Teens, Confessions, and Culpability

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Maura Dolan has this article in the L.A. Times about the controversies regarding police questioning of teenagers and, in a few cases, children about serious crimes.  Some people are arguing for bright-line rules to the effect that police can never question young people below some arbitrary cut-off age without a lawyer present, which for all practical purposes means they can't question them at all.  As Justice Robert Jackson noted long ago, "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."*

A related issue is the culpability of minors for crimes.  The story says,

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said he would like Miranda rights to be eliminated and all interrogations videotaped. He called the brain research about adolescents' legal culpability "a bunch of hooey."
Not quite.  There is research about adolescents' brain development and mental capacity, and then there are extrapolations from that research about adolescents' legal culpability.  It is the latter that I said are "a bunch of hooey."  For example, there is no doubt that a process of central nervous system development called myelination is a work in progress in the late teen years.  However, there is a great deal of doubt whether this fact and other products of research support the kinds of sweeping conclusions in cases such as Graham v. Florida and Miller v. Alabama.

On the Miranda point, the Supreme Court in Miranda expressly said that the procedures it laid out were not the last word, and it would be competent for legislatures to substitute other procedures to protect the right against compelled self-incrimination.  Video recording of interrogations is an alternative that should be considered.

News Scan

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First Freddie Gray Trial Begins:  Stakes are high in Baltimore as the trial for one of six police officers indicted in the April death of Freddie Gray begins Monday with jury selection.  Juliet Linderman of the AP reports that Officer William Porter, accused of failing to get medical help for Gray during a 45-minute trip in a police van, faces charges of assault, manslaughter, reckless endangerment and misconduct in office.  The five other officers will be tried separately beginning in January, and trials are expected to last until the spring.  Gray, a 25-year-old black man, was arrested in April, initially handcuffed and placed in the back of the police van, and later had his legs shackled while the van made several stops over the course of 45 minutes.  He was discovered unresponsive and died one week later of a spinal injury, sparking rioting and unrest that continues to plague the city.  An acquittal could result in further protests and unrest while a conviction could damage the city's police department.  "The future of the city is at stake," says Police Commissioner Kevin Davis.

Less Debate, More Action Needed for Refugees:  In a radio interview, border Congressman Henry Cueller (D-Laredo) said that rather than debate over the fate of Syrian refugees, the U.S. needs a plan of action for handling the coming flood of people from the Middle East, as they are already showing up at the southern border.  WOAI reports that two groups of Syrians, mainly families, have already entered the U.S. by crossing over from Mexico and claiming political asylum, adding to an increased surge in asylum-seekers from Central America as well as a large number of Cubans flooding into the U.S.   When refugees arrive at the southern border, standard procedure places them in detention centers, though many are released on bonds or ankle monitors after only a few months.  Cueller suggests that the U.S. collaborate with Mexico to make it more difficult for refugees to gain access to the U.S., noting that they successfully stopped 174,000 people last year attempting to enter the U.S.

U of C Threat Linked to Laquan McDonald Shooting:  An online threat causing the cancellation of classes and closure of the University of Chicago Hyde Park campus Monday has resulted in one person being taken into custody.  Jodi S. Cohen and Lolly Bowean of the Chicago Tribune report that the arrested individual is a student at the University of Illinois at Chicago, and posted a threat online outlining his plan to shoot and kill 16 white students and/or staff members in the campus quad, citing last year's fatal shooting of 17-year-old black teenager Laquan McDonald by white Chicago police officer Jason Van Dyke.  Van Dyke shot McDonald 16 times and was charged last week with first-degree murder.  

Burglar Stuck in Chimney Died when Fire is Lit:  A burglar stuck in the chimney of a California home died after the homeowner lit a fire in the fireplace.  Fox News reports that 19-year-old Cody Caldwell is believed to have climbed into the chimney Friday night to burgle the Central California home, and was stuck for almost 24 hours when the male homeowner returned home Saturday afternoon and lit a fire.  The homeowner attempted to put out the fire when he heard Caldwell screaming, and when firefighters arrived and dismantled the chimney, it was too late.  Caldwell died of burns and smoke inhalation.  His criminal history was not immediately available.

News Scan

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Police Agencies Lose Military Gear:  Surplus military equipment which has been donated to local police agencies since 1997, is being recalled by the Obama Administration.  Adam Shaw of Fox News reports that an Executive Order issued by the President following the 2014 riots in Ferguson, Mo, requires police departments to return armored personnel carriers, weapons, ammunition, and protective gear in order to reduce concerns about the militarization of police, which he said gives people the impression that they are an "occupying force."  Sheriffs are speaking out, noting that the personnel carriers protect officers and are used for rescues.  One Alabama Sheriff told Fox News " As has been demonstrated in Paris....the response to those kind of attacks in the U.S. will be local law enforcement and whatever resources we have on hand now will be what we can bring to the table if that happens."   

