Confrontation, Hearsay, and Child Abuse

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

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

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

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

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

News Scan

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Parolee Accused of Murder: An Indiana parolee with a lengthy criminal past has been arrested and charged with the murder of a 15-year-old girl.  Robert King and Jill Disis of Indy Star report that 46-year-old William Gholston has been arrested more than 30 times on a variety of crimes including robbery, battery, and cocaine possession.  He was released on parole in November 2012 after serving 6 ½ years on a gun charge.  Fifteen-year-old Dominique Allen's burned body was found just hours after her family reported her missing in August.  Police were able to link Gholston to the killing with DNA evidence collected from the victim's body.

Georgia Sets Execution Date for Murderer: A Georgia man convicted of murdering a Sheriff's deputy nearly 20 years ago is scheduled to be executed on December 9, 2014.  R. Loyd Price of WMAZ News reports that after Robert Holsey robbed a convenience store in December 1995, a sheriff's deputy spotted his car and pulled him over.  Holsey shot the deputy was shot in the head as he approached the vehicle.  He has appealed his conviction unsuccessfully several times over the last 16 years.

Violent Felons Legally Buying Guns in Washington State:  An investigation conducted by Washington television station has found that a number of violent felons have been legally purchasing guns in several counties despite laws to prevent that from happening.  Monique Ming Laven of KIRO News reports that under state law, felons are eligible to have their gun rights restored as long as they were not convicted or a serious crime or a sex offense, received a sentence of more than 20 years, and have not re-offended in five years.  The investigation revealed that since 2010, at least 3,000 serious felons have had their gun rights restored.   

The Coming Riot

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The conventional wisdom is that the grand jury's decision about the Ferguson shooting will soon be known, and that it will not indict Officer Darren Wilson.

I have no inside scoop on this.  My (pure) guess is that the conventional wisdom is correct; it usually is.  If so, I'll predict here and now that there's going to be a riot.  I will also give my predicted reactions when it happens.

From libertarians:  The police are an over-militarized menace just short of the SS.

From Mother Jones:  The United States continues to be a rancid racist cesspool.

From Al Sharpton:  People need to listen to me.  (This was the easiest one).

From Eric Holder:  I told you we're a bunch of cowards.

From Rachel Maddow:  [Head explodes].

From me:  ...once upon a time, I heard about due process and the presumption of innocence....


AG Confirmation for Next Congress

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Almost unnoticed in a busy week was a nugget dropped by Senate Majority (for five more weeks) Leader Harry Reid.  Michael Crittenden reported Tuesday in the WSJ:

The White House has said it is ready to wait until next year for Congress to consider its nominee to be the next attorney general, the top Senate Democrat said Tuesday.

Senate Majority Leader Harry Reid (D., Nev.) said the White House has told him the confirmation hearings of veteran prosecutor Loretta Lynch could be dealt with in the new Congress in January 2015.

"The White House through intermediaries with me have said 'don't be pushing that, we can do that after the first of the year,' " Mr. Reid said after senators' weekly caucus lunches.
"After the first of the year" means next Congress, assuming Senator Reid does not intend to hold a vote on Friday, January 2, which I very much doubt.  Chuck Grassley will begin his stint as chairman with a very important hearing.

Securing, not sealing, the border

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The Sacramento Bee has this story about President Obama's actions on immigration yesterday.  The article quotes CJLF President Michael Rushford regarding aliens who commit crimes.

The article says CJLF "advocates sealing the U.S.-Mexico border."  Um, no.  We are in favor of having a secure border so that criminals we deport can't just waltz back in.  Questions of how much and what kind of legal immigration we should allow and what kind of trade restrictions we should have are not our field, and we take no position.  We would certainly never advocate the complete cut-off implied by the word "sealing."
Whether President Obama has the authority to allow the effective nullification of our immigration statutes through executive order is an interesting subject, about which I may have more to say later.  But the immediate implication is clear: Obama, toward the end of his term and perhaps before, is going to put thousands of dangerous hard drug dealers back on the street.  He'll do this via executive clemency.

The clemency program has already been announced by DOJ, but until last night, there were realistic questions about how far it would reach.  Those questions are now answered.  There will be no effective limit whatever.

