April 2007 Archives

Marijuana and the Brain

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This story reports that scientists have for the first time discovered the location where the active ingredient of marijuana (tetrahydrocannabinol) effects the brain. This discovery is due in large measure to the fairly recent discovery of the cannabinoid receptor in humans. This discovery was quite monumental because it proved that the body naturally produces its own "cannabis" known endocannabinoids. It has been shown that cannabinoid receptors are not only located in the brain but also the liver. As such, chronic consumption of marijuana may be associated with liver impairment. Although governmental officials have fired the warning shot about the potency of modern marijuana, there's much more we need to know before making any sweeping statements about the harm of recreational marijuana use. Many people experiment with marijuana without any apparent long term effects. Nonetheless, these studies deserve attention, as it does appear that the potency of most available marijuana is on the rise. The flip side of the scientific progress made in terms of marijuana and the cannabinoid system is that while chronic use of high potency marijuana probably has adverse effects on the body, small doses may indeed have medicinal value.

From today's decision in the police chase case, Scott v. Harris, comes this line that should not be remarkable, but is. "We think it appropriate in this [weighing] process to take into account not only the number of lives at risk, but also their relative culpability." In other words, society should be more concerned with the lives of innocent people than with the life of the person whose intentional, criminal conduct caused the danger in the first place. It is a comment on the state of the Supreme Court's "fleeing felon" jurisprudence that such an obvious statement needs to be made and that it is noteworthy.

Justice Scalia, with his usual subtlety, begins today's decision in Scott v. Harris by asking, "Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?" The answer is obviously "yes," but the Eleventh Circuit saw the "facts" for its consideration on summary judgment differently.

News Scan

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A death penalty debate in Sunday's Washington Post featured these pro and con articles. The pro article by Eric Rozenman is skeptical of the no-deterrence claims of the opposition but does not cite the large, growing body of scholarly literature showing deterrence. Also, the Buffalo News has this story on legislative efforts to restore the death penalty in New York, at least for cop killers.

The Murder Conviction of a former Columbia police officer was overturned on friday by the Missouri Court of Appeals on the ground that hearsay evidence which did not meet accepted legal standards was admitted during his trial. The appeals court ordered that Steven Rios receive a new trial according to an AP story by Heather Hollingsworth. Rios was convicted of slashing his mistress's throat and sentenced to life in prison without the possibility of parole in 2005.

Conflicting Rulings in the Kentucky district courts have initiated a debate over the constitutionality of the states strengthened Megan's law aimed at sex offenders. Judges Frank Trusty and Martin Sheehan claim that the new law does not apply the sex offenders who were convicted of their crimes prior to July of 2006. However the story posted on the WLWT website reports that judge Ann Ruttle has taken the opposite position. Kenton County Attorney Gary Edmondson plans to appeal the rulings of Trusty and Sheehan.

Medellin, Again


The Supreme Court granted certiorari in Medellin v. Texas, the case on implementation of the Vienna Convention and the decision of the International Court of Justice in the Avena case. The orders list is here. The Texas Court of Criminal Appeals decision is here, and our post on that decision is here. The U.S. Supreme Court's previous nondecision on federal habeas corpus is here.

In other SCOTUS action, the Court ruled 8-1 in favor of the police officer in the bumping-the-fleeing-car case, Scott v. Harris: decision here, video is here. We will have more on this multifaceted decision later today.

News Scan

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Civil Rights: A federal jury has rejected the claim that questioning an injured suspect without giving him a Miranda warning violated his civil rights. In 2003, the Surpeme Court narrowly rejected Oliverio Martinez's claim that he had a Fifth Amendment right to sue the police officer who questioned him after he was shot during a struggle. Thursday's federal district court decision is reported in an Associated Press story. The incident occured in 1997 when Martinez rode through a vacant lot in Oxnard, CA that was frequently used for drug transactions during a police stakeout. What the article doesn't report is that when the two officers stopped him for questioning, Martinez pulled a knife and then managed to grab one officer's gun. The other officer pulled her gun and shot Martinez, who admitted in the ambulance that he had been shooting up heroin that day.

Firearms Yesterday, Senator Frank R. Lautenberg (D) of New Jersey introduced a proposal that would refuse terrorism suspects from purchasing firearms if the suspect was found “to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism.” The New York Times story reports that the AG would have the final decision as to whether or not the suspect's purchase would be granted.

A step on a lawn gone wrong. Charles G. Martin, who shot and killed a 15-year-old neighborhood boy after the “little punk” walked on his lawn, was found guilty of murder Thursday in Ohio. 67-year-old Martin told police the boy had harassed him for years, called him names and embarrassed him in front of another neighbor. The sentencing date for Martin is May 23rd as reported by this Enquirer story.

Dangerous Head Cases: Dr. E. Fuller Torry has an interesting piece in today's Wall Street Journal addressing the mental health industry's penchant for playing down the dangers posed by some patients suffering from severe mental illness.

So much of the rhetoric these days about jail and prison inmates surrounds the purported high rates of mental illness among these inmates. Indeed, studies suggesting that nearly 700,000 inmates are afflicted with severe mental illnesses garner much attention. Yet, few have critically examined the studies used to back these claims. In a new paper titled What is the True Prevalence of Severe Mental Illness in Jails and Prisons? my colleagues and I take an in-depth examination of these prevalence studies and suggest that most of these studies -- while pioneering during their time -- are methodologically flawed and vastly misinterpreted. For instance, the most common study by the Department of Justice required inmates to answer affirmatively only to one of two questions to be classified as mentally ill: “Have you ever been told by a mental health professional that you have a mental illness?” or “Have you ever stayed overnight in a mental health facility?” Other studies included alcohol and drug abuse as well as antisocial personality disorder as mental illnesses when compiling their prevalence rates.

International Death Penalty Poll


Here are some interesting polling data from AP-Ipsos on the death penalty. The AP story by Alan Fram is here. The first question is "Do you favor or oppose the death penalty for people convicted of murder? Is that strongly favor/oppose or somewhat favor/oppose?"

Like most polls on the death penalty, this could be interpreted by some respondents as asking for a single punishment for all murderers, thus understating support for the death penalty for the worst murderers, which is the real issue. To the question as phrased, 42% of Americans said strongly favor, 27% somewhat favor, 17% somewhat oppose, and 13% strongly opposed. Combining the degrees, the result is 69% to 29%* overall, still overwhelming support. In Mexico, where the governing elites are constantly giving us static, the people are 71-26 in favor. South Korea comes in at 72-28. The U.K. and Canada are nearly evenly divided at 50-45 and 44-52, respectively. France is 45-52. Only in the former fascist countries does the opposition win big: Germany 35-62, Italy 31-64, and Spain 28-69.

News Scan

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Update: Gitmo detainees lost another round at the Supreme Court. Chief Justice Roberts denied their request for an extension to petition for rehearing of the denial of their certiorari petition and to suspend the order of denial. The AP reports here. Lyle Denniston at SCOTUSblog has this post and a faxed copy of the order.

Prison overcrowding: California legislators agreed on a $7.4 billion deal yesterday, in hopes of lessening our state’s overcrowded prison problem. Under the plan, 53,000 beds would be added to both California’s prison and jail facilities, additional inmate drug treatments, as well as vocational and education programs would also be available. According to this Sacramento Bee story, this two-phase deal would be completed in 10 years.

A Bill for Jessica: Mark Lunsford, father of Jessica Lunsford, who was kidnaped, raped and murdered in 2005, is urging North Carolina lawmakers to increase sex offender sentences. The Bill calls for a 25 year prison sentence for persons convicted of “certain sex crimes” and lifetime satellite monitoring for specific crimes, as reported by David Ingram of the Charlotte Observer.

