Results matching “thomas”

The U.S. Supreme Court this morning went back into the area of criminal defense lawyers giving bad advice on the immigration consequences of a conviction, a can of worms it opened in its 2010 decision of Padilla v. Kentucky.  Today's case is Lee v. United States, No. 16-327.

Jae Lee was a legal permanent resident who was caught dealing ecstasy.  When offered a plea deal, he asked his retained attorney about immigration consequences and was assured he would not be deported.  "According to Lee, the lawyer assured him that if deportation was not in the plea agreement, 'the government cannot deport you.' "  Wow.  What an idiot, if that was really the basis of his advice.  Dealing drugs is an "aggravated felony" under immigration law.  As such it results in mandatory deportation, and no, Bozo, it doesn't have to be in the plea agreement.

The two prongs of an ineffective assistance claim are deficient performance and resulting prejudice.  Here we have deficient performance in spades.  How about prejudice?  Is a defendant prejudiced by a plea deal when the prosecution has a slam-dunk case for guilt that almost certainly would have resulted in a higher sentence plus deportation anyway?  The majority, per C.J. Roberts, says yes.  Justice Thomas, joined by Justice Alito, dissents.  Justice Gorsuch did not participate.

Today's theme out of the United States Supreme Court is materiality.  If you describe what happened in a case and people look puzzled and ask "So what?" you have a materiality issue.

Maslenjak v. United States, No. 16-309, involves the crime of lying in the naturalization process.  It is error to instruct the jury that they can convict on finding a false statement without also finding that the falsity somehow contributed to the decision.

Turner v. United States, 15-1503, involves the rule of Brady v. Maryland that prosecutors must turn over to the defense any material exculpatory evidence in their possession.  "Material" in this context means a reasonable probability it would have made a difference in the result.  The Court holds 6-2 that the evidence in this case was not material.

Weaver v. Massachusetts, No. 16-240, involves a claim that the defendant's trial lawyer was ineffective for failure to object to the exclusion of the public (including the defendant's mother) from an overcrowded courtroom during jury selection.  Violation of the public trial right is a "structural error," reversible without any showing that it mattered, but that claim was forfeited by failure to object.  Ineffective assistance of counsel is reversible only upon a showing of "prejudice" which means the same thing as "materiality" in the Brady context, i.e., a reasonable probability it made a difference.  The Court held that the prejudice requirement continues to apply even when the underlying error is "structural," or at least this particular subspecies of structural errors, and no prejudice has been shown here.

Justice Kennedy wrote the opinion of the Court.  Justice Thomas wrote a concurring opinion.  Justice Alito wrote an opinion concurring in the judgment.  Justice Gorsuch joined all three.  Justice Breyer dissented, joined by Justice Kagan.  CJLF filed an amicus brief in this case, written by Kym Stapleton.

NY Considers Helping Terrorists:  Ninety days before utilizing surveillance technology the New York Police Department will have to post a description of how it works and how it will be used on the internet, if the city council adopts the "Public Oversight of Surveillance Technology (POST) Act.  This brilliant idea is discussed by Heather MacDonald in Sunday's City Journal.  While the proposal is billed as enhancing New York's sanctuary city credentials, MacDonald notes that it would actually impede law enforcement's ability to identify and intercept terrorists.  But supporters on the city council insist "Surveillance technology often has a disproportionate, harmful impact on communities of color."  The Brennan Center, which authored the proposal is also pushing for its adoption in Seattle and San Francisco.  

One Death Sentence Upheld, One Overturned:  As Kent noted in his post below, the U.S. Supreme Court reinstated the death sentence of Percy Hutton, who in 1986 murdered one man and shot another because of a dispute about a sewing machine. Cory Shaffer of Cleveland.com reports that the high court's per curiam opinion overturned a Sixth Circuit ruling that found a jury instruction given during the sentencing hearing caused an inadequate finding on the aggravating circumstances.  Meanwhile, the Florida Supreme Court overturned the death sentence of a double-murderer last week ruling that his attorneys failed to adequately investigate mitigating evidence which might have convinced jurors to sentence him to life.  Andrew Pantanzi of the Florida Times Union reports that in 2004 Thomas Bevel murdered a fellow drug dealer, his 13-year-old son, and attempted to murder a woman who was visiting the victims.  The woman and Bevel's girlfriend, who has also in the house during the murders, testified at the trial.  The Florida court's 4-3 ruling held that the defense attorney for the sentencing hearing should have hired a mitigation specialist to fully investigate Bevel's troubled childhood, drug abuse, and mental health problems.  A former circuit court judge who had rejected this claim wrote, "This Court should not and will not codify or institutionalize the burgeoning cottage industry of former paralegals or social workers who are ardent death penalty opponents who declare themselves to be 'mitigation experts' and demand exorbitant fees from the judicial system for doing the work that any competent paralegal or investigator could do for one-third the cost."     

Here are some quick notes on this morning's decisions from the U.S. Supreme Court.

Jenkins v. Hutton is a per curiam reversal of the Sixth Circuit for wrongly overturning a death sentence.  The Sixth misapplied the "fundamental miscarriage of justice" exception of Sawyer v. Whitley.  On a quick read, though, it appears the opinion may do more to muddy the waters about the distinction between death penalty eligibility and selection than it does to clarify them.

