Longtime death penalty abolitionist Prof. Austin Sarat has written an essay admitting what many of us have known for years:  The electorate favors the death penalty and it's not that close.  If the electorate's will is to be honored, we will keep it.  The obvious corollary is that, if it is to be ended, electoral will must be overcome.

I thought part of Prof. Sarat's essay was unusually frank.  It notes that, in deep blue California, voters last year passed Prop 66, which

...designates special courts to hear challenges to death penalty convictions, limits successive appeals and expands the pool of lawyers who could handle those appeals - all in an effort to speed up executions....

At the same time they approved Proposition 66, California voters also defeated Proposition 62, a measure that would have ended the death penalty for murder and replaced it with life in prison without parole.

Two-thirds of Oklahoma voters supported State Question 776 in November. That question declared that the death penalty cannot be considered cruel and unusual under the state constitution. It added a provision that "any method of execution shall be allowed, unless prohibited by the United States Constitution." It opened the way for Oklahoma to employ the gas chamber, electrocution or the firing squad if lethal injection is declared unconstitutional or is "otherwise unavailable."

The Nebraska electorate, by a margin of 61 percent to 39 percent, reinstated the death penalty just one year after state legislators voted to abolish it.

But the most candid admission comes after that.

News Scan

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$1.5 Million to Michael Brown's Family:  The city of Ferguson, Missouri has settled a wrongful-death lawsuit brought by the family of Michael Brown for $1.5 million.  USA Today reports that Brown, an 18-year-old black man, was fatally shot on August 9, 2014 by a white police officer.  The national media quickly reported that Brown was shot because he was black by a racist police officer working for a racist police department, and riots ensued.  This Washington Post story on August 12, advanced the narrative that the Ferguson shooting was just another example of racist police gunning down unarmed black men.  On November 23, more riots broke out after a grand jury, which included black members, refused to indict the officer who shot Brown, finding that under the circumstances (Brown was charging the officer) the shooting was justified.  The New York Times reported in March of 2015, that after a five-month investigation, Eric Holder's Justice Department also cleared the officer, but the Department also issued a CYA report indicating that the Ferguson Police Department was racist.  

14 Cartel Members Busted In Texas:  DEA and local law enforcement agents have arrested 14 members of the Orrantia drug cartel in El Paso, TX.  Ray Bogan of Fox News reports that those arrested including the cartel's ringleader Mario Armando Orrantia.  During the arrests, agents seized 600 kilos of pot, five kilos of cocaine, seven vehicles and almost $140,000 in cash.  The DEA reported that the cartel smuggled hundreds of kilos of cocaine and marijuana into El Paso for distribution to locations including Ohio, South Carolina and Colorado.  All but two of those arrested could be sent to a federal prison for life.        
The U.S. Supreme Court this morning went back into the area of criminal defense lawyers giving bad advice on the immigration consequences of a conviction, a can of worms it opened in its 2010 decision of Padilla v. Kentucky.  Today's case is Lee v. United States, No. 16-327.

Jae Lee was a legal permanent resident who was caught dealing ecstasy.  When offered a plea deal, he asked his retained attorney about immigration consequences and was assured he would not be deported.  "According to Lee, the lawyer assured him that if deportation was not in the plea agreement, 'the government cannot deport you.' "  Wow.  What an idiot, if that was really the basis of his advice.  Dealing drugs is an "aggravated felony" under immigration law.  As such it results in mandatory deportation, and no, Bozo, it doesn't have to be in the plea agreement.

The two prongs of an ineffective assistance claim are deficient performance and resulting prejudice.  Here we have deficient performance in spades.  How about prejudice?  Is a defendant prejudiced by a plea deal when the prosecution has a slam-dunk case for guilt that almost certainly would have resulted in a higher sentence plus deportation anyway?  The majority, per C.J. Roberts, says yes.  Justice Thomas, joined by Justice Alito, dissents.  Justice Gorsuch did not participate.