Nullification through "discretionary" non-enforcement of law is of debatable legality, but the clemency power is not.  It exists, and belongs to the President alone.

There was a glimmer of hope until last night that the President would be restrained in exercising this power, and would pay at least some heed to the idea that hard drug trafficking harms America.  That is over with.  When a President openly and aggressively sympathetic to lawbreakers is willing to use a power that may be there or may not, there is no question left about his willingness to use a power that actually is there.

We saw last night what Obama will do now that he has no political accountability left. But what we saw is only the beginning.

FedSoc Convention Videos

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

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

News Scan

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Vicious Killer Released from Prison: A California family is outraged after the man who violently killed their loved one was released from prison last week by a Fresno County judge.  Pablo Lopez of the Fresno Bee reports that in 1984, Theodore LeLeaux Jr. stabbed his coworker Kenneth Carlock 77 times in his apartment before cutting the man's heart out and carrying it around in his coat pocket, LeLeaux pleaded guilty to second-degree murder the following year and was sentenced to 16 years to life in prison.  Despite a denial of parole by Governor Brown, the state parole board chose to release LeLeaux after determining he was no longer a 'danger to society.'

Accused Killer on Bail Charged With New Murder: A North Carolina man who was out on bond while awaiting his upcoming murder trial has been arrested for murdering a man that was scheduled to testify against him.  WCTI News reports that 36-year-old Nashid Porter's murder trial for killing a man in 2012 was to start in January 2015.  Porter was released to await trial on house arrest, and required to wear a GPS monitoring device-a device.  Authorities say he cut the device off the night he allegedly killed his most recent victim.  Porter is currently being held in jail without bond.   

Utah Passes Death Penalty Bill: The Utah legislature has passed a bill that would allow the state to execute condemned murderers by firing squad.  The United Press International reports that states with active death penalties began running out of lethal injection drugs after European drug manufacturers restricted their use for executions.  Under the new law, Utah will still use lethal injection as its primary method of execution, however, if the drugs become unavailable a firing squad may be used.  

Alexandra Petri's column in the WaPo is advertised as "a lighter take on the news and political in(s)anity of the day."  Today, though, she offers a serious and thoughtful look at an important question.
The record is now well established that if we are going to conduct executions by lethal injection, pentobarbital is the drug of choice.  That is the drug veterinarians use for animal euthanasia every day.

The manufacturer of pentobarbital has cut off the usual supply chain for obtaining it.  As discussed in this article by James Gibson and Corinna Lain forthcoming in Georgetown Law Journal, European governments are instigators of the shortage, interfering in a domestic policy choice of the United States that is quite simply none of their damn business.

The workaround is compounding pharmacies.  However, those pharmacies have been subject to harassment that makes them unwilling to supply the needed drug.  As noted in this post in September, the anti-death-penalty movement is responsible for the problematic executions carried out with other drugs when they made pentobarbital unavailable.

The Ohio Legislature is now moving forward, in HB 663, to extend confidentiality to suppliers of execution drugs.  The bill also prohibits any disciplinary action against doctors who provide the state with consultation on how avoid pain during an execution, which has been a problem.  The legislation declares contractual restraints on resale to be "void and unenforceable as against public policy."

Jeremy Pelzer had this article on the legislation last week on cleveland.com (site of the Plain Dealer).  He also has a follow-up article today on claims the legislation is unconstitutional.  Most of these claims are meritless, in my opinion.  Our friend Doug Berman from SL&P "said he believes HB 663 is 'probably' constitutional, but he questioned whether it would be better for Ohio to instead look at other methods of execution besides lethal injection."

A legislative analysis of the bill notes, "To the extent that the bill's provision voiding contracts applies to contracts entered into before the bill's effective date, it might be found to violate the clauses of the U.S. and Ohio Constitutions that prohibit the General Assembly from passing laws that impair contractual obligations."  True, but application to contracts made or renewed henceforth is worthwhile.  What we really need is for Congress to enact a law like this.  The Contract Clause only applies to states.

