December 2006 Archives

News Scan

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Felon Voting Rights A California appellate court has ruled that felons who are in the county jail as a condition of probation do not lose their voting rights, according to a story by Bob Egelko in today's San Francisco Chronicle. The Court's opinion in League of Women Voters of California v. McPherson reversed an interpretation of state law by the California Attorney General. The AG opinion reasoned that a person in jail under such a "felony local" sentence was "imprisoned" for a felony, the requirement for disenfrachisement under the California Constitution.

Murder rates are up in many large American cities according to an Associated Press story by Karen Matthews. New York, Philadelphia, Chicago, Houston, Cincinnati and Oakland were among those cities reporting an increase. Interestingly, homicide rates in Los Angeles and San Francisco are down.

Cocaine and Congress

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Gary Fields has this article in the Wall Street Journal on sentencing issues in the new Congress, with the crack-powder sentencing disparity at the top of the list of incoming Judiciary Chairman John Conyers. There seems to be broad agreement that it is wrong for the sentence for 5 grams of crack to be greater than the sentence for 499 grams of powder. The story quotes representatives of both police chiefs and rank-and-file officers opposing reduction of crack sentencing. The chiefs say the answer to the disparity is to increase sentences for powder.

Families Against Mandatory Minimums weighs in saying to evaluate crack sentencing separately and not compare it to powder. That's a curious argument. There are enough children of movers and shakers doing coke that increasing powder sentences to present crack levels isn't going to happen, and so the disparity argument would seem to be their most effective one. FAMM's argument to evaluate crack sentencing on its own merits seems to overestimate the likelihood that a majority will agree with them on the merits.

"Nonviolent" Felons

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Our prisons are chock full of "nonviolent" felons who can be let out without any danger to the rest of us, the drumbeat goes. From San Francisco comes a cautionary tale.

Demian Bulwa and Wyatt Buchanan report in the SF Chron that Marlon Ruff was classified as a "nonviolent" prisoner. Despite the fact he was convicted of robbery, he was classified as nonviolent because he hadn't used a weapon. He "only" punched an armored car guard and stole $4600. He wasn't exactly released, but he was placed in a minimum-security program from which he easily walked away.

Last Friday, the "nonviolent" Mr. Ruff murdered San Francisco Police Officer Bryan Tuvera, who was attempting to take him into custody. Officer Tuvera's funeral will be this coming Friday.

Before we decide on any lighter sentences for "nonviolent" felons, we should be considerably more specific about what that means.

Memory, Credibility, and Experts

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Steven K. Erickson, J.D., LL.M., Ph.D.
Yale University

Some of the most promising research in psychology and law has focused on issues of memory and cognition. Because eyewitness testimony is so valued by juries and the justice system alike, conclusions that eyewitness testimony can be inaccurate and overvalued are hotly contested by scholars and policy makers. As additional studies build on older ones demonstrating that a host of memory and cognitive processes often involved in litigation are untrustworthy – repressed memories, eyewitnesses, line-ups – expert testimony related to these concepts has increased. The impetus of such testimony is heightened by the exoneration of many defendants by DNA evidence in cases where guilt was assumed to be “air tight.” Testimony related to the limits of memory and how people cognitively process and recall information, however, has met timid waters in the courts. Recently, the District Court for the District of Columbia disallowed expert testimony on memory in the highly-publicized case of Libby v. U.S., 05-394 (2006). The holding of the court suggests a deep skepticism of the proffered testimony and eschews its use because of a number of methodological shortcomings in the research studies themselves.

News Scan

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Rape charges for the three Duke University lacrosse players accused last Spring were dropped by District Attorney Mike Nifong today. According to an Associated Press story by Aaron Beard, the decision was made after the accuser, a 28-year-old exotic dancer, changed her version of events for what the defense says is the twelfth time. The three students still face kidnaping charges.

High Dudgeon in Ohio

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The blogger at Ohio Death Penalty Information has been having convulsions this week over a couple of my remarks.

