November 2006 Archives

Prisoner Stats


The Bureau of Justice Statistics has released its annual report on prison populations. As usual, the report emphasizes the number of people in prison and what they call the "incarceration rate," i.e., the number in prison relative to the total population. The latter invariably prompts much hand-wringing every time it is announced, even though by itself it is a nearly useless number that tells us almost nothing about policy.

This "incarceration rate" is actually made up of at least two factors which must be determined and considered separately to see anything meaningful. The number of prisoners per capita is the product of prisoners per criminal times criminals per capita. For the algebraically inclined, Pr/Pop = Pr/Cr * Cr/Pop. The first factor is the percentage of criminals society chooses to lock up; the second is the percentage of people who choose to commit crimes. Because the two factors represent different choices by different people, it makes little sense to lump them together, and the undifferentiated product of the two tells us very little. A high "incarceration rate" could mean a society has strict sentencing policies, or it could mean the society is plagued with a high crime rate, or it could be a combination of the two.

The first factor could actually be broken down further as prisoners per criminal we catch times the proportion of criminals we catch. That separation would further separate our ability and determination to catch criminals from our determination to punish the ones we catch.

The situation is further complicated by interrelation of the factors. The probabilities of being caught and of being punished if caught are factors that go into a rational actor's decision to commit a crime. Were the low sentencing rates of the 60s and 70s a cause of the high crime rates of the 80s and 90s and the subsequent high sentencing rates? Quite possibly. The increase in prison population in California from the Three Strikes Law was much less than projected. That may be in part because the law contributed to California's rapidly declining crime rate. A dated but possibly still interesting article on these topics by yours truly and Michael Rushford is available here.

Stand by for a raft of simplistic denunciations that ignore these issues and cite the "incarceration rate" as proof that America is a cruel and heartless society. Bonus points to any reader who finds a single mention of how many people have not been robbed, raped, or murdered because we toughened up sentencing in the 80s and 90s.

News Scan

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Juror Misconduct? A sequestered jury finds inventive ways to pass the time at a hotel. The defense is not amused. The AP reported in a story found here in the Houston Chronicle.

Trial Begins. The jurors are being selected as the trial begins for parents accused of caging adopted kids. As reported here by Fox News.

Eight Years. Woman who injected her nephew with heroin is sentenced. See the story reported on Fox News.

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Lethal Injection Attorneys representing condemned murderer Michael Morales have filed a brief in federal court alleging that the San Quentin team that conducts executions by lethal injection is incompetent and that the facilities are inadequate according to a story by Henry Weinstein in today's Los Angeles Times. The claims appear to be the same as those presented during hearings earlier this year by federal judge Jeremy Fogel, to determine if the state's execution process violates the Eighth Amendment.

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"Performance Art". "The Black Repertory Group will re-enact the execution of Crips co-founder and murderer Stanley Tookie Williams to mark the one-year anniversary of the former gang leader's death by lethal injection," reports Kim Curtis of AP. An eyewitness account of the execution from last year by John Simerman of the Contra Costa Times is here.

Corp. Crim. U.Chi. Prof. Richard Epstein has this article in the Wall Street Journal (subscription) on "The Deferred Prosecution Racket." The Heritage Foundation is having an event Thursday on "The Future of the Attorney-Client Relationship in White-Collar Prosecutions."

Victimization. The Gallup Poll has its own version of the National Crime Victimization Survey here (free today only). This survey comes out faster than the government's stats, but differences in methodology make them not directly comparable. There is not much change from the year before.

Jessica's Law A federal judge has extended the TRO on the sex offender residency restriction in California's Proposition 83, as the Attorney General's position regarding its retroactive application evolves. A story by Bob Egelko from today's San Francisco Chronicle provides the details.

Death Penalty The execution this Friday of a South Carolina murderer Guy LeGrande, whose mental status is in question, has been delayed for 60 days to allow a psychiatric evaluation according to a story by Emily Achenbaum in the Charlotte Observer. LeGrande murdered a 26-year-old mother of two with a shotgun in 1993. He was hired to kill the woman by her estranged husband.

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Judicial Activism. Ed Whelan reviews The Myth of Judicial Activism by Kermit Roosevelt in the Weekly Standard.

Prisons Sacramento Bee columnist Dan Walters discusses the overcrowding problem in California's prison system in a piece published in Saturday's paper. He fixes responsibility where it belongs, with a legislature which refuses to act, and the state's new Attorney General, who as Governor set in motion the forces which have prevented rational reform for three decades.

Death Penalty In a recent radio interview, a former member of Britain's House of Lords admitted that while a majority of the English support the death penalty for the worst murderers, Parliament has no intention of enacting such a law. Perhaps a change is in the wind. A story in today's issue of The Evening Standard reports that a 34-year-old political novice has defeated several experienced politicians and "is now set to become Britain's first woman Asian PM (Parliment member)." Central to her campaign was her interest in restoring capital punishment.

Woman missing 10+ days found dead in own home. Mariesa Weber’s mother was the last to see her daughter alive after she had returned home on October 28. After searching the home for clues, her family members suspected she had been kidnapped and contacted the sheriff’s office. On November 9, Weber’s sister found Mariesa’s lifeless body in her own room behind a bookcase. According to the Associated Press story, the woman died after leaning over a bookcase to adjust a television plug and falling behind it head first. Authorities believe she couldn’t breathe in the position she was in and died as a result of it.

No Cert. Grants

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The Supreme Court issued its orders list this morning. No new cases were accepted for full briefing and argument. There was one summary disposition in a civil case.

