August 2006 Archives

AEDPA, Parole, and the Constitution


The Ninth Circuit issued this decision today in the case of Sass v. Cal. Bd. of Prison Terms, which on its face is a not-too-unusual parole case. The BPT made a questionable determination that an inmate convicted of second degree murder in a drunk-driving death 12 years earlier was unsuitable for parole. Between the state courts reviewing the parole decision only for support by "some evidence" and the federal courts reviewing the state court decision only for unreasonable application of Supreme Court precedent, the majority concludes (correctly in my opinion) that the federal court cannot grant relief. Judge Reinhardt fulminates, as expected.

What is interesting here is that the dissent does not question the applicability or constitutionality of the AEDPA deference standard, 28 U.S.C. § 2254(d). Judge Reinhardt recognizes it as controlling and purports to apply it. Yet in the very similar case of Irons v. Carey (CJLF brief here) Judges Reinhardt and Noonan sua sponte called for briefing on whether AEDPA is constitutional. After taking briefing on that issue, the Irons panel issued this order on October 27: "This case is referred to the Settlement Unit to explore a possible solution through mediation."

What do we make of this? Why call for briefing on a constitutional question that would be momentous if there were anything to it, then try to bury the case quietly, then matter-of-factly apply the questioned statute in a similar case without expressing any doubt as to its constitutionality? Perhaps the learned judge has realized that the briefing order in Irons was a huge mistake.

News Scan


Thomas Sowell has an interesting column in the Detroit News which compliments our August 28 post on Comparative Crime Statistics. Undoubtedly someone will be offended and perhaps confused by Sowell's assertion that "Millions of crime victims pay the price of the left's illusions about crime."

Getsy Rehearing. The Ohio Attorney General has petitioned for rehearing and rehearing en banc in the astonishing case of Getsy v. Mitchell, previously discussed here.

South Dakota Reprieve. The Capital Journal in Pierre, SD has this article on Gov. Mike Rounds' decision to delay the execution of Elijah Page rather than just direct the prison officials to follow the method prescribed by state statute. Among the critics is Jack Billion, the Democratic candidate opposing Gov. Rounds in his reelection bid.

Scheduled execution this evening in Texas. Derrick Frazier and Jermaine Herron shot and killed Betsy Nutt and her 15-year-old son with guns they stole from a nearby home. After the murders took place, Frazier and Herron loaded up Nutt’s truck with stolen property. According to this AP story, Herron was executed in May, and Frazier’s reprieve, granted earlier this year by the Texas Court of Criminal Appeals, has been lifted. Barring further delays, Frazier will be the 20th person executed in the state of Texas this year.

Florida Injection Case. The case of Clarence Hill, noted in yesterday's post on the Oklahoma execution, was remanded from the Eleventh Circuit Court of Appeals to the Federal District Court on Wednesday. Opinion here.

Oklahoma Execution

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The AP reports here that on Tuesday night, the State of Oklahoma executed Eric Patton for murdering Charlene Kauer in 1994. Patton knocked on her door and asked her for money. Mrs. Kauer gave him $10, a kindness he repaid by forcing his way in, dragging her throughout her own house while he looked for valuables, forcing her to undress, and finally stabbing her numerous times. The 1998 Court of Criminal Appeals opinion on direct appeal is here. Eight years of subsequent review in state and federal courts ended with the U.S. Supreme Court's denial of certiorari last May.

In February of this year, Patton began attacking the Oklahoma injection protocol. That claim was rejected by the administrative authorities, the U.S. District Court, and U.S. Court of Appeals for the Tenth Circuit. The latter opinion, issued last Friday, is here. In Hill v. McDonough, the Supreme Court held that civil rights suits could be used to challenge injection protocols, but inmates do not have a blank check to hold those claims until the eve of execution so as to force a stay to adjudicate them. Federal courts can deny a stay in such circumstance, and the Tenth Circuit did so in this case.

News Scan

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South Dakota Governor has halted the state's first execution since 1947. The Governor's decision was based upon a discrepency between the lethal injection protocol in state law and the one the department of corrections planned to use, according to a story in the Rapid City Journal by Kevin Woster.

