May 2007 Archives

News Scan

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System leaves mother helpless -- Murder is the end result
Laws intended to protect the mentally ill have made it extremely difficult to involuntarily treat those who need it most, and they sometimes commit crimes as a result. See this mother's heartbreaking story by Cleveland's Plain Dealer columnist, Phillip Morris, regarding her efforts, with the help of local policemen, to keep her mentally ill son out of trouble.

Connecticut Senate: The state Senate in Connecticut passed Jessica’s Law on Tuesday by unanimous vote. The law, which now heads to the House of Representatives would call for a 25-year minimum prison sentence for persons convicted of certain sex crimes. Any offender who kidnaps or injures victims under 13 years of age and is convicted would be charged with an “aggravated sexual assault.” 5 and 10-year minimum sentences would also be enacted for any person convicted of pursuing victims under 12 years of age over the Internet. House Speaker James Amann’s spokesman stated that, “the legislation would likely be looked upon favorably by members of the chamber,” as reported by Dirk Perrefort with The News-Times.

Teen sentenced for 1998 Wai'anae murder
A 9-year-old murder case reversed in 2003 by the 9th Circuit finally ended yesterday with a 25-year sentence for the shooter of an Army Warrant Officer in 1998. Roberto Miguel, who was 17 at the time of the murder, was originally sentenced to life without parole but after the Court of Appeals overturned the case, a plea deal was set, lowering his sentence to 25 years. Peter Boylan has more on this story here from the Honolulu Advertiser.

Mario Claiborne, the petitioner in a Federal Sentencing Guidelines case presently before the U.S. Supreme Court, was killed by the victim as he assisted in stealing a truck. SCOTUSblog and SL&P have more. The case will be dismissed under Supreme Court rules. Instead of giving the victim a medal, the police have asked prosecutors to charge him with murder. They are considering it. Bill Bryan reports for the St. Louis Post-Dispatch.

Capital Cases for Child Rape

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Professor Berman has this post regarding Louisiana's Supreme Court recent affirmance of the death penalty for defendants convicted of child rape (Louisiana v. Kennedy, No. 05-KA-1981 (La. May 22, 2007)). There's lots of good debate about the constitutionality of the death penalty for sex crimes, but there's another aspect worth considering.

During the 1980s the numerous child daycare sex abuse cases captivated the public. These cases were aided, in large measure, by junk science -- notably the repressed memory movement and police interviewing techniques that influenced children to falsely report abuse. We've learned a lot about the fallibility of childhood memories since then and the notion of repressed memories has been roundly debunked .

Given this perilous past, which was aided by the quite understandable conviction by most adults to protect children and severely punish those who commit the worst crimes against them, perhaps some pause is in order with the current trend to invoke the death penalty for sex crimes against children. Irrespective of constitutional arguments, history is replete with emotionally charged movements seeking to invoke the power of law in the realm sex.

Update: Corey Yung has this post related to this topic.

IQ and the Death Penalty

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This post at Science Evidence discusses a recent death penalty case in California (People v. Superior Court (Vidal), 40 Cal. 4th 999, 155 P. 3d 259, 56 Cal. Rptr. 3d 851 (2007)). Briefly, defendant Vidal was charged with capital murder and he moved for a hearing regarding his alleged mental retardation. Vidal had received numerous IQ tests over the years producing various IQ scores. Vidal's experts claimed that Vidal's full-scale IQ score which did not fall below the gold-standard of 70 was an inaccurate indication of his true intelligence and argued that Vidal's Verbal IQ was a better gauge of Vidal's intelligence. The trial court accepted this view holding Vidal mentally retarded. Upon appeal the Court of Appeal reversed, holding the trial court's conclusion erroneous. Vidal appealed and the California Supreme Court reversed, holding:


That Vidal’s Full Scale Intelligence Quotient on Wechsler IQ tests (Full Scale IQ) has generally been above the range considered to show mental retardation does not, as a matter of law, dictate a finding he is not mentally retarded.


While the post's author finds the Court of Appeal opinion troubling on procedural grounds, from a scientific standpoint, the Court of Appeal got it right. Psychological tests are developed to be used strictly in accord with their formal scoring procedures. Any deviations risk the test becoming invalid and unreliable. It is true that verbal intelligence is considered by some to be a sufficient measure of intelligence for those with significant mental retardation. But the IQ test in question, the WAIS, is not designed to be used in this manner. Moreover, verbal measures of intelligence are considered by most experts to be less valid and reliable than measures that include performance tasks. To put it bluntly, the WAIS, which measures verbal and performance, is considered the gold standard in intellectual quotient assessment whereas exclusive verbal measures are frequently used not because of their superior psychometric properties but because they are fast and easy to use.

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Cunningham Aftermath: Bob Egelko reports in the SF Chron on the oral argument in the California Supreme Court yesterday in the Black and Sandoval cases, regarding how to cope with Cunningham v. California for sentences presently pending on appeal. The Legislature passed a fix for new cases.

Micro-stamping Guns? Measure AB1471 written by Mike Feuer (D) of Los Angeles was passed yesterday by the California state Assembly. The bill would impose that all semiautomatic pistols be fit with a mechanism that would micro-stamp the make, model and serial number on every single shell casing every time the pistol is fired starting with pistols sold in 2010. The bill now proceeds to the state Senate and if passed, California would be the first in the nation that would require such measure as published in this AP story by Don Thompson.

Indiana Supreme Court: Yesterday, the Indiana Supreme Court reinstated Ronnie Dontell Drane’s 85-year sentence for the rape and murder of Tamarra Taylor in 2002 (opinion here). Last year, the Indiana Court of Appeals reversed Drane’s February 2005 sentence because the case lacked sufficient evidence. Drane's murder spree continued and in October 2002, he murdered his 50-year-old aunt Delores Buchanan and 27-year-old cousin Larry Peaches, Jr., and six months later murdered another cousin, 31-year-old Herman Marcel Buchanan. Drane’s trial for the October 2002 murders will begin on July 30 according to today's Post-Tribune story by correspondent Ruth Ann Krause.

Sex Offender Registration regulations have been published in the Federal Register by US DoJ.

The Kevin Cooper case remains undecided 5 months after oral argument, notes Rod Leveque in this article in the Inland Daily Bulletin (Ontario, CA). This is the case that the concurring judges assured us "can be quickly and definitively determined by means of a simple test...." That was over three years ago, and every test he has demanded has confirmed his guilt. What is so hard to decide?

Balancing the Ninth

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"Yet this Administration has refused to take any steps to address our concerns about the need to maintain balance on the D.C. Circuit." So said Senator Patrick Leahy (D-Vt.) in this press release in 2003. Okay, Senator Leahy believes federal courts of appeals should be balanced. Got it.

Further, Senator Leahy believes that the Judicial Conference is correct that more appellate judges are needed, especially in the Ninth Circuit. According to this story in the L.A. Daily Journal, available through How Appealing, Senator Leahy will introduce legislation to add 67 district judgeships and 15 appellate ones, 7 of the latter on the Ninth.

To reach the logical conclusion, we need one more premise, but one that is not genuinely debatable among objective court watchers. The Ninth is presently out of balance, listing badly to the left. It is undebatable, that is, if one defines balance relative to the objective standard of the American median. Some people define balance subjectively, relative to themselves, so hard-core conservatives think the median voter is liberal, and hard-core liberals think the median voter is conservative. Objectively, the median is by definition the median.

So, the way to fix the judge shortage and simultaneously restore the balance that Senator Leahy says is needed, and is painfully obviously lacking, is to allow President Bush to name the 7 new judges.