News Scan

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PA Murderer Sentenced to Death: A Pennsylvania man convicted of murdering a woman and dismembering her body in 2008 has been sentenced to death.  WNEP News reports that Charles Hicks killed the woman and placed her body parts in several trash bags before scattering her remains along highways in two different counties.  Investigators have also revealed that after his conviction, Hicks admitted to killing at least five more women in Texas.  Police are taking the claim seriously and plan to investigate the possible murders. 

 Another Parolee Accused of Murder: Police in New York say the person accused of fatally pushing a man in front of a moving subway train last week has a lengthy criminal history and was recently released on parole.  Fox News reports that 34-year-old Kevin Darden has been arrested dozens of times for a variety of charges including assault and robbery, his most recent arrest came just 7 days prior to killing the man at the subway station.  Darden is currently being held in county jail without bond.

Ohio Bill Seeks Death Penalty Reform: A new bill heading to the Ohio legislature would grant anonymity to drug makers who supply execution drugs to correctional facilities.  Idea Stream reports that Ohio Attorney General Mike DeWine halted executions out of concern for the safety of those who make and sell execution drugs.  The bill would allow secrecy for both the pharmaceutical companies involved as well as what drugs were being used for lethal injections.  The author of the bill, State Representative Jim Buchy, wants to address all of the Attorney General's concerns and is confident the bill will pass by the end of the year.

Sheriff Asks Obama to Address Crime by Illegals:  In a video appeal released yesterday, Sacramento County Sheriff Scott Jones told President Obama that America's failed immigration policy and lack of border security are allowing deported criminals to cross the U.S. border to commit more crimes.  Noting that last month, an illegal with a long criminal record who had twice been deported shot and killed a Sacramento Deputy and a Placer County officer during a day-long crime spree, the Sheriff fixed responsibility for the failure or success of U.S. immigration policy with the President.  He urged the President to take immediate steps to secure the border, and implement immigration reforms that allow law enforcement to tell the  good guys from the bad guys. 
A number of people have asked me to post the script of my remarks at the Federalist Society's National Convention last week.  I am happy to do so below:


Two facts about crime and sentencing dwarf everything else we have learned over the past 50 years:  When we have more prison we have less crime, and when we have less prison, we have more crime.


A Well Heeled Race Hustler

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The New York Times, of all things, has a long and revealing article about the financial shenanigans of the Reverend Al Sharpton.  Why this article appears only in the New York/Region section of the NYT is a mystery, since Rev. Sharpton is a national figure to say the least (I have written about him and his escapades many times before, e.g., here, here and here).

The short of it is that Big Al (well, not so big anymore; he's slimmed down remarkably from the days of the Tawana Brawley hoax) seems to have accumulated a lot of dough, even while not being too keen on paying taxes or other debts.

By the way, I thought this paragraph particularly interesting:

Behind the scenes, he has consulted with the mayor and the president on matters of race and civil rights and even the occasional high-level appointment. He was among a small group at the White House when Mr. Obama announced his nomination of Loretta E. Lynch, the United States attorney for the Eastern District of New York, to become the next attorney general.

My goodness.  I wonder whether Rev. Al knows something about Ms. Lynch that the rest of us should be interested in finding out about.

UPDATE:  A respected journalist has objected to my snarky phrase, "...of all things..."  He points out that the NYT has done articles that exposed then-Gov. Spitzer, and Congressman Charlie Rangel's tax and apartment issues.  While it is certainly true that the NYT is a (if not the) leading journalistic organ for the Left, it has indeed done some excellent investigative work not flattering to Democrats.  I don't know that I'd call my characterization of the Times a cheap shot, but it wasn't the most expensive one either. I regret any offense it might have given to the numerous call-it-as-you-see-it reporters at the Times.

Underreporting of Crime

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Last week I had this post on the Uniform Crime Reports, and a commenter noted that skepticism was in order due to underreporting by some police departments.  Across the pond there appears to be a major kerfuffle on this point.  David Barrett reports in the Telegraph:

Almost a million crimes a year are disappearing from official figures as chief constables attempt to meet targets, a study by the police watchdog has disclosed.

Its report exposed "indefensible" failures by forces to record crime accurately, and said that in some areas up to a third of crimes are being struck out of official records.