Missouri High Court Overturns Murder Conviction:  In a 4-3 ruling announced yesterday, the Missouri Supreme Court overturned the murder conviction and death sentence of Reginald Clemons for the 1991 rape and murder of two sisters.  Jim Salter of the Associated Press reports that Clemons was less than two weeks from execution in 2009 when a federal appeals court granted a stay based upon concerns about the lethal injection process.  A special master appointed in 2012 to review the case reported that he found no direct evidence of Clemons' innocence but determined that procedural errors and the withholding of evidence by prosecutors were not the harmless errors characterized by earlier court rulings.  During that review Clemons took the fifth 30 times.  Clemons and three accomplices were found guilty of the 1991 robbery, gang-rape and the murder of two sisters by throwing them off an abandoned bridge.  The victims' cousin, a firefighter, who witnessed the attack, was forced to jump off the bridge, but he survived to identify Clemons and his accomplices.  The opinion is this case (Reginald Clemons v. Steve Larkin) is worth reading.
The tape of the Federalist Society teleforum I had the opportunity to join with Judge Alex Kozinski is not yet available.  When it is, I'll post the link.

In the meantime, I can repeat only half the discussion, to wit, my opening statement.  (Judge Kozinski did not prepare a written opening).

Our debate continued what has become a national examination of some extremely important topics in criminal law, including what some call "incarceration nation," imploding crime rates, policing and police behavior, the reliability of forensic evidence, the increasing number of non-mens rea offenses, prosecutorial immunity, and plea bargaining, among many others.

Although the Judge and I had our disagreements, the breadth and sharpness of his knowledge was something to behold.

My opening is below.
Opinion Research Corporation, polling Nov. 19 - 22, asked a sample of 1008 adults the following:  "Thinking about the criminal justice system, which comes closer to your view  --  that we have too many drug traffickers in prison for too long, or that we don't do enough to keep drug traffickers off the street?"

The result was not close:  58% said we're not doing enough to keep traffickers off the street, while only half that number, 30%, said we have too many traffickers in prison for too long.

The poll is devastating to the sentencing "reform" bills now pending in Congress. Those bills would reduce sentences for drug convictions (the Senate bill would do so retroactively as well), and the overwhelming majority of prison sentences imposed for federal drug offenses are for trafficking, not mere possession or use.

In other words, the American public, by a bigger margin than in any Presidential election in history, wants more done to keep traffickers off the street, not more done to put them back there.

Memo to Congress:  Wake up.

News Scan

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4th Jury Sentences Oregon Killer to Death:  For the 4th time since 1989, an Oregon jury has sentenced serial murderer Dayton Leroy Rogers to death.  Steven DuBois of the Associated Press reports that Rodgers was convicted of the 1980s torture and murder of eight women.  He was dubbed the Molalla Forest Killer because he dumped his victim's bodies in a forest near the small town of Molalla.  Rogers has also received a life sentence for the 1987 stabbing murder of a Portland woman and has been tied to the murder of another woman whose body was discovered in 2013.  The Oregon Supreme Court has overturned Rogers' death sentence in 1992, 2000, and 2012.  Perhaps that court should just do away with those annoying sentencing juries.

Lifelong Child Predator Gets a Break in PA:  An Allentown man who began his criminal career with the 1965 rapes of an 8-year-old boy with cerebral palsy and his 9-year-old brother, will serve a short term in county jail before release on probation for stalking a 13-year-old boy earlier this year.  Laurie Mason Schroeder of the Morning Call reports that Clyde Ruppel had previously completed a 15 year prison sentence for the multiple rapes of two 12-year-old boys at public parks in Doylestown.  He was not under parole supervision at the time of the current crime because he served the entire time of the prior sentence behind bars.  He also had convictions for masturbating in front of children and showing them pornography.  At sentencing, the Lehigh County prosecutor called Ruppel "a pedophile who will never stop," and asked the judge to sentence him to five years in prison, but the judge agreed with the public defender who said "the community is better served if he is under supervision," rather than behind bars.  

Can DNA Testing Be Too Sensitive?

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Forensic DNA testing has gotten better and better over the years, giving us definitive answers from samples that previously would have been too small or too degraded.

Generally, that has been a good thing.  For example, the "wrongly executed" Roger Coleman and the "exonerated" Timothy Hennis were both proved guilty by conclusive DNA matches after the technology improved.

However, DNA testing is now getting so sensitive that it can pick up a person's DNA from a place he has never been or an object he has never touched by transfer from someone else.  Ben Knight has this article at Yahoo News.

The problem, of course, is not in the science but in the interpretation.  The answer to the rhetorical question of the caption is no.  DNA testing cannot be too sensitive, but the results of ultrasensitive tests must be interpreted with great caution.
I noted here that tomorrow, Tuesday November 24 at 3 pm EST, Judge Alex Kozinski and I will be talking over the failings (or successes) of the criminal justice system.  After introductory statements of 10 to 12 minutes each, we'll be taking audience questions.

The call-in number is 888-752-3232.  

Neither of us has much of a reputation as a wallflower, so if you have something about the system that's been bothering you, now is the chance to speak up with a question.
 Melissa Korn and Douglas Belkin report in the WSJ:

Student protests over racial grievances on college campuses gained momentum this past week, but they also generated a backlash among classmates who believe protesters' tactics are creating an atmosphere of intimidation designed to stifle debate.

The criticism is bubbling up around the country as protesters have claimed wins in the form of resignations of senior administrators and promises for more resources and better representation for minority groups.

