August 2008 Archives

VP Candidates and Crime

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A few notes on the Vice-President candidates and crime:

The Pewsitter website has a set of quotes from Gov. Sarah Palin, including this one from her 2006 campaign site:

"I support adequate funding for a strong public safety presence in Alaska. Feeling safe in our communities is something we cannot accept any compromise on. This includes policing in all its forms, the court system, prosecutors and corrections. If the legislature passed a death penalty law, I would sign it. We have a right to know that someone who rapes and murders a child or kills an innocent person in a drive by shooting will never be able to do that again."

The site quoted here is gone, replaced with an auto-refer to the McCain/Palin site.

Sen. Joseph Biden has a record that is decidedly mixed. He had a leading role in the enactment of what is arguably the most notorious sentencing law in modern American history, the law that makes possession of 5 grams of crack cocaine a more serious offense than possession of 499 grams of powder. To his credit, Biden has been candid about his own role in this misstep, explaining it in the Congressional Record, S8614 and S8615. Prior post here.

Sen. Biden also had a leading role in the enactment of the federal death penalty law. The law restored the death penalty for a wide variety of offenses, but it is needlessly complex and poorly written. It is ambiguous on the crucial question of what happens when the jury cannot agree, and the Supreme Court found that it requires a life sentence if even one juror holds out. (In California we have the sensible rule -- a hung jury on penalty is a hung jury, and the penalty phase can be retried). This rule has given life sentences to numerous murderers and terrorists, including conspirators in the embassy bombing and 9/11 plots. Biden has made no effort to fix this screw-up.

On habeas reform, Biden supported much of AEDPA, but he led the fight against the single most important reform -- the deference standard of 28 USC 2254(d).

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New Hearing for Mississippi Murderer: Daily Journal reporter Patsy Brumfield has this story on the Mississippi Supreme Court decision to grant a hearing to review claims raised by Marlon Howell, convicted in 2000 of murdering a 61-year-old retiree who supplemented his income by delivering newspapers. Howell, on felony probation at the time, told friends that he needed money to pay supervision and other fees to his probation officer. He said that he “needed to make a sting” and that he was looking for “an easy lick” to rob in order to avoid being “locked up.” The U.S. Supreme Court rejected Howell's attack on state jury instructions in its 2005 decision in Howell v. Mississippi when it found he had not properly presented his federal claim to the state court first.

Ohio Murderer Richard Cooey, who is scheduled for execution on October 14 for killing two college students in 1986, says he committed another murder in the 1980s according to this AP story by Andrew Welsh-Huggins. Cooey recently filed a federal lawsuit arguing that he was too fat to be executed.

Anthony Porter, Reconsidered

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"It's not what we don't know that gets us in trouble, it's what we know for a fact that just ain't so."

One of the things everybody in the death penalty debate knows for a fact is that Anthony Porter of Chicago was an innocent man, wrongly convicted, and sentenced to death. Everybody knows that he was saved at the eleventh hour because idealistic young journalism students uncovered in a class project the truth that had eluded professionals of both sides in the original investigation and trial. Until today, I believed that myself, never having heard it challenged.

Today at the conference of the Association of Government Attorneys in Capital Litigation, I heard a talk by James Sotos, who now represents the man "everyone knows" is the real killer, Alstory Simon. Turns out the students had almost nothing to do with getting Simon's confession to the crime. That videotaped confession was obtained by a seasoned private investigator using tactics that, if a police officer had used them, would have the defense bar screaming with outrage.

Why did Simon subsequently plead guilty? He did it on the advice of the attorney arranged for him, according to Sotos, by the same investigator who obtained that confession.

Of course, Sotos is an advocate, and an advocate's job is to present the facts in the way most favorable to his client. So I won't endorse his version of the story without looking into it further. But there appears to be a substantial chance that the anti-side's number one poster boy of exoneration really did it. Given how many other cases of "exoneration" have turned out to be cases of guilty murderers walking, that would not be surprising.

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Justice Department May Seek To Restrain DTA Review: Lyle Denniston reported at SCOTUSblog yesterday that the Justice Department is considering asking the Supreme Court to curb the authority of the federal appeals court to review military decisions to hold the Guantanamo Bay detainees. The Solicitor General must approve the plans before the Justice Department will go forward. According to Denniston, the Justice Department is attempting to block the appeals court's authority to review the information that intelligence agencies have gathered on the detainees. After the D.C. Circuit Court reinstated Bismullah v. Gates (06-1197) on Monday, the Circuit Court claims it has a right to access all the information in the files. The government claims it does not. According to the government, the Circuit Court should only be able to review the information Combatant Status Review Tribunals was able to consider. The Circuit Court split 5-5 in February on whether to reconsider Bismullah, and the U.S. Supreme Court did not resolve the issue when it sent it back to the Circuit Court to review in light of the Supreme Court's decision in Boumediene v. Bush. The Justice Department claims that the Supreme Court intended to send the message to the Circuit Court that Bismullah was "wrong on 'the nature of review'" when it sent the decision back to the Circuit Court. At this point, the Justice Department is still considering its options. It could make a move to the U.S. Supreme Court, or it could wait for the Circuit Court to reconsider the issue. Stay tuned to find out.