According the story, the bill postpones the appointments until the next administration. One other proposition is perfectly clear. If President Obama, H. Clinton, or Edwards fills the seven new slots, the Ninth will be irretrievably lost for another generation, not just to the left but to the fringe. It was a similar expansion in the Carter Administration that created the problem in the first place.

You were saying something about "balance," Senator Leahy?

News Scan

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Prisons New York's Fishkill prison may be the first in the nation to maintain a dementia unit for inmates suffering from the mental illness according to this Associated Press story by Michael Hill. The average age of inmates in the unit is 62.

Night Stalker The U.S. Supreme Court has refused to hear an appeal challenging the conviction and death sentence of Richard Ramirez, as reported in this Associated Press story. Ramirez, nicknamed the "night stalker", was convicted and sentenced to death for the murder of thirteen people in the Los Angeles area between 1984 and 1985. The California Supreme Court's 2006 affirmance on the first appeal of this 1989 judgment (yes, really) is here.

Cop Killer The Supreme Court declined to review a Ninth Circuit decision which overturned the conviction and death sentence of Jackson Daniels, Jr. Daniels had been found guilty of the 1982 murders of two Riverside, CA police officers according to this Associated Press story. A Ninth Circuit panel concluded that his two trial attorneys were too inexperienced to effectively represent him, and that Daniels should have received a change of venue due to pretrial publicity.

Ohio Execution: James Taranto at OpinionJournal.com has this comment (halfway down the page) on the Ohio execution of Christopher Newton and the press coverage of its 16 minute duration. He notes that is at least 11 times more swift than Jason Brewer's death at Newton's hands.

The Panetti case hasn't been decided yet, but a minor detail like that won't stop The Onion from reporting on the decision. "The entirely indeterminate ruling is a first for the high court." Oh, if only that were true. (h/t SL&P)

Supreme Speculation: In the Washington Post, Robert Barnes compares opinion-author prediction to the board game Clue. Tom Goldstein compares it with Sudoku.

As discussed here, the hotly contested topic of criminal behavior among those with mental illness has endured a long and winding path among researchers, advocacy groups, and policymakers. For many years the standard mantra was that those with mental illnesses were no more likely to be violent than people in the general population. New studies have challenged that idea. Likewise, as discussed here, the prevailing notion of a mental health crisis in our jails and prisons is also under scrutiny. Yet, there is little doubt that some people with severe mental illnesses cycle through our criminal justice system. The question many ask is why? With intensive services like Assertive Community Treatment in existence since the early 1960s, some have begun to question whether management of psychiatric symptoms is enough for prevention's sake. A new article (subscription required) published in this month's issue of Psychiatric Services provides a new conceptual framework for thinking about the mentally ill offender. While some ardently argue against notions of legal leverage for persons with severe mental illness who cycle through the criminal justice system, such leverage appears effective and, as author Lamberti points out, suggests other mechanisms are at play besides untreated psychiatric symptoms among this subpopulation.

The U.S. Supreme Court denied certiorari this morning in Washington v. VanDelft, No. 06-1081, regarding the application of the Apprendi-Blakely line of cases to consecutive sentencing. The orders list is here. The certiorari petition is available here via SCOTUSblog.

Meanwhile, on the opposite coast, the California Supreme Court hears oral argument in People v. Sandoval, S148917. In People v. Black, 113 P.3d 534 (2005), Cal. Supreme had rejected the proposition that Blakely impacts consecutive sentencing in California. Although not squarely within the question presented (which is just how to cope with Cunningham on the upper term issue), Sandoval maintains that Cunningham requires reexamination of that aspect of Black as well. CJLF's brief is here. The consecutive sentencing discussion is on brief pages 10-14, pdf file pages 20-24.

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Death Sentence Upheld: The California Supreme Court has unanimously upheld the death sentence given to Andrew Lancaster for the 1996 kidnap and murder of Los Angeles radio personality Michael Taylor according to this Associated Press report. The Court's opinion is available here.

EcoTerrorist Kevin Tubbs received a twelve year prison sentence from a federal judge yesterday according to an Associated Press story by Jeff Bernard. Tubbs, 38, was the second member of an Oregon group called The Family to plead guilty to setting fires to stop logging. The group is suspected of committing terrorist acts in five states which caused an estimated 40 million in damages.

CJLF has submitted its comments on proposed changes to the Rules of the United States Supreme Court. Many of the changes are desirable and track changes other courts have made, such as replacing page limits on briefs with word limits. We are disappointed, though, that the committee has not recommended adopting the "7-day stagger" for amicus briefs from the Federal Rules of Appellate Procedure. The proposed rules continue to require that amici file on the same day as the party supported. Proper coordination of arguments can be a problem when the party is drafting its arguments up against the deadline, as happens occasionally, or is just uncooperative, as happens once in a great while.

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New Jersey: The Times of Trenton printed this letter to the editor by CJLF Legal Director Kent Scheidegger, responding to their anti-death-penalty editorial.

Update: The Enquirer reports that Judge William Walker of Ohio sentenced 67-year-old Charles G. Martin yesterday to life in prison without the eligibility of parole for 18 years. Martin shot and killed 15-year-old Larry D. Mugrage, Jr. in March of 2006 for walking on his lawn. Crime & Consequences first addressed this story on April 27th after Martin was found guilty of murder.

Death Penalty: Ohio executed habitual criminal Christopher Newton today for the 2001 murder of his cellmate according to an Associated Press story by Julie Carr Smyth. The execution took longer than expected due to Newton's obesity which made it difficult for the medical team for locate a suitable vein.

Goodbye Charlie: For the 11th time, California has denied parole to Charles Manson, the murderer who masterminded the Tate-LaBianca murders in 1969. An Associated Press story reports that Manson was also convicted of killing members of his Spahn Ranch commune Gary Hinman and Donald "Shorty" Shea. Manson will receive his next parole hearing in 2012. Manson's death sentence was overturned after the California Supreme Court "interpreted" the state constitution to forbid capital punishment, despite an explicit vote of the constitutional convention on the precise question.

The Florida Supreme Court has overturned the death sentences of two murderers as reported by Associated Press writer Bill Kaczor. Both murderers had killed their estranged wives. Christopher Offord's sentence was reduced to life without parole due to his long history of mental illness. The Court ordered a new trial for William Kopsho because his trial judge failed to dismiss a juror who believed that Kopsho should have been required to testify. The opinion in the Kopsho case is here, the opinion in Offord's case is here.

The emphasis of most discussions regarding sex crimes usually rests with male offenders. This makes a lot of sense since most estimates suggest that men are much more likely to engage in sex crimes. Yet, a new blog is doing a great job at chronicling the female sex offender (particularly female school teachers). While some may find the political commentary at the website one-sided, it's worth a read by anyone with an interest in sex crimes. One of frequent comments made by readers there is whether there is a double standard in our criminal justice system when it comes to female sex offenders. I have heard the argument that perhaps there should be a double standard since sex between adult women and adolescent boys doesn't appear linked with long-term psychological harm. But those claims fail to acknowledge that psychological research regarding long-term psychological harm from adult child sex is mired with methodological limitations. A very controversial study years ago suggested that available data showed little long-term psychological harm from adult-child sex in general. That study, however, used a research methodology called meta-analysis that has significant limitations itself.