McWilliams v. Dunn ducks the question of whether, when a defendant qualifies for appointment of an expert under Ake v. Oklahoma, the expert must be a defense expert, not a neutral.  The court holds that the state court in this case did not meet the basic requirements of Ake.  Justice Alito's dissent blasts the majority for proceeding in this manner, ducking the question the court agreed to decide and deciding on a question it had denied review on.  I am pleased to see Justice Gorsuch joining this dissent.

Ziglar v. Abbasi, decided by a six-member court, declines to extend civil suits to suing high government officials for detention policies in the wake of 9/11.  Congress has not authorized such suits, and the court continues to decline to extend its Bivens line of cases into new territory.

Packingham v. North Carolina decides that the state went too far in banning convicted sex offenders from social media sites.  No dissent on the result.  Justice Alito, joined by the Chief Justice and Justice Thomas, concurs in the result, expressing concern about the sweeping rhetoric of the Justice Kennedy's majority opinion.  Justice Gorsuch did not participate in this case.

The next expected decision day is Thursday.

No Trump Obstruction of Justice:  ..."under our Constitution, the president has the authority to direct the FBI to stop investigating any individual...Yet virtually every Democratic pundit, in their haste to `get' President Trump, has willfully ignored these realities.  In doing so they have endangered our civil liberties and constitutional rights,"  writes Harvard law professor Alan Dershowitz in this OpEd.   "I think that it is important to put to rest the notion that there was anything criminal about the president exercising his constitutional power to fire Comey and  to request -`hope'- that he let go the investigation of General Flynn," he added.  Included in his testimony yesterday is the news that the former head of the FBI leaked a private conversation with the president as reported by ABC News, and that Trump, according to Comey, encouraged investigations that might identify questionable contacts with the Russians by his staff, and the revelation that the New York Times falsely reported that the new president had colluded with the Russians, and you end up with this headline in this morning's Sacramento Bee: "Comey says Trump lied about why he was fired."

NSA Leak Suspect Denied Bail:  A federal magistrate judge yesterday denied bail to Reality Winner, a former NSA contractor employee accused of leaking classified information in violation of the Espionage Act, Katie Mettler reports in the WaPo.  The AUSA told the magistrate that Ms. Winner was both a flight risk and a danger to the public if released due to the valuable information she has.

Alabama Execution:  Alabama executed murderer Robert Melson last night for the 1994 killings of three employees of a Popeye's restaurant.  One Tuesday, the U.S. Supreme Court, 6-3, lifted a stay issued by a panel of the Eleventh Circuit.  Justice Thomas issued a temporary stay yesterday to allow the full court to consider a new petition.  The court denied the stay and vacated the temporary stay at 9:10 Alabama time, and the execution proceeded.  The challenge related to Alabama's use of midazolam, a problem caused by the anti-death-penalty movement's pressuring of pharmaceutical companies to cut off the supply of the better-suited barbiturate drugs.  Ivana Hrynkiw has this story with updates at AL.com.

ICE Needed Backup to Arrest NY Illegal:  ICE agents arresting a criminal illegal immigrant in Richmond Hill Tuesday had to call for backup as a crowd gathered to protest.   Elizabeth Keogh & Thomas Tracy of the New York Daily News report that roughly 30 neighbors were shouting at ICE agents as they took Hardat Sampat, an illegal immigrant from Guyana, into custody.  Sampat had been been facing prison time for an assault in Florida five years ago when he agreed to be deported.  He returned, joining his family in New York and was awaiting trial for burglarizing a woman's home in Rockway in April when ICE arrested him.  "This is what Trump is doing," said one neighbor. 

Police Use Spit to Nab Murder Suspect:  Los Angeles police used DNA testing of spit on a sidewalk to link Geovanni Borjas to the rape and murder of two young women.  CBS Los Angeles reports that testing of DNA recovered from the victims' bodies returned a partial match with Borjas' father, who had been arrested for an assault years ago.  This made Borjas a possible suspect, and police, while following him, recovered his saliva after he spit on a sidewalk. Testing returned a match.  Borjas worked at a Rite Aid pharmacy frequented by both victims.  One of the victims went to the pharmacy to buy cough drops the day she disappeared.  The nude body of 17-year-old Michelle Lozano was found wrapped in plastic bags along Interstate 5 in April of 2011.  The partially-clothed body of 22-year-old Bree'Anna Guzman was found on January 26, 2012, near an onramp to the Glendale Freeway.  Borjas pleaded not guilty on Tuesday.  If found guilty he would be eligible for a death sentence.

Hit man and repeat murderer Thomas Arthur was finally executed in Alabama last night after dodging seven prior execution dates.   Kim Chandler has this story for AP.

Arthur filed a last-minute petition in the U.S. Supreme Court, and Justice Thomas (the assigned Circuit Justice for the Eleventh Circuit, including Alabama) granted a temporary stay while the Court considered it.  The Court lifted the stay and denied relief barely in time for the execution to be carried out before the warrant expired at midnight.