Her Majesty's Inspectorate of Constabulary said violent crimes and sex attacks were particularly vulnerable to being deleted under "inexcusably poor" systems.

Although the report stopped short of accusing police of widespread "fiddling" it said there was an "undercurrent of pressure not to record a crime across some forces" and "wrongful pressure" by managers.

It means violent criminals and even rapists are not investigated, potentially allowing offenders to strike again.
Today the Ninth Circuit decided Doe v. Harris, No. 13-15263.  The opinion by Judge Bybee begins:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation ("CASE") Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide "[a] list of any and all Internet identifiers established or used by the person" and "[a] list of any and all Internet service providers used by the person." Id. § 290.015(a)(4)-(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider ("ISP"). Id. § 290.014(b). Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.

News Scan

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Paroled Murderer Accused of Killing Again: A Missouri man released after serving 17 years of a life term for murdering his wife and another man has been charged with killing his ex-girlfriend last week.  The Associated Press reports that 63-year-old Harry Little Sr. was sentenced to life in prison in 1978 on two counts of second-degree murder.  Court documents reveal he was released on parole in 1995.  Little is facing charges of first-degree murder and is being held in jail without bond.

Missouri Murderer to be Executed Wednesday: A Missouri man convicted of murdering a gas station attendant during a robbery attempt two decades ago is scheduled to be put to death at 12:01 a.m. Wednesday.  The Associated Press reports that attorneys for Leon Taylor have asked Governor Jay Nixon for a stay of execution based on claims of racial prejudice during his sentence, but the governor has shown no sign of halting the execution.  If Taylor is executed, he will be the ninth person executed by the state of Missouri this year.   

Convicted Double-Murderer Sentenced to LWOP: A California man has been sentenced to life in prison without the possibility of parole after he was found guilty of killing two USC students from China.  Marisa Gerber of the Los Angeles Times reports that 22-year-old Javier Bolden approached the two students as they sat in their car in hopes of stealing their money.  After his arrest, Bolden was recorded bragging about shooting the two victims to his cellmate who happened to be an undercover police informant.  Bolden's co-defendant pled guilty to two counts of first-degree murder for the killings and was also sentenced to life without parole.

Maintenance

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The blog may be unavailable or unresponsive at times late at night and early in the morning this week, as our host does system maintenance.  Outages are not expected to last more than 45 minutes.  Potentially affected hours are midnight - 5 a.m. EST (9 p.m. - 2 a.m. PST).

News Scan

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Kidnapping Suspect Released Under Prop 47: A California man who was arrested last week on burglary charges and released back into the community just hours later under the newly passed Proposition 47 is behind bars for the attempted abduction of a 13-year-old girl.  Jory Rand of ABC Los Angeles reports that 39-year-old Guillermo Ceniceros was arrested Tuesday for commercial burglary-- a charge that prior to Prop. 47's passing would have required that he be held for trial or post bail.  But, because Prop. 47 redefined the burglary as a misdemeanor, he was released on the day of his arrest.  He was rearrested less than 24 hours later for the attempted abduction.  Ceniceros has been charged with five felonies, including attempted kidnapping and attempted aggravated sexual assault of a child.  

Execution Date Set for Murderer: A South Dakota criminal convicted of murdering a corrections officer is scheduled to be executed during the first week of May 2015.  KOTA News reports that Rodney Berget, who was already serving a life sentence for attempted rape and murder, killed the officer during a botched prison escape in February 2012.  The two other inmates who attempted to escape with Berget were also charged with the officer's murder.  One has already been executed for the crime and the other is serving a life sentence.

Accused Cop Killers Won't Face Death Penalty: The four men accused of murdering a Virginia police officer earlier this year will no longer face a possible death sentence after Attorney General Eric Holder took the death penalty off the table.  CBS News reports that the four men, all known gang members with extensive criminal pasts, allegedly carjacked, kidnapped, and killed the officer and abandoned his body a few counties away.  The men now face a maximum sentence of life without parole.
"My client did not help those guys commit the robberies, and besides that he only helped because they forced him."

