March 2008 Archives

Julie Seamon has this article in the Georgetown Law Review on the impact of Crawford v. Washington on the practice of experts testifying on the basis of hearsay facts.


With respect to prosecution experts who testify in the form of opinions based upon testimonial hearsay statements, the answer is clear: such opinions should not be permitted. They fall squarely (so to speak) within the three corners of the expert testimonial triangle and sit at the convergence of the various lines of trust and distrust of juries, government, and experts. In other contexts, however, the answers are less clear. Where a government expert relies on evidence that is inadmissible, but not testimonial, Crawford and the Confrontation Clause do not apply and thus only two legs of the triangle are implicated. And with respect to a criminal defendant’s offer of expertise that rests on otherwise inadmissible hearsay, or in civil litigation, the expert testimonial triangle offers not concrete answers but rather directions for further exploration.

News Scan

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More on Medellin: An editorial in today's Washington Post reports its agreement with the Court's decision last week in Medellin v. Texas.

In addition, the Supreme Court denied certiorari in seven Texas capital cases it had been sitting on while it decided Medellin. Michael Graczyk has this story for AP.

SCOTUS Today

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Not much of interest in criminal law in the Supreme Court today. The Court decided an original jurisdiction case, New Jersey v. Delaware, involving a long-running dispute between those states regarding jurisdiction over the Delaware River. The only point of interest for us is that Justice Ginsburg wrote the opinion. See sudoku update, below.

In the orders list, the Court granted two civil First Amendment cases. No hot button criminal cases are in the denied list. Update: There is a criminal-related case that probably qualifies as "hot button." The Court turned down the Justice Department's certiorari petition regarding return of the materials seized in a search of Congressman William Jefferson's office. Robert Barnes reports here for the WaPo. DC Circuit opinion here. Cert. petition here. Curiously, the named party is not Congressman Jefferson but his office, Room 2113 in the Rayburn Building. I've heard of an office with prestige, but an office with standing is a new one to me.

Sudoku Update: The premise of SCOTUS sudoku is explained here. Since that previous post, we have had Medellin from the October sitting, written by Chief Justice Roberts, Hall Street from the November sitting, written by Justice Souter, and today's NJ v. Del from the December sitting, written by Justice Ginsburg. If the premise is correct, then United States v. Santos, the money laundering case, is being written by Justice Breyer or Justice Alito. Given the slowness of this opinion's emergence, I would bet on Breyer, who obviously spent a lot of time on his treatise dissent in Medellin. From November, United States v. Williams, the kiddie porn vagueness case, is being written by Justice Scalia or Justice Alito, probably not a good sign for the defendant. The biggie, Boumediene v. Bush, the Gitmo detainee case, is now down to Justice Kennedy or Justice Souter. Stay tuned.

More Cops, Less Crime?

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In conjunction with James Q. Wilson's op-ed about the recent Pew report on incarceration and crime rates, Bill Stuntz states about a week ago:

One of the key lessons of the Iraq surge is that putting more boots on violent ground tends to reduce the violence. The same lesson applies in American cities, but for the most part, the lesson hasn’t been learned. For reasons that mystify me, the same state and federal governments that shower money on urban school systems give nearly nothing to urban police forces. That gets it backward: the correlation between more money and better schools is weak at best; the correlation between more cops and less crime is very strong.

Do the time, lower the crime

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James Q. Wilson has this op-ed in the Sunday LA Times, responding to the Pew report about 1 in 100 in prison and the accompanying hullabaloo.


In the last 10 years, the effect of prison on crime rates has been studied by many scholars. The Pew report doesn't mention any of them. Among them is Steven Levitt, coauthor of "Freakonomics." He and others have shown that states that sent a higher fraction of convicts to prison had lower rates of crime, even after controlling for all of the other ways (poverty, urbanization and the proportion of young men in the population) that the states differed. A high risk of punishment reduces crime. Deterrence works.

But so does putting people in prison. The typical criminal commits from 12 to 16 crimes a year (not counting drug offenses). Locking him up spares society those crimes. Several scholars have separately estimated that the increase in the size of our prison population has driven down crime rates by 25%.

Final Cal. Commission Hearing

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Meanwhile, back on the Left Coast, the California Commission on the Fair Administration of Justice held its third and final hearing in Santa Clara. Howard Mintz of the San Jose Mercury-News was there and has this story.

This commission was set up by former [thank God for term limits] State Senate leader John Burton, who doesn't know the meaning of the word "fair." The initial composition was blatantly stacked, but has been improved somewhat. We will reserve judgment until seeing their report on the death penalty. As the story notes, "Thus far, the commission's recommendations have received a cool reception from Gov. Arnold Schwarzenegger, who has vetoed all the board's calls for reforms."

While a death penalty repeal proposal was defeated in the Maryland Legislature, a bill creating yet another death penalty study commission did pass. One might have thought that the same persons of sense who defeated the repeal would have insured that the commission was balanced. Apparently not, according to this editorial in the Annapolis Capital, titled "Death penalty study's results are preordained."

There's no suspense about what the 19-member commission set up by the legislation will come up with by Dec. 15. The governor will appoint the chairman and 11 of the members. Gov. Martin O'Malley opposes capital punishment, and there's no serious doubt which point of view a majority of the panel will wind up favoring.

Maybe it's better if the stacking is totally obvious. If everyone knows the fix is in from the beginning, the final propaganda piece will have little effect.

News Scan

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Spy drones for crime fighting may soon be used in Miami. Tom Brown from the Herald Tribune reports this new 14-pound drone is awaiting approval from the U. S. Federal Aviation Administration. The drones will be used as an extra pair of eyes in “tactical situations” says Detective Juan Villalba, a police department spokesman. Law enforcement across the country has shown a growing interest in the use of drones for domestic issues.

Prison Officials under Investigation. Sara Jane Olson, former Symbionese Army member, was released last week after being in prison for a 1975 murder during a bank robbery. She was freed on March 17, although she wasn't supposed to be released for another year. According to Michael Rothfeld from L.A. Times, there are five prison employees under investigation from the Central California Women's Facility in Chowchilla.

You Got Mail
ABC News reports that Florida residents can now sign up for e-mail alerts on the whereabouts of registered sexual offenders in their neighborhood. The alert system will notify interested residents within 24 to 48 hours of an address change. The Florida Department of Law Enforcement developed this program in compliance with the federal Adam Walsh Child Protection and Safety Act.

Kansas Supreme Court rules against ‘John Doe’ warrants

Wichita Eagle News reporter Ron Sylvester writes that seven rape cases from 1989 to 1994 will not be prosecuted against death-row inmate Doug Belt. The justices said, “The warrants in western Kansas were illegally vague.” The court focused on John Doe warrants based only on a DNA profile. In 2002, Wichita police arrested Belt for the rape and beheading of Lucille Gallegos. Belt’s DNA matched Gallegos’ murder and the other rape cases. Judges in McPherson, Saline, and Reno counties all dismissed the decade old rape cases, saying, “Too much time had expired between the crimes and Belt’s identification.”

