The Sanctuary City Case

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Within days of his inauguration, President Trump signed Executive Order 13768.  Section 9 of that order addressed so-called "sanctuary cities."  The header paragraph and subdivision (a) read (emphasis added):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
This section has been challenged in court as illegal and unconstitutional.

If it occurs to you that a direction from the chief executive to his subordinates that is expressly limited by its terms to actions "consistent with law" cannot possibly be illegal, congratulations, you understand law better than a federal district judge.

How Many Lies Can You Spot?

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The ACLU put out a press release today that contains the following paragraph:

Although the mandate of prosecutors is to advance justice, many district attorneys have focused on punishment at any cost.  This approach has increased the jail and prison population; led to sentences that are too severe for the offenses; produced more wrongful convictions and more death sentences; and sent people with addictions, disabilities, and mental health conditions into jails and prisons who should receive treatment or other social services instead. These consequences of unchecked prosecutorial power burden people of color and the poor disproportionately.

Hence the title of this entry:  How many lies can you spot?

News Scan

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More Fatal Car Crashes From Drugs Than Alcohol:   While this should not come as a surprise to anyone paying attention, more U.S. drivers in fatal car crashes tested positive for drugs than alcohol in 2015.  Ashley Halsey III, of the Washington Post reports that data released by the Governors Highway Safety Association found that 43% of drivers in fatal accidents had been under the influence of legal or illegal drugs, while 37% were drunk.  The story also notes that the number of drivers who died in car crashes who tested positive for drugs went from 28% in 2005 to 43% in 2015.  In Colorado the number of marijuana-related traffic deaths increased by 48% after the state legalized recreational use of the drug.  No worries, the state is reportedly getting lots of tax revenue from pot sales. 

DHS to Help Victims of Alien Criminals:  The Office of Homeland Security has announced that it will begin offering services to American crime victims who were assaulted by illegal aliens.  Brooke Singman of Fox News reports that the Victims of Immigration Crime Engagement Office was opened in response to a Presidential directive.  "All crime is terrible, but these victims are unique--and often too ignored," said Homeland Security John Kelly.  "They are casualties of crimes that should never have taken place--because the people who victimized them often times should not have been in the country in the first place," he added.

Deputy AG Confirmed

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Yesterday the U.S. Senate confirmed the nomination of Rod Rosenstein to be Deputy Attorney General of the United States. The vote was 94-6, with Senators Blumenthal, Booker, Cortez Masto, Gillibrand, Harris, and Warren casting the dissenting votes. 

One can only wonder if there is anyone President Trump could possibly have nominated whom these six would have voted for.  Were they expecting him to renominate Sally Yates?

Even so, in the present poisonous atmosphere 94 votes is a very good start, and we congratulate Mr. Rosenstein and wish him well in a tough job.

An Astonishingly Asinine Prosecution

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PowerLine brings us the story of what is probably the most stupid federal prosecution I ever heard of.  Its account starts:

A U.S. District Court in California has declared 75-year-old veteran Robert Rosebrock not guilty of violating federal law in a prosecution for allegedly displaying two four-by-six inch American flags above a Veterans Affairs fence on Memorial Day 2016. Rosebrock had been charged with hanging the two napkin-sized American flags on a section of the fence adjacent to the entrance to the VA facility in violation of a VA regulation prohibiting the displaying of "placards" or posting "materials" on VA property without authorization. 

This mind-blowing episode is not a case for allowing the judicial branch to intrude into charging decisions.  It is, however, a case for hiring Assistant United States Attorneys with an IQ above 60.
Last week, I commented on Justice Sotomayor's dissent in the McGehee case from Arkansas.  She said that the Supreme Court should stay the Arkansas executions to resolve a difference of opinion between federal courts of appeals regarding the availability of an alternative method of execution when an inmate claims the state's method creates an excessive risk of pain.

My comment at the time was that there was not yet a circuit split that was ripe for Supreme Court review because the decision of a Sixth Circuit panel was not yet that circuit's final word.  The court might take up the case for rehearing before the full court (en banc).

Sure enough, today the Sixth did exactly that.

Holding the Line On Finality?

