February 2009 Archives

Federalism and the Correct End Result

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Being all-weather federalists, we at CJLF did not support the state of Minnesota's efforts last term to have the U.S. Supreme Court tell the Minnesota courts that they had to follow the federal rule on retroactivity of new rules on habeas corpus, Teague v. Lane, 489 U.S. 288 (1989). In Danforth v. Minnesota, the high court clarified that the Minnesota court could adopt Teague for state habeas or not, as a matter of state law. (Now the other shoe needs to drop: overruling Yates v. Aiken, 484 U.S. 211 (1988).)

On remand, the Minnesota Supreme Court (correctly, in my opinion) rejected the attacks on Teague and accepted it as the best of the available alternatives. Against the argument that the state should return to the old Linkletter-Stovall approach, the court needed only to quote Justice Harlan's criticism of nearly four decades ago.

The Sun Also Rises

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We've been reading so much bad news in the Baltimore Sun about the unrelenting attacks on the death penalty, that we were cheered to see some good news. David Nitkin reports in the BaltSun's Maryland Politics blog (h/t SL&P) that the Judicial Proceedings Committee split 5-5 on the repeal bill, which is a rejection of the bill under their rules. Although the committee is likely to be bypassed and the bill brought to the floor through a rare parliamentary maneuver, it is likely to be narrowly defeated there.

"That sounds like the Great Death Penalty Debate of '09 could end with a fizzle. A Baltimore Sun survey of senators showed that majority want to keep capital punishment."

Bloggers and Newspapers

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San Fran Chrontrarian Debra Saunders, one of our favorite columnists, has this column on the continuing financial woes of newspapers and why no one should be happy about it.

Many conservatives feel a warm glow at the possible demise of an institution that they believe to be failing because of liberal bias. On the far left, that same glow will satisfy those who think newspapers are not liberal enough.

As for those who only read their news online, here's a news flash: News stories do not sprout up like Jack's bean stalk on the Internet. To produce news, you need professionals who understand the standards needed to research, report and write on what happened. If newspapers die, reliable information dries up.

We at C&C are well aware of how much we depend on reporters for the factual basis of the stories we discuss here. That is why we credit reporters by name, something few blogs bother to do. We have our disagreements at times, and we express them candidly. One of the most important functions of blogs is to keep the mainstream press honest and call them when we think they have misreported something. Yet we should not, and we at C&C do not, cheer at the financial distress of newspapers or their shrinking number.
While the capital defense bar is constantly squealing about how underfunded it is, it appears there have been some very questionable expenditures in Illinois, reports Kevin McDermott in the Post-Dispatch:

An Illinois House committee on Thursday unanimously advanced a bill that would crack down on alleged abuses of a state death penalty defense fund that were catalogued by the Post-Dispatch last fall.

The measure now goes to the full House.

The newspaper reported in September that Illinois' Capital Litigation Trust Fund, a tax-funded pot of money that defense teams can draw from when defending death penalty cases, was paying massive, questionable expenses for private investigators and expert witnesses.

The spending included hundreds of dollars an hour for things such as packing their suitcases and driving to the courthouse. It also found that there was virtually no questioning of investigators' submitted hours, some of which made it appear they were working almost nonstop on each case, seven days a week.

English Teachers: Bring back the cane

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Graeme Paton writes in the Telegraph (London):

More than 20 years after corporal punishment was banned in state schools, many teachers said it was acceptable to hit children "in extreme cases".

The majority of those backing the cane said it was needed to crackdown on bad behaviour in British schools.

It follows a Government-backed study last year which found many parents believed discipline had deteriorated since the cane was abolished.

In the latest poll, 20.3 per cent of teachers said it should be reintroduced.

One supply teacher told researchers: "Children's behaviour is now absolutely outrageous in the majority of schools. I am a supply teacher, so I see very many schools and there are no sanctions. There are too many anger management people and their ilk who give children the idea that it is their right to flounce out of lessons for time out because they have problems with their temper. They should be caned instead."

Disorder in schools is a true "root cause" of crime.  Whether corporal punishment is brought back or not (and I think it is unlikely), the squishy approach to discipline and order definitely has to go.

Blog Scan

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Defending Criticism of Pleasant Grove City v. Summum:  At Bench Memos, Ed Whalen and Matthew Franck defend the Supreme Court's decision in Pleasant Grove City v. Summum against Alan Wolfe's attack at the New Republic blog.  Whalen's post can be found here, and Franck's is here. Both men agree with the Supreme Court's holding that the First Amendment's Free Speech Clause did not give a private group a right to place a permanent monument to the Seven Aphorisms in a city park even though other donated monuments were previously erected.  Both men also rejected Wolfe's argument that the Supreme Court made up a "law out of whole cloth..."  According to Whalen, Wolfe "finds deeply offensive the whole notion of a government's freedom to express its views[,]" despite the fact that the government speech doctrine allows the government to express its views without being subject to First Amendment scrutiny.  

Life Without Parole in Juvenile Cases:  Thanks to Doug Berman at Sentencing Law and Policy for directing us to Michelle Durand's article in the San Mateo Daily Journal discussing California Senator Leland Yee's proposed Bill 399.  Yee's proposed bill would "tweak" California's current law so those convicted under age 18 could have their terms reviewed after 10 years for possible re-sentencing.  Bill 399 follows Senator Yee's Bill 999 proposal to California's Penal Code to prohibit a juvenile who commits a crime from being sentenced to more than 25 years to life in prison.  California's Proposition 21 requires that juvenile charged with murder and special circumstances must be tried, and therefore sentenced, as an adult.

Justice Stevens Speaks at Newseum:  Tony Mauro posts about Justice Stevens appearance last night at the Newseum.  Mauro reports that Justice Stevens appeared to moderate a  discussion on the decision Marbury v. Madison with panelists Clifford Sloan, and David McKean, the authors of a new book called The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court.   Sloan is a partner at Skadden, Arps, Slate, Meagher & Flom, and David McKean, staff director of the Senate Foreign Relations Committee.  Justice Stevens role as moderator did not provide much insight into his views on Marbury, but Mauro reports, Justice Stevens did state that analyzing Marbury "for six week or seven weeks" during his first year at Northwestern Law School "'was the beginning of my legal career."' 

Stadium Pat-Downs

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On Monday, the California Supreme Court will announce its decision in Sheehan v. SF49s, regarding implied consent to be patted down for weapons upon entering a stadium. The notice is here.

News Scan

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89 year old Manhattan DA to step down: After 35 years as "a prosecutor who has locked up murderous mobsters, corrupt CEOs and thousands of other criminals for five decades," Manhattan District Attorney Robert Morgenthau will not run for re-election, reported in an article by Samuel Maull, of the Associated Press. During the interval when New York had a death penalty, Morgenthau was notorious for his refusal to use it under any circumstances.

Conviction without body: Placer County has successfully prosecuted their first murder case without a body. The Associated Press writes, "a state appeals court has upheld a conviction for the murder in 2005 of a 27-year-old woman who was last seen leaving a Placer County tribal casino." According to the Third District Court of Appeals in Sacramento, there was enough evidence for the conviction and the convicted will serve a 59 years-to-life sentence.

Strained budget excuse to abolish death penalty?: In an article by Diane Jennings of the Dallas Morning News, "death penalty opponents across the country are using the plight of strained state budgets as an added reason to abolish the final sanction." In Texas, the leading state of death penalty executions, those efforts will not work. While the argument of cost has become the debated issue, Dudley Sharp, who monitors death penalty legislation said, "expense 'should not be the primary factor,' for "it's like saying, 'incarceration costs more than probation, so we should get rid of incarceration and only probate people.' It's ridiculous." CJLF's recent study calling into question the premise that repeal would save money is discussed in this post.

Presumed Innocent? Bernie Madoff?

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"Unless you're a juror, there's no reason to suspend judgment."

One of my pet peeves is that people take presumptions out of their courtroom context, where they serve specific but valuable functions, and insist that we apply them across the board. Sometimes they even drop the presumption language and preposterously assert them as fact, e.g., "The defendant is innocent until proven guilty."

Dan Abrams of NBC attacks this nonsense in an op-ed in the WSJ, with the title and subtitle above.

News Scan

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Senate to Vote on Deputy AG Pick:  The Senate Judiciary Committee has approved President Obama's Deputy Attorney General nominee David Odgen by a 14-5 vote as reported BLT.   GOP committee members voting against Ogden cited his representation of pornographers and appellate defense of St. Louis murderer Christopher Simmons, discussed here by Heritage Foundation Fellow Steven Groves.  The nomination is likey to be approved by an upcoming vote of full Senate.  

Drug Cartels will be a major focus of the new administration's Department of Homeland Security. Washington Post writer Spencer S. Hsu reports that in remarks before the House Homeland Security Committee,  HS Secretary Janet Napolitano said that the violent backlash by cartels to Mexico's crackdown on drug trafficking "deserves our utmost attention right now."  The new focus on the Mexican border comes as law enforcement officials in states such as  Arizona respond to significant increases in violence by Mexican nationals as reported by Daniel Newhauser of the Cronkite News Service.

Pa. Judges face 3rd suit: In an article, Michael Rubinkam, of the Associated Press, writes "two disgraced Pennsylvania judges charged with taking kickbacks to send youth offenders to private detention centers are facing another civil lawsuit tied to the scandal." After Mark Ciavarella and Michael Conahan pled guilty to taking $2.6 million in bribes, "the suit filed Thursday claims Ciavarella detained kids for offenses 'as trivial as shoplifting a $4 jar of nutmeg or taking change from unlocked cars.'" Prosecutors are claiming Ciavarella, sentencing "a quarter of his convicted juvenile defendants to detention center from 2002-2006, compared with a statewide rate of one in 10," was "overly harsh."

See CJLF previous entry here.

