Results matching “thomas”

Supporting the Death Penalty:  Sacramento Bee published an opinion piece by David E. Brown supporting California's continued use of the death penalty.  California voters have always overwhelmingly supported death penalty initiatives, and Brown agrees.  He writes that the real problem "with California's death penalty is its inability to carry out executions following convictions and sentences."  Since California reinstated the death penalty in 1978, only 14 inmates on death row have been executed.  Brown believes that because of the judicial system's failure to approve executions, the death penalty in California has become a de facto life-without-possibility-of-parole sentence. 

Pennsylvania's Death Penalty System:  Pittsburgh Post-Gazette writer Torsten Ove reports on Pennsylvania's failure to execute anyone since Gary Heidnik in 1999.  Pennsylvania has more than 220 prisoners on death row and although Governor Ed Rendell has signed 101 death warrants, executions are not occurring.  Last week Governor Rendell signed a death warrant for Richard Baumhammers, but says most likely there will not be an execution.  Baumhammers is a racially motivated mass murder who targeted minorities, and because he has taken full advantage of the appeals process he is unlikely to be executed on March 18.  Ove writes that since the reinstatement of the death penalty in 1978, Pennsylvania has not executed anyone who has not waived their right to an appeal.  Buamhammers'  appeal to the U.S. Supreme Court was denied in October, and he may still file a stay of execution with the Allegheny County trial judge and file a habeas corpus petition in U.S. District Court.  Ove reports there on 20 other inmates from Western Pennsylvania for whom governors have signed death warrants that remain on death row. 

DNA Nabs a Rapist:  The Massachusetts' Patriot Ledger published an article from GateHouse New Service writer Greg Smith about how police caught a 1988 kidnapping and sexual assault suspect with DNA evidence.  James Thomas Ward was convicted lat year of first-degree sexual assault and first-degree kidnapping of a 20-year-old newlywed.  Police had followed many leads, but came up empty handed and the investigation was suspended in 1990.  The case was reopened in 2005 when Ward's DNA profile was found to match  evidence collected from the victim's sweater.

North Carolina's Desire to Expand DNA Database:  Citizen Times writer Dale Neal reports that North Carolina's Attorney General, Roy Cooper, wants to expand the state's DNA database to require samples from anyone arrested for a felony.  According to Neal, 21 states require a DNA sample taken from anyone arrested on a felony charge.  It is believed that the expansion of the DNA database will help solve cold cases where there are no suspects.  Cooper says, "When you ask people how they want their tax money spent, public safety is high on the list."  With more data, police officers could get leads in cold cases where they do not have suspects.

If You Name It Like an Airline, Don't Be Surprised When It Crashes: John Fund at the WSJ has some schadenfreude with the demise of "über liberal talk radio network" Air America. Okay, that's enough Deutsch.

A Citizens United Decision Tomorrow?:  At SCOTUSblog, Tom Goldstein predicts that tomorrow could be the day that the Court hands down its highly anticipated decision in Citizens United v. FEC.  He writes that tomorrow, and Monday, January 25th, are the last two scheduled opinion days the Court has until Tuesday, February 23rd.  He believes that Citizens United is a likely candidate for a decision because "[t]he Court is also well aware of the public interest in having the campaign finance case decided, as illustrated by the fact that it held oral argument in late summer, outside the usual argument calendar."

Court Opens Up Jury Selection:  Lyle Denniston writes on SCOTUSblog that today's decision in Presley v. Georgia (09-5270) opened up the process of selecting a jury in a criminal case to the general public.  According to Denniston, the 7-2 unsigned opinion found that the Sixth Amendment's guarantee of a public trial gives the public the right to attend jury selection.  The dissenters, Justices Thomas and Scalia, argued that Presley summarily disposed of two important questions that it had left unanswered 25 years ago in Waller v. Georgia and Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. In the dissent, Justice Thomas wrote that he was unwilling to decide these questions "without the benefit of full briefing and argument."  On Blog of Legal Times, Tony Mauro comments on Presley and the rest of today's Court action.  Mauro's post quickly recaps the Court's decisions in Beard v. Abu-Jamal (08-652) and Wisconsin, Michigan and New York v. Illinois, and reports that the Supreme Court cited "its own First and Sixth Amendment precedents, [to support its ruling that] the trial judge is required to consider alternatives to closure."  How Appealing's Howard Bashman also collects media coverage of the Court's other ruling in Wellons v. Hall, here and here.

