June 2009 Archives

When state executive officers settle a federal civil rights suit by agreeing to more than federal law really requires, are the people of the state stuck with that agreement forever? They should not be. After all, the state is not a party to the suit; it is immune under the Eleventh Amendment.

State officials cannot agree to do something forbidden by state law unless the state law is invalid because it conflicts with federal law. What if they agree to something neither forbidden by state law nor required by federal law at the time of the consent decree, but a later state law makes the agreement illegal? Does the consent decree trump a constitutional state law, so that the people of the state are forever deprived of a policy decision that the constitution and laws of the United States leave to them? Federal Judge Lawrence Karlton (ED Cal) thinks so. We at CJLF do not.

In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the U.S. Supreme Court flatly rejected the claim that the Constitution requires appointed counsel in all parole revocation proceedings. In 2003, then-new Gov. Schwarzenegger made a rookie mistake and entered into a consent decree providing for appointments in every case anyway. Last November, the people of California enacted Proposition 9. Among other things, that initiative provided for appointment of revocation counsel if and only if criteria tracking Gagnon are met. On March 26, Judge Karlton informed the Great Unwashed of California that they had a lot of nerve purporting to overturn his order, refused to modify the consent decree, and enjoined the Governator et al. from enforcing the portions of the initiative which are inconsistent with the decree. See 603 F.Supp.2d 1275.

Yesterday, CJLF on behalf of itself, Crime Victims United of California, and State Senator George Runner filed a motion for leave to file this brief amicus curiae in support of the administration's appeal to the Ninth Circuit.

Cal. Juv. LWOP Bill Defeated

Wonders never cease. Just when I thought the California Legislature was completely hopeless, the Assembly Public Safety Committee actually lived up to its name and defeated SB 399. This is the Yee/Romero bill to recall the sentences of 16 and 17-year-olds sentenced to life-without-parole for first-degree murder with special circumstances (e.g., committing rape and then killing the victim).  The bill, and others like it, have been promoted through an extensive, misleading campaign referring to "children" sentenced to life without parole. Are 16 and 17-year-olds "children"? Try standing up in front of a class of high school juniors and saying, "Good morning, children," and see what reaction you get.

Under Penal Code § 190.5(b), the judge already has the discretion to sentence a 16 or 17-year-old special-circumstance murderer to 25-to-life instead of LWOP. So, the ones in prison for LWOP are only the ones whom a judge determined at the time of sentencing shouldn't be eligible for parole. The families of the victims should not have that finality taken away.

Congrats to Maggie Elvey, who worked very hard to defeat this ill-considered bill.

Minnesota Not Nice

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The last bit of bad news from the very bad 2008 election is finally final today. The supposedly nice State of Minnesota has inflicted the resmugnant Al Franken on the United States Senate and on the rest of the country for the next six years. Norm Coleman conceded today after an adverse decision of the Minnesota Supreme Court, Brian Bakst reports for AP. Will Franken be the most insufferable, obnoxious, arrogant personality in that body? He's up against some stiff competition, but he's a contender.

Blog Scan

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Will Melendez-Diaz Affect Parole in Texas?: Scott Henson writes at Grits for Breakfast that a post  by R.J. MacReady at Texas Court of Criminal Appeals blog has him wondering if Melendez-Diaz v. Massachusetts could change how Texas courts view confrontation in cases involving business records and parole revocation certificates.  MacReady's post focuses on Justice Scalia's ruling that "business records that satisfy the hearsay definition of a business record aren't necessarily immune from a Confrontation Clause objection[.]"  This is a problem, because earlier this year, Smith v. Texas held that business records are not "testimonial" under Crawford v. Washington, because, in MacReady's words, they "contained sterile recitations of the fact of revocation rather than a detailed description of the cause."  MacReady and Henson both believe that the decision in Smith is suspect now that Justice Scalia has stated business records may be considered "testimonial" if they were prepared specifically for use in court.

Supreme Court Yet to Rule on Troy Davis:
  Wall Street Journal Law Blogger, Ashby Jones, reports that the U.S. Supreme Court has "kicked the can" on the cert petition of death-row inmate Troy Davis.  In other words, the U.S. Supreme Court, went on summer recess without deciding whether it will consider Davis' appeal for a new trial.  The U.S. Supreme Court stayed Davis' execution last September, denied his appeal, and sent the case back to the Eleventh Circuit.  The Eleventh Circuit eventually rejected Davis' request for a new trial.  Jones reports that the Supreme Court will reconsider the appeal next fall.

Ricci May Indicate Larger Battles Ahead:  At NRO Bench Memos, Ed Whalen comments on  Stuart Taylor Jr.'s post on The Ninth Justice.  Both Whalen and Taylor believe that the Supreme Court's unanimous rejection of the Sotomayor-endorsed Second Circuit position (that disparate racial results alone justified New Haven's decision to dump the promotional exam), and the different stances taken by the Ricci's dissenters and the Second Circuit, are "important and revealing."  (Whalen's post is available here). Taylor, in particular, focuses on the different stances taken by Justice Ginsburg's dissent and the Second Circuit panel.  He writes that while both "risk converting disparate-impact law into an engine of overt discrimination against high-scoring groups across the country," Justice Ginsburg "at least required the city to produce some evidence that the test was invalid."  The Sotomayor panel did not even require that.  Taylor worries that if the Second Circuit's panel decision had been adopted by any of the Justices, the logic would "provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores."

When It Comes to Sentence Enhancement, Who is a Fraud Victim?:  At Sentencing Law and Policy Doug Berman provides a link to a National Law Journal article addressing the circuit courts' failure to consistently answer that very question. In the article Sheri Qualters reports that last Friday, the First Circuit held that judges should count people who are reimbursed for financial losses from criminal schemes as victims when deciding whether to increase a defendant's sentence.  The Eleventh Circuit has reached a similar conclusion.  Apparently, however, other circuit courts have decided the issue the other way.  Berman believes that the U.S. Sentencing Commission should resolve these discrepancies.  He does not believe it is necessary for the U.S. Supreme Court to take up the issue.  

Supreme Court Term Summary: Kristina Moore at SCOTUSblog posts Akin Gump annual term summary memo. The memo analyzes voting patterns of the Justices.  No surprise: Justice Kennedy cast the deciding vote in 18 of the 23 5-4 decisions.

California Injection Regs

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As noted yesterday, the California Department of Corrections and Rehabilitation is holding a hearing today on the lethal injection protocol that a state court decided was subject to the Administrative Procedures Act. Prior posts are here, here, and here. Links to the notice and the text of the regulations are here.

News10 (Sacto ABC affiliate) has this story and video.

A Lesson in Recidivism Research

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Recidivism research is a difficult business.  It's not easy obtaining data and following offenders over time.  Deciding what the outcome variables should be and how they should be measured is notoriously tricky.  Thus, it is hardly surprising when one study suggests a low recidivism rate for certain offenders while others signal much higher rates.  But when a study suggests a zero rate of recidivism, that's something worth looking at carefully.

This study is not new, but it's frequently cited by those who wish to suggest that recidivism rates among juvenile sex offenders can be low - very low.  Rarely do those who cite to it, however, mention that in that study the authors followed only 10 adolescent sex offenders, for only 6 months, and relied on self-report as the sole measure of recidivism.   The authors probably never intended their study to stand for the proposition that sex offender recidivism can be in the zero range, but alas, that is what it has become.

The devil really is in the details.  
Does the world need yet another law journal? Chapman Dean John Eastman "borrow[s] from wiser men in a different context" to note that "a decent respect for the opinions of the academic world requires that we should declare the causes which impel us to begin yet another."

Further into the Dean's intro, we get this blinding flash of the painfully obvious: "Upon perusing the criminal justice journals on the shelves of law libraries, one finds that the articles they carry provide largely one perspective - that of the defense bar." Will this one be different?

We hope that the Chapman Journal of Criminal Justice will make a unique contribution not only by offering an interdisciplinary perspective but also a diversity of viewpoints - provided by academics, prosecutors, defense attorneys, and judges - on controversial and emerging issues in the field. As you peruse this inaugural edition, you will see that commitment made manifest.

We welcome this new addition to the literature and extend our best wishes for success.

Death Penalty News

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Here are a few death penalty stories from last week:

Massachusetts legislative leaders are talking about the death penalty again, reports Hillary Chabot in the Boston Herald. Supporters include the speaker, majority leader, and assistant majority leader of the House, all Democrats. The governor is adamantly against it.

Maryland has new regulations for its lethal injection protocol, even though the legislature has reduced new death sentences to a token few. Lisa Rein has this story in the WaPo.

California holds a hearing on its new regs tomorrow. Death penalty opponents plan to demonstrate to everyone what a bunch of jerks they are by spamming the hearing with off-topic comments on the death penalty generally. Scott Smith has this story in the Stockton Record.
Catching up on some reading after a trip last week. Benjamin Weiser had this interesting story in the NYT on Wednesday on Supreme Court nominee Sonia Sotomayor and the death penalty. This very controversial area of the law is the most worrisome aspect of her nomination, given her nearly zero record as a judge (discussed here and here) and her signature on a repugnant PRLDEF memo many years ago, noted here.

Weiser gives us some more info on the "Preacher's Crew" case. I discussed the published opinions in this post, but the story gives us some info not in the opinions. The defendants were making the usual racial attacks on the death penalty.

Vienna Convention

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Some more fallout from the U.S. Supreme Court's decision in Medellin v. Texas fell today from the California Supreme Court. The case is In re Martinez, S141480.

In its Avena decision, the International Court of Justice said that all that was required was a judicial determination of whether the defendant had suffered any prejudice from failure to notify the consulate upon arrest. Very few have, I believe. CJLF argued to the U.S. Supreme Court that Medellin had already received a (negative) judicial determination of prejudice, although the state court decision on that point was less than crystal clear. The Supreme Court decided not to rule on that basis, but noted the issue in a footnote.

In the California case, it is clear. Martinez raised the Vienna Convention claim in his first state habeas petition, and that petition was unambiguously denied on the merits, not procedural default. He has already received the determination the Avena decision says he should receive. President Bush's memorandum saying the state courts should implement Avena would entitle him to no more, even if it were binding on the states, and Medellin holds it is not. Game over, says Cal. Supreme, in a unanimous decision by Justice Moreno.

News Scan

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chase.jpgDNA Solves Colorado Murder:  A habitual criminal has received a sentence of life in prison without the possibility of parole for the 1997 kidnap, sexual assault and murder of 23-year-old University of Colorado co-ed as reported in this AP story, and this one from the Denver Post.  The case went unsolved for ten years until a DNA sample taken from Chilean national Diego Olmos Alcalde, while he was in a Wyoming prison for attacking another woman in 2000, was matched to DNA evidence in Susannah Chase's murder case.  The evidence was taken by Colorado police from Chase's body after she was found in an alley.  Chase had been beaten with a baseball bat before she was raped and dumped in the alley.  She died in the hospital the next day. 

More such cases would be solved, and more crimes prevented, if we tested everyone arrested for a felony, writes Gerald Bailey, commissioner of the Florida Department of Law Enforcement, in this Miami Herald op-ed.

Chicago Logs Six Murders in 24 Hours:  The first summer weekend in Chicago was marked with six killings, and several other hospitalizations, from gunshots or stabbings according to this story from CBS.  The killing began at 8:20 pm Friday when an armed group approached  two young men standing in the street talking and shot them both, leaving one dead.  Most of the victims were young men, between the ages of 18 and 25, but the last victim was Willie Short, 38.  Short was shot and killed while he was out driving on Saturday night.  Those injured over the same period include a 9-year-old boy shot while walking with his family, a 19-year-old man shot while allegedly pointing a gun at police, and two females who were stabbed by their boyfriends. 

Testing the Melendez-Diaz Waters

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Today, the U.S. Supreme Court released a second orders list, and agreed to hear arguments in a case that could test the limits of Melendez-Diaz v. Massachusetts (07-591) and its ruling on the Confrontation Clause.  Lyle Denniston comments at SCOTUSblog that with today's decision to review Briscoe v. Virginia (07-11191), Judge Sotomayor's likely confirmation to succeed Justice Souter could place the Melendez-Diaz decision in jeopardy. We think it is more likely that the new case could control the damage from that decision (or "narrow considerably" as Lyle puts it), but not overrule it.

In Magruder v. Commonwealth, as the case was known in state court, the Supreme Court of Virginia held that Virginia's "notice-and-demand" statutes of § 19.2-187 and § 19.2-187.01, "adequately protect[ed] a criminal defendant's rights under the Confrontation Clause" because it gave the defendant notice of the State's intent to call the witness, and opportunity to summon the lab technician as an adverse witness.  The statutes did not violate the Confrontation Clause because there is nothing wrong with asking a defendant to utilize a procedure to secure his right to confrontation. 

The Petition for Certiorari, authored by Confrontation Clause Blogger Richard Friedman, argues that the Supreme Court of Virginia's decision "poses a fundamental threat" to the right to confront witnesses against you.  He argues that, as the Supreme Court stated in Taylor v. Illinois, the Sixth Amendment right "arise[s] automatically on the initiation of the adversary process and no action by the defendant is necessary to make them active in his or her case."  In other words, the burden is always on the State to produce the witness against the defendant, and the burden is always on the defendant to object to the State's introduction of a witness testifying against the accused.  Because a lab report is now considered to be testimonial evidence, this could be construed to require the state to supply the lab technician in every trial that it plans to introduce a lab report into evidence.  However, this is not exactly what the majority required in Melendez-Diaz.  In fact, the Court left this issue open. 

