Filibuster Folly

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The WSJ has this editorial on Senate Minority Leader Charles Schumer's decision to call for a filibuster of the confirmation of Judge Neil Gorsuch for the Supreme Court.

On what ground is the drastic action of a filibuster called for?  The hearings have turned up nothing that makes this nominee any more deserving of such a blockade than just about anyone a Republican president could nominate.  He is an originalist, of course, which is exactly what the people who vote for President Trump wanted.

Sen. Schumer says Judge Gorsuch was "groomed by the Federalist Society and has shown not one inch of difference between his views and theirs."  I don't know what he means by "groomed," and the "one inch" remark makes no sense at all.  There is such a variation of viewpoints within the Federalist Society that everyone in it has a wide space of viewpoint from lots of other people in it.

The worst problem is that the confirmation process is getting worse instead of better.  The political pendulum has swung back and forth since the end of World War II, but since the 1980s every time the Republicans have had the White House the Democrats have taken the polarization and partisanship of judicial confirmations to a new level. 
Jesse Gary of KTVU in San Francisco has this report with the above title on the effects of Proposition 57, passed by the voters last November.

The killing of Madyson Middleton struck at the core of California's conscience because it was a hideous crime committed in a Santa Cruz arts center apartment complex.

The slaying of the 8-year-old [girl] was made more shocking because the identity of the suspect was the victim's then-15 year old neighbor.
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The suspect, identified as Adrian Jerry Gonzalez, was charged as an adult for killing and sexually assaulting the girl before her body was dumped into a recycling bin.

Almost two years after the crime, the suspect still hasn't been brought to trial.
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The trial delay is directly linked to an act approved by voters that was an effort to improve the judicial process. Last fall, voters approved Proposition 57, which passed with nearly 65 percent of the vote.

The measure in part mandates that juveniles accused of a crime receive a special transfer hearing to determine if they should be tried in adult or juvenile court.
The story refers to this as an "unintended" consequence.  It was unintended by the people, who were not well informed what they were voting on, as the press and the big money were on one side and the underfunded opposition was on the other.  It was intended by the proponents, though, at least in the sense that "knowingly" is equivalent to "intentionally" in culpable mental states.  Proposition 57 was all about helping the criminals with complete disregard for the victims, past and future.

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Officer Saved by Good Samaritans: A Michigan State trooper is grateful that their are still folks who want to help the police. According to Fox News Trooper Garry Guild attempted to make a traffic stop after sighting a suspicious individual riding a motorcycle. The rider attempted to flee and led the officer on a chase across the freeway. When the rider crashed into a ditch, Guild attempted to effect an arrest, but was attacked and placed in a chokehold by the rider's brother who had been following the chase. Jerry Burnham and his wife stopped to help and a second driver pulled up as well. Together, they overpowered the brothers and assisted Guild with getting the men in custody.  The brothers will be facing multiple charges including assault on a peace officer and resisting arrest.

Richmond Murderer Taken into Custody: An evasive suspect in a 2016 murder case in Richmond,CA, has been taken into custody. George Kelly of the East Bay Times reports that on March 10, 2016, police responded to a report of multiple gunshots and found William Malik Barnes, 15, suffering from multiple wounds to the chest.  Despite the efforts of paramedics, Barnes passed away at the scene. Following an investigation, two suspects were identified and charged with murder with gang enhancements.  The first suspect was quickly located and taken into custody, but the second suspect, Parrish Renee Rauls, 21, who was on probation, went into hiding. Rauls was finally arrested Wednesday morning in West Oakland.  California law considers most convicted felons released from state prison or county jail to be low risk offenders and places them on county probation rather than on the stricter supervision provided by state parole.

NY Calls for Megan's Law Update: Following the arrest of a re-arrest of a habitual sex-offender in Westchester, NY, lawmakers are calling for an update to Megan's Law to account for social media. As reported by CBS New York, the new concerns followed the arrest of David Ohnmacht, a sex-offender who had been released six years ago.  At the time of his release, Ohnmacht assured reporters that he had been reformed and that he no longer posed a threat. "After he got off his five years of supervised post-release probation and supervision, he immediately went back and began to engage in some of these actions," criminal justice professor Robert Castelli, who is familiar with the case, said. Ohnmacht is currently in custody and being charged with exchanging sexually explicit messages and pictures with a 14-year-old girl in North Carolina. He faces a minimum of 35 years in federal prison.

Wisconsin Shooter Claims Four: A shooter took the lives of two bankers, an attorney, and a police officer Wednesday. As reported by The Boston Herald, Police characterized the initial shooting at the Marathon Savings Bank in Rothschild on Wednesday, March 22, as a domestic dispute, but have provided no details about the suspect.  Authorities said late Wednesday that there is no remaining threat to the public. The officer who lost his life was Jason Weiland, 40, a detective and 15-year veteran of the Everest Metropolitan Police Department. He died while attempting to establish a perimeter around the shooter to minimize the threat to the community.

