Murder By Alpha

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Sohrab Ahmari has this article in the WSJ:

"It has been described as one of the most dangerous post-mortem examinations ever undertaken in the Western world, and I think that's probably right."

So testified forensic pathologist Nathaniel Cary on Wednesday, the second day of the inquiry into the 2006 poisoning death of Russian defector Alexander Litvinenko. The proceeding, held at the Royal Courts of Justice, aims to examine the circumstances under which Litvinenko was murdered with radioactive polonium-210, a highly unusual poison and one of many Hollywood-ready elements of the case that has made it a tabloid fixture for nearly a decade.
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The details of the case largely are more prosaic, when they're not confusing for a lay audience. The top-secret Scientist A1 was there to tell the inquiry that "one gram of polonium-210 emits one-six-six, zero-zero-zero, zero-zero-zero, zero-zero-zero, zero-zero-zero alpha particles per sec--"

"Pausing right there," an exasperated barrister interrupted, inadvertently triggering laughter in the courtroom and the press annex. "I may be wrong, but 166 quadrillion per second?"
A scientist talking to other scientists would have said 1.66 x 1014 emissions per second, but you have to dumb it down for lawyers.*  Emissions per second is actually a poor way to express radiation exposure.  Better ways involve rads, rems, or grays.

Interparty Dating

From the Daily Show, off-topic but very funny.

News Scan

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Murder Suspect Was On Probation: Fairfield, CA Police have arrested a habitual felon for a Thanksgiving day murder who was on probation at the time of the crime.  Henry Lee of the San Francisco Chronicle reports that 19-year-old Leonard Clayton has had multiple "law enforcement contacts" in the past for a variety of crimes including drug possession, burglary, carrying a loaded gun in public, and possession of stolen property, which would have carried time behind bars prior to the state's Realignment law, which reduced the penalties for these crimes.

Prosecutors To Seek Death Penalty For Accused Killer: Prosecutors in Pennsylvania have announced their plans to seek the death penalty for a man who police say brutally raped and murdered a sixth grade math teacher last month.  The Associated Press reports that 25-year-old Thomas Moore, along with a 16-year-old accomplice, is accused of torturing the woman and killing her after a botched burglary at her home.  Moore's co-defendant will most likely be charged as an adult for the crime, but will not face the death penalty.

CA Sued For Execution Delay:  A California judge has issued a tentative ruling requiring that the California Department of Corrections and Rehabilitation (CDCR) defend itself in a lawsuit claiming that it has intentionally delayed executions of condemned murderers for the past nine years.  Don Thompson of the Associated Press reports that the lawsuit, which was filed by CJLF, seeks to force the CDCR to adopt a single-drug execution protocol which is currently used in several other states.   In her tentative ruling, Sacramento Superior Court Judge Shellyanne Chang determined that CDCR is required by law to adopt an execution protocol, and that victims have the right to seek court action to force compliance.  The hearing was held this morning, and a decision is pending.

Texas Execution

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Michael Graczyk reports for AP:

A Texas man convicted of killing a 38-year-old woman nearly two decades ago while he was on parole for a triple slaying years earlier was executed Thursday evening.

Robert Ladd, 57, received a lethal injection after the U.S. Supreme Court rejected arguments he was mentally impaired and ineligible for the death penalty. The court also rejected an appeal in which Ladd's attorney challenged whether the pentobarbital Texas uses in executions is potent enough to not cause unconstitutional pain and suffering.

There are no dissents noted in the two Supreme Court orders.  Pentobarbital is the way to go.

Miller Retroactivity Case Is Moot

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The U.S. Supreme Court took up Toca v. Louisiana to decide the question of whether Miller v. Alabama -- which said a juvenile cannot be sentenced to life-without-parole unless the sentencer had discretion to select a lesser sentence -- applies retroactively to overturn judgments already final on the day it was decided.

Now the case will be dismissed as moot.  John Simerman reports for the New Orleans Advocate:

A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison.