Driving on the Left

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California State Senator Carole Migden (D-SF) has been a threat to public safety and to the lives and limbs of innocent people for some time now, but she carried it to a new level of directness Friday. The AP story by Don Thompson is here. Driving east from the Bay Area on always-crowded Interstate 80, she was driving so erratically that a half dozen motorists called 911. This was not multiple calls from one incident. The calls were spread over a 30-mile stretch from Berkeley to Fairfield. At one point she even hit the concrete barrier that divides the traffic in opposite directions.

Finally, on a surface street in Fairfield, Migden's state-owned SUV rear-ended a Honda sedan, pushing it into the van in front of it and sending Ellen Butawan and her 3-year-old daughter to the emergency room. Ms. Butawan's face is black and blue, but apparently neither she nor her daughter was seriously injured. Supposedly, Senator Migden was distracted by a ringing cell phone, but that doesn't explain the preceding 30 miles of reckless driving. Nor does it explain what Bob Jordan, driver of the van, reports happened next.

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ACLU AWOL? So contends Wendy Kaminer in this article in the WSJ (free site), critical of the ACLU's decision not to defend politically incorrect speech in several cases. "Once the nation's leading civil liberties group and a reliable defender of everyone's speech rights, the ACLU is being transformed into just another liberal human-rights group that reliably defends the rights of liberal speakers. This transformation is gradual, unacknowledged and not readily apparent, since evidence of it lies mainly in cases the ACLU does not take."

Inmate scheduled to die by lethal injection tomorrow in Ohio. According to today’s AP story, Christopher Newton left his hand print at the scene of an attempted burglary in hopes of going back to prison because he was on probation at the time. Once in prison, Newton sought the death penalty and in 2001 slammed cellmate Jason Brewer’s head into the wall and strangled him to death. Attorneys for Newton believe his mental disorders should spare him from the death penalty, but last fall he was found competent to “forgo his appeals.” If all goes accordingly tomorrow, Newton will be the 26th Ohio inmate executed since 1999. Newton’s rap sheet is on the Ohio Department of Rehabilitation and Correction website.

More Louisiana: Yesterday was apparently unique death row inmate day at La. S. C. Along with the child rape case, the court affirmed the death sentence of former policewoman Antoinette Frank, reports Gwen Filosa in the Times-Picayune. Frank entered the Vietnamese restaurant where she moonlighted as a security guard and killed two of the owner's children, Cuong & Ha Vu, and fellow moonlighter Ronald Williams. The issue in yesterday's opinion, which followed an earlier remand, was entitlement to a state-paid expert.

News Scan

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First Arizona Execution in 7 Years
In 1987, Larry Pritchard, a disabled emergency medical technician from Florida, was camping at Apache Lake in Arizona. Robert Comer murdered him, taking his "gear, his money, and even his dog." He also kidnapped and raped a 19-year-old woman. The Arizona Republic had this story Sunday on the crime and Comer's subsequent decision to drop his federal habeas proceeding. Their site also has the original story of Comer's capture in 1987. The Ninth Circuit decision is discussed here. Comer was executed this morning. He was the first inmate to be put to death in Arizona since November 2000 and smiled throughout his execution, as reported by kpho.com.

In Louisiana, the state high court upheld the death sentence of Patrick Kennedy for rape of a child, Kevin McGill reports for AP. The opinion is here. In Coker v. Georgia, 433 U.S. 584 (1977), the U.S. Supreme Court ruled that the death penalty was unconstitutionally disproportionate for the crime of rape of an adult woman but reserved the question of child rape.

OC Mother found beaten and daughter found dead
The San Jose Mercury News reports that the burned body of a young woman was found on a hiking trail hours after her bludgeoned, unconscious mother was discovered in the driveway of their burning Anaheim home early this morning. The father is missing and is at the center of an unfolding mystery involving arson, assault and murder.

AEDPA Blog

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The AEDPA Law and Policy Blog started up on May 15, "to track and comment on news and decisions of the Federal Courts regarding the Anti-Terrorism and Effective Death Penalty Act (AEDPA)." The blogger is identified only as "J." The blog has a different viewpoint than ours but should make interesting reading, and we welcome J to the discussion.

Habeas, Ma Bell, & 12(b)(6)

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Mere mention of the word "antitrust" is enough to make many criminal law practitioners' eyes glaze over. Nonetheless, today's Supreme Court opinion in Bell Atlantic Corp. v. Twombly, No. 05-1126 is worth reading for anyone who handles federal habeas corpus cases. For better or worse, the federal civil rules for disposing of cases before trial by summary judgment or dismissal for failure to state a claim are often imported into habeas via Habeas Rule 11, and today's telecom decision is an important case on the latter, FRCP 12(b)(6).

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Death Penalty: The Missouri legislature has passed a measure which would prohibit disclosure of the identity of state executioners according to an AP story by Cheryl Wittenhauer. The bill would allow anyone, including reporters, who discloses an executioner's name to be held civilly liable. State officials believe that the new law, if signed by the Governor, would make it easier for a doctor to assist in executions without fear of publicity.

Supreme Court The Associated Press has a summary of today's action in the high court. We like the decision in Los Angeles v. Rettele.

Murder Victims barely mentioned in many news stories reporting on executions are the focus of an interesting piece in the Arizona Republic by former Deputy Attorney General Steve Twist.

Weaver Case Drop-Kicked

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The Supreme Court today "dismissed as improvidently granted" the case of Roper v. Weaver, No. 06-313. The slip opinion is here.

The case involved prosecutor arguments in the penalty phase of a capital case that the defendant claimed were improper. The Missouri Supreme Court disagreed, but the Eighth Circuit agreed. The question before the Supreme Court was whether the Eighth had properly applied the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d). CJLF's brief, by Prof. Barry Latzer of the John Jay College of Criminal Justice, is here.

The habeas petitioner, William Weaver, contended that AEDPA never should have applied to his case. He filed a federal petition pre-AEDPA, but the district court dismissed it as unexhausted because a certiorari petition was pending to the U.S. Supreme Court from the state collateral review. That exhaustion ruling was clearly wrong under law going back decades. Certiorari to SCOTUS is not part of exhaustion of state remedies. The Eighth Circuit declined to interfere, and Weaver did not seek Supreme Court review. He refiled the petition after denial of certiorari in the state collateral case and after enactment of AEDPA.

Meanwhile, back at the ranch, two other defendants prosecuted by the same prosecutor making the same argument got relief in pre-AEDPA petitions. The difference in treatment of these cases is enough to convince five Justices to drop the case without resolving any questions of law. The Court did not decide whether AEDPA should have applied to the refiled petition. The Court did not decide whether the Eighth Circuit correctly applied AEDPA. The Court did not decide whether the arguments were actually improper. The only decision is that, in the quirky and unlikely to be repeated circumstances of this case, the Supreme Court will not interfere and Weaver gets a new sentencing hearing.

Chief Justice Roberts concurs in the drop-kick but not in the stated reasons. Justice Scalia dissents, joined by Justices Thomas and Alito:

A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today'’s cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trial——though that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit'’s grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away——as perhaps the Court’'s own opinion can——as the product of law-distorting compassion for a defendant wronged by a District Court'’s erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Court'’s failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit’'s decision just what it did unto AEDPA: ignore it.

The Brown's Chicken Case

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How could a jury decide against the death penalty for a murderer who killed seven people? The answer to the Brown's Chicken case is in this Chicago Sun-Times story by Eric Herman, Leonard Fleming, and Rummana Hussain. The jury as a whole did not decide against the death penalty. Illinois has the misguided single-juror veto rule, and a single juror held out. On a vote of 11 to 1, the decision of the 1 prevails over the decision of the 11.