More on Habeas and the MCA

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In the Dec. 4 issue of The New Yorker, Jeffrey Toobin has an article titled "Killing Habeas Corpus: Arlen Specter's about-face." (Hat tip: Ward Campbell.) The thrust of the article is that the Great Writ has been killed by the Military Commissions Act of 2006, denying the writ to enemy aliens, but the Supreme Court will likely strike this provision down. It goes into how Arlen Specter opposed the provision but voted for the final bill. Curiously absent from the article is any evidence of awareness on Toobin's part that there is a strong historical argument that enemy aliens did not have the privilege of habeas corpus at common law and therefore do not come under the constitutional guarantee of that privilege. The curious thing is not that Toobin isn't convinced by that argument. What is strange is that he seems to be blissfully and smugly ignorant that a controversy exists. The first half page of the article is all about how important habeas was historically and the narrow circumstances under which the privilege could be suspended, without a single word about whether that historical privilege ever extended to enemy aliens.


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The Supreme Court returns for its two week post-Thanksgiving argument session tomorrow. In five days there is not a single criminal or habeas case. There is one crime-related immigration case, Gonzales v. Duenas-Alvarez on Dec. 5. The question is whether "aggravated felony" for the purpose of 8 U.S.C. § 1101 (a)(43)(G), includes aiding and abetting a qualifying theft offense.

The Court will probably announce an orders list from Wednesday's conference. If they had decided to grant a case and intended to hear it in February, they would normally have announced it the same day to cramp the briefing schedule as little as possible. They did not, so it appears that any granted cases will be for March, and the February calendar will be light.

The remarks of Justices Scalia and Alito to the Federalist Society are available on C-SPAN. Go to their home page, click on the "All Recent Programs" link at the bottom, and page through until you get to the programs of Nov. 18.

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Lethal Injection The Kentucky Supreme Court has unanimously upheld that state's four-drug lethal injection combination according to an Associated Press story by Brett Barranguere. The opinion is here.

Violent Crime A preliminary report from the California Department of Justice indicates that violent crime rose in the state's largest cities during the first six months of 2006, as reported in an Associate Press bulletin available here.

Getsy Rehearing

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The Sixth Circuit has granted rehearing in the case of Getsy v. Mitchell, previously noted here and here. CJLF's brief in support of the rehearing petition is here.

From mental disease to mental abnormality


Guest Post by Steven K. Erickson, J.D., LL.M., Ph.D., MIRECC Fellow, Yale University

An enduring controversy within the law is what effect a defendant’s mental illness should have in terms of culpability. While the 1980s saw a backlash against the insanity defense after the acquittal of John Hinckley, Jr., recent years have witnessed a far more perplexing situation: the elevation of the sexual predator beyond the deviant lurking in the proverbial trench coat to the online super-predator whose lascivious trap lies behind every child’s next mouse click. The evolution of the sexual offender is both remarkable and revealing. Remarkable because contrary to insanity movement post-Hinckley, the courts have readily accepted the notion that sexual offending involves some type of “mental abnormality”; revealing because the law’s skepticism of mental health professionals evaporates nearly instantaneously when science provides a means to lifetime incarceration. Yet, in some ways, the law cannot be blamed: the number of “classifiable” mental disorders has grown exponentially in the past 60 years and, so too, has society’s acceptance that most bad behavior is in some ways due to “something in the head.” Yet, the history of psychiatric nosology is colored as much by cultural fads as by science, and we should think carefully about how mental health concepts influence the law.

Filing in People v. Taylor (NY)

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On Nov. 21, the New York Court of Appeals granted CJLF's motion to file an amicus brief in People v. Taylor. Taylor was sentenced to death for a robbery-massacre in a Wendy's restaurant before the NYCA threw out the entire New York death penalty law in People v. LaValle. That decision is a remarkable piece of jurisprudential jujitsu. The court leveraged a minor problem on jury instructions in the case of deadlock into a complete invalidation of the New York death penalty, despite an express severability clause in the statute and its own precedent on the effect of that clause. That portion of the LaValle opinion is not only wrong, our brief argues, but it is so superficial, lacking in analysis, and contrary to both precedent and statute that it is not entitled to respect as stare decisis.

Filing in Schriro v. Landrigan (US)

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On Nov. 13, CJLF filed an amicus brief in Schriro v. Landrigan. This case involves an Arizona murder committed by a man who had escaped from prison after being convicted of another murder. (Once again, incarceration is not 100% incapacitative.) He claimed on state and federal habeas that his lawyer provided ineffective assistance by not introducing the "mitigating" evidence that he is genetically predisposed to kill people. The state habeas judge found that Landrigan had expressly directed his attorney not to present mitigating evidence. The Ninth Circuit said that the state habeas judge had taken an exchange between Landrigan and the trial judge out of context. But the state habeas judge was the trial judge. She took her own questions and the answers to them out of context? Not likely.

Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(2), when the case turns on a question of fact, a federal habeas court cannot grant relief unless the state court finding was "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." If a review of the state proceeding indicates that this standard is not met and the factual finding is dispositive under clearly applicable law, that claim should be over. There is no need for discovery or hearings in federal court.

CJLF's brief in this case was written pro bono publico by Gregory Broderick of Downey Brand LLP, Sacramento.

Aryan Brotherhood Sentencing

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Aryan Brotherhood honcho Barry "The Baron" Mills was sentenced to no incremental punishment at all for the killings of black inmates Frank Joyner and Abdul Salaam in a prison race riot in 1997. On paper, he received four consecutive life terms for these and other crimes, but more prison terms mean nothing for a person already in prison for life. As noted here, the jury voted 9 to 3 for the death penalty, but in the surreal world of federal capital sentencing, the 3 prevail over the 9.

"Defense attorneys said they were disappointed, but not surprised, with the sentences," according to this AP article by Gillian Flaccus, and they think they have good arguments for appeal. Let's hope so. A life sentence that results from deadlock is not protected by the Double Jeopardy Clause. See Sattazahn v. Pennsylvania, 537 U.S. 101 (2003).