At the University of Missouri, where the protests climaxed two weeks ago with the resignation of the school president, Ian Paris said he was prompted to speak out when classmates told him they disagreed with some of the demands protesters had made but were afraid to speak out.

"If you disagree with anything they're saying, you will instantly be denounced as a bigot and attacked on social media," said Mr. Paris, a 21-year-old senior. "The most jarring part of all this is to see the administration going along with it."
Yup.  I wore a uniform on a college campus for four years in the wake of the Vietnam War.  The people running the universities today are the kindred spirits of the people who gave me static then.  They never did believe in diversity of opinion, despite calling themselves Free Speech Movement and such.  A campus purged of all Politically Incorrect elements was always their ideal.

So if you want to be a rebellious youth, the way to do it is to rebel against Political Correctness, not for it.

News Scan

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GA Inmate Executed:  A Georgia man convicted of raping and murdering a woman he met at a night club over two decades ago was executed Thursday evening after losing a last-minute round of appeals.  The AP reports that a Butts County Superior Court judge, the Georgia Supreme Court, the U.S. Supreme Court and the Georgia Board of Pardons and Paroles all denied 50-year-old Marcus Ray Johnson's challenges and appeals of his conviction for the rape and murder of Angela Sizemore in 1994.  After meeting at an Albany nightclub, Johnson and Sizemore were seen drinking heavily and leaving together.  Sizemore's body was discovered in her SUV the next morning with 41 stab wounds made by a small, dull knife, and she had also been sexually assaulted with a pecan branch.  Johnson's attorney unsuccessfully argued that his life should be spared because doubts remain about his guilt, though prosecutors said that there was no doubt that Johnson is Sizemore's killer.  His execution was the last scheduled execution this year.

Parole Denied for 3rd Chowchilla Bus Kidnapper:  The third man involved in the hijacking of a school bus full of California children almost four decades ago has been denied parole for the 16th time.  The AP reports that 64-year-old Frederick Woods, the last of the three kidnappers still behind bars, was denied parole due to disciplinary infractions, including possession of pornography and contraband cellphones, as well as the testimony of several victims.  The other two convicted kidnappers, brothers James and Richard Schoenfeld, were released from prison in recent years; Richard was ordered released in 2012 by an appeals court and Gov. Jerry Brown paroled James in August.  In July 1976, the three men, who had plotted for over a year to get $5 million ransom from the state Board of Education, kidnapped 26 schoolchildren, aged 5 to 14, and their bus driver near Chowchilla, driving them miles away and burying them in a ventilated underground bunker.  The victims managed to dig themselves out more than a day later.  Woods will be able to apply for parole again in three years.

Obama Action Shields Most Illegals from Deportation:  President Obama's executive actions announced exactly one year ago, including protecting more than 80 percent of illegal immigrants from deportation, are moving forward.  Stephen Dinan of the Washington Times reports that the actions include changes to the legal immigration system, such as making it easier for spouses of guest workers to also find jobs; allowing foreigners who study science and technology at U.S. universities to remain and work in the country longer; pushing legal immigrants to apply for citizenship; and waiving the penalty on illegal immigrant spouses or children of legal permanent residents so they no longer have to go to their home countries to await legal status.  These policies, if adhered to strictly, will effectively shield 9.6 million of the approximately 11.5 million illegal immigrants in the country from any danger of deportation.  Regarding enforcement, Homeland Security Secretary Jeh Johnson, at Obama's direction, said that most "rank-and-file" illegal immigrants would be safe from deportation while energies are focused on serious criminals, gang members and other security threats.  Johnson said, however, that even some illegals with serious criminal offenses on their records could be allowed to stay in the U.S. if mitigating factors exist, such as "deep" family or community ties.  The Obama administration has "truly dismembered the immigration system, from the Border Patrol to the immigration courts," says Center for Immigration Studies policy director Jessica Vaughan. 

The Federalist Society will be hosting a teleforum next Tuesday at 3 pm EST titled, "Pros and Cons:  Our Criminal Justice System at Work."  The participants will be Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit, and yours truly.

The topic is introduced as follows:

Our panelists will discuss the criminal justice system generally, and the role of the prosecutor in particular.  Some argue that, with the weight of the state and its resources on one side, including a deep book of potential crimes, the deck is unfairly stacked against criminal defendants.  Others argue that police and prosecutors act in good faith, and credit them with incapacitating career criminals, trimming recidivism, and causing a plunge in national crime statistics.  Who has the better of the argument?

Judge Kozinski has been outspoken on this subject, see, e.g., his preface here to the 44th Edition of Georgetown Law's Annual Review of Criminal Procedure. 

There will be an opportunity for call-in questions.  A lively time should be had by all.

The Shell Game on the Federal Prison Population

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On Wednesday, the pretend-neutral but actually hard Left Pew Charitable Trusts put out a study titled, "Prison Time Surges for Federal Inmates."  

I did a double take when I saw this, because I know for a fact that the federal prison population is in decline and has been declining for at least the last 24 months (I think it's actually 30 months, but I'm not sure).  I don't know anyone who even disputes this.  So I asked myself what is going on with Pew.

This is what is going on:  The study slams the door at the end of 2012.  The most plausible reason I can think of that Pew headlines with the present tense  --  claiming that prison time "surges"  --  is that its report was timed to coincide with the House Judiciary Committee's approval of the Sentencing Reform Act of 2015.  One of the most important reasons urged in support of that bill is that the prison population, and hence prison costs, are out of control.