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1.4 Million Illegals Using Stolen SSA Numbers:  An audit by the U.S. Treasury Inspector General found that most illegal immigrants who pay taxes have stolen someone else's legal identity.  Stephen Dinan of the Washington times reports stolen Social Security numbers were used on an estimated 1.4 million returns filed in 2015.  The IRS tries to mark the files of fraud victims with electronic filings but it misses about half of them.  The IRS is not currently allowed to communicate with the Department of Homeland Security to identify who is using the stolen information and where they are.  Identity theft has become one of the most prevalent crimes in the U.S. with over 12 million victims annually. 

Mexico Sets Homicide Record in May:  New government statistics indicate that May was the bloodiest month in Mexico in twenty years with 2,186 reported murders.  Peter Orsi and Lisa Martine Jenkins of the Associated Press report that there have been 9,916 murders in the country during the first five months of 2017, over 2,000 more than at the same point last year.  In 2011, the Mexican government launched a military offensive against the drug cartels operating in the country.  Officials believe that this effort and ongoing wars between the cartels are responsible for the increased killings.  

Q: When Is It OK to Commit Murder?

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A:  When the murder victim is a white frat boy.

If you find that repulsive, good for you.  But that's the reaction of the poisonous, race-obsessed ideology behind much of the radicalized thinking on crime now in vogue in academia and the "entertainment" industry.

I take my cue here from the recent horrible death of 22 year-old Otto Warmbier, formerly a University of Virginia student, who was returned declining and comatose from his captivity in North Korea.  He died a few days ago.  As noted in this Commentary article, "Warmbier's death at the hands of a criminal regime is perhaps the most vicious crime directed against an American citizen by [North Korean] authorities since two U.S. officers were murdered by an axe-wielding mob...in 1976. This is an offense to American dignity and sovereignty--and it is proving a revealing moment in American politics. Warmbier's capture and his fate have exposed again the utter moral perversion of the social justice left."

The following are two examples of reactions to Warmbier's treatment*  normal people could not imagine would be given by anyone with decency.  But that's because normal people don't usually read what passes for intellectual refinement on the "social justice left."

[Ed. note:  I originally said "death," but our first commenter correctly notes that Warmbier, though in captivity, was still alive when the comments were made].


Pot and Auto Accidents

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Solomon Banda reports for AP:

A recent insurance study links increased car crash claims to legalized recreational marijuana.

The Highway Loss Data Institute, a leading insurance research group, said in study results released Thursday that collision claims in Colorado, Washington, and Oregon went up 2.7 percent in the years since legal recreational marijuana sales began when compared with surrounding states.

Legal recreational pot sales in Colorado began in January 2014, followed six months later in Washington, and in October 2015 in Oregon.

"We believe that the data is saying that crash risk has increased in these states and those crash risks are associated with the legalization of marijuana," said Matt Moore, senior vice president with the institute, which analyzes insurance data to observe emerging auto-safety trends.
As always, we should avoid jumping to a conclusion based on one study, particularly a correlational study with a small sample.  The HLDI report is here.

Materiality

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Today's theme out of the United States Supreme Court is materiality.  If you describe what happened in a case and people look puzzled and ask "So what?" you have a materiality issue.

Maslenjak v. United States, No. 16-309, involves the crime of lying in the naturalization process.  It is error to instruct the jury that they can convict on finding a false statement without also finding that the falsity somehow contributed to the decision.

Turner v. United States, 15-1503, involves the rule of Brady v. Maryland that prosecutors must turn over to the defense any material exculpatory evidence in their possession.  "Material" in this context means a reasonable probability it would have made a difference in the result.  The Court holds 6-2 that the evidence in this case was not material.

Weaver v. Massachusetts, No. 16-240, involves a claim that the defendant's trial lawyer was ineffective for failure to object to the exclusion of the public (including the defendant's mother) from an overcrowded courtroom during jury selection.  Violation of the public trial right is a "structural error," reversible without any showing that it mattered, but that claim was forfeited by failure to object.  Ineffective assistance of counsel is reversible only upon a showing of "prejudice" which means the same thing as "materiality" in the Brady context, i.e., a reasonable probability it made a difference.  The Court held that the prejudice requirement continues to apply even when the underlying error is "structural," or at least this particular subspecies of structural errors, and no prejudice has been shown here.

