January 2008 Archives

Update Jan. 31 at 3:55PST: The Supreme Court has granted a stay pending filing and disposition of a certiorari petition. AP story is here. SCOTUSblog post here.
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The Eleventh Circuit vacated a stay of execution granted on an injection claim in McNair v. Allen. The court found that the § 1983 claim was barred by the statute of limitations. There are two plaintiffs in the case. The one with an imminent execution date (tomorrow) is James Callahan.

The full details of Callahan’s crime are set forth in Callahan v. Campbell, 427 F.3d 897, 903-10 (11th Cir. 2005). In short, on February 3, 1982, Callahan abducted 26-year-old Rebecca Suzanne Howell from a laundromat in Jacksonville, Alabama. He murdered her, then dumped her body in a creek, where it was discovered two weeks later.

Footnote 1: Although Callahan was not charged with rape, forensic evidence suggested Howell was sexually assaulted prior to her death.

The decision is correct based on pre-Baze precedent on a ground not at issue in Baze. There would seem to be no reason for the Supreme Court to grant a stay. However, after the Supreme Court granted certiorari in Baze, which does not involve a default issue, it did grant stays in other cases involving defaulted claims. At this point, the justices probably know what their decision is going to be in Baze, and it will be interesting to see if they grant a stay in this case. If I had to bet, I'd put my money on a grant. AP story is here. Lyle Denniston has this post at SCOTUSblog, and Doug Berman has this one at SL&P.

Next door, the inmates in the Florida injection cases, Ian Lightbourne and Mark Schwab, have asked Justice Thomas for an extra two months to file their cert. petitions here and here. Extension requests are typically decided by the circuit justice (unlike stays of execution, which the circuit justice almost always refers to the full court), so it matters that Florida is in Thomas Country.

The name says it all according to Kevin Johnson in this story in USA Today. The Caston Brothers aka “James Gang” from Lake Providence, LA had their lives planned for them at birth. Their father named all three sons, Jesse, Frank and Sonny after the outlaw James Gang. Jesse James Caston who was on the FBI’s Most Wanted in 2000 believes neither he nor his brothers ever had chance. All three brothers are serving life sentences in a Louisiana State Prison. According to Johnson, social scientists and law enforcement believe many people are becoming criminals because of family members and this is seen as a persistent problem.

Rape in the U.S. Military is becoming an unpunished crime, claims Lucinda Marshall of the Feminist Peace Network in this L.A. Times blowback piece. She is reacting to Anne K. Ream’s recent Op-Ed, noted in Monday’s News Scan, regarding whether a man convicted of rape as a civilian still deserved a traditional military burial. Ream pointed out that allowing a traditional burial sends a message to victims: sexual violence does not measure up to prior military service. Marshall notes that charges were dropped against an Army Reserve Sergeant in Lebanon, Pennsylvania after fellow soldiers refused to cooperate with the police. His lawyer said all charges should have been dropped anyway, “After all, he did serve his country”.

Lawyer Receives a Slap on the Wrist for aiding in Terrorism:
Larry Neumeister has this AP story on the sentencing appeal in the case of civil rights attorney Lynne Stewart. She was "convicted of conspiracy to defraud the United States, two counts of making false statements, providing and concealing material support to terrorist activity in 2005." She was sentenced to only two years and four months in prison for her role in helping her client, blind sheik Omar Abdel-Rahman, communicate with fellow terrorists from behind bars. Assistant U.S. Attorney Anthony Barkow asked the U.S. 2nd Circuit Court of Appeals on Tuesday to re-sentence the civil rights attorney on the grounds that the trial judge was excessively lenient on her punishment by not adding a terrorism enhancement to her conviction. The Appeals Court has to consider if the judge failed in sentencing Ms. Stewart correctly.

New York’s bill will regulate sex offenders’ use on the Internet: A bill written by Attorney General Andrew Cuomo's office was announced Tuesday by Cuomo and the leaders of both houses, according to this AP story. "State corrections law already requires offenders to provide Internet screen names, but the new legislation would clarify and expand the information they must supply and permit sharing it with social networking sites and other online services. That would allow the sites to screen or remove offenders from their sites and notify authorities about any illegal behavior." If passed, proponents say, the law will help sites to protect children and teens better from Internet predators by screening, removing, and notifying authorities about any illegal behavior from sex offenders on online sites. New York is getting harder on sex offenders' use of the Internet.

DNA evidence has led to the arrest of a Chilean man for the 1997 murder of University of Colorado co-ed Susannah Chase according to this Associated Press story by Ivan Moreno. Diego Olmos-Alcalde was in the Boulder County Jail for a parole violation when he was arrested for the Chase killing. He served time in prison for kidnapping in 2000 and had three other arrests on sex-related charges. Thousands of cold cases in virtually every part of the country have been solved through DNA as the number of samples in state and federal databases has increased. This report from the San Antonio Police Department provides one example.

The Murder Conviction of a New Jersey man who admitted shooting his girlfriend, beheading her, and boiling her head in a pot, was overturned yesterday in a 5-2 per curiam ruling by the state Supreme Court. The defendant, George Jenewicz, claimed that he killed the woman in self defense as reported in this Associated Press story by Jeffery Gold. The Court's five-judge majority concluded that three relatively minor trial errors may have influenced the jury's guilty verdict. The Chief Judge's dissent found this to be a stretch.