It would undermine that rationale for Pew to issue a report titled, "Federal Prison Population Decline Continues," although that would more nearly capture the truth of the matter.

Bottom line:  The Pew report has about the same degree of trustworthiness as Linda Greenhouse's claim that the country has embraced a "widespread de facto moratorium" on executions, when, this year, we have had one every 13 days. 

Agree With Me Or Get Out

Liberal fascism continues its march through the political landscape, now with a pro-pot scattering of Congressmen demanding the removal of DEA Acting Administrator Chuck Rosenberg.  Rosenberg's sin, it seems, is that he said that "medical" marijuana is "a joke."

The Washington Post's story is, "A growing number of lawmakers wants Obama to fire the nation's top drug cop."   The "growing number" is a total of seven (out of 535 senators and representatives) (and the story cites no evidence of "growth").  The story starts:

A bipartisan group of seven lawmakers today called on the president to fire the acting leader of the Drug Enforcement Administration, Chuck Rosenberg. They join nearly 100,000 people who've signed an online petition similarly calling for Rosenberg's removal after he infuriated patients and advocates by dismissing medical marijuana as "a joke" earlier this month.

Rosenberg's statements are "indicative of a throwback ideology rooted in a failed War on Drugs," the letter, spearheaded by Rep. Earl Blumenauer (D.-Or.), begins. 

One might forgive a fellow who was appointed to lead the Congressionally-mandated effort to suppress drug use for not sharing the view that the effort has failed, especially since we have no way of knowing what levels of drug use would be but for that effort.  Still, you get the point.  You either agree with the views of the 1.3% of legislators who signed the letter, or you are unfit for office. 

Who's Getting Out of Prison Early?

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Congress is currently considering legislation that would provide lower sentences and early release to thousand of federal felons. There are many questions to be asked about this proposal.  One of the most important is whether we'll learn anything from California's experience  --  California having, in the last few years, given early release to more prisoners than all the other states combined.

This came about for two reasons.  First was the Plata decision and Gov. Brown's congruent "realignment" program.  Second was Prop 47, which has been in place for a year, and whose poor results have been chronicled in more C&C entries than I can catalog (even while being predictably pooh-poohed by the NYT). 

A central part of the advocacy for both California's release plan and the one being considered by Congress is the firm promise that those released early will be "low level, low risk" offenders.

Do you believe that?  Do you believe that the people in government who  -- sentencing reform advocates insist  --  have spent decades making error-filled decisions about whom to imprison and for how long will now make spot-on decisions about whom to release and how early?

Steve Hayward on PowerLine has some disturbing news for the gullible.

More Remuneration for Defense Counsel

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I agree with the defense bar more often than it (and sometimes, I) feel comfortable about, but what can I say? The NACDL is right in believing, among other things, that custodial police questioning should be videotaped, prison conditions improved, and defense lawyers better paid.

Better paid, yes, but not like this.

And before the yelping starts, let me say up front that this is an unusual case for sure  --  but no more unusual than the prosecutor's sending some bedeviled defendant away for 50 years by hiding Brady material, something defense blogs portray as an everyday occurrence.

Yes, yes, the great majority of prosecutors and defense lawyers are honest people, so far as I have reason to believe.  But it does annoy me when the ideological element of the defense bar gets on its high horse, proclaiming that it alone defends the Constitution, while mean-spirited prosecutors come to their offices aiming to tear it up.  The main problem with this stuff is not that it's so false; it's that it's so stultifying.

It was bearing in mind this Holier-than-Thou, We-Are-the-Guardians-of-the-Law attitude that made me laugh when I came to this paragraph in the story about "how defense counsel gets paid:"

The second [client] also knew Benavides from a previous relationship, said the affidavit. During one of her court cases, Benavides approached her and said he knew the judge and could get her an attorney's bond and a fair deal. She hired him, and after she bonded out of jail, Benavides asked her to meet him at a friend's office. Whenever they met there, they would have sex. Once, they had sex in a jury room in the courthouse.

Prosecutor Responds to Linda Greenhouse

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Kentucky prosecutor Ian Sonego emailed Kent in response to this recent post regarding Linda Greenhouse's criticism of CJLF. It reads:


I have been a prosecutor in Kentucky since 1980, and I started working on my first death penalty case in 1981. I worked on many death penalty cases after that. I have been a speaker at the 2015 Kentucky prosecutors death penalty conference and at the 2015 death penalty conference presented by the National Association of District Attorneys. 


The arguments made in the amicus curiae (friend of the court) briefs filed by CJLF (Kent Scheidegger) and the comments in support of crime victims, law enforcement, and the death penalty, as presented by CJLF (Kent Scheidegger or Mr. Rushford) to the news media reporters generally conform to my views and the views of most of the prosecutors that I know. The award that Kent received from the Association of Government Attorneys in Capital Litigation (a multi-state group of prosecutors who prosecute cases in which the death penalty is requested) in recognition of his advocacy in support of the death penalty is also significant. 


Unfortunately, working as a prosecutor does not necessary make someone a good spokesperson in dealing with news reporters. I would not classify myself as a good media spokesperson in spite of my years of work in the court system. 