The Supreme Penalty

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Erin Sheley has an interesting column in the Weekly Standard on the two death penalty cases before the Court this term. As she puts it:

In Baze, two Kentucky death row inmates--one convicted of murdering two police officers, the other of wounding a two-year-old boy and shooting his parents to death in a parking lot--challenge the three-chemical formula used by 35 states to perform lethal injection. While the defendants do not challenge the practice of lethal injection itself, they argue that the particular cocktail in use is "highly vulnerable to multiple errors, any one of which will result in the infliction of agonizing pain." They argue that any death penalty procedure creating "unnecessary risk" of suffering should be deemed cruel and unusual, and urge that "an execution procedure creates unnecessary risk where, taken as a whole, it presents a significant risk of causing severe pain that could be avoided through the use of a reasonably available alternative or safeguard."

Should this claim be accepted by the Court, the ramifications for states' administration of capital punishment would be dramatic. The Baze defendants do not assert that the risk of pain need be great, only that it be unnecessary because an alternative means of execution is available. As long as medical science continued to generate arguably less painful alternatives for the anti-death penalty movement to champion, any method in use could be deemed unconstitutional. Because a legal challenge to a procedure can result in a moratorium on its use (indeed, a three-month nationwide moratorium on lethal injection has been in effect since the Court agreed to hear Baze), the proposed standard could indefinitely prevent states from enforcing the sentences of their courts.

As Sheley alludes to, somehow this mix of science and capital punishment is toxic and inane. It's toxic to our legal and scientific institutions because the death penalty was never meant to be what it de facto has become: a medical procedure. It is inane because science can never inform the law what the permissible ceiling of acceptable pain meets constitutional muster.

Neurolaw Postdoc Opportunity

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The MacArthur Law and Neuroscience Project is seeking postdocs in the area of neurolaw:

POSTDOCTORAL RESEARCH POSITION
MACARTHUR LAW AND NEUROSCIENCE PROJECT
Area of Research: Law and Neuroscience

The Third Circuit has ordered a new sentencing hearing in the case of Mumia Abu-Jamal, who was convicted of killing Philadelphia Police Officer Daniel Faulkner in 1981. The lengthy 118 page opinion is here and the Fox news story here. Faulkner's memorial site can me found here.

Update:

Michael C. Moynihan over at Reason's blog Hit & Run says:

Remember Mumia Abu-Jamal, the cop-killing NPR contributor who rallied legions of campus radicals during the 1990s to protest his innocence? There was a time when every demonstration —anti-globalization, anti-war, anti-whatever—featured an organized division of "Free Mumia" types. In 2002, the Paris City Council conferred honorary citizen status on Jamal, and in 2006 the city named a street after him. Quite a step down from Rue Eisenhower and Place du Général Patton. But the Mumia cause soon faded—when everyone (but Parisian politicians) realized that he was guilty. In his book Dude, Where's My Country, Michael Moore admitted that "Mumia probably killed that guy."

Perhaps that's one reason why so many folks are skeptical of the various innocence projects which seem heavy on the rhetoric and loose with the facts.

danny.jpg

Despite all the wailing and gnashing of teeth over the Supreme Court's decision in Medellin v. Texas, the holding is not all that remarkable. It has long been established that not all treaties are self-executing, and the Court held that the ones at issue here are not, based on their own language. Where adherence to a treaty is contrary to a statute, the President cannot override the statute unilaterally, but legislation is required. Far from making America a rogue nation, placement of the responsibility for treaty compliance in the political branches and not the judiciary is quite common in the world.

So the ball is squarely in Congress's court. The United States, of course, should live up to its treaty commitments. What would a congressional implementation of International Court of Justice's decision in Avena look like? It should go as far as our treaty obligations require and not a nanometer further.

Panetti Follow Up

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On remand after the U.S. Supreme Court decision last June in Panetti v. Quarterman, No. 06-6407, the U.S. District Court for the Western District of Texas has found Scott Panetti to be competent to be executed. The decision, in two parts, is here and here. The bottom line:

Panetti was mentally ill when he committed his crime and continues to be mentally ill today. However, he has both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two. Therefore, if any mentally ill person is competent to be executed for his crimes, this record establishes it is Scott Panetti.

Coincidentally, this order comes on the same day the Supreme Court heard oral argument in Indiana v. Edwards on whether the Faretta rule really does require states to allow marginally competent defendants to represent themselves, the source of much controversy in Panetti's case, although not the issue before the Supreme Court in that case.

News Scan

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Big Sister on the Prowl. In today’s Washington Post Courtland Milloy reports on D.C. police chief, Cathy Lanier, who started her Safe Homes Initiative, primarily with women in mind. This new initiative would allow searching of homes if there were knowledge that a child or any other relative had a gun. Lanier is seeking permission from parents and grandparents. At one of the community meetings only two men were there, the rest were women, mostly grandmothers concerned with their safety. Lanier says the program is aimed at helping the city’s most violent neighborhoods where most residents are single mothers, elderly women and children in poverty.

DNA Database.
The Maryland Senate joined with the House of Delegates in approving the collection of DNA samples of suspects charged with violent crimes and burglary. The Annapolis Digest reports in the Washington Post that initially the bill was said to be unfair because it targeted minorities who were arrested for a crime but never charged. The bill which passed last week, now allows a sample to be kept only if a person is charged with a crime. The sample will be destroyed if the person is exonerated. Black lawmakers had a problem with the legislation, but believe it is crucial for fighting crime.

Edwards Argument: In today’s San Francisco Chronicle, Mark Sherman reports on oral argument the case of Indiana v. Edwards. At issue is whether a mentally ill person is competent to act as his own attorney. Also, check out CJLF press release regarding this case.

Wisconsin's crackdown on drunk drivers
WKBT TV News reports that Wisconsin really gets tough on those convicted of drunk driving seven or more times. Such offenders will face a $25,000 fine and five years in prison and if they reach their 10th conviction it’s the same $25,000 fine with seven and a half years in prison. The law will take effect April 2.

Well Shut My Mouth

A story by Lawrence Buser in the Commercial Appeal reports that Criminal Court Judge Lee Coffee held burglary and rape suspect Joshua Beadle in contempt for every word he uttered after being ordered to be silent. Beadle continued to talk himself into 700 days in jail, which works out to 10 days per word. Last January Beadle attempted to spit at the judge, but instead it hit the court clerk’s computer.

Update on the Medellin v. Texas Case
Dallas Morning News reporter Diane Jennings covers the Supreme Court's ruling in yesterday's Medellin decision.

Nebraska's one-house Legislature rejected the bill to repeal the death penalty 28-20. AP story here. However, the Legislature has not provided a statutory replacement for the electric chair thrown out by the Nebraska Supreme Court, as discussed here.

Confrontation and Blumenthal

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The Confrontation Clause has bestowed a freebie on an unlikely beneficiary. Sidney Blumenthal, former aide to President Clinton and present adviser to presidential candidate Clinton was charged in New Hampshire with aggravated drunken driving and doing 70 in a 30. Lucky for him, the police officer has been shipped off to Iraq, forcing the prosecution to offer a deal of only a $750 fine and 16 months license suspension. AP story here. Hat tip: James Taranto.

