Results matching “thomas”

Guilty Pleas and Appeals

The U.S. Supreme Court today decided Class v. United States, No. 16-424:

Does a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution? In our view, a guilty plea by itself does not bar that appeal.
Justice Breyer wrote the opinion of the Court.  Justice Alito dissented, joined by Justices Kennedy and Thomas, criticizing the majority for leaving a "muddle."
When can sentencing laws enacted by the people by initiative be changed by the legislature?  The answer varies by state.

Noelle Crombie reports for the Oregonian:

A three-judge panel of Clackamas County Circuit Court judges unanimously concluded Wednesday that a controversial state law reducing sentences for some property crimes is unconstitutional, the latest development in a political conflict erupting over the statute.

The judges, Susie Norby, Michael Wetzel and Thomas Rastetter, concluded that the law, which the Legislature passed last year, needed a two-thirds majority instead of a simple majority because it revised Measure 57. The voter-approved measure cracked down on repeat property offenders with longer prison sentences.

News Scan

Appeals Court Upholds Death Sentence:  DNA evidence which helped convict a Texas man of capital murder was also cited by the state's Court of Criminal Appeals to uphold his death sentence.  Clare Osborn of the American Statesman reports that the 1980 rape and murder of 73-year-old Mildred McKinney was unsolved until modern DNA testing of items found at the crime scene resulted in a match to habitual criminal Steven Thomas.  Other evidence included Thomas's fingerprint on the alarm clock next to the bed where the victim was raped, beaten, and strangled to death.  Thomas was working for the pest control company hired by the victim when he cased her house and decided to rob it.  The case was cracked when his sperm was found on tape used to restrain the woman.  The court's decision noted that the coroner, who had performed 15,000 autopsies, testified that the victim's injuries were the worst he had ever seen.

Illegal Charged in Fatal DUI Crash:  A twice-deported illegal alien from Guatemala has been charged with causing the deaths of  NFL linebacker Edwin Jackson and Uber driver Jeffery Monroe last Sunday.  The Associated Press reports that Manuel Orrego-Savala had been deported in 2007 and 2009, and had been convicted of drunk driving in California in 2005.  He had numerous convictions and arrests in both California and Indiana.  On Sunday, Orrego-Savala was driving drunk when he hit both victims on Interstate 70 in Indiana.  The county prosecutor criticized recent comments made by the President about the case and promised that Orrego-Savala's immigration status will have no bearing on the trial.  In spite of this, it's fairly clear that if this criminal had been unable to reenter the U.S. his two victims would still be alive.

News Scan

SCOTUS Orders Review of Murderer's Bias Claim:  In a 6-3 opinion announced Monday, the U.S. Supreme Court ordered the 11th Circuit to reconsider a Georgia murder's claim that he is entitled to a new trial because of a juror's racially biased statement. Adam Liptak of the New York Times reports that the Court's per curium opinion in Tharpe v. Sellers concluded that an affidavit by a juror in the murder trial Keith Tharpe, which described the defendant as a "nigger," required a full review by the lower court to determine if racial prejudice had resulted in Tharp's conviction and death sentence.  Overwhelming evidence confirmed Tharp's guilt of the shotgun murder of his estranged wife's sister during his ambush, kidnapping and rape of his wife.  The 11th Circuit had previously dismissed Tharp's bias claim.  A dissenting opinion by Justice Clarence Thomas and joined by Justices Alito and Gorsuch, called the majority's opinion "ceremonial hand-wringing."     

Yet Another Cause Célèbre Really Did It

The tent has finally folded on the Reginald Clemons circus.  As with so many other poster boys for the anti-death-penalty crowd, he is indeed guilty.  Robert Patrick and Joel Currier report for the St. Louis Post-Dispatch:

Reginald Clemons, who was sentenced to death for the 1991 killings of two sisters at the Old Chain of Rocks Bridge before his conviction was overturned in 2015, pleaded guilty to murder and other charges Monday in exchange for multiple sentences of life in prison.

Clemons, 46, pleaded guilty to five counts in all: two counts of second-degree murder, two counts of rape and one count of first-degree robbery.

Clemons admitted that he and three others met Julie Kerry, 20, and Robin Kerry, 19, and their cousin on the closed bridge late on the night of April 4, 1991.

They robbed the cousin, Thomas Cummins, of cash and a watch, Assistant Attorney General Gregory Goodwin said in court. They then raped the Kerry sisters, forced all three through a manhole and onto the substructure of the bridge and pushed the Kerrys off, he said. They forced Cummins to jump from the bridge at gunpoint, Goodwin said, but Cummins survived.