Justice Kennedy wrote the opinion of the Court.  Justice Thomas wrote a concurring opinion.  Justice Alito wrote an opinion concurring in the judgment.  Justice Gorsuch joined all three.  Justice Breyer dissented, joined by Justice Kagan.  CJLF filed an amicus brief in this case, written by Kym Stapleton.
As my last post makes clear, I do not believe religion ought directly dictate secular criminal justice policy.  I am very much of the view, however, that it is the moral anchor of many people's view of wrongdoing, error, punishment and redemption.

One of the most insightful thinkers on these subjects is my friend Will Haun, a certain leader in the next generation of conservative legal analysts.  I want to bring you his keynote remarks at the Napa Institute Symposium on "Public Policy and our Catholic Faith," held last March.  It was sponsored in part by the Koch Foundation, an organization I often oppose on policy specifics but greatly admire for its consistent stand for freedom.

Will started out:

Thank you very much for inviting me to speak at this excellent symposium on such an important topic.  And thank you, Jenny, for such a kind introduction.  It reminds me of one of my favorite New Yorker cartoons.  Pictured in the cartoon is a towering statue of a well-dressed man boldly pointing toward the horizon.  Below the man is an inscription that says "Solider, Statesman, Author, Patriot," and then, in smaller font below, it, "But Still a Disappointment to His Mother." 

Recycled Psychobabble

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It is not out of an intent to demean religion, or any denomination thereof, that I bring you this latest recycling, for the hundredth or two hundredth time (I've lost count), of the Bible-thumping cliches of people enraptured with the notion that they have superior moral wisdom.

They don't.  Indeed, they have next to no idea of what they're talking about.

A sample from near the beginning:

"Our country's overreliance on incarceration fails to make us safer or to restore people and communities who have been harmed," said James Ackerman, CEO of Prison Fellowship Ministries, at a June 20 news conference at the National Press Club.

Well, sure, overreliance on incarceration is a bad thing (by definition), but if what Ackerman means is considerably increased reliance on incarceration, then no part of his statement is true:  The significant increase in incarceration over the last 25 years had made us far safer, and that increased safety has disproportionately benefited the communities that were harmed, if not nearly destroyed, by rampant violent crime, much of it bred by drug trafficking.

I expect pious deceit from the NYT and the NACDL, but I would have hoped for something better from a group that trades on its claim to moral superiority.

Prop. 66 Oral Argument Video

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The video of the June 6 oral argument in California's Proposition 66 case, Briggs v. Brown, is now available.  The court's argument archive page is here.  The argument is preceded by a tribute to Justice Werdegar, who is retiring this summer.  It begins 27 minutes into the video.  My 10 minutes begin at the 1:11 mark.  My day-after post on the argument is here.




Jury Nullification At Work

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How many times we have heard, mostly from libertarians, that juries should be free to disregard what they view as an unjust law, or even merely an over-reaching prosecution, to acquit a defendant even if, on the facts presented and the law given by the judge, the argument for a guilty verdict is emphatic?

The Internet is livid that a policeman was acquitted in the shooting death of Philando Castile.  The NYT has this (relatively restrained) story.

I cannot be sure, as no one outside the jury room can be sure, of the reason for this acquittal, which seems as wrong to me as it does to almost everyone commenting on it. From what I can see, even if the officer responded in panic and emotionally-charged over-reaction, he's still guilty of manslaughter.  I saw many cases over my years as a prosecutor, and the only "justification" I can discern for the outcome here is that the jury thought a police officer, always subject to mortal danger even in a "routine" traffic stop, should not be convicted no matter what.  This view may be seen by some as plausible or even compelling.  It is not the law.

This is the reason I've always argued that jurors must put aside personal views, no matter how strongly held, and follow the law, no matter how wrongheaded they think it to be. The alternative is scattershot vigilantism, the very thing civilization was developed to avoid.

Nullification fans, do you like your handiwork?

