June 2007 Archives

Gender and Domestic Violence

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Nearly twice as many women as men said they perpetrated domestic violence in the past year.

That's the quote from a new study discussed at Dr. Helen's blog. The abstract also reports no association between domestic violence and alcohol or drugs of abuse. The study was published in the journal Violence and Victims.

I find the lack of association between domestic violence and alcohol use hard to believe. I suspect this finding may be related to the methodology used in the study. Any experienced police officer will tell you that alcohol and domestic violence go hand in hand.

Crack/Powder Proposals

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It's been clear for some time that Congress overreacted to the crack "epidemic" in the mid-1980s by providing the same sentence for 5 grams of crack cocaine as for 500 grams of powder. Stated another way, a major pusher with 499 grams of powder cocaine gets a lower sentence than a smaller fish with 5 grams of crack. Though it is generally agreed something needs to be done, there has been deadlock on exactly what to do.

Senators Sessions, Pryor, Cornyn, and Salazar have introduced S. 1383, available through Thomas. This bill reduces the powder threshold for the mandatory minimum from 5kg to 4kg and increases that for crack from 5g to 20g, leaving a 20/1 ratio. The bill also seeks to increase the sentencing spread between leaders and minor followers in drug enterprises, directing the Sentencing Commission to increase the former and decrease the latter.

Senator Biden has introduced S. 1711 (hat tip, SL&P). The text isn't on Thomas yet, but his introductory remarks are in the Congressional Record at S8614-S8615. One historical nugget in his remarks: The Reagan Administration proposed a 20/1 ratio. It was Sens. Biden, Byrd, and Dole who upped it to 100.

Deterrence Notes

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Here are a few articles of interest on the deterrence front. Charles Keckler of George Mason U. has this article in the Journal of Law, Economics & Policy on the question of which kinds of potential murderers are most likely to be deterred. He suggests targeting sentencing accordingly. However, it is important to keep in mind that deterrence is not the sole purpose, and imposing the greatest punishment on those most deserving of punishment is also important. The JLEP is not a peer-reviewed journal and therefore this article does not qualify for our deterrence abstract list, but it's worth noting. Update: See correction here.

Fred Thompson has this article in Town Hall.

John Lott has this article at FoxNews.com. He takes issue with the objection that the chance of being executed is so small that no one is likely to consider it, noting that in other situations people do change their behavior in response to very remote risks of death. It is also worth noting that the percentage probability of execution need not be to the right of the decimal point. The State of Delaware executed 1.5% of murderers in the period from restoration of capital punishment through 2004.

News Scan

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Death Penalty: The California Supreme Court has unanimously upheld the death sentence of a Los Angeles man who strangled his 68 year old mother to death after sodomizing her as reported in this Associated Press story. The Court's opinion in People v. Frank Manuel Abilez is here.

Kansas Murderer Dennis Lee Cook, who was convicted of murder in 1982 and released from prison in 2000, has been arrested for the murder of Alyssa Heberton-Merimoto, a University of Colorado student. An Associated Press story by Eric W. Bolin reports that the victim's cries for help were heard over a two-way radio by Karen Houck, who was supervising summer interns mapping a national forest 75 miles from Denver. The girl's body was found last Tuesday.

A Hot Dog Arizona State police officer on patrol near Tucson erroneously pulled over the Oscar Meyer Wiener Wagon after running the plate (YUMMY) and getting a bogus report that it was stolen. Details come from an Associate Press story in the Arizona Daily Star.

News Scan

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Releasing Felons: Two federal judges held a hearing on Wednesday where inmate rights advocates argued that prison overcrowding in California requires the early release of 37,000 felons from prison. A Sacramento Bee article by Andy Furrilo reports that Judges Thelton Henderson and Lawrence Karlton may be on the verge of recommending that a three judge panel be convened to decide if an inmate release should be ordered. The recommendation would be made to the Chief Judge of the Ninth Circuit, who would choose the members of the panel. If the panel ordered that inmates be released, the state's appeal would bypass the Circuit and go directly to the United States Supreme Court as provided by The Prison Litigation Reform Act of 1995, available here, and the statutes on three-judge courts, 28 U.S.C. § 2284, and appeals from their decisions, 28 U.S.C. § 1253.

British Crime Numbers: The British organization Civitas claims that the British Crime Survey seriously understates the crime rate in that country by arbitrarily excluding repeated crimes against the same victim, Philip Johnston reports for the Telegraph. This is one of the factors that make international comparisons problematic. Statistics are gathered with different methodologies.

Panetti Punt

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Can Scott Panetti be executed for the murder of his wife's parents, Joe and Amanda Alvarado? We don't know. What is the standard for determining mental competence for execution? We don't know. Can a condemned murderer omit any claim of incompetence in his first federal habeas petition and then claim incompetence in a new petition without meeting the stringent requirements set by Congress for "second or successive petitions"? Yes, but he probably has to ask the state court first, and Congress's limits on relitigation will apply if the state court doesn't blow it.

That's pretty much what today's decision in Panetti v. Quarterman says. Procedural issues are resolved largely as expected, but the substantive Eighth Amendment question is not resolved. Justice Thomas in dissent calls this decision "half-baked."

The bright side of today's opinion is that Justice Kennedy makes clear we are talking about psychotic disorders, not the broad sweep of "mental illness" as including every collection of behaviors that has a code in the APA's Diagnostic and Statistical Manual (DSM). Here is the best part:

Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It is a psychotic disorder.

Here are articles on the case by Pete Yost of AP and Charles Lane of the WashPost.

News Scan

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DNA test under fire by Atlanta Child Murderer
CNN reports that the notorious Atlanta Child Murderer is still fighting against DNA test conducted by a UC Davis lab. The result, which showed a significant match to the seven hairs found on the bodies, containing the same DNA sequence as Williams' dog Sheba. Wayne Williams terrorized Atlanta's African-American neighborhoods from 1979 to 1982 when more than 25 children were missing or found murdered. He was later convicted of murdering Jimmy Ray Payne 21, and Nathanial Cater, 27. His arrest put a sudden halt to the string of murders, however, Williams continues to deny his guilt to this day and will likely never confess to the gruesome Atlanta Child Murders that occurred 25 years ago.

Death Row inmate "deserves" another hearing to determine retardation says the 8th Circuit
Jill Zeman of The Pine Bluff Commercial reports that the 8th U. S. Circuit Court of Appeals ruled Wednesday that an Arkansas death row inmate convicted of killing two grocery store clerks should have a chance to prove he is mentally retarded. Since the 2002 case of Daryl Atkins "created a previously unavailable claim based on the unconstitutionality of executing the mentally retarded" the court is sending the case back to the Arkansas federal court.

Appeal rejected for Police killer
A three-judge panel of California's First Appellate District unanimously rejected Joseph Teitgen's appeal from the Solano County trial court which sentenced him to serving multiple life prison terms for murdering a police officer and attempting to murder two other officers on the afternoon of April 12, 2000. The decision pointed out that "As our Supreme Court has stated: 'Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice.' " Brian Hamlin of The Reporter has more on the story here.

News Scan

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Update: All three inmates were executed yesterday evening as reported by News Editor Robbie Byrd with The Hunstville Item in Texas.