The single-juror veto rule is often misleadingly called a unanimity requirement and misrepresented as being consistent with the tradition of unanimous verdicts in criminal cases. It is just the opposite. For the guilt verdict, the jury must be unanimous one way or the other, and the jurors must deliberate until they are unanimous or truly deadlocked. A hung jury does not result in an acquittal. That would be preposterous. Why, then, do so many people docilely accept such a rule in the penalty phase?

What happened in the penalty phase of this case is exactly the opposite of the deliberate-until-unanimous model for the guilt phase:

Jurors said they took only one vote. They did not press the holdout to change her mind and did not take another vote out of respect for her views, several jurors said.

The best way to handle juror disagreement is the way California does, which is the same as the guilt verdict. The jury must be unanimous to return a verdict. If they are truly deadlocked, it is a mistrial followed by a retrial of the penalty phase.

The arbitrariness in capital punishment today is not in who gets it but in who is arbitrarily let off. Retroactive changes in the rules are one major source of arbitrariness. The single-juror veto is another. States that have this rule should get rid of it.

The Sixth Circuit en banc has an interesting decision on when victim statements become "testimonial" as the incident progresses from a 911 call, the officers' arrival on the scene, the suspect's appearance at the scene, and further statements after that point. Judge Sutton, writing for the majority, holds that none of the statements are testimonial within the meaning of Crawford v. Washington, 541 U.S. 36 (2004). Judges Griffin and Cole concur in part and dissent in part, drawing the line between the victim's spontaneous exclamation upon the suspect's return and her further statements to police. The four dissenters would hold that all the statements are testimonial, even the 911 call made by the victim who had just left the house where she was assaulted with a gun and was just around the corner. The call is not testimonial, says Judge Moore, because the victim used past tense verbs and was not sufficiently chaotic. She displays an exceedingly narrow view of what constitutes an emergency.

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AGs or AsG?: Peter Lattman at the WSJ law blog announces a campaign to change "attorneys general" to "attorney generals." His other pet peeves include the punctuation of law firms and the name of New York's high court. Second the motion.

The Big Q: The Governator's staff forgot to include $117M for a new death row in their budget submission, reports Greg Lucas of the SF Chron. But if we are going to build a new one, why build it at San Quentin? "Because of the Bay Area's high labor and material costs and the engineering challenges of unstable soil at the proposed site the project would cost significantly less if built elsewhere, the legislative analyst concluded."

Thrill Killer: Also in Cal., the state supreme court unanimously upheld the death sentence of Eric Leonard. He was dubbed the "thrill killer" by Sacramento media because he killed robbery victims for no apparent reason. The state high court decided this first appeal nearly 11 years after the judgment, or about twice as long as the entire review process should take. Hudson Sangree reports for the Sacto Bee.

Research Notes

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Here are cites and quotes from the abstracts of some recent articles of interest:

John Wooldredge, Neighborhood Effects on Felony Sentencing, Journal of Research in Crime and Delinquency, Vol. 44, No. 2, 238-263 (2007): "Findings revealed that convicted felons from more disadvantaged neighborhoods were more likely to receive nonsuspended prison sentences, whereas a defendant's race was unrelated to imprisonment. By contrast, neighborhood disadvantage was unrelated to sentence length for imprisoned defendants, whereas African Americans received significantly shorter terms relative to Whites."

John Clark, Marcus T. Boccaccini, Beth Caillouet, & William F. Chaplin, Five Factor Model Personality Traits, Jury Selection, and Case Outcomes in Criminal and Civil Cases, Criminal Justice and Behavior, Vol. 34, No. 5, 641-660 (2007): "In the 17 juries that deliberated to a verdict (n = 285), high levels of juror extraversion were associated with not guilty verdicts or verdicts for the defendant, especially in criminal cases."

Wayne N. Welsh, Patrick McGrain, Nicole Salamatin, & Gary Zajac, Effects of Prison Drug Treatment On Inmate Misconduct, Criminal Justice and Behavior, Vol. 34, No. 5, 600-615 (2007): "The hypothesis that TC treatment alone would significantly reduce misconduct over time was not supported. Instead, changes in misconduct over time interacted with individual characteristics and time served posttreatment."

Crime, Poverty, and Causation

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The correlation between poverty and crime is well known, and it is often assumed that this correlation is completely explained with the assertion that poverty causes crime. Gary Becker has this post at the Becker-Posner Blog noting that causation can also run the other way: crime causes poverty, or at least it inhibits the ability of poor, crime-ridden countries to escape from it. Judge Posner's comment includes several points: decriminalizing acts that don't need to be crimes, eliminating economic restrictions that create the need for bribes, and increasing punishments for maximum deterrence.

Although Becker's post is addressed to international comparisons, there is a lesson for domestic policy as well. When people who claim to care about the poor undercut law enforcement, they are cutting the legs off the economic ladder that poor people need to climb out of poverty.

Texas Execution

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Deputy HudsonDeputy Sheriff Tim Hudson, then 61, was murdered in the line of duty 19 years ago. Long-overdue justice for this crime was finally carried out today. The AP report is here.

Charles Smith escaped from a Kansas prison, stole a truck, and headed for Texas. Deputy Hudson pulled over Smith and his cousin to investigate a report they had gotten gasoline and driven off without paying. Smith's first two death sentences were reversed by the Texas Court of Criminal Appeals, but the third one stuck.

Earlier, Deputy Hudson's daughter, Gwynn Hudson Simmons, wrote on the Officer Down Memorial Page,

I will be at the execution without a doubt and considering the murderer Charles Edward Smith has bragged about killing a cop since the day it happened, I will have no problem with justice being finally served for my Dad. It will not be a happy occasion for either family but this does uphold the message that we DO NOT tolerate cop killers in Texas. Now all we have to do is change laws the require us to feed and house and educate these criminals for 18 years before justice is served.

Charles Smith

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Supreme Bias is the title of Ed Whelan's review of the Merida & Fletcher biography of Justice Thomas, at National Review Online.

MySpace has revealed that they will not release the names of sex offenders using the site claiming that to do so would violate state and federal laws. An AP article on todaysthv.com states that eight attorney generals from different states made the request since MySpace is one of the most popular social networking sites, especially for young people. The chief security officer assured AG's that they are exercising every effort to ensure that sex offenders are removed from the popular network site.

Death Penalty: A federal judge in Tennessee has rejected the request of a Tennessee cop killer who did not want an autopsy preformed after his execution. Philip Workman executed on May 9, for killing a Memphis police officer in 1981, argued that his religious beliefs prohibited the autopsy. An AP story
by Rose French reports that the judge decided that the state's need to determine if the execution was preformed properly outweighed the murderer's request.

DNA Testing: The Georgia Supreme Court heard oral argument yesterday in a challenge to that state's DNA testing law, reports Carlos Campos in the Atlanta Journal-Constitution. Unlike the usual claim that the law sweeps too broadly, counsel for convicted rapist Kenny Quarterman contends that the law is too narrow. Only convicted felons who actually go to the slammer get tested, and that supposedly denies them equal protection of the law. Of course, equal treatment is only required for persons similarly situated. Those felons sent to prison have been adjudicated to be worse than those granted probation.

Cal. Injection Coverage: Henry Weinstein in the LA Times, Bob Egelko in the SF Chron, and Denny Walsh in the Sacto Bee.

Cal. Lethal Injection

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California's review of its lethal injection protocol and the revised protocol were filed today in the Federal District Court.

