February 2007 Archives

A Closer Look at Bockting


Justice Alito's unanimous opinion in Whorton v. Bockting today is less than 14 pages, and half of that is the facts and case history portion. Why did it take nearly four months to write?  Perhaps it originally contained some bolder holdings which were dropped at some point in the process.

The opinion as issued is a strong reaffirmation of the nonretroactivity rule of Teague v. Lane, 489 U.S. 288 (1989), but it does not break any new ground. On the definition of a new rule, the opinion delivers a well-deserved rebuke to Judge Noonan of the Ninth Circuit, who advanced the preposterous thesis that Crawford v. Washington, 541 U.S. 36 (2004) was not a new rule despite the fact that it overruled a Supreme Court precedent. Today's opinion says it is "obvious" that reasonable jurists could have believed that Roberts, and not the rule that emerged in Crawford, was the law before Crawford, and indeed it is obvious.

On the so-called second Teague exception, the Court reaffirms that "it is unlikely that any [qualifying] rules have yet to emerge...." (internal quotes omitted, emphasis added).  Teague itself said "many" in 1989, and the significant change to "any" was made in Tyler v. Cain, 533 U.S. 656 (2001). The Court reaffirms once again that for a rule to qualify, it would have to be as big a deal as Gideon v. Wainwright, 372 U.S. 335 (1963) and there haven't been any such blockbusters in many years. Unfortunately, the Court once again refrained from officially pronouncing the second exception dead, so resources will continue to be wasted litigating a phantom exception. Was this the price of unanimity?

Unmentioned by the opinion was the hotly contested question of whether the AEDPA deference standard, 28 U.S.C. § 2254(d), implicitly incorporates the Teague exceptions. We know from Horn v. Banks, 536 U.S. 266 (2002), that this standard and Teague are independent limitations on habeas relief, neither depending on nor supplanting the other. This issue must await another case.

Does today's opinion have any implications for the retroactivity of Blakely v. Washington, 542 U.S. 296 (2004)? To my mind, the Court's reaffirmation of Tyler that it is unlikely any qualifying rules have yet to emerge is the most significant. The Court took briefing and heard argument on whether Blakely was retroactive on habeas in Burton v. Stewart, although the case was decided on other grounds, so the Court is well aware of the issue. It would seem odd to quote Tyler in this way if the Justices intended to rule in the near future that a rule that emerged after Tyler did qualify. The main issue in the Apprendi line will probably not be whether any case qualifies for an exception to Teague, but rather which cases in the line are new rules and which are merely applications of prior cases in the line.

On a nonhabeas point, the Court mentioned in passing that after Crawford nontestimonial out-of-court statements are not subject to the Confrontation Clause at all. That confirms my interpretation of Crawford, but many people have argued and some courts have accepted that the Roberts rule still applied to nontestimonial statements.

Police Liability: Car Chases and DWI

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Over at Overlawyered, there's this post regarding two cases involving police liability. The first case involves a Normal, Illinois police officer who shot and killed 20-year-old Nathan Ruch after he attempted to run down the officer. The decedent's family claims that since the last shot (which was fatal) went through the car's passenger window, the evidence shows that the officer was no longer justified in discharging his shotgun. One wonders how many of us could display the split-second precise judgment that the plaintiff's suggest the officer should have exercised after almost being run down by a speeding car.

The second case involves the Sixth Circuit's reversal of a trial court's finding of liability when the police failed to arrest a drunk driver who later killed another motorist. As overlawyered quips, why is this a federal case?

News Scan

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Sex Offenders will receive a life sentence if a civil commitment bill passes in Vermont as reported in an AP story here. Supporters and drafters of the bill, Sen. Richard Sears and Lt. Gov. Brian Dubie, say the new bill calls for an increase in reporting status and providing more personal information to the states' sex offenders registry after release from prison.

Whorton v. Bockting The Supreme Court's unanimous decision today, reversed the Ninth Circuit and reinstated the 1988 conviction of a Nevada child molester. The holding, which will later be commented on here, announced that Crawford v. Washington's limitation on the admission of out-of-court statements is a new rule, but not fundamental and therefore not retroactive.

The U.S. Supreme Court refused, last Monday, to reconsider a Texas Court of Criminal Appeals decision which overturned, on direct appeal, the conviction and death sentence of Robert Burns Springsteen. The Texas court held that a statement by a co-defendant was introduced at trial in violation of Crawford v. Washington. The Charleston Daily Mail reports that Springsteen was 17 at the time of the murders but was convicted and sentenced to death ten years later for murdering four people in 1991 at a yogurt shop in Austin, Texas.

Bockting Unanimous!

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The Supreme Court today decided in Whorton v. Bockting that its Confrontation Clause decision in Crawford v. Washington is not retroactive to cases that were already final on appeal when that case was decided. That is no surprise. What is a very pleasant surprise, though, is that the decision was unanimous. We will have more later. SCOTUSblog has an advance copy of the opinion here.

Duke Campus Culture

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Duke University's Campus Culture Initiative Steering Committee has issued its report. The announcement has links to the text of the report and the president's statement. The recommendations deal with such things as housing, drinking, athletics, and what it means to be a Duke student. From the announcement and a quick skim of the full report, it does not appear that the committee addressed what many consider to be the primary problem – a lynch-mob mentality among large elements of the Duke faculty. Indeed, from reading the report and its vague references to the lacrosse incident, one would think that the committee itself is operating on the presumption that the accusations are true.

Self-Esteem, Narcissism, and Root Causes


A study to be released today appears to corroborate what I have long suspected. The mandate of the self-esteem fanatics to lavish kids with praise regardless of whether they have done anything to earn it is a recipe for narcissistic personality disorder, and it has long-term damaging effects for society.

According to this story by Larry Gordon and Louis Sahagun in the LA Times, Jean Twenge of San Diego State U. is the lead author of the study titled "Egos Inflating Over Time." Scores on the Narcissistic Personality Inventory given to college students over 25 years show that two-thirds now score above the 1982 average.

News Scan

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Cold civil rights cases may be reopened by the FBI. An AP story by Chris Talbott, explains that the Southern Poverty Law Center gave the FBI a list of 74 unsolved cases linked to racial discrimination. U.S. Attorney Dunn Lampton believes however, the cases will remain cold because the statute of limitations federally would have expired, and some of the accused were already cleared in court.

Death penalty again for 41-year-old Robert Wayne Holsey, who shot to death 26-year-old Dep. Wayne Robinson IV. Tim Sturrock's story reports that Holsey was sentenced to death ten years ago, but last year, Georgia Superior Court Judge Neal Dickert "overturned the death sentence, citing ineffective defense counsel." The high court overturned that decision Monday.

Tape of a murder victim's ordeal with her attacker will be heard by a jury Tuesday in Ocean County, NJ. The tape is 46 minutes in length and was found on the victim, Kathleen Weinstein (44). She was held at gunpoint and forced into her car at a restaurant parking lot; she turned on a tape recorder in her pocket when taken. An AP story by Jeffrey Gold explained the tape included pleas from Weinstein and her even trying to help attacker, Michael LaSane (27) find a job. His guilty plea in 1997 was overturned in 2005, he then pleaded not guilty. The tape is copyrighted to the victim's husband and prosecution is trying to ban media access to the tape. LaSane could face "life plus 60 years in prison, with no parole consideration before 60 years."

Mistrial for the courthouse shooting involving Deputy Kimsey Gray, according to a Georgia AP story. Deputy Gray was screening the possible jury members for his case. In August, Gray was attacked with his gun by inmate Timothy Lamer Jones when transporting Jones and three other inmates, Mark Joseph McCarthy, Joshua Shane Marlow, and Bobby Dwayne Martin from court back to jail. Jones was killed and the other three "were charged with conspiring to escape."

More sex offender proposals, this time in Nevada. Governor Jim Gibbon's proposal consists of three parts. First, GPS trackers for offenders that will probably offend again, second, registration before prison release, and finally, "DNA samples from out of state offenders who move to Nevada." All according to KVBC/DT news.

