March 2007 Archives

The Nobel Prize

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Convicted felon George Ryan has once again been nominated for the Nobel Peace Prize, joining Rush Limbaugh and an unknown number of other nominees. The category of "qualified nominators" is stunningly broad, rendering a nomination essentially meaningless. The Nobel committee will release the full nomination list in 2057.

There is no IgNobel prize for peace. That honor is only for research. No matter. Ryan's ignoble massacre of justice would not come close to meeting the humor requirement anyway.

News Scan

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The Gitmo cases are discussed in this article by Linda Greenhouse in the NYT.

The Cunningham fix bill was signed by Governor Schwarzenegger today, as expected.

New Orleans criminal defense: A judge ordered 42 defendants released in New Orleans because they aren't being adequately represented, reports Michael Kunzelman of AP. Indigent defense was financed by traffic fines in pre-Katrina New Orleans, but there haven't been enough fines since. The DA hasn't decided whether to appeal.

Street Gangs: The San Francisco City Attorney has secured a permanent public nuisance injunction against the Oakland Mob in an effort to drive the street gang out of the city's Bayview neighborhood. An editorial in the San Francisco Chronicle discusses the effectiveness of these injunctions, which have been widely used in California since the state Supreme Court's 1997 decision in Gallo v. Acuna.

Cop Killer Gets DP: A federal judge in New York has sentenced Ronell Wilson to death for killing two undercover police officers in 2003 according to an Associated Press story. Wilson shot both officers in the head during a robbery.

Panetti Briefs

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The "bottom side" briefs were filed today in Panetti v. Quarterman, the "too crazy to execute" case. Briefs on both sides are collected here. In a couple of ways, this is a case study in the hazards of constitutionalizing a generally agreed rule.

No one in this case disputes that an insane person may not be executed, just as no one disputed that in Ford v. Wainwright, 477 U.S. 399 (1986). That was the rule at common law, and it was the law in all states with the death penalty well before Ford. The main issue in Ford was who decides whether a condemned inmate is insane and what process is due. However, Ford's transformation of that rule from a universally agreed principle of common and statutory law into a federal constitutional rule means that litigants are now expecting the United States Supreme Court to mark out the boundaries of who is actually "insane" for this purpose. The common law rule was vague, limited by the era's limited understanding of mental illness. (How limited? See The Madness of King George and be very glad you didn't live back then, even as king.)

Second Texas Execution

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The Supreme Court denied a stay to Roy Lee Pippin in this trio of orders. No dissents are noted. Pippin was executed a little after 6:30, Texas time, reports Michael Graczyk of AP. Pippin admitted being part of the drug smuggling operation that killed Elmer and Fabio Buitrago almost 13 years ago, but he claims he wasn't the triggerman. The Buitragos were killed because drug money was missing.

News Scan

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The Cunningham fix bill passed the California Senate yesterday 32-2 and was sent to the Governator, Andy Furillo reports for the SactoBee. SF Dem Carole Migden joined Tom McClintock as the odd bedfellow this time. Meanwhile, "The anti-prison lobby waded into the Capitol on Wednesday to decry Gov. Arnold Schwarzenegger's plan to build more housing space for an additional 78,000 inmates in state and county facilities in coming years."

Execution: After decades of failed attempts by the government to execute Chicago mobster Robert Cruz, his enemies apparently took care of the job. An Associated Press story reports that construction workers dug up Cruz's body while laying a sewer pipe. Cruz, who disappeared in 1997, spent 14 years on Arizona's death row on a murder-for-hire conviction that was overturned in 1980. Four subsequent attempts to convict him failed.

Pot Houses: Another California trend spreading across the country: suburban houses transformed into indoor marijuana farms, Errin Haines reports for AP.

Texas Execution: Air Force Capt. Jose Renato Cobo was murdered 10 years ago by two young men who wanted his Mazda RX-7 for parts. Justice was finally carried out yesterday for one of the two, Maro Robbins of the San Antonio Express-News reports. The unrepentant killer, Vincent Gutierrez, "strutted past news cameras and sneered, 'I didn't do a damn thing.'"

"'Cold as always,' Ruben Cobo [Jose's brother] said afterward of the inmate. 'He got off easy.'"

Behavior, Free Will, and the Law

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The latest issue of Behavioral Sciences and the Law has an entire issue devoted to the concept of free will, behavior and the implications of recent psychological research on the law. Of particular note is an article by University of Pennsylvania law professor Stephen Morse, The Non-Problem of Free Will in Forensic Psychiatry and Psychology and National Institute of Health psychopathy researcher R. J. R. Blair, Aggression, Psychopathy and Free Will From a Cognitive Neuroscience Perspective. The articles require a subscription, but are worth reading.

News Scan

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Antifreeze Killer Sentenced to life without the possibility of parole. Lynn Turner could have been the second woman to face the death penalty in Georgia but the jurors decided on Tuesday to spare her. She had been convicted of the poisoning-murder of her boyfriend, Randy Thompson. An AP story reports that Turner is already serving a life sentence for murdering her former husband the same way in 1995.

The U.S. Supreme Court will hear arguments in the fall concerning the constitutionality of the PROTECT Act of 2003 which was adopted to broaden the definition of child pornography and penalize violators. The Los Angeles Times story by David Savage is available here. This issue has made its way to the high court due to the 11th Circuit Court of Appeals decision that struck down the law ruling that it is "overbroad and impermissibly vague." The reversal of Michael Williams' conviction for possessing child pornography lead to a plea agreement of a five-year term that also allowed him to challenge the law of 2003.

GPS Trackers A California bill that would require GPS tracking of inmates in minimum-security facilities passed unanimously in the Assembly Public Safety Committee Tuesday. In a San Francisco Chronicle story, Matthew Yi reports that AB439 was introduced after SF Police Officer Bryan Tuvera was killed by an inmate who had walked off a minimum security facility. The site has no security fences to enclose the inmates who are deemed "non-violent." Yi reports that more than a dozen inmates walk away from the minimum security facilities every year.

News Scan

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Cunningham Fix: The California Assembly passed SB 40 by a vote of 63 to 4 yesterday. The Associated Press story by Don Thompson provides some background on the Cunningham decision addressed by the bill. In a story in the California Progress Report, Frank Russo predicts that the Senate will waste no time voting to approve the Assembly amendments and send the bill to the Governor's desk no later than next week. Update: Although the AP story said there were 4 no votes, the legislative website says 5: Orange County Republican DeVore joining San Francisco and East Bay Democrats Leno, Ma, Hancock, and Swanson. That is an alignment you don't see every day.

Crime Statistics

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The selective use of crime statistics by the Police Executive Research Forum to cause public alarm is the subject of a column by John Lott on foxnews.com.