Three executions by lethal injection today:
Triple-murderer John Washington Hightower is scheduled to be executed today in Georgia for murders he committed almost 20 years ago. Hightower killed his wife, Dorothy Hightower and two stepdaughters, Evelyn Reaves and Sandra Reaves in July of 1987. Hightower’s clemency has been denied today by the state pardons and parole boards, as reported in this 13WMAZ news story with information from the AP. With appeals still pending, Jack Martin, Hightower’s attorney, believes his client should live because he’s “tried” to redeem himself while in prison. It has been almost 2 years since a Georgia inmate has been executed.

After having a disagreement with Doyle Windle Rains, an Oklahoma resident in 1996, Jimmy Dale Bland murdered Rains by shooting him in the back of the head. Bland, who will be put to death by lethal injection this evening, has terminal cancer and is expected to live only months. Bland’s attorney filed a motion with the U. S. Supreme Court on Sunday, stating that the execution “would violate the U. S. Constitution’s 8th amendment, which prohibits ‘cruel and unusual punishment.’” The published Reuters story indicates that if the execution is carried out, Bland would be Oklahoma’s second inmate executed this calendar year.

Patrick Brian Knight was drunk and high on drugs when he broke into his neighbors Texas home and waited for their return on August 26, 1991. After Walter and Mary Ann Werner arrived home from work, Knight forced them into their own basement, then proceeded to bound, gag and strangle the both of them the following day. As if that weren’t enough, Knight drove them 4 miles away and fatally shot the both of them execution style. As reported in this AP story, Knight has reportedly decided to tell a joke before being put to death this evening. If all goes accordingly, minus the joke, this will be the 18th inmate execution this year in Texas.

The new issue of the Journal of the American Academy of Psychiatry and the Law is now available on-line and is freely available for the time being. There are two articles worth noting.

The first profiled here is a new paper examining the myth surrounding the notion of antipsychotic drugs as "mind controlling" agents. That paper has been published here.

The second paper by Thomas Grisso, Ph.D. from the University of Massachusetts Law-Psychiatry Program titled "Progress and Perils in the Juvenile Justice and Mental Health Movement" explores the ever-changing field that is the juvenile justice system.

Remaining SCOTUS Cases

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Update, 8:33 am PDT Monday: Five down, three to go. No Panetti.

The remaining cases will almost surely be handed down Thursday. They include Jefferson County, a very controversial case on race and schools, which will be the focus of press coverage. The third case is Leegin Creative, an antitrust case on vertical price-fixing.

Playing the SCOTUS Sudoku game, Panetti is the only undecided case from the April calendar, and Justices Kennedy, Souter, Ginsburg, and Alito are the ones who have not written two opinions from that sitting. Not much of a clue there. Justice Kennedy has written one fewer than the others for the term as a whole.

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Mark Sherman of AP has this article on the 8 remaining U.S. Supreme cases for the term. Panetti, the only criminal case, is described briefly at the end of the article.

Are Brain Scans All the Rage?

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This post from Psychology and Crime News links to this ABC Radio National story about the purported widespread use of brain scans in criminal cases. A quote from the MP3 file available at ABC (emphasis added):

‘But officer, my brain made me do it!’ Brain scans are becoming commonplace as evidence in US courts, in the bid to convict offenders or free them. But is the technology half-baked? Can we biologically categorize people as criminals - mad, bad and dangerous to know? Free will, privacy and personal responsibility are all up for grabs in the collision between science and the law.

There have been a number of stories lately suggesting that brain scans are frequently used in criminal cases. I'm a bit skeptical of these claims and would be interested to hear from readers if they've seen brain scans used in criminal (or civil) cases they've encountered.

The Dilemma of Being a Big Brother

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Dr. Helen Smith has this post over at her blog, Dr. Helen, about the quandary that men face when they wish to volunteer for programs like Big Brother. As she suggests, many men are afraid to volunteer for fear of being accused of having an improper interest in other people's children. This is a very unfortunate sign of our times, since so many young boys need good male role models given the decline of active fatherhood in our society. In my experience as a law guardian and counsel in family court, many children -- especially young boys -- are desperately in need of their fathers to set the right examples. This includes how to be a proper gentleman and learning to treat women with respect. I suspect that much of the juvenile crimes that boys engage in (and adult crimes when they grow-up) could be tempered or reduced if more good men were available as role models for young boys. It's easy in these times of biological psychiatry to forget that environment plays a vital role in the development of children. While it is certainly understandable that our society is fearful of men who wish to be involved with other people's children, we must keep in mind that most of these men have good intentions and would not think of harming a child.

News Scan

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Pennsylvania Sex Offenders: Residents near Pittsburgh, PA are outraged after learning that registered sex offenders are living near local schools, day care centers and churches in their neighborhoods. After asking commissioners to enact ordinances limiting these sex offenders, the state, county and local legislators are stepping up. House Bill 164 and House Bill 926 (co-sponsored by PA Republican Matt Smith), are aimed at strengthening Megan’s Law. Bill 164 would put limitations on where sex offenders could reside, and Bill 926 would call for tracking devices to be placed on violent sex offenders, both Bills would establish stiff penalties for offenders in violation. The Pittsburgh Post-Gazette article points out that at least 22 state have laws that restrict residency for offenders or predators, according to a 2006 report issued by the California Research Bureau.

Death Sentence Upheld: The Florida Supreme Court has upheld the death sentence of Ronnie Keith Williams for the 1993 stabbing murderer of a pregnant 18-year-old girl. The Court's decision, available here, indicates that Williams had prior convictions for second degree murder (he stabbed someone to death) and the sexual assault of a nine-year-old girl. The story from the Miami Herald by Daryl Fineout points out that, eight months before the 1993 murder, Williams was released from prison early to relieve overcrowding.

Crack Still is Whack: Elizabeth Sue Perry of Palatka, Florida has reported to deputies that her crack cocaine supplier/maker is trying to kill her. Perry told police Thursday night in an emergency room that she consumes an ounce of crack daily, and her supplier who she calls an “acquaintance,” may be using embalming fluid in her portion. She’s stated to authorities, that her cocaine is “different in color, is bitter and is having side effects on her not normal with everyday crack use,” as reported in the Palatka Daily News. It was no surprise that Perry tested positive for cocaine, and has been charged with a third-degree felony for possession of cocaine.

Texas Execution

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Tracy Gee, 22, worked late Sept. 5, 1990 at the club where she was an assistant manager. Lionell Rodriguez wanted to rob somebody just to be cool like in the movies. He passed up more difficult targets and picked out the young woman alone in her car at 2 a.m. He shot her in the head with his M-1 rifle and stole her car. Just punishment for this crime was finally carried out yesterday, nearly 17 years later. Rosanna Ruiz has this story in the Houston Chronicle before the execution, and this one after.

"You have every right to hate me. You have every right to want to see this," [Rodriguez] told members of Tracy Gee's family, who looked on from behind a window in Texas' death chamber. "I wasn't going to apologize by letter. I wanted to apologize face to face, eye to eye. None of this should've happened."

Opponents of the death penalty say it is degrading. I don't think so. Even a killer like Lionell Rodriguez can achieve a certain degree of dignity by accepting his responsibility and his punishment in his final moments.

Great Moments in Oral Advocacy

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There was much discussion on law blogs last month when William Smith, a partner in a big firm, informed Federal Bankruptcy Judge Laurel Isicoff that she was "a few french fries short of a Happy Meal.®" This is not good for your case, your client, your reputation, or your practice, but it was also widely agreed that the judge's threat to bar the lawyer from practice before the court was over the top. Thanks to this follow-up from Peter Lattman at WSJ.com Law Blog, we now know that Judge Isicoff has cooled off and merely required Mr. Smith to take a course in professionalism from the state bar.

