January 2007 Archives

As noted here earlier today, a federal jury returned a death verdict in the killing of two undercover New York police officers. Normally, such a crime would be a state matter. Under the post-1937 view of the Commerce Clause, Congress has the power to extend federal criminal law to crimes with only the most tenuous federal connection, but that power should be used sparingly. In particular, use of federal prosecution in what would normally be a state case in order to impose a sentence that is greater (or less) than the people of the state have decided is appropriate for that crime is a misuse of power.

Sometimes, though, there are special considerations that override general principles of policy. On occasion, federal prosecution has been used when the state system malfunctions and is unable to deliver justice. During the civil rights struggle, for example, it became necessary to prosecute people on federal civil rights violations when the state system would not prosecute them for murder.

New York is a special case regarding the death penalty. When the democratic process has spoken on the subject, it has always decided in favor. When the Supreme Court threw out all existing laws in 1972, New York enacted what the high court implied was required: a mandatory statute. Then in 1976, the Supreme Court did an about face and held, without apology, that such laws were actually forbidden, not required. Fixing this problem was blocked for two decades by legislative deadlock, with the death penalty having enough support to pass the legislature but not override Governor Cuomo's veto.

A death penalty law was finally signed by Governor Pataki in 1995, but then the nightmare recurred. In People v. LaValle, 3 N.Y.3d 88 (2004), the Court of Appeals latched onto an odd provision regarding deadlock instructions to the jury and declared it unconstitutional. That decision was doubtful, but what came next was appalling. Despite a clear and unambiguous severability clause in the statute, the Court of Appeals declared that this minor problem wiped out the entire New York death penalty. It declared itself impotent to fill in the gap of the deleted instruction, even though other courts around the country have had no difficulty filling in such gaps where their statutes are silent. The opponents of capital punishment still do not have the legislative strength to repeal the death penalty law, but they did have enough to block a legislative repair of the statute. Thus, New York has no death penalty despite the presence on its books of an unrepealed and overall constitutional death penalty statute.

In this context, then, the use of federal prosecution is not to defeat the expressed will of the people of the state but rather to supply the justice that a malfunctioning system has failed to provide. It is unfortunate that it has to come to this, but a bending of state-federal line is preferable to docile submission to judicial autocracy.

The New York Court of Appeals has an opportunity to clean up its own mess. In People v. Taylor, there is one more death sentence that has not yet been overturned waiting for that court's review. The Queens District Attorney is asking the court to overrule LaValle, respect the clear severability clause, and reinstate New York's valid death penalty law. CJLF's brief in support is available here.

News Scan

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Internet Predators. In a story by Joe Garofoli of the San Francisco Chronicle, Myspace is supporting a measure in Congress called the "Keeping the Internet Devoid of Sexual Predators Act of 2007. The measure proposed Tuesday would make it a crime for anyone 18 years or older to misrepresent their true age with the intentions to engage in sexual conduct with a minor. Critics see this as nothing more than an attempt to "window dress" the true issue. These criticisms include that only the dumbest of pedophiles would actually use their email address, (which is required to be disclosed by the Act) and that it is too easy to obtain another unknown email address, therefore the proposed law would only put a minor dent in the major issue of sexual predators who prey on innocent children via internet.

Death Penalty. According to a story In the Fort Wayne Journal Gazette by Niki Kelly, Indiana is debating a bill which would prohibit the mentally ill from receiving the death penalty. Adoption of such a law would make Indiana the first state to allow a judge to determine, in the beginning of a case, if the accused suffers from any severe mental illnesses. Critics of this bill feel that Indiana legislators do not trust their citizens to weigh the evidence to arrive at the appropriate conclusion at the sentencing hearing.

Howard Bashman over at How Appealing has this post regarding the death sentence for a man convicted of killing 2 Staten Island detectives. He notes that this is the first successful death sentence (albeit via a federal prosecution) in NY in quite some time. A New York Times story by Michael Brick is here, and a Washington Post column by Jabari Asim is available here.

Cunningham Legislative Fix


Senator Gloria Romero, who chairs the California Senate Public Safety Committee, has introduced a legislative fix for the Cunningham v. California problem. For technical reasons, the new bill is an "amendment" to an unrelated previous bill that deletes and replaces the entire text of the bill, SB 40. Update: Andy Furillo of the Sacramento Bee reports that the bill passed out of committee 4-0.

The key passage (and only substantive change) is this amendment to Penal Code § 1170(b):

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime the choice of the appropriate term shall rest within the sound discretion of the court.

The requirement of a finding of fact to impose the upper term, included in the original Determinate Sentencing Law as a protection for the defendant, would be deleted. In the surreal world of Blakely, this protection renders the statute unconstitutional, and its deletion reinstates the statute. As a practical matter, though, it wasn't much of a protection, because there are no real people or real crimes for which some aggravating fact cannot be found. So, if this amendment goes through, California sentencing will operate as it did before Cunningham for essentially all practical purposes.

News Scan

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A paraplegic with two prior robbery allegations was convicted Friday for a third time according to a story by Marisa Lagos of the San Francisco Chronicle. The 35-year-old Asian man, Cuong Vinh Tran would rob victims while in his car, pretending to hold them at gunpoint. The victims were attacked while walking and were unaware that he was a paraplegic. He was charged with two counts of robbery and one of attempted robbery.