One less Texas inmate? 30-year-old Ryan Dickson is scheduled to be the 13th inmate executed this evening in Texas, as stated in this AP story. Dickson, who has a criminal record dating back to his juvenile years, murdered an elderly couple after planning on stealing beer from their liquor store in November of 1994. Dickson killed the couple in cold blood, while his brother guarded the front door and two others waited outside, all were taken into custody.

The 'Innocence' Myth

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Colorado District Judge Morris Hoffman has this op-ed (subscription) in the Wall Street Journal. He estimates "the overall wrongful conviction rate at around 0.00065%."

Are Venirepersons Dumb?

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That's the underlying message in a forthcoming study in the respectable journal Behavioral Sciences and the Law (subscription required). The abstract states:

The purpose of this study was to investigate the role of death qualification in venirepersons' evaluations of expert scientific testimony in capital trials. 200 venirepersons from the 12th Judicial Circuit in Bradenton, FL completed a booklet that contained the following: one question that measured their attitudes toward the death penalty; one question that categorized their death-qualification status; the Need for Cognition (NFC) scale (Cacioppo, Petty & Kao, 1984); a summary of the guilt phase of a capital case (which included the cross-examination of the state's expert witness); verdict preference; five questions concerning participants' evaluations of the expert's testimony; the penalty phase of a capital case; sentence preference; and standard demographic questions. Results indicated that death-qualified venirepersons were more likely to demonstrate a low need for cognition and view ambiguous expert scientific testimony as valid, important in their decision-making processes, unbiased, and of high quality. Finally, death-qualified participants were more conviction- and death- prone than their excludable counterparts. Surprisingly, death-qualified and excludable jurors did not differ with respect to whether or not they felt that the expert followed correct procedures. Legal implications and applications are discussed.

The erroneous and completely biased conclusion of the study states:

"Almost 20 years ago, the United States Supreme Court ruled the death qualification process to be constitutional (Lockhart v. McCree, 1986). However, psycholegal research continues to suggest otherwise. Given the court’s historical ambivalence with respect to the death penalty, a reversal of Lockhart is well within reach. It is only after the process of death qualification is declared unconstitutional that we will be able to move toward truly protecting capital defendant’s Sixth Amendment rights (Grigsby v. Mabry, 1985)".

What is more telling, however, is the "science" involved in this article. Briefly, the authors gave perspective venirepersons a simulated death penalty case, an attitude survey, a manufactured cross-examination transcript of the expert witness (but no direct or re-direct transcripts), and a measure known as the Need for Cognition Scale (NCS). The NCS has been around for a while and is in the public domain. The reader can decide how much weight to give this simplistic measure and whether it accords with the sweeping conclusions offer by the authors.

Messing with Texas, Part II

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It is no surprise that the murderers won in Abdul-Kabir v. Quarterman and Brewer v. Quarterman. Given the Supreme Court's decisions in the past few years in Texas death penalty cases tried before the 1991 amendment to the Texas statute, it was to be expected that they would find a way to reverse. What is surprising and disappointing is the utter disingenuousness of Justice Stevens's opinion and, especially, the fact that Justice Kennedy would join it.

News Scan

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The Texas Death Penalty Cases, discussed in other posts in this blog here and here, are covered in this AP story by Mark Sherman.

The 5th U.S. Circuit Court of Appeals says that it will decide whether a death row inmate's constitutional rights were violated during his re-sentencing hearing. The issue here as reported in an AP story is what evidence a defendant can present when facing a sentencing hearing. Gerald James Holland, of Mississippi wasn't allowed to rebut the prosecutors' claim that he killed a woman while committing the crime of rape. The prosecution claims that once guilt has been established, the defendant cannot re-litigate that fact. Holland claims if the prosecution is allowed to present aggravating factors he should be able to counter those claims.

Mississippi Death Row inmate Earl Westly Berry has run out of appeals the 5th U.S. Circuit Court of Appeals said yesterday. Berry, a convicted murderer, has been on death row since 1998 for the brutal killing of Mary Bounds in 1987. An AP story reports that Berry confessed to the murder.

Messing with Texas, Part I

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In a trio of Texas cases today, the Supreme Court waded once again into a problem of its own making. In Jurek v. Texas, 428 U.S. 262 (1976), the high court approved the Texas "special issues" system for death penalty cases, in which the sentence depended on the jury's answer to two specific questions. Two years later, the same court issued its bolt-from-the-blue edict in Lockett v. Ohio, 438 U.S. 586 (1978) that the jury must consider whatever mitigation the defendant offers, without explaining the inconsistency between the decisions. Eleven years later, the court overturned a Texas judgment that complied with Jurek but violated Lockett in Penry v. Lynaugh, 492 U.S. 302 (1989). In the gap between the Penry decision and the Texas Legislature's amendment of the statute, Texas courts struggled to deal with the conflict between their previously approved statute and the new requirements.

Smith v. Texas, comes to the high court through the route of state habeas corpus. It addresses the question of when a state can subject a federal claim to its state procedural limitations on raising objections that were not raised at trial. This decision appears to be a narrow one, based on the unusual situation in this case. Justice Kennedy's opinion for the 5-member majority spends 14 pages on the procedural history.

Designing Death

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Steven K. Erickson, JD, LLM, PhD
Department of Psychiatry

Michelle L. Erickson, MD, MBA
Department of Pathology and Laboratory Medicine

Yale University

As mentioned previously, the open-access journal PLoS Medicine has an article claiming that current lethal injection protocols are problematic and audaciously calls for the abolition of the death penalty despite the authors declaimer that “our study is necessarily limited in scope and interpretation.” That limitation, of course, does not bar the authors and the editorial commentary from suggesting that lethal injection violates the Eighth Amendment’s ban against cruel and unusual punishment. Rightly or wrongly, what constitutes cruel punishment under the Constitution seems to be an evolving matter of legal interpretation. As such, getting the science right seems all the more important since the courts often turn to science to inform them of empirical matters when forming their interpretations. This, of course, presents problems since science is inherently exponential: we know more every day and what is thought as scientific fact today may be tomorrow’s scientific fad. Nonetheless, the authors of the PLoS article have raised some vital questions about the lethal injection protocols in several states that is worth commenting on.

Great Moment in Polling

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From an AP story on a North Carolina poll (emphasis added):

The poll found that 58 percent of adults support the death penalty, but only 48 percent said it's always the most appropriate punishment for those convicted of first-degree murder, according to researchers at Elon University.

Imagine that. Only a shade less than half support a death penalty law vastly more severe than the present law, under which only a small fraction of the most heinous murderers are sentenced to death.

The actual poll is here. "It depends," the answer that reflects the law actually in controversy, is a "volunteered" answer, yet over 10 percent gave it. In polling, the number who actually favor a position is greater than the number who volunteer that option when it is not given. This is a very badly done poll.

Dubious Decision from Colorado

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Yesterday, the Colorado Supreme Court decided the capital case of People v. Montour. Orin Kerr and Doug Berman have posts on this case. Orin notes one problem with the case. I also see another.

Ohio Execution

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On January 24, 1994, Lisa Huff Filiaggi was murdered, shot in the head by her ex-husband, who also attempted to kill her father. The sentence for this crime was finally carried out today. The governor's decision to deny clemency "has been a huge weight off our minds," said Lisa's mother, Ellen Jane Harris. Although the killer claimed at the last minute that execution by lethal injection would be torture, Mrs. Harris "said this morning she wishes her daughter had died as peacefully as her murderer did," reports Mark Puente in the Cleveland Plain Dealer.

