August 2007 Archives

The Right to Be a Crazy Fool

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In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that a criminal defendant has a constitutional right to reject counsel and represent himself. Justice Blackmun, dissenting, wrote, "If there is any truth to the old proverb that 'one who is his own lawyer has a fool for a client,' the Court by its opinion today now bestows a constitutional right on one to make a fool of himself." In Faretta's case, "The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will." Id., at 835. The difficulty comes when competence is not so clear. Does the constitutional right to be a fool include the constitutional right to be a crazy fool?

News Scan

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One day for Nifong. AP reports here.

Construction resumes on the execution chamber at San Quentin, after the California Legislature finally passed the budget, Reuters reports.

The Supreme Court has issued the last of its summer orders lists. Nothing interesting.

Norman Hsu, the big time political fundraiser who "forgot" to show up for sentencing for theft in California, has turned himself in, Paul Elias reports for AP. Bail is $2M. Unlike the typical megabuck bail, this defendant might actually post it with his own money.

Attorneys Dispute Robbery Charges for Killer Taking Body Parts
AP reports on the bizarre case of Sean Vincent Gillis. He is facing first degree murder charges, which could end in the death penalty, for killing eight women between 1994 and 2004 pending prosecutors' proof of aggravating circumstances. The prosecution states that the death of one of the women, Donna Johnston, meets the definition because Gillis took one of the victim’s arms and a tattoo from one of her legs. The Crime Library has chronicled this serial killer’s murderous rampage here. Note to Louisiana Legislature: killing more than one person should be death-eligible by itself.

Manson Follower is Denied Parol for 18th Time
The Associated Press reports here that Leslie Van Houten, who was convicted of murder and conspiracy for her role in the 1969 slayings of Leno and Rosemary La Bianca, was denied parole for the 18th time. Van Houten, now 58, will not be allowed to petition for release until 2009.

Crime and Punishment in Sin City
Larry McShane of AP reports that a new series, "Sin City Law" airing on Mondays starting September 10 on the Sundance Channel. The series will cover four cases and offers a harrowing tour of the Clark County legal system documentary-style, delving into the stories as seen by the various participants: the prosecutors, the public defenders, the killers, the victims, family members, investigators and includes Courtroom footage. "Unlike the typical TV crime show, the true-life crime dramas aren't neatly wrapped up — everything is messy, from the crimes to the conclusions. A life sentence is considered a victory; are there any winners when a death sentence is imposed?"

Merit Selection, Not

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"What's in a name?" asked Juliet. "That which we call a rose by any other name would smell as sweet." Actually, quite a lot is in a name. If you can succeed in getting a proposal called by a wholesome-sounding name, it's a lot easier to sell, even if that name bears little relation to the proposal.

"Merit selection" of judges sounds like a great idea, but the schemes that go under that name typically involve transfer of some portion of the appointment power to the State Bar. One would have to be astonishingly naive to think that the bar is going to choose judges on the basis of merit and not bar politics. Far from getting politics out of the selection process, these schemes merely replace general electoral politics with bar politics, and that is a step down, not up. The Wall Street Journal has this editorial today on the goings-on in Missouri. Under the "Missouri Plan," the governor is limited to choosing between three nominees picked by a commission, and 3 of the 7 members of the commission are chosen by the State Bar.

News Scan

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The Sensible Sentencing Trust is a group formed in New Zealand to press for reform of that country's soft sentencing policies. Jean White of the North Shore Times reports on a meeting of the group. Founder Garth McVicar "told the meeting he was born in 1951 when New Zealand was one of the safest countries in the world. He said 56 years later, New Zealand is one of the most violent countries. 'The country can't turn itself around with current policies. We need to draw the line in the sand. If you cross it, there'll be consequences.'" The group's web site is here.

Update: Texas murderer John Amador, whose case was reported here yesterday, was put to death last night. The Reuters coverage is here .

Murder accomplice Kenneth Foster, whose execution was scheduled for tonight, received a 6-1 vote by the Texas Board of Pardons today, and Governor Rick Perry commuted his sentence to life, as reported by William Marra at ABC News. Democracy Now reports that former President Jimmy Carter and South African archbishop Desmond Tutu have urged Texas to spare Foster. Rap artist Snoop Dogg was suspiciously absent from this appeal.

The release of 3,000 prison inmates to save tax dollars has been proposed by the Florida Department of Corrections according to this story from News4 in Jacksonville. The state legislature will consider the proposal next month.

Juvenile offenders released from Texas corrections in compliance with new state policies are committing new crimes at an alarming rate according to this Associated Press report. The new policy, which authorized the release of 2,210 offenders on March 1, was implemented in response to a sex scandal and possible cover up within the juvenile corrections system. Since the release, over 400 offenders have been rearrested.

Protest at SCOTUS

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The anti-death-penalty crowd is planning a protest at the Supreme Court building regarding the Foster execution at 4:30 pm EDT today. Karl at Capital Defense Weekly is "expecting civil disobedience and potentially arrests at the action." This post also quotes in full the announcement for the event.

That announcement notes that Foster was not the triggerman and claims that he is innocent of the murder, a non sequitur. The inconvenient fact, conveniently omitted, is that Foster was a major and willing participant in a spree of gun robberies, in which the death of a robbery victim was an entirely foreseeable consequence. The Fifth Circuit opinion is here.

I doubt any Justices will see the protest. They take off for places such as Austria and Colorado this time of year. If you've been in D.C. in August, you know why.

Update: A live report from a reader of this blog:

I am at the anti-death-penalty protest that your website advertised. There are all of 16 protesters here in front of the court, along with one bullhorn -- and 4 TV cameras. None of the pedestrian traffic is stopping to pay attention -- everyone is just looking down and hurrying away. Just the usual daily DC gathering of lunatics. They have just started singing "we shall not be moved" -- as amplified by the bullhorn. So I am leaving now too.

News Scan

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On second thought: A rape victim in the East Bay area of California set up a phony job interview for the rapist. Her original plan was to "exact vigilante justice." On reflection, she made the wiser choice and had him arrested. Why did she consider the other in the first place? "The victim was afraid the suspect would not be sent to prison for the crime," Henry Lee reports for the SF Chron.