Gitmo Habeas

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The Guantanamo detainees have filed a supplemental reply brief addressing the government's argument that the Military Commissions Act of 2006, Pub. L. 109-366, repealed the habeas jurisdiction of the federal courts with respect to the pending cases. Among other arguments, the brief contends that the MCA doesn't really apply to pending habeas cases. Lyle Denniston at SCOTUSblog characterizes this argument as an "appeal to judicial modesty," because it invokes the doctrine of constitutional doubt to ask the court to resolve a claimed ambiguity in a way that avoids a constitutional question. This brief is modest in the same sense that Charles Dickens's character Uriah Heep was 'umble. It is in fact a request for the court to commit an audacious act of rewriting a statute in the pretense of interpreting it.

News Scan


Paxil Defense. The AP reports that a Tampa man got off with only one year home detention and five years probation for embezzling $1.8M after claiming the Paxil made him do it.

Good Shot A Philadelphia man shot himself in the head yesterday while in the back seat of a police car with his hands cuffed behind his back. According to an Associated Press story the suspect was pulled over for a traffic violation and taken into custody after a pat down uncovered drugs. How he got a gun and shot himself while cuffed is currently anybody's guess.

Homeless Strictly adhering to the Constitutional doctrine of "you can't just ban food to people who look poor," a federal judge in Nevada has thrown out a Las Vegas ordinance which prohibits distributing free food at city parks as reported by Ken Ritter in an Associated Press story. The purpose of the ordinance was to direct vagrants to city-provided services rather than leaving them to congregate in parks waiting for food.

Lincoln and Taney. The WSJ (free site) has this book review of Lincoln and Chief Justice Taney by James F. Simon.

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Simpson Axed. AP reports, "After a firestorm of criticism, News. Corp. said Monday that it has canceled the O.J. Simpson book and television special 'If I Did It.' "

Unsolved Murder. Ryan Huff of the Contra Costa Times reports on a march through Richmond, California to plead for help in the unsolved murder of 16-year-old Jerrell Moore. We are bombarded with studies showing "disparity" in the punishment of crimes in the bleakest urban areas, often with an implicit or explicit accusation that the numbers prove racism on the part of the authorities. As this case illustrates, the difficulty of solving and prosecuting crime in areas where people are reluctant to come forward is a factor, and it is one that defies measurement.

SCOTUS Conference. SCOTUSblog's "petitions to watch" for tomorrow's conference is here. Criminal cases include questioning of a motorist during a stop, an allegedly excessive sentence, a dog sniff, and yet another USCA9 habeas case.

Cal. Sentencing. Andy Furillo of the Sacramento Bee has this story on the possibility that Cunningham v. California may give new political impetus to the idea of a sentencing commission in California. This produced a lively discussion over at SL&P, but a commission does not necessarily mean lighter sentences. Just look at the federal system. Plus, the Legislature can't repeal the most criticized feature of California sentencing -- the Three Strikes law. It's an initiative.

Nigerian Scams. Reuters reports that a study estimates that in the UK alone in 2005, £275M was lost to the Nigerian advance fee email scam. Send us a processing fee of $45,000, and we will send you the story. Or click here.

Weekend Notes

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Forged Affidavits. During clemency proceedings for California death row inmate Michael Morales, attorneys Kenneth Starr and David Senior turned in affidavits from jurors stating that they now did not want the sentence executed. Problem was, the jurors never saw or signed those affidavits. They never met investigator Kathleen Culhane, who supposedly obtained them. Yesterday, state DoJ officers executed a search warrant at Culhane's apartment. She is suspected of similar misconduct in three other cases, and the ripples could extend further. Scott Smith of the Stockton Record reports here, and Bob Egelko of the San Francisco Chronicle here.

Crime Votes. CJLF Legal Director Kent Scheidegger has this letter in the Wall Street Journal, noting that even as the Democrats were winning Congress, voters were sticking with the tough-on-crime approach in ballot measures, even in so-called "blue states."

The "60 Freeway Slayer" was convicted of six counts of first-degree murder in Los Angeles, the AP reports. The defense contested only the degree of murder, arguing that the killings were not premeditated.

The Federalist Society had its convention last week, and David Montgomery has this article in the Washington Post. The notion that the FedSoc is somehow "conspiratorial" is complete nonsense, as all its cards are face up on the table.

Nevada Death Penalty Ruling

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   A retroactivity decision by the Nevada Supreme Court on Thursday could affect about half of the 83 murderers on Nevada's death row, according to this AP report.

Prop. 83 Litigation

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In the Sacramento case of Doe v. Schwarzenegger (not to be confused with the San Francisco case of the same name), USDC Judge Lawrence Karlton mostly denied a temporary restraining order Friday afternoon. Attorneys for the Governor/CDCR, AG, and DA all said they interpreted the residency restriction of Prop. 83 to apply only to future convictions. This was apparently contrary to a pre-election letter sent out to parolees. Judge Karlton issued a very limited order saying that the defendants could not take any action that would force the plaintiff to move without prior notice to him and the court. This is not a class action, so the order does not apply to anyone else. He denied any order relating to GPS monitoring, as no one has sought or stated an intention to seek such monitoring of the plaintiff under Prop. 83. As a parolee, he is already subject to monitoring under prior law.

Don Thompson of AP reports here.

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Canada and the United States have agreed to share forensic evidence in a agreement that should help both countries with investigations of terrorists and criminals. Details of the arrangement come from this Associated Press story.

Retired Supreme Court Justice Sandra Day O'Connor told a Bar Association meeting in Dallas that she and other justices on the Court received poison-laced cookies last year. The baker, a Connecticut woman, also sent poisoned cookies or candy to the military Chiefs of Staff the head of the FBI, according to a story by New York Times writer Linda Greenhouse.

