September 2007 Archives

News Scan

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LA Homicides have dropped to near 1970 levels according to this Associated Press story. Part of the drop has been attributed to an LAPD gang-intervention program utilizing former gang members.

Sex Offender Melvin Jones was sentenced to 50 years in prison after pleading guilty to stabbing an eleven-year-old boy to death last year, as reported by Baltimore Sun reporter Julie Bykowicz. Jones, who was previously convicted for molesting another boy for more than a year, met his next victim's family shortly after his release from prison in 2002. Irvin Harris was an A student who played Pop Warner football. His body was found behind a church with 14 stab wounds in the chest and several on his arms and hands, indicating that the boy fought for his life.

Texas Stay

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Michael Graczyk of AP has this story on the Supreme Court's grant of a stay of execution yesterday to Texas murderer Carlton Turner. The order is here. The reason why a stay was granted in this case and denied in the case of Michael Richard is not completely clear.

Turner was 19 when he shot Carlton Turner Sr., 43, and Tonya Turner, 40, several times in the head. Prosecutors said Turner had dragged the bodies through the house before dumping them in the garage, then had friends over that weekend for a party.

Maybe Carlton Turner, Jr. got a break because he's an orphan.

Bockting, Again

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In February, the Supreme Court unanimously reversed the Ninth Circuit in the case of Whorton v. Bockting, holding that Crawford v. Washington was indeed a new rule and not retroactive to cases final on appeal before it was decided.

Today, the Ninth Circuit decided 2-1 that the Nevada Supreme Court's application of the then-governing precedent of Idaho v. Wright was indeed reasonable and affirmed denial of habeas relief. Judge Noonan, author of the previous preposterous concurring opinion that Crawford was not new, now opines in dissent that the Nevada Supreme Court was unreasonable.

In theory, the reasonableness standard should guarantee that correct state court decisions are not wrongly overturned on federal habeas, a huge problem in the Ninth Circuit before AEDPA. The gap between correct and unreasonable should be large enough that no federal judge would declare unreasonable a decision that the Supreme Court later finds is correct. Regrettably, we cannot assume this will always be the case.

News Scan

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Patriot Act: A federal district judge in Oregon has ruled two key provisions of the Patriot Act unconstitutional as reported in this Associated Press story by William McCall. The opinion by District Judge Ann Aiken held the search and wire-taping provisions of the Act "extra constitutional". Orin Kerr has an analysis at the Volokh Conspiracy.

Mistrial: The judge in the Phil Spector murder case has declared a mistrial according to an Associated Press story by Linda Deutsch. The judge issued the ruling after learning that the jury was deadlocked 10-2 in favor of conviction. A juror in the majority said that the holdouts wanted psychiatric evidence that the victim, Lana Clarkson was not suicidal. The District Attorney is expected to announce the intention retry Spector at a hearing on October 3.

DeLay Dismissal Affirmed: The Texas Court of Criminal Appeals has rejected a request to reconsider a trial judge's ruling dismissing election-law conspiracy charges against former House Majority Leader Tom DeLay as reported in this story by AP writer Kelley Shannon.

Alabama Stay: Gov. Riley stayed the execution of Thomas Arthur for 45 days. Statement here. “The evidence is overwhelming that Thomas Arthur is guilty and he will be executed for his crime. The decision to grant a brief stay is being made only because the state is changing its lethal injection protocol, and this will allow sufficient time for the Department of Corrections to make that change,” Governor Riley said.

Long Briefs

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Peter Lattman at WSJ Law Blog has this post on the motion of Daniel Petrocelli, counsel for fallen Enron honcho Jeff Skilling, to file a brief over four times the normal size limit. The brief came in at 58,922 words, or 239 pages. Judge Higginbotham of CA5 granted the motion.

Meanwhile, back at Mt. Olympus, counsel for petitioner in Medellin v. Texas, No. 06-984, asked to file an oversize reply brief. The reason, you see, was that the respondent was supported by six amicus briefs. Did the State need to point out that there were nine amici on the top side, and they still stayed within the page limit for the answer brief? Nah. This motion went to Justice Scalia. Denied.

More on Richard Execution

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Turns out the Court appended the denials of stay in the Michael Richard case to the Tuesday orders list, rather than publishing them separately as I expected. No dissents are noted. Thanks to "federalist" for pointing this out.

Crime Stats and Policy

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Michael Connelly over at Corrections Sentencing has this post regarding the latest criminal justice statistics showing an increase in reported violent crimes. Connelly's post argues that most pundits are missing the chance to suggest that more crime leads to worse laws; that is, the fear of violence drives legislatures to enact unwise, and presumably harsh, laws. Indeed, our criminal justice policies are not wise when prompted by emotions. Moreover, given the innumerable variables that likely affect crime from year to year, the latest statistics might just represent normal variation instead of the beginning of a trend -- only time will tell. However, this part of Connelly's post deserves a brief comment:

"Why not point out that the resources devoted to putting tokers in prison could be put into cops on the street"

Many folks within the criminal justice reform movement often make these types of assertions: that the money spent on incarceration would be better spent putting more police on the street. But more police means more enforcement, which means more punishment. Such a policy would likely lead to more incarceration, the very phenomenon reformers dislike. Prevention efforts are noble yet the evidence is lacking that they actually work. Many supporters cite to various studies suggesting that programs like drug courts work; yet the methodology used in these studies leaves much to be desired.

Texas Goes Forward

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Predictions that the Supreme Court's grant of certiorari in the lethal injection case, Baze v. Rees, would place a nationwide hold on executions until the case was decided were disproved in short order. Texas tonight carried out the execution of Michael Richard, who raped and murdered Marguerite Dixon in her home 21 years ago. Michael Graczyk reports for AP. The Attorney General's fact sheet is here.

