October 2008 Archives

Unraveling the Neurolaw Claims

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Neurolaw is all the rage these days. The lure to explain behavior and social norms such as free will under the lens of reductionist biology abounds. And there is no question that the wealth of information about brains and behavior has vastly increased during the past twenty years. Yet the disparity between what is truly known about the link between biology and human behavior and the normative claims populating legal and science scholarship is breathtaking. Often ignored is the extreme complexity of the human mind and the infancy of the methods used in examining brains and behavior. Several recent articles highlight this simple and important fact.

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Crime in Large Cities: A review of crime rates and economic conditions in large U.S. cities has determined, at least over the short term, unemployment and wages do not have an effect on the rate of violent crime. An AP story by Cheryl Wittenauer discusses the study, conducted for the Federal Reserve Bank by economist Thomas Garrett. The study did suggest that non-violent crimes do appear to follow economic conditions.

Crimes by Girls: A research bulletin from the U.S. Department of Justice reports that violent crimes committed by girls are not increasing. The Department's Office of Justice Programs created a Girls Study Group after a sharp increase in arrests of female juveniles in the 1990s to address the problem. The first report by the group is here.

Conviction Upheld for Rapist/Murderer:
The Iowa Supreme Court has upheld the conviction and LWOP sentence for Roger Bentley according to this AP story by Melanie Welte. Bentley was convicted in 2006 of kidnapping ten-year-old Jetseta Gage from her bedroom then taking her to a mobile home where she was raped before being beaten and finally suffocated to death. Although Bentley claimed that there was insufficient evidence to identify him as the kidnapper, the Court's decision describes the overwhelming evidence of guilt in this case. Iowa does not have a death penalty.

Texas Murderer Executed: Gregory Wright, a homeless vagrant who stabbed to death a woman who helped him, was executed by lethal injection in Huntsville, Texas yesterday. An Associated Press story by Michael Graczyk reports that Wright proclaimed his innocence and blamed the murder on another homeless man, before being pronounced dead in a process that took nine minutes.

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A Hypothetical Obama v. McCain: On October 20, 2008 Election Law @ Moritz, with co-sponsors AEI-Brookings Election Reform Project and the Supreme Court Institute at Georgetown's law school, met to conduct a simulated Supreme Court adjudication of a hypothetical case involving this year's election. In the hypothetical, Colorado turns out to be the decisive state in this election, with McCain receiving 265 electoral votes and Obama receiving 264 electoral votes. The problem: A torrential storm occurred in Denver on Election Day. As a result, the city clerk notified polling places to stay open two extra hours. Colorado’s Secretary of State (an elected Republican), filed a lawsuit in state district court asking the court to enjoin the extension of polling hours. The Secretary argued that Colorado law has no provision to permit any extension beyond the regularly scheduled closing time. When the courts failed to grant an injunction, the Secretary issued an administrative order, invoking his statutory authority under Colorado Revised Code, that certified results from Denver must not include any of the provisional ballots cast by individuals arriving at the polls after the set closing time. Election Law Blog had this post, which linked to the details and provided an "early analysis" from Ned Foley. Also, on Election Law @ Moritz, Chris Elmendorf provided his own thoughts on the Equal Protection portion of the Court's analysis. The outcome of the hypothetical adjudication? According to Foley, "The Court ruled that the political question doctrine was inapplicable in the context of the particular case and thus did not deprive the Court of jurisdiction to consider the Equal Protection and Article II questions presented. On the merits, the Court rejected both the Equal Protection and Article II challenges to the (hypothetical) Colorado Supreme Court decision."

Posts on the Death Penalty: At Sentencing Law and Policy Doug Berman has two posts on the Death Penalty. Yesterday, Berman had a brief post on a special issue of The Justice System Journal. The issue is not available for free on-line, but Berman promises to try to track down some of the following articles: "Why So Long? Explaining Processing Time in Capital Appeals"; "Proportionality Review and the Death Penalty"; and "Starving the Death Penalty: Do Financial Considerations Limit Its Use?" Today, Berman asks what a new President could mean for the federal death penalty? While he notes that both candidates support the death penalty, Berman theorizes that the choice of Attorney General will influence the operation of the death penalty.

Proof Reading: Howard Bashman at How Appealing has a quick post on today's New York Times "For the Record." Apparently in a Wednesday article about Fordham University's plan to give an ethics prize to Supreme Court Justice Stephen G. Breyer, the Times misspelled Justice Ruth Bader Ginsburg's name. The Times stated: "The Times has misspelled her name at least two dozen times since 1980; this is the first correction the paper has published."

Hamdan's Sentence Will Not Be Extended: At Wall Street Journal Blog, Dan Slater provides information on a military judge's rejection of the Bush administration’s move to extend Hamdan’s time in detainment. Wall Street Journal reporter Jess Bravin has this report. The military judge's two-paragraph order stated he had read the filings and legal citations, as well as reviewed the sentencing hearing transcript, but would still deny the motion. The Wall Street Journal reports that the government maintains it may continue to detain Hamdan indefinitely, on grounds that he remains an “enemy combatant” who could take up arms against U.S. forces.

Attorney Conflicts and Partitions

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Today, Cal. Supreme decided In re Charlisse C., S152822. This is a dependency case, but it has implications for criminal cases, such as a case where the public defender represents the defendant and has previously represented a witness for the prosecution. The court discusses the difference between concurrent and successive representation of conflicting interests. It also discusses the agency's division of itself into separate units and when the units are separate enough to avoid the problem.

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An Acorn Whistleblower Testifies in Court: According to an editorial by John Fund from the Wall Street Journal, a former employee of Acorn testified in a Pennsylvania state court that the group's quality-control efforts were "minimal or nonexistent" and largely window dressing. Acorn is a "community organizing" group that claims it will deploy 15,000 get-out-the-vote workers on Election Day. The employee, Anita MonCrief also said that Acorn was given lists of potential donors by several Democratic presidential campaigns, including that of Barack Obama, to troll for contributions. The Obama campaign denies it "has any ties" to Acorn, but according to the article Mr. Obama's ties are extensive.

Man Set To Die Today For '97 Killing In DeSoto:
According to a story by Steve Thompson from the Dallas Morning News, Gregory Wright, a former homeless man, is to be executed for the March 21, 1997 slaying of Donna Duncan Vick. An appeal claiming proof of Wright's innocence was turned down Tuesday by the Texas Court of Criminal Appeals. Wright insists that he wasn't involved in Vick's slaying and that his friend John Adams, also on death row, was solely responsible.

Long Odds on Death Penalty for Murderer of UNC Student: An AP story reports that prosecutors face long odds when trying to persuade jurors to recommend a death sentence for Demario Atwater, the older of two men charged with murdering 22-year-old Eve Carson, student body president of the University of North Carolina. The last time a jury delivered a death sentence in Orange County, N.C. was 1973. Atwater and Laurence Lovette, both habitual criminals, have been charged with first-degree murder and other counts, including armed robbery and kidnapping in Carson's death. Lovette is not eligible for execution since he was a juvenile at the time of her killing.

Two Murders, Too Many

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A little over a year ago, we noted the case of Jesus Jihad, formerly Jesse Crisp, who committed murder in 1973, was let out, committed rape in 1993, got out, and then killed again. He stabbed his wife to death and also wounded her 15-year-old son and her sister. Today in Oakland, California, he was sentenced to life without parole, reports Henry Lee of the SF Chron. That will sharply limit the targets of any more crimes of violence, but not eliminate the possibility altogether.

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The Press and the Federal Courts: Today's news seems to be all about how the Presidency can change the federal courts. Over at Wall Street Journal Blog Ashby Jones has a post comparing Monday's Wall Street Journal article by Stephen Calabresi, with today's New York Times article by Charlie Savage. Yesterday we posted information about Calabresi's article, which theorized what could happen to the courts if Obama is elected. Today, the New York Times focused on what Bush has done to the Federal Judiciary - most specifically, the Eighth Circuit. Ashby's blog post takes a "closer look." Also, over at NRO, Ed Whalen provides his own thoughts on "Obama and the Supreme Court: What's really at stake."

Kudos: Joe Palazzolo at BLT has two posts recognizing jobs well done. This one is on the USAG's annual awards, and this one is on DC AUSA June Jeffries, who is retiring after 25 years prosecuting people who kill children.

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Homeless Sex Offenders in Georgia: At Sex Crimes, Corey Rayburn Young posts on yesterday's decision from the Georgia Supreme Court that a strict sex offender law was unconstitutional because it failed to tell homeless offenders how to comply with the new law. The law was designed to keep sex offenders away from children by monitoring how close they live to schools, parks and other spots where children gather. Critics of the law argued it was unconstitutional because it unfairly subjected offenders to a life sentence if they were homeless and could not register a home address. Young agrees with the verdict, but opines that "a persuasive case could have been made that a homeless sex offender could have been offered compliance through some alternative reporting requirement (or simply excused from the address change requirement). It did not necessarily follow that the offender be excused from all registration requirements."

Another Take on Calabresi's Editorial: Today's News Scan gives a summary of Professor Steven Calabresi's op-ed on the Obama presidency, an editorial that Doug Berman has also commented on over at Sentencing Law and Policy. While we believe Professor Calabresi, a co-founder of the Federalist Society, raises legitimate concerns in his article, Berman believes the "wacky" op-ed takes "the anti-Obama rhetoric up a notch." He posts that while he expected similar rhetoric from McCain and Giuliani, he is "very disappointed to see this kind of silly over-the-top rhetoric coming from law professors."

Law Review Articles on Sentencing: Hat tip to Berman for pointing out two new articles on sentencing in the October 2008 issue of the William & Mary Law Review. For those interested in AEDPA, Giovanna Shay & Christopher Lasch have an article titled "Initiating a New Constitutional Dialogue: The Increased Importance Under AEDPA of Seeking Certiorari from Judgments of State Courts." And, David C. Hall discusses the Sixth Amendment after Booker, Rita and Gall with his Note "Death by a Thousand Cases: After Booker, Rita, and Gall, the Guidelines Still Violate the Sixth Amendment."

"Nonviolent" Offender


"Documents show that a suspect in the Chicago murders of three members of Jennifer Hudson's family was arrested for drug possession in June, but state officials didn't revoke his parole," reports John O'Connor for AP.

At this point, of course, William Balfour is only a suspect and has not been charged with, much less convicted of, the murders of three people, including a 7-year-old boy. So, we will not jump to the conclusion that this case illustrates that the "nonviolent offenders" that the hand-wringing crowd assures us can be safely released includes people who will commit some horrible crimes if they are released. It may very well turn out to illustrate exactly that at some point in the future, and we will keep an eye on it.

Update: A later, more detailed story (at the same link) discloses that Balfour's original offense of conviction was indeed violent -- attempted murder and carjacking -- although the parole violation was drug possession. A new warrant for his arrest issued Saturday alleged "possessing a weapon and failing to attend anger management counseling and a substance abuse program."

News Scan

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Rules Limiting Sex Offenders On Halloween Blocked: AP writer Jim Salter reports that a federal judge has ruled that parts of Missouri's new law restricting registered sex offenders' actions on Halloween night are unenforceable, saying the law lacked clarity and could cause confusion for sex offenders and those charged with enforcing it. The law, signed by Gov. Matt Blunt in June, requires that sex offenders avoid all Halloween-related contact with children from 5 p.m. to 10:30 p.m. on Oct. 31. It allowed sex offenders to leave home on Halloween night if there is "just cause" such as work or an emergency. The judge upheld two provisions: the provision requiring sex offenders to keep their porch lights off; and the requirement for a sign that reads, "No candy or treats at this residence."