News Scan

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CA Supreme Court Upholds Death Sentence:  In a 5-2 decision announced Monday the California Supreme Court upheld the death sentence of a man who killed a Fresno jewelry store owner during a 1996 robbery.  Associated Press writer Sudhin Thanawala reports that the defendant, Vaene Siccongxxay chose a bench trial rather than a jury trial, leaving the judge to decide whether the murder during a robbery made him eligible for a death sentence.  On appeal he claimed that he should have been instructed that he was waving his right to have that decision made by a jury.  The Court held that while the judge did instruct the defendant that by choosing a bench trial he was waving his right to a jury finding in every aspect of his trial and sentencing, after which both the defendant and his attorney agreed to waive those rights, the judge still errored by not specifically saying the this included the finding of the robbery allegation. The Court found that the error was harmless.   

Half of Illegals in Oregon Jails for Sex Crimes:  In a report that may have national implications, statistics from the Oregon Department of Corrections and ICE indicate that nearly half of the illegal aliens held in Oregon jails have been arrested for sex crimes.  Paul Bedard of the Washington Times reports that the crimes involved were rape, abuse, and sodomy, with most of the defendants being held in Salem and Portland area jails.  According to researcher David Olen Cross, over 83% of the illegals held for these crimes were from Mexico.  In a related LA Times story, Los Angeles County Sheriff Jim McDonnell is taking heat for opposing a "Sanctuary State" bill moving through the state legislature which would prohibit police agencies from cooperating with Immigration officials to identify illegals in local jails for deportation.  

News Scan

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Salvadorian Held in Muslim Girl's Murder:   A 22-year-old immigrant from El Salvador was arrested Sunday for the murder of a 17-year-old Muslim girl in northern Virginia.  of the Washington Post report that the victim and a group of friends were walking to a Mosque Sunday morning when police say that a member of the group on a bicycle had an encounter with a motorist who exited his car and chased them with a baseball bat.  The first person he caught up to was Nabra Hassanen.  Her body was later found in a nearby pond. She had been beaten to death. The car and the suspect's description led police to Darwin Martinez.  While the Post neglected to mention it, the Associated Press and Fox News have reported that ICE has placed a detainer on Martinez for entering the country illegally.  

Huge Fentanyl Bust in San Diego:  Federal agents seized nearly 100 pounds of fentanyl from a car and a house in San Diego County on Monday. David Hernandez of the San Diego Union-Tribune reports that this was the largest amount of the powerful synthetic drug ever seized in the U.S.  Three people have been indicted on charges of possession with intent to distribute.  Fentanyl is up to 50 times more potent than heroin and even trace amounts can be fatal.  DEA investigators believe that the drugs were produced in Mexico and smuggled across the border for sale in the U.S.  According to the New York Times, the annual increase in fatal drug overdoses recorded last year was the highest in U.S. history.
"Are you now or have you ever been a member of the Communist Party Federalist Society?"

It's time for me to come clean.  I am a member.  I meet in an undisclosed location to back-channel judicial nominees to the Trump Administration, which bows to my orders.

Honestly, you can't make this stuff up.

P.S.  My wife is a co-founder of the Federalist Society.  This was back in the Eighties, when she was a University of Chicago law student in then-Prof. Scalia's class. I believe she was the first person he hired as a clerk when he went to the Supreme Court.  And yes, that is bragging. 
With the exception of  a seven year period from 1994-2001, public confidence in government has been dropping almost steadily since Jack Kennedy was President. It is in part for that reason that insistence on strict ethical standards in high-profile and politically-charged cases must be maintained.  As I have argued, public confidence in the Special Counsel's investigation of Donald Trump will be difficult to preserve if the present Counsel, Bob Mueller, stays on despite mounting evidence that he's close friends with his star witness (yet potential subject), Jim Comey.  See my posts here and here.

More evidence of that relationship has emerged in the views of an FBI agent who worked with both men.  The evidence is sufficiently persuasive that CNN's legal analyst has said that Mueller's remaining in his position "could be problematic."  For an outlet as hostile to Trump as CNN, that is strong language indeed.


Freezing Bivens In Place

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Can and should the federal courts invent new kinds of lawsuits, creating causes of action that Congress has not authorized?  The U.S. Supreme Court's thinking on that question has evolved over the years, and it took another step today.

Courts have been creating causes of action for a very long time.  The English courts did so before there even was a Parliament as we now know it, and these are the "common law" causes of action we learned in the first year of law school.  They created common law crimes as well.

