State Legislative DP Notes

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There are legislative happenings in Alabama, Florida, Mississippi, and Iowa on the death penalty.

In Florida, it seems that they are barrelling down the road to a single-juror veto law, and nobody is even raising the alternative of a true unanimity law.  Why the state's prosecutors are not up in arms about this just baffles me.

Seriously, folks, do you really want a system where a hard-core opponent of the death penalty can lie on Witherspoon-Witt voir dire to get on the jury, cross his arms in deliberation and just say "no, no, no, no matter what," and impose his will over the judgment of the other 11 jurors?  That is what you will get if this train isn't stopped. 

Require unanimity one way or the other or at least a majority for a life verdict, and otherwise declare a mistrial and retry the penalty phase with a new jury.

The Alabama Senate voted 30-1 to end judicial overrides of jury penalty verdicts in capital cases.  Brian Lyman has this story for the Montgomery Advertiser.  SB16 provides that it is not retroactive.  It deletes the word "advisory" before "verdict" and requires the judge to sentence according to the verdict

Existing law says that a jury can return a death verdict by a vote of 10 jurors or a life imprisonment verdict by a majority vote.  If neither of those thresholds is met (i.e., between 6-6 and 9-3), "the trial court may declare a mistrial of the sentence hearing."  That's fine except for the "may."  Could a judge allow a minority of jurors to prevail over the majority by declining to declare a mistrial?  Perhaps readers familiar with how things actually work in Alabama can enlighten us.

News Scan

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9 Refugees Arrested In Austria Gang-Rape:  Nine asylum-seeking refugees have been arrested and charged in connection with the New-Years gang-rape of a 28-year-old teacher.  Jon Lockett at The Sun reports that the victim was visiting Vienna with a friend. They were indulging in a night of heavy drinking during which, four Arab-speaking men escorted her from a bar without her friend's knowledge. She was taken to a nearby apartment where five more men were waiting to assault her. All but one of the men denied the allegations of rape in spite of DNA evidence of six of the men recovered in and on the victim. They face up to 15 years each in prison.

It's PC to Let Them Riot: Heather Mac Donald at the City Journal has this piece on police complacency in the face of rioting and violence in the name of political correctness.  The recent rioting at UC Berkley to stop a scheduled lecture by right-wing provocateur Milo Yiannopolous, provided a clear example of police standing down to avoid confrontation, while masked rioters set fires, destroyed property, and attacked opponents. 

2 DC Officers Injured in Shooting: Two D.C. Police officers suffered gunshot injuries Thursday night during a shootout with an unnamed suspect.  According to Ellison Barber at USA Today, both officers sustained non life-threatening injuries during the shootout with the suspect, just 2 miles from the Nation's Capital. The suspect was killed in the exchange. The two officers are receiving treatment for their injuries. It is unclear who fired first, although the two officers are reportedly a part of a crime-suppression unit operating in D.C.

Refugee Murder Suspect Poorly Vetted:  An Afghan asylum-seeking immigrant is being tried as an adult for the rape and murder of a young German coed following the discovery that he had been lying about his age. Emily Chan at Daily Mail reports that "Hussein Khavari was arrested for the rape and murder of 19-year-old medical student Maria Ladenburger in Freiburg, south-west Germany" last December. The European Union's inability (or unwillingness) to thoroughly vet refugees admitted into Western Europe allowed Khavari to claim that he was 17 years old at the time of the murder, ensuring that he would be tried as a juvenile, facing a maximum sentence of 10 years. Fortunately, he didn't get away with this. A subsequent investigation revealed that Khavari was at least 22 years of age at the time of the rape and murder, and will now be tried as an adult for the crime.  The investigation also revealed that Khavari was sentenced to ten years in jail in Greece after he threw a 20-year-old coed off a cliff on the island of Corfu in May 2013.  Unfortunately he was placed in a youth detention center and released at least 7 years early.  Tough luck for the German girl.

