February 2008 Archives

News Scan

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Anti-Spam Law Upheld By a narrow 4-3 vote, the Virginia Supreme Court has upheld the criminal conviction of Jeremy Jaynes for violating Virginia's anti-spam law, Larry O'Dell reports for AP. The court rejected Jaynes' arguments on jurisdiction, First Amendment, vagueness, and the Commerce Clause. The dissent accepted the First Amendment overbreadth argument.

Practicing criminal law can be hazardous to your mental health, reports Lynette Hoffman in the Australian. "New research from Macquarie University, to be published in the international journal Traumatology, has found that criminal law work can have profoundly damaging psychological effects."

Loaded firearms in U.S. Parks
Washington Post writer Christopher Lee reports that the U.S Department of Interior is considering easing restrictions on loaded firearms in national parks. The National Rifle Association supports the proposal and favors conforming park rules to state law. Park advocates and rangers’ organizations contend that the new rules would increase illegal hunting and more deadly domestic disputes. According to the article, there are 48 states that allow people to legally carry firearms for self-defense.

Report: Immigrants less likely to be incarcerated

Inside Bay Area reporter Javier Olvera writes that the Public Policy Institute of California (PPIC) reports that the foreign-born population only makes up 17% of state prison inmates, compared with 35% of the adult male population. The story notes "while the findings are surprising, they don't account for a complete relationship between immigration and crime." For example, it doesn’t included crimes like vandalism and shoplifting from immigrants, which results in jail time. Bill Cole, an advocate for laws that deport immigrants who commit crimes, disagrees with the findings. However, Salvador Bustamante agrees with the report because he says, “Immigrants come to the United States to work, often tying to stay under the radar of authorities and away from criminal activity to avoid deportation.”

The McCleskey Claim, Again

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A trial judge in Connecticut has allowed a claim of the type rejected by the Supreme Court in McCleskey v. Kemp, 481 U.S. 279 (1987) to go forward. This is the perennial claim that statistics show a racial or geographic "bias" in the administration of the death penalty. A long forgotten, but important, fact in the McCleskey case is that the federal district judge, after a full hearing with experts on both sides, found that the study did not prove what its authors claimed it proved. See McCleskey v. Zant, 580 F. Supp. 338 (ND Ga. 1984).

In Connecticut, the first study by the Public Defender came up with the "wrong" answer, so they suppressed it. As noted here, the claim that the study had to be suppressed because the results were not statistically significant does not pass the straight-face test. So now they have a new study that gets the "right" answer, and they can go forward. Katie Melone has this story in the Hartford Courant.

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Americans in Prison: An Associated Press story by David Crary cites a recent report from the Pew Center on the States indicating that one of every 100 adults is in jail or prison. The report points to habitual criminal sentencing laws such as "Three Strikes" for the high incarceration rate, "Getting tough on criminals has gotten tough on taxpayers," said the project's director. It is worth noting that national crime data from the most recent Department of Justice report indicated that 3.8 per one hundred Americans were crime victims in 2006. Studies going back thirty years have also found that repeat offenders, the kind locked up by "Three Strikes" laws, commit several dozen crimes per year. A study in the 1990s by University of Colorado Economics Professor Steven Levitt estimated that the annual cost of keeping a criminal in prison amounted to less that two-fifths of the cost of leaving him on the streets, which supports the proposition that not getting tough on criminals is even tougher on taxpayers, not to mention crime victims.

Lying expert pleads to perjury: John Torkelsen, an expert used by Milberg Weiss et al. in securities litigation, has agreed to plead guilty to perjury, reports Dan Slater at WSJ Law Blog. The DoJ press release is here. Torkelsen stated he was not being paid on contingency when he was, and engaged in a ruse to conceal that fact from the courts.

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Linda Greenhouse, the New York Times' controversial Supreme Court correspondent, has accepted a buyout offer and will be leaving after 30 years on the beat, Seth Sutel reports for AP.

Officials are cracking-down on criminal immigrants. According to this Washington Post story by Ernesto Londono, strong efforts are being made by immigration officials to locate and deport illegal immigrants and monitor immigrants with criminal records, which is straining the immigration court system. After years of criticism for failing to do enough to deport illegals, federal authorities have formed partnerships with local corrections to monitor immigrants charged with crimes. U.S. Immigration and Customs Enforcement reports that over the twelve month period ending on September 30, it placed 164,000 illegals in deportation proceedings and estimated approximately 200,000 deportations this year.

Man gets life sentence for double murder. On April 4, Los Angeles County Superior Court Judge Michael Johnson will sentence Keven Lee Graff for murder, mayhem and torture. L.A. Times staff writers Tiffany Hsu & Andrew Blankstein report that in June 2004, Graff killed Dr. Morley Engelson with his own kitchen knives. Graff also decapitated Engelson’s neighbor, Robert Lee, leaving Lee’s head at Engelson’s house and the body at his own home. In a plea bargain to avoid a death sentence, Graff admitted his guilt in both murders and asked to address the court at his sentencing, where he will receive two life terms without the possibility of parole.

Britain’s DNA Database Challenged

According to this AP story, two British citizens who have been acquitted of criminal charges are asking the European Court of Human Rights to order the destruction of their DNA samples. The two Britons claim that not destroying their DNA is a breach of their right to privacy and amounts to discrimination. England's DNA database is the world’s largest holding up to 4.5 million samples.

Washington’s New Bill against Street Gangs
A story by Jennifer Sullivan in the Seattle Times reports that Washington is experiencing an increase in youth gang-related crimes. State Rep. Christopher Hurst is pushing a bill (HB 2712) that will add $2.4 million in funding for gang prevention, intervention, and suppression. The bill would create a statewide database of information on gang members available for police use only, and codify the state’s first definition of a “criminal street gang.” This legislation will provide pilot programs and activities for troubled youth. Hurst says, “It’s essentially like treating gangs like organized crime.”