Medellin Decided

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The Supreme Court decided the case of Medellin v. Texas, 5-1-3. The case involves a decision of the International Court of Justice that the United States must reconsider the claims of about 50 Mexican nationals that their rights under the Vienna Convention were violated by the failure of police to inform them upon arrest that they could have the Mexican Consulate notified. In many of the cases, including Medellin, state courts had held that the claim was defaulted by failure to raise it in time. The ICJ held, in essence, that the default rule could not be applied at least to defaults occurring before the consulate had notice of the case. Two years ago, in Sanchez-Llamas v. Oregon, the U.S. Supreme Court disagreed and held that the treaty does not trump state procedural default rules. However, that case did not involve any of the persons whose cases were actually before the ICJ.

Two arguments were made to distinguish the Medellin case from the earlier case. The first one was that the treaty obligations of the United States to submit Vienna Convention disputes to the ICJ and to comply with the ICJ decisions have direct legal force in domestic courts. The second was that a memorandum issued by the President to the effect that state courts would implement the ICJ decision was a proper exercise of the President's authority in foreign affairs.

Today's decision by Chief Justice Roberts rejected both arguments. The treaties are not self-executing, based on an analysis of their language. Although the United States has an obligation under international law, that obligation only becomes a domestic law binding on domestic courts if Congress enacts legislation to implement it. Second, although the President has broad powers in foreign affairs, he cannot transform a non-self-executing treaty into a self-executing one.

On page 25 of the slip opinion, the Court notes, "Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes." We can expect the next stage of this drama to be the introduction of bills to implement the ICJ decision.

News Scan

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Elderly Killers: Victoria Kim from the L.A. Times reports on two elderly women, Helen Golay, 77 and Olga Rutterschimdt, 75, who are on trial for staging hit-and-runs to collect life insurance. The two victims, Kenneth McDavid and Paul Vados, were both homeless but were worth about $2.8 million in life insurance. The jury got to see the alleged murder weapon, a 1999 Mercury Sable station wagon, up close and personal. John Kolter, a CHP accident investigation specialist pointed out the side of the floor pan had been pushed which implies that the vehicle had ran over something.

Jail Sentence for YouTube video.
Robert Echeverria will also receive three years of misdemeanor probation and is banned from the Rialto, CA Del Taco reports Steve Harvey from the L.A. Times. Echeverria’s clip shows him identifying himself as a CEO and claiming that he’d called Del Taco corporate offices. At the end of the video, the restaurant gives him and his two companions a new order. The police had no problem tracking him down: he gave his number out in the video. “It’s Taco Bell from now on,” says Echeverria.

Anti-gang group helps reach over 100,000 people in New York, Milwaukee, San Francisco and Vermont. AP writer, Ula Ilnytzky, reports that the history of the group started with Bob De Sena, who was once a gang member. His group, Council For Unity, aims at giving second chances to kids from broken homes and crime-ridden neighborhoods. One of those benefiting from the program is DaJuan Hawkins, 17, who once went to jail for assault is now heading for college and writing poetry.

Search and Seizure The Supreme Court will review the case of Pearson v. Callahan, 07-751 to decide whether police may enter a home without a search warrant when an informant is already inside and if the officers that conducted the search can be sued. More to come.

North Carolina new law on how to conduct lineups
A story by Nick Hiltunen in the Goldsboro News Argus reports that police officers must follow new procedures when conducting a lineup of suspects. The new law requires an ‘independent administrator’ with no ties to the case to conduct the lineup. Also, officers have to show one photo at a time, not in a group. In addition, law enforcement is working with a software company that will allow the witness to self-conduct the lineup by computer. Proponents say, “It’s an attempt to make eyewitness identification more scientific.” The problem is the cost of the software, which is $10,000.

New law bans sex offenders from social networks

On WISH TV News, the state of Indiana has passed a law that bans sex offenders from social networks that are popular with children like MySpace and Facebook. Reporter Jennifer McGilvray says, “Indiana is the first state to adopt this type of law.”

News Scan

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Gruesome pictures bring jury to tears as they see the room where 7-year-old Nixzmary Brown was bound to a chair, starved and forced to urinate in a litter box. Reported by The New York Times yesterday, Cesar Rodriguez was convicted of manslaughter for killing his stepdaughter. The jury wanted to convict him for murder but felt the prosecution “didn’t really give [them] enough.” Brown’s mother also faces charges in a separate trial. As a result of this case, five bills have been introduced in the Legislature that would increase punishment for child abuse crimes or make it easier for police intervention.

Race and Homicide
In Los Angeles, police officials report that the 35% increase in homicide rates was not due to race. Joel Rubin from the L.A Times reports Police Chief William J. Bratton is counting on a report to refute the myths about racial tension between Latinos and blacks. This is going to be hard to explain considering the recent homicides where Latino gang members are accused of killing blacks. In one instance, 17-year-old football star Jamiel Shaw Jr. was shot and killed near his home after being asked what gang he was associated with.

A new law for Sex Offenders in San Diego
California voters in 2006 approved ‘Jessica’s Law’ to prohibit sex offenders from living within 2,000 feet of schools and playgrounds. Fox 6 News reports the San Diego City Council unanimously passed a bill last month that will prohibit registered sex offenders from coming within 300 feet of places frequented by children.

Sex Offenders challenging Adam’s Law
In Ohio, Brad Dicken reports that offenders are challenging the constitutionality of Adam’s Law. The law is called Adam’s Law after Adam Walsh, who was abducted and killed in 1981 at the age of 6 years old in Florida. According to Dicken, under the law every state must impose uniform sex offender classifications by 2009 or lose federal funds. When the law took effect in Ohio, the state had to reclassify every sex offender in the state to meet the new guidelines.

With a cherry on top
On FOX News, three Mississippi legislators proposed a bill to prohibit restaurants from serving food to obese customers. The chairman of the House Public Health and Human Services Committee says, “It is too oppressive for the government to require a restaurant owner to police another human being from their own indiscretions.” The reason for the bill was to confront the state ranking for having the highest obesity rate in the United States.

Mississippi crack down on illegal workers
In yesterday's Clarion-Ledger, reporter Leah Rupp writes that Gov. Barbour has signed Senate Bill 2988. The law will take effect in July and require large companies to use the eVerify system to determine if a worker is a citizen. Penalties include cancellation of state or public contracts, prohibition from bidding from any contracts for up to three years, and a sentence of up to five years in prison or a fine up to $10,000. The Mississippi Immigrants Rights Alliance estimates there are about 200,000 undocumented immigrants living in Mississippi. Rupp says, “Immigrants rights' advocates fear that the new law could lead to increased racial profiling and hamper economic development.

SCOTUS Sudoku Update

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With yesterday's decision in Washington State Grange and today's decision in Snyder, we return once again to our SCOTUS sudoku puzzle, trying to figure out who is writing the remaining cases. The premise of SCOTUS sudoku is that no justice will be assigned a second opinion from a sitting while any other justice has not written any. This is generally true, as illustrated on page 18 of SCOTUSblog's final StatPack from last term. From the inferred identity of the author, we then try to get an inkling of the result. All of this is rank speculation, but it's fun.