Is Baze the new McCleskey?

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There is lots of excitement over the Supreme Court's grant of certiorari on the lethal injection issue in Baze v. Rees, noted in our cert. grant post this morning. I even got a call from Australian Broadcasting. They asked me if this case would mean the end of the death penalty. Hardly.

SCOTUS Cert. Grants

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The U. S. Supreme Court has released the orders list from the "long conference" yesterday. Here are the criminal cases accepted by the Court for review:

Virginia v. Moore, No. 06-1082, a search and seizure case. The Virginia Supreme Court opinion is here. The case summary from the state court's website reads:

In a drug prosecution, violation of the requirement under Code § 19.2-74 that police issue a summons to a person detained for a Class 1 misdemeanor and forthwith release him from custody upon his promise to appear at a specified time and place, rendered the fruits of a later search of the individual unconstitutional. The Fourth Amendment forbids expansion of the search incident to arrest doctrine to include a search incident to citation. The judgment of the Court of Appeals upholding his conviction is reversed and the charges are dismissed.

United States v. Rodriquez, No. 06-1646, is a federal sentencing case involving the "three strikes" provision of the Armed Career Criminal Act. The QP is "Whether a state drug-trafficking offense, for which state law authorized a ten-year sentence because the defendant was a recidivist, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e) (2000 & Supp. IV 2004)." Here are the certiorari petition and the Ninth Circuit opinion.

Begay v. United States, No. 06-11543, is another ACCA case, in which the Tenth Circuit held, "that (1) felony driving while intoxicated is a violent felony under the ACCA, and (2) a district court may impose a sentence outside the Guidelines range even if a sentence within the range would be reasonable."

Gonzalez v. United States, No. 06-11612, is a Fifth Circuit case considering "the conditions under which jury selection may be permissibly delegated to a magistrate judge. Homero Gonzalez was tried and convicted by jury. On appeal, he claims that the delegation of voir dire to a magistrate judge without his express personal assent was erroneous. [CA5] disagree[d] and affirm[ed]."

Baze v. Rees, No. 07-5439, is a Kentucky Supreme Court case regarding the constitutionality of lethal injection.

All of the cases today are on slightly condensed briefing schedules to get them briefed for the January argument session.

News Scan

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The Nine, Jeffrey Toobin's controversial book on the Supreme Court, is reviewed by Ann Althouse in the New York Sun. She says it is an "impressionistic psychodrama" with "contempt for the reasoning" of opinions. She also contends that Toobin simply ignores an important case that "that would mess up the narrative arc of his story" regarding conservatives and liberals on the Court. (Hat tip: How Appealing.)

Warren Richey has this mostly positive review in the Christian Science Monitor. Not until the third online page does he say, "There are times in 'The Nine' when Toobin reveals more about his own legal and political preferences than would be the case in a strictly objective account of the inner workings of the high court." Eugene Volokh and Orin Kerr weigh in at VC. Ed Whelan has multiple posts at NRO Bench Memos.

The Vienna Convention does not create individual rights enforceable in a civil rights action under 42 U.S.C. § 1983, the Ninth Circuit holds in Cornejo v. County of San Diego. Opinion by Judge Rymer. Judge Alarcon concurs. Judge Nelson dissents.

Prisoners Escape: Two violent criminals overpowered and killed a female guard and escaped from a work detail this morning near Huntsville, Texas, as reported in this Houston Chronicle story by Mike Glen. John Falk was serving a life term for robbery/murder and Jerry Martin a 50-year sentence for attempted murder. The guard was killed when the convicts stole her truck and ran over her. Both were recaptured. A story by Erin Alberty in the Salt Lake City Tribune reports that two convicted Utah murderers, who escaped from county jail Sunday, are still at large and considered dangerous. Danny Gallegos, convicted of aggravated murder in 1991, and Juan Diza-Arevelo, convicted of murder and child abuse last year, had been transferred to county jail to relieve prison overcrowding. Probably not a good idea.

The ABA, which still pretends it is not opposed to the death penalty, issued another of its predictable state reports, this time on Ohio. Andrew Welsh-Huggins reports here for AP. "'The claims are unsupported and the recommendations are a defense lawyer's wish list,' said [John] Murphy, executive director of the Ohio Prosecuting Attorneys Association....He said the nine-person ABA panel was dominated by death penalty opponents."

Weekend Notes

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Jena, La. is the dateline and subject of this long AP article by Todd Lewan. The thrust is that the story there is not as simple as many believe, and some important facts have been misreported.

The North Carolina Medical Board overstepped its authority by injecting itself into the execution controversy, a state judge ruled. Mike Baker reports for AP.

Cunningham, Chili, & Fingers

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Yesterday, the California Court of Appeal decided the case of Anna Ayala, who infamously tried to defraud Wendy's by putting a human finger in her own chili. Henry Lee of the SF Chron has this story. The case involves issues under the U.S. Supreme Court's decision in Cunningham v. California and the California Supreme Court's follow-up in People v. Sandoval. As we all know, "eeeewwww, gross!" is not one of the sentencing factors specified in the California Rules of Court.

The Long Conference

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Tom Goldstein at SCOTUSblog has his very valuable "petitions to watch" list, plus a version sorted by category, at this post. The Long Conference is Monday, with a probable orders list on Tuesday. The Crawford case of New Mexico v. Romero, previously noted here, is on the list. In Cage v. California, also discussed in our prior post, the state has an extension to October 15 to file the brief in opp., so it won't be considered at this conference after all.