DNA testing of dog hairs used as evidence in Atlanta murders from the late 1970s and early 1980s to convict Wayne Williams, was approved by state lawyers according to an AP story. Williams was sentenced to two consecutive life terms for the murders of 27-year-old Nathaniel Carter and 21-year-old Jimmy Ray Payne. He was also held responsible for 22 other deaths. State attorneys allowed the DNA testing after Williams appealed his conviction. They do not think the DNA testing will show "reasonable probability" that the charges would have been different. At the original trial, a fiber analysis of hair found on the victims matched the hair of the Williams' dog. The trial used hair found at Williams' car, home, and parents' home as the main evidence to convict him. Williams claims officials covered up evidence that the KKK was involved in the killings.

As I discussed in a previous post, there’s much talk about sex offenders but a lack of good science. One of the most discussed areas in terms of sex offenders is risk of recidivism. While some say recidivism risk is relatively low among sex offenders, others disagree and praise the severe civil restrictions mandated for many sex offenders. Where does the truth lie? Like so many things in life, it’s a mixed bag.

Cunningham Catch-22

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I've seen this movie before. In the wake of Penry v. Lynaugh, 492 U.S. 302 (1989) many Texas defense attorneys made the Catch-22 argument. The Eighth Amendment, as amended interpreted by the Supreme Court, says you cannot sentence a defendant to death without considering mitigating factors beyond those contained in the Texas special issues. However, the Texas statute (until its 1991 amendment) provided no authority for the jury to consider additional factors. Therefore, the argument went, no one could be sentenced to death in Texas. The Texas judges didn't buy it and proceeded to craft ameliorative instructions. The aftereffects are presently before the Supreme Court in Smith v. Texas.

Now this argument is being tried in noncapital cases in California, in the wake of Cunningham. Virginia Hennessey of the Monterey Herald reports on a case where a similar argument is being advanced. The main charge, murder with special circumstances, presents no Cunningham problem. California law has long provided for a jury verdict beyond a reasonable doubt on those circumstances. However, Daryl Lipska is also charged with lesser offenses, raising the issue of an upper term under the Determinate Sentencing Law if he beats the murder rap. The defense argument is that the Legislature hasn't provided a procedure for juries to make the additional findings in DSL cases. The implication is that until the Legislature acts, nobody can receive the upper term in California, no matter how aggravated the case.

That outcome is so patently unjust and contrary to the purpose of the law, it is hard to believe it will get any traction. We know from bitter experience that there is no such thing as an argument so far-fetched that no judge will accept it, but it is virtually certain that the California Supreme Court will reject this argument in the end.

The California District Attorneys' Association had its winter meeting last week. The general feeling there was that Cunningham is a manageable problem.

Recidivism Math

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From the Herald Sun of Australia comes an article that begins with this passage:

SEX offenders who commit further crimes are a small minority who can cause immense harm, according to a new study.

But the study concludes that the task of reliably identifying potential repeat offenders is "extremely difficult, if not impossible".

The research paper on recidivism of sex offenders found only 13.4 per cent were known to have committed a new sex offence within five years.

But Dr Karen Gelb, senior criminologist for the Sentencing Advisory Council, said the recidivism rate -- like the sexual assault reporting rate -- was likely to be a conservative estimate.

The opening sentence is a claim we often hear, but does it really fit with the actual data in this study? Considering the consequences, is "only" 13.4% accurately characterized as a "small minority," even on its face? That seems to me to be a quite sizable minority. More importantly, though, if 13.4% represents the fraction who reoffend and whose new offenses are reported and who are caught and who are convicted, then what is the fraction who simply reoffend? If X * Y * Z * W = 0.134 and if Y, Z, and W are all less than 1 (and Y, we know, is substantially less), then X may not be a minority at all.

Dr Gelb said Australian Bureau of Statistics figures showed that the proportion of sex offenders who moved all the way through the criminal justice system represented "only the tip of the iceberg".

News Scan

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San Francisco was the scene of a protest Sunday by supporters of eight former Black Liberation Army members charged with the 1971 shotgun murder of a police sergeant and the wounding of a civilian clerk. An Associated Press story by Marcus Wohlsen reports that forensic analysis of shotgun shells used when the militants stormed the police station and a fingerprint recovered at the scene, led police to the suspects. The protesters claim that the arrests are part of an on-going police vendetta against black liberation groups.

The Victim's side of a gruesome murder case is presented in a story in Sunday's Cincinnati Enquirer by Sharon Coolidge & Jon Craig. Earlier this month, twelve days after taking office, Ohio Governor Ted Strickland ordered a temporary reprieve for two murderers scheduled for execution next month. Darryl Gumm and Michael Bies were sentenced to death for the 1992 kidnap and brutal murder of 10-year-old Aaron Raines. After the Surpeme Court's decision in Atkins v. Virginia, the pair joined an estimated 39 other Ohio murderers to claim that they are mentally retarded. Governor Strickland, a former prison psychologist, says he has "serious questions" about capital punishment and plans to hold new clemency hearings for the murderers.

Serial child molester Dean Arthur Schwartzmiller was sentenced to "150 years to life," the AP reports. "Judge Edward Lee said that despite Schwartzmiller's legal savvy in getting some previous charges dismissed, he will spend the rest of his days filing appeals from a prison cell."