Specific details about sex offenders on Florida police departments' website is the latest sex offender proposal by State Senator Nancy Argenziano as reported by Eddy Ramirez of St. Petersburgh Times. Argenziano wants the public to know details like if the offenders are "repeat offenders...[prey] on children....Romeo and Juliet cases...young adults sexually involved with a teen who could not legally give consent." This is in order for the public to know which offenders to really look out for.

Cycling Sexual Violence?

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Over at Sex Crimes, Correy Yung has this reaction to my post yesterday about pedophilia. He says:

I picked this part of the post because I think the area where Erickson is over-reaching the most. While there is a debate to be had over whether all pedophiles are actually all "sick," that doesn't mean there isn't a very high level of mental illness among the pedophile population. I think the simplest evidence of the psychological issues at play is the incredible cycle of sexual violence that exists. Molesters were often molested themselves. That is not just a coincidence. We may not understand the exact reasons for the connection between being a victim and a molester, but simply discounting medical explanations seems like a big mistake to me.

This is a common perception, that sex offenders were themselves abused (and that explains their behavior). Indeed, the "cycle of violence" crime theory gets a lot of pay these days. Yet, what evidence is there that it is true?

A Kiloton of "Prevention," Worth Zero

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The LA Times and the Sacramento Bee both have editorials on an inspector general's report that a gigabuck of spending on prison drug abuse programs has produced zero results.

We often hear arguments to the effect that "prevention" is preferable to incarceration, or in this case reincarceration when released inmates reoffend. These arguments often blithely assume that prevention is a simple matter, we know what to do, and we simply need to do it. Well, it's not that simple. Before we dump vast resources into a program touted as prevention or rehabilitation, we need solid evidence that it is an effective program and that it will be done right.

One of the things California prisons need before anything else is adequate space, yet the same people who squawk loudest about the need for programs adamantly oppose the needed expansion. Some downward revisions to sentencing may be in the cards, but there is no way that laxer sentencing will get California's prison population down to design capacity without major damage to public safety. New construction must be part of the deal.

Smoking and PTSD?

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Steve Levitt has a great post over at Freakonomics on a new study appearing in the Journal of Clinical Psychiatry. The study purports to show a link between smoking and PTSD. Studies like this are what give science a bad name.

Recovered Memory Case Study Suit

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The California Supreme Court today issued a decision in Taus v. Loftus, S133805. This is the civil suit by the subject of a controversial case study in recovered memory of childhood abuse against debunker Dr. Elizabeth Loftus et al. The Court of Appeal had whittled the plaintiff's claims down to four, and now there is one.

For the reasons discussed above, we conclude that the Court of Appeal erred in holding that plaintiff’s action should be permitted to go forward with regard to (1) Loftus’s alleged statements at the October 2002 conference relating to Jane Doe’s position in the military, (2) Loftus’s disclosure of plaintiff’s initials at the March 2003 deposition, and (3) defendants’ alleged action in obtaining information from confidential court records. At the same time, we also conclude that the Court of Appeal correctly determined that plaintiff’s action for improper intrusion into private matters could proceed based upon the claim that Loftus obtained personal and sensitive information regarding plaintiff from her former foster mother by misrepresenting herself as an associate of Corwin, a psychiatrist with whom plaintiff had a close professional relationship.

License to Lie


When a criminal defendant testifies and lies through his teeth about the central issue of the case, does an acquittal have collateral estoppel effect through the Double Jeopardy Clause so as to immunize him against prosecution for perjury? The Ninth Circuit said yes today in a 2-1 decision in United States v. Castillo-Basa, No. 05-50768. Expect this case to go further.

News Scan

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"Alleged al-Qaida operative Jose Padilla has mild anxiety and personality disorders but is mentally able to stand trial, a prison psychologist said Monday in testimony that contradicted two defense experts," the AP reports. He also appears to be following the al-Qaida manual for behavior when captured: claim torture and don't cooperate with anyone, including defense counsel.

Confront black-on-black crime is the title of this op-ed in the Fort Wayne Journal Gazette by Rev. Bill McGill. "We need a compact that says men and women, black or white, who sell drugs are greater enemies to our progress than all of the active or silent supporters of the Ku Klux Klan. We need a fresh understanding that there are no greater Uncle Toms than those who look like us but engage in cutting, shooting, stabbing, raping, robbing, mugging and murdering other blacks."

The U.S. Supreme Court heard oral argument today in Scott v. Harris concerning high-speed police pursuits as described in a preargument SF Chronicle article by Jennifer A. Dlouhy. The case involves a claim that a pursuing officer in Georgia used excessive force when he pushed a speeding vehicle he was chasing, causing an accident which paralyzed the 19-year-old driver. The ruling by the Eleventh Circuit is available here. The transcript of argument is here. Here is coverage of the argument by Mark Sherman of AP, Lyle Denniston at SCOTUSblog, and David Savage at the LA Times

The Supreme Court denied review on a challenge to the 200-year consecutive sentence that Morton Berger, a 52-year-old high school teacher received in accordance with Arizona's tough laws on sex offenses. According to a story in Reuters by James Vicini, Berger's attorney argued that the sentence was "grossly disproportionate to his crime" and under federal law Berger would have only received 5 years.

SCOTUS Takes Gun Use Case

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SCOTUSblog reports that the Supreme Court has granted certiorari in the case of Watson v. United States, No. 06-571. Watson was convicted of "use of a firearm during and in relation to a drug trafficking crime." He "used" the gun by trading drugs for it. The Fifth Circuit's brief unpublished opinion affirmed on the basis of circuit precedent, United States v. Zuniga, 18 F.3d 1254 (CA5 1994), but acknowledged that other circuits had reached a different conclusion.

Of the cases mentioned in Friday's post, certiorari was denied in Beard v. Michael and Berger v. Arizona, and Burton's rehearing petition was also denied. Patrick v. Smith is not mentioned in the list, probably meaning it is "relisted" for consideration again in a future conference.

Update: Orders list here; AP story here. Correction made on Bailey.

Pedophilia: Even Science Gets It Wrong

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A recent commentary in the journal Scientific American makes a number of assertions regarding pedophilia that are noteworthy -- not because they are insightful, but because they make such egregious assumptions about pedophilia.

Religion and Aggression: Is There a Link?

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A forthcoming study claims to demonstrate a link between religious beliefs and aggression. The article is forthcoming in the highly prestigious journal, Psychological Science. The article, in coming in the March issue, is titled: "When God Sanctions Killing: Effect of Scriptural Violence on Aggression." In brief, the researchers examined aggression in students from two different colleges: Brigham Young University and Vrije Universiteit in Amsterdam. Both groups were given a passage where a woman and her husband were unjustly killed and then an additional passage was inserted where God commands Israel to avenge the killings.

Ninth Circuit Reversal


Ninth Circuit Judges Reinhardt and Paez have been reversed again. This time by ... [drum roll] ... Judges Reinhardt and Paez. Hat tip: Decision of the Day.

Lionel Mendez was pulled over by two Phoenix officers for not having a valid license plate. They talked to him during the stop, and he said he had been a gang member and done prison time. They asked if he had weapons in the car, and he admitted he did. The original opinion concluded, "Mendez’s Fourth Amendment rights were violated when he was subjected to interrogation by the officers that exceeded the scope of the traffic stop." Judge Tallman's dissent began, "Here we go again."

Today the panel withdrew the original opinion and replaced it with a new one, which concludes,

We hold that the officers’ questioning of Mendez did not extend the duration of a lawful stop. For this reason, we also hold that the expanded questioning need not have been supported by separate reasonable suspicion.

The original opinion failed to take into account the Supreme Court decision in Muehler v. Mena, which reversed a Ninth Circuit decision on similar reasoning. Mena, BTW, was written by Judge Pregerson, joined by a visiting senior judge and ... bonus points for guessing.

Some Ninth Circuit judges consider being reversed by the Supreme Court to be a "badge of honor," but even a badge of honor can cease to be memorable when it is bestowed too often.


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Today was a conference day at the U.S. Supreme Court. No orders list emerged today, so we can expect it Monday.