The Ohio Supreme Court affirmed the sentence in 1999. The Sixth Circuit affirmed denial of federal habeas corpus a year ago. Filiaggi had instructed his attorneys to file no more appeals, but four days ago, he changed his mind and tried to join litigation challenging lethal injection procedures. The Ohio Supreme Court denied a stay yesterday.

Also yesterday, the Federal District Court dismissed with prejudice Filiaggi's belated attempt to join the lethal injection suit. The Prison Litigation Reform Act, enacted in 1996, requires that prisoners exhaust administrative remedies before turning to the federal courts. The Supreme Court confirmed last year in Woodford v. Ngo that if a a prisoner lets his time to file an administrative challenge lapse, he has lost the court suit as well. The district judge in Filiaggi's case held that because of this rule he could not prevail on the merits, and therefore the attempt to intervene was simply for delay. The Sixth Circuit affirmed.

Going Dutch on Lethal Injection

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Here, by way of comparison, is the euthanasia recommendation of the Royal Dutch Society for the Advancement of Pharmacy, a translation of which is available here.

Based on the information and considerations in Chapter 3, the KNMP's Euthanasics Task Force has amended its original recommendations as follows:

Parenteral administration
Intravenous administration is the most reliable and rapid way to accomplish euthanasia and therefore can be safely recommended.
A coma is first induced by intravenous administration of 20 mg/kg thiopental sodium (Nesdonal) in a small volume (10 ml physiological saline). Then a triple intravenous dose of a non-depolarizing neuromuscular muscle relaxant is given, such as 20 mg pancuronium dibromide (Pavulon) or 20 mg vecuronium bromide (Norcuron).

The present California protocol provides for 6.5 g or 6500 mg. That is more than triple the KNMP's recommended coma-inducing dose even for a 100 kg (220 lb) inmate.

The PLoS article in the news today cites the KNMP as authority for the proposition that pentothal alone is not recommended, but it curiously fails to mention what that organization does recommend.

The Washington Post article by Rob Stein notes at the end:

In an editorial accompanying the paper, the editors of the journal said they were not publishing the study in the hopes of prompting improvements to the protocol. Instead, they are hoping it will fuel a campaign to abolish executions.

Nothing is worse for science than being driven by a political agenda.

News Scan

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Free to Leave? An article in the New York Times by Linda Greenhouse discusses the high court review of Brendlin v. California here which updates our take on yesterday's oral argument (see below).

Non sequitur


Another research article is out regarding lethal injection, in PLoS Medicine. The article says, "the conventional view of lethal injection leading to an invariably peaceful and painless death is questionable." Who decided that was "the conventional view"? Following the article, the editors have a "What Do These Findings Mean?" paragraph. After quoting the above statement, it says this: "The Eighth Amendment of the US Constitution prohibits cruel and unusual punishment. The results of this paper suggest that current protocols used for lethal injection in the US probably violate this requirement."

The conclusion does not remotely follow from the premise. It would be logically valid only with another premise, that anything other than "peaceful and painless" constitutes "cruel and unusual." The editors cite no authority for this remarkable, unstated premise. The methods used from the time of the Eighth Amendment until very recently were certainly not painless. It is one thing to say we do not intentionally inflict severe pain. It is quite another to say we must guarantee a completely painless death. The Constitution does not require that.

Update: Orin Kerr has this post at VC noting the variance between the text of the study and the press coverage of it.

Disparaging Crime Victims

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The Washington Post kicks off National Crime Victims’ Rights Week by publishing an op-ed that actually begrudges the limited gains that victims of crime have made. The author, Washington criminal defense lawyer Barry Boss, fires off random shots at his various pet peeves, blaming them all on the victims' rights and "tough on crime" movements.

He blames being "tough on crime" for "6-year-olds being arrested for tantrums at school." Such arrests are nonsense, of course, but they have nothing whatever to do with a movement that called for adequate punishment of rapists and murderers. They are the product of a lack of common sense in schools, an entirely different problem. He also blames being "tough on crime" for innocent people being on death row. But toughness or laxity in sentencing has little to do with the accuracy of the guilt determination. Indeed, if we spent fewer resources on exhaustive psychosocial investigations of murderers' entire lives, we would have more to spend on being certain we have the real perpetrator in the relatively few capital cases where that is subject to doubt.

So what does crime victims' rights legislation actually provide? Not much, really. For example, 18 U.S.C. § 3771(a) provides a right to notice of what is happening, a right to be heard at critical decision points, and vague rights to restitution and to be treated with fairness and respect. That's it.  Victims cannot insist that charges be filed.  They cannot veto plea bargains. They cannot do any of the things that prosecutors do. Yet Mr. Boss objects that the law gives victims "the right to serve as de facto prosecutors." Hogwash.

Mr. Boss goes on to claim that the rights provided to victims are "mutually exclusive" with those provided to the defendant. This is simply false. None of the victims' rights stated in the law is contrary to the rights to jury trial, confrontation of witnesses, due process of law, or speedy trial.

Oh, yes, speedy trial. There is one more victim's right stated in § 3771:  "The right to proceedings free from unreasonable delay." And if you believe that is being respected, I'd like to sell you a bridge.

Traffic Stops & Passengers

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The transcript of oral argument in Brendlin v. California is now available. The question presented is whether a traffic stop of a vehicle amounts to a seizure of the passenger so that he has standing to challenge the legality of the stop. During petitioner's argument, it seemed that the case might be decided on a Wong Sun question of whether the evidence was so far removed from the alleged illegality that it would not be suppressed in any event. However, during the state's argument, the justices appeared to back off from that and return to the question presented. Orin Kerr has some first-hand observations at the Volokh Conspiracy.

Va. Tech and Mental Health

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The Virginia Tech shooting has prompted a number of articles on how society deals with mental illness. Jonathan Kellerman of USC has this article in the WSJ (free) discussing how the deinstitutionalization movement went too far, throwing the baby out with the bathwater. "Given the excesses of the past ... extreme caution is warranted. But like drunk drivers, we sway from one side of the legal road to the other and find the sensible center lane elusive. Unless we confront the unpleasant fact that the brains of a small percentage of our citizens incubate dark, disturbed thoughts that can blossom into vicious behavior, we can look forward to repeats of last week's outrage."

Columnist/psychiatrist Charles Krauthammer notes, "We decided a half a century ago that our more eccentric and crazy fellow citizens wouldn't be locked up in asylums easily. It was a very humane decision but with the inevitable consequence that some who really need protection and quarantine are allowed to roam the streets freely."

James Taranto at OpinionJournal.com discusses what "imminent threat" should mean. Not to be confused with what it legally means.

News Scan

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Ohio execution: The last minute attempts of Ohio murderer James Filiaggi to stop his execution have been rejected by the Ohio Supreme Court and the Federal District Court, reports Reginald Fields of the Cleveland Plain Dealer.

Convicted Sex Offender Kenneth Glenn Hinson was found not guilty in the dungeon rapes of two teenaged girls by a South Carolina jury. Hinson allegedly snatched both girls from their bedroom, put them in an underground room where he raped them, and then left them to die. However, Hinson claims that the sex was consensual and that the girls lied to get marijuana that was stored there. An AP story by Meg Kinnard reports that Hinson remains in custody on a federal firearm charge.

Death Row inmate Kenneth Eugene Foster of San Antonio lost his appeal to the Supreme Court to review the reversal of the 5th Circuit Court of Appeals decision which reinstated his death sentence. After being convicted of capital murder, a federal district judge accepted Foster's claim that the jury may have improperly sentenced him because he did not play a major role in the murder. Foster, a member of the Hoover 94 Crips street gang, was the driver in an all night robbery-shooting spree which resulted in the death of a 25-year-old man. AP writer Michael Graczyk reports that there is no date yet scheduled for Foster's execution.