News Scan

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ISIS Video Threatens NYC:  New York City officials confirmed the release of a new Islamic State propaganda video Thursday threatening attacks on the city, though authorities assure the public that there are no "specific threats."  Jim Michaels of USA Today reports that the video, the authenticity of which has not been verified, shows images of bombs and suicide bombers readying for an attack, with shots of Herald Square and Times Square.  The NYPD released a statement saying that the department is continuing to work with the FBI, Joint Terrorism Task Force and the entire intelligence community to ensure the safety of the city.  Many major U.S. cities, New York City included, ramped up security in the wake of Friday's massacre in Paris that killed 129 people for which the Islamic State claimed responsibility.

Officer Fatally Shot in Car, Possibly Targeted:  A Los Angeles-area police officer was fatally shot in his personal vehicle in the parking lot of the police station where he worked, and law enforcement believes he was specifically targeted.  Veronica Rocha and Richard Winton of the LA Times report that 29-year-old Downey police officer Ricardo Galvez, a five-year police veteran and former Marine, was on duty but out of uniform in his personal vehicle when he was shot late Wednesday by two suspects who first fled the scene in a vehicle, and then on foot when another officer pursued them after hearing gunfire.  Lt. John Corina of the Los Angeles County Sheriff's Department believes that Galvez knew the shooters, as detectives weren't aware of any threats toward the department or its officers prior to the shooting.  A search for the suspects continued Thursday, with three people detained so far.  Galvez is the first Downey police officer to be killed in the line of duty in nearly 35 years.  Update:  The AP reports that three young men, ages 21, 18 and 16, were arrested within hours of Galvez's shooting, in what investigators say was a botched robbery attempt.

Central American Minors Surge Again at TX Border:  Following a months-long decrease in unaccompanied alien children from Central America surging the southern border last summer, a dramatic spike in the number of arrivals has occurred recently, bringing early fall migration levels to the highest ever in at least six years.  Dylan Baddour of Chron reports that according to the U.S. Border Patrol, 7,390 unaccompanied minors, primarily from Honduras, El Salvador and Guatemala, were caught crossing the border in August and September, the most recent months with available data, representing an 85 percent increase over the same period last year.  Migration Policy Institute deputy director Marc Rosenblum credits the spike to continued and increasing violence in Central America, as well as the advent of "door-to-door" smugglers, who operate in Central American villages and offer complete trips to the U.S. for thousands of dollars.  This new network of smugglers has "totally broken down" the seasonality of migration, which used to always decline in the months of August and September.  When solo children are apprehended, they are first sent to shelters, and then placed with friends, family or foster care in the U.S.

Ex-Subway Pitchman Sentenced:  Ex-Subway spokesman Jared Fogle was sentenced Thursday in federal court to more than 15 years in prison after pleading guilty to child pornography and sex crime charges.  Fox News reports that 38-year-old father of two, who is famous for being Subway's spokesman after shedding hundreds of pounds in college eating the chain's sandwiches, agreed to plead guilty in August to one count each of traveling to engage in illicit sexual conduct with a minor and distribution and receipt of child pornography.  Fogle admittedly paid for sex with girls as young as 16 and received child pornography from the former executive director of his charity, Russell Taylor, who secretly filmed 12 minors using hidden cameras in his Indianapolis home.  Taylor has pleaded guilty to child exploitation and child pornography charges.  The 14 victims of Fogle are each receiving $100,000 in restitution.  Subway ended its relationship with Fogle following the July raid of his suburban Indianapolis home.

Is Infallibility Required?

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A major topic in the debate about whether and under what conditions the United States should admit Syrian refugees is whether vetting them can give us ironclad assurance that no terrorists will sneak in among the legions of innocent people.  In essence, many Americans, certainly including conservatives, would like to see an infallible system.

There are reasonable arguments on both sides of the general refugee debate. Obama is correct that American values and history counsel providing a home for those who flee oppression and want freedom.  His critics are correct that, just as America cannot be the world'd policeman, it cannot be the world's homeless shelter. For one thing, as Sen. Jeff Sessions has noted, it would cost $55 billion.

I am not at this point going to take sides on the overall merits.  My point is more limited:  Those who say that we should accept the refugees, while arguing that our vetting system is robust and reliable, admit it's not infallible.

This is wise, since nothing human beings do is infallible.  Liberals taking the refugees' side acknowledge, explicitly or otherwise, that we could make a mistake.  If we do, and the mistake turns out to be Abdelhamid Abaaoud, we could lose dozens or hundreds of innocents to a gruesome terrorist attack.  But we should open our borders anyway, they say, because the risk, though grave, is small, and the payoff large.

Question:  Why do liberals not see the same thing in the death penalty debate?  The stakes are high (as they are in dealing with terrorism) and the system cannot be made infallible (as with vetting for Jihadists).  But the risk of executing the innocent is extremely small, and the payoff  --  the only punishment that even remotely fits the crime  --  large.

This is what abolitionists miss:  Human life does not provide the luxury of absolutes. We live in a world of tradeoff's, a world in which infallibility is unavailable.  Just as in the refugee debate, the outcome depends on whether what you get is worth what you give up.  In keeping the death penalty for ghastly murder, it is.