Criminal cases on SCOTUSblog's "reasonable chance" list include Patrick v. Smith, No. 06-523, yet another Ninth Circuit nullification of the deference standard of AEPDA, and Beard v. Michael, No. 06-710, on whether a mentally competent death penalty "volunteer" can be thwarted by his former attorneys. Berger v. Arizona, No. 06-349, on a sentence of effective LWOP for possession of kiddie porn, previously noted here and here, was relisted from the week before. At the opposite end from the "reasonable chance" cases is the pro se rehearing petition of Lonnie Burton, of Burton v. Stewart infame.

News Scan

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Cal. lethal injection deliberations can remain closed to the public, at least for now, Judge Jeremy Fogel ruled. David Kravets has this report for AP.

Jailed for over a year by accident, a homeless and mentally disabled man named Edward Perez a.k.a. "Edward Hammer Perez" was left in Lake County, Indiana jail 17 months after his release date for stealing Pepsi from a Wal-Mart. The AP story explained that Perez's attorney, Fred Flores, Judge Sheila Moss, and Perez's psychiatrist, believed he was already out. Perez was sent to a mental health facility on the 7th.

Spanking Ban Dropped San Francisco Assemblywoman, Sally Lieber is backing down from her proposed legislation on making the spanking of a child a criminal offense. Instead, Lieber proposed on Thursday making punishments such as "hitting with a belt, switch, or stick as unjustifiable and grounds for prosecution, probation or parental time-out," explained Aaron C. Davis' story. Lieber's new proposal is still under scrutiny, however, for problems such as wrongful prosecution of parents mentioned by Assemblyman Chuck Devore.

Flashers could have to register as sex offenders in New York under a proposal by City Councilman Peter Vallone Jr. An AP story by Sara Kugler reported that a man in Queens had recently flashed two 9 year old girls and an 11 year old boy, then sexually assaulted a 13 year old girl. That was one of the reasons why Vallone is pushing for "public lewdness" to be a registry offense.

$5 million of California's grant funds are going to six sheriff's departments in order to "monitor, investigate, apprehend and prosecute habitual sex offenders in California" says this report. Specifically, the money goes to the departments' Sexual Assault Felony Enforcement (SAFE) Program which better prepares officers for tracking sex offenders.

Housing bill for sex offenders passed. A story from (WMC-TV) reports that the Arkansas House passed a bill that stops sex offenders from living within 2,000 feet of their victims. The bill won by a 93-0 vote and is waiting for Senate approval.

Academia and the Duke Case


A very interesting development (in my opinion) in the Duke Rape Case an be found here. Obviously, the Duke case is very controversial and there are hot feelings on both sides. But if the story is true, it demonstrates how the politics of crime, race, and sex has infected academia far too much.

News Scan

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Early Release for California prisoners in order to relieve prison over-crowding is now an option that Gov. Schwarzenegger is considering due to the pressured deadline set by federal judges. Supposedly "non-violent" offenders will be the candidates for the early release plan in order to prevent intervention from the federal courts as reported here by Mark Martin. The assumption that criminals specialize and that a person who is in for a "nonviolent" crime does not commit violent crimes is dubious.

The deceptively named group "Taxpayers for Improving Public Safety" issued a press release denouncing "scare tactics" intended to convince the Legislature and the judiciary to allow transfers and construction of additional cells. The release contains this revealing line: "We should all recognize that although at first blush the release of thousand's [sic] of inmates may sound like a wonderful thing...."

Juror Questions: The Supreme Court of Arkansas ruled that judges are acting improperly when allowing questions from jurors to be posed to witnesses and that this practice must end. The order states that this type of questioning "may cause delay, prejudice or error" as reported here by AP.

Racial Discrimination during jury selection is the reasoning a Hinds County Circuit Court Judge gave when he threw out Elicia Hughes' murder conviction and ordered a new trial. The District Attorney who tried the case was surprised and stated in an article by Jimmie E. Gates that witnessing a trial court judge order a new trial before an appeal was a first for her. The judge believed that a mistake was made early in the trial therefore exercised the right to correct it; however, the DA plans to re-try Hughes in the near future.

There’s been a lot of discussion about child pornography statutes, including the 200 year sentence of an Arizona teacher for possession of such materials (details here). But a few new worldwide developments highlight some interesting differences:

This story is quite interesting. Two teenagers (ages 16 & 17) took some nude photos of themselves and emailed them to each other. Somehow they were discovered and a criminal prosecution followed for production and possession of child pornography. There was no evidence that the defendant (apparently only the female was charged) had distributed the images outside of her boyfriend and the only images in question were of her. Under a Florida precedent, the teens could not be charged for having sex, but the Florida First District Court of Appeals upheld the child pornography prosecution. Thus, the defendant will endure the label of being a sex offender for life because she took some nude photos of herself. Update: The opinion is here; the child abuse chapter of Florida Statutes is here.

This story reports on a possible new law in Hungary which would allow personal possession of child pornography for images of children aged 14-17 years. Many argue that much of the child pornography is produced and distributed from Russia and Europe (and it was briefly legal in Denmark back in the 1970s), thus, this development is curious.

• Finally, this story, reports that the Netherlands may prosecute virtual child pornography under existing laws. Of course, the Supreme Court struck down a similar law in Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002).

Texas Execution

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In 1999, Frank Cobb, 71, and his wife, Bertha, 61, returned home to find a burglar there. He tied them up, shot them both in the head, and raped Mrs. Cobb. Firefighters found their bodies in the burning house. The only just punishment for such a crime was carried out today. The AP story is here. The Fifth Circuit opinion is here. There is no doubt of guilt in this case, as it was proved by DNA from the rape, and Anderson admitted guilt in an interview last week.

The Texas DCJ website indicates that Newton Anderson was received there in May, 2000, so it appears that the total review from sentence to execution was completed in less than seven years. That is getting close to what should be the norm in cases such as this.

Fry v. Pliler & Harmless Error

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The "bottom side" briefs in the Supreme Court case of Fry v. Pliler, No. 06-5247, have been filed. Our collection of the briefs is available here. We have also uploaded the Joint Appendix, which includes the unpublished opinions of both the state and federal appellate courts and the federal district court. The petitioner seeks to carve out an exception to the harmless error rule of Brecht v. Abrahamson, 507 U.S. 619 (1993).

News Scan

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1964 Klan case: A federal judge in Jackson, Mississippi refused to throw out federal kidnapping charges against a reputed Klansman in connection with the 1964 deaths of Charles Eddie Moore and Henry Hezekiah Dee, according to this AP story. Kidnapping was a federal capital offense in 1964, but Congress made it noncapital in 1972. Federal law has no statute of limitations for capital offenses, but the usual limit for noncapital cases is 5 years. See 18 U.S.C. §§ 3281, 3282(a). The judge held that the 1972 repeal did not impose a time limit retroactively on earlier cases.

Early Intervention System for the San Francisco Police Department was approved Wednesday by the Police Commission. An article by Susan Sward of the San Francisco Chronicle noted: "the planned computerized system will track use of force, citizen complaints, internal department complaints, officer involved shootings whether anyone is hit or not, legal claims and law suits against officers on-duty accidents and vehicle pursuits." Supervisors will be able to identify problems with officers' conduct faster.

Legislative hearing on the Death Penalty in Georgia Tuesday showed mixed views. Monica Lorraine's (WMGT-TV) report explained that the reform would allow the death penalty in cases without a unanimous jury.

Tennessee's sex offender registry list could double by adding out of state offenders "regardless of when and where they were convicted," reported here by Adam Longo. His report also shows statistics on the amount of sex offenders in different counties, besides those registered. The proposal however is under scrutiny because it is supposedly the first "online sex offender registry that would apply retroactively." An anonymous "local advocate" says Smith v. Doe, 538 U.S. 84 (2003) is distinguishable.

Capital Defense Perjury


Kathleen Culhane was arraigned in Sacramento today on 45 counts of forgery, filing false documents, and perjury. She is accused of forging the signatures of jurors and witnesses to false affidavits in the cases of four California death row inmates, according to this report by Don Thompson of AP.

One of them was the notorious Michael Morales case. Morales murdered a 17-year-old girl 26 years ago. "San Joaquin County prosecutors triggered the state's investigation of Culhane after they produced statements from jurors who swore they had never spoken with her and supported the death sentence for Morales."

The California Commission on the Fair Administration of Justice intends to look at prosecutor misconduct on its next agenda. When are they going to look at defense misconduct?

