News Scan

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Additional Charges Filed Against IN Cop Killer:  A Gary, Ind., man faces new charges in addition to murder in the fatal shooting a police officer two years ago.  ABC 7 News reports that Carl Blount, 27, will face charges that include intimidation, battery and the unlicensed carrying of a handgun, stemming from a domestic violence incident that occurred before the July 2014 murder of Officer Jeffrey Westerfield.  Lake County prosecutors are seeking the death penalty against Blount at his trial, which is scheduled to begin on Feb. 6.

Sex Offender Sentenced to Life:  A convicted sex offender from New York spat blood toward his teenage victim during his sentencing hearing on Monday after the victim made a statement urging the judge to send him to prison for life.  Tim Darragh of NJ reports that Clifford Wares, 43, was given a life sentence after the judge determined he should not be allowed back into society due to his criminal history and abhorrent behavior.  Wares was convicted last month of six counts including interstate travel to engage in illicit sexual conduct, production of child pornography, online enticement of a minor to engage in criminal sexual activity and making interstate extortionate threats.  In 2011, when the victim was 13, she met Wares online and was persuaded to send nude photos of herself to him.  He later became angry when she refused to engage in bestiality, contacted her network of online friends and humiliated her.  Another teenage victim testified that she was picked up by Wares and forced to perform oral sex on him in a state park and was later threatened via fake online profiles he made.  Before his trial and after his conviction, Wares sent computer and handwritten letters to both victims and their families that contained deadly threats.  Wares claims that he is innocent, asserting that someone hijacked his identity.  The judge ruled, however, that "society didn't need to wait for him to kill someone before he was imprisoned for life."

Cops Charged in Freddie Gray Case Want Cases Dismissed:  The remaining Baltimore police officers facing charges in the death of Freddie Gray filed motions to dismiss their cases on Monday.  Kelly Cohen of the Washington Examiner reports that in their motions, Lt. Brian Rice, Officer William Porter, Officer Garrett Miller and Sgt. Alicia White all cited "defects" in the prosecution.  The motions for dismissal followed last week's acquittal of Caesar Goodson, who faced the most serious charge of second-degree murder.  Last December, Porter's trial ended in a mistrial while Officer Edward Nero was acquitted last month.  Rice is scheduled to begin trial Tuesday, followed by Miller's on July 27, Porter's retrial on Sept. 6 and White's on Oct. 13.  They all face charges of manslaughter, assault, reckless endangerment and misconduct in office stemming from the death of Gray, 25, who died in April 2015 after sustaining a fatal spinal injury while shackled in a police van.  All six officers charged pleaded not guilty.

Vigilantism in the Phillipines

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Here is what happens when government defaults on its primary obligation to protect people from crime.  Trefor Moss reports for the WSJ:

Mr. [Rodrigo] Duterte, the long-serving mayor of Davao City in the southern Philippines, was sworn in as president on Thursday, having comfortably won elections in early May after pledging to wipe out criminals. He advocates the killing of suspected lawbreakers and has publicly backed vigilante death squads estimated to have killed over 1,000 people in Davao.

"Kill them all," Mr. Duterte told a rally in March, referring to criminals and suspects. "When I become president I'll order the police and the military to find these people and kill them." During the campaign, Mr. Duterte said 100,000 Filipinos would die during the coming purge.

Mr. Duterte has tapped a loyal lieutenant from Davao, a former city police chief, Ronald Dela Rosa, to head the national force starting Thursday. Mr. Dela Rosa recently told reporters the president's target of stamping out crime in six months is achievable, as long as drug suspects are relentlessly pursued.

"They will be given the right to remain silent--forever," he said.
Backlash is building worldwide against the blasé attitude toward crime that has become fashionable among affluent people who live and work in safe neighborhoods and are rarely touched by the consequences. 

Protecting people from crime is the number one domestic function of government.  Everything else is secondary.  If we don't dump the mush-headed nonsense and get back to tough, proven measures that really work, we are only going to see more vigilantism as well as more victimization.

Victory

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Backers of mass sentencing reduction for hard drug traffickers and other federal felons have, for any practical purpose, conceded defeat.

RealClearPolitics reports:

Sen. Dick Durbin of Illinois, the second-ranking Democrat in the chamber and an author of the justice reform bill, said Republicans had offered him "little to no hope" that the legislation would move forward. He called it a "missed opportunity."

Texas Sen. John Cornyn, the Republican whip and a lead sponsor of the measure, said he'd hoped the House would move more quickly and provide momentum in the Senate, but "apparently we ran out of time."