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Postmortem Appeals. Federal defendants who have assumed room temperature would no longer get an automatic reversal under a bill introduced by Senators Jeff Sessions and Dianne Feinstein, according to this AP story. The bill was prompted by the vacating of Ken Lay's conviction. The story quotes anonymous "legal experts" as saying that action was "consistent with long-standing precedent." Yes, but that doesn't mean it's a good rule. The bill would allow the defendant's representative (presumably the executor or administrator) to continue the appeal.

Jessica's Law. Cal AG Bill Lockyer has taken the position that the 2000 foot sex-criminal residency restriction of recently enacted Prop. 83 (1) does not apply retroactively to prior convictions; (2) does not create a crime for its violation. A suit by a previously convicted person to enjoin prosecution should therefore be dismissed, he argued, Bob Egelko of the SF Chron reports.

Cameras by the Bay. The SF Police Commission unanimously approved Mayor Newsom's plan to install more surveillance cameras in high crime areas over the objection of the ACLU. The story is curiously hard to find. It is buried as the third item of this Bay City News roundup. A pre-vote story yesterday is here.

Cost of Crime. Bill Virgin of the Seattle Post-Intelligencer has an interesting column about the total cost of crime.

The Queen's Speech. "My Government will put victims at the heart of the criminal justice system, support the police and all those responsible for the public's safety, and proceed with the development of ID cards. ¶ A Bill will be brought forward for the next stage of reform of the criminal justice system, giving the police and probation services new powers to protect the public from violent offenders and anti-social behaviour." Changes to appellate rules to avoid reversals for harmless error are also on tap, according to the Home Office. The government further plans to abolish trial by jury in serious fraud cases. Hmm...that's a bridge too far.

Medellin Decision. Maro Robbins of the San Antonio Express-News has this story.

SCOTUS and the Ninth


The large portion of the Supreme Court's workload devoted to reversing Ninth Circuit habeas decisions has been noted here on several occasions. Doug Berman at SL&P regularly "kvetches" (his term) about the excessive attention to capital cases there. Today George Will weighs in, saying, "There should be two Supreme Courts, one to reverse the U.S. Court of Appeals for the 9th Circuit, the other to hear all other cases." He goes on to discuss the Belmontes case and briefly refers to Musladin. (Hat tip: Ward.)

The root cause of this is the Ninth itself. Rogue panel decisions are supposed to be overturned by the court en banc, but that almost never happens in the Ninth when the error favors the prisoner. The answer is to appoint enough persons of sense to the Ninth that they constitute a clear majority over Judge Reinhardt, et al. Then the court could clean up its own messes rather than having the Supreme Court devote an inordinate portion of its workload to doing so.

There are two vacancies on the Ninth and two stalled nominees for them. Come January, it will be impossible for any nominee to be confirmed on a party-line vote, so the Senate should proceed directly to an up-or-down vote. Citizens of Nevada, who have suffered as much as anyone under the Ninth, should write Senator Reid and insist on it.

Judicial Nominees

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President Bush has resubmitted the names of six nominees to federal courts of appeals: Terrence Boyle and William Haynes to the 4th Circuit; Michael Wallace to the 5th Circuit; Peter Keisler to the D.C. Circuit; and William Myers and Norman Smith to the 9th Circuit. The AP report is here. Update: Peter Baker of the WashPost has this article.

Capital Training Grants

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"The U.S. Department of Justice's Office of Justice Programs' Bureau of Justice Assistance is pleased to announce that it is seeking applications for funding under the Capital Case Litigation Initiative. This program furthers the Department’s mission by providing capital litigation training to improve the quality of representation and reliability of verdicts in state court capital cases."

Read the announcement here.

Medellin Decision


The Texas Court of Criminal Appeals today decided the case of Ex parte Medellín. Last year, the U.S. Supreme Court turned away Medellín's federal habeas petition, noting that numerous obstacles to federal relief made state habeas the more appropriate procedure. See Medellín v. Dretke, No. 04-5928.

In June of this year, the Supreme Court decided in Bustillo v. Johnson, a companion case of Sanchez-Llamas v. Oregon, that state procedural default rules still apply to Vienna Convention claims, notwithstanding the decision of the International Court of Justice in the Avena case. Given that holding, the Texas CCA's rejection of the same argument was a foregone conclusion.

What makes this case different is that Medellín was a party to the Avena case, and the President had issued a memorandum to the Attorney General that the United States would comply with its obligation under the Optional Protocol to obey that decision by having state courts hear the claims. Today the CCA decided that this memorandum did not have the force of law to trump a state statute.

There is no doubt that Medellín will file a certiorari petition, and there is a substantial chance it will be granted. An alternative ground on which this case could have been decided (and CJLF argued it should) is that Medellín has already had the adjudication that Avena says he is entitled to. Judge Hervey agreed in a concurring opinion.

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NY Ct. App. John Caher has this article in the NY Law Journal about Chief Judge Judith Kaye's request to be reappointed to the NY high court, even though she has only two years left until mandatory retirement. She was one of the four who joined the audacious decision in People v. LaValle, in which that court leveraged a minor procedural problem into the complete abolition of capital punishment in New York, despite the statute's clear severability clause. The author of that decision was recently replaced by a Pataki nominee. Another concurring judge will retire shortly and be replaced by a Spitzer nominee. We will find out in the pending case of People v. Taylor if respect for democracy outweighs stare decisis in the view of the new majority.

Terry Stops. Philly City Councilman and mayoral candidate Michael A. Nutter has a plan for cutting violence in the roughest parts of town -- more "stop and frisk" by police. Michael Matza of the Inquirer reports here. Nutter isn't worried about racial profiling of friskees. "Nutter says he worries more about the victims' 'profile' - mostly young, black and male." See generally Terry v. Ohio, 392 U.S. 1 (1968).

Crime in Mexico, et al.. Gary Becker has this post on crime in developing countries, prompted by a recent visit to Mexico City. Richard Posner comments here.