The petition had to do with the state's use of midazolam as the first drug of the protocol.  An additional wrinkle was the defendant's request for his lawyer to have a cell phone to make a call if things went badly.  Justice Sotomayor dissented alone.

The midazolam problem is entirely artificial and entirely unnecessary.  The federal government needs to bring down the barriers that are presently preventing the states from importing barbiturates from willing suppliers in Asia.  Is anyone in the government paying attention?

Update:  Kim Chandler and Jay Reeves have this follow-up story for AP on racing the clock.

Debra Cassens Weiss reports for the ABA Journal:

President Donald Trump nominated 10 lawyers Monday for federal judgeships, including two state judges from his list of 21 potential U.S. Supreme Court nominees.

*       *       *

The two judges from the Supreme Court list are Michigan Supreme Court Justice Joan Larsen, nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals, and Justice David Stras of the Minnesota Supreme Court, nominated to the St. Louis-based 8th U.S. Circuit Court of Appeals.

Larsen is a former University of Michigan law professor and a former law clerk to late Justice Antonin Scalia. Stras is a former University of Minnesota law professor and a former law clerk to Justice Clarence Thomas.

The nomination of another judge from the Supreme Court list, U.S. District Judge Amul Thapar of Kentucky, is pending. He has been nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals. His is the only other nomination to the lower federal courts so far.

Other nominees are:

CA Parole Board to Release Cop Killer:  State corrections officials have announced that a man convicted of conspiring in the 1985 murder of a Los Angeles police detective will be released from prison in a few days.  James Queally and Matt Hamilton of the Los Angeles Times report that Voltaire Williams has been serving a 25-to-life sentence for his part in a plot to assassinate Detective Thomas Williams in front of his six-year-old son in order to keep the detective from testifying at a robbery trial.  The decision by the state Parole Board to release Voltaire Williams was made after Governor Jerry Brown requested they reconsider an October, 2016 grant of parole.  According to the Association of Los Angeles Deputy District Attorneys this reinforces the fact that the Parole Board is determined to release life sentenced inmates regardless of their dangerousness to society.

Sanctuary City Bill on TX Governor's Desk:  Texas Senate Bill 4 reached Governor Greg Abbott's desk Thursday after clearing the state senate 20-11.  Fox News reports that the bill would impose stiff fines and even jail time to state officials, including mayors and police chiefs who refuse to follow federal immigration laws.  The Governor has promised to sign the bill which has been criticized by several big city police chiefs who claim it will keep illegals from cooperating with the police for fear of deportation.  But the Lt. Governor said, "There is no excuse for endangering our communities by allowing criminal aliens who have committed a crime to go free.  SB4 will ensure that no liberal local official can flaunt the law."

As Bloomberg reports, Justice Neil Gorsuch's first vote in a prominent case is likely to be remembered for a long time:  "Gorsuch's First Big Supreme Court Vote Allows Arkansas Execution"

Justice Neil Gorsuch took his first major action on the U.S. Supreme Court by casting the deciding vote to let Arkansas begin executing a group of death-row inmates.

In a series of orders Thursday night, the high court cleared the state to execute Ledell Lee, one of eight convicted murderers that Arkansas has been trying to put to death before one of its lethal-injection drugs expires at the end of the month. Arkansas executed Lee minutes after the court rejected the last of his requests.

Gorsuch joined his four fellow Republican appointees -- Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy and Samuel Alito -- in the majority. They didn't explain their reasons.

The court's four liberal justices each voted to grant at least one of the requests to halt the executions. Justice Stephen Breyer said the state didn't have an adequate reason to rush.

Since the murder occurred 24 years ago, I'm not sure what "rush" Justice Breyer has in mind.

Adam Liptak and Matt Flegenheimer report from the parallel universe of the New York Times on the Gorsuch confirmation vote:

Friday's vote was only possible after the Senate discarded longstanding rules meant to ensure mature deliberation and bipartisan cooperation in considering Supreme Court nominees.

Here in this universe, the requirement of a supermajority to terminate debate has never been a significant factor in Supreme Court confirmations.  Abe Fortas in 1968 did not have even majority support, so while the filibuster was used it was not necessary.  All the Supreme Court nominations since then have either gone to a vote or been withdrawn when it was clear that the nominee did not have even majority support.  The number of Supreme Court nominees in American history who have been denied confirmation because they had majority support but less than the supermajority required for cloture is precisely zero.

Mass. Sheriff: Arrest Sanctuary City Leaders:  Bristol County Sheriff Thomas Hodgson told a House Subcommittee Monday that the leaders of sanctuary cities should be arrested for obstructing federal law.  CBS Boston reports that the Sheriff told committee members that sanctuary cities "have become magnets for illegal aliens, some of which have violent criminal records."  He also called out a Massachusetts legislator Michelle DuBois who passed along rumors of a planned ICE raid in Brockton, posting on Facebook "if you are undocumented don't go out on the street. If there is a knock on the door...and you don't know who it is, don't open the door."   "Any person who actively incites panic or fear of law enforcement is doing a disservice to the  community, endangering public safety and the very people they claim to support and represent," said Shawn Neudauer of ICE. Democrats across the commonwealth have pushed back and said they stand with sanctuary cities.