With all respect to Sen. Cornyn, the main problem was not time.  The problem was that the bill was a bad idea from the start.  Backers refused to disclose what the total cost of the (all-but-certain) recidivist crime would be  --  that is, how many more Wendell Callahan child murder episodes we should expect.  They refused to budge on mens rea reform. They refused to acknowledge the tens of thousands of felons who will already be getting early release courtesy of retroactive sentencing guidelines. They refused to understand when the ground shifted, failing to grasp that months of increases in violent crime and heroin overdose deaths have shaken the enabling complacency of last year.

 

Who are the heroes in the fight to preserve our safety?  The honor roll begins with Sen. Jeff Sessions, whose valor was a beacon from the start.  It includes Sens. Tom Cotton  --  a brilliant, strong, young voice  --  David Perdue, Orrin Hatch, David Vitter, and Ted Cruz.  Behind them are incredible women and men whose diligence has been a lesson and a model for me.


Congratulations and gratitude to every one. 

Ivy League Nonsense

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A common shtick in academic circles is to say something so counterintuitive, so shocking that it is guaranteed to get you some attention.  That appears to be the angle of Cornell law professor Joe Margulies.   Professor Margulies is very concerned about mass incarceration.  So much so that when asked who should be let out of prison he had this to say:

If the professor could pick one category of the incarcerated population to release today, he said it would likely be the people who committed very serious offenses and have been in prison for a long time.

Margulies didn't name any specific offenses, but if individuals sentenced to more than 25 years in prison were released today, it would certainly include those guilty of such crimes as sexual assault and murder. 

Even though it seems counterintuitive, Margulies insisted that releasing the longtime prison dwellers would not necessarily pose a threat to society. 

"The kind of person they were when they went into prison often just doesn't exist anymore," Margulies said. "Keeping them in prison offers no chance for redemption, and no one is a monster."

They're even the group that's least likely to recidivate, or wind back up in prison, he said. He added this is common knowledge for people familiar with the criminal-justice system -- but not so obvious to the average citizen.


From a 2014 study from the Bureau of Justice Statistics:

  • About two-thirds (67.8%) of released prisoners were arrested for a new crime within 3 years, and three-quarters (76.6%) were arrested within 5 years. 
  • Within 5 years of release, 82.1% of property offenders were arrested for a new crime, compared to 76.9% of drug offenders, 73.6% of public order offenders, and 71.3% of violent offenders.
  • More than a third (36.8%) of all prisoners who were arrested within 5 years of release were arrested within the first 6 months after release, with more than half (56.7%) arrested by the end of the first year.
So in the technical sense the good professor is correct, violent offenders recidivate less than other types of offenders.  But the logical next question to ask is why might that be? 

That is because violent offenders spend more time incarcerated compared to other offenders and therefore do not have the same opportunity to commit new crimes.   Incarceration has well known incapacitating effects. 

Yet even when they are released, almost three quarters of violent offenders will commit new crimes, often violent crimes - as the BJS study shows.  And that matters.  To have your car stolen is frustrating; to be raped, beaten or murdered is to have your dignity, your humanity, even your life taken away. 


It came out today that Attorney General Loretta Lynch had a private, unscheduled meeting with Bill Clinton, the husband of the subject of an ongoing criminal FBI investigation into the improper handling of classified emails.

Question:  If your spouse is under investigation by the FBI, what do you think your chances are of getting a closed meeting, or any meeting, with the Attorney General? What do you think they should be?

And here I thought Freddie Gray prosecutor Marilyn Mosby was a politicized hack.

Still, we can rest assured that, ya know, nothing untoward got discussed, since Ms. Lynch had this to say when the press found out about the meeting:

"Our conversation was a great deal about grandchildren, it was primarily social about our travels and he mentioned golf he played in Phoenix," said Lynch Tuesday afternoon while speaking at the Phoenix Police Department.

Or, as Bill Clinton might say, looking us right in the eye, "I did not have email discussions with that woman, Ms. Lynchinski."

  
All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  

News Scan

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CA County to Begin its First Death Penalty Trial in Years:  Jury selection is in its third week in Contra Costa County's first death penalty trial in years.  Nate Gartrell of the San Jose Mercury News reports that Darnell Washington has been charged with murder in the death of Susie Ko, 55, who was found murdered in her Hercules, Calif., home in October 2012.  He also faces charges of carjacking, burglary and robbery.  Two months prior to Ko's murder, Washington broke out of a San Bernardino jail with the help of his wife, Tania Washington, before going on a months-long crime spree that ended when the couple was arrested in Washington state days after murdering Ko.  Tania Washington pleaded no contest to manslaughter for her role in the crime and was sentenced to 23 years.  Darnell Washington's trial is estimated to begin in early July.