Texas Execution. Michael Graczyk of AP reports that the execution of Charles Nealy for killing Jiten Bhakta has been halted by the Texas Court of Criminal Appeals. The court concluded a further hearing was needed on a prosecutor misconduct claim.

From Tampa, Florida, the Associated Press reports on the case of Rudolph Holton: "A man who was freed from death row in 2003 after being cleared by DNA evidence was sentenced to 20 years in prison for choking his wife." Holton has a space on the DPIC's notorious "innocence list."

But was he really "cleared by DNA evidence"? The DNA test in question merely showed that one item of evidence, a hair on the victim's body, was hers and not his. Circumstantial cases are often built up of many items of evidence, each of which is neither necessary nor sufficient by itself to prove guilt. "A brick is not a wall." See Note to FRE 401. According to Gov. Jeb Bush, this is just one more case where a new trial was ordered many years after the first one, and the prosecution could no longer make the case beyond a reasonable doubt. Yet it is reported in terms that would lead the general public to believe it was a case of clear proof he was actually innocent, continuing to build the myth.

Holton's attempted murder of his wife was not his first physical attack on her. In 2003, the same year he was released, the story says, "he was arrested for punching his wife and striking her several times with a golf club. She ended up in the hospital and he went to prison for 14 months." Altogether, he had 11 prior felonies. Twelve strikes and you're out?

Whose fault is all this? His wife's, of course. "'I married the wrong lady,' he said." Yeah, right.

Wisconsin Referendum

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Here is the county breakdown of the Wisconsin death penalty vote, formatted to be more readable than the Milwaukee Journal-Sentinel article we referenced earlier. The initiative won by double digits in 60 of Wisconsin's 72 counties, included third-largest Waukesha, just west of Milwaukee. It won by smaller margins in another 8, including a squeaker in Milwaukee itself. The "no" vote pulled single digit margins in three counties. The "no" forces won decisively in a grand total of one county, second-largest PDR Dane. Here is a county map for reference.

Belmontes Coverage


Here is some of the press coverage of yesterday's Belmontes decision.

The New York Times site has two stories, one by David Stout yesterday and one by Linda Greenhouse today. The latter offers an explanation for why a 5-4 decision came out so quickly. This case was "relisted" for Supreme Court conferences nine times before certiorari was granted. This indicates that some of the Justices believed the Ninth Circuit decision was so clearly wrong it should be summarily reversed -- no need for briefing and oral argument. That position couldn't quite muster five votes, but the consideration of it no doubt generated extensive memos and possibly a draft opinion and dissent. With the opinions largely written before oral argument and no surprises there, not much remained to be done.

David Savage in the L.A. Times emphasizes the continuing clash between the Supreme Court majority and notorious Ninth Circuit. He also quotes the defense lawyer saying the case would continue on ineffective assistance claims.

Layla Bohm of the Lodi News-Sentinel provides the local perspective, including comments from Steacy McConnell's mother.

Here are Mark Sherman for AP, Bob Egelko in the SF Chron, and Robert Barnes in the WashPost.

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Appeal Denied Kennedy family member Michael Skakel has lost his bid to have the United States Supreme Court overturn his murder conviction on a statute of limitations claim. Skakel, who was convicted in 2002 of beating neighbor Martha Moxley to death with a golf club in 1975 received a sentence of 20 years to life according to an Associated Press story by Mark Sherman. The Connecticut Supreme Court's decision on direct appeal is available here.

Belmontes Decision


The U.S. Supreme Court this morning reinstated the death sentence in the case of Ayers v. Belmontes. The vote was 5-4 along the usual lines. Here is the decision, which was posted with unusual promptness.

The case involves an instruction formerly given to jurors in California capital cases, specifically whether it is broad enough to allow the jury to consider everything the defendant throws against the wall, as required by the Court's dubious decision in Lockett v. Ohio, 438 U. S. 586, 604 (1978). The Court held that it was broad enough sixteen years ago in Boyde v. California, 494 U. S. 370 (1990). Only by giving Boyde a cramped reading and by splitting hairs on the facts of the case could one find an "error" here. "The Court of Appeals erred by adopting a narrow and,we conclude, an unrealistic interpretation of factor (k)." It is not surprising that the notorious Judge Reinhardt of the Ninth Circuit would issue such a ruling or that Judge Paez would join it. It is also not surprising that the Ninth would fail to correct the error en banc, as that court almost never corrects panel errors in favor of capital defendants. It is rather disturbing that four Justices of the Supreme Court would join in such a cramped application of the Court's own precedent.

Exclusionary Rule

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From Armstrong County, Pennsylvania, comes this story of a particularly grisly and probably erroneous application of the exclusionary rule. Peggy Jo Conner is charged with kidnapping her pregnant neighbor, Valerie Oskin, and attempting to cut out Ms. Oskin's unborn son. Even though the police found Conner at the scene with blood on her, the judge ruled that was not probable cause for arrest and therefore her statement is inadmissible. (Another issue is exactly when she was arrested.)

In Maryland v. Pringle, 540 U.S. 366 (2003), the Supreme Court held unanimously that cocaine behind the armrest of a car was probable cause to arrest the passenger. Although it is dicey to make a judgment from the statement of facts in a newspaper article, this would seem to be as strong a case for probable cause as Pringle. Fortunately, the prosecutors believe they can make the case without this evidence, so regardless of whether the constable or the judge blundered, the miscreant may not go free.

Update. Joel Jacobsen has more detail on this case at Judging Crimes. He concludes there was probable cause cubed.

Research Notes


Broken Glass. Researchers at Auckland U. in New Zealand are studying forensic applications of fragments of broken glass on perpetrators, according to this report in the Dominion Post.

UK Clearance Rate. "Only one crime in 39 leads to a conviction, according to a startling Home Office study," says this report. This is far lower than the official clearance rate because so many crimes are unreported.