Virginia Death Penalty Vetoes

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Virginia Governor Tim Kaine announced that he has vetoed five bills relating to the death penalty. Although there are five bills, they represent, in essence, two proposals. One of them (HB2348 and SB1288) modifies Virginia's "triggerman rule." The other (HB 2750, HB 2347, and SB 1116), includes in the definition of capital murder the killing of a judge or witness for the purpose of interfering with official duties or testimony. Gov. Kaine's statement is that he does "not believe that further expansion of the death penalty is necessary to protect human life or provide for public safety needs."

To merely ask whether legislation expands or contracts the death penalty is simplistic. All capital murder statutes since Furman v. Georgia, 408 U.S. 238 (1972) have, and are required to have, a mechanism that narrows the class of murderers eligible for the death penalty to some meaningful subset of the class of all murderers. The purpose is to make the death penalty less arbitrary by narrowing the jury's consideration of that penalty to cases defined in some objective way to a group that the legislature determines are generally the worst kind. To perform this function, the narrowing factors should neither be so broad as to sweep in most murders nor so narrow as to arbitrarily exclude murders that do belong at the aggravated end of the range.

Virginia's current death penalty law generally excludes anyone who is not a "principal of the first degree," meaning the person who actually did the killing. Distinguishing between degrees of principals and between principals and accessories before the fact is archaic. See generally 2 W. LaFave, Substantive Criminal Law, § 13.1(e) (2d ed. 2003). The triggerman is not uniformly more culpable than others involved in the murder, as the D.C. sniper case made abundantly clear. The leader of a conspiracy who orders another to kill is more culpable, not less, than the person who carries out the order. Virginia law at present allows the death penalty for nontriggermen only in cases of murder for hire, organized crime, and terrorism. John Allen Muhammad was sentenced under the third exception. In Maryland, which has a stricter triggerman rule, he was not eligible for the death penalty at all.

The vetoed legislation would have expanded the rule to allow the death penalty in cases otherwise eligible if the nontriggerman shared the intent of the triggerman to commit a willful, deliberate, and premeditated murder. By allowing the same penalty for both perpetrators when they are equally culpable and eliminating an arbitrary exclusion, the bill would have made Virginia's death penalty a better fit between culpability and sentence. In cases where the accomplice really is less culpable, that fact can be considered by the jury as a mitigating circumstance.

The judge/witness bill is of lesser magnitude, but such cases are rare enough that this proposal cannot reasonably be considered a significant expansion of the death penalty. The Governor's purported reason does not justify his veto.

According to this AP story, the bills passed by a sufficient margin to override the vetoes.

News Scan

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Death Penalty The Georgia House has passed a measure allowing the death penalty when ten of twelve jurors recommend it. Georgia law currently requires a unanimous jury. The AP story reports that supporters introduced the measure after holdout jurors in sixteen cases refused to vote for the death for defendants found guilty of capital murder.

The Warrantless Search which led to the drug conviction of a felon on probation was ruled unconstitutional by the Wyoming Supreme Court according to a story in the Casper Star Tribune by Joan Barron. The Court's unanimous ruling concluded that the police were not aware that the defendant was on probation when they entered the dwelling and discovered the drugs.

The Death Penalty for twice-convicted murderer Lynn Turner is being considered by the jury that found her guilty of poisoning her boyfriend, Forsyth County fireman Randy Thompson in 2001. An AP article by Harry R. Weber reports that Turner was also convicted previously for murdering her husband, a Cobb County policeman, using the same method in 1995. If the jury recommends the ultimate punishment, then Turner could be the second woman on death row in the state of Georgia.

News Scan

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Correction: Correcting yesterday's News Scan story on the Child Online Protection Act. The law was ruled against by Senior U.S. District Judge Lowell Reed Jr. in Philadelphia, not New York. This is an updated article on the ruling by Ellen Nakashima and Sam Diaz of the Washington Post.

Financial troubles in Georgia: Georgia's public defender system is going broke from the capital punishment case of Brian Nichols; an accused rapist who fled the courthouse taking a guard's gun and murdering a judge, courthouse reporter, and two people in the courthouse. An article in the New York Times by Brenda Goodman explains that the case has already cost $1.4 million and has put other death penalty cases on hold in Georgia. Senate Judiciary Chairman Preston Smith suspects that costs are being deliberately inflated to destroy the death penalty.

Where to put the unwanted: An article by Don Thompson in the Vallejo Times-Herald discussed the issue of recently paroled sex offenders living "in hotels throughout California, a year after lawmakers complained about the practice." 60 day notification to communities where the sex offenders are released is now one of the ways that prison officials are trying to respond to public outcry.

No Tricks Allowed: Defense Attorney Stephen Hurley of Wisconsin, is in the Supreme Court hot seat for tricking a boy into trading in his computer for a new laptop. This was done in hopes to exonerate Hurley's client, Gordan Sussman, the boy's accused molester. According to an article by CNN, "a defense analyst discovered hundreds of pornographic images on the computer, including 28 images involving children. Hurley claimed the images showed that the boy accessed child pornography and learned about sex on his own and not through Sussman." Hurley's trick has brought up the question of whether or not attorneys can "participate in covert activities."

Problems in Texas: Texas' juvenile prison system is under review of its extended prison sentences to roughly 90% of the juvenile inmates, according to this AP story. The commission reviewing the system, was created by Governor Rick Perry after the molestation of juvenile boys by officers was discovered.

A 5-4 vote by Washington Supreme Court says the Department of Corrections can take non-work related money (i.e. money from families) of inmates serving life without parole, "to pay off their legal financial obligations such as victim restitution, court costs or attorney fees." The full article can be found here.

Minnesota Supreme Court ruled in a split decision that "convicted predatory offenders who live on American Indian reservations must register with the state," according to this AP story. The ruling now makes registration on a reservation a criminal statute, giving the state the right to know where offenders live.

Disparate Impact

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We don't often comment on employment law on this blog, but I suppose it was only a matter of time before "disparate impact" litigation was extended to its logical extreme.* The Southeastern Pennsylvania Transportation Authority doesn't want Douglas El as a bus driver to drive around people with mental and physical disabilities because he is a murderer. El claims this constitutes discrimination on the basis of race. "[H]e argued that the policy has a disparate impact: because African Americans and Hispanics are more likely to have a criminal record...." The Third Circuit did not reject this claim out-of-hand, but only because of a lack of evidence on El's part. (Hat tip: Decision of the Day.)

It is true that this is a very old murder conviction entered when El was very young. Even so, it's still a murder conviction, and the notion that the Civil Right Act prohibits an employer from discriminating between criminals and law-abiding people, especially when hiring employees to care for particularly vulnerable people, strikes me as bizarre.

*"All rights tend to declare themselves absolute to their logical extreme." Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (Holmes, J.).

Thanks to crimepsychblog for a link to this interesting review article, titled Cognitive Science and the Law. Authors Thomas A. Busey and Geoffrey R. Loftus discuss the many fascinating areas of cognitive psychology which have great enhanced our understanding of how people process and remember information. Much of this research has shown how some aspects of police investigation are subject to imperceptible, but flawed cognitive processes, especially bias.

