Results matching “thomas”

Engage, a publication of the Federalist Society, has this book review of The Constitution: An Introduction by Michael and Luke Paulsen.

The book begins by retelling the extraordinary events that led to the drafting and ratification of the Constitution and the quick addition of the Bill of Rights.  Then, in well under 100 pages, it elucidates the constitutional structure that the Constitution creates.  The authors evidence a great respect for the work of the Founders, and they have harsh words for those who treat the Constitution like a Rohrshach blot.  But they are also painfully honest about the flaws in the original design--and in particular, the Founders' accommodation of slavery.  The chapter devoted to this subject is one of the most interesting and will be instructive even for those who know a fair amount about the Constitution.  (For example, how many lawyers know that, were it not for the infamous three-fifths provision, which counted a slave as three-fifths of a person for purposes of congressional apportionment, John Adams, not Thomas Jefferson, would have won the pivotal presidential election of 1800?)

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The Paulsens' book fairly presents both sides on major interpretive issues, but they do not hide their own point of view.  They favor a form of originalism and judicial restraint.  They are decidedly Hamiltonian in their view of national and presidential power, but at the same time they support a robust conception of the individual rights set out in the Bill of Rights and post-Civil War Amendments.  Substantive due process, which they trace back to Dred Scott, however, is another matter.

And who is the reviewer?  Justice Samuel Alito.

The U.S. Supreme Court today decided Rodriguez v. United States, No. 13-9972:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment's proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, "become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a ticket for the violation. Id., at 407.

Justice Ginsburg wrote the opinion.  Justice Thomas dissented, joined by Justices Kennedy and Alito.

The "only" in the last sentence is disputed in this case and remains open.  The government contends that the officer did have an individualized basis for suspicion that the car contained drugs.  Justices Thomas and Alito would affirm on that basis.  Justice Kennedy agrees with the majority that the point is not properly before the Supreme Court because the Court of Appeals did not decide it.

Although the issue discussed in that Part [of Justice Thomas's dissent] was argued here, the Court of Appeals has not addressed that aspect of the case in any detail. In my view the better course would be to allow that court to do so in the first instance.

Feds Releasing Hundreds Of Violent Illegal Immigrants:  Arrests and deportations of criminal aliens dropped 30% in the first six months of fiscal year 2015, despite President Obama's professed intention for agents to "focus on felons not families."  Stephen Diana of the Washington Times reports that 30,558 criminal aliens were "knowingly released back into the community" by ICE in 2014.  Together these aliens accumulated almost 80,000 convictions including violent crimes.  ICE Director Sarah Saldana defends the actions of the agency, stating that the laws passed under Congress require her to grant due process to everyone and make judgments about whom to keep detained.

Alien Children Allowed To Sue For Legal Representation:  A US District Court Judge in Washington state rejected a motion to dismiss a lawsuit that would grant legal representation to undocumented children facing deportation, ruling that their request for counsel "constituted an argument for due process."  Thomas Barrabi of the International Business Times reports that the ACLU filed the suit on behalf of Salvadorian sibling who immigrated illegally in 2013 to escape gang violence.  The ACLU has protested that mandatory detention of immigrants awaiting legal proceedings "violates the right to due process."

Tenn. Court Calls Off Scheduled Executions:  Four executions scheduled over the next year have been called off by the Tennessee Supreme Court to allow a trial court to review condemned murderer's challenges to the state's lethal injection protocol.  Mark Berman of the Washington Post reports that Tennessee is the latest state to halt executions while the courts consider challenges from Ohio, Georgia, Florida, Alabama, and Oklahoma.  The state plans to use the electric chair as its execution method of lethal injection is ruled unconstitutional or if the necessary drugs are no longer available.

Six Jacksonville Shootings In Three Days:  Jacksonville, Florida is reeling in the aftermath of six shootings in three days, leaving residents and law enforcement questioning whether the violence is gang-related.  Larry Spruill of Action News JAX reports that residents believe gang activity is the only explanation for the violence, because gangs have a large presence in the city.  Gang counselor Ivan Brown is certain that at least one of the shootings, the drive-by, was carried out by gang members.