News Scan

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Seven Murders in Chicago on Wednesday:  Chicago set a one day murder record for the year Wednesday with seven shooting deaths.  The Sun Times reports that this makes 92 murders so far in 2017, with 400 people injured since since January 1.  Among the victims was a yet-unidentified pregnant woman who was shot in the abdomen and side.  So far this year there have been 3 days where five people have been murdered.   The city's strict gun control law and restraints on proactive policing don't appear to be working very well. 

Did Cop Die Due to CA Sentencing Laws?  The murder of a Los Angeles area police officer by a habitual felon last Monday has sparked a statewide discussion about California's alternative sentencing scheme.  Currently California law considers property and drug criminals as being "low risk" for violence, even if they have violent priors, and substitutes prison time for most new felony convictions for short stays in a country jail and local rehabilitation programs.  CJLF participated in a discussion of these policies on Wednesday's John & Ken show on KFI in Los Angeles.    

Expert: Sex Offenders Are Low Risk:  In the aftermath of the arrest of repeat sex offender Brian Golsby for the rape and murder of a 21-year-old Ohio State co-ed earlier this month, an expert on sex offenders maintains that they present a very low risk of re-offending.  John Futty of the Columbus dispatch reports that Professor Melissa Hamilton of the University of Houston Law Center cites Justice Department data showing that only 5.3% of sex offenders were arrested for re-offending within three years of their release.  She blames media reports of horrible sex crimes by repeat offenders for stoking public fear of sex offenders.  But an official from the DOJ agency that monitors sex offenders said that "we don't know the true recidivism rate" because many sex crimes go unreported.  A 2015 study on sexual assault in Texas found that more than 90% of assaults are not reported to police.

Justice is a dish best served cold

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Baby Justice never stood a chance.  He was born with methamphetamine in his system and found frozen to death under some bushes along a slough bank 19-days later at the hands of his high, meth-addicted mother.

Baby Justice is dead.  His mother is in jail for second-degree murder and his father, Frank Rees, who has a history of meth related arrests and supposedly thought that the baby's mother "was clean", was arrested yesterday for his role in Baby Justice's death.  The baby was found dead almost exactly two years ago.  His mother was convicted by a jury almost six months ago.  Evidence at the mother's trial established that the baby's father was administering meth to the mother both days before and after his birth.  This evidence is what led to Rees' arrest.  Rees, 31, is now facing felony charges of involuntary manslaughter, child endangerment, and administering methamphetamine.  Yolo County District Attorney Jeff Reisig stated that "Under California law, when another individual's unlawful or reckless conduct in the face of known risks is a substantial factor that contributes to the death of another person, criminal liability may be established."

In a jailhouse interview yesterday, Rees said "I can almost guarantee you this is going to be thrown out, . . .  The DA should come here and give me an apology. I lost my son. I think I've been through enough."  Really?  Rees may not have physically taken the baby out to the slough that night, but he's been described as a "as a womanizing, meth-addicted, paranoid ex-convict who wielded intense control over [the baby's mother] first as her drug connection, then as the father of her child" and had dosed the baby's mother "with veterinary-size syringes of methamphetamine mixed with acetone in the days before their son's death."  Who should be apologizing to who here?

Read more here: http://www.sacbee.com/news/local/crime/article102222787.html#storylink=cpy

Read more here: http://www.sacbee.com/news/local/crime/article102222787.html#storylink=cpy

Rees' new girlfriend, who herself was arrested last month for possession of meth, just gave birth to Rees' 6th child.  This new baby girl was born two months premature and it is probably safe to say that meth is in her system as well.

Baby Justice stood no chance and now there is another baby struggling to survive.  Her mother most likely uses meth and her father is in jail facing manslaughter charges for his role in the death of the half-brother she will never meet.  The sad cycle continues.

News Scan

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Court Overturns Texas Murderer's Sentence:  In a 6-2 decision announced today, the U.S. Supreme Court overturned the death sentence of double-murderer Duane Buck.  Mike Ward of the Houston Chronicle reports  that the court determined that a decision by Buck's own lawyers to introduce statistics showing that blacks were more likely to commit crimes may have influenced the jury to sentence him to death.  As a result of the court's ruling, Buck will receive a new sentencing trial.  Buck's guilt was not at issue.  He was convicted of the 1995 murder of his girlfriend, Debra Gardner and her friend Kenneth Butler.  According to police,  Buck barged into Gardner's house armed with a rifle and shot his own sister and Butler. He then chased the woman outside the house and shot her down as her young daughter watched.    