No longer "death by natural causes":
The Associated Press writes, "police and medical examiners who thought a man died of natural causes changed their minds after funeral-home workers found bullet holes in his head." After realizing the mistake, authorities attempted to secure the victim's house, but it had already been cleaned. Unfortunately, "this was the second time in 17 months that a Kansas City funeral home returned a homicide victim's body mistakenly ruled a natural death by the medical examiner's office."

The High Cost of Dying

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James Taranto has this post at the Wall Street Journal's Best of the Web.

It seems safe to say that very few people on either side of this debate are chiefly interested in cutting costs. Rather, they are making a fiscal appeal in an attempt to win over those unconvinced by their moral one. For the anti-death-penalty side, however, the cost-cutting argument runs counter to their stated principles, at least if they claim to be promoting a more broadly civil-libertarian approach to criminal justice.

The concluding sentence of the Times article illustrates the contradiction, although the reporter does not seem to have noticed it: "In December [2007] a state commission on capital punishment recommended that Maryland abolish the death penalty because of the high cost and the danger of executing an innocent person." But the cause of the high cost is precisely because the extraordinary efforts the justice system, state and federal, makes to ensure that innocent people are not executed.

If there are innocent people on death row, abolishing the death penalty would make them less likely to go free. They would be thrown back into the general prison population and deprived of the priority their appeals now enjoy because they are in danger of being executed. Their sentences presumably would be reduced to life in prison, a punishment that takes longer to carry out but whose end result is the same as that of execution.

Death-penalty opponents could argue that all convicted criminals deserve the same procedural protections that death row inmates now get. If that is what they believe, however, they are making their cost-cutting arguments in bad faith. If you care about justice for the wrongly accused, the costs attendant to the death penalty are money well spent.

Glad to see these points finally getting some major media attention. To the extent we spend more on capital cases to be sure we have the right guy, there is no moral justification for spending a penny less if the penalty is life without parole. An actually innocent lifer may have more time to prove his innocence, but with no resources to do so, the chances he will be able to are infinitesimal. Out of those people on the DPIC's "innocence list" who actually are innocent (which is not all or even most), it is safe to say that many would be in prison to this day if they had been sentenced to life instead of death.

But Taranto is mistaken when he implies that most of the extra costs are for certainty of guilt. In fact, the largest single item of higher cost is the Supreme Court's mandate that the defendant must be able to proffer anything at all as mitigation. This requires examination of the defendant's entire life by trial counsel preparing for trial and by habeas counsel making the knee-jerk attack on trial counsel's competence. The latter claim is typically examined by at least four different courts. All this litigation is a colossal waste of resources. Make the penalty depend solely on the crime itself and the defendant's criminal record or lack of one, and a big chunk of the expense will vanish.

Equitable Tolling

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Now here is something refreshing. The Ninth Circuit decision in Waldron-Ramsey v. Pacholke involves a claim that an inmate who missed the federal habeas statute of limitations should be allowed to file anyway because of "equitable tolling." Nothing unusual in that, but the opinion by Judge Gould actually holds the prisoner responsible for his own obstructive conduct:

Murderers, Plea Bargains, and Dollars

The folks pushing death penalty repeal bills are making two promises. First, life imprisonment will provide as much protection to the public as the death penalty in terms of incapacitating murderers from killing again.* Second, substituting life imprisonment for the death penalty will save big bucks in trial costs. What they don't mention is the incompatibility of these two promises. To get the same number of never-release sentences as we get now, a lot more murder cases would have to go to trial, and that increase may largely or entirely offset the savings from eliminating capital trials.

In a study we released today in working paper form, we track murder cases in a sample of 33 of the 75 largest counties in the country. The data are from 1988, one of the few compilations of the data items needed for this study. Not surprisingly, guilty pleas in murder cases with sentences of life in prison or terms over 20 years are nearly four times as common in states with the death penalty as in those without it: 19% versus 5%.

What will happen to the cases in that 14% difference if the state repeals the death penalty? Either cases that would otherwise have been pleaded go to trial or murderers that would otherwise have received life or long sentences get shorter ones. The first option costs dollars, and the second costs lives.

The only previous study on the subject that I found was Ilyana Kuziemko (2006), Does the threat of the death penalty affect plea bargaining in murder cases? Evidence from New York's 1995 reinstatement of capital punishment, American Law and Economics Review, 8(1), 116-142. Her answer was that the second option predominated. In states without the death penalty, more murderers get off with lesser sentences.

CJLF's press release is here. The working paper is here.

No SCOTUS Criminal Cases Today

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The U.S. Supreme Court announced opinions today, but only in two civil cases. There is an 8-1-0 opinion by Justice Alito which appears to reach a sensible result on the continuing controversies over religious-themed monuments in public parks in Pleasant Grove City v. Summum.
The LA Times has this story by Carol Williams and Maura Dolan on developments in the California lethal injection controversy. The Department of Corrections and Rehabilitation* has decided not to seek California Supreme Court review of an erroneous Court of Appeal decision that the injection protocol has to go through the administrative public notice and comment process. Just going through the process will be faster. A certain rabble-rouser is quoted criticizing them for not doing that in parallel with the appeal two years ago.

CDCR has asked Cal. Supreme to "depublish" the Court of Appeal opinion, a quirky California procedure that removes a case as precedent without disturbing the judgment. This post at WSJ Law Blog repeats my quote from the LA Times article in a context that seems to imply that I am critical of the depublication request. That is not correct.

Update: The California Supreme Court denied the depublication request and decided not to take the case on its own motion.
This story in the Deseret News reports, "Utah Attorney General Mark Shurtleff is cranking up the phone tree by urging his constituents to call their lawmaker to support a controversial bill that gives the Utah Legislature authority to decide death penalty appeals."

That would indeed be radical if it were true. In Merrie Olde England, the House of Lords was the high court, and a few early American legislatures had judicial functions, but we long ago accepted that legislatures ought not do judicial functions, except impeachment.

Fortunately, Mr. Shurtleff's proposal does nothing of the sort. Senate Joint Resolution 14 simply recovers for the Legislature the authority to decide what postconviction remedies will be available, an authority most legislatures have but which the Utah Supreme Court has wrested for itself. The decision of individual cases would remain with the judicial branch.
A recurring problem in criminal law occurs when one jurisdiction's law depends on a prior conviction entered by another jurisdiction. Within a single state, it is easy enough to refer to priors for violating specific statutes, but with our federated government, 50 states, and mobile population, many priors will be from somewhere else.

So, do we look only at the elements of the offense as defined by that other jurisdiction's law, or do we consider facts that were not actually adjudicated (because they were not elements) but often are not seriously disputed. Today's Supreme Court decision in United States v. Hayes involves Congress's prohibition on firearm possession by anyone convicted of "a misdemeanor crime of domestic violence."  What is that, exactly?

Rivera Argument

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Justice Ginsburg was back on the Supreme Court bench after her cancer surgery, and she was in fine form. The attorney for street gang hitman Michael Rivera had barely opened his mouth before she was grilling him. "It -- it seems quite a stretch to apply those decisions [on biased judges] to -- to the case of a juror who was qualified, and it was just a judge who was overexuberant in denying a peremptory challenge." Transcript here.

It's not a good sign for the defendant when most of your argument is taken up with hardball questions from Justices Souter, Ginsburg, and Breyer and the only softball you get is from Justice Scalia. It's also not good when Justice Kennedy asks opposing amicus counsel, "There are any number of alternatives that we can adopt in ruling for your position. If we were to rule for your position, what do you think is the most straightforward rationale?"

This case will probably be decided on the grounds of when the Supreme Court can review a state decision on a reverse-Batson ruling, where the trial judge has denied a defense peremptory challenge on the ground of race or sex bias. Such a decision may have some application to habeas, but it is not likely to tell us much about how Batson rulings are reviewed in the normal course of appeals, as we had hoped.

An Improper Stay

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Sometimes an otherwise unremarkable statement is remarkable for who says it:

The state court decided under state law that the execution could proceed while respondent's constitutional claim was pending. Accordingly, the District Court should not have entered a stay to give the state court additional time it decided was not warranted.

This statement is by Justice Stevens, joined by Justice Ginsburg, concurring in the order vacating the stay in the Washington State capital case of Vail v. Stenson. Why the separate opinion? The next sentence reads, "In light of that procedural error, and on that basis alone, I vote to grant the application to vacate the stay of execution entered by the District Court." (Emphasis added.)

The other bases appear to be the merits of the lethal injection challenge. In any case, it is good to have a unanimous statement that giving the state court more time is not a valid basis for a federal-court stay.

More Grist for Mills

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The U.S. Supreme Court today granted certiorari to revisit one of the worst decisions of its modern (post-1972) capital punishment era, Mills v. Maryland, 486 U.S. 367 (1988). Mills was one of two dubious decisions that essentially crippled Maryland's death penalty in the late 1980s.   The other one, Booth v. Maryland, 482 U.S. 496 (1987), was overruled in the 1991 decision of Payne v. Tennessee, 501 U.S. 808.

The Mills case involved a jury instruction on mitigating circumstances that had been drafted by a committee of the state bar, approved by the state high court, and written into the official rules. By a strained interpretation of the instruction, a bare majority of the Supreme Court decided that it might be interpreted to preclude consideration of a mitigating circumstance believed to be true by many but less than all of the jurors. By a further stretch, the high court perceived a danger that a jury might return a verdict of death even though all the jurors believed for different reasons that the defendant deserved a life sentence.

The Supreme Court held in Beard v. Banks, 542 U.S. 406 (2004), that Mills had created a new rule, not dictated by the precedents in force at the time. Back in 1988, the Maryland Court of Appeals had applied the decision retroactively, throwing out most of the existing death sentences then in force. We now know, too late, that was error.