Without specifically mentioning the Petition in Briscoe, on page 21 of the slip opinion, the majority stated: "The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections."  The statement fleshed out an earlier footnoted ruling that states may adopt procedural rules governing the exercise of evidentiary objections, and sometimes the right to confrontation may be waived, "including by failure to object to the offending evidence[.]"  This left open the question of whether a statute like Virginia's will pass constitutional muster after Melendez-Diaz

In another footnote, the Court acknowledged that some statutes require the defendant to subpoena the analyst, but stated, "[w]e have no occasion today to pass on the constitutionality of every variety of statute commonly given the notice-and-demand label. It suffices to say that what we have referred to as the 'simplest form [of] notice-and-demand statutes,' supra, at 21, is constitutional; that such provisions are in place in a number of States[.]"  Again, no mention was made to Briscoe, or Virginia's procedural rule. 

After all this, we know that the Court seemed to like the "notice-and-demand" provision discussed the Colorado case of Hinojos-Mendoza v. People.  The statute discussed in Hinojos-Mendoza, Colo. Rev. Stat. section 16-3-309(5), governed the introduction of lab analyst reports at trial, and allows "[a]ny party" to "request that... [a] technician testify in person at a criminal trial on behalf of the state before a jury or to the court, by notifying the witness and other party at least ten days before the date of such criminal trial.  The Colorado Supreme Court found that this right could be waived if the defendant failed to comply with section 16-3-309(5), and failed to subpoena the lab technician 10 days before trial when he was aware that Colorado would introduce a lab report into evidence.  

The Court's reference to Hinojos-Mendoza v. People does not directly answer the question before the Court in Briscoe.  That question asks whether states avoid violating the Confrontation Clause by providing the accused the right to all the analyst as an adverse witness when it plans to introduce a certificate of a forensic laboratory analysis, but it does come close - particularly since the Colorado Supreme Court found the lab report used against Hinojos-Mendoza to be testimonial.  It will be interesting to see how the addition of a new Justice interprets this issue, and if she places the same value on Colorado's decision in Hinojos-Mendoza

(The State's Brief in Opposition is available here, and the Reply Brief is here)  

Blog Scan

Recapping Safford and Considering Empathy:  At National Journal Online's The Ninth Justice, Stuart Taylor Jr. recaps the facts surrounding the "intrusive semi-strip search" case and suggests, "school officials will need to buy lots of insurance if the views of Ginsburg and Stevens on the question of liability ever command a majority."  Stuart Taylor Jr. opines that Justice Souter's majority opinion "seems reasonable," but the partial dissent of Justices Stevens and Ginsburg does not.  Justice Stevens' opinion argued that the assistant principal should be liable to pay damages for his "outrageous conduct[,]" and did not deny that many federal appellate judges had suggested that such searches were lawful, but stated "the clarity of a well-established right should not depend on whether jurists have misread our precedents."  Taylor worries that if this view is ever adopted, a public official could "end up losing a chunk of your life's savings for ordering what several federal appellate judges had previously held to be a legal search." (emphasis in original).  His worry makes Taylor wonder what "empathy" could mean for Obama's next Justice.  If the Justice empathizes with the student, then she will argue that the assistant principal owes the student compensation.  If, on the other hand, the Justice empathizes with the assistant principal, the Justice will see no need for compensation.  Either way, it might be something to consider asking Judge Sotomayor.

No Such Thing as a Liberal/Conservative Split
:  Grits for Breakfast blogger Scott Henson has this post commenting on the Supreme Court's divide in Melendez-Diaz v. Massachusetts.  For Henson, the 5-4 breakdown of Justices did not follow traditional political divides, but rather reflected a division "between 'constitutionalists' and 'pragmatists.' "  Henson believes that the majority held true to the confrontation clause "is clear on its face ... and it's a HUGE stretch to claim that someone providing information to prove an element of a crime in court is not a 'witness[,]' " but, the four dissenting Justices wound up deciding "it would be too burdensome to require compliance with the Constitution."  Henson fears that if Judge Sotomayor had been on the Court, the case would have reached the opposite conclusion.  His bottom line?  "Respect for the Constitution ... is [not] a universal value revered by the nation's judges, too many of whom find their loyalties lie closer to the pragmatic needs of the state's law enforcement apparatus than to the principles in the nation's founding document."  

Another Analysis of Judge Sotomayor: Congressional Research Service (CRS) has released another report on Judge Sotomayor's judicial opinions.  According to Tony Mauro at Law.com, CRS' conclusions support the claim that Judge Sotomayor "is far from an extreme liberal."  CRS wrote that Judge Sotomayor's opinions "belie easy characterization along any ideological spectrum," and her "most consistent characteristic ... has been an adherence to the doctrine of stare decisis ...."  At NRO's Bench Memos, Ed Whalen wonders if CRS has offered a truly objective analysis of Judge Sotomayor's opinions, and Wendy Long demonstrates, through a discussion of the felon voting rights case Hayden v. Pataki, that Judge Sotomayor does not frequently adhere to precedent, and CRS has not offered a "non-partisan and objective report" of her opinions.   

Supremes' 2008 StatPack:  Today, SCOTUSblog made a preliminary StatPak available for all 2008 Supreme Court decisions issued to date.  The Pack includes tables and charts on the Court's workload, circuit scorecard, decisions by final vote, and Justice agreement - just to name a few.  Kristina Moore writes that SCOTUSblog's final StatPack can be expected next week.     

News Scan

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Death Sentence in Cold Case:  A California man, whose death sentence for a previous murder was converted to life with parole after Furman, has been sentenced to death for killing another woman four months after his release from prison.  Stories from the Associated Press and KTVU report that Darryl Kemp was sentenced to die for the 1957 rape and murder of a 24-year-old Los Angeles nurse.  At the time he received that sentence, Kemp had also been convicted of raping two other women.  In 1978, after his release on parole, Kent attacked 40-year-old housewife, Armida Wiltsey as she was jogging by Lafayette Reservoir, dragged her into the brush and bound her with shoelaces before she was raped and asphyxiated.  In 2003, the Contra Costa County crime lab matched Kemp's DNA with a sample taken from Wiltsey's fingernails.  At the time, Kemp was serving a life sentence in Texas for raping three other women.  America went soft on crime in the late 1960s and did not regain its senses until the early 1980s, after homicide and violent crime rates had tripled.  Darryl Kemp was among the tens of thousands of beneficiaries of our weak sentencing policies.  Armida Wiltsey, and the unknown number of other woman he raped or murdered and their families, paid the price. 

Rethinking Sanctuary:  The San Francisco Chronicle published this editorial today questioning the benefits of being a sanctuary city.  Noting that the city has become a protected haven for illegal - oops, we mean undocumented immigrants - the piece also points out that San Francisco has become a refuge for criminals.  The piece discusses two recent scandals which involve sensitive treatment of illegals by the Mayor and DA which have not worked out well.

Blog Scan

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Judge Sotomayor, An "Activist" Justice?:  In a recent post on CQ Politics, Seth Stern reports that Senator Sam Brownback (R-KS) will not be voting to confirm Judge Sotomayor.  Senator Brownback voiced his concern that Judge Sotomayor will not be an "impartial umpire" in a speech made on the Senate floor yesterday, where he announced "Judge Sotomayor has indicated through past rulings and in her writings that she believes the judiciary should take an activist role and make laws, instead of upholding the law."  At Sentencing Law and Policy, Doug Berman also wondered if Judge Sotomayor would make "activists" comments about the Second and Eighth Amendments during her confirmation hearings.  His post points to a New York Times article which may provide insight to Sotomayor's views on the death penalty, and a Los Angeles Times article that discusses her views on the Second Amendment.  Berman delights in reading these two stories side by side because "they help highlight how justified and unjustified judicial "activism" is in the (always biased?) eye of the beholder."

Criminal Law Decisions from the Supreme Court:  As Doug Berman pointed out on Sentencing Law and Policy, the U.S. Supreme Court decided the last two criminal justice cases of the term today.  Berman provides a quick summary of Melendez-Diaz v. Massachusetts and Safford United School Dist. #1 v. Redding, while Tony Mauro provides a full report of the Safford decision at Blog of Legal Times.  Mauro writes that in one of his final decisions, Justice Souter "ruled for a divided Court . . .that the intrusive strip search of an Arizona middle-school girl in pursuit of drugs was a violation of her Fourth Amendment rights."  However, because the scope of her Fourth Amendment right was not clear at the time of her search, the assistant principal who ordered the search was entitled to qualified immunity.  Thirteen-year-old Savana Redding had been accused of possessing prescription-strength ibuprofen pills and was ordered to strip down to her underwear so that the school nurse could search her for the drugs.  None were found and Savana's mother sued the school district claiming a Fourth Amendment violation.  Justice Souter said that under the Court's precedent on student searches in the 1985 case New Jersey v. T.L.O, the school was justified in conducting a limited search of the girl's backpack and outer clothing, but requiring her to strip to her underwear and partly expose herself was excessive.  Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Stephen Breyer and Samuel Alito Jr. joined the majority.  Justices Ginsburg and Stevens agreed there had been a constitutional violation, but dissented on the issue of qualified immunity.  Justice Thomas did not believe the search violated the Fourth Amendment in the first place.

Judges Posner, Easterbrook and Bauer Threatened, Radio Talk-Show Host Arrested:  At Wall Street Journal's Law Blog, Ashby Jones reports that blogger and radio talk-show host Hal Turner has been arrested for a June 2nd blog post stating "[t]hese judges need to be killed."  Federal authorities in New Jersey arrested Turner for comments that the FBI calls "a threat to assault or murder a United States judge," despite the lack of evidence that anyone had taken steps to carry out the threat.  But Turner certainly made it easy for anyone who intended to carry out his threat.  According to Jones, Turner allegedly posted the work addresses of the judges as well as their photos, and a map of Chicago's federal courthouse highlighting its "anti-truck-bomb" pylons.  He included a note that the Judges home addresses would follow.  Seventh Circuit Judges Posner, Easterbrook and Bauer apparently incited Turner's anger by upholding two handgun bans in Chicago.  This New York Times article, by Eric Lichtblau, discusses the arrest.  

Melendez-Diaz v. Massachusetts

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In Crawford v. Washington, the United States Supreme Court, in an opinion authored by Justice Scalia, held that the Sixth Amendment guarantees a defendant's right to confront those "who 'bear testimony' " against him.  The holding rendered inadmissible a witness's testimony against a defendant unless the witness appeared at trial, or the defendant had a prior opportunity to cross-examine the witness.  Holding to this bright-line rule, today's decision in Melendez-Diaz v. Massachusetts, includes a lab analyst's report in the category of witnesses that must be subject to cross-examination under the Confrontation Clause.

For the majority of the Court, the "certificates" used to show the results of a forensic analysis of the cocaine recovered after Melendez-Diaz's arrest, were the same type of formalized testimonial affidavits that a defendant had the right to confront after Crawford.  The Court reasoned that because the certificates gave the precise testimony the analyst would have given at trial, "[t]he 'certificates' are functionally identical to live, in-court testimony doing 'precisely what a witness does on direct examination.' " Relevant to the Court's decision was the fact that under Massachusetts law, the "sole purpose" of the affidavits was to provide "prima facie evidence of the composition, quality and net weight" of the substance.  The fact that a "certificate" would be used to establish one fact that could result in a conviction was sufficient to hold that the analyst preparing the report must be subject to confrontation.   
Justice Scalia, writing for a 5-4 majority, authored the Supreme Court's decision in Melendez-Diaz v. Massachusetts.  Today's decision held that a forensic lab report is "testimonial" evidence under Crawford and that admission of the report violated Melendez-Diaz's Sixth Amendment right to confront witnesses against him.  As Justice Kennedy pointed out in his dissent, today's decision "sweeps away an accepted rule governing the admission of scientific evidence.  Until today, scientific analysis could be introduced into evidence without testimony from the 'analyst' who produced it.  This rule has been established for at least 90 years....  Yet the Court undoes it based on two recent opinions that say nothing about forensic analysts:  Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006)."   Kennedy's dissent was joined by Justices Alito and Breyer, and Chief Justice Roberts.  Watch for a follow-up post on Melendez-Diaz later today.  Previous posts on the case can be found here.

Blog Scan

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Judge Sotomayor's Record on Business Cases:  As part of its continuing series on Judge Sotomayor's record, the liberal group Alliance for Justice reports that in business cases, "Judge Sotomayor continues her practice of careful attention to the facts of each case, deference to the legislature, and adherence to legal precedents."  Tony Mauro reports on the 16 page report at Blog of Legal Times. While the report purports to focus on business and consumer litigation, Mauro reports that it also touches on decisions regarding the environment and intellectual property law. 

Lethal Injection Debate in Missouri:  Doug Berman comments on Sentencing Law and Policy that "[a]nyone who hoped or feared that the Supreme Court's ruling in Baze would help resolve lower court litigation over state lethal injection procedures" should check out what is taking place in Missouri.  According to an AP article by David A. Lieb, the Missouri Supreme Court is assessing the merits of Reginald Clemons' lawsuit challenging Missouri's lethal injection procedure.  Clemons was scheduled for execution on June 17th, but the 8th Circuit U.S. Court of Appeals put a hold on the execution after Clemons' attorneys challenged the procedure.  The 8th Circuit is seeking further court proceedings "to ensure Missouri is using competent personnel who will not cause inmates pain with insufficient amounts of anesthesia before lethal injections."  As federalist points out in his comment, the Supreme Court said in Baze: "A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain."