Ohio Supreme Court Upholds Death Penalty: The Ohio Supreme Court has refused to reconsider claims by a repeat offender  sentenced to death for murdering his girlfriend's ex husband in order collect an insurance payment. According to WFMJ News, Nathaniel Jackson and Donna Roberts were convicted in 2001 after it was discovered that they had plotted together to kill Roberts' ex-husband Robert Fingerhut, and collect the $500,000 life insurance payout. The Ohio Supreme Court refused to reconsider Jackson's ineffective assistance of counsel claim, upholding his previously imposed death sentence. The court's 2016 decision in Ohio v Jackson describes how Jackson and Roberts arranged for Jackson to meet with Fingerhut in his home and kill him.  The victim was shot twice at close range.  An appeal by Roberts, who was also sentenced to death, is still under review.   
Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

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

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

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.
Today's News Scan reveals too briefly the central, and dispositive, flaw in the product sentencing reformers are selling. Lower sentences, combined with early release and the (typically false if not absurd) promise of close community supervision, is a prescription for death.  

I'm not going to gussy it up or attempt any of the word blizzards we see from the sentencing reform crowd.  These people simply aren't honest about the deadly cost their programs will impose on normal people.  They weren't honest in the Wendell Callahan case (a triple murder that sprung from a 2010 version of federal sentencing "reform"), and they've been at least equally dishonest in describing California's disastrous version, initially "realignment," and more recently the even more thoroughly botched Prop 47.

How much murder should the country accept, and how much will it get, if it buys into the sprawling early release programs sentencing reformers want to sell us?  Until we get honest and specific answers to these questions, our stance must continue to be a loud NO.  You wouldn't buy a car without knowing how much money it's going to cost. Why would you buy sentencing "reform" without knowing how much murder it's going to bring?

News Scan

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Parolee Kills CA Police Officer :  Two police officers were shot, one fatally, Monday by a gang member in Whittier, CA.  Stephanie Baer of the LA Daily News reports that when officers responded to a traffic accident and approached one of the vehicles involved, which they identified as stolen, the driver opened fire killing officer Kieth Boyer and wounding officer Patrick Hazell.  The suspect, a known gang member who was injured in the shootout, was released from "flash incarceration" about a week ago.  He is also suspected of murdering his cousin earlier on Monday.  Whittier Police Chief Jeff Piper told reporters that the suspect was released from prison early under AB 109, a 2011 law signed by the Governor which reduced sentences for habitual felons, and Proposition 47, a 2014 ballot measure which converted drug and theft felonies into misdemeanors.  "We need to wake up.  Enough is enough.  You're passing these propositions, you're creating these laws....it's not good for our community, it's not good for our officers.   You have no idea how it's changed in the last four years.  We have the statistics to show it," said the Chief.  The suspect's name has not be released.   Note:  police identified the shooting suspect as Michael Mejia.     
The desperate need for Jeff Sessions to turn DOJ's Civil Rights Division upside down has never been on more vivid display than in the juxtaposition of the following stories.

In the first, we see that, under DOJ's consent decree with crime-ridden Baltimore, one subject of considerable attention is the need for police to use the correct pronoun when they interact with citizens.  PowerLine repeats the relevant portion of the decree:

Ensure that BPD officers address and in documentation refer to all members of the public, including LGBT individuals, using the names, pronouns, and titles of respect appropriate to the individual's gender identity as expressed or clarified by the individual. Proof of the person's gender identity, such as an identification card, will not be required. 

To the best of my knowledge (readers please correct me if I'm wrong), there has not been a single episode of murder, robbery or mugging in Baltimore's 288 year history because the police used the wrong pronoun in referring to a gay, bi, or transgender person.

The second story provides a different slant on what Baltimore police might attend to instead of pronouns.