Bill Targets Sex Offenders’ Property
Kentucky Post reporter Jessica Noll writes that House Bill 210 will authorize law enforcement seizure of property from convicted sex offenders. Confiscated houses, money, and personal belongings will be sold and the proceeds used to defray the cost of prosecuting sex offenders such as expert witnesses and forensics. The state's Chief public defender, Daniel T. Goyette, argues that the measure is unconstitutional because states cannot deprive a person of property without affording a prompt opportunity to reclaim items later determined to be unlawfully seized.

The Silence is Deafening

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Another Supreme Court decision day and another lone civil case, with no decision in Medellin v. Texas. There remain three undecided cases from the October calendar: Medellin, the Washington political primary case, and the Santos money laundering case. Four Justices have not yet written an opinion from that session, and it is likely that three of them are authors of the three undecided cases: Chief Justice Roberts, Justice Thomas, Justice Breyer, and Justice Alito. I expect that Medellin is a win if any but Justice Breyer is writing it, but why is it taking so long? It could be that there is a fracture on how to get to the result, and the Court is trying to put together a coherent majority opinion.

Crime and Politics

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In this Washington Post column last Sunday, David Broder suggested that crime and law enforcement may emerge as a political issue this year. He cites a recent poll conducted for liberal think tank Third Way, showing that 69% of the sample thought that violent crime was a more serious threat than a terrorist attack, chosen by only 19%. The sample, with a respectable 1,139 respondents, offered a fairly broad cross section. Among those willing to declare their political preference, 44% of the respondents were Democrats and 35% were Republicans.

English DP Poll

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In London, the Sun asked readers of its Web site, "Should Britain bring back the death penalty?" The result: "And a staggering 99 per cent of the 95,000 readers who responded to our You The Jury poll said the Government SHOULD reintroduce it."

Internet polls mean very little, as they suffer from a two-stage selection bias. Only those who view the particular story are solicited, and only those who choose to answer it are counted. Even so, 99% of a sample that large is surprising.

Harmlessness and Habeas


With its grant of certiorari in the case of Chrones v. Pulido, No. 07-544, the U.S. Supreme Court ventures once more into the questions of habeas corpus, harmless error, and deference to the state court's decision on direct appeal. The Court addressed related issues last June in Fry v. Pliler, No. 06-5247. The new case deals with the situation where a jury is given more than one path to a conviction, of which one is right and the other wrong. The Supreme Court addressed that situation in Stromberg v. California, 283 U.S. 359 (1931).

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SCOTUS takes Fourth Amendment case: Today the Supreme Court agreed to review a 4th Amendment case next term regarding warrantless searches of automobiles. The Washington Post reports that Rodney J. Gant was arrested in Tucson, Arizona about 10 feet away from his parked car and placed in the back of a police car while officers searched his car. They found cocaine and other drug paraphernalia. Last year the Arizona Supreme Court reversed Gant's conviction, holding that the search violated the 4th Amendment. The case is Arizona v. Gant, 07-542

Surveillance Law for Expanded Spy Powers. As posted in a previous news scan President Bush would like the House to act on legislation the Senate has passed and allow the government to monitor phone calls and emails by suspected terrorists. AP reporter Ben Feller, writes in the Washington Post “the law targets foreign terrorists threats and allows eavesdropping on communications involving people in the U.S.”. A sticking point for House Democrats is whether to extend legal immunity to companies that have assisted the NSA at intercepting suspect communications in the past.

Three NYPD officers on trial

According to this AP story by Tom Hayes, three undercover officers are on trial for killing Sean Bell and wounding two of his friends on the night before Bell was to be married. Assistant DA Charles Testagrossa points out that one of the three officers did not show his badge or wait for backup before confronting the three men. Bell and the others were shot in front of a strip club where his bachelor party was held hours before the wedding. Defense attorney James Culleton said, “While clearly this was a tragedy, no crime was committed.” The officers pleaded not guilty to manslaughter and reckless endangerment.

No Remedy for CA death penalty appeals
Chief Justice Ronald M. George has dropped his bid to ask voters to adopt a constitutional amendment allowing intermediate-level appellate courts to review death penalty cases. Earlier this year the Court unanimously agreed that the change would help reduce the backlog of capital cases awaiting direct review before the high court. A story by Henry Weinstein in the Los Angeles Times reports that in California it takes an average of 17 years to complete the judicial review of a capital case, which is twice the national average. Chief Justice George has decided to withdraw his proposal because of California's current fiscal crisis.

DNA Advances in England

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Forensic DNA is producing more results in England than in the U.S., reports Gautam Nak in the Wall Street Journal. Some of the reasons are controversial.


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From AP in Cincinnati:

A federal court jury on Friday found the owner of a company that sells "male enhancement" tablets and other herbal supplements guilty of conspiracy to commit mail fraud, bank fraud and money laundering.
Steve Warshak, whose conviction was reported Friday by The Cincinnati Enquirer, is founder and president of Berkeley Premium Nutraceuticals, which distributes Enzyte....

I wonder if he will get a sentence enhancement?


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Update, Monday morning: SCOTUSblog reports that the Court granted certiorari in Gant and in a habeas case from California, Chrones v. Pulido, No. 07-544. More later.
The U.S. Supreme Court held a conference today. The only order announced was for briefing in a Gitmo detainee case, which Lyle Denniston discusses at SCOTUSblog. For regular cases, the grants and denials will be announced Monday. Among the criminal cases considered today was Arizona v. Gant, No. 07-542, regarding the New York v. Belton rule of searches of vehicles incident to arrest.