News Scan

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Va. Tech & Guns: James Q. Wilson has this op-ed in the LA Times subtitled, "Why one reaction to Virginia Tech shouldn't be tightening firearm laws." The New York Times has a contrary view in an editorial yesterday.

Copycats: Three different incidents of copycats have already occurred after Monday's horrible killing spree at Virginia Tech. Matthew Yi's article in the San Francisco Chronicle reported on 28-year-old Jeffery Thomas Carney (Yuba City), who claimed he would "make Virginia Tech look mild." He turned himself in last night around 9:30. Reports came to Police Wednesday after Carney confessed to his Pastor and Aunt of possessing "an AK-47, poison, and explosives." Another incident in California was reported on by Allison Hoffman of the Associated Press. Cristobal Fernando Gonzalez (32) made a threat over his website that he intended to kill 50 students at San Diego State University. Gonzalez claimed he made the phony threat for more publicity to his site. If Gonzales is found guilty of "making a threatening communication via the Internet," he could get 5 years in prison and $250,000 fines. NASA's Space Center in Houston also had a scare after a gunman was reported at the center. The gunman "killed a male hostage and then himself." The complete article by Bruce Nichols can be found here.

Cop Killer Sentenced: Gang member David Hill (23) was sentenced to life without parole today for the 2004 murder of SFPD Officer Isaac Espinoza (29) and the attempted murder of his partner, Officer Barry Parker. Jaxon Van Derbeken, Marisa Lagos, and Wyatt Buchanan of the San Francisco Chronicle also report that jurors rejected a first-degree murder allegation. An enhancement, however, on his second degree murder charge for killing a police officer got him a life sentence without parole.

Gun Control: "Alameda County's ban on possessing guns at the Pleasanton fairgrounds" was upheld by U.S. District Judge Martin Jenkins yesterday. An article by Bob Egelko of the San Francisco Chronicle explains that gun show promoters believe the ban violates their Second Amendment right to own guns. The promoters' attorney, Donald Kilmer believes that the recent federal court ruling overturning D.C.'s handgun ban supports his clients' rights.

When the Supreme Court creates a new rule of federal constitutional law, to what extent is the retroactivity of that rule a federal question? On March 20, the Supreme Court asked for further briefing on that issue in its consideration of the pending certiorari petition in Danforth v. Minnesota, No. 06-8273. At SCOTUSblog, Lyle Denniston has this post and the state's brief.

Many rules in this area are already established. Rules governing substantive criminal law such as what acts can be made criminal and what punishments can be imposed for which crimes and on which defendants are fully retroactive. Thus, cases such as Lawrence v. Texas, 539 U.S. 558 (2003) and Atkins v. Virginia, 536 U.S. 304 (2002) have no retroactivity limitation. New rules of federal constitutional criminal procedure, on the other hand, will apply retroactively on direct review, Griffith v. Kentucky, 479 U.S. 314 (1987), but under the rule of Teague v. Lane, 489 U.S. 288 (1989), they do not apply on habeas corpus to cases that were already final on appeal when the new rule was created.

In theory, there is an exception to Teague for new rules that have the "the primacy and centrality of the rule adopted in Gideon..." [v. Wainwright, 372 U.S. 335 (1963)]. Saffle v. Parks, 494 U.S. 484 (1990); Whorton v. Bockting, slip op. at 14 (2007). How many new rules of Gideon magnitude have been created since 1989, and how many remain to be created? Zero and almost certainly zero.  This exception was born comatose, and the Court has come tantalizingly close to declaring it brain-dead, see Bockting, slip op. at 10, but it hasn't quite yet.

On both direct and state collateral review, the Supreme Court has reversed state courts for not giving the defendant the benefit of a rule that federal law requires be applied retroactively. Griffith was a direct review case, and Yates v. Aiken, 484 U.S. 211 (1988) reversed a denial of state collateral relief on nonretroactivity grounds. The state has no constitutional obligation to provide collateral review at all, but if it does (and all states do), it must give federal rules the retroactive application required by federal law, at least for the benefit of the defendant.

But if a state court decides to apply a new federal rule retroactively where Teague does not require it, is that decision reviewable by the Supreme Court as a federal question? Minnesota relies on the pre-Teague case of Michigan v. Payne, 412 U.S. 47 (1973) and on sweeping language from a civil retroactivity case, American Trucking Associations, Inc. v. Smith, 496 U.S. 167, 177 (1990).

The contrary view would likely be based on the idea that federal review of state decisions is for the purpose of protecting the citizens of the state from the state government, not for the purpose of protecting the state itself from its own courts. Justice Stevens has long asserted this view. See, e.g., his dissent in Michigan v. Long, 463 U.S. 1032 (1983). Congress originally gave the Supreme Court federal question jurisdiction in state cases only where the state court decision was against the federal right asserted, but that limitation is long gone. Federal question jurisdiction under 28 U.S.C. § 1257 is now symmetrical, giving the Court as much authority to correct state decisions that give overly expansive interpretations of federal rights as it has to correct overly restrictive interpretations. Justice Stevens did not prevail in Long or in the many cases since where the Court has exercised that authority in criminal cases. If the Court does take the case, I think Minnesota is likely to prevail on the merits.

One cynical strategy against the death penalty that we are seeing around the country these days is to pick out a worthy government function that is presently being underfunded and introduce a bill to cut or eliminate the death penalty and fund the other project. The fallacy is that pairing up budget items like this is artificial. An increase in any budget item could be funded by making cuts anywhere in the vast state budget. Sacrificing justice in the worst of all criminal cases would be needed only after all lower priority items have been eliminated from the budget, a circumstance which has not occurred in any state government in modern times.

The Colorado House of Representatives saw through this scheme and voted down, 35-30, a bill to cut state's capital case staff and fund a cold case unit instead. Funding a cold case unit is probably a good cause, but surely the money to do so can be found somewhere else in the budget. Alan Gathright reports for the Rocky Mountain News here.

News Scan

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During Justice Alito's confirmation, some of his detractors claimed he would be a clone of Justice Scalia. Persons of sense knew the claim was nonsense at the time, and recent decisions confirm that, as noted by Orin Kerr at the Volokh Conspiracy and Tony Mauro at BLT. Those who forget history are, once again, condemned to repeat it. The people who called Burger and Blackmun the "Minnesota Twins" ended up looking foolish, also.

Killer's Video: Steven Rubenstein, Henry K. Lee, and John King of the San Francisco Chronicle have an article today on the appropriateness of broadcasting Virginia Tech murderer Cho Seung-Hui's video that explains why he went on a killing rampage, and his comparison to Jesus Christ. The video was sent to the media during the two-hour time gap between the killings. The article gives different opinions on the video, stating that most believe the media is, "glamorizing this for people who will want to be copycats" (Anna Rodriguez).

Panetti News: News 8 Austin in Texas reported today on Panetti v.Quarterman, a case that CJLF has joined. The article explains that the Supreme Court could take "several months" to decide whether or not Scott Panetti will be sentenced to death for the murders of his in-laws in 1992. The Court must decide if Panetti is truly insane. A more in-depth posting by Kent Scheidegger on the Panetti case is here.

Attempted Burglary Strike: The Supreme Court in a 5-4 decision Wednesday in Washington, ruled that Alphonso James of Florida was "eligible for [a longer prison term] under the Armed Career Criminal Act." The Act provides that three prior convictions of violent felonies or serious drug offenses can qualify a defendant for a longer term. The defendant argued that attempted burglary should not be considered a violent felony. The full article by Pete Yost of the Associated Press can be found here.