But courts do this less than they used to, and the federal courts do less than the state courts.  Many states no longer have common law crimes; the federal courts have never been thought to have the power to create them.

During Reconstruction, Congress created a cause of action for people whose constitutional rights are violated by state and local officials, but not by federal officials.  In 1971, the Supreme Court created such a cause of action under the banner of "for every wrong there is a remedy."  That was the Bivens case, involving an alleged Fourth Amendment violation by federal agents.  In the next few years, the Court expanded Bivens a couple of times to new areas, but then it stopped.

The present Supreme Court term has two cases presenting the questions of what it means to extend Bivens to a new area and whether to do so.  One of those cases was decided today by a short-handed six-Justice Supreme Court.  If the approach of the four-Justice majority is reaffirmed in the next case, then Bivens is effectively frozen in ice.  It will exist within its current scope, but it will not be extended, and nearly any variation on existing themes will be considered an extension.
The WSJ has this editorial, with the above headline and the subhead "The left would show jihadists how the cops prevent attacks."

The New York City Council is the distilled political essence of modern progressivism, which means it can be dangerous to public health and safety. This summer tourists can see more New Yorkers relieving their bladders in public thanks to the council's reduction in penalties for crimes against public order, and now the council wants to expose the city's antiterror secrets.

A new bill would require the New York Police Department to disclose and describe all "surveillance technology," which it defines as "equipment, software, or system capable of, or used or designed for, collecting, retaining, processing, or sharing audio, video, location, thermal, biometric, or similar information." The cops would have to post this information online annually and respond to public comments.

News Scan

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NY Considers Helping Terrorists:  Ninety days before utilizing surveillance technology the New York Police Department will have to post a description of how it works and how it will be used on the internet, if the city council adopts the "Public Oversight of Surveillance Technology (POST) Act.  This brilliant idea is discussed by Heather MacDonald in Sunday's City Journal.  While the proposal is billed as enhancing New York's sanctuary city credentials, MacDonald notes that it would actually impede law enforcement's ability to identify and intercept terrorists.  But supporters on the city council insist "Surveillance technology often has a disproportionate, harmful impact on communities of color."  The Brennan Center, which authored the proposal is also pushing for its adoption in Seattle and San Francisco.  

One Death Sentence Upheld, One Overturned:  As Kent noted in his post below, the U.S. Supreme Court reinstated the death sentence of Percy Hutton, who in 1986 murdered one man and shot another because of a dispute about a sewing machine. Cory Shaffer of Cleveland.com reports that the high court's per curiam opinion overturned a Sixth Circuit ruling that found a jury instruction given during the sentencing hearing caused an inadequate finding on the aggravating circumstances.  Meanwhile, the Florida Supreme Court overturned the death sentence of a double-murderer last week ruling that his attorneys failed to adequately investigate mitigating evidence which might have convinced jurors to sentence him to life.  Andrew Pantanzi of the Florida Times Union reports that in 2004 Thomas Bevel murdered a fellow drug dealer, his 13-year-old son, and attempted to murder a woman who was visiting the victims.  The woman and Bevel's girlfriend, who has also in the house during the murders, testified at the trial.  The Florida court's 4-3 ruling held that the defense attorney for the sentencing hearing should have hired a mitigation specialist to fully investigate Bevel's troubled childhood, drug abuse, and mental health problems.  A former circuit court judge who had rejected this claim wrote, "This Court should not and will not codify or institutionalize the burgeoning cottage industry of former paralegals or social workers who are ardent death penalty opponents who declare themselves to be 'mitigation experts' and demand exorbitant fees from the judicial system for doing the work that any competent paralegal or investigator could do for one-third the cost."     

Busy Decision Day at SCOTUS

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Here are some quick notes on this morning's decisions from the U.S. Supreme Court.

Jenkins v. Hutton is a per curiam reversal of the Sixth Circuit for wrongly overturning a death sentence.  The Sixth misapplied the "fundamental miscarriage of justice" exception of Sawyer v. Whitley.  On a quick read, though, it appears the opinion may do more to muddy the waters about the distinction between death penalty eligibility and selection than it does to clarify them.