In Joshua Frost's trial for robbery, his lawyer wasn't that blatant, but he did want to argue that Frost was not an accomplice and alternatively qualified for the defense of duress.  The trial judge would not let him argue that, based on a Washington Supreme Court opinion saying that a defendant must admit the elements before asserting a duress defense.  The Washington Court of Appeals affirmed.  The Washington Supreme Court clarified that its precedent was not that strict and the argument should have been allowed.*  However, a majority of that court concluded that this type of error is subject to "harmless error" review, and based on its review of the evidence there was no effect on the outcome of the trial.

On federal habeas corpus, the magistrate judge, the district judge, and a majority of the initial 3-judge court of appeals panel agreed that this type of error is one of the great many subject to harmless error review, not one of the select few "structural" errors reversible without such consideration.

The Ninth Circuit granted rehearing en banc, and a bare majority (6-5) found that the state court's decision that this error is not structural was an unreasonable application of clearly established Federal law.  Finding state court decisions "unreasonable" when the Ninth merely disagrees with them on debatable points is something that court has been reversed for by the Supreme Court time and time and time again.  They never learn.  Today we chalk up yet one more in Glebe v. Frost, No. 14-95 (per curiam).  As in White v. Woodall, decided last term, the federal appeals court stretched existing Supreme Court precedent into new territory, and reasonable judges can disagree as to whether it should be extended there. There is no dissent.

Why It's Important to Vote

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Col. Martha McSally, USAF (Ret.) is the new Representative from Arizona District 2, in the southeast corner of the state, including much of Tucson.  Or maybe not. The final tally showed her 161 votes ahead of incumbent Rep. Ron Barber.  State law requires a recount.  Andrea Kelly has this story at Arizona Public Media.

Meanwhile, in CJLF's backyard in Sacramento County, incumbent Rep. Ami Bera has a 697 vote lead over challenger Doug Ose.  So far.  News 10 KXTV has this story.
At its National Convention just concluded, the Federalist Society sponsored a panel discussion among conservatives on sentencing reform.  It was an excellent group featuring John Malcolm of the Heritage Foundation and Marc Levin from Right on Crime, and  --  expressing a more skeptical view  --  Judge and former Attorney General Michael Mukasey, and yours truly.  The moderator was Judge Bill Pryor of the Eleventh Circuit.

It was pretty much a packed room.  Among the audience members was none other than C&C's leading light, Kent Scheidegger.

I'm grateful to the Federalist Society for sponsoring this important give-and-take and for being included among such experts.

A tape of the event is here.  (For those interested, I start at about the 35:00 minute mark).

News Scan

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Murder Suspect Was Set Free by Prop. 36: A habitual felon with a prior murder conviction is the prime suspect for last week's murder of an Air Force Reservist and mother of two.  Marin Austin of Fox 40 reports that Moses Valdez was sentenced to 18 years behind bars for voluntary manslaughter in 1993, but was paroled prior to completing his sentence.  In 2011, Valdez was arrested again for running from police which constituted his third strike, resulting in an automatic 25-year-sentence.   The following year, California voters passed Prop 36, which abolished the third strike sentence for a non-violent felony, allowing Valdez to be released from prison once again.  Police have yet to locate Valdez, and consider him to be armed and dangerous. 

Two Suspects Convicted in Cop Killing:  Two of the four men accused of murdering a Chicago police officer in 2010 have been found guilty of first-degree murder.  The Associated Press reports that the two men served as lookouts for their friends in an attempt to steal the officer's motorcycle.  The officer confronted the group and a gun-fight ensued leaving the officer and one of the suspects dead.  Both men face mandatory life sentences, the fourth suspect is still awaiting trial.

Update: Florida Executes Convicted Killer: A Florida man convicted of murdering his wife and stepdaughter 22 years ago has become the eighth person executed by the state of Florida this year.  Karl Etters of the Tallahassee Democrat reports that Florida uses a three-drug cocktail to execute prisoners.  The execution began at 7:10 p.m. and the inmate was pronounced dead 17 minutes later.  This was the 89th execution carried out by the state of Florida since the death penalty was reinstated in 1979.