Democrats Retake Mantle of Stupid Party

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No sooner had Republicans re-asserted their long command of the moniker "Stupid Party"  --  this time by failing to round up the votes to pass an Obamacare replacement before they loudly unveiled it  --  than the Democrats, in a lightning fast maneuver, re-seized it by announcing hours later that they will filibuster the nomination of Judge Neil Gorsuch to the Supreme Court.

You don't need to think about it for very long to understand that this is actually good news for Gorsuch, and for those who hope for more mainstream conservatives and originalists on the Court  --  but bad news for the country, which will now see the selection of Justices descend further into sheer political backbiting.

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Rape/Murderer Sentenced to Death:  A Las Vegas jury has sentenced a repeat sex offender to death for the rape and murder of a 15-year-old girl.  David Ferrara of the Las Vegas Review-Journal reports that after finding 24-year-old Javier Righetti guilty of the 2011 rape and murder of high school freshman Alyssa Otremba, the jury deliberated just three hours before unanimously agreeing on the sentence.   Righetti attacked the girl in a tunnel, 100 yards from her home, as she was walking to a friend's house to borrow a schoolbook.  After he raped Otremba, he tortured her, inflicting at least 80 stab wounds on her face and body before he she died.  He later returned to burn the body.  Righetti admitted to raping two other women inside the same tunnel and to raping his cousin in Mexico three months before he killed Otremba.  

Maryland Governor to Veto Sanctuary Bill:  Less than a week after a 14-year-old high school student was brutally raped by two young men aged 17 and 18  who, the Baltimore Sun reports, were both illegal immigrants assigned to her high school, the Maryland Legislature passed a bill which bars police from determining the immigration status of suspects.  ABC2 in Baltimore reports that in a statement released after the bill passed the Maryland House Governor Larry Hogan called it "dangerously misguided legislation" and promised to veto it the moment it reached his desk. 

Ohio High Court Stays Sentence to Allow Appeal:  In a 5-2 ruling announced last week, the Associated Press reports that the Ohio Supreme Court agreed to stay its earlier holding overturning the 112-year sentence of a convicted juvenile rapist to allow prosecutors to seek a U.S. Supreme Court appeal.  The Court's 4-3 December 22, 2016 ruling announced that the lengthy sentence given to Brandon Moore, who was 15 at the time of the crime, constituted a "functional life sentence," which the Court concluded was prohibited by the U.S. Supreme Court's 2010 ruling in Graham v. Florida, which held that sentencing a juvenile offender to life in prison without parole for crimes other than homicide is unconstitutional.  Brandon Moore was convicted for a crime spree which occurred on August 21, 2001, including the robbery at gunpoint of a Youngstown couple, and the kidnap, robbery and gang rape of a 21-year-old Youngstown University coed.  After the victim had been anally and vaginally gang raped and forced to preform oral sex on Moore and an accomplice, Moore put a gun in her mouth and said "since you were so good, I won't kill you."  He then threatened to kill her and her family if she told anyone what happened.  Following Moore's conviction on overwhelming evidence the trial judge told him, "I'm going to make sure that you never get out of the penitentiary,"  before giving him the maximum sentence allowable under state law.      

Federal Criminal Statistics

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The Bureau of Justice Statistics has released a report on Federal Justice Statistics 2013-2014.  Note the time lag.  That's part of the problem with justice statistics.

Another problem is that statistics are sometimes defined in ways that people would not expect.  "Tracking recidivism rates involved identifying prisoners released from federal prison following a U.S. district court commitment between 1998 and 2014."

What about people released from federal prison and subsequently prosecuted by state authorities?  Not in the definition.  Not tracked.

Three-fifths of federal arrests in 2014 were made in just 5 of the nation's 94 judicial districts -- Southern Texas, Western Texas, New Mexico, Arizona, and Southern California.  What do these five districts have that none of the others have?  You guessed it.

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Arrest Made in CO Double Homicide: A suspect has been arrested in connection with the March 12 double homicide in Colorado Springs.  Ellie Mulder at The Gazette reports that Gustavo Marquez,19, was arrested in the murders of Derek Benjamin Greer, 15, and Natalie Partida, 16, who were found dead on the shoulder of Old Pueblo Road in a rural part of the county. Derek was a freshman and Natalie was a sophomore at Coronado High School.  Marquez faces charges of two counts each of first-degree murder, second-degree kidnapping and aggravated robbery and one count of child abuse resulting in death.  In late February, Marquez was arrested on suspicion of attempted second-degree kidnapping, attempted second-degree assault, third-degree assault and child abuse. Three days after that arrest he posted bond and was released.

Two Men Arrested for Shooting at Police:  Two men have been arrested in connection with a recent shooting at a Selma police officer. George McDonald at Alabama News reports that Demarious "Sleepy" Pullom and Calvin Boyd are currently behind bars on charges that include the attempted murder of a police officer. The men reportedly fired at the officer with automatic weapons when the officer attempted to stop their vehicle. The bail for these charges has been set at $5,000,000 each.