Yolo County Questions Prop. 47 Sentencing:  Yolo County District Attorney Jeff Reisig has expressed disagreement with two Yolo County judges regarding the handling of low-level drug offenses under Prop. 47, adopted by CA voters last November.   Sarah Dowling of the Daily Democrat reports that the Reisig believes that drug offenders are less likely to pursue drug treatment without incarceration or the threat of incarceration.  He has proposed developing new sentencing guidelines for drug offenses, and Chief Probation Officer Brent Cardall agrees.  He is suggesting reforms to probation protocols that would help prevent drug offenders from avoiding treatment.

Gov. Brown To Parole Sick, Elderly Convicts:  In a cost-cutting effort, Governor Jerry Brown has proposed the parole of  hundreds of convicts who are chronically sick, mentally impaired, and over the age of 60.  Thomas D. Elias of the Napa Valley Register reports that this idea was first introduced in 2002 by Ray Procunier, the former California director of corrections under Ronald Reagan, who pointed out that Reagan cut the prison population by one-third with no increase in crime.  Since violent crimes are typically committed by young offenders in their teens and 20s, and the costs of treating sick and/or elderly inmates is extremely expensive, many consider their release to be a sensible solution to ease prison overcrowding.

Burglaries Linked to Prop. 47:  A rash of burglaries in La Cañada, California has residents wondering whether or not it is the direct result of Prop. 47, a law passed in November that released thousands of inmates from state prisoners.  Anita S. Brenner of the La Cañada Valley Sun reports that burglaries have been on the rise statewide, likely due to drug offenders, who often commit thefts and burglaries in order to feed their habit, receiving only a citation for their crimes.  State corrections officials insist that long-term studies must be conducted before the "true effect" of Prop. 47 is seen. 

CA Loosens Jessica's Law:  Jessica's Law, or Prop. 83, which forbids sex offenders from living within 2,000 feet of a school or park, is becoming less restrictive in California.  Kate Mather of the LA Times reports that the "blanket restrictions" outlined in the law will no longer be imposed, and cases will be assessed more individually.  The law, as it stands now, will still apply to high-risk sex offenders and offenders whose crimes involved children under the age of 14, who will be forbidden from living within a half-mile of a school or park.  This loosening of the law comes after a CA Supreme Court decision holding that the restrictions could not be applied in San Diego County due to a lack of residential properties 2,000 feet from schools and parks.

On February 5, the U.S. Supreme Court stayed the execution of Texas quadruple murderer Lester Leroy Bower while it considered his petition to take up his case for full briefing and argument.  Today the high court denied the petition, and the stay automatically terminates, giving Texas the green light to proceed (if they can find some pentobarbital).

In order to accept Bower's claim, the Court would need to further extend what is possibly the worst of all the errors in its capital sentencing jurisprudence, the Lockett/Penry rule that the defendant must be allowed to introduce "mitigating" evidence that has nothing to do with the crime and that the jury must be instructed to consider it.  The rule is wrong for the reasons explained by Justice White in Lockett v. Ohio, Justice Scalia in Penry v. Lynaugh and Walton v. Arizona, and Justice Thomas in Graham v. Collins.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissents from today's order.  Interestingly, Justice Kagan does not join this opinion.

Today the Supreme Court heard argument in Ohio v. Clark.  The Confrontation Clause of the Sixth Amendment limits the use of out-of-court statements of people who do not testify as witnesses in the criminal trial, but exactly where that line is drawn has been a problem for a long time.  From the 1980 decision in Ohio v. Roberts until the 2004 decision in Crawford v. Washington, the focus was on the reliability of the statement.  Crawford threw that overboard and asked if a statement was "testimonial."  Under this rule, the reliability of the statement is at best irrelevant to whether it is excluded by the Confrontation Clause, and often the rule operates perversely, letting less reliable statements in while excluding more reliable ones.

Some of the Justices have been uncomfortable with that ever since, and that discomfort showed in today's argument over the statement of an abused child to his teacher.