Steroids Cause Fraud? Most studies in criminology are correlational. That is, they study two variables out in the general population to see if they tend to go together. When a correlation is found between factor X and crime rate Y, we typically see a rush of dilettantes who don't know any better all proclaiming that the study proves that X causes Y. This fallacy is so basic yet so common that I call it the Fundamental Fallacy of Social Science.

Once in a while, though, the causal connection is so implausible (in researchspeak, "lacks facial validity") that everyone has to recognize something else is at work, right? Swedish researchers have found a correlation between steroid use and fraud, but not violence. While it is a plausible hypothesis that hormones could have an effect on impulsive crime, no one could jump to the conclusion, on a correlation alone without other very compelling evidence, that they cause an inherently cognitive, premeditated crime like fraud, could they? The Forbes story on the research is headlined "Anabolic Steroids May Boost Crime Rate."

The actual journal article reporting the study, of course, disclaims any proof of causal connection. Arch Gen Psychiatry. 2006;63:1274-1279

News Scan

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Cal. Prop. 83. Corey Yung has more coverage on California's version of Jessica's Law, Proposition 83, at a relatively new blog, Sex Crimes. Wired News has a related article on GPS monitoring, titled "Attack of the Perv Trackers."

Death Penalty In spite of a full-court-press all Summer by local and national death penalty opponents, voters in Wisconsin passed a referendum on whether to restore the penalty in their state with 56% in favor, but the state's democrat-controlled Senate and Governor Doyle seem uninterested in obliging them according to a Capital Times story by Anita Weier.

Texas murderer Willie Shannon was put to death last night after the Supreme Court denied his request for a stay. Shannon murdered the father of two young children during a Houston carjacking in 1992. A story by Houston Chronicle reporter Rosanna Ruiz provides the details.

News Scan

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Wisconsin DP. Here is a virtually final tally from the Milwaukee Journal-Sentinel, showing the measure prevailed 55.5 to 45.5. The county-by-county tally shows that the measure prevailed in all but four counties.

Jessica's Law. California voters yesterday approved Proposition 83, a wide ranging initiative regarding sex offenders. David Kravets of AP reports that U.S. District Judge Susan Illston "issued a temporary restraining order against the residency requirements of Proposition 83." This refers to the most ill-conceived and problematic of Prop. 83's provisions, prohibiting convicted sex offenders from living within 2000 feet of any school or park, a restriction that blocks off many cities in their entirety.

Sniper Sentenced Multiple murderer Lee Boyd Malvo, who along with his mentor John Allen Mohammad, killed 10 people and wounded three in the Washington, DC area in 2002, was sentenced to life in prison by a Maryland judge today according to an Associated Press story by Stephen Manning.

Protester Arrest An anti-abortion protester was arrested this morning after he began yelling during oral argument in the United States Supreme Court case of Gonzales v. Planned Parenthood The protester has been charged under a law that criminalizes those who deliver "a harangue or oration". A conviction carries a 60 day jail sentence as reported by the Associated Press.

Election The colorful Mayor of Oakland, Jerry Brown, has been elected California Attorney General. The state's former Governor Moonbeam defeated GOP Senator Chuck Poochigian for the job as the state's top law enforcement officer. Details about the election can be found in a story in today's San Francisco Chronicle by Jim Herron Zamora.

Burton, Teague, and AEDPA


For anyone tired of election and abortion news, here are some more thoughts on yesterday's argument in Burton.

No error. Although the case is about the retroactivity of Blakely v. Washington, there is considerable doubt whether this case involves a Blakely error at all. The first question for defense counsel Jeffrey Fisher out of the gate involves whether the sentence imposed was legally available to the judge (within the "statutory maximum") based on the offenses of conviction in the present case and Burton's criminal record. The state appellate court held it was in the present case.  See pp. 11-13 of our brief. On page 6 of the transcript, Fisher cites another Washington case for the contrary proposition, but even if he is correct that question of state law is not a ground for federal habeas relief. In the present case, the sentence was affirmed as within the legal range based on convictions alone. While there is little doubt that the judge considered other facts in deciding whether to actually impose that available sentence, that is not Blakely error.

New rule. Surprisingly, Fisher does not lead off with his best argument, that Blakely was a "watershed" rule, but instead with the weak argument that it was not "new" within the meaning of Teague v. Lane. Given how narrowly the Court has defined "old" rules and given how Blakely was uniformly regarded as a bombshell on the day it was announced, this argument borders on frivolous. Justice Kennedy notes the "dictated by precedent" requirement on page 22. Not until page 24 does Fisher get to the "watershed" argument.

Nonbarking dog. Sometimes an unexpected nonevent can be as significant as an event. On pages 48-49, ASG Roberts goes on for two pages as to why Blakely does not qualify for the retroactivity exception. No questions.  Maybe they consider it obvious.  Justice Souter's questions at the end of the state DSG's argument seems to indicate an awareness that if a court could plausibly find Apprendi distinguishable, then the decision that it is not distinguishable is a new rule. This has been the law since at least Butler v. McKellar, 494 U.S. 407 (1990). Another possibility is that they have already decided they are going to decide this case on jurisdiction.

Teague and AEDPA. On page 25, Chief Justice Roberts notes, "it is not clear that it matters whether [Blakely] is a watershed rule if you read AEDPA 2254(d)(1) by its terms." Lyle Denniston at SCOTUSblog posits that this comment may be tipping the result of the Court's conference on Whorton v. Bockting, where the relationship of AEDPA to the second Teague exception is also at issue. However, Lyle is incorrect that the issue is whether AEDPA overrules Teague. Horn v. Banks, 536 U.S. 266, 272 (2002) settled that the Teague and AEDPA inquiries are distinct. Both of them are prerequisites to habeas relief where they both apply. The Chief Justice's suggestion that the "watershed rule" issue may not matter in this case simply suggests that these two distinct inquiries need not be made in any particular order. If a court determines that the petitioner cannot clear one hurdle, it need not decide whether he can clear another. AEDPA, if read according to its terms, has no exception similar to the second Teague exception, but it does not overrule Teague.