Orleans Parish District Attorney Leon Cannizzaro's office agreed to vacate his murder conviction.
I think that is a proper disposition.  Toca's sentence would have been unduly harsh even if he were an adult at the time of the crime.  The deceased was his accomplice in the robbery.  In my view, the felony-murder rule should at least be reserved for the deaths of innocent people, and this death should not have been considered murder at all.

News Scan

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Texas set to Execute Convicted Killer: A Texas man sentenced to death for the murder of a mentally disabled woman is scheduled to be executed Thursday evening.  The Associated Press reports that 57-year-old Robert Ladd, who has been on death row for nearly two decades, beat the woman with a hammer before strangling her to death and setting her body on fire.  Ladd was on parole at the time of the killing for a triple-murder he committed in Dallas.  His attorneys claim that their client is mentally disabled and should be declared ineligible for the death penalty.  If the execution is carried out as planned, Ladd will be the second inmate executed in Texas this year. 

NY Settles Lawsuit With Machete-Wielding Thug: A New York City man who was shot by police officers after threatening them with an 18-inch machete will receive a $5,000 settlement from the city, even though the man's attorney agreed that the shooting was 'probably justified.'  Selim Algar and Natasha Velez of the New York Post report that in 2010, 24-year-old Ruhim Ullah was shot once in the leg by officers as he was attempting to attack them with the large weapon.  He eventually pled guilty to menacing a police officer and then proceeded to file a $3 million lawsuit against the city alleging police misconduct.  This is just one of the many lawsuits filed against the police department that has been settled under Mayor de Blasio.  

No Dice on Federal Pot Legalization

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The prospects that federal law will be changed to legalize marijuana took a huge step back yesterday when AG nominee Loretta Lynch said that she does not support legalization.  The NPR report states:

During her first day of confirmation hearings for attorney general, nominee Loretta Lynch gave answers that seemed in line with President Obama. But then she was asked about marijuana, and whether she supports legalizing it.

"Senator, I do not," Lynch told Sen. Jeff Sessions, R-Ala., when he asked whether she supports making pot legal.

And that is that, for the foreseeable future.  The betting is that Lynch will be confirmed as Attorney General, and if Obama's AG does not support federal legalization, it isn't going to happen during this administration, period.  It got nowhere in the last Congress, which was more liberal than the current one, and Ms. Lynch's position is visibly more hostile to pot than Eric Holder's has been.

Still, I should add three things.  First, this is a point in Ms. Lynch's favor as far as I'm concerned.  Second, I expect that, if Ms. Lynch becomes AG, pot enforcement will remain a relatively low priority, which it has been for years (other drugs being even more hazardous).  Third, as ever, CJLF takes no position on pot legalization. 

Getting Real on the AG Nomination

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Bill linked yesterday to the live-blogging at Powerline on the nomination hearings for Loretta Lynch as Attorney General.  To watch video yourself, cruise on over to C-SPAN.  At the WSJ, Andrew Grossman and Devlin Barrett have this article on the "relatively tame" hearing.  Also at Powerline, John Hinderaker has this apoplectic post titled Loretta Lynch Must Not Be Confirmed, focusing on immigration.

A note to my fellow conservatives:  Get a grip and get real.

Elections have consequences.  We live in a country where a majority of the voters chose Barack Obama over Mitt Romney.  We may consider that choice profoundly stupid, but that's democracy -- the worst form of government except for all the others.

If Loretta Lynch is not Attorney General, who do you think will be?  Somebody better?  Get real.  We want the best AG we can get, and as long as Barack Obama is President, "best" means the best from among the subset of people he might choose.  Call that "least bad" if you like, but that's where we are.

The Constitution vests all executive authority in the President.  Everyone else in the branch works for him.  He is going to nominate people who agree with him on policy, and that's how it works from now until January 20, 2017.  Judicial nominations are different.  For executive officers, the Senate pretty much lets the President appoint who he wants, and it has been that way for both parties.

If Ms. Lynch is not confirmed, as Mr. Hinderaker demands, who will be Attorney General?  Eric Holder will stay on until the next nominee is confirmed.  The next nominee will not be any less aligned with the Obama/Holder policies than the present one.  So the chances of having someone better as AG would be slim in the long run and absolute zero in the short run.