In the case taken up today, Smith v. Spisak, No. 08-724, the Sixth Circuit applied the dubious Mills decision expansively. The State of Ohio claims this expansion violated the congressional command in the Antiterrorism and Effective Death Penalty Act of 1996 that state court decisions within the bounds of reasonable disagreement should stand. SCOTUSblog has the certiorari petition here.

The AEDPA point should be sufficient to reverse the Sixth and reinstate the well-deserved sentence of this triple murderer/Nazi.* The Court may also want to take the opportunity to narrow, if not overrule, Mills itself.

Blog Scan

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Marbury ad Newseum: Tony Mauro has this post at the Blog of the Legal Times on Justice Stevens moderating a panel at the Newseum on the Marbury v. Madison case. He reports that Justice Stevens has been fascinated with the case since law school and cites it every chance he gets. We at CJLF like to cite it, too, especially this passage: "That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent."

No Change In DOJ's Habeas Stance at Bagram:  At SCOTUSblog, Lyle Denniston posts on the Government's one paragraph reply brief in Maqaleh v. Gates.  Today, the Department of Justice told District Judge John D. Bates that the Government was "adher[ing] to its previously articulated position."  That position was that of the Bush Administration's DOJ, and stated the 600 detainees being held at Bagram airbase in Afghanistan did not have the right to U. S. courts to challenge their confinement.  The reply brief was filed at the request of Judge Bates who issued an order, back in January, asking the Obama Administration to clarify whether it intended to support the Bush Administration's position on the issue.  Denniston's post on that order can be found here.  It remains to be seen if Judge Bates will agree with the stance taken by either Administration.  Denniston writes that he has already "dropped hints that he may find that at least some of those at Bagram have a right to contest their initial confinement and their continuing imprisonment there."  Joe Palazzolo also has this post at Blog of the Legal Times. 

California's Ban on Violent Video Games Unconstitutional:  Eugene Volokh offers his thoughts on today's Ninth Circuit's decision in Video Software Dealers Ass'n. v. Schwarzenegger, which found that California's ban on renting and selling violent video games to minors was unconstitutional.  Bob Egelko also has a story in the San Francisco Chronicle.  California's statute, California Civil Code sections 1746-1746.5, was found unconstitutional as a content based restriction on free speech that could not meet the legal requirements of strict scrutiny, and was not "not the 'variable obscenity' standard from Ginsberg v. New York."  The Ninth Circuit took issue with the Act's definition of obscenity.  The definition could not be upheld under the Ginsberg variable standard because Ginsberg only addressed sexually-explicit materials.  Furthermore, California had not met its burden under the strict scrutiny test to show that the law was necessary to prevent psychological or neurological harm to minors. 

News Scan

Execution in Virginia scheduled for tonight: Jerry Markon, of the Washington Post, writes "the killer of a Winchester police officer, whose case became a flash point in the debate over Virginia Gov. Timothy M. Kaine's views on the death penalty, is scheduled to be executed tonight by lethal injection." Fallen Sgt. Timbrook was chasing a probation violator when he was shot and killed by Edward N. Bell. "An attorney for Bell said the execution should be stopped because his attorneys at trial failed to present any positive 'mitigating' evidence about his life that could have spared him." However, Gov. Kaine said he found "no compelling reason" to grant clemency. As of now, "the execution [remains] scheduled for 9 p.m." See also our Tuesday News Scan post. Update: Bell had to be forcibly carried to the execution, Dena Potter reports for AP.

Crime labs need upgrade: After a two year study, the National Academy of Sciences, found that the nation's forensic crime labs are in dire need of an overhaul. "The panel recommends that Congress create an independent National Institute of Forensic Science that could formulate standards for various forensic disciplines, regulate training and accreditation, and lead research," writes Carol Cratty and Jeanne Meserve of CNN.com. According to the NAS report, "many of the labs are 'underfunded and understaffed, which contributes to case backlogs and makes it harder for laboratories to do as much as they could to inform investigations and avoid errors.'" Chairman of the Consortium of Forensic Science Organizations, Peter Marone, "who also served on the National Academy of Sciences panel, told CNN 'the great majority of labs are doing first-rate work top to bottom, and make an enormous contribution to public safety.'" The National District Attorneys' Association response is here.

Crime cameras: Nate Carlisle, of the Salt Lake City Tribune, writes "after decades of rushing police to Pioneer Park when a crime is reported, Salt Lake City has decided to keep someone--or something--watching the park permanently." Police and residents are tired of the park being resting grounds for the homeless and a drug dealing hot spot. Karen McCreary, the executive director of the American Civil Liberties Union of Utah is opposing the cameras. McCreary is claiming that "the potential threat of personal privacy and individual civil liberties outweigh the benefits," but D. Christian Harrison, president and chair of the Downtown Community Council, said "the park we have is a unique space and sometimes you need to take unique action."

Ohio sets June 3 execution date: Cindy Leise, of the Chronicle-Telegram reports that "the Ohio Supreme Court has set a June 3 execution date for a man who kidnapped an Amherst woman, locked her in the trunk of her car and burned her alive." Daniel E. Wilson, now 39, was 21 when he admitted he had killed Carol Lutz. Sadly, Lutz was not his only victim. Years earlier, when Wilson was only 14, he broke into an elderly man's home, broke his hip, ripped out the phone, and left him for dead. The man died because he was unable to contact medical emergency. Wilson's attorneys are arguing that he deserves a new sentence while stating "that the death sentence imposed in 1992 by former Lorain County Common Pleas Judge Lynett McGough was improper." Really? For now, Wilson is scheduled to be the third execution for Ohio this year.

California Budget

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The California Legislature will finally fix the budget today, with the deadlock having been broken, Stu Woo reports in the WSJ. The fix adds a full percent to California's already obscene sales tax and a surcharge to our already obscene income tax.

The final vote came from Republican Senator Abel Maldonado, from the central coast area. He exacted as his price an agreement to put several constitutional amendments on the ballot. This alert in the SacBee describes them:

Maryland DP Debate

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John Wagner of the WaPo has this story on the Maryland Senate Judicial Proceedings Committee on the death penalty repeal bill. Baltimore County (not to be confused with very different Baltimore City) State's Attorney Scott Shellenberger is the point man for the cause of justice. (I'm not terribly enamored of his dissing Texas, but he has to do what he has to do.) Former Governor Marvin Mandel was also on hand to oppose the current Gov's bill. The current AG, Douglas Gansler, is also opposed.

There is talk of a filibuster if the bill does reach the floor. Apparently they do filibusters old school in Maryland. Mr. Smith goes to Annapolis. Sumathi Reddy has this story in the BaltSun. It may not be necessary though, as another story by Julie Bykowicz, Laura Smitherman and Gadi Dechter counts a majority (just barely) opposed.

Blog Scan

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Common Sense: "Punishment for Possessing Guns at Home While Dealing Drugs from Home:"  At Volokh Conspiracy, Eugene Volokh has a post on the Seventh Circuit's decision in United States v. Jackson.  The decision addresses Jackson's argument that District of Columbia v. Heller compelled the lower court to withdraw his guilty plea for a weapons charge because Heller held that the Constitution's second amendment entitled people to have guns in their homes for self-protection.  In the opinion, Judge Frank Easterbrook wrote: "The Court said in Heller that the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection. Jackson was distributing illegal drugs (cocaine and unlicensed dextromethorphan hydrobromide tablets) out of his home. The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer's stash."  Volokh agrees with this reasoning, and also analyze's some of Judge Easterbook's other points.  He also points to his upcoming article in the UCLA Law Review on Implementing the Right To Keep and Bear Arms.

Separation of Powers Argument Prevents Release of Uighurs:  Lyle Denniston has a post on today's D.C. Circuit Court ruling that a federal judge had no authority to order the release into the U.S. of 17 Chinese Muslim Uighurs being held at Guantanamo Bay, Cuba.  Denniston reports that the court confined its holding to whether a federal judge may order release into the U.S. of non-citizens being held outside U.S. territory.  The majority concluded that a federal judge could not, only the President and Congress have authority to decide when aliens may enter the U.S.  The sole dissent from this holding came from Circuit Judge Judith W. Rogers.  Judge Rogers voted to overturn the federal judge's release order, but disagreed with the majority's reasoning.  She found the majority's analysis to be unfaithful to the holding of Boumediene v. Bush because it would compromise habeas corpus' ability to act "as a check on arbitrary detention and the balance of powers over exclusion and admission and release of aliens into the United States recognized by the Supreme Court to reside in the Congress, the Executive and the habeas court."  Denniston's post speculates that today's Circuit Court ruling could pose a challenge for the Obama Administration.  While the ruling would have been perceived as a victory for the Bush Administration, it is unclear whether it will survive under the new administration.  Jordan Weismann also has a post on the D.C. Circuit Court's ruling at Blog of the Legal Times.  

Over at Less than the Least, Bill Stuntz has a link to his latest article in the Weekly Standard advocating for an increase in police funding.  Stuntz argues that more police usually translates into less crime and less incarceration over time.   That argument makes a lot of sense:  more boots on the ground means more enforcement which should translate into less crime. 

Yet there might be more to the story.  In New York State, for instance, crime fell precipitously from the late 1990s until 2007 while the number of police personnel also decreased.   Take New York City.  In 1998, the city employed slightly over 40,000 police personnel (making it the world's largest police force).  That same year, the city registered 85,915 incidents of violent crime.  By 2007, the police force had shrunk to slightly over 36,000.  Violent crime also had declined - quite dramatically - t0 just above 50,000 cases.   Outside of New York City, the trend was somewhat different.  In 1998, there were about 24,000 police personnel (excluding state police, which accounted for roughly an additional 4,000).  Violent crime stood then at about 30,000 incidents.  By 2007, the police forces outside of NYC were about the same in number (as well as the state police), but violent crime had declined a modest 7.5%.