Religion and the Death Penalty: Walter Berns of American Enterprise Institute has this article on Europe's obsession with the death penalty. "What explains this obsession with the death penalty? Hard to say, but probably the fact that abolishing it is one of the few things Europeans can do that make them feel righteous; in fact, very few."

Does A Serial Rapist Deserve a Military Burial?
Yes, according to this story written by Anne K. Ream in the Los Angeles Times. James A. Selby was accused of armed robbery, rape, kidnapping and attempted murder. He had at least 10 victims, one including a 9-year-old girl. Selby was a Persian Gulf veteran who committed suicide before receiving his sentence in Arizona. In the past, Congress has barred veterans convicted of capital murder from burial with military honors as in the case of Oklahoma City bomber Timothy McVeigh. On behalf of Steve Bush, father of one of the victim’s, Arizona Representative John Shadegg will introduce "Jenny's Law" in the coming weeks. Senator Barbara Boxer of California will introduce a companion bill in the Senate. The measure would prevent those convicted of the most serious sex crimes from receiving military honors at burial.

Timothy Masters, who was sentenced to life in 1999 for the sexual mutilation and stabbing death of Peggy Hettrick outside Fort Collins, was released from a Colorado prison last week due to DNA testing. District Judge Joseph Weatherby will decide next week if all charges against Masters will be dropped. Larimer County District Attorney Larry Abrahamson stated in this Associated Press story that the DNA evidence does not completely exonerate Masters, but did suggest others were involved in the murder.

Here is an interesting blog dedicated to news about pardons. The blogger is P. S. Ruckman, Jr., Associate Professor of Political Science at Rock Valley College, Illinois.

Joel Jacobsen at Judging Crimes has a series of long posts, 3 so far, titled "Intellectual dishonesty epic." The series provides some interesting historical background regarding one of the most dishonest decisions in the history of the Supreme Court, Fay v. Noia, 372 U.S. 391 (1963), overruled in Coleman v. Thompson, 501 U.S. 722 (1991). In that decision, Justice Brennan rewrote the history of habeas corpus in such a brazen manner that the only apt comparison is to the Ministry of Truth in George Orwell's 1984.

Patriot Act: A former sailor, charged with leaking information about a navy battle group to suspected terrorist supporters in London, has lost his bid to have incriminating evidence intercepted by taps to his phone and emails suppressed, according to this AP story by John Christoffersen. Defendant Hassan Abu-Jihaad's claim that the provisions of the USA Patriot Act which allowed his communications to be intercepted are unconstitutional was rejected in a decision by Connecticut Federal District Judge Mark Kravitz. This holding conflicts with a September 2007 ruling by Oregon District Judge Ann Aiken, who struck down the challenged provisions of the Act.

Five Ohio Death Penalty Cases have been taken from a federal District Judge who one state prosecutor called a "black hole" for capital cases, as reported in this Cincinnati Enquirer story by Dan Horn. The most recent among the five death penalty appeals removed from Judge Walter Rice's docket was filed three years ago; two others were filed eight years ago. In reassigning the cases, Chief Judge Sandra Beckwith said that Judge Rice "has a very heavy docket." After learning that the cases had been taken from Judge Rice, Hamilton County prosecutor Joe Deters said "just the fact that they appear to be out of his courtroom is a victory for victims in these cases."

An attempt to repeal the death penalty in Connecticut was rejected by a vote of 89-49 by that state's House of Representatives, Keith M. Phaneuf and Jenna N. Carlesso report in the Journal Inquirer.

It seems fashionable lately for many scholars to decry our criminal justice polices surrounding sex offenders. Indeed, classifying all sex offenses - from adolescents who take nude pictures of themselves to the worst sex abuse imaginable - seems unwise. Moreover, the civil commitment of sex offenders seems problematic and encompasses an ominous trend to attribute biological causes as the root problem for so many antisocial behaviors, including sexual deviancy. And it is true that the "science" surrounding much of the sex offender debate is a minefield of pitfalls and spurious links.

But those criticisms and limitations do not mean that sex offenders are a minor risk and that all of the retributive rhetoric about them is misplaced. As many forensic psychologists know, conducting a risk assessment evaluation on a convicted sex offender often entails a lengthy tread into the world of recidivism, failed treatment programs, and eternal denial on the part of the offender. A recent, albeit, extreme story regarding the tragic case of Dylan and Shasta Groene demonstrates why public sentiment is so starkly in favor of heavy penalties and restrictions against sex offenders.

In 1990, the voters of California passed Proposition 115, which among other things added a discovery chapter to the Penal Code, §§ 1054.1 et seq. (Most important criminal law is enacted by initiative in California, due to the permanent dysfunctionality of our Legislature.) Among the provisions of this law is: "This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant...." (Emphasis added.) The Legislature can amend the chapter, but only by a 2/3 vote.

