Results matching “thomas”

There is one constant in journalism, as constant as the North Star always being north -- the main editorial page of the New York Times will always muck it up.  Today they have this editorial on the dog sniff case, Florida v. Jardines.

The Supreme Court correctly ruled this week that using a drug-sniffing police dog on a suspect's property without a warrant violates the Fourth Amendment's protection against unreasonable searches. The ruling was not surprising; the split among the justices was.

Why are they surprised?  Because they commit the rookie error of labeling the justices "liberal" or "conservative" and expecting them to vote in accordance with those one-dimensional labels every time:

The majority included conservative Justices Antonin Scalia and Clarence Thomas and three of the court's more liberal members (Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan). The four dissenting justices were: Samuel Alito Jr., Anthony Kennedy and Chief Justice John Roberts Jr., all on the conservative side; and Stephen Breyer, a moderate liberal.

Everyone with a modicum of sense and any experience at all watching the Supreme Court knows its not that simple.  I explained it in this post on Jardines.

A newspaper that has the conceit to consider itself the nation's premier paper should be able and willing to hire some more sophisticated thinkers for its editorial page.

The US Supreme Court decided one law-enforcement related civil case today.  In Millbrook v. United States, No. 11-10362, the high court held that a suit by a federal prisoner against the government for an alleged sexual assault by correctional officers can go forward under the Federal Tort Claims Act.  It comes within an exception to an exception to the FTCA's exception to sovereign immunity, if you pick your way through the statutes.

Justice Thomas wrote the opinion for a unanimous court.  The case was argued a little over a month ago, making this one of the more rapid decisions.

This may be the Year of the Snake in China, but it's the Term of the Dog in the US Supreme Court.  Last month, the high court decided unanimously in Florida v. Harris that a trained dog's alert is probable cause for possession of drugs without the strict requirements laid down by the Florida Supreme Court.  See prior post here.

Today, the other shoe dropped in another Florida case, Florida v. Jardines.  From the syllabus:

Police took a drug-sniffing dog to Jardines' front porch, where the dog gave a positive alert for narcotics.  Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court's decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

Held: The investigation of Jardines' home was a "search" within the meaning of the Fourth Amendment.

The opinion was written by Justice Scalia and joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Alito dissented, joined by Chief Justice Roberts, and Justices Kennedy and Breyer.  This division does not follow the simplistic "liberal/conservative" lineup, but it is not particularly surprising in a Fourth Amendment case where the question is the substantive reach of the constitutional protection as distinguished from the scope of the exclusionary remedy.  This is the kind of case where we sometimes see Scalia and Thomas showing their libertarian streak and Breyer siding with the government.

In the opinions we see some interesting discussion about the Fourth Amendment and property versus privacy and the special status of the home.

Todd Ruger has this article in the NLJ (registration required) on sequestration cuts to the judicial branch, including federal defenders.

Money for federal defender organizations would be reduced by $53 million, which "could compromise the integrity of the defender function," [AOUSC Director Thomas] Hogan wrote. Allocations for defender salaries would be reduced by 4 percent, non-salary funds by 25 percent and training funds by 50 percent. Payment of Criminal Justice Act panel attorney vouchers could be deferred for almost three weeks at the end of the fiscal year.

Well, the first thing to cut is representation not authorized by law at all.  The second thing to cut is representation authorized only by Joe Biden's drafting error.

In Cook v. FDA, presently pending in the D.C. Circuit, the Federal Public Defender for Arizona is representing murderers from several states in a suit against the Food and Drug Administration for allowing importation of thiopental.  The cases federal defenders are authorized to take on at public expense are listed in 18 U.S.C. §3006A(a)(1)&(2), and civil suits against the FDA do not come remotely within any of the categories.  It's hard to have much sympathy with an office complaining of budget cuts when that office has been making patently illegal expenditures from its existing budget.

Many years ago, then-Sen. Biden snuck a provision into a drug bill, 21 U.S.C. §848(q)(4), to provide representation in capital cases for both federal defendants and state prisoners on habeas corpus.  A provision for continued representation in such things as successive petitions and executive clemency, which only makes sense for federal defendants, was misdrafted so that it applies to state prisoners as well.  (As a matter of code maintenance, the language was later moved without substantial change to title 18, where it belongs, as 18 U.S.C. §3599.)  Now we have federal taxpayer dollars paying for representation in purely state proceedings that follow the appointment in federal habeas, including representation in state collateral reviews and clemency petitions.  Congress needs to fix this so that the continuing representation provision only applies to federal defendants.

Conor Friedersdorf has this post at The Atlantic, with the above title, on Justice Thomas's recent talk at Harvard, with video of his full appearance.

See also this post from 2006.

From reading the opinions in Chaidez v. United States this morning one thing becomes very clear.  Justice Kagan understands the rule of Teague v. Lane.  Justice Sotomayor does not.  It's not just that she misapplies it in a close case.  She genuinely fails to understand what it is about.

Once upon a time, judges pretended that they did not make law but merely discovered what the law had always been.  Once we got past that conceit, judges had to grapple with the question of when changes made through case law would apply retroactively.  Initially, the Warren Court came up with a subjective, hard-to-predict approach that sounded more like legislating than adjudication.  That was the Linkletter-Stovall rule.  Justice Harlan went along at first but later proposed a more categorical approach.  All new rules of procedure would apply to cases on direct review, but not on habeas corpus to cases where the judgment has already become final on appeal.  The Supreme Court adopted the first half in Griffith v. Kentucky in 1987 and the second half in Teague v. Lane in 1989.