Judge Kent Impeached:  Last week, at Sex Crimes, Corey Rayburn Yung reported that the House had voted 389-0 to impeach Judge Kent for "abusing his power by sexually assaulting two female court workers and lying about his conduct to authorities."   Judge Kent then entered federal prison to serve his 33-month sentence for predatory sexual assaults against the women.  David Ingram now informs on Blog of Legal Times that the Senate has appointed a panel to investigate the impeached judge.   

Justice O'Connor Promotes Book on Letterman:  At Blog of Legal Times, Tony Mauro reports on retired Justice O'Connor's appearance on David Letterman's Late Show.  Mauro reports that Justice O'Connor did not say much about her days on the U.S. Supreme Court, but did, "[w]ithout offering a specific judgment on Sotomayor[,]" "carefully" state that she was very happy to see another woman nominated to the Supreme Court.  The rest of the interview, according to Mauro, focused on O'Connor's new children's book, Finding Susie

The Festival of Noses

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The Ninth Circuit en banc has struck down the City of Seattle's attempts to restrain obnoxious street performers from hassling people (including each other) at the Seattle Center. The case is Berger v. City of Seattle, No. 05-35752. Chief Judge Kozinski dissents in his characteristic style with a hypothetical:

Mr. Nez, who lives in Pasadena, wants to hold a parade celebrating the Festival of Noses. And he wants to follow the route that is followed every year by another parade with a very similar name --starting north on Orange Grove Avenue near California, then turning east on Colorado for about 5 miles. Unfortunately for Mr. Nez, no one else shares his enthusiasm, so he decides to hold a one-man parade, carrying a giant paper mache replica of Jimmy Durante's head. Having read the majority's opinion, he believes that he needs no parade permit since he is, after all, a single performer. So, about 9 a.m. on January 2, he dons a top hat and tails, holds high the effigy of The Schnozz and starts walking north on Orange Grove straddling the double yellow line. My guess is that the Pasadena police would pick him up and give him a jaywalking ticket (or worse) long before he got to Colorado. His First Amendment defense would get about as far as his parade.

This one is certworthy, Seattle. Go for it.

Spammer to the Slammer

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"America's so-called spam king and his cohorts are going to prison," reports Tresa Baldas in the NLJ (registration required)."Alan Ralsky, whom federal prosecutors called one of the world's most notorious spammers, and four codefendants pleaded guilty on Monday in federal court in Detroit for their roles in an international spamming scheme that sent billions of illegal e-mail advertisements to pump up Chinese 'penny' stocks." Ralsky "pleaded guilty to a variety of charges, including wire fraud, money laundering and violating the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), which prohibits the falsification of certain information used in the transmission of e-mail." He will probably get 35 to 43 months due to cooperation with the government.

Ralsky's lawyer doesn't think spamming should be a crime.  "I doubt that there are too many people who leave their homes petrified that their e-mail will be flooded with spam." Leave their homes? No. Petrified? No. Annoyed as hell? Yes. Have their productivity impacted? Yes.  Have their communications made more difficult? Yes.

Blog Scan

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Physician Participation in Executions:  Doug Berman provides this helpful link to an SSRN article by Ty Alper over at Sentencing Law and Policy.  The article, "The Truth About Physician Participation in Lethal Injection Executions," attempts to "expose two myths that have come to dominate the capital punishment discourse: first, that requiring physician participation would grind the administration of the death penalty to a halt; and second, that advocacy for such a requirement is a disingenuous abolitionist strategy as opposed to a principled remedial argument."  Alper says his research shows that doctors are willing to participate in executions, but States have "strategically emphasized" and "exaggerated" the positions of national medical associations in order to prove that doctors are unwilling to participate in executions.  Alper is a law professor at Berkeley Law and participates in the school's Death Penalty Clinic.  The Clinic submitted this brief in the landmark case Baze v. Rees.   CJLF's brief in that case is here. Alper takes issue with our position that opponents are deliberately trying to set up a Catch-22. See n. 34 in the paper and accompanying text. We stand by it.

Prison Rape Study Released:
  Jordan Weissmann reports on Blog of Legal Times that a congressional commission on prison rape, headed by Judge Reggie Walton, has released its final recommendations for how prisons may control the sexual abuse of prison inmates. Weismann reports that the eight member panel recommended improvements in guard training, the method of reporting rapes, procedures used for investigations, as well as different disciplinary measures.  The commission was created by the Prison Rape Elimination Act of 2003.  Former-President George W. Bush appointed its members.  Judge Walton said that he planned to work with Attorney General Eric Holder Jr. to assure that the commission's standards are adopted at the federal and state level.  

Enviable Summer Schedules:  At Blog of Legal Times, Tony Mauro reports that the Supreme Court Justices are getting ready for a summer of lecturing and traveling.  According to Mauro, Justice Breyer and former Justice Sandra Day O'Connor will be speaking at the Aspen Ideas Festival in Aspen, Colorado while Justices Alito, Kennedy, Ginsburg, and Roberts are all scheduled to teach summer law courses in Europe.  Interestingly, almost all of the Justices will be lecturing in cooler, mountain climates.  With destinations like Aspen, Innsbruck and Salzburg, I'd be eager to escape the D.C. heat too.

Colorado Supermax Prison Getting Lots of Press: 
Yesterday, Doug Berman's Sentencing Law and Policy featured a link to a 60 minutes story on ADX Florence, the Supermax federal prison in Colorado. Today, at Wall Street Journal Law Blog, Ashby Jones reports that one of the prisons most famous inmates, Terry Nichols, is unhappy with prison conditions at the Supermax facility.  Jones reports that Nichols has asked for a lawyer to help him in a lawsuit against the prison over the quality of the food.  An AP story reports that Nichols requested an attorney because he can't afford an attorney, has limited legal knowledge, and that his case is complex and requires "significant research."

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DNA Testing Cut in Los Angeles County as Sheriff Lee Baca deals with a budget shortfall caused by the state's worsening economy.  An AP story reports that the Sheriff told the LA County Board of Supervisors last week that his department had suspended shipping rape kits, and other DNA samples, to crime labs last month due to a shortage of cash and staff.  Last November, it was reported that a ten year backlog of over 4,000 rape kits sat untested in county storage.

AG Holder Could Cut Funding to State Prisons if he accepts the standards presented in a report from the National Prison Rape Elimination Commission according to a story by AP writer Jennifer C. Kerr.  The report requires states to adopt standards to reduce rape in prisons and jails, or lose 5% of their federal funding for prisons. Among the Commission's key findings was that inmates who were short, gay or female were more likely to be victimized than other inmates.  This finding overlooks transgender inmates.  A UC Irvine study we reported on last April found that nearly 60% of male inmates who dress and present themselves as women in California prisons reported being sexually assaulted by other inmates.  Unfortunately, the study also found that the same 60% of transgender inmates opposed being segregated in women's prisons.  

Federal Death Penalty. Josh Gerstein at Politico had this story on Sunday regarding the federal death penalty. He says President Obama may be faced with execution decisions in the next few months. Unlike the two previous presidents, who were former governors, this will be a first for him.

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Narrow Ruling on Voting Rights Act:  At Blog of Legal Times, Tony Mauro reports that the Court's "much-awaited" decision in Northwest Austin Municipal Utility District Number One v. Holder did not strike down Section 5 of the Voting Rights Act.  Instead, Chief Justice Roberts' majority opinion avoided the constitutional question and found an alternative way to resolve the case.  Mauro reports that by granting the Texas Utility District a "bailout" from Section 5, an 8-1 majority found that today was not the day to strike down Section 5 of the Act.  At SCOTUSblog, Tom Goldstein writes that although the Court did not strike down the law today, the Northwest Austin decision "unambiguously served notice that the Justices are prepared to invalidate the statute as it stands."  Goldstein believes that Congress is now "on the clock" to change the statute before the Court gets the opportunity to invalidate the statute in a follow-up case.  Goldstein's post expresses his respect for the Chief Justice's majority opinion which serves as a "model for his philosophy of judicial minimalism" by instructing Congress that the ball is in its court, brings eight Justices together on a result to which they can agree, and still allows the Utility District to "bailout" of Section 5 requirements.  Also, check out Ashby Jones' Q&A with "election-law specialist and Loyola Law School professor" Rick Hasen on today's decision at Wall Street Journal Blog. 

Judge Sotomayor's Mentor/"Foil":  Ed Whalen writes on NRO's Bench Memos that David D. Kirkpatrick's New York Times article about Judge Sotomayor and her mentor José A. Cabranes is "oddly" written in a way that repeatedly "denigrates Cabranes and favors Sotomayor."  Whalen appears to find it strange that in comparing the two Judges, Kirkpatrick continuously refers to Cabranes' decisions as "expansive" while choosing to define Judge Sotomayor's decisions as "studiously narrow."  Judge Cabranes and Judge Sotomayor first crossed paths when Cabranes was Yale University's General Counsel and Sotomayor was a student.  Judge Cabranes then went on to serve as her mentor and eventually swore her in as a Judge on the Second Circuit Court of Appeals.

Is Budgeting for Prison Really the Problem:  Doug Berman posts at Sentencing Law and Policy a commentary from Mike Krause of the Colorado Daily, which states "prison spending..., and the sentencing polices [sic] that drive that spending, [have] been constraining state spending for decades...."  In his commentary, Krause complains that as Colorado has increased the maximum penalties for felonies, and Colorado's inmate population has doubled, the state has increased spending on prisons, when it could have been spending on higher education and health care.  Berman believes this is just one more reason why "anyone concerned about government growth and excessive government spending needs to be focusing on sentencing reform."

A Very Interesting Case:  At Volokh Conspiracy, Eugene Volokh briefly notes that the U.S. Supreme Court has agreed to hear arguments in United States v. Comstock, a federal powers case that will address whether the federal government can civilly commit a "sexually dangerous" person even after that person has completed his sentence.  Volokh had blogged on the case when the Fourth Circuit unanimously held that the federal government did not have this sort of power.  In today's post, Volokh predicts that the Supreme Court will reverse the Fourth Circuit decision, "chiefly for the reasons I mentioned in my initial post[,]" where he was "tentatively skeptical of the panel's reasoning."  

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Prison Riot Injures 11:  A riot Sunday at California's Substance Abuse Treatment Facility and Prison in Corcoran sent 11 inmates to the hospital.  A story by Sanford Nax in the Fresno Bee reports that the riot involved 75 members of two Hispanic prison gangs.  The maximum-security facility, which houses 7,000 inmates, was placed in lockdown after the incident.  Prison officials recovered 28 inmate-made weapons and believe that the riot may have been planned. 

Mississippi DP Law Challenged:  The 5th Circuit is set to rule on a condemned murderer's claim that Mississippi's death penalty law is unconstitutional.  An story by AP writer Jack Elliott Jr., reports that Gerald James Holland, a 71 year-old Mississippi man convicted of the 1987 rape and murder of a 15 year-old girl, is seeking a decision to overturn the law.  Holland is arguing the law is unconstitutional because, at a court-required re-sentencing hearing held several years after his trial, he was not allowed to attack the introduction of the facts establishing his guilt.  At oral argument held last month, attorneys for Holland argued that, because the second sentencing jury was unfamiliar with his defense,  he should have been allowed to rebut the aggravating circumstance of rape.

Refining Miranda

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Today, the U.S. Supreme Court agreed to decide whether Miranda v. Arizona requires a state to explicitly advise a suspect of his right to counsel during a custodial interrogation.   The case, Florida v. Powell (08-1175) will examine Florida's written "Miranda" warnings, which in part advise, "You have the right to talk to a lawyer before answering any questions[,]" and "[y]ou have the right to use any of these rights any time you want during this interview."  The Florida Supreme Court found these warnings to be deficient, reasoning that advising a suspect of his "right 'to talk to a lawyer before answering any of our questions' constitutes a narrower and less functional warning than required by Miranda."  In a lone dissent, Justice Wells expressed his belief that the majority had stretched the language of Miranda, and "ignore[d] the simple, straight-forward requirements for a warning set out in Miranda." 

In its decision, the Miranda Court stated that "the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today."  The "system" therefore required that a suspect "held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation..."  With these guidelines in place, the Court allowed states to adopt their own methods for informing of a suspect of his Miranda rights.   In Florida, the result was Form 310.  The defendant in this case, Kevin Dewayne Powell, was read Form 310 verbatim before his interrogation.  According to the Florida Supreme Court, after being read his rights, Mr. Powell agreed to talk and made incriminating statements.  He was charged as a felon in possession of a firearm and sentenced to ten years.  Powell appealed arguing that Form 310 was inconsistent with Miranda, the Second District Court of Florida agreed and reversed his conviction.  The Florida Supreme Court then affirmed, and Florida's Attorney General petitioned for certiorari.  (The decision of the Florida Supreme Court is available here, and Powell's Brief in opposition is available here.) 

It will be interesting to see how this case is decided.  According to an April post on SCOTUSblog, this question "has long split the lower courts."  Hopefully, a decision by the Supreme Court will clarify the reach of Miranda's language.

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Who Will Author the Next Ten Cases?:  At NRO Bench Memos, Ed Whalen links to a report from the attorneys at Mayer Brown that breaks down the cases argued during the Court's 2008 term by author, session and how the cases were resolved.  The charts also demonstrate how many majority opinions each of the Justices has authored.  Whalen examines the report and speculates that because we have only seen five or six majority opinions from Justices Kennedy and Alito we can "expect more from them" as the remaining 10 cases are decided.