Other criminal cases on Tom's list include Chester v. Texas on Atkins standards, Missouri v. March on lab reports under Crawford, Missouri v. McFadden on challenging a juror with "crazy red hair" as covert race discrimination*, Bell v. California on comparative juror analysis, Virginia v. Moore on the Fourth Amendment and state law limits, and Sasouvong v. Washington on Apprendi and juvenile priors.

News Scan

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Campus Shooting: Two Delaware State University students were shot early this morning as reported in this Associated Press story by Randell Chase. Classes for the day were canceled and the campus was locked down. Police have identified two people of interest and have one in custody for questioning. The victims, 17-year-old male and female students, were returning from a cafe just before 1:00 AM with a group of other students when they were shot. The female was shot in the abdomen and is listed in serious condition. The male was shot in the ankle.

Mexican Drug Cartels are operating throughout the United States, generating up to $23 billion in revenue, according to a GAO report. A story by Washington Post writer Manuel Roig-Franzia cites the report as evidence that Mexico is the largest conduit for drug smuggling into the U.S with methamphetamines being the fastest-growing drug to cross the border. The report found that efforts to reduce drug-trafficking have failed due to government corruption in Mexico and inadequate coordination between U.S. and Mexican law enforcement.

A Murder Suspect was shot and killed by an Oakland police officer yesterday as reported in this San Francisco Chronicle story by Henry K. Lee. It was the third fatal officer-involved shooting in the crime-ridden city this year.

DP for Child Killer: An Ohio man, found guilty of raping and torturing his girlfriend's three-year-old son to death, has been given a death sentence as reported in this story by Cincinnati Enquirer reporter Sharon Coolidge. A three-member panel of Hamilton County jurists called Lamont Hunter the "lowest form of dehumanized individual,” for "the brutal murder and rape of little Trustin Blue." The Court also blamed Hamilton County Family Services officials for placing the little boy back into the abusive environment which led to his death.

News Scan

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Illegal Immigration: The recent murder of a Phoenix police officer by an illegal immigrant, who had been deported once and arrested eight times, has focused attention on the federal government's failure to secure U.S. borders, according to this story by Mike Sunnucks in today's Business Journal. The story cites a Federation for Immigration Reform report which found that while illegal immigrants make up 3 percent of the total U.S. population they make up 4.5 percent of the prison population.

Crime in Schools and Colleges is being underreported according to a report by the attorneys general of 27 states cited in this story by Stateline.org staff writer John Gramlich. The report calls for both state and federal offense reporting and accountability requirements to provide an accurate picture of how much crime occurs on campuses across the country.

Tennessee Injection Injunction

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A federal district judge has enjoined executions under Tennessee's new injection protocol. The decision in Harbison v. Little is here. On a quick read, the main reason seems to be the lack of an unconsciousness confirmation step in the protocol. The alternative of a single-drug protocol is also discussed.

Update: Erik Schelzig has this story for AP. The plaintiff, Edward "Harbison was scheduled to be executed Sept. 19 for beating an elderly woman to death during a burglary in 1983."

Albert Brown

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Twenty-seven years ago, the ultimate nightmare of every parent of a teenage girl came true for the parents of 15-year-old Susan Jordan. She walked to school one morning and never arrived. Albert Greenwood Brown had raped and murdered her. He had raped before, but this time he made sure not to leave a living witness.

The federal habeas case was decided by the Ninth Circuit today. The three judge panel, without dissent, affirmed denial of habeas. The case had previously been reviewed by the California Supreme Court three times and by the federal district court.

State court proceedings took far too long, but even after the state courts were finished, this case took another eight years in federal court. What was the claimed injustice that justified dragging out this already extended case another eight years? Not much. No guilt-phase claims even justified a certificate of appealability. The penalty phase claims are weak allegations that defense counsel might have handled the mental expert better and might have done a better job digging up "abuse excuse" evidence. Nothing defense counsel might have presented comes remotely close to outweighing the facts that Brown raped a teenage girl and had done it before.

Cases such as this illustrate that federal habeas review of the penalty phase is doing more harm than good. If federal courts cannot dispose of weak claims such as this in a reasonable time, then they should stop doing it at all. If the guilt and death-eligibility determinations are sound, then execution is not a miscarriage of justice. If the state courts have given the penalty phase procedural claims a fair review, a second review of those claims in federal court is not worth the time and resources now being spent.

It is high time to extend the rule of Stone v. Powell, 428 U.S. 465 (1976) to all claims having no bearing on the reliability of the determination of guilt or the eligibility for the punishment.

News Scan

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Gitmo Habeas: Senate Democrats yesterday failed to muster enough votes to cut off debate on repealing the portion of the Military Commissions Act that repealed habeas corpus jurisdiction for the detainees in Guantanamo, reports Jonathan Weisman of the WashPost. The Supreme Court will decide in the Boumediene and Al Odah cases if that repeal was constitutional. "Bottom side" briefs are due October 9. Argument in December(?).

Anti-Gang Injunctions in San Francisco have created a rift between public defender Jeff Adachi and City Attorney Dennis Herrera according to this SF Chronicle story by reporters Jonathan Curiel, John Cote' and Marisa Lagos. Herrera, the first Hispanic to hold the City Attorney's post, is using injunctions identifying specific Latino streets gangs as public nuisances, to restrict named members from gathering, displaying their colors or flashing gang signs in designated neighborhoods. Such injunctions, which have been used to break up gangs throughout California, allow police to arrest and search known gang members who violate the restrictions. More serious charges can be brought against gang members caught with drugs or weapons in their possession. Adachi says his office has received reports that police are engaging in racial profiling, Herrera has responded that such claims are inflammatory and inaccurate.