Amplifying Molehills Into Mountains

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This story reminds me of an old REO Speedwagon song:

But I know the neighborhood
And talk is cheap when the story is good
And the tales grow taller on down the line
Ian Millhiser, the Justice Editor at ThinkProgress, informs us:

President Trump "is considering a proposal to mobilize as many as 100,000 National Guard troops to round up unauthorized immigrants, including millions living nowhere near the Mexico border," according to the Associated Press.
But AP did not say that.  Notice the placement of the opening quotation mark.

News Scan

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

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

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

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

News Scan

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Released Sex Offender Charged With Murder:  A sex offender released from prison last November has been charged with raping and murdering an Ohio State college student.  Fox News reports that 29-year-old Brian Golsby was arrested last Sunday for the murder of 21-year-old Reagan Tokes.  Tokes' nude body was found at a park entrance last week.  Golsby was released from prison last November after serving six years for the 2011 robbery and rape of a woman in front of her 2-year-old child. Without a plea bargain in that case, his conviction would have carried a sixteen-year sentence.  Harrison Hove of WCMH in Columbus reports that Golsby has a record of committing crimes since he was a teenager.  He was on GPS monitoring when he allegedly kidnapped, robbed, raped and murdered the young woman. 

Florida Could End Gun Free Zones:  Two Florida State Legislators have introduced bills which would eliminate all state-imposed restrictions on the carrying of concealed weapons for licensed concealed-carry permit holders.  Kristen Clark of the Miami Herald reports that the two bills (SB908/HB803) introduced by Senator Dennis Baxley and Rep. Don Hanfeldt would give Florida's over 1.7 million permit holders the right to be armed almost anywhere in the state.  Senator Baxley said the measure "tests the appetite for legislators to eliminate the illusion called gun-free zones. This bill eliminates the sterile target we have created with noble intentions."  An anti-gun advocate said "These gun-happy legislators have gone too far."  
Kwanwoo Jun, Alastair Gale, and Ben Otto report for the WSJ:

North Korean dictator Kim Jong Un issued an assassination order to kill his half-brother after seizing power in 2011 and agents tried to execute it at least once before succeeding this week, South Korea's top spy chief said.

News Scan

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Charges Filed in 11-year-old Girl's Shooting: A 19-year-old male has been arrested and charged with first degree murder in relation to the death of an 11-year-old girl who died from a gunshot wound to the head last weekend in Chicago. According to Stefano Esposito of the Chicago Sun Times, Antwan C. Jones discharged his firearm at a group of people that he "didn't think belonged in the neighborhood." Takiya Holmes, 11, was struck in the head by a stray bullet and passed away this past Tuesday. This one of the three reported shootings involving Chicago children in the past few days.

Washington Abolition Bill Expected to Fall Flat: A bill to abolish the death penalty in the state of Washington received a great deal of public backing this year although house democrats are not hopeful about the bills future. The Seattle Times reports "A House bill on the issue is set for a public hearing before the House Judiciary Committee on Wednesday, but it's not scheduled for a committee vote before a deadline Friday requiring most bills to be voted out of committees." This means that it is likely that the bill will die in committee. Washington currently has a moratorium on capital punishment, preventing executions for those on death row. The most recent execution in the state was in 2010.

More Victims from Criminals Left on the Streets:  A 28-year-old California parolee has been arrested for the January 31 abduction of a woman and the burglary of a house a week later.  KESQ ABC Local News reports that habitual felon Franklin James Scott is facing charges or kidnapping with intent to rape and residential burglary.  Scott confronted a woman, took her belongings and was forcing her towards her car when he fled before police arrived. Scott was convicted in 2007 on charges of assault with intent to commit rape, assault with a deadly weapon, false imprisonment and sexual battery.  Andrew Holder, 27, who on probation for violating the terms of his earlier probation from a drug case in 2010, is being charged with the murder and robbery of 37-year-old Darryl Curtis according to Stephanie Farr at The Philadelphia Inquirer.  Curtis was found in his home  in Holmesburg with a fatal gunshot wound to the head on January 3.  As reported by Roseanne Tellez at CBS Chicago, the two suspects charged by police for the 2013 shooting of 15-year-old Hadiya Pendleton both had criminal records and one of them was on probation at the time of the girl's shooting.  In fact, it was discovered that 18-year-old Michael Ward had violated his probation 3 times before the shooting occurred.  One week before she was murdered Pendleton had performed at President Obama's second inauguration.  