Batson, Again

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Today the U.S. Supreme Court decided the case of Snyder v. Louisiana, No. 06-10119. There were 5 black veniremembers in the 36 who survived the for-cause stage of jury selection, and the prosecution peremptorily challenged all 5. That looks bad, even when it's justified, and the prosecutor needs to have good reasons ready. In this case, the prosecutor's reasons for challenging one venireman were that he looked nervous and that he was concerned about missing class. The Supreme Court held, 7-2, that was not sufficient, despite the trial judge's acceptance of the explanation.

Note that this case arose on direct review, so the habeas deference standard of 28 U.S.C. § 2254(d) is not involved. However, this case is now "clearly established" Supreme Court precedent, and it will surely be cited in most Batson cases from this point onward. Note at page 6 of the slip opinion that the Court is unwilling to presume that the trial judge relied on his own observation of the venireman's demeanor without any statement from the judge to that effect. Once again, we see the importance of making the record.

What's in a Name?

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As mentioned previously, the idea that pedophilia is a mental illness on par with schizophrenia or other strongly biologically caused illnesses of the mind is weak. Yet that hasn't stopped many from suggesting otherwise. And when it comes to the civil commitment of sex offenders, the Supreme Court has concluded that a link between a mental abnormality and volitional control is necessary to justify commitment.


To establish whether someone is a sexual predator, courts almost always rely on psychological experts to ascertain whether the criteria are met. Even if states retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment, the experts must utilize behavioral science to arrive at their conclusions. After all, that's why the courts entertain behavioral experts in these matters instead of, say, automotive experts. Like most areas of science, behavioral science experts use tests to help them formulate their opinions; and in the area of sex offender assessments, the tests used vary widely and are applied in a variety of clinical and legal situations. But the sheer ease in which these same tests can confirm a mental abnormality in one case and suggest a high risk for recidivism among someone without mental illness in another says a lot about the strange marriage between behavioral science and criminal law.

The Gun Case

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The big news today in the press and the blogs is the argument in the D.C. gun case, District of Columbia v. Heller. The transcript is available on the Supreme Court website, and there is audio at CSPAN.

CJLF did not file a brief in Heller. We apply our limited resources where they are most needed. Everybody and his dog filed in Heller, and one more brief on the massive heap would be unlikely to make any difference. We have occasionally filed briefs despite a large number of amici where we had some special expertise to add, such as a historical perspective on habeas corpus in the Guantanamo detainee cases, but that wasn't the case in Heller.

Japanese media are abuzz with the case of Kazuyoshi Miura, a Japanese businessman accused of killing his wife and then claiming they had been mugged during a visit to Los Angeles in 1981. But the Los Angeles District Attorney has a problem. Miura was previously prosecuted for this crime in Japan. The LA Times website has stories on this case all the way back, including this recent one. Miura was originally convicted, but the conviction was reversed and an acquittal entered by a higher court.

Miura is presently in jail in Saipan in the U.S. Commonwealth of the Northern Mariana Islands awaiting extradition to L.A. He is represented by Mark Geragos, who has filed this motion to quash and points and authorities.

Facial Challenges

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The Supreme Court issued one opinion today in the political case of Washington State Grange v. Washington State Republican Party, No. 06-713. For criminal law practitioners, the case is primarily of interest for the Court's continuing hostility to "facial" challenges to statutes. In United States v. Salerno, 481 U.S. 739, 745 (1987), the Court set the hurdle for such a challenge almost impossibly high: "that no set of circumstances exists under which the Act would be valid.” The Court has waffled since, but facial challenges remain much more difficult than they were in earlier times, and today the Court rejected a facial challenge to Washington's "blanket" primary, telling the plaintiffs to wait until the law is actually applied and then challenge it as applied.

For Court-watchers, the lineup is interesting. Justice Scalia, the author of Salerno, dissents, claiming that the case meets that standard. Justice Thomas wrote the opinion from which Justice Scalia dissents, further refuting the nonsense that he just follows Scalia. Justice Kennedy, the "swing vote" who was always in the majority last term, is in the dissent again.

Still waiting on Medellin and Boumediene. Maybe tomorrow.

News Scan

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DNA database: According to Gary Pugh, who is soon to be the chief spokesperson for the Association of Chief Police Officers’ (ACPO), England does not collect enough DNA samples from the “right people” and could benefit from targeting samples from younger people to prevent future crimes. As reported in this story from The Press Association, the ACPO says that the statement is entirely Pugh’s opinion and they do not support his position. The Liberal Democrats condemned this idea of adding unsuspected young people to a DNA database. Police in England and Wales can take DNA from anyone arrested on a suspicion of a crime and keep their DNA on file for life.

New crack cocaine guidelines have caused many inmates to file for shorter sentences. A story in the Houston Chronicle and AP, reports that this action follows the new guidelines adopted last December by the U.S. Sentencing Commission to reduce the disparity between sentences for possession of crack cocaine vs. powder cocaine. The Assistant U.S. Attorney in Tyler, Texas said 80 inmates have already been released. He expects another 80 to be released within the next two weeks. Around the country, approximately 800 inmates have been released from the 20,000 who are eligible for a sentence reduction under the new guidelines.

High School dropout wins his own murder case
: Washington Post reporter Ruben Castaneda writes that defendant Harold Stewart has received a not guilty verdict on charges of first-degree and second-degree murder. Steward, a high school dropout represented himself during the three day trial. Circuit Court Judge Vincent Femia, a judge for Prince George County, said, “It would make you wonder about the quality of the case, if a guy who knew nothing about the law could kick your [expletive]."

Victims' fund assists felons reports Josh Mitchell in the Baltimore Sun. "Nearly $1.8 million from the [Maryland Criminal Injuries Compensation Fund] has been awarded to drug dealers, violent offenders and other criminals since 2003, according to a Sun analysis of thousands of records obtained through the Maryland Public Information Act."

Guatemala death penalty vetoed: "Guatemalan President Alvaro Colom on Friday vetoed a bill that would have reinstated capital punishment and given the president the power to commute death penalty sentences," reports Juan Carlos Llorca for AP. "If (the death penalty) were a disincentive, we would reinstate it," Colom said. "But we have studied cases in various states in the United States, and it doesn't dissuade" crime. Evidently the President is unaware that the heavy preponderance of recent studies in the United States conclude that the death penalty does deter murder when actually enforced. The reinstatement passed the Congress by a majority sufficient to override the veto, so this story may not be over.

Monday Orders

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The Monday orders list is here. Among the cases listed in Friday's conference post, the Court granted certiorari in Melendez-Diaz, the lab report confrontation case, Sarausad on state-law issues and habeas, and Ice on Apprendi and consecutive sentencing. The Court denied certiorari in Bentley on confrontation and a child's abuse report. Also granted is a pro se petition in a Texas habeas case, Jimenez v. Quarterman, No. 07-6984.