News Scan

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Immigration Crackdown: Orange County Sheriff's Department now has a program that allows its deputies "to perform certain immigration functions such as checking the legal status of everyone that comes through their jails," according to an article by Cindy Carcamo of the Orange County Register. Since the new program was implemented, 10% of those jailed were found to be potential illegal immigrants.

More on Roper v. Weaver: An article in the New York Times by Linda Greenhouse discusses the "murder for hire" case of a federal drug witness that CJLF has joined (see Kent Scheidegger's post from yesterday on the case).

Pornography restriction too much: U.S. federal court in New York found that the Child Online Protection Act violated the Constitution's "free speech protections" according to this report. The act was made to stop access to pornography sites for children.

Mississippi sex offender laws are tougher now that Haley Barbour signed a bill that qualifies Mississippi for federal funding under the Adam Walsh Act" according to this AP story. Tougher restrictions include shortening the time limit for registration as a sex offender from 10 days to 3 days and requiring a sex offender designation on Mississippi driver's licenses.

Is PTSD a real diagnosis? Can damage to the brain impair moral decision making? Two new studies examining these topics are worth reading.

The first study by researchers at Harvard Medical School titled Is PTSD Caused by Traumatic Sress? suggests that for many folks there is no link between traumatic events and PTSD. The question that naturally flows from this is whether PTSD is being over-diagnosed.

The next study, titled Damage to the Prefrontal Cortex Increases Utilitarian Moral Judgements appears in the journal Nature and examines damage to the ventromedial prefrontal cortex (sorry, no easy link for description) and moral decision making.

Update: Mind Hacks has some good comments on the PTSD study.

Roper v. Weaver Argument

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The transcript of argument in Roper v. Weaver is available here. CJLF's brief by Prof. Barry Latzer of the John Jay College of Criminal Justice, is here.

The case involves arguments by the prosecutor in the penalty phase of a capital case that the defendant argued were improper. The Missouri Supreme Court found no reversible error. The question on federal habeas is whether the arguments went so far as to violate the federal constitution and whether the state court's ruling to the contrary was unreasonable under then-existing Supreme Court precedent. There is considerable discussion during the state's argument about old federal cases on prosecutor arguments and whether they amount to constitutional prohibitions or just the U.S. Supreme Court's exercise of supervisory power over federal courts, not binding on state courts. In Sawyer v. Smith, 497 U.S. 227 (1990), another argument case on federal habeas, the Court held that a new constitutional rule is not retroactive on habeas corpus even if it is congruent with long-standing nonconstitutional rules.

During the defense argument, Justice Breyer indicates that he thinks the argument was over the line, but that the lack of precedent establishing that may defeat the claim under AEDPA. See pp. 38-39.

On pages 41-44, Justice Scalia, joined by Chief Justice Roberts and Justice Kennedy, contrast what the defense claims is improper for a prosecutor to say in the penalty phase with what defense counsel are allowed to say all the time. This emphasis on symmetry is heartening.

Overall, it looks like a probable win for the state. Stay tuned.

News Scan

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The Supreme Court review of Fry v. Pliler is the subject of a story by Associated Press writer Erica Werner.

The Lawmakers in Maryland are considering allowing juvenile sex offenders names to be public record. The case of a 13 year old boy who sexually molested two younger boys while babysitting encouraged this proposal. As reported here by NBC4.com, thirty-two states have already adopted such laws. The victim's family learned later that the teen had been previously convicted of another sex crime, however, due to the state's law of wiping a juvenile offenders record clean, the family feels he was enabled to offend once again.

More On Sex Offenders

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The Center for Sex Offender Management has released this report (pdf) titled Understanding Treatment for Adults and Juveniles Who Have Committed Sex Offenses. The Center is a project of the Department of Justice and was formed in the late 1980s and has published many reports on the state of sex offender issues. It's good that we have federal funding focusing on the problem of sex offenses. Indeed, with all of the rhetoric and substantial resources spent on prosecuting and incarcerating sex offenders, one can easily conclude that sex offenses are a major criminal justice issue and the more we know the better. We should try to understand criminal behavior better in an effort to stem the tide of crimes against our citizens and help our offender citizens leave their criminal offending in the past.

That said, there are a few aspects of this report worth noting.

This piece at ABC news discusses new applications for a drug called propranolol , an older antihypertensive medicine now being researched for "erasing memories" of past bad events. In true popular news fashion, ABC's suggestion that propranolol could erase memories is a bit over the top: people have been taking propranolol for years with the noted side effect of slight to modest memory impairment. Nonetheless, using drugs to erase memories presents some interesting questions. Given that propranolol is being considered as a treatment for post traumatic stress disorder via its memory impairing propensities, one wonders how this could play out in our criminal law. If a victim of a horrific crime, say rape, is given this drug and then subsequently called to testify in the criminal proceeding, would her memory of that event be immediately suspect? Even though rape prosecutions are purportedly rare, our recent criminal law is replete with problems related to memories.

Fry v. Pliler Argument

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The transcript of oral argument in Fry v. Pliler is available here. The briefs are available here.

The main question is whether the harmless error standard for habeas corpus established by Brecht v. Abrahamson, 507 U.S. 619 (1993) applies when, unlike in the Brecht case itself, the state court did not apply the more stringent rule of Chapman v. California, 368 U.S. 18 (1967) on the direct appeal. This situation would most often occur for marginal claims where the state court did not believe there was a constitutional error at all but the federal court later disagrees and somehow gets around the deference standard of 28 U.S.C. § 2254(d). The Eighth Circuit alone has held that the federal court in that situation should apply Chapman. All the others to squarely consider the question have decided that Brecht controls.

In today's argument, petitioner's counsel argued for the Eighth Circuit position but didn't seem to be getting much traction with it. He also argued that even under Brecht, petitioner should have won. This was the basis of Judge Rawlinson's dissent in the Ninth Circuit. Justice Stevens appears sympathetic to that argument on pages 14-15. Justices Souter and Ginsburg do as well on pages 30-31. However, counsel was nailed on his inept phrasing of the question presented on pages 16-18. Reconsidering the Ninth's application of Brecht to the facts of the case is not the question before the Court.

On page 28, Justice Breyer is evidently bothered by the same thing that bothered me about this case. The underlying error supposedly involved here is the rule of Chambers v. Mississippi, 410 U. S. 284 (1973). Chambers error by definition is committed only by excluding evidence that "significantly undermined the fundamental elements of the defendant’s defense." United States v. Sheffer, 523 U.S. 303, 315 (1998). Exclusion of marginal evidence that probably didn't affect the outcome is not a federal constitutional question at all; it is only a matter of state evidence law. So how can Chambers error ever be harmless under Brecht, if both standards are applied correctly? See CJLF Brief at 4-5. If the Ninth Circuit's holdings that there was error under Chambers and that it was harmless under Brecht are inconsistent, which one was wrong?