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U. Tex. Law Professor Steve Vladeck has this post at SCOTUSblog on yesterday's argument in Davila v. Davis.  This is the case of a Houston gang member who wanted to get a member of a rival gang, so he opened fire with an AK-47-type weapon on a porch full of women and children having cake and ice cream at a child's birthday party.  Steve thinks Texas will prevail, and the question is how narrowly or broadly.  I was also encouraged by the argument transcript, but I am glad to have this independent, in-person observation.

After the break are the background of the case and my notes on the argument transcript.

News Scan

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Mob Swarms Rapid Transit Train:  A mob of roughly 60 juveniles swarmed Oakland Colliseum Station of the Bay Area Rapid Transit (BART), jumped the fare gates, and took over at least one train car, robbing and beating passengers.  Demian Bulwa and Michael Cabantuan of the SF Chronicle report that the incident occurred at about 9:30 p.m. Saturday, as passengers were boarding the Dublin-bound train.  As members of the mob held the doors open other streamed inside, attacking and robbing passengers of purses, cell phones, and other valuables.  A BART spokesperson said that passengers being robbed by small groups at stations are not uncommon, but that this was the first time a large mob had swarmed a train. 

Illegal Sought For Oregon Sexual Assault:  A Mexican national who had been deported is the prime suspect for the February 26 sexual assault of a 9-year-old girl.  Fox News reports that police are looking for Santiago Martinez-Flores who re-entered the U.S. following his 2001 deportation after serving two years in prison for assault.  The victim awoke in her parents Portland apartment as the man she identified as Martinez-Flores was assaulting her.  She managed to break free and run to her parents' room, but Martinez-Flores had fled before they returned.  In addition to the victim's description, physical evidence linking Martinez-Flores to the crime was found at the scene.  

More Bureaucratic Delay of CA Death Penalty:  The California Department of Corrections and Rehabilitation has won approval from a state regulatory agency to further delay the implementation of the single-drug execution protocol it announced last November.   Don Thompson of the Associated Press reports that corrections officials asked for another four months to develop lethal injection regulations after some of them were rejected by the the regulatory agency five months ago.  This is kind of like one hog asking another hog if he'd like some more slop. The announced protocol is similar to those which have been used for several years in other death penalty states, including Texas.  While the California public voted twice last November to retain and speed enforcement of the death penalty, when the Governor, Attorney General, and Legislature oppose the law, they use the bureaucracy to prevent its enforcement.   

 
Two of the arguments most frequently lodged against the death penalty are that executions can be botched, leading to extended, severe pain; and that surviving family members don't want the trauma either of the protracted capital legal process or the bitter, sometimes jarring experience of the execution itself.

Both arguments were made by the defense side in last night's executions, and both were, as is typically the case, phony.

Will there be any sanctions for defense counsels' deceit?  Let me ask that another way:  Short of outright perjury or helping to plan the murder of prosecution witnesses, are there ever sanctions for defense counsels' deceit?

You've heard it all before.  Hey, look, we gotta be zealous!  Besides, the actual facts don't look so hot, so what else do you expect us to do?  Honestly, you Puritanical stuffed suits just don't have an ounce of compassion.  Anyway, who can really, actually, finally know "The Truth?"

Abolitionism, Down for the Count

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Arkansas carried out two executions tonight, the first time that has happened in almost 20 years, as the Washington Post observes.  It executed another murderer a few days ago.

My sense of it is that this development may be remembered as the moment the movement to abolish the death penalty started back downhill after many years of gaining ground.  This is true, I think, whether or not Arkansas succeeds in executing a fourth killer on Thursday, something that now seems likely to happen.

How Trump Can Make America Safe Again

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Conservative speakers may get shoved off campus by liberal fascists, but Heather Mac Donald, for one, and her assiduously researched views, are welcome in this space.  I commend her excellent recent article, which notes, among other things:

The most immediate goal of the Trump administration should be to change the elite-driven narrative about the criminal-justice system. That narrative, which holds that policing is lethally racist, has dominated public discourse since the fatal shooting of Michael Brown in Ferguson, Missouri, in August 2014. In response, officers are backing off of proactive policing, and violent crime is rising fast: 2015 saw the largest one-year spike in homicides nationwide in nearly 50 years. That violent-crime increase has continued unabated through 2016 and into the early months of 2017. A Trump administration official--perhaps Attorney General Sessions, or the president himself--should publicly address the question of what we expect from police officers: Do we want them to be proactive and to try to stop crime before it happens? Or do we want them to be purely reactive, responding to crime only after someone has been victimized?