So far, Justice Thomas has been alone in his view that the Confrontation Clause applies narrowly to the kinds of practices it was specifically aimed at, such as the use of depositions in lieu of live testimony.  In this view, the admissibility of most hearsay statements would be questions of state evidence law, not a federal constitutional mandate.

I think Justice Thomas has it right, and my brief takes a historical view consistent with his thesis.  There was no discussion of this view in today's argument, but the Justices seem uncomfortable with the status quo, and CJLF's arguments sometimes appear in the opinions without having been featured at oral argument.  We'll see.

By the narrowest of margins, the U.S. Supreme Court has spared a fisherman from the overbroad drafting the Sarbanes-Oxley Act, a law that was supposed to be about corporate financial accountability, not throwing fish overboard.  The vote in Yates v. United States is 4-1-4, with Justice Ginsburg writing the plurality opinion and Justice Alito concurring in the judgment in a separate opinion.  These split results typically produce a lot of head-scratching as lawyers and lower courts try to figure out what the heck the law is.

Update:  On an initial quick read, the plurality and concurrence don't seem all that different to me.  The SarbOx law prohibits destroying etc. "any record, document, or tangible object."  Is "tangible object" limited to information-containing objects along the lines of documents and records, or does it extend to any objects whatever?  The plurality and concurrence invoke the standard rules of statutory construction of considering words in their context and considering words in a list to be in the same general category as the others in the list.  The concurrence also notes the title of the section, "Destruction, alteration, or falsification of records in Federal investigations and bankruptcy."  Yep.  Titles should get more attention than they do.  I especially dislike the old rule that too many lawyers write into documents that you should ignore the titles.  They are important clues into the genuine intent of a document.

Justice Kagan in dissent insists that "A fish is, of course, a discrete thing that possesses physical form," citing the renowned lexicographer Theodor Geisel by his better-known pen name.*  Pretty sure that's a first.

The United States Supreme Court today granted a stay of execution pending its resolution of a certiorari petition to Lester Leroy Bower, who was found guilty of four counts of capital murder 31 years ago in Texas.  The Court of Criminal Appeals' opinion is here.

Applicant raised four issues in the instant application: (1) actual innocence based upon newly discovered evidence; (2) Brady violations; (3) a claim that Article 37.071 operated unconstitutionally because his jury did not have a vehicle to properly consider mitigating evidence; and (4) a claim that executing him after twenty-four years on death row amounts to cruel and unusual punishment.

I do not know which issue the Supreme Court thought warranted a stay, but I'm inclined to think it was the third.  The first two are largely factual determinations, and though actual innocence in a capital case would be enough to warrant the Supreme Court's attention, the unanimity in the lower courts suggests there is little there.  The fourth is the tired old claim that has never gotten more than a single vote in any Supreme Court case.

Are we really debating Penry, still, after all these years?

Murder Suspect Was On Probation: Fairfield, CA Police have arrested a habitual felon for a Thanksgiving day murder who was on probation at the time of the crime.  Henry Lee of the San Francisco Chronicle reports that 19-year-old Leonard Clayton has had multiple "law enforcement contacts" in the past for a variety of crimes including drug possession, burglary, carrying a loaded gun in public, and possession of stolen property, which would have carried time behind bars prior to the state's Realignment law, which reduced the penalties for these crimes.

Prosecutors To Seek Death Penalty For Accused Killer: Prosecutors in Pennsylvania have announced their plans to seek the death penalty for a man who police say brutally raped and murdered a sixth grade math teacher last month.  The Associated Press reports that 25-year-old Thomas Moore, along with a 16-year-old accomplice, is accused of torturing the woman and killing her after a botched burglary at her home.  Moore's co-defendant will most likely be charged as an adult for the crime, but will not face the death penalty.