What is striking about the data during this period is that while New York State saw slight decreases in police personnel it also witnessed slight to substantial decrements in all categories of crime statewide.  Moreover, this also occurred during a period of decreased incarceration.  In 1998, the state prison population totaled around 71,000.  By 2007, it was about 62,000.  Likewise, there were reductions in the number of A1 drug offenders in state prison (sentences of 15 or more years) and drug offenders generally.   In most ways all parts of the state witnessed these trends.   But an interesting phenomena also took place.  During this time period, upstate NY overtook NYC as the leader of regional percent of all crimes committed.  This occurred during a continued and prolonged reduction in overall population in most cities located in upstate New York. What accounts for these counter-intuitive findings? 


One answer may lie in who was being incarcerated during this period.  During the late 1990s and early 2000's, New York, like many jurisdictions, saw substantial federal assistance in enforcement and prosecution of repeat violent offenders.  From the "weed and seed" program to various illegal firearms programs, New York was aided by federal money and federal prosecutions of targeted violent offenders -and many of those offenders landed in the federal penitentiary (whose numbers have grown significantly during the last 20 years).    It's an old truism in criminological  literature that the few bad apples cause most of the problems.  Recidivism rates attest to that fact.


Another explanation suggests the old notion of socio-economic factors.  During the period in question, most upstate NY communities continued to suffer from prolonged economic downturns and decreased populations.  It is well known that poverty is linked to crime. As such, what happens with the current state of the economy matters not just in terms of traditional fiscal contingencies - it matters in terms of crime prevention.   And money has a lot to do with police hiring practices.  But the allocation of law enforcement monies should be done wisely with an emphasis on targeting the offenders who do the most damage to communities.   And if crime reduction is the goal, judicious use of federal law enforcement might provide the needed bite.  But ultimately, the question with police stimulus may not just lie with boots on the ground but whether the overall stimulus plan really stimulates the economy.   And that is an open question indeed.

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Supreme Court to Hear DNA Case and (Maybe) Decide "Freestanding Innocence" Issue:  At SCOTUSblog, in District Attorney's Office for the Third Judicial District v. OsborneGoldberg reports that Osborne will address whether Osborne can bring a lawsuit against Alaska to access DNA evidence through a 1983 claim instead pursuing the traditional procedural route of a writ of habeas corpus.  The Supreme Court could also address whether a prisoner with access to this evidence can then overturn his conviction by asserting a "freestanding innocence" claim, based solely on the ground that he is not guilty rather than on any trial defects.  The Ninth Circuit assumed, without deciding, that the answer to the second question was "Yes."  Goldberg states the Ninth made this assumption so that it could hold Osborne had a right to access the DNA evidence.

Chief Justice Roberts Comments on Rehnquist and the Court:
  At Blog of the Legal Times, Tony Mauro has a post discussing the Chief Justice's February 4th talk at Rehnquist Center at the University of Arizona Rogers College of Law.  In his post Mauro discusses Roberts comments on former Chief Justice Rehnquist's legacy, as well as Roberts diplomatic duties as Chief Justice.  Mauro's post also links to Adam Liptak's article in the New York Times.  Liptak's story focuses in on Chief Justice Roberts comments that "development [of the Court] might be a good thing."  During his talk, the Chief Justice apparently suggested that when the members of the Court were former governors, legislators, cabinet members, law professors, and practicing lawyers the decisions from the Court "tended to inject policy and politics into an area properly reserved for the law."  As a result, "the practice of constitutional law -- how constitutional law was made -- was more fluid and wide ranging than it is today, more in the realm of political science."  Liptak notes that Roberts opinion is not without its critics.  He cites the study "Circuit Effects: How the Norm of the Federal Judicial Experiences Biases the Supreme Court"  for its proposition that "[f]ormer appellate court judges are no more likely to follow precedent or to put aside their policy preferences than are justices lacking judicial experience."

Top Texas Criminal Judge Faces Impeachment Inquiry:  Nathan Koppel posts on Wall Street Journal Blog that Sharon Keller, Texas' highest ranking criminal judge, is facing possible impeachment because of her handling of a case involving death-row inmate Michael Richard.  Apparently, in September 2007, Richard sought to appeal his death sentence to the Texas Court of Criminal Appeals pending the Supreme Court's decision on the constitutionality of lethal injection.  Judge Keller refused to keep the court open past 5pm so that his counsel would have time to prepare the appeal.  Richards was executed that same day.  Texas state legislator Lon Burnam has filed the resolution calling for impeachment by the House of Representatives. In an interview with the Fort Worth Star-Telegram Burnam told the newspaper that he was "incensed" because the State Commission on Judicial Conduct had not responded to his request that it investigate Keller's handling of the Richards case. 

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Welcomed Endorsement?  In Wisconsin, members of the Supreme Court are elected by the the voting public.  This year, trial judge and former public defender Randy Koschnick is challenging Chief Justice Shirley Abrahamson in an election that will be held on April 7th.  While Koschnick is running as the law and order candidate, this AP story by Ryan J. Foley reports that he has been publicly endorsed by convicted cop killer Ted Oswald, who is serving a life term for what one federal judge called the most notorious crime in Waukesha County history.  Even though he was convicted of the murder, Oswald based his endorsement on the good job Koschnick did in his case.  Critics might be reminded that often the best advocates are those who have argued both sides

LWOP Sought For Sex Offenders:  The Missouri state senator who argued last year that the death penalty should be available for those convicted of forcible sex crimes against children, is now sponsoring legislation to allow a life-without-possibility-of-parole sentence for such offenders.  An editorial in the St. Joseph News Press reports that following last year's U.S. Supreme Court decision in Kennedy  v. Louisiana, Senator Jack Goodman  focused on the LWOP option.

Virginia Cop Killer Seeks Clemency:  Winchester Star writer Drew Houff reports that attorneys for Edward Bell, who is scheduled for execution this Thursday, are seeking clemency from Virginia Governor Tim Kane, arguing that Bell is mentally incompetent.  Last year Governor Kane commuted murderer Percy Walton's sentence to LWOP based upon the same claim.  The story notes that, while some courts had doubts about Walton's mental state, in Bell's case, no court has formally raised such doubts.  For the record, Bell, an illegal immigrant and known drug dealer, was convicted in 2001 on strong evidence of murdering Winchester Police Officer Ricky Timbrook, shooting him in the face.  Prior to the murder, Bell told witnesses that Officer Timbrook was out to get him, and that killing him would require a head shot, because the officer wore a bullet-proof vest. The Supreme Court granted certiorari and heard argument in Bell's case but then dumped it after discovering his lawyer had misrepresented the issues actually presented.  The CJLF brief in the case is here.  Here are links to our prior posts before argument, after argument, and upon dismissal.

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Seventh Circuit Reverses District Court's Decision to Increase Sentence: Over at Sentencing Law and Policy, Doug Berman posts on the Seventh Circuit's decision US v. England, No. 08-2440.  According to Berman, the panel found error in the district court's decision to increase a defendant's sentence based on its belief that the defendant would have committed attempted murder if he were free on bond.  The Seventh Circuit reversed and remanded for re-sentencing because "due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations." Apparently, the Seventh Circuit did not like that the district court did not have enough evidentiary support for its conclusion that England would attempt murder if he were free.  While the Circuit did not require the district judge to repeat its analysis in re-sentencing, it did require that the district court base its sentence on more than "reliance on a finding that England would have attempted murder if out on bond unless further evidence is adduced which would justify such a conclusion."

Justice Ginsburg Returns Home:  Kristina Moore reports on SCOTUSblog that Justice Ginsburg is recuperating at home with some positive news - her pancreatic cancer has been diagnosed as TNM Stage 1 by doctors.  Her lymph nodes tested negative for cancer and no metastasis was found.  Tony Mauro at Blog of the Legal Times also has a post with the text of the Supreme Court announcement.

Judicial Nominations in the Fourth Circuit Might be "Blue Slipped":  At Blog of the Legal Times, David Ingram posts on the possibility of an old practice of the Senate Judiciary Committee, known as the "blue slip," could affect the 4 vacancies left on the Fourth Circuit.  Ingram writes that although President Obama has the opportunity "shift the balance" on the Fourth Circuit, the Senate Judiciary Committee's tradition of allowing a state's two senators to weigh in on the President's nominee could stall some of his nominations.  Under the tradition, the Committee chairman sends each senator a form known as a "blue slip."  The senator can withhold support for the nominee for any reason, including partisanship, by failing to return the slip.  At times, this has been enough to foil an nomination.  According to Ingram, the current Chairman, Patrick Leahy, has commented that he is in talks with with Sen. Arlen Specter on how to apply the "blue slip" tradition to any Fourth Circuit nominations.  

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Alabama executes second inmate this month: Birmingham News writer Tom Gordon, reports that the execution of Danny Joe Bradley, has finally granted his victim's family with a feeling of relief. "Bradley was convicted of murdering his 12-year old stepdaughter, who was sexually assaulted and strangled on the night of Jan. 24, 1983." He had been on death row for over 26 years. "Bradley became the 193rd inmate to be put to death by the state since 1927, the 40th since executions resumed in the state in 1983 after an 18-year pause, and the 16th to die by lethal injection."

Death penalty ousted by New Mexico House: An article by the Associated Press reports that "the House of Representatives voted Wednesday to abolish New Mexico's death penalty and replace it with a sentence of life in prison without parole." Supporters of the abolition are claiming to "no longer need the death penalty [because] its costs far outweigh its benefits," while opponents say, "victims' families deserve to keep the option of urging prosecutors to seek the death penalty."

Texas executes second person in one week: Johnny Ray Johnson was executed last night after being on death row for convictions of rape and murder, writes Michael Graczyk, of the Associated Press. Johnson was guilty of at least five rape-slayings and eight other rapes, beginning in the 1970s. "Johnson's lawyers went to the U.S. Supreme Court on Thursday, seeking to delay the punishment. The high court rejected the appeal about 30 minutes before Johnson was scheduled to be taken to the death chamber." His "similar appeal Wednesday at the Texas Court of Criminal Appeals" concluded in a loss also. Johnson "was pronounced dead at 6:19pm."