Legal Injection

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In Australia, a study by the New South Wales Bureau of Crime Statistics and Research found "no significant trends in drug dealing or possession since the opening of the injection room five years ago," according to this story in the Sydney Morning Herald. However, the reasons why sound a cautionary note for those advocating such facilities in the United States.

The bureau's director, Don Weatherburn, said police tactics had helped to keep crime down in Kings Cross.

"Police deserve credit for stopping any increase in crime as a result of the way they have used their 'move on' powers, which allow them to order anyone suspected of loitering for the purpose of a drug offence to move on," Dr Weatherburn said.

In other words, this couldn't be replicated in the U.S., because an American police officer doing what the NSW police do will immediately be sued by the ACLU.

News Scan

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Cal. Prison Reform. Gov. Schwarzenegger's office issued this press release on his prison reform proposal.

European Justice. Holocaust denier David Irving returned to England after spending 13 months in an Austrian prison, Veronika Oleksyn reports for AP. The Austrian Supreme Court upheld his conviction but converted 2/3 of his three-year sentence to probation. Our friendly opponents like to hold up Europe as the paragon of enlightenment for us to emulate. You can still get multiple years in prison there for expressing an opinion -- albeit an exceptionally vile and ignorant one -- yet stabbing a person in the back and ruining her career gets you two years, suspended.

Drug Kingpin. Francisco Javier Arellano Felix, accused of heading one of Mexico's most violent drug smuggling operations, pleaded not guilty in San Diego federal court to charges carrying a potential death penalty, reports Allison Hoffman for AP. His lawyer wants him tried in Mexico, which has no death penalty.

Sandy Berger's theft of classified documents from the National Archives and subsequent bungling are described in a report of the Archives' Inspector General, recently obtained through FOIA, Jeffrey Smith reports in the Washington Post. Former National Security Advisor Berger received a relative slap on the wrist for this serious crime: $50K and 100 hours community service.

Maryland Decision

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Yesterday, the Maryland Court of Appeals (the state high court) issued yet another decision in the case of hired killer Vernon Evans. It was 24 years ago that Evans contracted to kill David and Cheryl Piechowicz to prevent them from testifying against the jailed Anthony Grandison. He actually killed David Piechowicz and Susan Kennedy, Cheryl's sister. The headline story was that the court held that the state corrections authorities were required to follow the state's Administrative Procedures Act and make their injection protocol a regulation, which can take several months. Eric Rich and John Wagner of the Washington Post have this article.

Other aspects of the decision are also interesting. In its overall tone, the court seems very tired of the endless litigation in capital cases. Appended to the very long opinion, beginning on page 104 of the PDF file, is a 25-page procedural history of the case. Perhaps we will see some tightening of Maryland's notoriously loose standards for renewed attacks on capital sentences.

On pages 32-73 of the opinion, the court takes apart Evans's claim that the Paternoster study on "disparities" requires setting aside his sentence. This sentence is particularly good in an ironic sort of way:

A case more on point, and more pointedly dooming Evans’s claim, is Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005), rev’d on other grounds sub nom. Ayers v. Belmontes, ____ U.S. ___, 127 S. Ct. 469, ___ L. Ed.2d ___ (2006), which Evans has failed even to mention, much less attempt to distinguish.

Translation: Even Judge Reinhardt didn't buy that one.

Law & Econ

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With our brief in Smith v. Texas finally out to print, I will be posting on a few things that have piled up in the inbox. The October issue of The Journal of Law & Economics (49:2) is out in hard copy. The electronic edition is here. Several articles more or less crime-related are sure to stir up controversy.

p. 451: Holzer, Raphael, and Stoll "find that employers who check criminal backgrounds are more likely to hire African American workers, especially men."

p. 481: Charles and Stephens continue looking at the controversial association between legalized abortion and crime and find that persons born in states where abortion was legal prior to Roe v. Wade are less likely to use drugs.

p. 507: Mocan and Tekin find an association between juveniles' access to guns and their likelihood of committing a crime. "No support is found for the hypothesis that gun availability decreases the propensity for being victimized." They are probably off the NRA's Christmas card list.

p. 533: Jennifer Hunt examines the correlation between teen birth rates and crime

In the current American Law and Economics Review (8:3, Fall) , there is an article by Ross & Yinger titled, "Uncovering Discrimination: A Comparison of the Methods Used by Scholars and Civil Rights Enforcement Officials." This might have some application to discrimination claims in criminal cases.