LA Mayor Expands Protection of Illegals:  Robert Jablon of the Associated Press reports that Los Angeles Mayor Eric Garcetti issued a directive Tuesday which bars any city employee from cooperating with the enforcement of federal civil immigration laws. Additionally, the directive forbids city workers from giving ICE agents special access to any city facility, including jails, unless required by law.  This directive responds to the Trump Administration's effort to deport illegal aliens who have committed felonies in the U.S.  LA Police Chief Charlie Beck said that calls to police by Hispanics to report crimes have gone down because they are afraid of deportation. But the Wall Street Journal (subscription)  reported a statement in response by ICE saying, '"Rather than transferring convicted criminal aliens to ICE custody as requested, agencies, including the Los Angeles Police Department, are routinely releasing these offenders back onto the street to potentially reoffend, and their victims are often other members of the immigrant community.''  Somehow, that statement did not make it into the AP story.
Here is some background on a case that Senator Durbin asked Judge Gorsuch about this morning.

The Sixth Amendment guarantees a criminal defendant "the assistance of counsel for his defence."  The Supreme Court has interpreted that right to include the effective assistance of counsel.  However, a judgment cannot be overturned on the ground of ineffective counsel unless, in addition to the lawyer being ineffective, the defendant makes a showing of resulting "prejudice."  The meaning of "prejudice" in various circumstances has been the subject of a lot of cases since the high court established that standard in 1984.

The purpose of the Sixth Amendment is to guarantee a fair trial.  If the defendant does indeed receive a fair trial, can he get the judgment overturned on the theory that a better lawyer would have gotten him a plea bargain?  That idea seems strange, given that there is no right to a plea bargain and that the defendant received the fair trial the Constitution entitles him to.  We took that position in an amicus brief in Lafler v. Cooper, 566 U.S. 156 (2012).  Four justices agreed with us, but five did not.

Judge Gorsuch took the same position as the Lafler dissenters three years earlier in the case of Williams v. Jones, 571 F.3d 1086 (2009).  Williams was a murderer, but there is no discussion of the facts in the opinion.  Judge Gorsuch's dissent says, "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial.  By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome."

I think he was right.  In any case, this opinion is well within the mainstream, as indicated by the 5-4 split in the Supreme Court.

Confirmation Hearing Follies

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I've been following the Gorsuch confirmation hearing off and on today, sometimes listening and sometimes following SCOTUSblog's live blog.  It's pretty much the usual, predictable, and often lamentable stuff that confirmation hearings have become today.

One point I thought I would mention.  At about 11:14 ET, Senator Leahy refers to the Federalist Society as a "far right" group.  Seriously?  I have been a member for decades, and I do not recall meeting a single Nazi or Klansman at any of the events.  There is a significant diversity of viewpoint, due in large part to the organization's chimera nature of "conservative and libertarian," which are not at all the same thing.  But far right?

How do we define "far" and "extreme"?  By the absolute value of the distance of one's views from the American median, of course.  Is the Federalist Society any further from the median than Senator Leahy himself?  No.

I will leave the comment thread open for discussion of the hearing generally.  Here is a seed question:  Who has been the biggest jerk among the Senators so far, and why?

News Scan

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Illegal Suspected in Brutal Rape:  Maria Zimmerman of Fox News reports that one of the two suspects arrested for the brutal rape of a 14-year-old girl at Rockville High School last Thursday was caught last August illegally entering the country.  While the suspects, Jose Montano from El Salvador and Henry Sanchez-Milan from Guatemala, were 17 and 18 years old respectively and neither spoke English both were admitted as ninth graders at the Maryland high school, where all of their classmates were 14 or 15.  The victim was walking in a school hallway when the two suspects dragged her into a boy's bathroom and repeatedly raped and sodomized her and forced her to perform oral sex.  A policy director from the Center for Immigration Studies told reporters, "the surge of Central American kids has become a significant problem in many of the school districts where they are allowed to resettle," and Montgomery County has one of the "more notorious sanctuary policies," where the police deliberately do not cooperate with ICE.

Oregon Murderer Pleads Guilty to Avoid DP:  A 21-year-old Oregon man has pleaded guilty to fatally shooting two of his roommates in February 2016.  Barney Lerten of KTVZ 21 reports that, in a petition filed last Friday, Mitchell Morris agreed to plead guilty to murdering Baily Southwick, 18, and Mackenzie Lyman, 21, with the understanding that "the state will not seek a death sentence in this case and the parties stipulate that I will be sentenced to life in prison without the possibility of release or parole."  On February 26, 2016, Morris told police that he had not been arguing with the victims before he shot them in their home in the town of Crooked River Ranch.  He fled the crime scene in a pickup truck and was arrested in Salem the next morning.   