Supermaxing the Brain


Professor Berman over at Sentencing Law and Policy has this post on this week’s Time magazine’s feature article on supermax prisons. Professor Berman quotes the Time piece:

Modern science has confirmed this, with electroencephalograms showing that after a few days in solitary, prisoners' brain waves shift toward a pattern characteristic of stupor and delirium. When sensory deprivation is added ... the breakdown is even worse.

What is notable here is that, once again, the popular press and even legal scholars misunderstand how to interpret neuroscience results. There are likely many times during the day when everyone’s brain waves would show a pattern of stupor and delirium. EEG’s reveal brain activity, but they cannot be used exclusively to diagnose. The implication in the Time piece is that supermax prisons are so horrendous that inmates invariably descend into madness. Time proffer’s of the EEG data seems to solidify this conclusion with the certainty of science. Yet, EEG waves “characteristic” of stupor should be accorded little weight as evidence of this claim. Brain waves similar to stupor can appear frequently during “normal life” outside of prison.

News Scan

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DNA. The New Jersey Supreme Court unanimously rejected an ACLU challenge to the state's collection of DNA samples from convicts as reported in a piece by Gregory Volpe of Gannet News in Trenton. The Court's decision in New Jersey v. O'Hagen, follows a January 12, Ninth Circuit ruling in U. S. v. Reynard which upheld the DNA Backlog Elimination Act of 2000. That case was brought by the Federal Defenders of San Diego, Inc.

Colder Case: It is apparently a good week for closing old cases of killings by racist terrorist organizations. Reputed Klansman James Ford Seale, 71, was arrested in connection with the deaths of two black hitchhikers in 1964, Emily Wagster Pettus and Lara Jakes Jordan of AP report.

Crack, Powder, and Equal Protection

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A reader over at SL&P notes that the Supreme Court on Jan. 16 asked the Solicitor General to respond to a certiorari petition claiming that 21 U.S.C. § 841 violates multiple constitutional rights. That section specifies punishment for possessing various quantities of drugs, and it equates 5 grams of crack with 500 grams of powder cocaine. The case is Jackson v. United States, No. 06-8391. The Ninth Circuit's unpublished memorandum (by Judges Pregerson, Nelson, and Graber) simply notes that the arguments are foreclosed by circuit precedent.

Cold Case

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On Aug. 29, 1971, San Francisco police Sgt. John V. Young was murdered as part of a terrorist conspiracy by an offshoot of the Black Panthers calling itself the Black Liberation Army. Eight suspects have now been charged in the crime, according to this AP story. Among them is Anthony Bottom alias Jalil Abdul Muntaqim, who is presently the guest of the taxpayers of New York for the murder of Patrolman Joseph A. Piagentini the same year.

Muntaqim was a plaintiff in the Second Circuit case claiming that murderers still in prison had a right to vote, notwithstanding state law, under the Voting Rights Act. CJLF joined a brief in that case, along with the Piagentini family and and the Center for Equal Opportunity. The Second Circuit decided that Muntaqim wasn't a resident of New York at all and dumped his case, leaving the Voting Rights Act issues to the no-longer-joined case of Hayden v. Pataki.

The death penalty is not a possibility in the present case, because the death penalty law in effect in 1971 was thrown out in 1972, and the restoring enactments were not retroactive.

Update: The New York Sun has more in this editorial (hat tip: George Conway).

News Scan

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Durham County District Attorney Mike Nifong was charged with withholding evidence and making false statements in an amended complaint by the North Carolina State Bar this morning according to an Associated Press story. The new charges were added to the Bar's existing complaint charging Nifong with ethics violations in his handling of the investigation and charging of three Duke lacrosse players with the rape of an exotic dancer last year.

Death Penalty The Virginia Senate voted 28 to 11 to amend the state death penalty law to allow the sentence for accomplices to murder. A Washington Post story by Tim Craig reports that if approved the measure would reverse the state's 30-year-old "triggerman rule." In a separate bill, the Senate voted 30-10 to allow the death penalty for the murderer of a judge. Death penalty opponents say they are troubled.

Roberts & Alito: Jan Crawford Greenburg has this piece in the WashPost on President Bush's Supreme Court appointments.

Pending Supreme Court Cases

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The U.S. Supreme Court is off on a long break now. Dates when opinions will be announced in the normal course of events in February, March, and April are the ones in red or blue on this calendar. The criminal and crime-related cases that have been argued but not decided are:

Oct. 31: Lawrence v. Florida, No. 05-8820, on the habeas statute of limitations.

Nov. 1: Whorton v. Bockting, No. 05-595, on the retroactivity of Crawford v. Washington.

Nov. 6: Wallace v. Chicago Police Officers, No. 05-1240, on the accrual of a cause of action for a Fourth Amendment violation.

Nov. 7: James v. United States, No. 05-9294, on whether attempted burglary is a "violent felony" for the purpose of federal recidivist sentencing under 18 U.S.C. § 924(e).

Jan. 9: Schriro v. Landrigan, No. 05-1575, on federal habeas courts' deference to the state court decision under AEDPA.

Jan. 17: Smith v. Texas, No. 05-11304, Abdul-Kabir v. Quarterman, No. 05-11284, and Brewer v. Quarterman, No. 05-11287, all on what to do with pre-1991 Texas capital cases.

CJLF filed briefs in Bockting, Landrigan, and Smith.