CA Sued For Execution Delay:  A California judge has issued a tentative ruling requiring that the California Department of Corrections and Rehabilitation (CDCR) defend itself in a lawsuit claiming that it has intentionally delayed executions of condemned murderers for the past nine years.  Don Thompson of the Associated Press reports that the lawsuit, which was filed by CJLF, seeks to force the CDCR to adopt a single-drug execution protocol which is currently used in several other states.   In her tentative ruling, Sacramento Superior Court Judge Shellyanne Chang determined that CDCR is required by law to adopt an execution protocol, and that victims have the right to seek court action to force compliance.  The hearing was held this morning, and a decision is pending.

One of the problems with allowing convicts to argue that their lawyers were ineffective, not just at trial but at every step of the review process, is that every time such a claim is raised we will hear an argument that a new lawyer must be appointed.  After all, we can't expect a lawyer to argue his own incompetence or dereliction of duty, can we?  But where does this end, if cases can be reopened without limit based on a claim the prior lawyer screwed it up?

Today in Christeson v. Roper, No. 14-6873, the Supreme Court holds summarily that the Federal District Court in Missouri should have appointed new lawyers to argue for relief after the first set blew the deadline.  The Court does not hold that relief should actually be granted.  Justices Alito and Thomas dissent from the Court's summary treatment, believing "plenary review would have been more appropriate in this case."

Under Coleman v. Thompson (1991), the tailspin of each lawyer asking for a new review by accusing the one before was dealt with by cutting off the right to effective assistance after the first appeal.  That protective mechanism is now going down the tubes, and we need a new one.

The 45-year-old proposal of Judge Henry Friendly is looking better and better.  Every defendant, no matter how clearly guilty, is entitled to a trial and an appeal, with a right of effective counsel for both.  After that, no more reviews unless he has a colorable claim of actual innocence.  I suppose at this point we would have to add ineligibility for the penalty.  In capital cases, one could also argue that the defendant is a minor, intellectually disabled, or a minor accomplice swept up in the felony murder rule, or that none of the circumstances that legally make a case capital are true.  That would be all.  In all other cases, i.e. most cases, we just wouldn't hear the claim.

If Judge Friendly's proposal is not politically palatable for the first habeas review, as he proposed it, surely we could at least apply it to all reviews after the first.  That would include an initial federal review following a state collateral proceeding.  In this case, the deadline missed was for federal review.  Christeson already had a full review of his claims in state court.

I've copied the facts of the case from that state supreme court opinion on direct appeal after the break.

More dallying in death penalty review, and more potential for game-playing, are likely to be the results of today's per curiam Supreme Court opinion, as reported by the Heritage Foundation:

In ordinary civil litigation, if a plaintiff fails to file a complaint on time, the plaintiff cannot do so later; he loses. In habeas corpus cases, however, the filing period can be tolled for equitable reasons. In this case, the original lawyers for Christeson, a condemned state prisoner, did not file a habeas petition on his behalf before the filing time had elapsed. Different lawyers later sought to be substituted as counsel for Christeson so that they could argue that his earlier lawyers had abandoned him, a claim that Christeson's original lawyers could not advance without damaging their own professional interests. The district court refused to allow the new lawyers to become Christeson's counsel, however, and the Eighth Circuit dismissed the appeal for lack of jurisdiction, apparently reasoning that Christeson's new counsel were not authorized to file an appeal on his behalf. In a per curiam opinion for seven Justices, the Supreme Court reversed and held that only new lawyers could adequately raise the claim that there was a conflict of interest between Christeson and his original counsel, a claim that, if accepted, would excuse Christeson from not having filed his habeas petition on time. Alito filed a dissenting opinion, joined by Thomas, concluding that the Court ought not to have decided the case without full briefing and oral argument.  

Twenty-five years ago, in Tucson, Arizona, Eric Mann conceived a cold-blooded plan to cheat another man in a drug deal and then kill him to cover it up.  When the customer brought someone else to the transaction, Mann killed them both according to his plan.

After Mann's claims against his death sentence were heard and rejected by the Arizona Supreme Court, the trial court on collateral review, the Arizona Supreme Court again, and the federal district court, Mann appealed to the Ninth Circuit.  The panel assigned was Judges Sidney Thomas, now Chief Judge, Stephen Reinhardt, and Alex Kozinski.  Knowing nothing about the legal issues but only from the composition of the panel, can you guess the outcome?