McWilliams v. Dunn ducks the question of whether, when a defendant qualifies for appointment of an expert under Ake v. Oklahoma, the expert must be a defense expert, not a neutral.  The court holds that the state court in this case did not meet the basic requirements of Ake.  Justice Alito's dissent blasts the majority for proceeding in this manner, ducking the question the court agreed to decide and deciding on a question it had denied review on.  I am pleased to see Justice Gorsuch joining this dissent.

Ziglar v. Abbasi, decided by a six-member court, declines to extend civil suits to suing high government officials for detention policies in the wake of 9/11.  Congress has not authorized such suits, and the court continues to decline to extend its Bivens line of cases into new territory.

Packingham v. North Carolina decides that the state went too far in banning convicted sex offenders from social media sites.  No dissent on the result.  Justice Alito, joined by the Chief Justice and Justice Thomas, concurs in the result, expressing concern about the sweeping rhetoric of the Justice Kennedy's majority opinion.  Justice Gorsuch did not participate in this case.

The next expected decision day is Thursday.
A:  Because Mueller said so publicly.

In his remarks at the White House ceremony where President Obama introduced Comey to succeed Mueller, Muller said this:

I want to commend the President for the choice of Jim Comey as the next Director of the FBI. 

I have had the opportunity to work with Jim for a number of years in the Department of Justice, and I have found him to be a man of honesty, dedication and integrity.  His experience, his judgment, and his strong sense of duty will benefit not only the Bureau, but the country as a whole. 

Here's the White House transcript

The idea that Mueller could objectively evaluate Comey  --  the chief witness to President Trump's asserted obstruction of justice in the FBI's investigation  --  is, not to put too fine a point on it, nonsensical.

But wait, there's more.

Who Would Replace Mueller?

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I argued in my USA Today op-ed that Bob Mueller is too close to his probable star witness, Jim Comey, to serve as the Special Counsel looking into President Trump's asserted conflict of interest in firing Comey, and discouraging Comey from pursuing an investigation of former National Security Adviser Mike Flynn (assuming arguendo that this happened).  As I noted, under the ethics statutes and regulations that govern officers of the Justice Department, Mueller has a long-term relationship with Comey that "may result in a personal ... conflict of interest, or the appearance thereof" (emphasis added).

While I think this language is sufficient per se to require Mueller to step aside, I also believe that, if there were any doubt, the statute should be given a broad reading in the present climate.  The country is inflamed in ways that seem increasingly to produce rancor and violence.  In this atmosphere, it's imperative that the public see that ethics rules are followed to the letter, thus to promote maximum faith in the outcome of the Special Counsel's investigation no matter what it is.  That is not realistically possible if the chief prosecutor has a years-long friendship with his main witness, and with it a strong, pre-existing opinion of his credibility.  If that happened in the investigation and prosecution of an ordinary citizen, his defense lawyer would raise the roof, and properly so. Trump deserves the same treatment the man on the street would get, not less and not more.

I have been asked who should replace Mueller.  There are several possibilities.

Associate Attorney General Rachel Brand

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Politico has an article with a short profile of Associate Attorney General Rachel Brand. I've known Rachel for years and, like a couple of Harvard Law professors quoted in the article, I'm a big fan of hers.

The occasion for the article is speculation (and that's all it is) that Deputy Attorney General Rod Rosenstein will recuse himself during the Russia investigation because he wrote the memo outlining the reasons then-FBI Director Comey should be replaced. Rachel is next in line at the Department. I tend to think this is so much space-filler, but one way or the other, DOJ benefits from having Rachel at a high level.

A taste of the article:

Brand has enjoyed a glittering career, one that marked her early for a top job at the Justice Department in a Republican administration. Raised with three siblings on an Iowa farm, she graduated from the University of Minnesota in 1995 and, three years later, from Harvard Law School.

She was active in the Federalist Society, the conservative lawyer's group that has long been a talent pool for anyone interested in serving in the administration of a Republican president or on the Supreme Court. Brand was part of the legal team representing Bush in the Florida vote recount in 2000. She went on to be hired as a Supreme Court clerk to Justice Anthony M. Kennedy before joining Bush's Justice Department. There, she helped shepherd the Supreme Court nominations of John Roberts and Samuel Alito.