Execution: DeRoyce Mosley was put to death in Texas late Tuesday night. As reported Monday, a jury found him guilty of murdering a woman during a robbery that left four people dead. An Associated Press story by Michael Graczyk discusses tonight's scheduled execution of John Amador for the 1994 murder and robbery of a San Antonio cab driver and the attempted murder his female passenger. The robbery netted $100. At the time, Amador was on parole for his involvement in the murder of his stepfather. The news story also discusses the scheduled Thursday execution of Kenneth Foster, the getaway driver in a robbery which left the victim lying dead on his own driveway.

British Conservative leader David Cameron has this article in the Daily Mail, making clear that crime will be a major election issue. He calls for policing reforms citing those used in New York (i.e., the "broken windows" thesis). He also calls for greater deterrence through stronger punishment of serious crime. "The problem today is that we do not convict and lock up enough criminals. Why? Because we don't have enough space." The Mail also has this article of its own.

Rebuilding New Orleans: The biggest obstacle is crime and local officials' refusal to do what needs to be done, writes Nicole Gelinas in

News Scan


Short list for AG has five names according to this AP story by Lara Jakes Jordan. A "a senior Bush administration official" is the source. No announcement likely until President Bush returns from Down Under.

The new AEDPA Regulations are the subject of an editorial in today's Christian Science Monitor. They make the by-now familiar arguments. They claim the Attorney General is biased, ignoring the self-interest of the habeas court under the prior law and also ignoring the de novo review by the D.C. Circuit. To find out what is causing delay, they called an anti-death-penalty partisan, the DPIC, and took their word for it. Finally, the editorial concludes, "The remedy is for states to provide the resources for competent defense," ignoring the reality that the states that have provided the greatest resources to the defense have the worst delays.

Manuel Noriega's extradition to France has been approved by a federal judge according to this AP story by Curt Anderson.
The 73-year-old former dictator will compete his federal prison sentence for drug trafficking next month . The French Government wants to prosecute him for money laundering.

DNA evidence has convinced a San Francisco jury to convict habitual criminal John Davis of the 1985 rape and murder of 28-year-old woman as reported by Jaxon Von Derbeken of the Chronicle. Davis was already in prison 2002, when he was identified by DNA he left at the murder scene. The victim, commercial photographer Barbara Martz, had returned from the market when she surprised Davis, who was burglarizing her home. She was raped and stabbed several times before her throat was slashed. He will receive a life sentence for the crime because San Francisco DA Kamala Harris is opposed to the death penalty.

Term Summary: Rory Little of UC Hastings has a summary of last term's criminal and related cases at SCOTUSblog.

Briefs in Medellin

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The "bottom side" briefs are in for Medellin v. Texas. All except the not-yet-filed reply brief are collected here. The summary of argument from the CJLF brief is after the jump.

John Couey and Mental Retardation


The Last Psychiatrist has this short post on the death sentence for John Couey, the man convicted of kidnapping and killing Jessica Lunsford. This post follows up on a prior post from the Last Psychiatrist which aptly points out the many problems inherent in the Atkins v. Virgina case which prohibited the execution of the mentally retarded. Surely the execution of the mentally retarded is reprehensible; but the formulaic declaration that Atkins set forth is problematic and troubling; problematic for the reasons the Last Psychiatrist states and troubling because it removed an important moral question from the hands of the People, which are arguably in a better position to weigh the individual circumstances of each case.

Update: As the commentators correctly suggest, historically the prohibition of the death penalty against the mentally retarded was against the profoundly mentally retarded -- those akin to Blackstone's "wild beast" whose intellect was so impaired as to render them as "infants". See generally, Steven K. Erickson, Minding Moral Responsibility

News Scan

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Tim and Karen Scanlon have this letter in the Morning Call of Allentown, Pennsylvania. Tim's father was murdered by Ronald Rompilla, whose death sentence was overturned by the Supreme Court, incorrectly, in our view. The Scanlons asked the prosecution not to seek the death penalty again. They had had enough. "Pennsylvania needs to exercise the wishes of juries and limit the appeals process. Stop victimizing the victims."

A National Sex Offender Registry is now available on the internet from a Houston-based company as reported by John Pospisil in this story from The story includes a link to the website which allows a user to type in a street name, city, state and zip code to locate registered sex offenders.

Execution: Texas murderer DaRoyce Mosley is scheduled to be executed Tuesday for killing a woman in a bar during a robbery as reported by AP writer Michael Graczyk. Just before midnight on July 21, 1994, Mosely and his uncle burst through the door at Katie's Lounge In Kilgore, robbed the bartender, Sandra Cash, of $308 and then shot her and four others. Cash survived but Patrica Colter 54, her husband Duane 44, Alvin Walker 54, and Luva Congleton 68, were killed. Mosley, who confessed, now claims that he ran out after the first shot, but ballistics show that two guns were used in the shootings.

Solicitor General Paul Clement will take over for Alberto Gonzales as Attorney General until the President appoints a replacement according to this AP story by Mark Sherman.

Gonzales Resignation Coverage

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The President's statement on Attorney General Gonzales's resignation is here.

Coverage is available here from Evan Perez of the Wall Street Journal and here from Matt Apuzzo of AP. Homeland Security Secretary Chertoff is mentioned as a possible successor. Howard Schneider has this story in the WashPost. Richard Schmitt has this story in the LATimes. AP also has this set of mostly predictable quotes.

One beneficial side-effect is that the attempts of the anti-death-penalty crowd to make implementation of the AEDPA fact track reforms all about Mr. Gonzales personally have just been vaporized.

Update: Regarding the Chertoff speculation, I received a question by email on what Judge Chertoff's record on capital cases was on the Third Circuit. Very sparse, apparently. On a quick check, I found no opinions. He is listed as a member of the court that denied rehearing en banc in the Rompilla case, but that doesn't tell us much. The Third Circuit has a relatively small capital docket, compared to some of the others, because few cases make through state review in Pennsylvania, none make it through in New Jersey, and Delaware just doesn't have that many cases.