What part of "only" did the solons not understand? They enacted a statute, Penal Code § 1054.9, giving new postconviction discovery rights to defendants sentenced to death or life without parole, and they passed it by less than a 2/3 vote. Although on its face the statute does not seem terribly burdensome, in practice it has been used in a much more aggressive manner.

In the case of Barnett v. Superior Court, the California Supreme Court was considering some issues related to the application of this statute, but CJLF asserted in an amicus brief that the whole statute was unconstitutional as an unauthorized legislative amendment of an initiative. (This theory was first advanced by the Contra Costa County District Attorney's Office.) Today the court issued this order:

The above-entitled matter is transferred to the Court of Appeal, Third Appellate District, with directions to establish a briefing schedule and then consider and decide the issues raised in the brief of amicus curiae, Criminal Justice Legal Foundation, filed November 5, 2007, and petitioner's answer to that brief, filed December 17, 2007. (Cal. Rules of Court, rule 8.528(d).) Kennard, J., was recused and did not participate.

The Tennessean has this article on Gov. Bredesen's opposition to a proposal to change lethal injection from the three-drug method presently under attack in Baze v. Rees to a one-drug method similar to that used by veterinarians. His position, in essence, is that any change from an established method triggers many years of litigation. In other words, the hyperlitigiousness surrounding the death penalty and the willingness of some courts to accept flimsy reasons for stopping executions actually operate to preserve a method that the opponents say is cruel.

"While some Tennessee lawmakers and death penalty advocates were pushing for the state to go ahead with a one-drug protocol to continue with executions, most are waiting to see what the nation's high court will decide" in Baze.

Jose Padilla was sentenced to 17 years, 4 months for conspiracy to commit terrorism, Curt Anderson reports for AP. He is a U.S. citizen who was detained on charges of a "dirty bomb" plot, leading to this Supreme Court decision on jurisdiction in habeas corpus cases.

The sentence today does not reflect the most serious charges against Padilla. The information gained from him during interrogation is inadmissible in a regular criminal trial under the Miranda rule.

The AP story says, "Padilla's lawyers argued for a lenient sentence," meaning no more than 10 years. But he has gotten off leniently. If even a portion of the plots alleged are true, he is guilty of "levying war against [the United States], or ... adhering to their Enemies, giving them Aid and Comfort," U.S. Const. Art. III § 3, i.e., treason. The appropriate punishment for that crime is death.

The Supreme Court today issued an orders list and one opinion. The opinion in Ali v. Federal Bureau of Prisons is an exercise in statutory interpretation on the federal government's waiver of sovereign immunity in 28 U.S.C. § 1346(b)(1) and an exception to that waiver in 28 U.S.C. § 2680(c). The interpretation question had split the Courts of Appeals 6-5, and today it split the Supreme Court 5-4. The lineup was a little unusual, with Justice Kennedy in the dissent and Justice Ginsburg joining Justice Thomas's majority opinion. The bottom line is that the government does not waive sovereign immunity for a claim arising out of detention of property by any federal law enforcement officer, not just those enforcing customs and excise laws. There is an administrative remedy for prisoner Ali's claim, but it was decided against him.

The orders list, as expected, consists of "vacate and remand in light of..." orders and denials of certiorari. The grants for full briefing and argument were announced Friday. Among the denials are Jones v. Jennings, No. 07-654, on excessive force on a resisting arrestee and Gilmer v. Mississippi, No. 07-183, on that state's "video voyeurism" statute.

On the March argument calendar, the most important case for general criminal law practice is Indiana v. Edwards, No. 07-208, scheduled for Wednesday, March 26. In this case, the Supreme Court will finally answer the question raised 33 years ago when it constitutionalized the right of the defendant to represent himself in Faretta v. California, 422 U.S. 806 (1975). Many states have interpreted this case to extend that right to anyone mentally capable of making an intelligent waiver of counsel, even if he is not capable of making a coherent defense. This view of Faretta produced the circus in Panetti v. Quarterman, decided last June. See CJLF Panetti brief here. CJLF will file a brief in Edwards asking the Court to clean up this mess of its own making.

Also on the calendar are the D.C. gun case March 18, Rothgery v. Gillespie County on when the Sixth Amendment right to counsel attaches on March 17, two federal sentencing cases on March 24 and 25, and a pair of citizen detainee cases on March 25.

Daryl Atkins, the subject of the Supreme Court's June 2002 ruling in Atkins v. Virginia, has won a Virginia Circuit Court ruling commuting his death sentence to life in prison according to this Associated Press story . Atkins was sentenced to death in 1996 for the kidnap, robbery and murder of a young Air Force recruit. While the Supreme Court ruled it unconstitutional to execute a mentally retarded person in Atkins' appeal, it did not decide if Atkins himself was retarded. A new jury empaneled after the Atkins ruling found he was not retarded, but that verdict was overturned on appeal and a new hearing ordered. In this latest holding, Virginia Judge Prentis Smiley Jr. based his decision to commute Atkins' death sentence on the claim that prosecutors had withheld potentially favorable evidence from the defense. It is not known at this time if the state will seek review of this latest holding. Commuting a sentence is not normally an available remedy for a nondisclosure claim. Such a claim normally results in a new trial or a new sentencing hearing.