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ICE Detains 50 in Detroit Raid: In a Saturday raid of a Detroit building, Immigration and Customs Enforcement arrested 50 people. Fox News reports that the raid was part of an on-going investigation. The abandoned building was believed to be the site of cockfighting ring and a illegal gambling organization. Following the raid, ICE arrested 50 of the 83 people in the building for violations of immigration law. The individuals arrested will remain in ICE custody pending removal proceedings pursuant to U.S. immigration law.

Baltimore Manhunt Launched for Firebomber: The hunt is on in Baltimore as a suspect has been named in the firebombing that took place last Thursday. Fox News reports that Antonio Wright, 26, has been accused of throwing the "molotov cocktail" that started a house fire which claimed the lives of two teenagers and seriously injured six others. Most of the victims were below the age of twenty-one. Wright has yet to be arrested, but an investigation is continuing to determine if this event had some connection to a shooting that took place nearby two nights earlier.

Judges Assigned to Expedite Deportations: Twelve US judges have been temporarily assigned to several US cities to work through the backlog of deportations building up from the administration's crack-down on illegal immigrants who have been convicted of crimes.  Julia Edwards Ainsley of Reuters reports that Cities the DOJ wants to staff up include New York; Los Angeles; Miami; New Orleans; San Francisco; Baltimore, Bloomington, Minnesota; El Paso, Texas; Harlingen, Texas; Imperial, California; Omaha, Nebraska, and Phoenix, Arizona. Immigration judges are still being selected for assignment to help with the thousands of pending immigration cases in the targeted cities.

What Exactly is "The West"?

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Several Senators supporting Judge Gorsuch, including Sen. Michael Bennet (D-CO) have made comments about him being from "the West" in contexts that imply that California (home of Justice Kennedy and originally of Justice Breyer) is not "the West."  Is it?

Purely geographically, of course, California is farther west than Colorado, Texas, or Arizona.  But is a movie set in California a "Western"?  The Birds?  Nope.  Magnum Force?  Nope.  Beach Blanket Bingo?  Nope. 

Okay, maybe there is something to that.
According to the live blog of today's confirmation hearing at SCOTUSblog, Senator Patrick Leahy stated in his opening remarks that the Senate's refusal last year to consider an election-year nomination to the Supreme Court was "never grounded in principle or precedent."  He evidently did not mention his former colleague, former Senator and Vice President Joseph Biden, but here is what then-Senator Biden said on the floor of the Senate on exactly that subject on June 25, 1992:

The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.
No, I am not taking this out of context.  Follow the link to read the whole speech for yourself.

Merrick Garland is a good man and a good judge, even if I don't agree with him on some very important questions.  On a personal level, it is unfortunate that his nomination was scuttled on political grounds.  But judicial nominations are never based purely on merit.  (No, not even -- especially not -- in states that have so-called "merit selection," where the state bar has a stranglehold on nominations.)  Learned Hand and Henry Friendly never made the Supreme Court, while lesser lights were promoted over them.  Many brilliant lawyers never get appointed to the bench at all, while dimmer minds with better connections get the seats.  That's democracy, the worst form of government except for all the others.

Judge Garland and Judge Gorsuch are not similarly situated because 2016 was a presidential election year and 2017 is not.  For better or worse, the candidate who promised to appoint judges of a particular philosophy won the election, and the vacant seat is going to be filled with someone of that philosophy.   Given that, is there any good reason to block this particular nominee with the drastic action of a filibuster?  Revenge for the blocking of Judge Garland's nomination via a much less drastic action is not a good reason.  The fact that Judge Gorsuch votes for the party whose position he believes to be correct under the law, rather than skewing the law to one side or the other based on the identity of the parties, is a strong reason to vote for him.  To vote against him, much less filibuster, on that basis would be unprincipled, to use Senator Leahy's word.

Democrats have no more reason to oppose Neil Gorsuch than Republicans had to oppose Sonia Sotomayor or Elena Kagan.  Most voted no, but they didn't filibuster, and enough voted yes to make around 2/1 votes for confirmation.
The U.S. Supreme Court today denied certiorari in the case that sought to block implementation of the "fast track" for the processing of federal habeas corpus petitions by state death-row inmates.  See the docket for Habeas Corpus Research Center v. U.S. Dept. of Justice, No. 16-880.  The Ninth Circuit threw the case out a year ago, holding that the District Court had no jurisdiction to issue the injunction that it did.  See this post from last March.

The law firm of Orrick, Herrington & Sutcliffe has been representing the interests of murderers against those of victims and law-abiding people contra bono publico in this case as well as the Proposition 66 case.  One can only wonder if America has completely run out of deserving poor people to represent pro bono, given how many blue chip firms are devoting their unpaid representation hours to the interests of people who thoroughly deserve the fate they are facing and who are in their present situation solely because they chose, as an act of free will, to take the life of an innocent person.