Panetti Argument

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The transcript of the argument in Panetti v. Quarterman is available here. Some earlier posts on the case here include a note on this case and the Faretta rule, this post on the filing of the bottom side briefs, and posts here and here on the supplemental briefing.

News Scan

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U.S. Supreme Court issued a decision on the Armed Career Criminal Act on Wednesday. The law makes defendants eligible for longer prison sentences if they have been previously convicted of three violent felonies or serious drug offenses. Violent felonies are defined to include those that "present[] a serious potential risk of physical injury to another." See 18 U.S.C. § 924(e)(2)(B). According to this AP story, this decision makes it easier for prosecutors to seek an increased sentence for those who commit attempted burglary, which is a violent felony under that definition.

A Bill that would end sentences of life without the possibility of parole for teen killers barely passed a state California Senate committee on Tuesdaywith a 3-2 vote. In a SF Chronicle article by Mark Martin, Sen. Leland Yee supports the legislation by claiming juvenile's brains are still developing and the possibilty for rehabilitation after 25 years in prison is great. Critics are law enforcement groups that state these teens who commit horrendous crimes should pay behind bars for the rest of their life. The Senate Appropriations Committee will be the next to have a word on this measure.

Superior Court Judge Robert Spitzer of Riverside, California was deemed to have gone too far by a judicial panel for improperly intervening in the murder trial of Vondetrick Carr in 2004. An AP story reports that after the jury deadlocked, Spitzer held a private conversation with the mother of the 13-year-old victim who was also a potential witness for the re-trial. The judge also stood accused of continuously trying to persuade the prosecution to seek manslaughter instead of murder, among other judicial misconduct charges. This issue will now go before the state Commission on Judicial Performance where it will be decided whether or not to punish Spitzer.

Today the U.S. Supreme Court heard argument in Uttecht v. Brown, No. 06-413. The transcript is available here. The case is about challenges for cause to jurors on the ground that their views on the death penalty impair their ability to follow the law, see Wainwright v. Witt, 469 U.S. 412 (1985), but the case may turn on who has the responsibility for making the record.

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Virginia-Tech Update: Three articles were written in the Washington Post today discussing the massacre. The first article by Ian Shapira and Tom Jackman gives a more detailed recap of the events that took place yesterday. The gunman was said to be armed with "a 9 mm semiautomatic and a .22-caliber handgun, both with serial numbers obliterated." 7:15 a.m. he killed a young woman and her resident adviser in one of the dorms, then at 9:45 another shooting occurred at the science and engineering building (Norris Hall) shooting 30 faculty, staff, and students. Then took his own life. The second article by Alec MacGillis and Adam Kilgore brings up the issue of the two hour time gap between the shootings where students were not properly notified. It was not until after the killing spree at approximately 10:16 a.m. that students got an email telling them not to move. The third article by Dan Eggen and Paul Kane regarding the postponement of Attorney General Alberto R. Gonzales' testimony to the Senate Judiciary Committee due to the shootings. The New York Times also has three articles out. The first article by John M. Broder and Christine Hauser and the second article by Shaila Dewan focus on eye witness testimonies at the time of the shooting. The third article by Christine Hauser identifies the killer as Cho Seung-Hui, 23 a South Korean English Major.

Panetti Case: Howard Bashman collects articles on the Panetti case, to be argued tomorrow, at How Appealing. Our notes on the briefs are here and here.

N.Y. Addicts: New York is suffering a dilemma with their repeat addicts that come into "hospital detoxification units so often that dozens of them spend more than 100 nights a year in those wards." The article by Richard Perez-Pena of the New York Times, also pointed out that for every 30,000 patients, $300 million dollars was paid to the hospital for detox, and $50 million is spent on the first 500 most expensive patients.

Stealing From Law Firms A private investigator was sentenced to 2-1/2 years in prison and $307,103 in restitution for cheating several big U.S. law firms out of thousands, according to this AP story by Larry Neumeister. Michael Lair (46) of Montana "pleaded guilty to wire fraud earlier this year," and accepted around $200,000 from law firms pretending to have access to information on high profile lawsuits.

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32 Killed in a massacre on the Virginia Tech campus as reported by Sue Lindsey of the Associated Press. So far no motive has been discovered for the shootings committed by an unidentified gunman who killed himself before he could be arrested.

Implied Malice The California Supreme Court will soon decide if a San Francisco woman who's vicious 140 lb. dogs mauled a neighbor to death, can be found guilty of second degree murder. A Los Angeles Times story by Maura Dolan reports a superior court judge vacated defendant Marjorie Knoller's second degree murder conviction, deciding that she was not aware that taking her dogs out was likely to result in someone's death. After the judge's holding was overturned by the First District Court of Appeals, Knoller appealed to the state Supreme Court. The case was argued March 6.

Jury Selection: Lyle Denniston at SCOTUSblog has this preview of tomorrow's argument in Uttecht v. Brown, regarding challenges for cause to jurors in capital cases and review of those challenges on federal habeas corpus.

Death Penalty Notes

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California is building a new execution chamber at the Big Q, according to the Sacramento Bee. Cramped space and poor lighting were among the problems holding up long overdue justice for the 1981 rape and murder of Terri Winchell, then 17.

The Nebraska Legislature defeated an attempt to severely limit the death penalty, three weeks after turning down an outright repeal, according to this story in the Omaha World-Herald.

In Montana, efforts to revive a failed death penalty bill were also defeated, according to this AP story.

New York AG Andrew Cuomo will not support the Queens DA's valiant attempt to get the Court of Appeals to overrule its atrocious LaValle decision and reinstate New York's death penalty, the Daily News reports. Proceedings in People v. Taylor were previously noted here.

In Missouri, the House passed a bill touted as making the death penalty "mandatory" for cop-killers, but it really does not. Nor could it, under Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisiana, 431 U.S. 633 (1977).

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The Duke Debacle is the title of this editorial in the Washington Post. "[T]he Pavlovian politically correct response among some at Duke University, who bemoaned 'white privilege' and were quick to dispense with any presumptions of innocence, is embarrassing in hindsight." In hindsight?

IQ scores are not the main determinant when considering if a person is mentally retarded in death penalty cases, California Supreme Court ruled yesterday. Bob Egelko's article in the San Francisco Chronicle explains that "if a judge finds [the defendant] to be significantly impaired regardless of his IQ," the defendant can get up to life without parole. Jorge Vidal was charged with the murder and torture of Eric Jones. His pretrial hearing showed an IQ score of 78-92. The Supreme Court ruled that "all evidence about the defendant's 'intellectual functioning' must be considered under California law," not IQ alone.

Life without parole for Missouri serial killer Lorenzo Gilyard (56). He was convicted of the murder of 6 women after DNA testing from semen on the victims linked him to the crime. The article by Heather Hollingsworth reports that a bench trial agreement by Gilyard's defense, eliminated a death sentence. Gilyard is linked to 13 killings, but was only convicted of 6. He was acquitted for one of the 7 dropped because of only speculation on behalf of prosecution. The remaining 6 could be filed again.

$42 million racial discrimination suit was thrown out by the court of Appeals in Los Angeles. The suit by 500 L.A. County Police claimed that race was the reason officers received lower pay (70% minority) than officers in the Sheriff's Department (70% white), according to this AP story. The Court however found that "race did not bar...officers from applying for higher-paying Sheriff's Department jobs."