As mentioned here, there's a lot of discussion about the recent media stories concerning deterrence and the death penalty. Psychology and Crime News blog has this post on the topic that may be of interest to readers.

Rita and Cunningham

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The U.S. Supreme Court today issued its long-awaited decision in Rita v. United States. The Court held that a federal court of appeals can presume on appeal that a within-Guideline sentence is reasonable in the post-Booker regime. Copious commentary on the direct implications of this decision for federal sentencing is available at Sentencing Law and Policy. Lyle Denniston at SCOTUSblog had this analysis at 10:03 a.m. A commenter asks how he can do that. Good question.

Also of interest are the implications of this decision for Blakely challenges to state sentencing systems, particularly the "how the heck do we cope with Cunningham" cases presently pending before the California Supreme Court. I think the decision bodes well for the argument that only minimal adjustment is needed for the existing cases and that the legislative fix for new cases is valid.

In the old cases, the defendants are claiming that all facts going into the decision to impose the upper term must be found by the jury. Nope.

This Court’'s Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence.... The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant’'s sentence unless the judge finds facts that the jury did not find (and the offender did not concede).

The California law at issue in Cunningham did forbid the upper term unless the judge found one aggravating fact. After that, Rita confirms, judge fact-finding is okay. In the new law, there is no fact-finding requirement at all.

News Scan

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New Mexico Death Row: Stanley Bedford kidnapped and murdered Odis and Doris Newman in March of 2005. Today the jury will meet once again to decide Bedford’s fate, a phase that will take roughly a week. Bedford was convicted of two counts of murder, two counts of kidnapping, and unspecified charges relating to the crime. If the death penalty is imposed on Bedford, he will become New Mexico’s third death row inmate, alongside Timothy Allen and Robert Ray Fry. As reported by the Clovis News Journal, the last inmate sentenced to death spent 14 years on appeals before being executed in 2001. That was the first execution in the state in 45 years. The Freedom Newspaper in the Portales News-Tribune has this mug shot of Stanley Bedford.

Earlier this week in another case, a judge had accepted the strained argument that New Mexico's death penalty is unconstitutional because jurors sometimes conclude that a crime warrants death during the guilt phase. According to this AP story, the DA in the case decided to forgo the death penalty in that case rather than appeal. Setting this ruling straight will have to wait for another case. Perhaps Bedford will make the argument on appeal.

2nd Execution in Texas this Week: Gilberto Reyes is scheduled to die by lethal injection this evening, bringing the state's total for the year to 17 (following last night’s execution). Reyes kidnapped, raped, and strangled his ex-girlfriend, 19-year-old Yvette Barraz in March of 1998 in Texas. According to a brief story by KCBD Channel 11 News, Reyes was charged with aggravated assault for chasing and firing a gun at Barraz a month prior to her murder. More information on this murderer is on the Texas Department of Criminal Justice website.

Another Insanity Defense: Clifford Anthony Davis, 19, murdered his mother and grandfather in November 2005. He was charged with one count of abuse of a dead human body, two counts of robbery and one count of grand theft of a firearm. The State of Florida is seeking the death penalty and Davis’ attorneys are planning an insanity defense for the confessed killer as reported by The Herald Tribune. John Martin of the Washington Post wrote a piece back in 1998 titled The Insanity Defense: A Closer Look that poses some interesting and still relevant questions regarding the insanity defense.

The New York Senate yesterday "approved legislation to reinstate New York’s death penalty in all cases of first-degree murder," reports the Elmira Star-Gazette. The Senate had previously passed cop-killer-only legislation. The bill is probably DOA in the Assembly, where anti-justice forces remain in control.

More Hysteria on Deterrence

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We have more reaction to the Associated Press article noted here, which brought to the attention of the general public the studies on death penalty deterrence that people involved in the debate have known about for years.

An article by Cassy Stubbs in the Huffington Post begins:

Among the many factors in the debate about the death penalty is whether capital punishment deters violent crime. Although solid research indicates that there is no valid evidence of such deterrence, recent attention has been given to a few flawed studies concluding that the death penalty does deter murder.


How does Stubbs know what is "solid" and what is "flawed"? Her bio indicates that she is a staff attorney with the ACLU Capital Punishment Project, and it does not indicate any expertise in the sciences in question.

Cone, Again

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Five years ago, CJLF submitted a brief in Bell v. Cone, 535 U.S. 685 (2002), stating:

On August 10, 1980, Gary Cone murdered Shipley O. Todd, age 93, and his wife Cleopatra Todd, age 79. State v. Cone, 665 S. W. 2d 87, 89-90 (Tenn. 1984). Over twenty-one years later, justice remains on hold, even though Cone’s identity as the perpetrator has never been in doubt. See id., at 90.

Justice is still on hold, but the Sixth Circuit decided Cone's case for the third time yesterday, finally getting it right. The first time they were reversed 8-1, cited above. The second time, they were reversed summarily, without dissent.

On the third round, Judge Merritt dissents, wanting to reopen a claim the court has already rejected, i.e., that the state withheld evidence of Cone's own drug use. Withheld evidence claims are particularly strange when the underlying fact to be proved involves the defendant himself, not the crime, and the defendant is well aware of the fact. As the majority notes, in this case the jury had ample evidence that Cone was a drug user. They just didn't find it all that mitigating.

This case is a perfect example of taking way too long and spending way too much in resources litigating issues that have nothing to do with guilt. Perhaps the end is finally near.

News Scan

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Duke & Scottsboro: John Steele Gordon has this op-ed in the WSJ comparing the Duke lacrosse case with the notorious "Scottsboro boys" case of 1931.

The Victim’s Side of the story: Victims of crime and their families have the right to participate and to be heard in the criminal justice system through the use of Victim Impact Statements. Abby Simons of the Des Moines Register reports in this article how important it can be to a family who has lost loved ones in a cruel and heinous manner. Shawn Bentler, the 22-year-old father of two who gunned down his parents and three sisters in a massacre, was given a life sentence on Tuesday. If only the general public could see more of this side of the story.

Cal. Parole: The California Rehabilitation Oversight Board held its first meeting yesterday. Chairwoman Joan Petersilia indicated that intermediate sanctions for parolees who violate their terms but do not commit new crimes will be an important part of the group's recommendations. Andy Furillo reports for the Sacramento Bee.

This post from Medical News Today discusses a new federal study linking early marijuana use and subsequent membership with gangs, violent behavior, and general juvenile delinquency. As mentioned previously, the discovery of the cannabinoid receptor has greatly enhanced our understanding of how marijuana affects the brain. While the present study results are intriguing, the obvious counter-argument is that it is likely that many people use marijuana without joining gangs or engaging in violence. Furthermore, although the gateway drug theory of marijuana has been supported by numerous studies, those studies often neglect to fully account for alcohol as the primary gateway drug of abuse. Nonetheless, the new study, sponsored by the National Institute of Drug Abuse (which curiously is a separate Institute at the National Institute of Health and separate from the National Institute on Alcohol Abuse and Alcoholism ) adds to the litany of studies strongly suggesting that marijuana isn't "harmless" as some folks may argue.