Killer Of 7-Year-Old Girl to be Executed Today According to a story by AP writer Michael Graczyk, a former plumbling supply salesman convicted of snatching a 7-year-old girl from his neighborhood outside Houston then strangling and raping her and hiding her body in his attic was headed to the Texas death chamber today. Eric Nenno confessed to abducting and attacking Nicole Benton two days after she disappeared from her father's birthday party. Nenno will be the 13th Texas inmate executed this year and the fourth this month in the nation's most active death penalty state. Another execution is scheduled for Thursday.
Update: Post-execution story is here.

Obama's 'Redistribution' Constitution: A Wall Street Journal editorial by Steven G. Calabresi suggests that the net result of Barack Obama winning the presidency will be to restore to the left a majority on the D.C. Circuit court, "the nation's most important regulatory court of appeals." According to the article, nine of the 13 other circuits (not including the already left Ninth Circuit) will probably swing to the left if Mr. Obama is elected. There is also a widespread expectation that the next president could make four appointments to the U.S. Supreme Court in his first term, with maybe two more in a second term. Calabresi, a Northwestern law Professor asserts that "the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation's courtrooms."

Blog Scan

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Constitutional Comments On The Vice Presidency: At Bench Memos, Matthew J. Franck posts his thoughts on Instapundit Glenn Harlan Reynolds' short op-ed in today's New York Times. The op-ed discusses questions about the constitutional status of the vice presidency that emerged during the Palin/Biden debate. Reynolds discusses whether any executive action taken by the vice president is constitutional. For Franck, the Reynolds piece "displays one of the signal failings of politico-legal argumentation today: the promiscuous pronouncement that things that bother us are 'unconstitutional.' " The problem for Franck is that Reynolds overstates the importance of the constitutional question while misunderstanding the law that he claims supports his argument. Franck writes: "The best that Reynolds does here is this: 'The Supreme Court has held on more than one occasion that legislative officials cannot exercise executive power.' That won't really do. Every such 'occasion' that I can think of concerned 'legislative officials' who answer to the Congress because they are its agents and creatures. Not so the vice president." Jonathan Adler also briefly posted on the piece over at Volokh Conspiracy.

NY Times Editorializes On California Prisons: On Saturday, Doug Berman posted on this New York Times editorial discussing California's prison system. While Berman uses the editorial to criticize leadership's failure to embrace "to new ideas and distinct reform paradigms" for prisons and sentencing, the editorial staff at the New York Times focuses more on problems with California's parole system. The Editorial Staff does not like that parole officers send more people back to prisons than the courts. Especially when less than half of the parolees return for "for technical violations like missed appointments or failed drug tests."

News Scan

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Death-Penalty Issue Surfaces In Chief Justice Race: According to a story by AP writer Katie Oyan, the politically charged issue of the death penalty has surfaced in the nonpartisan race for chief justice of the Montana Supreme Court, with one candidate acknowledging he would have to remove himself from certain cases due to his opposition to capital punishment. Helena attorney Ron Waterman has no qualms about sharing his anti-death penalty views. Montana Attorney General Mike McGrath, however, said it would be inappropriate for a potential justice to take sides on issues that could come before the court. Waterman has said that he would disqualify himself from hearing death penalty cases if he is elected.

S.F. Gang Injunction Zone Controversial: A story by Chronicle staff writer Demian Bulwa reports that 29 of the 32 men named in City Attorney Dennis Herrera's "safety zone" civil injunction are complaining. The 29 men claim they can't be seen with other suspected Norteño gang members in the zone, even if they are cousins or brothers. Nor can they wear red, the color claimed by Norteños, or hang out on the street after 10 p.m. The civil action against the Norteños was by far the broadest, extending over 60 square blocks in the Mission District. Herrera faced criticism from defense attorneys, including Public Defender Jeff Adachi, and gang outreach groups. They said the city attorney took advantage of some features of civil court - such as the lack of a right to an attorney at no cost - and gave police too much power. Chronicle writer Bulwa co-wrote this story last June about the then-proposed expansion of the 60 block injunction.

Murder Suspect Will Defend Himself At Death Penalty Trial: Stefano Esposito from the Chicago Sun-Times reports that the man accused of killing pharmaceutical rep Nailah Franklin last year will be allowed to represent himself at trial in a case in which prosecutors plan to seek the death penalty. Cook County Judge Thomas V. Gainer Jr. granted Reginald Potts' request Friday, but only after repeatedly warning Potts he was making a big mistake. Nailah Franklin, 28, disappeared in September 2007. Her partly decomposed body was found 10 days later in a wooded area of Calumet City. The State is seeking the death penalty because the murder was "cold and calculated" and occurred while Potts was committing other felonies against Franklin.

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Uighurs Denied en banc review: SCOTUSblog has been keeping us updated on the legal battle surrounding District Judge Ricardo M. Urbina’s Oct. 7 ruling that the 17 Chinese Muslim Uighurs be brought to the U.S. and temporarily released into the country. Today, Lyle Denniston posts that the en banc D.C. Circuit Court refused to review a three-judge panel’s order postponing their transfer. The order denied rehearing en banc without an opinion. Judges Janice Rogers Brown and Judith Rogers would have granted rehearing. As it currently stands, District Judge Urbina's order will be reviewed in November, with oral argument set for November 24th. The Justice Department also filed its merits brief in the case. Denniston reports the Government has argued "its agreement not to send the 17 Uighurs back to China, where they fear torture or death, did not bar it 'from exercising its sovereign power' to deny them entry into the U.S. mainland."

Justice Thomas Says It's The Brief, and Not Oral Argument That Wins A Case: At Wall Street Journal Blog, Dan Slater posted: "Justice Thomas to Judges: Shut Up and Listen." Yesterday, Justice Thomas participated in a panel discussion on professionalism at the 11th Circuit Appellate Practice Institute. There he stated, “I believe quite strongly we, as judges, need to take the approach we’re here to solve difficult problems, not debate with lawyers." Justice Thomas also told his audience that it is the brief, and not the oral argument, that will win a case. Another piece of worthy information -- keep it short. Clint Williams of the Fulton County Daily Report had this story.

Sixth Circuit Rules On Sufficient Probable Cause In Child Pornography Case: At Volokh Conspiracy Orin Kerr has a post on United States v. Hodson, a Sixth Circuit decision from September 2008. Kerr's post provides a summary of the case - its facts and its holding - and then gives some commentary on whether the Sixth Circuit correctly held police had not established probable cause to search the defendant's home for child pornography. Apparently, an undercover agent had been using internet messaging to communicate with a man who "favored young boys, liked looking at his nine- and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew." When the officers obtained a search warrant, officers asked to search his home for child pornography. Child pornography was uncovered and the defendant was convicted. The Sixth Circuit reversed, holding that even though the detective had established probable cause for one crime (child molestation), he had not established probable cause for possession of child pornography. Kerr's commentary provides his thoughts on why he isn't sure the holding is correct.

Escape and Trial

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On Monday, the California Supreme Court will announce its decision in the case of People v. Concepcion, S146288:

This case presents the following issues: (1) Is a defendant who escapes from custody after trial commences voluntarily absent from trial, permitting trial to continue in his absence once he is rearrested and held in custody? (2) If such flight and rearrest does not constitute voluntary absence, is proceeding with trial in such circumstances subject to harmless error analysis, or is it a structural error requiring reversal?

The Court of Appeal opinion is here. The defendant had fled far enough before he was recaptured that he could not be brought back to attend without delaying the trial.

Update 10/27. The Cal. Supreme opinion (6-1-0) is here.

A divided Court of Appeal reversed, reasoning that “[defendant’s] absence ceased to be voluntary once he was returned to custody.”
To the contrary, we hold that an escapee’s voluntary absence includes the time reasonably required to return him to court after apprehension.

Stay in Troy Davis Case

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AP reports that the Eleventh Circuit has issued a stay in the Troy Davis case, previously discussed in these posts:

The Troy Davis Stay
Troy Davis and the Georgia Parole Board
Troy Davis Goes to SCOTUS
Residual Doubt and Commutation
AEDPA, Innocence, and the Davis case

ABA Florida DP Report, 2 Years Later

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SL&P points us to this article by Ron Word of AP in Jacksonville, Florida, regarding the nonimpact of the ABA report on Florida's death penalty, issued two years ago. The first paragraph of the article refers to the report as produced by an "independent panel" but the second paragraph identifies it as an ABA product. Mr. Word is apparently unaware that in matters of criminal law the ABA is totally in the tank for the defense side.

The story quotes the chairman of the panel as saying that politicians' fear of being labelled soft on crime is responsible for the recommendations not being enacted. "But some legislators counter that many of the recommendations are unconstitutional and accuse the panel of making them with an anti-death penalty bias." The first criticism is doubtful, but the second is a bull's-eye.

The full report is here. Eleven recommendations are listed on pages ix to xii in the executive summary. Care to guess how many of the 11 are directed to problems as seen by the defense side and how many are directed to problems as seen by the prosecution side? You guessed it: 11-0.

This is what social scientists call "statistically significant." Or, in Batson v. Kentucky terms, it establishes a prima facie case of bias, calling upon the ABA to explain itself.

Doug Berman says the take-home lesson is "that that death penalty studies [are] ineffective if not attuned to political realities." I think the simple truth is that Florida legislators have recognized this agenda-driven study by a defense-dominated organization for exactly what it is. If people really wanted to improve the system, they would set up study groups that are genuinely balanced. We haven't seen one yet.

News Scan

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Court Stops Scheduled Execution: AP writer Michael Graczyk reports that the Texas Court of Criminal Appeals stopped the scheduled execution of convicted killer Bobby Wayne Woods today after lawyers raised new claims that the 42-year-old man is mentally retarded and ineligible for the death penalty. Woods had been set to die this evening for the 1997 slaying of his ex-girlfriend's 11-year-old daughter. He had abducted her and her brother from their home in Granbury, a city southwest of Fort Worth. Two of the court's judges, Sharon Keller and Lawrence Meyers, voted to deny the reprieve, which was issued more than six hours before Woods could have been taken to the death chamber. Woods would have been the second Texas prisoner executed this week and 13th this year.

Mom Gets 25 Years in Prison in Beheading Murder of Toddler Daughter: An AP story reports that a Kansas judge handed down a 25-year prison sentence for the mother of a 3-year-old girl who was beheaded and for years was known only as "Precious Doe." Michelle Johnson pleaded guilty last year to second-degree murder for her role in the 2001 killing of her daughter, Erica Green. Johnson's boyfriend at the time, Harrell Johnson, whom she later married, was convicted of first-degree murder earlier this month in the Kansas City slaying. He faces a life sentence. Our October 8th News Scan reported that although "Precious Doe" had been killed in 2001, it took 4 years to identify her body.

Police Officer Shoves Finger in Gun to Stop It Being Fired at His Colleagues: A story from the FOX News reports on a story in today's Australia's Herald Sun. The story claims that a policeman’s finger stopped the officer's gun from being fired at his colleagues. The gun had been seized by a man they were trying to arrest. Apparently, James Lyle Rakatau fled police as they attempted to arrest him. Senior detectives Matthew Flood, Travis Merlo and Adam Radley gave chase until Flood tackled Rakatau as he tried to climb a fence. In the struggle, Rakatau seized Flood's gun. Flood got both hands on the revolver and held the cylinder so it wouldn't spin and fire. It was only Flood's index finger that stopped the weapon firing as Rakatau tried a number of times to pull the trigger.