News Scan

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Injection: A transcript of yesterday's NewsHour program on PBS is available here. It features Jeff Middendorf of Kentucky's Justice & Public Safety Cabinet and Richard Dieter of DPIC.

Death Penalty Debra Saunders of the San Francisco Chronicle thinks that the recent federal court ruling regarding California's lethal injection process does not mark the end of the state's enforcement of the death penalty. The article pointed out that Judge Fogel did not question the constitutionality of the death penalty.

The Philippine legislature is debating reinstating the death penalty according to a story in the Manila Bulletin. One senior legislator argues that with three high profile murders per week a death penalty is needed to protect the public.

Arnold on Injection

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Update: Mark Martin in Tuesday's SF Chron here. DP Focus is unhappy.

In yesterday's SF Chron, Bob Egelko had this story on the need for leadership at the top to deal with the lethal injection problem in California.

Today, Gov. Schwarzenegger's office issued this press release on the steps being taken.

The Governor’s top legal and correctional officials will lead an effort to implement a screening process and undertake a comprehensive training program for execution team members, create standardized record-keeping, recommend how to improve the death penalty facility and identify the best experts in other states to advise the California Department of Corrections and Rehabilitation (CDCR) on lethal injection and its implementation.

Retrofit the Gas Chamber

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"It wasn't bad. I just went to sleep." So wrote mine foreman Martin Toler, Jr. shortly before his death from carbon monoxide poisoning in the Sago mine accident a little less than a year ago. Although no one comes back to tell us how much pain they suffer in death, this is very close. The miners who knew they were close and had seen others go before them told us that carbon monoxide is a painless death. See Charleston Gazette story here.

California used the gas chamber as its method of execution until the execution of Robert Alton Harris in 1992. In that case, there was a flurry of last-minute litigation as attacks on the gas chamber, withheld until the eleventh hour, were unleashed in a ploy to stop the execution. See Gomez v. U.S. District Court, 503 U.S. 653 (1992). Justice Stevens wrote in dissent, "The unnecessary cruelty of this method of execution convinced Arizona's Attorney General that that State should abandon execution by gas in favor of execution by lethal injection. His conclusion coincides with that of numerous medical, legal, and ethical experts."

Listening to "ethical experts" got us where we are today. The problem wasn't with the gas chamber itself; the problem was the choice of gas.

Injection News

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We are told that Judge Fogel in San Jose has declared California's injection protocol invalid and that Governor Bush in Florida has called a temporary halt in the wake of the Diaz execution. We will have more when available.

Update: Judge Fogel's decision is here.

Regrettably, this means further delay in already long delayed justice for the murder of Terri Winchell, as well as other pending California and Florida cases. However, Judge Fogel's order does indicate that an anesthetic-only protocol would be constitutional.

Coverage: Adam Liptak and Terry Aguayo in the New York Times; Henry Weinstein in the Los Angeles Times; David Kravets for AP.

The Governator's legal affairs secretary, says, “As the ruling provides, the administration will review the lethal injection protocol to make certain the protocol and its implementation are constitutional. Gov. Schwarzenegger will continue to defend the death penalty and ensure the will of the people is represented throughout the ongoing court proceedings.”

Execution Numbers

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There have been 53 executions this year, and no more scheduled, compared to 60 last year. The Death Penalty Information Center is in full spin cycle, making much ado about not much. Henry Weinstein has this story in the LA Times. Particularly annoying is DPIC's repeated trumpeting of the fact that this-or-that statistic is down from its all-time high. Pick any dozen statistics at random, and you will probably find at least eleven of them are down from their all-time highs and up from their all-time lows: the price of gold, the price of gas, the NASDAQ 100, the percentage of teens smoking weed, etc., etc., etc. "Down from the all-time high" is a practically meaningless fact, and why this gets treated as newsworthy is something of a mystery.