California Capital Verdicts

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Death verdicts were rendered in two California cases today, one in the north state and one in the south.

Robert Rhoades raped and murdered Julie Connell in 1984. She was 18. Rhoades is already on California's death row for killing 8-year-old Michael Lyons in 1996. "'It's a happy day for us,' Connell's mother, Kathy Connell, said outside court." Henry Lee reports here for the SF Chron.

In Romano v. Oklahoma, 512 U.S. 1 (1994), the defendant argued and four Justices agreed that it violates the Constitution of the United States to tell a capital sentencing jury the defendant is already on death row. Yet in the Rhoades case, defense counsel himself told the jury that. Was counsel incompetent? No, we are informed by reliable sources that he is an excellent lawyer. It illustrates the trivialization of the Constitution in capital cases that an argument could be seriously advanced and nearly succeed that a particular practice is so grossly unfair as to be a constitutional violation, when the same practice is actively employed by good defense lawyers as being favorable to the defendant.

Meanwhile, in the south state, serial killer Chester Turner received a death verdict from a Los Angeles jury, according to this story by John Spano in the LA Times. Over an 11 year span, Turner killed Diane Johnson, 21; Annette Ernest, 26; Anita Fishman, 31; Regina Washington, 27, and her fetus; Andrea Tripplett, 29; Desarae Jones, 29; Natalie Price, 31; Mildred Beasley, 45; Paula Vance, 38; and Brenda Bries, 37. Turner was previously convicted of raping another woman, and DNA linked him to the murders. "'It's been a long time coming, and justice, we know, has been served, but we'll always have a hole in our heart,' said Jerri Johnson-Tripplett after the hearing," quoted in this AP story by Robert Jablon.

News Scan

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Ted Olson, former SG, has this essay in National Review Online, explaining why "why this conservative Republican is supporting Rudy Giuliani for president." The reason is judicial appointments. "Rudy Giuliani, I am certain, will strengthen our judiciary and respect and preserve its independence by appointing judges who will equally respect the role of the judiciary and the limits on its authority." (Hat tip: How Appealing.)

The Gallup Poll finds that 51% of Americans approve of the job the Supreme Court is doing. That's a bit low by historical standards, but it is well above the approval ratings of the other two branches. The report is here, free for a limited time.

SCOTUS whimper?: Tony Mauro at Legal Times writes, "The Supreme Court returned from a two-week recess today with a whimper, not a bang. It issued only one opinion [Landrigan], and granted no new ones, still leaving undecided around 30 of the Court's cases argued this term. It's going to be a busy June."

Gang Crime is increasing according to U.S. Department of Justice statistics. A story by Associated Press writer Lara Jakes Jordan reports that Justice Department officials believe that an increase in violent crimes committed by teenagers contributed to the spike in the national crime rate reported last year.

Landrigan Coverage

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Update: Commenters over at SCOTUSblog suggest that Justice Stevens' dissent in Landrigan was originally the majority opinion, but Justice Kennedy switched over.

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Here is some press coverage on Schriro v. Landrigan, previously discussed here. First, Michael Doyle of McClatchy Newspapers notes the case as "the latest illustration of the conflicted relationship between the Supreme Court and the San Francisco-based 9th Circuit Court of Appeals." David Savage of the L.A. Times notes that angle as well as the close division on the Supreme Court and that Justice Kennedy sided with one group of four in the Texas cases and the other group of four in this case. Robert Barnes in the Washington Post writes, "The court's docket this term is heavy with death penalty cases, and the decisions have shown a court starkly divided on the issue."

James Vicini at Reuters emphasizes Landrigan's rejection of mitigation. Linda Greenhouse in the New York Times looks at Justice Alito's role. She notes that he wrote the Third Circuit decision in Rompilla v. Beard, in which his predecessor Justice O'Connor cast the fifth vote to reverse. It is true, as she says, that Justice O'Connor was the fifth vote to reverse in several capital cases involving ineffective assistance claims, but this case was easier than the others. Whereas Rompilla was merely unhelpful to counsel's efforts to find mitigating evidence, Landrigan actively opposed introduction of any mitigation. Justice O'Connor might very well have joined with yesterday's majority if she were still on the Court.

Michael Kiefer of the Arizona Republic notes that the decision puts Landrigan on Arizona's "execution short list," which also includes "volunteer" Robert Comer and Ronald Williams, presently in a West Virginia prison for two other murders.

News Scan

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Swing Vote: An interesting story by Robert Barnes in Sunday's Washington Post discusses Justice Anthony Kennedy's pivotal role in many of the Supreme Court's close decisions this year.

New York Death Penalty: The New York Senate will vote today on a bill which would restore the death penalty for those who murder police officers, according to a story from Fox News by Chris Silveri. The bill, S319 (Golden) would fix the deadlock problem cited by the Court of Appeals to overturn the DP in 2004, by requiring a life without parole sentence if the case of a deadlock. Update: Newsday reports the bill passed the Senate, though it is not expected to be voted on in the Assembly.

Stay Denied The U.S. Supreme Court has refused to stop the execution, scheduled for Wednesday, of Texas murderer Chris Edward Smith. Smith shot and killed a Pecos County Deputy Sheriff in 1988. The details come from a story in the Wichita Eagle by AP reporter Michael Graczyk.

New Jersey State Senator Gerald Cardinale has this article at NorthJersey.com. "Instead of proposing remedies, the [Death Penalty Study] commission recommended repealing the death penalty, claiming it was not a deterrent and too expensive to enforce. It is a circular argument. The lack of deterrence and escalating cost are the byproduct of the endless legal wrangling by death penalty opponents encouraged by sympathetic judges." "[J]udges have put their personal prejudices against the death penalty above the law and even the New Jersey Constitution. In 1992, by a three-to-one margin, the public approved a constitutional amendment that the death penalty is not 'cruel and unusual punishment.' The referendum was in response to the Supreme Court justices putting their personal beliefs ahead of the law."

Notes on Landrigan

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Today's decision in Schriro v. Landrigan notes, correctly in my view, that the habeas reforms of the Antiterrorism and Effective Death Penalty Act of 1996 must be interpreted bearing in mind the purpose of Congress to shorten the very lengthy reviews of capital cases. One of the most important issues to decide in the early stages of federal habeas review is whether a redetermination of facts is required. If the state court has already found the facts and the federal court need only decide if the application of law to those facts is "reasonable," the proceeding can be considerably streamlined. Today's decision says, "Because the deferential standards prescribed by §2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate."

If the case was decided on the merits by the state court and neither the factual findings nor the application of the law to those facts was unreasonable or contrary to Supreme Court precedent, the federal case is over. See 28 U.S.C. §2254(d). So, what should a district court do when the state court has made a factual finding that absolutely negates the petitioner's claim? "It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Proceeding with a hearing in such a case would defeat the purpose of the reform.

Landrigan Decision

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The slip opinion in Schriro v. Landrigan is here. The AP story is here. It's a tad disappointing that such a patently erroneous Ninth Circuit decision was only reversed 5-4, but a win's a win. CJLF's brief, written pro bono by Gregory Broderick of Downey Brand, is here. Doug Berman bemoans the undue degree of judicial attention going to capital cases at SL&P.

Update: CJLF's press release is here.

A new study in the journal Archives of General Psychiatry suggests that about 0.5% of children who were exposed to a traumatic event developed Post-Traumatic Stress Disorder later in life. While the study (like all studies) has its limitations, it suggests that the common notion that childhood trauma inevitably leads to adult PTSD may be in error. The Supreme Court has repeatedly held that childhood abuse must be weighed during sentencing phases of capital cases, presumably, under the notion that such abuse may affect culpability during adulthood.