In retrospect, though, Orrick did actually achieve something "for the public good."  As a result of the delay they caused, the initial precedent-setting decisions in applications under Chapter 154 will be rendered by a Department of Justice headed by Jeff Sessions rather than Eric Holder or Loretta Lynch.  In the long run, that may well be worth the delay.

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Florida Prosecutor Refuses to Seek Death Penalty:  Florida's Governor has reassigned a case involving the recent murder of a police officer after a State Attorney refused to seek the death penalty.  Fox News reports that the prosecution of Markeith Loyd, for the January 9 murders of Orlando Police Lt. Debra Clayton and his pregnant girlfriend Dade Dixon, was reassigned today after State Attorney Aramis Ayala announced that she would not seek a death sentence for Loyd.  In a statement Thursday Ayala said that the death penalty has led to "chaos, uncertainty and turmoil,"  and was not "in the best interest of the community or the best interest of justice."  Governor Scott differed, "These families (of the victims) deserve a state attorney who will aggressively prosecute Markeith Loyd to the fullest extent of the law and justice must be served." 

AZ High Court Upholds Death Penalty:  In a decision announced Wednesday, the Arizona Supreme Court unanimously rejected a broad challenge to the state's death penalty law.  The Arizona Capitol Times reports that the challenge was included in the direct appeal of gang member Abel Daniel Hidalgo, who was sentenced to death for the 2001 contract killing of auto-body-shop owner Michael Cordova and the murder of upholsterer Jose Rojas because he happened to be there when Cordova was killed.  Hidalgo had also received two life sentences in federal prison for the 2002 drug-related murders of two women in Idaho.  In his appeal of his Arizona death sentence Hidalgo claimed that state law did not sufficiently narrow eligibility for a death sentence.    

The Gorsuch Scandal

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The ever-reliable New York Times has unearthed documents showing that, twelve years ago, Supreme Court nominee Neil Gorsuch supported the harsh interrogation policies of the Bush Administration.

The Times' article has a breathless quality to it, but there's a problem with its outrage: At the time, Gorsuch was Principal Deputy Associate Attorney General.  In other words, as one-time Acting AG Peter Keisler notes  --  in a quotation placed far down the article  --  Gorsuch, "helped shape arguments and litigation strategy but not the underlying national security policy decisions, which 'had already been made'...These are cases he was working on as an attorney for [his client] and advancing its positions."

Readers should correct me if I'm wrong, but, when a lawyer takes on the defense of a child killer, or some gruesome sex-torture murderer, doesn't the Times, together with its defense bar friends, say that the attorney is "fulfilling the highest and most honorable calling of the legal profession"?  Advancing the government's case for effectively extracting intelligence from terrorists, however, gives you dirty hands?

Welcome to the case against Judge Gorsuch.

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Two Detroit Police Officers Shot:  An unidentified suspect has been arrested in the Wednesday shooting of two Detroit police officers.  Ann Zaniewski & Bill Laitner of the Detroit Free Press report that the two veteran officers were doing a narcotics investigation in a high crime neighborhood near Wayne State University when a man they were questioning pulled a gun and opened fire.  While one officer was wounded in the neck and the other in the ankle, they were able to return fire hitting the fleeing suspect in the leg.  Had they not been wearing body armor, at least one of the officers would have likely been killed.  A massive manhunt in the west side neighborhood uncovered the wounded suspect.  The incident occurred in the same area where a Wayne State University Police Sgt. was shot and killed on November 22.  
In a post a few days ago, I noted what was advertised as a scholarly article arguing that "data-driven" analysis, assessed through the lens of law and economics, tells us that we can and should abolish prison.  I had my doubts, as did everyone who commented on the entry.

Still, legal academics, for all their zaniness, keep on keepin' on.

Today's specimen, featured (as was its predecessor) in SL&P, tells us that we can virtually abolish prison through technology.  Ankle bracelets, movement monitors, and a nifty gadget called a "conducted energy device" (which appears to be a euphemism for an electronic shock belt) would "achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection."

Where to start?

How Not To Pick a Supreme Court Justice

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Sen. Chuck Schumer, who is leading the opposition to confirming Tenth Circuit Judge Neil Gorsuch to the Supreme Court, thinks that an effective way to do so is to feature the litigants who have lost cases before Gorsuch. The stupidity and danger to the rule of law of this tack is not possible to capture in words, but Ed Whelan gives it a good try here.

The idea that we should select Justices by focusing on which side won (or lost) in the cases they heard as lower court judges is just breathtaking.  It used to be that result-orientation was exactly what you wanted to avoid in judges; now, according to the Gorsuch opposition, it's exactly what you seek.

As long as the opposition is so fond of this perverted approach, however, I hope it will also trot out the numerous killers and rapists Judge Gorsuch ruled against, thus to hasten his taking his seat on the Court.