When is a rule "new"?  The Supreme Court adopted an expansive definition.  A rule is new if it was not dictated by precedent existing at the time the judgment became final.  A rule can be a logical extension of existing principles and precedents and still be "new" for Teague.  This is the part Justice Sotomayor apparently doesn't get.

Thomas Fleming, former president of the Society of American Historians, has this op-ed in the WSJ:

My grandmother Mary Dolan died in 1940. But she voted Democratic for the next 10 years.

*                               *                               *

I have to laugh when I hear current-day Democrats not only lobbying against voter-identification laws but campaigning to make voting even easier than it already is. More laughable is the idea of dressing up the matter as a civil-rights issue.

*                               *                               *

Later I became a historian of this nation's early years--and I can assure President Obama that no founding father would tolerate the idea of unidentified voters. These men understood the possibility and the reality of political corruption. They knew it might erupt at any time within a city or state.

The president's party--which is still my party--has inspired countless Americans by looking out for the less fortunate. No doubt that instinct motivated Mr. Obama in his years as a community organizer in Chicago. Such caring can still be a force, but that force, and the Democratic Party, will be constantly soiled and corrupted if the right and the privilege to vote becomes an easily manipulated joke.

Trial Judge Throws out Death Sentence: Steve Miletich of the Seattle Times reports that on Thursday in Washington a judge denied a prosecution motion to seek death sentences for Michele Anderson and ex-boyfriend Joseph McEnroe. Anderson and McEnroe have been charged with six counts of aggravated murder each in the brutal slayings of Anderson's parents, 60 and 61, brother and sister-in-law, both 32, her niece, 5, and three-year-old nephew. The victims were shot to death at her parents' Washington home on Christmas Eve 2007. The ruling rejecting the death penalty rests on a 13-page order from Superior Court Judge Jeffrey Ramsdell who asserted that the prosecution should only consider a death sentence if mitigating circumstances, not the strength of evidence, are a factor. The prosecution has described the decision as having blindsided them, and as wrong. They not only cite concerns for justice for the victims, but also the potential impact on other aggravated murder cases. They promised to appeal.

OR Convicts Attempted Car Bomber in Terrorism Plot: Kirk Johnson of The New York Times reports that on Thursday, Mohamed Osman Mohamud, 21, was convicted of attempting to use a weapon of mass destruction in Oregon. In 2010, he was arrested in an F.B.I. sting operation targeting Islamic terrorism. Mohamud attempted to set off what he believed to be a car bomb at a Christmas tree lighting ceremony in downtown Portland. Had the bomb been real, about 25,000 people would have been packed into its blast area. After a day of deliberation, the jury rejected Mohamud's claim of entrapment. Mohamud faces a maximum sentence of life in prison and will be sentenced by Senior Judge Garr M. King on May 14. Continued from this News Scan.

Death Sentence for Rapist, Murderer: CBS News reports that Miami-Dade Circuit Judge William Thomas has sentenced Joel Lebron to death for the first-degree murder of Ana Maria Angel, 18. In April 2002, Lebron, with the aid of four accomplices, kidnapped, gang raped, and fatally shot Angel execution-style. Her boyfriend, 17-year-old  Nelson Portobanco, who was left for dead by the assailants after having his throat slit, survived the assault and contacted police. In a case that Judge Thomas described as having clear and convincing aggravating circumstances, the Judge was visibly upset as he recounted the crime and sentenced Lebron to death, stating that Lebron's actions required "the ultimate penalty." In addition to the death penalty, Lebron was sentenced to six consecutive life terms for armed robbery and kidnapping, attempted first-degree murder, and armed sexual battery. The victim's mother expressed a sense of justice and relief at the Judge's decision. Lebron will be held in Florida State Prison until the date of his execution.

CA Murder Dies on Death Row: Sam Stanton of the Sacramento Bee reports James Leslie Karis Jr., a convicted murderer and rapist was found dead in his cell on San Quentin's death row Thursday.  Karis, 61, was found unresponsive and pronounced dead at 6:40 a.m. An autopsy will be conducted to determine cause of death. Karis was convicted of the rape and murder of Peggy Pennington, 34, and sentenced to death in September 1982. In July 1981, Karis abducted Pennington and another woman, 27, while walking near their workplace. Karis took them to a secluded area, forced them to strip, raped Pennington, then shot both women. The other woman survived the attack and testified against Karis in court.  Karis was given the death sentence twice.  After a federal judge overturned Karis' death sentence in 1998, hee was then tried again in 2007. During the second trial, Karis rebuffed his lawyers' attempts to introduce mitigating evidence and took over his own defense. The second jury also sentenced Karis to death. 

OH Murderer Seeks Clemency: Andrew Welsh-Huggins of the Associated Press reports the lawyers for condemned killer Frederick Treesh asked Ohio's parole board for a recommendation of clemency Thursday. Treesh, 48, and a co-defendant are accused of bank robbery, robbery of businesses, multiple sexual assaults, car theft, and car-jacking in a crime spree that stretched through Indiana, Iowa, Michigan, Minnesota, and Wisconsin. Treesh received the death sentence in Ohio for the murder of Henry Dupree. Two days prior, Treesh and his accomplices murdered another victim at a Michigan video store. The parole board will make their recommendation for or against clemency next week. Ohio Gov. John Kasich has the final say. If denied, Treesh will face execution on March 6.