News Scan

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A California death row inmate now in Virginia, has been convicted on two counts of capital murder, one rape charge, two gun charges, and grand larceny for a 1988 double-murder case out of Virginia. The 22-year-old bodies of Rachael A. Raver and Warren H. Fulton III, were discovered in December 1988. Prieto was already serving time in California’s San Quentin State Prison for the rape and murder of a 15-year-old girl in 1990, and is also charged with the 1988 rape and murder of Veronica Jefferson of Virginia. Prieto’s attorneys will now try to convince the jury that he is mentally retarded, which would spare him the death penalty under the 2002 Atkins v. Virginia U. S. Supreme Court ruling. Tom Jackman with the Washington Post reports on this story.

Texas inmate Lionell Rodriquez is scheduled to be executed tomorrow in Texas. Rodriguez was charged with the 1990 murder of 22-year-old Tracy Gee at an intersection in Houston, afterwards stealing her car. Rodriguez will be the 16th inmate to be executed in Texas this year. The U. S. Supreme Court refused to review the case back in April, reports Michael Graczyk of the AP.

Update: Rodriguez was pronounced dead at 6:19 p.m. CDT.

We generally don't comment on the "celebrity" cases that are in the news only because of the personalities involved. Once in a while, though, a legal or policy issue worth serious discussion actually arises out of the tabloid fodder.

Linda Deutsch of AP has this story on a development in the Phil Spector murder case in LA. A former Spector defense attorney, Sara Caplan, has been held in contempt for refusing to answer questions about a piece of physical evidence from the scene that she pointed out to forensic expert Henry Lee, who then removed it. The prosecution, naturally, would like to have the evidence if possible, and if not to at least have the testimony of people who observed it. Ms. Caplan refused.

News Scan

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Worldwide Pedophile Ring Busted: With help from the United States, as well as agencies from 35 countries, British police have netted more than 700 suspects and rescued 31 children from an internet worldwide ring exploiting children. The same methods that are used against terrorists and drug traffickers were used by authorities. This lead them to an internet chat room with live videos of children being sexually abused called “Kids the Light of Our Lives,” reports D’Arcy Doran with the AP.

Massachusetts Sex Offenders: A Boston Globe story today indicates that more than half of 77 level 3 sex offenders in Boston are turning up in homeless shelters, stating they have nowhere else to go. This coming 3 years after Massachusetts started listing information on their online registry. The city and state officials, police, and homeless advocates are wondering if these pedophiles will reoffend, if they are purposely avoiding the registry by using shelter addresses, and if they legitimately have nowhere else to go. Jim Greene, director of Boston’s Emergency Shelter Commission partially blames the state for failing to provide adequate supervision of released sex offenders.

South Carolina Gang Activity: Legislation signed into law last week by Gov. Mark Sanford, will increase penalties for gang members. The law which goes into effect July 1, will make it illegal for members to force someone into gang activity or to prevent one from leaving such gang, and will also allow victims to take civil action against gang members for actual and punitive damages. A $10,000 fine and 10-year sentence will be given to any gang member who hinders a victim from testifying. Doug Gardner, a detective with the Greenville Gang Task Force, is positive that this stiffer law will help deter violent crimes committed by gang members, reports Clair Anderson and Paul Alongi with The Greenville News.

Passenger "Seized" in Traffic Stop

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The U.S. Supreme Court decided Brendlin v. California this morning, holding that a traffic stop of a vehicle amounts to a seizure of everyone in it. Hence, if the stop results in evidence incriminating a passenger, the passenger has standing to object to challenge the legality of the stop. No big surprise here. William Branigin has this report in the Washington Post. The decision was unanimous, written by Justice Souter.

In other SCOTUS action, the Court denied certiorari in Quarterman v. Nelson, No. 06-1254, which involved the Fifth Circuit's stunning conclusion that Penry error is "structural" and therefore never harmless no matter how strong the prosecution's case in aggravation or how weak the proffered mitigation.

In Barbour v. Allen, No. 06-10605, the Court once again refused to reconsider Murray v. Giarratano, 492 U.S. 1 (1989), which held there is no constitutional right to state-paid counsel in state habeas.

Female Sex Offenders, Part III

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As mentioned previously here and here, female sex offenders have become more visible within the past few years. Mike Pechar at Interested-Participant has a series of posts highlighting the disparate sentences that female sex offenders are receiving these days. One case involves teacher Jeri Deanne Perez who plead guilty to three felonies involving a sexual relationship she had with a 14 year old boy. Perez received a 10 year sentence. In contrast, teacher Rebecca Withrow pleaded no contest to having sex with an 11 year old boy and received a 120 day sentence. In a similar story, Krystal Gehret was convicted of having sex with two 14 year old boys. It was also alleged that Gehret intimidated one of the victims in order to dissuade him from testifying. Gerhret was just sentenced to an 11-23 month prison term plus 1 year probation.


There may be details in these cases that explain the vastly different sentences that these women have received. Indeed, many opponents of mandatory minimum sentences argue that judges should have wide discretion so that fair and appropriate justice is delivered. But one wonders what those facts could be in these cases that would justify a 10 year sentence in one case and 120 days in another. Additionally, as many of the comments on Pechar's blog suggest, sentences for female and male sex offenders seem quite disparate despite the criminal acts being almost identical.

Religion and Drug Treatment

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Michael Connelly, over at Corrections Sentencing, always does a fine job of highlighting recent abstracts from the various criminal justice journals. Today he points us to this study on religion and drug treatment (emphasis added):

This paper attempts to offer a theoretical framework that includes religiosity as an explanation of desistance from drug use. Study findings revealed that religious behavior not only prevented the onset of delinquent behavior but also inhibited the continuation of drug use. Although religious salience was found to prevent the onset of drug use, religious importance did not have any significant effects on desistance from using drugs. Compared to religious importance, religious behavior had larger deterrent effects on the initiation of drug use. These findings suggest that religiosity may be important for prevention of illicit drug use as well as recovery from drug dependence. Although recent research acknowledges an inverse relationship between religion and crime, no desistance theories to date include religiosity in their model as part of the explanation of desistance from drug use. It was expected that adult religiosity would have a positive, direct effect on desistance from drug use.

As mentioned previously, prison ministries seem to me like a good idea given the high recidivism rates and intractable despair that accompanies prison life and community re-entry.

News Scan

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Nifong will resign as District Attorney of Durham County, NC, according to this AP story by Aaron Beard.

Knock and talk: Yesterday, the California Supreme Court pondered "whether the Fourth Amendment requires police officers to corroborate an anonymous tip before contacting the occupant of a residence and seeking consent to enter and search. We conclude it does not...." The unanimous opinion by Justice Corrigan in People v. Rivera is here. Bob Egelko's story in the SF Chron is here.

Convicted 43 years later: Klansman James Ford Seale was convicted yesterday in Jackson, Mississippi on federal charges for abduction and conspiracy resulting in two African-American teenagers’ deaths. Charles Marcus Edwards (former Klansman) testified against Seale, stating that in May of 1964 Seale told him he kidnapped Charles Moore and Henry Hezekiah Dee, who were both 19 at the time. Seale proceeded to drive across the Mississippi River into Louisiana, where they were beaten and dumped into the river attached to heavy weights. On August 24, Seale will be sentenced and faces life in prison, reports AP writer Emily Wagster Pettus. This Clarion-Ledger story in the USA Today has pictures of the victims.