Are Chief Justice Roberts and Senator Obama Similar?: Orin Kerr at The Volokh Conspiracy has an interesting post noting his "quirky reaction" that "the more I get to know Barack Obama, the more he reminds me of Chief Justice John Roberts." He notes that while the men have very different political views, he also notes that there are some similarities. For example, the natural gifts of both Chief Justice Roberts and Senator Obama were recognized early on. And while both had their political views, they both kept from taking controversial stances as they rose in their careers. Kerr also notes that by the time both men became nominees, they had "tremendous admiration" from their political allies, and that both have been viewed as wolves in sheep's clothing by their political opponents. One wonders how each of the men would view Kerr's comparison...

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Meth Houses: The Sheriff's Department in Jefferson County Missouri has started posting the locations where evidence of methamphetamine production has been found. An AP story, by Betsy Taylor in today's San Francisco Chronicle, reports that the public can log on to the Sheriff's website and find the Meth house addresses in their neighborhoods. The link is here. Missouri leads the nation for meth lab incidents.

Gitmo Hearings: A U.S. District judge has expressed concerns about the closed hearings regarding Guantanamo Bay detainees that he will conduct, according to this Associated Press story by Matt Apuzzo. For national security reasons, the public and the detainees themselves cannot attend the hearings, where Military Intelligence information regarding terrorists will be presented. The Judge worries that unless the hearings are at least partially open, civil liberties groups will criticize them as unfair.

An undeterred murderer serving two life sentences in Indiana will face the death penalty for killing his cellmate according to this story by News & Tribune reporter Matt Thacker. Zahariah Melcher received a life sentence in 2006 for murdering his wife and child, and hiding their bodies in a storage container. Last March, he strangled Nicholas Roman in their cell. In another story, Michael Gibson, an Indiana inmate serving 119 years for attempted murder, strangled and drowned his cellmate as reported by WTHI writer Mike Grant. Prosecutors will also seek the death penalty in his case.

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Violent Inmates Released: California has released almost 5,000 prison inmates without the required screening for violent criminals who should have been held, according to this AP story by Don Thompson. A state audit of inmate releases between January 2007 and March 2008 found that among the thousands automatically released without a discharge report to assess their threat to the public were 775 felons who had committed violent crimes or sex offenses. A state corrections spokesman said that changes had been made to correct the problem.

Federal Death Sentence: A unanimous jury in Idaho deliberated three hours before sentencing Joseph Edward Duncan to death for the 2005 torture and murder of nine-year-old Dylan Groene. Facts surrounding the case and Duncan's criminal history were posted on August 20. An AP story by Rebecca Boone reports on the jury's decision.

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U.S. Border Security has been tightened on concerns that Mexican drug cartels may send hit men across the border according to this AP story in today's San Francisco Chronicle. A spokesman for the U.S. Boarder Patrol said that they had credible information that cartels plan to hit targets across the border. Violence between cartels has increased dramatically as they fight for control of drug and human trafficking. In Ciudad Juarez, a city just across the Rio Grande from El Paso, nearly 800 have been killed by the drug gangs this year.

Liberian DP Concerns UN: The United Nation's Human Rights Committee express deep concern today regarding the Liberian government's adoption of a death penalty option for murder during the commission of robbery, terrorism or hijacking as reported today in this story from News Blaze. In 2005 the small West African Republic signed the U.N. Committee's International Covenant on Civil and Political Rights Second Optional Protocol agreeing to abolish the death penalty.

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Strip Searches Ruled Unconstitutional: In a divided ruling announced last Friday, the federal Ninth Circuit Court of Appeals held San Francisco's policy of strip searching all arrestees to be housed in the jail's general population unconstitutional. The lead opinion In Bull v. San Francisco by Judge Sidney Thomas addresses a class action § 1983 lawsuit brought by several plaintiffs who were strip searched at the jail before the policy was abandoned in January of 2004. In a reluctant concurring opinion, Judge Sandra Ikuta found herself bound by Ninth Circuit precedent "in tension with Supreme Court precedent". A dissent by Judge Richard Tallman was more direct, suggesting that Ninth Circuit decisions on this issue suffer from an "inherent defect in basic logic."

Judiciary Committee Member, and former Chairman, Joe Biden adds heft to Senator Obama's ticket according to this piece in this morning's Wall Street Journal.

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SF Dog Mauling defendant Marjorie Knoller's conviction for second degree murder was reinstated today. A SF Chronicle story by Bob Egelko reports that Knoller had been charged with second-degree murder after her two 100lb+ attack dogs mauled 33-year-old Dianne Whipple to death while she watched. Knoller did not bother to call anyone after the mauling, but first responders summoned by a neighbor found the victim stripped of her clothes with 75 major wounds on her body. After the trial court and court of appeals disagreed on the standard for implied malice murder, the state Supreme Court announced the correct standard, held that "the trial court abused its discretion in granting defendant Knoller a new trial on the second degree murder charge," and sent the case back for reconsideration. Today's order is the formal reinstatement of the conviction. She is being held without bail awaiting the possibility of receiving a 15 to life sentence at a hearing next month.

Kentucky murderer Marco Allen Chapman, who pleaded guilty in 2004 to murdering two children and attacking their mother and sister, has been fighting for three years to get the state public defender to stop appealing his case so that he can be executed. An AP story by writer Brett Barrouquere quotes Chapman saying "The only thing I can do is . . . tell the judges to do their job and end this now. Quit dragging this on for everybody." After a two-day crack cocaine binge in 2002, Chapman broke into Carolyn Marksberry's home, raped her and stabbed her, then stabbed her three young children. Carolyn and one of her daughters survived the attack. The Kentucky Supreme Court declined to rehear the public defender's appeal of his case yesterday. The Court's 2005 decision to uphold his conviction and sentence is here.