Moral Judgement

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Is morality a matter of cerebral wiring? Today's Wall Street Journal has an interesting piece by Robert Lee Hotz which discusses a "medical experiment conducted recently by neuroscientists at Harvard, Caltech and the University of Southern California (which) strongly suggests these impulsive convictions come not from conscious principles but from the brain trying to make its emotional judgment felt."

News Scan

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The Indiana Supreme Court decided Thursday that the death penalty phase for cop killer Zolo Azania could move forward, reversing a lower court ruling that too much time had passed. According to a Post-Tribune article by Jon Seidel, Azania was convicted of murdering a Gary city Indiana police Lt. George Yaros in 1981 and has been resentenced twice, first for Ineffective assistance (1993) then due to a computer glitch which may have tainted the jury pool in 1996. .

The Boston Federal Court of Appeals upheld the death sentence for triple-murderer Gary Lee Sampson, who claimed that the trial judge erred by allowing photos of the victims and the crime scenes. The court sealed the decision for one week in order to allow attorneys to object to any material that should not be made public. Sampson is the first person in Massachusetts sentenced to death sentence under federal statute. An Associated Press story gives more details .

An accused rapist has gone free because Massachusetts law does not define intercourse by fraud or deceit as rape. AP writer Denise Lavote reports the victim's claim that Alvin Suliveres impersonated her boyfriend (Suliveres' brother) and initiated a sexual encounter with her. For the past half century Massachusetts law has defined rape as accomplished only through means of "force against the will of the victim." The court cited a similar case from 1959 and mentioned that the state legislature has had "ample opportunity" to amend the law to include fraud or deceit.

Innocent of Child Pornography?

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Numerous news sources in the U.K are reporting that up to 7,000 defendants accused of possession of child pornography may actually have been innocent because their credit card information was stolen or used illegally by an American company named Landslide. The story reports that a number of these defendants committed suicide after being accused of downloading child pornography. The increased use of wi-fi zones, which are easily penetrated by unauthorized users, seems also a particular danger since the encryption properties used in these systems (if any) are easily defeated.

News Scan

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Death By.... An exotic dancer on parole for drunk driving has been sentenced to a year in prison after she was captured on video tape taking drugs and engaging in sex with a man who died of a heart attack during the escapade according to this Associated Press story. At sentencing, the 31 year-old woman told the judge "This almost cost me my marriage." Almost?

Execution Stayed: The Texas Court of Criminal Appeals has narrowly voted to grant a last minute stay of execution to Jose Moreno according to an Associated Press story by Michael Graczyk. Moreno was convicted of the 1986 murder of 18-year-old John Cruz in Bexar County, Texas. After killing Cruz and burying his body, Moreno called his family and demanded a $30,000 ransom. The Texas Court which had previously deadlocked on his recent appeal, agreed today to stay Moreno's execution in order to hear it.

Resuming Executions in Florida

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The Secretary of the Florida Department of Corrections had a press conference yesterday regarding changes in lethal injection procedure. Coverage includes these articles by Linda Kleindienst in the Orlando Sentinel and Bill Cotterell in the Tallahassee Democrat. The DoC is rejecting attacks on the drug prescription, which the Drs. Erickson note here is bogus. The changes involve better training and other improvements to deal with only actual problem of making sure the drugs get into the bloodstream.

The department is also going to have the execution administered by a warden and execution team from a different prison than the one the inmate has been in. The reasons for this change are explained in this clarification to the warden's May 9 statement, curiously dated May 8.

The usual objectors make the usual objections. Ms. Kleindienst quotes Mark Elliot of Floridians for Alternatives to the Death Penalty saying, "It's absurd that the warden will be determining the depth of consciousness that can only be determined by a professional anesthesiologist." This is a transparent attempt to set up a Catch-22. Require the state to use doctors and forbid doctors to participate. We don't need precise knowledge of depth of consciousness to know that a person is far enough under to not be in extreme pain, which is all that is required.

Also on lethal injection, the AP has this story on an interview with Oklahoma Medical Examiner Dr. A. Jay Chapman, who developed it. There is also video of the interview available through the AP site.

Snitches Get Stitches

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That's the amusing title of this fascinating post from Psychology and Crime News about a new report from National Center for Victims of Crimes. The abstract:

Witness intimidation is a pervasive threat to the criminal justice system, particularly in crimes such as domestic violence, trafficking, and gang violence and drug trafficking. Yet few jurisdictions have developed a comprehensive response to the problem of witness intimidation. The study described in Snitches Get Stitches gathered information directly from youth on their views about gangs, reporting crime, relationships with law enforcement, and witness intimidation. The report contains ten key findings and six recommendations to help criminal justice authorities and communities better coordinate and focus their efforts to protect young witnesses to gang crimes.

The report is available for free here.

The Maryland General Assembly has passed a bill to make twice-convicted drug-dealer eligible for parole, according to this story by Lisa Rein in the Washington Post (h/t Corrections Sentencing). Apparently in Maryland parole can be granted after a mere quarter of the sentence has been served. Gov. O'Malley is undecided whether to sign it. "But he faces a conflict between his liberal sensibilities and his experience as a two-term mayor of Baltimore, where he saw daily homicides committed by drug addicts." That says a lot about "liberal sensibilities."

There is much discussion about the importance of treatment for drug addicts. But the devil is in the details. A mandatory treatment law must have teeth, or else it is just a fraud on the public, promising treatment but really just lowering sentences.

News Scan

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Tennessee Cop Killer Executed Phillip Workman was executed early today after his conviction for killing Lt. Ronald Oliver more than 25 years ago at a Memphis Wendy’s restaurant gun-battle in 1981. His execution had been delayed five times with the latest delay challenging Tennessee’s three-chemical injection procedure as reported by Rose French of the AP in this Washington Post story.

Shooting in NY Courtroom Leo Lewis, Jr. had been acquitted of charges of forcibly touching a 21-year-old woman, and during a court hearing over attorney's fees fired a sawed-off rifle at her. No one was injured but the shot narrowly missed the judge’s head. Jim Fitzgerald of the AP reports more on this story here. Though the small town of Sloatsburg just 40 miles Northwest of New York, has safety measures in place, it apparently does not include a metal detector.

Officers Volunteer to Protect Man who shot Teen Police officers are volunteering their time to protect Damon Wells whose home has been vandalized since he shot and killed Arthur C. Buford (15). Cleveland police said the 15-year-old was shot and killed when he and another man tried to rob 25-year-old Wells on Saturday night. Newsnet5.com reports that the family has been living in fear since the incident. NAACP President George Forbes said that "people have a right to be safe and secure in their home."

Man pleads guilty to rape, tied to crime by DNA Michael Vincent Gonzalez (24) has pleaded guilty to rape charges after police linked him to the crime by comparing DNA from an unrelated arrest in Monterey County. The Merced Sun-Star reports that Gonzalez broke into the Greenfield woman’s home wearing a mask, dragged her from the bed by her hair, then forced her into another room where he raped her at knifepoint.

Congressional Pardon?

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Doug Berman at SL&P discusses H.R. 563 by Congressman Duncan Hunter, also noted on the NYT's political blog. The bill provides, "It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated." These are the two Border Patrol agents convicted for shooting a drug smuggler.