Update: Clemency granted by Ohio governor: Andrew Welsh-Huggins, of the Associated Press, writes that "Gov. Ted Strickland on Thursday spared the life of a death row inmate who killed his mother in a cocaine-induced rage and whose upcoming execution was opposed by his entire family, including his mother's siblings." The governor's new sentence for Hill "is life in prison with parole eligibility after 25 years. [Hill] already has served nearly 17 years and could be paroled as early as 2017." Hamilton County Prosecutor Joe Deter opposed clemency and preferred Hill stay in prison the rest of his life. "'We've done our job,' Deters said in a statement to the Associated Press this week. 'I respect the ability for the governor to do what he believes is right.'" Previous post on the Parole Board recommendation is here.

On the Button

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Almost four years ago, the U.S. Court of Appeals for the Ninth Circuit committed one of the most blatant violations to date of the Antiterrorism and Effective Death Penalty Act of 1996. In its quest to overturn state court decisions it merely disagrees with -- despite the clear command of Congress to the contrary -- that court decided in Musladin v. Lamarque that the California state courts had unreasonably applied clearly established federal law in rejecting a claim that trial spectators wearing buttons had violated Musladin's constitutional rights. Yet the supposedly unreasonable state court opinion was in accord with the decisions of every other court that had considered the question in similar circumstances. See CJLF's brief. A better example of a mainstream state court decision wrongly overturned by a fringe federal court could hardly been found. That is exactly what AEDPA was enacted to prevent, and the case is a prime illustration of why that statute was so necessary.

The Supreme Court took the case and voted 9-0 to reverse. Judge Reinhardt's opinion declaring the state court opinion to be "unreasonable" was itself so unreasonable that not a single one of the nine high court justices voted to affirm it.

Today, the Ninth Circuit finally rejected the remainder of Musladin's claims. Howard Bashman at How Appealing notes, "Suffice it to say that, this time, it won't be the State of California that'll be seeking U.S. Supreme Court review." Musladin can ask, of course, but his chances of getting certiorari are infinitesimal.
On the National Law Journal site is this story by Peter Hall and Leo Strupczewski of the Legal Intelligencer. "Two Luzerne County, Pa., judges have conditionally agreed to plead guilty and serve more than seven years each in prison for their roles in a Dickensian scheme to channel juvenile offenders into a private detention facility in exchange for payments from the owners."

"The [U.S. Attorney's information] alleges that between June 2000 and the end of April 2007, [Judges] Ciavarella and Conahan collected more than $2.6 million in exchange for decisions from the bench that benefitted the owners of a private juvenile detention center including a 2004 agreement for the placement of juvenile offenders worth $58 million."

Some of our friends in the small government, conservative/libertarian movement are gung-ho to privatize everything government does. I think we need to look at that carefully, case by case. Adam Smith's "invisible hand" of the market is a superior way to allocate resources and achieve efficiency where the dynamics of a market exist -- myriads of individual buyers and a fair number of sellers, with the buyers demanding value in the things they buy for themselves with their own money. When government is the buyer and the buying-decision-maker is not spending his own money and is the not the actual consumer, the self-interest that produces efficiency in a real market can produce corruption instead.

A second public-policy lesson here is the importance of federal law enforcement in cases of state and local corruption. This case involves, once again, the "honest services" law noted last week. The vagueness of that law is a genuine problem warranting the attention of Congress, but corruption of the type involved here must remain a federal offense.

News Scan

Maine Sex Offender Registry Challenged:  The retroactive application of Maine's sex offender registry is being challenged before the state's highest court, according to this AP story by Jerry Harkavy.  Two cases before the court involve sex offenders convicted before the legislature required lifetime registration who argue that the change violates ex-post facto restrictions and due process.  The state argues that "there is no private right to secrecy, regarding these convictions..."  The story notes that other states have wrestled with the retroactive application question but that Maine's is the harshest.  The U.S. Supreme Court addressed the ex post facto issue in Smith v. Doe, 538 U.S. 84 (2003).

RI Supreme Court Reinstates Conviction:  A Rhode Island man convicted in 1995 for sexually assaulting his eight-year-old stepdaughter, will go back to prison following a state supreme court ruling announced Wednesday.  Providence Journal writer Tracy Breton reports that the court overturned lower court's a 2004 holding that accepted Danny Brown's claim of ineffective assistance of the lawyer he retained to defend him.  While the state appeal was pending, Brown has been free on bail.  The high court's decision noted that it is quite difficult for a defendant to claim that a lawyer of his own choosing was ineffective in post-conviction proceedings .  Amen. 

A Fourth Circuit decision accepting such a claim is presently before the U.S. Supreme Court in Branker v. Gray, No. 08-551, in which CJLF filed an amicus brief asking the Court to take the case. The Court asked for a response, which Gray has just filed. Expect a decision on certiorari before the end the of term.

Lying on voir dire is one of those things that you know happens all the time, but it seems no one ever gets punished for it. This AP story provides us with an exception to the rule. Manuel Basulto Soto not only lied on the questionnaire about his felony conviction, but he lied again when asked directly by the judge. Three years, suspended, 25 days in county, and three years probation.

Phelps, Kellogg's, and the Munchies: James Taranto writes in the WSJ's Best of the Web newsletter about the backlash against Kellogg's for dropping its sponsorship of Michael Phelps. "Until their point is made, marijuana users will boycott Apple Jacks, Cheez-It crackers, Cocoa Krispies, Eggo waffles, Famous Amos cookies, Froot Loops, Frosted Flakes, Pop-Tarts and Rice Krispies Treats. They may find this easier to accomplish if they also boycott marijuana."

Abraham Lincoln and Constitutional Precedent

Tomorrow is the 200th anniversary of the birth of the Great Emancipator. His rise to the Presidency was based in part on his denunciation of the infamous decision of Dred Scott v. Sandford, 60 U.S. 393 (1856). One of Mr. Lincoln's primary points of disagreement with his rival Stephen Douglas was whether we are obligated to accept that the Constitution means what the Supreme Court says it means. Yes, in the sense of obeying the court's mandate and in the sense of lower courts being bound by the precedent, but no, we are not obligated to accept that proposition beyond those limits. From Mr. Lincoln's speech of June 26, 1857:

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country....

In the last half-century, the Supreme Court has grafted many rules on to the Constitution that the people never put there. Every time the Court does so, it violates the people's right of self-government, usurping to itself a decision that the Constitution actually leaves to the people. The very Justices so often lauded in our law schools as great defenders of the Constitution are actually the worst violators of it.

Following in the footsteps of Abraham Lincoln, we at CJLF will continue working to restore the real Constitution.

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DNA testing solves 1984 cold case: Revealed in an article by the Associate Press, police in central Illinois say they've used DNA testing to determine that a man now dead sexually assaulted and killed two young Decatur girls. Unfortunately, because DNA testing was not available back in 1984 and the other leads in the case were not enough to convict the man, he only "served prison time for taking indecent liberties with a child before the slayings."

'Bathtub Killer' executed in Texas: Michael Graczyk of the Associated Press writes that Dale Devon Scheanette, of Louisiana, was put to death by lethal injection last night (February 10, 2009). "Scheanette, 35, became known as the 'Bathtub Killer' after two women at the same apartment complex in Arlington in 1996 were found dead in half-filled bathtubs, strangled, raped and bound with duct tape." During the trial, Scheanette chose to represent himself, and his appeals to the federal courts were rejected. "The Texas board of Pardons and Paroles also voted 7-0 to turn down a clemency request."

California to release one third of prison population?: Don Thompson, of the Associate Press, writes that because prison overcrowding is being ruled "so severe it unconstitutionally compromises medical care of inmates" California is being forced to "free roughly a third of its prison inmates in a few years." Gov. Arnold Schwarzenegger has proposed a few solutions, one is "ending parole for former inmates not convicted of a violent or sex-related crime." Schwarzenegger claims "that would lead to fewer parolees being sent back to prison because they violated rules." Stanislaus County Chief Probation Officer Jerry Powers thinks differently, "Freeing or diverting inmates as the judges suggest is 'a dangerous game of Russian roulette.'" So what will be done? According to Republican Assemblyman Jim Neilson, "California should accelerate construction of new prison cells to ease overcrowding."

Florida preparing for tonight's execution: Wayne Tompkins, 51, is scheduled to die by lethal injection tonight, reports the Associated Press. Tompkins is "a rapist convicted of murdering his girlfriend's teenage daughter 26 years ago." The Florida Supreme Court, in a one-page order, denied all of Tompkins' appeals Wednesday morning. He has filed an appeal with the U.S. Supreme Court. So far Florida has executed 66 inmates since the death penalty was resumed in 1972. Tompkins will be number 67.  Update: Tompkins was put to death on schedule as reported in this AP story.

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Economic Commentary on "The Great California Prison Experiment:"  At Freakonomics Blog, Steven Levitt has posted his thoughts on the recent federal court decision to reduce California's prison population.  (h/t Doug Berman at Sentencing Law and Policy).  Levitt's post discusses the results of a 1996 study he did on the "impact that changes in the prison population have on the crime rate."  To conduct his study Levitt looked at what happened to the crime rate after a case like California's, Plata/Coleman v. Schwarzenegger, was filed.  He found that after the case was filed, but before it was decided, the growth of prison populations would slow down.  Then, when the decision is final, the prison population "shrink[s] by about 15 percent relative to the rest of the country over the next three years."  Levitt saw this happen in California before Plata/Coleman's ruling, and anticipates, based on his previous study, that "ultimately violent crime will be roughly 6 percent higher in California than it would have been absent the lawsuit. That is roughly 150 extra homicides a year, 500 additional rapes, and 4,500 more robberies."  Levitt, a true economist, does not see this as a complete loss from the societal cost-benefit perspective.  "The money we save from freeing the prisoners is on the same order of magnitude as the pain and suffering associated with the extra crime."