Bong Hits 4 Roberts: Tony Mauro of Legal Times reports on the BLT that a someone held up a sign reading "Bong Hits 4 Roberts" as the CJ led a procession to a ribbon-cutting ceremony, following his First Amendment speech at Syracuse. In Morse v. Frederick, the CJ wrote the opinion holding that a principal did not violate the First Amendment in taking down a student's banner reading "Bong Hits 4 Jesus".

The Nine

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David Garrow has this scathing review in the LA Times of Jeffrey Toobin's book on the Supreme Court, which he says "showcases debatable opinions rather than thorough research or original reporting."

Michael O'Donnell in the SF Chron is disappointed we still don't know where those gold stripes came from.

USA Today printed this excerpt last month, including this remarkable statement about the Federalist Society: "But the new generation of conservatives had more audacious goals. Indeed, they did not believe in judicial restraint, and they represented a new kind of judicial activism themselves."

In the Federalist Society, as in any organization of any size, there are people of many and varied opinions. Some do fit that description. But to say the group as a whole advocates a return to conservative judicial activism, such as we had in the Lochner era, is a bit absurd. Belief in judicial restraint is very much the majority view. Toobin is wrong on this. What else is he wrong about?

Blog Scan

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A few notes from around the blogosphere:

SCOTUS and the election: Tom Goldstein at SCOTUSblog has this long post on the OT 2007 term and the 2008 election. Contrary to conventional wisdom, he thinks the "liberal" side may win the highest profile cases of the term and the issue of the Supreme Court may be more effective at rallying the Republican base than the Democratic base. "In particular, conservatives in 2008 could use the five cases cited above to articulate a very coherent theme of 'law and order' and 'victims rights' around the need to move the Court one further step to the right."

The Duke lacrosse case is the subject of multiple guest posts at the Volokh Conspiracy by Stuart Taylor and K.C. Johnson, authors of a book on the subject. This post takes particular aim at the Group of 88, Duke U. faculty members.

DP & pleas: Doug Berman at SL&P weighs in on the Arellano case noted in today's News Scan and the impact of the death penalty on plea bargaining.

AEDPA Law & Policy Blog appears to be defunct. The last post there is for Panetti on June 28. That's unfortunate.

Acting AG Peter Keisler, and the NYT's snarky editorial, are the subjects of this post by Ed Whelan at Bench Memos.

News Scan

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Mexican Drug Kingpin Francisco Javier Arellano Felix, allegedly responsible for murders in both Mexico and the United States, has accepted a plea bargain which will result in a life sentence rather than the death penalty according to this Los Angeles Times story by Tony Perry.

Wiretapping: Former CIA intelligence analyst Bruce Berkowitz has this piece in today's Wall Street Journal regarding the continuing political battle over the wiretapping of the overseas telephone conversations of suspected terrorists.

The Mukasey Nomination is endorsed in this Wall Street Journal editorial. Key quote, "Earth to Washington: You finally have the right man for the right job at the right time. Try not to screw this one up."

Internet Access to Plea Bargains in federal cases will be curtailed if the federal judiciary grants a request made recently by the Justice Department. Since 2004, federal courts have allowed public Internet access to all nonsealed plea agreements in electronic case files. An article in LAW.COM by Marcia Coyle of The National Law Journal, reports that Justice wants the change to protect defendants who receive plea deals in exchange for co-operating with police, often identifying other criminals. The story includes Kent Scheidegger's take on the proposed restriction.

Academic Hypocrisy is the focus of today's Dan Walters column in the Sacramento Bee. He notes that academia went nuclear when professor Erwin Chemerinsky was denied the Dean's post at the U.C. Irvine law school, allegedly for his ultra-liberal views. The clamor got so loud that Irvine's chancellor recanted and gave Chemerinsky the job back. But when an invitation to have former Harvard Dean Lawrence Summers address a UC Board of Regents Dinner was pulled last Friday, due to his politically incorrect views, it was because of pressure from the same crusaders of academic freedom. For anybody who pays even the slightest attention, this type of hypocrisy is hardly news.

Chemerinsky Back In

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UC Irvine has this press release on the reversal of its controversial decision not to hire Erwin Chemerinsky as dean. "The law school, like all great educational institutions, will be a place of great diversity, where differing viewpoints are nurtured, debated and cherished." It would indeed be a very good thing if the school is not infected with the pandemic disease of Political Correctness, but that remains to be seen. The LA Times has this story by Garrett Therolf.

Meanwhile, on the opinion pages of the LA Times, 31 days have passed since they received actual notice that they had printed patently false allegations of fact on a matter of great public importance, as detailed here. So far, they have printed neither my letter nor the California Supreme Court's letter (described here) nor a correction.

And Now for Something Completely Different

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Our scan of new filings in the Supreme Court turned up a new petition by one of the Court's most colorfully named persistent litigants, Eurica Califorrniaa, Ambassador of the Juridic State of Nature. The docket is here, and the full petition is here. He wants a writ of mandamus to the U.S. Marshal "for a stay of lethal execution to prevent gestational children from being made victims of homicide." A docket search for Mr. Califorrniaa's uniquely spelled name turns up two previous filings. The probability of this one receiving the same treatment asymptotically approaches unity. Without disparaging the seriousness of the underlying issue, this joker and his filings provide some amusement.

AG Nomination

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The transcript of the President's announcement of the nomination of Judge Michael Mukasey to be Attorney General is now available. Devlin Barrett of AP has this long story.