California Sentencing Commission

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One version of California Sentencing Commission legislation has seen the light of day. AB 160 by Assemblywoman Lieber seems to be a skeleton bill. It creates the commission and says it will issue guidelines, but how the guildelines fit or replace the current system is not specified.

Politically, the bill calls for six members of the commission to be appointed by legislative leaders, outnumbering the five appointed by the governor. That is very bad news and reason enough for fierce Republican opposition and, if it comes to that, a veto, and, failing that, a referendum. In California's unusual politics, the leadership of the Legislature is solidly in the hands of the left wing of the Democratic party. Republicans and moderate Democrats (largely from the Central Valley) together constitute a majority, but those moderates never become the leaders. The leaders come from the most deeply partisan areas where being on the fringe wins the primary and the general election is a foregone conclusion. I hesitate to say that the legislative leaders actually care more about the criminals than the victims, but their actions are often consistent with such a view. Any plan that puts this crowd in de facto control of California sentencing needs to be killed, and the sooner the better.

Other SCOTUS Action and Inaction

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Texas Stay: AP reports that Justice Scalia granted a stay of execution to Ronald Chambers while the Court considers his petition on arguments similar to the Texas cases heard on Jan. 17. Chambers abducted and killed Mike McMahan during a carjacking in 1975. UPDATE: The Dallas Morning News has this article by Diane Jennings describing the crime and the long delays, with comments by Deia Sutton Roberts, who survived the crime, and Mike McMahan's sister. Updatex2: The case is Chambers v. Quarterman, No. 06-7263.

Prison Litigation: In Jones v. Bock, the Court resolved several procedural issues in prisoner litigation under the Prison Litigation Reform Act: (1) Exhaustion of administrative remedies is an affirmative defense the defendant must raise; the plaintiff need not plead it. (2) The administrative proceedings need not name all the same defendants as the subsequent civil action. (3) A complaint with some exhausted and some unexhausted claims need not be dismissed in its entirety. Typically, by the time a case gets to federal court, it is too late to exhaust any more claims, and the ones that weren't exhausted can just be dismissed. (4) Chief Justice Roberts further confirms that he is willing to assign boring cases to himself.

Mirzayance: Conspicuously absent from the orders list is Knowles v. Mirzayance, which was on its sixth conference list Friday, as previously noted. Suggestion for Cal AG: print the cover of your cert. petition on milk cartons with the caption "Have You Seen This Case?"

McDonald: The case of McDonald v. United States, also noted last week, was denied.

The Truth About Clarence Thomas

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That is the title of an op-ed by Jan Crawford Greenburg in today's Wall Street Journal. Here is the opening paragraph:

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive -- and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years

This is not news to those of us who actually follow the Court and read the opinions, but it may be news to many who simply stick to assumptions formed long ago on dubious information and never bother to check the facts.

California Sentencing

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The attempt of the California Supreme Court and Attorney General to Blakely-proof California's three-tier sentencing system with a dubious analogy to post-Booker federal sentencing was shot down today. The U.S. Supreme Court didn't buy it in a 6-3 decision in Cunningham v. California. The requirement that the upper term could be imposed only on a finding of an aggravating circumstance replaced an earlier system of unfettered discretion in the parole board, after the court sentenced the defendant to an indeterminate term. The determinate sentencing law provided more structure and a more predictable relationship between crime and punishment. Let no good deed go unpunished.

Update: The Governor's statement, in its entirety: "We are working with the Attorney General to determine the impact this decision will have on the state. I support longer sentences for criminals who deserve them. As Governor I will work to ensure that this decision will not be a threat to public safety."

Weekend Notes

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Cameras in SF: Ken Garcia has column in the SF Examiner, titled "Debate over crime cameras brings out the clueless in S.F." This issue, he says, "pits the left versus the very, very left — an ideological divide that in San Francisco is far wider than most people could imagine. And it’s a gap that usually splits those who have seen or experienced crime and those who use their politics as a shield against reality." Also, "people who live in and near neighborhoods rife with prostitution, drug-dealing, robberies and frenetic gang activity desperately want surveillance cameras, and the more the better."

LA Gangs: Heather MacDonald in the LA Times takes aim at the city's ideologically skewed report on what to do about gangs. The Times editorial is less strident but also calls for a "reality check."

Ohio: Doug Berman collects coverage of the Ohio commutations at SL&P.

Spanking: Debra Saunders in the SF Chron gives Assemblywoman Sally Lieber a verbal spanking for her silly bill and inflated rhetoric. "I think we ought to have a law against beating children," Ms. Lieber says. We already have a law against beating children, Ms. Saunders notes.

Ohio Reprieves

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The governor of Ohio has issued reprieves postponing the three executions that were coming up in that state. He put them off until two, three, and four months from now. His statement on the reprieves includes this:

During my tenure as Governor, before I allow an execution to proceed, my staff and I will have conducted a comprehensive, thorough and searching review of the case to determine if any exercise of executive clemency is appropriate. The brief time I have been Governor has not allowed me sufficient time to conduct that type of review and there is not sufficient time before these scheduled executions to complete that type of review.