Prison is not fun for disgraced Illinois Governor George Ryan according to this Chicago Sun Times story by Rummana Hussain. Ryan, who is doing 6-1/2 years for taking bribes, became the darling of the anti-death penalty crowd when he emptied out Illinois' death row on his last day in office.

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Detainee Habeas Cases Heard In Federal Court: At SCOTUSblog, Lyle Denniston reports that U.S. District Court Judge Richard J. Leon will hear the first detainee habeas case on Monday, October 6th, 2008. Denniston notes this is the very same day the U.S. Supreme Court will return from their summer recess. Interestingly, the Boumediene case will be the first case heard by District Judge Leon in October. Judge Leon stated it was "mostly by coincidence" that Lakhdar Boumediene, one of the detainees prevailing in Boumediene v. Bush, would be the first to receive his habeas hearings.


D.C. Circuit Appointment's Clause Decision:
For those interested in separation of powers cases, Eugene Volokh and Jonathan Adler have posts at Volokh Conspiracy on the three-judge panel's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board. Volokh's post notes that the decision is "very interesting," while Adler cites excerpts from the decision to explain why the decision is so interesting. The case challenged the constitutionality of the Public Company Accounting Oversight Board (PCAOB) on appointments clause grounds. The plaintiffs challenged the Sarbanes-Oxley Act of 2002, claiming its statutory scheme violated the Appointments Clause because it did not permit adequate Presidential control of the PCAOB. The plaintiffs claimed the Act stripped the President of his authority to remove members of the Board. The majority opinion, authored by Judge Rogers, and joined by Judge Brown, found that the Act did "not contravene separation of powers, as that principle embraces independent agencies like the Commission and their exercise of broad authority over their subordinates."

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Another Illegal habitual criminal protected from deportation by San Francisco's sanctuary policy has been charged with the attempted murder of a man in Daly City. A San Francisco Chronicle story by Jaxon Van Derbeken reports that Mexican national Eric Antonio Uc-Cahun, who had two priors for gang related assaults, was on probation when he and two fellow gang members attacked the victim, beating him with a broom handle until it broke. Uc-Cahun then slashed the mans stomach twice with a two inch blade, causing his intestines to protrude from the wounds. From within jail, "Uc-Cahun allegedly wrote a letter to a friend that provided the name and address of the victim and suggesting that the friend 'take care of things,' [San Mateo Deputy DA Steve] Wagstaffe said." Last month Salvadorian national Edwin Ramos, an illegal immigrant with prior arrests for gang related crimes, was charged with murdering a father and his two sons as they drove down a San Francisco street, reportedly because he mistook them for members of a rival gang.

Court Adopts Parole Authority As reported below in Kent Scheidegger's post, a divided California Supreme Court has ruled that Governor Arnold Schwarzenegger wrongly denied parole to a life-sentenced murderer who shot and stabbed her boyfriend's wife to death in 1983. An AP story by Paul Elias writes that the Court's 4-3 holding in In re Sandra Davis Lawrence, Chief Justice George concluded that some evidence of future dangerousness other than the circumstances of the crime itself must be presented in order to justify a denial of parole. The ruling seems to clear the way for criminals to launch legal challenges to was previously an executive branch decision.

Parole Decision

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The California Supreme Court today, 4-3, overturned Gov. Schwarzenegger's decision to deny parole to Sandra Lawrence, who murdered her lover's wife and then spent 11 years on the lam before surrendering in 1982. Justice Ming Chin wrote the dissent:

The Governor carefully considered whether petitioner, Sandra Davis Lawrence, is suitable for parole. He issued a reasoned report that assessed petitioner’s case individually. The report considered the relevant factors — both those supporting parole and those weighing against parole. It recognized the progress petitioner has made over the years that weighs in favor of parole. Nevertheless, balancing these factors, the Governor concluded “that her release from prison would pose an unreasonable risk of danger to society” and reversed the finding of the Board of Parole Hearings (Board) that she was suitable for parole.
The majority cites to no factual misstatements in this report. It agrees that evidence supports every fact cited. It identifies nothing the Governor did that was incorrect or contrary to his constitutional and statutory obligations. Rather, the majority simply substitutes its own judgment in place of the Governor’s considered judgment that petitioner is not suitable for parole.

Heinousness of the original offense, under today's decision, is relevant only to the extent that it indicates a present threat to public safety. A judgment that the prisoner committed an exceptionally heinous murder for which he or she just hasn't been punished sufficiently yet doesn't do it.

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Mexico, as noted earlier, is rethinking its 2005 decision to abolish the death penalty. A poll reported today by Canadian pollster Angus Reid Global Monitor found that 68% of Mexicans support the death penalty for rape, 64% for homicide, and 60% for kidnapping. Earlier this month a proposal to restore capital punishment was debated in the Mexican Congress.

The Gruesome Murder case of habitual predator Joseph Edward Duncan III, was before a federal sentencing jury in Boise, Idaho yesterday. A story by AP writer Rebecca Boone reports that jurors watched a 2005 police interview of 8-year-old Shasta Groene describing how Duncan kidnapped, raped, and tortured her and 9-year-old brother Dylan, after killing their older brother and mother and the mother's fiance. Dylan was later murdered. Duncan, who is representing himself, has already been convicted of murdering Shasta's other family members. Duncan is also facing charges of murdering a young California boy in 1997. His criminal record includes multiple arrests and convictions for rape and molesting children. An earlier MSNBC story reports that Duncan underwent a series of failed treatments and refused to comply with therapists and law enforcement officials who tried to correct his behavior, which mental health evaluators diagnosed in 1980 as consistent with an antisocial personality and a sexual deviant. Had proper sentencing policies been in place, Duncan would never have seen the outside of a prison mental ward.