France Kills A Murderer

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AP reports:

The Belgian extremist suspected of masterminding the deadly attacks in Paris died a day ago along with his female cousin in a police raid on a suburban apartment building, French officials said Thursday, adding it was still not clear exactly how he died.

The body of Abdelhamid Abaaoud, 27, was found in the building targeted Wednesday in the chaotic, bloody raid in the Paris suburb of Saint-Denis and was identified based on skin samples, the Paris prosecutor's office said Thursday.

Congratulations, France.  Well done.

Now stop criticizing us when we kill our murderers.

Too Much Objectivity in Journalism?

Mia Carr, writing in the Harvard Crimson, describes one of the weirdest speeches I have read about in a long time -- a complaint that American journalists are too objective.  Really.  And the worst sin of all, it seems, is quoting CJLF.  I'm not making this up, honest.

I have been practicing in the Supreme Court for almost three decades now, and I have followed press coverage of the Court during that time.  The most biased Supreme Court reporter for any mainstream news organization, hands down, was Linda Greenhouse during the time she covered the Court for the NYT.  There are worse ones for some of the "new media" outfits, but none for the old line media that claim to be straight news sources.  Ms. Greenhouse regularly presented Supreme Court cases from a monotonically Politically Correct viewpoint.

Ms. Greenhouse is delivering a series of lectures at Harvard, and here is her complaint:

In her lecture, titled "Stories," Greenhouse argued that the media's overemphasis on objectivity diminishes its ability to present issues accurately.
*                          *                        *
According to Greenhouse, an even larger problem is the use of what she calls "'he said, she said' journalism," where reporters juxtapose oppositional views, even if the issue cannot be divided neatly into two sides or if one of the views has no merit.

"Presenting two sides without further explication or context...inevitably poses a sense of balance or equivalence," Greenhouse said. She used the example of the debate over the vaccination of children, saying vaccination opponents who have no scientific basis for their claims about the danger of vaccines are often given equal voice in coverage of the topic.
It is true that there are some controversies where one side is completely baseless, and the antivaxx wackos are a good example.  See this post.  But do American journalists really present the two sides of this controversy as equally credible?  Not that I have seen.

Most controversies, though, do not fall into either of the categories she describes.  There generally are two sides, and there generally is not a scientific basis for declaring either side unquestionably wrong.  So in those circumstances, is the reporter's mere personal opinion that one side is right a valid basis for giving the readers only that side?  Is there something wrong with giving the readers a taste of the viewpoint from each side?  Ms. Greenhouse thinks so, and guess who is her example.
This is one reason.  It is not the main reason or close to it, in my view.  At the same time, anyone with experience in criminal litigation knows that judges vary widely in temperament, ideology, outlook and background, and that even the same judge can vary markedly from one day to the next depending, for example, on whether he had a fight with his wife that morning.

The principal reason Congress cut back on the previously almost unlimited sentencing discretion of judges in the Sentencing Reform Act of 1984 is simple:  It didn't work.  It produced wide and irrational disparity, and it had meandered hither and yon for 25 years while crime exploded. The public demanded something better and Congress complied, with (so far as crime rate statistics suggest) excellent results.

Judges, by the nature of the business, must have a good deal of sentencing discretion a good deal of the time. Under our present system, they do.  But judges are human beings, and human beings operate better with rules than without them. The news report with which I led off this entry is an extreme example of this fact, but a fact it is, in extreme cases and in more typical ones.
The U.S. House Judiciary Committee has this press release on a package of bills that, if the descriptions are accurate, may actually make improvements in the criminal law.

In recent years, it seems like every package labeled "reform" has actually been a proposal to condemn us to repeat the soft-on-crime errors of the Age of Aquarius. 

According to the press release, these four bills would address (1) the required mental state where the statute specifies none, (2) acts made criminal by regulations rather than statutes, (3) acts that never should have been made criminal in the first place, and (4) just plain drafting errors.  These are all genuine problems that genuinely need fixing.

I hope to have time soon to look at the actual bill language and see if the bills live up to their billing.

And I am really looking forward to citing the Fix the Footnotes Act of 2015 in a Supreme Court brief.

The Latest in Customer Service

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You cannot make this up.  From NBC News reports:

NBC News has learned that ISIS is using a web-savvy new tactic to expand its global operational footprint -- a 24-hour Jihadi Help Desk to help its foot soldiers spread its message worldwide, recruit followers and launch more attacks on foreign soil.

Counterterrorism analysts affiliated with the U.S. Army tell NBC News that the ISIS help desk, manned by a half-dozen senior operatives around the clock, was established with the express purpose of helping would-be jihadists use encryption and other secure communications in order to evade detection by law enforcement and intelligence authorities.

The relatively new development -- which law enforcement and intel officials say has ramped up over the past year -- is alarming because it allows potentially thousands of ISIS followers to move about and plan operations without any hint of activity showing up in their massive collection of signals intelligence.

I wish the Help Desk at Georgetown Law were as good at sending me the class roster. 