Judge Mukasey's best known cases during his judicial tenure are both terrorism related. He presided over the trial of the first World Trade Center bombing case. He also handled the Padilla case, which eventually went to the Supreme Court. His opinion in that case is in the appendix to the government's certiorari petition, which we have uploaded here. The opinion is pages 76a-162a of the petition, which are pages 111-201 of the PDF file. The published version is Padilla v. Bush, 233 F. Supp. 2d 564 (DC SDNY, 2002).

It is a thoughful and well-written opinion. We at CJLF disagreed with Judge Mukasey's conclusion on jurisdiction in this brief, and the Supreme Court overturned it in Rumsfeld v. Padilla, 542 U.S. 426 (2004). However, the issue was unsettled until the Supreme Court's decision, so it was within the realm of reasonable disagreement at the time.

Pending confirmation of Judge Mukasey, AAG Peter Keisler will be acting AG, so SG Paul Clement can go back to his main job.

Update: AP has this collection of Mukasey musings. My favorite is refusal to accept a mental mitigation argument in sentencing for a terrorist plot. "Forgive me if it sounds coldhearted, but people who are killed by people with limited capacity are just as dead as people killed by geniuses."

Scott Horton at Balkinization calls for confirmation.

More on the Chemerinsky Flap

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The LA Times has this story today by Garrett Therolf and Maura Dolan. Apparently there are some discussions under way about Chemerinsky getting the dean's job after all. Further down the story, we finally have the first awareness in the media that Chemerinsky printed falsehoods in his Aug. 16 article, not just that he expressed opinions. Turns out I wasn't the only one horrified at his claims and not the only one who wrote the LA Times about them. Add the Chief Justice of California in the same column.

News Scan

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Death Penalty: Columnist Laurence Cohen has this thought-provoking piece in today's Hartford Courant. He suggests that while the death penalty is the law in Connecticut, it will not be enforced, even for the pair who raped and killed Jennifer Hawke-Petit and her two daughters because "cowardly politicians and judges" won't allow it. He may be correct, but occasionally a particularly horrific crime can generate enough public outrage to frighten elected officials into doing their jobs.

Commutation: Tennessee Governor Phil Bredesen has commuted the death sentence of murderer Michael Joe Boyd due to "grossly inadequate legal representation" during his post-conviction hearings as reported in this Associated Press story by Kristin M. Hall. Boyd, who was convicted of robbery/murder in 1986, had a prior conviction for second degree murder.

News Scan

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A Death Penalty documentary currently in production will focus on the penalty's appropriateness for an absolutely guilty multiple-murderer. New York School of Law Professor Robert Blecker is the subject of the documentary. According to this story by Clint Confehr in Tennessee's Times Gazette, the program features yesterday's execution of Daryl Holton, who was convicted of four counts of premeditated first degree murder for killing his four children in 1997. All four children, twelve-year-old Stephen Edward Holton, ten-year-old Brent Holton, six-year-old Eric Holton, and four-year-old Kayla Marie Holton, were shot to death with a Russian SKS semi-automatic assault rifle. A USA Today story on the execution by reporter Sheila Burke is here. Prior to the killings, Holton had been engaged in an ongoing fight with his ex-wife over custody of the children. He confessed to the murders and did not agree with defense efforts to spare him from the death penalty. The producers plan to air the documentary on cable.

Murders In San Francisco may reach a new high this year and city leaders are hoping that a gadget called the shotspotter will help police catch the killers according to this San Francisco Chronicle story by Cecilia M. Vega. The device uses global positioning to transmit the location of a gunshot to the police within 15 seconds. San Francisco has had 81 homicides so far this year and may exceed 2005's 96 homicides, which was the highest in a decade. The murderers who do get caught with the help of the shotspotter can take comfort in the fact that so long as Kamala Harris is District Attorney, they will not face a death sentence.

Chemerinsky Out at UC Irvine

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Update: An updated version of the LA Times story is here. It mentions the op-ed but leaves out the fact of Professor Chemerinsky's patently false assertions of fact in that article. He is quoted saying, "Shouldn't we as academics be able to stand up for people on death row?"

Stand up, yes. Misrepresent facts, no.

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The blogosphere is abuzz with the news that the new law school at UC Irvine has withdrawn its offer for Erwin Chemerinsky to be its first dean. WSJ Law Blog has this post. Garrett Therolf and Henry Weinstein have this story in the LA Times.

In the WSJ post, Professor Chemerinsky is quoted as saying it is sad he was booted because of opinions he has expressed. For our part, we were sharply critical in this post of an op-ed he wrote recently. As we made very clear, though, it was not his opinions that raised our ire but his blatantly false statements of fact, statements he either knew were false or would have known were false with the most elementary checking.

AG Watch

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From today's White House press briefing:

Q : Okay, one other thing. Can you give us an update on where the President is on the Attorney General's nomination? Is he narrowing things down? Has he met with anybody?
MR. SNOW: I'm not going to give you any tick-tock. We don't have -- we don't have a final decision yet. We'll let you know. You're not going to get it today. Be patient.

John McKinnon and Evan Perez have this story in the WSJ on potential confirmation fights. Laurie Kellman of AP reports on preemptive attacks against Ted Olson. Among their problems is that he once represented Paula Jones.

Do the Democrats really want to establish a precedent that all lawyers to be considered will be identified with their clients? That would pretty well exclude everyone who has done any criminal defense work.

News Scan

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Los Angeles police have resumed the impounding of vehicles belonging to unlicensed drivers according to this Associated Press story. The practice had been suspended two weeks ago due to concerns about a 2005 Ninth Circuit ruling in the Oregon case of Miranda v. City of Cornelius, which Los Angeles Police Chief William Bratton has since determined does not affect the local law. The story reports that most of the cars impounded belong to illegal immigrants.