News Scan

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Murder Victim's Note Helps Convict Husband. A trial court in Wisconsin has convicted Mark Jensen of the 1998 murder of his wife, Julie, based, in part, on a note she left to her neighbor with instructions to give it to police only if she were to die. AP writer Carrie Antlfinger reports in the Washington Post that Julie had grown suspicious of her husband, Mark Jensen, and wanted someone to look into her death after she died. On Dec 3, 1998, Julie was found dead after being poisoned with antifreeze and suffocated. Mark was convicted of first-degree intentional homicide. The Wisconsin Supreme Court decision allowing the evidence, previously noted here, followed the decision in Crawford v. Washington.

Justice Kennedy on citing foreign precedents: In a speech Wednesday night at the Meridian International Center in Washington, Supreme Court Justice Anthony Kennedy attempted to justify his reliance on foreign precedent in his 2005 Roper v. Simmons opinion according to this story by AP writer Mark Sherman on sfgate.com. In the Court's 5-4 ruling in 2005, Kennedy relied heavily on the practice of other countries to support his interpretation of the Eighth Amendment.

A Texas Remedy for Overcrowded Jails utilizes a new state law allowing officers to give out tickets for certain non-violent misdemeanor offenses instead of booking offenders in jail. A story by Tanya Eiserer in the Dallas Morning News reports that police officials expect the program to improve response time. Texas police and prosecutors believe that giving out citations for misdemeanors will save taxpayers money by not housing inmates in jail for days.

Utah Law Targets Gang Members: A story by Elizabeth Ziegler in yesterday's Utah Policy Daily reported that the state's House of Representatives has passed SB 65, which would make it a crime for gang members to encourage juveniles to commit crimes. The punishment would be six months in jail and a $1,000 fine. The bill only applies to people who have a history of gang related crimes. Although the measure passed the House with a unanimous vote some members expressed concerns about how law will be enforced.

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Call to Restore England's Death Penalty: The relatives of a victim murdered by a British man found guilty today of killing five women are asking the government to restore the death penalty. A report by Angela Balakrishnan in today's Guardian quotes a statement by the family of Tania Nicol, Suffolk sex predator Steve Wright's last victim,"....the person responsible will be kept warm, nourished and protected. In no way has justice been done. These crimes deserve the ultimate punishment and that can only mean one thing." The nude bodies of the five women were found in remote spots around Ipswich between October and December of 2006. Wright became a suspect when his DNA was matched with samples found on his victims.

California DP Moratorium Commission met in Los Angeles yesterday as reported in a Los Angeles Times story by Henry Weinstein. The group, called the California Commission on the Fair Administration of Justice, is similar to those established earlier in New Jersey and Florida, with a majority of death penalty opponents as members. Testifying before yesterday's hearing were academics, defense attorneys and the relative of a murder victim who experienced a "spiritual epiphany" causing her to now oppose capital punishment. One highlight was the testimony of San Bernardino County DA Michael Ramos which emphasized the care his office takes in determining if it should seek a death sentence in a particular case.

An ACLU Challenge to the Government's surveillance of communications by suspected terrorists was denied review by the U.S. Supreme Court Tuesday as reported by the Los Angeles Times. While most stories regarding the case termed the government's action as domestic wiretapping or spying, (example) in reality, the National Security Agency has been intercepting communications between terrorist suspects in the United States and individuals in foreign countries and communications from one suspect in a foreign country to another person in a different foreign country which may be routed through a U.S. communications hub. Congress is currently considering whether to allow the surviellance to continue.

CLS Conference on Campus Violence

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Looks like an interesting event at Columbia Law School:

The Health, Law and Society Program of the Columbia Law School is pleased to announce a one day conference on Violence on Campus: Prediction, Prevention and Response to be held on Friday, April 4, 2008 at the Law School. The conference, which will feature academic experts from law and the social sciences, policy makers and practitioners, is intended to bring together professionals and academics to share knowledge and information, and to stimulate research and innovative policy development in this area. We expect that attendees will include university attorneys and administrators; counseling center directors and staff; off-campus clinicians who work with students; academics in mental health, law, and policy; students; and the media.

Some interesting speakers as well.

News Scan

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Juvenile Offenders are going Home for Punishment in New York City according to this story by Leslie Kaufman in today's New York Times. The alternative sentencing program, called the Juvenile Justice Initiative, sends medium risk offenders back home, where the family and offender receive intensive therapy. The city reports that last year, the initiative proved successful for the juveniles enrolled and reduced the cost of housing them in residential treatment centers. Fewer than 35 percent of the 275 youths that have been through the program have been rearrested or violated probation.

Parents Are Demanding Answers from officials at E.O. Green Junior High School in Oxnard, CA, regarding last week's on-campus shooting of 15-year-old Lawrence King. Catherine Saillant from the New York Times reports that hundreds of parents filled the gym last night to ask why school officials were not more aggressive in preventing the shooting after several students reported ongoing harassment between student Brian McInerney, the alleged shooter, and King, who proclaimed himself gay. Mclnerney is being tried as an adult.

Judge Alters Sex Offender Law
A story, by Holly Abrams in yesterday's Sandusky Register reports that the U.S District Court for the Northern District of Ohio has suspended the notification requirement in a new federal sex offender law for some offenders. The order will permit a reported 54 sex offenders in Erie County to move into a neighborhood without any notification to the other residents. The Adam Walsh Child Protection and Safety Act, which became law on January 1, is being challenged as unconstitutional. The judge's order was the result of a plea bargain between the state and the law's opponents.