Rudy on Obama on Mandatory Minimums

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It appears that the crime issue is finally being seriously raised in the presidential campaign. This story from Alexander Mooney at CNN reports that Rudy Giuliani has recorded a "robocall" saying "Obama opposes 'mandatory prison sentences for sex offenders, drug dealers, and murderers.'" The story further says the Obama campaign had no immediate comment but quotes the campaign web site with a statement that appears to be a blanket opposition to all mandatory minimums.

Mandatory minimums are a controversial topic, and there certainly are some individual statutes in this area that need to be reexamined. However, some mandatory minimums are clearly necessary. In California many years ago, we actually had to enact a statute known as "use a gun, go to prison" to stop judges from granting probation for armed robbery. Such statutes should not be necessary, but long, painful experiences demonstrates that they are.

A blanket opposition to all mandatory minimums, including for murder, is indeed an extreme position and quite legitimately characterized as "soft on crime."

News Scan

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San Francisco Weighs Decriminalizing Prostitution: AP writer Evelyn Nieves reports that SF would become the first major U.S. city to decriminalize prostitution if voters next month approve Proposition K - a measure that forbids local authorities from investigating, arresting or prosecuting anyone for selling sex. The ballot question technically would not legalize prostitution since state law still prohibits it, but the measure would eliminate the power of local law enforcement officials to go after prostitutes. Proposition K has been endorsed by the local Democratic Party. But the mayor, district attorney, police department and much of the business community oppose the idea.

Mom Takes Stand In Death Penalty Case: A story by the Times Tribune staff writer Erin L. Nissley reports that the mother of an infant killed in June 2007 took the stand at her ex-boyfriend's murder trial to tell jurors about the events surrounding the baby's death. Michael Blakey is facing first-and third-degree murder charges in the infant's death. The infant suffered massive skull fractures and spinal hemorrhaging. Medical experts believe the baby was slammed repeatedly into a floor or wall. If convicted of first-degree murder, Blakey faces the death penalty.

Firing Squad Not Torture, Says Court: According to a story by Australia's Age writer Tom Allard, Indonesia's highest court has ruled that death by firing squad does not amount to torture. The judge observed that there was "no method of execution without pain". However, the majority of judges in 2007 urged that the death penalty be amended so it is used only in special cases.

Robber Escapes With Cash, Leaves Thumb: An AP story reports that a man suspected in an armed robbery at an alleged brothel in Washington's Columbia Heights neighborhood left some evidence at the scene - his thumb. Police said 22-year-old Bryan Perez and an accomplice made off with hundreds of dollars in cash in the Oct. 11 raid. According to charging documents, one of the victims took control of Perez's silver machete and hacked off his right thumb. About two hours after the robbery, Perez went to an emergency room. Police caught up with him and brought the severed thumb to the hospital.

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Analyzing Justice Thomas' Thoughts On Originalism: Yesterday we had a post on Justice Clarence Thomas' lecture to the Manhattan Institute. Jack Balkin, at Balkinzation, posted the same excerpt from the Wall Street Journal, and offered his thoughts on whether Justice Thomas was embracing "originalism based on original intentions rather than one based on original meaning." Balkin would find a move surprising, since many have assumed Justice Thomas to be "a devotee of original meaning originalism." Balkin's post discusses the difference between original meaning originalist and an original intentions originalist (say that five times fast) as well as the significance of the distinction.

Attorneys For Uighurs Seek en banc Review: For those following the legal battles of the Uighurs, 17 Chinese Muslim Guantanamo Bay detainees, Lyle Denniston provides an update on the latest filing. Today, attorneys for the Uighurs requested en banc review so the D.C. Circuit Court could lift yesterday's ban on the detainee's release. The petition also suggested the Court review on the merits without waiting for further action before the panel. At Blog of the Legal Times, Tony Mauro has this post summarizing yesterday's order. Two judges, over the dissent of Judge Rogers, granted the Government’s motion to stay the release pending appeal and set oral argument for November 24. Attorneys for the Uighurs argued in today's petition that although the three-judge panel ordered expedited review, en banc review was likely and should begin without further delay.

Societal Cost of Leniency for Drunk Driving:
At Sentencing Law and Policy, Doug Berman posts on an article in the Milwaukee Journal Sentinel that "reinforces [Berman's] concerns about the harmful consequences and costs of undue sentencing leniency being shown to repeat drunk drivers." Both his post and the article lay out the details of a man who had been convicted of drunk driving "at least" nine times before he received a tougher sentence for his tenth offense. The Sentinel estimated the man's drinking and driving has cost nearly $365,000, with nearly $240,000 coming from tax dollars of insurance payouts. The article, and Berman's post, provide a graphic documenting how the Sentinel calculated the economic cost. In addition, Berman's post provides links to his thoughts on how we should punish drunk driving.

News Scan

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Court Won't Consider Neb. "Rape" Testimony Issue: According to an article by AP press writer Jean Ortiz, the U.S. Supreme Court has refused to hear an appeal involving a case in which a Nebraska judge banned anyone from saying "rape" in a sexual assault trial. Lawyers for Tory Bowen argued that Lancaster County District Judge Jeffre Cheuvront violated their client's constitutional rights by barring her from using such words as "rape kit" and "victim" during her testimony in the trial. The judge said he banned the language because he was concerned about the accused's right to a fair trial.

Supreme Court To Hear Case On Immigrants' Use Of Fake IDs: LA Times writer David G. Savage reports that the Supreme Court will decide whether the government can use new identity theft laws to send illegal immigrants using fake identification cards to prison, or to force them to leave the country. Kent provided his own thoughts on the case yesterday. Judges are divided over whether immigrants can be punished for "knowingly" stealing the identity of another person whenever they are caught using a Social Security number that is not their own. Often, the immigrants say they thought they had bought phony ID cards, not numbers assigned to real people.

Is High Court Gearing Up to Review Discrimination in Capital Punishment? Dan Slater from the Wall Street Journal Law Blog reports that yesterday, Justices Stevens and Thomas squared off over the Court’s denial of cert in Walker v. Georgia, a capital case. The issue is to what extent must a court, in a capital case, carry out a proportionality review to ensure that arbitrariness and discrimination don’t figure in a sentence of death. The blog states that the justices might be preparing to review whether the death penalty is being applied in a discriminatory way, an issue the court has not taken up for two decades.

200 Sex Assault Cases Miss Prosecution Deadline Due to Untested Rape Kits: LA Times writer Richard Winton reports that according to a city audit released Monday, as many as 200 potential sexual assault cases have gone without prosecution because LA police officials failed to meet legal deadlines to test DNA evidence. The evidence might have identified a suspect. According to the audit by City Controller Laura Chick's office, the LAPD has a backlog of 7,000 sexual assault test kits that have not been examined. Of those cases, 217 are beyond the 10-year statute in which to prosecute the crimes.

Tough as a $3 Steak

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Tony Mauro's Courtside column has more reaction to Chief Justice Roberts' detective-novel-style dissent from denial of certiorari in Pennsylvania v. Dunlap. Surprisingly, with all the speculation over why the opinion is written in this unusual style, no one else seems to have picked up on what seems to me to be the obvious reason.

Appellate judges tend to live in ivory towers. They need to have more respect for the practical experience of cops on the beat in gritty neighborhoods. The medium is the message.

News Scan

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Crime Spike Linked To Prop 36: According to an article from the Ventura County Star by Kathleen Wilson, arrests for drug and property crimes have increased since California voters adopted Proposition 36, eight years ago. The measure initiated a sweeping program to send nonviolent drug offenders into treatment instead of jail. A report issued earlier this week by researchers at UCLA shows that felony drug arrests between 2001 and 2005 increased by 30 percent and misdemeanor drug arrests by 23 percent after declining in the previous four years. Proposition 36 was sold to the voters as a more sensible way to treat first- and second-time drug offenders rather than putting them in jail. But many of the clients turned out to be people with 10 or more years of addiction to narcotics, not small-time marijuana users, drug researchers said.

Lawyer Says Jail Death Wasn't Suicide
: AP Special Correspondent, Linda Deutsch, reports that Mark Geragos, lawyer for accused murderer Kazuyoshi Miura, believes that his client's jail cell death was not a suicide. Police say Miura hanged himself in his cell with a piece of his shirt, but a pathologist hired by Geragos to examine the body found deep tissue injuries on his back that indicated a beating. The pathologist concluded the injury could not have been caused by a self-inflicted hanging. "All of this is consistent with a murder," Geragos said. The Los Angeles District Attorney's Office is investigating Miura's death. His body was found less than 24 hours after he was returned to the United States to stand trial for the murder of his wife 27 years ago. Previous posts of this case are here and here.

Cert. Granted on Agg. ID Theft

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18 U.S.C. § 1028A(a) defines the crime of "aggravated identity theft." "Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years." (Emphasis added.)

Among the listed offenses in (c) are false statements regarding citizenship and immigration matters. So does "knowingly" require that the person know the "means of identification" belong to someone else? I would think so, especially since the crime is "identity theft."

The Eighth Circuit said no in Flores-Figueroa v. United States, No. 08-108, and the Supreme Court today took it up. Defendant admitted he used fake IDs but says he didn't know the numbers on them belonged to real people. The Government did not dispute that the question was "certworthy" but said another case should be the lead. SCOTUSblog has lots of coverage. This is Kevin Russell's case.

This is the only cert. grant today.

How to Read the Constitution

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The WSJ has this excerpt of Justice Clarence Thomas's lecture to the Manhattan Institute Friday. He notes the fundamental question of judicial review is "what restrains us from imposing our personal views and policy preferences on our fellow citizens under the guise of Constitutional interpretation?"

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

The Bradley Effect

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California political consultant Sal Russo has this op-ed in the WSJ, making one more game try at refuting the persistent myth of the "Bradley effect." George Deukmejian's come-from-behind win for California Governor in 1982 was based on issues, especially crime. Pollsters screwed up by not considering the effect of absentee voting.

News Scan

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More Appeals for Baze & Bowling: After losing their U.S. Supreme Court challenge to lethal injection last April, double murderers Ralph Baze and Clyde Bowling, Jr. may be down to their last appeal. A story by Beth Musgrave in today's Lexington Herald Leader reports that the Kentucky Supreme Court heard oral argument yesterday on a claim by Baze and Bowling that the state's execution protocol is invalid because it was not adopted as an administrative procedure, which would have allowed public comment. The court is also considering Baze's claim that a change of venue for his trial, due to pre-trial publicity, was improper. The prosecution notes that Baze's counsel did not object at the time.

Execution Protocol in North Carolina Challenged: A story on NC Wanted reports that lawyers for death row inmates and the state argued yesterday over whether North Carolina's lethal injection protocol is unconstitutional. The Superior Court Judge hearing the case announced that he will not rule until the state Supreme Court decides if the state medical board can discipline doctors who participate in executions. The Supreme Court of North Carolina will hear arguments in that case, Department of Corrections v. Medical Board, on November 18th.