A South Carolina woman was arrested yesterday when she arrived at the courthouse to pay a traffic ticket in what police discovered was a stolen car. The Associated Press reports that Amber Helton was found guilty of driving without a license last week. Police were tipped off that she would show up to pay the fine in a car stolen last month in Tennessee.

California Governor Arnold Schwarzenegger's legal challenge to federal judicial consideration of inmate releases has been dismissed by the Ninth Circuit as reported in this San Francisco Chronicle story by Bob Egelko. The three judge panel will hold its first inmate release hearing on September 24.

South Africa made bad policy choices on crime, according to a researcher with the Institute for Security Studies. Antony Altbeker "said the wrong crime strategies were chosen from the outset thanks in part to the 'naive notion' that prevention was better than cure and that the police could be employed as 'armed social workers'." Deon de Lange reports for the Independent Online.

NYDP: The New York Daily News has this editorial on the case of People v. Taylor noted yesterday. "The high court must respect the jury's determination, no matter how much the judges personally oppose the death penalty."

An Oldie but a Goodie

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The Last Psychiatrist has this great post titled "The Ten Biggest Mistakes Psychiatrists Make." It's over a year old and a bit technical, but has some fascinating insights into the problems facing modern psychiatry. While not having anything to do directly with criminal law, given the impact psychiatric thinking has with our legal system it is worth a read.

Injection Certiorari Petitions

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Attorneys for Missouri murderer Michael Taylor have filed a certiorari petition in Taylor v. Crawford, No. 07-303, seeking review of the Eighth Circuit decision rejecting his challenge to lethal injection on the merits.

Late last month, attorneys for Ohio murderer Richard Cooey filed a petition in Cooey v. Strickland, No. 07-6234, seeking review of a Sixth Circuit decision denying his claim on statute of limitations grounds. Denial of rehearing en banc with dissents is here.

News Scan

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A Louisiana man sentenced to death for the rape of an 8-year-old girl is asking the U.S. Supreme Court to rule that the sentence is unconstitutional for a non-homicide offense, as reported in this ABC News story by Dennis Powell. The high court refused to hear a similar challenge to the Louisiana law in 1997. Florida, Montana, Georgia, South Carolina and Oklahoma have also enacted laws allowing a death sentence for child rapists. Lyle Denniston at SCOTUSblog has this post with links to the petition and appendix.

Florida's Lethal Injection process did not cause murderer Angel Diaz to suffer pain according to a state judge who had halted another execution last July in order to conduct a review. This news story by Alex Leary and Meg Laughlin in the St. Petersburg Times reports that the execution of Diaz last December, which took 34 minutes, was not botched and that the state's procedures are sensitive and humane. Diaz was sentenced to death for murdering a bar manager during a 1979 robbery. In his ruling clearing the state injection process the judge said "It was never intended that the inmate should wake up and go home."

Poland followed through on its intention to veto the European day against the death penalty, reports Ian Traynor in the Guardian. An EU subcommittee chairman threatened Poland that its membership may be "frozen" if it even attempts to reinstate the death penalty.

NYDP: Coverage of the People v. Taylor argument is available from Joseph Goldstein of the Sun, the Daily News, Michael Hill of AP, and Nicholas Confessore of the Times. None of the observers are making a prediction from the argument. Several noted the remark of Chief Judge Judith Kaye regarding the prosecution's characterization of the prior holding in LaValle as "unnecessary, inappropriate, and incorrect." Those are "fighting words," she said. And what do you call spitting in the face of the Legislature's clear, express severability clause, Madam Chief Judge? CJLF's brief in the case is here.

An Exemplar of Overdue Process

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Today, in Fields v. Brown, No. 00-99005, the Ninth Circuit en banc upheld the murder conviction and death sentence of Stevie Lamar Fields for a murder committed twenty-nine years ago. The excessive time and resources expended on this case and the unconscionable delay of justice illustrate vividly how we spend far too much on issues having little to do with the justice of the case.

Civil Commitment of Sex Offenders

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We at CJLF have never been big fans of the use of civil commitment for sex offenders. Such laws skate on the constitutional brink, and they are going to be the subject of continuing challenge. A federal district judge in North Carolina has held the civil commitment provision of the federal Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248, unconstitutional on both federalism and due process grounds. Sex Crimes blog has this post and the text of the decision. SL&P has this post. Update: Corey Yung has a follow-up post at Sex Crimes here.

Construction Ahead

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This blog will be off line Monday morning as our host does a hardware upgrade.

We will be doing some upgrades ourselves in the near future. The new version of the Movable Type software that powers this blog is presently in "gamma testing."* When we consider it sufficiently stable, we will upgrade the software. We will also move the blog to a separate host, rather than running it in a subdirectory of our main site as we are at present. Hopefully, this will fix the glitch that has caused some difficulty in the commenter authentication function.

Suggestions regarding the blog are welcome. You can post them as comments here or email us through the CJLF contact page.

News Scan

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Faith-based treatment programs for substance abuse, especially AA, have an undeniable record of success. But can a parole officer order a parolee to participate over his religious objections? The Ninth Circuit held in Inouye v. Kemna that the answer is no, and it was so clearly no as to overcome the parole officer's qualified immunity.

Giuliani and the Fed Soc: James Oliphant of the Chicago Tribune has this article, contending that Rudy "Giuliani has tied himself in a big way to the Federalist Society...."