The outcome in this case may turn on how strictly the Court applies the rule of limiting its consideration to the question presented. If it is only a question of whether the Ninth applied the correct standard for harmless error, yes, it did. If they go further and consider whether the Ninth applied that standard correctly to the facts of the case, petitioner has a better shot. If they go further than that and question whether there was Chambers error here at all or whether the state court reasonably found there was not, the pendulum may swing back to the state.

News Scan

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Countdown to Death Penalty: Ohio murderer, Kenneth Biros (48) has until midnight to die by lethal injection. The 6th U.S. Circuit Court of Appeals decided to block the execution on Monday "saying Biros should be able to continue appealing a lawsuit with other inmates arguing that Ohio's method of lethal injection is cruel and unusual punishment," according to an AP story by Erica Ryan. Biros still has another appeal that argues his conviction for the murder of 22-year-old Tami Engstrom, does not constitute the death penalty. The victim's sister, Debi Heiss voiced her opinion of Governor Strickland's decision to refuse clemency and uphold the lethal injection as "just absolutely beautiful" in an article over the weekend by Ed Runyan of Vindy.com. Update: The Supreme Court denied the Governor's application to vacate the stay. The AP story linked above has been revised, but it mischaracterizes the high court's action as blocking the execution, when in fact the court merely declined to lift a stay entered by a lower court.

Pay Up: Los Angeles City Attorney Rocky Delgadillo is proposing to stop gangs through suing them for financial damages to communities according to this AP story. Delgadillo believes that "gangs would find it more difficult to operate if their cash and holdings were targeted in civil court."

Death for Death of a Child: Utah's Governor Jon Huntsman has just signed into law House Bill 93 providing that prosecutors do not have to prove intent to kill in the death of a child "during an act of abuse, sexual assault or kidnapping was intentional" in order to be sentenced to the death penalty. The full article can be found here.

Supreme Court Today

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The transcript of oral argument in Morse v. Frederick, the "Bong Hits 4 Jesus" case, is available on the Court's site. Interestingly, both former SG Starr, for the principal, and current DSG Kneedler, for amicus US, spend their entire arguments on the position that the principal was correct to discipline the student, not mentioning the more easily defended position that she is covered by qualified immunity. When plaintiff's counsel gets up, he has barely begun before Chief Justice Roberts and Justice Kennedy pounce on that point. Even Justice Souter, who had grilled Starr and Kneedler with apparent sympathy for plaintiff's position on the merits, is skeptical that the law was so clear that the principal should have known it. See pages 49-50.  On page 47, Justice Breyer notes that Frederick may not have been disciplined for his banner at all. The superintendent reduced the suspension from 10 days to 5, stating that assuming the banner was protected speech, Frederick still deserved 5 for other misconduct.

In other action, the Court accepted no new cases today. Among the denials were a couple of cases of interest from SCOTUSblog's "reasonable chance" list. Houk v. Joseph, No. 06-961 dealt with the continuing problem how issues of state law interact with federal requirements such as proof beyond a reasonable doubt. The Court also turned down Goetz v. John B., No. 06-901, doubtless disappointing Beach Boys fans. This is a Medicaid case, but the issue involved a court-appointed special master who was allegedly more of an advocate for the plaintiffs than a neutral adjudicator. That never happens in prison litigation, does it?

Biros Stay Remains, For Now

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The Sixth Circuit today denied the state's motion to lift the stay of execution in the Biros case, previously noted here, pending resolution of the petition for rehearing en banc in the Cooey lethal injection litigation, previously noted here.

Update: Governor Strickland's office has posted his statement on the web site. It does not give his reasoning for the decision to deny clemency.

News Scan

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Trouble in Paradise: While folks in San Francisco have always counted themselves more enlightened and tolerant that the rest of the country, a piece in today's Chronicle by researcher Michael Males laments that arrest rates for blacks in the city by the bay are 11 times higher than for other races and 3.4 times higher than for the rest of California. Mr. Males reports that while blacks in San Francisco suffer higher poverty than thirty years ago, "African American neighborhoods have not gotten deadlier." No deadlier than one of the worst periods for homicide in California history.

Judicial Pay: Richard Posner and Gary Becker address Chief Justice Roberts' argument that federal judges are underpaid at the Becker-Posner Blog.

Rethinking the FBI: The prolific Judge Posner also has this op-ed in the Wall Street Journal (subscription) advocating removing counterterrorism from the FBI and creating a new agency along the lines of Britain's MI5.

The legal blogosphere is engaged in a lively discussion this morning about the relevancy of law review articles for lawyers outside of academia. Doug Berman at SLP has this post, Dan Solove over at CO has this post, and Orin Kerr over at VC has this post. I initially listed some of my recommendations at SLP, but wish to briefly expand them here.

Mental health evidence is a hotly contested area these days. Much of debate centers around two areas: what are behavioral health experts qualified to opine on and how good are their opinions. My colleagues and I have published two papers in this month's issue of Family Court Review on the limits of common psychological tests in family court matters. Although these tests are used most frequently in civil matters such as custody and visitation, they are also used in potential criminal matters such as allegations of abuse or neglect. Our first study concludes that many of the tests used by psychologists for family court evaluations lack scientific rigor to be used ethically in deciding issues such as custody and childhood attachment. Our second paper responds to our critics. Of particular concern are the numerous projective measures (e.g., inkblots) that are often used with children. Most of these tests have no demonstrative validity or reliability in ascertaining important psychological constructs at issue in these cases. Similar to a previous study (.pdf) I published in the New York Bar Journal years ago, inkblot tests are of a particular concern because of the extensive problems surrounding their psychometric properties. One wonders when the American Psychological Association will finally call for their prohibition (I'm not holding my breath)...

Despite the concerns of some legal scholars, more empirical evidence suggests that there is indeed such a thing as juvenile psychopaths. Moreover, such youth psychopathy is predicative of adult criminality and violence. A new meta-analysis by Dr. John Edens and colleagues from Southern Methodist University published in February's issue of Law and Human Behavior reveals a modest to strong relationship between Hare's psychopathic traits and future criminal behavior. Added to prior studies suggesting psychopathy is largely heritable, the youth psychopathy construct provides interesting questions for criminal law scholars and incapacitation proponents.

Ohio Gov. Gives Go-Ahead

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In January, the new Governor of Ohio, Ted Strickland, granted reprieves in the cases coming up for execution to give himself more time to consider the clemency petitions. As I noted at the time, clemency is a matter that should be considered carefully, and a short extension is in order when necessary for that purpose.

There are news reports today that Gov. Strickland has decided not to commute or further reprieve the first of these sentences, that of Kenneth Biros, whose reprieve expires next Tuesday. Reginald Fields of the Cleveland Plain Dealer reports here. There is no statement on the Governor's web site at this time, however. It would interesting to see his reasoning. In any event, fears that he would misuse the clemency power to effect a de facto repeal of the death penalty appear to be unfounded.