Habitual sex offender Jerry Buck Inman pleaded guilty to the robbery, rape and murder of a 20-year-old South Carolina engineering student in 2006. Inman was out of prison for earlier rape convictions just 9 months before Tiffany Marie Soures was found strangled to death with her bikini top. AP writer Seanna Adcox reports that Souers may not be Inman's only victim since his release. He is facing changes for the rape of a 28-year-old woman in Tennessee and the attempted rape of young Alabama woman.

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Accomplice faces execution in Texas Thursday, as reported in this AP story by Michael Graczyk. In 1996 Jeffery Wood and Daniel Reneau robbed a convenience store in the Texas Hill Country. During the robbery Reneau shot and killed the clerk Kriss Keeran. After the shooting, Wood helped Reneau steal the store's safe, and cash box, making off with over $11,000 in cash and checks. Reneau was executed in 2002, and Wood's attorneys are asking Texas Governor Rick Perry to commute his sentence because he was not the shooter.

Sixth Circuit overturns Death Sentence: In a split decision announced on Monday, the Sixth Circuit overturned the death sentence of Reginald Jells citing ineffective assistance of counsel at sentencing. Jells was convicted of the 1987 kidnapping of a Ruby Stapleton and her 4-year son. The woman's partially nude body was found in a junkyard. At trial the coroner reported that she had suffered over 90 blows with transmission jack. The little boy was found alive in another junkyard. Jells was found guilty on overwhelming evidence. The dissent criticizes the majority for overturning the sentence because Jells' defense attorney failed to present mitigating evidence that would have would have presented a "more nuanced" and sympathetic picture of Jells. An AP story by Terry Kinney offers a brief report on the case.

Death by "Reform"

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Beware of reformers. Enthusiastic activists often dismiss weighty arguments on the other side and propose cures that end up being worse than the disease. So it was with the drive to deinstitutionalize the mentally ill. Certainly, there were abuses. Certainly, there were people involuntarily committed who shouldn't have been. But the Cuckoo's Nest crusade took it much too far. "Apparently drafted by the law firm of Frank Kafka and Lewis Carroll, the laws on the mentally ill that have emanated from the deinstitutionalization era are both absurd and tragic." (Torrey, Nowhere to Go: The Tragic Odyssey of the Homeless Mentally Ill (1988) pp. 29-30.) Homelessness is often the result of vesting the choice not to be treated in people whose illness makes them incapable of making an intelligent choice. The American Psychiatric Association task force called this "cloak[ing] neglect in the banner of freedom." (Lamb, et al., Summary and Recommendations, in Treating the Homeless Mentally Ill: A Task Force Report of the American Psychiatric Association (Lamb et al, eds. 1992) p. 3.)

But homelessness is not the only, or the worst, result of these misguided policies. In Saturday's Wall Street Journal, Elizabeth Bernstein and Nathal Koppel have this story:

Last Friday, the Ninth Circuit issued an opinion in Costco v. Hoen. The decision, authored by Judge Milan Smith, addressed whether an intervenor-appellee who "materially assisted state defendants through the litigation, and... had much at stake financially" could be held liable for attorneys fees under 42 U.S.C. §1988(b) and 15 U.S.C. §26 (part of the Sherman Antitrust Act). While the decision addressed intervenor liability under the Sherman Antitrust Act, the portion of the decision addressing §1988(b) could be relevant to attorney fee liability for intervenors in criminal-related cases, such as prisoners rights. The opinion can be found here.

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Nevada's Sex Offender Law is being challenged in federal court, as reported in this AP story by Ken Ritter. Lawyers representing 27 unnamed plaintiffs in a federal civil rights lawsuit claim that a law which creates an internet accessible state registry of 4,941 people convicted of sex crimes since 1956 in unconstitutional. The plaintiffs argue that minor offenders such as those convicted of theft of pornographic magazines would be unfairly included.

Obama on Thomas: At a religious forum last weekend, attended by presidential candidates Barack Obama and John McCain, the moderator asked which Supreme Court Justices they would not nominate. McCain replied that he would not have chosen any of the four more liberal justices, because of their judicial philosophy. Obama initially focused on Justice Clarence Thomas, saying that he is not a "strong enough jurist or legal thinker," and then took the typical liberal tack of implying that any black with a conservative judicial philosophy must be stupid. A piece in today's The Wall Street Journal discusses this approach.

Helping immigrant felons: "A San Francisco city commission has taken a defiant stand against Mayor Gavin Newsom's directive on young immigrant felons by urging officials to permit the offenders to remain in the city and help pay for their housing, job placement services and immigration lawyers," reports Jason Van Derbeken in the SF Chron.

System Maintenance

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The blog is undergoing maintenance. Posts will be limited and some links may not work. We should be back in full operation in a few days.

Update, 3:00 PT: Everything should be working now.

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Murderer Volunteers for DP: Texas cop killer Michael Rodriguez, who has waived his appeals and agreed to receive his sentence, is scheduled to be executed today. A story by Michael Graczyk of the Houston Chronicle reports that Rodriquez, one of seven inmates who broke out of a Texas prison in 2000, had been serving a life sentence for arranging for the murder of his wife. After their escape, Rodriquez and the other fugitives killed officer Aubrey Hawkins during the Christmas Eve robbery of a sporting goods store. Hawkins was shot 11 times and run over with his own patrol car.