Anesthesia Monitor Questioned

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Anesthesia awareness is the phenomenon of patients waking up during surgery. This issue has been involved in the challenges to lethal injection and the pending Supreme Court case of Baze v. Rees. One proposed solution to the problem is a device that measures "bispectral index" or BIS. The monitor gives a simple digital reading that is supposed to assure that the patient (or murderer) is actually unconscious. However, the effectiveness of this device is challenged in research published in yesterday's issue of the New England Journal of Medicine. AP story here; Washington University School of Medicine press release here; NEJM abstract and citation here. (Full text of the article requires a subscription or $10.)

Confrontation and Depositions

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The Florida Supreme Court held yesterday that a discovery deposition is insufficient to satisfy the requirement of Crawford v. Washington, 541 U.S. 36 (2004) that the defendant have an opportunity to cross-examine before an out-of-court "testimonial" statement can be introduced in evidence. The opinion in State v. Contreras, No. SC05-1767, is here.

News Scan

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Love hurts. A Pennsylvania doctor was sentenced to life in prison for killing his best friend thirty years ago, so he could marry the friend's wife. Michael Rubinkam, from the AP staff writes that Dr. Stephen Scher was convicted in Susquehanna County for the first-degree murder of Martine Dillon. Initially, Scher lied about Dillon’s death saying that Dillon had tripped and accidentally shot himself while chasing a porcupine. Prosecutor Patrick Blessington says Scher has a God complex.

Missouri: New Assault Law
Southeast Missourian reporter Bridget DiCosmo writes that offender Cortez Bell, 30, is the first to be charged under Missouri’s new assault law. Before the law was passed an assault against a police officer was considered a misdemeanor; under the new law it is a felony. On Wednesday, Bell was sentenced to four years for assaulting a highway patrol officer. The sentence will run concurrently with the two four-year sentences for resisting arrest and possession of a controlled substance. Prosecutor Attorney Morley Swingle, says, “The law was passed to give officers on patrol additional protection.”

St. Louis: new law for child sex offenders
According to this AP story, St. Louis passed a law last week that will not allow sex offenders to start a business that caters to children. The city says that, “The law is aimed at businesses that specifically market to children.”

Wyoming: New self-defense law
Associated Press reports, that Gov. Dave Freudenthal signed the ‘castle doctrine’ bill into law yesterday, which will go into effect July 1st. The story says, “The term ‘castle doctrine’ refers to the notion that a person’s home is his castle, and he is entitled to defend it without retreating from criminal attack.” The new law will allow homeowners to kill intruders who enter their home illegally and not be sued. Supporters of this bill want to inform homeowners of their self-defense rights. Also, a National Rifle Association spokesman "said last month that 20 states had passed such laws."

Washington Strengthens ‘Three Strikes Law’

KATU news reported that the ‘The Chelsea Harrison Act’ (Senate Bill 6184) passed today. This law amends Washington’s ‘Three Strikes Law’ so that any felony conviction with a sexual motive commited in another state will be considered a strike. According to the story, Chelsea Harrison’s killer, Roy Russell, was convicted and sentenced to life in prison, but got out on appeal because one of his ‘strikes’ was committed in Arizona. Russell then murdered Miss Harrison.

New law for Illinois teen drivers
Daily Herald reporter Robert McCoppin writes that a new law bans 16- and 17-year-olds from driving after 10pm Sunday through Thursday, and after 11pm on Fridays and Saturdays. The law exempts new drivers who are driving home from work, school or religious activities. Experts say that the law will save lives among new drivers and predict a decrease in crash deaths among teenagers by 38 percent. As a result of this law, the story says, Illinois now has one of the toughest graduated driver’s license laws in the country. 16-year-old Ryan Domzalski complains about the new law, saying, “My social life has gone down the drain.”

2nd Amendment: An article by Nelson Lund from The Heritage Foundation discusses the Supreme Court case of DC v. Heller. Oral argument will be held on March 18.

SCOTUS Conference

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The U.S. Supreme Court held a private conference today. The same-day orders list has only routine orders. The SG gets into oral argument in Indiana v. Edwards, as always. The full orders list with grants and denials of certiorari will be released Monday. Criminal cases on SCOTUSblog's petition to watch list include

Melendez-Diaz v. Massachusetts, No. 07-591, on lab reports as "testimonial" under Crawford.

Iowa v. Bentley, No. 07-886, on a child's report of abuse to a hospital counselor as "testimonial" under Crawford.

Waddington v. Sarausad, No. 07-772, on relitigating questions of state law in federal habeas.

Oregon v. Ice, No. 07-901, on Apprendi/Blakely and consecutive sentencing.

Vote Swapping

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Activities which are legal when freely given but criminal when purchased have been much in the news in last couple of days. Another of these is voting. In 2000, there was a scheme set up where people who really wanted to vote for Ralph Nader but lived in a state where it might matter could swap their votes with Gore voters in essentially uncontested states. Bill Jones, who was then California Secretary of State, threatened criminal prosecution. In August, a Ninth Circuit panel held that Jones had violated the First Amendment rights of the swappers and their broker. Today, the court denied rehearing en banc, Judges Kleinfeld, O'Scannlain, and Bea dissenting.

News Scan

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Gun Battle at the White House? Robert Novak has this column in the WashPost on the remarkable event of the Solicitor General filing a brief for the United States in the D.C. gun case and then the Vice President joining another brief taking a different view. Marty Lederman has these comments at SCOTUSblog.

Leniency in youth gun crime. As reported by Lorne Gunter from the Edmonton Journal, Statistic Canada produced a study on guns and crime from 1996-2006. They found gun crime among youth to stand out the most, specifically with the use of handguns. Canada has a gun registry. However, Gunter points out its ineffective due to the Young Offenders Act and Youth Criminal Justice Act, which directs prosecutors to take 'extrajudicial measures' when possible. The data also found that almost 50% more juveniles use a gun during the commission of a crime than adults.

Anti-Gang law going unused.
D.C. Police Chief Cathy Lanier is frustrated at the fact the anti-gang law has not been put to use since enacted in 2006. Allison Klein, Washington Post Staff writer, reports the purpose of the law was to generate tougher penalties in cases involving gang activity; defendants would face up to five more years in prison if the crime is gang related. D.C.’s attorney generals office has brought charges under the law 12 times, yet they have not fully enforced it.

More Cops for LA
According to L.A. Times reporters Duke Helfand and Joel Rubin, Mayor Antonio Villaraigosa is promising to continue increases in the size of the Los Angeles Police Department despite the city’s budget deficit of at least $400 million in the upcoming fiscal year. Villaraigosa noted that crime has decreased to their lowest levels in more than half a century, which is why “[he] will do everything in [his] power to protect the buildup of the LAPD…”

Long Beach: New rules for sex offenders

A story by Paul Eakins in the Press Telegram reports that City Council passed a new residency law Tuesday for sex offenders. Under the new law, state parole officers will not be allowed to ‘group’ registered sex offenders in single structures like apartments, duplex buildings, or single-family dwellings, unless they are related by blood, marriage, or adoption. Next week, the City Council will decide when this law will take effect. When it does, offenders will have six months to relocate. Marge Landress, a Long Beach apartment building owner, said, “If you can scatter them around, I think they will feel better. I know we would.”