Synthetic Marijuana Use Reaches Epidemic Levels in NY:  A Brooklyn intersection has a new reputation for being one of the worst spots in the city for synthetic marijuana use, reaching "epidemic" levels.  Sarah Wallace of NBC New York reports that despite it being illegal to sell in the state of New York, synthetic marijuana -- known as K2 --  are still being dealt by stores near Broadway and Myrtle, an area now regarded as the best place to find the drug.  K2 is a new chemical concoction that is more potent than synthetic marijuana, often causing users to hallucinate, experience rapid heartbeats and seizures, and can even be deadly.  In Spring 2015, synthetic marijuana sent 160 people in New York City to hospitals in a little over a week, and thousands more were hospitalized across the state.

ID Officer Wounded, Suspect Dead:  A shooting on Tuesday night left one Boise police officer wounded, the suspect dead and a male victim suffering from life-threatening injuries. KTVB reports that the officer was shot in the chest after he and other officers were confronted outside of a residence when they responded to a 911 call.  The male suspect died at the scene after officers returned fire, though it is unclear whether he was struck from one of the officer's bullets or if he shot himself.  The wounded officer was wearing a ballistic vest and his injuries are not considered to be life-threatening.  The identities of the involved parties are yet to be released.

WI Woman Added to FBI's Most Wanted List:  A Milwaukee woman who fled after fatally shooting a pregnant woman three months ago has been added to the Ten Most Wanted Fugitives List, the FBI announced Tuesday.  Fox 6 Milwaukee reports that Shanika Minor shot Tamecca Perry, 23, in the chest on March 6 over an arguments regarding loud music.  Minor told her mother shortly before the incident that she felt Perry had disrespected her.  Perry was nine months pregnant with her third child, who was due five days after the shooting.  Her two other children were present when she was killed, but were unharmed.  Perry's unborn child did not survive the shooting.

Another Take on Civil Liability

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Last week we had some discussion of a WaPo op-ed by USCA2 Judge Jon Newman on civil remedies for police transgressions.  See my post on Friday and Bill's on Saturday.  For another perspective, see this post by L.A. Deputy Sheriff Sean Van Leeuwen at the blog of the Association for Los Angeles Deputy Sheriffs.

Here's an idea.  Let's make Federal Appellate Court judges civilly liable for every decision they have reversed by the Supreme Court.  Unlike cops, who have to make real time decisions affecting legal rights, often under life-threatening circumstances, judges have the luxury of time, law clerks and quiet, safe, well-appointed chambers to make sure their legal decisions are correct. Why shouldn't they be accountable for rendering legal opinions the Supreme Court determines are wrong?
Interesting thought.  If Judge Stephen Reinhardt of USCA9 had to fork out cash for every decision of his the Supreme Court later determined was wrong, he would be standing on a street corner with a cardboard sign.
An initiative to establish rights of victims of crime has qualified for the November ballot in Montana, reports Dustin Klemann of MTN News.

Here is the summary:

CI-116 would add a new section to the Montana Constitution establishing specific rights for crime victims. The rights enumerated include the right to participate in criminal and juvenile justice proceedings, to be notified of major developments in the criminal case, to be notified of changes to the offender's custodial status, to be present at court proceedings and provide input to the prosecutor before a plea agreement is finalized, and to be heard at plea or sentencing proceedings, or any process that may result in the offender's release. CI-116 guarantees crime victim's rights to restitution, privacy, to confer with the prosecuting attorney, and to be informed of their rights. CI-116 defines specific terms and requires no further action by the Legislature for implementation. CI- 116, if passed by the electorate, will become effective immediately. Fiscal impacts are expected for the Office of the Public Defender, Judicial Branch, Department of Corrections and local governments from passage of CI-116, but those costs could not be accurately determined at this time.
The full text is here.  Compare Article I, §28(b) of the California Constitution.

News Scan

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CA Murderer's Death Sentence Upheld:  The California Supreme Court upheld the death sentence on Monday of an Orange County man who organized a fatal robbery and then convinced his girlfriend to kill a witness over two decades ago.  Kelly Puente of the OC Register reports that in 1991, William Clinton Clark, 62, was the mastermind behind a Fountain Valley computer store robbery, in which Kathy Lee was killed as she arrived to pick up her son.  Three years later, Clark persuaded his girlfriend, Antoinette Yancey, to murder Ardell Love Williams, 19, by luring him to a location with a promise of a job before he could testify at Clark's trial.  Yancey was sentenced to life in prison without parole for her role.  Clark was convicted in 1996 of two felony counts of murder.  He will remain on death row.