Executive clemency is an essential part of the process. With the notable exceptions of governors who clear out death row on their way out the door, it has not been the instrument of the delays and denials of justice that we have routinely seen in collateral review. A publicly careful consideration of clemency does much to bolster public confidence that the death penalty is, in fact, being administered fairly. Commutation is appropriate in the event that, at the end of the process and considering all available evidence regardless of its admissibility at trial, there remains a substantial doubt of the identity of the perpetrator. Historically, clemency was also appropriate in cases where rigid sentencing systems imposed sentences that were excessive when considering factors not considered by the system. The death penalty today is so restricted that the number of such cases is vanishingly small, but it remains a possibility to be considered.

Personally, I consider it a positive development that the governor makes it a point to not only consider the cases carefully but to demonstrate to the public that he is doing so. He should take enough time to do that. The time actually stated in the order is more than required in my opinion, but not excessively so. I will reserve further judgment until I see how he actually decides the petitions, and on what basis.

The order further states, "The Department should carry out their sentences on the last date of their respective reprieves at a time established on that day by the Department." Apparently it is not necessary to go back through a date-setting procedure after a reprieve in Ohio. That's good.

Reginald Fields of the Cleveland Plain Dealer reports here.


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Traffic Stop: The Supreme Court has issued its conference-day orders list. The only criminal case granted is Brendlin v. California, No. 06-8120. The California Supreme Court held 4-3 that a passenger is not subject to a "seizure" for Fourth Amendment purposes in a routine traffic stop.

Medellin Returns: The notorious José Medellín has filed his new certiorari petition in Medellin v. Texas, No. 06-984, bringing the Vienna Convention and the International Court of Justice's Avena decision once again to the Supreme Court. When Medellin was at the Supreme Court before, in 2005, the Court decided that state habeas, not federal habeas, was the place to resolve these issues. CJLF filed a brief in that case. The key question is whether a state procedural default law can preclude bringing a Vienna Convention claim when the consulate had not been notified at the time of the default.

Conference List

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The Supreme Court has a conference tomorrow, and SCOTUSblog's list of "reasonable chance" cases is here. There are two criminal cases on the list.

In McDonald v. United States, No. 06-440, former SG Kenneth Starr maintains that the defendant, an African-American L.A. politician, was the victim of racial gerrymandering by trying the case in the O.C. The panel that rejected this claim included those notorious pro-prosecution hardliners, Judges Harry Pregerson and Myron Bright. I would be surprised if they take it.

In Pinks v. North Dakota, No. 06-564, Jeff Fisher seeks to explore the application of Crawford v. Washington to forensic lab reports. Stay tuned for CSI:SCOTUS.

Not on the SCOTUSblog list is Knowles v. Mirzayance, No. 06-396. This one would seem to have a "reasonable chance" just from the sheer number of times it has been relisted. This is its sixth trip to the conference. Could be they are considering summary reversal and working on the opinion. The Ninth Circuit's unpublished memorandum affirmed a grant of habeas relief for ineffective assistance in withdrawing an insanity plea. District Judge Suko dissented.

News Scan

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Homelessness: Julia Vitullo-Martin of the Manhattan Institute has this op-ed on urban street homelessness in the Wall Street Journal. She refers to Bush Administration policy as "a sort of Nixon-goes-to-China reversal of expectations."

Alien Smuggling Deaths Case: The Houston Chronicle reports that Tyrone Williams will get a life sentence for killing 19 illegal immigrants by abandoning them in his truck. The story doesn't specify if this is an actual unanimous decision by the jury or the result of the federal system's misguided rule that a penalty phase deadlock goes to the defendant. The jury deliberated 5 1/2 days.

Smith v. Texas. A New York Times story by reporter Linda Greenhouse discusses yesterday's high court argument in the Smith case. Robert Barnes has this article in the Washington Post, also discussing how large a portion of the Court's docket the capital cases are.

Indiana murderer Norman Timberlake has received a stay of execution from a sharply divided state supreme court, as reported by Jon Murray in the Indianapolis Star. Timberlake, sentenced to death for gunning down state trooper Michael Greene in 1993, claims that he is too mentally ill to be executed. Last month the Indiana Supreme Court ruled him competent. This month, the Court reversed itself and granted a stay to await the U.S. Supreme Court's decision in Panetti v. Quarterman, which was accepted for review on January 5. The fifth circuit opinion in the Panetti case is here.

A South Carolina criminal wanted for nine armed robberies received justice in the end last Saturday when he was shot in the buttocks while trying to carjack a Columbia couple according to an Associated Press story.

Texas Execution

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Twelve years ago this month, Officer Fabian Dominguez, 29, was murdered as he attempted to stop the burglary of a home in San Antonio. Punishment for that crime was finally carried out today. Officer Dominguez had twin daughters, just infants at the time of his death, now 12 years old. The AP report is here.

USCA9 Scorecard


For those who like to track the Ninth Circuit's record in the Supreme Court, 6 of the 11 cases decided so far are CA9 cases. All have been reversed, 4 unanimously (in the sense that no Justice opined their decision was correct), and 1 summarily. It would have been 5 unanimous but for support from an uncharacteristic source. Justice Scalia voted to affirm in Resendiz-Ponce.

Smith Argument

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The transcript is available. Mark Sherman reports for AP, Tony Mauro for Legal Times

Deportation Decision

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As expected, the Supreme Court reversed the decision of the Ninth Circuit in a deportation case, Gonzales v. Duenas-Alvarez.