India will execute two cab drivers who raped and brutally murdered Dawn Emilie Griggs in 2004 according to this report in Sindh Today. The victim, an Australian, was visiting India to attend a meditation course. Her body was found in a field. She had been stabbed multiple times with a screwdriver and strangled.

Three Experts in a Tub

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Adam Liptak at the NYT compares expert testimony in the U.S. with other countries. Particularly interesting is the Australian "hot tub" system.

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues....
Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”

It's an interesting concept, but I'm not sure it would resolve the main problem:

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Venting Against DP: Brooklyn federal district judge Frederick Block said yesterday that the people of New York are against the death penalty, except for cop killers, and that the U.S. Attorney ought to stop seeking it. The judge's remarks before an American Bar event are reported in this story by Ross Goldberg in the New York Sun. The story suggests that Judge Block, who has editorialized against capital punishment in the New York Times, may not actually speak for all New Yorkers. A key problem with the federal death penalty law is that when a jury hangs by a single vote, the murderer automatically gets a life sentence, while some states allow another sentencing hearing with a new jury. The result: it's fairly easy to block a death sentence in Judge Block's court.

Murder has become a political problem in San Francisco. A column by C.W. Nevius in today's SF Chronicle reports that this fall's election of at least four new county supervisors may be influenced by the fact that the city has suffered near record homicide rates over the past four years. There have been 61 homicides in San Francisco since January. The pesky murder problem could also effect Mayor Gavin Newsom's bid for Governor in 2010. Nevius speculates that SF Police Chief Heather Fong may retire after the fall election. Fortunately for local murderers, District Attorney Kamala Harris is not on the ballot.

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The "I Didn't Know I Was A Felon" Defense: Over at Volokh Conspiracy, Eugene Volokh has a post on the Eastern District of Pennsylvania's decision in U.S. v. Kitsch. The decision holds that Kitsch could only be guilty of violating a federal law that prohibits firearm ownership by felons, 18 U.S.C. § 922(g)(1), if Kitsch knowingly possessed a gun knowing that he was a felon. According to the district court, Kitsch pleaded guilty to the New Jersey state offense of third-degree arson, a felony under New Jersey law, after law enforcement officials told him they would set aside the conviction. Kitsch served a 30 day sentence and then continued as if nothing had happened until he was charged with violating 18 U.S.C. § 922(g)(1). According to Volokh, the district court's decision relies on the general presumption against reading strict liability into gun laws. The district court relied on language in D.C. v. Heller, to justify its reasoning that "A statute that imposes criminal penalties for the exercise of an enumerated constitutional right despite defendant's reasonable belief in good faith that he has complied with the law must, at the very least, raise constitutional doubts." This is interesting given that a purpose of 18 U.S.C. § 922(g)(1) is to keep dangerous individuals -e.g. those willing to set fires to buildings - from owning guns, and the fact that Heller did say "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." Kitsch's trial has yet to take place.

Hamdan and Hollywood: Dan Slater posts at Wall Street Journal Blog that George Clooney's production company has bought the rights to a book about Salim Hamdan, and that George Clooney is interested in playing Hamdan's attorney Lt. Commander Charles Swift. Both today's Wall Street Journal and NPR's coverage attribute part of Hamdan's verdict to his pleasant courtroom demeanor. Given Clooney's political leanings, chances are slim his movie will be favorable to the military commission process.

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More Power to SCOTUS, according to AEI visiting scholar John Yoo. Discussing the winners and losers in Court's recent term in today's Philadelphia Inquirer he writes "....the biggest winner by far was the court itself. Slowly but surely, the justices have expanded their power to make many of our society's fundamental political and moral decisions. He pays attention to the pivotal role that "the wandering justice Anthony Kennedy" had, leading the liberals in Boumediene, and siding with conservatives in District of Columbia v. Heller.

Hamdan: The partial guilty verdict and short sentence the military panel gave to Osama bin Laden's driver, Salim Hamdan, last week was not an indictment of the military's trial process accroding to Jess Bravin's WSJ piece today. While an editorial in the SF Chronicle characterized the Hamdan's verdict and short sentence as evidence of "a flawed process", a juror who seemed amused by such a suggestion told the Journal reporter, "People probably are trying to read too much into it."

L.A. Homeless Health Scam: "A federal indictment accuses [Estill] Mitts of receiving as much as $20,000 a month to deliver homeless people for unnecessary medical procedures to City of Angels Medical Center, Los Angeles Metropolitan Medical Center or Tustin Hospital and Medical Center," reports Shaya Tayefe Mohajer for AP.

Chapel Hill Capital Case: "Prosecutors said Monday they plan to seek the death penalty against a man charged in the kidnapping and fatal shooting of University of North Carolina at Chapel Hill student body president Eve Carson... even though jurors in Orange County haven't returned a death sentence since North Carolina resumed executions in 1984," Marlon Walker reports for AP.

Civil Commitment Expense: AP has this story on the expense of hiring psychologists and psychiatrists for evaluation of sex offenders for post-prison civil commitment.

Mens Rea: What punishment is appropriate for a person who causes great harm without intent but recklessly, even to the point of disregarding specific warnings? Demian Bulwa has this story in the SF Chron on Matt Rupp, who served two years in prison for starting a major fire by using a riding mower on dry grass, telling a person who warned him to "Go to hell."