Public Needs More Information on Judge Sotomayor:
  Amy Harder writes on the Ninth Justice that "The Jury Is Still Out On Sotomayor."  According to two polls, one conducted by CBS/The New York Times and one by NBC News and The Wall Street Journal, poll respondents are still unsure whether Judge Sotomayor should be confirmed or rejected.  The CBS/New York Times survey reported that 58% of respondents hadn't heard enough about Judge Sotomayor to form an opinion over whether she should be confirmed or rejected.  The NBC News and Wall Street Journal survey found that 43% support Sotomayor and only 20% are opposed to her nomination.  Harder reports that these results are better than any of George W. Bush's three nominees had.

AG Holder Advocates Access to DNA Evidence:  Mike Scarcella reports on Blog of Legal Times that the day after District Attorney v. Osborne was decided, Attorney General Eric Holder took the podium as the scheduled keynote speaker at the 34th Annual D.C. Courts' Judicial Conference in Washington.  In his speech, Holder "underscored" the Judicial Department's quest to expand access to DNA evidence in courts.  Holder apparently told attendees that the Justice Department's mission is "to do justice, and science and DNA can help us accomplish this."  Just yesterday, in response to the Court's decision in Osborne, Holder issued a statement that said, in part, "Constitutional rights are only one part of a fair and full system of justice. Simply because a course of action is constitutional does not make it wise." Holder said in the statement that the Court "merely spoke about what is constitutional, not what is good policy."  Holder's statements lead the public to view Osborne a certain way, but helpful commenter Brent provides this link to an Internet video that, in his words, makes "the court's decision ... mak[e] more sense."

Judge Kent Impeached:  Thanks to Doug Berman at Sentencing Law and Policy, and Howard Bashman at How Appealing for quickly posting news of Judge Kent's impeachment by the U.S. House (Berman's link is available here, Bashman's is here).  Stewart Powell reports for the Houston Chronicle that the "House overwhelmingly adopted four articles of impeachment against the 59-year-old jurist..."  Judge Kent is accused of "abusing his power as a judge by sexually assaulting two female court employees as well as lying about his conduct to a judicial inquiry, the FBI and the Justice Department."  His case will now go to the Senate for trial.  
Today, SCOTUSblog posted a list of the Supreme Court's outstanding cases for the 2008 term.  In the very beginning Kristina Moore lists the lone case raising a criminal law issue -- Melendez-Diaz v. Massachusetts (07-591).  The case raises an interesting issue, whether a state forensic analyst's lab report is testimonial and therefore subject to the confrontation standards of Crawford v. Washington and Davis v. Washington.  The outcome of the Supreme Court's decision could depend on whether the Court believes Melendez-Diaz's argument that the lab report was prepared "for the purpose of prosecution" and was not just a routine test conducted by an analyst who happened to work for the state. 

The facts of the case are relatively simple.  A police officer observed Melendez-Diaz and his co-defendant Ellis Montero engaged in what appeared to be a drug deal.  The officer stopped the purchaser, and recovered 4.75 grams of cocaine divided among four small plastic bags.  The purchaser, Melendez-Diaz and Montero were arrested and driven to the police station.  During the eight minute drive either Melendez-Diaz or Montero dropped a large plastic bag filled with nineteen small bags of cocaine in the back seat of the police cruiser.  Melendez-Diaz was convicted by a jury for distributing and trafficking cocaine.  He appealed, arguing that Crawford entitled him to confront the lab technician who prepared his drug analysis certificates.  The Commonwealth of Massachusetts Appeals Court never really addressed this argument, and instead it upheld his conviction on sufficiency of the evidence grounds. The only mention of the reports occurs in a footnote that mentions that  state precedent,Commonwealth v. Verde,  holds that certificates of drug analysis do not deny a defendant the right to confrontation and are not subject to Crawford.  The Massachusetts Supreme Judicial Court denied review without comment.    

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Rule Protecting Illegals Upheld:  A taxpayer's challenge to Special Order 40, a rule which prohibits LAPD officers from initiating police action solely to discover the immigration status of an individual and then arrest him for illegal entry into the United States, was rejected yesterday by California's Second District Court of Appeal.  The Court's unanimous ruling in Sturgeon v. Bratton et al, held that while federal law prohibits local rules restricting the exchange information regarding illegal immigration between local entities and ICE, federal law does not bar restrictions on obtaining information.  An AP story by Bob Egelko reports that the ruling may have implications on San Francisco's sanctuary ordinance which contains a virtually identical provision.  

Double Murderer's Death Sentence Overturned:  The Delaware Supreme Court has ordered a new sentencing hearing for Allison Lamont Norman, who was convicted in 2007 for killing two people in a crime spree through Maryland and Delaware.  A story from Wilmington's News Journal reports that in addition to the two deaths, Norman injured four others during the 2005 crime spree. The Court's ruling concluded that the sentencing judge and jury improperly failed to consider mitigating evidence regarding Norman's murder of the Maryland victim.  According to court records Norman shot and killed minister DeVondale Peters in Salisbury, MD after commandeering his SUV.      

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Two Criminal Law Decisions for U.S. Supremes: At SCOTUSblog, Lyle Denniston briefly summarizes today's U.S. Supreme Court decisions.  Of the four, two involved issues relating to criminal law.  Tony Mauro also provides a quick summary at Blog of Legal Times. The first case, District Attorney's Office v. Osborne (No. 08-6), held that an individual whose criminal conviction has become final does not have a constitutional right to to obtain post-conviction access to the State's DNA evidence for testing to prove his innocence.  A 5-4 majority found that the task of writing rules to control access to DNA evidence "belongs primarily" to the legislature. Denniston reports that two members of the majority, Justices Alito and Kennedy, also wrote that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.  Kent's post on Chief Justice Robert's majority opinion can be found here.  Ed Whalen also has two posts discussing Osborne's "debate" over the proper role of the Court at Bench Memos.  The first post features Roberts' majority opinion, while the second offers an excerpt from Justice Stevens' dissent.  Yeager v. U.S. (No. 08-67), the other criminal law case decided today, held that if a jury finds an individual not guilty on some counts, but can't agree on the others, prosecutors may not try that individual again on the "hung" counts if they had a common element with those on which the jury acquitted.  In a 6-3 decision, Justice Stevens wrote that Yeager could not be retried on charges if a jury verdict on other charges had resolved an essential element of those crimes.  The other two cases decided today, Gross v. FBL Financial Services (No. 08-441) and Travelers Indemnity, et al., v. Bailey, et al. (No. 08-295), discussed workplace discrimination and a bankruptcy court's power to block lawsuits following a settlement.

Random Drug Test Policy Violates State's Protection Against Unreasonable Search and Seizure:  Eugene Volokh writes at Volokh Conspiracy that the North Carolina Court of Appeals has struck down a County Board of Education's random drug test policy for all public school employees.  The decision, Jones v. Graham County Bd. of Educ. (N.C. Ct. App. June 2, 2009) found that because public school employees do not have a reduced expectation of privacy "by virtue of their employment in a public school system," and because the record was devoid of evidence that the Board's prior policy -- requiring all applicants to pass a drug or alcohol test, and requiring employees to pass a test if supervisor found reasonable cause -- was in any way insufficient to satisfy the Board's needs, "the employees' acknowledged privacy interests outweigh the Board's interest in conducting random, suspicionless testing."

Which City is the "Murder Capital" of the United States?:
  Wall Street Journal's Law Blog writer, Ashby Jones, reports that while recent FBI data found Baltimore to have the highest homicide rate in the United States, a story in today's Detroit News found that the Detroit police "routinely underreport homicides" and an "actual" total makes Detroit the homicide capital of the nation.  The article, by Charlie LeDuff and Santiago Esparza, reports that rather than following medical examiner reports to determine if it is a homicide, Detroit takes a "wait and see" approach on killings that may have been accidents, suicides, or acts of self-defense.  Detroit News found that Detroit's actual homicide rate in 2008 -- 40.7 per 100,000 -- was higher than Baltimore's homicide rate of 37 per 100,000.   

Judicial Restraint

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Does the judiciary need to move in and "construe" the Constitution to provide remedies to problems, with the details to be filled in by judges, when the other branches of government are already moving forward to address the issue? A bare majority of the Supreme Court thinks not. From today's decision in District Attorney v. Osborne:

DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure--usually but not always through legislation.
Against this prompt and considered response, the respondent, William Osborne, proposes a different approach: the recognition of a freestanding and far-reaching constitutional right of access to this new type of evidence. The nature of what he seeks is confirmed by his decision to file this lawsuit in federal court under 42 U. S. C. §1983, not within the state criminal justice system. This approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause. There is no reason to constitutionalize the issue in this way. Because the decision below would do just that, we reverse.

It is also important to note that Osborne could have had a more discriminating DNA test done at trial. His lawyer decided not to because she believed that further testing would only further inculpate Osborne, not exculpate him. (That sounds a lot like the Brown case, to be argued in October. CJLF brief here.) Osborne now claims he asked the lawyer for the test, but she has no recollection of such a request.

Coverage: Mark Sherman for AP, Lyle Denniston on SCOTUSblog, David Savage in the LAT, David Stout in the NYT

Blog Scan

Can Herring Save Gant?:  At North Carolina Criminal Blog, Jeff Welty a Professor at UNC's School of Government, asks whether the Herring "good faith" exception to the exclusionary rule can be applied to "save" pre-Gant vehicle searches incident to arrest that were conducted in good faith reliance on settled law.  On June 11th, a federal district court in Tennessee addressed this very issue in United States v. Buford.  In Buford, an officer stopped the defendant after running his tag and learning he was the subject of an outstanding arrest warrant.  A post-arrest search of the vehicle revealed a handgun.  After Gant came down, the defendant moved to suppress, and the government urged the court to admit the gun because the officer was acting in good faith reliance of the law at the time of the search.  Since Gant is retroactive, the district court struggled with the government's argument and ultimately decided not to apply Herring's "good faith" exception to the exclusionary rule. 

Praise for Judge Sotomayor's Criminal Record:  Amy Harder writes on The Ninth Justice that the "left-leaning" Alliance for Justice has released a report that examines several of Judge Sotomayor's criminal law opinions.  William Yeomans the organization's legal director, and Brina Milikowsky, a legal researcher at the Alliance, found that Judge Sotomayor took a "strong stance" on criminal issues.  Yeomans pointed out that we still do not know much about her stance on the death penalty (although we do have that 1981 Memo that Kent blogged about here), but emphasized that Judge Sotomayor's record demonstrated adherence to precedent and a "careful judicial style."  The Alliance's "Access to Justice" report on Sotomayor is also available on its website, and be sure to check out Kent's posts on Judge Sotomayor's AEDPA record, her Death Penalty record, and today's USCA2 action in the Fell case.

Criminal Defendants Feel the Effect of Judicial Elections:  At Sentencing Law and Policy is Doug Berman links to a National Journal commentary by Amanda Frost that argues criminal defendants are the real losers when judges are elected.  Frost examines the Supreme Court's recent decision in Caperton v. Massey, which held an elected state court judge must recuse himself from a case involving his largest campaign donor.  She then goes on to argue that the decision does not help criminal defendants who "rely on judges to protect their rights."  Frost points to studies which show that elected judges become notably harder on criminal defendants, and are more likely to impose the death penalty as elections approach, and believes that judges pay closer attention to popular opinion when they are elected.  She concludes, however, that "the most pressing problem with judicial elections right now is that voters are being manipulated by special interests that care only about their bottom line, and not about electing the best qualified judges."

Somin Responds to Penalver's Defense of Didden:  Yesterday's Blog Scan reported on a discussion of Didden v. Port Chester by Law Professor Eduardo Penalver.  Penalver's post mentioned Ilya Somin, who had signed onto an amicus brief asking the Supreme Court to review the case.  Last night Ilya Somin posted his response to Penalver at Volokh Conspiracy.  While Penalver was critical of the Second Circuit's decision to affirm the district court without a more thorough discussion, Somin defends his belief that the Second Circuit's resolution of the statute of limitations issue was in fact inseparable from its resolution of the substantive question.

USCA2 Capital Case

The U.S. Court of Appeals for the Second Circuit has finally denied rehearing en banc in United States v. Fell. I was wondering what was taking them so long. Now we know.

Judge Calabresi dissents with a bizarre theory that the rules for voir dire in federal capital cases should vary depending on whether the state does or does not have capital punishment. Nobody seems to doubt that the district judge applied the general rule correctly. If that were not strange enough, Judge Calabresi apparently would include in the "not have" category those states where the people have chosen through the democratic process to have capital punishment, but their choice has been overridden by judicial imperialism, e.g., New York.

Judges Pooler and Sack also have shorter dissents. There is a concurring opinion by Judge Raggi, joined by Chief Judge Jacobs and Judges Cabranes, B.D. Parker, Wesley, and Livingston.

The USCA2 site is a bit quirky, so I have mirrored the opinion here. It is a scan of various paper documents, not a single PDF document like we get from most courts.

The active judges not listed as joining any of the opinions are Judges Sotomayor and Katzmann. Judge Hall is recused. With eleven nonrecused active judges, the six who joined the concurrence were sufficient to defeat the rehearing motion, so we don't know how the two nonjoiners voted.

Over at SL&P, commenter Soronel Haetir notes that USCA2's scanned image files are inaccessible to those who depend on text-to-speech conversion.  I tried to OCR this file to make it accessible, but it didn't work. Sorry.