John Yoo has this op-ed in the Wall Street Journal on terrorist Jose Padilla's suit against him. This is one more example of why the law of attorneys' fees in civil rights suits needs to be reformed, as previously noted here.

Ted Cruz, the Solicitor General of Texas, and his role in death penalty cases are the subjects of this article by Jonathan Gurwitz in the WSJ.

Oakland mayor Ron Dellums, if he "wants to put a dent in crime, [is] going to have to develop long-term strategies and become a crime-fighting mayor, like his predecessor. It will not be popular, especially among liberal-minded Bay Area residents - and it will not reflect Dellums' long-held political beliefs," Chip Johnson writes in the SF Chronicle.

The U.S. Supreme Court granted certiorari in six cases today, all civil. SCOTUSblog has the details. Criminal cases that were on the conference list for today are likely either denied (to be announced Tuesday) or "relisted" to be considered again at a later conference.

Absent extraordinary circumstances, the docket for this term is set. The next scheduled conference is February 15, and cases taken then will be argued next fall.

Update: The official orders list is now available here. Jason Harrow notes at SCOTUSblog that the Ninth Circuit's share of the Supreme Court docket is down a little this term, 17% of the docket instead of 20%. Possibly that court's increased willingness to correct rogue panel decisions by taking them en banc, noted previously here, has something to do with that.

The History channel has been running an excellent series on the development of gangs in the United States. Gangland is an intriguing and revealing look at the realities of gangs. Highly recommended.

Late last month, we noted a welcome trend at the Ninth Circuit to go en banc more often to correct more of the rogue panel decisions that have given that court its reputation. Today that trend continues in Plumlee v. Masto. The case involves a difficult client who demands appointment of a different attorney because of a deterioration in the relationship, even though the attorney appointed for him has no actual conflict and has done nothing wrong. A panel bought the argument, but today the en banc court got it right.

We hold today that the Nevada Supreme Court did not misapply clearly established federal law as determined by the Supreme Court when it ruled that Plumlee’s right to the effective assistance of counsel was not violated by the trial judge’s refusal to appoint a different lawyer.

Only one judge in today's 11-member quasi-en-banc panel dissented from this holding.

Mail Call: Memo to wives and girlfriends of jailbirds: If you don't want the jailers to see nude pictures of you, don't mail them to your beloved in the jail. All the mail is opened. Jessica Duran claims that Mesa County, Colorado owes her $100K for "humiliation and emotional distress," reports Gary Harmon in the Daily Sentinel. (Hat tip: How Appealing.)

Penn. CJ: Ronald Castille, former DA of Philadelphia and associate justice since 1993, was sworn in as Chief Justice of Pennsylvania earlier this week, Emilie Lounsberry reports for the Inquirer.

Voter Fraud: As previously noted here, the Supreme Court is presently considering a challenge to Indiana's voter ID law by the Democratic Party in that state. The ID requirement is unnecessary, the argument goes, because voter fraud is a nonproblem. This Saturday, the Nevada Democratic Party is holding caucuses on the Las Vegas Strip for voters who work in that area. To establish their eligibility, the party will require the voters to show ID, according to John Fund in OpinionJournal.com.

DNA Testing: The California Court of Appeal in SF has held that Proposition 69, expanding DNA testing to all registered sex offenders, applies retroactively, Bob Egelko reports for the SF Chron. The case is Good v. Superior Court, A117317.

We are still waiting for a decision in Medellin v. Texas, argued October 10. (Briefs are here; argument transcript here.) This is the case on the Vienna Convention on Consular Relations and the International Court of Justice decision on the cases of 50+ Mexican nationals on death row in the United States.

The Court picked some low-hanging fruit today. In New York State Bd. of Elections v. Lopez Torres, the Court answered the question of whether the federal constitution requires primaries in state judicial elections. (Answer, without dissent: of course not.) The opinion is by Justice Scalia, and the case was argued October 3. There is also an eyes-glaze-over tax case, Knight v. Commissioner. This is a unanimous opinion by Chief Justice Roberts in a case argued a mere 7 weeks ago.

At this point, we can start playing the SCOTUS-watchers' favorite parlor game, guessing the outcome of the remaining October cases by guessing which justice they are assigned to. There were nine cases on the initial calendar, but one of them was one-lined per curiam when Justice Kennedy was recused and the others split 4-4. Opinions from that session have been written by Stevens (Gall), Souter (Watson), Ginsburg (Kimbrough), Kennedy (Stoneridge), and Scalia (today's New York case). Assuming the opinions are spread among the justices, as they generally are, this leaves four justices (Roberts, Thomas, Breyer, and Alito) and three cases. In addition to Medellin, there is Washington State Grange, on that state's primary election law, and United States v. Santos, on money laundering.

I expect that Roberts, Thomas, and Alito will all vote for the State in this case. If so, Medellin would win only if Breyer is writing the opinion, and he would be doing that only if Stevens assigned it to him. I'm inclined to think that Stevens would have kept a blockbuster case on presidential power and international court relations for himself if he were making the assignment, but that is admittedly just speculation at this point. Stayed tuned.