Next time, dress the part: "Police are looking for a man who told clerks at a local adult novelty shop that he is a police detective and then demanded that they provide him with pornographic videos so he could check the ages of the actors and actresses in them. The clerks turned away the ponytailed police impersonator last month, said Longmont Cmdr. Tim Lewis," reports Pierrette Shields for the Longworth (CO) Times-Call.

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Justice Department Seeks to Limit District Court Authority to Transfer Detainees: At SCOTUSblog, Lyle Denniston posts that the Justice Department has filed two appeals seeking resolution of whether District Court Judges have the authority to issue orders that regulate the potential transfer of detainees out of Guantanamo Bay. The first appeal was filed on July 25, 2008 and asked the D.C. Circuit Court to rule on Senior District Court Judge Thomas F. Hogan's authority to require the government to give thirty days notice to a detainee's lawyer before the detainee is transferred from Guantanamo. The second appeal, filed today, questions District Judge Rosemary M. Collyer's authority to temporarily bar transfer of a detainee to his home country because he fears torture there. Both appeals argue Congress removed this power from district judges in 2006, and Boumediene v. Bush did not disturb this limit on district court judge authority. The appeals also argued that even without the law, district courts do not have the authority to interfere with Executive control of detainee affairs - aside from examining the basis of detention.

And Can Federal Judges Police Themselves?: Ironically, the Justice Department's second appeal was filed the same day Dan Slater, at Wall Street Journal's Law Blog, asked whether "the System" can "Deal with Incorrigible Judges?" The post discusses Nathan Koppel's article on U.S. District Judge Manuel Real. Judge Real is a federal judge in Los Angeles who was ordered removed from a patent-infringement case against Microsoft because he improperly ignored evidence and failed to state reasons for his decision. Both Slater's post, and Koppel's article, criticize life tenure for judges like Real. Slater writes that "any public shaming appears to have left Judge Real undeterred." Slater also quotes Charles Geyh, a judicial ethics professor at Indiana University, as stating the federal system is not well equipped to deal with incorrigible judges when their behavior does not rise to the level of impeachment.

California Begins to Desegregate Prisons:
Bert Deixler, guest blogging at Sentencing Law and Policy, reports that the State of California Department of Corrections and Rehabilitation (CDCR) has finally taken tentative steps toward integrating its prisons. The Supreme Court ruled California's practice to be unconstitutional in Johnson v. California, 543 U.S. 499 (2005). Deixler represented the plaintiff. According to Deixler, "Sierra Conservation Center and Mule Creek State Prison are the first California institutions to integrate, and there are plans for integration to spread statewise by January. It is anticipated that all 30 of California’s prisons will make the transition by 2010." He further states, "California will surely benefit when its prisons are de-segregated.... In short, all sound penalogic policies will be advanced by getting California out of the practice of racially segregating its prisoners." Commenter "Large County Prosecutor" opines that this is "One of the most truly naive statements ever to appear on this site."

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DC Guns: David Kopel and Robert Levy have this op-ed in the WSJ calling on Congress to fix DC's latest gun law. A bill called the District of Columbia Personal Protection Act, H.R. 1399 and S. 1001, is available on Thomas.

Prisons Desegregating in CA: As discussed in Lauren's blog scan, California prisons, where discipline is dictated by race-based prison gangs, is beginning to comply with the Supreme Court's 2005 Johnson v. California ruling, which turned state policies that segregate prison inmates into toast. The problem with this feel-good holding by Justices O'Connor, Kennedy, Souter, Breyer and Ginsburg is that it may result in a bloodbath. A story by NPR reporter Frank Stoltze quotes inmates saying "if some guys up there at Level Three or Level Four found out that you bunked with another (race), I mean, who knows, you could get stabbed up." An Aryan Brotherhood enforcer told the reporter "I don't live with them on the streets. I'm not going to bunk with them here."

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Medellin Video: Video of the Lou Dobbs piece noted in yesterday's News Scan is available here.

Hamdan Sentence: Al-Qaeda small fry Salim Hamdan was sentenced to 5 1/2 years, with credit for the 61 months already detained, by the military court in Guantanamo, report Jerry Markon and Josh White in the WaPo. The prosecution had asked for 30 years. Five more months means his sentence will be ending around Inauguration Day, so President [McCain|Obama] will have to decide what to do with him then.

Another Treaty Claim: The Supreme Court turned down the appeal of Texas murderer Heliberto Chi, who claims he did not receive the proper assistance from the Honduran consulate. Michael Graczyk has this story for AP. Unlike Medellin, Chi's case was not involved in the ICJ decision, making this an easier case. The Supreme Court's order does not indicate any dissents.

Blog Scan

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Commentary on Medellin Execution: Lyle Denniston posted a commentary on the Supreme Court's recent decisions of Medellin, Kennedy, and the "meaning of silence" at SCOTUSblog today. Denniston finds it significant that in these two recent death penalty cases, the silence of the U.S. Solicitor General and Congress has or will play a role in the Court's decisions. In the case of Kennedy v. Louisiana, the U.S. Solicitor General and the state of Louisiana have asked the Supreme Court to reopen the case to address the gap left in the ruling regarding the death penalty for child rape. In Medellin, the majority denied Medellin's petition for a stay of execution in part because of the U.S. Solicitor General's decision not "to seek our intervention" in Medellin's execution. Denniston believes the implication of these cases is "obvious" "on an issue as volatile as capital punishment, every last argument — including an argument not made — may turn out to be weighty authority." Of course, Denniston also notes this is not the norm, as the Court does not normally address issues not raised in the lower courts. According to Denniston "the role of the two political branches of the federal government — including roles not played — could be seen as one crucial factor" in the decisions.