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Judge Sotomayor's Property Rights Case:  At PrawfsBlawg, Cornell Law Professor Eduardo Penalver comments on yesterday's New York Times story by Adam Liptak.  The story reviewed the Second Circuit's decision in Didden v. Port Chester, a Fifth Amendment takings clause case with facts that make it "sound like Kelo redux."  The plaintiffs in Didden alleged that the condemnation of their parcel violated the Fifth Amendment's "public use" requirement, and the trial court dismissed on statute of limitations grounds.  The Second Circuit affirmed on both the statute of limitations and under Kelo v. New London, holding that economic development constitutes an adequate "public use."  Penalver comments that Liptak's argument is "fairly one-sided," and criticizes Liptak for quoting only Ilya Somin and Richard Epstein, two scholars with "well known" ideological commitments, in his story.  Penalver also believes that Judge Sotomayor should come under some criticism for her role as senior judge in Didden (This Washington Times Op-ed is one example), because, even though the "result the panel reached was probably the correct one" the District Court's decision "was potentially far-reaching and troubling."  Amy Harder, at The Ninth Justice, confirms Penalver's belief that Judge Sotomayor will be questioned about Didden. Harder reports that a NationalJournal.com poll shows Didden v. Port Chester could be heavily discussed during the Judge's confirmation hearings.  And,at Volokh Conspiracy, Jonathan Adler reports on Jeffrey Rosen's upcoming article in The New Republic.  In his article Rosen concludes, that based on Judge Sotomayor's dissenting opinions she is "quite liberal" and could help push the court to the left in criminal cases.      

Lethal Injection Adopted in China:
  Doug Berman posts on Sentencing Law and Policy that China plans to adopt lethal injection as its method of execution by the end of the year.  A Reuters article explains that Chinese law officials plan to phase out firing squads and switch to lethal injection.  China's Supreme People's Court director, Hu Yunteng stated that China planned to adopt lethal injection "[a]s lethal injection is the most popular method for execution adopted by countries with capital punishment, China will follow suit ... it is considered more humane."

A Western Push for States' Rights:  At Wall Street Journal Blog, Ashby Jones posts a link to a LA Times article that reports "Western States Want Reins on Federal Power."  From Bozeman, MT, Mark Z. Barabak reports that "[f]rustrated by the expanded power of Washington, a growing number of state lawmakers are defying the federal government and passing legislation aimed at rolling back the reach of Congress and President Obama."  Apparently, in hopes of a "constitutional showdown" Montana's Firearms Freedom Act seeks to exempt from federal regulation any firearm, gun component or ammunition made and kept within the state's borders.   It is an effort to "curtail Washington's ability to set policy on a wide range of issues, including education, civil rights, law enforcement and land use."  Jones reports that recent legislation in Tennessee has also exempted Tennessee from federal gun legislation, and Utah may soon follow suit.   


The Ninth Circuit, which is not quite as bad as it used to be, has granted rehearing en banc in United States v. Nevils, 06-50485, a sufficiency-of-evidence case in which the panel split 2-1 for the defendant.

If the defendant was found asleep in a drug den with one gun on his lap, another leaning against his leg, and drugs and cash within arm's reach, can a jury infer knowing possession? Judges Paez and Nelson thought not. See Judge Bybee's dissent for an explanation of the title of this post.
This editorial in the New York Times complains about overly lenient sentences. Really. In other news, the sun rose in the west and pigs flew.

A federal judge has ordered a defendant to write a book, and the NYT (correctly, IMHO) doubts the penological efficacy of such a punishment. (Hat tip: SL&P)

Unsubstantiated charges of racism

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Tom Goldstein has this op-ed in the NYT, regarding claims of bias being made against Supreme Court nominee Sonia Sotomayor. Here are the first and last paragraphs:

LONG past the Civil War, and a generation after the formative civil rights struggle, many of us remain incapable of having a conversation about ethnicity that does not devolve into charges of racism....

The public debate ought to be about what the law should command in these kinds of difficult cases. Unsubstantiated charges of racism distract us from these questions and demeans our justice system.

Tom is quite correct, but we should note that 99%+ of the unsubstantiated charges of racism emanate from the political left. Will they take Tom's words to heart and desist? I would bet my bottom dollar against it and give 100:1 odds, if I could find anyone fool enough to take the bet.

Speaking of unsubstantiated charges of racism, one such charge was contained in the 1981 death penalty memo signed by Sonia Sotomayor, noted here. We are still waiting for her statement on whether she still believes this.

Meg Whitman at CJLF Meeting

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Meg Whitman, former eBay CEO and current candidate for Cal. governor, spoke at CJLF's board meeting last Friday. Video is on YouTube. The campaign website is here.

CJLF does not endorse candidates, but we were certainly pleased with Ms. Whitman's strong stance on public safety. With people seriously proposing mass releases of criminals as a supposed cure for budget woes, we definitely need a governor who gets government priorities straight. We hope to hear from other candidates on this issue in the future.

Transplants on Death Row

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The Medford, Oregon, Mail Tribune has this op-ed by David Delgado, a sophomore at Stanford. Delgado is outraged by the case of Horacio Reyes-Camarena, who was sentenced to death for stabbing two sisters he met at a farm labor camp, killing one of them. That was 13 years ago, and Reyes-Camarena is still on Oregon's death row. At one point he was even going to get a kidney transplant, something many innocent people die while waiting for.

Although not directly addressed by the article, the problem here is the length of capital appeals. A judgment rendered in 1996 should have been executed by 2001. While the Constitution requires medical care for the incarcerated, none is required for the executed. (Hat tip: SL&P)

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Justice Department Pledges to Step Up Crime Fighting in Indian Country:  At Blog of Legal Times, Mike Scarcella reports that the Department of Justice plans to partner with tribal leaders to improve law enforcement in tribal communities. At the National Congress on American Indians in New York, Associate Attorney General Thomas Perrelli stated that $225 million in the American Recovery and Reinvestment Act is dedicated to improving and building correctional facilities on Indian land with an additional $20 million in the 2009 omnibus appropriations bill designated to provide equipment, technology and training to law enforcement officers.

Federal Judge Allows Padilla v. Yoo to Go Forward:  Ashby Jones reports at Wall Street Journal's Law Blog that Judge Jeffrey White of San Francisco ruled that convicted terrorist Jose Padilla can sue John Yoo for drafting legal theories that led to his alleged torture.  Reasoning that Yoo went beyond the normal role of an attorney when he helped write the Bush administration's detention and torture policies and drafted legal opinions to justify those policies, Judge White stated that "government lawyers are responsible for the foreseeable consequences of their conduct."  Jones reports that the ruling rejected government's arguments that the courts are barred from examining top-level administration decisions in wartime

Papers and Studies of the Supreme Court:  On Sunday David Stras posted an "Academic Roundup" on SCOTUSblog, and reviewed two academic articles discussing the Supreme Court.  The first, Remaking the United States Supreme Court in the Courts' of Appeals Image, proposes that the United States Supreme Court be modeled after the U.S. Courts of Appeals.  Its authors, Tracey George and Chris Guthrie believe increasing the number of Justices, and having them sit in panels of three, could increase the decision-making capacity of the Court.  They believe this would ultimately improve the consistency and clarity of the law.  The second article, Ducking Trouble: Congressionally-Induced Selection Bias in the Supreme Court's Agenda, addresses whether the Court is influenced by Congressional preferences, and concludes that between 1987 and 2001, the Rehnquist Court behaved differently when there was a Democratic Congress rather than a Republican one.  The studies authors, Barry Friedman and Anna L. Harvey wrote "[t]he Court is significantly less likely to review statutes when there are large congressionally-induced deviations between what the Court would like to do, and what is can do in its final rulings."

The Next Pick. Amy Harder at The Ninth Justice speculates on who the next Supreme Court nominee will be in the event of another vacancy. "Should another vacancy open up in the near future, with Obama busy tackling issues like health care and the economy, he would be unlikely to nominate a crusading liberal justice in the mold of William Brennan or Thurgood Marshall despite calls from the left, [UC's Geoffrey] Stone said." We certainly hope so.


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Thin gruel from the high court for criminal law practitioners today. The orders list has four grants of certiorari and one CVSG*, but all in civil cases. There are two opinions, one in a crim-related immigration case. Nijhawan v. Holder, No. 08-495, involves 8 U.S.C. §1227(a)(2)(A)(iii), which provides for deportation of an alien who commits an "aggravated felony." All well and good, but the definition of "aggravated felony" has proven problematic. One variation, §1101(a)(43)(M)(ii),** includes frauds over $10K.

Now, when legislatures impose sentence enhancements or collateral consequences based on convictions or prior convictions, it often happens that the criteria don't match up with the elements of the offense, so there may be no jury verdict on whether a particular criterion is actually true. That raises the issue of a "categorical" approach, in which we look only at the adjudicated elements in the prior proceeding, versus a "circumstance-specific" approach, in which we look at the particular circumstances of the case.

In this case, amount of loss was not an element in the criminal case, but Nijhawan stipulated during sentencing the loss exceeded $100M, ten thousand times the threshold to make it an "aggravated felony." Sort of reminds me of the classic case of Parker v. Levy, 417 U.S. 733 (1974). This statute may be problematic is some cases, Mr. Nijhawan, but it most certainly is not in yours.

Anyhow, Justice Breyer, writing for a unanimous court, rejects the categorical approach and goes circumstance-specific.

Blog Scan

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Miranda Rights For Terrorists?:  Today's "Best of the Web" by James Taranto features a discussion of President Obama's decision to "quietly order[] FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan..."  According to a report by Stephen Hayes at The Weekly Standard, Mike Rogers (R-Mich), a senior Republican on the House Intelligence Committee, claims that "The administration has decided to change the focus to law enforcement[,]" and "read terrorists Miranda rights before they are questioned."  Taranto notes that Rogers seems to the only source for this claim so far. He also notes that this might be part of the administration's new "global justice" initiative, which was reported in the L.A. Times two weeks ago. The Times reported that the initiative "presumes most accused terrorists have the right to contest the charges against them in a "legitimate" setting."   After compiling all this information, Taranto worries that Obama's "global initiative" could end up diminishing the civil liberties of Americans.  He worries that in the event of another attack the administration will be pressured to diminish the rights of terrorists within the criminal justice system.  Taranto believes that if that criminal justice rights are compromised all of us will suffer, and "the terrorists will have won."

Supreme Court Personalities:  An Op-ed by Noah Feldman at the New York Times, attempts to place the controversy over Judge Sotomayor's judicial temperament in perspective by describing the personalities of former Supreme Court Justices.  Feldman's piece reports that Justice Louis Brandeis "was famously distant," Justice Oliver Wendell Holmes Jr. "could be charming when he wanted...but he could be brutally dismissive as well," and even Justice Scalia has made harsh comments - once writing that an opinion by Justice O'Connor "irrational" and "not to be taken seriously."  In spite of strong personalities, Feldman writes that sometimes "greatness may be found in difficult personalities."  He points to President Franklin Roosevelt appointees William O. Douglas, Hugo Black, Felix Frankfurter, and Robert Jackson as examples. Douglas, at least, is far from "great" in our book, and his inclusion undermines rather than supports Feldman's argument. The last thing this country needs now is another William O. Douglas.

Rosen's Second Stab at Judge Sotomayor:  At Wall Street Journal Law Blog, Ashby Jones summarizes Jeffrey Rosen's new piece on Time.com, titled "Where Sonia Sotomayor Really Stands on Race."  Jones reports that by examining past opinions, dissents, and recent studies of Judge Sotomayor's opinions, Jeffrey Rosen reaches a conclusion that is "decidedly undecided."  Rosen predicts that if confirmed, Sotomayor will fill Justice Souter's spot in the"liberal bloc," but as far as race goes "...the only thing one can confidently predict is that the cases involving race and diversity that she will confront are very different from the ones we are thinking about today. In that sense, the evolution of Sotomayor's thinking in the years ahead may be more consequential than what she has said in her past."

Should Sex Abuse Statutes of Limitations Be Retroactive?:  Ashby Jones also posts on Law Blog on Suzanne Salatine's Law Journal column. The column discusses whether a victim can sue his sexual abuser in civil court if it is too late to pursue a criminal action. Jones reports that a handful of states have taken on the question and California, Delaware and New York have all answered "yes."  Jones and Salatine wonder whether this is a good thing, as some defense attorneys complain that some of the complaints have been brought against defendant and religious superiors who are dead or retired.  Some have even claimed that the only point of these lawsuits is to "wrench money from the Catholic church."  Victims of the abuse have a different perspective on the matter.  Matthias Conaty, who says he was abused by a Capuchin Franciscan friar starting when he was 9, stated "It's really in the public interest because it's about protecting children today.  Some institutions have changed the way they screen people. They've been much more responsive to small complaints."

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Free to beat again: A judge dismissed two charges against a man accused of beating two elderly men, both of whom later died.  Mere weeks later, he attacked a woman in her 60's, Henry Lee of the San Francisco Chronicle reports in this story.  Jahton Green broke into the woman's home, stole $600 dollars, and "beat her in the face when she tried to escape."  Earlier this week, he was convicted of assault, elder abuse, robbery and burglary. The previous charges were dropped in one case after the judge ruled that, because the victim died the week before the defendant's attorney had the opportunity to cross-examine him, all of the victim's testimony was inadmissible as evidence. It is unknown why charges were dropped in the other case.  Deputy District Attorney Jason Peck feels that justice has finally been served with Lee's recent conviction.  "Justice has long been overdue for this guy," Peck commented.

The man who opened fire
in the Washington D.C. Holocaust Museum has been formally charged with the murder of Stephen Jones, the museum's security guard, reports the CBS in this story.  One of the guards fired back at the 88-year-old alleged shooter, James von Brunn, and he is now in critical condition.  Von Brunn is also being charged with possession of a firearm in a federal building.  Von Brunn has a long history of anti-Semitism and believes that the Holocaust was a "hoax." He has been tracked by the FBI for decades, but there has never been an open investigation. Authorities believe he acted unilaterally.  President Obama commented on the situation stating: this "outrageous act reminds us that we must remain vigilant against anti-Semitism" and that "no act of violence will diminish our determination to honor those who were lost by building a more peaceful and tolerant world."