Too Tough for Texas: Legislators and law enforcement officials are balking at the reporting requirements under the Adam Walsh Child Protection and Safety Act (referenced above). States have until 2009 to adopt the new law's provisions or lose millions in federal criminal justice funds, according to this story by Lisa Sandberg in the Houston Chronicle. "We think our laws are strong enough," said Senator Florence Shapiro, R-Plano, a leading advocate for registering sex offenders in Texas. Texas officials believe that the new federal reporting provision is not worth complying with because it’s too costly and labels too many people as sex offenders.

Retroactivity, Remedies, and AEDPA


Nineteen years ago this Friday, the U.S. Supreme Court virtually eliminated the retroactive application of newly created rules of criminal procedure on federal habeas corpus in its landmark decision in Teague v. Lane, 489 U.S. 288 (1989). Today, in Danforth v. Minnesota, No. 06-8273, the Court confirmed that Teague is a limitation on the remedy of federal habeas corpus, not a definition of the substantive scope of federal constitutional rights. Defendant Danforth has won a round in this case; he can now go back and argue to the Supreme Court of Minnesota that they should adopt a broader retroactivity rule. On the much larger battle, though, this is a win for the prosecution nationwide. The rationale of the decision pounds several more nails into the coffin of the argument that the "deference" standard of the Antiterrorism and Effective Death Penalty Act of 1996 is unconstitutional.

A "Free Spirit" Mitigation

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From Fox News comes the story of 24 year old Allenna Ward convicted and sentenced for having sex with several of her high school students. According to the story, forensic psychiatrist Donna Schwartz-Watts offered this supposed characterization of Ward:

Schwartz-Watts said Ward is not a pedophile, but rather a childlike victim suffering from personality disorders and a repressed childhood. Schwartz-Watts said the minister's daughter lived a sheltered life but really was a "free spirit" who never got a chance to break away from her family.

If mental health testimony is based on science, then how does repression and free spirit come into play?

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FISA: The Wall Street Journal has this editorial on the FISA legislation stalled by the House. "What we have here is a remarkable display of the anti-antiterror minority at work."

Mumia Abu-Jamal had his third state postconviction petition denied by the Pennsylvania Supreme Court. Opinion here. AP story here. Hat tip: How Appealing. Abu-Jamal's federal habeas case is still pending in the Third Circuit.

Cal. Commission: Howard Mintz has this story in the San Jose Mercury News on the meeting of the California Commission on the Fair Administration of Justice.

SCOTUS Takes Exclusionary Rule Case

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The U.S. Supreme Court has issued its order list from last Friday's conference. The one criminal case granted is Herring v. United States, No. 07-513. The Question Presented is:

Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.

Cert.-stage pleadings and the Eleventh Circuit opinion are available on SCOTUSblog.

Among the cases denied certiorari were:

Norris v. Simpson, No. 07-653, noted here Friday, on whether a murderer who never claimed to be retarded before, despite a state-law exclusion from capital punishment, can suddenly claim to be retarded after the Atkins decision.

ACLU v. NSA, No. 07-468, on standing to litigate the government's terrorist surveillance program.

Antoinette Frank v. Louisiana, No. 07-6923, a petition by one of the few women on death row, a former New Orleans police officer who murdered three people, including her partner.

Schriro v. Lopez, No. 07-683, on exhaustion of ineffective assistance claims.

When one reads stories like this, it's easy to understand the public sentiment for strong punishments against sex offenders. Likewise, the horrific story of Megan Kanka which spurred the development of the various sex offender registries is another reminder why public and legislative sentiment is so inclined to favor restrictive measures against sex offenders.

But as the wise saying goes, good intentions aren't enough in this life. Perhaps this is the case with some of our sex offender policies. For instance, Doug Berman points us to a news story from St. Louis Post-Dispatch, headlined "Technology keeps eye on sex offenders."

Ed Silverman at Pharmalot has this post on the emerging (albeit very preliminary) evidence that gunman Stephen Kazmierczak had stopped taking his psychiatric medication before the killings at Northern Illinois University. As ABC news reports, there's evidence that Kazmierczak had a history of mental illness, which seems to have included depression, violence, and self mutilating behaviors.

The comment thread of the Pharmalot post is particularly revealing in its predictability of responses from those who blame antidepressants for violent behavior among those with mental illness. Those critics, however, want it both ways: to blame antidepressants for violent behavior if someone takes them and to blame them as well if someone stops taking them and becomes violent due to the amorphous discontinuation syndrome purportedly associated with some of these medicines. But as mentioned previously, antidepressants have become a popular target by those who wish imbue the pharmaceutical industry with evil for their supposed malfeasance and deception rather than focusing on the simple fact that sometimes people engage in very violent conduct which itself imbues evil- and this seems to occur more often among those with mental illnesses.

This should hardly be surprising. For all rhetoric we've been told that those with mental illnesses are no more likely to become violent than anyone else, intuition dictates that when an illness robes people of their rationality - as it often does with mental illness - bad outcomes are to follow. It is true that most people with mental illnesses are not violent; but we're not taking about most people when we're discussing incidents like Kazmierczak or Kendra Webdale. Rather, what comes into focus when we examine cases like these is the inconvenient truth that untreated mental illnesses can be harbingers for tragedies from the personal to the infamously public.

Policing Priorities

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Chip Johnson has this commentary in the SF Chronicle on city government priorities in Oakland, California:

On the heels of the city's eighth homicide in four days, [City Administrator Deborah] Edgerly's office announced that the city, in response to complaints from local florists, would enforce a zero-tolerance policy on illegal street vendors on Valentine's Day.

Police officers and city employees would be assigned to foot patrols and issue citations to any street vendor without a permit, she said. Some police officers shook their heads, while others just laughed. Leaders in the business community were speechless.

As for me, I'm surprised that the city would approve such a bold plan to take back the streets.