Messing with Texas

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The Texas Special Issues

Tomorrow is Texas day in the Supreme Court, as the Court once again confronts a mess of its own making. The underlying problem is the Texas system of "special issues" in capital cases. That system was designed in the wake of Furman v. Georgia, 408 U.S. 238 (1972). In that case, the Supreme Court told Congress and the states that all their death penalty statutes were unconstitutional, but it wouldn't tell them precisely why or how to fix them; they had to guess.

An Odd ADA Case

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The Supreme Court today vacated and remanded to the Sixth Circuit the quirky little Americans with Disabilities Act case of Haas v. Quest Recovery Services, No. 06-263. Haas was in a residential program operated by Quest as part of her DUI sentence, making this a type of "prisoner ADA" case, although the facility was hardly a prison.

In March, the Sixth Circuit decided, among other things, that co-defendant State of Ohio had Eleventh Amendment immunity, apparently unaware of the Supreme Court's decision two months earlier in United States v. Georgia. That's what rehearing petitions are for, right? Yet according to the PACER docket, the plaintiffs went straight for a certiorari petition to SCOTUS without petitioning the Sixth for rehearing.

However, the Sixth was guilty of its own breach of etiquette. Because the ADA clearly does abrogate state sovereign immunity, a holding that it can't is a holding that an Act of Congress is unconstitutional. 28 U.S.C. § 2403(a) requires notice to the USAG and an opportunity to intervene. The Sixth's failure to observe this requirement is the ostensible basis for today's remand. Justice Ginsburg adds some additional criticisms of the Sixth's opinion.

News Scan

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UN Sec Gen: John Bolton has this op-ed in the Washington Post urging Secretary General Ban Ki-moon to stick to his initial judgment on, among other things, the death penalty.

NYCA: The New York Law Journal has this story by John Caher on Justice Theodore Jones, nominated by Gov. Spitzer to succeed Judge Rosenblatt on New York's highest court. (Hat tip: How Appealing.)

Death Penalty The Supreme Court will hear oral argument in Smith v. Texas on Wednesday. An Associated Press story by Michael Graczyk discusses the case, which will be argued along with those of two other condemned Texas murderers who also claim that Penry error requires that they receive new sentencing hearings.

Sex Offenders, Risk, and Money


The recent news of the arrest of Michael Devlin in the kidnapping of two children has many thinking about sex offenders once again. The term “sex offender” has taken on a life of its own these days, with media outlets eagerly recounting the number of kidnappings that happen each year and the thousands of people mandated to various sex registries. But there are a couple of observations that should be noted about the Devlin case and the many others:

Duke Development

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AP reports: "The district attorney in the Duke lacrosse sexual assault case has asked the state attorney general's office to appoint a special prosecutor to take over the case."

Update: A later report with more details is here.

USCA9 Upholds DNA Testing

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The Ninth Circuit today rejected attacks on the federal statute requiring DNA testing of convicts on probation, parole, or supervised release in United States v. Reynard. The defendant claimed "that the DNA Act (1) violates the Fourth Amendment, (2) is impermissibly retroactive, (3) violates the Ex Post Facto Clause, (4) violates the Commerce Clause, and (5) violates the Fifth Amendment." Judge Pregerson wrote the opinion rejecting four of the claims but dissented from the portion rejecting the Commerce Clause claim. Judges Tashima and Clifton rejected all five claims.

SCOTUS Takes Jury Selection Case

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The Supreme Court sallies forth once more into the selection of juries in capital cases. In Brown v. Lambert, the Ninth Circuit granted habeas relief for the trial court's removal of a juror. Judge Tallman and four other judges dissented from denial of rehearing en banc. SCOTUSBlog has the state's petition here. The case is now named Uttecht v. Brown, No. 06-413. The Court also took three civil cases on today's orders list. We can expect Tuesday's list to be all denials.

For those keeping score, there are now six Ninth Circuit habeas cases on the docket for this term, three of which have already been decided: Belmontes, Musladin, and Burton.

Death Be Not So Complicated


The title of this post is the title of an ABA Journal article by David Savage (h/t SL&P). The article discusses the Supreme Court capital cases of the present term.

If the law on sentencing is confused, the high court itself bears part of the blame. It has been closely split on death penalty cases, and some of its narrowly decided opinions have left the door open for differing interpretations in the lower courts.

That's a serious candidate for understatement of the year, and we're only in the second week.

How's this for a simple rule? If the state capital sentencing system conforms to the broad outline required by Gregg v. Georgia and its companion cases, the Furman mandate is satisfied. The implementation of that system in individual cases is a matter of state law.

News Scan

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Cooper Argument. The notorious Kevin Cooper case was argued in the Ninth Circuit yesterday. David Kravets reports for AP; Heny Weinstein for LA Times.

Death Penalty. The South Dakota legislature plans to revise the state's execution protocol in light of legal challenges to lethal injection, according to an Associated Press story in today's Sioux City Journal. Responding to the suggestion that anti-death penalty advocates might use the opportunity to pass a bill abolishing capital punishment, one newly elected Democrat said "It's something people want, reserved for heinous crimes. I don't see much support for getting rid of it."

Retardation: Allen "Bridgers, sentenced to lethal injection for the 1997 capital murder of 53-year-old Mary Amie in Tyler, [Texas] told his apparent girlfriend on New Year's Day that he knew he was not mentally retarded but that claiming it would buy him a 'couple more years.'" Casey Knaupp reports in the Tyler Morning Telegraph.