Seventh Circuit Decision on Standard of Proof: Sentencing Law and Policy has Guest Bloggers from the criminal defense firm of Proskauer Rose posting while Doug Berman is on vacation. Today's post is on the Seventh Circuit's decision to vacate and remand the district court's decision in United States v. Schroeder, because the district court failed to apply the correct standard of proof. According to the post, the decision clarified the distinction between the government’s burden of proof with respect to a disputed fact and the standard for admissibility of evidence at sentencing. Schroeder's first sentence had been reversed by the Seventh Circuit because the sentence was six months longer than the statutory maximum. Schroeder was resentenced in a second hearing, and appealed his second sentence arguing the prosecution had not met its burden of proving the improper tax deductions for which he was being sentenced were his fault. The Seventh Circuit's decision reversed the district court's finding that disputed fact was "based on information of sufficient reliability," and noted "that although the standard for admissibility at sentencing is whether 'the information has sufficient indicia of reliability to support its probable accuracy,' a disputed fact must nonetheless be proved by a preponderance of the evidence."

Free Access to Psychology and Psychiatry Journals from Sage:
Hattip to Psychology and Crime News for letting us know that from August 1 through September 30th, Sage will make a set of their Journals in Psychology and Psychiatry available for free. All you have to do is register.

News Scan

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Bin Laden's Driver Convicted: A military court has convicted Salim Hamdan of supporting terrorism as reported in this AP story by Mike Melia. Hamdan could be sentenced to life in prison at a hearing which will be held today.

Victim Testifies at DP Commission: A woman, whose parents were murdered 25 years ago by one of the five killers on Maryland's death row, testified the that state's commission on the death penalty should not repeal it. An AP story in today's Baltimore Sun reports that Phyllis Bricker pointed out in her testimony that "three separate Baltimore juries...12 members each, men, women, black and white," sentenced her parents' murderer to death. "There is no question now about the innocence or guilt in this case," she said.

$50,000 for Terrorists: The FBI has added $20,000 to the current $30,000 reward posted on suspected animal rights activists who firebombed the home and car of UC Santa Cruz biomedical researchers last weekend. A story in the Santa Cruz Sentinel by J.M. Brown reports that the home of scientist David Feldheim was firebombed at 5:45 AM last Saturday, forcing him to flee with his wife and two young children. The car of another researcher at the school was destroyed by another firebomb and a third scientist received a threatening telephone call at his home that morning as the bombings were occurring.

Feedback on Medellin: While Europe, the UN and the all the other anti-death penalty advocates were agonizing over yesterday's execution of Texas murderer Jose Medellin, apparently some folks in his home country of Mexico were not very upset. An AP story in today's Houston Chronicle by Mark Stevenson quotes a lawyer in Mexico City who observed "If we had the death penalty here, there wouldn't be so many crimes." (Hat tip: "federalist")

Lou Dobbs plans a segment on the Medellin execution tonight, possibly including comments from CJLF Legal Director Kent Scheidegger. (We never really know until the show airs, as they sometimes make last-minute changes.) It's on CNN from 7-8 Eastern Time.

Ramos/Compean Aftermath: Drug smuggler Osvaldo Aldrete Davila was shot in 2005 by Border Patrol agents Ignacio Ramos and Jose Alonso Compean. The subsequent prosecution of the agents and the immunity given Aldrete were highly controversial. (USCA 5 decision here.) Turns out Aldrete continued smuggling, at least twice. He was sentenced today to 9 1/2 years, according to this AP story by Alicia Caldwell.

Medellin Coverage

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Here is some morning-after coverage of the Medellin execution.

Michael Graczyk has this story for AP, and we finally get some coverage of the fact that Medellin has already had the judicial prejudice determination required by the Avena holding.

"State and federal courts -- on three separate occasions -- have already satisfied the World Court's suggestion that American courts examine whether Medellin suffered actual legal harm when authorities did not inform him about certain rights under the Vienna Convention," said Jerry Strickland, a spokesman for the Texas Attorney General's Office. "On all three occasions, state and federal courts concluded that Medellin suffered no legal harm."

Medellin Execution

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As of 6:16 CDT, the Houston Chronicle reports that Texas is waiting to hear from the U.S. Supreme Court before proceeding with the execution of Jose Medellin.

Update: The Supreme Court denied the habeas petition and stay 5-4, and Medellin was executed and pronounced dead at 9:57 CDT. SCOTUSblog has the opinion is on the Court's website here. The opinion is somewhat cryptic, but it appears that the majority is convinced there was no prejudice, as Judge Cochran wrote in a concurring opinion in the Texas CCA, and as the trial court ruled long ago. The per curiam opinion says,

The beginning premise for any stay, and indeed for the assumption that Congress or the legislature might seek to intervene in this suit, must be that petitioner’s confession was obtained unlawfully. This is highly unlikely as a matter of domestic or international law. Other arguments seeking to establish that a violation of the Convention constitutes grounds for showing the invalidity of the state court judgment, for instance because counsel was inadequate, are also insubstantial, for the reasons noted in our previous opinion. Id., at ___ (slip op., at 5).
The Department of Justice of the United States is well aware of these proceedings and has not chosen to seek our intervention. Its silence is no surprise: The United States has not wavered in its position that petitioner was not prejudiced by his lack of consular access.