Another Deadly Weekend in Chicago:  Chicago saw yet another bloody weekend as numerous shootings continue to plague the city, mostly fueled by its incessant gang war.  Warner Todd Huston of Breitbart reports that 51 people were wounded and seven were killed over the weekend, topping 2014 and 2015 records.  There were at least 48 isolated shooting incidents over a four-day period, with 28 occurring on Saturday and 20 on Sunday.  Thus far in 2016, 311 total people have been slain across Chicago, 285 males and 26 females.  In addition to the staggering number of homicides are the 1,375 men and 146 females that have been wounded in the violence.

CA Woman Arrested and Released 41 Times:  The perpetual arrests and releases of a repeat offender have prompted Shasta County residents to question whether the California's justice system is working and if criminals are learning their lesson.  Action News Now reports that Christina Burke of Redding has been arrested and released 41 times, with nine of them occurring in 2016 alone, and local law enforcement cite AB 109 and Proposition 47 as contributing factors in her continual arrests and releases.  AB 109, aimed at maintaining a low prison population, has resulted in habitual offenders like Burke being released much quicker, while Prop. 47 has reduced several property and drug offenses from felonies to misdemeanors.  Law enforcement and residents alike are taking notice to criminals' lack of accountability under the measures, forming groups such as Take Back Redding and Redding Crime Watch.  Residents also filed a petition called "Dear Governor Brown, we are taking a stand."

The American Constitution Society hosted a panel that addressed this topic:

Marginalized, disproportionately low-income communities, including communities of color, sexual minorities and transgender people, have a fraught relationship with the criminal justice system. Overcriminalization and overincarceration, the inevitable consequences of our current criminal justice policies, rob marginalized communities of financial and human capital, and exacerbate these communities' lack of political and economic power. Over- and under-policing (in which police aggressively police communities for minor crimes while failing to prevent or investigate major, violent crimes) fail to adequately address threats of violence, both at the hands of criminals and the police. What measures best empower these communities to achieve the political and economic influence to ensure self-determination and prevent continued mistreatment by the criminal justice system?

I am grateful that I was invited to present a dissenting viewpoint, which I started out by noting, in my typically diplomatic way, that I disagreed with the ACS's conclusions, but not as much as I do with their even more misguided premises.

The discussion is here.  I am especially in the debt of the panel's moderator, Kanya Bennett, Legislative Counsel to the Washington Office of the ACLU.

The War on Cops and the Spike in Murder

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Murder has been on a shocking surge for a year and a half.  There are those who want to pretend the cause is a mystery, or that it's a statistical blip, or that even if it's real, It doesn't mean  --  in the favorite phrase of those who blink reality  --  that "the sky is falling."

It is of course true that the sky is not falling, as it tends not to.  But murder is spiking, and it has a cause.

The main cause is that the police have become considerably more cautious due to a cascade of unhinged criticism.  

The police deserve and get scrutiny.  They are public employees with tremendous power. The problem is not scrutiny.  The problem is bansheeism.

The best in the business in diagnosing the what we're facing is Heather MacDonald.  Her C-SPAN interview is here.
Kent points to an excellent article by Professor Richard Epstein in the current issue of the Harvard Journal of Law and Public Policy (vol. 39, no. 3).  The issue also contains an interesting student note on the history of the John M. Olin Fellowship program sponsored by the Federalist Society. 

As a fellow Olin fellow, I can attest to the strengths of the program.  Each year this competitive fellowship places smart, ambitious conservative and libertarian scholars at some of the finest law schools in the country.  My fellowship at the University of Pennsylvania Law School was a time that I treasured, enjoying the privilege of working closely with the keen minds of people such as Stephen Morse, David Skeel, Stephanos Bibas, and Paul Robinson to name just a few. 

But the stark reality is that there is very little intellectual diversity in the legal academy and despite the efforts of the Olin Fellowship, conservative and libertarian thinking is an endangered species among law faculty: 

As Eugene Meyer, the President of the Federalist Society, observed, Dean Kagan both deserved and did not deserve credit for increasing ideological diversity on Harvard's faculty. Meyer posed the following hypothetical to illustrate his point: Say you have a school with 100 members on the faculty, one of whom is conservative. If you hire two more conservatives, do you say that the number of conservatives has tripled, or do you say that only three percent of the faculty is conservative?  It is also notable that in the ten years since Dean Kagan hired Manning, Goldsmith, and Vermeule, not a single conservative has been hired at Harvard (at 918-19). 

It is a real shame that such conditions continue in the Academy because it leads to an intellectual sterility that is at least partially responsible for irrelevancy of legal scholarship.   Judge Posner bemoans the flaccidity of legal scholarship - well when everyone is saying essentially the same thing then there isn't much insight to drive decision making. 