The Arkansas Execution Set for Thursday

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Arkansas has two executions set for tonight (I understand that the first has now taken place).  It also has one set for Thursday.  I read for the first time a short summary of the facts in that case, and the killer, Kenneth Williams.  The New York Times reports them as follows:

Mr. Williams killed a cheerleader at the University of Arkansas at Pine Bluff in December 1998 but escaped from a maximum-security prison after a jury sentenced him to life the next year. A few miles from the prison, he fatally shot Cecil Boren, a farmer who was working in the yard while his wife was at church, and stole his truck. Mr. Williams led the police into Missouri in a high-speed chase before he crashed into a car, killing the driver. In 2005, he confessed to killing a 36-year-old man the same day he shot the cheerleader.

That would make four murders we know about, including two after he had been sentenced to life in maximum security.

Williams by himself shows not merely the error but the absurdity of the proposition that capital punishment is never warranted.  Abolitionist arguments to the contrary depend, not on different value judgments, but on whiting out reality.
You know it will be a bad day when you are arguing for the defendant in the Supreme Court and the Chief Justice quotes Professor Wayne LaFave on point against your argument.  LaFave is the author of three leading treatises on criminal law and is consistently pro-defendant on virtually all debatable questions.  So when the CJ cited him in the argument in McWilliams v. Dunn this morning, advocate Stephen Bright could do little more than stammer out a response of the "even Homer nods" variety.  See p. 13.

The underlying question is whether a defendant with a mental claim is entitled to an appointed, state-paid expert who is a partisan member of the defense team or whether a court's appointment of a neutral expert to examine the defendant and report to both sides meets the requirement of the high court's 1985 precedent in Ake v. Oklahoma.* 

Further, because this case was decided on the merits by the state courts and is now on federal habeas corpus review, the threshold question is whether the answer to the above question was "clearly established" in the defendant's favor back when the Oklahoma court decided it.  That is an easier question.  No.
I've met Justice Stephen Breyer only two or three times.  The first was 30 years ago at a meeting of interested parties (for want of a better term) concerning the about-to-become-effective federal Sentencing Guidelines.  Breyer was then a First Circuit judge and a USSC Commissioner.  I was pretty much of a nobody from DOJ, but had been in on the Guidelines' implementation.

I found then-Judge Breyer to be extremely friendly, modest, and engaging.  There was absolutely no hint of pulling rank; to the contrary, he was attentive and responsive throughout.

As a Justice, he has had occasion to consider death penalty cases.  It is now beyond sensible argument, in my view, that he's made up his mind that capital punishment is unconstitutional in all circumstances, see, e.g., this entry from SL&P. Whether he's right or wrong about that (I think he's clearly wrong), I believe the federal recusal statute, 28 USC 455, now requires that he not take part in future capital cases, including, I have a strong feeling, the one that's coming tonight about the double execution in Arkansas. 

News Scan

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Increased Immigrant Crime in Germany:  The Interior Minister of Germany has announced that crimes committed by immigrants "increased disproportionately" last year.  Reuters reports that the number of immigrants identified as criminal suspects increased by 52% in 2016, while the number of German suspects declined by 3.4%.  The Minister told reporters that "those who commit serious offenses here forfeit their right to stay here."  It was also reported that crimes motivated by Islamism increased by 13.7% in 2016.  This included the December truck massacre of 12 Christmas shoppers by a Tunisian immigrant loyal to Islamic State.