CNN Tonight

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I will be on CNN tonight on a panel discussing whether Special Counsel Bob Mueller is too personally close to a potential key witness, Jim Comey, to continue to serve.  I believe the panel will start at 8:30 EDT and run for perhaps half an hour.

My USA Today op-ed addressing this question is here.

UPDATE:  To anyone who inconvenienced himself or herself to watch, I apologize.  It was not anything like the discussion I thought it was going to be.

The final speaker rebutted the only point I was given the opportunity to make by saying that the personal relationship between Mueller and Comey did not matter, because it started with a professional or business contact.  That is incorrect.  Under the ethics rules, it is simply the fact of a personal relationship between the prosecutor and his witness, not its origin, that matters.  No one on the segment (all seven minutes of it) denied that Mueller and Comey are friends, or that this would cause a reasonable person to question Mueller's objectivity in evaluating Comey's prospective testimony.

News Scan

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Escaped Murderers Caught:  Two Georgia prison cellmates who escaped early Tuesday from a inmate transport bus after killing two corrections officers, have been captured in Tennessee.  Nicole Chavez of CNN reports that after sixty hours on the run convicts Ricky Dubose and Donnie Rowe were caught by an armed homeowner as they attempted to steal his car.  When officers arrived the pair were face down on the homeowner's driveway being held at gunpoint.  The manhunt covered 260 miles as the criminals stole five cars, robbed two homes and terrorized an elderly couple. The pair, who had been serving prison time for armed robbery and assault, will now be charged with the murders of the two corrections officers, a death penalty offense. 

Probationer Arrested for Selling Drugs to Students: After Claremont, CA police received a tip from high school students that two men were selling cocaine and other drugs to students at their school, a police investigation located the suspects. Ashley Ludwig of the Claremont Patch reports that during a traffic stop last Tuesday police arrested Juan Rios and Eric Culverson for  possession of illegal narcotics.  A search of Culverson's residence uncovered more drugs including Ecstasy and pills "targeted for sales to High School aged children."  Culverson, 28, had been convicted of a previous drug charge, but under AB109, California's Public Safety Realignment, he was sentenced to light supervision on probation.  Rios, 36, also a repeat offender, was driving on a suspended license and had outstanding arrest warrants.  Under current California law, it is unlikely that either drug dealer will be eligible for a prison sentence.   

News Scan

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CA Probationer Arrested With Multiple Felonies: Jaime Benjamin Garcia of Moreno Valley was arrested May 31 after officials found illegal substances in the vehicle. Trevor Montgomery of Valley News reports that Garcia was booked on suspicion of seven felonies related to weapons and narcotics possession, possession of a controlled substance, including being a felon in possession of a firearm and ammunition and multiple prior state prison enhancements. Sergeant Morovich discovered that Garcia is on PRCS probation for auto theft. After searching his car, deputies seized a loaded .375 Smith & Wesson revolver, additional ammunition and over 8 grams of methamphetamine. 

Justice Delayed: Sentenced to die in 1984 for the murder of Mary Jane Stout, John Stumpf may finally face the consequences in November 2018.   Andrew Welsh-Huggins of the AP reports that the victim's husband 87-year-old Norman Stout has been waiting over three decades for the execution of his wife's killer. In recent years, one source of delay has been legal challenges to lethal injection protocol, but in Stumpf's case the years of appeals challenging his attorney, the prosecutor, and blaming his accomplice have dragged through the courts for decades. The day of the crime, the Stouts had just finished dinner when there were two men at the door asking to use their phone; once the men entered, they announced the robbery. After regaining consciousness from shots he received from Stumpf, Stout heard the four gun shots that killed his wife; he says "I can't imagine the pain...when she was shot.  I want him to feel some pain".


Next Time, We'll Steal Something Else

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On a day when a little humor could come in handy, take a look at this story.

It is an only in Silicon Valley kind of story, as police say high-tech thieves were caught stealing thousands of dollars worth of GPS tracking devices from a Santa Clara tech company.