There are generally two valid reasons to commute a death sentence. One is a realistic doubt of the identity of the perpetrator. That is not at issue in this case, according to this AP story. The other reason is that the crime is a clearly mitigated case of the type where the death penalty is rarely imposed, and its imposition represents a clear malfunction of the sentencing process, even when there is no legal reason for a court to reverse. Lest anyone think that Biros is such a case, here is an excerpt from the Sixth Circuit opinion:

News Scan

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Give an organ, take six months off: Legislation in South Carolina reported here last week by Seanna Adcox would allow prisoners to donate organs and bone marrow in exchange for up to six months off their sentences. The "organ recipient and charitable groups" would pay for the operation and overtime of the guards. Jon Ozmint (Corrections Department Director) explained that the lifers would want to donate because they know they would die in prison. An opposing view was posted this week on a blog by the editors of Foreign Policy and written by Carolyn O'Hara. She called the proposal an "[incentive to donate] a kidney in a coercive fashion, just as a monetary payment would....this is just another way of getting one class of society to provide for the health of a wealthier class..."

Standstill: A bill to end the death penalty which received a 5-5 vote in a Maryland Senate committee will not make it to the Senate floor, according to a story in The Washington Post by John Wagner. Maryland currently has a moratorium on the death penalty until lethal injection procedures are revised. There have been a variety of suggestions as to what Governor Martin O'Malley should do, including appointing a "study commission (on the death penalty) by executive order," or, heaven forbid, letting the voters decide.

Carnivals...sex offenders need not apply: Illinois is trying to pass legislation that would prohibit sex offenders from working at county fairs according to an article by Mike Riopell. House Bill 156 won 110-0 in the House Thursday and will be voted on by the Senate.

"After weeks of behind-the-scenes wrangling and an emotional hearing, the Senate Judicial Proceedings Committee defeated a proposal today to repeal the death penalty in Maryland.

The committee's 5-to-5 vote is expected to bury the measure for the General Assembly session," reports Jennifer Skalka in the Baltimore Sun. John Wagner and Ovetta Wiggins report the story in the WashPost.

DP "Volunteer" Decision

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The en banc Ninth Circuit today once again corrected an out-of-the-mainstream panel decision in a habeas case. Robert Comer is an Arizona inmate sentenced to death whose attorneys are trying to challenge his sentence over his objections. In DP parlance, he is a "volunteer." The Ninth previously ordered the district court to determine if he was competent to withdraw his petition, and that court determined that he was. On September 13, a three-judge panel ordered the case to go forward anyway, with this holding:

We agree with the District Court that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer’s waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution. We therefore deny the State’s and Comer’s motions to dismiss the appeal and proceed to review the District Court’s denial of Comer’s federal habeas petition.

Today the 15-judge "en banc" court corrected this jaw-dropping violation of the Article III "case" or "controversy" limitation on the judicial power. The opinion is per curiam. Judge Pregerson dissents alone, reprinting the panel opinion.

The Ninth's increasing willingness to correct fringe panel opinions favoring the defense position* is a welcome, if overdue, development, as previously noted here. If this keeps up, maybe the Supreme Court can spend less of its time correcting obviously erroneous decisions from the Ninth.

*In this unusual case, the defense position is the position of the defense lawyer over the objection of the client.

David Kravets reports on the case for AP. In Monday's New York Times, Adam Liptak had a piece on Comer, which How Appealing has made temporarily available to nonsubscribers via this link.

News Scan

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A Civil confinement law in New York to hold sex offenders in psychiatric treatment or intensive supervision if deemed a threat to society, was signed Wednesday according to this AP story by Michael Gormley. The new law requires a psychiatric evaluation of the offender before release. If a red flag goes up, a jury decides if the offender would re-offend, then a judge decides if they should undergo treatment or supervision.

Skid Row Crackdown: The Washington Post has an article by Sonya Geis on the recent police crackdowns in Los Angeles's Skid Row. The "broken windows" approach adopted by the LAPD, which targets petty crimes such as public urination and jaywalking to discourage violent crimes, is clearly working but has received mixed reviews. While police are finding reductions in the crime rate, others such as Mike Cassanova, executive director of Homeless Health Care Los Angeles says the crack down is "doing nothing but cutting off access to services."

The Supreme Court is the topic of two recent books reviewed in today's Opinion Journal by Northwestern Law Professor John O. McGinnis. Jan Crawford Greenburg's "Supreme Conflict" and Benjamin Wittes's "Confirmation Wars" provide a view of the Court and the modern confirmation process of justices which McGinnis finds more balanced and accurate than other recent books on these subjects.

Verdict in Jessica Lunsford Case

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Curt Anderson of AP reports:

A jury decided Wednesday that a convicted sex offender should get the death penalty for the kidnapping, rape and murder of 9-year-old Jessica Lunsford, who was buried alive in trash bags just yards from her home.

The jury, on a 10-2 vote, brushed aside pleas for mercy and a life sentence from defense lawyers based on claims that John Evander Couey, 48, is mentally retarded and suffers from chronic mental illness. Jurors deliberated for about one hour.

One hour? Now that's Exhibit A in the case for nonunanimous penalty verdicts.

Raich on Remand

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The Raich medical marijuana case has finally been redecided by the Ninth Circuit, nearly two years after it was remanded by the Supreme Court in Gonzales v. Raich. Judge Pregerson wrote the opinion, joined by Judge Paez, denying injunctive relief. Judge Beam, visiting from the Eighth Circuit, concurs in the result but "dissent[s] from the court’s expansive consideration of the doctrine of common law necessity as well as from several of the factual findings and legal conclusions applied to this issue and other claims before the court."

In other Ninth Circuit action, the court decided issues on the crime-fraud exception to the attorney-client privilege in the ongoing Napster case.

News Scan

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The Cunningham fix bill, SB 40, passed out of the California Assembly Public Safety Committee 5-2, reports Andy Furillo of the Sacramento Bee. The bill previously passed the Senate 36-1, with only conservative Republican Tom McClintock dissenting. In yesterday's vote, the opposition was from San Francisco Democrats Mark Leno and Fiona Ma. The bill would eliminate the requirement that a judge find an aggravating or mitigating fact to depart from the "middle term" sentence for a felony and impose the upper or lower term instead, thereby eliminating the problem the U.S. Supreme Court found in Cunningham v. California. The fix sunsets in 2009, however. The state's public defenders are divided on the bill, and their association has taken no position.

Scandal: Whoever said "everything is new to those who don't know history", must be amused by the shock and surprise surrounding the dismissal of eight U.S. Attorneys by the Bush Administration. A piece in today's Opinion Journal reminds those whose memories have failed them that, shortly after assuming office, President Clinton dismissed all 93 of them with ten days notice.

A Washington Appeals Court has reversed the conviction of Terese A. Hedlund, ruling that she was a victim and not an accomplice to the fatal drunk driving accident. According to an AP article the prosecutor in the case argued that Hedlund encouraged her fiance to drive erratically by videotaping the incident. The tape also revealed that she was furnishing alcohol to a minor and allowing her 4-year-old daughter to smoke a cigarette.