News Scan

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Marijuana User Sues Company Claiming Discrimination: A Rhode Island woman is suing a textile company after they refused to hire her for a two-month internship because she regularly uses 'medicinal' marijuana.  Michelle R. Smith of the Associated Press reports that Christine Callaghan claims that she uses marijuana to treat migraine headaches.  Her attorney alleges that the company is discriminating against her client because of a medical disability and demands that she be given an equal opportunity at employment.  Rhode Island legalized marijuana for medical use in 2006, however, it is still illegal under federal law.

CA Prison Uses Dog to Find Prohibited Cell Phones: A Northern California prison is using the help of a police dog to sniff out cellphones being smuggled into the facility illegally.  William Bigelow of Breitbart reports that the dog has found more than 1,000 phones in his four years of work, most notably, he discovered a phone that had been hidden in one of three jars of peanut butter.  Smuggling a phone into prison can result in a $5,000 fine and a possible six-month sentence in jail.

FL Set to Execute Convicted Killer: A Florida man convicted of murdering his wife and 10-year-old stepdaughter 22 years ago is scheduled to be executed for his crimes Thursday evening.  The Associated Press reports that 43-year-old Chadwick Banks raped and killed the young girl just minutes after he shot her mother in the head, he was given a life sentence for his wife's murder and was sentenced to death for killing his stepdaughter.  If the execution is carried out as scheduled, Banks will become the 20th person executed in the state of Florida since Governor Rick Scott took office in 2011.

Magna Carta

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(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
This great-grandfather of the Due Process Clause was signed by King John -- at swordpoint -- almost 800 years ago, along with many other promises.  Copies of the great charter were made and sent to the various counties of England, and one of those copies, from the Lincoln Cathedral, is presently on exhibit at the Library of Congress.

Update (11/13):  Justice Scalia's opening address at the Federalist Society Convention was on Magna Carta and its importance in the development of constitutional law. 

Update 2 (11/15):  Justice Scalia's address is now available online.
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. - See more at: http://www.bl.uk/magna-carta/articles/magna-carta-english-translation#sthash.QZ07c2XJ.dpuf

News Scan

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Murderer Sentenced to Death: A Nevada man convicted of a 2009 double-murder has been sentenced to death.  David Ferrara of the Las Vegas Review-Journal reports that 29-year-old Ralph Jeremias was found guilty on two counts of first-degree murder and robbery after authorities say he shot two men execution-style.  Prosecutors argued that Jeremias killed the two men during a botched robbery attempt. 

Accused Killer Recently Placed on Probation:  A Michigan man is facing murder charges just days after a judge sentenced him to probation for assault with a deadly weapon.  Christopher Behnan of the Lansing State Journal reports that 32-year-old Rahsohn Perry is facing murder and gun charges after authorities say he shot and killed his brother during a heated confrontation late Friday evening.  Perry was sentenced to two years of probation last week after pleading guilty to an assault with a deadly weapon charge from an incident earlier this year. 

Veterans Day

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VeteransDay2014.jpgThe two primary functions of government are to protect the people from foreign enemies and to protect them from domestic criminals.  Most of the time on this blog we discuss the latter, but today let us pause to thank all those who have served in the defense of our nation.

News Scan

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AL Jury Recommends Death for Murderer: An Alabama jury has recommended that 33-year-old John DeBlase be sentenced to death for the 2010 murders of his two young children.  The Inquisitr reports that DeBlase, along with his common-law wife, poisoned the children with antifreeze and strangled them before dumping their bodies in the woods.  DeBlase's wife also faces murder charges in the case, her trial is scheduled to begin in March 2015. 

Detroit Leads the Nation in Murder, Violent Crime: The annual FBI Uniform Crime report has revealed that Detroit, MI leads the nation in both murder and violent crime rates.  Christine MacDonald of The Detroit News reports that despite a decline in the murder rate by 18% from 2012, the city of Detroit remains the nation's most dangerous large city.  Other cities leading the country in murders per capita include New Orleans, Newark, St. Louis, and Baltimore.  

Habitual Felons Arrested in String of Violent Attacks: A trio of Florida men, all previously convicted felons, have been arrested in connection with several violent rapes in a South Florida neighborhood.  Jason Molinet of the New York Daily News reports that the three men have been charged with sexual battery, armed robbery, and assault after DNA evidence and video surveillance linked them to at least four separate attacks.  The three men are being held without bail.