Civilian Courts Cannot Interfere With How Detainees Treated:  At Blog of The Legal Times, Jordan Weissmann reports on federal Judge Gladys Kessler's holding that civilian courts cannot intervene in in the force-feeding of detainees at Guantanamo Bay.  Senior Judge Kessler, of the U.S. District Court for the District of Columbia, wrote that not only would she decline to second guess the the judgment of Gitmo's officers because the force feedings did not demonstrate a "deliberate indifference" to the detainee's needs, but, she also wrote that although Boumediene v. Bush gave detainees habeas corpus rights, the Military Commissions Act of 2006 still prohibited civilian courts from ruling on the living conditions of the detainees.  She found Boumediene to be a narrow ruling where the Supreme Court had "refused to address" habeas corpus "with respect to confinement."  

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Another Washington Tax Cheat, former DC Mayor Marion Barry may be sent to jail for failing to pay his taxes for eight of the past nine years, according to this AP story by Brian Westley. Barry was re-elected in 1994 after spending six months in jail for a crack bust.  U.S. Attorney Tom Zeno has filed a motion asking a federal judge to jail Barry, who currently sits on the DC City Council, for violating his current probation for previous tax offenses by failing to file his taxes for 2007. This may qualify him for a White House appointment.  

Double Murderer Facing Execution:  A habitual sex offender, convicted 13 years ago for the rape and murder of two young Arlington, Texas teachers is scheduled to be executed today, as reported by Fort Worth Star Telegram writer Nathaniel Jones. The two victims, Wendie Prescott, 22 and Christine Vu, 25, were found in 1996, bound with duct tape and strangled to death in their bathtubs.  Police said that Dale Devon Scheanette, stalked the young women before raping and killing them three months apart.  DNA evidence linked him to the murders, and also to the sexual assualt of five other women in Arlington, Grand Prairie and Lancaster. 

More on Extraordinary Rendition: The WSJ has this story by Evan Perez on the Obama Administration's nonchange in position in the "extraordinary rendition" case, noted in yesterday's news scan.

"This is not change. This is definitely more of the same," said Anthony Romero, executive director of the American Civil Liberties Union, whose lawyers argued against the government in the appeal on Monday.

Liberal supporters of Mr. Obama are watching how the administration handles other polarizing issues, including calls for possible criminal prosecutions of Bush officials for tactics that critics say led to torture of terror detainees. Michael Ratner, president of the Center for Constitutional Rights, said the Justice Department's move suggests that "the chances of bringing a criminal case are getting lower and lower." Mr. Obama has said he wants to look forward, not backward.

Alaska AG Talis Colberg has resigned, reports Anne Sutton for AP."Rick Svobodny, head of the state's criminal division, was named acting attorney general."

Release Order in California

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As expected, the three-judge panel hearing the California prison overcrowding case has tentatively ordered release of tens of thousands of prisoners, Don Thompson of AP reports. The panel consists of Circuit Judge Stephen Reinhardt and District Judges Thelton Henderson and Lawrence Karlton. This is possibly the most heavily pro-prisoner panel in the history of the American judiciary.

Fortunately, in the Prison Litigation Reform Act Congress provided for a direct appeal of such orders to the Supreme Court.

Update: Tentative ruling here. CDCR response here.

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Obama administration maintains Bush's position with Boeing suit: AP  reports that Obama's "administration lawyer is urging a federal appeals court panel to throw out a lawsuit accusing Boeing Co. subsidiary of illegally helping the CIA secretly fly terrorism suspects overseas to be tortured." The American Civil Liberties Union had hoped for a change in position when Obama took office, but that did not happen.

Obama's liberal Supreme Court: Ronald Kessler, of Newsmax.com, writes "with hearings coming up this week on President Barack Obama's top Justice Department appointees, his possible Supreme Court nominees are coming into view." Amongst the names are Stanford University Law professor and former dean, Kathleen M. Sullivan and Yale Law School Dean Harold Koh. Ken Klukowski, a legal expert who consults for major conservative interest groups noted, "the nominees are extremely intelligent, well-educated, experienced, and they're masters of their craft." Klukowski's concern is if they "will set aside their personal beliefs and confine themselves to the law as written."

Victims of identity theft strike back: According to an article by Candice Choi in Newsweek, while the "number of Americans ensnared by identity theft is on the rise, victims are striking back more quickly and limiting how much is stolen." Javelin Strategy & Research reports that the number of identity theft cases jumped 22 percent but unrecovered losses and legal fees fell 31 percent. Nevertheless, consumers are still warned to take steps to prevent themselves from being a victim. "Leaving personal checks and social security cards at home and being aware of who's around when giving out personal information in public" are among the suggestions.

Death penalty alternative for Georgia?: In an article by Bill Rankin of ajc.com, "Under Georgia law, the only way to lock up a murderer for good is for the DA to seek death, or to get a murder conviction against a defendant who had a prior violent felony conviction." Senate Bill 13, as proposed would limit the "charade of seeking the death penalty to get life with parole when we think life without parole is the appropriate sentence," said Gwinnett County DA, Danny Porter. With more than 65 death penalty cases pending in Georgia, the bill is currently the DA's top legislative priority.
The Ohio Parole Board has recommended clemency for Jeffrey Hill, who murdered his own mother and ransacked her home to get money to buy cocaine. Intrafamily murders such as this one have an unusual dynamic in that the victim's family is also the defendant's family. In this case, they were all in favor of clemency, and the Parole Board listed that factor first in its recommendation.

The compelling and unanimous opinion of victim Emma Hill's family who favor clemency in this case. the have suffered tremendous loss, and execution would add further to their suffering. The victim's family favors the possibility of parole release.

The full text is here.  A report by Andrew Welsh-Huggins for AP is here.

We at CJLF consider clemency to be an essential part of the process and generally do not take a position on whether it should be granted in a particular case. We do think that the clemency decision should be made earlier, though, without waiting for federal habeas corpus to run its full course. In this case, much litigation expense could have been saved if this recommendation had been made earlier (assuming the governor agrees).

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Eleventh Circuit Ruling on the Exclusionary Rule:  At Volokh Conspiracy, Orin Kerr reports on the Eleventh Circuit's decision in United States v. Farias-Gonzales and comments that the Eleventh Circuit was wrong to apply the Hudson v. Michigan framework to hold that identity information cannot be suppressed under the Fourth Amendment.   In Farias-Gonzales, Jose Farias-Gonzalez was stopped and searched in violation of his Fourth Amendment rights.  During the search, the officers obtained identity information that led them to conclude he was an immigrant who had been removed from the United States and reentered illegally.  The government brought charges for illegal reentry based on the evidence obtained by the unlawful stop and search.  Kerr is troubled by the approach the court took in applying Hudson's balancing analysis because instead of using the cost/benefit analysis as it applied to a defined legal category of the Fourth Amendment error, as the U.S. Supreme Court had done in Hudson and Herring v. United States, the Eleventh Circuit "applied balancing to the type of information illegally obtained ...."  Kerr worries that the adoption of balancing approach to exclusion based on the category of information obtained will let every state and federal court do pretty much whatever the court wants with every Fourth Amendment violation raised in every motion to suppress.  Courts will be able to do this, he maintains, because defining a category of information is arbitrary.  Kerr suspects the judges did not consider this point when it adopted Hudson - especially since it appears the panel came up with the Hudson approach on its own.      

Gitmo Priorities

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According to this AP story, "The White House says President Barack Obama's biggest concern about the Guantanamo Bay prison is that terrorism suspects have been held there for years without a trial."

I sincerely hope that is a misstatement by a member of the press office and not a genuine reflection of our chief executive's priorities. While the duration of detention without trial and the possibility that there may be an innocent person detained are legitimate concerns, President Obama's biggest concern in this regard should be protecting the United States from another terrorist attack, duplicating President Bush's success.

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U.S. Supreme Court Chief Justice worries about 'partisanship': Arthur Rotstein, of the AP, writes a story surrounding Chief Justice John Robert's worries. Recently, Roberts was asked, "whether growing partisanship in the confirmation process poses a significant threat to the independence of the judiciary."  His response was, "the courts as a whole are very concerned about partisanship, politicization, seeping into the judicial branch."

An end to Maryland's death penalty?: An editorial in the Washington Times, discusses Governor Martin O'Malley's campaign to abolish the death penalty. "Mr. Miller [the Senate President] is a relative moderate who favors the death penalty" mentions the writer, "but he's under pressure from the orthodox liberals who dominate the Maryland Democratic Party." Fortunately, "the governor's last repeal bill died in 2007 on a 5-5 vote in the Senate Judicial Proceedings Committee, and it was not even considered last year." While politicians argue back and forth, a recent poll "showed that 53 percent of Marylanders support the death penalty, while 41 oppose it."

New Jersey study claims Megan's Law is not a deterrent: Beth DeFalco, of the Associated Press, reports that a recent study is concluding the law "hasn't deterred repeat offenders." According to the report, "registering sex offenders in New Jersey makes it easier to find them when they are accused of crimes, but does little to alter the types of sex crimes committed or the number of victims." Megan Kanka's mother, whose case spurred enactment of the law, said "the laws were never intended to alter the behavior of sex offenders. It was to provide an awareness to the public, which it has done."

Obama to meet with victim's families of USS Cole and Sept. 11: Catherine Herridge, for Fox News, writes about how President Obama's Jan.22 order is affecting the families of victims lost to the bombing of USS Cole and the Sept. 11 attacks. Many learned only through Fox of "the charges in the al-Nashiri case being dropped." It was suspected Al Queda bomber Abd al-Rahim al-Nashiri who confessed last year during a Guantanamo hearing, saying he had helped organize and direct the bombing. Disappointment reigns.  "We've already waited eight years for justice. Justice delayed is justice denied," said retired Navy Cmd. Kirk S. Lippold, the commanding officer of the Cole when it was bombed in Yemen. Though White House press secretary claims the President is still interested in 'swift justice', Senator James Inhofe of Oklahoma reminded, "we must be careful not to send a message to our enemies abroad that were are letting up in our prosecution of the war on terror."