A Death Penalty bill that would abolish capital punishment in Montana has died in a House committee as reported in an AP story. The bill proposes life in prison without the possibility of parole and abolishing the death penalty. Sen. Dan Harrington sponsored the bill and feels that the House was "in a hurry" to get rid of the bill and claims that he will continue to try to get the issue before the House floor for open debate.

The state Supreme Court
in Olympia, Washington will hear argument on defense access to evidence in child-sex cases. The AP reports that the prosecution contends that to release child pornography evidence, to the defense, victimizes the victim once again, and the defense states that they have a right to any evidence that can be used against them.

News Scan

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Seeing Green: Columnist Ann Fisher of The Columbus Dispatch shares her opinion on Ohio's new legislation to have bright green license plates for high risk sex offenders. Fisher contends that although the plates may seem like they are helpful, their effectiveness is debatable. Citing the "scarlet letter shame" and stating that, "such a law could also drive offenders underground, penalize others in their households who depend on the same car or force them to forgo jobs that require a car," Fisher's main argument is better education for those vulnerable to sex offenders.

High risk sex offenders that have already served their time, may be subject to GPS tracking in Texas if House Bill 430 passes. An article in the Houston Chronicle by Polly Ross Hughes explains that the sex offenders would be monitored for three years post-release.

News Scan

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More on Irons v. Carey, as Howard Bashman of How Appealing weighs in at law.com. "[I]t does seem clear that the 9th Circuit itself avoided another U.S. Supreme Court reversal when it refrained from striking down Congress' enactment of a rule, limiting the availability of habeas relief, that had been a centerpiece of the so-called Rehnquist revolution." Our previous post is here.

Electronic monitoring is promising but still needs work. "An accused child molester cut off his electronic monitoring bracelet, then took a limousine to Chicago to appear on 'The Jerry Springer Show,' authorities said." Hat tip to SL&P for pointing out this AP story.

Stay and abey sua sponte? No way! In Robbins v. Carey, No. 05-17131, the Ninth Circuit rejected a claim that a district court presented with a "mixed" habeas petition (i.e., presenting both exhausted and unexhausted claims) had a duty to use the stay-and-abey procedure permitted by Pliler v. Ford, 542 U.S. 225 (2004), without a request for it by the petitioner. The district court's dismissal of the mixed petition was proper, even though the statute of limitations had already run, precluding a refiling after exhaustion.

Advocates for Illegal Immigrants are challenging the constitutionality of local laws cracking down on illegals. While enforcing immigration law is generally considered the federal government's job, city officials in Hazelton, PA have taken action to curb illegal immigration in that city, as reported here in the Corruption Chronicles. The city was fed up with the crime committed by illegal immigrants and adopted a Illegal Immigration Relief Act which fines landlords and denies business permits to employers to hire illegals.

Sentences for low level drug addicts and dealers of crack cocaine is one of the major topics in Congress today as reported by Donna Leinwand of USA Today. The punishment for 5 grams of crack cocaine exceeds the sentence for 499 grams of powder cocaine. Senator Jeff Sessions proposes easing the sentences for crack and increasing sentences for powder to restore balance.

The Ninth Circuit is the subject of a review and outlook article in today's Wall Street Journal. The Journal believes that the current term may set a record for the number of Ninth Circuit cases overturned by the Supreme Court.

News Scan

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Supreme Court : If the number of amicus briefs indicates the importance of a case before the nation's highest court, then Morse v. Frederick makes the top ten in the current term. A story by the Student Press Law Center reports that 23 amicus briefs have been filed in support and opposition to a high school student's challenge to the 10-day suspension he received for holding up a sign reading "Bong Hits 4 Jesus" as the 2002 Olympic torch relay passed his high school. Oral argument is set for March 19.

DC Gun Ban Struck Down: The federal Court of Appeals for the DC circuit has struck down the district's 30-year-old law banning handguns on Second Amendment grounds. According to a Bloomberg News story by Caryu O'Reilly, this is the first time that any federal circuit has done this. The Washington DC law is the most restrictive handgun ban in the nation. The Court's opinion is here.

Death Penalty: A bill to abolish New Mexico's death penalty died in committee yesterday as reported by Diana M. Alba in the Las Cruces Sun News. The hearing was packed with witnesses on both sides including a former District Attorney who now opposes the DP who said, "There is simply no evidence the existence of a death penalty has a deterrent effect". Some of that non-existent evidence of deterrence is available here.

Secret Sentencing?

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A federal judge has ruled that the motion Talibanista John Walker Lindh made for reduction of his sentence can remain secret, according to this AP story by Larry Neumeister. The AP had submitted an FOIA request for the petition, hoping "there might be allegations of government misconduct in the papers."

The government responded that the documents should be kept secret because they are similar to personal and medical records and because no evidence of government misconduct in the case had been alleged.

The judge actually bought that.

U.S. District Judge Loretta A. Preska decided the documents can remain sealed because prosecutors said Lindh's motion did not contain allegations of government misconduct.

Huh? Since when is a defendant's motion to reduce his sentence analogous to a medical record? Criminal defendants are prosecuted in the name of the general public. We are the real parties to the action, and the prosecutor is only our advocate. Criminal cases are the public's business, and their records should be open except for special exceptions to protect the privacy of innocent parties. The public interest in open proceedings is not limited to allegations of government misconduct.

Getsy Argument

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USCA 6 heard oral argument en banc* today in the Getsy case, previously noted here, here, and here. Counsel for Ohio reports that only Judge Merritt seemed interested in the disproportionality theory of his panel opinion.

*The full court, as opposed to the three-judge panels that normally hear cases in the federal courts of appeals.

News Scan

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The murder rate jumped by more than 10 percent among dozens of large U.S. cities since 2004, reports Lara Jakes Jordan for AP. The report is due to be officially released tomorrow.

Jessica Lunsford's killer, John Evander Couey was found guilty in a Florida courtroom Wednesday of kidnapping, raping, and burying alive 9-year-old Jessica in February 2005. The AP story by Curt Anderson reported that DNA evidence from the crime scene was used at the trial. Couey, a registered sex offender, may face the death penalty.

Convicts turned farmers? Colorado is considering sending prisoners to work on farms throughout the state as a way of replacing the migrant worker shortage according to this AP story by Chase Squires. One suggestion by prison and agricultural officials would have farmers pay the state $10 an hour per inmate. A 60-cents-a-day credit would go to the prisoner, and the remaining to housing, food, guards and transportation. Opponents of the plan see it as "a return to the plantation system." The 13th Amendment provides, "Neither slavery nor involuntary servitude, except as punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

News Scan

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The California Supreme Court has ruled that out-of-court statements or "testimonial" hearsay is admissible against a defendant when the victim's unavailability is caused by the defendant's own criminal violence. Convicted of murdering his ex-girlfriend Brenda Avie, Dwayne Giles unsuccessfully objected to the introduction of statements given to the police made by his victim several weeks prior to her death and made this the basis for his appeal. According an article in the Metropolitan News-Enterprise by Tina Bay, the court decided that hearsay, usually barred, is admissible under the Crawford v. Washington exception "forfeiture by wrongdoing." The reasoning the court applied was that Giles should not be allowed to benefit from his criminal actions and he forfeited his right to cross-examine Avie under the Confrontation Clause because he was in fact the individual responsible for her unavailability.