The Blue Slip Dies Quietly

Kent blogged here, and I here, about the end of the wildly excessive form of senatorial courtesy known as the blue slip, under which a single senator could block a judicial nominee notwithstanding excellent qualifications and clear majority support.  Some commenters doubted that the blue slip was really dead.  I trust this tidbit from today's Washington Post has laid that to rest:

Senate Republicans are officially blowing up the blue slip this week for circuit court nominees, ending a century-old tradition. Barack Obama and Democrats, when they were in charge, respected the long-standing prerogative of senators to block nominees they don't approve of from their home states. That's one reason there are so many vacancies. But Judiciary Committee Chairman Chuck Grassley (R-Iowa) bowed to pressure from the White House and scheduled confirmation hearings for two appellate courts nominees where a home state senator had not returned the blue slip.

The last straw for the blue slip was when Al Franken, taking time off from various other activities, refused to return the blue slip for Minnesota Supreme Court Justice David Stras, citing absolutely nothing suggesting that Stras has less than superb judicial qualifications, and settling for the objection that he was "too much like Clarence Thomas."

There's an old line that comes to mind here:  If you abuse a privilege, you lose it.  The Left's willingness to play into President Trump's hands by dead-end, partisan opposition to highly qualified nominees (see, e.g., Neil Gorsuch) continues to be the gift that keeps on giving.

P.S.  It wasn't that Grassley "bowed to pressure from the White House."  It's that Grassley, a gentleman and a respecter of Senate traditions, got pushed over the edge by bovine obstructionism.  

The SCOTUS Lineup on the Death Penalty

The Supreme Court today announced a unanimous per curiam opinion in Dunn v. Madison.  I'll repeat the Heritage Foundation's summary of the case:

[T]he Court reversed a decision of the Eleventh Circuit in an Antiterrorism and Effective Death Penalty Act (AEDPA) case. AEDPA provides that a state prisoner is entitled to federal habeas relief only if the state trial court's adjudication of the prisoner's claim "was contrary to, or involved an unreasonable application of, clearly established Federal law." In this case, an Alabama trial court sentenced Vernon Madison to death for murdering a police officer. Awaiting execution, Madison suffered several strokes and petitioned for habeas, asserting that he had become incompetent to be executed. Experts testified that although Madison could not remember the "sequence of events from the offense to his arrest to the trial or any of those details," he did understand he was "tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime." The district court denied Madison's petition but the Eleventh Circuit reversed. Today, the Supreme Court reversed, holding that no Supreme Court precedent has "'clearly established' that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case."


Ginsburg, joined by Breyer and Sotomayor concurred, writing that while AEDPA precludes consideration of the question in this case, the question of "whether a State may administer the death penalty to a person whose disability leaves him without memory of him commission of a capital offense" "warrant[s] full airing." Breyer also concurred, writing separately to (once again) call into question the "unconscionably long periods of time that prisoners often spend on death row awaiting execution."


Justice, Finally, for a Fallen Officer

Montgomery Police Corporal Anderson Gordon III was murdered in the line of duty 20 years ago last month. His Officer Down Memorial Page is here.

As noted yesterday, the U.S. Supreme Court vacated a stay that had been entered by a district court in blatant disregard of the legal requirements for a stay.  Justice Thomas later entered a brief stay himself to allow the full court to consider a subsequent petition.  Justice Thomas seems to use his temporary stay authority as Circuit Justice more often than the others.  Upon consideration, the full court denied relief and vacated that stay, and the execution proceeded.

WSFA in Montgomery has this story on the execution.

Stays and Possibility of Success

The U.S. Supreme Court has vacated another stay of execution from Alabama, reminding the lower federal courts that "a significant possibility of success on the merits" is a requirement for a stay.  See prior post of October 4.  No, again, you can't use the All Writs Act to weasel out of that requirement.  Here is the order in Dunn, Commissioner v. McNabb, 17A440:

The application to vacate the injunction entered by the United States District Court for the Middle District of Alabama on October 16, 2017, presented to Justice Thomas and by him referred to the Court, is granted. "[I]nmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Hill v. McDonough, 547 U. S. 573, 584 (2006). The All Writs Act does not excuse a court from making these findings. Because the District Court enjoined Respondent's execution without finding that he has a significant possibility of success on the merits, it abused its discretion. We accordingly vacate the injunction.

Justice Breyer and Justice Sotomayor would deny the application to vacate the injunction.