The WSJ article says, "Several Republicans suggested that simply by not being Mr. Holder, Ms. Lynch's chances of confirmation were improved."

Roger that.

It's a Civil Right to Live Peacefully

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Richard Brawn of Petaluma, California has a Letter to the Editor in today's WSJ, with the above caption, that I will simply copy in its entirety:

Regarding the article "Texas Housing Case Tests Civil-Rights Doctrine" (page one, Jan. 21), the mischief maker in this case is the same one that perpetuates misery in public housing: Congress. I spent 13 years working in the Department of Housing and Urban Development. The two issues perpetually facing HUD were how to get the beneficiaries of public housing to accept personal and community responsibility, and how to convince the apologists and facilitators to stop putting their dogma ahead of getting the needy housed. While I was at HUD, a South African low-income-housing management firm presented to the San Francisco office how it had eliminated crime and misery in its buildings: Management strictly enforced rules and used video in the hallways and fingerprint security locks on building front doors, and required participation by the beneficiaries in maintaining the appearance of the building and surroundings. The firm reported that crime was virtually nonexistent and that residents viewed rules and security systems not as an invasion of human dignity but as critical to residents' well-being. In America, Congress has consistently prevented HUD from doing what it takes to get maximum housing for funds allocated and to get the misery makers out of public housing.

Can the Right to Counsel Be Forfeited?

When discussing questions of right, the issues of waiver and forfeiture often come up.

A defendant facing jail time has a constitutional right to counsel, but, if he is mentally competent to do so, he also has right to waive that right and represent himself.  Justice Blackmun, in dissent, called that a constitutional right to make of fool of himself, but that's the law.  A defendant also has a right not to testify at his own trial, but he can waive that right and take the stand if he chooses.

A waiver is voluntary relinquishment of a known right.  A forfeiture is the loss of a right by failure to assert it or by wrongdoing of some sort.  A defendant has a right to confront witnesses and to exclude out-of-court testimonial statements, but he can forfeit the right by murdering the witness for the purpose of keeping his testimony out.

The right to counsel can be waived, we know, but can it be forfeited?  The Utah Supreme Court says it can:

This matter is before the court on a motion to withdraw filed by the appellant's appellate counsel. We grant the motion and conclude that the appellant has repeatedly engaged in extreme dilatory, disruptive, and threatening conduct that constitutes a forfeiture of his right to counsel for the limited remainder of the proceedings on appeal.
The case is State v. Allgier, No. 071904711, Jan. 23, 2015.

Note that this is on appeal, not trial.  The constitutional footing of the right to counsel on appeal has always been shakier than the trial right.

Jack Healy has this story in the NYT.
And now, for something completely different.

The U.S. Supreme Court gets stay-of-execution requests from death row inmates all the time.  Typically they have been denied without dissent or comment, since the obstinate Justices Brennan and Marshall retired.  Denials with a dissent noted happen occasionally, and every once in a while one is granted.  What I have never seen before, though, is a stay requested by the state.

January 14, Oklahoma executed Charles Warner, even though four Justices voted for a stay of execution, as noted in this post.  January 23, the Supreme Court took up for full briefing and argument the case of the remaining three inmates on that petition, challenging the state's use of midazolam as the first drug of the three-drug protocol, as noted in this post.

Rather than wait for a stay to be granted for the remaining inmates, Oklahoma Attorney General Scott Pruitt took the unusual step of asking for a stay himself, asking for it to be tailored to stay only executions with the controversial midazolam, not the conventional pentobarbital or thiopental, if the state can get any.  Today the Court issued that order.

News Scan

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Criminal, Free Under Realignment, Accused Of Killing Infant: The California man accused of murdering his 19-day-old child over the weekend is no stranger to law enforcement, and thanks to Realignment, had been in and out of jail for a variety of crimes throughout 2014.  Eric Leonard of FKI Radio reports that 30-year-old Matthew Warner was arrested at least three times last year and sentenced to 'flash incarcerations', a new program under AB-109 that holds parole violators in custody for a few days.   Warner is facing charges of murder, assault on a child causing death, sexual assault on a child, and torture.  If found guilty, he faces a sentence of life in prison without the possibility of parole.