As noted in this post, Justice Thomas's comment from the bench in Boyer v. Louisiana earlier this month was news on what was evidently a slow news day.  The Court has now posted a revised transcript.  From page 42:

The 1991 decision in Coleman v. Thompson is one of the most important protections for the finality of criminal judgments in U.S. Supreme Court jurisprudence.  Without it, there could be an endless stream of collateral attacks on a judgment, with each lawyer claiming the supposed ineffectiveness of the lawyer before as "cause" for the earlier default of the claim.  Coleman drew the line on such "ineffectiveness as cause" claims at the first appeal.

California has not followed Coleman for state habeas corpus, and the result has been a disaster.  Even though successive petitions are very rarely granted, they are filed in nearly every case.  They regularly claim ineffectiveness of the first habeas lawyer as cause for default, and the "ineffectiveness" generally consists of nothing more than the first lawyer not bringing a claim the second lawyer wants to bring.  The California Supreme Court put some limits on these petitions last August in In re Reno, but not enough yet.  See this post.

The U.S. Supreme Court made two narrow exceptions to Coleman last term.  Maples v. Thomas made an exception for clients actually abandoned by their lawyers, fortunately a rare occurrence.  Martinez v. Ryan made an exception for states that actually bar all ineffectiveness claims from direct appeal, an odd little rule that a state should quickly jettison.

Now in Trevino v. Thaler, petitioner seeks to expand Martinez into an exception that swallows the rule.  That would be a disaster, as the California experience demonstrates.

Today CJLF filed an amicus brief opposing this change.

Tom Goldstein has this earwitness account of Justice Thomas's joke in oral argument yesterday that seems to be big news.  Goldstein begins, "Wow, slow news day."  Second the motion.

In the capital appellate defense playbook, to delay is to win.  If review of a capital case can be dragged out so long that the inmate dies of natural causes, that is a de facto commutation to a life sentence and hence a victory.

A gambit the defense side has been running for a while is to claim that the petitioner/inmate is too crazy to assist his lawyer in the habeas proceeding.  Hence, that proceeding must be stayed indefinitely, while the stay of execution remains in place.  This argument has been accepted in the notorious 9th Circuit and "9th upside down" 6th Circuit.

Today, the Supreme Court unanimously reversed both circuits in Ryan v. Gonzales, No. 10-930, joined with Tibbals v. Carter, No. 11-218.

These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoner's federal habeas corpus proceedings. We hold that neither 18 U. S. C. §3599 nor 18 U. S. C. §4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.

Justice Thomas delivered the opinion of the Court.  There are no separate opinions.

Orin Kerr has a Q & A post at SCOTUSblog with Tracey Maclin, author of The Supreme Court and the Fourth Amendment's Exclusionary Rule.  The post is titled "Ask the author: Tracey Maclin on the Court and the Fourth Amendment."  But it's not about the Fourth Amendment.  It's about the exclusionary rule, a judicial invention conjured up almost a century after the ratification of the Fourth Amendment.  Here is the question on the future of the rule:

Question:
Based on my reading of your book, it sounds like you expect the Justices to narrow the exclusionary rule in the future so that it will apply only in egregious cases - the kinds of cases that would not trigger qualified immunity. Can you elaborate on where you think the exclusionary rule is headed?

Answer:
I believe four of the Justices (Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) want to abolish the exclusionary rule. Justice Scalia's majority opinion in Hudson v. Michigan has prepared the foundation for that result. If abolition is unobtainable, the Court will confine exclusion to cases of deliberate and culpable forms of illegal searches or seizure. Chief Justice Roberts's majority opinion in Herring v. United States has already achieved that result, although many of the lower courts have yet to follow suit. (By the way, my view of Herring and its impact on the rule was reaffirmed in Davis v. United States. I explain all of this in Chapter 8 of the book.)

Let's hope so.

What kind of mitigating circumstances would it take to outweigh these aggravating circumstances?

The sentencing court found the following facts beyond a reasonable doubt. Stokley was convicted of murdering two 13-year-old girls over the July 4th weekend in 1991. Stokley is a person of above average intelligence. At the time of the crime, he was 38 years old. Stokley intended that both girls be killed. He killed one of the girls and his co-defendant killed the other. Before the men manually strangled the girls to death, both men had sexual intercourse with the victims. Both bodies "were stomped upon with great force," and one of the children bore "the clear chevron imprint" from Stokley's tennis shoes on her chest, shoulder, and neck. Both victims were stabbed in their right eyes with Stokley's knife, one through to the bony structure of the eye socket. The girls likely were unconscious at the time of the stabbing. The girls' bodies were dragged to and thrown down a mine shaft.

Schizophrenia on the same scale as the Tucson shooter, maybe.  Duress on the scale of being forced at gunpoint, maybe.  But Stokley has neither of those.

The case in the Ninth Circuit is Stokley v. Ryan, 09-99004.  Stokley was sentenced to death and denied relief all the way down the line.  The U.S. Supreme Court denied certiorari on opening day, October 1.  Now Stokley's attorneys claim he was "abandoned" within the meaning of Maples v. Thomas, thereby permitting reopening the case.  (See posts here and here.)  On November 15, the Ninth Circuit panel majority initially rejected that claim, convincingly I thought, on the primary ground that there was no abandonment and secondarily that there was no prejudice.  Stokley's "bad childhood" and "I behave when locked up" evidence, neither of which has any connection to the crime, is so weak as to not come remotely close to outweighing the aggravating circumstances in this case.  Curiously, on November 21, the panel majority withdrew the "no abandonment" holding and rested solely on the "no prejudice" holding.  Perhaps something in the rehearing petition convinced the majority this was the more solid ground.