U. S. Sentencing Guidelines May Allow Probation for Federal Drug Offenders:  Marcia Coyle reports on Blog of Legal Times that the U. S. Sentencing Commission has opened its proposed sentencing guidelines to public comment, and that one guideline would allow federal judges to sentence federal drug offenders to probation if they participate in a substance abuse treatment program. Coyle writes, "To receive the probation alternative, the commission said the offender must be a willing participant in the treatment program and must have committed the offense while addicted to a controlled substance. The offender also must have committed a lower-level offense."  The Commission's Notice of Proposed Amendments is available here.      

The Supreme Court today reversed the decision of the Sixth Circuit, which had overturned the death sentence of unrepentant triple murderer and neo-Nazi Frank Spisak. As with yesterday's Brown case, we have a federal court of appeals declaring a state court decision to be not merely wrong but unreasonable, yet when the Supreme Court takes the case not a single Justice thinks the federal court of appeals was right.

Update: Thomas Sheeran has this story on the case for AP.

Among the cases turned down by the U.S. Supreme Court is Bowling v. Kentucky, No. 09-6673. The defendant in this case is Ronnie Bowling, not to be confused with Thomas Bowling, co-petitioner in Baze v. Rees, or James Bowling, the trial judge who denied his new trial motion. (There seem to be a lot of Bowlings in Kentucky.)

The Kentucky Supreme Court opinion is here, case 2006-SC-000034-MR. Evidence at Bowling's trial included comparative bullet lead analysis, a technique since discredited. Fortunately, there was lots of other evidence. Bowling robbed three gas stations, killing people at the first two. Fortunately, the third victim was able to take cover and call police. A 30-mile car chase followed, during which Bowling threw his gloves out the window. The gun, matched by ballistics to all three crimes, was also found on the chase route. The surviving victim identified Bowling. Given the unlikelihood the verdict would have been different without the bullet analysis, the trial court was within its discretion to deny a new trial. Three justices dissented.

In another argument that can charitably be described as "creative," defendant claimed a Brady violation on the ground that the prosecutor might have asked the expert if there was a possible innocent explanation for the bullet match. The court patiently explains that nothing in Brady requires the prosecution to cross-examine its own witnesses, and defense counsel could just have easily asked the same question. No dissent on this point.

The Court also turned down Alameida v. Phelps, No. 09-519, a habeas case where the opinion below is unusually whiny, even for Judge Reinhardt.

The Supreme Court summarily decided McDaniel v. Brown (08-559) today.  Justice Thomas wrote a concurring opinion, which Justice Scalia joined. 

The Court granted certiorari on the case last January, and then canceled oral arguments it had scheduled for October 13, 2009.  The opinion is available here.  Our brief is available here.    

Low Violent Crime Rate Does Not Allow Us to Become Complacent:  Over the weekend Doug Berman posted a link to a Washington Post editorial, "Why are violent crime rates falling?", on his website Sentencing Law and Policy.  Berman quotes the piece "at great length" and compliments the editorial board for providing "the proper context and critical questions for considering crime and punishment policies as we head into a new decade."  Berman and the Washington Post both believe that the time has come to devote some energy to researching why violent crime decreased during the first 10 years of the 21st century. Neither the Post, nor Berman, can point to a specific reason for the decrease, but both believe tougher sentencing took some of the criminals off of the streets.  Berman also warns that now is not the time to become complacent in light of our modern success.

More Attacks on Federal Judges and Prosecutors...  At Blog of Legal Times, Mike Scarcella reports on a Justice Department report that found that threats and inappropriate communications to federal judges, U. S. Attorneys and Assistant U. S. Attorneys have increased from 592 in fiscal year 2003 to 1,278 in fiscal 2008.  The report also found that although threats continue, judges and prosecutors do not consistently and promptly report threats.  This hinders the ability of the U. S. Marshals Service to investigate and protect them.  The report comes amid news that a court security officer was killed and a deputy U. S. marshal was wounded today in a shooting at the federal courthouse in downtown Las Vegas. The shooter reportedly died shortly after being taken into custody.

Yet Federal Courts "Operating Soundly:"  Ashby Jones writes on Wall Street Journal's Law Blog that on New Years Eve, Chief Justice Roberts issued a traditional end of the year report, proclaiming, "[t]he courts are operating soundly, and the nation's dedicated federal judges are conscientiously discharging their duties."  Jones reports that instead of calling for judicial pay raises, like he did last year, the Chief Justice noted 2009's economic downturn, reporting that "filings of cases involving consumer credit, such as those filed under the Fair Credit Reporting Act, increased 53% (up 2,143 cases)..."  On Blog of the Legal Times, Tony Mauro wonders if Chief Justice Roberts' decision to focus on statistics was "A Missed Opportunity".  Mauro writes that today there was "some grumbling" that Roberts' report missed the opportunity to educate the public about the number of federal vacancies in the judicial branch, and should have highlighted improvements that could be made in courtroom security.   