The WSJ has this editorial on Senate Minority Leader Charles Schumer's decision to call for a filibuster of the confirmation of Judge Neil Gorsuch for the Supreme Court.

On what ground is the drastic action of a filibuster called for?  The hearings have turned up nothing that makes this nominee any more deserving of such a blockade than just about anyone a Republican president could nominate.  He is an originalist, of course, which is exactly what the people who vote for President Trump wanted.

Sen. Schumer says Judge Gorsuch was "groomed by the Federalist Society and has shown not one inch of difference between his views and theirs."  I don't know what he means by "groomed," and the "one inch" remark makes no sense at all.  There is such a variation of viewpoints within the Federalist Society that everyone in it has a wide space of viewpoint from lots of other people in it.

The worst problem is that the confirmation process is getting worse instead of better.  The political pendulum has swung back and forth since the end of World War II, but since the 1980s every time the Republicans have had the White House the Democrats have taken the polarization and partisanship of judicial confirmations to a new level. 

According to the live blog of today's confirmation hearing at SCOTUSblog, Senator Patrick Leahy stated in his opening remarks that the Senate's refusal last year to consider an election-year nomination to the Supreme Court was "never grounded in principle or precedent."  He evidently did not mention his former colleague, former Senator and Vice President Joseph Biden, but here is what then-Senator Biden said on the floor of the Senate on exactly that subject on June 25, 1992:

The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.

No, I am not taking this out of context.  Follow the link to read the whole speech for yourself.

Merrick Garland is a good man and a good judge, even if I don't agree with him on some very important questions.  On a personal level, it is unfortunate that his nomination was scuttled on political grounds.  But judicial nominations are never based purely on merit.  (No, not even -- especially not -- in states that have so-called "merit selection," where the state bar has a stranglehold on nominations.)  Learned Hand and Henry Friendly never made the Supreme Court, while lesser lights were promoted over them.  Many brilliant lawyers never get appointed to the bench at all, while dimmer minds with better connections get the seats.  That's democracy, the worst form of government except for all the others.

Judge Garland and Judge Gorsuch are not similarly situated because 2016 was a presidential election year and 2017 is not.  For better or worse, the candidate who promised to appoint judges of a particular philosophy won the election, and the vacant seat is going to be filled with someone of that philosophy.   Given that, is there any good reason to block this particular nominee with the drastic action of a filibuster?  Revenge for the blocking of Judge Garland's nomination via a much less drastic action is not a good reason.  The fact that Judge Gorsuch votes for the party whose position he believes to be correct under the law, rather than skewing the law to one side or the other based on the identity of the parties, is a strong reason to vote for him.  To vote against him, much less filibuster, on that basis would be unprincipled, to use Senator Leahy's word.

Democrats have no more reason to oppose Neil Gorsuch than Republicans had to oppose Sonia Sotomayor or Elena Kagan.  Most voted no, but they didn't filibuster, and enough voted yes to make around 2/1 votes for confirmation.

The State of Texas seized $201,100 that Lisa Leonard said was from the sale of her home and the State said was drug money.  The trial court found the latter by the preponderance of the evidence, and the State kept the money.

Is preponderance good enough?  Forfeiture exists in the twilight zone between civil and criminal law, and an argument can be made that a higher burden is required.  Justice Thomas discusses the question in his statement today in Leonard v. Texas, No. 16-122.  So does Justice Thomas think the Court should take this case up?  No:

Unfortunately, petitioner raises her due process arguments for the first time in this Court.  As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.

So anyone defending a forfeiture action in a state with a preponderance standard needs to make the due process argument all the way up the ladder.

I have not commented on the allegations that Attorney General Sessions had illicit contacts with the Russians, and lied about it during his confirmation hearings, because I have been around this town long enough (more than 40 years) to spot a politically-inspired concoction when I see one.  The idea that Sessions is or was a Russian collaborator  --  in essence, Benedict Arnold slyly impersonating a wahoo Alabama conservative all these years  --  is something you'd expect to read in the Onion, not the NYT (although it's getting harder to tell the difference). Same deal with the idea that the plain-spoken former state prosecutor has learned the smooth talking schtick of the defense bar.

It predictably turns out (and it didn't take that long) that the whole thing was  --  how shall I say this?  --  fake news. Vanity Fair, not known as a mouthpiece of the Republican Party, looks in detail at the allegations against Sessions and concludes:

As things clear up, we may be seeing a collapsing soufflé. And as with so many soufflés served up by the press in recent months, it emerged from the oven to oohs and ahs--this time, with me among the oohers and ahers--only to sink, first slowly, then quickly. Next, it will go into the trash, and we'll bake another. It's tiring. It's boring. And above all it's supremely damaging to the press. If you want people to believe you, then develop a reputation for believability.

Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

I don't read the testimony that way.  The underlying fact that the expert testified to was:  "There is an over-representation of Blacks among the violent offenders."  That is a regrettable but undeniable demographic fact.  Still, most jurors (and many lawyers) do not have the logical sophistication to distinguish between that fact and the forbidden inference, and it should not have been introduced into the trial at all.