News Scan

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John Couey was formally sentenced to death for the kidnap, rape, and murder of 9-year-old Jessica Lunsford, Mitch Stacy reports for AP. "Outside court, [Jessica's father Mark] Lunsford had a message for Couey: 'Skip all these appeals. Take your punishment.' "

Witnesses to a sexual assault in a Saint Paul apartment hallway last Tuesday did not bother to intervene or call the police according to this AP story by Patrick Condon. A security camera video shows that at least 10 people saw the assault by Rage Ibrahim on a 26-year-old woman as it was taking place over a 90 minute period. Omar Jamal of the Somali Justice Advocacy Center, who is speaking on behalf of the attacker, said that there was no assault and that the incident was just a misunderstanding. The victim, who cried out for help during the attack, probably has a different take on this.

Alabama Murderer Executed: Luther Jerome Williams, convicted of the murder/robbery of John Robert Kirk in 1988, was put to death yesterday after the U.S. Supreme Court voted 5-4 to deny a stay. The Associated Press story by Gary Mitchell is here. A jury found that Williams, who claimed that an accomplice committed the murder, led his 63-year-old victim into the woods and shot him in the head with a gun he had found in a car he had stolen in Birmingham.

Crawford Case Update

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Here are updates on the two Crawford cases we noted here. Both cases have pending certiorari petitions in the U.S. Supreme Court on questions relating to the admissibility of a prior statement of the victim.

In Cage v. California, No. 07-5156, the state waived its right to respond, the court set the case for the "long conference" on Sept. 24, and the court then asked the state to respond.

In New Mexico v. Romero, No. 07-37, defendant got an extension to Sept. 10 but actually filed the brief in opposition on Aug. 21. I wouldn't be surprised to see this case on the long conference list as well. Jeff Fisher is now on the defense team.


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The controversy over the DoJ regulations implementing last year's amendments to the Antiterrorism and Effective Death Penalty Act of 1996 will be discussed this evening on the PBS program News Hour with Jim Lehrer. Kent Scheidegger of the Criminal Justice Legal Foundation and Virginia Sloan of the Constitution Project are scheduled guests. The segment is expected to be about 10 minutes, beginning about :35 after the hour. Many Eastern Time Zone stations carry the show live at 6:00 p.m. EDT.

Update: The transcript is here, with links to Real Audio and mp3 versions.

Update2: Streaming video is now up at the same place.

News Scan

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Maryland Governor Martin O'Malley is in no hurry to comply with an appellate court decision last December which requires new regulations on the state lethal injection process as reported in this Washington Times story by Tom LoBianco. O'Malley, who was elected Governor last November, is a death penalty opponent who would prefer to sign a bill to repeal capital punishment.

DNA Testing has linked a murderer on Georgia's death row to the 1975 rape and murder a 40-year-old Syracuse school teacher as reported in this Associate Press story. 56-year-old Carlton Gary was sentenced to death 21 years ago for the rape and murder of three elderly woman in Columbus Georgia. His appeals for these crimes are continuing.

Two New Papers That Look Interesting

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Time constraints prevent me for commenting at length about these articles, but both look quite interesting (subscription required):

Swanson JW, Van Dorn RA, Swartz MS, Smith A, Elbogen EB, Monahan J. Alternative Pathways to Violence in Persons with Schizophrenia: The Role of Childhood Antisocial Behavior Problems. Law Hum Behav . 2007 Jun 30.

Abstract: Violence in schizophrenia patients may result from many factors besides the symptoms of schizophrenia. This study examined the relationship between childhood antisocial behavior and adult violence using data from the NIMH CATIE study. The prevalence of violence was higher among patients with a history of childhood conduct problems than among those without this history (28.2% vs. 14.6%; P < 0.001). In the conduct-problems group, violence was associated with current substance use at levels below diagnostic criteria. Positive psychotic symptoms were linked to violence only in the group without conduct problems. Findings suggest that violence among adults with schizophrenia may follow at least two distinct pathways—one associated with premorbid conditions, including antisocial conduct, and another associated with the acute psychopathology of schizophrenia.

Alter AL, Kernochan J, Darley JM. Transgression Wrongfulness Outweighs its Harmfulness as a Determinant of Sentence Severity. Law Hum Behav. 2007 August.

Abstract: When students suggest sentences for criminal offenders, do they rely more heavily on the harmfulness or on the wrongfulness of the offender's conduct? In Study 1, 116 Princeton University undergraduates rated the harmfulness and wrongfulness of, and suggested appropriate sentences for, a series of crimes. As expected, participants emphasized wrongfulness when choosing an appropriate criminal punishment. In Study 2, 33 Princeton undergraduates made similar ratings for violations of the University Honor Code, and rated their contempt for fabricated amendments to the Code that required sentencers to focus either only on harmfulness or only on wrongfulness. Again, sentences more closely reflected wrongfulness ratings, and participants were more contemptuous of the harmfulness-based proposal. We also consider the theoretical and practical implications of these findings for sentencing laws and policy.

Death Sentence for Ault, Again

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Alicia & DeAnn"One juror noted afterward: 'Someone had to speak up for those two little girls.'" A Florida jury recommended the death penalty, for the second time, for Howard Steven Ault for the murder of DeAnn Mu'min, 11, and her sister, Alicia Jones, 7, Diana Moskovitz and Jennifer Lebovich report for the Miami Herald. Ault's first death sentence was overturned for Witherspoon-Witt error, excluding an anti-death-penalty juror. The Florida Supreme Court opinion is here.

Ault's attorney claimed mental illness, but most of the jurors didn't buy it. " 'He knew what he was doing,' said Daniel Polier, 23, of Parkland."

In a videotaped confession, recorded two days after the murders, Ault said he gained the girls' trust by visiting them at Easterlin Park, where they lived out of a station wagon with a camper with their mother and a younger sister, Nyssa, about 2.

Ault, in a chillingly calm voice, described matter-of-factly how he raped DeAnn on the floor of his Fort Lauderdale living room as Alicia watched helplessly from the couch. When he was done with DeAnn, he smoked a cigarette, then strangled Alicia.

