December 2008 Archives

Blog & News Scan

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DNA and God: Russell Kaemmerling, a long-term guest of the United States Bureau of Prisons, objects to the BoP's plan to take a DNA sample for the database, claiming it is "tantamount to laying the foundation for the rise of the anti-Christ." Somehow, we suspect his real reason is that it would lay the foundation to convict him of other crimes he may have committed in the past or may commit in the future. The D.C. Circuit was not persuaded by this creative Free Exercise Clause argument or the more mundane Fourth and Fifth Amendment arguments. Seemingly none of the recent obituaries of Avery Dulles, a renowned theologian and Cardinal of the Roman Catholic Church, has mentioned his crisp, theoretical defense of capital punishment. The Cardinal's careful explanation of his church's teaching responded to the popular impression of blanket Catholic opposition to the death penalty," writes Mark Tooley in the Weekly Standard.

Oh, Never Mind. Orin Kerr at VC reports that the Sixth Circuit has withdrawn the "fuzzy dice" opinion, noted in Lauren's post yesterday.

Pardons. S.F. Chrontrarian Debra Saunders has this column about the Toussie pardon debacle and the pardons she thinks President Bush should grant before departing.

Alberto Gonzales, former Attorney General, "is writing a book to set the record straight about his controversial tenure as a senior official in the Bush administration," reports Evan Perez in the WSJ.

Three Strikes: California's controversial sentencing law may not be completely immune from judicial scrutiny, even after Ewing v. California538 U.S. 11 (2003). Bob Egelko reports in the SF Chron of the case of Cecilio Gonzalez, whose third strike consisted of failure to report his whereabouts, as is required annually for registered sex offenders, and got 28-to-life. The Ninth Circuit panel was Judges Canby, Kleinfeld, and Bybee, the latter two being generally more favorable to the prosecution that the average for this court.  Nonetheless, the court granted habeas relief. The opinion is here.

Sentenced to Death, Again: Darryl Kemp escaped the death penalty in 1972, when both the California and United States Supreme Courts threw it out. Six years later, we now know, he raped and murdered Armida Wiltsey of Lafayette, California.  DNA testing finally solved this cold case in 2003. Today, a jury returned a verdict of death, reports Henry Lee in the SF Chron. This is a stark reminder, once again, that published recidivism rates are not the number of crimes committed by released felons, but only the number that get caught.

Defending Blago: Very few public figures are speaking out in defense of embattled Illinois Governor Rod Blagojevich. Former Ayatollah of the California Assembly Willie Brown is one of the few, according to this LA Times story by Maria La Ganga.

Crime Statistics

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The Bureau of Justice Statistics report on Criminal Victimization, 2007 is out. These data from the National Crime Victimization Survey (NCVS) provide a useful cross-check on the FBI numbers, which report only crimes known to the police. The survey does not include homicide, however, as the respondents are only asked about crimes against themselves, not other members of the family. The overall numbers are not much changed from 2005. The data do indicate that rape is way up and aggravated assault is way down between the two years, but the report cautions that this may be a methodology issue rather than a real change.

Overall, violent crime fell 43% from 1998 to 2007.

Increase in Forensic Hospital Utilization

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This month's issue of Psychiatric Services includes an article "Changing Trends in State Psychiatric Hospital Use from 2002 to 2005."   The abstract:

OBJECTIVE: National surveys have shown dramatic declines in the number of residents in state psychiatric hospitals since the 1950s and in the number of admissions since the 1970s. However, data from 2002 and 2005 indicate a reversal of these long-term trends. The objective of this study was to present the new data and to advocate for research on the factors contributing to these changes. METHODS: This study is based on state-level data submitted annually to the Center for Mental Health Services. The 11 states showing increases in admissions and residents between 2002 and 2005 were surveyed by telephone about the factors leading to the changes. RESULTS: Between 2002 and 2005, the number of admissions nationwide increased 21.1%, and the number of residents increased by 1.0%. State mental health agency staff attributed the increases principally to one factor--the increase in the number of forensic admissions and residents. Staff also identified increases in the number of admissions with schizophrenia (increased 23.2%) and affective disorders (increased 16.3%) as a second factor, plus declines in the availability of housing and community-based care providers. CONCLUSIONS: The reversal of long-term trends may signal threats to the goal of community-based mental health care. Research is urgently needed to examine the factors associated with these increases. Potential factors to be investigated include the increase in the number of forensic admissions and the antecedents of this phenomenon, increases in the number of admissions with schizophrenia, the changing capacity of general hospital inpatient psychiatric services in the community, and changes in the demographic makeup of American society, reflected in an aging population and increased racial-ethnic diversity.



Appealing to the Sympathies of Juries

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The Supreme Court of Florida has issued its opinion in the case of Nowell v. State, reversing and remanding the death penalty sentence of Willie Nowell. The court notes two reasons for its decision: (1) the peremptory exclusion of a juror was unlawful because the prosecutor's stated reasons chiefly relied on a feeling of "dislike" for the juror (who was of Hispanic dissent) and; (2) the prosecutor stated during closing arguments:

"Mercy. State asks that you recommend mercy if mercy is warranted. And mercy wasn't given in this case, not by Mr. Nowell, not by Mr. Bellamy. There was no mercy there, none whatsoever."  

The Court concludes:

"We held that this line of argument is blatantly impermissible under Rhodes v. State, 547 So.2d 1201, 1206(Fla.1989), and Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992), which condemned these type of arguments because they are an unnecessary appeal to the sympathies of the jurors."

The issue of emotions and jury decision making is a hot topic not only in the courts but in much of the applied psychological science involving legal systems.  The customary idea is that emotions are bad when they involve jurors and efforts should be undertaken to minimize or exclude the influence of emotions in legal decisions.  Thus, it is hardly surprising that much scholarship is devoted to the propensity of crime scene photos and victim impact statements to invoke emotions among juries with the conclusion that such evidence should be excluded as overly prejudicial.

Yet what often goes unnoticed is how almost all mitigation claims rely completely on emotional decision making by juries.   Whether it is a defendant's unfortunate childhood or lifelong addiction to drugs, mitigation bears the imprimatur that emotions matter and are essential to an equitable criminal justice system.  For better or worse, they are what binds humanity to its legal system of impersonal rules and procedures and gives authority for that system to impose its power over the people. 

Whether a statement is an "unnecessary appeal" perhaps misses the point.  Divorcing juries from emotions is a sword that cuts both ways and cuts deeply: justice and mitigation seem to be tightly wrapped in the emotional judgments of the people writ large.

  At Volokh Conspiracy over the past two days Orin Kerr has been blogging on the Sixth Circuit's decision in United States v. Davis, the "fuzzy dice" case.  The case involves a Sixth Circuit panel's decision to strike down Michigan's safety statute penalizing driving when the driver's vision is obstructed by something dangling form the window, like "fuzzy dice" or a giant Tweety Bird air-freshener.  Yesterday's post, giving the details of the case, can be found here

  Today, Kerr posts on a new wrinkle in Davis - the Sixth Circuit apparently issued its decision without complying with federal statute 28 U.S.C. 2403(b) which requires the federal court to inform the state attorney general that it is considering the constitutionality of a state statute so that the state may intervene "...for an argument on the question of constitutionality."  According to Kerr, Michigan only learned of the Sixth Circuit's decision to review the statute when the Sixth Circuit ruled on December 19th, 2008.  If this is true, then Michigan has the right to remedy the statutory violation.  And, Kerr notes, the remedy could come in the form of reversal or rehearing.

  Our own Kent Scheidegger commented on Kerr's post to add that Michigan should intervene, and to comment "A Sixth Circuit precedent would be binding and 'clearly established' law in a suit in federal district court against a Michigan police officer under 42 USC 1983 for supposedly violating the civil rights of a future fuzzy dice dangler pulled over for violating the state statute. Section 2403 gives the state the right to intervene in this case, and the Michigan AG should exercise that right."  "In criminal cases, the state courts can disagree with the lower federal courts, and Fourth Amendment exclusionary rule decisions are generally not reviewable on habeas under Stone v. Powell, 428 U.S. 465 (1976). California and the Ninth Circuit disagreed on parole/probation search conditions until the Supreme Court settled it in United States v. Knights, 534 U.S. 112 (2001)."

Blog & News Scan

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Examining Boumediene's Discussion of the Political Question Doctrine:  At Balkinization, guest-blogger David Stras homes in on the majority's discussion of the political question doctrine in its Boumediene v. Bush decision.  Stras' post gives a nice summary of the "elusive" political question doctrine - which allows federal courts to determine "whether the resolution of a particular issue is a matter for the judiciary or one of the political departments of government" - and then jumps into the Supreme Court's use of the doctrine in last year's Boumediene decision.  Stras believes that after Boumediene, not much remains of the political question doctrine, primarily because "in Boumediene, the Court quickly dismissed the Government's argument that questions of sovereignty are matters for the political branches to conclusively decide."  According to Stras, the Supreme Court based its ruling on its belief that "questions of de jure sovereignty (or a claim of right) are matters for the political branches to decide, but that questions of de facto sovereignty (or practical control over a territory) can be examined by the judicial branch."  Stras is astonished by this rationalization "[g]iven that de jure sovereignty is the clearer purely legal question..." and because the Court's discussion is "in stark contrast to its prior case law, which is quite deferential to the political branches on foreign policy questions."  CJLF's Boumediene brief also discussed deference to political branches and urged that the judiciary was not the proper place to resolve this issue.

Sentence Reductions in Maryland:
  Today's Washington Post has an editorial discussing Maryland's "quirky state rule" that allows trial courts to revisit sentences and reduce - but only reduce - a sentence long after the jury has rendered its verdict.  The obvious problem with this practice is that it allows serious offenders back on the street before the trial imposed sentence has been served, even though some of these serious offenders have been denied parole.  And, in spite of the tragic results mentioned in the editorial, Maryland has yet to change its law.  The author of the editorial suggests that failure to change the law could be due to the Maryland State Commission on Criminal Sentencing Policy's failure to obtain complete data from the trial judges who are issuing the reductions.  The commission has been ordered to issue annual summaries of the reductions since 2002, but 2007's report "underreport[s]... preventing a complete analysis of [the reductions] impact."  According to the editorial, a Maryland Community paper, the Gazette, found that Montgomery County judges have not reported a single one its 509 sentence reductions for the two year period between 2005 and 2007.

Maryland Death Penalty Defended: Today, the Baltimore Sun posted an Op-Ed by Scott D. Shellenberger the state's attorney for Baltimore County. Shellenberger was a member of the Maryland Commission on Capital Punishment, and did not agree with the majority's findings.  Shellenberger argues that the the majority (57%) of Marylander's believe the state should keep the death penalty.  He also argues that the majority's argument that the death penalty is too expensive was based on a flawed economic study.  Shellenberger personally believes the death penalty is necessary to protect "ourselves, our police officers and our correctional officers."  In the posted video Shellenberger asks Marylanders to retain the death penalty.