"These devices kind of look like cell phone chargers, so they probably thought they had some kind of street value," Roambee Corporation Co-Founder Vidya Subramanian.....

"The moment we realized they had a box of trackers, we went into recovery mode," Subramanian said. "We notified the police and equipped them to track the devices, and in about 5 or 6 hours, it was done."

Before making off with about $18,000 worth of the devices, the thieves grabbed a beer out of the fridge and cut themselves in the process, leaving fingerprints and blood evidence.

Hat tip to Prof. David Bernstein of Antonin Scalia Law School for pointing out this article, a long but illuminating study about why it's misleading to compare murder rates in the United States with those in other "developed countries."  It starts:

Much of the political thinking about violence in the United States comes from unfavorable comparisons between the United States and a series of cherry-picked countries with lower murder rates and with fewer guns per capita. We've all seen it many times. The United States, with a murder rate of approximately 5 per 100,000 is compared to a variety of Western and Central European countries (also sometimes Japan) with murder rates often below 1 per 100,000. This is, in turn, supposed to fill Americans with a sense of shame and illustrate that the United States should be regarded as some sort of pariah nation because of its murder rate.

Note, however, that these comparisons always employ a carefully selected list of countries, most of which are very unlike the United States. They are  countries that were settled long ago by the dominant ethnic group, they are ethnically non-diverse today, they are frequently very small countries (such as Norway, with a population of 5 million) with very locally based democracies (again, unlike the US with an immense population and far fewer representatives in government per voter). Politically, historically, and demographically, the US has little in common with Europe or Japan.

Just How Warped Is Legal Academia?

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I ask this question because, at random, I looked at the two most recent entries on Sentencing Law and Policy.  Here they are:


US Attorney for D.C.

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Orin Kerr has this post at the Volokh Conspiracy on the reportedly forthcoming nomination of Jessie Liu for U.S. Attorney for the District of Columbia.

D.C. is a unique district.  Although Congress provided the District with its own elected government and its own state-court-like court system, it did not provide a locally chosen prosecutor.  The U.S. Attorney prosecutes both the inherently federal offenses in U.S. District Court and the "local" offenses (federal only because D.C. is a federal enclave) in the D.C. Superior Court.

The DoJ ranks of the Trump Administration are slowly filling, but it is taking a long time.

News Scan

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Crime Out of Control in Baltimore: Following eight shootings Monday that left six people dead, the Baltimore Police Commissioner, Kevin Davis, intends to flood the streets with officers.  Kevin Rector and Jessica Anderson of the Baltimore Sun report that officers will be working 12-hour shifts with every available officer on patrol.  Davis said that gun offenders in Baltimore "do not fear arrest, they do not fear a successful prosecution, and quite frankly, they don't even fear a damn guilty verdict," because they often get off lightly.  He has asked the legislature to increase the consequences for gun criminals by making the illegal possession of a firearm, which is currently a misdemeanor, a felony.  The Chairman of the legislature's Judicial Proceedings Committee has said that such legislation is "not the answer." 

Crackdown on MS-13 in New York:  Agents from Federal Immigration and Customs Enforcement (ICE) and the Department of Homeland Security are working together to round up members of the brutal MS-13 gang in the Empire State. Kaja Whitehouse of the New York Post reports that 39 members of the gang have been arrested over the past month.  Those wanted for crimes face prosecution while the rest will be deported.  The federal agencies joined with the NYPD, the Suffolk County PD and the Nassau County PD to launch "Operation Matador" a month ago.  The goal is to eliminate the gang, which has been responsible for a string of brutal murders in recent months.  

OK Sentencing Reform May Stall:  An effort to relieve prison costs in Oklahoma and change the state's sentencing process may be stalled as the deadline for passing bills is this Friday.  Aaron Brilbeck of News9 reports that the one legislator, Scott Biggs, is holding up the reforms because he wants an interim study to look for unforeseen consequences caused by the legislation.  While the Governor is opposed to the delay, Biggs wants the state to define which crimes should be classified as violent to assure that the so called non-violent offenders the reforms would spare from prison are not dangerous criminals.  

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