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The U.S. Supreme Court held a conference today. As expected, no grants or denials of certiorari were announced. The Court did issue an orders list of routine orders regarding briefing and argument. Announcement of the cases granted and denied today will be made in Tuesday's orders list. The Court is closed Monday for Washington's Birthday (no, not "Presidents' Day," see 5 U.S.C. § 6103).

Among the petitions considered at today's conference was Norris v. Simpson, No. 07-653, in which the Eighth Circuit held that a condemned murderer could raise his claim that he is retarded for the first time in a post-Atkins habeas petition, despite the facts that (1) the state had precluded execution of retarded murderers the whole time, and (2) he never claimed to be retarded during any of the state proceedings.

Wednesday is a likely day for decision announcements. Medellin v. Texas, discussed here, was argued October 10 and is ripe for decision.

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Judge Joseph Sneed: Today services were held for Judge Joseph Sneed, who served for over thirty years on the Court of Appeals for the Ninth Circuit. Bob Egelko has this story in the San Francisco Chronicle. Judge Sneed died in his home Saturday at the age of 87. He was appointed by President Nixon in 1973. But the court changed dramatically a few years later.

"The Carter people have a different way of looking at the world, and we often divide on what you could call political lines," Judge Sneed told a Wall Street Journal reporter in 1984. "I'm usually on the losing side on panels in this circuit."

Yet Judge Sneed's dissents were often vindicated by the Supreme Court, including the "Three Strikes" case, Lockyer v. Andrade, 538 U.S. 63 (2003).

With "Friends" Like These... Sixteen-year-old Melisa Fernino faces criminal contempt charges for sending a MySpace "friend" request in violation of a restraining order, reports Alan Feuer in the New York Times. Sandra Delgrosso obtained the restraining order because Melisa made violent threats after Ms. Delgrosso dated Melisa's father. On August 23, Melisa sent a MySpace ‘friend request’ to Ms. Delgrosso and her two daughters. Judge Matthew A. Sciarrino Jr. of the Staten Island Criminal Court ruled today that this was as a form of contact prohibited by the order. If Melisa is convicted of the charges she will face up to a year in prison. "Judge Sciarrino’s order, which managed to quote both Wikipedia and 'Hamlet,' meanwhile served as something of a primer for the technologically challenged."

8th grader charged with murder and hate crime: The AP reports that Brandon David McInerney will be tried as an adult for the school shooting of 15-year-old Lawrence King, a classmate. King was shot in the head on Tuesday in class. Prosecutors plan to charge him with murder, firearm use, and a hate crime enhancement after finding out that King was declared brain dead on Wednesday. According to classmates, King was known for being openly gay and wearing feminine attire like high heels and make-up, which made him unpopular with the other boys on campus. McInerney faces 25-to-life. California law does not provide for life without parole in murder cases where the perpetrator is under 16 at the time of the crime. See Penal Code section 190.5(b).

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Tax/Crime Protest: In Oakland, California, shopkeeper Scott Silvera has tried for months to get mayor Ron Dellums' attention on the crime problem. "Finally, fed up, he vowed to stop paying sales taxes until he heard from the mayor's office," reports Phillip Matier in the SF Chron.

Gitmo Executions?: The military has updated its regulations to allow terrorists sentenced to death to be executed at Guantanamo, report Michael Melia and Andrew Selsky for AP. This change is based, as was the original Guantanamo siting of the detainment, on the theory that federal courts have greater habeas corpus review power if the prisoners are physically within the United States. As explained in CJLF's brief in Boumediene v. Bush, federal courts have habeas jurisdiction in the cases of alien enemies only if and to the extent that Congress has given it, and the physical location should be irrelevant under the Military Commissions Act.

Clinton and Terrorist Pardons: Debra Burlingame had this commentary yesterday about Bill Clinton’s FALN pardons. The Armed Forces of National Liberation, known by its Spanish acronym, FALN, had been linked to at least 146 bombings by 1996. The most gruesome attack was the bombing of the Fraunces Tavern in Lower Manhattan. In August of 1999 Clinton granted clemency to 16 members of FALN, causing a major controversy. Among the guidelines overlooked in this grant was one widely considered vital: the prisoners actually asking for clemency.

Spy Powers Expanded. After a year of struggling to decide, the Senate approved Tuesday the bill to make permanent the surveillance authority set to expire Saturday. The Senate bill, unlike the House version, will give legal protection to the phone companies that participated in past surveillance efforts. Siobhan Gorhan reports for the Wall Street Journal that the 68-29 final vote was "more lopsided than many expected." "'We lost every single battle we had on this bill,' said Sen. Christopher Dodd, a Connecticut Democrat who led the opposition to the immunity provision."

Republicans move to have Moratorium lifted on Executions. Yesterday in the Daily Herald, Christy Gutowski wrote about three Dupage Republicans urging Gov. Rod Blagojevich to lift Illinois' moratorium on executions. They also propose changes to the circumstances making a murderer eligible for the death penalty. They propose raising the age for the child-murder circumstance from 12 to 16 but reducing the overall number of circumstances from 21 to 9. The text of the resolution is available here.

The "top side" amicus briefs have been filed in Indiana v. Edwards, No. 07-208. The briefs to date and other pertinent documents are available here. Along with the expected amici of CJLF, other states, and the federal government, we have some unusual players.

The case involves a defendant of marginal mental competence who moved under Faretta v. California, 422 U.S. 806 (1975), to reject counsel and represent himself. When the Court first granted certiorari, it occurred to me that this was one of those unusual cases where many defense lawyers might disagree with the position of the defendant in this case.