Blog Scan

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Supreme Court Lifts Ohio Federal Judge Voter Order: At SCOTUSblog, Lyle Denniston reports that today the Supreme Court lifted an order that would have required Ohio's Secretary of State to verify voter registration across the state before the November election. The per curiam order can be found here. The Ohio Republican Party had obtained a court order from an Ohio district court forcing its Secretary of State to comply with Section 303 of the Help America Vote Act of 2002. Yesterday, the Secretary of State petitioned the Court to stay the order. The Supreme Court found that because the GOP was "unlikely to prevail on the question of whether Congress has authorized the District Court to enforce Section 303 in an action brought by a private litigant to justify the issuance of a [Temporary Restraining Order]." Yesterday's Blog Scan had this post on the challenge. Jonathan Adler at Volokh Conspiracy also has a post with his thoughts on Brunner v. Ohio Republican Party.

The Chief Justice's Dissent in Pennsylvania v. Dunlap: Supreme Court blogs have been commenting on the opening paragraphs Chief Justice Robert's Dunlap dissent this week. The first two paragraphs read like a detective novel, and the rest of the dissent follows traditional "opinion-speak" style. Tony Mauro at Blog of the Legal Times has this post, SCOTUSblog had this post, the Volokh Conspiracy has this post, and even the ABA Journal has chimed in with this story. Dunlap involved review of "Whether the observation by a trained police officer of two individuals exchanging currency for a small unknown object creates sufficient probable cause of a drug transaction to permit a warrantless search." The Court denied review on Tuesday. In Orin Kerr's post at the Volokh Conspiracy he wonders why the Chief Justice adopted the crime noir style to open his dissent. He says he "can't be sure; perhaps it was just to be entertaining." Check out the comments to see what our own Kent Scheidegger believes to be the purpose of Roberts' new style.

New Sentence For Hamdan Sought By DOJ:
At Wall Street Journal Blog Dan Slater reported that the Justice Department filed a motion on September 24 requesting that Hamdan's sentence be reconsidered. The government released the document yesterday and Jess Bravin, at Wall Street Journal Online, had this story today. Apparently, the government is claiming the the military judge lacked authority to credit Hamdan for the time he served in pretrial confinement. Without this credit Hamdan could serve five more years. Gitmo's Chief prosecutor, Col. Lawrence Morris, claims that, unlike courts-martial, military commissions cannot credit defendants for time served. Hamdan's is currently scheduled for release on December 31.

New Law Review Article on Supreme Court's Death Penalty Actions: Yesterday, Doug Berman posted on his Sentencing Law and Policy Blog that Ohio Northern University Law Review had accepted his article, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'" for publication. Berman posts that his article addresses his familiar "grumblings" with the Supreme Court's tendency to consider on the merits too many death penalty cases and too few other cases, but will provide more footnotes, data and ideas.

Recall Effort Terminated

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Here is another scrap of good political news. Don Thompson reports for AP, "A powerful union representing California prison guards on Thursday dropped its recall campaign against Gov. Arnold Schwarzenegger, saying it will instead focus on ballot questions and pointing out that he doesn't have much time left in office anyway."

Giving credit where it is due, we are pleased to see that an organization that made a really dumb decision realized how dumb it was and stopped. That doesn't always happen.

A little later in the story, we find out the news isn't quite as good as we thought from the first paragraph. The union's ballot measure efforts will not be focused on the criminal justice measures but instead on preserving the gerrymandering that has been such a large factor in making the California Legislature the dysfunctional mess that it is. Oh, well.

A Government of Men and Not Laws

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Jonathan Adler at VC has posted an excerpt of the debate where Senators McCain and Obama discuss what kinds of judges they will appoint. Nothing really new here. It reinforces what we already knew. Barack Obama will appoint judges who will decide cases according their personal opinion as to what is the "fair" result, and the people's right of self-government be damned. The only requirement is that they agree with him on what is fair. If the Democrats pick up a few more seats in the Senate, he will have carte blanche on appointments.

The Constitution is in the greatest danger in living memory.

News Scan

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Teen Convicted of Santa Barbara Street Killing: An AP article reports that a 15-year-old gang member has been convicted of voluntary manslaughter for the stabbing death of a teen during a daytime brawl on Santa Barbara's State Street last year. Juarez, who was tried as an adult, was also convicted of committing the crime for the benefit of a criminal street gang and use of a deadly weapon. Juarez faces up to 11 years in prison on the voluntary manslaughter count and another 11 years for the gang and weapon enhancements.

Rapist Receives Indefinite Prison Sentence: The AP reports that a jury has found that a convicted rapist from Spokane, WA should be detained indefinitely. Earlier, AP reporter Nicholas K. Geranios, reported that Coe had continued to deny committing any sexual offenses, despite extensive evidence to the contrary. The decision will keep Coe in a sex predator commitment center in the Puget Sound even though he finished a 25-year sentence.

Man Arrested In Texas For 3-Decade-Old Slaying: A story from the AP reports that San Diego police believe they have solved a 36-year-old murder with the help of an intern assigned to the department's cold case unit. Police say 60-year-old Gerald Metcalf was arrested on suspicion of killing Gerald Jackson, who was found stabbed to death in January 1972 in his San Diego apartment. Lt. Terry McManus says an intern in the homicide unit re-examined the evidence, and investigators matched a fingerprint from the crime scene to Metcalf in January.

U.S. Supreme Court May Reinstate High School Drive-By Conviction: According to a story by the Seattle Times, the Supreme Court appeared likely Wednesday to reinstate the murder conviction of the driver in a gang-related drive-by shooting outside Seattle's Ballard High School in 1994. The 9th U.S. Circuit's ruling last March in Waddington v. Sarausad overturned the conviction because of unclear jury instructions. The jury instructions at issue concerned whether, in order to be convicted of second-degree murder, Sarausad had to know that the driver of the car, Brian Ronquillo, intended to use a gun and that someone could die as a result.

Texas Attorney General Calls For Stricter Monitoring Of Sex Offenders Online: A story from the Dallas Morning News by Dan McGraw reports that Texas Attorney General Greg Abbott has called for stricter monitoring of sex offenders on the Internet after a Dallas man was found running a "modeling and exotic dancer" business on MySpace.com. Clarence Augustine is a sex offender who had assaulted a 16-year-old girl in 1999 and was arrested Oct. 9 on an accusation of failing to register. Abbott unveiled a plan that would put restrictions on the Internet activity of sex offenders.

Blog Scan

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Ohio Election Officials Seek To Block Voter Challenging Rule: At SCOTUSblog, Lyle Denniston posts on an application for a stay filed last night in the Supreme Court, asking the Supreme Court to put a hold on a federal judge's order requiring election officials to verify voter registration rolls across the state. Denniston also provides links to the application, Brunner v. Ohio Republican Party, et al., 08A332, and its attached exhibit. The federal court order imposed a Friday deadline for Ohio’s Secretary of State to reprogram a statewide database. Republicans had complained that the state had failed to verify voter data as required by the federal Help America Vote Act. Tuesday, the Sixth Circuit refused to block the order. Rick Hansen at Election Law Blog posts on some thoughts of the en banc opinion. Ohio's application for a stay argues the order requires the Secretary of State's staff, and 88 county election boards to divert their attention from preparing for the Nov. 4 election, to a large undertaking to refashion the statewide voter database. According to Denniston, "Justice Stevens may act without asking state GOP officials to respond, or wait until there is a response. He also has the option of sharing a decision with his Court colleagues, or acting alone."

Last Night's Debate And A Poll On The Role of Supreme Court Judges:
Orin Kerr at Volokh Conspiracy blogs that a statement made last night by Barack Obama about the type of Justice he would appoint brought to mind this interesting poll from the Rasmussen Reports. One of the questions in the survey: "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" drew responses reflecting a sharp difference between McCain and Obama supporters. "While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree."

Impeachment Counsel Appointed For Inquiry Into U.S. District Court Judge Thomas Porteous:
David Ingram at Blog of the Legal Times has this post about a formidable new foe for Judge Porteous. Ingram reports the House Judiciary Committee has appointed Alan Baron, a partner in the D.C. office of Holland & Knight, for his impeachment inquiry. Baron was the House’s special impeachment counsel when lawmakers voted to impeach then-federal judges Alcee Hastings and Walter Nixon in the late 1980s. Judge Porteous is currently suspended from serving in the eastern district of Louisiana. Accusations against him include soliciting and receiving cash from lawyers with cases pending before him and committing perjury in his personal bankruptcy case. For more on Federal Judges Under Investigation check out Brooks Holland's post at CrimProf Blog discussing U.S. District Judge Samuel Kent's indictment for alleged federal sex crimes. Corey Rayburn Young at SexCrimes also has this post on Judge Kent.

Service of Process

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Nebraska's crackpot State Senator Ernie Chambers sued God last year. His suit was thrown out today for defective service of process, Nate Jenkins reports for AP. "The Almighty wasn't properly served due to his unlisted home address. "

Chambers is also known as the leader of the drive to abolish capital punishment in Nebraska.

"Chambers, who has served a record 38 years in the Nebraska Legislature, is not returning next year because of term limits." Thank God, even without an address.

Cunningham Aftermath

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In 1996, when Congress cracked down severely on habeas corpus petitions by prisoners who had already had one such review, it left an exception for "new rules of constitutional law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2244(b)(2)(A). Cunningham v. California, 549 U.S. 270 (2007), which applied the Apprendi line of cases to California's three-tier system of noncapital felony sentencing, is not a new rule for this purpose, the Ninth Circuit held in Wright v. Dexter yesterday. If it were new, it wouldn't be retroactive, for the same reasons that the Supreme Court held Ring v. Arizona is not in Schriro v. Summerlin, 542 U.S. 348 (2004), but the opinion didn't mention that.

The window of prisoners who get new sentencing proceedings or reduced sentences as a result of Cunningham is small.

Proposition 5 and Drug Courts

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The Stockton Record has this editorial on several of the California ballot propositions. Here is the portion on Proposition 5:

"This is a bad idea masquerading as a good law. And what it would do is undermine, more likely destroy, the highly effective drug court system we have now. This proposition is opposed by every Superior Court judge in San Joaquin County, the men and women who daily deal with the shattering results of drug abuse. Cost will be an immediate problem, with the requirement that $150 million be put into the Substance Abuse Treatment Fund to pay for the balance of this year and then $460 million, adjusted yearly for inflation, be allocated every year thereafter. This proposition would set up an untried experiment, create an entirely new oversight bureaucracy and even limit the ability of legislative intervention by requiring a four-fifths vote of the Legislature to change things. That's a nearly impossible threshold, as our recent experience with the two-thirds vote on the state budget demonstrates. We have drug courts, and they work. We don't need a costly new experiment. If changes are needed in drug court, it is the Legislature's responsibility to make them."

News Scan

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Mother of Missing Florida Toddler Makes Initial Court Appearance on Murder Charges: An article from the Fox News states that the mother of missing Florida toddler Caylee Anthony made her initial court appearance this morning on first-degree murder and other charges. The mother was indicted Tuesday afternoon on the charges by a grand jury after an exhaustive four-month-long investigation into her daughter's whereabouts. Caylee's body has never been found and she has been missing since mid-June. Anthony could face life in prison or the death penalty if convicted.

Death Row Inmate Is Confessed Killer But Denies Murders: The AP has this story of death row inmate Alvin Kelly from East Texas, who doesn't deny he committed a murder but insists he had no involvement in the murder spree he is charged with – where three people, including a 22-month-old child, were gunned down 24 years ago in East Texas. The former Tyler truck repair shop owner was executed Tuesday evening in Huntsville. He was the 10th Texas prisoner executed this year. The AP has this report on Kelly's execution.