The Colorado Supreme Court holds in Hernandez v. People:

Construing the applicable statutory provisions, the supreme court holds that treatment is not mandated in every case where a sex offender subsequently commits an offense of any kind. Where the recommendations of the sex offender evaluation and the facts of the subsequent case do not support treatment, a sentencing court is not required by section 16-11.7-105 to order treatment. On the other hand, when the sex offender evaluation and the facts of the case support it, the trial court must impose sex offender treatment as a condition of probation. Here, the trial court ordered Hernandez to complete sex offender treatment.

Defendants first crime in 1984 was attempted second degree assault which resulted when he forcibly inserted his fingers in a woman's vagina in a restroom at a bar. Nineteen years later, he was charged with possession of a schedule two controlled substance and introduction of contraband into a detention facility and ultimately plead to simple possession. After initially refusing to submit to a sex offender evaluation, on the advise of counsel, defendant complied resulting in a recommendation that he receive treatment. According to the opinion, the evaluator found the defendant's denial of guilt in both crimes as well as his scores on various sexual deviancy measures as supportive of the recommendation:

The evaluator rated Hernandez as being at high risk for a repeat sexual offense based upon his: (1) denying having sexually assaulted the previous victim; (2) taking no responsibility for possessing cocaine in his most recent offense; (3) exhibiting defensiveness throughout the evaluation process; (4) lacking victim empathy; (5) lacking motivation to engage in offense specific treatment; (6) having previously used coercive force against a female adult victim and registering arousal levels to a female adult and a female teen in a coercive sexual situation, in comparison to a consensual sexual male/female adult encounter, during the assessment; and (7) having a considerable substance abuse history.

One wonders how effective treatment will be for this recalcitrant offender.

Homicides in San Francisco reached a ten-year high in 2007, while the murder rate in other big cities, such as Los Angeles and New York declined. A story by Cecilia M. Vega in today's San Francisco Chronicle reports that murders were up in other bay area cities as well, with drug-related shootings driving the numbers. It should be noted that San Francisco voters support law enforcement policies which are unusually tolerant. It is a sanctuary city for illegals, and DA Kamala Harris, has taken a softer approach to the enforcement of "Three Strikes" and has kept her promise not to enforce the death penalty.

Death Penalty: As posted earlier, in the aftermath of the New Jersey Legislature's vote to abolish capital punishment, opponents have focused on other states where beachheads have already been established. Among these states is Maryland, where a 2003 University of Maryland study has been widely cited for showing that the application of the sentence is racially biased, although a closer look at the numbers refutes that interpretation. That same year former Governor Parris Glendening instituted a one-year moratorium. Last year Governor Martin O'Malley tried, but failed, to get the state legislature to abolish executions. Reporter Jennifer McMenamin has a story in this morning's Baltimore Sun reporting that, according to a recent poll, 57% of Maryland voters want to keep the death penalty for the worst murderers, a 24% margin over those supporting abolition of the punishment.

The Nine: Yet more errors in Jeffrey Toobin's notorious book are pointed out here by Gideon Kanner and on VC by Ilya Somin. Previous posts on this book are here and here, and a post about a Toobin article on habeas corpus is here.

In Calloway v. Montgomery, No. 07-1148 (USCA7, Jan 14, 2008), Judge Evans has some fun with a murderer who ducked the rap by adopting the unlikely alias of Robert Ducks. It actually worked for 22 years. The opinion deals with two issues: (1) What is the "clearly established" Supreme Court precedent on lesser included offense instructions in noncapital cases? Answer: there isn't any. (2) Does it present an Apprendi problem for a judge to decide which local offense a prior offense from another jurisdiction corresponds to? Answer: no. "Almendarez-Torres still lives."

The U.S. Supreme Court's Monday orders list is here. No surprises. The cases granted for briefing and argument this term were announced after the conference on Friday, including the Giles case discussed here.

Among the cases turned down today is Black v. California, the California Supreme Court's decision on remand after Cunningham. See People v. Black, 41 Cal. 4th 799, 161 P.3d 1130 (2007).

Orin Kerr has this post at VC on the oral argument in Virginia v. Moore this morning. "On the whole, the argument went extremely well for Virginia. In the first half hour, the Justices seemed to think Virginia's position was so obviously correct that they appeared rather bored." Look for a frothing denunciation of the opinion in the 2009 pocket part of LaFave's Search and Seizure.

Child Molester Jesse Friedman, who plead guilty in 1988 to 13 counts of molesting children in the basement of his Long Island home, has lost his bid to have his conviction overturned. Friedman was the subject of the award-winning film "Capturing the Friedmans" which was nominated for an Oscar in 2003. The purportedly non-fiction film alleged that the police and prosecutor conspired to convict Friedman and his father by withholding evidence that at least one of their accusers had been hypnotized, according to this Associated Press story.

Repeat felons convicted of auto theft, drunk driving, forgery, fraud and drug dealing may never spend a day in prison if California Governor Arnold Schwarzenegger's proposal to save money by reducing prison and parole costs goes into effect, as reported in an Associated Press story by Don Thompson. Recently, perennial sentencing opponent and Berkeley Law Professor Franklin Zimring was quoted saying that the proposal would be an "interesting experiment." Hardly an experiment, even a slight knowledge of history and policy research confirms that the result would be an increase in crime and crime victims. "As far as I'm concerned, this entire program is an act of insanity," said Kern County District Attorney Ed Jagels.