Supreme Court Announces March Schedule:  At SCOTUSblog, Lyle Denniston posts that the Supreme Court has announced its schedule for oral arguments beginning March 22, 2010.  The Court will hear oral argument in the detainee case, Kiyemba v. Obama (08-1234) on Tuesday, March 23, and will review a state prisoner's right to challenge new sentence in federal habeas after winning a new sentencing in Magwood v. Culliver (09-158) on Wednesday, March 24.  The Court has scheduled several criminal cases for the following week.  It will hear Renico v. Lett (09-338) on Monday, March 29, Dillon v. U. S. (09-6338) and Barber v. Thomas (09-5201) on Tuesday, March 30, and Robertson v. U. S. ex rel. Watson (08-6261) on Wednesday, March 31.  Tom Goldstein wrote a helpful "Criminal Law Docket in Plain English" post over the holiday weekend to provide some background on the cases being argued in the Court this term. 

Prosecutor Immunity Case Settled: Lyle Denniston at SCOTUSblog reports that the parties to the prosecutor immunity case before the Supreme Court, Pottawattamie County v. McGhee, have requested dismissal under Rule 4.

Is Kyllo Still Good Law? Orin Kerr at VC has this post asking whether technology has already overtaken the Supreme Court's decision in the thermal imaging case decided just nine years ago, Kyllo v. United States, 533 U.S. 27 (2001).

Possibility of Death Penalty Expansion in Virginia:  The Examiner writer William C. Flook reports that with a change of Virginia's governor, there could be a change with death penalty.  In Virginia, only the triggerman is eligible for the death penalty, with a few exceptions.  For the last three years, there has been an effort to abolish the triggerman rule, and expand the death penalty.  But current governor Tim Kaine has vetoed the bills that have reached his desk.  With Kaine's successor, Bob McDonnell, the fight for expansion seems more likely to succeed.  McDonnell has said that if the bill to repeal the triggerman rule reaches his desk, he will sign it.  Opponents of the death penalty, like Kent Willis say that "[they're] hoping that the knowledge that McDonnell will certainly sign the bill may cause a few senators to rethink their stance." 

Ninth Circuit Court Throws Out Death Sentence in Double Murder Case:  Metropolitan News writer Steven M. Ellis reports on the Ninth Circuit Court of Appeals' decision to overturn  the death sentence of Scott Lynn Pinholster because of ineffective assistance of counsel at the penalty phase.  The case has been remanded for a new penalty trial because the majority of the court believed counsels' failure to introduce evidence of traumatic childhood head injuries, abuse and deprivation, along with other mitigating evidence would have resulted in a lesser sentence.  In 1984, Pinholster was convicted of murdering of Robert Beckett, 29 and Thomas Johnson 25, during a burglary at the residence of a convicted marijuana dealer.  Pinholster had two accomplices.  One accomplice, became witness against Pinholster and the other accomplice was sentenced to life imprisonment without possibility of parole.

Bernard Madoff is the exemplar of a person who was once respected and is now disgraced, but it turns out he has found respect in a new peer group in his new abode. Dionne Searcey reports for the WSJ, "'To every con artist, he is the godfather, the don,' says an inmate [at Butner Federal Correctional Complex] interviewed earlier this week." Madoff has served 12 months of his sentence and has "only" 1,795 to go.

Finding an Attorney for Khalid Sheik Mohammed:  At Wall Street Journal's Law Blog, Ashby Jones reports that the attorney for Khalid Sheik Mohammed could be chosen from New York's "death list" - a group of 20 veteran defense lawyers with broad experience in death penalty and other complex criminal cases.  According to a New York Times story by Benjamin Weiser, the "death list" has at least two lawyers, Avraham C. Moskowitz and Joshua L. Dratel, who have some connection with terrorist attacks on the World Trade Center. Moskowitz even told Weiser, "I could not take that case, my background, my politics, my very essence would create the appearance of a conflict."  Whoever is chosen is up for a tough fight, particularly when a majority of Americans support the death penalty if KSM is found guilty.

A First for Justice Sotomayor:  Tony Mauro reports on Blog of Legal Times that Justice Sotomayor delivered her first opinion as a Supreme Court Justice today.  The opinion, Mohawk Industries v. Carpenter, held that disclosure orders adverse to attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine.  Mauro reports that it is customary for first opinions to be unanimous and that the Carpenter opinion was unanimous.  Justice Thomas authored a concurring opinion.  Jonathan H. Adler also notes "Sotomayor's First" on Volokh Conspiracy.