Why The Supreme Court Matters In The Presidential Election: A commentary by jurist guest columnist William G. Ross of Cumberland School of Law, Samford University, states that American voters should carefully consider the candidates' positions and likely impact on the federal courts as the outcome of the 2008 election could profoundly influence the decisions of those courts, and especially the US Supreme Court, for decades to come. Three “liberal” Justices are likely to resign because of retirement and health problems. The replacement of even one of these Justices with a more “conservative” Justice could decisively alter the Court’s decisions on a multitude of issues. Judicial issues are too important to ignore in a presidential campaign, he says. According to Ross, the behavior of individual justices is unpredictable and most voters should be able to make intelligent general assumptions about how McCain or Obama nominees would rule on a wide range of critically important subjects. Ross concludes, voters therefore should carefully consider how the election will affect judicial decisions.

Houston Jury Gives 99 Years In Grisly Murder: Brian Rogers from the Houston Chronicle reports that Timothy Shepherd was sentenced late Tuesday to 99 years in prison and a $10,000 fine, the maximum punishment for the murder of former girlfriend Tynesha Stewart, whom he strangled and dismembered before burning her remains on two barbecue grills in March 2007. Prosecutor Marie Primm said she was satisfied with the verdict and noted that 99 years and a life sentence for murder are essentially the same. With either, Shepherd is eligible for parole in 30 years.

Canada Election

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Here is some good election news for those badly in need of some. Unfortunately, it is north of the border.

The Conservative Party won the election in Canada, increasing its representation although still short of an outright majority. "The outcome saw the Liberals sink to their lowest level of popular support since the election of 1867," according to this report in The Canadian Press.

Arguments Today

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Today, I expect, will be spank the Ninth Circuit again day at the U.S. Supreme Court. On the docket are two habeas cases, Waddington v. Sarausad and Hedgpeth v. Pulido (formerly Chrones v. Pulido). Ben Winograd has this post at SCOTUSblog.

In the Pulido case, CJLF's brief is here, and our pre-argument press release is here. Usually, the "bottom side" brief defends the opinion below, but counsel for Pulido has pretty much thrown the Ninth Circuit's indefensible "structural error" theory under the bus. His argument is more that the district court's straight application of the Brecht v. Abrahamson rule to this instructional error reached the correct result.

Update: The Pulido transcript is here. Predicting the outcome here is a no-brainer. Look for a short, relatively quick, probably unanimous opinion saying, "Ninth Circuit, Brecht is the standard. Now do it over." Or something like that.

Blog Scan

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An Internet Harassment Decision That Has Some Worried About Criminal Libel: Eugene Volokh has an interesting post on an Internet harassment case decided last week by the Ohio Court of Appeals. The title asks "The Return of Criminal Libel, With Truth Not Being a Defense?" Volokh then answers: "That's how I read the prosecution and conviction in State v. Ellison (Ohio Ct. App. Oct. 10)." The case, State v. Ellison, addressed whether a high school teen could be found guilty of telecommunications harassment under Ohio's R.C. 2917.21(B) when she had posted on “MySpace” page a picture of a rival teen captioned “Molested a little boy.” Volokh's interest in the case arises from its First Amendment implications. As Volokh states: "So we have a criminal prosecution for speech that supposedly "harass[es]" (or perhaps "abuse[s]") by making allegations of criminal conduct — but the state has no obligation to prove falsity, and the defendant isn't even entitled to a defense of truth. Sounds like a pretty clear violation of the First Amendment." While the case was reversed by the Ohio Court of Appeals last week, Volokh believes the decision allows prosecution for this type of speech, "so long as it 'serves no legitimate purpose' in the eyes of a judge or a jury, and so long as the judge or jury concludes that it was intended to cause substantial emotional distress." In other words, as the Ohio law stands, and as the dissenting opinion points out, someone could go to jail just for posting a comment on the Internet.

Notes on the Oregon v. Ice Argument

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In Oregon v. Ice, the Supreme Court heard argument on whether the Apprendi line of cases, requiring jury trial for facts that increase the maximum sentence that may be imposed, should be extended to cover consecutive as opposed to concurrent sentences for multiple crimes. CJLF's amicus brief in the case is here. Our pre-argument press release is here.

The transcript in Pearson v. Callahan is available here. The case involves a civil suit against police who entered a house to make a drug arrest under the "consent once removed" exception. This problematic theory posits that once the drug dealer invites an undercover officer, or perhaps a police informant, into the house for the sale, he has consented to police entry or no longer has a reasonable expectation of privacy.

Roads Not Taken

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Also out today are two opinions dissenting from denial of certiorari. In Marlowe v. United States, Justice Scalia dissents from the Court's refusal to examine the sentence of a prison guard convicted of violating the civil rights of a prisoner by denying medical care, resulting in the prisoner's death. "I would grant the petition for certiorari, so that we may either forthrightly apply Booker or announce that the case is overruled." No excess of subtlety here.

Chief Justice Roberts gives us his impression of a detective novel writer, not in Marlowe, alas, but in Pennsylvania v. Dunlap. Penn. Supreme confused probable cause with proof in this Fourth Amendment case, he believes. "But as Judge Friendly has pointed out, '[j]udges are not required to exhibit a naiveté from which ordinary citizens are free.'" Justice Kennedy agrees.

News Scan

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Cooey Executed After Supreme Court Rejects Obese Argument: An article from CNN News reports that an Ohio death row inmate Richard Cooey was executed today after the Supreme Court rejected his last-minute plea that he was too fat to be executed. Cooey and a then-17-year-old accomplice were convicted of the brutal murders of Wendy Offredo and Dawn McCreery, students at the University of Akron. The students were subjected to 3½ hours of rape, torture, stabbing and fatal bludgeoning.

Supreme Court Denies Death Row Inmate Troy Davis' Appeal:
Washington Post staff writers William Branigin and Jerry Markon report that today the Supreme Court refused to hear an appeal by Troy Davis facing execution for the 1989 murder of a police officer. Today's order clears the way for Georgia to proceed with the execution of Troy Davis, three weeks after the high court granted him a last-minute stay.

Sex Offenders Must Register Their Online Information:
An article from the Newsday by Juliann Vachon reports that social networking sites such as MySpace and Facebook can now trace and expel potential sexual predators under a new law requiring sex offenders to submit all identifying Internet information along with home addresses. Under the law, signed yesterday by President Bush, registered sex offenders must submit all e-mail addresses, instant messenger names or other online identifiers for inclusion in the National Sex Offender Registry. Under the law, sex offenders not providing all Internet information can receive the same penalty as those who fail to register their home address - up to 10 years in prison.

Woman Found Guilty, Gets Life In Slayings Of 4: A story by Dale Lezon from the Houston Chronicle reports that although Christine Paolilla claimed her former boyfriend fired fatal gunshots at four young people five years ago, the former Clear Lake High School student from Houston, TX, was convicted of capital murder and sentenced to life in prison on Monday. Paolilla was found guilty in the deaths of her friends, Rachael Koloroutis and Tiffany Rowell, both 18; and in the killings of Rowell's boyfriend, Marcus Precella, 19; and his cousin, Adelbert Sanchez, 21. Paolilla received an automatic life sentence because she was 17 at the time of the killings.

Reconsider, and We Really Mean It

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The first opinion of the U.S. Supreme Court's new term is out. Moore v. United States is a summary per curiam opinion, spanking the Eighth Circuit for an inadequate job of reconsidering its prior opinion in light of last term's crack sentencing case, Kimbrough v. United States. The government conceded error, so reversal is no big surprise.

Orders List

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The U.S. Supreme Court orders list is available here. One civil case was taken up. Among the denials was the controversial Georgia capital case of Troy Davis, previously noted here, here, and here.

Last Meal

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Richard Cooey, who claims he is too fat to be executed humanely and it's all the prison's fault, ordered a last meal of "T-bone steak with A-1 sauce, onion rings, french fries, four eggs over easy, toast with butter, hash browns, a pint of rocky road ice cream, a Mountain Dew soft drink and bear claw pastries," Matt Reed reports for AP.

Update: Reed reports here on the execution. "There were no immediate reports of difficulties finding suitable veins to deliver the deadly chemicals, a problem that has delayed previous executions in the state." And Cooey's last words?

"You (expletive) haven't paid any attention to anything I've said in the last 22 1/2 years, why would anyone pay any attention to anything I've had to say now," Cooey said looking at the ceiling.

Blog Scan

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Former Guantanamo Bay Prosecutor Turns Against Tribunals: Dan Slater at Wall Street Journal Blog posted a story on former U.S. Prosecutor Darrel J. Vandeveld. According to the post, Vandeveld was a U.S. Prosecutor at Guantanamo Bay actively involved in prosecuting detainees until last month, when he resigned from his case, the military commissions overall, and, ultimately, active military duty. The LA Times also ran this story. Apparently Vandeveld was disturbed by the U.S. government's failure to provide defense lawyers with the evidence it had against their clients, including exculpatory information. Army Col. Lawrence J. Morris, the chief prosecutor and Vandeveld’s boss, disputed this charge, saying that the Office of Military Commissions provides “every scrap of paper and information” to the defense.

Tracking Offenders on Probation: Doug Berman at Sentencing Law and Policy sees an expansion of "technocorrections." Berman provides a link to an article from the San Bernardino Sun that reports the San Bernardino Board of Supervisors has voted "to expand the county's use of surveillance technology to track criminal offenders who are on probation or serving time on house arrest or weekends in jail." The surveillance would include GPS, home-based electronic monitoring, and alcohol monitoring. Berman believes that where faced with tight budgets, the expansion of "technocorrections" is inevitable. He also believes the San Bernardino "article provides a big window into the criminal justice future...".

Linda Greenhouse Reflects on Three Decades of Supreme Court Reporting: Howard Bashman at How Appealing provides a link to an interview in Radar, by Charles Kaiser, where Greenhouse looks back on her years reporting on the Court for the New York Times.

Funny Essay on Statutory Interpretation: Orin Kerr provides a link to the abstract for what he calls a "Very Funny Essay" by Hillel Levin. The abstract, and a link to download the essay, are available on SSRN. The abstract describes: "Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), etc.--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies." The essay is meant to demonstrate that we all use statutory interpretation and often "the various tools seem perfectly reasonable individually, [but] in the aggregate, they can lead to ridiculous results."

Oregon v. Ice: Lyle Denniston at SCOTUSblog has this preview of tomorrow's argument on whether the Apprendi line of cases will be extended to consecutive sentencing. CJLF's brief is here.

News Scan

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Santa Ana Teen Gets 25 To Life In Mom's Killing: AP reports that a 19-year-old convicted of stabbing her mother to death and dumping her body in the ocean was sentenced Friday to 25 years to life in prison. The body was pulled from Newport Harbor in September 2006. The mother had been stabbed 50 times. The teen's ex-boyfriend, 23-year-old Ian Allen, was also convicted of first-degree murder in a separate trial. His sentencing is scheduled for Nov. 14. Testifying in her own defense during the trial, Rachel Mullenix admitted she helped Allen clean the crime scene and dump the body in the harbor, but only because she was in shock and was afraid of her boyfriend.