Malignant Neglect in Berkeley?

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Paul Cassell at the Volokh Conspiracy discusses the "black bloc" thugs who violently forced the cancellation of a speech they disagreed with a couple weeks ago and the curious failure of Berkeley authorities to make any arrests of the thugs.  "If a[] Los Angeles Times reporter can find the black bloc attackers," Cassell asks, "why can't the Berkeley authorities?"

I hope UC Berkeley authorities will be able to announce some progress on the investigation soon. They have said that they are working "in close concert with the FBI on an ongoing investigation into the matter." But the same report indicates that the FBI has not confirmed or denied that it is actually conducting an investigation, and it is not immediately clear whether the FBI will find that the attack warrants federal attention.

Local failure to prosecute those who violently interfere with the rights of others -- because the locals have more sympathy with the thugs than those they attack -- is an old problem.  Congress addressed it in the Ku Klux Act, signed by President Grant in 1871.  This case will warrant federal attention if Berkeley police fail to act. 

News Scan

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Federal Judicial Appointments:  While partisan battles swirl around the President's nomination of Judge Neil Gorsuch to the Supreme Court, as noted by Kent Scheidegger in a recent post, appointments to federal district courts and courts of appeal are also of great importance.  Josh Katz of the New York Times discusses the opportunity the new administration will have to reshape the federal judiciary over the next four years.  While Senate Republicans have been blamed for obstructing confirmation of President Obama's judicial appointments, Mr. Katz notes that over the past eight years Obama's appointments have replaced about 40% of today's federal judiciary.  This suggests that much of the reshaping has already been done. 

Florida Court Upholds Death Sentence:  The Florida Supreme Court has upheld a jury's unanimous 2008 verdict to sentence the murderer of a corrections officer to death.  Orlando Sentinel journalist Gal Tziperman reports that the court's 5-2 opinion held that because the sentencing jury was unanimous in sentencing murderer Enoch Hall to death, his sentence did not violate the Supreme Court's Ring v. Arizona requirement that the authority to impose a death sentence rest with the jury.  In 2008, while serving a life sentence for kidnapping and sexual battery, Hall attacked and killed Donna Fitzgerald, a 50-year-old corrections officer, stabbing her 22 times with a metal shank.  Other officers found Office Fitzgerald's body with her pants and underwear pulled down to her knees.  

Ohio Swamped With Overdose Deaths:  Following a narrative that is playing out across the country, the state of Ohio is being overwhelmed with fatal overdoses of heroin and fentanyl.  KTLA5 reports that the Montgomery County Coroner is running out of space to hold the bodies of overdose victims.  In January 2017 the county, which includes the city of Dayton, had already had 145 overdose deaths, representing over 60% of the total autopsies for that month.  In Cuyahoga County, which includes Cleveland, there were 517 overdose deaths last year, up from 228 in 2015. This is compelling evidence that America needs to reduce sentences for the "non-violent" crime of drug dealing.     


Donald Trump and Improving Police Morale

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Police are public officials with a tremendous amount of power.  They warrant at least as much scrutiny as any other public official, if not more.  But scrutiny is one thing, while a cascade of reflexive, unbalanced and often vitriolic criticism is something else.  Or to put it more bluntly, criticism is criticism but hate is hate.

There is a widespread suspicion among those who follow the subject that growing police caution in the wake of escalating condemnation (caution known as the "Ferguson effect" and noted by, among others, Jim Comey of the FBI and Chuck Rosenberg of the DEA) has contributed to increased aggressiveness by criminals over at least the last two years.  That, in turn, is thought to be one of the reasons violent crime in our major cities surged in 2015 and 2016.  Sharply increased crime is one the "legacies" from President Obama that the press tends to be less than eager to cover  --  or, when it is covered, to identify as rooted in Obama's Justice Department and its kindred spirits such as, for example, Black Lives Matter and the ACLU.

Increased crime and related low police morale are, nonetheless, facts the new Administration has no choice but to confront.  Fortunately, it appears from this illuminating LifeZette article by Edmund Kozak that President Trump is off to a good start.