Commentary on Michigan v. Fisher:  Yesterday, on Volokh Conspiracy, Orin Kerr posted his thoughts on the Court's decision in Michigan v. Fisher.  Kerr notes that the facts of Fisher are "pretty similar" to Brigham City v. Stuart, and is surprised that the Court decided to take the case.  He believes the Court may have taken the case as a form of "error-correction just to make sure the state Supreme Courts are paying attention."  Kerr also appears surprised by Justice Stevens' dissent from the opinion.  Kerr discusses the Justice's argument that "the Court is justified in micromanaging the day-to-day business of state tribunals," and wonders why Justice Stevens, who "isn't known for his passion for federalism," took this opportunity "to raise federalism concerns."

Releasing an "Unrepentant" Pedophile:  At Sentencing Law and Policy, Doug Berman links to a story describing that the "oldest sex offender" is about to be released in Upstate, New York.  The Buffalo News story, by Lou Michel, explains that twice convicted sex offender, Theodore A. Sypnier, is about to be released from prison even though the former District Attorney believes Sypnier "remains a threat."  Sypnier, a 100 year-old pedophile, remains "unrepentant," and claims he is the victim of a colossal miscarriage of justice.  The current Erie County District Attorney Frank A. Sedita III believes that Sypnier "can't be cured....He's evil."  Michel reports that Synpier was ruled ineligible for a lifetime of civil commitment, and that authorities plan to monitor him closely upon release.  He will be monitored until 2012, but New York's Division of Parole told Michel that "[a]fter 2012, we will no longer be supervising him."

Court Comments on Constitutionality of Death Row Delay:  Lyle Denniston writes on SCOTUSblog that about an hour before Cecil C. Johnson, 53, was put to death by lethal injection today, Justice Stevens, in an opinion that Justice Breyer joined, commented on what Justice Stevens called the "underlying evils of intolerable delay" in Johnson's case.  Johnson was convicted and sentenced to death for three brutal murders he committed in the course of a robbery, he spent 29 years on death row.  According to Justice Stevens, "Johnson bears little, if any, responsibility for this delay."  For those familiar with Justice Stevens' stance on the death penalty, his opinion today, that he "remain[s] steadfast in my view 'that executing defendants after such delays is unacceptably cruel,' " is no surprise. Of course, neither is Justice Thomas' response to the Stevens opinion.  Justice Thomas rejects Justice Stevens' "novel" argument that "lengthy and inhumane delay" would violate the Eighth Amendment's prohibition on "cruel and unusual" punishment.  He writes, "I was unaware of any constitutional support for the argument then."  Marcia Coyle also discusses the "Death Clash at the High Court" on Blog of Legal Times.   Update: Ed Whelan has this post on the opinions at Bench Memos, titled "Justice Stevens' Bizarro World."

Shifting Blame for Clemmons Tragedy:  At Sentencing Law and Policy, Doug Berman writes that the more he "think[s] about [Clemmons'] case and hear[s] details about Mike Huckabee's 2000 clemency decision, the more I want to be sure some blame gets directed toward the poor state of modern re-entry services and the inadequate use of sophisticated risk assessment tools."  Berman links to a Seattle Times article by Nick Perry, Maureen O'Hagan, Jonathan Martin and Ken Armstrong that reports that Maurice Clemmons began to become mentally unhinged back in May.  The reporters write that on May 9th something set Clemmons off and he began throwing rocks at houses, cars and people. He was arrested, let out on bail, and then rearrested in July for failing to appear for his May arraignment.  Clemmons was eventually paroled on November 23rd.  In his blog post, Berman comments that this series of events reinforces his view that states and the federal government can do a better job sorting and monitory the past offenders that present the greatest risk to public safety.  He also advises that we "should not be too quick to lay blame principally on Huckabee for what seems to have been an understandable clemency call back in 2000."

Human Trafficking in North Carolina:  Robin Sax blogs on Women in Crime Ink writes that "[h]uman trafficking is one of the most hidden crimes," and occurring, with very little recognition, right here in the United States.  She posts on the case of Shaniya Nicole Davis, a five-year-old sold as a sex slave by her mother in Charlotte, N.C.  Sax uses the case to applaud the work of local prosecutors for calling this crime "what it is" - human trafficking.  She believes that while human trafficking may be more difficult to prove, the crime must be recognized for what it is because "the first step toward stopping it is to acknowledge that it exists."

You Never Know Who Will Show Up for Jury Service:  Ashby Jones posts on a curious incident in a Birmingham, Alabama courtroom.

The case of Barber v. Thomas, No. 09-5201, taken up by the Supreme Court today, has to do with the computation of good time credits for federal prisoners. The District Court opinion in a companion case, Tablada, is here. The Ninth Circuit opinion affirming in that case is here. The Ninth's order in the present cases, Barber and Jihad-Black, is summary without opinion, based on Tablada. Tablada's certiorari petition is still pending in case 08-11034. SCOTUSblog has the certiorari petition in Barber here and the brief in opposition here. Doug Berman has this post at SL&P.