Former Whitewater prosecutor Ken Starr has filed a cert petition in the United States Supreme Court seeking review of a Ninth Circuit ruling which held that an Alaska high school principal violated a student's First Amendment rights by suspending him for holding up a banner proclaiming "Bong Hits 4 Jesus" at a 2002 Olympic Torch rally. The Associated Press story story reports that Starr and two of his colleagues at the Los Angeles firm of Kirkland & Ellis are arguing that the lower court ruling was improper. The ruling in Frederick v. Morse is here

Comparative Crime Statistics

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From the United Kingdom comes this story in the Daily Express, titled "Why we don't send enough criminals to prison." The story discusses the incarceration rate in England and Wales, correctly using the rate of prisoners per crime, not the meaningless but often-cited number of prisoners per capita. (Crime stats for England and Wales are tabulated separately from Scotland and Northern Ireland.)

The story notes that E&W has one of the lowest incarceration rates in Europe and, probably not coincidentally, one of the highest crime rates. Surprisingly, the story reports that the E&W crime rate "is far higher than America."

Brookings Death Penalty Forum


On Tuesday, September 5, the Brookings Institution will host a forum titled "What Should Be the Future of the Death Penalty?"

"Panelists will include: Congressman Dan Lungren (R-Cal.), and former California Attorney General 1991 - 1999; Ruth Friedman, director of the Federal Capital Habeas Project; Kent Scheidegger, legal director and general counsel at the Criminal Justice Legal Foundation; and Ginny Sloan, president and founder of the Constitution Project. Stuart Taylor, Jr., a nonresident senior fellow at Brookings and a writer for National Journal and Newsweek, will moderate the panel."

Live coverage on CSPAN is possible but not confirmed.

News Scan

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CSI: Backlog. has this story on backlogs in state crime labs, noting that overemphasis on DNA can aggravate backlogs on other kinds of forensic evidence.

First execution in South Dakota in 59 years to take place tomorrow evening. 24-year-old Elijah Page is scheduled to be executed by lethal injection tomorrow in South Dakota. After planning on stealing from him, Page and two accomplices tortured and murdered Chester Allan Poage. Page and Briley Piper were sentenced to death and Darrell Hoadley was sentenced to life in prison with no chance of parole. The AP story reports that because Elijah Page chose to be executed, he has up until the last minute to change his mind and continue his appeals.

Felon Voting

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Roger Clegg of the Center for Equal Opportunity has this article in the Wall Street Journal. "We should have fewer felons voting, not more." CEO, CJLF, and the Piagentini family were co-amici on a brief in the Second Circuit in the joined cases of Muntaqim v. Coombe and Hayden v. Pataki. The brief is here. The Second Circuit opinion in Hayden is here. Hayden has an extension of time until September 1 to file a certiorari petition in the Supreme Court. Muntaqim's suit was dismissed on the ground that he is not a resident of New York, even though he has been incarcerated there since 1972 and should remain so for the rest of his life.

Briefs in Musladin

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The "bottom side" briefs have been filed in Carey v. Musladin. This is the case where the Ninth Circuit granted a writ of habeas corpus because the trial judge had allowed members of the victim's family to wear buttons with his picture and nothing more. The briefs are collected here. Judge Reinhardt's opinion and Judge Thompson's dissent are here. The order denying rehearing en banc and the dissents of seven judges from that order are here.

News Scan


Why should the Department of Correction pay for sex-change operations for transgender inmates?
Robert J. Kosilek, an inmate serving a life in prison sentence for murdering his wife, has caused quite a debate. After two lawsuits and two trials, it now rests in the hands of a federal judge as to whether or not the DOC should pay for inmates to have sex-change operations. Kosilek legally changed his first name to Michelle in 1993, says he is a woman trapped in a man’s body. According to the AP story a court has never ordered a sex-change for an inmate in this country.

Death Penalty Upheld. The California Supreme Court has upheld the conviction and death sentence of an Oakland man who killed a bartender during a 20-day crime spree in 1988/89. The story by San Francisco Chronicle reporter Bob Egelko reported that the defendant planned to appeal his Batson claim, which was rejected in the state court's decision.

An Oregon law that makes it a crime to disobey a police officer was upheld by that state's Supreme Court yesterday according to a story by Oregonian reporter Ashbel S. Green. The Court's unanimous decision in Oregon v. Illig-Renn is available here.

News Scan


Lethal Injection. Dudley Sharp has this article in Dakota Voice on the lethal injection controversy.

Border Patrol. Debra Saunders has this article in the San Francisco Chronicle on the prosecution of two Border Patrol agents for use of allegedly excessive force against a drug smuggler.