Usually, the way to have a lower court's decision reviewed by a higher court is to appeal.  In the U.S. Supreme Court, an actual "appeal" in the technical sense is usually not available, and a petition for writ of certiorari is used instead.

Sometimes, though, neither of these procedures is available, and the aggrieved party must resort to an "extraordinary writ," a petition for a writ of prohibition or mandate.  In form, this is a new suit by the petitioner against the lower court itself, designated the "respondent."  In practice, the opposing party in the lower court is designated the "real party in interest," and that party defends the lower court's action.  That avoids the need for a court to appear as a party, generally regarded as unseemly.

And now, for something completely different....

In re Ryan, U.S. Supreme Court No. 14-375, is a petition by Arizona's prison chief against the Ninth Circuit for sitting on a case after it should be over.  As usual, the opposing party in the court below, the Arizona Federal Defender on behalf of murderer Graham Henry, filed an opposition.  But yesterday, the Supreme Court asked the Ninth Circuit itself to file a response.

Most claims of ineffective assistance of counsel are baloney.  They're simply a way to deflect attention from the client's behavior to that of his supposedly all-important lawyer.  What gets lost in the hubbub is that what wins and loses cases is seldom the lawyer.  It's the evidence.

"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...."  So says the Sixth Amendment to the United States Constitution, as do the bills of rights of many state constitutions.  But what does that mean?

From at least 1980, when the U.S. Supreme Court decided Ohio v. Roberts, until 2004, when it decided Crawford v. Washington, the Confrontation Clause was pretty much a constitutionalization of the hearsay rule.  If the prosecution wanted A to testify as to what B said, the defendant had a right to confront and cross-examine B, subject to all the "firmly rooted hearsay exception[s]," and there are a lot of them.  The main consideration was deciding whether the particular form of hearsay was reliable.

In Crawford, the Supreme Court tossed the Roberts rule and its reliability focus overboard and went with a historical analysis instead.  The purpose of the Confrontation Clause is to prevent abuses of the kind that happened in the trial of Sir Walter Raleigh (the founder of Anglo-America) and other old English cases where testimony is introduced in the form of affidavits or examinations of a witness conducted ex parte, i.e., when the defendant is not present and can't cross-examine.  In circumstances like these, the examinee is the "witness" and the statement is "testimonial."  The Confrontation Clause forbids introduction, and there are no exceptions.  In other cases of garden-variety hearsay, A is the "witness," and admissibility of B's statement is a matter for state hearsay rules, not the U.S. Constitution.  In a state case, reliability of the hearsay is an issue for state rulemakers and courts to ponder, not the federal courts.

Okay, but what statements are sufficiently like the forbidden historical practices to make B's statement "testimonial" and make B and not A the "witness" for this purpose.  The Crawford Court left that largely for future decisions, a recipe for chaos.

How about an injured preschooler's response to a teacher's question, "Who did this? What happened to you?"  That is the question before the Supreme Court in Ohio v. Clark, No. 13-1352.

Bill previously posted a link to the Criminal Law Practice Group's panel at the National Lawyer's Convention of the Federalist Society.  Another panel relevant to the topic of this blog was the Civil Rights Practice Group's panel on sexual assault on campus.  The speakers and video links for both panels follow the break.

The full schedule with links to all the videos is here.

Rocco Parascandola and Thomas Tracy have this story in the New York Daily News:

Arrests for minor crimes across the city have skyrocketed over the last three decades, a report conducted by John Jay College of Criminal Justice shows.

"Crime is down to historic lows," John Jay President Jeremy Travis said about the study. "Felony arrests have dropped in half, yet the rate of misdemeanor arrests has tripled."

Yet?  Would anyone say, "Major house fires have dropped sharply in newly constructed housing, yet building codes now require sprinkler systems."

It's speculated that many of the arrests are a product of the broken windows theory to policing, which was first mentioned in 1982.