News Scan

High Court Declines TX Murderer's Appeal:  A man convicted of arranging the murder of his mother and brother in order to collect a $1 million inheritance lost his bid for Supreme Court review of his death sentence Tuesday.  Michael Graczyk of the Associated Press reports that Thomas Whitaker plotted with two friends to kill his parents and brother and even shot himself in the arm to make it appear that he was also a victim.  Unfortunately Witaker's father survived and his two accomplices plead guilty.  In his appeal he argued that prosecutors broke their promise to let him plead guilty to avoid a death sentence.  Last April the 5th Circuit held that while Whitaker's attorneys initiated the plea deal, prosecutors only promised to "consider" it.  A jury decided Whitaker deserved a death sentence.

Lifer Who Stabbed Prison Guard Executed:  A inmate serving a 99-year sentence for murder when he stabbed a Texas corrections officer to death eighteen years ago, was put to death Thursday.  Samantha Schmidt of the Washington Post reports that Robert Pruett was convicted of stabbing 37-year-old corrections officer Daniel Nagle eight times with a steel rod as payback over a dispute about a peanut butter sandwich.  Pruett won a stay of his execution in 2015 to allow additional DNA testing of the murder weapon.  After the results of the test proved inconclusive, Pruett filed a civil suit claiming that the Texas Court of Criminal Appeals denied him due process.  After 5th Circuit rejected that suit, he filed a last minute petition arguing that the appellate court had used the wrong standard in rejecting his claims.  SCOTUS denied that appeal.  The Nathan Robinson of the New York Times has this story arguing Pruett's case. 

News Scan

Ohio Murderer's Conviction Overturned:  The Ohio Supreme Court overturned the conviction and death sentence of a man found guilty of the 2010 rape and murder of a bartender.  Evan MacDonald of the Cleveland Plain Dealer reports that the court's 4-3 ruling held that the introduction of the defendant's knife collection at trial was "highly prejudicial" and likely influenced the jury's verdict.  Witnesses at the bar where Ann McSween worked saw defendant Joseph Thomas on the night of the murder with a blue knife clipped to his belt.  They saw her refuse to dance with Thomas and heard her ask him to leave at closing time.  Later in the parking lot, the woman was stripped, beaten, raped and stabbed to death.  Thomas' neighbor saw someone at Thomas' residence shortly after the murder, burning what police found to be the victim's clothes in a barrel.  Thomas' girlfriend said he always carried his blue knife on his belt when he went to bars.  Thomas denied this, and his blue knife was never found.  At trial the prosecutor showed the jury the five other knives Thomas kept and suggested it would not be unusual for him to carry a knife.  The court's dissent noted that showing the jury the knives corroborated testimony that Thomas was carrying a knife on the night of the murder. 

DNA Ties Sex Offender to 1980 Murder:  A construction worker, who dodged a sexual assault conviction in 1981 and was later convicted of one in 1982, has been arrested for the murder of a 20-year-old pregnant woman in 1980.  Emily Holland of the Patch reports that new DNA technology resulted in a match tying Robert Yniguez to the body of Teresa Broudreaux found in March 1980 lying on a beach near Palos Verdes in Los Angeles County.  Yniguez served eight years in prison for the 1982 sexual assault, but charges were dropped for an earlier assault when the victim stopped cooperating with police.  He is being held on $2 million bail.

News Scan

Judge: Sex Offender Registry Unconstitutional:  A federal district judge in Denver has ruled that Colorado's sex offender registry violates the Constitution's Eighth Amendment.  Kirk Mitchell of the Denver Post reports that District Judge Richard Matsch found that the registry exposes sex offenders to a "serious threat of retaliation, violence, ostracism, shaming and other irrational treatment from the public; directly resulting from their status as registered sex offenders..."  The judge also announced that the state's registry violates the 14th Amendment due process clause.  The ruling came in a 2013 civil case filed by three sex offenders.

Sheriff's Deputy Killed by Repeat Felon:  A 21-year veteran of the Sacramento County Sheriff's Department was gunned down Wednesday by a habitual felon wanted by both state and federal law enforcement.  The Associated press reports that shooting suspect Thomas Daniel Littlecloud had been sent to prison four times since 2004.  At the time of the shootings, he was on probation (now called "post release community supervision" under California's Realignment), had skipped bail for a federal indictment on four felony charges, and was on the run from Sonoma County bench warrant on drug, firearm and stolen credit card charges.  Around noon Wednesday CHP Officers and Sacramento County Deputies knocked on the door of a room at a Ramada Inn in North Sacramento, where detectives believed an auto theft ring was headquartered.  Littlecloud fired shots from a high-powered rifle through the door, injuring two CHP officers, then fired from a balcony fatally wounding Deputy Robert French, before jumping from the balcony and fleeing in a stolen car.  Littlecloud then led police on a high-speed chase which ended when he crashed into a utility pole near a high school about four miles from the hotel.  He then exited the car and fired on pursuing officers until he was seriously injured by return fire.  Prior to enactment of AB 109 (Realignment), it is highly likely that this murderer's 2013 and 2015 felonies would have put him back in state prison, rather than leaving him loose on streets to kill a police officer.          