Democratic fundraiser and convicted con man Norman Hsu was arrested by the FBI in Colorado and charged with interstate flight to avoid prosecution, AP reports. See 18 USC § 1073.

Doctors and Executions

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The current issue of Mayo Clinic Proceedings (Sept., vol. 82, no. 9) has three articles on physician participation in executions.

David Waisel argues that doctors should be permitted, though not required, to participate in executions for the benefit of the condemned inmate. "I argue that it is honorable for physicians to minimize the harm to these condemned individuals and that organized medicine has an obligation to permit physician participation in legal execution." He also goes through and refutes a number of arguments against physician participation.

Waisel also notes that doctors sometimes do things for the good of society rather than the individual patient. His example is quarantine of a contagious patient. Another example I can think of is when a psychiatrist, who is an MD, involuntarily commits a mental patient on the ground he is dangerous to others. Under the Tarasoff decision, psychiatrists must also warn people threatened by their patients, even though that may mean breaking confidentiality and the arrest of the patient. These actions are accepted as medically ethical.

News Scan

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"Poland is opposing the creation of a yearly 'European day against the death Penalty,'" reports the EU Observer.

Race and Murder: Jeff Jacoby, resident contrarian at the Boston Globe, has this column on the myths and reality.

Texas Execution of South Carolina Parolee Tony Roach
Michael Graczyk reports on the 24th condemned Texas inmate this year in this story in the AP. Tony Roach was sentenced to die for the 1998 burglary-related murder of Ronnie Dawn Hewitt in Amarillo. She was found on the living room floor of her apartment when firefighters responded to a fire. She was burned and had a belt wrapped around her neck. An investigation determined that the fire was intentionally set and that Hewitt had been strangled. “I know your loved one is in a good place. I am sorry for what I have done.” said Roach who did not agree with the death penalty.

18 years for Brooklyn man who bludgeoned wife to death with brick
The NYDailyNews.com reports here that Remington Watson was confronted by his angry daughter as he was sentenced for stabbing and beating her mother to death with a brick. “Someone who is insane enough to kill the mother of two children in the same house where they are sleeping deserves to be put in jail for life....I hope you rot in jail” said 16-year-old Tiara Watson. Watson was spared a life sentence and instead received 18 years in a plea deal for the 2005 brutal murder of his wife.

National Security Letters: A federal district judge has declared a portion of the amended Patriot Act unconstitutional, according to this AP story by Larry Neumeister.

Crawford case: New Mexico v. Romero, previously noted here and here, is on the conference list for the Supreme Court's "long conference" of Monday, Sept. 24. Expect the orders list to be released the next day.

Book on the Duke Rape Case

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At OpinionJournal.com, Abigail Thernstrom of the Manhattan Institution has this review of Until Proven Innocent, by Stuart Taylor and KC Johnson, a book on the Duke rape case. Here is the concluding paragraph:

The vitriolic rhetoric of the faculty and Durham's "progressive" community--including the local chapter of the NAACP--helped to intensify the scandal and stoke the media fires. The New York Times' coverage was particularly egregious, as Messrs. Taylor and Johnson vividly show. It ran dozens of prominent stories and "analysis" articles trying to plumb the pathologies of the lacrosse players and of a campus culture that allowed swaggering white males to prey on poor, defenseless young black women. As one shrewd Times alumnus later wrote: "You couldn't invent a story so precisely tuned to the outrage frequency of the modern, metropolitan, bien pensant journalist." Such Nifong allies--unlike the district attorney himself--paid no price for their shocking indifference to the truth.

Character and Aggravating Factors

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Professor Berman yesterday links to the recent 9th Circuit opinion in U.S. v. Mitchell, affirming the death penalty sentence for a defendant involved in a double murder. As the opinion notes, during the sentencing phase, Mitchell offered this mitigating evidence:

The defense presented as mitigating evidence the testimony of family members, friends, and teachers of Mitchell whom they portrayed as an excellent high school student with no disciplinary problems except for a brief suspension for possessing marijuana, who was an outstanding athlete with college football prospects, a leader both in student council and in sports, and respectful towards teachers. (p. 11560)

According to Wiggins v. Smith, defendants have a right to introduce psychologically mitigating evidence, including descriptions of child abuse, neglect, and other unfortunate social factors in determining the appropriateness of a death sentence. In Mitchell, of course, it's the opposite: Mitchell introduced evidence of his relatively uneventful childhood as proof of his good character. Considering Justice Steven's dissent in the recent case Schriro v. Landrigan suggesting that antisocial personality disorder is an "organic brain syndrome" akin to delirium or mental retardation one wonders what constitutes a psychologically relevant aggravating factor in death penalty cases.


Of course defendants are entitled to present mitigating evidence during trial and sentencing. Such evidence should include salient psychological factors that could impinge on culpability. Yet the reduction of character evidence, psychologically speaking, into exclusively mitigating evidence seems the trend in our criminal justice system these days. This course follows the emergent and popular claim by many scholars that biology is destiny -- and that biology always seems to show a lack of choice by defendants to conform their behavior to the criminal code. Yet such claims should be viewed with a healthy dose of skepticism. As I discuss in this brief essay, history is a great teacher and history is replete with examples of scientific claims once viewed as promising and certain only to be viewed by future generations as downright foolish. Our legal traditions have always placed a great burden upon defendants wishing to exculpate or mitigate their guilt based on psychological factors alone since our system also cherishes individual choice and autonomy. But with choice and autonomy comes responsibility. Few predispositions, childhood histories, and other misfortunes should arguably negate that responsibility given the breathtaking implications such a course would have for our criminal code.