Justin Fuller is scheduled to be executed this evening in Texas by lethal injection. In April 1997 Donald Whittington III, was abducted, robbed, and murdered by Fuller and three other accomplices. The AP story is here.

NSA Case Conflict Flap

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Eric Lichtblau of the New York Times reports here that Judge Anna Diggs Taylor, author of the controversial NSA surveillance ruling, is the secretary and a member of the board of trustees of a foundation that has given at least $125,000 to the ACLU. The ACLU is a party to the case, and the question of whether it has standing is one of the controversial aspects of the decision. Stephen Gillers is quoted in the article as saying this was not grounds for recusal but should have been disclosed. The double standard between this opinion and his stance on the even more tenuous conflict claim regarding the Scalia/Cheney duck hunting trip is noted by James Taranto here. Matthew Franck and Ed Whelan weigh in at Bench Memos here and here, respectively.

News Scan


A mucho stupid Pennsylvania man, convicted of drunk driving, showed up for his sentencing drunk according to this story by Morning Call reporter Chris Parker. The judge was thoroughly displeased.

A habitual sex offender with 14 priors, set free last year by a compassionate Washington jury, is back in jail facing charges for the 2004 rape and murder of a young woman according to a story by Tracy Johnson in the Seattle Post Intelligencer.

Cannibalistic plot? Kevin Ray Underwood made his first court appearance this morning in Purcell, Oklahoma. A judge ruled today that Underwood will be charged with first-degree murder for the strangulation of 10-year-old Jamie. According to the AP story, Underwood planned on eating the girl’s nearly decapitated body.

Oklahoma Execution. In other Oklahoma news, the state has modified its injection protocol to meet objections, according to this AP story. (Hat tip: Doug Berman.) However, the scheduled execution of James Malicoat was stayed anyway on the unusual ground that he was needed to testify in another inmate's hearing, according to this later AP story.

News Scan

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More on the NSA Case. James Q. Wilson has this op-ed in the Wall Street Journal (subscription) critiquing the decision in the NSA surveillance case. Adam Liptak has this article in Saturday's New York Times describing how even experts who agree with the decision are shaking their heads over the poor quality of the opinion. Last week, the NYT declared it "a careful, thoroughly grounded opinion" in this editorial, an assessment which appears to have drawn few concurrences.

Mental Health Court. Also in the WSJ is an article by Gary Fields on Brooklyn's mental health court. Among the defendants are one who tried to rob a bank while brandishing a TV remote control and another who tried to rob ATM patrons by holding a knife to his own throat.

Supreme Court. The Supreme Court has issued the second of its three summer orders lists. As expected, there are no grants or denials of certiorari, only denials of stays and rehearings and a few bar discipline matters. One of the latter is the former Attorney General of Texas, Dan Morales. AP story here.

Padilla Case. In Miami, the AP reports, U.S. District Judge Marcia Cooke threw out one count of the case against alleged al-Qaida operative Jose Padilla, on the ground it was duplicative.

Saddam Trial. The second trial of Saddam Hussein, for the Kurdish genocide, began today with the deposed dictator refusing to enter a plea, Amit Paley of the Washington Post reports here.

NSA Appeal & the Sixth Circuit

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An AP story by Dan Sewell begins, "Even though the administration's warrantless surveillance program is heading toward an appellate court loaded with Bush appointees...." The second paragraph quotes a law professor on what a "conservative-dominated" court is likely to do.

Huh? "Loaded"? "Conservative-dominated"? The Sixth Circuit?

Aryan Brotherhood Decision


In United States v. Mills, the Aryan Brotherhood case noted in the previous post, U.S. District Judge David Carter of the Central District of California held that the Confrontation Clause applies to the entire penalty phase in a federal capital case, not just the factors needed to make the defendant eligible for the death penalty. This decision conflicts with Judge Henry Hudson's opinion in United States v. Jordan, 357 F. Supp. 2d 889 (E.D. Va. 2005). If the district court split develops into a circuit split, which is likely, this dispute is headed for the Supreme Court. In my humble opinion, Jordan is correct.

A federal district judge has ruled that two leaders of the Aryan Brotherhood prison gang have the right to confront the witnesses against them in the sentencing hearing following their murder conviction. The Associated Press story by Linda Deutsch provides details. The federal court decision is available here.