Burton Argument: Jurisdiction

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   I will split the discussion of the Burton argument into two parts, jurisdiction first and retroactivity in a later post.

   The Court is clearly well aware of the jurisdictional successive petition problem in this case, and fears that it might make a major change in successive petition law by inadvertence appear to be unfounded. Most observers appear to think the Court will dispose of the case on jurisdiction. See, e.g., the AP story by Mark Sherman and Lyle Denniston at SCOTUSblog.

   Burton filed two federal habeas petitions: one challenging his conviction while his resentencing was still on appeal in the state courts, and the present petition after the state courts had rejected his sentencing claims. The second petition is therefore successive and subject to the very strict limits on successive petitions in the Antiterrorism and Effective Death Penalty Act of 1996. Jeffrey Fisher, for the defendant, says on pages 15 and 17 that the district court should have dismissed the first petition for lack of jurisdiction but that there is no proper objection to the second. This is so wrong it is painful to read. When a prisoner has exhausted state remedies on some claims but not others and files a habeas petition on the exhausted claims, the habeas court does not lack jurisdiction to consider them. Rose v. Lundy, 455 U.S. 509 (1982) is very clear that if a petitioner does proceed with his exhausted claims, he risks being barred by the successive petition rule if returns later with the others. Ideally, the district judge should advise a pro se petitioner of this consequence, but it is not required. As our brief notes at page 6, there is a warning in the form that prisoners are required to use.

   From their questions on pages 12-15, it appears that Justices Kennedy, Souter, and Ginsburg are aware of how wrong Fisher's argument is. At 15:20-23, Justice Souter says, "But if the first proceeding was not in fact jurisdictionally barred, then you would lose under the second and successive objection in this case, right?" Right.

   On pages 26-29, the state DSG makes a fact-specific argument based on the timing of the judgments in this case. It's a valid argument and a possible winner, but I personally hope the Court does not rule on this basis. The precedent thus set would leave open the question of whether prisoners can file two federal habeas petitions when the timing is different from this case, a question which should be answered with a loud, clear "no."

   The federal ASG argues (p. 45) that it doesn't matter for federal prisoners because the statute is different. 28 U.S.C. § 2255 authorizes a motion to vacate, set aside, or correct a sentence and so must necessarily follow any resentencing required by the decision on the direct appeal. A point that could have been made here is that Congress understood when it enacted that statute that is was a complete replacement for habeas corpus as a collateral attack, so this statute illustrates that habeas also should follow any required resentencing.

   On rebuttal, Fisher claims again that the state should have objected to the first petition and is now barred from objecting to the second (p. 50). Nope.  Nonexhaustion of other claims not mentioned in the petition is no ground for objecting to a habeas petition. You can't default an issue by not making a meritless objection, and you have no obligation to warn your opponent he is defaulting claims he may want to make in the future. Further, the successive petition rule in AEDPA goes to subject matter jurisdiction. Such issues cannot be defaulted.

   The transcript tends to confirm what the observers of the argument concluded. This case will probably go down on the successive petition rule. Doug Berman thinks this will be a "major ruling on habeas law," but I think it will be relatively minor as Supreme Court cases go. It will confirm what the habeas lawyers have known for a long time, at least since Lundy in 1982.

News Scan

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Pot Burgers Two New Mexico police officers are suing Burger King for negligence after they were sold hamburgers laced with marijuana last month. An Associated Press story reports that three employees of the Las Lunas, NM Burger King have been arrested. In apparant response, the San Francisco City Council has lifted zoning restrictions for new Burger King restaurants in the City (just kidding).

Aryan Brotherhood
members convicted earlier this year of murder and racketeering may be kept in isolation from other inmates and the outside world as they serve out their life sentences according to a Reuters story by Dan Whitcomb. Prosecutors are requesting that the four gang leaders be isolated under a federal statute that applies to racketeering convictions.

Burton Argument Tomorrow

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UPDATE 2: The transcript is available.

UPDATE (10:35am PST Tuesday): Lyle Denniston reports at SCOTUSblog that the jurisdictional question was indeed a major portion of the argument. We will wait for the transcript before commenting on the Teague v. AEDPA issue.


The long awaited argument in Burton v. Waddington is tomorrow, and the high court will consider the retroactive application of Blakely v. Washington to sentences already affirmed on appeal when that decision came down. Here are links to CJLF's press release, briefs in the case (including ours), and Lyle Denniston's comments on SCOTUSblog.

Press coverage may be limited as there might be other newsworthy events tomorrow, but the Court's same-day transcript should be available, and we will post a link here.

Here are a couple of things to look for. First, how much interest is there in the question of whether the Court even has jurisdiction of this apparently successive petition? To rule that this petition is not successive would be a massive change in habeas corpus law. Yet petitioner is acting like it's no big deal, not mentioning it in his main brief and devoting only four pages to it in the reply.

Second, will petitioner stick to his argument that Blakely was simultaneously not "new" and "watershed"? That is, can he say with a straight face that Blakely changed nothing and Blakely changed everything? Which Justice will pounce first if he does?

Third, will Justice Scalia remember that he wrote, on the very same day he wrote Blakely, "it is unlikely that any [rule qualifying for retroactivity on habeas] has yet to emerge."

News Scan

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The Supreme Court held oral argument today to decide if a man the Illinois courts determined to be wrongly arrested in 1994 can pursue a civil rights suit against the police who arrested him. In Wallace v. Kato, the plaintiff is appealing a 7th Circuit holding that federal rules require the suit be filed two years from the time of his arrestt, not from the time his arrest was ruled illegal (2002). The transcript of today's oral argument is available here. Additional details are reported in an Associated Press story by Mark Sherman.