Mississippi Burning Case

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The Mississippi Supreme Court today upheld the conviction of Edgar Ray Killen for the 1964 killings of Michael Schwerner, James Chaney, and Andrew Goodman. The AP story is here. Killen's 1967 trial in federal court had ended in a hung jury. The decision goes through a number of issues, but the most interesting is the delay-in-prosecution claim. Vague allegations that witnesses have died and memories have faded don't cut it without pointing to specific testimony that is now unavailable. Then there is a remarkable passage:

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Immigration Dilemma: The Los Angeles Police Department is being sued over their policy that bars officers from investigating the legal status of suspects. This AP story by Peter Prengaman explains that officers who wished to remain anonymous, say the ban causes the same suspects to repeatedly come through the system who should have already been deported. The only time immigrations officials are notified of suspects is "if a suspect is a gang member who has been previously deported or if a suspect is arrested for a felony or multiple misdemeanors."

Self-Defense: A Sacramento man, Sou Saechin (42) will not be charged for shooting at three car thieves. Saechin was acting in self-defense when he shot one of the three car thieves he thought was going to attack him as reported in this Associated Press story. The thieves, 21 year old Larry Tran, 20 year old Marco Virelas, and the 17 year old thief shot by Saechin, were trying to break into his car around 2 a.m. at his home. Tran and Virelas "face charges of second-degree burglary and attempted grand theft."

New Bans On Sex Offenders: Elizabethtown, NC now has an ordinance that bans sex offenders from its parks and recreational areas. This article by Venita Jenkins of the Fayetteville Observer, explained that "sex offenders who violate the ordinance could face a $500 fine and 30 days in jail." The state law already prohibits offenders from residing within 1,000 feet of schools and day care centers; parks and community swimming pools are hoping to be added. Collier County in Florida will ban sex offenders from "shelters with the general populace" during hurricane season. The offenders instead will be housed in a separate shelter. The new ban will require offenders to inform police of their whereabouts before a storm and if they are leaving the County. The full article by Larry Hannan of Naples Daily News can be found here.

Fraud : Former NYU student Hakan Yalincak (22), who posed as a wealthy Turkish heir to solicit millions of dollars from investors for a "nonexsistent hedge fund" recieved a 3 1/2 year sentence according to this AP story by John Christofferson. Ayferafet Yalincak, Hankan's mother (52) was also sentenced to two years in prison for "conspiracy to commit wire fraud." The article also notes that U.S. District Judge Janet Bond Arterton has ordered Yalincak to pay $4.18 million dollars in restitution.

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Duke Rape Case: All charges have been dropped against the Duke lacrosse players accused over a year ago of raping an exotic dance during a party. The Associated Press story reports how North Carolina Attorney General Roy Cooper gave a damning assessment of how District Attorney Mike Nifong handled the case.

Sentencing law in California is being threatened by Senator Gloria Romero's SB 110, which would create a sentencing commission with the power to set sentencing policy. A story by Andy Furilo in the Sacramento Bee reports that Romero is touting the bill as a way to ease prison overcrowding, which suggests her commission would release inmates and shorten sentences.

Cold Case Challenge The San Diego District Attorney is asking the Court of Appeal to overturn a judge's 2005 ruling to dismiss charges against a man suspected of murdering his parents in 1980. The cold case unit of the San Diego PD built the case according to a story in The Union Tribune by Jose Luis Jimenez. In her ruling, Superior Court Judge Joan Weber decided that the defendant could not receive a fair trial due to the lengthy delay and poor investigation conducted by the police department. Before the appellate court the District Attorney argues that defendants are entitled to a fair trial but not a perfect one.

The Supreme Court of West Virginia has ruled that convicted murderer Anthony Ray Whitt deserves a new trial since he was denied his constitutional right to confront a witness during his first trial. An article in the Charleston Daily Mail by Justin D. Anderson reports that Whitt originally admitted to bludgeoning his father's mistress to death in 2001, but later changed his story once he found out the actual cause of death. Whitt attempted to call his former girlfriend, Lorie Day, to the stand but was denied since she invoked her Fifth Amendment right against self incrimination. The state's highest court found this to be reversible error. A dissent by Justice Elliott "Spike" Maynard is available here.

The New Jersey Supreme Court ruled on Wednesday that prosecutors can use evidence that is relevant to "consciousness of guilt" in the retrial of former NBA basketball player Jayson Williams. Reported in a story here, Williams allegedly attempted to conceal evidence by jumping into a pool and wiping down the shotgun that was used to shoot Costas "Gus" Christofi on Valentines Day in 2002. Williams was previously acquitted of aggravated manslaughter, but jurors could not reach an agreement on the charge of reckless manslaughter which he now faces in a re-trial.

Ninth Notes

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A couple of recent en banc actions in the Ninth Circuit are worth noting. Today the court denied rehearing en banc in the case of United States v. Black, 05-10640, a decision issued in October and amended yesterday. The case involves the question of when police responding to a domestic violence call can enter an apartment without a warrant due to exigent circumstances. The question produced some unusual alignments. Judges Betty Fletcher and Marsha Berzon split on the panel. The dissenters from denial of rehearing en banc were Judges Kozinski, Reinhardt, Kleinfeld, and Berzon.

On Friday, the court granted rehearing en banc to review a habeas opinion by Judge Reinhardt, with Judge Bybee dissenting, in Smith v. Baldwin, No. 04-35253. Judges Reinhardt and Hug find that Smith qualifies for the "actual innocence" exception to the procedural default rule by presuming as true facts they say the prosecution wrongfully prevented him from establishing. As noted previously, there is an encouraging trend in the Ninth to grant rehearing en banc in cases of panel decisions favoring the defendant or habeas petitioner, in contrast to the earlier unwritten rule that en banc was a single-edged sword, exclusively for overturning decisions favoring the state.

Panetti Supplemental Briefs

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The supplemental briefs ordered by the Supreme Court in Panetti v. Quarterman, No. 06-6407, have been filed. Our collection of briefs has been updated. The order, previously discussed here, called for briefing on the question of whether the habeas petition was "successive" within the meaning of 28 U.S.C. § 2244. The underlying question in the case is the standard for determining whether an inmate is mentally competent to be executed. The case will be argued April 18, a week from tomorrow.

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Double Death Penalty: DNA evidence has linked California death row inmate Robert Rhoades to the 1984 murder and rape of 18-year-old Julie Connell of San Leandro. Rhoades "has been charged with murder and with the special circumstance of rape." Rhoades is already facing the death penalty for kidnaping, torturing, and murdering 8-year-old Michael Lyons in Yuba City, according to Henry K. Lee's article in San Francisco Chronicle. The article also explains that if convicted, jurors will not be told that he currently on death row until the penalty phase of his current trial.

Sentencing Reform: Fulfilling the prophecy that if the death penalty were abolished, the bleeding hearts would seek to abolish life without parole, a San Francisco Chronicle article by California Senator Leland Y. Yee discusses his bill (SB999) that would abolish LWOP for juvenile murderers. Instead, they would receive a 25 year prison sentence before qualifying for parole. Yee, a child psychologist, believes that LWOP is inappropriate for juveniles because the brain is not fully matured until children are adults; meaning "impulse control, planning and critical thinking skills are not fully developed." He, of course, cites Roper v. Simmons where the court overturned the death penalty for 17-year-old murderers due to brain development. The bill will be heard in Senate Public Safety Committee April 17.

16-year-old Kenneth Bartley is being tried as an adult for the shootings of the Principal and two Assistant Principals at his rural Tennessee school on November 8, 2005. According to this AP story by Duncan Mansfield. One of the shooting victims was killed. Bartley was called into the Principal's Office at the Campbell County Comprehensive High School for questioning about reports of a gun in his possession. The boy, undoubetdly suffering from an immature brain, pulled out the gun, loaded it, and fired. Bartley faces life in prison for the murder and shootings.