Spinning crime stats

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A common tactic among those who use studies to advance policy positions rather than to advance knowledge is on full display today. The tactic is to announce in advance that a study is going to be released, along with the announcer's interpretation (i.e., spin) on what the numbers show. The actual study is then withhheld until well after the newspapers for the following business day have been printed and distributed. In this way, no one else can comment specifically on the methodology of the study or alternative interpretations of the data during the same news cycle. By the time they have the actual report and time to read it, it's old news.

James Alan Fox of Northeastern University is supposed to release a study today of homicide rates, according to lots of stories in newspapers this morning. As of this writing, the study itself does not appear to be on the NEU website. It was not linked in any of the numerous stories I read, so in all likelihood it either was not given to the reporters at all, or it was given to them "embargoed," i.e., on condition they wouldn't give it to anyone else. The study, we are told, will show an alarming rise in homicide rates among black teenagers, even while homicide rates nationwide were falling. Well, that isn't really news. We've pretty much known that.

Some reporters are savvy to this tactic, while others fall for it hook, line, and sinker.  This AP story simply reports Fox's predictable spin and quotes one other kindred spirit. It's all about funding government programs, you see.

In contrast, Erik Eckholm of the New York Times gathered some contrary views in general, although the commenters obviously couldn't evaluate the unreleased study. 

Use of Force

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From AP comes this brief story of an unfortunate incident on the day after Christmas in Salinas, California.

A man is under arrest on suspicion of murder after police say he pushed a panhandler away from his car at a gas station, resulting in a fatal head injury.

Salinas police say 29-year-old Orion Christopher Moore was at the Pilot Truck Stop gas station on Friday when an unidentified homeless man offered to wash Moore's windows.

Moore declined the offer, but the homeless man, who police say was about 60 years old, reportedly began washing the windshield anyway. Police say Moore pushed the man away from his car, causing him to fall and hit his head on the pavement. The man died at Natividad Medical Center.

Moore is being held at the county jail.

Huh? Murder? First, giving police the benefit of the doubt, there may be more to the story than what we read in this brief report. If there is not, though, Moore should not have been arrested at all and most certainly should not have been charged with murder.

There are several mental state alternatives to the crime of murder. One is specific intent to kill. There is no indication of that in the story. The other is an act of extreme recklessness, such as shooting the windows out of occupied buildings. Intent to kill a person inside is not required; it is enough that there is a known, strong possibility, and the perpetrator recklessly commits the act anyway. There is no indication of anything close to that in this story. A third guilty mental state is killing a person in the course of a felony, such as rape or robbery, but again there is no indication of that here.

Killing a person accidently in the course of an illegal or negligent act can be involuntary manslaughter. If they were going to charge Moore with anything, that would be the charge.

But why charge him with anything at all? Simply pushing a person is nondeadly force. True, even "nondeadly" force can result in a person's death under highly unusual circumstances, but that unforeseen consequence does not change the legality of the act. Nondeadly force is an appropriate and legal response to a trespass, which the decedent clearly committed. There is nothing wrong, much less illegal, about using such mild force in this circumstance. It is unfortunate that this person's annoying and illegal tactics resulted in his death, but he was the one who set the wheels in motion, not Moore.

News Scan

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Triple-Murderer Gets His Wish:  South Carolina triple-murderer Kenneth Justus was sentenced to death Tuesday, after prohibiting his attorneys from introducing mitigating evidence or arguing for mercy.  The story by Schuyler Kropf in today's Charleston Post and Courier reports that Justus, was serving two life sentences for previous murders when he stabbed 22-year-old Justin Bregenzer to death with a home-made knife.  Bregenzer was serving time for property crimes  and walking away from a trash pickup detail.  No Virginia, life in prison does not prevent murderers from killing.

Murder Suspect May Have Targeted Witnesses:  A man in jail awaiting trial for murder is now facing additional charges of soliciting the killing of two witnesses.  Gregory Orlando Fann was facing the death penalty for a murder last May when, according to police, he offered another inmate $10,000 to kill the two two teen-aged witnesses to the killing.  A story by Edward Lewis in the PA Times Leader reports that Fann, a small-time criminal in Edwardsville, shot and killed 19-year-old Aaron Witko with a .44 caliber pistol, after leading him to a secluded area supposedly to sell Witko an assault rifle.  Two teenaged boys who had accompanied Fain witnessed the murder.  Investigators recently discovered that Fain had typed a letter on a correctional facility typewriter providing descriptions and the addresses of both witnesses and the best time to kill them.  The letter was mailed to a recently released inmate.  

Blog Scan

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President Bush Issues Pardons:  At Blog of the Legal Times David Ingram posts on President Bush's 19 new pardons and one new commutation.  The pardons, announced by the DOJ today, involved convictions for financial crimes, firearm violations, or drug offenses.  One drug commutation went to Reed Raymond Prior, sentenced to life in prison in Ohio in 1996 for possession of methamphetamine with intent to distribute. His sentence will now expire Feb. 23, 2009. Ingram reports that Reed's commutation was supported by Families Against Mandatory Minimums, which says he has overcome his addiction and begun tutoring other inmates.  Ingram's post contains the DOJ's press release, which provides a full list of those pardoned.  Doug Berman at Sentencing Law and Policy also has a post with links to an AP article and Ben Smith's commentary at Politico. 

Bush v. Gore
Eight Years Later:
  David Post has a piece on Volokh Conspiracy discussing Adam Liptak's article "Bush v. Gore Set to Outlast Its Beneficiary" in yesterday's New York Times.   Liptak's article states that although the Bush v. Gore decision was intended to "produce a president and then self-destruct[,]" courts are beginning to see the case argued in briefs, and are invoking it in decisions.  For example, the Sixth Circuit invoked Bush v. Gore last month in League of Women Voters of Ohio et al. v. Brunner et al.  The three-judge panel relied on (and quoted) Bush v. Gore when it held that once a state grants the right to vote on equal terms, it may not "by later arbitrary and disparate treatment, value one person's vote over that of another."  The 2000 decision was also front and center in last week's recount litigation in the Minnesota Senate race between Norm Coleman and Al Franken.  Post comments on Volokh Conspiracy that the Bush v. Gore decision can have several different meanings, and that "[u]ltimately, its meaning will [be] determined by what happens subsequent to the decision itself, in the ways in which later courts use it and apply it in future cases."  I guess we will have to wait and see what happens in the next eight years...

Research No Defense for Child Porn Possession:  At Sentencing Law and Policy, Doug Berman blogs on the guilty plea of Wade Rowland Sanders, a Vietnam War hero who served in a senior Navy post during the Clinton administration.  Sanders pled guilty in San Diego federal court yesterday for possessing computer files containing 600 images of minors, including a 21-minute video that depicted girls engaging in sex acts with an adult man.  CNN and the San Diego Tribune have both reported on the plea.  Sanders apparently told the Tribune that he downloaded the files "as part of his research for an article on the sexual exploitation of children in foreign countries[,]" pleaded guilty even though he didn't realize federal child pornography laws barred downloading or viewing the material even by researchers.  Sanders, a lawyer, stated his decision was based on the fact that  "I'm technically guilty of the crime."  The plea, to one felony charge of possession of images of minors engaged in sexually explicit conduct, could result in a maximum of 10 years in prison.  Sanders could also be fined $250,000 and be required to register as a sex offender. James Taranto of WSJ weighs in here.

News Scan

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New Hampshire Death Penalty: An Associated Press story, by Beth LaMontagne Hall, follows up on a New Hampshire jury's decision to sentence cop-killer Michael Addison to death, and discusses the lengthy appeals process that may delay his execution.  On Appeal, the defense seems prepared to argue that in an overwhelmingly white state, the defendant Addison - who is black - may have received a death sentence because of his race.  The story quotes one DP opponent who believes that supporters of capital punishment are "more likely to have a racial bias."  It is also possible that, rather than Addison's race, the jury was motivated to select the death penalty because of Addison's week-long spree of robberies and armed assaults, which led up to his shooting of a police officer, who had a wife and two young sons, point blank in the face. 

Justice Denied:  After 26 years of review, Arizona murderer Warren Summerlin has managed to avoid the death sentence given to him in 1982.  Michael Kiefer's story in today's Arizona Republic reports that after the Ninth Circuit's 2005 ruling finding that Summerlin's attorney did not present enough mitigating evidence to persuade the judge to give him a life sentence, the Pinal County DA is calling it quits. Over the years of appeals in this case key witnesses have died, making it unlikely that this murder would receive a death sentence at a new sentencing trial. Summerlin was convicted of killing Brenna Bailey in 1981 when she went to his residence on behalf of her employer to attempt to collect a delinquent debt. Summerlin bashed in Ms. Bailey's head and skull, probably with a hatchet, wrapped her partially nude body in a bedspread, and discarded her remains in the trunk of her car.

Dying Declarations

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In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court revamped the jurisprudence of the Confrontation Clause along "original understanding" lines -- what the right of confrontation entailed at common law -- in place of the policy-oriented rule of Ohio v. Roberts, 448 U.S. 56 (1980) -- whether the out-of-court statement of the unavailable witness was reliable. In footnote 6, the Crawford opinion notes, "The one deviation [from the rule against out-of-court testimonial statements against the accused in a criminal case] that we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed."

Whether that historical exception is incorporated in the Confrontation Clause has not been squarely presented in a case before the high court to date. However, the Kansas Supreme Court has adopted it in the case of State v. Jones, No. 97,279. Kansas Supreme Court Blog has this summary. The full text is here.

A shot at the death penalty, upon exiting

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From Jackson, Mississippi, comes this AP story by Jack Elliott. "Outgoing Supreme Court Justice Oliver Diaz Jr.'s impassioned call for an end to the death penalty has drawn both criticism and praise."  For those not familiar with Justice Diaz's record: "Diaz, a presiding justice, returned to the court in May 2006 nearly three years after being acquitted of federal bribery in 2005 and tax evasion charges in 2006." While the jury was apparently not convinced beyond a reasonable doubt, the voters of Mississippi apparently saw enough reason to dump him.

Meta-analysis of Capital Deterrence

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The Sept-Oct 2008 issue of Journal of Criminal Justice has an article by Bijou Yang and David Lester titled "The deterrent effect of executions: A meta-analysis thirty years after Ehrlich." Here is the abstract:

In 1975, Ehrlich published a seminal paper in American Economic Review which argued that executions prevent murders in America. Subsequent empirical studies varied in their methodology and the time-period/region/country covered, and therefore it is difficult to draw a clear conclusion about the deterrent effect of executions. This article applies a meta-analysis to combine the results from refereed studies in order to summarize objectively the findings. The overall results of the meta-analysis supported the deterrent effect of executions, but the evidence for a deterrent effect depended on the type of study carried out (time-series and panel data versus cross-sectional data and the effects of publicity).