That wins the Well, Duh! Award for the day.  Speculated?

Thomas Reppetto, a NYPD historian, said "broken windows" was "designed for a different era," when drug dealers controlled neighborhoods and violent crime was rampant.

It is indeed a different era, and "broken windows" policing is a major part of why.

Question:  When can a judge ethically be an advocate for a party in his court?

If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.

Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence.  Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026.  Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.

Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime."  Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt.  What is "substantively unreasonable" you might well ask?  Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case.  "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.

I think that is stretching "elements" way too far.  The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.

Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.

P.S.: Looks like Bill and I were writing on this at the same time.  I'll leave them both up, so readers get two perspectives on the case.

Among the cases to which cert was denied today was a very big sentencing case, Jones v. US, No. 13-10026.  The basic issue was whether a sentencing judge could take account of "acquitted conduct."  The DC Circuit, in conformity with others, said yes, and the Supremes allowed its judgment to stand.

Curt Hulse reports at NYT's First Draft:

The White House is moving more quickly than anticipated to select a new attorney general and is poised to announce President Obama's choice before the Nov. 4 election, with Labor Secretary Thomas E. Perez emerging as a leading candidate.

Many on Capitol Hill expected the president to wait until after the election to avoid making the nominee a campaign issue for embattled Democratic Senate candidates. But people familiar with the administration's planning now say an announcement could come in the next few weeks.

No final decision has been made, they said, but Mr. Perez, 53, a former Justice Department civil rights official and the son of Dominican immigrants, is at the top of the list. His nomination would be applauded by many Hispanic leaders. And he has a compelling personal story, having worked as a trash collector to help put himself through Brown University.

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Mr. Perez was opposed for the labor post by Republicans, who branded him an ideologue who selectively enforced civil rights laws. But Democrats could push the nomination through in a lame-duck session on a simple majority vote.

Well, maybe we need trash collection experience given all the garbage we have gotten from Mr. Holder, but I seriously doubt Mr. Perez is the man for the job.  For those who thought the next AG would have to be an improvement, maybe not.

My first job after high school was shoveling sand into sandbags at the White Sands Missile Range.  Maybe I should apply, given all the sandbagging Mr. Holder has done in response to congressional investigations.

Brent Kendall reports in the WSJ on developments in voter ID cases.

Voter identification laws suffered setbacks in two states on Thursday, with the U.S. Supreme Court blocking Wisconsin from imposing its voter-identification measure during the midterm elections and a federal judge in Texas striking down that state's ID law.

The Supreme Court's action in Wisconsin marked its third recent intervention in a high-profile election case, and the first before the high court in which advocates for minority voters prevailed.

The justices in the two other cases allowed Ohio to cut back on early voting and cleared North Carolina to impose new, tighter voting rules.

The high court in each case effectively put the brakes on lower court rulings that would have prompted late changes in election procedures in the run-up to the Nov. 4 day.

Meanwhile, a U.S. District Judge in Texas said that state's voter ID law amounted to an "unconstitutional poll tax," an outcome the state said it would immediately appeal.

The unfortunate thing about this "avoid late changes" approach is that the timing of an order rather than its merit may determine whether it is in effect for the election.  If the Fifth Circuit follows the same pattern, it will stay the District Court's order.  It won't matter that much in Texas, where the most important races aren't close.  But the Wisconsin governor's race is a tossup, and if the final tally is close enough, the deceased vote could tip the balance.

Update:  Text of the order and dissent follows the break.

One gripe we hear all the time is that defendants with money invariably get away with their crimes or at least get off easy.  It's not true.  R. Scott Moxley at O.C. Weekly reports on the background of the murder conviction reinstated by the U.S. Supreme Court on Monday and noted in this post.  It turns out that defendant Marvin Smith was a multimillionaire. 

The rich and famous Phil Spector is also a permanent guest of California taxpayers.  In Delaware, big time political mover and shaker Thomas Capano was sentenced to death.  He got off death row the same way thousands of others have -- the Supreme Court changed the rules after the trial was over.