Today the Ninth Circuit denied rehearing en banc, over numerous dissents.  The execution is scheduled for December 5.

Update (Dec. 1):  AP has this story on the certiorari petition to the US Supreme Court.

DNA Identifies Sacramento Roaming Rapist: Don Thompson of the Associated Press reports DNA has identified Derek Sanders as the Sacramento-areas 'roaming rapist'. Sanders victimized 10 girls and women between 14 and 42 from 1998 to 2003. Updated technology allowed law enforcement to match samples taken from victims to Sanders' brother, a convicted felon facing unrelated sexual assault charges. Investigators are working to identify cases linked to Sanders since 2003. Sanders faces 35 counts including kidnapping and the use of a gun during the commission of a rape. He could be sentenced to life in prison if convicted.

Suspect Arrested for LA Bus Rape: The Associated Press reports Kerry Trotter was arrested for the rape of a woman Wednesday on a Los Angeles bus during rush hour that lasted ten minutes. The 18-year-old mentally disabled victim has the mental capacity of a 10-year-old. Trotter has a criminal history of grand theft and possession of cocaine. He has also been investigated in the past for sexual assault.

Dozens in TX Aryan Brotherhood Gang Indicted: The Associated Press reports nearly three dozen Aryan Brotherhood of Texas gang members were indicted Friday, including four top leaders. 15 members were already in custody, 16 were arrested, and three have not yet been arrested. The charges include multiple counts of drug trafficking, assault, fire bombings, kidnapping, attempted murder and murder. 10 of the members face charges which carry a death sentence.

LA Crime Spikes: Ben Welsh and Thomas Suh Lauder of the Los Angeles Times report crime in 21 Los Angeles neighborhoods has increased significantly from October 30 to November 5. Data from the Los Angeles Police Department shows thirteen neighborhoods saw an increase in violent crime; eight saw an increase in property crime.

OK Executes Daycare Killer: Steve Olafson of Reuters reports that Garry Thomas Allen was executed in Oklahoma Tuesday. He was pronounced dead at 6:10 p.m. by lethal injection. Allen had entered a blind guilty plea in the 1986 murder of the mother of his two children. After she arrived to pick up their two young children, Allen shot her four times to death in front of daycare employees. A drunk Allen, who officers found in an alley, attempted to steal the officer's gun and the officer non fatally shot Allen in the face. Allen lost his left eye and suffered some brain damage. Allen was the fifth inmate executed in the state in 2012.

Accused Murderer Attacks Attorney in Court: The Los Angeles Times has this article about accused murderer Rafael Mendoza who slashed the face of his attorney with a makeshift weapon as jurors entered the court Monday. Mendoza allegedly killed a woman whose body was found in 2010. After the attack, Judge Valeriano Saucedo declared a mistrial. Mendoza will face additional charges.

Looting Prompts NY Residents to Take Up Arms After Sandy: CBS New York reports increased looting and thefts in areas that were most affected by Sandy has caused residents to either take up arms or leave town to stay safe.

U.S. Soldier Faces Death Penalty: Bill Rigby of Reuters reports lead prosecutor Lieutenant Colonel Jay Morse is seeking the death sentence for Staff Sergeant Robert Bales. An armed Bales allegedly left his camp twice in one night and killed 16 Afghan villagers, mainly women and children. The hearing is expected to last about two weeks.

Yesterday the California Supreme Court decided a trio of cases trying to make sense out of last term's splintered U.S. Supreme Court decision in Williams v. Illinois.  That case and yesterday's trio involve testimony of a forensic expert relying on lab work done by someone else, and the someone else does not testify and cannot be cross-examined.  In Williams, the high court split 4-1-4, with the plurality and Justice Thomas agreeing there was no violation but for different reasons.

The California decisions are People v. Lopez, S177046, People v. Dungo, S176886, and People v. Rutterschmidt, S176213.

When the high court is split, a precedent is established according to the narrower of the rules set out in opinions concurring in the result.  This is the Marks rule.  However, when neither is identifiably narrower than the other, but rather they come to the same conclusion by entirely different paths, that rule is not particularly useful.

Justice Chin, in his concurring opinion in Dungo, sets out an approach I think is correct.  A precedent is set by the outcome of the case on the basis of its material facts.  If the case now before the court meets the criteria that resulted in the precedent being decided the way it was, then the precedent controls.  In this case, if the evidence has both the qualities that caused the Williams plurality to find it admissible and the qualities that caused Justice Thomas to find it admissible, then it is admissible under the Williams precedent.  Justice Liu, in his dissent in the Lopez case, does not agree with this approach.

SD Set to Execute Inmate: Amber Hunt of the Associated Press reports that Eric Robert is set to be executed in South Dakota Monday night at 10:00 p.m.  It will be the first execution in SD in five years. Robert pleaded guilty to murdering a prison guard during an attempted escape in 2011. At the time Robert was serving an 80 year sentence for kidnapping. The guard was killed after Robert and an accomplice hit him with a pipe and covered his mouth with plastic wrap. Robert then put on his uniform and attempted to escape with his accomplice in a box on a pushcart. When suspicious guards approached them, Robert attacked one of them and was eventually subdued when more guards arrived. Robert says his only regret is that he did not kill more guards and successfully escape. Robert has never appealed his sentence, and SD Gov. Dennis Daugaard will not intervene to stop the execution.