Update: More coverage by Bob Egelko in the SF Chron, Louis Sahagun in the LA Times, and Scott Smith in the Stockton Record

Statute of Limitations -- Civil

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In Wallace v. Kato, the Supreme Court delved once again into the problem of the same constitutional claim being at issue in a state criminal case and a civil suit brought by the criminal-case defendant against people involved in his arrest or prosecution. It has been a thorny problem over the years.

Statute of Limitations -- Habeas


This is apparently statute of limitations week at the Supreme Court. On Tuesday, the Court decided the habeas case of Lawrence v. Florida, and today it decided the civil case of Wallace v. Kato. In both cases, the Court decided on the shorter of the two possible limits.

Lawrence involved, once again, the Antiterrorism and Effective Death Penalty Act of 1996. That act set a one-year statute of limitations on federal habeas corpus petitions by state prisoners when used to collaterally attack their convictions or sentences. The clock can begin ticking at several points, but the most common is when the Supreme Court denies certiorari or, if no timely petition is filed, the time to petition for certiorari expires. See 28 U.S.C. § 2254(d)(1).

Felon Voting in Maryland

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The pro-criminal lobby is apparently on a roll in Maryland. That state already has a relatively lenient rule on allowing convicted felons to vote. First offenders have their right to vote restored immediately upon completion of probation or parole, and even repeaters need wait only three years thereafter. Some states disenfranchise convicted felons for life. But even current Maryland law is not enough for some legislators and advocates, according to this story by Ovetta Wiggins in the Washington Post. Proponents of the change make the usual racial arguments.

Bishop Adam J. Richardson Jr. said it is "unconscionable" that 140,000 former offenders, including 8 percent of Maryland's black population, are disenfranchised because of the voting laws.

This argument commits the common fallacy of looking at people as faceless members of racial groups rather than as individuals with free will. The individuals who have lost their vote lost it by their individual choice to commit a serious crime. The group they belong to should be irrelevant in a society dedicated to judging people by the content of their character and not by the color of their skin.

DNA Backlog

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The California Commission on the Fair Administration of Justice has issued this report and this press release on the DNA backlog problem. We at CJLF remain very skeptical of this commission. The circumstances of its creation, its composition, and its choice of a well-known partisan for the defense side as executive director all point to a likelihood that its final product will be anything but fair. Even so, this interim product is worthwhile, calling attention to a genuine problem which should get much higher funding priority from the Legislature than it presently receives.

News Scan

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The Supreme Court affirmed denial of Florida death row inmate Gary Lawrence's habeas petition in a 5-4 decision. An AP story by Pete Yost states the reason for the denial is due to the expiration of the one-year filing time frame allotted by the federal Anti-terrorism and Effective Death Penalty Act of 1996. Justice Clarence Thomas wrote the majority opinion and stated that the language in the law is clear that the time limit is not tolled during the time to file a certiorari petition for U.S. Supreme Court review of the state collateral proceeding. The contrary interpretation would give defense attorneys for death row inmates an incentive to delay as long as possible.

Superior Court Judge
Gail Ohanesian ruled that Gov. Schwarzenegger's actions of transferring prisoners to private correctional facilities in other states is illegal and California's problem of prison overcrowding cannot be dealt with in this manner. The governor was outraged with the decision claiming that he absolutely refuses to allow early release for dangerous criminals and states that this "is a threat to public safety" as reported in an AP story by Don Thompson. The judge decided that the governor's actions violates the California Constitution as well as the state law.

The fix for California's death penalty process is scheduled for a hearing Friday, but the issue at hand is whether or not to hold a public hearing in private in order to protect the doctors from being labeled executioners. The concern is that medical experts may not be willing to offer any help if the hearing goes public. David Kravets, reports for AP.

Tougher sentencing for sexual predators in Texas has a victim's advocacy group worried that it will encourage more aggressive acts by the offenders, one being murder. The tougher laws that the AP story reports includes the death penalty for violent two time child molesters, but only in the worst cases. However, the Texas Association Against Sexual Assault still is not at ease with the resolve stating that since children are usually the only witness to the crime, offenders would be inclined to exercise every effort to ensure not being caught.

News Scan

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A Justice Department audit found numerous problems in terrorist-related investigations. An AP story by Lara Jakes Jordan explains that federal prosecutors used unrelated violations such as "marriage fraud" in the terrorism cases. The Department's Inspector General Glenn A. Fine said most of the statistics examined were diminished or inflated.

An elementary school vice principal in Bakersfield could face the death penalty for the murder of his three children, wife and mother-in-law. 44-year-old Vincent Brothers was charged with five counts of first degree murder for Joanie Harper, their children Marques (4), Lyndsey (2), and Marshall (6 weeks), and Harper's mother Ernestine (70). The five were shot and stabbed to death on July 8, 2003. The AP story by Garance Burke also reports a possible change of venue by Defense Attorney Michael Gardina and allegations of involvement from Brothers' brother for a credible alibi.

Cop killer, 39-year-old Steven Bixby (S.C.) was convicted on Sunday for the shooting deaths of Sgt. Danny Wilson and Georgia State Constable Donnie Ouzts in 2003. Meg Kinnard's story reports that Bixby and his parents were upset over 20 ft of their land being used to expand the highway. Bixby and his father claimed they would kill any officer who came on their property. Bixby wrote letters to his girlfriend detailing the killings and explaining how he could have killed more and signing off as "chaotic patriot Steve." Sentencing begins today and he could face the death penalty.

"Deliverance by DNA" is the third installment of Canadian journalist Mary Vallis' articles investigating America's Death Penalty in National Post. How Appealing Blog also discussed the stories here. The final article talks about DNA evidence that is proving some death row inmates' innocence. Specifically, Kirk Noble Bloodsworth, the first inmate proven innocent by DNA for the 1984 brutal rape and murder of a young girl named Dawn in Maryland. The article tells his story and provides some statistics on death row such as, "123 people in 25 states have been released from death row," (Death Penalty Information Center). As with so many articles on this subject, the article mentions the number released in the same sentence with the word "exonerated" to create the false impression that everyone on the list was actually innocent. This claim continues to surface despite being thoroughly discredited.

Tougher laws on sex offenders is becoming a trend in many states. Illinois has hopped on the band wagon for online restrictions towards sex offenders as well as "mandatory treatment and evaluation and residency restrictions" as reported here by Paige Winfield of the Naperville Sun.

Federal Sentencing Case Previews

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Tomorrow is federal sentencing day in the Supreme Court, with the much anticipated oral arguments in Rita v. United States, No. 06-5754, and Claiborne v. United States, No. 06-5618. An interesting article by Frank Bowman is available here via SL&P. While suggesting what the Court should do about Blakely, Bowman reiterates his belief that it was a "huge mistake" in the first place. I second the motion. A commenter at SL&P suggests he dump the hackneyed Humpty Dumpty quote at the top of the article. I'll second that motion, also.

Also at SL&P, Doug Berman gives us this "shameless self-promotion" of links to his prior work on the cases and on Blakely and Booker issues generally.

Lyle Denniston at SCOTUSblog has this post. The Medill write-ups are here and here.

Weekend News

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The Libby Trial is the target of this op-ed in the WashPost by former DAAG Victoria Toensing. She has a list of other people whom she thinks should be charged, leading off with Patrick Fitzgerald.

Maryland DP: Also in the Post, former Maryland Governor Harry Hughes has this op-ed on Maryland's "inherently flawed" death penalty, making the same arguments made and refuted many times.

Cal. Prisons: David Lesher addresses the political dynamics of California's prison overcrowding problem in this LA Times op-ed.

Rape Rates: Mike Males notes in the LA Times that sexual assault rates among youth are actually down sharply, contrary to popular belief. He credits generational shifts in attitudes towards women.

Pizza neck-bomb case solved?: A bizarre and particularly cruel murder from 2003 may have been solved, AP reports. In his dying declaration, Brian Wells said he went to deliver a pizza and was accosted by gunmen who locked a bomb around his neck and forced him to rob a bank.