Psychopathy: A View from the Past

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Sometimes doing research brings one across an old case that overflows with wisdom.  From Flanders v. State, 156 P. 39 (1916) the Supreme Court of Wyoming Judge Beard:

And here, too, we should distinguish moral insanity, so-called, which is not insanity at all--at least not in the legal sense. It is well known that there are many depraved persons who, by continued indulgence in vice and crime, have so debased and debauched their moral sense and blunted their susceptibilities that the 'still small voice' of conscience no longer responds to the dictates of human or divine law, and fails to utter warning against the impulse of greed or passion. Sometimes the degradation is so complete that the most vile and detestible acts fail to bring the faintest shame or remorse to the perpetrator. This may be moral insanity, so-called, but, such depravity being induced by the voluntary maintenance of a conscious course of vicious indulgence on the part of the person concerned, and not by disease, there is manifest reason why such person should not be excused on the ground that his conscience fails longer to give a correct report of right and wrong. Moreover, though the man's conscience may break down in its proper function, such person cannot fail, if sane, to know how society and the laws of the state regard the act. For example, the most confirmed thief will hardly be heard to say that his conscience did not reprove him for the theft, so long as the defect in conscience is not the result of disease, but of his own willful pursuance of a course of dishonest conduct. Thus it is important to notice that the insanity which will excuse in law is the product of disease, and not of the defendant's own misconduct.  

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Omissions in Judge Sotomayor's Senate Questionnaire:  Wendy Long has a quick post a NRO's Bench Memos commenting on some "significant omissions" from Judge Sotomayor's Senate questionnaire.  The Judicial Confirmation Network provides more information on some of the items Judge Sotomayor neglected to submit.  According to the confirmation network, Judge Sotomayor failed to provide copies of law review publications, court decisions, reports and memoranda she might have edited or written throughout her career.  Long believes that while these omissions seem small, "[t]here are likely to be more." 

Juvenile Curfew. Eugene Volokh at VC reviews the NY Court of Appeals decision striking down a juvenile curfew ordinance and finds it quite unpersuasive.

Sex Offender Civil Commitment Program Scrapped in Louisiana:  Sex Crimes Blogger Corey Rayburn Yung reported yesterday on Louisiana Governor Bobby Jindal's decision to scrap a post-prison "civil commitment" program for sex offenders as too expensive.  The bill would have provided treatment for certain sex offenders after their release from prison and would cost approximately $12 million over five years. Its intent was to mange offenders most likely to commit crimes after release.  This AP story has more on the bill and Gov. Jindal's decision.  At the end of his post, Yung comments that economic woes might slow the rate at which different governments adopt different restrictions to deal with sex offenders. 

SCOTUS Recap of U.S. v. Denedo:  At SCOTUSblog, Josh Friedman discusses the Supreme Court's decision in United States v. Denedo, a case that addressed whether the Court of Appeals for the Armed Forces (CAAF) had jurisdiction to reverse a former service member's court-martial when he learned, seven years later, that his lawyer was afflicted by severe alcoholism.  In Monday's decision, the Supreme Court held that both the CAAF and the Navy-Marine Court of Criminal Appeals (NMCCA) had jurisdiction.  Writing for a majority of 5, Justice Kennedy relied on United States v. Morgan (a 1954 decision upholding the ability of a federal district court to grant a writ of coram nobis) to hold that because the NMCCA had statutory subject-matter jurisdiction over appeals stemming from Mr. Denedo's original court-martial conviction, the court also could hear a coram nobis appeal.  The majority further reasoned that under statute the CAAF is authorized to hear Denedo's appeal from the NMCCA decision.  Chief Justice Roberts wrote for the dissenting Justices.  Friedman reports that the dissenters "[c]ritically" disagreed that coram nobis can be understood as an extension of the military courts' original jurisdiction, but believed that coram nobis fell outside any congressionally proscribed jurisdiction.

California's Death Penalty:  At Sentencing Law and Policy, Doug Berman provides a link to John Van de Kamp's L.A. Times Op-Ed, titled "California can't afford the death penalty."  In his Op-Ed the former California Attorney General and district attorney argues that with California facing a severe financial crisis "it would be crazy not to consider the fact that it will add as much as $1 billion over the next five years simply to keep the death penalty on the books."  Van de Kamp believes that since "it costs $125 million a year more to prosecute and defend death penalty cases and to keep inmates on death row than it would simply to put all those people in prison for life without parole," it is time to do away with California's death penalty.  But these cost arguments are dubious, as is the report issued by the California Commission on the Fair Administration of Justice, which Van de Kamp chaired and which we noted here.  Read to the end of the Op-ed and you'll find Van de Kamp's real agenda, "It's time to convert the sentences of those now on death row to life without parole. Doing so would incapacitate some of the worst of the worst for their natural lives, and at the same time ensure that a person wrongfully convicted will not be executed." The families of the three people murdered by Clarence Ray Allen, who contracted out the job from within prison, do not agree with Van de Kamp's assertion that prison necessarily incapacitates.

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Sotomayor's DA Years. James Oliphant has this story in the LA Times.

A man who ordered the killing of another person will receive the death penalty.  Ernest Luning of  the Colorado Independent reports in this story that the defendant, ordered the slaying of the victim beacuse the victim was going take the stand at Ray's murder trial for killing someone else.  The victim was killed shortly before was scheduled to testify.  The district attorney for the county supports the jury's decision to give Ray the death penalty.  "Killing a witness undermines the very foundation of the criminal justice system,"she contends.  Colorado law makers recently voted to preserve the death penalty.

Sexual predators usually know their victims beforehand,
Keith Morelli of the Tampa Tribune reports.  In this story, a new study conducted in Hillsborough County, Florida, shows the county's rape crime trend .  Adult victims were almost always raped by someone they knew, many times an acquaintance.  Most adult rape victims were assaulted in their own homes.  Child victims were most often assaulted by someone in a "care giver role" such as a teacher, parent, foster parent, babysitter or sibling.  As with adults, most of the assaults occurred in the victims' own homes.

Authorities are using text messaging combat crime.  Abe Tekippie, of the Daily Iowan, reports in this story that authorities in parts of Iowa are encouraging young people to send tips to the police via texting. By July cell phone users will even be able to text 911.  Authorities believe that because young people are accustomed to texting, they will feel more comfortable with sending in tips using text messaging. With special software, police and "tipsters" are able to communicate back and forth while the tipster can remain anonymous. So far, authorities are receiving more tips than before and text message tips have even helped solve two murders.

Pennsylvania representatives consider stricter laws for "repeat violent offenders," reports KYW's radio host Steve Tawa in this story.  Currently there is a bill in the Pennsylvania House proposing to amend current 'second strike' law that puts violent offenders in jail for a 10-to-20-years. With the passage of Bill 1567 the 'second strike' sentence would be increased to  15 to 30 years.  Additionally, there would be no parole for repeat offenders.  Bill Boyle, the author of the bill explains,"It is tough by lengthening sentences dramatically and by eliminating parole, but it is also smart because it takes a surgical strike at exactly where the problem lies, with repeat violent offenders."

"Failings of the probation system" lead to the heinous murder
of two students in Great Britain. UTV internet news reports in this story that "poor judgment and not lack of resources" ultimately caused the death of the two French students. One of the two alleged killers was described as a "serial criminal" by Justice Secretary Jack Straw.  He then added that the alleged criminal "could and should have been in custody."  Officials say that if the budget had not been underspent this crime could have been prevented.  The Justice Secretary, the Metropolitan Police Department and the Secretary of State have all apologized to the victims' families.

Human smuggling rings flourish in Phoenix
due to increased border control and the flailing housing market. Joel Millman of the Wall Street Journal reports in this story that before the border control crack down, illegal immigrants were smuggled into the United States simply so they could work.  Now, due to increased border control, the cost of smuggling has increased and smugglers are finding that it is more lucrative to hold the immigrants for ransom instead.  Also, it is inexpensive to rent properties to house the victims because of the current housing market.  Many times the surrounding houses have been foreclosed and remain vacant, making it even easier to carry out their business without being caught. Victims are confined anywhere from a few days to several months.  They live in squalid conditions and many times there are dozens of people crammed into a single room. Authorities are doing their best to bust the smuggling rings, but because the houses are difficult to find and there has been such a sharp increase in the trade, some authorities have said that some smuggle homes will "never be found."

Virginia Primary

Virginia is the exemplar state for an effective death penalty. Five years from sentence to execution is not unusual there. Yet the state has an anomalously anti-DP governor. Not for long. The state holds its gubernatorial elections in truly odd years, and come January the governor will be either Creigh Deeds, who swamped his rivals in yesterday's primary, or former AG Bob McConnell. Deeds was regarded as the more moderate of the Democratic candidates. See Chris "The Fix" Cillizza's blog in the WaPo. Most importantly for the topic of this blog, Deeds favors the death penalty, and he favors removal of the nonsensical "triggerman" clause in the law. (Under that clause, if the leader of a conspiracy orders a follower to pull the trigger, the follower can get the death penalty but not the leader, with a few exceptions.) The present governor has repeatedly vetoed legislation to straighten that out.

Bad weather may have contributed to Deeds' win. Voting is a civic duty, but fewer people do their duty when the weather is bad. The dropoff is less among people with a strong sense of individual responsibility and hence favors the relatively conservative candidate.

Now, will the present governor emulate convicted felon George Ryan and commute the sentences of the murderers presently on death row on his way out the door? Let's hope not.

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The Danger of Creating Rules out of "Exceptional Cases":  At Blog of Legal Times, Tony Mauro comments on Chief Justice Roberts' dissent in Caperton v. Massey Coal Co.  In his dissent, the Chief Justice warned that when the Court lays down a rule that applies to a seemingly rare case, it can sometimes spawn a lot of litigation by parties who think their case is just as exceptional.  Mauro reports that the example offered in Roberts' dissent, United States v. Halper, was a decision that Roberts had argued and won back in 1989.  Halper addressed whether a convict's double jeopardy rights were violated when a civil fine under the False Claims Act bore no relation to his Medicaid fraud conviction.  The Supreme Court held that Halper's double jeopardy rights had been violated in this "rare case."  Eight years later, in Hudson v. United States, the Court abandoned the Halper rule.  Mauro reports that Chief Justice Roberts saw parallels between Halper and Caperton, and predicted "I believe we will come to regret this decision as well, when courts are forced to deal with a wide variety of Caperton motions, each claiming the title of 'most extreme' or 'most disproportionate.'" 

Racial Challenges to the Death Penalty:  At Sentencing Law and Policy, Doug Berman posts on a North Carolina bill that would allow death-row inmates to dredge up the old racial challenges to death sentences that the Supreme Court shot down in McCleskey v. Kemp, 481 U.S. 279 (1987).  James Romoser, of the Winston-Salem Journal, reports that the "North Carolina Racial Justice Act," was approved 7-5 by a House committee and will move to a different committee before a full House vote.  Supporters claim to like the bill because "it takes steps toward eradicating the problem of racial bias in the capital-punishment process," although in reality it is more likely they simply want to eradicate capital punishment itself.  Opponents argue that statistics can be misleading. Berman reports that Kentucky has a similar death penalty racial justice act on the books, and Kent adds that the New Jersey Supreme Court had "adopted something similar judicially" back when that state had capital punishment, at least in theory.  

The newspaper story says, "Supporters of the bill said that there is vast evidence suggesting that race has historically been a factor in the use of capital punishment, both nationwide and in North Carolina." Retired UNC Professor Elliot Cramer previously testified to the legislature,
Given the large number of possible relevant variables and the small numbers of homicides in each judicial district, I do not see the possibility of any statistical study being able to adequately draw conclusions about racial disparities in administration of the death penalty....
I am agnostic on the issue [of the death penalty]. I am committed to the proper use of statistical methodology and I do not believe there is any statistical support for the view that the Death Penalty discriminates against African-Americans or anyone else.

Pulido Case Aftermath

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Last December, in Hedgpeth v. Pulido, the Supreme Court reversed a decision of the Ninth Circuit, which had declared a garden-variety instructional error to be "structural error" and hence immune from "harmless error" review. This holding was so wrong that not even defense counsel defended it. Three justices dissented, not because the Ninth was right in its approach but because they thought that court had "substantially" applied the correct Kotteakos/Brecht standard even while mangling the terminology. The District Court decision the Ninth was reviewing had applied that standard.

On March 20, the Ninth Circuit remanded the case to the District Court "for further proceedings in accordance with the Supreme Court's determination that the appropriate standard of review in a case under the Antiterrorism and Effective Death Penalty Act of 1996 is harmless error, rather than structural error, when a jury is instructed on alternative theories of guilt." Um, what further proceedings? The Supreme Court decided that the District Court had applied the correct standard the first time. The only remaining dispute is whether it applied that standard correctly. That is why the Supreme Court "remand[ed] to the Court of Appeals for application of Brecht in the first instance." (Slip op. at 5.)

Today, the Ninth Circuit unremanded the case and directed more briefing on the question the Supreme Court directed it to decide. All of this would have been unnecessary if a Ninth Circuit precedent, Lara v. Ryan, 455 F. 3d 1080, 1086 (CA9 2006) (by Judge Betty Fletcher), hadn't mucked it up in the first place.

Fortunately, this is not a capital case, so Pulido continues serving his well-deserved sentence while all this goes on.

