which are cited in today's opinion, are discussed in CJLF's amicus brief.

AP reports by Pete Yost here and Mark Sherman here.

The transcript of oral argument in Whorton v. Bockting, argued today, is available on the Court's site here. Lyle Denniston positively gushes at SCOTUSblog. Here are some notes.

Chief Justice Roberts and Justice Alito appear to have concluded that there is no retroactivity exception for § 2254(d). If the state court decision was correct or at least reasonable under the precedent existing at the time, the judgment cannot be overturned on federal habeas corpus (39:16-19; 41:9-12). Textually, there is simply no way to read the Teague exceptions into § 2254(d). References to retroactive new rules elsewhere in the statute are not superfluous, the Nevada Attorney General correctly notes (5:2-14), because they apply in cases where there is no state court decision on the merits, e.g., a defaulted claim with cause and prejudice.

The Supreme Court heard oral argument today in the case of Lawrence v. Florida. The transcript is available here. Under AEDPA, the one-year statute of limitations to file a habeas corpus petition in federal court begins running in most cases when the time to file a certiorari petition to the U.S. Supreme Court expires or, if a petition is filed, when the Court denies certiorari. However, "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). Lawrence presents the question of whether to count the time when the state courts have finished with the post-conviction petition, but the petitioner still has time to ask the U.S. Supreme Court to review the case, the Court is considering whether to review it, or the Court has taken it and is considering the merits.

Louis Morin at UCLA asked us to post the following announcement, which we are pleased to do:

Announcing new SSRN journal: Corrections and Sentencing Law and Policy. UCLA law professor Sharon Dolovich and Washington University law professor Margo Schlanger are co-editors of a new Social Science Research Network journal, Corrections and Sentencing Law and Policy. Corrections and Sentencing Law and Policy Abstracts will provide a forum for works-in-progress, abstracts, and completed articles dealing with the broad range of doctrinal, theoretical, and policy issues relating to the punishment, sentencing, and re-entry of convicted criminal offenders. Topics include (but are not limited to) prison and jail conditions and life; prisoners' rights; probation, parole, and re-entry; prison and jail administration; imprisonment and diversionary sentencing, and the death penalty. The journal also invites submissions dealing with the implications of incarceration and other criminal punishments for families, communities, and society as a whole. Contributions from all disciplines are welcome, and scholars working in this area are encouraged to submit their work.

The Annals of Improbable Research has announced the annual Ig Nobel prizes. (Their server appears to be overloaded at the moment, so you may have difficulty with the preceding link.) Most relevant to our work is the prize for literature awarded to Daniel Oppenheimer of Princeton University for his report "Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly."

The same-day transcript is obviously in need of editing, but that's understandable considering the speed with which it was produced. We appreciate the Court making this available. It is a great help to those of us out in the hinterlands who can't attend the arguments in person. Here are a few observations.

It has been noted that there is a substantial negative correlation between the number of questions a Justice asks a party and the way he or she finally votes. Applying this crude measure, we have the unsurprising tally that Chief Justice Roberts and Justice Alito asked more questions of defense counsel and Justices Stevens, Souter, and Ginsburg directed more questions to the State. Justice Thomas asked no questions, as is his custom, but given that he has voted against every attempt to expand the Lockett v. Ohio rule since he joined the Court, including his magnificent concurring opinion in Graham v. Collins, 506 U.S. 461 (1993), his position is not hard to predict. Justice Scalia actually directed about equal numbers of questions to each party, but his questions to the State were softballs. No mystery here, either.  Ex-Professor Kennedy probed both parties, as is his custom, and his position is not predictable this way. The surprise is Justice Breyer, who asked nothing of the State and grilled the defense. In Brown v. Payton, Justice Breyer concurred with the majority solely on the basis of AEDPA and indicated that he would have voted to reverse but for the deference standard, which is not applicable in the pre-AEDPA Belmontes case. However, he may find this case distinguishable from Payton based on the trial counsel arguments.

Thomas Sowell has an interesting column in the Detroit News which compliments our August 28 post on Comparative Crime Statistics. Undoubtedly someone will be offended and perhaps confused by Sowell's assertion that "Millions of crime victims pay the price of the left's illusions about crime."

Getsy Rehearing. The Ohio Attorney General has petitioned for rehearing and rehearing en banc in the astonishing case of Getsy v. Mitchell, previously discussed here.

South Dakota Reprieve. The Capital Journal in Pierre, SD has this article on Gov. Mike Rounds' decision to delay the execution of Elijah Page rather than just direct the prison officials to follow the method prescribed by state statute. Among the critics is Jack Billion, the Democratic candidate opposing Gov. Rounds in his reelection bid.

Scheduled execution this evening in Texas. Derrick Frazier and Jermaine Herron shot and killed Betsy Nutt and her 15-year-old son with guns they stole from a nearby home. After the murders took place, Frazier and Herron loaded up Nutt’s truck with stolen property. According to this AP story, Herron was executed in May, and Frazier’s reprieve, granted earlier this year by the Texas Court of Criminal Appeals, has been lifted. Barring further delays, Frazier will be the 20th person executed in the state of Texas this year.

Florida Injection Case. The case of Clarence Hill, noted in yesterday's post on the Oklahoma execution, was remanded from the Eleventh Circuit Court of Appeals to the Federal District Court on Wednesday. Opinion here.

SCOTUSblog has this post on their analysis of the rates at which the Justices agree and disagree with each other, with particular attention to Justice Alito. Along with the numbers, the post includes this comment:

Still, one result that may give conservatives slight pause, and which liberals may see as a glimmer of hope, is the data regarding which conservatives Alito agrees with most frequently. Despite Alito’s being characterized as “Scalito” by some people during his nomination hearings due to what many thought to be strong similarities between the two, he has voted more consistently with Roberts and Kennedy than with Thomas and Scalia.

These "liberal" and "conservative" labels must be taken with at least a grain of salt, and maybe a heaping tablespoon. In United States v. Gonzalez-Lopez, Justice Scalia wrote the opinion favoring the defendant, while Justice Alito wrote the dissent favoring the prosecution, joined by Chief Justice Roberts, Justice Kennedy, and Justice Thomas.

Should "conservatives," generally regarded to be on the prosecution side in simplistic analyses, be given "pause" by the fact that Justice Alito agreed with Chief Justice Roberts and Justice Kennedy rather than Justice Scalia in this case? I don't see why.

Terrorists Win Crucial Ruling in Hamdan
Justice Kennedy joined the Stevens wing of the Supreme Court in a ruling today, which grants the rights of United States Citizens to terrorists captured on the battlefield and held at Guantanamo Bay, Cuba. Justice Stevens' seventy-three page opinion needs only eleven to brush aside the Detainee Treatment Act adopted by Congress in December 2005 which specifies in part that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by an . . . alien detained by the Department of Defense at Guantanamo Bay . . . ." The rest of the majority opinion explains how the President lacks the authority to designate military commissions to prosecute terrorists. The ruling is remarkable for its complete disregard for the separation of powers and detachment from reality. Dissents by Justices Scalia and Thomas define the scope of this disaster.