Standing up to crime too often brings retaliation. Oakland anti-crime activist Patrick McCullough routinely reported drug dealing in his area. Two years ago, he was confronted in front of his house by 15 young men shouting "Kill the snitch." He shot and wounded one of them. Today, on the second anniversary of that incident, a shotgun blast was fired through his front door, according to this SF Chron story by John Zamora. No one was home. "There's no way I'm going to leave. That's what they want me to do," McCullough added. "If all the law-abiding people give in, then they win and this block becomes a no-man's land."

Border Patrol Case: Debra Saunders in the Chron questions the US Attorney's exercise of discretion in the Ramos/Compean case.

Cop Killer Parole: Chicago Tribune readers react here to a Feb. 11 story about possible parole of Theodore Bacino for the 1974 murder of Deputy Sheriff Michael Mayborne.

Police Chase Case: Orin Kerr at the Volokh Conspiracy has a post with links to most of the briefs in Scott v. Harris, a Supreme Court case on civil liability for a police chase, set for argument Feb. 26.

News Scan

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Rudy Giuliani endorsed appointment of "strict constructionists" as judges at a Richmond fund-raiser, Bob Lewis reports for AP.

Trailers are the solution for housing motel-dwelling sex offenders in Long Island according to an AP story by Frank Eltman. The trailers are $85 and include a bed and bathroom. Security will monitor offenders in the trailers from 8 p.m. to 7:30 a.m.

Kansas is considering abolishing the death penalty, according to a story by Ron Sylvester of the Wichita Eagle. A bill in the Senate and one in the House "would eliminate the option of the death penalty for juries but wouldn't keep the state from carrying out executions for people already sentenced to death." The article also discusses a recent poll on the death penalty's application and other options like long sentences without parole. The poll was commissioned by the Kansas Coalition Against the Death Penalty. The exact wording of the questions is not given in the story. The story also discusses the case of Gavin Scott, who wants the Kansas Supreme Court to abolish the death penalty again following its reversal by the U. S. Supreme Court, but this time on state constitutional grounds.

Convicted Murderer Angel Reyes (61), of Philadelphia may face the death penalty once again for the murder of his 4-year-old daughter Marcia in 1993. The sentencing trial will begin March 12. The death penalty was overturned in his case six years ago due to "mitigating factors [that] should have been presented...during the penalty phase." The aggravating circumstance of murder of a child makes capital punishment a possibility again in his sentencing, as reported by Marlene DiGiacomo of Delco Times (PA).

Televised trial of record producer Phil Spector for the murder of actress Lana Clarkson was announced by Los Angeles Superior Court Judge Larry Paul Fiddler on Friday. The AP story by Linda Deutsch explained that the judge thinks "public scrutiny is a good thing" and it will show how celebrities are not treated differently in court.

Cold Hit: A jury returned a death verdict for the rape and murder of 8-year-old Cannie Bullock of San Pablo, CA in 1979, the AP reports. Joseph Cordova was linked to the crime by DNA in 2002. He was in the database because he was convicted of child molestation in Colorado. The verdict is largely symbolic, as no one involved in the case expects the now-62 Cordova to be executed before he dies of natural causes.

"In a crime prosecutors say showed 'exceptional depravity,' two San Francisco women stand accused of dousing a longtime homeless woman with gasoline and burning her alive in an apparent witness retaliation slaying." The story of the life and death of Leslie "Jill" May is reported by Jaxon Van Derbeken and Heather Knight of the SF Chronicle. The SF DA never seeks the death penalty.

Kennedy, J., on Camera(s)

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Tony Mauro at Legal Times has this article on Justice Kennedy's Senate testimony Wednesday. It has a few more tidbits about his exchange with Senator Specter regarding cameras. "'Please, senator,' Kennedy continued, pointedly urging the Senate not to introduce the 'insidious temptation' for justices to shape their comments and questions from the bench into catchy sound bites."

My own reason for skepticism about televising SCOTUS arguments (as much as I would like to watch them from Sacramento) is the temptation for the lawyers to descend into "catchy sound bites." Many advocates there are getting their one and probably only shot at a high court argument, and to actually get on the nightly network news as well would be such an ego trip that some might think more about maximizing that possibility than about effectively representing the client's cause. Watching the behavior of reporters at televised presidential news conferences, where some seem to be actively trying to be as confrontational as possible, is sufficient warning of the danger. Justice Kennedy, however, seems to be more concerned with the temptation to his colleagues.

Senator Specter made a strange point that televising arguments might help the public understand decisions such as his all-time unfavorite, United States v. Morrison, striking down in part the Violence Against Women Act. "In his reply, Kennedy, with remarkable frankness, pushed back against Specter’s point, telling him that linking the Morrison case with the need for cameras was 'a non sequitur . . . It doesn't follow.'"

Now this is interesting. Did Justice Kennedy really feel a need to explain to Senator Specter what a "non sequitur" is? Very doubtful.  I'm pretty sure he's pretty sure that the Senator understands that term. Why the need to explain?  Because he's on television, being watched by millions of people who don't understand the term. That's a subtle and clever way to make the point that televising affects the dynamics of the exchange. Maybe too subtle.

Might a Justice, in the middle of asking a question, digress to give the home audience a ten-minute explanation of what "stare decisis" means? Heaven forbid. Some of their rambling questions chew up enough argument time as it is.

In the end, Senator Specter seemed to relent and imply that anything they passed would be in the nature of a nonbinding resolution. There seems to be a lot of that going around.

Randy Smith Confirmed to USCA 9


The Senate today confirmed Judge N. Randy Smith as a judge of the Ninth Circuit, 94-0. Judge Smith succeeds one of the more sensible judges of the notorious Ninth, Judge T.G. Nelson, so the succession does not affect the mainstream vs. hard-core-lefty ratio, but it is good that this multi-year vacancy has finally been filled. There is one more vacancy to go. Judge Smith's many years of service as a state court judge may also make him less contemptuous of state courts than some of the other Ninth Circuit judges.

For those who like to keep track of such things, the party-of-appointing-president tally stands at 16-11 among the active judges.

Update: The Idaho State Journal has some local coverage here (hat tip: How Appealing). Alternative sentencing fans will be glad to know that Judge Smith was the driving force behind his county's drug court.

News Scan

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Justice Thomas: How Appealing has this page image of today's LA Daily Journal containing (below the fold) a review by Edward Loya of Henry Mark Holzer's book, “The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative’s Perspective.” The review focuses primarily on Justice Thomas's much-maligned (and misunderstood) opinion in Hudson v. McMillan, 503 U.S. 1 (1992).

Justice Kennedy's appearance before the Senate Judiciary Committee is covered here by Jan Greenburg of ABC.

First-time DUI offenders may have to install an ignition device that checks their blood alcohol level by breathalyzer, before the car can start and periodically checks while driving. A failed test results in the car flashing and honking until the keys are removed. The bill, SB177 will change the current law from a decision made only by a judge to a requirement for first-time offenders. The article by Matthew Yi in the San Francisco Chronicle also reports that out of all the DUI convictions in 2003, only 3.8% required the ignition device. However, a 2004 DMV study showed "no difference in recidivism or other traffic convictions" between first-time offenders with the device and those without it.

Texas seeks harsher punishment for sex offenders who harm children 14 and under. 25 years minimum for first-time offenders, possible death penalty charge for repeat offenders, GPS tracking for life, and doubling the statute of limitations from 10 to 20 years after the victim turns 18 are the four main points in Lt. Governor David Dewherst's "get tough measure" filed Wednesday, as reported here. Questions on the constitutionality of the death penalty for sex-offenders and difficulty in convicting offenders are being raised.

Oklahoma House passed a bill Wednesday that bars registered sex offenders from talking to children via the internet according to an AP story. Offenders must register their online identities and are banned from social networking sites (i.e. myspace). Author of the bill, Rep. Paul Wesselhoff said the legislation would also prohibit physical contact with children "to include contact over the internet" through state law.

The only woman sentenced to the federal death penalty since 1953 is requesting a new trial. A Missouri AP story explains, Angela Johnson 42, and boyfriend Dustin Honken, were convicted for the drug related murders of federal drug informants Greg Nicholson and Terry DeGeus, Nicholson's girlfriend Lori Duncan, and her two girls Kandace (10) and Amber (6). Johnson is appealing her conviction because of various problems in her first trial including an error on the verdict forms.