Suspect In Decades-old L.A. Homicide Hangs Self: AP writer Linda Deutsch reports that a strange cold case murder story of nearly 30 years ended this weekend a few blocks from where it began, with the shocking suicide of Japanese businessman Kazuyoshi Miura in a downtown jail cell. Attorney Mark Geragos, who was representing Miura, said his client maintained to the end that he had nothing to do with the shooting of his 28-year-old wife, Kazumi, in 1981. Miura battled extradition to the United States this year but finally agreed to come back and face trial on a charge of conspiracy to murder his long-dead wife. His suicide, in which police said he hanged himself with a piece of his shirt in his jail cell, was the last bizarre twist in a case that had many.

Prior post on the double jeopardy problem is here.

The Cleveland Plain Dealer has this story by Michael McIntyre on Dawn McCreery, Wendy Offredo, and their families. The two college girls were murdered a little over 22 years ago. Richard Cooey has lived longer on death row than Dawn and Wendy's entire lives, but that is scheduled to end tomorrow.

"Yeah, I did kidnappings, robberies and other stuff in my case," Cooey said recently in an interview from death row at the Ohio State Penitentiary in Youngstown. "I didn't do no murders in my case. And they know I didn't do the murders in my case."

The "other stuff" was a three-hour ordeal of torture and rape, more than sufficient to make death a just punishment in this case, even if one of Cooey's accomplices committed the actual killings.

According to the Sixth Circuit's ECF system, counsel for Cooey filed 8 appeals on a single day, September 24, and 10 within the space of 8 days. After this is over, this might be a good case to examine for sanctionable misconduct in filing frivolous pleadings. I don't have the actual documents at this point, so I won't make an accusation, but from the sheer volume it seems likely. We need some courts to take a stand that vigorous advocacy does not include burying courts in paper, and, no, death is not different in this respect.

Update: As federalist notes in the comments, the AP reports that the Supreme Court has rejected Cooey's petition.

Update 2 (10/14): There are two cert. denial orders, here and here.

Blog Scan

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Justice Department Moves to Further Delay in Bringing Detainees into U.S.: Wednesday, Lyle Denniston reported at SCOTUSblog that the D.C. Circuit Court of Appeals had temporarily blocked the entry of the 17 Chinese Muslims that Federal Judge Urbina had ordered into the United States by 10am today. The Circuit Court action delayed entry of the detainees for at least eight days. Today, Denniston reports that the Justice Department has moved for a "longer postponement of any move of Guantanamo Bay detainees to the U.S. mainland." The Justice Department fears movement of any detainees into the United States “could pose a danger to the public at large." In its motion for a stay the Justice Department asked the D.C. Circuit Court to prevent any transfer until the Supreme Court had reviewed the delay issue. Attorneys for the detainees have until 4pm next Tuesday to respond.

ACORN Again:
At Volokh Conspiracy, Jonathan Adler has a post on ACORN's activities in Ohio. Apparently, ACORN told Cleveland's Plain Dealer, that "it cannot eliminate fraud from its operation." Adler suggests some commonsense tactics for preventing voter fraud, such as "not paying canvassers based upon how many people they register," or offering bribes in return for registration. He also reports that a federal Ohio court has ordered Secretary of State Jennifer Brunner to implement a system to verify voter registration information when it fails to match up in database checks. Adler later updated his post to include part of a report from the New York Post on a Cleveland man who had registered 72 times.

New Report on Racial Disparity and the Death Penalty: At Sentencing Law and Policy, Doug Berman provides a link to a new report from the American Constitution Society on racial disparities in the modern implementation of the death penalty. The full article can be found here. The article, "Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold," authored by Scott Phillips, reports on research conducted by the author "on race and capital punishment in Harris County, Texas." According to the ACS description, the author found "that the death penalty is more likely to be imposed against black defendants than white defendants, and death is more likely to be imposed on behalf of white victims than black victims. Professor Phillips explains that his research indicates that the racial disparities arise in the District Attorney’s decision to seek the death penalty, rather than with the jury."

Unfortunately, Phillips' explanation is as thin as tissue paper. Controlling for the relevant variables in studies of this kind is a very difficult proposition. One must identify the variables, explain how they are measured, explain how they are weighted, and explain how the control was done. The paper's description is extremely cursory, leaving the reader unable to make any judgment as to how carefully or correctly this was done. As discussed in this article, most studies in this area show no discernible bias on either the race of the defendant or the race of the victim when all legitimate variables are properly controlled.

Attorney-Client Privilege Waiver

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Congress recently added Rule 502 to the Federal Rules of Evidence in Senate Bill 2450 (Leahy, Graham, Specter), enacted as Pub. L. 100-322, Sept. 19, 2008, 122 Stat. 3537. Senate Report 110-264 is available on the Senate Judiciary Committee site. I haven't had a chance to examine this yet but wanted to bring it to our readers' attention for those who may have this issue in pending cases. (Hat tip: Ward.)

Blog Scan

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Guantanamo Detainee Update: At SCOTUSblog, Lyle Denniston provided this follow-up to his posts on the government's attempt to prevent U.S. entry of 17 Guantanamo Bay detainees. Earlier in the week, we posted on the federal court order of Judge Urbina to release 17 Chinese Muslims, the Uighurs, into the United States for a handover to local caretakers. On Tuesday, it was noted "the government could seek a stay of the order from the U.S. Court of Appeals for the D.C. Circuit." Yesterday, Denniston reported on the arguments made by the detainees' lawyers against delaying the handover, and then updated his post to report that the D.C. Circuit Court had blocked entry of the Uighurs for about eight days. The Circuit Court's order can be found here. The delay was granted to give the court more time to consider the government's "not-yet-filed plea for delay of the entry until it can pursue a full appeal."

Federal Law Addressing Unsolved Civil Rights Murders: According to Dan Slater''s post at Wall Street Journal Blog, the recently signed Emmett Till Unsolved Civil Rights Crime Act will "give new authority to the DOJ and FBI to reopen, investigate and prosecute unsolved Civil Rights era crimes." Emmett Till was the unfortunate victim of a racially-motivated murder in 1955. The 14 year-old was visiting his family in Mississippi when he "supposedly made the fatal mistake of whistling at a white woman." The new Act directs the attorney general to designate a deputy chief in the Criminal Section of the Civil Rights Division to be responsible for investigating and prosecuting violations of criminal civil rights statutes in which the alleged violation occurred before January 1, 1970, and resulted in death, and to designate a supervisory special agent in the Civil Rights Unit of the FBI to investigate those alleged violations as well. The AG also now has the authority to annually award $2 million in grants to state and local law enforcement to investigate and prosecute these murders. As noted here, statute of limitations issues make federal prosecution of these cases problematic.

News Scan

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Pittsburgh Approves $200K To Study Violence: Jeremy Boren from the Tribune-Review reports that Pittsburgh City Council approved legislation Tuesday to spend $200,000 on an anti-violence program intended to begin reducing the number of homicides within six months. The money will come from this year's police budget and will be used to pay for a detailed crime and gang activity analysis by University of Pittsburgh School of Social Work researchers.

Court Awards $10 Million To Family Of McHenry County Murder Victim: According to an article by Charles Keeshan from the Chicago Daily Herald, the family of an 83-year-old McHenry County woman murdered in her home on Mother's Day 2006 won a $10 million judgment today from the estate of the man police say killed her. The murder suspect, Jose Manuel Albada-Grijaldo, was shot and killed by police during a confrontation that occurred after he led police on a 15 mile chase in the victim's car. McHenry County Judge Michael Feetterer awarded the damages after representatives of Albada-Grijaldo repeatedly failed to appear in court to challenge the lawsuit which sought damages for his murder of Verna Corcoran during a home invasion and robbery.

Man Sentenced for Holding a Nigerian Teenage Girl in Involuntary Servitude: An article from the MarketWatch reports that George Udeozor, formerly of Montgomery County, Maryland, was sentenced for holding a 14-year-old Nigerian girl in involuntary servitude. U.S. District Judge Peter J. Messitte sentenced Udeozor to 97 months in prison followed by three years of supervised release. Udeozor was also ordered to pay $110,249.60 in restitution to the victim. The victim cooked, cleaned the home, did laundry and took care of the Udeozor children. During that time, the victim was physically abused.

Not too Fat for Execution: The Ohio Supreme Court has rejected murderer Richard Cooey's claim that he is too fat for lethal injection. An AP story reports that Cooey is scheduled to be executioned next Tuesday, for killing two college co-eds in 1986. Previous posts here and here provide more information on Cooey's case.

Judicial Activism

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CJLF's Legal Director Kent Scheidegger has this letter to the editor in USA Today, responding to this editorial last Monday. Where the letter says "the people's right of self-government," the editors added a link to the Declaration of Independence. That was a nice touch.

Blog Scan

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Oral Argument Summaries: At SCOTUSblog Kevin Russell posts his analysis of the oral arguments in Arizona v. Gant, 07-542 and Herring v. United States, 07-513 . The two cases address different questions involving the Fourth Amendment. Herring asks whether the exclusionary rule should be applied to bar evidence obtained through the search of a defendant whom the police believed had an outstanding warrant but who actually didn’t, while Gant addressed the meaning of the Fourth Amendment itself. Russell states that oral argument was "particularly interesting because the Government and the defendant were called upon to take different sides of the debate in the two cases: in Herring, the defendant argued the virtue of simplicity and clarity, while in Gant it was the Government that was insisting on the need for a bright-line rule." Orin Kerr at Volokh Conspiracy ponders whether Gant is the "sleeper crim pro case of the term?" His post is brief, as he was heading on vacation, but he does urge readers to read the oral argument transcript and notes the potential for future blogs on the case. In another post on yesterday's Gant oral argument, Washington Briefs blogger Lawrence Hurley discusses Justice Scalia's attempt to track the Fourth Amendment back to the founding era and Thomas Jefferson. Apparently, Justice Scalia asked "If you stopped Thomas Jefferson's carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you, could you then go and search his carriage?" According to Hurley, "Jefferson, who died in 1826, could not be reached for comment."

The Cost of Calculating Loss Under Sentencing Guidelines:
Doug Berman at Sentencing Law and Policy has a post linking to a new article by Robert G. Morvillo and Robert J. Anello in the New York Law Journal. The article argues that "[l]oss calculation often artificially inflates the guidelines to unrealistic proportions." According to the authors, this is because loss calculation is an "amorphous concept" "that equates jail time with often-inflated assessments of loss caused by the crime." According to the article's authors, courts have recently begun to recognize the complexity of loss calculation and attempted to temper its consequences. The article discusses two recent decisions from the second circuit, United States v. Confredo and United States v. Rutkoske, to illustrate this point.

Unlike the Herring case, noted here, the issue in Arizona v. Gant, also argued yesterday, is purely on the substantive scope of the Fourth Amendment. The tone of the argument is quite different. In particular, Justice Scalia comes across quite differently in this argument.

News Scan

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Fourth Amendment Arguments: Adam Liptak has this story in the NYT on the Gant and Herring arguments. After noting the endless variation in scenarios of Fourth Amendment cases, he observes, "these cases were more interesting than usual, thanks to a discussion of a larger theme that has engaged several Supreme Court justices in recent years: does the exclusionary rule, which requires the suppression of some evidence produced by police misconduct, still make sense?"

Precious Doe Verdict: Erica Green lived only 3 years, but it took 4 years to identify her body, found naked and headless near Kansas City in 2001. In the interim, she was known as "Precious Doe." Harrell Johnson was convicted of first-degree murder today, according to this AP story by Andale Gross.