What about O.J. Simpson?  His acquittal was mainly the result of racial dynamics in the wake of the Rodney King riots.  The dream team wasn't all that dreamy.  The prosecution proved his guilt sufficiently to convince an unbiased jury beyond a reasonable doubt; the problem was the jury.

That is not to say that a better lawyer will never make the difference in a close case.  But most cases are not close.  The difference is at the margins.

The Constitution of the United States guarantees a right to remain silent, right?  Guess again.  What the Fifth Amendment actually says is, "No person ... shall be compelled in any criminal case to be a witness against himself ...."  That is not exactly the same thing.

Emily Green has this story at NPR on a recent decision by the California Supreme Court on the use of silence as evidence of guilt, People v. Tom, and its predecessor case in the U.S. Supreme Court, Salinas v. Texas (2013).  The story has sound bites from several people, including yours truly, but the issue is more complex than can be covered in a brief story.

Nevada High Court Upholds Death Sentence: The Nevada Supreme Court has ruled in favor of upholding the death penalty for a California man convicted of murdering his wife in a Las Vegas hotel room in 2006.  Sean Whaley of the Las Vegas Review Journal reports that prosecutors allege that John Watson shot his wife before cutting her body up with a band saw.  In letters written from jail, Watson admitted to cooking and eating part of his wife's body, but police have yet to find any remains.  Watson challenged his sentence based on the claim that he suffered from mental illness.

Texas Man Sentenced to Life in Brutal Killing: A Texas man convicted of brutally murdering a woman and her one-year-old son in 2011 has been sentenced to in prison.  Annie Potasznik of CBS Dallas Fort Worth reports that 31-year-old Thomas Olivas brutally stabbed the woman before setting her apartment on fire with her infant son trapped inside.  Police believe the pair had a prior relationship and their was an argument concerning payment of child support.  Prosecutors chose not to seek the death penalty, resulting in an automatic sentence of life without parole.

Convicted Killer Won't be Granted Early Release: The man responsible for the brutal killing of a South Carolina high school student in 1995 will stay behind bars for another year despite an attempt made by the state to release him ahead of schedule.  John Monk of The State reports that 36-year-old Calen Radwell was a juvenile at the time of the killing and was sentenced to spend 20 years after pleading guilty to second-degree murder.  For reasons unknown the state's Corrections Department moved his release date up by almost a year leaving the victim's family outraged.  The judge ruled in favor of the victim's family, ordering that Radwell fulfill his entire sentence and be released in the fall of 2015.

Louisiana Teens Charged with Murder:  Police in New Orleans, have announced that the two 16-year-olds arrested in connection with Monday's murder of a pizza delivery driver were wearing GPS ankle monitoring devices at the time of the killing.  Tania Dall of WWL News reports that the teens are believed to have gunned down the delivery driver in a carjacking attempt Monday evening, police had been alerted that one of the teens had broken his monitoring restrictions and were waiting on an arrest warrant when the driver was killed Monday evening.  The court has yet to file charges, but it is expected that they will charge the teens as adults.

Serial Killer Sentenced to Life in Prison: A California man convicted of murdering three women in the 1980's has been sentenced to three consecutive life terms without the possibility of parole.  CBS Los Angeles reports that 74-year-old Samuel Little was arrested and charged with the killings after DNA collected from the victims linked him to the crimes.  Little was also linked to four other sexual assaults against women in both San Diego and Mississippi. 

Convicted Murderer Sentenced to Death: A Las Vegas man convicted of kidnapping and murdering a 12-year-old girl four years ago has been sentenced to death.  KATC News reports that in 2010, Thomas Sanders went on a road trip with the young girl and her mother to Arizona, as they were returning to Nevada, Sanders pulled the car over and shot the girl's mother in the head and proceeded to drive the girl cross-country to Louisiana.  Evidence at trial revealed that Sanders shot the girl four times before cutting her throat and leaving her in the woods where she was found by a hunter later that year.  