The fact that the execution number is only down seven despite all the lethal injection litigation is the surprise here. Halfway down the story, Josh Marquis is quoted noting that the murder rate is down. Also, he says, prosecutors and juries are "becoming appropriately more discriminating about when to respectively seek and impose a death sentence."

The drop in new admissions to death row is more interesting. Half of this drop over the last decade is attributable quite simply to the drop in the murder rate, a fact I have never seen in a DPIC release. What accounts for the other half? I have heard anecdotally from prosecutors that the number of especially heinous crimes warranting the death penalty is down even further than the murder rate generally, but I have no way to quantify that. Josh's "appropriately more discriminating" hypothesis is quite plausibly a factor. The fact that in most states a death penalty is not likely to be carried out for a decade or two might discourage prosecutors from seeking it in cases close to the borderline.

I would be interested in comments from those "in the field" on this.

News Scan

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Hamdan Coverage. Tom Regan of the Christian Science Monitor summarizes and links to lots of coverage on yesterday's Hamdan ruling.

DP & Mental Illness. Gary Fields has this story in the Wall Street Journal on medicating the mentally ill on death row. The article features Gregory Thompson, of the Supreme Court case of Bell v. Thompson.

Root Causes. Tim Drake of National Catholic Register takes federal crime researchers to task for ignoring the role of fatherless families as a contributing cause.

Lethal Injection. The Florida execution of Angel Diaz took 34 minutes, reports Ron Word of AP. A DoC spokeswoman says Diaz was unconscious and snoring during this period.

Duke DNA. David Scott of AP reports on a defense motion in the Duke Lacrosse team rape case alleging that a DNA test by the prosecution showed multiple males' DNA but none of the team members' and that the result was not disclosed to the defense. The story doesn't say what relief the motion is requesting. Given that they do have the information months before trial, there doesn't seem to be a Brady violation here.

Booker Do-Overs. Orin Kerr at the Volokh Conspiracy has this post on the Ninth Circuit's remarkable end-run around the nonretroactivity of Booker in Carrington v. United States.

ADA meets 2A. Shannon Thompkins, outdoors columnist for the Houston Chronicle, reports on a Texas bill to authorize laser sighting devices so blind people can hunt.

Hamdan Sequel

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Lyle Denniston at SCOTUSblog reports that the District Court has dismissed for lack of jurisdiction the habeas petition of Guantanamo detainee Salim Hamdan, whose case went to the Supreme Court in Hamdan v. Rumsfeld. The memorandum by Judge Robertson is here.

The opinion has three main points. First, the statute did repeal the court's habeas jurisdiction. The court brushed aside rather easily the shaky statutory interpretation argument that it did not.

Second, Congress has not validly suspended the writ of habeas corpus. The constitutional conditions for suspension, rebellion or invasion, are not present. "If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional."

Third, Hamdan is not constitutionally entitled to it. Here Judge Robertson has an analysis of the historical cases of habeas for aliens that is quite consistent with our brief in Hamdan and rejects the superficial citation of these cases by Justice Stevens in Rasul v. Bush, n. 11.

Musladin Coverage: Good, Bad, and Ugly

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Another Update: The SF Chron site has this picture of Jim Studer holding his button.

Update: The LA Times also has this editorial: "The 9th Circuit's deserved slap: Supreme Court rebuff in death penalty case points to a recurring problem with the appeals panel." Yes, the LA Times. "This page, which strongly opposes capital punishment, is nevertheless glad to see the 9th Circuit's wrist slapped for improperly applying the law as it is written."
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David Savage in the LA Times has an article explaining how the case is about limits on the federal courts, not deciding the underlying question. Linda Greenhouse reports on the case in the NYT, discussing the underlying Williams and Flynn precedents and the private-public conduct distinction.

The usually reliable Wall Street Journal has this blurb in its "What's News" column on page 1: "The Supreme Court decided unanimously that displays by spectators of buttons with victims' photos don't deprive murder suspects of fair trials." I realize that the WSJ doesn't care much about crime unless it's the tailor-made silk collar variety, but if you're going to report it, report it right. The case doesn't resolve the underlying question.