Blog Scan

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Sixth Circuit Recognizes Crime Victims' Rights:  Paul Cassell has a post on Volokh Conspiracy about today's order in In re Simons.  Apparently the defendant of a federal criminal prosecution had moved to seal all of the pleadings and information of his case after he pleaded guilty.  One of the victims filed a motion to unseal the pleadings three months ago so that he could begin to exercise his rights under the Crime Victims' Rights Act.   The district judge has delayed the matter, despite the Act's requirement that a judge act "forthwith."  The Sixth Circuit granted a writ of mandamus today ordering the district judge to rule on the victim's motion to unseal within two weeks.  Cassell is impressed that the Sixth Circuit ruled on the motion within 48 hours of its filing.  Apparently, the petition made a compelling case that the district judge had just been ignoring the victim.

Not Yet Time to Bet on Retirement:  At SCOTUSblog, Tom Goldstein has a post urging Supreme Court watchers to avoid any retirement speculation for Justice Ginsburg, "Before It Starts."  Goldstein's post worries that today's announcement that Justice Ginsburg is being treated for pancreatic cancer will be blown out of proportion because of the five-year survival rate for the disease, and Justice Ginsburg's seemingly frail physique.  Goldstein argues, however, that in this case, Justice Ginsburg got "very, very lucky."  Her cancer was spotted early, in a routine physical exam, and in cases where the cancer is caught early, the odds of recovery are higher.  Goldstein comments that he doubts Justice Ginsburg will retire if she does recover.  He mentions the recent memo to her law clerks where she stated she plans to serve well into her 80s, like fellow Justice Stevens.

Names of 90,000 Registered Sex Offenders Handed Over By MySpace:
  Corey Rayburn Yung has a post on Sex Crimes reporting that MySpace has handed over the names of 90,000 registered sex offenders that MySpace had banned from its site.  The names were handed over to Attorney General Richard Blumenthal of Connecticut and Attorney General Roy Cooper of North Carolina, who are among officials pressing social networking sites to adopt more stringent safety measures.  Jenna Wortham of the New York Times reported that the 90,000 "figure is 40,000 more than the amount previously acknowledged by MySpace."  90,000 sex offenders mixing with children on-line is a big deal, even if a recent government sponsored report  and recent news reports have argued the threat is "Overblown"

AEDPA Regs: Another Bizarre Development

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The very strange saga of the USDoJ regulations implementing Chapter 154, the federal "fast track" for capital habeas corpus, has taken another bizarre twist.

Last December, as we noted here, the DoJ finally issued the final regs after dragging its feet for three years. The DoJ gave notice of its preliminary version of the regulations and invited comment on June 6, 2007, allowing a full three months for comment. As if that were not enough, DoJ extended the comment period for an additional 45 days. Then they sat on it for over a year.

When the final rule came out in December, it was very little changed from the preliminary rule. An italics-and-strikeout version is here, showing the minimal changes. The California Habeas Corpus Resource Center asked for a preliminary injunction, claiming that despite the minimal changes the notice did not give sufficient indication of the nature of the rule. The main basis for this claim is that in the explanation of the rejection of many of the comments, DoJ noted that Congress's amendments to Chapter 154 abrogated the Ninth Circuit's interpretation in Spears v. Stewart, 283 F.3d 992 (2002). In reality, this could not possibly have been a surprise to HCRC. The primary sponsor of the legislation said flat-out in the Congressional Record that was the intent, and the preliminary rule as drafted reflected that understanding.

The notorious Judge Claudia Wilken of the U.S. District Court for the Northern District of California bought that argument and issued a preliminary injunction. Naturally, it was expected, and informal communications from DoJ confirmed, that this outrageous decision would be fought.

Instead, today from DoJ comes this notice, reopening the already long-delayed regulations for yet another 60-day comment period -- twice as long as even Judge Wilken's bizarre ruling requires.

You've got some serious explaining to do, Mr. Holder.

News Scan

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Justice Ginsburg   The Associated Press reports that Supreme Court Justice Ruth Bader Ginsburg, 75, underwent surgery Tuesday for pancreatic cancer.  Tony Mauro also has this post with the text of the Court's announcement.   Last year, Justice Ginsburg disposed of speculation that she might retire, saying that she intended to continue serving into her 80s.  She was treated for colon cancer in 1999.   

California Prisons  A three-judge panel of federal judges heard closing arguments Tuesday from lawyers representing prison inmates who insist that 50,000 criminals must be released in order to improve prison medical and mental health care. AP writer Don Thompson reports that attorneys appearing on behalf of the Governor, law enforcement and GOP legislators argued that the release of inmates would seriously impact public safety and overwhelm local law enforcement. One member of the panel, District Judge Lawrence Karlton, acknowledged the "profound effect" early release would have on county resources, but then stated that the release of 52,000 inmates might not be enough.  

Eco Warrior Gets Prison  A 47-year-old Earth Liberation Front member has received a 22-year prison sentence for her role in setting a fire at Michigan State University which caused $1 million in damage.  AP writer Ed White reports that Marie Mason helped set the fire in 1999 to protest the University's research on genetically modified crops, including an effort to develop moth-resistant potatoes for the poor parts of Africa.  As part of a plea agreement Mason also admitted causing another $3 million in damages by destroying homes at construction sites and burning two boats owned by a the former owner of a mink farm. 

Blago, "Honest Services," and Vagueness

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Among the most elastic of federal criminal laws is Chapter 63 of 18 U.S.C., prohibiting fraud by use of the mail and various other hooks thought sufficient to bring the scam within federal jurisdiction (wire, radio, TV, banks, securities ...). In 1988, Congress enacted section 1346, expanding the covered frauds to include "a scheme or artifice to deprive another of the intangible right to honest services."

The vagueness of this statute and the expansiveness with which some U.S. Attorneys have applied it has drawn considerable criticism. The Federalist Society had this event at its convention last November. Today's WSJ has this article by Dan Slater discussing the application of the law to such diverse figures as ex-Gov. Rod Blagojevich, former NY Senate leader Joe Bruno, and LA Cardinal Roger Mahoney.

Vagueness is a problem, but not as applied to Blago.

News Scan

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Execution will not be delayed: Garry Mitchell, of the Associated Press, reports that death row inmate Danny Joe Bradley will remain on schedule to be executed February 12, 2009. In 1983 Bradley was convicted for raping and murdering his stepdaughter. Bradley's attorney has attempted more than once to have his case re-examined. Since DNA testing of evidence was not available back in 1983, an "appeal to the Alabama Supreme Court in 2001 granted him a stay of execution pending DNA testing." Some of the evidence had been lost, but the bedding items that did remain were tested and confirmed Bradley's guilt beyond doubt, according to Alabama's capital litigation chief, Clay Crenshaw. Bradley's execution will be the "second of five scheduled in the first five months of this year."

New Jersey's Supreme Court: Reading Miranda warning once is sufficient
Eli Segall of the Associated Press writes about New Jersey's Supreme Court ruling "that a convicted child molester did not need his Miranda rights repeated to him during a police interrogation." The man, whose name was withheld in the article, was initially called into the police station to discuss "claims that his uncle had molested a 9-year-old female relative." Upon his arrival he was read his Miranda rights, and soon after "court records say the man confessed to a range of illegal sexual acts with the girl." The man's appeal, which can be found here, claimed he should be given a new trial because "detectives should have repeated his rights." In the opinion, Justice Barry Albin wrote "when someone is read their Miranda rights, the warnings 'strongly suggest, if not scream out, that a person is a suspect'."

The Normalization of Evil: Judea Pearl, the mother of murdered journalist Daniel Pearl, has this op-ed in her son's newspaper. "But somehow, barbarism, often cloaked in the language of 'resistance,' has gained acceptance in the most elite circles of our society. The words 'war on terror' cannot be uttered today without fear of offense. Civilized society, so it seems, is so numbed by violence that it has lost its gift to be disgusted by evil."

A Different Shade of Green: "Because we care about your life - death penalty for murderers and kidnappers," reads a poster by the Partido Verde Ecologista de Mexico, reports Stephen Gibbs for the BBC.

Richard Allen Davis was once one of the most notorious criminals in America. His brazen kidnapping of Polly Klaas from her own bedroom and subsequent murder of the 12-year-old girl sparked the outrage that led to enactment of California's "Three Strikes" law. His long overdue appeal is finally up for oral argument in the California Supreme Court in March. Why no coverage?  It's on the same calendar as the gay marriage case.

Prison Health Care: Debra Saunders has this column in the SF Chron on the excesses of California's prison receiver.  "They [the prisoners] aren't animals, but they aren't entitled to facilities that far exceed those available to the average law-abiding taxpayer. As [AG] Brown noted, California is spending 'almost three times what the federal government is spending, more than two times what the average Californian gets. When is enough enough?'"

Blog Scan

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Supreme Court Clerks:  At Above the Law, David Lat has posted an update on the new Supreme Court clerks for the October Term 2009, and a few new hires joining in October Term 2010.  The post provides the names of each of the clerks, their law schools and graduation dates, as well as previous court experience.  The post also notes that Justice Souter and Justice Thomas have yet to announce their choices.  Lat speculates that Souter's silence could mean he is planning on stepping down. 