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Jihadists Getting Religious Visas?:  Security experts and religious leaders are warning that the 5-year visa granted to non-immigrant clerics may be an avenue that Islamic extremists are using to enter the U.S.  According to Hollie McKay at Fox News, The R visa program is for non-immigrant clerics and religious workers, allowing successful applicants to stay in the U.S. for up to five years. Following the 5-year period, holders of the R visa would have the chance to pursue citizenship in the United States. Col. James Williamson, who founded a group that advocates for U.S. special forces, said the program, which was created in 1990, must be tightened because of the extent to which it makes the U.S. vulnerable to jihadi attacks.  "The administration should at least temporarily suspend this dangerous loophole in our immigration process," he said. 

Victim's Fiance says "The System Failed Us": The fiance of a women killed in a drunk driving accident with an illegal immigrant is speaking out about the deadly consequences of U.S. sanctuary policies. Fox News reports that the man behind the wheel, 45-year-old Estuardo Alvarado, was escaping the scene of a previous traffic accident on Feb. 19 just before the deadly crash, investigators said.  Since 1998, Alvarado has had multiple DUI convictions and had been sent back to Mexico five times, most recently in 2011. "Our system failed us," said Rodrigo Macias, the fiance of the victim. Macias has since become an outspoken critic of so-called "sanctuary cities" and the criminal illegal aliens they protect from federal law enforcement.

Texas Executes Murderer:  Following 26 years on death row and two sentencing trials, a convicted murder was executed in Texas on Tuesday. Jolie Mccullough of the Texas Tribune  reports  that the state carried out its fourth execution of the year, putting to death 61-year-old James Bigby. Bigby was convicted in the 1987 murders of Michael Trekell, 26, and Trekell's infant son, Jayson Kehler.  Bigby was also accused of killing Calvin Crane and Frank Johnson, but he wasn't tried in those murders. The murdered infant's mother told reporters that Bigby had mental health problems and wanted to go out in a "blaze of glory."  Bigby died for his crimes at 6:31, fourteen minutes after receiving an injection of pentobarbital.
A:  Because it comes up with stuff like this, which, to give you the spoiler, recommends that the prison population be reduced, not by 25% or 50% or 75%, but by 100%.  Yes, we should abolish prison, and come up with......uh, something.

This "analysis" stems from  --  have you heard this before?  --  a "data driven" approach, specifically that taken by the law and economics side of the house, much in vogue at the University of Chicago.  Law and economics is insightful in many ways, and I teach components of it in my course at Georgetown Law.  At some point, however, a sense of modesty must be allowed to intrude.

One of the author's concluding paragraphs leads off with this sentence:

Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost.  And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap.

Just so.  The usual name for these "alternative nonmonetary sanctions" is "jail."

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Drug Offender Arrested for Murder:  A habitual drug offender was arrested in Dayton, Ohio Monday for the murder of 20-year-old woman.  WDTN TV reports that 38-year-old Chuckie Lee was taken into custody for the shooting of Taylor Brandenburg early Sunday.  The victim was babysitting when she heard a noise at about 3:00 am, and went outside to investigate.  According to police, she was shot by Lee who had just left a nearby bar after fighting over money with a parent of one of the children Brandenburg was babysitting.  Lee had served time in prison for drug offenses and had additional convictions for drugs, assault and weapons violations. 

Sentencing Bills Criticized:  Ohio legislators are being chastised by the ACLU and defense attorneys for introducing bills to increase sentencing as reported by Jackie Borchardt at cleveland.com.  At a recent news conference an ACLU spokesperson complained that 17 bills to increase sentences have been introduced this year.  In recent years the Ohio legislature has moved away from "tough on crime" sentencing to reduce prison overcrowding and provide alternatives to incarceration focused on rehabilitation for non-violent offenders.  It should be noted that between 2014 and 2015 violent crime increased in Ohio, including a 7.7% spike in murder, a 8.6% increase in rape and a 7% rise in aggravated assault.

Crackdown on Gun Criminals Supported in Chicago:  The Superintendent of the Chicago Police Department joined the families of murder victims to testify in support of legislation that would increase prison sentences for criminals who use guns. Jessica D'Onofrio, John Garcia and Evelyn Holmes of ABC7 report  that the bill would increase the sentences for repeat gun offenders. Right now judges can sentence repeat offenders to a range of three to 14 years for unlawful possession of a weapon, The proposed law would increase the minimum to seven years.  A mother who lost her her 20-year-old daughter and unborn granddaughter in a shooting last year said she believes that the person who killed her family was a repeat offender.  "I don't think that's the first killing he did, and it might not be the last. Until these laws are enforced there are going to be killings in Chicago," Weaver said.

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Cincinnati Police Officer Shot: A police officer was shot in Cincinnati Sunday night after responding to a report of domestic violence. WLWT5 reports that two officers were responding just after midnight Sunday. On arrival, a suspect opened fire on the police, hitting one of the officers. Police returned fire, striking the suspect multiple times. Both the officer and the suspect are undergoing surgery for their injuries.