Realignment Has Negative Impacts in CA: Scott Thomas Anderson of Gold Country News Service reports on a study by the Public Policy Institute of California on the effect of AB 109 (realignment) on counties. The study found that 17 counties were operating under court ordered capacity limits and that 93 percent of all county jails were already at full capacity before realignment. As a result jails are being forced to release various types of inmates who are awaiting trial, based on a threat index that considers a criminal's most recent offense. A Roseville police spokesperson said that these so called nonviolent offenders are still dangerous. Local jails are housing hardened criminals who used to be sent to prison, and this changed the environment in many jails. California Police Chiefs Association President Scott Seaman reported that police chiefs all over California are concerned about the impact of AB 109. Both the state Police Chiefs Association and the California District Attorneys Association oppose realignment.

Oakland's Violent Crime Wave Taking Toll on Officers: Dawn Edwards of the Examiner reports that the recent violent crime wave is becoming a major challenge for the Oakland Police Department. Officers are under pressure due to a dramatic increase in crime, which includes 11 murders in October so far and a record-setting 3,000 demands for service a day.

20 CA Prison Employees Fired for Phone Smuggling to Inmates: Jack Dolan of the Los Angeles Times reports that the Office of the Inspector General (OIG) has investigated 419 rule violations by prison employees in the first six months of 2012.  Among these are 54 allegations of smuggling cellphones to inmates, which has resulted in the firing or resignation of twenty employees.  Among the remaining thirty-four, allegations against thirteen have been dropped while the rest remain under investigation.  Most of the reported cellphone smuggling has been motivated by money or romances between inmates and employees.  Corrections officials claim that new cellphone towers capable of blocking reception to any unapproved phone will be in place by 2015.

Mass. Man Pleads to Killing His Family, Gets LWOP: The Associated Press headlines Thomas Mortimer IV pleaded guilty to killing his wife, mother-in-law, and two young children in Massachusetts in 2010. The killings occurred during an argument over a bounced check Mortimer sent to the IRS. Mortimer stabbed his wife more than a dozen times and broke her nose with a frying pan. His mother-in-law was found dead near the door apparently attempting to flee the scene. Mortimer also killed his two-year-old daughter and four-year-old son; slitting their throats.  Mortimer fled leaving behind a written confession. He was caught the next day. Mortimer pleaded guilty to aggravated first-degree murder and was sentenced to life without parole.

TX DA Will Seek Death Penalty: Jennifer Emily of the Dallas Morning News has this article on how Dallas County District Attorney Craig Watkins will be seeking the death penalty for Franklin Davis for the rape and murder of a 16-year-old girl. Davis was facing charges on four counts of sexual assault, when he allegedly abducted the 16-year-old victim from school and murdered her to prevent her testimony. The girl's body was found, shot and strangled. Davis was charged in the murder Wednesday. 

2 Arrested in Border Patrol Death: E. Eduardo Castillo and Jacques Billeaud of the Associated Press report federal police arrested two men Thursday suspected in the shooting death of a U.S. Border Patrol agent in Arizona according to Mexican law enforcement. No other details have been disclosed at this time. This is an update of this earlier news scan.   

UT Inmate Pleads Guilty in Guard's Death: Shannon Dininny of the Associated Press reports Utah inmate Curtis Allgier plead guilty to killing a prison guard in 2007, agreeing to a sentence of life without parole. Allgier, a neo Nazi, took the plea to avoid the death penalty. Allgier admitted to shooting the guard to death with his own gun while being escorted to a doctor's appointment. Allgier's extensive criminal history includes disarming a police officer, aggravated escape, robbery, possessing a firearm while on parole, attempted murder, forgery, burglary, and theft dating back to 2000. Allgier is scheduled to be sentenced on Dec. 5.

Oakland Homicides Spike, 5 Dead: Henry Lee of the San Francisco Chronicle reports over the course of 18 hours on Tuesday, five men were shot and killed in Oakland, California. Two of the victims were killed by the same shooter. Police have not disclosed any motives nor made any arrests.

Mass. Appeals Judge's Sex Change Decision: The Associated Press reports Massachusetts filed an appeal Tuesday of U.S. District Judge Mark Wolf's decision to grant convicted murderer Michelle Koselik's request for a sex change. The sex reassignment surgery would be paid for by tax payers. Continued from this news scan.

CA Quad-Killer Denied Parole: Larry Welborn of the Orange County Register reports the California State Parole Board denied Brett Matthew Paul Thomas' bid for parole Tuesday. The parole hearing was held at the R. J. Donovan Correctional Facility in San Diego. The daughter and sister of two of the victims traveled to the hearing from the East Coast to oppose the convicted quadruple murderer's parole. Thomas will be up for parole again in 2014. The original news scan is here.

Man Denies Murder in TV Interview, Confesses to Police: Tyler Rudick of Culture Map Houston reports that Mark Augustin Castellano confessed to murdering his girlfriend and dumping her body two days after telling TV psychologist Dr. Phil he did not kill her. Castellano confessed on Sunday to grabbing his girlfriend by the throat during a verbal dispute, breaking her neck, and finally dumping her body in an oil field in Texas. Castellano has been charged with murder.