TX Inmate Granted Reprieve Prior to Execution: A Texas man sentenced to death for murdering two teenage girls has been granted a reprieve, preventing his scheduled execution from taking place this evening.  Michael Graczyk of the Associated Press reports that the court hasn't explained why 51-year-old Garcia White, who has been linked to five murders in the Houston area between 1989-1995, was granted the reprieve and they have yet to say whether or not his appeal will be sent back to a lower court.  Another Texas death row inmate, 57-year-old Robert Ladd, is set to be executed tomorrow evening.

Habitual Rapist Accused In Cold Case Killing: A South Carolina man who authorities say is already serving a life sentence for a series of rape convictions is facing charges for a 15-year-old cold case murder.  WCIV News reports that Anthony Heyward is accused of beating a woman to death near her home in December 1999.  When police ran the DNA evidence immediately following the crime they were unable to find a match, but an updated DNA test conducted last year linked Heyward to the killing.  Heyward was accused in another murder in 2001, however, prosecutors abandoned the case because he was already serving a life term for his rape convictions.

AG Nomination Hearing

My friend Paul Mirengoff at Powerline is live-blogging the confirmation hearing for Attorney General nominee Loretta Lynch.  He did the morning session here and the afternoon one here.

My favorite exchange thus far was between Ms. Lynch and Sen. Jeff Flake of Arizona. As Paul recounts:

Lynch assure Flake that her commitment to securing the border is firm. We can all sleep better at night now.

Flake is pressing Lynch about failure to carry through on an effective border control program in Yuma, Arizona ("Operation Streamline"). Is she committed to the program? Lynch says she's committed to talking with Flake about his concerns.

Hey, that's cool.  The prospective AG isn't all that committed to enforcing the border, but is committed to talking about enforcing it. Is the law in good hands here?  This must be a takeoff on her boss's waffling on whether he'll use force to stop the Iranians from building the Big One, but is happy to talk about stopping the Iranians from building it.

Apparently, that's how the hearing is going.  Senators ask questions.  Ms. Lynch responds with friendly filibustering and mush. This gets accepted as "answers," and nobody becomes perturbed.

The Parameters for Pardons

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The New York Times invited my participation in its "Room for Debate," on the subject of executive clemency.  The immediate cause of the Times's interest in clemency might be the talented movie star and former teenage thug Mark Wahlberg, but there is a much larger move afoot here, signaled by the Administration's massive effort to enlist the defense bar and allied organizations in proposing literally thousands of clemency candidates  --  a thoroughly unprecedented approach to pardoning.

My take on it in the Times is much what you'd expect from a person with generally conservative principles:  The system is certain to make errors and we should try to correct them.  We need to be clear, however, about the further errors we'll make in the attempt, and understand the different, but no less real, set of costs and risks we will create.  Finally, the Constitution should be honored both in its provision of plenary power to the President in this area, and in its overriding instruction to him that he take care faithfully to execute the laws as Congress wrote them.  

Taken together, what those things mean is that the President should not fear to use clemency in cases of clear-cut injustice worked on individual defendants.  But he should take equal care that his clemencies are not undertaken simply as an expression of disagreement with existing law, or any set of such laws.  If the President ignores this latter caution, he will effectively re-write the Constitution to provide a "forever" veto-option, in which Presidents months, years or decades after duly enacted statutes take effect could issue the new, omnipresent, limitless "veto" against any not then to his liking, simply by pardoning every federal felon convicted under them.

That would be exploding  the pardon power beyond recognition, to the point of constituting a quasi-usurpation of Congress's sole  authority as the law-making body.

AG Nomination Hearing Tomorrow

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The Senate Judiciary Committee hearing announcement is here.

The State of Georgia tonight executed repeat murderer Warren Lee Hill, whose lawyers claimed he was intellectually disabled (formerly called mentally retarded) and therefore ineligible for capital punishment.