News Scan

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Tennessee Killer Loses Appeal:  Steven Michael West, sentenced to death in 1986 for the brutal murder of a Nashville woman and her 15-year-old daughter, lost a bid to further delay his execution yesterday.  An Associated Press story reports that a divided panel of the Sixth Circuit Court of Appeals affirmed the district court's earlier rejection of West's claims of ineffective assistance of counsel and prosecutor misconduct.  On the day of the murders, 23-year-old West and a 17-year-old accomplice, waited until Wanda Romines husband left for work.  The pair then entered the house, raped Mrs. Romines daughter Sheila, then stabbed the girl and her mother to death.  A pathologist testified that both victims had torture-type wounds on their bodies. 

No Good Deed Goes Unpunished:  In a divided decision announced yesterday, the California Supreme Court held that a young woman who pulled her co-worker from a crashed car can be sued for doing so.  A story by LA Times writer Carol J. Williams reports that the decision creates an exception to the state's Good Samaritan law which gives qualified immunity to a person who acts in good faith to render emergency care.  Distinguishing an emergency response from medical care, the  majority ruled that the defendant, Lisa Torti, should have waited for emergency responders to remove Alexandria Van Horn from the damaged car, rather then pulling her out.  Van Horn, now a parapalegic, alleges her injuries were worsened when Torti dragged her from the car.  Torti testified in a deposition that she pulled Van Horn from the car because she feared that it was about to burst into flames.

The Union Goon Full Employment Act

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One of the hottest topics for the new Congress is a proposal to unionize a workplace if 50% + 1 of the workers sign a card under the watchful eyes of the soliciting union organizers. Whether the billy clubs and brass knuckles will be openly displayed or merely suggestive bulges beneath overcoats is not clear at this point. The other 50% - 1 of the workers will be compelled to pay dues to and be represented by an organization they never approved of without any chance to vote on it at all, secret or open.

In today's WSJ, Richard Epstein of U. Chicago Law has this op-ed, arguing that this bill is not only astonishingly bad policy and unconscionably unfair but also unconstitutional.

Oh, by the way, the official title of the bill is the Employee Free Choice Act. Really.

I suggest an amendment to the bill. In the 2010 election for the House of Representatives, the party opposing the incumbent may collect cards favoring its candidate signed by registered voters of the district. If they get such cards signed by 50% + 1 of such voters, there will be no election on the first Tuesday in November in that district, and the challenger will be deemed the winner.

Blog Scan

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New SSRN Paper Discussing Lethal Injection in Courts:  At Sentencing Law and Policy, Doug Berman provides the link to the paper "Lethal Injection and the Problem of Constitutional Remedies"by Professor Eric Berger.  Berger is an Assistant Professor at Law, at the University of Nebraska College of Law.  In his article Berger argues that remedial concerns, aimed at fixing potentially painful lethal injection procedures, significantly misdirect courts' approaches to lethal injection.  He believes that courts fear that any lethal injection remedy would unduly burden the state and interfere with executions.  Berman comments that he is "repeatedly and consistently impressed with the extent of the 'real engagement with the merits' of what always seem to be very weak evidentiary claims based on limited medical evidence and a few anecdotes." Berman expresses frustration that, contrary to Berger's claim, capital defendants frequently have their Eighth Amendment claims addressed on the merits, while "a broad array of Eighth Amendment claims brought by non-capital defendants -- whether involving extreme sentences or extreme prison conditions -- rarely seem to get serious consideration by courts..."

News Scan

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Maryland DP Commission:  The Maryland Commission on Capital Punishment, in which most of the members were death penalty opponents, recently released its majority report.  They were mostly against it.  As we learned from similar efforts in New Jersey, Illinois and California, when a commission of mostly death penalty opponents is appointed to study the death penalty, the majority report reflects the opinion of the majority.  A story by Dilip Paliath on presents the perspective of Delegate Bill Frank, a member of commission's minority. 

Cop Killer Sentenced to Death:  For the first time in 49 years, a New Hampshire jury has sentenced a murderer to death.  AP writer Beth LaMontagne Hall reports that Michael Addison was on a week-long crime spree when Officer Michael Briggs confronted him in a Manchester alley.  Addison turned and shot Briggs in the head.  Briggs left a wife and two young sons.  Governor John Lynch, who said the death penalty was appropriate in this case,  promised to veto any attempt to repeal or scale back the state's death penalty law   

Can a Cartoon be a Sex Offense?

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William Saletan at Slate has this interesting post about a man convicted of possession of child pornography in Australia:

[T]he plaintiff was convicted ... of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900 (the Act) and using his computer to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (the Code). The alleged pornography comprised a series of cartoons depicting figures modelled on members of the television animated series "The Simpsons". Sexual acts are depicted as being performed, in particular, by the "children" of the family. The male figures have genitalia which is evidently human, as do the mother and the girl.

Saletan prudently notes:

What's happening to child pornography is what's happening on the Internet and in software generally: Technology is blurring boundaries between action and thought, public and private, real and fake. On this point, the Australian court quotes the Supreme Court of Canada: "With the quality of contemporary technology, it can be very difficult to distinguish a 'real' person from a computer creation or composite."

Perhaps this is another reason to fear appeals to "international authorities" when thinking about U.S. criminal justice issues. Many sex offender policies are well intentioned and very misguided.   The upshot: tread very carefully. 

Blog Scan

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The Third Circuit, Animal Cruelty, the First Amendment and (maybe) the Supreme Court:  At Volokh Conspiracy Jonathan Adler predicts that the Third Circuit's en banc decision in United States v. Stevens, could get a chance to be heard before the U.S. Supreme Court.  Adler reports that the Third Circuit had found that depictions of animal cruelty are protected by the First Amendment and struck down  federal law 18 U.S.C. § 48, prohibiting the production, sale, and possession of depictions of "animal cruelty."  Monday, the Solicitor General filed a petition for certiorari in the case.  Adler predicts that because "the Court usually agrees to review decisions striking down federal statutes... the chances for certiorari are pretty good."

California Appellate Court Rejects Second Amendment Challenge:
  At Sentencing Law and Policy Doug Berman provides a link to today's decision in People v. Yarbrough, No. A120721 (Cal. App. 1st Dist. Dec. 17, 2008). The defendant in the case was convicted of carrying a concealed firearm (Pen. ‎Code, § ‎‎12025, subd. (a)(2)), and carrying a loaded firearm in a public place (Pen. Code, ‎‎§ 12031, subd. ‎‎(a)(1)).‎  In his appeal he claimed, among other things, that his conviction of possession of a concealed ‎weapon ‎violated the Second Amendment.  The court decided today to uphold the judgment, concluding "that the conviction of ‎possession of a concealed ‎weapon does not contravene defendant's Second Amendment ‎rights as interpreted in the United ‎States Supreme Court's decision in District of ‎Columbia v. Heller..."  

Senate Judiciary Committee: David Ingram at BLT has this post on how the Minnesota recount and the filling of Pres-elect Obama's seat may affect the composition of the Senate Judiciary Committee. "A bigger committee margin potentially gives a majority party a greater ability to limit difficult questions from the opposition, as well as some wiggle room in the case of controversial nominees."

Cone v. Bell: A different take on the oral argument in this case is available on SCOTUSblog, written by Josh Friedman, a Stanford law student who worked on the brief for the petitioner. Our previous post, by Kent Scheidegger, who wrote an amicus brief supporting the respondent, is here.

The Right to Bear Yagers: Eugene Volokh has this post on an 1869 Oregon gun rights statute.

An Expert in Developmental Epistemology?

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Yesterday the 10th Circuit issued its per curiam opinion in Young v. Sirmons (#07-5150 2008) affirming the District Court's dismissal of Young's habeas petition.  Young, who was convicted and sentenced to death for the murders of his girlfriend's daughter and her 6 year-old granddaughter, presented a Strickland claim of ineffective assistance of counsel.  The opinion is an interesting read as it finds Young's counsel violated the first prong of Strickland, but nevertheless found no prejudice.  There's also an interesting discussion of the state's Landrigan claim, which the court ultimately rejects. 

Yet the decision is also remarkable as it pertains Young's roster of mitigation experts.  Among them is Wanda Draper, Ph.D., a "developmental epistemologist" who apparently conducted a qualitative analysis of Young's history was prepared to testify:


"Young suffered cumulative emotional trauma as a result of the loss of four close family members [maternal grandmother and grandfather, brother, and son] during a seven year period in his adulthood" which, in Draper's opinion, caused him "to experience a breakdown of his compulsively ordered life." Id. at 10. More specifically, Draper opined that "[t]he emotional impact of these losses produced a severe stress and trauma psychologically," and "his thought processes obscured reality and he suppressed his deepest feelings of loss." Id. According to Draper, "[w]hen ... Young was threatened with another loss, that of rejection by his girlfriend, one could expect that he would experience severe emotional trauma as he began to, again, lose control." Id. That is, "[w]hen he faced losing his most recent emotional connection to his love, Joyslon, it was beyond the scope of his ability to adapt." Id. at 12-13. Thus, Draper opined, "it is conceivable that he acted in concert with a deep subconscious need to protect his ego and thereby move outside the realm of his conscious awareness of moral justice." Id. at 13. "From a neurological perspective, it is [Draper's] opinion that on a conscious level, he would not be aware of what he had done." Id. In Draper's opinion, the murders "could have been the result of distortion in his rational thinking" "set into action by the combination of severe emotional trauma and use of alcohol which dulled the inhibitions" (at 37-38).



News Scan

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Nichols' Sentence Sparks Reform Bid:  Georgia legislators, frustrated over an Atlanta jury's failure to unanimously choose a death sentence for the murderer of four people, are introducing legislation allowing the sentence when less than 12 jurors agree.  A story by New York Times reporter Robbie Brown discusses the response by state lawmakers to the jury's decision not to impose a death sentence.  Nichols on trial for rape in 2005, overpowered a female deputy and took her gun, then shot and killed the judge, the court reporter, a deputy who tried to prevent his escape and a federal agent a few miles from the courthouse. After Friday's jury decision, the judge sentenced Nichols to 11 life sentences.  The story quotes a Harvard Law School Prof who suggests that allowing non-unanimous juries to select a death sentence might be unconstitutional. 