The State of Michigan has been remarkably successful this term in getting Sixth Circuit decisions in habeas cases reviewed by the Supreme Court. Berghuis v. Smith and Berghuis v. Thompkins are presently being briefed on the merits. Today the Court granted certiorari in Renico v. Lett, No. 09-338, a double jeopardy case. Erroneous grants of habeas in double jeopardy cases are particularly damaging. In most habeas cases, an erroneous grant means a new trial, but in a double jeopardy case it means the guy walks. The panel blunders and a murderer goes free. The cert. petition is on SCOTUSblog. The USCA6 opinion is here.

Is the high grant rate because MichSG Eric Restuccia is an exceptionally good petition writer, or is it because the Sixth has been blundering exceptionally badly? Or perhaps a bit of each?

Also granted is Barber v. Thomas, No. 09-5201, from the Ninth Circuit. This appears to be a federal prisoner case. The opinion (or memorandum) doesn't seem to be on the Ninth Circuit's site. Will get more details later.

In Porter v. McCollum, previously noted here as much-relisted case, the Supreme Court summarily reversed the Eleventh Circuit. This capital case involves ineffective assistance in the penalty phase.

Among the denials of certiorari is the notorious Kevin Cooper case, Cooper v. Ayers, No. 09-363. This is the case that went for a rare second round of federal habeas review for additional forensic testing. The district court found, "Postconviction DNA testing confirms that Petitioner committed the murders of the Ryen/Hughes victims."

Block Removed For Ohio Execution:  The Associated Press reports on a previously blocked execution set for Dec. 8th that can now go forward due to a change in Ohio's lethal injection policies because of a federal appeals court ruling today.  The Sixth Circuit's decision  means that Kenneth Biros will be the first inmate executed under the new one-drug IV injection, with a two-drug muscle injection serving as a backup.  The change in drugs renders Biros' argument, that the state's former policy was unconstitutional, invalid.  The court wrote that,"In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure.  Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect."  Biros' attorney, Tim Sweeney, argued that conducting the execution under the new protocol would be "human experimentation, pure and simple." Kent's post discussing the stay is available here.

"The Bird" Makes Pittsburgh Pay:  Pittsburgh Tribune-Review writer Adam Brandolph reports on the Pittsburgh City Council's recent decision to settle a First Amendment dispute, giving a man who gave 'the bird' to a police officer a total of $50,000. The officer initially cited the man for disorderly conduct for the display, but after the county dropped the charge, motorist David Hackbart sued to recover the cost of defending himself.  U.S. District Judge David S. Cercone ruled that the officer had violated Hackbart's First Amendment right to free speech.  With the onset of the holiday shopping season and this case circling each other, try to avoid the first amendment issue.  Enjoy your bird on Thursday only.

Moratorium on Kentucky Executions:  Lexington Herald-Leader writer Jack Brammer reports on the Kentucky Supreme Court's decision that Kentucky may not execute anyone until it adopts regulations in compliance with the law.  The court ruling came in the case of three death row inmates, Thomas C. Bowling, Ralph Baze and Brian Keith Moore, who were challenging the state's lethal injection protocol.  The court said the state Department of Corrections must follow state-mandated administrative procedures before adopting the current lethal injection process of a three-drug cocktail.  The state's top public defenders, a leading anti-death-penalty group, and a group of independent lawyers are asking the court to allow an American Bar Association review of the implementation of the death penalty in Kentucky.  This process could take 12 to 18 months.  Another article by Brett Barrouquere of the Associated Press can be found here. Update: John Schwartz has this story in the NYT.

SCOTUSblog Recaps Oral Argument in Wood v. Allen:  Readers who would like a quick recap of how members of the U.S. Supreme Court addressed the interaction between 28 U.S.C §2254(d)(2) and §2254(e)(1) should check out Anna Christensen's SCOTUSblog summary of the argument and Kent's Wednesday post. Christensen's post gives a quick account of the questions the Justices asked Wood's counsel, Kerry Scanlon, and the Solicitor General of Alabama, Corey Maze.  She notes that the Justices seemed particularly concerned with whether Wood's case actually addressed the question on which the Court granted certiorari, and worried that the interpretation proposed by the Solicitor General of Alabama would be too complicated for courts to apply.  According to Christensen, this was the primary concern of the Court, and after arguments, it is "in no way clear" how the Court will chose to define the relationship between 28 U.S.C §2254(d)(2) and §2254(e)(1).  The transcript is available here. 