Myspace & Texas sex offenders: A two-week crack down on convicted sex offenders with myspace profiles has led to seven arrests so far in Texas, as reported in today’s Houston Chronicle. MySpace is now handing over the names of sex offenders with profiles, as well as their internet protocol addresses, e-mail addresses and personal info to all AG’s nationwide. This comes after Texas AG Greg Abbott issued a subpoena that forced MySpace to release data pertaining to Texas sex offenders. A convicted sex offender is prohibited from having a MySpace account if it is in violation of their parole or probation. The office of the AG issued a News Release yesterday with information on the arrests and pictures of these offenders in violation.

News Scan

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Stay denied by the Supreme Court in Lambert v. Indiana. No dissent is noted. Debbie Knox of WISH-TV had this story earlier today. Update: "Molly Winters felt a sense of justice as she walked out of the Indiana State Prison early today after learning the man who fatally shot her police officer husband more than 16 years ago had been executed," Tom Coyne reports for AP.

The Texas Court of Criminal Appeals in a 5-4 ruling yesterday, reversed Irving Alvin Davis’ death sentence, but upheld his capital murder conviction, reports Michael Graczyk with the AP. In 2001, Davis raped and strangled 15-year-old Melissa Medina on the night of June 3, 2001 in Anthony, Texas. Davis admitted to having consensual sex with Medina, and during that time, she told him she would “cry rape” if he continued. Davis said he “lost it,” and strangled her, then cut off her fingertips with gardening clippers in an attempt to rid his DNA because she had scratched him. In Davis’ appeal, he stated that the judge “improperly ruled in favor of prosecutors,” who opposed testimony from acquaintances who wanted to voice their opinion. The majority agreed with the appellant. The dissenters believed that the excluded evidence had very little probative value.

South Dakota has a new lethal injection protocol, according to this AP story. Last year, the Legislature amended the statute to remove the two specifically named chemicals and let the Department of Corrections specify the details, as they do in most states. The new procedures issued by DoC follow the usual three-drug prescription. The execution of "volunteer" Elijah Page, previously set for last August, is now scheduled for July 9.

SCOTUS on Appeal Time Limits

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The Supreme Court today decided Bowles v. Russell, regarding the time limit to appeal a civil judgment under 28 U. S. C. § 2107. Federal habeas corpus petitions by state prisoners are considered civil cases for this purpose, among others. The Court split 5-4, with the majority sticking to the traditional view that the limits in this section are jurisdictional and therefore can't be waived regardless of circumstances. There has been a trend recently to cut back on what is considered "jurisdictional," which is the main point of the dissent. The AP has this story on the case. Tony Mauro weighs in at Legal Times, saying "the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term."

This decision won't affect the habeas statute of limitations, which the Court has already said is not jurisdictional. See Day v. McDonough, 547 U. S. 198, 205 (2006).

Justice Delayed in Virginia

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In April, 2001 John Langley was working on a roofing job in Danville, Virginia, and he shared a motel room with Christopher Emmett. He loaned Emmett some money, which Emmett used to buy cocaine. When Mr. Langley refused to loan him more, Emmett bashed his head in with a brass lamp. Punishment for this crime will not be carried out as scheduled tonight but will be delayed a few more months.

There is no doubt of guilt in this case. Mr. Langley's blood was on Emmett's boots and clothing, and Emmett made a full, taped confession after receiving Miranda warnings. The primary issue, as described in the Fourth Circuit opinion, was the standard claim that trial counsel was ineffective for not presenting enough of the abuse excuse.

The Supreme Court denied a stay today, but four Justices said they would grant one. The Governor of Virginia granted a reprieve to allow the certiorari petition to be fully considered in the usual course.

Mr. Langley's family is understandably disappointed, according to this AP story by Kristen Gelineau. However, the case has proceeded relatively swiftly in six years from crime to federal habeas appeal. That is about right for a case with no colorable claim of innocence.

News Scan

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Georgia Lethal Injection: In 1987, John Washington Hightower snorted cocaine and drank the day he shot and killed his wife Dorothy Hightower and his two-stepdaughters, Evelyn and Sandra Reaves over marital problems he and his wife were having. 3-year-old Kisha Reaves was found unharmed in their Georgia family home. Hightower will be the first Georgia inmate executed by lethal injection on June 26, after a nearly two year drought. The Atlanta Journal-Constitution story reports that the Georgia Department of Corrections has recently updated their “execution protocols,” but did not change the chemicals used in their three-drug cocktail.

Federal Gun Control Law: A voice vote by the House of Representatives on Wednesday passed a gun control bill in response to the Virginia Tech shootings. The bill would be the first significant gun control law in over 10 years, since the 1994 banning of some assault weapons by Congress. States would be required to share and report information to the National Instant Criminal Background Check System database, putting a stop to gun purchases to criminals, mentally ill persons, or persons not authorized to own firearms. The bill is sponsored by gun control advocate Rep. Carolyn McCarthy but also endorsed by the NRA. The bill now proceeds to the Senate, reports Jim Abrams with the Associated Press. Crime and Consequences first reported on this story in April.

Crack Case: David Savage has this article in the LA Times on Kimbrough v. United States, No. 06-6330, the crack cocaine sentencing case accepted by the Supreme Court on Monday. The Fourth Circuit opinion is here.

Heard this before?: "As she awaited sentencing Tuesday for assaulting a Rochester woman, self-proclaimed anti-violence activist Joy Powell blamed everyone but herself. She said the victim lied, the police were out to get her, the judge hated her, her lawyer failed her and a jury that didn't reflect her race wrongly convicted her of first-degree burglary and second-degree assault." She got 16 years. Michael Ziegler reports for the Rochester (NY) Democrat and Chronicle. Hat tip: James Taranto, Best of the Web at OpinionJournal.com.

Jailhouse Grub: Stacy Finz reports for the SF Chron, it's actually better than most people think.

SCOTUS Notes

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SCOTUSblog is doing their usual excellent job keeping us up to date on the happenings on Mt. Olympus. The latest "stat pack" is here. Cases remaining to be decided this term are here. Cases granted for next term are here. We will summarize the points of interest to criminal law practitioners here.

Harmlessness, Habeas, and Dicta

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Obiter dicta are comments made in the course of delivering a judicial opinion that are not necessary to the outcome. Such comments are not binding precedent, either in the court that made them or in lower courts. “It is to the holdings of our cases, rather than their dicta, that we must attend. . . .” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379 (1994). Even so, dicta from the Supreme Court are likely to be followed, and Justice Scalia dropped a whopper of a dictum in yesterday's decision in Fry v. Pliler.

News Scan

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Cop killer Michael Lambert is scheduled to be executed this Friday in Indiana. Lambert was found drunk by officer Gregg Winters on December 27, 1990 and placed in the back of his patrol car. Shortly after, Lambert shot Winters in the back of the head 5 times with a concealed stolen gun that he had in his pocket. Eleven days later, Winters died. Yesterday, a petition was filed with the U. S. Supreme Court by Lambert’s attorneys asking to stop the execution partially based on the fact that during Lambert’s appeals, 3 out of 5 of the Indiana Supreme Court justices have “at times” ruled that his death sentence is “constitutionally deficient.” Tom Coyne’s AP story has reported that the court has not yet responded to yesterday’s petition.

The Texas Court of Criminal Appeals granted Cathy Lynn Henderson a stay of execution yesterday by a vote of 5-3 and is now ordering a review of new evidence. Brandon Baugh’s 3-month-old body was found buried in a wine cooler box in 1995 with a bashed in skull. Before fleeing to Missouri, Henderson claims she accidentally dropped Brandon on her concrete floor while babysitting him, performed CPR on the baby, then because she wasn’t “thinking clearly,” proceeded to wrap him in a blanket and bury him in a field. Scientific testing that was not available in 1995 has the medical examiner claiming that he was incorrect in his finding that Brandon’s death was not accidental, reports Michael Graczyk with the AP. Henderson’s death row picture is available on the Texas Department of Criminal Justice Death Row website.