Adam Walsh's Killer Identified:  Florida police reported yesterday that a serial murderer serving five life sentences admitted to the kidnap and brutal murder six year old Adam Walsh in 1981.  An Associated Press story reports that Ottis Toole confessed that he was the little boy's murderer, but later recanted.  The child's severed head was found in a canal by fishermen two weeks after his abduction from a shopping mall.  After his son's death his father, hotel developer John Walsh, dedicated his life to improving law enforcement's handling of missing children cases and to tracking down criminals who abduct children.  He founded and hosted the television show "America's Most Wanted" which enlisted millions of viewers to help solve such cases. His advocacy helped create a national database and toll-free call-in line to help find missing children.  Toole, who John Walsh had long suspected, died in prison in 1996.  

Methadone 'does not reduce crime': BBC News has this report on research from the University of Glasgow, finding "those using methadone took heroin on a fewer amount of days, but they committed just as much crime."
The California Department of Corrections and Rehabilitation has this press release and this web page on the implementation of Proposition 9, enacted by the voters on November 4. The web page has a link for victims to request notification of parole hearings and transcripts of the hearings.

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Group Called Texas Voices Seeks To List Only Most Dangerous on Sex Registries:  Over the past few days Corey Rayburn Yung and Dog Berman had posts on Sex Crimes and Sentencing Law and Policy discussing the efforts of Texas Voices to limit sex offender registries to only those offenders who are dangerous predators.  The Houston Chronicle has this report on the effort.  Apparently Texas Voices "believes community notification laws fail to protect the public, because they don't distinguish dangerous predators from otherwise harmless men and women who foolishly had sex with underage lovers, served their sentences and don't need a lifetime of public scrutiny."  Yung's post argues that while Voices' efforts "could improve sex offender registries" he thinks the better solution is to "give the power to judges to make actual determinations as to the dangerousness of offenders ..."  Grits for Breakfast also has this post. 

More Supreme Court Case Commentary From Federalist Society:  The Federalist Society recently posted this page providing commentary from Lee Casey on habeas cases Waddington v. Sarausad and Hedgpeth v. Pulido.  Casey, a Partner at Baker Hostetler, specializes in federal, environmental, constitutional, election, and regulatory law issues, as well as international and international humanitarian law.  He has also worked at the Office of Legal Counsel and the Office of Legal Policy at the U.S. Department of Justice.  For those of you interested in CJLF's position in Pulido, our brief can be found here.  

Justice Ginsburg Presides Over Re-Enactment of Muller v. Oregon:  At Blog of the Legal Times Tony Mauro has a post describing last night's re-enactment of Muller v. Oregon at the Supreme Court.  The event was sponsored by the the Supreme Court Historical Society and pitted Georgetown University Law Center professor Vicki Jackson against New York Solicitor General Barbara Underwood.  Muller involved an Oregon law that limited to ten the number of hours a woman could work in a day at a factory or laundry.  Mauro reports the case is probably most remembered "for a brief filed by then-consumer advocate Louis Brandeis in support of the law." The "Brandeis brief," dwelled not on the facts of the case but on social science and health research, statistics and government labor reports to make its case.  In 1908, the Justices voted to uphold the Oregon law, and last night Ginsburg commented that she would have done the same.  In addition, Justice Ginsburg used Muller to bring attention to the modern debate over whether judges who are interpreting the U.S. Constitution should consider foreign laws, rulings and data.  According to Mauro, with regard to the "Brandeis brief" Ginsburg asked "What is the relevance of all these practices and regulations abroad? Shouldn't we disregard them?"  We know Ginsburg wouldn't disregard foreign opinions today, but it is interesting that she gave an advocate the chance to explain the relevance of foreign data last night.  

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Re-sentencing Ordered for Co-Ed Murderer:  The Idaho Supreme Court has overturned the death sentence of Darrell Payne, convicted in in 2002 of the kidnapping, rape and murder of Boise State student Samantha Maher.  The Court's decision  focused on victim impact statements, made during sentencing, that were inadmissible and might have influenced the judge's sentencing decision.   An Associated Press story on the case is here.

More Victim Impact
: Meanwhile, in Stockton, California, serial rapist/murderer William Jennings Choyce was formally sentenced to death for killing Victoria Bell, Gwendolyn Lee, and Lawanda Beck, reports Scott Smith for the Record. Further background is available at Smith's blog. He recounts that after an earlier story where he reported that Ms. Lee was a prostitute, he got a call from her sister. "Valerie wanted to talk to me and explain that her sister, Gwen, was a mother, a sister, an aunt - a person. She was right, so I asked if she and some of her relatives would agree to talk with me in front of a camera." The resulting video story is here.

Pro Bono and Radical Chic: William McGurn of the WSJ has this column on the swarm of lawyers from academia and blue-chip law firms who are eager to defend the Guantanamo detainees "pro bono publico." The result is that the government lawyers are badly outnumbered. At one hearing, McGurn says, "half a dozen Justice Department lawyers [were] waiting in a room packed wall-to-wall with high-priced partners -- many backed up by legions of associates, outside legal experts, human-rights centers, and concerned law students." Sound familiar, capital habeas litigators?

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Today at the Supreme Court:  At SCOTUSblog Lyle Denniston posted this summary on today's orders and opinions.  First, the Court announced its decision in Altria Group Inc., et al., v. Good, et al. (07-562).  The 5-4 opinion, authored by Justice Stevens, allows smokers to challenge the deceptive marketing of cigarettes as "light" and "low in tar and nicotine."  Ashby Jones also has a post at Wall Street Journal blog discussing what the decision could mean for future "federal preemption" cases.  Second, the Court remanded Rasul, et al., v. Myers, et al. (08-235) to the D.C. Circuit Court so that the court could reconsider its rejection of claims of torture and religious bias against Guantanamo Bay detainees. The D.C. Circuit Court had made the previous decision five months before the U.S. Supreme Court decided Boumediene v. Bush (06-1195).  The D.C. Circuit must now take that opinion into consideration.  Hopefully the D.C. Circuit will not take this opportunity to afford detainees constitutional rights under the Eighth Amendment, as Denniston appears to suggest.

Erosion of Mens Rea Requirement?:  At Sentencing Law and Policy Doug Berman posts on a Legal Opinion Letter from the Washington Legal Foundation.  The article, "Mens Rea Requirement: A Critical Casualty Of Overcriminalization," argues that by passing statutes that criminalize innocent or merely negligent behavior has "significantly eroded the traditional mens rea requirement for criminal conviction."  Berman posts that while he is "not as troubled" with  the use of criminal law to achieve regulatory ends, he does object to serious criminal punishments without evidence of culpability.   He cautions against construing these statutes to allow prosecutors a huge amount of (unregulated) discretionary authority in their charging and bargaining and sentencing practices. 

A Year Without the Death Penalty In a State That Has Not Executed Since 1982:
  Howard Bashman at How Appealing provided the link to an article in New Jersey's Newark Star-Journal.  The article, by Rudy Larini, reports that a year after New Jersey became the first state to repeal the death penalty through legislation, prosecutors and defense lawyers agree that there has been no change in the way would-be capital cases are prosecuted in New Jersey.  The lack of change could be due to the fact that New Jersey had no death penalty in reality prior to the repeal of its nominal death penalty law. This does not mean that the repeal has managed to escape controversy.  Larini reports that in State v. Fortin, the New Jersey Supreme Court is considering whether or not a convicted defendant can get the maximum sentence of life-without-parole if the jurors have not considered that sentence in separate deliberations.  It looks as though the "penalty phase" of death penalty law is migrating over to life-without-parole cases in New Jersey.   
Have you ever heard this in a courtroom (or even a TV courtroom)? "The jury is deadlocked at 11 for conviction and 1 for acquittal. The defendant is acquitted and free to go."

Of course not. No jurisdiction has such a rule for the guilt verdict. That would be crazy. So why do so many states have exactly that rule in the penalty phase of capital cases?

Greg Bluestein of AP has this story on the miscarriage of justice in the trial of Brian Nichols, the notorious Atlanta courthouse gunman. The jury deadlocked at 9-3, with the three reportedly refusing to deliberate. This is becoming increasingly common as more jurors become aware that they have the power to veto the death penalty just by holding out.

Life Imitates "Animal House"

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This is off-topic, but too funny to pass up. From James Taranto's WSL "Best of the Web" e-newsletter:

 Bluto: "Over? Did you say 'over'? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!" Otter: "Germans?" Boon: "Forget it, he's rolling."--dialogue from "Animal House," 1978
 "Today is Dec. 7, the day that this government killed over 80,000 Japanese civilians at Hiroshima in 1941, two days before killing an additional 64,000 Japanese civilians at Nagasaki by dropping nuclear bombs on innocent people."--anti-American preacher Jeremiah Wright, Dec. 7, 2008

Today's Conference

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The Supreme Court today granted certiorari in two civil cases. The order is here. If they are following their usual pattern, we can expect no grants on Monday's orders list. Other cases scheduled for today's conference were either denied or "relisted," scheduled to be considered again at a later conference.

Among the cases scheduled but not granted, and thus probably denied, is Curry v. Butler, No. 08-517, on whether Cunningham v. California, applying the Apprendi rule to California's three-tier sentencing system, is retroactive on habeas corpus.

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Any Identifying Tattoos?  An habitual felon stopped by police in St. Paul yesterday was stuck on stupid when he gave the officer a false ID.  He apparently forgot that his real name was tattooed on his neck as reported by the Star Tribune.  Note the photo that accompanies the story.  Maybe states should require a repeat felon's name to be tattooed on his neck after a third conviction. 

School District Sued over Drug Testing:  California's Shasta Union High School District is being sued for enforcing a policy of random drug testing of students who participate in extra-curricular activities according to an Associated Press story.  The suit, filed by the ACLU, claims that the testing violates the state constitution.  The drug testing  policy was adopted in school districts across America after a 1995 U.S. Supreme Court decision rejecting a similar ACLU challenge claiming it violated the federal constitution a Vernonia School District v. Action.

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Supreme Court Clerks' Influence and Ideology:  At PrawfsBlawg, Rick Hills has a post discussing the "troubling finding" that since 1990 "conservative justices increasingly hired clerks from the pool of clerks of conservative circuit judges."  The study Hills credits with this finding was published by his colleague William Nelson in NYU's Legal History Colloquium and can be found here.  What Hills objects to is the "ideological sorting" of legal elites, where conservatives will typically hire conservatives from more conservative law schools and think tanks, and vice versa.   Hills urges law schools to resist the temptation to be a part of this process.  The post nicely coincides with this article by Adam Liptak in Monday's New York Times.  Liptak's article discusses a new DePaul Law Review study  by Todd Peppers and Christopher Zorn that claims to show that the political leanings of law clerks do influence the votes of Supreme Court justices.  Liptak writes that Peppers and Zorn's study "demonstrate[s], almost in passing, that justices tend to hire clerks who share their political views."