Washington D.C. is asking for an en banc review of an earlier panel decision overturning the district's ban on handguns. The court had found that the restriction of keeping handguns in homes was a violation of the Second Amendment as reported in this story by Henri E. Cauvin of the Washington Post. An interesting column by Steve Goldstein in yesterday's Philadelphia Inquirer discusses the impact the DC gun ban has had on crime.


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Judge Posner has coined a valuable new term for frivolous arguments and absurd holdings. United States v. Sriram, No. 05-2752, is the case of a crooked cardiologist who swindled millions of dollars from Medicare, yet received "an absurdly light sentence of five years’ probation ... plus restitution of $1,258." Among the reasons given by the trial judge for this sentence was that "the government had violated the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over records of the defendant’s medical training." The records would have revealed the exculpatory (?) fact that defendant had been evaluated as a hopeless incompetent, a fact defendant was already aware of.

Sayeth Judge Posner, "The Brady claim hovers on the border of cloud-cuckooland." (Emphasis added.)

Hat tip to Doug Berman at SL&P, who "wonder[s] if cloud-cuckooland is anywhere near Apprendi-land." Cf. Ring v. Arizona, 536 U.S. 584, 613 (2002) (Scalia, J., concurring).

Crawford in California

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In People v. Cage, S127344, the California Supreme Court has issued its first major decision applying Crawford v. Washington, 541 U.S. 36 (2004) as clarified in Davis v. Washington and Hammon v. Indiana.

Cage was charged with assault by means likely to produce great bodily injury. Her son, John, was taken to the hospital with a 5-6 inch gash on his face and neck. There, he told the doctor and a police officer that his mother had inflicted the wound with a piece of broken glass. Applying the "purpose" language of Davis, the court held that the statement to the police officer was testimonial but the statement to the doctor was not. By the time the officer spoke to John, the confrontation was over and medical personnel were treating him for his injury. The officer's questioning of John was investigation, not emergency response, as in Hammon. On the other hand, the doctor's simple question, "What happened?" was for the purpose of determining treatment, not taking testimony.

Defendant made the creative argument that the California law requiring health professionals to report suspected child abuse transformed this medical inquiry into testimonial interrogation. The court rejected that argument.

The California court criticized and declined to follow the decision of the West Virginia Supreme Court of Appeals in State v. Mechling, 633 S.E.2d 311 (2006). That case held that a statement to a neighbor regarding what happened, made after the emergency was over, was testimonial. The California court reads Crawford and Davis as excluding from "testimonial" statements made without the solemnity and purpose associated with testimony. Nontestimonial statements are not limited to those made during an emergency.

As the police officer's rendition of John's statement was merely cumulative, the court held 6-1 that it was harmless error under the Chapman v. California, 386 U.S. 18 (1967) standard.

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The Kentucky Supreme Court will hear arguments this week concerning the request of Marco Allen Chapman to waive his rights to appeal in a capital murder case. According to a story in the Kentucky Post by AP reporter Brett Barrouquere, Chapman pleaded guilty to killing two young children and leaving their older sibling and mother to die in December of 2004. Chapman's defense is concerned that he may not be competent to make such a decision and therefore argue that this is a possible case of "suicide by court."

Virginia Death Penalty: Last Wednesday, the Virginia General Assembly overrode the governor's veto of a bill expanding the death penalty to persons who kill judges or witnesses, but oddly failed to override his veto of Virginia's "triggerman rule," under which a person who orders another to commit a murder is usually exempt from the death penalty. Our previous comment on this rule is here. Michael Hardy and Jeff Schapiro report here for the Richmond Times-Dispatch.

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Use of Force: When is it appropriate to use force? Two shooting incidents in Sacramento over the past week indicate the current policy, which permits deadly force in self defense but, criminalizes it in defense of property. A story by Ryan Lillis in the Sacramento Bee describes the two incidents.

The Texas' Juvenile System is the topic, once again, of a story by Sylvia Moreno of the Washington Post. The juvenile system is facing serious charges by the newly revised Texas Youth Commission. This came after reports of sexual abuse of juvenile wards by correctional officers and unfair extended sentences were made public. The story includes an interview with Joseph Galloway, a ward who was kept years beyond his sentence and claims he was sexually abused.

Strange Stuff A 17 year-old boy charged with sexually abusing and beating a 14-year-old girl in Washington is actually 30-year-old woman. Lorelei Corpuz had posed as a teenage boy and met the girl over the internet, convincing her that he was an orphan who's parents were killed. Disguised as the boy, Corpuz began living with the girl's family according to an Associated Press story by Gene Johnson. She has been charged "with two counts of third-degree child rape and one count of third degree child molestation and is being held in lieu of $150,000 bail.

Drunk driving An estimated 10,000 drunk driving cases in New Jersey depend upon the outcome of a state Supreme Court review of breathalyzer tests conducted with the Alcotest 7110. The Court is responding to a legal challenge by defendants claiming that the testing device is not reliable according to an Associated Press story by Angela Delli Santi.

DNA samples will be collected from all registered sex offenders in Tennessee if Representative Beth Harwell's bill becomes law. The bill "advanced out the House Judiciary Committee today," according to this Eyewitness News report from Nashville.

Packin Heat in Your Pickup A tradition in Texas, is under attack according to an article in the New York Times by Ralph Blumenthal. The issue has brought together an odd couple, the NRA and the ACLU, who have issued a report which "found that district and county attorneys have instructed police officers to 'unnecessarily interrogate drivers and arrest them or take their weapons,' even if they are legally carrying the gun.'" Legislation has been introduced which will require police to treat a motor vehicle like a home, with regard to the possession of a firearm without a license. The proponents cite the the case of 51-year-old oil-field geologist Keith Patton who was arrested after his unlicenced gun was discovered by Houston police during a traffic stop.

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DNA testing of probationers, required by the Justice For All Act of 2004, was upheld by yet another federal court of appeals, the Second Circuit, in United States v. Amerson. The opinion notes that the circuits are unanimous in the result, differing only in their rationale. (Hat tip: SL&P.)

Contempt of Court landed freelance writer and video blogger, Joshua Wolf, behind bars longer than any other journalist. An AP story by David Kravets states that Wolf was held in contempt for refusing to provide his video footage of a "chaotic 2005 street protest" where one officer was injured. Wolf was imprisoned for 226 days and was released yesterday after agreeing to turn over the uncut video.

The Supreme Court of Louisiana has postponed the trial of accused serial killer Sean Vincent Gillis until they have time to fully review the defense request to suppress his confession to police. According to an AP story, Gillis is suspected of committing a stream of vicious murders. He claims that, during questioning by police, he twice requested the presence of an attorney. His defense attorney argues that, because the questioning did not stop, his confession is inadmissible.

Justice was finally rendered to the California man who shocked the nation in 1983 when he doused his 6-year-old son with kerosene and set him on fire during a custody dispute with his ex-wife. The boy survived but remains badly disfigured. Charley Charles (formerly Charley Rothenberg) was released from prison in 1990 after serving just half of a 13-year sentence for that crime. He has been committing additional crimes ever since. A story by San Francisco Chronicle writer Marisa Lagos reports that Charles received his third strike for a weapons charge and will spend the next 25-years-to-life in prison.

Clint Bolick of the Goldwater Institute has this op-ed in the Wall Street Journal (subscription). Clint is a highly regarded guy in conservative legal circles, but, regrettably, this article may serve to muddy the waters of the debate over the proper role of the judiciary in American government through an extremely ill-advised misuse of the term "judicial activism."

Clint's main thesis is that judicial review is proper and necessary. "[C]ourts holding the president, Congress, and state and local governments to their constitutional boundaries ... is essential to protecting individual liberty and the rule of law." No argument there. The problem is that Clint refers to the function just quoted as judicial activism. Wrong, wrong, wrong, very wrong.