If the bill were to pass and be signed by the President, which is unlikely, its constitutionality is doubtful under Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Deciding cases is the judicial power, and issuing pardons is executive. The legislative power is to make the law by which cases are decided, not to decide them. As Justice Scalia notes in Plaut, the Constitution's relatively strict separation of powers was adopted in reaction to the unhealthy mixing that was common in the states in the Articles of Confederation period.*

Constitutional questions aside, though, if Congressman Hunter and his 99 cosponsors believe that the verdict in this case is an injustice, and if they can actually pass a bill, why not do it the right way and clarify the substantive law? If the use of deadly force in these circumstances should not be a crime, then Congress can and should enact a statute saying so, applicable not only to these two officers but to all similarly situated.

PLoS Does It Again

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As mentioned previously here and here the group of journals collectively known as PLoS have published some controversial articles recently related to criminal law and science. Today, PloS Biology does it again with this article discussing the implications of modern neuroscience and the law. Time constraints prevent a detailed post today, but of particular note are the author's speculations that neuroscience findings question the existence of free will and their argument that neuroscience will revolutionize thinking about moral responsibility. These are popular claims these days, with many proponents offering colorful pictures of the brain as some sort of persuasive evidence that we're just products of the brain's biological outputs. And, of course, in some respects we are: all behavior is associated with some biological actions. Everyone has biological propensities of some sort; we do inhabit a biological body. But it's a far cry from saying that to suggesting that individuals cannot engage in free choice and rational decision making.


But that's just the beginning. The authors of the present study make several claims that simply don't deserve merit. For instance, they point to the use of fMRI as lie detectors but mostly neglect the mountain of empirical research that has demonstrated that fMRI's are not reliable and valid in measuring deception. Additionally, after discussing some findings suggesting a link between brain abnormalities and aggression, the authors next state that 25% of defendants examined for competency to stand trial are found mentally ill and cite this study (which is hardly epidemiological or representative). Of course, what the authors fail to mention is that the vast majority of incompetent defendants suffer from psychosis and not from minute defects of the frontal cortex or amygdala.

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News Scan

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The people of France elected the tough-on-crime candidate president yesterday. The Canberra Times reports, "As interior minister, he cracked down on drink driving, crime and illegal immigration. He promises tougher sentences for repeat offenders. He is intense, ambitious and blunt.... Visiting a crime-ridden housing project in 2005, he called young delinquents 'scum' and refused to apologise."

Stay Lifted: The U.S. Court of Appeals for the Sixth Circuit today lifted the stay of execution obtained in a rather blatant case of judge-shopping. Attorneys for Philip Workman got a stay from the Middle District of Tennessee, even though his case had previously been in the Western District. The opinion by Judge Sutton notes both the lack of probability of success and the extreme delay in bringing the case 9 years after Tennessee adopted lethal injection, 7 years after the normal review of the case was completed, and long after numerous other death row inmate had brought challenges to injection. The execution is scheduled for Wednesday.

Death Penalty A New Jersey Senate committee has become the most recent venue for a hearing to abolish the death penalty according to an AP story by Tom Hester. This is the logical next step following a legislative-appointed special commission's report in January that found the death penalty costs exceed that of life in prison and that it has no deterrent effect on murderers. Not enforcing the death penalty for 44 years might help explain its lack of deterrent effect in New Jersey. The report somehow also missed Kent Scheidegger's presentation which pointed out the the state's life tenured Supreme Court is the reason the death penalty is not enforced. NJ may well become the first state to abolish capital punishment since it's reinstatement 31 years ago.

Oklahoma will be the first in the nation to permit photo buttons of crime victims to be worn at trials if Gov. Brad Henry signs the bill. According to an AP article, Sen. Jim Reynolds introduced the bill and contends that the buttons will pass any legal muster. Although this issue is one that has previously reached the U.S. Supreme Court in 2006, it was not specifically addressed in Associate Justice Clarence Thomas' opinion when the death penalty for convicted murderer Matthew Musladin was reinstated.

Arizona Gov. Janet Napolitano signed the "Nicole Trazler" bill into law last month which requires that inmates serve longer prison sentences for felonies committed while incarcerated. According to an AP story, Trazler was shot to death on Mother's Day of 2006 by her high-school boyfriend Thomas Bliven. He was released from prison just months prior to this incident in August of 2005 for murdering another high-school girlfriend which he only served 14 years for. The mother of Bliven's second murder victim claims that if this law was already in place it could have prevented her daughter's death since Bliven had been written up for 57 major and minor violations while incarcerated.

News Scan

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Death Penalty: Indiana murderer David Leon Woods was executed this morning as relatives of the 77 year old man he murdered during a burglary looked on according to an AP story from the Indianapolis Star.

The unsolved murder cases of nine Massachusetts women between July 1988 to April 1989, are being re-opened by District Attorney Samuel Sutter. The remains of the nine women were found along the highway, and two more were never found. Now the property of former suspect Kenneth Ponte's previous home is being dug up, just to see if investigators can find anything specific to the case. The full article can be found here.

Leaning Towards Death: Jurors said Thursday that 32-year-old Alex Demolle should be sentenced to death for the strangling death and rape of 11-year-old Jaquita Mack in his Oakland apartment in 1999. The jury convicted Demolle of first degree murder with a special circumstance of raping a child in March. The news article of the trial by Henry K. Lee of the San Francisco Chronicle can be found here.

NYPD Trouble: An opinion article in The Wall Street Journal by Judith Miller discusses the federal lawsuits filed by protestors who were arrested during the Republican National Convention in 2004. The suits claim that police arrested nonviolent protestors merely because of their political beliefs. The allegations were based upon an analysis of 600 page "raw intelligence documents" and "summary digests of observations from both the field and the department's cyberintelligence unit" by a New York Civil Liberties Union official. The NYPD says that the surveillance of the convention was to make sure the protestors and New Yorkers were safe.

A common question posed to mental health researchers is whether people with mental illnesses are more violent than those in the general population. For years, the clarion call from advocacy groups was that the answer to this question was a flat "no". However, recent research is beginning to challenge that rather dogmatic view, and in so doing, has enveloped into a controversy. In particular, a recent study from the landmark National Institute of Health CATIE study suggests that for some people with mental illness the answer is yes. Of course, when examining the complex phenomena of mental illness and violent behavior a lot of caveats are in order.

News Scan

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Foreign Treatment: Mexican citizen Jose Medellin, on Texas' Death Row for murdering two teen-aged girls, may get a new sentencing hearing if the Supreme Court upholds a notification requirement of Vienna Convention on Consular Relations treaty, according to this editorial in the Los Angeles Times. Earlier this year the Texas Court of Criminal Appeals may have had the opportunity to settle Medellin's claim by announcing that its earlier review determined the lack of notification did not prejudice his case. Instead the TCCA made a separation of powers issue out of the case with one of its members accusing the administration of engaged in "unprecedented, unnecessary and intrusive" interference.

DNA to the Rescue: The Washington Post has an article out today by Darryl Fears about Jerry Miller, a black man convicted for the rape of a white woman in 1981 who proved to be innocent from DNA. He is the 200th person to be exonerated due to DNA evidence since 1989 and served 25 years in an Illinois prison for rape. It should be noted that DNA evidence has helped identify the guilty in may thousands of cases over the same eighteen year period including, for example, Dwayne Turner for the rape and murder of ten women in Los Angeles (see May 1 News Scan).