Data on Executions in 2008: 
At Blog of the Legal Times Tony Mauro posts that "Executions Declined Nationwide in 2008."  Apparently, 2008 will end with the lowest number of executions in 14 years.  The Death Penalty Information Center released a report today that claims this decrease "reflect[s] public and government concerns about fairness, adequate legal representation and even the cost of capital punishment."  While this might be partially true, Mauro correctly notes that Baze v. Rees, and its informal moratorium on executions, caused several states to wait until after the April ruling to schedule their executions.  Doug Berman also has this post on the report at Sentencing Law and Policy.  

Reasonable Traffic Stops in California

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  As noted in yesterday's blog post, the California Supreme Court issued opinions in two traffic stop decisions today.  Opinions authored by Justice Corrigan were handed down in the companion cases of People v. Hernandez and In re Raymond C.  Both cases addressed whether an officer could make a traffic stop to determine if a vehicle has a temporary driving permit, or to determine if the displayed temporary permit is valid, if the vehicle lacked a rear or both license plates.

  As expected, the decisions distinguished the two cases on their facts, with each decision upholding the decision of the lower court. 

Published AEDPA Regs

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The published version of the final AEDPA regulation is here, 73 Fed. Reg. 75327-75339.

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Cold Case Files  DNA Tags "Nonviolent" Criminal for Murder:  California's DNA database helped San Francisco police identify a suspect in the 1991 rape and murder of a Richmond woman.  Jaxon Van Derbeken of the SF Chronicle reports that the DNA sample taken from habitual burglar Otis Hughes after his October release from prison linked him to the brutal murder of 39-year-old Karen Wong.  The victim was found hog-tied and stabbed to death with a kitchen knife.  Hughes' wife said that while her husband committed burglaries because he needed money, he had never been violent.  A rape/murder conviction would make Hughes eligible for a death sentence, except in San Francisco where, as a matter of policy, DA Kamala Harris does not seek it. 

Ninth Circuit Overturns Murder Conviction:  In a ruling announced Tuesday, the Ninth U.S. Circuit Court of Appeals has overturned the 1994 conviction of Roger Chambers for the first degree murder of a man in a Reno motel. The Court's divided opinion rejects Nevada's exhaustion rule argument, and holds that a flawed jury instruction prejudiced Chambers' case.  The court also held that based upon its assessment of the facts Chambers should have been convicted of second degree murder. A brief Associated Press story on the case is here.    

Defendant Judge Wants Polygraph Evidence: In a trial in federal district court in Texas, U.S. District Judge Samuel Kent is the defendant, charged with abusive sexual contact of a court employee. He wants to admit polygraph evidence, which is generally considered inadmissible. In United States v. Scheffer, 523 U.S. 303 (1998), a military case where there was a categorical rule of exclusion, the Supreme Court rejected the argument that there is a constitutional right to introduce this evidence. CJLF filed an amicus brief supporting the rule. "U.S. Senior Judge Roger Vinson of Florida, who is overseeing the case, said he believes a properly conducted polygraph examination could be presented to a jury with the instruction that it is merely a tool. But Vinson ruled in Houston today that there are deficiencies in the Kent polygraphs," reports Mary Flood in the Houston Chronicle.

A Circus in Cambodia

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Delaying antics by the defense are not limited to the United States, as indicated by this story by Claire Duffett in Cambodia. Jacques Verges represents Khieu Samphan, who was head-of-state during the Khmer Rouge genocide. Among other things, he demanded his client "be released because most of the documents are not translated into French." They are already in Cambodian and English, which is all that precedent requires. "Little of the French lawyer's discourse resembled traditional legal arguments. He quoted French King Louis XIV, recited his career highlights and suggested the court appeal to the U.N. to replace its former secretary-general, Kofi Annan...."

Organizers then gave victims a chance to speak, aided by an English translator. "You are performing a circus," scolded a middle-aged man named Ly Monysak. He and several other victims implored the court to replace Khieu Samphan's attorneys.
Also on trial is torture prison chief Kaing Guek Eav, alias "Duch." The chief villian of the Cambodian Holocaust, Pol Pot, was removed to a higher court 10 years ago.

Whatever the final outcome, this tribunal cannot deliver justice. It is a U.N.-affiliated organization, so it cannot impose the only adequate punishment for the horrific crimes of the Khmer Rouge.
  Tomorrow, the California Supreme Court will announce its opinion in companion cases In re Raymond C. and People v. Hernandez.  The issue in the cases is whether an officer can make a traffic stop to determine if a vehicle has a temporary driving permit or if the displayed temporary permit is valid if the vehicle lacks a rear or both license plates.

AEDPA Regs, as Amended

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After the jump are the text of the final AEDPA regs with additions indicated in italics and deletions indicated in strikeout. Italics in the original are omitted. Insignificant changes such as the capitalization of "state" are not indicated. The examples in the regulation are unchanged from the June 2007 proposal and are omitted.

AEDPA Fast Track Regs, At Long Last

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When Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, the most important of the habeas reforms was thought to be new Chapter 154 of title 28 of the U.S. Code. That chapter implemented, with some changes, recommendations of committee chaired by retired Justice Lewis Powell. In return for providing appointed counsel on state habeas in capital cases (which states have no constitutional obligation to do, see Murray v. Giarratano, 492 U.S. 1 (1989)), the states would get a number of benefits, including most importantly some time constraints on the federal courts in their processing of the federal habeas.

Alas, it was not to be. The very federal courts that were to be constrained by the new law had the power to decide if it applied, and they uniformly decided it did not. The evasion reached Kafkaesque proportions in Spears v. Stewart, 283 F.3d 992 (2002), in which the Ninth Circuit acknowledged that the Arizona appointment mechanism met every requirement in AEDPA but denied the state the benefit of the statute anyway, because in the individual case the state had not met a timeliness requirement in its own law that Congress had not required.

In the USA PATRIOT Improvement and Reauthorization Act of 2005, Congress took the decision on a state's qualification away from the habeas court and gave it to the Attorney General of the United States, with review by the D.C. Circuit. Almost as an afterthought, the statute also provided for DoJ to promulgate regulations to implement the statute. No one involved at the time imagined it would take DoJ three years to finalize the regulations, but it did. The final regs will finally be published in tomorrow's Federal Register. An advance copy is available here.

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Colorado's Death Penalty:  An editorial in the Denver Post makes the rare acknowledgment that there are some murderers who actually deserve a death sentence.  The Post believes that Sir Mario Owens should be executed for murdering three people, including the the witness to one of Owens' killings.  While stating that allowing Owens' crimes to go unpunished, "or even underpunished," "would be a blow to the very foundation of our courts," the Post somewhat paradoxically states that it "has historically opposed the death penalty, and that has not changed."     

Detainee Mistreatment:  The Supreme Court held oral argument today in Ashcroft v. Iqbal (07-1015), a lawsuit brought by a Pakistani Muslim seized after 9/11 who claims that he was brutally mistreated by federal officials while being detained in a Brooklyn prison. A story by Christian Science Monitor writer Warren Richey reports that the plaintiff is seeking a ruling to allow former Attorney General John Ashcroft and FBI Director Robert Mueller to stand trial for the mistreatment.   Lyle Denniston has this analysis at SCOTUSBlog. Update: Tony Mauro has this report on the argument at Legal Times.

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Sixth Circuit Denies Habeas to First Woman Sentenced to Death in Tennessee:  Jonathan Adler has a post at Volokh Conspiracy discussing the Sixth Circuit's divided denial of a habeas appeal in Owens v. Guida.  As Ken Whitehouse of the Nashville Post reports, this places Gaile K. Owens "one step closer to the death chamber."  Gaile Owens was convicted and sentenced to death for hiring a man to kill her husband in 1985.  The man who killed her husband, Sidney Porterfield, was also sentenced to death. The court apparently divided over whether Owens received ineffective assistance of counsel because she failed to cooperate fully in her own defense and her her attorney neglected to pursue her mitigation defense that her husband was so cruel and sadistic that, to quote Adler, "he just needed killing."  Adler's post provides breakouts of the majority and dissenting opinions to illustrate the split. 

When Budget Gets Tight New Hampshire Gets Soft on Prisoners:  At Sentencing Law and Policy, Doug Berman has a post on a story from New Hampshire's Union Leader reporting on Corrections Commissioner William Wrenn's decision to use his power to intercede when an inmate wants to ask for a sentence suspension for those prisoners who wish to pursue higher education.  The announcement comes at a time when Wrenn has been placed under orders to cut his budgets for the next two years, and he hopes the policy will help the department save money.  New Hampshire state law allows an inmate to ask the judge who imposed his sentence to suspend part of it after he has served the greater of four years, or two-thirds of the minimum term.  Commissioner Wrenn has stated he will forward the petition to the judge when he believes suspension is justified, particularly if the inmate is pursuing a high school or college degree. Wrenn's policy will set stricter standards for those petitioners convicted of violent crimes, and excludes repeat offenders, sex offenders, and those convicted of capital crimes. 
  At 10am EST the U.S. Supreme Court heard oral arguments in Arizona v. Johnson (07-1122), a case testing a police officer's authority to pat-down a passenger for weapons as he emerged from a car that had been stopped for a traffic violation.  Coincidentally, late last night an Arizona county sheriff was shot in the abdomen when he stopped along a rural road in Thatcher, AZ to help a driver who had pulled over to the side.  The tragic shooting of Graham County Sheriff Frank Hughes serves as a good reminder of why it is important for cases like Johnson to debate exactly what and who the law should protect.

  Arizona v. Johnson involved a lawful routine traffic stop of a car in a Tucson neighborhood noted for gang activity.  While one police officer questioned the driver about his car insurance, Officer Trevizo directed her attention to the passenger in the back seat of the car - a man wearing Crips gang colors and carrying a police scanner in his jacket pocket.  When she asked him to step out of the car so she could ask him about gang activity, he voluntarily stepped out of the car, and then Officer Trevizo frisked him for weapons.  She found a gun and marijuanna.  The Arizona Court of Appeals found the search to violate Fourth Amendment rights, the Supreme Court of Arizona denied discretionary review and the state of Arizona appealed to the U.S. Supreme Court.  CJLF wrote a brief supporting Arizona, which can be found here.

  While the important issue at stake in the case -whether an officer confronted with a potentially "armed and dangerous" individual during a lawful stop may frisk the individual for weapons - was placed front and center by both Arizona and the federal government, the issue that seemed most troubling to the Justices was: when does a stop end, or is it possible for a lawful stop to become consensual?   

Why Did We Take This Case? Part 2

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For the second time in less than a month, the U.S. Supreme Court heard argument in a habeas petition by a death-row inmate and immediately questioned why it took the case at all. Previously, as noted here, the Court dumped the case of Bell v. Kelly, deciding it shouldn't have taken it.