Technicality Cuts Bail To $1 In Child Molestation Case: Matt Miller from the Midstate News reports that Cumberland County, PA's President Judge Edgar B. Bayley has reduced the bail of a man accused of molesting a child from $500,000 to $1 after ruling that prosecutors missed a legal deadline for bringing him to trial. Bayley ruled that Kenneth Clark was arrested in March and should have been tried by early September. District Attorney David Freed said that the deadline was impossible to meet and that he is considering whether to appeal or ask Bayley to reconsider his decision.

High Drama at Maryland DP Hearings: The commission reviewing Maryland's death penalty generated some fireworks yesterday when one of its members, the state's attorney for Baltimore County, said that under the state's current process there is virtually no chance that an innocent person can be executed. A story on Washington Post.com by John Wagner reports that another commission member, exonerated from a murder conviction fifteen years ago by DNA evidence, found the statement "a little cavalier." The state's attorney pointed out that, in effect, that was then, this is now. It should also be noted that there is a huge difference between an innocent person being convicted and an innocent person being executed. Kirk Bloodsworth's death sentence was overturned on the very first review of his case -- direct appeal. He was never remotely close to execution.

Justice is on Hold in Abu-Jamal Case according to this editorial in today's Delaware County Times. Mumia Abu-Jamal, (formerly Wesley Cook) who was sentenced to death on strong evidence for the murder of a Philadelphia police officer 25 years ago, lost his most recent bid for a new trial in the Supreme Court last Monday (see our previous post and blog scan). The piece points out that the facts don't seem to matter to the foreigners and Hollywood types that make up the "free Mumia" movement, claiming that racism is the reason he was sentenced to death.

Herring, Barney Fife, and Elephants

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Barney Fife "But there is not a Barney Fife defense to violation of the Fourth Amendment, either." Pamela Karlan, for the defendant, got off that good line in yesterday's oral argument in Herring v. United States, No. 07-513. On the whole though, she had a pretty rough time of it. Orin Kerr at VC thinks it's "a pretty clear win for the government."

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

Blog Scan

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17 Guantanamo Detainees Ordered Into U.S. By Friday: Ben Winograd at SCOTUSblog has a post on federal Judge Ricardo Urbina's order that the government release a group of 17 Chinese Muslims, the Uighurs, into the United States by Friday, October 10, 2008. Judge Urbina has ordered the government to present the Uighurs to his courtroom by Friday for a handover to local caretakers. The order is a part of Judge Urbina's conclusion that the government's authority to detain the Uighurs has "ceased" since the government has conceded that the Uighurs are are not enemy combatants, and that the government had provided no alternative grounds for detention. A hearing will take place next Friday, October 16th, to allow members of the Department of Homeland Security the opportunity to speak the conditions they wish to apply to the Uighurs’ presence in United States. Winograd reports that in advance of this Friday's deadline, the government could seek a stay of the order from the U.S. Court of Appeals for the D.C. Circuit.

Wisconsin District Court Upholds Ban on Firearms Possession by Unlawful Users of Controlled Substances: Eugene Volokh at Volokh Conspiracy reports on the October 3rd decision from in United States v. Yancey (WD Wis. 2008). The court's Yancey decision upheld 18 U.S.C. § 922(g)(3), the ban on possession by anyone "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act." Volokh provides the relevant analysis of the case in his post. The district court found that Heller stands only for the proposition that the District of Columbia cannot constitutionally ban handgun possession in the home for use in self-defense by persons not otherwise prohibited from gun possession. The Heller decision did not address whether the state could impose restrictions on handgun possession. Therefore, consistent with the decision of the Wisconsin district court in United States v. Kilgore, 2008 WL 4058020 (W.D. Wis. Aug. 26, 2008), Heller did not make the firearm restrictions of 18 U.S.C. § 922(g) constitutionally suspect.

Arguing over Arguing

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Here is one more nugget from yesterday's SCOTUS orders list. In the Rhode Island Indian law case of Carcieri v. Kempthorne, No. 07-526, the Court denied all the motions for divided argument. Tony Mauro at BLT has this post over the "massive impasse" that has resulted. Will Rhode Island and the Town of Charleston be represented by the lawyer who has handled the case for 10 years or SCOTUS veteran and former SG Ted Olson? Will the other side (the federal government and the tribe) be represented by the SG or Tom Goldstein? It will be interesting to see how that shakes out.

Update (10/9): Tony reports it "gets nastier."

ACORN office in Vegas raided

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During the debate last year over Crawford v. Marion County Election Bd., No. 07-21, it was common for opponents of voter ID to claim that voting fraud was essentially nonexistent and that the ID requirement was concocted to harass poor people out of voting. From Las Vegas comes this story to remind us that the crime of voter fraud is quite real and remains a problem.

"Secretary of State spokesman Bob Walsh says ACORN [Association of Community Organizations for Reform Now] is accused of submitting multiple voter registrations with false and duplicate names."

And before anyone claims this is a "vast right-wing conspiracy" effort due to Barack Obama's association with ACORN, note that the Nevada Secretary of State is a Democrat.

News Scan

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Mom Who Drove Kids to Gang Fight Convicted of Murder: An article from the KTLA News reports that a Long Beach woman accused of driving her teenage son and his friends to confront a rival gang has been convicted of second degree murder. Eva Daley was charged with first-degree murder but the jury opted for the lesser conviction after deliberating for more than two days. The 35-year old mother of three faces 15 years to life in prison when she is sentenced Nov. 4.

Sex Offenders Sue County For Place To Live: According to an article by Jason Cato from the Tribune-Review, six convicted sex offenders sued Allegheny County, Pennsylvania, yesterday, claiming a restrictive residency ordinance makes it nearly impossible for them to find a place to live. The lawsuit, filed in U.S. District Court, Downtown, claims the county passed an ordinance in October 2007 intended to "augment the provisions of Pennsylvania's Megan's Law and better provide for the safety of the county's residents." The plaintiffs claim the ordinance prohibits them from moving in with family members or, in one case, from being released from prison to a community correction center. The plaintiffs want a federal judge to declare the law unconstitutional and bar the county from enforcing it.

Ex-Death Row Inmate Can't Collect Jury Award: Natasha Korecki from the Chicago Sun-Times reports that an ex-Death Row inmate and former Chicago cop, Steve Manning - who won a $6.5 million judgment against the FBI - cannot collect any of his jury award. A federal court of appeals upheld a lower court's ruling that barred Manning from collecting the jury award. After the jury decided in Manning's favor, he could have taken the money. Instead, Manning decided to have a judge decide additional claims against the government, which put his jury award in jeopardy, the three-judge panel explained in an 18-page opinion. Manning was given the death penalty on a murder conviction in Illinois and a life sentence for a kidnapping in Missouri. Both convictions were overturned. He then filed suit against the FBI, saying he was framed. The jury award was among the largest ever in an FBI frame case.

Schuylerville Man Faces 456 Charges Of Child Molestation: An article by Leigh Hornbeck, Times Union staff writer, reports that Donald Nitchman who breeds thoroughbred racehorses in Saratoga County of upstate New York has been charged with 456 counts of child molestation. Nitchman allegedly molested three boys, each of whom was 13 when the alleged abuse began. The alleged crimes occurred for three years between August 2004 and last June. If convicted, Nitchman could be sentenced to more than 100 years in prison, Saratoga County District Attorney James Murphy said.

Blog Scan

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The Blogs Are Alive With The Sound of Opening Arguments: With the first Monday in October came opening arguments at the United States Supreme Court, as well as several blog posts reporting on its activities. SCOTUSblog has a post reporting on today's activities at the Court, along with a link to today's transcripts and an analysis of oral arguments in Altria Group, et al., v. Good, et al. (07-562). Denniston also provided a post discussing today's Orders from the Court, and how the Court did not address Troy Anthony Davis’ appeal today. Dan Slater at Wall Street Journal Blog posted on the Altria argument, as well as Justice attendance an the annual Red Mass. And over at NRO, Jonathan Adler provides a preview of cases the Court will hear this term. At the end of his post Adler notes the Court has only accepted 53 cases for the term. According to Adler, the Court is likely to accept "at least a dozen or two more in the coming weeks." Without a lot of high profile cases on this year's docket, Adler reports this "is likely to be a relatively quiet year on the Court."

The Pace of Executions Post-Baze: Doug Berman has a post discussing the Death Penalty Information Center's (DPIC) report on executions in the United States after last term's decision in Baze v. Rees. Berman finds it "remarkable" that post-Baze states have executed prisoners at an average rate of about four executions per month, and "that we have not seen any post-Baze increase in executions even though the Baze case led to a halt of all executions for over six months." Berman's post also states that the DPIC report shows only Texas and Ohio with more than one upcoming set execution date.

Free Access to Sage Journals:
Psychology and Crime News reports that Sage Journals will provide free access to all of its online journals through October 31st. All a reader needs to do is register first. Psychology and Crime News recommends that readers take a look at the newest issue of Criminal Justice and Behavior a special on “Pseudoscientific Policing Practices and Beliefs" for articles on criminal profiling, as well as a "critique of the FBI’s programme to introduce Critical Incident Stress Debriefing for its agents."

Cert. denial for Abu-Jamal

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Deep in today's orders list is a denial of certiorari in Abu-Jamal v. Pennsylvania, No. 08-5456. An AP story reports, "The justices did not comment on their action Monday, which leaves in place a federal appeals court ruling that upholds Abu-Jamal's murder conviction, but orders a new sentencing hearing."

Huh? Federal habeas cases don't usually name the state itself as respondent -- the Eleventh Amendment and all that.

Sure enough, the docket for 08-5456 lists the lower court as the Pennsylvania Supreme Court. The USCA3 docket for its case, No. 02-9001, says rehearing en banc was denied July 22. The certiorari petition from the federal ruling isn't even due for two more weeks.

The Pennsylvania Supreme Court decision affirms without dissent a trial court decision holding that Abu-Jamal's third state post-conviction relief petition is untimely and does not qualify for an exception.

Update: AP has corrected the story.

Update 2: On Oct. 3, Abu-Jamal requested a two-month extension to file his certiorari petition in the Third Circuit case.

Update 3: On Oct. 6, the state requested a one-month extension for its request to review the grant of habeas relief on penalty.

News Scan

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New Law Prohibits Sex Offenders From 'Clustering': An article from Bay News 9 reports that leaders in Hillsborough County, Florida recently passed a new law that prohibits groups of sex offenders from clustering in one neighborhood. The law prohibits sex offenders from living together or "clustering." Offenders can occupy no more than 10 percent of units in a mobile home park. Landlords will also be punished if they allow it. The new law applies to sexual offenders and predators.

The Supreme Court's New Term: The justices will hear less politically charged cases this term, according to an editorial from the LA Times. The new term, which began today, is the third full term of the Court with Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. The editorial suggests that some cases before the Court this year are not as contentious because they do not involve the meaning of the Constitution, on which the court has the final say, but the interpretation of federal statutes.

Gangs Blamed In Almost Half The Homicides In '07:
Union-Tribune staff writer Kristina Davis reports that nearly half the homicides with known motives in San Diego County last year were gang-related, according to a study by the San Diego Association of Governments which focused on victims and suspects of violent crime. Local law enforcement officials said the data reflect the rise in gang violence in 2007 over the previous year as gangs became more likely to use firearms. San Diego police gang Lt. Jorge Duran said fatal gang attacks last year have prompted an aggressive police response.