Christopher Scott Emmett is scheduled to be executed tomorrow in Virginia. In 2001, Emmett beat his co-worker, John Fenton Langley to death so he could rob him of his cash in order to support his crack cocaine habit. Emmett’s attorneys are trying to prove that he suffered “egregious injustice at trial” and are asking the U. S. Supreme Court and Virginia Governor Timothy M. Kaine to cease his execution. Emmett claims that his trial attorney’s performance was insufficient and failed to reveal his abusive childhood. The state pointed out that Emmett’s claims of ineffective assistance of counsel have been rejected numerous times by courts, and that he did not experience an abusive childhood as noted by the AG’s office. Reporter Kristen Gelineau of the AP has the full story here.

A San Quentin death row inmate committed suicide Sunday night. Tony Lee Reynolds raped and murdered Estela Perez in March 2005 in her children’s bedroom in Riverside, CA. A couple months later, Reynolds raped another woman in Riverside, and lo and behold the DNA matched evidence from Perez’s cold-blooded murder. Prior to those crimes, he was convicted on burglary charges and served only 19 days in prison and ordered to live in a group home. Guards found him hanging from a bed sheet noose in his cell shortly after 8:30 p.m. Sunday. According to this Press-Enterprise story by Paige Austin and Sonja Bjelland, more California inmates on death row die of natural causes than are executed. Those that are executed average 17½ years on death row.

This post by Walter Olson at PointofLaw blog discusses an interesting case of a former participant of federal witness protection program who scammed hundreds of illegal aliens by obtaining "office space in one of the most prestigious law schools in the country, as well as a school identification card and e-mail address."

News Scan

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Children safer today than compared to the early 1990’s. Richard J. McNally has this “Kids Today” commentary in the Wall Street Journal (free to nonsubscribers for the next 7 days). McNally refers to a review article by sociologist David Finkelhor and psychologist Lisa Jones published last year in the Journal of Social Issues indicating that the homicide rate, physical and sexual abuse, aggravated assaults and robbery confined to children and adolescents has decreased since the early 90’s. Official crime statistics and community surveys have both documented this decrease, indicating that we do have the right policies in place and that they are being enforced.

Retardation. David Savage has this article in the LA Times following up on the Atkins v. Virginia case, which has had less impact than many thought it would. He focuses specifically on Atkins himself. The story includes this gem on the testing that produced Atkins' low IQ score:

Addison, the prosecutor, also poked holes in the 59 IQ score. The psychologist had said Atkins answered incorrectly when asked to identify Martin Luther King Jr. — "Preacher," Atkins had replied. "For civil rights." The psychologist was hard-pressed to explain why that had been considered wrong.

Czech Republic: "More than a half of Czechs believe that death penalty should exist in the Czech Republic, according to a poll the CVVM agency conducted in May and released today." This report is in Czech Happenings.

The Supreme Court decided Fry v. Pliler, No. 06-5247, today. The Court was unanimous on the main legal question they had taken the case to resolve. When a state court finds no federal constitutional error, and therefore does not do any harmless error analysis, a federal habeas court which does find error still applies the habeas harmless error rule of Brecht v. Abrahamson, 507 U.S. 619 (1993), not the direct appeal standard of Chapman v. California, 386 U.S. 18 (1967). The Chapman rule is more favorable to the defendant. In announcing the Brecht rule, the Supreme Court gave several reasons, only one of which was that in the case before it the state court had already done a harmless error analysis. The Eighth Circuit had erred in finding that Brecht was limited to that situation, and the other circuits had decided to the contrary.

Death Penalty Deterrence

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The growing stack of evidence that the death penalty does, indeed, have a deterrent effect and save innocent lives has been largely ignored by the general-public press and unknown to most people. The Gallup Poll has showed public belief in deterrence declining just as the scientific evidence was mounting. Now comes a pleasant surprise in this article by Robert Tanner of the Associated Press.

The article notes the studies that we have mentioned on this blog before.

What gets little notice, however, is a series of academic studies over the last half-dozen years that claim to settle a once hotly debated argument -- whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer.

The article also notes the position of "well-known liberal law professor, University of Chicago's Cass Sunstein" that if the death penalty really does deter it may be morally required, not just morally acceptable. The article discusses the criticism of the studies. Paul Rubin, co-author of the Emory study, is quoted saying of the critics, "Instead of people sitting down and saying 'let's see what the data shows,' it's people sitting down and saying 'let's show this is wrong.'"

Particularly curious is the quote from one of the critics, Justin Wolfers, that the studies showing deterrence appear in "second-tier journals." Are the Journal of Law and Economics and American Law & Economics Review second-tier journals? That's news to me. What is a first-tier journal in this field? The Stanford Law Review? That is where Professor Wolfers published his critique. The SLR may be a first-tier law review, but it is a no-tier publication as far as review of the methodology of these kinds of studies goes. Articles in it are selected for publication and edited by law students, not by professionals in this field. Are the editors of SLR capable of distinguishing valid methodology from invalid? Very doubtful.

The Dezhbakhsh, Rubin, and Shepherd article and the Mocan and Gittings article, the two most often cited, are both published in peer-reviewed journals. Donahue and Wolfers chose to skip the peer-review process and publish their critique in a law review. Given that fact, for Professor Wolfers to criticize the others on the basis of where their articles are published seems very odd. Bearing in mind that newspaper article quotes sometimes leave out information that the person quoted considered important, we won't accuse Professor Wolfers of anything at this point, but an explanation is in order.

On this page, we have a listing of abstracts of studies published in peer-reviewed journals on the question of the deterrence and the death penalty. Working papers that appear to be intended for publication in such journals are listed in a separate section. Unlike the deterrence pages of the "nonpartisan" Death Penalty Information Center, the list is not filtered to exclude those who do not support our preferred result. The critics are there too, so long as they meet the neutral criteria for inclusion.

Infiltrating NAMBLA

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On Wednesday, a panel of the Ninth Circuit decided United States v. Mayer, No. 06-50481, rejecting a claim that the government had acted improperly by infiltrating the National Man/Boy Love Association (NAMBLA). The court held that such an investigation requires good faith, which is a legitimate law enforcement purpose. This decision is welcome news, as there are many organizations today that have a facade of legitimate advocacy, behind which are conspiracies to commit or facilitate major crimes.

The panel was Judges Hall, O'Scannlain, and Callahan, which is about the most favorable for the prosecution that you can get in the Ninth. I'm sure there will be a petition for rehearing en banc, and there is a decent chance of it being granted.

Silver Anniversary

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James Q. Wilson On June 6, the Board of Trustees of the Criminal Justice Legal Foundation held its 25th annual meeting in Los Angeles. Noted crime scholar James Q. Wilson was the guest speaker. He provided a long-term perspective on the debates over crime and punishment. Professor Wilson is the Ronald Reagan Professor of Public Policy at Pepperdine University.