News Scan

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Richard Hinojosa was executed yesterday in Texas for abducting, raping and fatally stabbing Terry Wright in 1994, he was pronounced dead at 6:19p.m. CDT. According to the AP story, Hinojosa spent 2½ years in prison for fatally shooting a man in 1986.

Samuel Flippen who was convicted of first-degree murder for beating his 2-year-old stepdaughter to death over a decade ago, was executed this morning in North Carolina. He was pronounced dead at 2:11a.m. EDT. The AP story is here.

Blog Scan

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Eugene Volokh, Orin Kerr, and Dale Carpenter critique the NSA surveillance opinion, noted in today's News Scan, at the Volokh Conspiracy.

William Tucker has this article about the history, and possible future, of the exclusionary rule at The Weekly Standard (hat tip: Matthew Franck). Are we one appointment away from overruling Mapp v. Ohio?

Joel Jacobsen at Judging Crimes has this post about the relationship between income and victimization in America and this post questioning the presumption against waiver of constitutional rights.

Gary Becker and Richard Posner write on counterterrorism, profiling, impact on civil liberties, and British v. American approaches to intelligence here.

News Scan

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An Ohio man has received a second death sentence for the 1995 rape and murder of a 13-year-old Akron girl. Donald Craig had previously been sentenced to death for the 1996 murder of another young girl according to story in the Cleveland Plain Dealer by Karen Farkas.

The impact of illegal immigrants on crime was the subject of a Congressional subcommittee hearing in Houston yesterday. The five-hour hearing included testimony from crime victims and law enforcement officials as reported in the Houston Chronicle by Associated Press reporter Juan A. Lozano.

An ACLU lawsuit has "handcuffed" police efforts to control crime on skid row in Los Angeles, according to Chief William Bratton. The story in today's Los Angeles Times by Cara Mia DiMassa and Richard Winton reports that the Police Department's campaign to impliment a "broken windows" policy in the city's central district, which cracks down on low level crimes, has been frustrated by a Ninth Circuit ruling in Jones v. City of Los Angeles, No. 04-55324, on April 14 which halted police from arresting vagrants for sleeping or lying on sidewalks. The city's petition for rehearing is pending, and the court has referred the case to its mediation unit. Query: Is the enforceability of a law a proper subject for mediation?

Terrorist Wiretapping. A federal District Judge in Detriot has ruled that the government's warrantless wiretapping of suspected terrorists is unconstitutional according to a story by Associated Press reporter Sarah Karush.

News Scan

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JonBenet. John Mark Karr was arrested in Bangkok, Thailand today for the murder of JonBenet Ramsey 10 years ago, according to this AP story

Texas Execution. The Supreme Court denied a stay of execution, without recorded dissent, to Richard Hinojosa. In 1997, Hinojosa broke into the home of his next-door neighbor Terry Wright, kidnapped her, raped her, and stabbed her 11 times in the back. He had previously been convicted of manslaughter and robbery. The Texas AG information sheet is here. Texas DoC info here.

Broken Windows. The Denver Post has this article on the success of "broken windows" policing in a Denver neighborhood.

Capital Case Pace. The Winston-Salem Journal has this article on an upcoming execution in North Carolina and why capital cases often move at different speeds within the same jurisdiction. (Hat tip: Doug Berman.) All of the "experts" quoted on the subject are defense-side types, but that may not be the reporter's fault. Regrettably, many AG offices have policies that expressly or effectively prevent the government attorneys from commenting publicly. This is a significant loss for the public discourse.

DNA Dividends. "DNA testing has connected a man in custody on sexual assault charges with at least four prostitutes found beaten to death on the city's east side, Detroit police said." AP story here.

The United States Supreme Court's 2004 decision in Crawford v. Washington may weaken efforts by federal prosecutors who are seeking the death penalty for leaders of the Aryan Brotherhood prison gang. The decision strengthens the right of defendants to confront the witnesses against them. Recently, several members of the Aryan Brotherhood were convicted in federal court of murder, conspiracy and racketeering, primarily on documentary evidence. Now that the case has reached the sentencing phase, defense attorneys representing the gang members are asking the federal district court to require the prosecution to produce live witnesses or "nothing at all", according to an Associated Press story by Gillian Flaccus. One wonders how many live witnesses would remain alive after testifying against prison gang members who are known to arrange the murders of people outside of prison.