Two Arkansas Killers Face Execution Today:  The executions of Arkansas murderers Jack Jones and Marcel Williams are likely to be carried out tonight barring a last-minute stay by a state court or the U.S. Supreme Court.  Fox News reports that the Eighth Circuit Court of Appeals denied Jones' petition for a stay earlier today.  Williams' petition is pending, but both inmates were challenging the use of the execution drug midazolam, which was cleared by the courts for an execution last week.  Williams was convicted and sentenced to death for the 1994 rape and murder of 22-year-old Stacy Errickson, whom he kidnapped from a gas station.  Williams had kidnapped and raped two other women days before he murdered Errickson.  Jones was sentenced to death for the 1995 rape and murder of 34-year-old Mary Phillips and the attempted murder of her 11-year-old daughter, Lacy.  The facts of the crime and the strength of the evidence are described in this Arkansas Supreme Court decision
One undeniable legacy of the Obama administration has been the explosion of violent crime in many U.S. urban centers, a widespread increase in illegal drug trafficking and an accompanying record-setting number of fatal drug overdoses.  While the causes or even the existence of these facts are disputed by liberal/progressive political and academic leaders and their followers, it is also undeniable that the only candidate for the presidency who consistently targeted the increases violence and drugs under the Obama administration was the candidate that won the election.  While the deniers and hecklers continue their resistance, sometimes violently, the new president is working to address the pervasive crime, violence and drugs that most Americans outside of Hollywood, the beltway and academia are witnessing first hand.  Manhattan Institute scholar Heather MacDonald has laid out a game plan for the administration in a recent article in the City Journal.
In Glossip v. Gross (2015), the Supreme Court adopted the position of the plurality opinion in Baze v. Rees (2008) that a death row prisoner challenging a method of execution must show that it presents a "risk of severe pain [that] is substantial 'when compared to the known and available alternatives.' "

Justice Sotomayor dissented from the Supreme Court's decision not to grant a stay of execution and take up the Arkansas execution cases, McGehee v. Hutchison, No. 16-877, saying the high court should resolve a split of opinion in the courts of appeals as to the meaning of "available."

But is there a split?  Not really.  Not yet.

Why Now?

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In his opinion dissenting from denial of a stay in the Arkansas execution case, McGehee v. Hutchison, No. 16-8770, Justice Breyer asked rhetorically, "Why now?"  He surely meant why not later, but I think the more pertinent question is why not earlier.

Let us begin in 2012 with a bizarre opinion by the Arkansas Supreme Court.  Ten murderers on the state's death row filed suit claiming that it violated the separation of powers for the legislature to prescribe the method of execution in general terms and let the corrections department fill in the details.  Incredibly, the court bought it.  As a matter of administrative law, this is preposterous.  Legislatures regularly delegate far more fill-in-the-gaps authority to administrative agencies than this.  Every other state supreme court to consider such a claim has rejected it, as Justice Baker described in her dissent.

Midazolam

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One of the many controversies in the flurry of activity over the Arkansas execution of Ledell Lee was whether midazolam is a sufficient anesthetic for this purpose.  There is surprisingly little in the media reports this morning about whether it worked as intended in this case.  This story in USA Today does not mention the actual result, but the web page does have video of a television report by Marine Glisovic of KATV, a media witness to the execution.  From her report, it appears that the drugs worked as intended.

In my view, the States and the Federal Government should work to restore the supply of thiopental or pentobarbital as quickly as possible and eliminate the need for these more debatable alternatives.  Until that channel is open, though, midazolam appears to be effective when used correctly.


Selective Reporting?

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A man was arrested in Florida Wednesday for the rape and murder of a 33-year-old Chicago woman last Sunday.  The Chicago Tribune reported that the suspect, Bulmaro Mejia-Maya, is a construction worker who lived near the victim, Tiffany Thrasher.  No mention of the suspect's immigration status in the Trib.  But fortunately, in their story for Chicago's ABC7 John Garcia and Stacy Baca added that Mejia-Maya was a Mexican citizen and that ICE had issued a detainer on him, but that his immigration status was unclear.  They noted that he was wanted on drug charges in Utah and that he had pled guilty in 2013 to a battery in Florida. Probably just a pot bust in Utah and a Florida bar fight right?  You have to go to the Daily Caller to learn that the drug charge against Mejia-Maya was for cocaine and that in Florida he was initially charged with felony assault with a deadly weapon after he stabbed a man.  Instead of pleading guilty to felony charges, which would have triggered the revocation of his green card, Meija-Maya was allowed to plead guilty to misdemeanor battery and sentenced to 117 days.  Like San Francisco, Chicago is a sanctuary city.  If it  turns out that Mejia-Maya was in the U.S. illegally on a revoked green card and avoided deportation because of the Chicago's pro-illegal policy, where do you suppose it will be reported?  