Tony Mauro gets it right in the text of his Legal Times article, but the headline writer does not. (Headlines are generally not written by the reporters, and they are a major source of misinformation.) Over at the SF Chron, the headline writer says the Ninth lacked "jurisdiction," a word that does not appear in John Coté's article.

Short reports by Orin Kerr at the Volokh Conspiracy and Doug Berman at SL&P have produced heated debate in the comments. One commenter on the latter reliably comes forth with the last refuge of losing lefty arguments. When all else fails, compare the other side with the Nazis.

Much scholarly debate centers around the conflict between law and mental illness. Numerous commentaries and law review articles decry what is perceived as a gross injustice that has occurred in our society regarding how the legal system treats those with mental illness. This concern is well-placed in many ways, since a decent society should be judged by how it treats those who are ill and cannot fend for themselves. But the issue is not as simple as it may appear at first blush. Fixing the problem entails solving complicated problems that involve competing interests and viewpoints. Moreover, by examining one issue in particular – the involuntary administration of antipsychotic drugs – we can get a glimpse of how vexing these issues tend to be.

Musladin Decision

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The Supreme Court today reversed the decision of the Ninth Circuit in Carey v. Musladin. The Court was unanimous in the judgment, with six Justices joining the opinion of the Court by Justice Thomas. Justices Stevens, Kennedy, and Souter each wrote separate opinions concurring in the judgment.

The overturned Ninth Circuit decision is a prime example of exactly the kind habeas decision Congress meant to prohibit when it enacted the Antiterrorism and Effective Death Penalty Act of 1996. The Ninth Circuit overturned a state court decision and substituted its own opinion, even though there is no controlling Supreme Court precedent and other courts are divided on the question. The case involves whether a conviction must be overturned because the victim's family wore buttons with his picture. Cases on this and similar questions from other courts, many of which are cited in today's opinion, are discussed in CJLF's amicus brief.

AP reports by Pete Yost here and Mark Sherman here.

News Scan

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Exclusionary Consequences. Mary Hutchison, 45, was murdered last week in the Burger King where she worked near Waukegan, Illinois. The man charged with killing her had previously been convicted of a quadruple murder, but he was back on the street because an appellate court held that he was in custody at the time of his statement and that the police did not then have probable cause. Eric Herman and Annie Sweeney of the Chicago Sun-Times report here and here.

Probationary Consequences. Buffalo Police Officer Patricia A. Parete was shot Tuesday by a teenager who was on probation, according to this story in the Buffalo News. "If Parete survives, she likely will be paralyzed from the neck down." Varner Harris Jr., 18, received probation for armed robbery in May, 2005, when he was 17. He shot the officer, he said, because he feared going to adult jail now that he is over 18. He probably does not fear the death penalty for killing a police officer, because the New York Court of Appeals took it upon itself to effectively abolish the death penalty in New York in 2004.

Interesting piece in today's Washington Post by Charles Krauthammer discussing the folly of speculating about the recent murder of a former Russian spy in London. There is also an endorsement of dying declarations.

Cert. Grants

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The Supreme Court granted certiorari in five cases today (hat tip: SCOTUSblog). Three are federal habeas cases, described below. The other two are civil -- antitrust vertical price-fixing and the relationship of antitrust and securities regulation.

Roper v. Weaver, No. 06-313, is the state's appeal of an Eighth Circuit decision regarding prosecutor argument in a capital case.

Fry v. Pliler, No. 06-5247, is the prisoner's appeal of an unpublished Ninth Circuit decision (yes, really) finding erroneous exclusion of defense evidence to be harmless error.

Bowles v. Russell, No. 06-5306, is the prisoner's appeal of a Sixth Circuit decision that begins thusly:

This is a case about missed deadlines. At times, they go unnoticed, but sometimes the lapse is fatal. This case presents one of the fatal variety.