Pull them up or pay up
As reported by WFTV News, Riviera Beach, Florida has adopted an ordinance making it a crime to sport low hanging pants in public. Those cited will face a $150 fine. Repeat offenders will be sent to jail for 60 days. While the measure is targeted to a fashion popular with youth engaged in gangs and hip hop, depending upon how it is enforced the law could impact some adults in the plumbing and appliance repair industries.

That's the title of an intriguing essay by David Perks, who astutely observes:

Even a cursory glance at reviews of the field shows that neuroscience poses more questions than it answers. The Economist‘s review in 2006, although enthusiastic about the potential of neuroscience, is blunt about the long way the science has to go to make good on its claims. Current theories about the biological basis of consciousness certainly give pause for thought. According to Benjamin Libet at the University of California, San Francisco, the process within the brain which leads a subject to carry out a simple act occurs 0.3 seconds before the mind is conscious of it. In other words, we observe what our brain has already decided to do rather than consciously deciding upon a course of action. The far reaching implication is that ‘free will’ is simply an illusion, a trick our brain plays on us. As the Economist puts it, although Libet’s work is ‘almost laughably simple, it pokes a stick in a very deep pond’ (Economist 2006).

A study on Maryland death penalty costs released last week has serious flaws and paints a misleading picture. There are three major deficiencies apparent on the face of the Urban Institute’s report:

First, the study fails to consider the savings that result when a case is plea-bargained to life in prison, a bargain few murderers would agree to in the absence of the death penalty.

Second, the study intentionally ignores the savings that result from the deterrent effect of the death penalty, asserting without justification that one article criticizing the numerous deterrence studies is “conclusive.”

Third, the study assumes that the long delays and high reversal rates that have characterized Maryland’s death penalty in the past will continue indefinitely, ignoring the potential savings from reform of the review process.

It has been quite a while since crime and law enforcement were considered issues important enough to merit the attention of Presidential candidates. Even illegal drug use, which remains a serious national problem, has not been the subject of a question to candidates in the almost weekly debates during this political season. Terrorism, national security, the economy, immigration, health care, and education are the issues the candidates believe they must take positions on, but crime, other than how it relates to illegal immigration or terrorism, does not seem to be on anyone’s mind, other than the public’s.

Bill Stuntz over at Less Than the Least has an intriguing post about the relationship between culture, law, and punishment. He makes a number of good and interesting points about how culture shapes the law. He judiciously states:


A good deal of social science research suggests that people obey the law, when they do so, because the legal system seems fair and legitimate.


This is indeed true, but the implications are quite far-reaching and often at odds with the orthodoxy of what is considered the proper aim of crime, punishment, and responsibility.


The law in many respects is an emotional process. For all of the stoic statutes and dry regulations, how people relate to the law is governed mostly by their perceptions of justice and fairness. For the criminal code, legitimacy is strongest when the law is proportional to the behavior regulated. If we think about it, the common perception is that the criminal law is about regulating and punishing serious matters of the morally accepted code that we all share in common. Thus, the malice in se crimes such as murder and forcible rape are universally viewed as morally repugnant and deserving of the strongest punishments the law can dish out while crimes without malice suggest less punishment.

News Scan

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Maryland Death Penalty Repeal Fails: "Efforts to repeal the death penalty in Maryland were dealt an apparently fatal blow yesterday when a key state Senate committee defeated the measure, leaving a court-ordered moratorium on state executions in place and some legislators weighing a study of the issue," Jennifer Skalka reports in the Baltimore Sun.

The ‘Ol Wait and Bait. In Saturday’s Washington Post, Allison Klein reports that D.C. police have been using items such as laptops and cell phones in hopes of catching a thief who had been breaking into cars on Capitol Hill and surrounding areas. Police have been using bait cars to respond to the numerous amounts of break-ins this year, which has increased 26% from last year. Michael Timberlake happened to be one of the fish caught using this technique. Police are trying to determine whether Timberlake is responsible for other break-ins targeting cars with ipods, cameras and computers.

San Diego Cracking down on Gang Crime. Union Tribune’s staff writer, Kristina Davis, reports law enforcement agencies across North County are teaming up to stop gang crimes, primarily, robberies, assaults and homicides that cross city lines. In the most recent operation Friday night, police searched the streets of San Marcos for gang members. They made ten felony arrests and six misdemeanors arrests. Two of the men arrested, one with a semiautomatic handgun, were near the campus of Cal State San Marcos.

Private Prisons in Cal.
Yesterday in the Sacramento Bee, an article written by Andy Furillo reported that Gov. Schwarzenegger's administration wants the Legislature to approve a new deal with GEO Group Inc. for a five-year contract. The private-prison firm will receive $67 million dollars. If passed, the proposal will give the company a 50 percent increase for officers’ minimum wage from $10 to $14.70. Private-prisons only cost $60 a day per inmate compared to the cost of state prisons, which is $118 per inmate. GEO Western Region Vice President Ed Brown says the contract will also increase funds for food, health care, and more inmate rehabilitation programs.

New Law: Texas expands inmates access to phones
A story by Diane Jennings in the Dallas Morning News reports that inmates are only allowed five minutes on the phone with their loved ones every three months. Emmett Solomon, executive director of Restorative Justice Ministries Network, says, “The critical factor about whether an inmate succeeds after prison is their connection with their family.” The new technology will have a biometric identifier (voice recognition) to only landline phones that are on an approved list. This technology eases the concerns for victim advocates. The new law will allow 120 minutes a month per inmate. Michelle Lyons of TDCJ, says, “Phone privileges offers an incentive to offenders to behave.”

Colorado law does not require evidence to be saved

Los Angeles Times reporter DeeDee Correll writes about a bill that will make law enforcement save DNA evidence in major crimes for the length of the inmate’s sentence. The bill came about because the Colorado state senator heard of the Clarence Moses-El case. He was serving a 48-year sentence for a 1987 rape, when a detective destroyed the rape kit and the victim’s clothes, even after a judge ordered it to be preserved, before DNA testing could be conducted. If this law passes, it will allow a new trial for prisoners whose evidence was destroyed prior to their sentence ending, despite judge orders.

An article in today's San Francisco Chronicle addresses San Francisco's inability to collect fines, victim's restitution and court-imposed fees from convicted criminals. The article can be found here.

In his article, Jaxon Van Derbeken points out that only recently has California forced San Francisco to attempt to collect the fees that convicts owe. California recently forced San Francisco courts to act, because the Probation Department (which had its hands full monitoring 7,500 felony and misdemeanor offenders) had failed to establish a system of collecting the $9.6 million in unpaid victim's restitution fees and fines from criminals who had been ordered by courts to pay.

The article notes that "court culture" largely determines the importance placed on collecting victims' restitution. In the counties where judges place value in not forcing victims to pay more for the crimes committed against them (by shouldering the burden of hospital expenses, lost salaries, and other crime related costs), there has not been a problem implementing a system that retrieves court ordered fees. However, in San Francisco, where those who do not pay their fines are offered an opportunity to work off the fee through community service, and then never monitored to see if those criminals have completed their court ordered community service, have amassed $3.3 million in victim's expenses, and collected "just $2,278 in court-ordered restitution and $111,635 in restitution-related fines."