Implied Malice Prosecutors are asking the California Supreme Court to interpret the definition of implied malice of second degree murder and to set clear guidelines for the standard as reported here in an AP story by Kim Curtis. This is an issue that came out of the second degree murder conviction of Marjorie Knoller which was immediately reduced to manslaughter by Superior Court Judge James Warren. Knoller's dogs fatally mauled Diana Whipple in 2001 and the high court is being asked to clarify the confusion of the standards between the appeals court, which seems to be too low, and the original court, which seems to be too high.

The Death Penalty for repeat child sex offenders in Texas passed the House according to an AP story by Jim Vertuno. The bill proposes to increase the sentence for first time offenses to 25 to 99 years, life without the possibility of parole or the death penalty as an option for hard-core, second time offenses, and elimination of the statute of limitations for many sex crimes against children. Texas is one of six states who have adopted similar laws in an effort to provide harsher punishment for those who repeatedly prey upon young children.

Ineffective Assistance

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The Ninth Circuit today denied rehearing en banc in the Idaho case of Hoffman v. Arave, No 02-99004. The panel decision held that counsel was ineffective in rejecting a no-death-penalty plea bargain because he believed that Idaho's death penalty law would be struck down under the then-recent Ninth Circuit decision of Adamson v. Ricketts, 865 F.2d 1011, 1023-28 (9th Cir. 1988) (en banc), abrogated by Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring v. Arizona, 536 U.S. 584 (2002).

Judge Bea's dissent from denial of rehearing en banc notes, "in what may be a new high in self-effacing candor, the panel holds that it is ineffective assistance of counsel to rely on Ninth Circuit precedent with respect of federal constitutional law applicable in states located in this Circuit."

Another intriguing question is whether a person fairly tried and sentenced can receive relief under Strickland v. Washington, 466 U.S. 668 (1986) on the ground that counsel could have gotten him off with less than he deserved through a plea bargain. Strickland described the "prejudice" element in a couple of different ways, one of which was, "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland held, "A reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome." While that may be true for trial, the context in which that statement was made, it is not true for plea bargaining.

News Scan

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Treating Offenders: Keeping sex offenders in psychiatric treatment after their prison terms , has sparked debate in New York. A three part segment in the New York Times by Monica Davey and Abby Goodnough discusses the pros and cons of Governor Spitzer's civil confinement law citing specific cases from states that already have a form of the law. The other two parts were discussed in yesterday's News Scan. Part III discusses the types of therapy available for sex offenders and how the results of therapy may not work or be valid.

California Supreme Court: The court ruled yesterday that defendant Dwayne Giles has no right "to object to the admission of out-of-court statements of a witness whose unavailability he caused" according to this report by Tina Bay of Metropolitan News-Enterprise. Giles is on trial for the murder of ex-girlfiend Brenda Avie. The prosecution introduced statements made by Avie to police regarding a domestic violence dispute between the couple, this included Giles threatening Avies at knife point. Giles appealed the remarks because he could not cross-examine Avie. The court found the statements admissible under the forfeiture by wrongdoing doctrine.

New trial for 35-year-old Joseph Lee Ard, the first person in South Carolina sentenced to death for fetus death. According to this report by Rick Brundrett, the South Carolina Supreme Court's 3-2 decision held that Ard deserved a new trial because "gun shot residue evidence" was not challenged enough by his defense in 1996.

DNA match to Lorenzo Gilyard for the numerous murders of Missouri women from 1977-1993 were announced Monday in an article by Heather Hollingsworth of AP. Gilyard is on trial for 6 of the 13 murders and faces life without parole. He maintains his innocence.

The Libby verdict is discussed at the Wall Street Journal by James Taranto.

Irons, At Last

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USCA9 has finally issued its opinion in Irons v. Carey, No. 05-15275. The opinion of the court is a fairly mundane rejection of a parole claim, and it drops into a footnote the issue of whether the deference standard of AEDPA, 28 U.S.C. § 2254(d), is constitutional.

[W]e are now persuaded that Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000), answers that question, correctly or not, for the court. A three-judge panel of this court is without authority to overrule a holding of an earlier panel.

Now persuaded? It wasn't perfectly obvious from day one?

But wait ... there's more. It's in the concurring opinions.

Death and Delay

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Guest Post by Barry Latzer, J.D. Ph.D., John Jay College of Criminal Justice
There has long been dissatisfaction with the pace of death penalty appeals. Despite a plethora of studies, articles and papers on capital punishment, few academics seem interested in empirically analyzing the time devoted to the capital postconviction process. The reason, though unspoken, seems clear: most want to eliminate the death penalty, not make it more efficient.
Nevertheless, given overwhelming public support and Supreme Court approval (grudging though it may be) the death penalty lives, and seems unlikely to go away. Therefore, there is good reason to study the process, and, where possible, reform it.
Jim Cauthen, my colleague at John Jay College of Criminal Justice, and I just completed a 14-state study of direct appeals in capital cases. We called it Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study. Here are some highlights of our findings:

Torture, Crime, and Politics

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This month's issue of the prestigious journal Archives of General Psychiatry begins with the lead article,
Torture vs Other Cruel, Inhuman, and Degrading Treatment Is the Distinction Real or Apparent?. The abstract beings thusly: "After the reports of human rights abuses by the US military in Guantanamo Bay, Iraq, and Afghanistan, questions have been raised as to whether certain detention and interrogation procedures amount to torture." It concludes "Ill treatment during captivity, such as psychological manipulations, humiliating treatment, and forced stress positions, does not seem to be substantially different from physical torture in terms of the severity of mental suffering they cause, the underlying mechanism of traumatic stress, and their long-term psychological outcome. Thus, these procedures do amount to torture, thereby lending support to their prohibition by international law." While this article is likely to invoke strong reactions across the political spectrum, it's worth noting some methodological aspects of this study since charges of torture can be prosecuted in the International Criminal Court.

News Scan

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An infamous anniversary is tomorrow. Tony Mauro has this post at the Blog of the Legal Times on the 150th anniversary of Scott v. Sandford, 60 U.S. 393 (1856)

Sex Offender Commitment: Abby Goudnough and Monica Davey have the second in a series of articles in the New York Times on sex offender commitment, this one focusing on the conditions at a privately run facility. Yesterday's article discussed doubts about the programs, such as, "The treatment regimens are expensive and largely unproven, and there is no way to compel patients to participate." Tomorrow's installment is titled, "The difficult science of treating sex offenders."

Alleged Serial Killer Lorenzo Gilyard faces trial today for the murders of 13 women and girls between 1977 and 1993 in Kansas City. An AP story by Heather Hollingsworth reports that Gilyard has an extensive past of run ins with the law and is connected to a string of murders through DNA evidence collected in 1987. Gilyard and his attorney stick to his claims of innocence and waived almost all rights to an appeal and trial by a jury in exchange with the prosecutor not seeking the death penalty.