Justice Thomas in dissent notes that the Court had to leap over many procedural hurdles in its result-driven quest to grant relief to this one murderer, but he predicts these gymnastics will be narrowly applied only to unusual cases like this one.  I hope he is right, but I have my doubts.  If time permits, I will blog more about this case later.

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.

Officers Injured During Immigration Protest: In the course of an immigration protest in Arizona Thursday evening, rising tensions led to three police officers sustaining injuries. Carmen Duarte at The Arizona Daily Star reports that the protest in Tuscon, Arizona was being held to oppose the recent executive orders regarding the regulation of immigration. Tensions ran high as protesters began assaulting police officers, striking one of the officers in the face and another in the back. None of the officers sustained serious injury although three men have been arrested on suspicion of aggravated assault on a peace officer.

More Fatalities in The Windy City: The number of casualties continues to rise as gun violence continues to run rampant in the streets of Chicago. According to ABC's Stacey Baca and Charles Thomas, "11 people were killed and 11 wounded in shootings over a 48-hour period in Chicago from Tuesday afternoon to Thursday morning, Chicago police said." The highest profile incident among these shootings was the triple shooting which took the life of a 2-year-old boy and his uncle while being streamed on Facebook live.

BYOD (Bring Your Own Drugs): The state of Arizona has disclosed a new plan to solve the problem it has had acquiring the most effective drugs for executions. Tom Dart at The Guardian reports that new execution protocol would call for a death row inmate's lawyer to supply the drugs with which to euthanize his client. "With drugs that can legally be used for lethal injections in short supply, the Arizona department of corrections' latest execution protocol states that attorneys for death row inmates are welcome to bring along their own." Legal scholars are calling this new policy absurd, citing the inability of legal counsel to obtain the proper chemicals in a lawful way, let alone their ability to transport it into the department of corrections.

AI Powered Body Cams?:  The body camera industry is moving toward joining the growing trend of utilizing artificial intelligence in their products. According to Joshua Kopstein at Vocativ, Taser, the leading manufacturer of stun guns, has announced its intent to open an artificial intelligence division to develop a new and unprecedented type of body cam in response to the recent controversy regarding police involved shootings. The idea is to create a camera that operates on an algorithm that allows it to recognize and categorize different objects such as firearms, knives, etc. This would allow police personnel to redact the footage from body cameras with relative ease as they would be able to search through what the camera identified as relevant footage. "Taser predicts that in a year's time, their automation technology will reduce the total amount of time needed to redact faces from one hour of video footage from the current 8 hours to 1.5 hours."

The Cost of Failing to Deport Alien Criminals: Hundreds of Illegal immigrants are incarcerated for crimes each year, and those who are not deported to their home countries pose a serious threat to public safety.  Alfonso Chardy of the Miami Herald reports that findings by the Senate Judiciary Committee indicate that at least 121 killings within a four-year span were carried out by convicted immigrants who were not deported. In addition, of the 36,007 criminal aliens that were released by ICE in 2013, 1,000 of them were re-convicted for additional crimes within a short time. In 2014, ICE released 2,457 immigrants who were convicted of crimes and not deported. .

NYPD to Further Curb Proactive Policing: The New York Police Department agreed Thursday to further cut back the use of  stop-and-frisk although its use resulted in the recent apprehension of a murder suspect. Cody Derespina at Fox News reports "The discovery of 30-year-old Karina Vetrano's body in a Queens park in August made national headlines but authorities had very little information identifying her killer. But The New York Daily News reported it was a review of stop-and-frisk reports from the area near the crime scene that helped cops zero in on 20-year-old Chanel Lewis - who was arrested Saturday and charged with second-degree murder." The tactic, correctly termed, stop-question and-frisk, was instituted in the early 1990s by Mayor Rudy Giuliani.  It has been cited for contributing to one of the most significant decreases in crime in the history of New York.

The Science of Murder Clearance Rates:  An article by Robert Lolker in BloombergBusinessweek available at this link,  https://www.bloomberg.com/news/features/2017-02-08/serial-killers-should-fear-this-algorithm, examines the work of retired reporter and statistics expert Thomas Hargrove, who has developed an algorithm to help solve serial murderers.  Actually Hargrove has done more than this....he has created a homicide database far more accurate and complete than the FBI Uniform Crime Reports, and made it available at his website.  His algorithm utilizes the data to identify homicide patterns using geography, sex, age group and method of killing, sometimes finding links to murders which police can investigate.   

An op-ed in the WSJ makes this case convincingly, here.   It gets to the point quickly:

Moderates could do a lot worse than Judge Neil Gorsuch--and we probably will if he isn't confirmed. Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans.

Speculation Heats Up About SCOTUS Appointment:  David Savage at the Los Angeles Times reports this morning on the emergence of 10th Circuit Judge Neil Gorsuch as the presumed front runner for appointment to the U.S. Supreme Court.  Gorsuch, 49 and a Colorado native, was appointed to the 10th Circuit in 2006 by President George W. Bush and won easy confirmation in the then Democrat-controlled Senate.  After earning degrees from Columbia, Harvard Law and Oxford, Gorsuch clerked for Justices Byron White and Anthony Kennedy, before serving in President Bush's Justice Department.  According to the Times, an appointment to replace Justice Scalia could be announced as early as next week.