Sex Offender Registries Incomplete:
  Corey Rayburn Young posted a report from the Office of the Inspector General at the U.S. Department of Justice on Sex Crimes yesterday.  The DOJ's report, published in December 2008, "found that the registries that make up the national sex offender registration system - the FBI's National Sex Offender Registry (NSOR) and the state public sex offender registries accessed through OJP's National Sex Offender Public Registry Website (NSOPR) - are inaccurate and incomplete." The unfortunate result is that neither the public, nor law enforcement, can rely on these registries to identify sex offenders. Some states have not "entered records on approximately 22 percent of their registered sex offenders into NSOR and have not identified sex offenders who have failed to maintain a current registration." But Michael Doyle's December 2008 article found that "California leads the nation in registered sex offenders, with about 114,000. This is more than twice the number of sex offenders registered in Texas or Florida, and 10 times the number registered in North Carolina."

December 2008 California Law Review Available Online:  The California Law Review, Vol. 96, Issue 6 (December 2008) was posted on Concurring Opinions yesterday.  One article "Mourning Miranda" by Charles D. Weisselberg, discusses how the Supreme Court has "gutted Miranda's safeguards" in the four decades since Miranda was decided.  Weisselberg is a Professor of Law at Berkeley's Boalt Hall.

Blog Scan

Stay of Execution Brief for Tennessee Prisoner:  Tom Goldstein of Akin, Gump, Strauss, Hauer & Feld has posted his brief requesting a stay of execution for Steve Henley on SCOTUSblog.  He also provides links to Tennessee's response, and Henley's Reply.  Henley, who is on death row for two counts first-degree murder and one count aggravated arson, is asking for a stay of his pending execution under 28 U.S.C. ยง 2101(f), pending its decision in Harbison v. Bell, because it is unclear whether he has the right to have his Federal Public Defender defend him during state clemency proceedings.  Henley is scheduled to be executed at 1a.m. Central Time, February 4, 2009.

Update: The Supreme Court's orders denying the stay and certiorari, without dissent, are here and here.  An AP story on the execution is here.

A Follow Up on Peretti and Rozzi's Supreme Court Study:  Wall Street Journal Blog has a post by Ashby Jones providing more information on the Supreme Court study discussed in yesterday's Blog Scan.  Jones' post provides a few more details on when Justices have decided to retire their robe: "Thurgood Marshall and William Brennan, two famously liberal justices who resigned while George H.W. Bush was in office. Nixon appointees Lewis Powell and Harry Blackmun each stepped down during Bill Clinton's tenure (though neither was known as a firebrand conservative)."  The article discussed in Jones' post, "How do U.S. Supreme Court justices time retirement? The answer may not be what you think" by Marcia Coyle, can be found here.  For those who have already skimmed Peretti and Rozzi's study, the coolest thing about Jones' post is this zoomable photo of the Supreme Court at Inauguration.  

Midnight Executions

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Rose French has this story for AP on the traditional practice of conducting executions at midnight. (Hat tip, SL&P). The article barely touches on the real problem of erroneous last-minute stays and does not mention the closely related problem of single-day warrants.

Traditionally, an execution warrant names a single day on which the execution must be carried out. The warrants are issued by judges in some states and the governor in others. Just getting the warrant issued is a big deal in some places. A standard weapon in the death penalty obstruction arsenal is to hold back an argument to be sprung on a court when the date has been set, then get a stay that remains in effect until the date is missed. See, e.g., Gomez v. United States District Court (Harris), 503 U.S. 653 (1992) (per curiam).  If a warrant specifies a single day, and the execution is not scheduled until noon, a judge could issue an unsubstantiated stay at 11:55 a.m., and there would only be 12 hours left to get it vacated by a higher court and carry out the execution.

The best solution is for execution warrants to set a period longer than a day, such as 72 hours beginning at noon.  Then if a lower court wrongly issues a stay, a higher court will be able to vacate it in the daytime, and the execution can proceed without restarting the warrant process.
"A new large study challenges the idea that mental illness alone is a leading cause of violence. Researchers instead blame a combination of factors, specifically substance abuse and a history of violent acts, that drives up the danger when combined with mental illness in what they call an 'intricate link,'" writes Carla Johnson of AP. See also this article by Kathleen Doheny in WebMD Health News. The abstract of the article by researchers Eric Elbogen and Sally Johnson is available here at the Archives of General Psychiatry (full text requires $).

This is a longitudinal study, which is better than a cross-sectional study. The latter type takes one snapshot at one point in time and typically finds a correlation: A and B tend to be found together.  Does that mean A causes B, B causes A, A and B are both caused by C, or some other more exotic chain of causation? The cross-section doesn't tell us. In a longitudinal study, there is more than one snapshot at more than one time. If A precedes B, we can rule out B causing A as a complete explanation of the correlation.

From a criminal law perspective, if there is no causal link between a particular defendant's person's mental illness and his crime, should that illness be considered mitigating? Persons of sense would not consider it mitigating that a bank robber had the flu. Casual connection between a mental condition and a crime cannot be assumed. In the absence of such a connection, the condition is simply not mitigating.

News Scan

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LWOP for rape committed at age 13

Adam Liptak of the New York Times, writes of a 72-year-old woman who was raped back in 1989. Joe Sullivan, who was 13 at the time, admitted to burglarizing her home, but did not confess to the rape.  Now 33 years old, "Sullivan's lawyers have asked the United States Supreme Court to consider whether the Eighth Amendment's ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing." Taking a look at court decisions since Sullivan was sentenced, "Douglas A. Berman, an authority on sentencing law, said that it is time for the Supreme Court and the legal system to widen its relentless focus on capital cases and to look at other severe sentences as well."

Mississippi Mayor may be too tough on crime, scheduled to go on his third trial

According to a story by Paulo Prada of the Wall Street Journal, Jackson Mayor Frank Melton, who won his 2005 election with over 80% of the vote, is now facing "felony charges related to his hard-line, gun-toting tactics." This is not Mayor Melton's first charge. In May 2006, "Mississippi Attorney General Jim Hood warned Mr. Melton about allegations of his conduct exceeding lawful authority." Later in the same year, Melton was indicted but never convicted of using similar tactics to conduct a home raid. Mr. Melton is receiving mixed responses from the community. "He means well and has a huge heart, but he's not an effective mayor" said Brad "Kamikaze" Franklin, a 35-year old rapper and Jackson developer who once supported Mayor Melton. Also mentioned, "in his zeal to fight crime, many add, he has ignored other city needs and led Jackson government astray." In response to all charges and reactions from the community, "Mr. Melton vows to press ahead. At the moment, he plans to issue an executive order against baggy, hip-hop-style pant." Recently when addressing council members, he said "we have some issues that are much bigger than the Constitution."

Holder confirmed: Eric Holder has been confirmed by the Senate as U.S. Attorney General, 75-21, reports Larry Margasak for AP.

Blog Scan

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Supreme Court Research:  David Stras  has posted links to two new SSRN papers discussing the Supreme Court.  The first paper, "Modern Departures from the U.S. Supreme Court: Party, Pensions, or Power," is written by Santa Clara University professors Terri Peretti and Alan Rozzi.  According to Stras, Peretti and Rozzi found that Justices do not "strategically retire in order to ensure an ideologically-desirable successor."  The paper's abstract tells us that the study revealed that "an important consideration is their role and influence on the Court, suggesting that, at least when it comes to retirement decisions, Supreme Court justices care more about power than party and policy."  We at CJLF are not too sure that any overall statement can be made. It seems pretty clear that Chief Justice Burger and Justice White timed their retirements with an eye on the President appointing their successors, while Justices Douglas, Brennan, and Marshall did not. The second paper Stras summarizes is on certiorari and Indian law.

Should Nine Years On the Run Lessen Your Sentence?:  At Blog of the Legal Times, Denzil White should receive a reduced sentence for his drug charge because "White had remained out of trouble during the decade he had just spent on the run."  Thankfully, neither the federal prosecutor nor U.S. District Judge Ricardo Urbina bought the argument.  Judge Urbina sentenced White to three years for failing to appear at a sanctions hearing after he violated the terms of his plea deal for marijuana trafficking.

DOJ May Not Change Federal Sentencing Policy Anytime Soon:
  At Sentencing Law and Policy, Doug Berman finds little hope for federal sentencing reform in this post discussing New York Time's article "Justice Dept. Under Obama is Preparing for Doctinal Shift in Policies of Bush Years."  While Berman wishes that "the triage plan for change at DOJ" would tackle federal sentencing up front, we're not as upset that it appears the DOJ will start with "terrorism policies and then turns to civil rights issues."

More Commentary on the Exclusionary Rule and Herring:
  Amir Efrati, at Wall Street Journal Blog, posts more on Adam Liptak's New York Times article discussing the exclusionary rule.  Kent's weekend post on the article can be found here.  Efrati's WSJ blog post directs to Efrati's Wall Street Journal story discussing the argument that getting rid of the exclusionary rule might lessen the incentive for police officers to lie about how evidence was seized.  


The Incredible Growing Statistic

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But I know the neighborhood,
and talk is cheap when the story is good,
and the tales grow taller on down the line.

With that musical reminder from REO Speedwagon,* we have yet another criminal justice statistic reported the press that is far less significant than one would think from scanning the headlines.

The headline in USA Today last Friday read, "FBI: Burgeoning gangs behind up to 80% of U.S. crime." Oh, my God! Four out of five total crimes in America! We knew gangs were bad, but nowhere near that bad! Or are they?

Cunningham Is Retro to Blakely

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Answering the question noted in this post Friday, the California Supreme Court has decided that Cunningham v. California, 549 U.S. 270 (2007) is an application of  Blakely v. Washington, 542 U.S. 296 (2004), not a "new rule" within the meaning of Teague v. Lane, 489 U.S. 288 (1989). Cunningham claims in cases that became final after Blakely but before Cunningham can be addressed on state habeas corpus. The opinion in In re Sotero Gomez, S155425 is available here.

The court passes on the Danforth v. Minnesota question of whether broader retroactivity would be provided under state law, finding the question unnecessary to decide.

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