#NeverReplaceable

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Justice Antonin Scalia died a year ago today.

There has been much discussion about his replacement.  In the sense I have in mind today, the talk is pointless. Scalia was a once-in-a-lifetime intellect and a larger than life character.  Someone will eventually sit in his seat, but he will never be replaced.

I will repeat two tributes to him C&C published last year, here and here.

A Flawed Restraining of a Flawed Order

Michael McConnell, Stanford Law Professor and Hoover Institution scholar, has this article at Hoover on last week's Ninth Circuit decision.

Toning It Down

The Las Vegas Review-Journal has this editorial regarding presidents' attacks on the judiciary -- both the current and preceding presidents.

News Scan

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27 Shootings, Including 2 Young Girls, Another Chicago Weekend: Between Saturday and Sunday this past weekend, 27 shootings occurred in the city of Chicago. Elvia Malagon at the Chicago Tribune reports that among the over two dozen shootings in Chicago last weekend.  Two of the victims were young girls, ages 11 and 12, both receiving gunshot wounds to the head. As of now both girls are in critical condition and on life support.    Nereida Moreno and Katherine Rosenberg-Douglas report local residents have expressed their belief that the police just don't have the manpower to combat the violence at this point, and that they would support the National Guard coming to Chicago to patrol the streets.

Parolee Fires on Police Officers: A 28-year-old parolee received multiple gunshot wounds Friday afternoon after firing a pistol at police officers. According to Anita Chabria at the Sacramento Bee, officers from the Sacramento Police Department approached the suspect at the 2900 block of Del Paso Blvd. under suspicion that he was a dangerous parolee-at-large. The suspect drew a pistol and fired at a K-9 officer and 3 officers returned fire. The suspect sustained multiple injuries but survived the shooting and is in stable condition.

Execution Date Set For Fort Worth Murderer:  An execution date has been set for a man convicted of murder in 2004.  According to Mitch Mitchell at the Star-Telegram Tilon Lashon Carter, 37, was scheduled to be put to death Tuesday but received a stay of execution Friday on a legal technicality. His new execution date is May 16, according to an order signed by state District Judge Mollee Westfall, who presides over the 371st District Court in Tarrant County. Carter was convicted for the robbery and the 2004 murder of an 89-year-old Bell Helicopter retiree.

A:  To the morgue.

And what are the ideas behind sentencing reform?  We know them pretty well by now:  That we should be readier to give second chances, that youthful offenders in particular need understanding, that we must resist the impulse to incarcerate, that racial bias pervades the system, and that opportunities for education and community involvement are better than warehousing people.

See if you can spot any of those ideas in this story, described in more detail after the break.  Then see if you can figure out why the jurisdiction involved is one of the most dangerous and miserable cities in America.

Lesson 3: Judge-Shopping Must Be Curbed

Here is the third lesson to be learned from the debacle noted this morning.

Plaintiffs seeking to enjoin government actions have way too much choice where to file their suits.  Further, there is not enough control on conflicting decisions when it comes to injunctions.

The WSJ article noted in a previous post this morning reports on the development of the strategy of the opponents:

Democratic attorneys general and their aides held a series of conference calls. They agreed to mount separate lawsuits across the country. The goal: try lots of different arguments to block the ban in hopes that one of them would succeed.

Minnesota's attorney general, Lori Swanson, joined the Washington lawsuit. New York Attorney General Eric Schneiderman joined the American Civil Liberties Union's case in federal court in Brooklyn. Massachusetts Attorney General Maura Healey did the same with an ACLU case in Boston.

Not only did they throw as much against the wall as they could to see what stuck, they threw it against as many walls as they could, and it only needed to stick to one.  Judge Gorton in Boston declined to extend his earlier, temporary block of the executive order, but Judge Robart in Washington did block it, and the result was that it was blocked.  Conceivably, a group of persons opposed to some government action could file coordinated suits in every district in the country, and they would only have to win one to get a halt for the time being.