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Enforcing Probation. The fatal shooting of a Chicago police officer was preventable, argues  Chicago Tribune columnist John Kass. The accused shooter, Shaun Gaston, a member of a local gang,  violated his probation for the third time weeks before the shooting.  He was "accused of another probation violation on a felony gun charge."  The Cook County Circuit judge, Bertina Lampkin, could have sent Gaston to jail after the third violation.  A co-worker of the victim commented that local government agents "just don't take gun cases seriously."  In the past, limited jail space precluded incarceration of probation violators.  Now, according to FOP President Mark Donohue, space is not an issue.  "There's plenty of bed space, and for the judiciary to feel they still need to release these predators back out on the street, there has to be an explanation."

Domestic Violence. "An ex-sheriff's deputy who was exonerated last week in the stabbing death of her lover in self-defense says, domestic violence advocacy groups abandoned her in her time of need," according to this story by KEYT in Santa Barbara. The story says the woman was repeatedly denied aid from domestic abuse advocacy groups, her employer and her colleagues, in part because she was a police officer. 

Death Penalty Saves Lives. Eric Zahnd, Prosecuting Attorney for Platte County, Missouri, has this op-ed in the Kansas City Star discussing deterrence and the death penalty. He bases his argument on the Dezhbakhsh, Rubin, and Shepherd study published in the American Law and Economics Review.  (See CJLF's collection of abstracts.) In the study, researchers collected information spanning over the past 20 years from over 3,000 counties.  After analyzing the data, researchers concluded that "each execution results in 18 fewer murders." In his editorial, Zahnd also supports the death penalty because prosecutors only pursue the death penalty in extreme cases and errors made during trial are corrected during the appeals process.

Sex Offender Commitment. A sex offender law in New York is currently being reconsidered by legislators. Michael Gormley, an Associated Press writer, reports in this story that the law allows sex offenders to remain civilly confined and/or monitored after being released from prison.  The law is intended to act as a safety net by keeping the most dangerous sex offenders from being released..  Two men, who are considered to be some of the "most dangerous" sex offenders, were released under this law. Shortly after being released, both allegedly committed rape and one shot a police officer and then killed himself.  Legislators are currently studying the effects of the law to see if the law makes it too easy for offenders to be released.

Automatic Arrest Warrants. The Illinois Legislature has passed a bill under which "parolees accused of domestic violence would be automatically arrested for violating their parole," Angela Rozas of the Chicago Tribune reports in this story.  Under the current law, parolees are arrested if they have been ordered to register as sex offenders and fail to do so or if they commit "felonies with a knife or firearm." With all other cases the court has the discretion to decide whether to issue an arrest warrant.  This bill would not only require the automatic arrests of domestic abusers on parole, but also increase the mandatory supervised release term from 2 years to 4 years.


Life Sentence for Victims

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Congressmen Bobby Scott and John Conyers have introduced legislation to sentence victims of the most horrible crimes and their families to a lifetime of returning again and again to oppose the perpetrator's parole if he happened to be a day or more short of his 18th birthday.

The notice for tomorrow's hearing on H.R. 2289 is here. The text is here.

The bill would force states, on pain of losing their law enforcement grants, to consider people who committed murder or other grave offenses before their 18th birthday to be considered for parole "not less than once during the first 15 years of incarceration, and not less than once every 3 years of incarceration thereafter...." The bill dishonestly refers to perpetrators 17 years, 364 days old and younger as "child offenders," even though very, very few of the perpetrators in question are "children" as that term is commonly used and understood.

Along with being bad policy, this is the most egregious breach of the principles of federalism to come along in a long time. (Hat tip: SL&P)

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Today's news scan articles, after the jump, include:

Crime rate drop in Little Rock
Investigator access to cell phone info
Surveillance cameras
Getting tougher on juveniles

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Busy Day in Washington:  Since 10am EST SCOTUSblog has been reporting on the Supreme Court's actions.  First, the Court released orders from the Justice's private conference last Thursday.  The Court granted certiorari in non-criminal cases Hertz Corporation v. Friend (08-1107) and Milavetz, Gallop, & Milavetz, P.A., et al.  v. United States ; United States v. Milavetz, Gallop, & Milavetz, P.A., et al. (08-1119) and (08-12245).  The Court then announced opinions in Boyle v. United States, U.S. ex rel Eisenstein v. City of New York, Caperton v. A.T. Massey Coal Company Inc., et al., United States v. Denedo, and Republic of Iraq v. Beaty, et al.; Republic of Iraq, et al, v. Robert Simon, et al.  SCOTUSblog also provided a brief summary of the Court's decisions, including Justice Kennedy's 5-4 opinion in Caperton.  According to Lyle Denniston, the Court held that based on Caperton's facts it was unconstitutional for a state supreme court justice to sit on a case involving the financial interests of a major donor to the judge's election campaign.  Tony Mauro at Blog of Legal Times reports that after Caperton was announced judicial reformers began "celebrating the decision."  And finally, SCOTUSblog informs us that today, just moments before a 4pm deadline, Justice Ginsburg put a temporary hold on the deal to sell Chrysler to save it from collapse.  Denniston reports the order has no significant legal consequence, it just gives the full Court time to decide whether the sale should be delayed any longer.  Ashby Jones also posts on Justice Ginsburg's order at Wall Street Journal's Law Blog.

Rove, Epstein, and Judicial Activism:  At Bench Memos, Matthew J. Franck comments on University of Chicago Law Professor Richard Epstein's criticism of Karl Rove's argument against judicical activism in the Wall Street Journal.  Franck takes issue with Epstein's unwritten argument that because the Founders "understood the risk of faction" they would have approved of what Franck calls a "broad-ranging judicial power as a check on the depredations of winners against losers in the process of majority rule."  Franck does not believe that Epstein's view of judicial power is consistent with the Founders' intent, and he finds Epstein's criticism of Rove to be "woefully underdeveloped."

Pricey Habitual Offenders Laws:  Doug Berman posts on an article discussing the cost of North Carolina's habitual offender law at Sentencing Law and Policy.  In an article titled "Low-level felons add millions to spending," Joseph Neff reports that a study by The News & Observer of Raleigh shows that longer sentences add an average $195,000 in prison costs for each habitual felon.  He reports that since the habitual offender law took effect in 1994, taxpayers have paid an additional $1.5 billion to house habitual felons and $264 million to build prisons.  Neff's argues that a change in North Carolina's habitual felon law could help the state ease its $4.5 billion budget shortfall.  He argues that "[i]f the state stopped sentencing people to eight to 10 years for low-level offenses, it would save roughly $5 million in the first year."  Thankfully changing the habitual felon law isn't the only thing Neff reports on that could fix the budget.  He reports that the state still spends $8 million a year so that booster clubs can pay discounted in-state tuition rates for out-of-state athletes and $100million a year to pave little-used dirt roads. Are the costs offset by the savings in crimes not committed by the habitual criminals? Neff cites some simplistic cross-jurisdictional comparisons to argue they are not, but we know those don't mean much.

Now this requires explanation: thorough, no-waffling, no-evasion explanation.

First, a bit of background on where we are coming from. CJLF has not jumped on the bandwagon of either the opponents or supporters of the nomination of Sonia Sotomayor. We believe that a calm and fair examination is in order, and we have sought to contribute to that process with what we believe to be a balanced review of her decisions in the area we know the most about, available here. We have criticized both opponents and supporters when we thought they were out of line, and we will continue to do so.

As we noted here, in 1981 Sonia Sotomayor was a member of a three-person committee of the Puerto Rican Legal Defense and Education Fund regarding a bill to restore the death penalty in New York. The committee wrote a memo to the Board, recommending that the organization ask Gov. Hugh Carey to veto the bill. The organization subsequently sent a letter to the governor congratulating him after he vetoed the bill. As noted in our previous post, the New York Times had the memo and had mentioned it in a story published May 28. The full text is finally available to the public, and it raises some serious concerns.

John Trever
Albuquerque Journal
Jun 2, 2009


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Off-topic but interesting. The Ninth Circuit held today that the Coalition for ICANN Transparency can go ahead with its antitrust suit against VeriSign, Inc., regarding Internet domain name registrations.

Blog Scan

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Alleged-Doctor Killer Not Death Penalty Eligible:  At Wall Street Journal Blog, Amir Efrati posts on why Scott Roeder, the man charged with killing late-term abortion provider George Tiller, is not death penalty eligible.  Efrati reports that under Kansas law, an alleged murder has to fit into one of eight aggravating criteria to qualify for the death penalty.  In Kansas, this includes murders that are especially "heinous" or "cruel," murders committed for financial gain or killings committed in connection with another felony, etc.  Efrati writes that because Roeder engaged in premeditated murder for political reasons he is not death penalty eligible under the current statute.  Our previous post on the case is here.
Petitions to Watch:  SCOTUSblog has posted its "Petitions to Watch" for the Supreme Court's June 11th private conference.  Of the five cases listed, two involve criminal issues.  The first Mabry v. United States (08-763) asks whether Roe v. Flores-Ortega is applicable in a habeas case where the defendant has entered into a plea agreement that includes a waiver of the right to take an appeal or to collaterally attack the sentence.  Judge Rendell, of the Third Circuit, affirmed the district court's denial of Mabry's habeas petition in which he claimed counsel had been ineffective in failing to file an appeal.  In the second case, Campa v. United States (08-987 ) five agents of the Cuban Directorate of Intelligence, and members of The Red Avispa, challenge their convictions for espionage and treason against the United States military.  Their petition asks the Court to address whether the Eleventh Circuit erred when it held that petitioners did not establish a right to change venue. The petition also raises a Batson issue.

"Survey Says?":
  Tom Madigan reports on The Ninth Justice that top political bloggers and members of Congress believe Judge Sotomayor's nomination is a benefit for Democrats and "something of a problem for Republicans."  A survey conducted by National Journal Online of members of Congress and political bloggers found that approximately 2/3 of left-leaning bloggers and congressmen thought Sotomayor's nomination would be a major benefit for their party. 1/3 thought it would be a minor benefit.  On the right, 33% of GOP Insiders, and 25% of right-leaning bloggers said Sotomayor would be a minor benefit to them, while 41% of GOP congressmen, and 58% of right-leaning bloggers said the nomination would do them minor harm.  In the realm of criminal law, neither party may have much to fear.  Jess Bravin and Nathan Koppel reported in the Wall Street Journal today that Judge Sotomayor's "Criminal Rulings Tilt Right of Souter." (HT: SL&P)  Kent's investigations into her record on AEDPA is consistent with this conclusion, but the death penalty remains a big question mark.

Suspect Complies with Court Order After Being Tased:  At Volokh Conspiracy, Orin Kerr posts on a very interesting New York state court decision that found use of a taser was reasonable to carry out a court order for a DNA sample, given the unique circumstances of the case.  In People v. Smith, the government obtained an Order to Show Cause (OSC) ordering the suspect to appear and show why he should not be ordered to submit to a buccal swab DNA test. When the suspect did not respond to the OSC, the government sought and obtained an order, apparently based on a probable cause affidavit, requiring the suspect to submit to the DNA test. The suspect complied, but then the government accidentally sent the DNA sample to the wrong lab, where the sample was compromised.  The government then obtained a second order, and the suspect refused to comply.  The police then called a prosecutor, who told the officers they could use force, but to use as little as possible.  Based on the suspect's history  of violence, the officers decided to inform the suspect they would taser him, on the lowest setting, if he did not comply with the order.  The suspect refused, received a two second jolt from the taser, and then complied.  In Smith, the court reasoned that force was permissible because the court order was essentially a Fourth Amendment warrant, and that the police have the power to use reasonable force to execute a warrant.  Kerr's post focuses on the Fourth Amendment issue before the court - and not the officer's conduct.  Kerr writes that the Fourth Amendment does allow police to use reasonable force to execute a warrant, so, "[i]f the order did in fact give the police the authority to obtain the swab, then they had the right to use reasonable force to get the target to comply."

Considering the Source

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This story by Lynne Marek in the NLJ begins, "The more lenient incarceration and sentencing practices of New York have resulted in a bigger drop in crime and smaller prison population than have the stiffer practices of California, a Northwestern University School of Law report argues."

Really? NW Law School says that? Not quite.

Turns out the study is by Sentencing Project founder and former director Malcolm Young, who happens to be an adjunct professor at NW. The story describes the Sentencing Project as "a national organization based in Washington that seeks to promote fair sentencing laws and alternatives to incarceration." Whether the laws they seek to promote are fair or unfair is entirely a matter of opinion.

So what we really have here is one more report from an advocate with a well-known agenda. That, by itself, does not mean the books are cooked, but it enhances the probabilities substantially. Unfortunately, the story does not have a link to the actual report, so we don't know.

Tiananmen + 20

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Twenty years ago, the Chinese Communist regime brutally crushed the pro-democracy demonstrations in Tiananmen Square. The pseudosophisticates of the American Left were shocked. They had grown euphoric over China. People who thought the Communist regime was evil were ignorant "cold warriors," the latter term being a pejorative in their view. For a fleeting moment, they were faced with the undeniable empirical fact that their premise was wrong. It would be 12 years and 3 months before that happened again.

To persons of sense, the only surprise was that anyone was surprised. Of course the regime was brutal. Of course it would crush dissent. Of course they would kill people simply for publicly disagreeing with the regime. They were communists. Every communist regime from the Bolshevik Revolution forward has been brutal and dictatorial. It is the nature of the beast.

There will always be evil in the world, but there need not be as much as there is. One of the reasons there is so much is the unwillingness of too many good people to see evil for what it is.