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NJ Supreme Court Approves Passenger Criminal Checks
An AP Story by Jeffrey Gold reports that the New Jersey Supreme Court has ruled 6-0 that police can run a criminal check on a passenger during a traffic stop. The driver and any passengers are seized when an officer stops a vehicle according to the ruling which reinstated the conviction of a passenger with outstanding warrants, a suspended license and carrying crack cocaine. Chief Justice Stuart Rabner wrote in his unanimous decision that checking the NCIC database “was within the scope of the traffic stop and did not unreasonably prolong the stop, there was no basis to suppress the evidence found.”

Teen being tried as an Adult in Pit-Bull dog attack
A Southern California 17-year-old teen is facing felony charges as an adult for allegedly siccing his pit bull on an 8-year-old boy. The Mercury News has the story here.

Doughnut Theft dismissed on criminal’s potential “Third Strike”
A Fifty-one-year old Tehachapi man with two felony strikes against him for previous robberies and several misdemeanor convictions over the past three decades will not face life in prison for stealing a package of donuts. Steven Mayer of The Bakersfield Californian has this Kern County story where prosecutors conceded that there were just “too many holes in the case” the alleged doughnut thief.

Mummified Body found Buried in Bathtub
In this very unusual and bizarre story from the NY Daily News, a partially mummified body was found buried in a bathtub filled with dirt in an abandoned Phoenix apartment that was stacked to the ceiling with garbage and human waste.

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Should Bush Issue More Pardons? An editorial in today’s San Francisco Chronicle suggests that President Bush's reluctance to give pardons may be because Former President Clinton issued 140 last minute pardons to unworthy recipients including Marc Rich who was indicted in 1983 for tax evasion. It may also have something to do with Roger Adams, who, until recently, served as the Department of Justice Pardon Attorney for both the Clinton and Bush Administrations. Adams was replaced after a 2007 General Inspector’s audit, cited him for describing a drug offender's pardon application as "about as honest as you could expect from a Nigerian."

Daily Crime Reports by Email
Greg Whisenant founded Crimereports.com after a stranger in his building turned out to be a burglar. A neighborhood meeting ensued and led Whisenant to ask, with the latest technologies available, "Why can't we have some kind of alert system...?" According to this story by Brian Bergstein in today's SF Chronicle, the Crimereports.com website extracts information from police databases instead of newspapers like most alert systems. Whisenant's service provides free daily emails, with reports on crimes in specific neighborhoods. He currently has 40 law enforcement agencies signed up and the website is free of advertising.

Military to Seek Death Penalty for six detainees charged with playing key roles in the 9/11 attacks. A story by William Glaberson in today's New York Times quotes two law professors and unnamed lawyers who believe the process will be lengthy, complex and risky. The piece also suggests that because death sentences will be sought, the friction between the U.S. and European critics of capital punishment will increase. It would be interesting to see polling of the citizens of England, France, Spain and Germany and others who have suffered terrorist attacks to find out if they share their governments' views regarding these defendants.

Crime and the Presidential Race

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Bob Egelko has this story in the SF Chron. "Crime is seldom a prominent issue in presidential primaries, largely because the front-runners in each party typically take similar positions. But the subject can explode on Democrats in a November election."

Egelko notes that the positions of Clinton and Obama on the death penalty were once sharply different but have since converged. I'm inclined to think this is the result of changing political calculations rather than actual change in personal beliefs. As Obama moved from one state senate district to a statewide race for U.S. Senate, his previous forthright opposition wasn't going to fly. Clinton may not see the need to maintain emphatic support as the issue moves down on people's priority lists and as she moves to a race where other issues have relatively higher prominence.

The biggest impact a president has on state criminal cases is in who he or she appoints to the federal courts, and there "the difference between the parties is huge," the story quotes yours truly at the end.

In its decision yesterday in State v. Mata, S05-1268, the Nebraska Supreme Court affirmed the judgment, including the death sentence, of child-killer Raymond Mata. However, as noted in yesterday's News Scan, the court declared the sole method of execution prescribed by statute in that state, electrocution, to be unconstitutional. So does that mean the death penalty is on hold unless the Legislature affirmatively restores it by enacted a new method? Would the advocates of repeal be able to achieve their goal through a combination of a court changing the rules and a legislative deadlock, as they have in New York?

Not necessarily.

News Scan

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Electrocution: Cruel and Unusual? Currently, Nebraska is the only state that utilizes the electric chair as their sole means of execution. However, Nate Jenkins from the Associated Press writes today that the Nebraska Supreme Court has ruled electrocution to be cruel and unusual. The high court issued this decision in the case of Raymond Mata Jr., sentenced to death for the kidnapping and murder of three-year-old Adam Gomez. The child's body parts were found in Mata’s freezer and dog's bowl. In the majority opinion Judge William Connolly opined that prisoners sometimes “retain enough brain functioning to consciously suffer the torture high voltage electric current inflicts on a human body.”

In his dissent, the Chief Justice pointed out that the U.S. Supreme Court has upheld the electric chair and that the wording of the Nebraska Constitution's prohibition on cruel and unusual punishment is identical to the Eighth Amendment. He suggests that the correct test for method-of-execution claims is that both the state and federal constitutions prohibit “deliberate indifference to an unreasonable risk of severe and prolonged pain in execution,” quoting CJLF's brief in Baze v. Rees, presently pending before the U.S. Supreme Court.

Update: Adam Liptak has this story in the NYT.

Releasing Crack Convicts Early
On our News Scan Wednesday the Associated Press discussed the U.S. Attorney General's call for changes in newly minted Crack Sentencing Rules. According to the LA Times, the U.S. Sentencing Commission felt that crack laws were unfairly affecting African Americans, who constitute 9 out of 10 crack defendants. The new sentencing guidelines go into effect on March 3rd, but some U.S. Attorneys are already implementing them. AG Michael B. Mukasey is repeating his concerns about this today before the House Judiciary Committee. For example, Deborah Woodard was convicted of possessing more than 50 grams of crack with the intent to distribute and was sentenced to 135 months in a federal prison. In Boston, a federal judge recently took 15 months off of her sentence, which will make her eligible for release this June.