They Keep Lying and Lying

The main problem in being an advocate for robust law enforcement is not putting up with repeated smears from the other side.  Kent and I have been called fascists and bloodlusters too many times to remember.  After a while, you get used to it as the way many people (although not the majority) on the other side do business.  (I have also been called a kapo and  --  get this  --  a necrophiliac.  I think Kent has missed out on those two bouquets, so far).

No, the main problem is not that the Left smears but that they lie.  "Lie" is a strong word, but it's the only one that correctly captures what's going on.  Moreover, they generally lie with impunity.  While the more adult advocates on the Left will criticize insult as a means of debate, only a handful will call out the lying.  Even when they do, it's largely excused as being merely push-the-envelope advocacy.

Two recent examples of flagrant lying come to mind.
On June 26, the U.S. Supreme Court granted in part the Government's request to stay the injunctions against enforcement of the travel ban for nationals of six countries.  The court left the injunction in effect for, among others, persons with "a close familial relationship" with a person in the United States.  How close is "close"?  The Supreme Court did not say.

The Government's interpretation was largely along the lines of family relationships that Congress has designated as close enough to file an application for a family-based immigration petition, which seemed sensible to me.  The U.S. District Court did not think so and modified its injunction to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States."  Sounds like something out of Gilbert and Sullivan

The District Court also enjoined application of the Executive Order to two classes of refugees, those who "(i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program."

Acting swiftly in response to a petition by the Government, the Court issued this order:

The Government's motion seeking clarification of our order of June 26, 2017, is denied. The District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government's appeal to the Court of Appeals for the Ninth Circuit.

Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the District Court order in its entirety.
Hmmm.  The District Court's furthest stretch, to refugees who merely have an assurance from an agency but no other contact within the U.S., is stayed, but the rest remains in force.  This is the Supreme Court that our Politically Correct academia keeps telling us is "conservative."

News Scan

ICE Beefing Up to Enforce the Law:  As it is with virtually every country in the civilized world, it is a crime to enter the United States without government authorization.  An American caught sneaking into Mexico will typically be thrown in jail and fined. Paul Bedford of the Washington Examiner reports that the federal Immigration and Customs Enforcement agency is hiring an additional 10,000 agents to resume enforcing U.S. immigration law.  In an interview, the acting director of ICE, 30-year veteran Thomas Hormon, said that since the handcuffs have been taken off of law enforcement, "illegal border crossings have crashed by almost 70 percent."  The drop in illegal border crossings is allowing ICE to focus more resources on illegal immigrants in jails, working jobs, or on the run.  "ICE is open for business.  We're going to enforce the laws on the books without apology, we'll continue to prioritize what we do.  But it's not OK to violate the laws of this country anymore, you're going to be held accountable," he said.

Abolitionism Hits Bottom

I've said a number of times, e.g., here, that the push to abolish the death penalty has, after years of making headway, probably gone as far as it's going to get. 

One way I check this is to look at the mid-year execution numbers.  As of now, the country has executed 13 killers in 2017.  That would extrapolate to a total of 26 over the year, six more than last year.  If that's the way it holds, it will be one of the few times over the last two decades that we've had more executions in one year than in the preceding year. See this graph

I also look at Supreme Court cases to see who is voting which way.  Today, Justice Kennedy voted with Justice Thomas's majority opinion in Davilla v. Davis, noted briefly by Kent here.  He did so without writing separately from Thomas's strong and disciplined analysis, just as he cast his vote without separate opinion in the Court's extremely important work in Glossip v. Gross.  It seems to me that Justice Kennedy's once seemingly skeptical view of capital punishment (see Roper v. Simmons) is not what it used to be.  It may also be worth noting that, if Justice Kennedy steps away from the Court in the near future, his replacement is likely to be a solid death penalty backer, as is  --  to add to my main point  --  the Court's youngest member, Neil Gorsuch, whose votes continue to be everything capital punishment advocates could have hoped for.

Finally, as the sickness of a skyrocketing murder rate continues to afflict the country, now into its third year, support for the strongest antidote is correspondingly likely to rise. This too is what history tells us.  --  support for the death penalty rose massively until several years after a spiraling murder rate started to decline.

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

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

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


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

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

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

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

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

News Scan

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

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

Busy Decision Day at SCOTUS

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

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

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

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

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

The next expected decision day is Thursday.
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