As the majority of the three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit noted, the evidence that Hill was not retarded was compelling.  He joined the Navy and was steadily promoted up the enlisted ranks to E-5.  "Hill was eligible for an E-6 promotion in the military; however, he was demoted not because of any mental inability, but because he murdered his girlfriend."

Although it is possible for a mildly retarded person to serve in the lower ranks, you don't rise that far if you are retarded by any reasonable definition of the term.  Atkins v. Virginia is based on a national consensus that we should not execute retarded people, and its application should be limited to people who fit the concept of retardation that produces that consensus.  If psychologists expand the label to apply to people who do not, that labeling should not be controlling.

Within prison he killed again, and that is the crime he was executed for.

The U.S. Supreme Court denied a stay 7-2.

News Scan

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CA DMV Overlooks False ID Crimes By Illegals: Illegal aliens living in California who seek a state-issued driver's license will have an easier time during the application process thanks to a policy that instructs DMV employees to ignore previous instances of identity theft.  Adelle Nazarian of Breitbart reports that a source at the California DMV disclosed that employees have been  instructed to look the other way if an applicant was previously caught using false information to obtain a driver's license.  Under state law, identity theft can be prosecuted as a felony, and may result in illegals being arrested and deported back to their native country.

AZ Murder Suspect Faced Deportation: The man police believe to be responsible for murdering an Arizona convenience store clerk last week was already facing deportation at the time of the killing and had been released from federal custody on bond.  Jim Walsh of The Republic reports that 29-year-old Apolinar Altamirano, who was out on bond for a burglary conviction, shot and killed the clerk during a dispute over a pack of cigarettes.  Altamirano, who admittedly has ties to the Mexican Mafia, was allowed to remain in the US on 'supervised probation' despite a burglary conviction and multiple accusations of harassment.

NY to Toughen Penalties for Sex Offenders: The New York State Senate has passed a number of bills aimed at toughening penalties and establishing stricter requirements for sex offenders.  Robert Harding of the Auburn Citizen reports that one of the bills would make it a crime for an individual to knowingly house or employ a sex offender who has yet to verify their residence, employment, or has failed to contact local law enforcement.  Another bill would make it illegal for level 3 sex offenders to live in student housing on college campuses.

The New York Times editorial board is nothing if not reliable  --  reliable, that is, in its sneering, down-the-nose, and most importantly mendacious view of those who disagree with it about capital punishment.  

It would seem that the NYT simply doesn't know that 60% or more of the American people have supported the death penalty for forty straight years.  Or that, out of 112 Supreme Court justices, a total of four have found the death penalty per se impermissible; the other 108 have not.  The three men most widely esteemed as our greatest Presidents  --  FDR, Washington and Lincoln  --  all not merely supported but used the death penalty.

Try to guess that from anything in this paragraph from today's editorial:

It is time to dispense with the pretense of a pain-free death. The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable. When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.

All of this is tripe; most of it is tripe at more than one level.

News Scan

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Wyoming Lawmakers Push For Firing Squad: Several Wyoming senators say the time has come for the state to bring back the firing squad as a method of execution as an alternative or backup to lethal injection.  Cheryl K. Chumley of the Washington Times reports that the firing squad suggestion comes at a time when several pharmaceutical companies have scaled back or completely eliminated the production of lethal injection drugs due to pressures from anti-death penalty groups.  Utah offers the option of using a firing squad for inmates who are already on the state's death row, but not for those who have just been sentenced to death.

GA To Execute Convicted Killer: A Georgia man convicted of murdering an inmate more than two decades ago is set to be executed Tuesday evening.  Kate Brumback of the Associated Press reports that 54-year-old Warren Lee Hill was already serving a life sentence for the murder of his girlfriend when he beat a fellow inmate to death in 1990.  If the execution is carried out as scheduled, Hill will become the second death row inmate executed by the state of Georgia so far this year.