Justice Gorsuch Makes the Difference

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As Bloomberg reports, Justice Neil Gorsuch's first vote in a prominent case is likely to be remembered for a long time:  "Gorsuch's First Big Supreme Court Vote Allows Arkansas Execution"

Justice Neil Gorsuch took his first major action on the U.S. Supreme Court by casting the deciding vote to let Arkansas begin executing a group of death-row inmates.

In a series of orders Thursday night, the high court cleared the state to execute Ledell Lee, one of eight convicted murderers that Arkansas has been trying to put to death before one of its lethal-injection drugs expires at the end of the month. Arkansas executed Lee minutes after the court rejected the last of his requests.

Gorsuch joined his four fellow Republican appointees -- Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy and Samuel Alito -- in the majority. They didn't explain their reasons.

The court's four liberal justices each voted to grant at least one of the requests to halt the executions. Justice Stephen Breyer said the state didn't have an adequate reason to rush.
Since the murder occurred 24 years ago, I'm not sure what "rush" Justice Breyer has in mind.

Coulter Speaking at Berkeley

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Kent has noted that Ann Coulter will be speaking at Berkeley after all, the University's Chancellor now saying that he has found a "protectable venue."

I write separately about this because of the enormous importance I see in this issue.  My perception was only heightened when I attended the William F. Buckley, Jr. Program's "Disinvitation Dinner" this week in New York City, keynoted by the infamously disinvited Peter Thiel. http://www.businessinsider.com/peter-thiel-chased-off-stage-by-angry-protestors-at-uc-berkeley-2014-12

The blindness and cowardice in so many of our universities is a big part of the problem, but not the main part.  That would be the fascist bullying the universities are called upon to confront  --  but find the task so vexing because of the very ideologically-rooted, hard-edged intolerance they have bred.

The resulting thugs have a name:  Brownshirts.  We have seen them before, and we know where this leads.  It's not just that university needs to find "protectable venues." It's (1) that the university must understand that its whole campus and indeed its whole raison d'etre is to be a "protected venue," and (2) that the protection at some point is going to have to involve the use of substantial physical force against the thugs.  Brownshirts know one language, and it's time we spoke it to them.

Allowing the United States to become 1930's Germany is a price civilization cannot afford. 
Douglas Belkin and Alejandro Lazo report for the WSJ:

Officials at the University of California, Berkeley reversed course Thursday and announced they will allow conservative commentator Ann Coulter to speak at the school next month.

Chancellor Nicholas Dirks said the April 27 event was canceled because the school had received "very specific intelligence regarding threats that could pose a grave danger to the speaker, attendees and those who may wish to lawfully protest the event."

But after a search beyond "the usual venues" Dr. Dirks said in a statement that the school "identified an appropriate, protectable venue that is available the afternoon May 2."
I'm not a fan and won't be going to Berkeley for the event.  I called Ms. Coulter "cringe-inducing" on this blog some time back, and nothing since then has changed my view.  Even so, it is central to freedom of speech that we protect the cringe-inducing right along with the erudite and the eloquent.  I hope that U.C. Berkeley has sufficiently robust protection on hand to deal with the anti-free-speech "activists."  It is unfortunate that resources must be diverted for this purpose, but protection of freedom of speech is a priority, and the blame belongs squarely on those who would deny that freedom to people they simply disagree with.

News Scan

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Feds Cracking Down on MS-13:  The U.S. Attorney General and the head of the Department of Homeland Security are promising to identify and aggressively prosecute members of the brutal Salvadorian gang MS-13.  Sadie Gurman of the Associated Press reports that there are at least 10,000 members of the gang operating in the U.S.  Recently several members were arrested for the machete and baseball bat murders of several high school students and four young men in New Jersey. The former head of the Justice Department's organized crime and gang section told reporters that he believes that stricter vetting at the border is necessary to stop MS-13 members from coming into the U.S., noting some are coached to tell immigration officials they're escaping violence in their home country in order to stay.  "My own view is there has to be some correlation between lax immigration policies and replenishment of the gangs in places where they already existed," he said.