Linguistic Relativism

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Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.
-- Justice Robert Jackson, Brown v. Allen, 344 U.S. 443, 535 (1953) (opinion concurring in the judgment).

If law is to be law and not whim, then words must have the power to constrain.  If the power to interpret words has no limit, if words are infinitely elastic and can be stretched to support whatever result the interpreter wishes, then the people do not have the power to govern themselves through the democratic process.  The laws and constitutions they enact are nothing but staff recommendations to the interpreters, who make the actual decision.

In the current issue of the Harvard Journal of Law and Public Policy (vol. 39, no. 3, pp. 583-630). Professor Richard Epstein has an article titled Linguistic Relativism and the Decline of the Rule of Law.  It is well worth reading.  Readers of this blog may be particularly interested in pages 607-610, on the "judicial adventurism" of the Supreme Court's misinterpretation of the Cruel and Unusual Punishments Clause.

News Scan

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OH Struggles to Find Lethal Injection Drugs:  Just over six months ahead of Ohio's first scheduled execution since 2014, and with two dozen other convicted killers scheduled to die over the next three years, the state has not managed to secure a supply of lethal injection drugs.  Alan Johnson of the Columbus Dispatch reports that Ohio Department of Rehabilitation and Correction officials have attempted to secure a supply through several avenues, including compounding pharmacies and from overseas sources, but all their efforts have been in vain.  The state's biggest hurdle, which affects all states with the death penalty, is resistance from major manufacturers that either stopped making drugs used for lethal injection or refuse to sell them to states for use in executions.  Currently, Ohio law only allows lethal injection for executions, and transitioning to an alternative method, which some officials have suggested, would require changing state law.  The state's next scheduled execution is on Jan. 12, 2017, when Ronald Phillips is set to die.

SCOUTS Upholds Gun Ban for Domestic Violence:  On Monday, the U.S. Supreme Court upheld the broad reach of a federal law that bans people with a domestic violence conviction from owning firearms.  Fox News reports that the high court ruled, in a 6-2 decision, that reckless domestic assaults can be considered misdemeanor crimes to restrict gun ownership.  The case involved two Maine men, Stephen Voisine and William Armstrong, who were both found guilty of misdemeanor domestic assaults which prohibited them from possessing firearms.  Voisine argued that the law only covers intentional acts of abuse and not those committed in the heat of an argument, while Armstrong argued that the ban violates his second amendment rights.  Voisine's argument was rejected and although Armstrong's was not addressed in the ruling, it was questioned during oral argument.

ISIS Targets SF, Las Vegas in New Video:  The Islamic State (ISIS) released an ominous video on Sunday showing footage of San Francisco landmarks and the Las Vegas Strip in what appears to be a threat of attack on the two cities.  Adelle Nazarian of Breitbart reports that in the video, a man providing English voiceover, who introduces himself as Abu Ismail al-Amriki ("the American"), encourages "attacks in San Francisco in the same vein as the Pulse incident in Orlando."  Sunday's video in the third released by the terrorist group that claims responsibility for the Orlando attacks and advocates that others follow the example of the gunman, Omar Mateen.

Still Waiting for Justice

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Brenda Van Dam's life changed forever 13 years ago when her seven-year-old daughter, Danielle, went missing from her bedroom and was later found murdered.  Danielle's killer, David Westerfield, was convicted of kidnapping, murder, and possessing child pornography and was sentenced to death.  Today, over a decade later, he continues to sit on California's death row.  In this powerful op-ed penned by Van Dam in the San Diego Union-Tribune, she writes,

Now, 13 years later, he still waits for his sentence to be carried out, living at taxpayers' expense, the taxes I pay, at San Quentin's death row. And we who loved Danielle, searched for Danielle, wept for her and sat through every moment of the trial also still wait for that sentence to be carried out. We wait still for justice.

Sadly, we are not alone either. While Westerfield has been on death row for 13 years, there are others who have committed terrible crimes against innocent people, including against those who serve and protect us in law enforcement, and against our children, who wait on death row. And their families, like us, wait for justice to be done.

Our legal system, which is supposed to work for the people, has evolved into a frustrating patchwork of legal blockades and stalling tactics that has allowed attorneys for death row inmates to abuse the system to drag out and delay death sentences from being carried out for, in some cases, several decades. Some convicted death row inmates even outlive the family members of their victims. The family members die never having seen justice done to those who changed their lives forever.

Fortunately, the people of California have an opportunity to change that. Thanks to the hard work of a number of law enforcement professionals, public safety officials and elected officials, the California Death Penalty Reform & Savings initiative was submitted to elections officials throughout the state in order to qualify a reform measure for the November ballot.