Urban Homicide, which drives state and national murder rates, is the subject of a sad San Francisco Chronicle story by reporter Jim Herron Zamora. The Oakland murder of a young parolee is a typical example of a problem the major media does not give much focus ie; most murder victims are black as are most of the murderers. The claim that America's death penalty is racially biased ignores these facts. Yet we hear the bias claim almost every day on the news from DP opponents who either don't know or don't care who's doing the killing and the dying.

Weekend News


Judicial Restraint. Judge Charles Pickering (USCA-5, Ret.) has a long letter to the editor in the Wall Street Journal (subscription) on judicial restraint in answer to Justice O'Connor's earlier op-ed on judicial independence.

Maryland Senate Race. The Washington Post has this article on the Maryland Senate race, which involves crime issues to a greater extent than most federal races this year. Issues include the Maryland death penalty (with both candidates apparently oblivious to the real problem), the 100/1 crack/powder ratio, and the Patriot Act. Mr. Cardin committed a rather astonishing gaffe on the latter, claiming it predated his tenure in the House.

Saddam Hussein was convicted and sentenced today, the AP reports. As expected, he received the only available sentence that would not be a travesty of justice. The predictable hand-wringing and wailing will now begin.

More Death Penalty. Doug Berman has collected links to today's death penalty stories here.

Activist Judges. The Boston Globe has an editorial that begins, "CONSERVATIVES have a new cause to rally the faithful at the polls in this week's national election: those scary activist judges." New? Exactly which globe have they been living on? The Globe criticizes a couple of initiatives that deserve to be criticized. The South Dakota "sue the judges" measure is particularly ill-advised. However, activist judges are a genuine problem and hardly a new one.

Home=Castle? Joel Jacobsen at Judging Crimes has this interesting challenge to Justice Stevens' history in Georgia v.Randolph. You have to get past the swipe at Scalia to get to the good part.

Booker Sequel

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The Supreme Court granted certiorari today in two cases to further explore the fallout from United States v. Booker regarding how the "reasonableness" of a sentence fits with Sentencing Guidelines after Booker's demotion of the Guidelines to advisory status. Here are the docket and Eighth Circuit opinion in Claiborne v. United States, No. 06-5618, and the docket and Fourth Circuit opinion in Rita v. United States, No. 06-5754. The Court did not put the briefing on a fast track, so we are probably looking at argument at the very end of February at the earliest. Lyle Denniston has this post at SCOTUSblog, and Doug Berman at SL&P is overjoyed.

News Scan

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Raymond Lee Oyler, the man arrested yesterday on suspicion of setting two small fires in Riverside County earlier this year, was charged today with setting the October fire near Palm Springs and the murders of five firemen who died fighting it. While there are at least two special circumstances which qualify the crime as a death penalty offense, the District Attorney says he'll consult with the victims' families before making a decision according to a Los Angeles Times story by Maeve Reston and Michael Muskal.

Criminal Roundup U.S. Marshals and local police across the United States took over 10,000 sex offenders, gang members, and other criminal fugitives into custody during a seven-day around-the-clock sweep called Operation Falcon III as reported by Erica Estep of WATE in Knoxville, TN.

Deterrence 101 A man who served 26 years in a Kansas prison for the 1979 murder of a five-year-old boy and the attempted murder of his mother, was charged Thursday morning with murdering 16-year-old Stephanie Wagner in Indiana, as reported by WNDU TV. The girl's body was found in a Logansport cornfield Wednesday evening. Details reported in a WNBC story indicate that the suspect, Danny Rouse, has confessed to the murder and told local police where to find the body. Fortunately for Mr. Rouse, Kansas stopped enforcing its death penalty in 1976. Tough luck for his new victim.

Crawford Retro Argument


The transcript of oral argument in Whorton v. Bockting, argued today, is available on the Court's site here. Lyle Denniston positively gushes at SCOTUSblog. Here are some notes.

Chief Justice Roberts and Justice Alito appear to have concluded that there is no retroactivity exception for § 2254(d). If the state court decision was correct or at least reasonable under the precedent existing at the time, the judgment cannot be overturned on federal habeas corpus (39:16-19; 41:9-12). Textually, there is simply no way to read the Teague exceptions into § 2254(d). References to retroactive new rules elsewhere in the statute are not superfluous, the Nevada Attorney General correctly notes (5:2-14), because they apply in cases where there is no state court decision on the merits, e.g., a defaulted claim with cause and prejudice.

News Scan

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Texas Execution. Thirteen years ago, every witness's worst nightmare came true for Mario Stubblefield. He was murdered by a hit man hired by the defendant to prevent his testimony. Today, Texas executed the hit man. Michael Graczyk of AP reports here. The Supreme Court's "go ahead" order is here, Justices Stevens and Ginsburg dissenting.

Wisconsin Death Penalty. A UW Badger Poll taken Oct 18-26 shows the Wisconsin death penalty referendum leading 57-39 among registered voters. The measure is trailing very badly among one subgroup, however. "Those who prefer life in prison over the death penalty oppose it by 40 percentage points." Only 40? (Hat tip: Ohio DP Info.)

Katrina Crime Cities which accepted large numbers of evacuees from New Orleans after Hurricane Katrina are reporting higher crime rates, sometimes much higher. In an editorial in the San Antonio Express News, Ken Rodriguez suggests that law enforcement has been hampered by a policy making it politically incorrect to separately track crimes committed by evacuees.

Arson A fifth firefighter has died as the result of injuries suffered fighting the fire near Palm Springs last week that blackened nearly 60 square miles. Police have arrested a person of interest, who is suspected of starting two earlier fires in nearby Banning Pass according to an Associated Press story by Andrew Glazer.

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