Survivalist Convicted of Killing PA Cop:    Eric Frein, the survivalist who gunned down two Pennsylvania state troopers in 2014, was convicted of aggravated first-degree murder Wednesday.  CBS News reports that Frein targeted the two officers at random and intended to kill more in order to spark a revolution.  The shootings left one officer dead and another permanently disabled. Frein was caught after a 48-day manhunt in the rugged Pocono Mountains. Prosecutors will seek the death penalty for Frein at a sentencing hearing beginning today.  

Media Bias Against the Death Penalty:  Sacramento Bee editorialist Foon Rhee penned this column on the death penalty in California after communicating with CJLF Legal Director Kent Scheidegger yesterday.  Responding to his question on whether the state was ready for frequent executions, Kent wrote: "I don't see California scheduling a rush like Arkansas did or needing to.  Also, California has no intention of using midazolam.  The four alternative drugs in CDCR's new protocol are all barbiturates, and Texas has demonstrated that the single-drug method with barbiturates is the way to go -- dozens of executions performed without significant incident.  The federal court in our method-of-execution case has already ruled that California can go ahead with that method.  We might be looking at one or two a month until the executions that have just been waiting for the method challenges to resolve have been carried out.  After that, the rate would be determined by how fast they come out of the pipeline, which includes federal court review.  The majority of Californians favor these executions being carried out, and I do not see a rate like that having any adverse effect on public support."  After reading the column one might ask, why did he even ask for Kent's opinion? 

   

Dead Criminals and Abatement

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What happens when a convicted criminal dies while his appeal is pending?  Matt Bonesteel has this article in the WaPo on the Aaron Hernandez case.  Massachusetts follows the traditional, but stupid, rule:

The chief legal counsel to the Massachusetts Bar Association tells the Boston Globe that Aaron Hernandez's murder conviction over the 2014 shooting death of Odin Lloyd will be voided after the former New England Patriots star was found dead in his prison cell early Wednesday morning.

Hernandez was in the process of appealing his conviction at the time of his death. Because of a long-standing legal principle called "abatement ab initio" -- meaning "from the beginning" -- a person's case reverts to its status at the beginning if they die before their legal appeals are exhausted.
Appeal is not a constitutionally required part of the criminal process.  There generally were no appeals in criminal cases at the time this country was formed.  In the original Judiciary Act of 1789, Congress provided that important criminal cases would be tried before three-judge circuit courts, and their judgment was final.  There was no appeal to the Supreme Court, and habeas corpus was not available to collaterally attack the judgment of a court of general jurisdiction.

Today, all states provide appeals, and for good reason.  But if the appeal is dismissed because the defendant dies, it should be dismissed leaving the trial court judgment intact, as most dismissals of appeals do, without this special rule for dead defendants.  After all, the vast majority of convictions are valid and are affirmed if the appeal runs its course.  Our law recognizes that it is better that ten guilty go free than one innocent be punished, but after trial the ratio is a lot higher than 10/1, closer to 100/1, and there is no issue of unjust punishment remaining anyway.

News Scan

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Shooting Suspect Yells "Ali Akbar":  A man arrested for the murders of three men in Fresno yesterday is also the prime suspect for the murder of a motel security guard last week.  Jim Guy of the Sacramento Bee reports that Kori Ali Muhammad was arrested uninjured after killing three men near downtown Fresno.  He faces four counts of murder, including for the April 13 killing at Motel 6.  The Fresno Chief of Police told reporters that the four men he targeted were white, and although Muhammad tweeted, "Allahu Akbar" (which translates to "Allah is greatest") prior to his arrest, he was not prepared to define the shootings as terrorist acts.