Update. The AP has this story on the cert. grants. In the Fry case, the Court limited the grant to Question 3. In a comment on SCOTUSblog, David Porter states that Question 3 is:

If constitutional error in a state trial is not recognized by the judiciary until the case ends up in federal court under 28 U.S.C. § 2254, is the prejudicial impact of the error assessed under the standard set forth in Chapman v. California, 386 U.S. 18 (1967), or that enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993)? Does it matter which harmless error standard is employed? And, if the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?
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My initial impression is that the answers are Brecht, yes, and the State.

News Scan

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Honoring Murder. Last April, the city of St. Denis, a suburb of Paris, named a street in honor of Pennsylvania murderer Mumia Abu-Jamal. Today, the U.S. House of Representatives, 368-31-8, passed a resolution condemning that action, reports Kimberly Hefling of AP. Officer Daniel Faulkner, then 25, was murdered Dec. 9, 1981. In the near future, the murderer will have lived longer after being sentenced to death than the victim lived his entire life. Update: Here is the roll call vote. Update2: James Taranto of the WSJ dubs the 31 the "Cop-Killer's Caucus" and notes that the incoming chairman of the House Judiciary Committee is among them.

No, Not YourSpace. MySpace is developing technology to check its users against a database of sex offenders and delete any that match, reports Anick Jesdanun of AP.

Death Penalty Virginia Governor Timothy Kaine has postponed the execution of triple-murderer Percy Walton for a third evaluation of his mental condition according to a Washington Post story by Candace Rondeaux. As reported here last Monday, Walton has had two psychiatric evaluations since 2003, neither of which found him mentally incompetent. The most recent one was ordered by the Governor hours before Walton's execution last June. It's beginning to appear that Virginia will need to replenish its supply of mental health experts in order to satisfy the demands of this case.

Faking Retardation

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Federal prosecutors allege that Pete Costello faked retardation for nearly 20 years, since the age of 8, in order to defraud the government of disability benefits, according to this AP story. The fraud was discovered when the man who supposedly can't drive represented himself in court to contest a traffic ticket, and apparently did pretty well.

Somewhat similarly, LaRoyce Smith, whose case is presently before the Supreme Court, took the stand at his capital murder trial and held his own against the prosecutor on cross-examination. His lawyers claim he has an IQ of 78, which is not retarded but slow enough to be mitigating, if believed.

"Testimonial" Hearsay

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The California Supreme Court has scheduled argument for January 9 in its review of People v. Cage, 120 Cal. App. 4th 770, 15 Cal. Rptr. 3d 846 (2004). "Defendant's son had sustained a cut on his neck during a fight with his mother. He made three separate hearsay statements: to a police officer at the hospital where he was taken for treatment, to the doctor who treated him at the hospital, and to the same police officer at the police station--each to the effect that defendant had picked up a piece of glass and deliberately slashed him with it." The intermediate appellate court affirmed in a pre-Davis opinion. "The court held that the statements the victim made to the police officer and doctor at the hospital were nontestimonial, but the statement the victim made later to the police officer at the police station was testimonial. Admission of the testimonial hearsay statement ... was harmless beyond a reasonable doubt."

Expect an opinion within 90 days of argument.

The Four Trials of Capital Cases

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The California Court of Appeal for the Third District, which rarely gets involved in capital cases, has issued a long opinion on discovery in the case of Barnett v. Superior Court, C051311. (Hat tip: Ward.) The most interesting part for people outside California is Justice Sims' concurring opinion with his commentary on the state of capital litigation today. An excerpt follows:

Immigration Consequences

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The Supreme Court decided today in Lopez v. Gonzales that a state drug possession offense that is defined as a felony under state law, but which would be a misdemeanor under the federal Controlled Substances Act is not an "aggravated felony" for the purpose of federal immigration law, 8 U. S. C. §1101(a)(43)(B). Classification as an "aggravated felony" means the defendant will be deported upon release from prison; other offenses may also create a risk of deportation, but the "aggravated felony" classification is particularly rigid.