The case of Cone v. Bell came before the high court for the third time. See Bell v. Cone, 535 U.S. 685 (2002); Bell v. Cone, 543 U.S. 447 (2005). This time, the case involves a claim that the prosecution failed to disclose evidence in its possession at the time of trial tending to confirm the defendant's claim that he was on drugs. The rule of Brady v. Maryland, 373 U.S. 83 (1963), requires the prosecution to disclose material exculpatory information, whether on guilt or penalty, but deciding what is material has always been slippery.

Tom Goldstein, for the petitioner, began by noting "two things I think are uncontested." Chief Justice Roberts immediately pounced.

There is also a third thing that's uncontested, which is there is no Brady claim on the merits. That's not at all included in your question presented. The district court and the court of appeals concluded that there was no Brady violation on the merits. I don't know what would happen if we sent this case back. They would conclude it again.

Compare CJLF Brief at 30.

9/11 Guilty Pleas

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"Khalid Sheikh Mohammed and four co-defendants said Monday that they were ready to confess to orchestrating the Sept. 11, 2001, terror attack on the U.S. that killed nearly 3,000 people, asking a military judge to take their guilty pleas at once," reports Jess Bravin in the WSJ. "All five defendants face possible death sentences."

"Col. Henley [the judge] also asked prosecutors to file briefs on an apparent ambiguity in the 2006 Military Commissions Act, which suggests that a death sentence can be imposed only by the unanimous agreement of a military jury."

That shouldn't be a problem, but it is surprising that Congress repeated a mistake that was at issue in a notorious Supreme Court case. Here is a nickel tour of the Military Commissions Act and the death penalty (all section references are to 10 U.S.C., chapter 47A):
Illinois Governor Rod Blagojevich is in federal custody on charges of trying to sell the appointment to fill the U.S. Senate vacancy created by the election of Barack Obama. Mike Robinson reports for AP, "A 76-page FBI affidavit said the 51-year-old Democratic governor was intercepted on court-authorized wiretaps over the last month conspiring to sell or trade the vacant Senate seat for personal benefits for himself and his wife, Patti."

Corruption from the Chicago machine doesn't surprise me, but corruption in a decision one has to know will be in the spotlight does.

Update: The WSJ has this article by Joe Barrett and Evan Perez, along with the DoJ complaint and press release.

1 in 5

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As mentioned previously, a recent article in the Archives of General Psychiatry suggesting that 1 in 5 college students have a serious personality disorder received quite a bit of coverage in the popular press.   The Last Psychiatrist has some good thoughts about this article, including this:

I'm sure I'll be disputed, but hear me out:  we're entering the age of Keynesian Psychiatry, and the NYT can't contain their ejaculate.

It's an era where "free will" and the normal checks and balances of society and superego are considered ineffective.  No one can be expected to resist the id, and we need our parents to help keep us in control, or bail us out, send us money, when we need it.

We have massive bailouts, where the solution to 30 years of prior deficit spending is-- sit down-- more deficit spending; when the solution to overconsumption and undersaving is-- even more consumption and less saving.  Similarly, 30 years of maladaptive behaviors will be treated with-- different maladaptive behaviors.

It's not profits and growth, it's "fiscal stimulus" and "infrastructure development"-- in psychiatry this means less focus on treatment, less focus on "remission," and increased spending on detection, prevention, education-- you're already sick, you just don't know it.  This dovetails nicely with the (temporary) death of Big Pharma, who won't be generating any new treatments any time soon.  And if it's not obvious why early detection and education is bad: you don't get to decide what kind of detection or what kind of education.  Psychiatry does.

So too will there be increased "services" for the "mentally ill"-- redefined as anyone at all who wants the benefits-- even if these services weaken society in the long run.  Both are Ponzi schemes built to fix prior, failing Ponzi schemes.  They'll fail,  just in time for our kids to get drafted.

Just as you see a move towards more government regulation and control, so will you see psychiatry mirror this.  Laws will be written and revised, focusing less on punishment while simultaneously emphasizing surveillance.  For example: "taking cocaine is a disease, it shouldn't be punished, it should be treated.  So let's have mandatory drug testing for everyone 14 and older, you know, for early intervention."

Psychiatry as an arm of social policy means we have accepted society's new mantra: please save me from myself.

Or to put it another way, it matters how mental health professionals define mental illness.

Blog Scan

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The Effect of Bush's Nominees on the Federal Bench:   Jonathan Adler posts at Bench Memos on a Washington Post story that discusses how President Bush's nominees have altered the make-up of the Federal Bench.  The Washington Post story highlights divisions on the Sixth Circuit.  Adler's more detailed analysis of the article can be found at Volokh Conspiracy. Near the end of his Volokh post Adler points out that after eight years with a GOP president, most of the circuit judges came from Republican Presidents.  In the grand scheme, we can contribute this to Republican control of the White House for 28 of the past 20 years.  Ashby Jones also has this post on the story at Wall Street Journal Blog. 

South Carolina Is Last Execution of 2008:  On Sentencing Law and Policy, Doug Berman posted his thoughts on South Carolina's execution of Joseph Gardner.  A story by Glenn Smith of Charleston's Post and Courier can be found here.  According to Berman, Gardner's execution was the last scheduled execution of 2008.  This puts the number of executions in 2008 at 37, the lowest number since 1994.  Of course, the big reason for the lower number of executions this year was the Supreme Court case of Baze v. Rees.  The litigation in the case prevented any executions between October 2007 and April 2008.

Commentary on Oregon v. Ice
:  At the Federalist Society, Former White House Counsel William Otis provides commentary on Oregon v. Ice and the Supreme Court oral arguments in the case.  CJLF's amicus brief can be found here.   

The Law Lords

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Of all the slow-changing institutions of the Mother Country, the House of Lords is one of the slowest, and the duration of the people's tolerance for it has been a source of puzzlement to many Americans. They actually had hereditary seats in the upper house of their legislature into the twenty-first century. Their court of last resort has, up to now, been effectively a committee of that house. That will soon change, and in 2009 there will finally be a Supreme Court of the United Kingdom. Joshua Rozenberg has this article in the Telegraph on the transition. Among the unresolved questions: "And how should we refer to the new judges when reporting their rulings? Justice Hale? Deputy President Hope? President Phillips? It all sounds a bit American." Horrors. (Hat tip: How Appealing)

Blog Scan

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A First Amendment Conversation Between Nixon and Justice Burger:  At Blog of the Legal Times Tony Mauro has a post relating the details of a taped conversation between Warren Burger and then-President Nixon.  Mauro reports that the conversation begins with Nixon asking Burger a casual question about how the Court will decide the then pending First Amendment case of Miller v. California.  The most interesting part of the conversation comes when Nixon discusses the First Amendment standard for obscenity with Justice Burger and what it could mean for the Miller decision.  Mauro also provides this link for audio files of the conversation. 

What Could Happen with al-MarriKent beat me to the punch with his update the the Kerr post earlier today, but, more details can be found at Volokh Conspiracy where Orin Kerr offers up his thoughts on what might happen to the U.S. Supreme Court case of al-Marri v. Pucciarelli if the Obama Administration decides to detain al-Marri on some ground other than "enemy combatant."  Kerr believes that if the Administration can drum up some other criminal charge against al-Marri then the Court is likely to dismiss the case.  He thinks this is the likely move for the Administration as it will "reinforce to the Justices that there's a new Executive Sheriff in town; it would look good to the world; it would make civil libertarians happy; it would keep Al Marri off the streets; and it would avoid litigation a battleground that the new administration didn't choose and presumably would rather have avoided in the first place."  Kerr also believes the Court may have granted certiorari today to signal to the Obama Administration that when it comes to al-Marri, the Administration had better act soon. 


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News Scan

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O.J. Gets Nine Years:  As noted in Kent's earlier post, a Las Vegas judge has sentenced one-time football star O.J. Simpson to prison for kidnapping and robbery.  Simpson's tearful apology prior to sentencing did not dissuade Judge Jackie Glass who referred to incriminating recordings implicating him in the crime. "It [was] your own words, Mr. Simpson, your own words that could be heard throughout those events that have brought you here to this seat in my courtroom."  Simpson will be eligible for parole in 2017, but could remain incarcerated for 33 years, according to this Los Angeles Times story by Ashley Powers and Harriet Ryan.

Fewer Death Sentences in Texas:   A story in the Houston Chronicle by Michael Graczyk reports that significantly fewer Texas murderers received a death sentence this year.  The annual review from the Texas Coalition to Abolish the Death Penalty noted that 18 executions were carried this year compared with 26 in 2007.  The group's Executive Director said "...officials' zeal for executions was not matched by public desire for new death sentences, as evidenced by the continued steep decline in the number of new inmates arriving on death row."  What was not noted is that homicide rates in the state's two largest cities are down for the second year in a row.  A Dallas Morning News story by Tanya Eiserer reports a whopping 22% drop in that city's homicides.  Houston's rate was down 7% last year according to the FBI Uniform Crime Reports, and had continued to decline last spring.  The evacuation of Houston and devastation caused there by Hurricane Ike in September may also contributed to lower a homicide rate this fall.

O.J. Simpson Sentence

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O. J. Simpson received a sentence that could result in 33 years in prison, or he could be out on parole in 9, according to this AP story by Ken Ritter with Linda Deutsch.

The judge specifically denied relying on Simpson's killling of Nicole Brown Simpson and Ronald Goldman as a basis for the sentence, eliminating a controversial legal question from the case.

It is well established that facts informing a judge's choice of sentence within the statutory range for the crime of conviction do not need to be proved beyond a reasonable doubt. Judges can and do consider misconduct for which a person was never charged as a crime. But if the person is charged and acquitted, should that allegation be usable nonetheless? Logically, there is no reason why acquitted conduct should be treated any differently from never-charged conduct. The jury verdict of "not guilty" is a misnomer. It doesn't mean the defendant is actually not guilty; it means his guilt has not been proven beyond a reasonable doubt.

In Simpson's case, his guilt was proven to the satisfaction of a civil jury, by "clear and convincing evidence," after a full trial by top-notch lawyers. If consideration of acquitted conduct is allowable at all, it is hard to imagine a better case for it. However, it looks like this case will not be the test case for that proposition.

Doug Berman has this post at SL&P.

Cert. Grants

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The Supreme Court's day-of-conference order is here. They took no regular criminal cases, one employment discrimination case, and one war-on-terror detainee case. Lyle at SCOTUSblog has the details on the detainee case, as usual. Expect Monday's list to be no grants, lots of denials, and routine stuff.