Criminal Aliens in Texas:  A recent report from the the Texas Department of Public Safety has compiled data indicating how much crime is being committed by illegal immigrants in that state.  According to DHS status indicators, over 215,000 criminal aliens were booked into local Texas jails between June 1, 2011 and February 28, 2017.  The arrested illegals were charged with 566,000 crimes  including 1,162 homicides; 68,151 assaults; 16,678 burglaries; 68,102 drug offenses; 687 kidnappings; 40,465 thefts; 44,626 for obstructing police; 3,768 robberies; 6,098 sexual assaults; and 8,596 for illegal weapons. It is worth noting that Texas has less than half of the criminal alien jail and prison population of California, which, according to the GAO,  has over 100,000 criminal aliens incarcerated.

County Sheriffs Slam SB 54:  Several California County Sheriffs voiced their opposition to Senate Bill 54 Monday, the bill introduced by Senate President Pro Temp Keven De Leon which would make California a sanctuary state.  The sheriffs warn that the law would cost law enforcement agencies federal grants by prohibiting collaboration with federal agencies. Jazmine Ulloa at The Los Angeles Times reports that while County Sheriffs do not want to enforce immigration law, they argued that, if enacted, the law would also would restrict collaboration between law enforcement agencies at different levels of government when going after crime suspects. "If SB 54 passes, it will allow dangerous, violent career criminals to slip through the cracks and be released back into our communities," Sacramento County Sheriff Scott Jones told reporters.

Sex Offender Stopped at the Border:  Tuscon, Arizona border patrol agents have detained a man who was previously deported as an aggravated felon with sex-offender status. According to the Customs and Border Protection website, Rene Murillo-Almansa has a criminal history dating back to the 90's  when Murillo was convicted for raping a child in 1994 and sentenced to 26 months in jail and two years of probation.  Murillo was ordered removed from the U.S. last month and now faces felony immigration charges for illegal re-entry.


How To Find Out What's In Legislation

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This is off topic but too good to pass up.

A few years ago, Nancy Pelosi notably told the country that the best way to find out what was in President Obama's health care bill was to pass it.  I don't think it's an exaggeration to say that this remark became a world-wide joke.

A few days ago, with no known sense of irony, Ms. Pelosi insisted that the country must first know what's in the replacement for President Obama's health care bill in order to pass it.

See the third sentence in her letter to Speaker Ryan.

News Scan

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Chicago Gangs Stocking Up: Gang members on the south side of Chicago have developed the habit of breaking into rail-cars over the past few years, and occasionally, find a shipment of firearms to steal. Matt Finn at Fox News reports that The Bureau of Alcohol, Tobacco, Firearms and Explosives said that since 2013, more than 150 firearms have been reported stolen from freight trains. This may seem like a small number of firearms over a four-year-period, but a single gun can be linked to at least 14 fatal shootings, according to the ATF.  In a city like Chicago, where gun-violence is a daily concern, this train-robbing trend is a real problem. 

DA Considers DP in Dismembered Teen Case: A Pennsylvania woman along with her boyfriend, are being charged with the rape, murder, and dismemberment of her adopted 14-year-old daughter. The District Attorney will announce today whether his office will be seeking the death penalty. According to ABC 6, 42-year-old Sara Packer is scheduled for arraignment today on homicide, rape, kidnapping and other charges in last year's murder of 14-year-old Grace Packer.  Police report that after Packer watched her boyfriend Jacob Sullivan rape the girl, the two of them killed her and cut up her body.

Chicago Shootings Continue to Climb: The explosion of gun violence in the city of Chicago shows no signs stopping or even slowing down. Deanese Williams-Harris, Elvia Malagon and Megan Crepeau at the Chicago Tribune report that six more people including two teens were injured in shootings early Thursday morning. In another story from the Tribune by the same authors, reports on four more shootings resulting two more fatalities on Thursday night.  One of the victims was a well known local resident dubbed "Old Man Bill"  who hung out around the local gas station doing odd jobs for the patrons. According to a graph by the Chicago Tribune, the total number of shooting victims in Chicago for the year of 2017 has reached 587. 

Another Fake Hate Crime: 
A 21-year-old University of Michigan student pleaded guilty to falsely reporting a hate crime supposedly committed by Trump supports after the 2016 election. Jessica Schladebeck at the New York Daily News reports  that Halley Bass originally told officers that the attack on her was part of a series of hate crimes unfolding the week following the election.  She said she was targeted for wearing a safety-pin -- a make-shift accessory worn by many to show solidarity with minorities after Brexit, and then later after Trump's victory.  Now she faces the possibility of serving 93 days in jail and a $500 fine.

RoboCop Lite is Here:  The prospect of robotic helpers has long been an aspiration for the scientific community, and while the future of robotics is still uncharted, a company called KnightScope has introduced a robotic helper for the police.