Drug Facility Dilemma: Insite, the first facility of its kind in North America (Vancouver, Canada) where drug addicts can shoot up their heroine and cocaine with clean needles with supervision of a nurse, may not be as successful as advertised. The Journal of Global Drug Policy and Practice along with other medical publications assert that Insite's reputation for "reducing overdoses, crime, and HIV risk behavior among injection drug users" have been overstated. Reduced crime is attributed to more police presence and needle sharing is only reduced if the users go exclusively to Insite to shoot up. The full article can be found here.

MacArthur Park Disorder: Los Angeles Police are under fire for inappropriate action at an immigration rally in MacArthur Park on Tuesday. Police Chief William J. Bratton believes the use of force by officers was due to the "dispersal order" announced from a helicopter above the crowd in English only. The editorial in the Los Angeles Times faulted the English only announcement suggesting that it could not be understood or heard over a loud helicopter.

Psychology and Crime News has this great post about the famous Stanford Prison Experiment. Briefly, the question posed is whether those who would volunteer to participate in a prison study are somehow unique, and thus, would bias the results. The answer is yes:

Volunteers for the prison study scored significantly higher on measures of the abuse-related dispositions of aggressiveness, authoritarianism, Machiavellianism, narcissism, and social dominance and lower on empathy and altruism, two qualities inversely related to aggressive abuse. Although implications for the SPE remain a matter of conjecture, an interpretation in terms of person-situation interactionism rather than a strict situationist account is indicated by these findings. Implications for interpreting the abusiveness of American military guards at Abu Ghraib Prison also are discussed.

The Situationists would have us believe that most behavior is determined by the situation a person is in and not their character or personality. The end product of such thinking is that most of us would engage in behavior X given the right circumstances. Yet, that position must overcome mountains of empirical research on personality and genetics. Revisiting the Stanford Prison Experiment shows us just how important sample characteristics are and why many social psychology studies suffer because they rely so heavily upon psychology undergraduate students.

Alabama Execution

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Update, 5/3 1:38PT: The Supreme Court denied a stay today, reports Garry Mitchell for AP.

The death penalty has been in a deep plane of anesthesia due to the litigation over lethal injection. Well, except in Texas.  But it may be coming out of it. Ohio carried out an execution April 24. The execution of Aaron Jones is scheduled for tomorrow in Alabama for the murder of Willene and Carl Nelson in 1978. Exercising the authority confirmed by the Supreme Court last year in Hill v. McDonough, the District Court denied the stay that Jones requested for his eleventh-hour attack on lethal injection, an attack he could have made years ago. The Eleventh Circuit affirmed. Jones has applied to the Supreme Court for a stay. The docket is here.

If method-of-execution claims brought by inmates nearing execution can be rejected on timeliness grounds, the value of such litigation for the anti side drops dramatically. On a full examination of the merits, the fact that we are now using more than triple the thiopental dose recommended for euthanasia by the Dutch pharmacists should be more than sufficient to refute any claim that the method is cruel. See also here. This is really about delay, not pain.

News Scan

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San Francisco's efforts to alleviate juvenile hall overcrowding by diverting less serious offenders to community facilities has hit something of a snag. Turns out the juvie hall is chock full of major offenders. "Officials were less willing to direct the youths into community-based alternatives to jail because they were arrested for more serious crimes, including robbery, assault and homicide, Chief Juvenile Probation Officer Bill Siffermann said" in this SF Chron story.

Lethal Injection Debra Saunders has a piece in yesterday's San Francisco Chronicle which is mildly critical of last week's PLos study on lethal injection. At one point she asks "Do those who argue that lethal injection is painful think that judges and voters are stupid?"

DNA: The Ohio Supreme Court has ruled that a law that gives district attorneys the authority to deny a defendant's request for DNA testing is unconstitutional as reported in an AP story by Andrew Welsh-Huggins. The court's ruling came in 1991 case in which the defendant pled guilty to raping a 13-year-old girl.

Terrorist In a one sentence order the United States Supreme Court has refused to hear enemy combatant Abu Abdul Rauf Zalita's petition to block his transfer from Gitmo to Libya, his home country. The court's action is reported by Jeannie Shawl in Jurist

For those who don't live the grant-funded research life, life may seem simple. But for those of us who do, it's far from it. Compared to other areas of academia, grant-funded research careers, housed mainly in the various academic medical centers, can be a tough life. This is because most medical centers mandate that all research faculty essentially self-support themselves though the continuous application and reapplication of grants though the National Institute of Health. Salary at most medical centers is not guaranteed by the university as it is at all law schools and colleges; rather, salary must be obtained through the NIH grants. That is why tenure means almost nothing at a medical center. No matter how "tenured" you may be, not obtaining a vital grant means that the university simply stops paying you and you quickly become unemployed. Since most NIH grants cover only around 10% of one's salary and last about 3 years, most researchers spend a lot of time applying for multiple grants to cover their salary and research expenses. This can be quite vexing to any young investigator thinking of a career in medical research. Unfortunately, times are getting worse.

The Order of Battle

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A third aspect of Monday's decision in Scott v. Harris has not received too much notice. It involves a methodological issue, and the mere mention of methodology is generally sufficient to make eyes glaze over. But it's important.

When a case presents multiple issues, as most do, is the court required to decide them in any particular order? Sometimes.  In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court decided that in qualified immunity cases the court should decide first whether the plaintiff's allegations make out a constitutional violation and only afterward decide if that law was clearly established so as to hold the police officer or other official liable for damages. There is considerable grumbling on the Court about that rule.

News Scan

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California Prison News: The recent legislation to solve overcrowding and recidivism in prison passed last week, has been taking some serious criticism. An article in the Los Angeles Times by Jenifer Warren explains what the bill will not do and how much it will ultimately cost. Christian Science Monitor's Ben Arnoldy also has an article critical of the new law. An opinion article in the Sacramento Bee by Daniel Weintraub does however, say that although the legislation may not fix all of California's correctional problems (i.e. parole and sentencing), it is "a good start."

U.S. Supreme Court ruling on the case Scott v. Harris case, mentioned in this blog by Kent Scheidegger, is the first of its kind in the Supreme Court because video footage of the "Hollywood-style car chase" was used to reach a decision. An article in the New York Times by Linda Greenhouse, another article in the Washington Post by Robert Barnes and a piece by David Savage in the Los Angeles Times provide examples of how the print media reported the decision.

Los Angeles serial killer Chester Dwayne Turner was convicted Monday of murdering ten women and the 6-1/2 month old fetus of one of the victims according to this article by John Spano of the Los Angeles Times. Turner raped and strangled his victims between 1987 and 1998. DNA evidence from a 2002 rape conviction linked him to the victims. Check with us later to find out if Snoop Dogg and Mike Farrell launch a protest to oppose a death sentence in this case.

Death Penalty Opinion: Radio commentator Mark Davis of ABC radio explained why he supports the death penalty in this article. He relates how he became an advocate for the death penalty after witnessing an execution by the electric chair in Florida in 1984 when one of the victim's family members said, "Twenty years from now, as I continue to miss holidays, birthdays, every day with my father, I don't want to think of him eating cafeteria meals and reading novels in the exercise yard."

Death penalty investigator Kathleen Cullhane has pleaded guilty of "forgery and falsifying documents on behalf of four death row inmates," according to this article by Louis Sahagun of the Los Angeles Times. Cullhane filed false declarations on behalf of witnesses, jury members, police, and court interpreters seeking clemency for the condemned murderers. Her defense said her actions were in large part because of "her lifelong anti-death penalty beliefs."

Bernard Harcourt of U. Chi. is guest-blogging at the Volokh Conspiracy and has this fascinating post on the relationship between total incarceration rate -- both prisons and mental hospitals -- and homicide rates