The Other Case SCOTUS is Hearing Today:  While the national media has focused on the Supreme Court's review of the Trinity Lutheran Church of Columbia, Inc. v. Comer reported here by CNN, another case before the Court, Weaver v. Massachusetts, is also worthy of mention.  As reported here by the Cornell's Legal Information Institute, the case raises the question of presumed prejudice for a structural error which arguably had zero impact on the defendant's trial or sentencing.  The answer to this question is fairly important.  The CJLF brief in the case is here, our press release is hereUpdate:  Transcript of the argument is hereUpdate 2:  Rory Little has this analysis at SCOTUSblog.

Alternative Execution Methods

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Joseph Ax and Nate Raymond have this article for Reuters on states turning to other methods of execution as the supplies of lethal injection drugs dry up. Defense lawyers say they will challenge new methods.  So?  They are challenging the old methods.  The article quotes me:

Kent Scheidegger, legal director of the nonprofit Criminal Justice Legal Foundation, which supports capital punishment, said death penalty critics had pressured drug companies into cutting off the supply of drugs, thereby causing problematic executions when states turn to inferior drugs.

Scheidegger said he favors the use of nitrogen gas as an alternative if lethal injection drugs are unavailable, noting that it is used every day by veterinarians as a way of putting animals down painlessly.

"I don't think murderers deserve a painless death, frankly," Scheidegger said. "But as far as removing obstacles from getting these sentences carried out, I think that's the way to go.
Mr. Ax evidently misunderstood me in the second paragraph.  I said the states should turn to nitrogen if they can't get barbiturates such as pentobarbital, which is used by veterinarians every day for euthanasia.  The part about veterinarians refers to the pentobarbital, not the nitrogen.  Pentobarbital is the primary ingredient of Euthasol.

Another Note on Expiration Dates

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Expiration2.jpg
Here is a bit of anecdotal evidence on drug shelf lives.

The picture on the left comes to us courtesy of retired DEA agent Fred Gregory.  In the 1960s, the DEA's responsibilities included checking pharmacy shelves for expired medications.  This bottle of medical heroin was "expired" over 30 years before it was pulled.  Analysis showed it to be 100% pure and potent nonetheless.

News Scan

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Facebook Killer Commits Suicide:  Steve Stephens, the man who last Sunday posted the cold-blooded murder of a 74-year old man on Facebook, killed himself during a brief police pursuit this morning.  Fox News reports that police spotted Stephens behind the wheel of his car in Erie County, PA and attempted a traffic stop.  Stephens refused to pull over and continued driving until he shot himself.  He was about 100 miles from Cleveland, where he randomly shot Robert Godwin in the head while recording the murder on his cellphone.  

Habitual Felon Arrested for Murder:  Sacramento, CA Sheriff's officers have arrested a repeat felon with two prior convictions for beating women, as the prime suspect for the murder of a young woman.  Ellen Garrison of the Sacramento Bee reports that Teris Vinson was already jail on an illegal weapons charge when he was identified as the likely murderer of 28-year-old Janet Mejia.  Mejia was reported missing on April 11 by her female roommate, who was Vinson's girlfriend.  On April 13, Mejia's body was found with gunshot wounds alongside a rural road. Vinson was convicted in 2011 and 2013 for domestic violence.  He was sentenced to two years in prison for the second conviction but it was not reported how long he actually served or whether he was released on state parole or county probation.  Under California's Public Safety Realignment (AB109) domestic violence is not classified as a violent or serious crime.  

Six Detroit Officers Shot Since October:  Two Detroit police officers were shot last Sunday, making them the 5th and 6th officers shot in the past seven months.  George Hunter of the Detroit News reports that the high number of police shootings in the motorcity is making officers feel under siege.  "This is the worst I can remember in my 23 years in law enforcement," said police officers association head Mark Diaz.  The shootings occurred near midnight as two 25-year-old officers were investigating a residential burglary.  As the officers approached the house a 19-year-old occupant armed with a shotgun opened fire, hitting both officers.  The Detroit Police Chief believes that the shooter may not have known they were police officers and was trying to defend his home.  

Remembering the Boston Marathon Murders

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The Boston Marathon murders four years ago were shocking even to those of us whose prosecution experience has shown us some of the worst in human nature. The only good thing I ever heard of to come out of it is reflected in this story from boston.com. 

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