Mass. to Appeal Murderer's Sex Reassignment: The Associated Press reports Massachusetts prison officials announced Wednesday the state will appeal U.S. District Judge Mark Wolf's decision to grant convicted murderer Michelle Kosilek's request for sex reassignment surgery. Koselik, named Robert when convicted of murdering his wife in 1990, has been receiving hormone treatment and lives in an all male prison, as a woman. Prison officials argue that allowing the surgery would put Koselik at risk for sexual assaults from other inmates. Many insurance companies consider the surgery elective; transgender inmates are typically treated with hormone treatments and psychotherapy. The state Department of Corrections argues denying the request would not violate Koselik's Eighth Amendment rights as Koselik is already receiving adequate treatment. The surgery would cost taxpayers up to $20,000. 

High-Risk Sex Offender Attacked Victim Twice: Janon Fisher of the US Daily News reports Jonathan Stewart allegedly attacked and raped his victim twice on Saturday in New York according to prosecutors. Stewart, a high-risk level 3 sex offender, chased his victim down after she escaped his first attack and violently raped her again. The victim managed to escape a second time and fled naked; Stewart remained in pursuit until he saw her talking with police. Officers found a shirtless Stewart shortly after. Stewart had been previously convicted of robbing and sexually assaulting two women with a knife in 2004. He was arraigned Sunday.

Daughter, Sister of Murder Victims Opposes Killer's Parole: Larry Welborn of the Orange County Register reports that Lynette Duncan, the daughter/sister of two victims of murderer Brett Thomas, is traveling from the East coast to a correctional facility in San Diego to argue against his parole. Thomas and his accomplice Mark Titch shot Duncan's father to death with a shotgun in front of their home. One of the pellets hit her 18-year-old sister in the heart, killing her.  The pair also shot Duncan's mother, who survived the attack. Five days prior, Thomas and Titch gunned down a drive-in dairy employee during a robbery attempt. The nude body of the their first victim, Laura Anne Stoughton, 20, was found Jan. 21, 1977, on a rocky hill in East Orange, her hands clutching a crucifix. Both men pleaded guilty to taking four lives in California over the course of nine days in 1977 and were sentenced to life in prison. Fortunately for both killers, California did not have death penalty in January of 1977.  It was reinstated by the Legislature, over Governor Jerry Brown's veto, in August of that year, too late to apply to them.  

Zimmerman's DNA Found on Gun: The Associated Press reports the gun used in the alleged self-defense killing of Trayvon Martin had traces of George Zimmerman's DNA on the grip and holster Wednesday. Martin's DNA was not on the grip of the gun, and no determination could be made in regards to the holster. Zimmerman admits to shooting Martin, but claims it was self-defense. Zimmerman said Martin got on top of him, slammed his head into the ground and smothering his nose and mouth. Zimmerman then grabbed the gun in the holster on his waist before Martin could get to it and shot him once in the chest. Zimmerman is charged with second-degree murder.

Death Row Inmate Requests Reconsideration for Clemency: Karen Langley of the Post-Gazette Harrisburg Bureau reports Terrance Williams attorneys filed a request Monday to have the Pennsylvania Board of Pardons reconsider their rejection of clemency. Williams' attorneys claim a Philadelphia Deputy DA dishonestly answered a Board member's question about an allegation that prosecutors persuaded Williams' co-defendant to testify against him in exchange for parole. The prosecutor, Thomas Dolgenos, said the claim is ridiculous.  "What I told the board yesterday, that is absolutely true."   Williams is scheduled to be executed Oct. 3 but the next hearing regarding reconsideration is not until Dec. 12.  Williams has asked the court to expedite a decision to his request. Update to this news scan.

WI DOJ Seeks to Expand DNA Database: WEAU News headlines the Wisconsin Department of Justice wants to expand DNA collection to include not only anyone convicted of a felony, but also anyone arrested for a felony or convicted of a misdemeanor.

Today is the 225th anniversary of the signing of the proposed Constitution of the United States in Philadelphia.  (It didn't actually become the Constitution until ratified, of course.) Robert Barnes has this article in the WaPo on Justice Thomas's appearance at Yale Law School yesterday.

The headline above the article (probably written by an editor, not Barnes) reads, "Thomas concedes that 'we the people' didn't include blacks."

Concedes? As I have said here before, the second thing we should do is kill all the headline writers.  Where does that word "concedes" come from?

The word "concedes" implies that one is admitting a point that weighs against one's own argument or yielding on a point previously disputed.

I suspect the headline writer thinks that the fact that the original Constitution was a compromise that permitted slavery is somehow a point against the jurisprudence of original understanding, which Justice Thomas supports.  It is not.  Politics is the art of the possible, and the original Constitution necessarily had to include many compromises in order to achieve ratification.  This was one of them, and it took a Civil War and three amendments to fix it, several generations later.  But it was fixed by amendment and not by judicial activism, the latter being part of the problem rather than part of the solution.

There is no concession here.

One way that a crusading anti-death-penalty lawyer can "win" his case is to drag it out so long the client dies in prison.  Last February, the Ninth Circuit affirmed the denial of habeas relief to Nevada murderer Robert Farmer:

Farmer committed a series of terrible, random crimes in Nevada in the early 1980s. In January 1982, Farmer killed Thomas Kane, a man whose car Farmer had stolen. Then, Farmer robbed and killed a Nevada taxidriver named Greg Gelunas. Farmer fled to Florida, where he was arrested and extradited to Nevada.