Released Drug Dealer Murdered:   A drug dealer whose sentence was commuted last November by President Obama was executed at a federal halfway house in Detroit on Monday.  CBS Detroit reports that Damarlon Thomas, a former Saginaw gang member, had served 9 years of a 19 year sentence when he became one of 79 federal drug offenders whose sentences were commuted by the President on November 22, in order to remedy what he called onerous sentencing of non-violent drug offenders. On Monday night, two masked men with automatic weapons entered the Bannum Place halfway house and held roughly two dozen men at gunpoint while Thomas was shot several times.    

DNA Links Ex-Con to CA Murder:  A suspect has been arrested for the December murder of David Wick, a popular resident of the small Northern California town of Burney.  Nathan Solis & John J. Longoria of the Record Searchlight report that habitual criminal Manual Venegas has been arrested for the murder.  On December 22,  surveillance video recorded a man on a bicycle riding to the Rocky Ledge Shell, where Wicks was working, at the time of the murder.  Video shows the suspect entering the store and spraying a flammable liquid on Wicks and setting him on fire, then spraying more liquid on the victim as he was burning.  DNA testing of partially burned clothing found nearby, worn by the suspect, linked Venegas to the murder.  Venegas' criminal record spans over 20 years with several convictions for crimes considered "low risk" under California law.   

Chicago Murder Numbers Higher Than We Thought: The record-setting violence in Chicago last year is even worse than previously believed as new data show that an additional fifty homicides took place in the city. Sean Kennedy at AMI News reports that per the records of the Cook County Medical Examiners office, the city of Chicago reported 812 homicides for the year of 2016. The majority of these homicides in gun-controlled Chicago are gun-related with some 725 of the victims receiving at least one gunshot wound. We see a discrepancy in the numbers due to the fact that the medical examiners office only reports on homicides which is the loss of life of an individual at the hands of another.  This can include killings self defense and police killings of criminal suspects. The city's police agencies count murder as an event where human life is lost in a way that is subject to criminal prosecution.

Roofs Death Penalty Marks Upward Trend: The pending capital case on Dylan Roof for his murder of 9 people in a Charleston church is marking what some are calling a "national departure from the downward trend in capital punishment cases." According to Rick Jervis at USA Today, the overall number of capital cases across the nation has been declining over the past few decades, often attributed to the fortification of capital defense counsel and the growing budgetary concerns that are inherent to capital cases.  In Roof's case, he defended himself, admitted guilt, and alluded to the intention of killing again.  He should be formally sentenced on Wednesday.

Police say BLM Complicates the Job: Police officers throughout the nation believe that the hysteria and controversy surrounding high-profile shootings, such as the Mike Brown and Eric Gardner cases, has made their ability to enforce the law much more difficult.  According to Thomas Tracy at the New York Daily News, nine out of ten police officers say that they are more concerned for their own safety in the current era of the Black Lives Matter movement.  Fully 72% of these officers have reported that they are less wiling to stop a suspicious looking individual for questioning due to the current scrutiny and escalating danger currently associated with policing. The statistics cited in the story were taken from a survey of eight-thousand police officers across the country.

Ft. Lauderdale Shooter a Radical Islamist?:  According to new information, the man who committed a mass shooting in the Fort Lauderdale Airport has been a follower of radical Islam. Judicial Watch reports that the shooter was a Muslim convert who, years before joining the U.S. military, took on an Islamic name (Aashiq Hammad), downloaded terrorist propaganda, and recorded Islamic religious music online. Judicial Watch notes that this information is largely unreported in traditional news outlets, although it is mentioned in one ABC story.  That story reports that while the FBI is claiming no evidence of any ties to terrorism, "according to John Cohen, an ABC News consultant and former acting undersecretary for intelligence at the Department of Homeland Security, in these instances, 'investigators aren't asking the right questions.' "

As noted in today's News Scan, last night Alabama executed murderer Ronald Smith.  The execution involved last-minute petitions to the U.S. Supreme Court, which is routine, but there was an unusual four-four split on the presently eight-justice court.

At the root of the case is the decision last term in Hurst v. Florida.  Under the post-1976 capital sentencing system mandated by Supreme Court precedents, courts must find the defendant guilty of murder plus at least one factor from a list of aggravating factors defined by state law before the death penalty can be considered.  In Ring v. Arizona (2002), the Supreme Court overruled its own precedent and said the jury, not the judge, must make that latter finding.  In Hurst v. Florida (2016), the court applied Ring to strike down the Florida sentencing system that it had repeatedly approved multiple times against the very same attack.

Does Hurst extend further, to require the jury and not the judge to make the additional findings that state law requires before a "death-eligible" defendant is actually sentenced to death?  In my opinion (and that of the Alabama courts), the answer is clearly no.  However, the Delaware and Florida Supreme Court think it does.

The U.S. Supreme Court needs to take this issue up and resolve the split, and an Alabama case would be the cleanest vehicle to do so.  The high court has sent several Alabama cases back to the state courts, and it presently has several on its docket pending decision on whether to take them up.  The Smith case last night, however, was not a clean case.