The first sentence refers to the original, sole ground of prejudice Medellin claimed in his pre-Avena state habeas petition. The second sentence appears to refer to both the holdings of the ICJ in Avena itself and the Supreme Court in Sanchez-Llamas v. Oregon, rejecting the notion that the Vienna Convention imposes some Miranda-like prerequisite to interrogation.

It is good that this execution has finally been carried out. It would have been better to have a clear statement by the Court that there was no prejudice from the Vienna Convention violation or that there has been a post-notification determination by another court that there was no prejudice, and that is all the United States is obligated to do. The lack of a clear statement of one or both of these grounds will result in unwarranted criticism of the United States.

"The Bush administration, the Mexican government and much of the diplomatic community have warned of an international backlash if the execution goes forward without a hearing on Medellin’s claim that he was denied an opportunity to contact the Mexican consulate after his arrest," reports Dave Montgomery for the Fort Worth Star-Telegram. This is fairly typical of the coverage. But all the International Court of Justice's Avena decision requires is a judicial determination of whether there was prejudice from the failure of the police to inform the defendant of his right to have the consulate notified. Missing from the article is the fact that Medellin has already had such a determination, made after the consulate had notice and provided assistance, many years ago.

News Scan

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Hand Wringing Over Medellin: Texas has defied the entire civilized world by refusing to delay the execution of confessed rapist/murderer Jose Ernesto Medellin, according to this story by Alan Turner from today's Houston Chronicle. Medellin. a Mexican citizen, was convicted 15 years ago of the gang-rape and strangulation murder of two teen-aged girls in Houston. A 1963 treaty, "the Vienna Convention on Counselor Relations", required Houston police to notify the Mexican consul of Medellin's arrest, but they failed to do this. The World Court's Avena decision in 2004, announced that in such situations, the convicted murderer is entitled to a court hearing to determine if his defense was undermined by the failure to notify. The claim today is that Medellin is entitled to such a hearing. One minor detail.....Medellin got his hearing on state habeas corpus in 1994 and the habeas judge held that the failure to notify the Mexican consul did not prejudice his case. The father of one of the murdered girls properly characterized the current outcry, "It's just a last-ditch effort to keep this scumbag breathing."

Sex Offenders Lose College Aid: An education bill adopted by Congress last week includes a provision which prevents violent sex offenders from receiving Pell Grants to pay college expenses. Associated Press writer Ryan Foley reports that the new restriction only affects sex offenders confined in treatment facilities beyond their sentences due to their high probability for re-offending. Apparently some of these offenders were applying for Pell Grant funds by signing up to take classes, then dropping them after receiving the money.

Too Fat to Execute? An Ohio double-murderer has filed a federal lawsuit challenging his upcoming October execution, arguing that he is too fat for lethal injection. An AP story by Andrew Welsh-Huggins reports that Richard Cooey, who is 5 ft. 7 and weighs 267 lbs, also takes medication for migraines that may interfere with the anesthesia given during the lethal injection process. Cooey was sentenced to die for killing college students Dawn McCreery and Wendy Offredo on Sept. 1, 1986. At around midnight Cooey and two friends threw a large concrete chunk off a freeway overpass which struck the car in which McCreery and Offredo were traveling, disabling it. Cooey then presented himself to the young women as a good Samaritan, offering to drive them to a telephone to call their parents. Once in his car, Cooey robbed, raped and beat the women with a nightstick before strangling the pair with a shoelace.

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Former Death Row Inmate Free After Guilty Plea: After two retrials and 17 years in prison, Michael Mordenti pleaded guilty to two charges related to a 1989 murder-for-hire. Mordenti was sentenced to 25 years for murder and conspiracy but he was released due to old sentencing guidelines and time served. According to Valerie Kalfrin's Tampa Trib article, Mordenti's fourth trial was scheduled to begin August 4, 2008.

Ala. Criticized for Prosecuting Pregnant Drug Users
: Exposing a child to illegal drugs is a crime in Alabama, but the law was initially intended to target people cooking crystal meth in a home with minor children. Now, prosecutors are creatively using the legislation to target women who use drugs while pregnant. The incarceration of those drug addicts who are pregnant or new moms is particularly drawing criticism from women's groups, according to Phillip Rawls's AP story.

TX Executes Killer for Gang Initiation Murder: Reuters reports Texas executed Larry Donnell Davis on Thursday night for the 1995 murder of Michael Barrow. Barrow was assaulted in his home by Davis and 4 accomplices as part of an apparent gang initiation. Davis and his accomplices beat Barrow with a lead pipe before stabbing him to death with a knife and an ice pick.

Convicted Sex Offender Strikes Again, Victim Only 16: Angel A. Perez Jr., a 32-year-old convicted sex offender, failed to register his new address with police. He also had several outstanding warrants for larceny, which would have qualified him for diversion programs for "nonviolent" offenders. Now, he's charged with raping a 16-year-old girl in a park near her home, an ordeal that lasted for around an hour, according to Brian Fraga's story for the Standard-Times. Repeat offenders are just that, and the only way to protect society from them is for them to be incarcerated for increasingly longer periods of time.

CA Drug Raids Net 21 Arrests, $5.6m in Marijuana: A four-month investigation culminated in a drug raid spanning 5 counties in California. Police seized 1700 marijuana plants worth an estimated $5.5m, processed marijuana worth $102,000, firearms, and $10,000 in cash. David Richie of the Sac Bee reports that all of the arrestees are illegal immigrants.