Pennsylvania is apparently not waiting for a decision in Baze v. Rees to modify its lethal injection protocol. "The [not yet final] plan, a result of negotiations between Secretary of Corrections Jeffrey Beard and Rep. Daylin Leach, D-Montgomery, involves brain wave monitoring technology to ensure any inmate being put to death is fully unconscious before the final phase of an execution," reports Charles Thompson of the Patriot-News.

Implanted monitors are the next step after the GPS ankle bracelets for tracking offenders. The UK appears to be on the verge of doing it, raising a hue and cry. Brian Brady has this story in the Independent. (Hat tip: SL&P.)

Today, the US Supreme Court granted certiorari in Giles v. California (07-6053), a case that will review whether the Confrontation Clause permits the hearsay statement of a witness who is unavailable for trial because the defendant killed her - even though he did not intend to silence her testimony when he killed her. The California Supreme Court ruled in March of last year that the hearsay statement was admissible, but placed some limitations on how and when the statement would be allowed in court.

In Giles, the defendant was charged and convicted with the murder of his former girlfriend Brenda Avie. According to witnesses, Avie had arrived at the defendant's grandmother's house on the night of the murder, and had talked with defendant for about a half hour. Witnesses then heard the victim yell "Granny" several times followed by a series of gunshots. When witnesses arrived on the scene, they saw defendant standing about eleven feet from Avie with gun in his hands. Defendant then fled the scene and was arrested sixteen days later.

Avie had been shot six times in her torso. Two of the wounds were fatal. Avie had not been carrying a weapon when she was shot.

Governor Strickland has issued a "residual doubt" commutation in the case of John Spirko. Doug Berman has this post at Sentencing Law & Policy. Bob Paynter reports here for the Cleveland Plain Dealer, and the PD site has the Governor's statement here. (The Governor's own web site does not have the statement as of this writing, oddly enough.) The order reduces the sentence to life without parole. Doug is critical of this decision:

For a host of political reasons, I understand Gov. Strickland's interest in splitting the difference here. If Spirko is in fact innocent, this commutation is a grave injustice to him; if Spirko is in fact guilty, this commutation is a grave injustice to the victims of his crime and the legal system.

I do not agree that a decision like this is necessarily political and not a sound decision as a matter of policy. Without getting into the detailed facts of the particular case, I think a commutation from death to LWOP can be the correct action for the clemency authority in certain "residual doubt" cases.

In New York, James O'Hare wanted to cash the Social Security check of his roommate, Virgilio Cintron. He had a small problem, though, as Mr. Cintron had died sometime within the preceding 24 hours. Undeterred, Mr. O'Hare and his buddy David Dalaia proceeded to the Pay-O-Matic check-cashing joint with Mr. Cintron in tow, seated in an office chair. Off-duty detective Travis Rapp, eating lunch at a nearby restaurant, thought this looked a tad suspicious and called in the uniforms, report Bruce Lambert and Christine Hauser in the NYT.

In related news, the Supreme Court heard oral argument today in the Indiana voter ID cases, Crawford v. Marion County Election Board, No. 07-21, and Indiana Democratic Party v. Rokita, No. 07-25, transcript here. These cases concern an Indiana law that voters show a photo ID at the polling place. This requirement has a disparate impact on deceased voters. Unlike Mr. O'Hare, persons voting on behalf of the deceased rarely bring the dear departed to the polls with them. Even if they did, after a week or two persons of decomp. do not look much like the pictures on their IDs. Norman Bates would have had a hard time with his mother and her driver's license.

On New Year's Day in Stockton, California, Lynette Denney died, "for the second time," reports Sara Cardine in the Stockton Record. In 1980, when she was 22, Angelo Michael Melendez shot her in the head and left her for dead. Lynette had refused to have sex with Melendez, and he shot her "at point-blank range under each eye." Miraculously, she didn't die, but complications following surgery "caused her to fall into a permanent, semi-vegetative state." As described in the story, her family cared for her for the next 27 years.

And what sentence did Melendez get for this crime? A mere seven years, and he was released on parole after five. Not only was that a grossly inadequate sentence as a matter of just deserts, but it left this monster free to do it again, and the second time he made sure the victim did not survive. Melendez is presently on death row for the murder of 19-year-old Koi Wilson, also of Stockton.

In 1987, in reaction to the Larry Singleton fiasco, the California Legislature created the crime of aggravated mayhem, Penal Code section 205, punishable by an indeterminate life term. Had this law been in effect in 1980, Melendez could have been adequately punished for the crime against Lynette Denney, and Koi Wilson would probably still be alive.

When you hear calls to roll back sentencing laws and repeat the mistakes of the 1960s, remember Lynette and Koi.