The Federalist Society's National Lawyers Convention is underway in Washington.  The theme is "The Jurisprudence and Legacy of Justice Scalia."  Regrettably, I am not able to attend this year.  Duty calls.

Live streams of some of the panels and links to video of concluded panels are available at the FedSoc Blog.  The criminal law panel is at 3:30 EST today.  Not sure if it will be live streamed.  Justice Thomas is the dinner speaker at 7:00 EST.  Update:  They are live streaming the Separation of Powers panel instead.

Of course, there is much more to the convention than the presentations, interesting as they are.  Conversations in the hallways and at the events with people I only see "face-to-face" once a year are just as valuable.  I am sure that the question of who will be the next Attorney General is a hot topic, and the question of who will be nominated as the successor to Justice Scalia is even hotter.

GA Man Gets Execution Date:  A Georgia man on death row for killing his ex-girlfriend over 15 years ago is scheduled to be executed next month, the state Corrections Commissioner announced last Thursday.  Kate Brumback of the AP reports that Steven Frederick Spears, 54, will be put to death by lethal injection on Nov. 16 for the August 2001 murder of Sherri Holland, whom he killed after suspecting her of dating someone else.  Spears hid in a closet in Holland's home and waiting for her to fall asleep, and then choked her, wrapped tape around her mouth and face, and put a plastic bag over her head.  Spears will be the eighth inmate executed in the state this year.

Jury Finds NE Man Eligible for Death Penalty:  A jury last week found a Nebraska man guilty of murder and determined that there are enough aggravating circumstances to make him eligible for the death penalty.  KETV reports that Anthony Garcia was convicted Wednesday of four counts of first-degree murder in the 2008 killings of Thomas Hunter, 11, his family's housekeeper, Shirlee Sherman, and the 2013 slayings of Dr. Roger Brumback and his wife, Mary.  The murders were for revenge after Dr. William Hunter, Thomas' father, and Brumback fired Garcia in 2001.  The aggravating factors found on Friday by the jury were that the murders were especially heinous, more than one person was killed and the murders were committed to conceal the identity of the killer.  Garcia now faces a three-judge panel, which must agree with the jury on aggravated circumstances in order to impose a death sentence.  A death sentence, however, will only stand if Nebraska voters vote to bring back the death penalty in the November election.

Deadliest Weekend in Chicago this Year:  Chicago saw its deadliest weekend so far this year, with 17 killed and 42 wounded in shootings and homicides across the city.  The Chicago Tribune reports that among the 17 victims that were killed between Friday afternoon and Monday, seven were younger than 20 and included a 14-year-old honors student and twin 17-year-old boys.  The weekend toll surpassed that of Father's Day weekend, which had been the most violent up until now with 59 people shot and 13 killed, and also exceeded the numbers of the three long summer holiday weekends -- Memorial Day, Fourth of July and Labor Day -- which are typified by spikes in violence due to warmer weather.  So far this year in the city, 638 people have been killed, 217 more than this time last year, and at least 3,662 have been injured in shootings, 1,106 more than during the same period last year.  Update:  Shibani Mahtani has this story in the WSJ.

OK Fugitive Killed in Shootout:  A weeklong manhunt for an Oklahoma man wanted for murdering two relatives, shooting three law enforcement officers and multiple carjackings has ended in a police chase and shootout that left him dead.  The AP reports that Michael Dale Vance Jr., 38, began his crime spree on Oct. 23 when he shot and injured a woman for her car, which he drove to his relatives' home, where he killed them.  Vance also shot and wounded two responding police officers and fled, committing more carjackings in an effort to evade capture.  Police were finally tipped off on Vance's location on Monday.  In the process of trying to apprehend Vance, he shot a sheriff in the shoulder and arm, and then led police on a 30-minute chase before being fatally shot in an exchange of gunfire with a state trooper.  The sheriff's wounds were non-life threatening.  Authorities say that the deaths of Vance's relatives were "rage killings" connected to a pending sexual assault case filed against him by a 15-year-old girl.  He was scheduled to appear in court on the charge in one week.

Phil McCausland reports for NBC:

A group of Democratic senators on Saturday sent a letter to FBI Director James Comey and U.S. Attorney General Loretta Lynch asking for more details about the new development in the investigation into Hillary Clinton's emails.

The letter signed by Sens. Patrick Leahy, Dianne Feinstein, Thomas Carper and Ben Cardin called a letter sent to Congress about newly discovered emails that could be pertinent to the investigation "vaguely worded" and open for misinterpretation with just a little more than a week before the election.

Are you sure you want that, Honorable Senators?  A demand to replace vagueness with clarity this close to the election is like doubling down in blackjack.  If that card is turned over, do you really think it is more likely to give you a 21 than a 13?  I don't.

Why did Director Comey make this announcement?  Would he have made it if the emails in question are really no big deal?  That seems inconceivable to me.  Just look at the list of people who are now seriously ticked off at him:

Newspaper editorials contain both opinions and factual assertions supporting those opinions.  Editorial writers, like everyone else, are entitled to their own opinions but not their own facts, as the saying goes.  Professionalism requires that the facts in an editorial be checked as carefully as those in a news story.