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Crime Rates: David Muhlhausen has this article on the Heritage Foundation site discussing how government policies affect crime rates. He contends that some federal grant programs are ineffective and can be cut without affecting crime rates. He cites research to the effect that the prison buildup of years past was a major factor in bringing down crime rates but that releases once those prisoners have completed their sentences have contributed to recent increases in crime.

Gitmo Detainees: Sen. Christopher Dodd has introduced a bill to "strike[] at the core of the Military Commissions Act of 2006 by giving detainees access to U.S. courts," according to this story by Josh White in the Washington Post. The bill is modestly titled the "Restoring the Constitution Act of 2007." The text of S. 576 is not yet available on Thomas.

The Ninth Circuit has ruled that a U.S. Attorney's appeal of a ruling to deny a sentencing enhancement is barred by the Double Jeopardy Clause as reported in a Metropolitan News-Enterprise story by Tina Bay. In the District Court, Judge Robert M. Takasugi cited Blakely v. Washington to reject a sentencing enhancement under the Armed Career Criminal Act for 3 time convicted felon Dominique Blanton on the ground that a nonjury juvenile adjudication could not be used for this purpose. The Ninth Circuit upheld that decision finding that the appeal exposes the defendant to Double Jeopardy.

Sex offenses committed by juveniles have increased to the point where states are considering laws which allow them to be included in sex offender registries according to a story reported by Jason Miles.

Acquitted After deliberating four hours a New York jury acquitted Benjamin Odierno 73, of the murder of his 58-year-old wife even though he admitted stabbing her approximately 40 times. Odierno claimed self defense against his wife of 27 years, stating that her constant violent outbursts for the last ten years is what led him to kill her, according to an AP story here.

News Scan

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The Department of Justice defends using the federal death penalty even in states that do not allow it. Specifically, in the federal trial of Larry Gooch, enforcer for D.C. drug gang M Street Crew. Gooch is on trial for the murder of 4 people, assisting in murder, shooting at an officer, and racketeering and drug charges. Concerns for using Capital Punishment in states that ban it such as D.C., are being debated. This story by Jim McElhatton of the Washington Times also explains that within the past seven years, the number of convicted federal death row inmates in states that do not have the death penalty went from 0 to 6.

Registered sex offenders in Georgia will not be able to photograph or video tape minors without the parents' permission under a bill passed in the state senate Monday according to an AP story. The bill passed 54-0 and goes to the House. If approved, "violators would be guilty of aggravated assault."

No buffer zones for sex offenders in Kansas. A news report by KMBC-TV (Kansas City) says state senate extended a moratorium "that keeps cities and municipalities from creating buffer zones for molesters." The Kansas Sex Offender Policy Board on buffer zones also showed that zones can make the offender feel isolated and want to re-offend.

Police misconduct hearings are no longer allowed by the Berkeley Police Review Commission. An article by Henry K. Lee of San Francisco Chronicle reported, "the commission's records on officer misconduct fall under the same confidentiality provisions mandated by state law and the Police Officer's Bill of Rights."

Lithwick Article

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This article by Dahlia Lithwick in the Washington Post has been drawing raspberries around the blogosphere. See Ed Whelan and NRO Bench Memos and Volokh Conspirators Jonathan Adler and Orin Kerr.

Lithwick's thesis is that the Supreme Court is turning in favor of the death penalty just as the public is turning against it. Most of the adverse commentary deals with her discussion of the Supreme Court. But her discussion of public opinion is also dubious. Her analysis of the Gallup Poll data appears to just be reciting the DPIC spin. As noted here, the poll data actually show steady support. Temporary pauses in executions to deal with the lethal injection challenges do not imply any kind of permanent shift against the death penalty generally.

News Scan


Death Penalty loophole could possibly set convicted murderers free. Lawmakers in New Jersey are currently drafting legislation to abolish the death penalty as reported in an AP story by Beth DeFalco. In accordance with the new law, nine NJ death row inmates, including sex offenders and cop killers, would have to be re-sentenced under the laws which existed at the time they committed their crimes; many of which do not carry life without the possibility of parole sentences.

Death Row inmate Michael Anthony Rodriguez wishes to drop all appeals and expedite his execution as soon as possible. Rodriguez, 44, is one of the 7 inmates who escaped from a Texas prison, committed a string of robberies and killed a police officer on Christmas Eve in 2000. According to an AP story, after being ordered to undergo a psychological evaluation, Rodriguez expressed his plans to move forward with the process and gratitude to the court for respecting his constitutional right.

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A Kentucky bill for monitoring convicted sex offenders online was approved by a Senate committee Wednesday. An AP story by Joe Biesk explained that under Senate Bill 65, sex offenders must register their screen names or face one to five years in prison (first time), or five to ten years (second). This bill parallels the federal bill in Congress.

GPS tracking bracelets will be worn permanently by offenders that are sexually violent starting July 1 in Wisconsin. University of Wisconsin Madison Law Professors however, explain the new law is unconstitutional in this AP story by Todd Richmond. The Corrections Department would put the trackers on the offenders after prison release. If an offender goes in a prohibited "zone" the bracelet will alert police.

78 convicted sex offenders were kicked out of public housing in New York on Friday. An AP story explains the offenders were living in the housing illegally and were discovered by comparing a list of public housing residents to the sex offender registry. "Lifetime registrants of a sex offender list may not live in public housing," according to Federal Law.

News Scan

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Cunningham: The legislative fix for Cunningham v. California comes up for a vote in the Cal. Senate Tuesday, as reported here in a story by AP. The legislation allows use of judicial discretion in choosing between the upper, middle, and lower terms without tying that choice to fact-finding. The article incorrectly states, "A judge also would no longer be bound to increase a sentence," but judges were not bound under prior law. The lawmakers were also asked to deal with the roughly estimated 10,000 inmates who will neeed to be re-sentenced in accordance with the new law, but Sen. Romero said that was the job of the judiciary.

The Death Penalty
was the sentence that 53-year-old Alfonso Rodriguez Jr. received after being convicted of the heinous murder of 22-year-old Dru Sjodin, a North Dakota University student. Just six months after being released from prison for crimes including rape as well as attempted kidnapping, Rodriguez kidnapped, raped, and murdered Sjodin. The story is reported for AP by Dave Kolpack. His conviction led to harsher sentences for sex offenders including life without the possibility of parole for extreme sex offenses.

Double Jeopardy is the subject in a military court today. Lt Ehren Watada refused to be deployed to Iraq with the rest of his infantry in June and as a result was later charged with missing a troop movement and 2 counts of conduct unbecoming of an officer but granted a mistrial declared by an Army Judge. The defense insists that if Watada is retried then double jeopardy will undoubtedly attach. However it is the Army's position that a retrial would not constitute grounds for double jeopardy. More on this story can be found here in the SF Chronicle by Bob Egelko.

Strange Happenings in the Ninth

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This keeps getting "curiouser and curiouser," as Alice said in Wonderland. More than that, it's downright weird.

A couple of years ago, the Ninth Circuit was considering the habeas appeal of convicted murderer Carl Irons. Like many California lifers, he was challenging the denial of his parole. He drew Judge Karlton in the Eastern District but still lost. It seemed like a routine case, headed for routine affirmance. Then, two weeks before oral argument, the panel issued an order sua sponte that the parties should be prepared to argue whether the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2254(d), was unconstitutional. Judges Reinhardt and Noonan joined in the order, and Judge Fernandez dissented from it. After argument, the court called for supplemental briefing. The U.S. Attorney General duly came in to defend a challenged Act of Congress. See 28 U.S.C. § 2403.  Several amici came in on the defense side, and CJLF came in supporting the people.

What was strange about all this is the issue was generally considered resolved after Williams v. Taylor, 529 U.S. 362 (2000), decided five years earlier. Before that case, the issue of whether Congress constitutionally could require a federal habeas court to defer to a decision of federal law by a state court had been the topic of some controversy. See Liebman & Ryan, “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 Colum. L. Rev. 696 (1998) (making the "no" argument in 192 pages); Yours Truly, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum.L.Rev. 888 (1998) (refuting it in 73). Prior to Williams, every court to consider the argument had concluded that Congress was within its authority, including the Ninth Circuit. See Duhaime v. Ducharme, 200 F.3d 597 (2000).