The Supreme Court of Kentucky overturned the conviction of Elijah Burns who was found guilty of sexually abusing three girls under the age of 12. The AP story reports the high court ruled that the admission of improper testimony by the examining physician prejudiced Burns and therefore he should receive a new trial, which is scheduled to begin in May.

The Supreme Court of West Virginia decided sending a confidential informant into a private home wearing a "wire" without a warrant violates the state constitution, although it is valid under federal law. Justin D. Anderson of the Charleston Daily reports that a case out of Boone County where Eddie Mullens plead guilty to selling marijuana and was sentenced to five years in prison in 2005 after police sent an informant into his home while wearing surveillance equipment. Justices Brent Benjamin and Spike Maynard dissented, claiming that the decision reached by the majority is nothing more than "nonsense" and police Lt. Chuck Carpenter states this ruling will make police investigation harder and more time consuming.

News Scan

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Justice Department has a new study that discredits prior claims that the death penalty is "hopelessly flawed with errors," according to an article by Richard Willing of USA Today. This study was commissioned to see if there is a way to make the execution process less time consuming. The study challenges the 2000 study by James Liebman, claiming that the system is "broken" because 68% of the cases between 1973 and 1995 were overturned. The study notes that changes in the governing rules are responsible for many of those reversals.

UPDATE: The text of the study is available on the NIJ site.

A fair probability that Kenneth M. Kelley of San Francisco had willingly received child pornography emails was sufficient to support a search warrant for his computer, even though the emails might have been spam, Bob Egelko of the SF Chronicle reports. The opinion is here. Kelley was charged in March of 2005 for "possessing and receiving child pornography." The district court ruled that the search was illegal. However, on Thursday the Ninth Circuit ruled that "the circumstances of their delivery indicated at least 'fair probability' that he had received them willingly," explained Judge Pamela Rymer, joined by retired Justice Sandra Day O'Connor. Dissenting Judge Sidney Thomas however, claims the search violated the Fourth Amendment. Orin Kerr at the Volokh Conspiracy says even the fair probability was not required.

The Ohio lethal injection ruling, previously discussed here, is covered in this AP story.

USCA6 on Injection Suit Time Limit

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The Sixth Circuit has rendered an important decision on the statute of limitations for suits challenging lethal injection in Cooey v. Strickland, No. 05-4057. Cooey is on Ohio's death row for the kidnapping, rape, and murder of Wendy Offredo and Dawn McCreery in 1996. See Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002) and excerpt below.

Even a cursory examination of our criminal law reveals the contentious debates surrounding behavioral science experts. We call upon forensic psychologists and psychiatrists for explanations of bizarre and horrendous behaviors, but become easily disgruntled with their explanations. Why is this so? In Mind Over Morality (available here) I review a great new book by law professor and fellow forensic psychologist Charles Patrick Ewing and psychologist and lawyer Joseph McCann titled Minds on Trial that seeks some understanding of this phenomenon. My thesis uses the recent Clark v. Arizona case as a backdrop by discussing the troubled concept of "moral capacity."

More News

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The Ninth Circuit will be expanded by one seat, under an amendment to S. 378, The Court Security Improvement Act of 2007, introduced by Sen. Jon Kyl and endorsed by Sen. Dianne Feinstein. Sen. Kyl's press release is here.

Florida's Lethal Injection Commission report is the subject of lots of news coverage (see, e.g., here and here). The report is here.

Witness intimidation and its consequences are explored in this article by David Kocieniewski in the NY Times.

Justice for Darfur

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In yesterday's WashPost, actress and UN goodwill ambassador Angelina Jolie had this op-ed on the Darfur tragedy. She has some good lines:

Accountability is a powerful force. It has the potential to change behavior....When crimes against humanity are punished consistently and severely, the killers' calculus will change.
It has become clear to me that there will be no enduring peace without justice.
What the worst people in the world fear most is justice. That's what we should deliver.

Regrettably, Ms. Jolie fails to note that the Incapable Criminal Court whose jurisdiction she seeks to invoke cannot deliver justice. Its European creators have withheld the power to punish genocide with the requisite severity.

News Scan

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Lethal Injection: South Dakota's new lethal injection law, signed by the governor Friday, avoids the prior mistake of specifying the details in the statute. The corrections officials will now determine the protocol, Katie Brown of the Rapid City Journal reports.

Humor Pics on the judicial system from The Onion are here (hat tip: Capital Defense Weekly).

NY Sex Offender Commitment: If NY Governor Eliot Spitzer's revised "civil confinement" law passes, sex offenders that are deemed a threat to the community after release would be confined in psychiatric treatment centers. The AP story by Mark Johnson also explains that sex offenders will be assessed to see if they are still a threat, then a jury will decide if they would re-offend. If yes, the judge will decide between psychiatric confinement or "intensive supervision." An Office of Sex Offender Management would be created to ensure the offenders "judged likely to reoffend" are put away.

Bright green license plates for "habitual and child-oriented" sex offenders in Ohio, if a bill by Rep. Michael DeBose and Senator Kevin Coughlin is passed. A previous bill to have pink license plates did not pass. Ohio however, already has yellow plate tags for repeat DUI offenders as reported in this AP story.

The only inmate on death row for rape is appealing his conviction in New Orleans. 42-year-old rapist, not named to protect the victim, was convicted in 2003 of the aggravated rape of his 8-year-old stepdaughter in 1998. KATC's report explains, "the man is the only person convicted under the 1995 law, which allows the death penalty for aggravated rape of [a child] less then 12 years old." Montana, Oklahoma, and South Carolina are the only other states that allow capital punishment for child rape. His appeal is based on errors by prosecution and the argument that his "penalty is disproportionate to the crime." The story incorrectly states that "the U.S. Supreme Court ruled in 1977 that murder was the only crime for which the death penalty was constitutional." In fact, in Coker v. Georgia, 433 U.S. 584, 597 (1977), the Court expressly limited its holding to adult-victim rape cases.

Don't abolish the death penalty, fix it. The Baltimore Sun has an interesting op-ed by former prosecutor and New Jersey legislator John F. Russo. In it are excerpts from his dissent from the report of the New Jersey Death Penalty Study Commission. He, unlike the other members, believes "that the death penalty should be available for extreme cases such as for serial killers and terrorists, or in situations where an unpaid ransom results in the killing of a child." He argues on points made by the Commission on the death penalty including deterrence, cost, and the risk of execution of innocent people. The Commission's report can be found here.

Laws on sex offenders using the internet have gotten even tougher. New Jersey is now proposing that on top of the offenders having to register their online identities and be restricted from certain sites, they would get five years in jail if they were trying to "solicit a child" on the computer. Online dating serivces would also have to report if they do background checks. As reported here, the bill includes check ups of the offenders' computer equipment and installation of equipment that lets law enforcement know the offender is on the computer.

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