Senate Rejects Proposal that Detainees Not be Tried in Federal Court:  At Jurist, Andrea Bottorff reports that the Senate voted yesterday to reject an amendment to an appropriations bill that would have prevented Guantanamo detainees accused of participating in the 9/11 attacks from being tried in federal courts. The amendment was proposed by Senator Lindsey Graham (R-SC) who had proposed the amendment in response to a letter signed by the families of 9/11 victims. Bottorff reports that the Obama Administration is expected to announce plans for detainee prosecutions by November 16th.

The "Slim Pickings" for the Next Supreme Court Vacancy:  At NRO's Bench Memos, Ed Whelan comments that if President Obama is given the opportunity to appoint a Supreme Court Justice next year, his pool could be fairly limited.  Whelan writes that if President Obama focuses his search on federal appellate judges who are 60 or younger by next year, and were appointed by a Democrat, he may only have 14 to choose from.  Whelan believes that only three or four on his list would be serious candidates.  He believes Diane Wood could still be a pick.

DC Sniper Cert. Petition: Mark Sherman reports for AP that D.C. sniper John Allen Muhammad has asked the Supreme Court for a stay of execution while they consider his certiorari petition.

Cal. Sex Offender Residency Restriction:  Jason Dearen reports for AP on oral argument in the California Supreme Court on the constitutionality of the portion of the state's "Jessica's Law" that bans registered sex offenders from living with 2000 feet (0.38 miles) of schools and parks. CJLF warned back in our Winter 2006 newsletter that this provision was constitutionally questionable because it effectively exiled registered offenders from some cities in their entirety.

Sheriff Makes Inmates Pay:  The New England News reports on a sheriff's controversial plan to make inmates pay for their time in prison.  In 2002, Bristol County sheriff Thomas Hodgsons began charging inmates fees for everyday services.  These included small fees for renting a cell, getting a haircut, and taking the G.E.D.  Hodgson ran the program for two years and got $750,000 in escrow.  A superior court judge ordered him to stop, but the sheriff has appealed and now the case is before the Supreme Judicial Court.

Ex-Con Charged in Mayberry Shootings:  Associated Press writer Alysia Patterson reports on a soured affair that may have led an ex-convict to gun down four men.  Marcos Chavez Gonzalez was charged with four counts of murder in the slayings last Sunday.  Jose Armando Hernandez said through a translator that three of the victims were his nephews and that his family has been destroyed over problems Gonzalez had with a woman.  Gonzalez has already served two years on a 2002 conviction for kidnapping a minor and a probation violation. 

Don't Flip Off the Judge:  The Chicago Area Local News reports on a man's punishment for raising his middle finger and hurling profanities at the judge while being sworn in. Kane Kellet is charged with aggravated battery and assault, and is accused of attacking two people, one of whom was a pregnant woman.  After Kellet's actions in court, Judge G. Martin Zopp promptly gave Kellett six months in jail for contempt of court.

Is it a crime to organize a poker game? In Pennsylvania, and a surprising number of other states, the answer depends on whether the game is predominantly one of skill or chance. Howard Bashman of How Appealing argued a case on this question today. Tom Goldstein filed an amicus brief.

This is a thoroughly bad way to write a criminal statute, because the balance of skill and chance can vary with subtle changes in the game. Indeed, in poker tournaments that balance varies even within a single game. Early in the tournament, the mandatory bets ("blinds") are small compared to the chip stacks. Also, with two blinds and ten players per table, a given player must post a blind only twice in ten hands. The players have many options at this stage, and the skill factor is relatively high.

Late in the tournament, the blinds are much higher. As players get knocked out of the final table, the remaining players must post blinds more often. Options are fewer, with fewer opportunities for elegant strategies, and taking big chances becomes more common. This stage is "nasty, brutish, and short." (Dan Harrington quoting Thomas Hobbes.)

I'll root for Howard, but the real answer is to amend the statute. The status of an act as a crime or perfectly legal ought not to depend on such a fuzzy question.

California, BTW, does not follow this rule as a general matter, although it does for mechanical games. We have a statute prohibiting a number of games by name, not including poker but including hokey-pokey. That illustrates why enactments must be interpreted in accordance with their original understanding, not what their words mean today. If Penal Code § 330 were a "living document," we would have to bust all the preschool teachers.

Is the existing research on the effect of imprisonment on crime biased against finding an effect? Is the research cited with such confidence by the let-em-out crowd wrong?

On SSRN is a new study by Thomas Marvell of Justec Research. Here is the abstract (emphasis added):

This is a critical review of the literature concerning the impact of prison populations on crime. It summarizes 44 time series studies that use prison population in the crime equation, emphasizing problems of simultaneity and disaggregation bias. It briefly reviews studies that estimate the incapacitation impact of prisons by using criminals' individual crime rates, emphasizing problems caused by skewness of the crime rates and their relationship with arrest rates. Almost all the numerous problems with prior research bias results towards finding that prisons have limited impacts, and once the problems are addressed the best estimate of the elasticity of prison populations on crime is about 1.0.