The U.S. Supreme Court today decided the case of the bribery convictions of a former Governor of Virginia and his wife, McDonnell v. United States.

To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an "official act" in exchange for the loans and gifts. The parties did not agree, however, on what counts as an "official act." The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five "official acts." Those acts included "arranging meetings" for Williams with other Virginia officials to discuss Star Scientific's product, "hosting" events for Star Scientific at the Governor's Mansion, and "contacting other government officials" concerning studies of anatabine. Supp. App. 47-48. The Government also argued more broadly that these activities constituted "official action" because they related to Virginia business development, a priority of Governor McDonnell's administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official--without more--does not count as an "official act."
The Court agrees with McDonnell on the main point in a unanimous opinion by Chief Justice Roberts.  To hold otherwise would raise serious First Amendment concerns.

The Court rejects McDonnell's attack on the "honest services" statute as unconstitutionally vague, a holding based in part on the narrow interpretation in the previous part of the opinion.

The Court declines to address McDonnell's "insufficient evidence" claim because the parties have not yet had a chance to address it in light of the Court's clarification of the elements of the offense and therefore leaves that issue to the Court of Appeals on remand.  That is important because a reversal on incorrect jury instructions (the main point addressed in today's opinion) permits a retrial, but a reversal on insufficient evidence is effectively an acquittal and precludes retrial.
The U.S. Supreme Court today decided Voisine v. United States:

Federal law prohibits any person convicted of a "misdemeanor crime of domestic violence" from possessing a firearm. 18 U. S. C. §922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the "use . . . of physical force." §921(a)(33)(A). The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.
Kent has a thoughtful post about Judge Jon Newman's suggestions to broaden the means to hold police accountable for infringing the constitutional rights of citizens.  I would add for the moment only four brief points which, together, make me wonder whether Judge Newman's op-ed is fully forthcoming.

First, the Judge uses the Freddie Gray acquittal as a springboard to note the supposed inadequacies of present law, but never hints that Gray's family already filed suit and, ten months ago, received a multi-million dollar settlement.  It is impossible for me to believe either that Judge Newman did not know this or thought it irrelevant.

Second, the Judge likewise never hints that the issue of practical and legal immunity for the police has been considered carefully by the Supreme Court.  Kent remedies this deficiency, but it should never have been Kent's job.  Why is a federal appellate judge entirely failing to disclose to a lay readership the fact and the substance of the Supreme Court's thinking?

Third, Judge Newman simply assumes that the Baltimore police were liable for tortious, if not criminal, conduct.  He does this without quoting a single word from the Baltimore trial court's factually detailed opinion, which, to put it gently, puts Judge Newman's assumption in doubt.

Last, Judge Newman says this: "Juries, and even judges in non-jury trials, are reluctant to convict police officers of a crime, even in the face of ample evidence." Yes, well, that might be because, as Judge Newman also full well knows, and in other contexts insists upon, "ample" evidence is insufficient to convict.  It takes evidence proving every element of the offense beyond a reasonable doubt.

Can we expect something more balanced than this from a veteran federal judge?
Senior Circuit Judge Jon Newman of USCA2 has this op-ed in the WaPo, proposing expanded civil remedies for police misconduct.  It is an important subject and worthy of serious consideration, but I think Judge Newman's article may mislead folks who are not familiar with the law in this area, both nonlawyers and lawyers who specialize in other areas.  Judge Newman writes,

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.

But when an officer uses excessive force or makes an unlawful arrest or search, proving wrongful conduct is not enough. Under Section 1983 of the federal civil rights statute, the officer can escape liability with the special defense of qualified immunity -- showing that he reasonably believed his conduct was lawful, even if it was not. And if the jury finds the officer liable, federal law does not require his employer to pay the award.
There is some truth here, but there is more to it.

The Silence of the Civil Liberties Lambs

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When there is an acquittal in a high-profile prosecution  --  particularly a prosecution that reeks of political opportunism and racial edginess  --  the civil liberties and criminal defense bars often whoop it up.

There was such an acquittal yesterday.  But, from the usual criminal defense spokesmen, I'm not hearing any celebration. Indeed, I'm  not hearing much of anything. 

Why?

It's no big secret:  Because the person acquitted was a cop  --  the lead Freddie Gray defendant.

He was acquitted notwithstanding a hostile jurisdiction, a grandstanding prosecutor, a courthouse mob outside the building that could be heard inside, a poorly-hidden assumption of malice within the dominant culture, the widespread deep-sixing of the presumption of innocence, a long-ago trial and conviction in the media, and an overall circus atmosphere.