Mental Health Courts According to a story by Emma Schwartz in U.S News, more than twice as many people with mental illnesses currently live in prison than in hospitals. Having these individuals restricted to prison cells rather than in treatment worsens their illness, often resulting in violence. There are about 175 mental health courts nationwide dealing with problems in overcrowded prisons. These courts are focused on diverting treatable defendants to programs rather than prisons, monitoring their subjects' success at attending treatment and staying off drugs. In many cases a violation of probation results in assignment to more treatment or increased supervision. Our post from last week discusses a new effort to prevent the mentally ill from purchasing firearms.

As mentioned previously, the recent National Institute of Mental Health's CATIE study suggested a link between schizophrenia and violence. That conclusion generated a lot of controversy from folks who assert that there is no link between mental illness and violence, touting the frequent mantra that those with mental illness are no more likely to become violent than the general population. Indeed, we should be careful not to needlessly contribute to the enduring stigma that burdens those with mental illness. Nonetheless, we shouldn't ignore the link between mental illness and crime simply because it makes some people uncomfortable or is at odds with the vested rhetoric of political correctness. Several recent studies in the journal Psychiatric Services shed some new light on the subject and are worth a few comments.

News Scan

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Daryl Atkins: A Virginia circuit judge, who had previously commuted the death sentence of murderer Daryl Atkins, has announced that he will stay his order while the state's appeal is pending. A story by AP writer Sonja Barisic reports that in the appeal, the state contends that a local trial judge lacked the authority to commute Atkins' sentence. As posted on January 21, Atkins was the subject of the Supreme Court's June 2002 ruling in Atkins v. Virginia, which held that the Constitution prohibited the execution of mentally retarded defendants. A jury later restored Atkins death sentence after finding that he was not mentally retarded.

Maryland's Death Penalty has been targeted for repeal by anti-death penalty advocates in recent years. A story by Andrew Schotz in today's Herald Mail reports that the families of murder victims are now uniting to oppose these efforts. The aunt of a murdered police officer, the sister of a murdered mother of two and the wife of a murdered corrections officer are writing letters to legislators and speaking out in favor of keeping capital punishment as an option for the state's worst murderers.

News Scan

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Brooklyn Police Scandal: Four Brooklyn narcotics officers have been charged with misconduct and falsifying records. Christine Hauser of the New York Times reports that Gravesend and Bay Ridge are the two areas in Brooklyn where cases have been affected the most. Detective Sean Johnstone was heard on a tape recording saying he and his partner, Officer Julio Alvarez, recovered 28 bags of cocaine yet only turned in 17. When Internal Affairs started investigating Johnstone and Alvarez, it led to the arrest of Sgt. Michael Arenella and Officer Jerry Bowens. The Brooklyn district attorney’s office has dismissed over 183 cases because either one or more of the officers have played a significant role in them. In addition, the city’s special prosecutor Bridget G. Brennan has thrown out five indictments against eight defendants.

Juvenile Crime: Katie Zezima writes in this New York Times report that cases under a Rhode Island law that allowed juveniles to be tried in adult court would be dismissed or transferred. Judge Daniel A. Procaccini from the Rhode Island Superior Court ruled that approximately 100 pending cases would be dismissed. Cases that resulted with an indictment will be sent to Family Court; only if the attorney general believes the crime is heinous, will a juvenile be tried in adult court. The judge concluded that juvenile's rights were violated because the cases were sent directly to adult court. Attorney General Patrick C. Lynch appealed the ruling and says it places the victims and their families in a “state of uncertainty.”

AG Seeks Change in Crack Sentencing Rules
According to this AP story, Attorney General Michael Mukasey wants Congress to modify the recently amended sentencing guidelines to prevent the early release of thousands of violent crack offenders. Mukasey is asking that the new law be changed to allow sentence reductions for only first-time and nonviolent offenders. Less than month ago, the U.S sentencing commission ruled that over 20,000 federal inmates would be eligible for reduction for their crack cocaine sentences. Mukasey argues that full retroactive application of the new guidelines will increase violence in communities and clog up the courts.

A "jailhouse lawyer" wrote the successful certiorari petition in the Supreme Court case of Burgess v. United States, No. 06-11429, reports Meg Kinnard for AP. The case is set for argument March 24, but petition author Michael Ray won't be arguing it. He remains a guest of Uncle Sam. The petition is here via Legal Writing Prof Blog.

First the good news. When California's Legislature convenes for its next session after the November election, the criminal-friendly persons presently running both houses won't be running them. The voters of California have once again shown that they have much better judgment when they vote directly on issues than they do in electing legislators. With 88% of precincts reporting (as of 5:09 am), Proposition 93 is losing 53.3-46.7.  That measure would have watered down the term limits and allowed present Senate President Pro Tem Don Perata and Assembly Speaker Fabian Nunez to stay on for years.

Now the bad news.

McCain, Judges, and the Great Question

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With John McCain's emergence as the front-runner for the Republican nomination, there has been much discussion about the kind of judicial appointments he would make. For issues related to crime, judicial appointments are the single most important aspect of presidential authority. The federal government has relatively little to do with protection from and prosecution for crimes against individuals. Federal prosecution is more appropriately directed to terrorism, drug smuggling, and other specifically federal areas. However, the federal courts have a great deal to do with how prosecutions are conducted in state courts. Judge Henry Friendly warned us over four decades ago that the Bill of Rights was being transformed into a detailed code of criminal procedure. Judicially created rules that are not really in the Constitution and often have nothing to do with the reliability of the verdict -- and in some cases actually obstruct the search for truth -- operate to defeat the cause of justice every day in American courtrooms. Will the next President appoint judges who will take us further down that path or judges who will realize we have already gone too far?