November Sup. Ct. Arguments

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Below are the criminal and law-enforcement-related civil cases to be argued in the United States Supreme Court in the second session of the Term, October 30 through November 8. Links to the docket are provided and to the lower court decision in some cases. The docket includes a link to the Questions Presented (QP) page. Bear in mind that the QP is generally drafted by an advocate for one party (the one who lost in the court below) and not by the Court.

Monday, October 30: Jones v. Bock, No. 05-7058, and Williams v. Overton, No. 05-7142. The Court returns once again to the requirement of the Prison Litigation Reform Act that prisoners exhaust their administrative remedies before filing a federal civil rights lawsuit. The questions include whether a "mixed" petition with both exhausted and unexhausted claims must be dismissed and two questions on pleading requirements.

Tuesday, October 31: Lawrence v. Florida, No. 05-8820. The AEDPA statute of limitations, 28 U.S.C. § 2244(d), is tolled while an "application for State post-conviction ... review ... is pending...." Does that include the time when a certiorari petition seeking U.S. Supreme Court review of the denial of the application is pending or could have been filed? If not, does equitable tolling apply to this statute and in the circumstances of this case? USCA11 said no.

Wednesday, November 1: Whorton v. Bockting, No. 05-595. Does Crawford v. Washington's rewrite of the Court's Confrontation Clause jurisprudence apply retroactively to overturn a final conviction correctly decided by the state supreme court under the rule in effect at the time? USCA9 said yes, 2-1.

Tuesday, November 7: James v. United States, No. 04-9264. Does a prior conviction of attempted burglary qualify as a "violent felony" within the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e)? USCA 11 said yes.

   Burton v. Waddington, No. 05-9222. Does Blakely v. Washington's expansion of the kinds of sentencing factors that must be proved to a jury beyond a reasonable doubt apply retroactively to cases already final on appeal when that case was decided? USCA9 said no in an unpublished opinion, based on its 2005 precedent in Schardt v. Payne.

Blog Scan

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Howard Basham provides this preview of the first oral arguments scheduled to be heard by the Supreme Court next term in his "On Appeal" column for

Lyle Denniston at SCOTUSblog has this post on the November calendar just announced.

46 relatives of a N.C. death row inmate have filed a lawsuit asking that they all be allowed to attend the execution. The Associated Press story is here (hat tip: Sentencing Law & Policy).

News Scan

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British Intelligence. Rivkin and Casey have this op-ed in the Wall Street Journal on lessons we can learn from the British regarding counterterrorism, although they concede our Constitution would not allow some of them.

Ryan Deposition. The AP reports here that a federal magistrate judge has ordered former Illinois Gov. George Ryan to give a deposition on his decision to pardon four death row inmates. Ryan claimed executive privilege, but the magistrate ruled that going on "Oprah" and telling the world about a decision waives the privilege.

A San Bernardino jury has return a verdict of death for Wayne Adam Ford, who was found guilty of the murder and mutilation of four California women in 1997-98, as reported by Associated Press writer Andrew Glazer.

NY Subway Searches

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Yesterday, the Second Circuit upheld the program of random bag searches in the New York subway system.

As set forth more fully below, we hold that the special needs doctrine may apply where, as here, the subject of a search possesses a full privacy expectation. Further, we hold that preventing a terrorist attack on the subway is a “special” need within the meaning of the doctrine. Finally, we hold that the search program is reasonable because it serves a paramount government interest and, under the circumstances, is narrowly tailored and sufficiently effective.

Decision here. AP story here. The NYCLU is considering an appeal.

Ayers v. Belmontes Briefs

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The brief for the defendant/habeas petitioner/Supreme Court respondent has been filed in the case of Ayers v. Belmontes, previously noted here. The merits briefs filed so far are collected here.

Curiously, there are no amici supporting the defendant. This seems to be happening more often in capital cases. We saw it last term in Oregon v. Guzek. Why none in this case?  Maybe the national capital defense folks are focused on the South and consider this a uniquely California problem. Maybe they consider it a hopeless loser and don't want to throw resources on a lost cause. Maybe defense counsel asked them not to, on the theory that flocks of amici would be inconsistent with his strategy of painting this as a fact-bound case of limited significance.

DNA Decision

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On July 7, the California Supreme Court decided "a narrow, but important, question" on presenting DNA match probabilities to the jury. When the defendant's DNA profile matches the crime scene sample, the expert typically calculates the probability that such a match could occur at random. Because the markers used vary in their frequency in different racial groups, the probability can vary by race. This is not a problem when the perpetrator's race is established by independent evidence, such as the testimony of the victim in a rape case. However, there is a question of how to handle these numbers in crimes where there is no surviving witness.