The FBI has finally come out with the 2013 statistics for Crime in the United States, almost two months later than last year.  The good news is that crime is down from 2012 about 5% in crimes per 100,000 population nationwide on both the violent (-5.1%) and property (-4.8%) scales.

Last month, we noted the good news that California crime was down, but we were interested in seeing the national figures for comparison to sort out national trends from possible effects of California's sentencing "realignment."  Last year's post making that comparison is here.

We look at property crime as the primary indicator, as persons convicted of violent crimes, either for the present offense or as priors, are not eligible to be shunted off to county jail under realignment.  Many property crime convicts are, and given that the jails are overcrowded in most counties they either get released early or they push out other inmates for early release, likely other property crime convicts.

California's overall property crime rate is down less than the national average, -3.8% versus -4.8%.  Auto theft is the category tracked by the FBI that is most likely to be affected by realignment, because all auto thefts in 2013 (pre-Prop. 47) were realignment-eligible felonies, while other categories are mixed eligible/ineligible or felony/misdemeanor.  Consistent with the realignment-effect hypothesis, California's improvement in auto theft lagged considerably behind the nation, -2.8% versus -4.0%.

Comparing 2010, the last full year before realignment, with 2013, property crime has dropped 7.2% in the nation while rising slightly, 0.8%, in California.  Auto theft is down 7.3% nationally but up 5.3% in California.
An important change in the public perception of capital punishment occurred about 15 years ago as stories of death row inmates being exonerated came to the surface.  Foremost among these stories was that of Anthony Porter, who was close to execution when another man confessed to the murder.  The truth was supposedly dug up by idealistic young journalism students who succeeded where the criminal justice professionals had failed.

The story was almost too good to be true for the anti-death-penalty movement.  And now we know it likely was not true.

Some years ago, I attended a talk by the lawyer for Alstory Simon, the man who confessed and went to prison while Porter was freed.  He said it wasn't the journalism students who got a confession from the "real" killer, it was a hired investigator.  On top of that, he said, the investigator used tactics that would result in a conviction being thrown out if a police officer had used them, and possibly a civil rights prosecution to boot.

Years later, the lawyer's efforts have born fruit, and Alstory Simon is the one who is exonerated.  Jim Stingl has this story in the Milwaukee Journal-Sentinel.

Questions for the AG Nominee

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The WSJ has this editorial on AG nominee Loretta Lynch:

The early reporting on President Obama 's choice to be the next Attorney General is that few in Washington know much about her. That may be one of the reasons Mr. Obama picked Loretta Lynch after last week's election rout. Barring some future revelations, the U.S. Attorney for the Eastern District of New York isn't likely to stir a partisan brawl with the new Republican Senate.

This does not mean that she shouldn't receive a thorough vetting. She has been a member of Eric Holder's Advisory Committee of U.S. Attorneys, and as such should be questioned about his policies. These include his use of race as a political cudgel--especially in law enforcement. Mr. Holder has used "disparate impact" theory to coerce settlements from banks and other businesses based on statistics but no proof of discrimination. A federal judge recently threw out the Administration's disparate-impact rule in housing, and the Supreme Court is hearing a separate legal challenge.
Unsurprisingly for a business-oriented paper, the WSJ is also keenly interested in asset forfeiture and its abuses.  The editorial concludes (and I agree):

On the other hand, Ms. Lynch doesn't appear to be the grandstander that many other U.S. Attorneys are, and perhaps she will show a political independent streak. She is certainly a better choice than Labor Secretary Tom Perez, who would have warranted a confirmation fight. Republicans have enough high priorities in the next Congress that the bar should be high for challenging non-judicial nominees who seem to be qualified and honest.
Readers since Friday have surely noted that Bill Otis and I have different takes on the nomination.  This may be an apt time for one of our periodic reminders.  Opinions expressed by our "outside bloggers" are their own.  We at CJLF do not review them in advance, and we might or might not agree with them.  Only Michael Rushford and I speak for the Criminal Justice Legal Foundation, the sponsor of this blog.

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