News Scan

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Crime and Politics: In Olympia, Washington, lawmakers are now targeting drunk drivers and sex offenders with new bill proposals. With 2008 being an election year, officials are now trying to get tough on crime. According to Curt Woodard, an AP writer in the Seattle Post–Intelligencer, officials seem to be focusing on areas such as privacy and free speech.
The proposals include:
- Allowing police to search cars without any suspicion in hopes of catching a drunk driver. Essentially, more DUI checkpoints.
- Force those convicted of multiple misdemeanors to submit a DNA sample into a government database
- Create the crime of viewing child pornography (even if it is an accident). People are urged to report any accidental viewing of child porn if they would like to be granted immunity.
House Judiciary Chairwoman Pat Lantz, D-Gig Harbor, is sponsoring the bill but questions the constitutionality of the measure. Gov. Chris Gregoire, who is proposing the bill, believes the bills are crafted well to create a balance in civil liberties.

Victims informed of inmate status
Under Colorado law, a victim has the right to be notified by the court, jail, and prison of the status of their offender. In the past, county jails have not been alerting victims fast enough when their perpetrators are release from jail.
Instead of using an electronic system the Sheriff's Office will start using the Victim Information and Notification Everyday web system (VINE), which will monitor inmates in only 64 county jails in Colorado. This internet system will notify crime victims by phone or email when the inmates are released from jail. The VINE system should be up and running in Colorado by August 2009. According to The Gazette, it will be funded by a $430,000 grant from the Bureau of Justice Administration.
The VINE system has been successful in 42 states helping fo free deputies from contacting multiple victims in one day and notifying the crime victim in a timely manner.

News Scan

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An Arsonist Turns to Stalking. Today on sfgate.com Gene Johnson, from Associated Press, writes that Allen Parmelee is spending the remainder of his 24-year sentence digging up information on the judges, lawyers and police officers that put him behind bars. Under Washington’s state Public Records Act, anyone has the right to petition records that are public. However, King County Prosecutor, Dan Satterberg is not only trying to deny him access to the records, but have a judge bar him for petitioning any more records.
Parmelee was convicted at his second trial for first-degree arson. His first trial ended in a mistrial because Parmelee had personal information about the jurors. Since his conviction, Parmelee has been gathering more information such as schedules, pay, photos and even addresses about deputies and other criminal justice officials.

Death Penalty: Tom Fahey writes on unionleader.com that Senator Joseph Kenney, R-Wakefield, sponsored SB 344 to expand New Hampshire's death penalty. Current law allows a death penalty for murder during a rape or kidnapping, killing a police officer or judge, murder for hire, a murder during a drug deal or by someone already serving life without parole. Kenney wants to expand the law to apply to multiple murders and attempted multiple killings.
Michel Woodbury shot and killed three men in a robbery July 2007. Jennifer Walker Blake, sister of one of the victims, supports the bill because under current law, her brother's killer cannot be sentenced to death. She says “Victims were murdered because they were in the wrong place at the wrong time”.

No Guns for the Mentally Ill. According to the Psychiatric News, the federal government may fund the tracking of those who have been to a psychiatric hospital to prevent them from purchasing guns. The sponsor of the new law Rep. Carolyn McCarthy (D-N.Y.) has also been the victim of the mentally ill gunman who killed her husband on a commute train 14 years ago. Advocates believe that the new law could have prevented the 32 deaths last year at Virginia Tech if it was passed sooner. However, the bill will not require background checks at private sales and at gun shows. In the article, Paul Appelbaum, M.D, chair of the APA states that people with mental illness only contribute to 3-5 percent of gun crimes. Also, mental health advocates are concerned about the privacy rights of patients. The National Instant Criminal Background Check System (NICS) Improvement Amendment Act of 2007 is also related to the new gun law.

PornoCop: The Ninth Circuit today denied rehearing in the case of Dible v. City of Chandler, No. 05-16577. The court held that the city of Chandler, Arizona can decide that operating a hard-core pornographic web site is incompatible with being a police officer.

The public expects officers to behave with a high level of propriety, and, unsurprisingly, is outraged when they do not do so. The law and their own safety demands that they be given a degree of respect, and the sleazy activities of Ronald and Megan Dible could not help but undermine that respect. Nor is this mere speculation. Almost as soon as Ronald Dible’s indecent public activities became widely known, officers in the department began suffering denigration from members of the public, and potential recruits questioned officers about the Dibles’ website.

Japan Executions

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The sun set on three murderers in the Land of the Rising Sun today, the AP reports. What kind of crime gets one executed in Japan? Pretty much the same as here: (1) murder of a prior rape victim in retaliation for reporting the crime; (2) rape and murder in two separate cases; and (3) murder of two people and attempted murder of a third.

The anti side likes to say that having the death penalty places the United States "in the same category" as dictatorial regimes such as China and Iran. That fatuous argument creates the categories for the purpose of the desired result by focusing on whether a country has the death penalty and ignoring far more important variables, including whether the justice system provides basic due process of law and whether it punishes criminally political dissent and exercise of religion. If we wanted to place countries into categories, we would begin with the most important variable, due process, and then create further subdivisions with lesser variables down the line.

As a country that provides due process and has the death penalty but only for murder (and theoretically major crimes against national security and possibly rape of children), the United States would be in the same category as Japan. I'm okay with that.

Europe criticizes the fact that the Japanese don't tell the inmate's family until after the execution. Yes, they should change that, but Europe will criticize them regardless.

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