When asked why he killed both children, Ault said: ``I was afraid of getting caught.''

The jury vote was 9-3 for the murder of DeAnn and 10-2 for the murder of Alicia, illustrating once again why jurisdictions with single-juror veto rules need to repeal them immediately.

More Sludge from the EU

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Update: Kathyanna Nguyen was murdered in a Houston convenience store in 1999, and Julian Gutierrez, a customer, was also shot. Justice for this crime was carried out today. Michael Graczyk reports for AP. About 7200 Texans who would otherwise have been murdered were not or will not be as a result of the 400 executions, if the Emory study estimate is correct. [End update.]

The BBC has this story on the EU's protest against the 400th Texas execution and that state's rejection of it. The EU declaration is here, and it includes this notable statement (emphasis added): "There is no evidence to suggest that the use of the death penalty serves as a deterrent against violent crime...."

Now, it is one thing to wade into the deterrence debate and make an argument as to why one does or does not find the studies indicating a deterrent effect to be convincing. It is quite another to flatly declare that no evidence exists. A person who says that is either deliberately lying or making a statement of fact without any attempt to determine if it is true. The most elementary search of the scholarly literature would reveal a large and growing stack of evidence that an actually enforced death penalty does have a deterrent effect and does save lives. There are, of course, critics and controversy on the subject, and definite proof one way or the other may not be possible, but no rational, informed person could doubt that there is indeed evidence of deterrence. Abstracts of articles from peer reviewed journals (on both sides, unlike some viewpoint-filtered collections) are here.

Oh, yes, the spokesman for Gov. Perry had this to say:

Two hundred and thirty years ago, our forefathers fought a war to throw off the yoke of a European monarch and gain the freedom of self-determination.

Texans long ago decided the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens.

While we respect our friends in Europe ... Texans are doing just fine governing Texas.

News Scan

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Oklahoma executes Brutal Killer
Frank Duane Welch was executed on Tuesday for a 1987 rape and murder that had gone unsolved for 10 years. Doug Russell of the McAlester News-Capital reports here that in 1996, DNA evidence linked him to the murder of Tracy Cooper. It’s ironic because as it happens, the execution is exactly 53 years to the day Debbie Stevens was born. She was another Welch victim killed in 1987. He was caught in 1994 when he attacked another woman in a parking lot and was sentenced to life in prison. Subsequently, DNA linked him to the Cooper and Stevens murders. Welch told his victims’ family members that what had happened to the dead women was his fault and his alone. “There’s nothing that can change the horrible thing I done,” he said while strapped to a gurney in the state’s execution chamber. “There’s nothing I can say that can change that. I’m truly, truly sorry for all the hurt and pain I caused y’all. I take full responsibility for what I done. There’s no excuse for it. There never was.”

400th Execution Again Focuses Attention on Death Penalty in Texas So reads the headline of this article by Jim Forsyth on the KQXT website. The 400th execution, scheduled for tonight, is of Johnny Conner, described as a "two bit hood." However, the article focuses on Kenneth Foster, whose execution is scheduled to take place on August 30. The Fifth Circuit opinion in Foster's case is here. The article gives the anti-DP line of the “law of parties” which allows accomplices to face the same punishment as the person who commits the crime. The article conveniently omits any mention of the federal constitutional limits on that law in capital cases. Under Tison v. Arizona, 481 U.S. 137 (1986), a felony-murder accomplice can be executed only if he personally intended to kill or acted with reckless disregard of human life. When you are on a crusade, there is no need to confuse people with the facts.

New Trial sought for Daryl Atkins Amanda Kerr of the The Virginia Gazette has this story on Atkins petitioning for yet another trial. Atkins attorneys filed a petition with the Virginia Supreme Court asserting that he deserves a new trial because York Commonwealth attorneys failed to disclose conversations they had with Atkin’s accomplice and co-defendent, William Jones. Daryl Atkins and his accomplice, William Jones, drove to a convenience store where they abducted Eric Nesbitt, an airman from nearby Langley Air Force Base. Unsatisfied with the $60 they found in his wallet, Atkins and Jones drove Nesbitt in his own vehicle to a nearby ATM and forced him withdraw $200. In spite of Nesbitt's pleas, the two abductors then drove him to an isolated location, where he was shot eight times, killing him.

Jose Padilla Makes Bad Law
This commentary in today’s Wall Street Journal by retired federal judge Michael B. Mukasey helps to illustrate the inadequacy of the current approach to terrorism presecutions in the U.S. and why the recent ending to Padilla’s trial makes for bad law.

A full-scale disinformation campaign is underway in response the U.S. Department of Justice's belated regulations to implement the amendments to the death penalty "fast track" of the Antiterrorism and Effective Death Penalty Act of 1996. Much of what we have seen is political spin, trying to tie the regulations personally to AG Gonzales, who has actually shown little interest in the subject. An op-ed by Erwin Chemerinsky printed last Thursday in the Los Angeles Times takes the grand prize, though. Along with the predictable opinion, this article is riddled with blatantly false assertions of fact.

News Scan

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EU Appeal: The European Union (EU), which forbids its members from enforcing the death penalty, has asked Texas Governor Rick Perry to introduce a moratorium on executions according to this Associated Press story. The Governor's office has indicated that he's mostly against this. On Wednesday, the state will put Johnny Ray Conner to death for the 1998 robbery and murder of Houston convenience store owner Kathyanna Nguyen.

Conviction Upheld: The racketeering conviction of former Illinois Governor George Ryan was upheld yesterday by the 7th Circuit as reported by AP writer Mike Robinson. Ryan was found guilty of receiving payoffs for steering government contracts to political insiders while he was Secretary of State. He became a hero to death penalty opponents when he commuted all the death sentences in Illinois on his last day in office in 2000. The Court's opinion is here.

Research Notes

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Here are a few notes from NCJRS's Weekly Accessions List:

Henry Brownstein, editorial board member of the Criminal Justice Policy Review on researchers as advocates: "[I]n increasing numbers, criminologists are entering the policymaking arena as researchers are casting off old notions of scientific objectivity in an effort to influence the direction of criminal justice policy." Just because a notion is old doesn't mean it's wrong.