News Scan

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New York State Senate. On Wednesday, the New York State Senate passed a tougher DWI bill for persons who injure others while driving drunk. The legislation "establishes the felony crime of vehicular homicide with a penalty of up to 25 years in prison, and the felony crime of aggravated vehicular assault with up to 15 years." The felony crimes would only apply if one of these factors were present: a blood-alcohol level of .18 or higher, a prior DWI conviction within the last 10 years, causing injury or death to more than one person or driving with a suspended or revoked license. James T. Madore with Newsday has more on the DWI bill here.

In Connecticut, Rep. William Dyson threatened to attach a death penalty repeal provision to a judicial ethics bill, even though the topic had been thoroughly debated and decided just two years ago. House leaders let the whole bill die instead, Keith Phaneuf reports in the Journal Inquirer.

In Tennessee, the bill to create a death penalty study panel with a stacked membership and a one-sided charter passed the House. The passage is reported in this AP story.

Law Professors, including Robert Bork and Alan Dershowitz on the same brief, received permission from Judge Reggie Walton to file an amicus brief in the Scooter Libby case. The order is available here, courtesy of How Appealing, complete with snarky footnote. The brief is here. Their point is that the constitutionality of the special counsel appointment is a close question.

The ACLU and Lethal Injection

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Some anti-death-penalty folks are all in a lather about a AP story by Julie Carr Smyth quoting CJLF President Michael Rushford on the ACLU's role in the lethal injection controversy. See, e.g., NCADP here.

One of the statements is, "They [the ACLU] were against the gas chamber 30 years ago - they said there was only one humane alternative and that would be lethal injection." It is surprising that this statement generates any controversy at all among people knowledgeable in the capital punishment debate. We commented on this history in this blog six months ago, noting that in the Robert Alton Harris case, Justice Stevens based his dissent regarding the gas chamber on the availability of lethal injection and the opinions of experts that it was the more humane alternative. We gave the citation in case anyone doubted it, Gomez v. U.S. District Court, 503 U.S. 653 (1992).

So where did Justice Stevens get his information on the expert consensus regarding the humane alternative? From the briefing submitted for Harris, of course. See footnotes 6 and 7 of the dissent. Who was representing Harris?  The ACLU.

Quod erat demonstrandum.

News Scan

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Four Justices often side with condemned prisoners on avoiding Death Penalty
Mark Sherman of the AP notes in this story that in the eight death penalty cases that have come up so far this term, the U. S. Supreme Court is split on the issue. Although four justices side with death row inmates who are trying to avoid execution, the Court does not appear to seek an end to the death penalty in the U.S. The Polls continue to find that most Americans are in favor of the death penalty for most murderers.

Jury rejects the Death Penalty for DC Drug Gang Enforcer
The Washington Post reports here that Larry Gooch will not receive the death penalty for his involvement as a violent, drug-gang leader of The M Street Crew who was responsible for the murders of four people, assisting in murder, shooting at an officer, and racketeering and drug charges. Capitol punishment has been banned in the District, however federal law allows prosecutors to seek it in some cases.

Death Penalty for Cooke, execution years away with Appeals and Lawsuits
James Cooke received the Death penalty on Wednesday for the rape and murder of University of Delaware student, Lindsey M. Bonistall in 2005. Estaban Parra of The News Journal takes a look at the process in this article.

Bizarre Criminal of The Day
A NY City man faces (7) years in state prison for jabbing and poking young girls in the buttocks. The punishment comes under a new law that addresses crimes committed for sexual gratification. According to this AP story, Frank Ranieri is accused of paying young girls to allow him to jab them with sharp objects such as pins, nails and stilettos. He is said to have spent thousands of dollars on this fetish over a year and a half.

News Scan

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Robin’s Law: In June 2004, Robin Shaffer was shot and killed by her estranged husband Jeffrey Ogle, who shortly after committed suicide. Now two years later, the Upper Bucks Borough council is meeting tonight and expected to urge Pennsylvania Legislators to pass a bill created by Shaffer’s sister, Heidi Markow, called “Robin’s Law.” The bill, similar to the Megan’s Law registry, would instead have a database of persons convicted of a domestic violence offense, along with a picture and address. Criminals convicted will remain on the registry for 10 years after being released from prison for the offense, will have 10 days to notify police with an address change and will have to confirm their address every 90 days with the state police, reports Christopher Ruvo of The Intelligencer.

News Scan

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Ex-deputy set to die Wednesday evening for Houston woman's slaying
Michael Griffith is scheduled to be executed for the murder of Deborah McCormick, while attemting to rob her 12 years ago, reports Allan Turner of The Houston Chronicle. The Texas AG's office issued an advisory in May chronicling the case which can be found here.

Delaware now faces criticism of it's Inmate Executions
Sean O'Sullivan of The News Journal reported on Sunday that attorneys representing inmates argue that "no one knows the exact procedure for executing inmates" and have filed a lawsuit.

Confession essential to case is thrown out
Sarah Lundy of The Orlando Sentinel reported that a murderer's confession will be thrown out because he was not informed of his rights.

Gay Inmate receives Conjugal Visits
Don Thompson of the AP reports that California is now allowing gay and lesbian inmates to receive overnight conjugal visits under the domestic partnership law. Randy Thomasson, President of the Campaign for Children and Families, objects to conjugal visits for both gay and straight inmates. They "are unsupervised...and the guards can't go in there" he said.

Uttecht v. Brown coverage from Charles Lane (welcome back) in the WashPost, David Savage in the LA Times, and Linda Greenhouse in the NYT.

Injection Decision

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The Eighth Circuit opinion rejecting the lethal injection challenge on the merits is here. In a nutshell, having the IV insertions done by medically qualified personnel (not necessarily doctors) plus monitoring to insure the inmate is actually "under" before injecting the second and third chemicals is sufficient. Anesthesiologists are not needed because anybody can put a patient to sleep; the skill of anesthesiologists is in making sure they wake up, not a consideration here. Hopefully, this nearly nationwide suspension of justice for the worst murders will soon be behind us.

The Uttecht v. Brown Dissent

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Justice Stevens's dissenting opinion today in Uttecht v. Brown begins strangely. It also ends strangely.  It is also strange in between.

The Uttecht v. Brown Opinion

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The opinion of the Supreme Court today in Uttecht v. Brown is mainly about the review of trial court decisions excluding jurors in capital cases. Although this case comes under the rule of deference to state reviewing courts under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it seems clear that the case would have been decided the same way on direct appeal. Part III B begins, "From our own review of the state trial court's ruling, we conclude that the trial court acted well within its discretion in granting the State's motion to exclude Juror Z."

News Scan

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Crime Statistics: The Federal Bureau of Investigation has released their 2006 preliminary crime statistics today. The United States showed a 1.3% increase in violent crime along with a 2.9% decrease in property crime from the 2005 statistics. Murder has increased 0.3% overall. As for a regional breakdown, the Northeast was the only region that did not show an increase in violent crimes, the West however, showed the most increase of 2.8%. More than 11,700 law enforcement agencies in the U.S. had data collected, and for the second year in a row showed an increase in violent crime. The Department of Justice Federal Bureau of Investigation has also released an index of table percentages by population group, geographic region, consecutive years, and offenses reported to law enforcement by city and state with a population of 100,000 or more.

Gallup is out with its annual poll on moral values. Once again, the death penalty tops the list as having the highest level of agreement as morally acceptable of any of the issues. The report by Lydia Saad is available here, free for a limited time.

According to Gallup's 2007 Values and Beliefs survey, conducted May 10-13, the death penalty ranks as one of the most widely agreed upon issues on the roster of moral issues facing the country. Nearly two-thirds of Americans say it is morally acceptable (66%), while less than half that number (27%) consider it morally wrong. Support for the death penalty is fairly uniform across different age groups, political parties, and between men and women.