Inmate Population Rising Under Realignment: The number of inmates being sent to California prisons is on the rise despite three years under Governor Brown's Realignment law was enacted to reduce prison overcrowding.  Don Thompson of the Associated Press reports that there has been a record-setting increase in the number of second convictions for serious and violent crimes resulting in more criminals being sentenced  state prison. The state's current prison population is at 133,000, and is expected to increase to 143,000 by 2019.

Federal Judge Denies Stay of Execution: A federal judge has denied a motion to stay the execution of a Missouri man convicted of murdering two people more than a decade ago.  Alan Burdziak of the Columbia Daily Tribune reports that attorneys for Earl Ringo challenged his sentence and asked the judge to reopen his case.  The attorneys claim that they were not given enough time to plan a proper defense after his original lawyer was removed from the case.  Ringo is scheduled to be executed on September 10.   

Suspected Cop Killer Recently Released on Parole: The New York man believed to be responsible for Wednesday's fatal shooting of a police officer was released from prison and placed on parole only a few weeks ago.  The Associated Press reports that Thomas Johnson III shot the officer after a brief pursuit in Rochester Wednesday evening.  It was the first time since 1959 that an officer from that department was killed in the line of duty.  Johnson was released from prison in August after serving a year behind bars for a parole violation.

Joseph Epstein has this article in the WSJ, titled What's Missing in Ferguson, Mo., subtitled More than ever, the absence of black leadership, and the contrast with the civil-rights era, is painfully clear.  An excerpt follows the break.

OK, they don't endorse murder, exactly, but they come too close for comfort in a truly idiotic, and dishonest, article in Reason Magazine by Nick Gillespie. Its title is, "Why the Death Penalty Needs to Die."  Here's how it starts:  

Another week, another botched killing under the legal euphemism of capital punishment. After macabre screw-ups in Oklahoma and Ohio, it was Arizona's turn last week, when double-murderer Joseph Rudolph Wood III took about two hours to die. The specific problem this time around was an apparently unreliable "cocktail" of the drugs used in the lethal injection process. 

But let's face it: There's no good way to kill a person, even one as completely unsympathetic as Wood (he killed his ex-girlfriend and her father, shooting them at point-blank range). 

It's been almost twenty years since Justice Stevens, alone, took seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it, all or most of them initiated by the defendant.  That was in Lackey v. Texas, 514 U.S. 1045 (1995).  The full court has turned the claim down every time.  Although denial of certiorari (meaning simply that the high court declines to hear the case) does not form a precedent binding on lower courts, the consistency of rejection of this claim has generally been understood as a signal that the issue was dead.

Prior posts on the high court's rejection of Lackey claims are here, here, here, here, and here.

Justice Thomas noted in Knight v. Florida, 528 U.S. 990 (1999):

I write only to point out that I am unaware of any support in the American constitutional tradition or in this Court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Indeed, were there any such support in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.

Now comes a federal district judge in California who accepts the claim based on the particularly extended delays in California.  The order is here.

Judge Carney's thesis, in a nutshell, is that the death penalty lacks a penological basis after such a long delay.  But the retribution interest, at least, is still there.  The defendant still deserves this punishment for the very worst murders, and society has a valid interest in carrying it out, no matter how long it takes.

The problems Judge Carney notes are violations of rights, though -- the rights of the victims' families.  See 18 U.S.C. § 3771(a)(7); Cal. Const., Art. I, § 28(b)(9).  The California Legislature has been derelict in its duty to pass the needed reforms, killing them in committee time after time.  The Department of Corrections and Rehabilitation, and ultimately the Governor, have been derelict in their duty to carry out their responsibilities to execute judgments and implement a protocol that will allow them to do so.  The California Supreme Court has been derelict in its duty to resolve state habeas petitions in a reasonable time by referring them to the superior court where they belong.  The federal courts have been derelict in their duty to fully implement the Antiterrorism and Effective Death Penalty Act of 1996, evading it at every turn despite numerous reversals by the Supreme Court.

All of these people need to do their duty and fix the delays -- for the victims, not the perpetrators.

The facts of the particular case follow the break.