Last week the Los Angeles Times failed this standard and published an editorial that blatantly misrepresented the opinion of the U.S. Supreme Court in Calderon v. Thompson, 523 U.S. 538 (1998).  In so doing, the Times defamed the Court and, even worse, misled its readers on a vitally important public issue they will be voting on shortly.

Did anyone at the Times actually read the opinion before publishing this editorial, or did they just regurgitate the propaganda fed to them by the anti-death-penalty lobby?  It is difficult to believe they read it.

Video of an hour-long conversation with Justice Clarence Thomas is available here.   The event is the annual Joseph Story lecture, presented in an unusual conversational form.  Former Attorney General Edwin Meese gives the introduction, and John Malcolm of Heritage conducts the interview.

From 1987 to 1991, U.S. Supreme Court precedents created an atrocious and unjust imbalance in the penalty phase of capital cases.  Under the dubious rule of Lockett v. Ohio (1978), the defendant had (and has to this day) the unlimited right to bring in "any aspect of a defendant's character or record ...  that the defendant proffers as a basis for a sentence less than death."  So the defendant can bring in his family to offer real or fabricated stories of his childhood with little or nothing to do with the crime.  His mother can testify as what a very good boy he is (when he is not raping, torturing, and murdering children).  The Constitution requires this, the Supreme Court solemnly informed us, even though it never did prior to the 1970s and has not been amended in this respect.

Under the rule of Booth v. Maryland (1987), on the other hand, the victim's family was prohibited from testifying about the victim or about the impact of the murder on them.  The result was that they had to sit in silence as the defendant's family humanized him, while the victim remained nothing more than abstraction.

The high court saw the error of this injustice four years later and partially overruled Booth in Payne v. Tennessee (1991).  We at CJLF are proud to have played a rule in that badly needed correction.  However, Booth was not completely overruled.  Victim impact evidence is now admissible, but the opinions of the victim's family as to the appropriate sentence are not.

The Oklahoma Court of Criminal Appeals apparently needed to be reminded of that latter proviso, and the U.S. Supreme Court did so this morning, without dissent, in Bosse v. Oklahoma, No. 15-9173.  Justices Thomas and Alito concurred:

OH Plans January Execution Using 3-Drug Combo:  Representatives for Ohio announced Monday of the state's plans to resume executions in January with a new three-drug combination, following a three-year moratorium brought on by drug shortages and legal challenges.  Andrew Welsh-Huggins of the AP reports that the drugs intended for use by the state are midazolam, which renders sleep, recuronium bromide, which causes paralysis, and potassium chloride, which stops the heart.  The drugs have been approved by the FDA and are not compounded, says Thomas Madden of the Ohio attorney general's office.  The last time Ohio carried out a death sentence was January 2014, when Dennis McGuire was put to death in a procedure that took 26 minutes using a two-drug combo that had never been tried.  It was McGuire's execution which led to several complicating legal problems and changes to the state's death penalty system.  There are over two dozen inmates on Ohio's death row with firm execution dates, some of which are scheduled as far out as October 2019.  The next inmate in line to be executed is Ronald Phillips, who raped and murdered his girlfriend's three-year-old daughter in 1993. 

Video Shows Mob Attacking CHP Patrol Car with Officer Inside:  A newly released video taken on Sept. 25 in Fresno, Calif., shows a police officer who responded to several calls about illegal street racing and reckless driving become surrounded by a mob of people yelling at him and kicking his vehicle while he sat inside.  Kristine Guerra of the WaPo reports that the crowd of 30 to 40 people shouted, "F the police, we run the streets," as they violently kicked the sides of the officer's SUV and recorded the incident on their phones.  The officer, whose name has not been released, drove away unharmed, while his patrol car sustained $12,000 worth of damage.  Police have arrested three men in connection with the incident, two of whom are members of the Bulldog gang, and more suspects are being sought.  Fresno Police Chief Jerry Dyer said during a Friday news conference that he believes this incident is a symptom of the current environment of riots and targeted attacks on police officers across the nation.

NY Community Reeling from Violent Impact of Immigration Policies:  A violence-plagued Long Island, N.Y., community is pointing a critical finger at federal and local immigration policies that have allowed illegal immigrants to flood Suffolk County and gangs to thrive.  Joseph J. Kolb of Fox News reports that over the past four years, 225,725 unaccompanied Central American children entered the U.S., 3,500 of them placed in Suffolk County between October 2013 and July 2016.  A federal policy allowing Central American children apprehended at the border to be placed with illegal immigrant sponsors has enticed thousands of unaccompanied minors to journey to the U.S., where they are often placed in homes with little supervision and government monitoring.  The HHS website indicates that in FY 2015, only 1,895 home visits were conducted out of 33,726 referrals made by DHS.  This means that young migrants are even easier to target for gang recruitment by the MS-13, a notorious El Salvadorian gang that is thriving under Suffolk County's sanctuary city policies.  Last month, two 15-year-old girls were brutally murdered and the skeletal remains of two teenage boys were discovered, all allegedly connected to MS-13.