Here's hoping San Francisco's system starts placing higher priority on the restitution rights of the victims.

Crime and Prison

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Crime & Prison Graph

Last week the Pew Center on the States produced a report highlighting the statistic that the prison and jail population has topped 1% of the total population. The press release is here and the full report is here. In reaction, Investors Business Daily had this editorial noting that prison increases coincided with a dramatic drop in crime. Paul Cassell had this post at the Volokh Conspiracy with a similar graph making largely the same point.

The graph above shows the rate of violent crime (FBI violent index crimes per 100,000 population, in red on the left scale) and the number of prisoners in each year divided by the number of violent crimes in the same year (in blue on the right scale).

News Scan

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ipods to blame for crime? News reporter Scott Gutierrez, from seatlepi.com, sat in on a panel discussion Tuesday sponsored by Urban Institute. Crime researchers are exploring the correlation between ipods and the increase in crime over the past few years. In New York City, ipod and cell phone thefts raised felonies committed on subways. In a similar trend last year, Gutierrez reported teens were responsible for approximately 20 ipod muggings in West Seattle.

DP Commission in Maryland?. Still struggling with legislation to repeal the death penalty, Governor Martin O’Malley is voicing support for an alternative to the delay. Washington Post’s staff writer John Wagner reports that Senator Jamie B. Raskin has a bill to establish a high-profile commission to study the issue and provide a “candid assessment” of the merits of the death penalty. Sound familiar? Since the state’s highest court has ruled that Maryland's lethal injection protocol was not been properly adopted, O’Malley has been dragging his feet on the new regulations. Senator Alex X. Mooney who was last years swing vote on the Judicial Proceedings Committee called it commission another delaying tactic. “It’s been studied a lot, so I don’t know if it’s that crucial."

UC Student faces Explosive Charges. Molly Hennessy- Fiske reports in the L.A. Times that Mark Christopher Woods, 19, was arrested Wednesday night on suspicion of possessing materials to make explosives. Investigators reported finding partially assembled pipe bombs in his dorm room. Students of the Tercero Residence Halls were evacuated and stayed overnight in the dining hall. They were allowed back into the dorm on Thursday and school remained in session. Woods was scheduled to be transferred to Yolo County Jail on Thursday.

Tennessee: New DUI Laws
WDEF News 12 reporter Nordia Epps writes that new laws will give out harsher penalties for DUI offenders who kill or hurt children who are passengers in their car and create a registry for repeat offenders. In addition, the state of Tennessee will reduce the legal alcohol level for repeat offenders and those pulled over on suspicion of driving drunk will lose their license if they refuse to submit to a test.

Virginia Veto

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Virginia Governor Tim Kaine has once again vetoed legislation to repeal that state's triggerman rule, reports Mason Adams for the Roanoke Times. This statute automatically exempts from the death penalty a murderer who uses someone else to actually commit the killing, with a few exceptions. The state was able to fit John Allen Muhammad, the D.C. sniper, into one of the exceptions, but it was a tight fit. Maryland had no applicable exception, so this serial killer escaped the only fitting punishment for the six murders he was convicted of in that state.

A person who uses another to commit a murder as Muhammad did is more culpable, not less, than a solo actor. In cases where the nontriggerman is merely an accomplice rather than the driving force, the jury can take that into consideration as a mitigating circumstance. A bright-line exclusion of nontriggermen is irrational.

Gov. Kaine's only stated reason for his action is an opposition to "expansion of the death penalty." But Virginia does have the death penalty whether he likes it or not, and making the penalty fit the heinousness of the crime should have priority over the expansion/contraction issue.

News Scan

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College Background Checks. Byron Ackerman uticaod.com reports that Herkimer County Community College officials are backing legislation that would allow peace officers to conduct background checks on students involved in a possible crime. The bill is also being supported by State University of New York. Recently, there have been assaults and stabbings on campus which has students concerned. HCCC President Ronald Williams believes the recent events could have been prevented if peace officers had the ability to conduct background checks. However, there are some concerns with violating a student’s privacy.

A First Amendment issue raised by a student against her school administrators is reported by the AP in today’s Washington Post. Avery Doninger claims that officials at Lewis S. Mills High School violated her free speech rights when they banned her from serving on the student council because of a blog journal entry written on her home computer. A federal lower court supported the school in Doninger’s punishment because the blog addressed school issues and other students could read it. The Supreme Court made a ruling that officials could bar vulgar and lewd speech if it undermined the school’s mission. However, the ruling was based on cases that involved events that happened at school or during a school activity.

Connecticut: Lawmakers want to ban locking up juveniles
Hartford Courant reporter Colin Poitras writes that U.S Rep. Chris Murphy is introducing the “Juvenile Justice Improvement Act” to Congress. If the act is passed, it would ban states from incarcerating juveniles who repeatedly run away and prevent juveniles that are charged with murder or rape from being locked up in adult jails . Instead, states would be required to put juveniles in programs that are known to work. Murphy says that since 1993, there has been an increase of 150 percent of teens that are incarcerated with adults. Also, Rep. Toni Walker, who supports juvenile justice reforms, said “Prosecuting youth in adult criminal courts increases the likelihood they will re-offend.”

Arizona allows guns on college campuses

According to this New York Times report by Randal Archibold, State Senator Karen Johnson sponsored a bill that passed with a 4 to 3 vote last week. The bill will allow people in colleges to carry a firearm if they have a concealed weapon permit. The Brady Campaign to Prevent Gun Violence, says, “15 other states are considering similar legislation for students and faculty to carry guns on campus.” Also, Jason Lewis, a student at University of Arizona, said, “It would at least let me protect myself and be a deterrent for criminals.”

Blog Note

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The Southern Appeal blog has been granted rehearing, though not en banc. Welcome back. (Hat tip: Orin Kerr at VC.)

MMPI in Today's WSJ

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The front page of today's Wall Street Journal (subscription required) has a lengthy article about the most widely used personality test, the Minnesota Multiphasic Personality Inventory (MMPI). The focus of the story is about a specialty sub-scale developed by Dr. Paul Lees-Haley called the "fake-bad" scale which is used to detect malingering. While the focus of the WSJ piece is on the scale's increased use in personal injury lawsuits, it is also used in criminal matters as well.

It's safe to assume that much will be said by the professional mental health field in the coming days about this story. Among those comments will be the maxim that the MMPI is "just one piece of data" used in determining psychological states among litigants and defendants. This is surely true, but the reliance (perhaps even over-reliance) by some forensic psychologists on personality measures as lie detectors often gives these tests more weight than they deserve.

Update: Ted Frank at Point of Law has some brief thoughts as well. While I agree with Ted that there is indeed some peer review research behind the scale, there are good reasons to be wary of bubble sheet forms that are proffered as measures of deception. It's not so much that these measures can't measure deception, rather they can be easily abused by experts who use them irresponsibly.

Second Amendment

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The Supreme Court will hear argument on Tuesday, March 18, in Heller v. District of Columbia to review a lower court holding announcing that the DC law banning firearms was unconstitutional. In this article from the Wall Street Journal, Harvard Law Professor Laurence Tribe urges judicial restraint.