Bill Increases Penalties For Crimes Against Children: A New Mexico lawmaker is gathering support for a bill that would increase penalties for people convicted of sex crimes against children and make it easier to prosecute them.  The Associated Press reports that the bill would increase prison time from 6 to 15 years for those convicted of coercing children between the ages of 13-18 to submit to sexual penetration.  The bill would also change the definition of the crime by excluding a requirement that the victim must have suffered a 'personal injury' such as pregnancy, chronic pain, or mental anguish. 

Grand Theft Vino

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Kerana Todorov reports for the Napa Valley Register:

Investigators have recovered the bulk of the premium wine bottles stolen from The French Laundry on Christmas Day, according to the Napa County Sheriff's Office. No arrests have been made.
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The wine, with an estimated retail value of about $300,000, was reported missing Dec. 26 after an employee discovered someone had broken into the famed Yountville Michelin-starred restaurant. The suspect - or suspects - broke into the building sometime after 2 p.m. on Christmas Day, Pike said. The alarm system had not been set.
How big a truck do you need to steal 300 grand worth of wine?

The Underpolicing of Black America

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Jill Leovy has this essay in the WSJ:

In predominantly African-American neighborhoods of U.S. cities, far too many killers have gotten away with far too many crimes for far too long, fueling a disastrous murder epidemic. Solving these murders and other serious crimes of violence in black communities should be a top goal for law enforcement--and it deserves to take priority over much more widely discussed issues such as racial profiling and the excessive use of force by police in black neighborhoods, from Ferguson to Staten Island.
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But instead of checking this wave of urban violence, America threw up its hands. Prison terms per unit of crime in the U.S. hit rock bottom in the 1960s and '70s, making the U.S. one of the world's most lenient countries, as William J. Stuntz of Harvard Law School and others have shown. Reformers focused on the rights of defendants, remaining blind to the ravages of under-enforcement.

In the 1980s, a get-tough backlash hit, ushering in the current era of mass incarceration and long sentences. But unsolved homicides still piled up in black neighborhoods. Even as convicts grew old in prison, detectives remained overwhelmed by exploding street violence.

As noted here and here last week, the U.S. Supreme Court declined, 5-4, to issue a stay of execution for Oklahoma murderer Charles Warner, who raped and murdered a baby. Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

Charles Warner is to be executed tonight. He and three other Oklahoma death row inmates filed a petition for certiorari and an application for stays of their executions, contending that Oklahoma's lethal injection protocol violates the Eighth Amendment. I believe that petitioners have made the showing necessary to obtain a stay, and dissent from the Court's refusal to grant one.
Although it takes five votes to grant a stay, it only takes four to take up a case for full briefing and argument, and the Supreme Court today granted certiorari in the underlying case.  The case is No. 14-7955.  It is now titled Glossip, et al. v. Gross, et al., because Warner's case has reached the point of ultimate mootness.

Mark Sherman has this story for AP; Adam Liptak and Erik Eckholm cover it for the NYT.

Update:  Robert Barnes and Mark Berman have this story in the WaPo.

Last week's execution of Warner, who was put to death for raping and killing an 11-month-old girl, was carried out without much incident, witnesses said, although as the process began, Warner said, "My body is on fire."
"As the process began" is significantly misleading.  As I noted previously, the actual observation by the television reporter was:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."
Big difference.  Warner's statement is not evidence that the drugs being used are painful and cruel.  It is evidence that inmates facing execution are being coached to fake it, and some of them are going along with it.

Race Huckstering at Its Finest

I won't even try to characterize the depth of contempt for America and the extent of the guilt-mongering going on in this article from the Economic Policy Institute.  The title is, "Where Do We Go from Here:  Mass Incarceration and the Struggle for Civil Rights." So far as I can make out, its thesis is that no one, and in particular no African American, is responsible for his criminal behavior, and that it's only Jim Crow Amerika, now and forever, that causes people to be imprisoned:  Prison, you see, is merely the midwife of racist oppression.

If readers think that's an exaggeration, I invite them to read the piece and describe how else it might fairly be characterized.

My reason for posting something like this is to alert those who have a better opinion of the country and of the criminal justice system about what, exactly, we are up against. 