Wow. This could be huge.

The final topic is the policy implications of this body of research. Perhaps the most obvious is that economists and criminologists have not been able to provide policy makers with credible estimates of the impact of prisons on crime and with useable advice about whether further prison expansion is worth the costs.  My conclusion is that the elasticity is roughly one, and that prisons are worth the costs, but other researchers believe that the elasticity is much smaller and that crime prevention money is best spent elsewhere.

In California, we have the administration confidently asserting that tens of thousands of prisoners can be released without danger to the public. The three-judge criminals' dream team rules with even greater confidence that even larger numbers can be safely released. But here we have an expert in the field telling us that the prior estimates by other experts are biased.

Jurors often say after the verdict that when the expert witnesses contradict each other, they just ignore them both and go with common sense. Maybe that's what we should do here.

Thanks to Doug Berman for noting this paper.

Denials of Certiorari on Opening Day:  SCOTUSblog has been busy reporting on the Supreme Court's opening day.  Kent noted earlier that the Court had denied certiorari in Ryan v. Styers, and SCOTUSblog's Anna Christensen has rounded-up other reports on cases in which the Court denied certiorari.  Most of the cases address First Amendment and civil law issues.  Kent's post contains information on the death penalty cases that the Supreme Court has not yet addressed, but Christensen posts information on the criminal cases Holmes v. Louisiana, involving an appeal from a death row inmate who has claimed that developmental disabilities caused by fetal alcohol syndrome make her ineligible for execution; and Mikos v. United States, which covers the Court's denial of an appeal of the conviction of a doctor who allegedly shot a nurse to prevent her from testifying against him in a Medicare fraud case, when the defense claimed prosecutors encouraged the jury to focus on the doctor's failure to testify on his own behalf.

How Does the Supreme Court "Decid[e] a case"?:  Perhaps in anticipation of opening day at the Supreme Court, Joel Jacobsen posted on Judging Crimes on a New York Times article discussing the number of cases "decided" by the U.S Supreme Court.  Jacobsen's post critiques "the assumption on which the article rested: that 'deciding a case' is a fixed and meaningful category, and therefore a rational way to analyze the court's output."  According to Jacobsen, in recent years the Supreme Court has not been "deciding cases" so much as utilizing a new way to make law.  Jacobsen looks to the length of Supreme Court opinions to prove his point.  He points out that in most recent volumes of the U.S. Supreme Court reporter, the Court has authored opinions that exceed 80 pages.  He argues that the lengthy opinions are a departure from the common law practice of judicial law making (where judges would decide cases and then retrospectively abstracting doctrine from the decisions), and is now doing the opposite: announcing new abstract doctrine and then applying it to the particular case that provided the excuse for announcing the doctrine.

A Hold Executions in Ohio:  At Sentencing Law Policy, Doug Berman has posted a report on the Sixth Circuit's grant of a stay for the October 8 execution of Lawrence Reynolds, as well as a post on Ohio Governor Ted Strickland's decision to "halt to all executions in the state until at least 2010." The post is ambiguous on whether Governor Strickland also intended to delay the execution of Kenneth Biros, who is scheduled for execution on December 8, 2009.  The Governor's statement only issues reprieves to Lawrence Reynolds and Daryl Durr until 2010, still no word on Biros.

New Justice on the Bench:  Tony Mauro writes on The Blog of Legal Times that "Justice Sonia Sotomayor lived up to her billing as a forceful questioner today as the Supreme Court opened its fall term..."  He reports, that unlike some new justices, Justice Sotomayor was a "frequent interrogator, often formulating her queries as a prosecutor or trial lawyer might: declarative statements about an aspect of the case, followed by the question, 'Correct?'"  Mauro also reported that the new seating arrangements gave both Justices Thomas and Breyer new perspectives on the courtroom.  Mauro writes that both spent "several minutes during arguments peering at the marble friezes of lawgivers on the walls of the Court high above them..."  Jonathan Adler also has a post on Volokh Conspiracy reporting on a Washington Post article asking legal experts to comment on what they expect from Justice Sotomayor during her first term.

The classic example for the fundamental principle that correlation does not prove causation is the ice cream/crime connection. Daily spikes in the rates for aggravated assault are correlated with spikes in sales of ice cream. Therefore, ice cream causes crime and we should ban it, right? Wrong. Hot weather causes people prone to assault to commit more assaults and people who like ice cream to buy more ice cream.