Today, however, the Ninth Circuit issued this order:

Counsel for Farmer has advised us that Farmer died in prison on April 24, 2012, while a [petition for rehearing en banc] he filed remained pending before this court. Because Farmer did not have the opportunity to exhaust the entire appellate process, including the possible pursuance of a petition for writ of certiorari in the Supreme Court, we order as follows:

1) Our opinion published at 666 F.3d 1228 is hereby vacated; 2) the petition for rehearing and rehearing en banc is denied as moot; and 3) this appeal is dismissed as moot.

Holmes' University Psychiatrist Reported Alarming Behavior: Jeremy P. Meyer and Allison Sherry of the Denver Post report psychiatrist Dr. Lynne Fenton, seeing Colorado shooter James Eagan Holmes before the massacre, notified members of the University of Colorado Denver Behavioral Evaluation and Threat Assessment (BETA) team of alarming behavior displayed by Holmes sometime within the first ten days of June, 2012. The BETA team provides faculty, staff, and students a resource when "confronted with people they believe are threatening, disruptive or otherwise problematic," but does not include the campus police. Due to Holmes leaving the University, no further action was taken.

CA Triple-Murderer Gets Death Penalty: Paul T. Rosynsky of the Oakland Tribune reports that after only one day of deliberation, Oakland jurors sentenced David Mills to death for a triple-murder.  In 2005 Mills was supposed to return a gun he borrowed to four friends waiting in a car.  He instead walked up to the vehicle began shooting, killing three of the four.  A woman, though badly injured, survived to identify Mills as the shooter. Mills was a habitual criminal who dropped out of elementary school to sell drugs and previously plead guilty to involuntary manslaughter after the witnesses against him refused to testify.

CA County Awarded Additional $20M to Build Jail: Marga K. Cooley of the Santa Ynez Valley News reports the CA Board of State and Community Corrections awarded Northern Santa Barbara County $20M more to build a new 138,385-square-foot jail to house the increasing number of inmates being transferred to the county due to realignment. The extra $20M, increasing the award to the $80M cap for medium-sized counties, will allow for the jail to have 376 beds rather than 304.

Man Believed to be Dead to Face Death Penalty: Holbrook Mohr of the Associated Press reports federal prosecutors have charged Thomas Sanders, who was declared dead in 1994,  with killing his girlfriend and her 12-year-old daughter outside of Law Vegas over Labor Day weekend, 2010.  Sanders allegedly stopped in the desert to let his girlfriend shoot his rifle, then shot the woman in front of her daughter.  He drove the horrified 12-year-old girl to a wooded area in Louisiana where she survived multiple gunshot wounds before Sanders finally cut her throat. Sanders was presumed dead seven years after leaving his family in Mississippi.  He remained undetected despite traveling and multiple arrests. Federal prosecutors will seek the death penalty.

Death Penalty Upheld in CA School Shooting: Paul Elias of the Associated Press reports the CA Supreme Court upheld the death sentence for Eric Houston, a high school drop out, convicted of killing a teacher and 3 students, and injuring 10 others in a May 1, 1992 rampage through the halls of the Yuba County high school he had attended. Houston went into the school armed with a 12-gauge shotgun in hand and a sawed-off .22-caliber rifle on his back. After the initial onslaught, he rounded up about 80 students in an upstairs classroom and held them hostage for about 8 hours, releasing several through negotiations, and finally surrendered at 10 p.m.

Oklahoma Acquires 20 Additional Doses of Lethal Injection Drug: Megan Rolland of NewsOK reports Oklahoma has acquired 20 additional doses of pentobarbital, the first drug administered as part of the state's three-drug lethal injection process. The state previously had one dose remaining. As reported in yesterdays News Scan, an attorney for Oklahoma death row inmate Michael Hooper had filed a lawsuit to halt Hooper's August 14 execution because there was no backup if the dose of pentobarbital failed.

2 Iowa Juvenile LWOP Cases to be Resentenced: Trish Mehaffey of The Gazette reports the Iowa Court of Appeals on Wednesday overturned the life sentences of two inmates convicted of first-degree murder at age 17, after the U.S. Supreme Court's ruling last month on mandatory juvenile life without parole sentences. Christine Lockheart and Thomas Bennett will now face resentencing. The District Court will be able to consider mitigating factors in determining sentencing. Lockheart was convicted of stabbing to death a retired bus driver in 1985. Bennett was convicted of shooting a disabled man to death during a robbery in 1998.

Chicago Police Will Only Detain Illegal Immigrants for Serious Crimes: Fran Spielman of the Chicago Sun-Times reports Chicago Major Rahm Emanuel and U.S. Rep. Luis Gutierrez (D-Chicago) on Tuesday unveiled the new so-called "Welcome City" ordinance, which prohibits police from detaining illegal immigrants unless they have been convicted of a serious crime or are wanted on a criminal warrant. "If you're an immigrant and you have no criminal background, I don't want that to be prohibitive from you contacting the police," Emanuel said. "I can't be advocating for the community to work with the Police Department if people are [so] worried about their immigration status that they don't report a crime," he added. Gutierrez said that with illegal immigrants less suspicious of police, it will be tougher on the gangs contributing to Chicago's spike in homicides.

Last year at this time, we were feeling good about the term just completed.  We had racked up major victories settling long-standing and important problems with decisions such as Harrington v. Richter and Cullen v. Pinholster.