University of Pennsylvania law professor Stephen Morse and Judge Morris Hoffman have posted on SSRN, The Uneasy Entente Between Insanity and Mens Rea: Beyond Clark v. Arizona, commenting on last year's Supreme Court decision in Clark v. Arizona. As discussed here, Clark is a troublesome case and Morse and Hoffman have added their valuable 2 cents to the discussion. Their Article contains too many goodies to expand on here, but here's one good one:

There are no doubt many open conceptual and empirical questions about mental disorders, but the law routinely deals with cases involving people who suffer from them. One way to think of these difficult questions about mental state and blameworthinesses is to analogize them to electricity. Modern physics has exposed the foundations of elemental particles, including the electron, as a kind of mysterious expression of a set of strange and counter-intuitve physical rules; in some ways it seems the more we learn about quantum physics the more our macro-reality seems to be an illusion. Yet those foundational uncertainities hardly disable us from using electricity, or designing circuits.

Morse and Hoffman also do a good job of elucidating the problems with the Court's reasoning between insanity and mens rea. This piece of scholarship is worth reading. See also, Steven K. Erickson, Mind Over Morality, Buffalo Law Review, forthcoming; and Peter Weston, The Supreme Court’s Bout with Insanity: Clark v. Arizona (pdf), 4 Ohio St. J. Crim. L. 143-165 (2006).

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Guantanamo Trouble: As discussed in yesterday's post by Kent Scheidegger, the Supreme Court refused to hear the appeals of detainees at Guantanamo Bay. The 45 detainees wanted to challenge the Military Commissions Act of 2006 that restricts federal courts from hearing appeals from the detainees considered enemy combatants. The Supreme Court's denial means that detainees do not have the right to habeas corpus petitions. Two articles, the first by Linda Greenhouse of the New York Times and the second by Amy Goldstein of the Washington Post, further discuss the story.

The Right to Vote: Florida's Governor, Charlie Crist wants the reinstate the right to vote for convicted felons. Currently, Florida, Kentucky, and Virginia ban voting for all convicted felons according to an article by Abby Goodnough of the New York Times. Governor Crist may make it a provision for the felons to pay restitution to victims before receiving their voting rights. The article also points out that Florida can "grant blanket clemency to everyone who completes their sentence."

552 Texas Juveniles will be released starting tomorrow according to a story by Ralph Blumenthal of the New York Times. Thousands more are due for release but had their sentences extended; a revised Texas Youth Commission is reviewing those cases. This came after mistreatment and sexual abuse of the juveniles became public.

First death penalty trial for a woman in South Dakota began yesterday according to this AP story by Carson Walker. Daphne Wright (43) was charged with kidnap and murder of Darlene VanderGiesen (42), a friend of Wright's girlfriend, Sallie Collins. Walker is accused of hacking VanderGiesen's body with a chainsaw and burning it after killing her. Evidence includes receipts for a chainsaw and garbage bags two days after VanderGieson's disappearance.

Successive Petition Puzzler

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Nearly unnoticed between Gitmo and global warming, the Supreme Court issued this order in Panetti v. Quarterman, No. 06-6407, a case on mental competency for execution previously discussed here:

The parties are directed to file supplemental briefs addressing the following question: Must petitioner’s habeas application be dismissed as “second or successive” pursuant to 28 U.S.C. §2244? The briefs, not to exceed 15 pages, are to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Wednesday, April 11, 2007.

Didn't the Court settle this in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998)? Well, not quite.

Gitmo Cert. Denials

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The Supreme Court denied certiorari in the Guantanamo detainee cases, Boumediene v. Bush, No. 06-1195, and Al Odah v. Rumsfeld, No. 06-1196. Justices Stevens and Kennedy were evidently the swing votes, and they issued a joint opinion "respecting" (i.e., concurring in) the denial of certiorari.

The first reason they cite is the "traditional rules governing our decision of constitutional questions," meaning don't decide them unless and until it is truly necessary, citing Justice Brandeis's concurrence in Ashwander v. TVA, 297 U.S. 288, 341 (1936). Justice Breyer's dissent from denial of certiorari, joined by Justices Souter and Ginsburg, says the constitutional issues are ready for decision, as the D.C. Circuit has already decided that the Gitmo detainees have no constitutional rights, so there is nothing further to decide. In addition, the Suspension Clause right they claim is for the common law's speedy remedy for relief from unlawful detention.

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Drug Rehab: California's Proposition 36, adopted by voters in 2000 on the promise that rehab programs were more effective than jail time in dealing with chronic drug users, is failing miserably according a Los Angeles Times story by Jack Leonard and Megan Garvey. A study by UCLA researchers found that half of the drug users diverted to rehab programs don't complete it and one quarter never show up. "Some people, quite frankly, don't belong in Prop. 36," Angela Hawken, a UCLA research economist, told state lawmakers at a recent budget hearing. "They're going to fail. They're going to keep failing. We're wasting our money. And we're really ... putting our community in jeopardy by having them on the streets." Prop. 36 was patterned after a similar program in Arizona, which that state's Attorney General said was failing, seven years ago, when California voters adopted it. The lack of a sanction stick was a glaring deficiency of the initiative, obvious at the time of the vote. It was opposed by such certified Hollywood lefties as Carroll O'Connor and Martin Sheen, both of whom knew something about what it takes to keep an addict in treatment.

Quantifying evil gets a skeptical look from Adam Liptak at the NYT. (Hat tip: How Appealing.) The story describes the work of two researchers studying what kinds of murders are considered worse than others. It is not likely that this kind of scale will actually be used in sentencing, but trying to define numerically which murders are the worst comes up in discrimination claims as researchers try to "control" for the legitimate variables. Studying what factors actually cause jurors to render death sentences is worth studying for legislatures to refine their definitions of what is a death-eligible offense.

Marlo Thomas v. Nevada

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Our regular scan of the SCOTUS docket for new capital cases turns up the interesting name of Marlo Thomas v. State of Nevada, No. 06-10347. Notwithstanding our disagreements with That Girl on multiple issues of policy, a death sentence strikes us as a bit harsh.

But seriously, folks, the opinion below rejects Thomas's claims that Crawford v. Washington, 541 U.S. 36 (2004) applies to the penalty phase. The Nevada Supreme Court considers this claim separately as to eligibility and selection, and rejects it for both. For eligibility, this is an issue that SCOTUS will probably have to address at some point.

Indians and the Exclusionary Rule

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Guest Post by Thomas Gede

While the issue may be novel, the decision in People v. Ramirez (Calif. 3d DCA, 3/28/07) (finding a state court suppression remedy in a federal Indian civil rights statute for evidence seized by tribal police without probable cause from a non-Indian on Indian land) is rather strained. I do not see how the federal statute at issue constrains, preempts or imposes a duty on the state trial court or proceeding. The statute is the Indian Civil Rights Act, or ICRA, which was enacted in 1968, to address the presumed non-applicability of the Bill of Rights to the actions of tribal governments. The Supreme Court had made clear in Talton v. Mayes, 163 U.S. 376, in 1898, that the Fifth Amendment did not constrain the Cherokee Nation from using tribal grand juries whose number of members did not meet the requirements of federal constitutional law, and ultimately and more broadly, that the Bill of Rights simply do not apply to constrain tribal governments in their exercise of self-government. Congress simply restated the Bill of Rights, with certain important exceptions, as statutory law to bar tribal governments from violating the rights there stated. It is clear that the Bill of Rights still does not apply to tribal governments, but it is equally clear that Congress, exercising its plenary power in Indian affairs, does and did have the power to impose the statutory restrictions in ICRA as a limitation on the tribes' inherent powers.

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