Read more here: http://www.star-telegram.com/news/local/community/arlington/article137468938.html#storylink=cpy

A Story Hot off the Press

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The way to convince the jury that your client's behavior wasn't arson, just an accident, is to commit arson yourself while addressing the jury and claim it was an accident.

Liar, liar, pants on.............well, you have to read it for yourself.  This goes beyond the "You Can't Make This Up" category.

The criminal defense bar continues to be the most creative entity in the history of civilization.
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Since 2011, California has gone further than other states in the rapid dismantling of its tough-on-crime policies, so we have been keeping track of California crime rates as compared with the nation as a whole.  Here are graphs showing 2011 to 2015 with data from the FBI's Uniform Crime Reports.*

The "realignment" bill, AB109, took effect in October 2011, and one would not expect much effect in the first couple of months.  So we can consider 2011 to be a base year.  California shows a jump in violent crime the following year while the rate for the country as a whole was essentially flat.  California had a sharp jump in property crime for 2012, while the national rate was declining.

News Scan

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Texas Court Upholds Death Penalty:  The death sentence of a Texas ex-con who murdered his wife five years ago was upheld Wednesday in an 8-1 decision by the Texas Court of Criminal Appeals.  Tommy Witherspoon of the Waco Tribune reports that Carnell Petetan Jr. had only been out of prison for a few months when he broke into his estranged wife's home and shot her dead in front of her daughter.  The victim had befriended Petetan and became his pen pal while he was serving a prison sentence for shooting two men and attacking a third with a chair when he was 16.  On appeal Petetan raised 30 claims of trial and sentencing error including that he was ineligible for execution because of a mental impairment.  While in prison for his previous crimes Petetan sexaully assaulted three other inmates and attacked guards.  

Fatal Compassion

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Kristine Phillips reports for the WaPo:

In 1991, Michigan man Gregory Green stabbed his wife in the face and chest, killing her and their unborn child. Then, he called 911 and waited for police to come.

After serving about 16 years in prison for murder, Green was released on parole with the support of family and friends, including a pastor who lobbied on his behalf and whose daughter Green would marry.

"Gregory and I were friends before his mishap and he was incarcerated," Fred Harris, a pastor in Detroit, wrote to the Michigan parole board in August 2005. "He was a member of our church ... I feel he has paid for his unfortunate lack of self control and the damage he has caused as much as possible and is sorry."

"If he was to be released he would be welcomed as a part of our church community and whatever we could do to help him adjust, we would," Harris wrote again a year later.

Green was released in 2008 and later married Faith Harris. They had two daughters, Koi, 5, and Kaliegh, 4.

A heart-warming story from the Land of the Second Chance, right?  Read on.

News Scan

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Another Southern California Gang Shooting: A stray bullet fired during a gang shootout Tuesday evening took the life of a woman driving home from church.  According to Fox News. Police in the San Diego area community of Escondido report that Catherine Kennedy, 55, was driving home from church when she was shot at around 9:15 p.m. Tuesday. The bullet came from gunshots fired between what authorities believed to be two opposing gang members. Catherine was struck in the head which caused her to swerve into an unoccupied vehicle.  No suspects have been arrested. 

Illegal Immigrant Charged with Beheading Mother:  North Carolina police have charged an 18-year-old illegal Honduran immigrant with the murder of his mother. According to Douglas Ernst at the Washington Times, Oliver Mauricio Funes-Machada, was arrested in Pilot on Monday shortly after he called 911. Franklin County officials who arrived at the residence found him holding the severed head of his mother, 35-year-old Yesenia Funes Beatriz Machada. If convicted, Funes-Machada may face the death penalty given the brutal nature of his mothers death.

DA Challenge to Victims Statements: Prosecutors in the Eric Frein case are seeking to have a judge bar the defense from using court allowed victims statement to unfairly bias the sentencing jury. Frein is facing charges of capital murder for the 2014 Pennsylvania sniper shootings which took the life of police Cpl Bryon Dickson and wounded Trooper Alex Douglass. Terrie Morgan-Besecker at The Times-Tribune reports that family members of the victim have been vocal about their forgiveness of Frein. Prosecutors believe that the defense may call on the family testify about their opposition of capital punishment in order to persuade the jury not to impose a death sentence. In a preemptive move, the prosecutors have petitioned the judge to disallow such testimony.  The judge has yet to rule on this motion.  

Davis Murder Suspect Was Free on Probation: A 52-year-old man with an extensive criminal history was arrested last Friday as a suspect in the death of a 37-year-old woman. Lauren Keene and Tanya Perez at the Davis Enterprise report that John Paul Johnson was taken into custody Friday around 3pm by officers responding to a report of a woman had been found deceased in her bedroom. Johnson had recently been released on probation as a low risk offender under California law.  His criminal history includes charges of petty theft, grand theft, possession of a controlled substance, battery, and the brandishing of a weapon. Johnson was arraigned Tuesday evening and now awaits trial for the charges.

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