News Scan

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Terror Plot. The Wall Street Journal has this editorial on the foiled airplane terror plot. "A terror plot is exposed by the policies many American liberals oppose."

USCA9 Flips Death Sentence. The U.S. Court of Appeals for the Ninth Circuit demonstrates yet again why the Antiterrorism and Effective Death Penalty Act of 1996 was necessary, as it overturns yet another pre-AEDPA California death sentence for less-than-immaculate assistance of counsel. David Kravets of AP reports here. Both the California courts and the federal district court had previously upheld Richard Hovey's conviction and sentence for the 1978 kidnapping and murder of 8-year-old Tina Salazar. Three months after committing this crime, but before he was caught, Hovey kidnapped another little girl.

Psychologists and Interrogations. "The American Psychological Association took a stand against torture Thursday but kept an existing policy saying that it's ethical for psychologists to assist in military interrogations," the AP reports here.

Mandamus in the Wind


In In re Blodgett, 502 U.S. 236 (1992), the State of Washington asked the Supreme Court to issue a writ of mandamus directing the Ninth Circuit to decide a successive-petition habeas case which the Ninth had sat on for two and a half years after briefing and argument. The high court denied the writ because it did not feel that the State had made quite enough of an objection below, but it sent a clear warning, laying down this rule: "In a capital case the grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case." Id., at 240. This rule is routinely ignored in the Ninth Circuit.

News Scan


2d Update (8:34am Friday): Report on the completed execution is here.

Update (3:45 PDT): The Helena Independent Review reports on the judge's denial of intervention here. The judge ruled that the ACLU, et al., were violating Dawson's fundamental right to privacy by interfering with his decision.

Montana Execution. David Dawson is scheduled to be executed tomorrow morning in Montana. Dawson kidnapped a family of four, then killed the mother, father and their 11-year-old son. The sole survivor was the family’s teenage daughter who was found unharmed by police. Judge Jeffrey Sherlock listened to arguments this morning from both sides as the whether or not Dawson should still be executed as planned. A decision will be made no later than 2:00 p.m. MDT today. More on the story can be found here.

Term Limits for Judges? John Andrews has this op-ed in the Wall Street Journal on a Colorado initiative setting a 10-year term limit for judges.

Blog Scan

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Justice Kennedy has ticked off both Doug Berman at SL&P and Matthew Franck at Bench Memos in the same speech.

Workplace Privacy. Orin Kerr has this long post on the Volokh Conspiracy regarding a Ninth Circuit decision on workplace privacy, kiddie porn on the office computer, and the exclusionary rule. It appears the case was not well briefed and missed the important public v. private search distinction.

ABA. The folks at Bench Memos thrash the ABA throughout its annual meeting. The Federalist Society has a daily email tracking the goings-on, which are archived here. We will have some comment on the criminal law aspects of the meeting here shortly.

Gambling. Becker and Posner discuss internet gambling and the criminalization of gambling generally. (They're mostly against the latter.)

Skakel v. Connecticut. SCOTUSblog has this post on the Court's request for a response to the certiorari petition in this notorious case. Who would the Kennedy clan hire when they need the very best Supreme Court advocate? Check the docket here.

Participatory Journalism? Best of the Web today, a daily email from the Wall Street Journal, calls our attention to this AP story on the Connecticut primary:

"They call Connecticut the land of steady habits," a jubilant Lamont told cheering reporters. "Tonight we voted for a big change."

News Scan

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A woman from Indiana was sentenced Tuesday to a 110 year prison term for bludgeoning her two sons to death with a 10-pound weight in 2005. Read the full AP story here.

A U. S. Citizen is being charged with smuggling 3 illegal immigrants into the United States. The immigrants were found sewn into the van seats after a secondary inspection was made. More on this bizarre story can be found here.

New Blog

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Doug Berman points us to a new blog, Corrections Sentencing, "a place for corrections/sentencing policy readers seeking latest information and research, answers to questions and concerns, or just general conversation on shared worlds." The current (as of Wednesday morning) post is titled "What Works and How do we know it works." It is a discussion of evidence-based policy in sentencing, the idea that policy should be based on methods proven to work with hard evidence rather than ideology. Insistence on hard evidence might have prevented the disaster of the 1960s and 1970s, when our sentencing policy went soft on the unfounded assumption that we knew how to "fix" criminals. Crimes rates soared. As those who have forgotten this history prepare to repeat it, skeptical and critical examination of the proposals are very much in order.