Orin Kerr has this long, interesting post at the Volokh Conspiracy on "Why the defendant should win in Virginia v. Moore." My reason why the state should win is much shorter and simpler. Mapp v. Ohio, 367 U.S. 643 (1961), which found an exclusionary rule applicable to the states in the Fourth Amendment, was wrongly decided. It is just barely tolerated as a matter of stare decisis and should not be extended anywhere that the Court's precedents do not absolutely require. Whatever federal interest there may be in protecting people from a search that the state could have authorized but didn't, there is none so strong as to require the drastic remedy of excluding evidence for a reason unrelated to its reliability and contrary to the truth-seeking function of the criminal trial.

Baze argument coverage: SF Chrontrarian Debra Saunders has this column, titled "Dishonest on the death penalty." David Savage of the L.A. Times found the justices skeptical of the attacks on lethal injection, as did Tony Mauro at Legal Times. Linda Greenhouse in the New York Times says the challengers "made little headway." Jess Bravin at the Wall Street Journal writes that the Court "seemed divided" and emphasized the discussion of pancuronium.

Cal. DP Hearings: Howard Mintz of the San Jose Mercury-News has this story on Thursday's hearings of the "California Commission on the Fair Administration of Justice" regarding the death penalty. We find it more than a little strange that a commission set up for the ostensible purpose of studying "fairness" would, as its first action, hire a well-known partisan for one side as its executive director.

California Chief Justice Ron George has this op-ed in the L.A. Times on proposals for reform of the capital case review process.

Stupid Crook Story: "A man who hid hunting knives in his pants to try to steal them from a western Michigan store tripped while fleeing and stabbed himself in the abdomen, police say." AP report is here.

Last Friday, Charles Peters, founding editor of the Washington Monthly, had this op-ed in the Washington Post, praising the Illinois legislative accomplishments of Barack Obama. In particular, he notes the bill to require videorecording of interrogations.

This seemed likely to stop the beatings, but the bill itself aroused immediate opposition. There were Republicans who were automatically tough on crime and Democrats who feared being thought soft on crime. There were death penalty abolitionists, some of whom worried that Obama's bill, by preventing the execution of innocents, would deprive them of their best argument.

Wow. That last sentence is an incendiary charge. Peters is claiming that some "death penalty abolitionists" opposed a bill intended to stop the execution of innocent people not for some alternative reason but because they actually want innocent people to be executed to strengthen their case. Now, that is fanaticism.

This accusation does not come from the conservative side of the aisle. Quite the contrary, the Washington Monthly is a left-leaning publication. I don't know if the accusation is true and would be interested in hearing from anyone with solid information on the subject.

The blog will be offline briefly Thursday morning for hardware upgrades.

This is off-topic for the blog, but interesting. The editorial page of the Washington Post is a steady, reliable source of opinion from the mainstream liberal perspective. The editorial page of the Wall Street Journal is pretty much a mirror image on the conservative side. So what to our wondering eyes should appear this morning but a pair of editorials in these two newspapers on the Democratic candidates' statements regarding the Iraq "surge." Can you guess which is which?

Although the big Supreme Court news today is on the Baze argument, two per curiam decisions today in habeas cases are worth noting. First, there is Arave v. Hoffman, which the Court vacated and remanded, as expected. The Ninth Circuit had held that a defendant can make out a case for habeas relief for ineffective assistance of counsel at plea bargaining, even if the trial that follows is fair. Hoffman has now abandoned the claim for relief he won at the Ninth, so there is no live controversy. The citation to United States v. Munsingwear, 340 U.S. 193, 200-201 (1950) at the very end of the opinion serves the dual functions of (1) reminding everyone that the vacated Ninth Circuit decision is not precedent, and (2) enabling bad jokes about "Munsingwear briefs."

Second, on a somewhat related issue, the case of Wright v. Van Patten makes its second trip to the high court. The Seventh Circuit had held that a lawyer's appearance by speakerphone at a plea hearing was per se grounds for relief. The hearing was simply the formal acceptance of a plea deal previously worked out and thoroughly discussed between attorney and client. The state court rejected Van Patten's claim because there was no indication of any prejudice to him. The Seventh granted relief, saying no such showing was required. After the Supreme Court vacated and remanded to reconsider in light of Carey v. Musladin, 127 S.Ct. 1038 (2006), Judges Evans and Williams said, in essence, there is nothing to reconsider. Judge Coffey dissented. The high court today unanimously reversed. Application of the Strickland prejudice standard in this situation is an open question, and the Wisconsin court was reasonable to decide it the way it did.

How many times will the federal courts of appeals have to be slapped down before they understand the difference between "I disagree with that" and "That is unreasonable"?

Today, the United States Supreme Court heard oral argument in the case of Baze v. Rees, regarding the constitutionality of Kentucky’s method for executing the death penalty. Kentucky uses a combination of three drugs originally developed in Oklahoma and presently in use in every state that has the death penalty except Nebraska. Audio (with still pictures) is on C-SPAN. Transcript is on the Court's site.

Overall, the argument appeared to go well for the state. Even Justice Stevens said the state had "a very strong case" (p. 41).

The U.S. Supreme Court issued an orders list following its conference today. As expected, they took the capital child rape case, Kennedy v. Louisiana. They also took two federal sentencing procedure cases, Irizarry v. United States, 06-7517, and Greenlaw v. United States, 07-330.