This year, about all we can say is, "Well, it could have been worse."  A summary of the criminal and related cases for the term is available here.

Last July, I noted that the right to counsel would be a major theme, with five cases involving defendants complaining about their lawyers.  The defendants were the prevailing parties in four of the five, but in none of the five did the prevailing side get the prize it wanted.

For those trying to figure out what the law is after today's decision in Williams v. Illinois, here are a couple of points to keep in mind:

"When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. . . .' " Marks v. United States, 430 U.S. 188, 193 (1977).

"This test is more easily stated than applied to the various opinions supporting the result in Baldasar."  Nichols v. United States, 511 U.S. 738, 745 (1994).

And it will be more easily stated than applied to the opinions in Williams.

Parts II and III of Justice Alito's plurality opinion are actively opposed by a majority of the Court, so relying on them to get evidence in is risky, to put it mildly.  Let's focus on Part IV.  For the proposition that the report in this case is not "testimonial," the plurality says the report was not testimonial because it was not focused on a particular suspect, while Justice Thomas's concurrence says it is not testimonial because it lacked the formality associated with such things as depositions, affidavits, or certificates of fact.

Which of these is the narrower grounds?  I have no idea.

In the Nichols case noted above, the high court threw up its hands and decided the issue from scratch.  No other court can do that.  If there is a Supreme Court precedent, they have to follow it.  But what is the precedent?

The San Francisco Bay View (subtitled National Black Newspaper) has three op-eds on the death penalty repeal initiative.  The authors are Kevin Cooper, Donald Ray Young, and Correll Thomas, all of whom are murderers residing on the Big Q's death row.

Two of the three are opposed to the initiative.

I am somewhat ambivalent about posting this link.  I'm not particularly interested in helping murderers get their opinions out.  Still, our readers might find this interesting.

I am not as surprised as many will be that some denizens of death row oppose repeal.  I have received letters from inmates who want their appellate lawyers to take the "liberty or death" position, attacking only the guilt verdict and making no case against the penalty.  The lawyers ignore them, despite the fact that the rules of legal ethics make very clear that a mentally competent client is entitled to set the goals of representation.

The two opposed also make a point that I have made a few times.  The death-sentenced murderer actually has a better chance of attacking his guilt verdict than an LWOP-sentenced murderer because of all the resources he is provided on habeas corpus.

Ohio Governor Issues 2-Week Reprieve for Condemned Inmate: Andrew Welsh-Huggins of the Associated Press reports Ohio Governor John Kasich granted a temporary reprieve on Tuesday night for Abdul Awkal, who was scheduled to be executed within 18 hours when the governor made his announcement. Kasich granted the two-week reprieve to allow for a hearing on Awkal's mental competency. Awkal was sentenced to death for killing his estranged wife and brother-in-law at a Cleveland courthouse.   

Federal Judge Rejects Media Groups' Idaho Execution Access Lawsuit: Jessie L. Bonner of the Associated Press reports a federal judge on Tuesday rejected a lawsuit filed by the Associated Press and 16 other news groups last month over a policy in Idaho that prevents witnesses from viewing the entire lethal injection process. "The claim was brought very late, and if granted, it would undoubtedly change the execution protocol and could disrupt the scheduled execution," U.S. District Judge Edward J. Lodge said. "The public has an interest in viewing the whole execution process, but it also has an interest in seeing the judgment enforced without disruption." The attorney for the news organizations said they will appeal to the 9th U.S. Circuit Court of Appeals.

Jury Recommends Death for CA Cop Killer: The Associated Press reports a jury on Tuesday recommended the death penalty for Earl Ellis Green, who was convicted of first-degree murder last month for killing a Riverside police officer.  Officer Ryan Bonaminio pulled Green over in response to a hit-and-run report. In 2010, Bonaminio chased Green on foot down a darkened park path, where Green beat him with a metal bar and shot Bonaminio with his own service weapon after he slipped and fell. 27-year-old Bonaminio was a Riverside native and a war veteran, having served with the Army in Iraq. Green was also found guilty of vehicle theft with a previous conviction for vehicle theft and of being a felon in possession of a firearm. He is scheduled to be sentenced on June 25.

NYC Mayor Supports Decriminalization of Marijuana: Thomas Kaplan of The New York Times reports New York City Mayor Michael Bloomberg on Monday endorsed a proposal to decriminalize the open possession of small amounts of marijuana. The proposal is an effort by New York Governor Andrew Cuomo to cut down on the number of people arrested because of police stops, specifically due to the police department's stop-and-frisk practices. Bloomberg and police officials agree that the practice has made the city safer, but it has been criticized as racially biased. Under Cuomo's proposal, the possession of 25 grams or less of marijuana in public view would be downgraded from a misdemeanor to a violation. The maximum fine for first-time drug offenders would be $100. 

Another Case Challenges Provision of Connecticut Death Penalty Repeal: Brian Burnell of New England Cable News reports Connecticut's Supreme Court on Monday overturned the death sentence of Eduardo Santiago and ordered him a new penalty phase trial for his conviction in the killing of a man in exchange for a broken snowmobile. The state's recent death penalty repeal is prospective in that it keeps the death sentences intact for those sentenced before the repeal, but bans any future death sentences. Burnell questions how that is going to work in this situation. If Santiago gets another death sentence from the new penalty phase trial, "Doesn't that mean he's being sentenced to death in a state that doesn't have capital punishment anymore?  Sounds like another avenue of appeal," Burnell said.