Nebraska's Death Penalty

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Among the cases denied review by the Supreme Court today was Mata v. Nebraska, No. 08-5204. As previously noted here, Nebraska's Supreme Court held that the electric chair, the only method of execution authorized by state statute, violates the state's equivalent of the Eighth Amendment. However, Mata remains sentenced to death, and the federal high court today rejected his objection to that situation. (By resting its decision on the state constitution, the state court prevented the state from getting review.)

I'm told by an informed source that chances for a legislative fix next year are decent, now that the state legislature's anti-death-penalty crusader is termed out.

Last week the Supreme Court announced that it had granted review of 10 cases, 7 of them criminal, from the "long conference" preceding the opening of the term. Today, the Court issued the opening orders list of the term. As expected, there are no additional grants of review for full briefing and argument. A few cases are sent back to lower courts for reconsideration in light of intervening decisions, and a very long list are simply denied.

There are a few cases that were neither granted nor denied, and they presumably are rescheduled to be considered again at another conference. These cases are interesting enough to the high court to be worth a second look. From the cases on SCOTUSblog's Petitions to Watch list, the following criminal and related cases have apparently been relisted:

Hust v. Phillips, No. 07-897 (from USCA9): Personal liability of prison librarian for not letting an inmate use a binding machine for his cert. petition, despite the fact that the rules of the court do not require binding. A simple staple will do for an "in forma pauperis" petitioner.

San Francisco v. Rodis, No 07-1376 (from USCA9): Personal liability of police officers for mistakenly arresting a person for use of a $100 bill believed to be counterfeit but actually genuine.

Owens v. Kentucky, No. 07-1411 (from SC KY): Frisk of companion of arrestee, an issue related to the pending case of Arizona v. Johnson, No. 07-1122, CJLF brief here.

Patrick v. Smith, No. 07-1483 (from USCA9): Sufficiency of evidence in shaken baby death case.

Mercier v. Ohio, No. 08-17 (from SC OH): Probable cause for search of auto passenger's purse.

Davis v. Georgia, No. 08-66 (from SC GA): The controversial claim-of-innocence capital case, previously noted here.

Update: Some of the denials of certiorari are mentioned in this AP story and Lyle Denniston's post at SCOTUSblog. No biggies.

Bell v. Kelly: What is a "Claim"?

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In 28 U.S.C. § 2254(d), the cornerstone reform of the Antiterrorism and Effective Death Penalty Act of 1996, Congress provided that a federal court cannot grant relief on a claim denied on the merits by a state court unless certain conditions are met, essentially unless the state court decision was outside the bounds of reasonable disagreement. This measure was a compromise between those who favored giving the state court decision as much respect as federal court decisions and those who favored the status quo ante of giving them no weight at all on questions of federal law.

But what exactly is a "claim"? That question is now before the Supreme Court in Bell v. Kelly, No. 07-1223, which just may be the "sleeper" case of this term. It hasn't received much attention yet, but the potential ramifications are large, especially for capital cases.

News Scan

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Army to Focus on Sexual Assault: Responding to Pentagon data indicating that 2.6 soldiers per 1,000 reported a sexual assault last year, the U.S. Army is launching a new effort to prevent the crime. A Wall Street Journal piece by Yochi J. Dreazen reports that some female veterans, including some who are rape victims, believe that the Army's macho culture enables this behavior.

An Habitual Sex Offender who a jury decided should be released into the community after a 2003 conviction, has been found guilty of several new crimes including assaults on two women less than a year later. A story by Jennifer Sullivan of The Seattle Times reports that Curtis Thompson, identified in Washington as a sexually violent predator, followed two young women into a University District apartment elevator and assaulted them, during a crime spree which included burglary, robbery and assault. Next month Thompson will be tried for the rape of another woman in 2004, and in January he faces murder charges for the stabbing death of a Seattle woman. Prior to his 2003 conviction, Thompson had been found guilty of raping four women in 1985.

Blog Scan

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President Bush to Speak on Presidency and the Courts in Cincinnati: Tony Mauro reports at the BLT that President Bush will be speaking at a Federalist Society's conference on The Presidency and The Courts next Monday. Both the Cincinnati chapter of the Federalist Society and the Ashbrook Center for Public Affairs will host President Bush, former attorney general Edwin Meese III, former solicitor general Paul Clement, and M. Edward Whelan III. Mauro reports the specific details of President Bush's speech have not been released, but Whelan predicts the President will discuss the appointments of Chief Justice Roberts and Justice Alito. As Mauro reports, many analysts attribute the Court's move to the right to these men. It is viewed "as a success for conservatives."

The Washington Post on Kennedy: At Bench Memos, Matthew Franck has a post scolding the editors Washington Post for an editorial on the Supreme Court's decision in Kennedy v. Louisiana. The Post criticized the Court's decision not to rehear the case because "Supreme Court precedent dictates that justices take into account" the "'evolving standards of decency' and the absence of a 'national consensus,'" and refusing to rehear Kennedy left the decision "incomplete." Franck notes this is ridiculous "when precedents that were themselves conjured out of thin air are no constraint on the justices." For Franck, the editors of the Post have missed the point: "The real value of the amended Kennedy ruling is its exposure as a fraud of the whole body of Eighth Amendment jurisprudence."

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Ohio Court Upholds Retroactive Application of Sex Offender Law: According to an article by Mary Beth Lane, from the Columbus Dispatch, the Ohio Supreme Court ruled yesterday that it is constitutional to retroactively enforce a 2003 law that toughened reporting and community-notification rules on registered sex offenders. See decision here. A 1998 court decision rejected a constitutional challenge to a similar 1996 law, ruling that the law's requirements could apply retroactively because its intent was to protect the community from future sex crimes rather than impose additional punishment on the offender. Justice Maureen O'Connor, who wrote the court's 4-3 majority opinion, used the same standard in upholding retroactive application of the 2003 law.

Murderer Faces Second Death Penalty: Malaika Fraley, from the Contra Costa Times, reports that 72 year-old Darryl Kemp will be tried for the 1978 rape and strangulation murder of a Armida Wiltsey. The 40 -year-old wife and mother was killed just four months after Kemp was released from prison for an earlier rape and murder. In 1960 Kemp was sentenced to death for a Los Angeles murder but his sentence was commuted to life with parole by the U.S. Supreme Court's Furman v. Georgia ruling in 1972, which announced that the death penalty was unconstitutional. When the Contra Costa County Sheriff's Department matched Kemp's DNA with samples found on his 1978 victim, he was extradited from Texas where he was in prison for a 1983 rape. The District Attorney will seek the death penalty if Kemp is convicted.

Hundreds Are Arrested in Antigang Crackdown: NY Times writer Solomon Moore, reports that a four-month nationwide crackdown on gangs has brought the arrest of 1,759 people that includes gang members and their associates, other criminals and immigration violators from more than 20 countries. Dozens of state and local law enforcement agencies joined federal officers in raids carried out in 28 states, including New York and New Jersey, focusing on gang hubs like Los Angeles, Miami and Boston. “We now have over 890 gangs in the United States that we’ve been able to target,” said Brandon Alvarez-Montgomery, a spokesman for Immigration and Customs Enforcement. Those found guilty will be subject to incarceration, and then deportation proceedings upon release.

Obama as Victims' Advocate?


Jonathan Martin has this story at Politico.

Barack Obama's campaign earlier this month sought to find a rape victim to appear in a campaign commercial, according to an e-mail obtained by Politico.
Kiersten Steward, director of public policy at the Family Violence Prevention Fund, served as a conduit between the campaign and victims and women's advocates.

The notion of Barack Obama as victims' advocate borders on ludicrous. Violent crime is mostly a state and local matter, not one the President deals with directly. There is, however, one presidential function that has more impact on violent crime than all others put together. That is the appointment of federal judges. From what they have said about appointments so far, along with their political philosophies generally, there is not a shadow of a doubt that President Obama's appointments would be more criminal-friendly and President McCain's would be more victim-friendly. We have seen the pattern repeatedly throughout the years. The further left an executive is, the more his judicial appointees tend to side with predators against their victims. The correlation is not perfect, but it is very strong. And Barack Obama is the farthest left presidential candidate of a major party in living memory.

If the Obama campaign actually has the chutzpah to make such a pitch, let us hope that the commentators will instantly recognize it for the tripe that it would be.

(Hat tip: James Taranto at WSJ Best of the Web)

News Scan

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October Marks Crime Prevention Month, Identity Theft is #1 Crime: According to an article from the MarketWatch News, the U.S. Department of Justice has reported identity theft is the number one crime in the nation. This fast-growing crime is costing an estimated nine million Americans more than $1.2 billion annually. Most identity theft victims then spend countless hours trying to clean up the mess. October is designated as National Crime Prevention Month to allow consumers to educate themselves on the crime and how to effectively steer clear of it.

Gov. Perry Wants $24 Million To Fight Border Crime: AP writer, Jay Root, reports that Texas Gov. Rick Perry said he would ask the state Legislature, which in 2007 approved $110 million to fight border crime, to provide another $24 million to hire more police, upgrade law enforcement technology and enhance multi-agency intelligence sharing. "The most important threat to our state's security is the rise of these ruthless and powerful transnational gangs," Perry said. In addition to the $24 million, the governor said he'll ask the Legislature to give law enforcement better gang fighting tools and expand gang prevention efforts.

High Court Will Not Reconsider Decision on Child Rape: Robert Barnes, Washington Post staff writer, reports that the Supreme Court today declined to revisit its June decision that it is unconstitutional to impose the death penalty on child rapists, although two justices said they would have reopened the case and two others sharply criticized the majority. The state of Louisiana and the Justice Department had asked the Court to reconsider the 5 to 4 decision because the Court was not informed that Congress in 2006 made child rape a capital offense under military law. Today, the same five justice majority said the opinion would be amended to reflect the existence of the military law, but that it did not bear upon their reasoning. The decision overturned the death penalty for Patrick Kennedy who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998.

Indiana Father Kills Sex Offender Who Broke Into Home: A story from the AP reports that a convicted sex offender died Sunday during a struggle with a father who found the naked man in or near his 17-year-old daughter's bedroom, police said. Police did not anticipate any charges against Robert McNally. Police spokesman Sgt. Matthew Mount said: "If a person breaks into your home, you are justified in using deadly force in defending your family." The death is under investigation and will be reviewed by a Marion County prosecutor.

Police Say Sex Offender At WAMMFest Didn't Commit A Crime: According to a story from the AP, registered sex offender Patricia Babiana Mince, who was put in charge of the children's play area at the weekend Santa Cruz medical marijuana festival, didn't commit a crime and there were no reports of inappropriate behavior. Mince was convicted in 2000 of molesting a 15-year-old girl and giving her methamphetamines.

No Rehearing for Kennedy

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As predicted, the Supreme Court has denied rehearing for Kennedy v. Louisiana. The Supreme Court had asked for additional briefing in early September, but today, the Court refused to rehear its June decision. Instead, the Court has modified the Kennedy decision by adding a footnote to both the majority and dissenting opinions. The result of June's decision is the same: in regular criminal matters, a death sentence still cannot be imposed for any crime in which the victim is not killed.

Another nonsurprise (see also this post): the Court has reiterated its statement from 12 years ago, declining to consider whether the military is different in the context of the "death is different" jurisprudence: "... we need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases (a matter not presented here for our decision). Cf. Loving v. United States, 517 U. S. 748, 755 (1996)."

Lyle Denniston has a post on SCOTUSblog discussing the Kennedy order. His post also discusses the ten ten cases the Court has agreed to hear this term. Of the ten, seven involve criminal law.

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