Jeanine Baker & Samara McPhedran on the effects of Australia's 1996 gun control law, in the May issue of British Journal of Criminology: "Overall, there was insufficient evidence to support the argument that simply reducing the number of legally held civilian firearms will reduce either firearm homicides or accidental deaths.... Rates of homicide and accidental death did not significantly decrease following the 1996 NFA legislation."

John Lieberbach, et al., in the June issue of Criminal Justice Review on the political demand for racial profiling studies: "The findings of the pilot project expose the folly associated with mandating large-scale data collection on traffic stops absent sufficiently rigorous methodologies."

Jill Levenson and David D'Amora in the June issue of Criminal Justice Policy Review: "This literature review analyzes the history of current sexual offender policies, their development, and their implementation."

The prize for the most weirdly morbid publication goes to the July issue of the Journal of Forensic Sciences. Schellenberg, Racette, and Sauvageau report: "This paper presents the case of a 34-year-old man who died of asphyxia, secondary to body wrapping in the largest and most complex plastic bag ever involved in a published case of autoerotic death." The latter two have another article in the same issue: "Agonal Sequences in a Filmed Suicidal Hanging: Analysis of Respiratory and Movement Responses to Asphyxia by Hanging."

News Scan

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Texas Execution: The Dallas Morning News has this editorial in yesterday’s paper on Texas nearing it’s 400th execution this week, along with focusing more on the victim and less on the murderer.

Oklahoma Execution: Tracy Cooper discovered his wife's lifeless body in their living room at their home in February of 1987 in Oklahoma. Jo Talley Cooper, who was 12 weeks pregnant, was strangled and raped while her 7-month-old son lay unharmed in his crib in the other room. Frank D. Welch gained entry earlier that day by posing as a cablevision worker, even though he had knowingly been fired from work the day before. Ten years later a break was finally made in the case, after Welch’s DNA popped up matching DNA found at another murder that had similarities to Cooper’s crime scene. Authorities then tested Welch's DNA with the DNA collected from the Cooper residence and came back a match. The pro-death penalty website has the full and detailed story on this horrible, senseless crime. Welch is scheduled to be executed tomorrow in Oklahoma.

SCOTUS Summer Orders

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The Supreme Court issued this orders list today. Nothing exciting or unexpected. There is the usual list of rehearings denied, including Rita and Fry. In the upcoming federal sentencing cases, Kimbrough and Gall, petitioners were allowed to file part of the joint appendix under seal. Medellin gets to skip the joint appendix altogether. All the necessary materials are already available in the prior case joint appendix and the appendices to the two cert. petitions. We will put together a collection here before the oral argument.

New SCOTUS Rules

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The Clerk of the U.S. Supreme Court has issued a memo spelling out some details regarding compliance with the new rules going into effect in October. Attached to the memo are guidelines for electronic submission of briefs. At the very end of the document is this very welcome news: "Briefs submitted electronically should be available on the Court’'s web site the next business day."

Sex Crimes and Sentencing

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As I mentioned before, there's an interesting twist to the sex offender problem which involves the growing recognition that women can be sex offenders as well as men. This story from Interested-Participant, however, gives me pause:

The trial of 41-year-old mother-of-two, Phill Raije Rian, for sexual assault of a 16-year-old neighborhood boy concluded this month. Rian allegedly performed oral sex on the teen, who she knew because he mowed her lawn, on three occasions, each of which lasted between 15 and 30 minutes.

Rian was reportedly sentenced to 23 years in prison for these crimes. Being hard on sex offenders is understandable and right in most cases. But when the crimes involve the facts that this case does, one wonders whether this is the best sentence for all involved, especially when we consider that many offenders convicted of homicide crimes do not receive such lengthy sentences.

Culhane Gets 5 Years


Louis Sahagun reports in the LA Times:

A former defense investigator was sentenced today in Sacramento Superior Court to five years in prison for forging and fabricating documents to boost the appeals of four inmates on California's death row.
After a short hearing, Kathleen Culhane was led away in handcuffs.
Speaking on her own behalf before Judge Gary E. Ransom, Culhane, 40, fashioned herself as an anti-death-penalty crusader who broke the law "to save lives."
* * *
Prosecutors led by Senior Assistant Atty. Gen. Mike Farrell denounced Culhane's acts as one of the largest frauds against the legal system in California history.
In an earlier interview, Farrell said, "The scariest people are the ones who think the ends justify the means -- that's Kathleen Culhane."

Update: Scott Smith has this story in the Stockton Record, focusing on the notorious Morales case, one of the cases in which Culhane forged documents. Morales murdered 17-year-old Terri Winchell. Barbara Christian, Terri's mother, said of Culhane, "She stepped on the hearts of victims who have been waiting many years for justice for their murdered loved ones."

News Scan

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Jose Padilla has been convicted of supporting terrorism, according to this AP story.

Murderer Executed:

Suzie Malek A Texas man was executed Wednesday for the 1998 rape and murder of a single mother in Bay City, Texas as reported in this story by Peggy O'Hare in the Houston Chronicle. Kenneth Ray Parr was 18 when he and his younger brother broke into 28-year-old Suzie Malek's trailer as she lay asleep with her two young children. She was forced to the floor and raped before being shot twice in the head, with the children, then 6 and 8 watching. While in prison, Parr had been a discipline problem. In one incident he attacked a female officer and threw her down a flight of stairs.