Saving Children's Lives

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Here is another piece of the deterrence puzzle, from economists Michael Frakes at MIT and Matthew Harding at Stanford (hat tip: SL&P), and this one is a bombshell. They estimate a 19% reduction in child murders from addition of a child-murder eligibility circumstance. Wow. I have not had time to read the paper in detail yet, but on a quick skim I note that they have taken care to construct a study that avoids that issues that sparked such controversy with the Donohue and Wolfers article, discussed here.

I hope Frakes and Harding are ready for what comes next. Having committed the ultimate in Political Incorrectness, they are now targets to be smeared. If the smearing can't be done honestly, the anti-side will resort to bald-faced lies.

Blog Scan

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Death Penalty Studies:  At Sentencing Law and Policy, Doug Berman provides links to two new death penalty papers. A new deterrence study is noted in Kent's post here. The other paper, Science and the Death Penalty: DNA, Innocence, and the Debate over Capital Punishment in the United States, suggests that the quest of "abolitionists and death penalty reformers, who seek to promote a 'scientific' death penalty centered on DNA evidence, draw[s] upon a mythologized notion of 'science' as a producer of epistemic certainty."  The authors find this notion paradoxical because the "association of science with certainty is inconsistent with contemporary notions of science as characterized by efforts to measure, manage, but always acknowledge, uncertainty."

Judge Sotomayor's Senate Questionnaire:  Amy Harder has posted the Supreme Court nominee's completed questionnaire at The Ninth Justice.  She also links to its Appendix.  According to the White House, Judge Sotomayor completed the questionnaire in just nine days -- faster than any recent nominee.  Apparently, Chief Justice Roberts took 13 days to finish his questionnaire, Justice Ginsburg needed 15 days, and Justice Alito required 30 days to complete each respective Senate Judiciary Questionnaire.  David Ingram at Blog of Legal Times also discusses Judge Sotomayor's questionnaire.  Ingram reports that the questionnaire describes Judge Sotomayor's nomination process - including the fact that Chairman Patrick Leahy (D-Vt.) and Ranking Member Jeff Sessions (R-Ala.) sent the questionnaire to Sotomayor quickly, requiring only a day to finalize questions they wanted her to answer.

NRA Appeals Seventh Circuit Ruling:  Eugene Volokh writes at Volokh Conspiracy "Well, That Was Quick" as he reports on the NRA's petition to appeal the Seventh Circuit's holding in NRA v. Chicago.  Tuesday afternoon, in an opinion written by Judge Easterbrook, the Seventh Circuit declined to second-guess old Supreme Court precedents that limited the Second Amendment to a restriction on federal laws, reasoning that "the Supreme Court has rebuffed requests to apply the Second Amendment to the states."  The NRA released a press release detailing its petition for certiorari yesterday.  At SCOTUSblog, Lyle Denniston reports that the NRA is asking the Court to decide one question: "Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home." 

Reversal Rates

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Tony Mauro has this story on law.com regarding the controversy over SCOTUS nominee Sonia Sotomayor's "reversal rate" in cases that have gone to the Supreme Court: 4 out of 5 on the reasoning, but 3 out of 5 on the judgment. As we have noted previously on this blog (and as the story notes), the rate of reversal of cases taken up doesn't say much because of sampling bias. They only take 1% of the cases they are asked to take, and they are much more likely to take cases a majority thinks are wrong.

As also noted previously, unanimous and summary reversals are more of an indication of a problem. The summary reversal is the most severe slap. That is where the Supreme Court reverses the lower court decision on the certiorari petition alone, without merits briefs or oral argument. Such a reversal usually indicates that the Court believes the lower court decision is clearly wrong on existing law, without the need to plow any new ground.

The five Supreme Court cases in question include no summary reversals, one unanimous reversal, and one decision affirming the judgment while unanimously rejecting the reasoning.

News Scan

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Sotomayor's DA years: WaPo reporters Joe Stephens and Del Quentin Wilber have this story on Sonia Sotomayor's years as an NYADA. "'I had more problems during my first year in the office with the low-grade crimes -- the shoplifting, the prostitution, the minor assault cases,' she told a writer for the New York Times in 1983. 'In large measure, in those cases you were dealing with socioeconomic crimes, crimes that could be the product of the environment and of poverty. Once I started doing felonies, it became less hard. No matter how liberal I am, I'm still outraged by crimes of violence.'" Let's hope she still is.

Blog Scan

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Judge Sotomayor's Senate Interviews:  At Wall Street Journal Blog, Ashby Jones reports that during interviews with Senators Leahy and Sessions, Judge Sotomayor stated she would "ultimately and completely" follow the law once she is confirmed. David Ingram also wrote about Judge Sotomayor's new "catch phrase" at Blog of the Legal Times yesterday.  According to both reporters, the interviews went well for Sotomayor.  Although, Jones also reports that Senator Sessions did not feel he had adequately addressed his concerns that she might be a judicial activist. 
Comments On A Profile of the Chief Justice:  In mid-May we posted a link to Kashmir Hill's post on Jeffrey Toobin's New Yorker article on Chief Justice John Roberts.  On May 23, Joel Jacobsen posted his thoughts on his website Judging Crimes.  And today, Jonathan Adler writes on Volokh Conspiracy that the article is "infected with a subtle spin that results in a distorted picture of the Chief Justice and the Court."  Adler's thoughts echo Jacobsen's comment that Toobin's piece reveals more about Toobin than it does about the Chief Justice.  Jacobsen is critical of Toobin's take on Chief Justice Roberts, and writes that judges, as government actors, are meant to reinforce existing power relationships.  Adler's post goes further and points out that the Chief Justice has not always sided with "existing power relationships."  One example?  Heller v. District of Columbia.   

Death Penalty Prevents "Legislative Backlash":  At Sentencing Law and Policy, Doug Berman posts a guest post by W. David Ball, a Fellow at the Stanford Criminal Justice Center.  Ball's guest post wonders whether there was something behind Herbert Wechsler's belief that the death penalty "had utilitarian value for criminal law, if for no other reason then as a prophylactic against legislative backlash."  Wechsler was the Reporter of the first Model Penal Code, and according to W. David Ball, a utilitarian.  Wechsler apparently believed that after a particularly heinous crime, the availability of the death penalty created a kind of safety valve for popular outrage because it allowed the public to turn against the criminal, and not the legislature.  Ball wonders if California Supreme Court's decision to affirm the death sentence of Richard Allen Davis - the man who inspired "California's 'three strikes law" - disproves Wechsler's theory.   

Supreme Court to Overhaul Website: Yesterday, in the New York Times, Katharine Q. Seelye reported that the Supreme Court has requested $800,000 from Congress to rework its website.  The current website is fairly basic, and Seelye reports that the Court has asked Congress for funds so that it is more user friendly, and so that the Court may post opinions "within five minutes of their announcement in court."  One organization, the Sunlight Foundation, has proposed to re-design the website as part of a "redesigning the government" series.  According to Seelye, the organization believes the website "must strive to make the Court's proceedings transparent, incorporate modern design principles, and meet the higher expectations of today's web user."

Don't Confuse Us With the Facts

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"I understand that during her career, [Supreme Court nominee Sonia Sotomayor has] written hundreds and hundreds of opinions." [Senate Majority Leader Harry] Reid told reporters on Capitol Hill Tuesday. "I haven't read a single one of them, and if I'm fortunate before we end this, I won't have to read one of them." RTTNews quotes this gaffe here.

I have supervised a lot of attorneys over the years. I've read a lot of research memos and draft briefs telling me what an opinion says. No matter how good the researcher is, there is no substitute for reading the opinion yourself.

News Scan

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Stop the Presses! "A psychologist testifying for the defense in the kidnapping trial of the man who calls himself Clark Rockefeller says he is 'completely deluded' and not responsible for his actions," AP reports. Did anybody not see that coming?

Murderers were executed today in Ohio and Texas. Daniel Wilson was executed in Lucasville, Ohio this morning for the 1991 murder of Carol Lutz.   A story by Cleveland Plain Dealer writer Leila Atassi reports that after drinking with Wilson at a local bar, Lutz offered to drive him home.  Sometime later Wilson forced the woman into the trunk of her car, and after she bargained for her life he punctured the gas tank and set the car on fire.  The victim burned to death while flame temperatures reached 550 degrees.   Texas murderer Terry Lee Hankins was executed later today for the 2001 killing of his two stepchildren, Kevin 12 and Ashley 11.  An AP story reports that Hankins also killed his estranged wife, 34-year-old Tammy Hankins, his father, Earnie Lee Hankins and his half-sister, 20-year-old Pearl Stevenstar.  Stevenstar was the mother of Hankins' child and was pregnant again by him.

LWOP and Incapacitation, Again

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Jeffery Grinder and Calvin Adams were convicted of capital murder in Arkansas and sentenced to life in prison without possibility of parole. That's an ironclad guaranteed they will never be a danger to others again, at least not people on the outside, right?

Andrew DeMillo reports for AP that Grinder and Adams escaped last Friday. Let us hope they are recaptured before they kill again. Update: They were.
In the revamping of the Confrontation Clause, one case that fell through the cracks was that of Jeremy Sheets in Nebraska. He was convicted of the murder of Kenyatta Bush on the declaration against penal interest of a participant in the crime, who then committed suicide before trial. Sheets' conviction and death sentence were reversed on appeal, and he walked.

Reversals have consequences. Todd Cooper reports for the Omaha World-Herald:

The Murder of Polly Klaas

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The California Supreme Court finally decided today the direct appeal in the case of the abduction and murder of 12-year-old Polly Klaas, a crime committed over 15 years ago. The 110-page opinion in People v. Davis, S056425, is here. The judgment is affirmed with no dissents.

Davis also has a state habeas corpus petition pending, S157917. The reply is due tomorrow.

After that is decided, the case will move to federal habeas corpus. That procedure will take much longer than necessary because (1) California is in the Ninth Circuit; and (2) Cal. AG Jerry Brown still has not applied for certification of the state for the federal fast track under Chapter 154 of Title 28, U.S.C.

Update: Bob Egelko has this story in the SF Chron.

The Abortion Doctor Murder

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We have received some inquires regarding whether the federal government could impose the death penalty for the murder of abortion doctor George Tiller. Doesn't look like it. (See AP story here.) The federal death penalty law, 18 U.S.C. §3591 et seq., provides procedures for a death sentence in cases of espionage, treason, and "any other offense for which a sentence of death is provided...." So we first have to go to the statute defining and punishing the crime.

The statute on point is 18 U.S.C. §248. It is captioned "Freedom of access to clinic entrances," but it covers much more than that. Injuring a person because that person has provided "reproductive health services" is a violation under subd. (a)(1). The penalty is provided in subd. (b)(2): "if death results, it shall be for any term of years or for life."  So it appears that Congress considered the precise question and decided there would be no death penalty. Conceivably, it might be possible to charge another statute where the death penalty is available, but I don't see one offhand.

By the way, §248 was amended in the same statute that enacted §3591, Pub. L. 103-322 (1994).

Kansas has the death penalty, but none of its eligibility circumstances appear to apply.

Update: Scott Roeder has been charged with murder in Kansas state court, according to this NYT article by Joe Stumpe and Monica Davey. Kansas's death penalty eligibility circumstances are described on page 2 of this briefing paper, and none of them appear to apply.

Blog Scan

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Politics of a Judicial Nomination:  Yesterday, David Stras posted "The Politics of the Sotomayor Nomination" at SCOTUSblog to inform readers "of what they can expect from the remainder of the confirmation process..."  Stras' post provides an outlook on the nomination process that is slightly different from earlier SCOTUSblog posts.  For example, he writes, "I believe that the Ricci case could be a stumbling block for Sotomayor[,]" because race has been injected into the evaluation process, and because "racial discrimination is an issue that resonates with the American public and if the lower court decision is shown to be outside the mainstream...then it is an aspect of her jurisprudence that... will be explored during the confirmation hearings."  Joel Jacobsen also comments on the nomination at Judging Crimes.  He writes that Judge Sotomayor's experience as a trial judge is more important than her race, ethnicity or gender.

Judge Sotomayor on Crime and Race: 
At Sentencing Law and Policy, Doug Berman posts on Michael Doyle's McClatchy Newspaper article that reports Judge Sotomayor is not soft on crime.  According to McClatchy News, from a sample of 90 criminal law related cases heard by Judge Sotomayor since January 2002, she has "sided with the government 65 times and prisoners and defendants 25 times."  At National Journal Online, Stuart Taylor Jr. reports on Tom Goldstein's study of  97 race-related cases that Judge Sotomayor has decided while on the Court of Appeals. While Goldstein concluded it was "absurd to say that Sotomayor allows race to infect her decisionmaking[,]" Taylor thinks "[o]thers may look at the same cases and draw different conclusions."

Bob Barr on Troy Davis:  At Volokh Conspiracy, Jonathan Adler reports on Bob Barr's Op-ed in today's New York Times.  In the Op-ed, the former Republican Representative asks the Supreme Court to grant the habeas petition of Georgia death row inmate Troy Davis.  Our recent posts on Davis can be found here, here, and here.  


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"Most grave among the Sixth Circuit's misunderstandings. . . ." That is judicial-voice-speak* for, "You really botched this one, dummies." Today's unanimous opinion by Justice Ginsburg in Bobby v. Bies gives the Sixth a well-deserved spanking.

The Mystery of 1 in 4

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Where does the oft quoted statistic that 1 in 4 people will, at some point, suffer from a mental illness?  The Neuroskeptic does a fine job of explaining how a report by a big name institution can wrongly assert such a fact - citing to studies which do not support that claim - yet nevertheless become gospel in the ensuing years. 

But there's more than just getting the empirical studies wrong.  As detailed at the Daily Beast by Constantino Diaz-Duran (via Instapundit) it also matters what we're classifying as a mental illness as well. 

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