As we have noted before, we at CJLF consider the death penalty for any nonfatal crime to be a bad idea, even if it is constitutional. There needs to be a meaningful differential in punishment between rape and rape-murder to give the rapist an incentive not to kill the victim. That is also why the death penalty is very necessary for rape-murder.

In procedural matters, the Court turned down the ABA's untimely motion to participate in oral argument as amicus in Virginia v. Moore. Yes, ABA, even you have to follow the rules. The SG gets in to Monday's argument in Baze v. Rees and in the Indiana voter ID cases, as usual.

According to the hearing list, Kentucky will be represented at oral argument by Roy Englert of Robbins, Russell, rather than by any of the state attorneys on the brief.

Expect an orders list Monday with a large number of cert. denials, no grants, and routine procedural stuff.

Mayo Clinic Proceedings has published some reaction to the articles previously noted here. Not content with having contemporaneously published two editorials critical of David Waisel's article on physician participation in executions, they now publish a third, plus a commentary by the anti side's favorite lethal injection expert, Mark Heath.

They also publish six letters, four of which are on the opposition side. Despite having called only for responses that address the ethics of physician participation and not capital punishment generally, they go ahead and violate their own limit by publishing two letters attacking capital punishment generally. One of them is from Margaret R. Wentz, BA, of the Mayo Clinic. (You have to wonder about a person who uses a bachelor's degree as a title.) Ms. Wentz demonstrates her lack of sophistication on the subject with this obvious non sequitur: "Additionally, the death penalty is not a deterrent to crime. National crime rates vary little between states that have the death penalty and those that do not." She cites the notorious Helen Prejean and the Death Penalty Information Center for this nugget, making no mention of the large body of peer-reviewed literature finding a deterrent effect. The editors claim "the various letters and commentaries were subjected to the journal’s typical rigorous peer-review process." Excuse me if I am unimpressed with your rigor.

One item that is worthwhile is the letter from C&C blogger Steven Erickson. He calls Arthur Caplan on the carpet for making the ridiculous statement that the United States executes "children" in an article published two years after Roper v. Simmons banned execution of anyone under 18. This is on top of the fact that 16- and 17-year-olds are not "children" in the first place.

The U.S. Supreme Court will hear oral argument in Baze v. Rees, the Kentucky lethal injection case, on Monday. Briefs and other pertinent documents are collected here. Orin Kerr has this post at the Volokh Conspiracy. Alison Nathan and Douglas Berman have this dialog on SSRN, forthcoming in PENNumbra. (Doug calls it a debate, but they don't really disagree enough to call it that, IMHO.) Adam Liptak has this story in the NY Times on the resistance toward going to a single-drug method.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court redefined Confrontation Clause jurisprudence to keep out of criminal trials nearly all out-of-court statements if they are "testimonial" but to leave to state hearsay law the admissibility of statements that are not "testimonial." The details of exactly what is "testimonial" were left to be sorted out later.

One such case is going to trial in Wisconsin, following a ruling of that state's Supreme Court, Carrie Antlfinger reports for AP. Julie Jensen suspected that her husband, Mark, was going to kill her. She wrote a letter to the police and gave it to a neighbor to be given to the police in the event of her death. She also left voicemails for a police officer and talked to the neighbor and her son's teacher. Julie died of poison on December 3, 1998. Mark was charged with homicide on March 19, 2002.

Death Penalty: A Second Circuit ruling last Friday upheld the federal convictions and life sentences of two New York murderers, rejecting their claim that the trial judge's dismissal for cause of potential jurors opposed to the death penalty, based only on their written answers on a questionnaire rather than through direct examination, was unconstitutional. This AP story discusses the case. In fact, these two defendants lucked out. In a new trial, the prosecution might have been able to seek the death penalty again with a new jury.

Gangs: An Associated Press story by Thomas Watkins reports how the Los Angeles-based Latino street gang F13 has targeted blacks caught in the neighborhood marked as their "turf" for murder in order to keep rival black gangs at bay. This information comes from a joint federal and state effort to prosecute 102 members in the largest federal case involving a single gang. For years, groups which sympathize with criminal defendants have claimed that the criminal justice system is biased against minorities, citing the fact that mostly blacks and Hispanics are arrested for drug dealing and violent crimes in many large cities. The inconvenient truth is that the dominant urban gangs that traffic in drugs, racketeering, and violence are either black or Hispanic.

Penn. DP: Emilie Lounsberry has this story in the Philadelphia Inquirer on efforts to have the death penalty carried out in Pennsylvania. The state high court has affirmed four death penalties in five days.

Candidates' Views: The Pew Forum on Religion and Public Life has this summary of where the presidential candidates stand on the death penalty. Notably, not a single candidate with the proverbial snowball's chance is in favor of abolition of the penalty. (Nonfactors Dennis Kucinich and Ron Paul are the only ones.) If the country really were turning away from the death penalty, as opponents claim, one would think that at least one major candidate would be trying to ride that wave.

More Candidate Views, this time on the International Criminal Court, reported by Bob Egelko in the SF Chron.