A Revealing Moment at the HuffPo

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Erik Wemple, who writes a blog on media issues at the WaPo, has this post on union organizing efforts at Huffington Post.  I was struck by this paragraph:

The document touts the merits of a progressive news outlet internalizing its principles: "Unionizing is one way for us to stand by the ideals we often preach on our site," notes the letter.
The signers of the letter are not, for the most part, opinion writers designated as such.  Their titles imply that they are in the straight news business.  Yet they see it as their job to "preach" their "ideals."

The danger is that too many people today are getting most or all their news from people who have no dedication whatever to objective reporting.  As the line between advocacy and reporting becomes ever more blurred, "facts" that are either undetermined or outright false become accepted as absolute truth by people who never hear them questioned.  Elections and the direction of our society may turn on widely believed myths with no connection to reality.

News Scan

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TX Murderer to be Executed:  A Texas murderer is scheduled to be executed by lethal injection Wednesday evening for killing his daughter and two stepdaughters in a 2000 mobile home blaze.  Jon Herskovitz of Reuters reports that a new lawyer for 36-year-old Raphael Holiday filed a last-minute appeal arguing that Holiday's federally appointed counsel "acted against his wishes and abandoned further rounds of court filing to spare his life," which was rejected by the Texas Attorney General's office, who said such a claim "should not be given any credence."  Holiday was convicted of killing 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday six months after his common law wife at the time, Tami Wilkerson, obtained a restraining order against him for sexually assaulting Tierra.  After attempting to reconcile with Wilkerson, he returned to the mobile home they once shared and forced the girls' grandmother at gunpoint to douse the home in gasoline before igniting it.  The charred bodies of the three little girls were later discovered huddled together.  Holiday will be the 531st inmate executed by the state of Texas since the death penalty was reinstated in 1976.  Update:  The execution was carried out 2 1/2 hours later than scheduled, Michael Graczyk reports for AP, because the trial judge stopped the execution after the defendant's trial lawyer filed a new appeal, but that order was overturned by the state's highest criminal court.

Manhunt for Human Smuggler who Assaulted Officer:  A man dubbed by Border Patrol agents as "one of San Diego's most dangerous human smugglers" is the subject of an intensive federal manhunt after he assaulted a Border Patrol agent with a rock last weekend during a failed border-crossing in Southern California.  Fox News Latino reports that 39-year-old Martel Valencia-Cortez, a Mexican national who has been involved in several human smuggling incidents dating as far back as 1997, was smuggling 14 illegal immigrants Sunday evening when he struck a border agent in the face with a softball-sized rock and fled towards Mexico as officials began closing in on him.  Valencia-Cortez was released from federal custody in September after serving a three-year sentence for alien smuggling.  He is known to carry a gun and resort to violent and dangerous conduct to avoid capture.  The injured agent was treated for cuts and bruises.

AG Lynch Contradicts FBI on Screening Refugees:  Despite FBI Director James Comey's statement to a House committee in October that checking incoming Syrian refugees against a database is extremely difficult, if not impossible, unless the U.S. has actual data on the refugees, Attorney General Loretta Lynch insisted before the House Judiciary Committee Tuesday that the U.S. will be able to safely process refugees.  Pete Kasperowicz of the Washington Examiner reports that Lynch defended the current system of checking refugees against government databases, and added that interviews and "other forms of screening" will result in a thorough and proper vetting process.  Committee Chairman Bob Goodlatte echoed Comey's concerns of the country's vulnerability when it comes to people from Syria, given that officials cannot obtain information from a country in disarray.  The debate over whether or not to accept Syrian refugees has grown heated following Friday's deadly terror attacks in Paris, in which is was confirmed that at least one of the terrorists posed as a Syrian refugee to enter Europe.  House Speaker Paul Ryan is looking into legislation that could slow down President Obama's plan to admit 10,000 Syrian refugees next year.

Baltimore Reaches Highest Ever Homicide Rate:  Baltimore just surpassed it record level homicide rate, officially making 2015 the deadliest year, per capita, in the city's history.  Kevin Rector and Justin Fenton of the Baltimore Sun report that homicides reached the 300 mark on Sunday after a man was stabbed to death, the first time since 1999 that the city has seen that many homicides in one year.  Five more men were shot dead as of Tuesday evening, pushing the city's per capita homicide rate to 48.97 per 100,000 residents, breaking the 1993 record.  University of Baltimore criminologist Jeffrey Ian Ross says that the per capita figure "puts Baltimore's violent year in perspective compared to other cities also experiencing increased violence," noting that while violence has spiked considerably in cities like Chicago and Washington, D.C., the per capita rates of those cities are still far below the record-breaking levels set during the 1990s.  Since the April death of Freddie Gray in police custody that sparked citywide unrest, there has been more than a killing per day.  The Baltimore Police Department plans to announce a new community stabilization initiative in the near future.

Justice Waits While Lawyers Bicker

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SL&P has this story suggesting that the main problem in a Texas multiple child murder case from more than 15 years ago is that  --  ready now?  --  the defendant's lawyers aren't being aggressive enough in pushing a last minute clemency appeal. The story's first eight paragraphs amount to a hit on the killer's present counsel for declining to push the 16th year of litigation into the 17th (and beyond, I suppose).

You will not be surprised to hear that the story does not (1) advance any claim of factual innocence; (2) detail the prior multiple efforts to reverse the sentence, or (3) explain any plausible grounds for either judicial or executive hesitation at this late date.  It's basically a hit piece on lawyers who decline to game the system out to infinity.