Even when only one suit is filed, broad venue rules and "related case" rules give the challengers too much leeway to steer cases to the judges they know will be favorable to them.  The habeas corpus "fast track" regulations were held up for over three years by order of a judge with no jurisdiction in a case steered to her in exactly that manner.

Congress should take a hard look at the rules regarding venue in cases that seek nationwide injunctions.  "Venue" sounds like a boring subject, but this case illustrates how much it can matter.

Lesson 2: Lower Court Appointments Matter

Here is the second lesson to be learned from the debacle noted this morning.

Supreme Court appointments are critically important, but lower court appointments are important, too.

The Supreme Court is one court of nine people.  It cannot and does not correct every wrong decision rendered by lower courts.  Not even close.  The high court takes about 1% of the cases it is asked to take.  It takes a higher percentage when the Government is asking, but not all.

Bad appointments to lower federal courts can have very long-lasting effects.  The Ninth Circuit was expanded during Jimmy Carter's single term.  The appointments he made, no doubt strongly influenced by California Senator Alan Cranston, produced the notorious "Ninth Circus" that plagued the Far West for an entire generation.

One of those appointees is reported to have said, regarding the Supreme Court and Ninth Circuit decisions, "They can't reverse them all."  Whether he really said that and whether, if so, he was joking (as he claims) is beside the point.  It is undeniably true.  The Notorious Ninth commits far more errors than the Supreme Court can possibly correct, and it does so knowing that many of these decisions are contrary to what Supreme Court precedents actually require.  Even when they are eventually reversed, those errors do damage in the interim, and the interim can be a long time.

During the Bush 43 Administration, the judge-pickers had a motto of "no more Souters" for the Supreme Court, but they did not apply that principle to the lower courts.  They made some solid picks, but they made some that cannot be explained on any basis other than politics and personal connections.

Lesson 1: Line and Staff

Here is the first lesson to be learned from the debacle noted this morning.

The chief executive of an organization of any size has two kinds of subordinates.  In the military, the commanders of the component units are the "line," while the people in the chief commander's office are the "staff."  Other organizations may use different terminology, but the distinction is always there in one form or another.

Relying too much on the staff and not keeping the line officers in the loop is a major error.  In the very early days of the Trump Administration, some of the important line positions were vacant, and some still are, because of stalling in the Senate.  The Acting Attorney General at the time of the travel restriction executive order was a dyed-in-the-wool leftist holdover from the Obama Administration.  The extent to which the Secretary of Homeland Security was in the loop has been the subject of conflicting reports.

President Trump nominated some solid people to head the government departments, and the confirmations are coming in now, albeit delayed.  He needs to use them and listen to them.  That is not to say he shouldn't listen to his staff also, just not exclusively.

A Debacle and a Learning Moment

The WSJ has this editorial titled Trump's Judicial Debacle noting a number of ways that the Administration and the courts were both wrong. "President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy."

The editorial goes to explain several ways the Ninth Circuit decision is wrong and how the Administration seemed ill-prepared to defend the order.  At the end, the editorial has some worthwhile thoughts on what to do now.

There are lessons to be learned from this debacle, though.  I will note a few of them in separate posts.
Jose de Cordoba and Santiago Perez have this article in the WSJ with the above headline.

MEXICO CITY--Influential Mexicans are pushing an aggressive and perhaps risky strategy to fight a likely increase in deportations of their undocumented compatriots in the U.S.: jam U.S. immigration courts in hopes of causing the already overburdened system to break down.

The proposal calls for ad campaigns advising migrants in the U.S. to take their cases to court and fight deportation if detained. "The backlog in the immigration system is tremendous," said former Foreign Minister Jorge CastaƱeda. The idea is to double or triple the backlog, "until [U.S. President Donald] Trump desists in this stupid idea," he added.

Talk about stupid ideas.  A concerted attack on our judicial system by foreign influences might just spur Congress to fund a big expansion of the system and thereby increase deportations.  Nothing makes Americans come together quite like being attacked from outside.  "Perhaps risky" is an understatement.

Alabama Senator and Attorney General

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Alabama Senator Jeff Sessions, as we all know, resigned his Senate seat to take the helm at the U.S. Deparment of Justice.  Gov. Robert Bentley promptly appointed Attorney General Luther Strange to the U.S. Senate seat.