News Scan

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Bill Would Increase Punishment for Violent Crime: A bill introduced by Indiana Senator Brandt Hershman would allow prosecutors to seek the death penalty in cases involving murders committed on college campuses.  The Purdue Exponent reports that Senator Hershman hopes that by adding school shootings to the list of crimes punishable by death, it will deter future tragedies from happening on Indiana school campuses.  The bill may be heard by the states Senate Committee as early as next week.

House To Vote On Border Security Bill: A bill to secure the U.S. border with Mexico will be voted on by the House early next week.  The Associated Press reports that the bill, which would increase the use of drones, surveillance systems, and other forms of security technology at the border, already passed the House Committee on Homeland Security Wednesday evening by a vote of 18-12.  The bill would also mandate that operational control areas, which are designed to prevent illegal border crossings, be placed at high-traffic border spots within two years and along the entire border within five years.  

Convicted Felon Targeted In Cold Case Killings: An Oregon man, currently serving time behind bars for attempted murder, will  be extradited to California to face murder charges after DNA evidence linked him to two cold case killings.  Veronica Rocha of the Los Angeles Times reports that 66-year-old Rodney Halbower is accused of raping and murdering two women in Northern California nearly 40 years ago.  If found guilty, Halbower faces a minimum sentence of life without the possibility of parole.

News Scan

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Federal Charges Unlikely in Ferguson Case: Lawyers with the U.S. Justice Department are expected to recommend that no civil rights charges be brought against Ferguson, MO police officer Darren Wilson.  Matt Apuzzo and Michael S. Schmidt of the New York Times report that an investigation conducted by the FBI found that there was no evidence to support civil rights charges against Wilson in the shooting death of Michael Brown in August 2014.  Attorney General Eric Holder and his civil rights chief will have the final say on whether or not the Justice Department will close the case against Wilson. 

NY Assembly Speaker Arrested On Corruption Charges: New York Assembly Speaker Sheldon Silver has been taken into custody and will face criminal charges after authorities say he pocketed millions in a corruption scheme.  The New York Daily News reports that Silver, who is facing five counts of corruption, allegedly accepted $4 million in bribes and kickbacks from a variety of firms seeking his political influence in Albany, New York.  Each count against Silver carries a maximum of 20 years behind bars.  

FL Supreme Court Upholds Death Sentence: Florida's highest court has upheld the death sentence for a man convicted of brutally murdering a woman he met on Craigslist in 2010.  Larry Hannan of The Florida Times-Union reports that 23-year-old David Sparre tortured the woman and stabbed her nearly 100 times, admitting to police that he took pleasure in it and killed her for "the rush."  During trial, Sparre instructed his attorney not to present any evidence on his behalf, an issue Sparre's appeals attorney claimed was a violation of his rights.

NY Speaker Arrested for Corruption

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Reid Wilson reports for the WaPo:

Federal agents on Thursday arrested powerful New York Assembly Speaker Sheldon Silver (D) on federal corruption charges, stemming from payments he received from two New York City law firms.
Jennifer Queliz, a spokeswoman for the U.S. Attorney's office in the Southern District of New York, confirmed Silver was in custody Thursday morning. U.S. Attorney Preet Bharara will hold a press conference Thursday afternoon to announce the charges.
There is an interesting federalism question on the constitutional basis for federal prosecution of corrupt state officials.  It generally hinges on some tenuous connection with mail or interstate commerce.  In my view, a corrupt official denies the honest people of the state equal protection of the laws.  The bribe-payor gets special treatment that the honest people do not.  That is, of course, why he pays the bribe.  I haven't gotten any takers for my view yet.

Whatever the basis, prosecuting corrupt state officials is one of the most important functions of federal law enforcement.  Some valiant prosecutors do go after crooks who hold their purse strings, but we cannot expect that as a matter of course.

News Scan

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AK Considers Labeling Human Traffickers As Sex Offenders:  The Arkansas Legislature is considering a bill that would require criminals who engage in human trafficking or those who engage in sex with a human trafficking victim to register as sex offenders. Elicia Dover of KATV reports that the bill's author, Senator Jim Woods, believes that that the requirement would help law enforcement keep track of criminals convicted of these crimes.  