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Battered-women's syndrome was the reason Hudie Joyce Walker was granted a new trial by the Second District Court of Appeal in Los Angeles, according to Bob Egelko's article in the San Francisco Chronicle. She was charged with the second-degree murder of her husband Thomas Walker and is serving a 19 year sentence up to life. She was granted a new trial because had the court allowed psychiatric testimony on battered-women's syndrome, she might have been convicted of voluntary manslaughter.

The death penalty for the murder of 17-year-old Stephanie Sanchez and her fetus (three months gestation) was given Wednesday in Texas to 23-year-old Adrian Estrada according to an AP story by Elizabeth White. The former youth pastor's death penalty ruling is the first for the death of a fetus in the state. DNA tests showed Estrada was the father of the unborn baby.

"A survey by the Metropolitan Council in Minnesota finds that residents of the Twin Cities are more concerned about crime than any other issue. This marks the first time since the 1990s that crime tops the list of concerns," explained a CBS story reported by Esme Murphy of WCCO TV Minnesota.

A 7-4 vote to abolish the death penalty in Colorado and use the money from death penalty cases to try to solve cold case files was decided Wednesday by a House committee in an AP story by Steven K. Paulson.

Abolishing the death penalty was also the topic in Montana on Wednesday. A story by Daniel Testa of NewWest.net explained that the Senate Judiciary Committee heard from proponents of Harrington's Bill, that would make life in prison without parole the "the most severe punishment available to prosecutors and juries in the state."

DP "Expansion" -- Good, Bad, and Ugly


As noted in the News Scan today, USA Today has an article on proposals "broadening the death penalty," supposedly "countering a national trend toward scaling back its use." Doug Berman at SL&P has this post lumping all proposals together and condemning them as "symbolic politics, not serious policy-making," without any examination of the merits of individual proposals. Actually, the proposals vary widely in their merit.

The purpose of the reforms that followed Furman v. Georgia was to make the death penalty less arbitrary and more proportioned to the offense and the offender. Too much discretion and too little guidance heightened the risk that the decision would turn on illegitimate factors, especially race of the defendant. In the years since, the Supreme Court has boiled this down to two main requirements: narrowing the class eligible to be considered for the death penalty followed by a discretionary decision on whether to actually so sentence a defendant found eligible after considering individual circumstances.

Fairness and arbitrariness necessarily work in both directions. A fair system neither arbitrarily sentences a person to death for a crime nearly everyone else would get life for, nor does it arbitrarily yield a life sentence for a crime that clearly warrants death. Proposals to change the definition of the eligible class or to revise the discretionary decision-making process should be judged on whether they make the system fairer in both directions, not on a reflexive basis of "expansion is bad, contraction is good" or vice-versa.

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Death Penalty: The debate in North Carolina over the role a doctor plays in assisting in executions has proved to be an important issue that has made its way to the House as told in an AP story by Margaret Lillard. Recently the medical board has declared that doctors violate their medical ethics oath by being an active participant in lethal injection executions. House Speaker Joe Hackney has suggested that temporary legislation be passed to suspend the death penalty until further studies can be done on lethal injection.

Retardation: Perhaps faking mental retardation isn't so tough after all. From the innocent age of 8, Pete Costello now 26, began to fake retardation at the request of his mother to obtain Social Security benefits. According to the story as told in the AP, he will plead guity to fraud and receiving close to $60,000 over the course of nearly 20 years. The mother's trial is set for May, and she is also negotiating a deal.

More Death Penalty: Lawmakers in half a dozen states are seriously considering widening the range of crimes eligible for the death penalty. Legislators in Texas and Tennessee are drafting bills that will include child molesters and the state of Virginia is considering the specific murders of judges and court witnesses. The many other crimes in other states that are being considered can be found here in the USA Today by Emily Bazar.

The Crying Contest


Terry Moran has this post on his blog at ABC, titled "How the death penalty really works." His main gripe is that the death penalty has become too emotional and insufficiently rational.

Instead, we have a crying contest, a competition to see which side can break the jurors' hearts harder--either the prosecution with its portrayal of Mari Anne Pope as a devout Christian killed with bloodthirsty fury, or the defense and its portrayal of Slagle as an abused, alcoholic teenager. Why should those issues--and the emotions they trigger--matter?

There is no doubt whatever where the blame for this lies. It is squarely on the doorstep of the Supreme Court and its disastrous 1978 decision in Lockett v. Ohio. That decision created out of blue sky a constitutional mandate to allow everything including the kitchen sink that the defendant wished to throw into the penalty phase. Neither the absence of any basis for such a mandate in the text or history of the Constitution nor the fact that the Court was contradicting decisions just two years earlier, that had approved systems considering less than everything, seemed to matter.

Victim impact statements were banned for a while, but the injustice of allowing one side to drag in all the emotion while banning the other side was so gross that the Court backed off in Payne v. Tennessee.

The solution to the problem Moran sees is quite simple. Overrule Lockett and then provide by statute that the penalty phase will be limited to (1) the circumstances of the present crime; and (2) the defendant's criminal record or lack of one. No more abuse excuse. No more crying relatives. No more expensive experts, except in cases where actual insanity is genuinely at issue. Such a system would be simpler and cheaper. It would also be fairer, since the effectiveness of the crying game depends more on the skill of the defense team presenting it than it does on the actual probative value of the evidence.

Ninth Circuit En Banc

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Pamela MacLean had this story in the National Law Journal this morning on increased en banc reviews in the Ninth Circuit. (We had previously noted here an Ninth Circuit en banc decision overturning a criminal case panel decision in favor of the defendant, something new and refreshing here in the Far West.) As if on cue, the Ninth decided in favor of the government in an immigration case. The question involves the validity of regulations allowing a lower level government employee to renew a removal (deportation) order previously issued by an immigration judge when the alien walks back in through the revolving door. Every other circuit to consider the question has upheld the regulation, but a panel of the Ninth issued one of those idiosyncratic decisions the court is notorious for, striking them down.

Today's decision, like the one noted in my previous post, shows the ideological fault lines between the left and the hopeless left. In the majority are three judges appointed by Republican Presidents, Judges Kozinski (author), Rymer, and Bybee, plus Democrat-appointees Chief Judge Schoeder and Judges Hawkins, Graber, and Gould. The dissenters are Judges Thomas (author), Pregerson, Reinhardt, and W. Fletcher.

Although the Ninth remains a liberal court and will be one for the foreseeable future, there appears to be a spark of hope that judges with enough sense that they do not consider reversal by the Supreme Court to be a "badge of honor" may now hold the balance of power. It would help if the White House and the Senate would put some priority on filling the vacancies with persons of sense and doing so promptly to further nudge the notorious Ninth back toward the mainstream.

News Scan

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Death Penalty opponents in Montana are counting on the reconsideration of execution protocol by several other states to fuel this year's legislation to abolish the death penalty. An Associated Press story from the Billings Gazette reports that Democrats, social activists and groups such as the ACLU are optimistic that although similar efforts have failed in every legislative session of the past decade they will be successful this year.

Did Jeffrey Dahmer Kill Adam Walsh? Authorities to examine possibility that Dahmer killed Adam Walsh as reported here by Tim Jones of the Chicago Tribune.

Louisiana Sheriff, Ronald "Gun" Ficklin pleaded guilty to having inmates of the St. Helena Parish Jail work at his "chop shop" for stolen cars and as the pit crew for his race car the Bounty Hunter in an AP story. Ficklin is the third Sheriff in the county convicted on federal charges. He could face up to 95 years in prison.

Los Angeles County prisoners (male), can now serve at least half of their sentences due to the departure of the county's early release policy says this AP story. Prisoners can be held longer because state prison inmates will no longer be housed in the county jails, making over 1,000 bed spaces available.

Governor Schwarzenegger, Attorney General Jerry Brown, and local prosecutors are in dispute over how residency restrictions on sex offenders should be enacted in a Sacramento AP story. Under Jessica's Law offenders are prohibited from living within 2,000 feet of a school or park. The AG believes the law should apply to those released before Jessica's Law (Proposition 83), while the Governor and prosecutors believe the law should apply to those released after the proposition was passed in November.