Update: Orin Kerr at VC thinks there is a good chance that the detainee case will be mooted by the new Administration, charging Al-Marri with a mundane criminal offense.

Blog Scan

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Microphone Malfunction During Supreme Court Oral Arguments:  At Blog of the Legal Times, Tony Mauro has a post explaining the "banging sound" that crept into transcripts from oral arguments in Fitzgerald v. Barnstable School Committee.  The banging occurred during Charles Rothfeld's argument for the Petitioners after Justice Ginsburg asked him to raise the microphone on his podium.  Apparently, when Rothfeld cranked up the podium, he inadvertently stretched a wire to one of the microphones on the podium to the near-breaking point.  The result: a loud banging sound "as if someone was swatting one of the microphones."  Luckily, Rothfeld kept his cool and finished his argument without further banging.  This serves as one more example of what not to let fluster you when appearing before the Supreme Court.

Alito Speaks on Originalist Interpretation at the Supreme Court
:  Robert VerBruggen has a post on Bench Memos discussing Alito's keynote address at The American Spectator's annual Robert L. Bartley Gala last night.  For VerBruggen, Alito's "most interesting remarks had to do with how the Supreme Court is increasingly returning to Blackstone's 'text first' method of interpreting laws..."  While Alito used D.C. v. Heller to illustrate the Supreme Court's use of originalist intent.  He then cited  the interesting statistic that recently, judges have used dictionary definitions more often than they have through the entire history of the court.  As a follow-up, Kathryn Jean Lopez provides a post that exemplifies how Justice Alito used his quick wit to poke fun at Vice President-elect, Joe Biden.

Can Emoticons Become Entrapment?: 
This is the question posed by Dionne Searcey at Wall Street Journal Blog today.  In her post Searcey discusses a case before the Nebraska Supreme Court involving "those little smiley faces created by various punctuation that teenagers -- and some Law Bloggers -- use in text messages and emails. :)"  The case revolves around a 31-year-old, James Pischel, who was sent to prison for using his computer to entice a 15-year-old girl who turned out to be a police investigator.  According to Pischel's attorney the state investigator played on Pischel's emotions and continued to chat with him after Pischel had said she was too young to pursue.  Although it seems hard to believe that little punctuation marks could entice someone to do something they wouldn't ordinarily do, Nebraska's Supreme Court will get the chance to review the issue and Pischel's sentence.  For more information on the oral argument check out Lori Pilger's article in the Lincoln Journal-Star.   

First, Do No Harm

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In the current issue of the American Journal of Bioethics is an interesting article by Dr. Michael Keane of the Monash Medical Centre, Victoria, Australia. Keane's thesis is that the effect on the family of the murder victim, "co-victims" as he calls them, must also be considered in debating the role that physicians play.

Ralph Baze, who was the appellant in the recent Supreme Court case (Supreme Court of the United States. 2008), was convicted for killing two police officers. Earlier in the year and in response to this Supreme Court challenge the local media reported on one Baze's co-victims: '"It makes me sick," said Carl Briscoe, as he talks about how the man who shot his brother in the back of the head is today sitting comfortably in a cell in Eddyville (Louisville Courier-Journal 2008). But is not "healing" the sick a part of the AMA code of ethics discussed previously? Surely making someone sick is not ethical. Whether or not it was justified, and this article does not address the overall question of the appropriateness of the death penalty, it is inescapable that those physicians who supported Baze's appeal contributed to making Mr. Briscoe "sick".
There are multiple "Open Peer Commentary" articles following Dr. Keane's article, and their tone and content will not surprise anyone familiar with the nature of death penalty debate. Lee Black and Hilary Fairbrother of the AMA chime in with this observation, among others: "It is likely that the United States Supreme Court will eventually address the constitutionality of capital punishment itself, rather than just a particular method." Breaking news from 1976, as James Taranto of the WSJ would say. They have addressed it. See Gregg v. Georgia, 428 U.S. 153.

Courtenay Bruce, identified as a J.D. with the Cleveland Clinic, opines, "It also is conceptually and practically difficult to extend the physicians' obligation to do no harm to the co-victims. Indeed, the physician should do no harm to the patient (the felon, in this context) and society as a whole, but it is unclear why this obligation should be narrowly tailored to the co-victims." (Emphasis added.) Bruce gives no justification for the assertion that the felon is the patient in this context, and none is apparent. Neither physicians participating in executions nor those engaged in advocacy to prevent executions are engaged in treating the felon for any medical condition. What makes the murderer a "patient"? Bruce goes on, "The interests of society in assuring that justice has been done, and the interests of the felon in exhausting his appeal mechanisms, seem to outweigh any harm incurred by the co-victims in having to delay the execution." Baloney. Absent any genuine question of actual innocence (and there was none in the Baze case and in most capital cases), "the interests of society in assuring that justice has been done" are precisely aligned with, not opposed to, the interests that Keane notes.

The full texts of the article and comments are, unfortunately, not available online to the general public without a stiff fee. Citation and abstract follow the jump.

News Scan

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Who is the New AG?  An article in today's Wall Street Journal Review & Outlook discusses some of Attorney General nominee Eric Holder's activities while he served as U.S. Attorney for the District of Columbia, and Deputy Attorney General in the Clinton Administration.  The piece focuses on Holder's role in both the pardon of Marc Rich and the members a Puerto Rican terrorist group, as well as his refusal to investigate a perjury claim against Hillary Clinton's health czar Ira Magaziner.  

In His Own Words:  The text message from a criminal to his girlfriend apparently convinced a Sacramento jury to convict him of murder.  Sacramento Bee newsman Andy Furillo reports that the prosecution showed the jury a text message from Sirtice Melonson, 23, saying that he just "popped" someone, shortly after he shot and killed a 17-year-old during a 2005 robbery.  When police arrested him, Melonson told them "I'm not asking for the best deal in the world, I just want to get out before i'm 45 or 50."  The attempted robbery/murder convictions may net this fool life without parole at his sentencing next month.

Assault by Cheeseburger:  A Florida man has been charged with domestic violence for attacking his girlfriend with a cheeseburger.  The Associated Press reports that the suspect shoved the burger in the girl's face during an argument, and is free on $1,000 bond until his trial.  Maybe she was hungry.

That's the title of this thought provoking article in the current issue of Psychology, Public Policy, and the Law by August Piper, Linda Lillevik,and Roxanne Kritzer. The abstract:

Some courts in recent years have tarnished their credibility by willingly and blindly adopting the theory of repressed memory. Such acceptance can destroy the reputations of falsely accused individuals, and, by failing to pay due attention to scientific evidence, gives credence to pseudoscience and demeans the scientific method. This paper was written to inform judges and attorneys about the relevant evidence, which shows that: (a) the concepts of repressed and recovered memory are not generally accepted in the psychological and psychiatric community; (b) the studies cited to support these concepts reveal significant flaws; (c) much empirical evidence has been accumulated against the theory of repression; (d) the studies using the best methodology offer the least support for the repression hypothesis; and (e) there is no evidence that recovered memories accurately reveal the specifics of long-ago events. Repressed- and recovered-memory theory is not supported by science.

As mentioned before, repressed memories are a dark chapter in the marriage between psychological science and law. Back in the 1980s, repressed memories were held as cutting-edge science and readily embraced by our culture and legal institutions. Repressed memories grow out of the last epoch of Freudian psychoanalytic thinking. It framed the way psychological scientists and common folk viewed behavior and was heralded for pealing away outdated notions of free will and responsibility though an understanding of unconscious drives. Somewhat like what neurolaw claims to do these days.

Blog Scan

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Expanding The Definition of "Crime Victims":  At Volokh Conspiracy, Paul Cassell has a post discussing his recently filed mandamus petition in the Eleventh Circuit.  The petition asks the court to recognize borrowers who were overcharged on loans as "crime victims" under the Crime Victims' Rights Act.  His petition challenges a ruling by a Florida District judge in November 2008, that borrowers on loans from Coast Bank were not "crime victims" of a criminal conspiracy because they were not specifically listed in the criminal charges against him.  It argues that because borrowers suffered financial losses from the fraud, they are "victims" entitled to the protections of the federal Crime Victim's Rights Act, and are entitled to restitution.  A copy of the petition can be found here.  Cassell seems particularly excited about the precedent this case could set.  He writes that this case "could produce the first appellate court decision deciding who is a 'victim' under the [Crime Victims' Rights Act]."  He hopes it will be "a nationally significant case that will set the precedent for whether people who harmed by financial crimes have rights in the process."  Doug Berman at Sentencing Law and Policy also has a post on Cassell's petition.

Another Take on Philip Morris Oral Arguments:  As a follow-up to Kent's post on today's Philip Morris arguments, here is a report from Jan Crawford Greenburg on the "60 minutes of non-stop action[,]" that occurred in the Court this morning.

Ohio State Journal of Criminal Law Tackles Sex Crimes:  At Sex Crimes, Corey Rayburn Young has this post  providing brief summaries of the three articles in the Journal's Fall 2008 issue.  Of particular interest is the article by Wayne A. Logan on "Criminal Justice Federalism and National Sex Offender Policy."  Rayburn's post provides a snippet from the article which discusses  the "nationalization of registration and notification, systematically achieved by the federal government over a fifteen-year period," and its "major effect on constitutional federalism and the states themselves."    

News Scan

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Judges to Rule on Inmate Release:  Three federal court judges met in San Francisco yesterday to consider whether to release of thousands of convicted felons from California prisons.  An Associated Press story by Don Thompson reports that the panel, appointed last year to consider lawsuits claiming that the state's prisons were providing an unconstitutional level of medical care, is leaning toward granting early releases of inmates.  

Death Sentence for Tennessee Killer:  A federal judge has sentenced Rejon Taylor to die for the 2003 kidnapping and murder of an Atlanta restaurant owner.  A story by Monica Mercer in today's Chattanooga Times Free Press reports that the victim, Guy Luck, had been the target of an identity theft scheme Taylor had carried on for at least a year.  When Taylor suspected that Luck had caught on to the scheme, he decided to kill him.  A federal jury unanimously recommended that Taylor face execution for the killing. 

High Court Lifts Stay of Execution: The U.S. Supreme Court has lifted the federal court stay on the execution Darold Ray Stenson, a Washington man sentenced to die for the 1993 murder of his wife and a business partner.  An Associated Press story reports that a brief statement by Justice John Paul Stevens, and joined by Justice Ruth Bader Ginsburg, found that the stay by District Judge Lonny Suko was improperly granted. 

Call For Philip Morris

The U. S. Supreme Court heard oral argument today in Philip Morris v. Williams. This is the third time this case has been to the high court. Lyle Denniston has this argument preview at SCOTUSblog. Debra Cassens Weiss has this story at ABA Journal Law News Now. CJLF's brief supporting neither party is here. Our interest in the case is in asking the Court to clean up its jurisprudence on the question of what is an "adequate" state ground for refusing to consider a federal question. The confusion in this area allows state prisoners to smuggle questions into federal habeas that they failed to raise in their state court appeals.