We welcome Corrections Sentencing to the discussion and look forward to a stimulating exchange of ideas and information.

News Scan

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Prosecutor Argument. The South Carolina Supreme Court has overturned the murder conviction of a man found guilty of killing his estranged wife. The Court ruled that the prosecutor's closing argument, which urged jurors to identify with the victim, encouraged them to "abandon their impartiality" as reported in a story by Rick Brundrett of McClatchy Newspapers. The Court's decision is available here.

Ohio Execution. Darrell Ferguson, "a man who said he worshipped Satan and enjoyed killing three people, stabbing and beating them and stomping on them with steel-toed boots, was executed Tuesday," reports the AP.

Chutzpah. Antoine Yates sued the City of New York because the police entered his apartment without a warrant. It seems Mr. Yates went to the hospital three days after being bitten by his pet tiger. The police went in under the emergency exception (see, e.g., Brigham City v. Stuart) to remove the tiger and an alligator. U.S. District Judge Sidney H. Stein dismissed the lawsuit, describing it with the Yiddish term for audacity. The AP story is here.

Night Stalker. Maura Dolan reports on the Night Stalker affirmance in the L.A. Times.

More on Injection. Henry Weinstein has this article in the L.A. Times on lethal injection in Oklahoma.

Night Stalker Affirmance

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Today, August 7, 2006, the California Supreme Court affirmed the November 7, 1989 sentence of Richard Ramirez, the "Night Stalker." David Kravets of AP has this story on the case.

No, that is not a typo. This appeal was pending before the California Supreme Court for 16 years and 9 months. The docket is available here.

One might think that the State Senator from East L.A. would be outraged by this astonishing delay and would demand that something be done. Think again. Sen. Gloria Romero sits on the Senate Public Safety Committee and has consistently voted to kill every attempt to fix this problem while offering no solutions of her own.

Second-Hand Nonsmoke

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Can not smoking be hazardous to another person's health? This AP article reports on the appeal of Ohio murderer Phillip Elmore, now pending before the Ohio Supreme Court. " 'The judge's refusal to make any accommodation of jurors' request to smoke predisposed those jurors to agree on a quick decision,' Elmore's lawyers wrote."

In recent years, the U.S. Supreme Court has shown an increasing tendency to read the Bill of Rights as requiring conformity to the procedures of the common law. We saw that in Crawford v. Washington and the Apprendi-Blakely-Booker line. So what did the common law say about discomforting jurors?

"[I]n order to avoid intemperance and causeless delay, [the jury] are to be kept without meat, drink, fire, or candle, unless by permission of the judge, until they are unanimously agreed. A method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of great concern.... But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict. it is fineable.... And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart." 3 W. Blackstone, Commentaries on the Laws of England 375-376 (1st ed. 1768).

This passage is in the volume on civil cases, but Blackstone does not indicate the procedure was any different for criminal cases.

News Scan

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Violent Felons. The Bureau of Justice Statistics has this report titled "Violent Felons in Large Urban Counties." Among the findings are that 38% had prior felony convictions, less than half of which were for violent felonies, further refuting the notion that criminals are neatly categorized as violent or nonviolent. The AP reports on the report here.

Self-Defense. Adam Liptak has this story in the New York Times on a trend in state laws expanding the right of self-defense.

California Prisons. Jeanne Woodford, who resigned as acting head of California's prison system, has this op-ed in the Los Angeles Times.

The Chief Justice
. Charles Lane of the Washington Post has this article with some personal glimpses of Chief Justice Roberts. He also quotes a C-SPAN interview, available here, in which the Chief laments that people are looking to the Supreme Court to settle issues that should be settled politically.

Mafia Lawyers. The National Post of Canada has this story on the misuse of attorney-client privilege by lawyers for the Mafia.

Drones. The Wall Street Journal (subscription) has this article on the FAA's reluctance to allow the use of unmanned aircraft by (among others) law enforcement agencies.

News Scan

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Several large American cities are suffering from rising crime this year. In Oakland, Mayor Jerry Brown, who is running for California Attorney General, is taking a carrot and stick approach according to this story by By Heather MacDonald in the Oakland Tribune.