Cunningham: SCOTUS-watcher Aaron Streett of Baker Botts informs us that Cunningham v. California, the California Blakely case, is one of only two undecided cases from the October arguments and that Justices Breyer and Ginsburg are the only Justices who have not yet authored opinions from that session. It is arguably a ray of hope for California if none of the Justices who have been leading the charge on Apprendi issues is writing the opinion, but it's very speculative.

Oklahoma Execution

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Fourteen years ago, Joseph Gooch, 17, Theodore Kindley, 19, Senaida Lara, 27, and Steven Williams, 24, were murdered in the Lee's Famous Recipe Chicken Restaurant in Tulsa where they worked. The man who shot them, Corey Duane Hamilton, was executed at 6:14 Central Time today, the AP reports. The Tenth Circuit opinion on the habeas case is here. Our previous post on the injection issue, with a link to that opinion, is here. Update: Here is a report by Barbara Hoberock of the Tulsa World.

Cert. Failure

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   In addition to whether Blakely v. Washington is retroactive on habeas, the other question left unanswered in Burton v. Stewart is why the Court chose this case as the vehicle for that question. As I noted last October, it was a stunningly poor choice.

   Did the Court's certiorari screening process fail big time? Were the Justices unaware this case had a glaring jurisdictional issue that stood in the way of the question they took it to answer? If so, why?

   Sometimes you can blame bad briefing on the part of the respondent. Supreme Court newbies sometimes just brief the case on the merits and give short shrift to cert-repellants like jurisdictional problems and messy, unique facts. Not in this case. The state was represented by AAG John Samson, an experienced and well-regarded advocate. His Brief in Opposition states the jurisdictional problem plainly as point A under reasons not to grant cert.

   Out of all the salmon swimming up Blakely River, why pick the one that's lying on its side gasping? It's still a mystery outside the Court. Inside, I expect it's been the subject of some "frank" discussions.

Landrigan Argument


   "... by the way, biological proclivity to violence is a mitigating factor rather than an aggravator factor?" -- Justice Scalia (38:9-11)

   The transcript of argument in Schriro v. Landrigan is available here. It's a rather confused argument, and Justice Kennedy notes early on (5:11-14) that he thinks the parties have been talking past each other. The most outrageous part of this case, from the prosecution viewpoint, is that the Ninth Circuit overruled a state court factual finding that the defendant had waived presentation of mitigating evidence. It did so based on its reading of the record, despite the fact that the contrary finding was made by the original trial judge. The defense today essentially conceded that was indefensible and now asks that the issue of whether there was an effective waiver be one of the issues to be considered in the district court on remand (pp. 34-36).

Notes on Burton

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   Today's decision in Burton v. Stewart resolves a habeas procedural issue that should have been obvious. (See my postargument post here.) A defendant whose conviction is affirmed but whose sentence is reversed in the state court cannot file one federal habeas petition attacking the conviction and then go back with a second petition attacking the resentencing after exhausting his state remedies on the second round. That is a successive petition, and it is subject to stringent, almost-never-met conditions of 28 U.S.C. § 2244(b). The briefs in the case are collected here.

   The odd thing here is that five federal jurists so casually brushed off the state's successive petition argument: the magistrate judge, the district judge, and the three judges of the court of appeals panel. Clear statements that there is only one final judgment in a criminal case -- the one including the sentence -- go back at least as far as the 1937 Berman case, quoted on page 9 of the opinion and page 8 of my brief.   A second petition attacking the same judgment is successive, unless the first one was dismissed on a ground not going to the merits, such as failure to exhaust state remedies.

   The case is worthwhile to clear up a point that apparently wasn't obvious enough. It probably won't be the subject of many law review articles.

   Doug Berman at SL&P asks if the Court should just have "dismissed as improvidently granted" (DIG'd, in SCOTUS parlance).

Oh, Never Mind

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Lyle Denniston at SCOTUSblog reports that -- as expected, see here and here -- the Supreme Court decided the Resendiz-Ponce case by determining that there was no error. Whether omission of an element of the crime from the indictment can ever be harmless error, the question they took the case to decide, will have to be answered another day.

More importantly, it appears from Lyle's report that the Burton case was decided on the ground (urged by CJLF et al.) that the petition was successive and the district court did not have jurisdiction. The retroactivity of Blakely will also have to wait for another day.

We will have more when the full text of the opinions is available.

News Scan

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Landrigan Argument Tomorrow. Tuesday, January 9, the Supreme Court hears argument in Schriro v. Landrigan, one more Ninth Circuit habeas case. We will be very interested in reading the transcript and comparing it with Judge Martin's hypothesis that the Ninth is excessively deferential to the states. CJLF's press release and brief are available on our web site.

Learning Law the Hard Way. Eric Duxheimer of the Austin-American Statesman has this interesting article on a law student's introduction to the reality of the criminal justice system: as a victim.

Prison Phone Calls. The New York Sun has this article about overcharging for phone calls from prison. Perhaps this is the meritorious needle in the prison litigation haystack.

Judge Boyce Martin: In His Own Words


Terry Kinney of AP has this story on Judge Boyce Martin of the Sixth Circuit. Most interesting to me is this quote:

"We are the most cautious of all the circuits, even the (San Francisco-based) 9th Circuit, in applying the death penalty," Martin said in an interview. "They are much more deferential to state law than we are. I am very proud that we have progressed in the fashion we have."