These are exactly the features of criminal justice that civil libertarians frequently condemn.  They do so in the name of providing a fair process to all, no matter how ugly the crime or how despised the accused.

Unless, that is, they're the ones doing the despising.  In that event, good luck in hearing, from the civil liberties lambs, a single BAAAA.

News Scan

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Death Penalty Sought in FL Doctor's Murder:  Prosecutors announced Wednesday that they are seeking the death penalty against two suspects in the murder of a Florida doctor.  One of the suspects is the victim's husband.  Fox News reports that Mark Sievers, 48, and Jimmy Rodgers, 26, will face capital punishment in the death of Teresa Sievers, 46, a holistic physician and mother of two who was found bludgeoned to death in her home last June.  A third assailant, Curtis Wayne Wright, 46, pleaded guilty to second-degree murder in February in exchange for a 25-year sentence and agreed to assist prosecutors in their case against Mark Sievers.  Investigators uncovered a plot last December orchestrated by Mark, in which he directed Rodgers and Wright to attack Teresa and promised them a chunk of the $4.4 million life insurance payout.

45 Foreign Fugitives Arrested this Week:  U.S. Immigration and Customs Enforcement (ICE) issued a report this week stating that 45 foreign fugitives were arrested this week for serious crimes committed in their home countries.  Maria Biery of the Washington Examiner reports that in an operation dubbed "Project Red II," U.S. Marshals and ICE focused their efforts on individuals with Interpol red notices.  Those arrested were wanted in 22 countries on a multitude of charges, including fraud, homicide, illegal gang activity, drug trafficking, rape, embezzlement, extortion and kidnapping.  A total of 1,789 foreign fugitives have been removed from the U.S. since October 2009.

Cop Stable After Shooting; Suspect in Custody:  The Pennsylvania police officer shot multiple times and seriously wounded Friday morning is in critical but stable condition, and a suspect has been taken into custody.  Dan Stamm and Brian X. McCrone of NBC 10 report that the Folcroft Borough officer, Chris Dorman, 25, was shot in the neck, face and shoulder in the rear of an apartment building while responding to a report of people smoking narcotics.  Dorman is a one-year veteran of the force.

A Clue from Brexit

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Everyone writing on a blog will have one take or another from yesterday's vote by the UK to leave the European Union, and I don't want to be an exception.

The thing that most struck me about the backing for remaining in the EU was how much it resembled the backing in this country for undertaking sentencing reform: The "bi-partisan consensus;" nearly uniform enthusiasm from academia, think tanks and those who see themselves as better educated; overwhelming support from the mainstream press; likewise from the urban and the urbane; and the cheerleading from celebrities.

And one more thing  --  the premature, and false, claim of victory.  The most recent British polls showed the public favoring remaining in the EU, just as sentencing reformers claim majority public support for giving judges more discretion (at least until the unwelcome fact comes out of what happens when they use it). 

Our Betters inside the capital city and in academia are not about to take any lessons, either from the Brexit vote or from the fact they can't move sentencing reform.  The idea that "We Know Better than You People with Big Hair," and the silky self-righteousness behind it, are too firmly entrenched.

Those of us favoring the present national sentencing structure and the crime reduction it has helped bring about would be ill-advised to look for any congratulations.  We'll have to be content  --  so it would seem for the moment  -- merely to win.


This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


As Bill noted earlier today, Officer Caesar Goodson was acquitted today of charges arising out of the death of Freddie Gray.  Because Goodson chose to waive a jury trial and have his case decided by the judge, we have a full explanation of the verdict.  The transcript is here.

The case is State v. Goodson, Circuit Court for Baltimore City, No. 115141032.
Hat tip to Prof. Doug Berman for posting this entry, noting and linking a Reuters news story.  It seems that the scandalous Stanford rape "sentence" has awoken the very liberal California state legislature to the need for  --  ready now?  --  mandatory minimum sentencing.

I don't know whether it's more unfortunate or more revealing that it takes a politically incorrect crime to jar these people into action.  My own view (for the last few decades) has been that judges, like other people, operate better with rules than without.

There are numerous crimes so degrading, damaging and/or vicious that no combination of mitigating factors warrants a degree of leniency that would shock a normal person.  That is where the legislature needs to step up.  Giving judges a considerable degree of discretion in the great run of cases  --  which we should  -- does not require or even suggest giving them 100% discretion 100% of the time.

News Scan

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La. Cop Killed by Probationer:  A Louisiana detective was fatally shot during a pedestrian stop on Wednesday in what the Jefferson Parish Sheriff called "a cold-blooded murder."  Phil Helsel of NBC News reports that Detective David F. Michel, Jr. was shot once in the back and two additional times at point-blank range as he fell by Jerman Neveaux, 19, who is currently in custody.  Neveaux confessed to killing the officer because he was on probation and did not want to go back to jail for possessing a firearm.  Michel had been with the sheriff's office since 2007.