In Washington DC, the Chief of Police has set a 10:pm curfew for juveniles, in an attempt to control crime according to a report by Robert Samuels in the Washington Post.

In Philadelphia rising crime has become the political issue in the mayor's race according to a survey reported in the Philadalphia Daily News by Catherine Lucey.

Phoenix police have arrested two men they believe are responsible for three dozen random shootings according to an ABC news report by Chris Kahn.

Sixth Circuit Head Shaker


On Wednesday, the Sixth Circuit issued a decision which is so patently lawless, so obviously violates the limits placed on habeas corpus by Congress and the Supreme Court, as to be beyond belief. The 2-1 decision in the case of Getsy v. Mitchell effectively arrogates to a federal habeas court the power to conduct intracase proportionality review and commute a death sentence because the judges think that a co-defendant who got life was more culpable. Congress has limited federal habeas to enforcing clearly established federal law as determined in Supreme Court precedents. The precedents claimed as clearly establishing this rule are Furman v. Georgia and Enmund v. Florida, neither of which establishes a rule that is even in the ballpark. The decision also creates a new rule on habeas corpus, in clear violation of the Supreme Court's decision in Teague v. Lane.

No competent judge could seriously believe that this decision is within the authority of the court. This is raw defiance. Hopefully, the Sixth Circuit now has a majority of judges who understand and respect the limits of their authority and will correct this disgrace of a decision en banc. If not, it is a prime candidate for another spanking via summary reversal by the Supreme Court.

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A federal judge has certified 10,000 registered sex offenders in Georgia as a class for a lawsuit challenging the state's new sex offender law according to a story by Jill Young Miller in the Atlanta Journal Constitution.

A California prison inmate serving time for two previous murders has been convicted of the murder of his cellmate. The details are reported by Ramon Coronado in the Sacramento Bee. One wonders if a sentence of life in prison would deter this fellow from killing again.

Federal authorities have broken up a multi-state enterprise which operated brothels using illegal immigrants as prostitutes according to an Associate Press story in the Dallas Morning News.

Jackson Mississippi Mayor Frank Melton has been accused by the national ACLU of racial profiling in his effort to reduce crime according to an Associated Press story by Shelia Byrd published in the Seattle Post Intelliegencer.

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Here are a few notes from the blogosphere as we enter the dog days of August.

Ed Whelan at Bench Memos is thrashing the ABA over its handling of its evaluation of Fifth Circuit nominee Mike Wallace.

Doug Berman at SL&P has this post on victim impact statements and this one on a district court decision on Blakely and Booker. The opening paragraph of the opinion blasts the American judicial system for all the terrible things it was doing before these decisions. Doug calls it "powerful." I call it oblivious to the fact that the application of the Sixth Amendment jury trial right to sentencing factors is a close call on which reasonable people can and do differ.

Capital Defense Weekly has a few interesting items, including publication of a diatribe from Pennsylvania murderer Antuan Bronshtein. The latter continues to attack Justice Alito, despite the fact that then-Judge Alito decided the penalty-phase issue in his favor, incorrectly, in my humble opinion.

Retardation Claims


On June 20, 2002, the United States Supreme Court announced in Atkins v. Virginia that execution of a mentally retarded person was unconstitutional. Since then, the anti-death-penalty crowd has expressed disappointment that there have not been a great number of sentences overturned on this ground. Some see dark conspiracies to evade the law and execute retarded people anyway (see, e.g., Elaine Cassel on Findlaw).

A simpler explanation is that juries were sentencing very few retarded people to death before Atkins, and most of the claims being made now are bogus. From Alameda County,* California, comes this scathing trial court decision on one such claim. This is a sordid tale of experts who prostitute themselves to achieve a particular result, of lawyers who feed them a filtered version of the facts to support the result they want, and of lay witnesses who simply lie through their teeth.

* Oakland and vicinity

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Members of the European Union are concerned about a call by Polish President Lech Kaczynski for a discussion about restoring the death penalty, according to a BBC story and a Reuters story in the Washington Post

Convicted sex offender Harold E. Grist, Jr. almost shortened his sentence. After a jury convicted him of 10 felony charges of molestation, Grist shot himself in the head. However, he is recovering and will be formally sentenced on September 27th, where he faces a maximum of life in prison. The AP story can be found here.

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