How Do We Define Addiction?

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The current issue of the American Journal of Psychiatry has an editorial arguing for the inclusion of "internet addiction" in the forthcoming 5th edition of the Diagnostic and Statistical Manual for Mental Disorders. Jerald J. Block, M.D. states:

Internet addiction appears to be a common disorder that merits inclusion in DSM-V. Conceptually, the diagnosis is a compulsive-impulsive spectrum disorder that involves online and/or offline computer usage and consists of at least three subtypes: excessive gaming, sexual preoccupations, and e-mail/text messaging. All of the variants share the following four components: 1) excessive use, often associated with a loss of sense of time or a neglect of basic drives, 2) withdrawal, including feelings of anger, tension, and/or depression when the computer is inaccessible, 3) tolerance, including the need for better computer equipment, more software, or more hours of use, and 4) negative repercussions, including arguments, lying, poor achievement, social isolation, and fatigue.

Words like "variants", "drives", "withdrawal", and "tolerance" imbue a sense that this "disorder" is somehow akin to opioid or cocaine addiction. It's a slight of hand whereby problematic behaviors are transformed into medical illnesses in need of professional treatment. But what behavior is immune from such conceptualizations?

News Scan

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Brain Scans: "Figuring out just what types of neuroscience are ready for the courtroom is one of the goals of a $10 million Law & Neuroscience Project funded by The John D. and Catherine T. MacArthur Foundation," reports David Caruso for AP. Brain scans have become common in murder cases, with impressive looking pictures that may or may not have anything to do with human behavior. While we tend to be skeptical of any effort funded by this foundation, the study group appears to have some appropriately skeptical members, including Stephen Morse of U. Pa. "When people see pictures of the brain, they tend to fall prey to what I call 'the lure of mechanism.' They tend to think that we are all machines," he said.

Re-Entry Court is a program in Allen County, Indiana providing "[r]elease[] from prison early in exchange for electronic monitoring and a structured life," according to this story in the Fort Wayne Journal-Gazette by Ron Shawgo. We need to experiment with innovative programs, to be sure, but the experiments need to be evaluated with solid methodology and thoroughly checked data, so we can terminate the ones that don't work. "The newspaper’s analysis discovered several errors and omissions in the program’s data...." Evaluation of a program by people invested in it involves an obvious conflict of interest, and claims of savings and success in such evaluations should be regarded with caution.

Hackers interfering with criminal activity on the Internet
According to the Press Association, organized criminal gangs are having a problem with hackers interrupting illegal trade on the web. Sharon Lemon, deputy director of e-crime, says, “Criminals in a way, are policing the environment from the people who used to spread worms because they need the internet to be working.” These criminals are known to pay computer boffins to go through school to be a step ahead of their opponent. Next week in London, businesses, government officials, and police specialists from over 35 countries will come together and discuss what best ways work in stopping online crime.

Alabama: Felons struggling to regain Voting Rights
Inside the New York Times reporter Shaila Dewan writes that Rev. Kenneth Glasgow, founder of a ministry called The Ordinary People Society, helps people with past criminal backgrounds to vote again. According to the state attorney general, people are not allowed to vote if they commit a felony involving moral turpitude. The problem is that neither legislature nor the attorney general office has release a list defining what crimes are under moral turpitude. On a national standpoint, 5.3 million people do not have the right to vote because of criminal history. Ms. Reynolds, who was convicted of drug possession, received help from The Ordinary People Society, and said, “Voting, that’s a part of getting back to normal life.”

CRJ class proposed a bill on Eyewitness ID Procedures
According to the Eastern Kentucky University school newspaper, an advanced law class proposed a bill to help improve eyewitness identification procedures for law enforcement. Ashley Goff, a recent graduate from EKU who helped, said, “The House Bill 298 is to improve the chances of identifying the guilty, while reducing the risk of convicting the innocent by improving the accuracy of eyewitness identification in criminal cases.” If passed, it will be the first legislation of its kind in Kentucky.

Hoffman Follow Up

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Today, the Ninth Circuit designated for publication its order of February 14 on remand from the United States Supreme Court in Arave v. Hoffman.

Accordingly the U.S. Supreme Court vacated this court's judgment to the extent that it addressed the claim of ineffective assistance of counsel during plea bargaining, and remanded for future proceedings. We now instruct the district court to dismiss with prejudice Hoffman's claim of ineffective assistance of counsel during plea bargaining. The district court's grant of Hoffman's habeas petition on his claims of ineffective assistance of counsel with respect to sentencing still stands. The State of Idaho should proceed with the resentencing of Hoffman as ordered by the district court.

How nice. They "instruct" the district court to do substantially what it did correctly the first time before they mucked it up.

SCOTUS Monday

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The Supreme Court issued one opinion in a criminal case today, Boulware v. United States, No. 06-1509, but it's really more of a tax case.

In the orders list, the Court asked for the views of the Solicitor General in a state-prisoner capital habeas case, Harbison v. Bell, No. 07-8521. That is an unusual order for this type of case. The Sixth Circuit opinion in the case is here. The case involves the use of Rule 60(b) of the Federal Rules of Civil Procedure to reopen a habeas case. Before 1996, the usual method was to file a successive habeas petition, but Congress cracked down hard on that practice in the Antiterrorism and Effective Death Penalty Act of 1996. The Court addressed Rule 60(b) in this context in Gonzalez v. Crosby in 2005.
Update: Three of Harbison's petitions are on the orders list today. Two of them, 07-8519 and 07-8520, were denied. We are informed that the third, on which the Court requested the views of the SG, deals with appointment of federal habeas counsel for state clemency proceedings. See 18 U.S.C. § 3599(e), added by P.L. 109-177 § 222(a). As this involves federal taxpayer dollars for a purely state proceeding, the involvement of the federal government makes more sense. It's an odd provision of the code, but nowhere in the Constitution does it say, "Congress shall make no odd laws."

Also from the Sixth, the Court denied certiorari in the Getsy case, previously noted several times in this blog, including here and here.

The Court also denied certiorari in the case of Alfaro v. California, No. 07-8483. Alfaro is one of the few women on California's death row. In 1990, she murdered 9-year-old Autumn Wallace in the course of committing a burglary and robbery. The Cal. Supreme opinion is here.

An Interesting New Blog

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Criminal law and procedure buffs may want to check out the new blog, Less Than The Least, authored by the Profs. Bill Stuntz (Harvard) and David Skeel (Penn).


What makes Less Than The Least so intriguing comes from it's description:

We are both law professors and evangelical Protestants – a weird combination in our time. We hope it’s also an interesting combination. We plan to write about the things that interest us, professionally and personally: crime and criminal justice (Stuntz), corporate governance, credit, and bankruptcy (Skeel), the culture wars, politics, literature and the arts, and other topics.


Bill Stuntz was my major paper adviser during my graduate work at Harvard Law School. He is also one of the most refreshing and thoughtful scholars in the Legal Academy. I'm less familiar with Skeel, but I'm sure his work is excellent as well.


As mentioned previously, I think religion has much to offer our criminal justice system. I look forward to reading Stuntz & Skeel.

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