News Scan

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Sex Offender policies are not adequately protecting the public from some of the worst predators according to this column in the Seattle Post-Intelligencer by Jim Hines. Rather than give more lenient sentences to predators who molest relatives, he points out that "Common sense tells us that someone who is willing to rape a young stepchild or nephew is far more dangerous than a 21-year-old male who enters a sexual relationship with a well-developed 15-year-old girl."

The ACLU has brought a lawsuit against the Orange County Sheriff's Department on behalf of a Muslim woman who was forced to remove her headscarf while held in jail, according to this Associated Press story. The local policy requires inmates to remove hats, belts, scarves and other items that might jeopardize their safety or the safety of guards. It seems likely that a lawsuit would also be filed after a woman utilized a headscarf to hang herself in her cell.

News Scan

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Kansas murderer Gavin Scott is trying to get the Kansas Supreme Court to throw out that state's death penalty again on the same theory reversed by the U.S. Supreme Court in Kansas v. Marsh, this time invoking the state constitution. John Hanna reports on the oral argument for AP.

Japan's new Justice Minister, Kunio Hatoyama, came down squarely in favor of retaining capital punishment in an interview Friday, Jun Hongo reports for Japan Times.

Scientology: "A Belgian prosecutor on Tuesday recommended that the U.S.-based Church of Scientology stand trial for fraud and extortion, following a 10-year investigation that concluded the group should be labeled a criminal organization," Constant Brand reports for AP.

Catnapping: The beloved cat of 78-year-old Mary Lamar Grancher was kidnapped, and she received a ransom demand of $20,000. From her own son, AP reports.

Nebraska's death penalty is the subject of this story by Robynn Tysver in the Omaha World-Herald. Issues covered include prosecutor discretion, vagueness of some aggravating circumstances, and the impact of the victim's family's position.

Hearsay: Joel Jacobsen at Judging Crimes has this post on an interesting Crawford domestic violence case from Hawaii. Unlike Joel's own case (NM v. Romero, cert. pending), the perp. didn't murder the victim to silence her, but she suffers from unaccountable memory loss. Is the Confrontation Clause satisfied when the witness is physically present and available for cross-examination but claims to remember nothing about the incident? Opinion here; dissent here.

Ninth Circuit Decisions

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Landrigan was officially decided by the Ninth Circuit on remand, following reversal by the Supreme Court in Schriro v. Landrigan. Denial of habeas affirmed.

Parole Violation Warrants: "We consider whether an administrative warrant issued pursuant to 18 U.S.C. § 4213(a) for the retaking of an alleged parole violator is subject to the oath or affirmation requirement of the Fourth Amendment’s Warrant Clause. We hold it is not and therefore affirm the denial of petitioner’s habeas challenge to his detention on an unsworn parole violator warrant." Sherman v. U. S. Parole Comm'n.

Chutzpah: Once upon a time, the comical exemplar of that term was the man who murdered his parents and then begged for mercy on the ground he was an orphan. The joke was no longer funny after the Menendez Brothers. Here is a good candidate for a new exemplar from a real Ninth Circuit case.

Russell Laroy Holland appeals his conviction and sentence for mailing threatening communications and threatening the President of the United States. He maintains that the district court judge who imposed the sentence should have recused himself after Holland obtained the judge’s home telephone number and left at least one threatening message prior to his sentencing.

Hey, it was worth a shot. No argument is too preposterous if you get the right panel in the Ninth, and you don't know the panel when you write the brief. Mr. Holland's opus, however, went to Judges Thompson, Kleinfeld, & Bybee. Affirmed.

Research Notes

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From the current Weekly Accessions List at NCJRS, hearsay in child abuse cases, recidivism among young men released from prison, and an evaluation of Compstat outside New York:

Weekend Notes

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Root Causes: Janet Daley has this article in the London Telegraph on the decline in social values as a cause of crime. "The British elites persuaded themselves that their great crime was to impose bourgeois values on everyone. In fact, it is the undermining of those values that is destroying the lives of the poor."

Veto Bait: Andy Furillo of the SactoBee has this article on state Sen. Gloria Romero's attempts to remove sentencing policy from the legislative process and hand to a commission so remote from the people that they can pretty much do what they want. Gov. Schwarzenegger is likely to veto it, fortunately.

Get Real: CJ Roberts says he did not suggest Harriet Miers as a Supreme Court nominee, contrary to the remarkable claim in a new book. Michael Abramowitz has this story in the WashPost.

Bad Karma: As metal thieves get increasingly brazen and destructive, someone stole a 7-foot Buddha statue from the Thai Buddhist Center in Minnesota. It is valued at $10,000, AP reports. Fortunately, a new law requires recyclers to keep detailed records and get ID from sellers, and police were able to identify the woman who sold parts of the statue.

Broken Windows in the Big Apple: Wes Allison has this article in the St. Petersburg Times on the debate regarding the extent to which the crime drop in New York during the tenure of Rudy Giuliani is attributable to "Broken Windows" policing.

Texas DP: The Dallas Morning News has this editorial on the Texas death penalty, including the howler that Texas is the only state that imposes the death penalty on nontriggermen. So why is John Allen Muhammad on death row in Virginia? Where does the Dallas Morning News get its information?

In Canada, Joseph Quesnel of the Winnipeg Sun has this column calling for the restoration of the death penalty.

Dismemberment of a murder victim earned a conviction for evidence tampering for Laura Hall in Austin, Texas. Dismembering a corpse as such wasn't a crime in Texas at the time. It is now, as a result of this case. AP reports here.

Cal. Death Row: The LA Times had this editorial Friday on the proposals of Judge Alarcon of the Ninth Circuit for dealing with the backlog of cases.