Prosecutors and defense lawyers alike need to understand the immigration consequences of convictions in lower-end felony cases (and even some misdemeanors), which unfortunately means understanding a complex, badly written, and sometimes illogical statute. When the defendant is a legal permanent resident alien (i.e., has a "green card"), the immigration consequences may be more important to him than the direct penal consequences and may determine his willingness to accept a plea bargain.

Pete Yost of AP reports here.

Coincidentally, the Court heard oral argument on another such case today, Gonzales v. Duenas-Alvarez. The transcript is available here. Update: SCOTUSblog's summary of the argument is here.

SCOTUS Notes

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Update. The Supreme Court refused to lift the stay of execution granted by the Sixth Circuit to Ohio murderer Jerome Henderson. No dissent is noted.

Most of the Supreme Court action this week is civil, including the always heated subject of race and school. The Monday orders list contained no grants of certiorari, as is usual when the Court announces grants the day of the conference, at the end of the previous week.

Justice Breyer appeared on Fox News Sunday. Transcript here.

Counsel for petitioner filed (and provided to us, thanks) a supplemental brief in Burton v. Waddington. The Washington Supreme Court issued an opinion helpful to Burton, but the main hurdle remains the jurisdictional question of federal habeas law.

News Scan

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Alien Deaths Case. Truck driver/smuggler Tyrone Williams was convicted in the deaths of illegal immigrants, reports Juan Lozano of AP. He abandoned them in a locked truck in the sweltering heat in May, 2003. The penalty phase begins Wednesday.

Death Penalty. Virginia's Governor will decide if triple murderer Percy Walton is mentally competent to be executed this Friday as reported in story from the Associated Press. Walton, who pled guilty to the robbery and execution style killings of three people in 1997, received a stay three years ago for a psychiatric evaluation which did not find him incompetent. Last June, the Governor delayed his execution for another evaluation.

More DP. A multiple murderer is asking a Tennessee judge to drop his appeals and allow his execution. As reported by KRIS-TV, Paul Reid received seven death sentences for three separate incidents where he killed more than one victim in 1997. Reid was scheduled for execution last July but says he was talked into resuming his appeals resulting in the current stay.

News Scan

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Death Row Suicide. AP reports that James David Tulk hanged himself in his cell in San Quentin's death row Thursday night. The Cal. DCR status report indicates that he was received on death row 14 years ago and no action has been taken on his appeal.

Cert. Grants. Lyle Denniston of SCOTUSblog reports that the Court granted certiorari in three cases today, all civil. Among them is the notorious "Bong Hits 4 Jesus" case.

The Ninth Circuit has rejected a San Francisco area murderer's claim that his death sentence is invalid because not enough psychiatric evidence was presented at the sentencing hearing. Barring further consideration of the claim by the Supreme Court, the post-conviction review of David Raley's case has run its course. Raley kidnaped, raped and murdered a 16-year-old girl in 1985 according to a San Francisco Chronicle story by Bob Egelko. The Ninth Circuit opinion is here.

Crime
in New Orleans is even worse than before Katrina according to an article by Anne Rochell Konigsmark in USA Today. While less than half of the city's original population has returned, the story reports that 80% of the criminals have come home.

More Crime A study of street criminals in England by the Economic and Social Research Council has found that "Some offenders found robbery to be a pleasurable activity in itself," according to a report by the BBC. The rate of robbery, a crime usually planned and carried out for financial gain, has historically been a good indicator of the effectiveness of a government's ability to catch the perpetrators and the severity of the punishment they receive. If a significant percentage of British muggers are robbing people for fun, it suggests that the likelihood of being arrested and the severity of the penalty are inadequate. Part of the problem are those who see criminals as victims, like the woman in this piece who tells us "It is for 'kicks,' but you have to understand what the 'kick' is. The 'kick' is people who are victims for prolonged periods of time developing a cycle of revenge so that they then get a high from victimizing someone else." Oh dear.

Stuff wife in oven instead of turkey? Martin Luther Jackson has been arrested after attempting to stuff his estranged wife into a kitchen oven in front of their five children, who range in age from one to 13-years-old. AP story here.