Given that deference is required by law, is he saying he is proud to violate the law more often than the notorious Ninth?

Here's another gem from the story, from current Chief Judge Boggs:

Upset by delays the court granted to one convicted murderer in 2001, when Martin was chief judge, Boggs wrote that "a majority of the active members of this court would grant a stay based on a hot dog menu."

Panetti and Faretta


More details on the Panetti case are available in this story by Linda Greenhouse in the NYT.

Despite, or perhaps because of, his mental disorders, Panetti chose to represent himself at his trial, and so long as he met the standard of competence to make that decision, the trial judge had no choice under the Supreme Court's 1975 decision in Faretta v. California, 422 U.S. 806. Justice Blackmun had warned in dissent that the Court was creating a constitutional right to be a fool. In some cases, that means being a crazy fool. When a marginally competent defendant makes a Faretta motion, the trial judge is caught between Scylla and Charybdis. If the judge denies the motion and a reviewing court determines that the defendant was, in fact, competent to make the foolish choice, the resulting Faretta error is reversible per se. If the judge grants the motion, the trial can become a farce. Although reexamining Faretta is not the question presented in the present posture of this case, we can hope that the Court will understand that but for its ill-advised decision, Panetti would have had a lawyer who could have made a good case in mitigation from his mental illness and quite possibly avoided the death sentence in the first place. In an appropriate case, the Court should provide trial judges some slack between the level of competence at which the judge must allow the defendant to represent himself at the level at which he must not.

The Supreme Court granted certiorari in seven cases today, but only one is criminal. Panetti v. Quarterman, No. 06-6407 is a competency-to-be-executed case. The federal district court determined de novo that Panetti met the standard of competence, and the Fifth Circuit affirmed.

Injection Stay Denied by CA10

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The Tenth Circuit today denied a stay and affirmed denial of injunctive relief to Oklahoma murderer Corey Hamilton. CA10 described the crime in its previous opinion on the case, 436 F.3d 1181:

This death penalty appeal arises out of the 1992 killings of four employees of Lee's Famous Recipe Chicken Restaurant in Tulsa, Oklahoma. In the course of a robbery in which Corey Hamilton participated, the employees were placed in a food locker and forced to kneel at gunpoint. Hamilton shot each in the head.

In today's decision, the court denied relief based on both Hamilton's delay in bringing the claim and his unlikelihood of success on the merits. Although challenges to injection protocols have been around for a few years now, Hamilton waited until his federal habeas proceedings were over, except for the denial of certiorari, to begin the administrative challenge to the protocol. After that challenge was completed, he waited another five months before filing the civil rights action.

On the merits, the court did not find that the recent execution in Florida, where the IV needles were apparently pushed all the way through the vein, created a probability of success. Unlike Florida, "the Oklahoma protocol places this responsibility in the hands of an EMT-P, a professional expressly recognized as fully qualified for this purpose by the experts in this case."

News Scan

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DNA Testing. South Carolina is considering a bill to DNA test everyone arrested for any offense, reports Richard Fausset of the LA Times. The article also discusses a scheduled expansion in California's testing program.

2006 Death Sentences. The final tally for the year is down, as expected, Robert Tanner of AP reports. The single most important factor in the long-term drop is the drop in the homicide rate, accounting for half of the total decline. That factor is only mentioned in passing in the story.

Burton Briefs

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Our collection of briefs in Burton v. Stewart, the Blakely retroactivity case, has been updated to include the supplemental brief for the state.

News Scan


Saddam Execution. Debra Saunders at the SF Chron quotes Richard Dicker of Human Rights Watch saying, "The test of a government's commitment to human rights is measured by the way it treats its worst offenders." So if you let a mass murderer off with no punishment at all, you have reached the highest plane of enlightenment? Saunders considers this "nonsense." Second the motion.

Death Penalty. United Nations representatives, expecting a statement condemning the death penalty after the execution of Saddam Hussein, were disappointed when the new Secretary General Ban Ki-moon suggested on Tuesday that the world should remember the dictator's victims and leave the decision about capital punishment to each individual nation, as reported by Maggie Farley in today's Los Angeles Times. This is very big news. A quick web search found 740 news stories reporting on the Secretary General's remarkable statement.

Drugs. The Mexican government is sending over 3,000 troops to Tijuana in an effort to stem the smuggling of cocaine into the United States, according to a story reported yesterday by Reuters. Last year, over 2,000 people died as drug cartels fought for control of key smuggling routes between Mexico and the U.S.

Crime. Violent crime was down 2.6% in Los Angeles last year, according to an Associated Press story by Greg Risling. While gang violence has reportedly increased, the overall crime rate had dropped every year since William Bratton was appointed Chief of Police in 2002, making LA among the safest big cities in the country.

New Jersey Commission Report

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The New Jersey Death Penalty Study Commission has issued its report, and to the surprise of almost no one, they recommend that the Legislature do officially what the New Jersey Supreme Court has done unofficially, abolish capital punishment in New Jersey.

New Jersey has not executed a single murderer in the modern (post-Gregg) era. When the commission asked me to testify, I took my first real look at that state's capital cases. Although I have become somewhat jaded by many years of working in this area, I was truly surprised at the brazenness of the NJSC's obstruction of capital punishment. What I found is worse than the California Supreme Court under the notorious Rose Bird. Yes, it is even worse than the Ninth Circuit.  Here is an excerpt from my testimony:

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