Now AP reports:

MONTGOMERY, Ala. (AP) -- Longtime district attorney Steve Marshall has been appointed as Alabama attorney general.

Gov. Robert Bentley announced the appointment Friday. It came a day after Bentley named former AG Luther Strange to the U.S. Senate seat that Jeff Sessions left to become U.S. attorney general.

Bentley in a statement said Marshall is a "well-respected district attorney with impeccable credentials and strong conservative values."

Marshall has been a Marshall County district attorney since 2001.
Yesterday I said the Administration should, in addition to rewriting the travel restriction executive order, take the present case up to the Supreme Court.  That was based on a legal assessment that the Ninth Circuit decision is wrong.  (See also Rivkin & Casey in today's WSJ.)

In addition to the reasons that I gave yesterday, let me add that the claim that this order is a "Muslim ban" is absurd.  Based on data from the Pew Center, I estimate that the seven countries in question have only 11% of the world's Muslim population.  If one wanted to ban a whole group of people, an action that only affects one out of nine of the group is not the way to go about it.

However, sometimes there are strategic reasons for not taking a position.  Even though the decision is wrong, and clearly so in my opinion, there may not be five votes on the present eight-member Supreme Court to overturn it.  Affirmance by an equally divided court is a nothingburger, and that would be a real possibility.

Finally, and perhaps most importantly, the presence of this very hot-button case in the Supreme Court would give the Democrats and the left-leaning media ammunition in the critically important confirmation battle for Judge Gorsuch.  The Democrats will ask him about the case or questions closely related to the case, he will decline to answer, and even though that declination is quite proper it will look evasive on camera.  The Dems will still try to use it, of course, but their efforts will be less effective if it is behind us.

Sometimes you have to cut your losses and move on.  While the Administration's legal position is correct, taking the case up to SCOTUS may not be strategically wise.

Update:  The Ninth Circuit this afternoon ordered briefing on whether to hear the case en banc.

News Scan

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Florida Seeks to Ban Sanctuary Cities: Florida lawmakers have introduced legislation that would target "sanctuary cities" and the public officials who refuse to cooperate with immigration law. Kristen Clark of the Miami Herald reports that  SB 786 introduced by State Senator Arron Bean and HB 697 introduced by Rep. Larry Metz would ban sanctuary policies throughout the state.  "We're also looking at removing the umbrella of your sovereign immunity for elected individuals, boards and constitutional officers," Bean said -- which would allow victims of crimes committed by undocumented immigrants to then sue city and county officials if they don't fully comply with enforcing federal immigration laws.


Read more here: http://www.miamiherald.com/news/politics-government/state-politics/article130192194.html#storylink=cpy
Uber Driver With Criminal Record Robs Customer:  A female Uber Driver in South Florida, with prior convictions for drug offenses including cocaine possession with intent to distribute and an arrest for second-degree grand theft has been arrested for robbing a customer.  According to David J. Neal at the Miami Herald, the victim who requested to remain anonymous, allowed the woman to enter his home to go to the bathroom.  He subsequently passed out, possibly due to a drugged bottle of water she offered him while driving him home.  He awoke several hours later to find that he had been robbed. The driver took a firearm, a small safe, and his tax returns from 2012-2015 which suggests a possible intent to steal the victims identity. The driver currently faces charges of armed robbery and attempted identity theft.  U.S. Attorney Wifredo Ferrer called South Florida the "epicenter of identity theft."

Different Takes on Ninth Circuit Ruling:  By now everyone has heard about yesterday's 9th Circuit ruling to uphold the stay of President Trump's executive order to temporarily halt immigration from seven Middle East countries.  The contrast in how this ruling is being reported is interesting.  Adam Liptak at the New York Times reports "The appeals court said the government had not justified suspending travel from the seven countries. The government has pointed to no evidence," the decision said, "that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States." The article includes several stories of scheduled reunions of immigrant families and refugees coming to America, quoting the World Relief Corporation which called the ruling "fabulous news" for 275 newcomers who are scheduled to arrive in the next week, many of whom will be reunited with family.

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