In that sense, it's an apt display of what's wrong with the administration of the death penalty, and of the insufferable self-importance of lawyers.  It never seems to occur to the people quoted in the article that legal outcomes should depend on the behavior of the parties, not the behavior of the attorneys.

Still, far, far down the page, we get our first glimpse into what the case is actually about:

Holiday [the petitioner] was convicted of intentionally setting fire to his wife's home near College Station in September 2000, killing her three little girls. He forced the children's grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday's case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless....

Oh, OK.  The problem is not that lawyers file absurd claims for years.  The problem is that at some point, they stop.
Congress, by far the least trusted of public institutions, is about to test how oblivious it can be to amply justified public alarm.

A new Washington Post story is grim, but might conceivably get our legislators to wake up:

Crime has become the biggest problem in Washington, D.C. residents say, far surpassing concerns about the economy and the quality of public schools for the first time in almost a decade, according to a new Washington Post poll.

After a year in which homicides have spiked, fewer D.C. residents said their neighborhood is safe, the poll found. Following high-profile attacks that have rattled neighborhoods from Chevy Chase in upper Northwest to Anacostia in Southeast, 1 in 4 respondents said they feel "not too" or "not at all" safe in their communities, up from less than 1 in 5 in 2011. More than 1 in 3 said crime is the biggest problem facing the city, up from 12 percent four years ago.

The concern comes as the nation's cities have seen homicide rates reverse after more than two decades of steady declines.

This same thing is happening from coast to coast.  For the first time in a generation, crime is spiking.  So here's the bottom line question:  Is this the moment Congress will choose to go easier on those  --  largely drug pushers  --  doing the spiking?  Is Congress really that obtuse?  That uncaring?  That hoodwinked or bullied by billionaire money pushing the Obama/Sharpton "America-is-too-mean" agenda?

As Congress considers the SRCA, we may soon find out.

The title of this post is the position taken by (pick one):

A.  Secretary of State John Kerry.
B.  The Ayatollah.
C.  Osama Bin Laden.
D.  The head of ISIS.
E.  Timothy McVeigh.

The correct answer is A, Secretary of State John Kerry.  The Weekly Standard published the full quotation (emphasis in the Standard):

"In the last days, obviously, that has been particularly put to the test," Kerry said, according to a State Department transcript. "There's something different [from the Paris massacre] about what happened from Charlie Hebdo, and I think everybody would feel that. There was a sort of particularized focus and perhaps even a legitimacy in terms of - not a legitimacy, but a rationale that you could attach yourself to somehow and say, okay, they're really angry because of this and that.

Impeachment is still in the Constitution, isn't it?

News Scan


LA Group Admits Losing Track of Refugee:  Catholic Charities, the group that assisted a Syrian refugee resettle in Louisiana, has revealed that it doesn't know where the refugee is because the group is simply "on the receiving end" and doesn't track the refugees they place.  Michelle Fields of Breitbart reports that after helping a refugee settle in Baton Rouge, the group claims that the individual left the state entirely, though no one knows where.  Louisiana Gov. Bobby Jindal, who says that refugees began being placed in New Orleans last week without his knowledge or the state's involvement, wrote a letter to President Obama on Monday demanding more information regarding Syrian refugees.  Jindal is one of the many U.S. governors who this week have publicly rejected Obama's resettlement plan over renewed concerned about Syrian refugees in the wake of Friday's deadly terror attacks in Paris, in which at least one terrorist was in possession of a Syrian passport and entered Europe by posing as a refugee.

Six Murdered at TX Campsite:  Six people, including a young child, were killed over the weekend at a rural campsite southeast of Dallas and law enforcement have a suspect in custody.  Fox News reports that 33-year-old William Hudson is, so far, charged with one count of murder in the deaths of Thomas Karp, who had recently purchased the land where the massacre took place, his girlfriend Hannah Johnson, her 77-year-old father Carl Johnson, her young son Kade and two other males.  Few details have emerged in the case, including the victims' causes of death or a possible motive, which is unclear given that Hudson did not appear to know any of the victims.  Carl Johnson's wife, Cynthia, survived by hiding in the woods while her family was being slain.  Anderson County Sheriff Greg Taylor says Hudson was picked up weeks ago for a separate assault and acknowledges that he is "violent."

Some might believe that the darkest outcome of the Paris attacks is the choking grief and irremediable loss of the families of the dead. Others would say the lifelong disfigurement of survivors.  Some would say the end of the notion that civilized life is safe.  Still others will say the stain of sadness that has settled into one of the world's greatest and (formerly) most festive cities.

You read that right.  The story begins:

In a civil rights suit over the New York City Police Department's surveillance of New Jersey Muslims, the Nov. 13 terrorist attacks in Paris could make it harder for the plaintiffs to get a fair trial, according to some involved in the case, as well as some outside observers.

For those who need translation (probably not that many given how far "journalism" has decayed), let me help.  

"A fair trial" = "A trial at which reality is excluded." 

"Some involved in the suit" = "Plaintiffs' lawyers and their hired consultants."

"Outside observers" = "Pro-Muslim consultants who weren't hired this time but hope to be for the next case."

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