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California Department of Corrections stated Friday that in the next few months, they will start involuntary transfers of inmates to out of state prisons in a story by Andy Furillo of the Sacramento Bee. Up to 2,200 inmates may be transferred due to lack of "bed space."

Possible death penalty charges for the intentional homicide of an unborn fetus and first-degree murder of the mother were announced Thursday in Illinois for 24-year-old Tiffany Hall, in AP story by Jim Suhr. Hall also admitted to drowning the other three children of the victim, 23-year-old Jimella Tunstall. They were found in a washer and dryer. There are no charges yet for the children's deaths, and Hall pleaded not gulity to the first-degree murder and intentional homicide charges.

Tasercams are being used by Louisiana Sheriffs in an AP story. Mini cameras are attached to the bottom of the tasers and begin recording after the safety is removed. The camera can record up to 1 1/2 hours, with sound in any type of lighting. The recordings could then be downloaded to a computer and burned to a cd. The department upgraded the tasers to avoid lawsuits of excessive force and misconduct. At least four people died from past taser incidents. Sheriff Harry Lee hopes the cameras "[will] address some of the complaints about taser abuse."

74-year-old farmer, Kenneth Englund of Bradford Township Minneapolis was charged with second-degree assault for holding a thief at gunpoint (with an unloaded gun) until authorities arrived according to an AP story. The thief, 28-year-old Christian Harris Smith was charged with misdemeanor theft of $5 worth of gasoline from a neighboring farm. The criminal complaint said Englund chased the thief, a woman, and a three-year-old at 70 mph calling authorities, asking if he should "blow them away." Englund's reason for chasing Smith was because the nearest sheriff's dept. was in Cambridge Minn. 15 miles out from Bradford Township, leaving enough time for Smith to escape.

Prison Fellowships on the Line?

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As I mentioned in a prior post, prison fellowship programs seem like a good idea. Over at The Point there’s this post regarding an upcoming hearing at the 8th Circuit challenging the legality of such programs. Of note, is that retired Justice Sandra Day O'Connor will be one of the judges hearing arguments in this case. Given that entry into the program is completely voluntary, the extraordinarily high recidivism rates in the country, and the failure of other approaches to prevent recidivism, perhaps it is time to seriously consider the benefits of prison fellowship programs.

Update: : There's an interesting study on prison fellowships here. (pdf file).

Tennessee Death Penalty Pause

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Governor Phil Bredesen of Tennessee has decided to take a cautious approach to the lethal injection controversy and has granted reprieves ending May 2 to four death row inmates, while ordering the Commissioner of Correction to review and revise the protocols by that date. The press release reiterates the governor's support for the death penalty generally. The text of the order is here.

“Those cases affected include:

State v. Daryl Keith Holton, scheduled to be executed Feb. 28, 2007;
State v. Edward Jerome Harbison, scheduled for Feb. 22, 2007;
State v. Michael Joe Boyd, scheduled for March 7, 2007.
State v. Pervis Payne, set for April 11, 2007.”

Similarly, Ohio Governor Ted Strickland has reiterated that the reprieves he granted are simply what he said they were -- to give himself more time to fully consider the clemency petitions -- and that he is not planning a moratorium. "People are reading between the lines, and there's nothing written there," he is quoted as saying in this story by Jim Provance in the Toledo Blade.

A Great Disturbance in the Force

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A state court affirms a conviction and sentence. A federal district court grants habeas relief. A divided court of appeals panel affirms.  The court of appeals grants rehearing en banc and reverses, reinstating the state court's judgment. Nothing unusual to this point.  Here's the twist: this is a Ninth Circuit case.

For a long time, rehearing en banc in Ninth Circuit habeas cases has been exclusively, or almost so, for the purpose of overturning denials of habeas relief. Panel decisions granting habeas, no matter how patently erroneous, have stood. The situation has been considered so hopeless that attorney general's offices in the Far West sometimes haven't even bothered petitioning for rehearing en banc. The Ninth's failure to clean up its own messes in petitioners' favor has resulted in an inordinate portion of the Supreme Court's workload consisting of Ninth Circuit habeas cases.

More on the Cunningham Fix

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Andy Furillo of the SacBee has a more extensive article now on the hearing on SB 40, the fix to the Cunningham problem. This prospective-only fix was supported by representatives of both the prosecution and defense sides. The measure will probably sail through the Legislature from this point.

But what about the old cases? The L.A.D.A.'s representative is quoted saying they are bracing for the wave of habeas petitions. They do not intend to roll over and allow the worst felons to have their sentences reduced to the middle term. They intend to ask to have juries empaneled to find the requisite aggravating fact where necessary and to take up on appeal any decision by a trial judge refusing to do so. This could get very expensive.

Just how expensive depends on how far back Cunningham is retroactive for cases already final on appeal. The possible dates are the dates of Cunningham itself (not likely), Blakely (the correct answer, IMHO) or Apprendi. We would know the answer to the Blakely retroactivity question if the Supreme Court had chosen an appropriate vehicle to answer it, but they misstepped with Burton, as previously noted here.

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Governor Schwarzenegger is requesting that any discussions, consultations, advice, or deliberations that California receives on changes to the death penalty, remain out of the press according to an article by Bob Egelko of the San Francisco Chronicle. The Chronicle and other newspapers asked a federal judge to deny the request. In December, U.S. District Judge Jeremy Fogel ordered the state to revise execution methods to make sure lethal injections did not include a slow and painful death. The Governor's and Prisons' Attorneys asked Fogel for a secrecy order because they believe "internal debate would be harmed by disclosure of the outside advice officials receive and the options they consider." The order was allowed to contest the sealing of documents and a hearing is set for the twentieth of this month.

Mafia Boss, 73-year-old Renaldi "Ray" Ruggerio pleaded guilty to federal racketeering charges on Thursday according to this AP story by Curt Anderson. Ruggerio, the boss for the South Florida Operations of the Genovese crime family, admitted he supervised a crew that committed crimes of robbery, extortion, money laundering and possesion of stolen property. He pleaded guilty after a federal judge did not throw out evidence of FBI wiretaps and undercover recordings. Four others pleaded guilty to racketeering and conspiracy and two others are pending. Sentencing is set for April 27.

Four Hurricane Katrina hospital deaths could not be determined as homicides by Dr. Ana Maria Pou and nurses Lori Budo and Cheri Landry in an AP story. Coroner Frank Minyard could not determine the causes of death after numerous consultations with top forensic experts. The coroner's conclusion came just before a grand jury was considering murder charges. District Attorney Eddie Jordan will still present the case to a grand jury. Hospital administrators told investigators they overheard Dr. Pou saying she would give lethal injections to patients who were too ill for evacuation. The doctor and nurses have maintained their innocence to claims of overdosing the four patients with morphine and sedatives.

Enron jury convictions were thown out on Wednesday by District Judge Vanessa Gilmore in a story by the Houston Chronicle. The prosecution's use of a flawed theory and questionable jury instruction on deliberations caused Enron's former Chief of Finance Broadband Division, Kevin Howard, convictions on conspiracy, wire fraud, and falsifying books to be dropped.

Convicted sex offender, Neil H. Rodreick II 29, was arrested for posing as a twelve year old boy in various charter schools in Arizona according to a New York Times article by Jennifer Steinhauer. Rodreick who went by the alias, Casey Price after a child in Oklahoma, also lived with three other sex offenders: 61 year old Lonnie Stiffler, 43 year old Robert J. Snow, and 34 year old Brian Nellis. The three men posed as relatives, and regularly slept with Rodreick. Stiffler enrolled Rodreick in the different charter schools posing as his grandfather. Students, parents, and teachers of the schools say that he appeared very quiet and shy and looked like a seventh grader. The men are facing a series of charges and have pleaded not guilty to fraud and not registering as sex offenders. Rodreick served seven of ten years in an Oklahoma prison for lewd and indecent proposals to 6 year old boys. After release, he met Stiffler and Snow looking for young boys online. They believed he was twelve and took him to Arizona. Nellis was said to be in on the scam with Rodreick and had met while in prison.

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