AR High Court Upholds Lethal Injection Secrecy Law:  In a 4-3 decision Thursday, the Arkansas Supreme Court ruled that the state can continue to administer lethal injections to death row inmates without supplying them with information about the manufacturer, seller or any other information about the drugs, reversing a lower court ruling.  Claudia Lauer of the AP reports that the ruling stems from a challenge to the state's secrecy law by a group of inmates, who argued that it is unconstitutional to have such laws because the lack of disclosure of the information deprives inmates' assurance that the punishment would not be cruel and unusual. Arkansas currently has eight pending executions, though it has not been made clear when the state will be able to resume executions.  It has been over a decade since the state carried out an execution.

SCOTUS Deadlocks on Obama's Deportation Amnesty:  The U.S. Supreme Court deadlocked in 4-4 vote Thursday on President Obama's deportation amnesty, leaving in place a lower court's ruling that blocked the White House from shielding millions of illegal immigrants from deportation.  Stephen Dinan of the Washington Times reports that the Fifth Circuit Court of Appeals ruled that Obama's program broke immigration law, and many agreed that the president attempted to subvert the Constitution.  Obama's program, announced in 2014, would have applied to as many as five million illegal immigrants who either came to the U.S. as children or who have children that are citizens or legal residents, granting them three-year stays of deportation, work permits, Social Security numbers and other taxpayer benefits.

Freddie Gray Prosecution Implodes

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Small-time Baltimore drug dealer Freddie Gray was alive when he was placed in a police van and all but dead when he came out (he died a few days later).  Six police officers, three white and three black, were charged with various crimes related to his death.

I said at the time (e.g., here, here, here and here) that the States Attorney, Marilyn Mosby, struck me as a politicized, grandstanding amateur who would be headed for trouble.  In any other context  -- that is, where the defendants were not police  --  her behavior, consisting of events indistinguishable from campaign rallies, would be scorched by civil liberties groups as unprofessional if not borderline unethical. But such groups have been quieter than the proverbial church mouse.  I guess cops aren't worthy of due process.

Here are the results so far:  In an overwhelming black and liberal city, the first officer got a mistrial.  The second got an acquittal on all counts. This morning, the third, against whom the most serious charged was lodged (negligent homicide), was likewise acquitted, also on all counts.

I have no personal knowledge of the facts of the case.  An acquittal does not mean the defendant didn't do it.  But to go to trial three straight times and get not a single count of conviction is, in my experience, nearly unprecedented.  I strongly suspect the court found this prosecution just as ill-conceived and ideological as I did and, more important for the purposes for which trials are convened, just as lacking in solid evidence of guilt.

Mixed Result in DUI Cases

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In three consolidated cases, of which the lead is Birchfield v. North Dakota, No. 14-1468, the U.S. Supreme Court held today:

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.
CJLF filed a brief in one of the three, Beylund v. Levi, No. 14-1507, a civil case challenging the suspension of Beylund's driver's license for refusing a blood test after being informed he could be criminally prosecuted for refusing.  In addition to the legality of the requirement, CJLF argued that the suspension was valid regardless, as the federal Fourth Amendment exclusionary rule does not apply to civil proceedings.  The U.S. Supreme Court left that question open for the North Dakota Supreme Court on remand on the theory that state law might "provide a remedy" not required by federal law.

Although we did not get everything we wanted, this is mostly a win for the life-saving cause of getting drunks off the road. 

The New CounterTerror Strategy: Kumbaya

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I only wish the Administration's strategy to dismantle our successful sentencing system  --  the one that has helped crater crime rates for a generation  --  more closely  resembled  its "strategy" to "dismantle" Jihad.  Yesterday, Attorney General Loretta Lynch explained the battle plan against Islamic terror:

"Our most effective response to terror and hatred is compassion, unity and love," Lynch said after meeting with officials in Orlando, Fla., on Tuesday -- a week after a gunman at a gay nightclub killed 49 in the deadliest mass shooting in modern American history.

When I was at camp at about age 13, I thought it would be a good idea to try to impress a 13 year-old girl by singing "Kumbaya." This didn't work out too well, but the worst that happened was that she rolled her eyes and paid attention to another boy.  

I wonder if that's the worst that will happen when we sing "Kumbaya" to Khalid Shaikh Mohammed.

The fecklessness of these people in understanding what we're facing cannot be captured in words.

UPDATE:  Scott Johnson is also embarrassed for Ms. Lynch, if "embarrassed" conveys the extent of it.



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