Mark Sherman of AP has this brief postargument story, and Lyle has this post suggesting that the Court might reconsider its earlier decision not to take up an underlying question on the merits of the case, different from the one the state court has now found procedurally barred.

Update: The transcript of the argument is available here. Notes on the argument with emphasis on the points that are particularly of interest to habeas practice follow the jump.


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CJLF's main web site is back up and we are receiving email. Thanks for your patience.

The blog commenting system is still buggy.

Update: I have given up on both Typekey (now absorbed by Typepad) and Movable Type's native registration system and enabled comment registration through the OpenID system. We'll see how this works. Registration for OpenID is available in several places, including VeriSign.

My apologies for any inconvenience. The folks at Typekey/Typepad are apparently unfamiliar with the maxim, "If it ain't broke, don't fix it."

The Senate

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Jim Galloway, live-blogging the Georgia Senate runoff for the Atlanta Journal-Constitution, reports, "The Associated Press has just declared Republican incumbent Saxby Chambliss the victor in the U.S. Senate race in Georgia. The Democrats have fallen short of their 60-seat majority."

We can breathe a little easier. The Republicans may be able to block drastic pro-criminal legislation, such as repeal of AEDPA.

Emotions and Capital Punishment

Back in June, Doug Berman and Stephanos Bibas published their final version of "Engaging Capital Emotions" in Northwestern University Law Review Colloquy.  I found the article while I was cleaning out my desk today, and a re-read (and Kent's post yesterday) inspired me to blog about it. 

The article expresses Berman and Bibas' views on the role emotions play in death penalty litigation while focusing particularly on cases of child rape.  Their theory is that human emotion drives many of our criminal law practices, and is particularly relevant in the area of capital punishment.

Pulido: Do It Over

As predicted here and here, Hedgpeth v. Pulido was decided quickly and per curiam by the U. S. Supreme Court. The Court was unanimous that the Ninth Circuit's determination that the jury instruction in this case was "structural error" was erroneous. The majority decided that the case needed to go back to the Ninth for application of the correct harmless-error standard of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The dissent (Stevens, Souter, Ginsburg) would affirm on the ground that the lower courts had effectively determined that Pulido should get habeas relief under the Brecht standard, and there is no need to drag this particular case out for one more round of review.

The AP story on the case is here: "The Supreme Court took aim at one of its favorite targets Tuesday, criticizing a California-based federal appeals court for its ruling in favor of a criminal defendant."

Crime and Psychosis

While today's news focuses on the current Archives of General Psychiatry article reporting 1 in 5 college aged students has a personality disorder, another article just released in the American Journal of Psychiatry deserves as much attention - probably more.

The article by Jacques Baillargeon and colleagues titled Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door examines the link between mental illness and risk of multiple incarcerations.  Of note, the authors narrowly construe their definition of mental illness to include only four categories:  major depression, bipolar disorder, schizophrenia, and non-schizophrenic psychotic disorder.  Thus, they wisely excluded substance abuse disorders in their calculations which have greatly inflated the results of similar previous studies. The study included 79,211 inmates who began serving a sentence between September 1, 2006, and August 31, 2007.

The tables and graphs tell the story. Contrary to the prevailing wisdom of many advocacy groups, the study adds the emerging yet growing body of literature which suggests severe mental illnesses do indeed seem to be  associated with crime and violence (click to enlarge).

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Emotionality and Penalty

Lauren's Blog Scan today notes the discussion over victim impact videos and all the whining on the defense side that these are somehow "unfair." The rejoinder in the WaPo story is:

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.
*                           *                        *
"I can see why these videos drive defense lawyers crazy because they actually balance things out," [Orange Co. DDA Matt] Murphy said.
That balance is the key point.

Justice Speculation

With the party committed to identity politics headed back the White House, there is naturally much discussion of the ethnicity of the next Supreme Court nominee. Tony Mauro has this article in the Legal Times on the pressure on the President-Elect to name a Hispanic Justice. Among the possibilities listed is California Supreme Court Justice Carlos Moreno. I'll hoist a cerveza to that.

Blog Scan

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Over At The Supreme Court:  At SCOTUSblog today, Lyle Denniston has posted his thoughts on the "State of the Docket" as of December 1, 2008.  He predicts that the Court will grant review to approximately 11 new cases this term, and five new cases will be announced after Court conferences on December 5th and 12th.  Most of his post discusses the scheduling of oral arguments, but, at the end, Denniston does note that the Court is unlikely to issue grants in cases that will produce "blockbuster rulings."  He states that this term "there are not many cases of significant broader public interest."  He believes that could change if the Court agrees to hear NAMUDNO v. Mukasey or Al-Marri  v. United States.  Tom Goldstein also provides a link to his merits reply breif in Cone v. Bell in his SCOTUSblog post today.  Our Amicus breif in support of Respondent, Bell, can be found here.  

Amendments to Federal Rules of Criminal Procedure:
  Thanks to Orin Kerr at Volokh Conspiracy for this little reminder that the latest round of amendments to the Federal Rules of Criminal Procedure go into effect today. The amendments can be found here, and an excerpt explaining the amendments is here.

A Response to a Claim That This is the "Most Conservative Court Since the Mid-1930s":   Also at Volokh Conspiracy, Jonathan Adler has posted his thoughts on Dean Erwin Chemerinsky's essay  "The Roberts Court at Age Three."  Apparently, Chemerinsky believes the Roberts Court to be the most conservative court since the mid-1930s.  Adler disagrees with this position, and offers up his response: "Getting the Roberts Court Right: A Response to Chemerinsky," as well as the argument that the "Roberts Court is moderately more conservative than some of its recent predecessors on some issues, but it remains quite 'liberal' on others. Particularly because Justice Kennedy is the swing vote on so-many ideologically charged cases..."

Blogging on Victim-Impact Videos:
  At Sentencing Law and Policy, Doug Berman, a self-proclaimed "strong believer in victims' rights at sentencing," has a post discussing Saturday's Washington Post article by Jerry Markon.  The article discusses the use of victim videos during sentencing, and reports that the Supreme Court has recently declined to hear challenges to the use of two such videos.  This could mean that we will see an increase in the use of such "technology-aided victim impact statements" during trial and sentencing.  To counter his own bias, Berman offers a link to a defense view of victim videos from ChrisT at Talk Left.

SCOTUS This Week

Monday: Very little of interest to criminal law practitioners is happening today. The orders list contained no new grants of certiorari. That is normal when the grants are announced on conference day, as they were last week. Several crim. pro. cases involving cars were denied, as described by Lyle Denniston at SCOTUSblog. Oral arguments are a couple of real snoozers. Kansas and Colorado sally forth into the second century of their battle over the Arkansas River. Shades of Bleak House. The other case involves arbitration and labor contracts.

Tuesday: Opinions are possible. I'm expecting Hedgpeth v. Pulido to be among the early opinions this term. Arguments are two civil cases of no particular interest.

Wednesday: The arguments are two civil cases. However, they involve federalism issues that touch on criminal law.

Philip Morris USA v. Williams involves the question of when an independent state procedural ground of decision is "adequate" to block consideration of a federal question. This issue comes up very often in habeas cases. The Supreme Court's jurisprudence on this topic is a mess. The unwritten rule in the Ninth Circuit is that all California grounds are per se inadequate. CJLF filed this brief supporting neither party, asking the Court to clean up this "untidy area of our law."

Haywood v. Drown is a prison litigation case asking whether the state legislature can kick 42 USC § 1983 actions out of state courts.

News Scan

Governor Calls for Mexican Death Penalty:  Coahuila state Governor Humberto Moreira is asking the legislature to adopt a recommendation that Mexico's Congress restore the death penalty for kidnappers who murder their victims.  An Associated Press story reports that a 2/3 majority of the Congress would be required to undo the 2005 Constitutional amendment that abolished capital punishment.

Fired Public Defender Sues:  A former Santa Clara County Deputy Public Defender, fired five years ago for refusing to answer questions during a disciplinary hearing, will have his claim that his rights were violated heard by the California Supreme Court tomorrow.  A story in the San Jose Mercury News by Howard Mintz reports that Thomas Spielbauer "invoked his Fifth Amendment rights" when his bosses began to investigate allegations that he lied to a judge while representing a criminal defendant.  

DNA Links Accused Rapist to Anchorwoman's Murder:  An affidavit filed today indicates that police identified the man charged with with October 20 beating death of Little Rock news anchor Anne Pressly with a DNA match.  The Associated Press reports that while the police believe that Pressly was killed when she intrupted a robbery, her parents believe that she may have been sexually assaulted.  Murder suspect Curtis Lavelle Vance is also accused of raping a school teacher last April and of committing several burglaries in eastern Arkansas.  Early reports suggest that the victim died from a massive stroke caused by blunt force trauma.  Every bone in her face had been broken and her hand was broken in the attack.   


CJLF's main web site,, is presently down for maintenance. Should be back up by 1:30 pm PST today (Monday).  The upgrade is evidently taking longer than our host anticipated. We will also not be receiving email during this outage.

More Police, Less Crime

At a time when many municipalities are cutting services, comes this notable story by Gabriel Kahn from the Wall Street Journal:

"Shrinking budgets are forcing such cities as Phoenix, Portland, Ore., and San Diego to make deep cuts, including to police. But Los Angeles Police Chief William Bratton has grown his department with a persuasive argument about the financial costs of crime.

The city is adding 1,000 police officers, pushing its force levels in the Los Angeles Police Department to above 10,000 for the first time. Even as the city faces a more than $400 million shortfall for this fiscal year and next, the police budget -- the city's most costly department -- is emerging largely unscathed."

The article also notes the significant decline in crime in L.A. during the past six years which coincides with a sizable increase in the number of police officers.  While crime is surely a multifaceted problem, perhaps one of the answers is straightforward: more police results in less crime.  As Harvard law professor Bill Stuntz discusses, putting more "boots on the ground" likely is part of the answer to reducing crime in neighborhoods which are often seriously underpoliced.  The LA statistics seem to support this assertion. 

Interesting, Police Chief Bratton also argues that more police results in a fiscal savings for the city:

"Mr. Bratton said he thinks of Los Angeles's crime reduction as money in the bank. "The cost of a homicide to the city is $1 million," he said, citing an estimate based on a study by the National Institute of Justice that takes into account such costs as criminal trials and police salaries. 'We've reduced the homicide rate by nearly 300 in six years," he said. "That's a $300 million annual benefit to the city.'"    
Safer Streets.jpg

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