Claiborne Vacated as Moot

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The U.S. Supreme Court dropped the federal sentencing case of the deceased Mario Claiborne, as expected. The order reads:

The Court is advised that the petitioner died in St. Louis, Missouri, on May 30, 2007. The judgment of the United States Court of Appeals for the Eighth Circuit is therefore vacated as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

This order is unlike those issued in state cases, where the high court only vacates its own order granting certiorari and dismisses the petition. Compare Pasch v. Illinois, 510 U.S. 910 (1993). In this federal case, the lower court decision is vacated. The citation to Munsingwear emphasizes that the lower court decision is no longer precedent.

In other Supreme Court action, the Court noted once again the deference due the trial judge in juror challenge questions in Uttecht v. Brown. The decision was 5-4 along the usual lines. Mark Sherman reports for AP. Further comment is here.

The Court also summarily reversed the Tenth Circuit in a prisoner rights case, admonishing them not to be too strict in pleading requirements, especially for pro se prisoners. The decision in Erickson v. Pardus is here. Justice Thomas dissents on the merits, and Justice Scalia dissents from the decision to grant certiorari.

Is PTSD Real?

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The new issue of the Carlat Report (subscription required) reviews a number of new studies suggesting major psychometric flaws in the construct of PTSD. From the first page:


A recent issue of the Journal of Anxiety Disorders (Vol. 21, 2007) focused on the troubling possibility that the PTSD (posttraumatic stress disorder) construct is not nearly as valid as has been assumed. The articles are both fascinating and provocative and are well worth reading.

These findings are troubling since PTSD is frequently cited by defendants for diminished capacity defenses and in civil claims ranging from disability claims to sexual harassment cases.

News Scan

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Dog Maul Case: The California Supreme Court decided unanimously yesterday to send back to the Superior Court the case of Marjorie Knoller’s second-degree murder conviction. In January 2001, Knoller and her husband Robert Noel’s two Presa Canario dogs mauled to death 33-year-old Diane Whipple in the hallway of their San Francisco apartment building. Knoller and Noel were originally charged with manslaughter and both paroled from prison in 2004. If the second-degree murder conviction is restored, Knoller would spend 15 years to life in prison as reported by Bob Egelko with the San Francisco Chronicle. The court held that, in granting Knoller's new trial motion, the Superior Court had set the bar for "implied malice murder" too high, but in reversing that order the Court of Appeal had set it too low. The remand directs the trial court to reconsider in light of the Supreme Court's clarification of the standard.

Put us to Death!
Former head of the Sicilian Mafia, and current Italian prisoner, Carmelo Musumeci has written and had distributed a letter stating that life sentences violate the Constitution, therefore demanding the death penalty. Now, after 309 convicted murderers serving their life in prison sentences have signed this letter, it has been sent to President Napolitano for help, according to this (London) Times Online story. Italy’s death penalty was abolished after World War II. A new bill in discussion in a Senate Commission would do away with life sentences if approved. A senior judge is quoted as giving the bill little chance.

"Dr. Death" is Free: The Detroit News reports today that Jack Kevorkian has been released from prison this morning in Michigan as reporters and protesters gathered outside. 79-year-old Kevorkian spent almost 9 years in prison after being convicted in 1999 for the videotaped assisted death of Thomas Youk who had Lou Gehrig’s Disease. After failed appeals, the state’s Parole Board last year granted Kevorkian early release from prison under the condition that he is prohibited to participate in assisting suicides.

Gang-related Killings Drop: Richard Winton and Jill Leovy of the Los Angeles Times report today that gang-related killings in the Los Angeles have dropped 32%, according to statistics released yesterday. Chief William Bratton gives credit to the officers for the decrease, while some officers also credit, “demographic changes, improved trauma care for assault victims and longer prison sentences, are also affecting crime statistics such as homicide.”

Three-strikes laws, for example, have thinned the ranks of some gangs in the LAPD's 77th Division, Det. John Radtke said. "If I sit down and go through the gang list, it's amazing how many names are in jail or dead."

Panhandling Idea

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James Taranto at OpinionJournal.com has a creative idea for dealing with panhandling. He notes this AP story from New Rochelle, N.Y., where the city apparently tried to enforce the old loitering-for-begging statute struck down long ago. See Loper v. NYPD, 999 F.2d 699 (CA2 1993).

What a country we live in, where a bum accosting strangers asking for money is "free speech," but donating money to a candidate so as to further a political cause is subject to heavy government regulation.
But wait. That gives us an idea of how to solve the panhandling problem. Why not make it a misdemeanor to give money to a panhandler? Surely this violates no one's free speech; it merely prevents a commercial transaction that hinders the quality of life. The law would likely spur less defiance than laws against panhandling itself, since citizens who have money tend to respect the law and don't gain anything by giving vagrants money anyway. And who wouldn't be happy to brush aside an aggressive beggar by saying, "Sorry, it's illegal."

Police Death in Ohio

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The Treatment Advocacy Center (TAC) has this post about the death of Officer Jason West of Cleveland Heights, OH, the case noted in yesterday's News Scan. The suspect, Timothy Halton Jr., had been ordered to take antipsychotic medication for his mental illness as part of his probation for an earlier assault charge. It appears that Halton had refused to take his medication, which likely means that he was symptomatic at the time of the shooting. As TAC discusses,Ohio does not have an outpatient commitment law, such as New York's Kendra's Law, which has a good track record for improving treatment adherence among those with severe mental illnesses and histories of noncompliance.

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Sixth Circuit Injection Decision

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On March 2, we noted here the decision of the Sixth Circuit in Cooey v. Strickland, regarding the statute of limitations to bring a § 1983 (Civil Rights Act) challenge to lethal injection. Today the full court declined to take the case en banc. The plaintiff has 90 days to ask the U.S. Supreme Court to take the case.

Judges Gilman, Martin, Daughtrey, Moore, Cole, and Clay dissented. Judge Cook was recused.

Female Sex Offenders, Part II

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As I mentioned before, a new blog is a doing a great job at chronicling female sex offenders. Yesterday, this post documented over 25 cases that occurred last month alone. Of particular note is that the vast majority of these offenders were school teachers, which once again highlights how access to minors is one of the largest variables in understanding sex offending risk. The conventional notion is that men represent the majority of sex offenders -- and this is likely true -- but as this blog suggests, the issue isn't as one-sided (gender wise) as many would like to think.

Mental Illness in Jails

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As discussed here, there's a lot of problems with the clarion call of a mental illness crisis in our jails and prisons. That said, a new article in this month's issue of Psychiatric Services has a notable finding: 92% of jail inmates in the study with diagnosed severe mental illness were non-adherent with treatment before their arrest. Furthermore, of those 92%, 72% had a prior arrest for violent crime. This study adds to a growing body of research suggesting that a subgroup of people with mental illness are more violent when compared to the general population.

Memory and the Law

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This post briefly discusses a new book about Elizabeth Loftus Do Justice and Let the Sky Fall: Elizabeth Loftus and Her Contributions to Science, Law, and Academic Freedom. Dr. Loftus was (and continues to be) the leading expert in the area of memory, recall, and legal issues. Her work has greatly influenced our science and law and anyone with an interest in these issues would enjoy reading, what looks to be, this fascinating book.

Related post: Memory and the Libby Trial.

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