The Risks Cops Take:  Many who are demanding body cameras on police officers in the wake of the Michael Brown shooting may not like the idea so much when those cameras show the danger that officers face while trying to protect the public.  Case in point: Matt Pearce of The Los Angeles Times reports on the body camera video of a suspect shooting and killing a young Flagstaff, AZ police officer during routine questioning.  Like existing dashcams and DNA evidence, bodycams are going to help convict 99% of the suspects police officers confront, while reminding the rest of us how dangerous it is to be a cop.
I noted in my last post that President Obama erred in suggesting that crime and incarceration had both decreased for the first time in forty years.  The statistics are not yet in for 2014, and if the President was meaning to refer to 2013 (or any other year of his Presidency, for that matter), he was mistaken.

Six Supreme Court Justices attended the SOTU, including Justice Ruth Bader Ginsburg.  The tradition is that Justices do not react during the speech, lest they be thought to be expressing either approval or dissent from what the head of the Executive Branch is saying. (Although sometimes the temptation is too much for a truth-insistent Justice to resist).

Justice Ginsburg did a first-rate job of keeping faith with that tradition.

Fact Checking Obama on Crime and Incarceration

President Obama said in his State of the Union address:

Surely we can agree it's a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America's criminal justice system so that it protects and serves us all.

Only one problem:  If the President is talking about 2013, which he certainly seems to be (as 2014 statistics on crime and incarceration rates are not yet available), his point is misleading.  The crime rate did indeed fall in 2013 (for the first time in three years), but incarceration increased.  As Obama's own Justice Department reported four months ago:

  • U.S. state and federal correctional facilities held an estimated 1,574,700 prisoners on December 31, 2013, an increase of 4,300 prisoners from year end 2012.

  • The 3-year decline in the prison population stopped in 2013 due to an increase of 6,300 inmates (0.5%) in the state prison population.

  • The federal prison population decreased in size for the first time since 1980, with 1,900 fewer prisoners in 2013 than in 2012.

  • The number of prisoners sentenced to more than a year in state or federal prison increased by 5,400 persons from year end 2012 to year end 2013.

  • The number of persons admitted to state or federal prison during 2013 increased by 4%, from 608,400 in 2012 to 631,200 in 2013.
For the last eight years, and until just a few days ago, Sen. Patrick Leahy of Vermont was Chairman of the Senate Judiciary Committee, an extremely powerful position.  In this piece from the Marshall Project, Sen. Leahy tells us what the President should say tonight about criminal justice reform:

The biggest issue facing our justice system today is our mass incarceration problem. The president has said before that we should enact laws that ensure "our crime policy is not only tough, but also smart."  But tonight, while he has the attention of every member of Congress and the American people, I want to hear the president say that he supports an end to all mandatory minimum sentences, as I do.  Mandatory minimums are costly, unfair, and do not make our country safer.  For too long they have served as an easy way to score cheap political points: Want to prove you're tough on crime? Just add another mandatory minimum to the law. No need to bother with evidence that they do not make us safer; they make a nice talking point. That policy fallacy is one of the reasons we have the largest prison population in the world. And why $7 billion - nearly a third of the Justice Department's budget - goes to the Bureau of Prisons instead of to community policing, victims services, or prison diversion programs that would make us safer and save taxpayers money.

I have made my position clear on mandatory minimums  --  they are a needed restraint on foolish and ideological judges. Congress was wise to pass them and wise to keep them.

Thus I wish to note here only that Sen. Leahy, for all his present indignation, did not so much as bring up for a vote, in the years he easily could have, legislation (the Justice Safety Valve Act) he co-sponsored, which would have done exactly what he says the political branches have been so remiss for failing to do.

P.S.  Sen. Leahy to the contrary, the biggest issue facing our justice system today is that we have almost 10,000,000 serious crimes a year, not counting trafficking in hard drugs.  That is well over four times the number of inmates.

(Hat tip to Doug Berman at SL&P).

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