Coverage of the Kevin Foster case has drawn the ire of blogger Ann Althouse. "I'm opposed to the death penalty, but I still want journalism about executions to play it straight." Also, "journalists need to report the facts in an accurate and neutral fashion, not from an advocate's position. " (hat tip: SL&P)

Evolving Standards of Lunacy

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Many death penalty proponents are quite skeptical of social scientists and this article (subscription required) in the current issue of Psychology, Public Policy, and the Law should add to that skepticism. The article, titled, Brain Imaging, Culpability, and the Juvenile Death Penalty by Jay D. Aronson of Carnegie Mellon University, at first blush, appears to offer a refreshing opposing view of the death penalty in a journal notorious for its bias on the death penalty issue (more on that in a moment). The abstract begins thusly:

In Roper v. Simmons (2005), the U.S. Supreme Court banned the death penalty for offenders under the age of 18 years. Central to Simmons’s defense was new brain imaging evidence suggesting that the regions of the brain responsible for decision making and impulse control are not as well developed in adolescents as in adults, thereby rendering adolescents less culpable for the crimes they commit. Although these images were not explicitly cited in the Court’s decision, they were hailed by anti-death penalty advocates as the wave of the future. However, legal advocates and scientists should be cautious in using cutting-edge neuroscience for criminal justice purposes for several reasons. First and foremost, no definitive link between brain structure and deviant behavior has been established. Furthermore, very little is known about the developmental threshold that separates juvenile decision-making ability from adultlike decision-making ability.

Sounds promising? But once the reader delves into the details of the actual article, one realizes that this is just one more one-sided, uncritical, biased view of neuroscience and the law. Why? Let's count the ways:

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Aaron Patterson, former cause célèbre of the anti-death-penalty movement, was sentenced to 30 years in prison on drug and weapons charges. He threatened the prosecutors as he was being led away, according to this Chicago Sun-Times story by Abdon Pallasch. Patterson was once on death row, but he was pardoned by subsequently convicted felon George Ryan in 2003. The Chicagoist has this post. Michael Higgins of the Chicago Tribune has this story.

Prison Overcrowding: Fifteen of California's 58 county district attorneys have filed a petition to block a decision by a panel of federal judges to release inmates from state prison as reported in this Associated Press story. The panel, announced on August 2, was ordered by two district judges to examine inmate lawsuits on prison conditions. Federal law allows the panel to order inmate releases when a state fails to adequately address unconstitutional conditions. The law requires the panel to seriously consider the effect of an inmate release on public safety. The district attorneys argue that a release would cause increases in crime.

Death Penalty: A story by Richard D. Schmitt in today's Los Angeles Times reports on the U.S. Attorney General's proposed fast track rules for capital cases. As we posted last week, the rules would give effect to the provisions of the 1996 Antiterrorism and Effective Death Penalty Act which sets limits on federal habeas corpus review for many death penalty cases. The headline and lead paragraphs in this article by Dan Eggen in the Washington Post make it sound like the Attorney General is grabbing power. Only in the third paragraph does the story mention briefly that Congress decided to vest this authority in the AG.

Illegal Immigrants who commit crimes are in the news this week. This story from Judicial Watch reports on an illegal who snuck back into Texas after being deported. Last Sunday he was free on bail from an assault charge when he got drunk and crashed a van into a car occupied by a young family in Houston. The three family members were killed, the immigrant survived. A story by Chris Freind in The Bulletin discusses Jose Carranza, the illegal-alien-habitual-criminal facing charges for the recent execution-style murders of three students in Newark. A piece by former Senator Fred Thompson in yesterday's Town Hall talks about sanctuary policies in some cities which prohibit local law enforcement from reporting illegals to federal authorities.

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Pedophile: Jack McClellan, the man who made the national news for admitting that he was a pedophile and maintaining a web site that reported on the best places to stalk little girls, was arrested near a UCLA child care facility yesterday as reported in this Associated Press story. McClellan was arrested for violating a restraining order prohibiting him from loitering around children.

Murderer Re-sentenced: An Allentown man who beat and burned a 61-year-old bar owner to death during a robbery 20 years ago has been re-sentenced to life in prison after a 2005 U.S. Supreme Court ruling which overturned his death sentence, as reported in this story by Genevieve Marshall and Daniel Patrick Sheehan in today's Morning Call. The Court's 5-4 decision, authored by Justice Souter held that defense counsel at the sentencing hearing failed to adequately investigate and present mitigating evidence of Rompilla's difficult childhood. "I personally feel the appeals process is out of hand," said the victim's son Timothy Scanlon, who was the person who discovered his father's body in a pool of blood.

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Murderer: Robert Amos, who spent 20 years in prison for the 1981 strangulation murder of a 69-year-old music teacher in Kansas City, has threatened to kill a police officer if Colorado does not give him a death sentence for the recent murder of a grad student, according to this story by David Montero in the Rocky Mountain News. Amos faces trial and sentencing for the kidnap and strangling of 24 year-old Alissa Morimoto on June 26.

Prisons: California is not the only state with a serious prison overcrowding problem as evidenced by this Associated Press story which reports on Oklahoma Governor Brad Henry's demand that the state legislature stop dragging its feet on funding for new beds. A story by Nina Shapiro in the Seattle Weekly reports that a shortage of prison guards has left a new Washington state prison empty while others are overcrowded.

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Wiretapping: Lawyers for detainees at Guantanamo Bay have filed a lawsuit to block enforcement of the recently enacted federal law allowing warrantless wiretapping of international calls to suspected terrorists. The San Francisco Chronicle story by Bob Egelko reports that the latest suit will be among 40 others from around the nation transferred to Chief U.S. District Judge Vaughn Walker in San Francisco.

Murder Victims: The U.S. Department of Justice released a report today indicating that while blacks make up only 13% of the nation's population they account for nearly half of all murder victims and are also disproportionately victims of violent crimes. A story in indicates that with 93% of black victims and 85% of white victims, the murderer was the same race as the victim. So, when police focus on urban, mostly minority districts, are they racists, or are they going where most of the crime and crime victims are?

More Delay on Antidelay Regs

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In the Patriot Act renewal bill, Congress took the decision as to whether states have adopted mechanisms for state habeas counsel appointment, so as to qualify for the federal habeas fast track, away from the habeas courts (with their painfully obvious conflict of interest) and gave it to the US AG and the DC Circuit. DoJ then dragged its feet for 15 months before promulgating the proposed regulations on how to apply. Given that everyone knew this was coming for over a year, the 60 days allowed for comment was more than generous. But the capital habeas crowd did what they do best -- call for more delay -- and DoJ caved. The comment period is extended another 45 days.

The announcement is here, 72 Fed. Reg. 44816 (Aug. 9, 2007). I've also copied the pertinent text into this post after the jump. The excuse of malfunction in the system for viewing other people's comments is really weak. Commenters on regs have no right to see others' comments first. After all, nobody sees in advance comments submitted on the last day, as many are.