The reason the example is classic is that the hypothesized direct causal connection (that ice cream causes crime) strikes us as so patently absurd (in jargon, lacking facial validity) that the students instantly know something is amiss. Where the causal connection is plausible, though, we see exactly the same fallacy put forth and accepted by too many too often. The correlation between poverty and crime "proves" that poverty is the root cause of crime, for example. Too many people see no need to probe further.

Now we see a serious proposal that comes close to the classic example. Does candy cause crime? Jennifer Thomas reports in USN&WR:

Children fed candy and sweets on a daily basis are more likely to be convicted of violent crimes as adults, a new study finds.

The US Supreme Court's official opening-of-the-term orders list is here. You can expect slow response time during the first hour or so.

"They can't reverse them all," the unofficial motto of the Ninth Circuit, is confirmed once again, as the Supreme Court denied certiorari of the Ninth's patently wrong reversal of yet another death sentence in Ryan v. Styers. CJLF's amicus brief in that case is here. Twenty years ago this December, James Styers told 5-year-old Christopher Milke, his girlfriend's son, that he would take him to a shopping mall to see Santa Claus. Instead, he took little Christopher out into the Arizona desert and put three bullets in the back of his head.

On the brighter side, the Ninth's equally erroneous decision in the Belmontes case, a case in which its judgments have already been vacated twice by the Supreme Court (cites here), is not out of the woods yet. Belmontes was on the conference list but is not on the orders list. That means (1) the state's petition will be considered again at another conference; or (2) the Court is preparing a summary reversal opinion.

In arguments today, Maryland's AG Gansler is personally arguing Maryland v. Shatzer, on the question of whether the Edwards v. Arizona "don't ask again" rule for invocation of the Miranda right to counsel is perpetual. Tricia Bishop has this story in the Baltimore Sun. Lauren's brief for CJLF as amicus is here.

AP has this brief story on denial of certiorari in Holmes v. Louisiana, No. 08-1359, a broad challenge to the death penalty in that state.

More on not (yet) denied capital cases after the jump.

David Wells Recants Documentary Story: New York Times writers Michael Cieply and Brooks Barnes report that former Los Angeles Deputy District Attorney David Wells lied about conversations he had with Judge Laurence J. Rittenband involving Roman Polanski.  Wells had been interviewed for a documentary about Polanski and then lied about his role in the case.  Wells had given a detailed description of a fabricated conversation with Judge Rittenband to the documentary.  In it, Wells claimed that he had given sentencing advice to the judge, and that Judge Rittenband followed his advice.   Polanski plead guilty to one count of having sex with a minor after a 1977 encounter with a 13-year-old girl, but then fled the country.  After 32 years, Polanski was arrested last Saturday in Switzerland and facing possible extradition. Before his arrest, Polanski's attorneys had asked a Los Angeles court to throw out his case, or allow another court to review the case, due to alleged corruption.  The matter is still pending in an appellate court.  Wells says, "I am embarrassed about the whole thing.  I regret it.  I embarrassed the DA's office."

Maryland Now Has Stricter Guidelines to Seek the Death Penalty: Annapolis' Capital Newspaper writer Liam Farrell reports on Maryland's new law that says capital punishment can only be imposed in cases with a videotape confession, or in cases where biological, DNA or videotaped evidence conclusively links a defendant to a murder.  Cases relying on eyewitness testimony are ineligible.  Frank Weathersbee, the state's attorney for Anne Arundel County, says that Maryland rarely uses the death penalty and that it probably will not affect the status quo.  This new law is part of Governor Martin O'Malley's three year attempt to repeal Maryland's death penalty. State Senate President Thomas V. Mike Miller Jr. is skeptical that the issue will be addressed before the 2010 elections.  He said that the Senate debate only lasted a few minutes before  a repeal was discarded and instead they put limitations on the use of capital punishment.  Governor O'Malley is not sure whether he will continue his fight to repeal the death penalty, but does see the limitations as a positive step. 

Kentucky's Sex Offender Law Will Not Apply to All:  Associated Press writer Roger Alford reports that in a 5-2 decision the Kentucky Supreme Court ruled that a 2006 sex offender law barring sex offenders from living within 1,000 feet of schools, day care centers, and playgrounds is unconstitutional when applied to those convicted before the law was passed.  The majority wrote that the law is punitive because it applies to sex offenders retroactively.  Attorney Bradley Wayne Fox challenged the law for a man convicted on statutory rape in 1995, and arrested in 2007 for living 1,000 feet within a public park.  Judge Abramson dissented from the decision, "because our democratic system leaves such policy up to the legislature, and because I agree with several other courts that have held that retroactive sex offender residency restrictions do not exceed legislative authority to address vital public safety concerns."  The Kentucky Attorney General's office is deciding whether to appeal the decision to U.S. Supreme Court.