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Lethal Injection: An Administrative Law judge in North Carolina has ordered the panel, which had revised the state's lethal injection protocol earlier this year, back to the drawing board because it failed to consider arguments from lawyers representing condemned inmates, according to this Associated Press story by Mike Baker. This follows an earlier ruling by a federal judge which requires that medically trained personnel monitor inmates during executions and an announcement by the State Medical Board that doctors who do participate would be punished.

Prison Overcrowding: Today's Los Angeles Times debate between "Three Strikes" author Mike Reynolds and opponent Barry Krisberg focuses on California's prison overcrowding problem. It appears that Reynolds and Krisberg actually agree that transferring federal criminals serving time in state prison to the federal system would go a long way toward relieving overcrowding. Krisberg even suggests that deporting illegals in state prisons or transferring them to federal custody is worth looking into. Amen to that.

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Missouri Injection Case: The Eighth Circuit has denied rehearing en banc in the challenge to Missouri's lethal injection procedure, according to this AP story. The panel opinion is here.

Do Consequences Matter?: The Los Angeles Times is running a series of articles debating crime and punishment in California. Today's exchange between Dr. Barry Krisberg, President of the Oakland based National Council on Crime and Delinquency, which opposes tough sentencing, and Mike Reynolds, the author of California's Three Strikes law, express their views on the relationship between sentencing and crime rates.

Terrorist surveillance legislation that passed Congress over the weekend is the subject of this editorial in the Wall Street Journal (free).

Differing Takes on the death penalty are presented in stories from four news sources published today. Pennsylvania's Lancaster News Era available here talks about that state's difficulties in enforcing its law. A piece from the Blogger News Network found here, addresses the early calls by abolitionists to spare the murderers of Jennifer Hawke Petit and her daughters. A story in the Hartford Courant here reports on the defense team which will represent the two suspects charged with the murders and a story the New York Post here reports that larger questions about how the criminal justice system is working are raised in a case like the Petit murders.

Global Positioning Bracelets, which are required for sex offenders and other criminals in some states, have little effect on reducing crime according to some experts such as Berkeley Criminologist Franklin Zimring. But many in law enforcement believe that such monitoring can help identify suspects and exclude the innocent as reported in this Sacramento Bee story by Dorsey Griffith.

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John Couey, "the man convicted of kidnapping and raping 9-year-old Jessica Lunsford is not mentally retarded and is eligible for the death penalty, a Citrus County [Florida] judge ruled Tuesday" says this AP report. "The conclusion is inescapable and irrefutable that the defendant John Evander Couey, is not retarded by any legal or societal standard,'' Judge Ric Howard wrote in a 16-page ruling. Retardation litigation has followed a predictable pattern. The first step was to get the Supreme Court to draw a categorical line of exclusion. The second step is to blur the line to include within the excluded class people who would never previously have been considered retarded. Fortunately, it appears most judges and juries are rejecting the bogus retardation claims. Unfortunately, a few are buying it.

Death Penalty: The California Supreme Court has unanimously affirmed the death sentence given fifteen years ago to an Anaheim woman, according to this Orange County Register story by Larry Welborn. Maria del Rosio Alfaro murdered a nine-year-old girl by stabbing her 57 times during a residential burglary. The Court's opinion is available here.

Murderer Registry: The Chairman of Hawaii's Senate Public Safety Committee plans to introduce a bill which would post the names and addresses of convicted murderers who have been released from prison, according to a story by Honolulu Advertiser reporter Dan Nakaso. The idea for the registry, which would be patterned after the state's sex offender registry, follows the arrests of two convicted murderers who were free on parole. Peter Bailey was sentenced to life with parole for the murder of a 17-year-old girl in 1979. He was arrested last month for raping a 12-year-old girl. Darnell Griffin has been charged with the rape and murder of a 20-year-old woman. He had a previous conviction for murdering another woman and was released from prison in 1996.

Death of a Journalist is the subject of an editorial in today's San Francisco Chronicle. It focuses on Oakland Post editor Chauncey Bailey, who was gunned down while walking to work last week. Bailey was doing investigative reporting on corruption at a black Muslim center when he was killed by shotgun fire. Seven other murders have occurred in Oakland since Bailey was killed. The Chronicle wants lawmakers to "get guns off the streets and bring perpetrators to justice and to get at the root causes of violence." This crime raises several serious questions about law enforcement policies in the Bay Area, which appear not to have changed much since the 1960s. The editorial reads like it was written then.

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Western Australia Liberal MP Rob Johnson seeks to reintroduce the death penalty there, based on the overwhelming views of his constituents. He concedes the chances of his party endorsing the change are remote. Joe Spagnolo reports for Perth Now.

"The family of a murder victim is furious with the idea of a kinder, gentler death penalty in Florida," reports "I just want to scream. I can't believe it," said Junny Rios Martinez. "New procedures, standards of decency, concept of dignity and advances of science. Where was that when this maggot [Mark Schwab] kidnapped, tortured and murdered my son?"

Sen. Dianne Feinstein is being attacked for casting the deciding vote in the Senate Judiciary Committee for Fifth Circuit nominee Leslie Southwick, Bob Egelko reports in the SF Chron. Southwick has been the target of a smear campaign. Sen. Feinstein's courageous vote is denounced by the usual contrarian indicators: Nan Aron, Barbara Lee, and Maxine Waters.

"Rwandan Justice Minister Tharcisse Karugarama said Thursday that Rwanda has signed extradition treaties with countries in Africa, Europe, and North America following its abolition of the death penalty in July. The law ending the death penalty, which took effect July 25, was largely motivated by Rwanda's desire to receive extradited suspects accused of crimes in the 1994 Rwandan genocide," reports Michael Sung of JURIST at U. Pitt. Law School.

Citizens Using the Internet to Solve Crimes A murdered father. A missing brother. Precious items stolen from one's home. These sorts of crimes are prompting ordinary citizens to fight back, and the weapon they're using is the Internet. Police forces around the country are having difficulty keeping up with their case loads and victims of crime, who want the perps caught, are using the internet to help give their cases more exposure. This story from ABC news has a few examples of how citizens have been using the internet to help police solve crimes as it introduces a new series called I-Caught.

Florida Law aims to sort sex offenders from 'Romeos’ Under Florida law, 18-year-olds who ave sex with 17-year-olds are listed in the state's database of sexual predators. This story in the Orlando Sentinel explores how a new law offers a way for such offenders to have their name removed from the data base. Denis deVlaming, an attorney for a man branded as a sex offender, says that teenagers experimenting with sex with another “should not be lumped in with the predators.”

Trial Starts in 24-year-old Mass Murder Case
The Houston Chronicle reports here that twenty-four years after five people were taken from a Kentucky Fried Chicken restaurant in Kilgore, Texas, and murdered, the jury selection begins this week for one of two people charged with the crime. Romeo Pinkerton faces five counts of capital murder and a possible death sentence if convicted. His accomplice and cousin, Darnell Hartsfield, will be tried separately sometime next year.

Note: A rebuild of the site was needed this afternoon to deal with a technical problem. Some recent comments may have been accidentally deleted. We apologize for any inconvenience.

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Parole: Governor Schwarzenegger will not veto the decision to parole a Los Angeles woman who murdered her abusive boyfriend, according to this San Francisco Chronicle story by Bob Egelko. In 1982, eighteen-year-old Flozelle Woodmore shot and killed her boyfriend after an abusive five-year relationship. Their two-year-old child witnessed the killing. This would have made Woodmore 13 years old when the relationship began, and sixteen when her two-year-old child was born. She was convicted of second degree murder and given a 15-to-life sentence. If there was a better case where parole was justified, we would like to see it.

Sex Offenders: More examples of what happens in states that do not keep repeat sex offenders behind bars are described in a story from the Charlotte Observer and another from the Seattle Times here. Both cases involve rapists convicted of multiple offenses who kidnapped and raped new victims after their release. The North Carolina criminal had received a 25-year sentence for a sexual assault in 1984, but was out again nine years later when he was convicted of kidnapping, rape and assault with intent to kill. He was sentenced to 20 years for these crimes but was out on the street again last Tuesday when he was arrested for kidnapping a young mother, raping her at gunpoint and then attempting to run her over with his car. The Washington case involves Pierre West, a Spokane Valley man with two prior rape convictions who was arrested Thursday for the kidnapping, rape and assault of five women since 2005. Police got a break when his most recent victim ran naked from his house and reported the assault.

Yet Another Dubious Race Claim

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"We have a new study on car accidents. We have no data on whether the driver was drunk, how fast he was going, or what the weather was, but our study shows...." Need we read any further?  It is highly likely that this hypothetical study does not show diddly squat. If you have no data on the primary causal factors, coming up with anything useful on the factors you did study is unlikely.

Yet that is exactly the situation with a new study on race and executions getting much attention today. In the Newsweek story noted in today's News Scan, interviewer Eve Conant asks lead author David Jacobs about the nonracial factors that might affect who is executed:

[Conant]: Or the nature of the crime? Or was it simply race?

[Jacobs]: We don't have much data on the nature of the crime.

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California Prisons: The Chief Judge of the Ninth Circuit has announced her selections for the three-judge panel which will decide if the release of up to 37,000 felons from California prisons is necessary to alleviate overcrowding as reported in this story by San Francisco Chronicle reporter Bob Egelko. The two District Judges who had requested that the panel be formed, Thelton Henderson of San Francisco, and Lawrence Karlton of Sacramento, will be joined by Ninth Circuit Judge Stephen Reinhardt, to consider the release order. An initial appeal to block the formation of the panel by Governor Arnold Schwarzenegger, rejected earlier this week by the two district judges will be appealed to the Ninth Circuit according to Jurist reporter Michael Sung's story here. The odds that the Governor will prevail are poor.

Study Claims Race Influences Executions: Eve Conant with Newsweek reported yesterday on a study in the August issue of American Sociological Review regarding the disparity in race when it comes to executions. Conant reports that the released study “claims to be the first of its kind to study whether the race of murder victims affects the probability that a convicted killer gets the ultimate punishment.” In part of Conant’s interview with David Jacobs, the co-author and professor of sociology and political science at Ohio State University, Jacobs states, “The findings, in short, show that we clearly value white lives more than those of blacks or Hispanics.”

Inmate breaks Record: Illinois’ longest serving inmate was unanimously denied parole earlier today by the Illinois Prisoner Review Board. William Heirens plead guilty to killing two women in 1946 and strangling to death a 6-year-old girl, who afterwards was dismembered. Heirens, who was charged with 3 back-to-back life term sentences, has spent more that 60 years in prison, setting a new record for longest serving inmate in history. Although Heirens attorney has stressed he should be released because of failing health, the victims’ families say they live in fear of him being released one day. The story reported by Michael Higgins with the Chicago Tribune, indicates that Gov. Ryan denied Heirens clemency back in 2002.

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Pedophile “considering” a lawsuit against the Santa Monica police department: 45-year-old Jack McClellan, who’s an acknowledged pedophile, became upset after learning that the Santa Monica police department posted a picture of him on their website. McClellan had created a website while living in Seattle for other pedophiles, where he posted pictures of little girls, suggested locations of where kids could be found, and even created a rating system for pedophiles to use. The website has since been shut down. Now living in Santa Monica, flyers of McClellan are being spread around town to residents and parents with his vehicle information and recent sightings. McClellan, who doesn’t like the fact that flyers of him have surfaced, clearly admitted “he would have sex with little girls if it weren’t against the law,” as reported in yesterday’s Fox News story.

Los Angeles gangs
: A crackdown on gangs yesterday by local and federal officers netted the arrests of 43 gang members and associates. Guns, drugs and cash were also seized in the early morning raid of known gang and drug houses. The LAPD, the LA city attorney, LA district attorney, U. S. Attorney General, and Bureau of Alcohol, Tobacco, Firearms and Explosives all took part in this five-month undercover investigation reports staff writer Sam Quinones of the LA Times.

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