October 2009 Archives

News Scan

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Juvenile Convictions Thrown Out Because of Corrupt Judge:  Associated Press writer Michael Rubinkam reports that corruption charges against Judge Mark Ciavarella has led the Pennsylvania Supreme Court to dismiss thousands of juvenile convictions.  The Court doesn't believe they received a fair hearing. Order found here.   Judge Ciavarella, along with Luzerne County Judge Michael Conahan, is being charged with accepting millions of dollars in kickbacks for sending youths to private detention centers.  The state Supreme Court said, "Ciavarella's admission that he received these payments, and that he failed to disclose his financial interests arising from the development of the juvenile facilities, thoroughly undermines the integrity of all juvenile proceedings before Ciavarella."  Both Ciavarella and Conahan are awaiting trial after being indicting by a federal grand jury on 48-counts of racketeering.  Berks County Senior Judge Arthur Grim is in charge of reviewing cases handled by Ciavarella, and will recommend to the the state court any cases he feels should be retried.  Marsha Levick, legal director of the Philadelphia-based Juvenile Law Center, says that the Ciavarella case "[is] the most serious judicial corruption scandal in our history and the court took an extraordinary step in addressing it."   

Defendant Wants to Receive the Death Penalty:  Tulsa World writer Bill Braun reports on the competency hearing ordered for confessed murderer Joshua Muller because he has asked his attorneys not to present mitigating factors during the sentencing phase if his trial.  He does not want to be spared from the death penalty.  On Sept. 23, Muller pleaded guilty to two counts of first-degree murder for fatally shooting Leah Harris-Fuqua, 12, and Derrick Ross, 16.  Muller has also pleaded guilty to a count of shooting with an intent to kill for wounding Sheridan Rand, then 12.  The mitigating evidence Muller's attorneys were planning on introducing included his "long standing history" of child abuse and his "severe mental health issues."  But Muller says that he "just want[s] to get this done with." He told Tulsa County Judge Clancy Smith that he wants to "get to the finish line."  Because of his request, Judge Smith order a mental competency evaluation for Muller.  The evaluation is scheduled for Nov 23. 

Authorities Attempt to Snag Sex Offenders:  CNN writer Jim Spellman reports on a four-day sweep by authorities rounding up sex offenders in Colorado.  The sweep is being called Operation Shepard, and according to the US Marshals Service, it has lead to the arrests of a 106 sex offender fugitives.  The sex offenders who were captured are charged with crimes including, failure to register as a sex offender, sexual assault against children, incest and child prostitution.  Some captures came easy, like the capture of a man convicted in 1990 of a sex offense, on the run since 2006.  In his case, prison records of his ex-wife's visits led authorities to her home, and his where abouts.  But some efforts end up leading nowhere, and the fugitive eludes capture.  Deputy US Marshal Eric Helsing is not deterred by investigations that do not produce an arrest because he "believe[s] that the community is safer.  [And] that's all that matters." 

Florida Capital Jury Instructions

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The Florida Supreme Court has amended its standard jury instruction for the penalty phase of capital cases. The court's dual role as promulgator of rules and tribunal to hear claims of incorrect instructions produces this odd statement:

We hereby authorize for publication and use modified instruction 7.11 as set forth in the appendix to this opinion. In doing so, we express no opinion with respect to the correctness of the instruction....
Trial judges, use this instruction, but we might reverse you for "error" if you do.

Bill Kaczor of AP has this story.

More Time, Less Crime

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The latest issue of the Journal of Law and Economics is in my inbox this morning. It includes Emily G. Owens, More Time, Less Crime? Estimating the Incapacitative Effect of Sentence Enhancements, 52 J. Law & Econ. 551 (2009). Here is the abstract:

Sentence enhancements may reduce crime both by deterring potential criminals and by incapacitating previous offenders, removing these possible recidivists from society for longer periods. I estimate the incapacitative effect of longer sentences by exploiting a 2001 change in Maryland's sentencing guidelines that reduced the sentences of 23‐, 24‐, and 25‐year‐olds with juvenile delinquent records by a mean of 222 days. I find that, during this sentence disenhancement, offenders were, on average, arrested for 2.8 criminal acts and were involved in 1.4-1.6 serious crimes per person during the period when they would have otherwise been incarcerated. Although my findings are significantly lower than previous estimates of incapacitation, I find that, on the margin, the social benefit of the crimes averted by incapacitation is slightly higher than the marginal cost to the state of imposing a 1‐year sentence enhancement.

The only surprise here is "slightly." If keeping 10 recidivists locked up for an additional 222 days each prevents 28 crimes, 15 of which are "serious," that would seem to be well worth the cost.

On page 569, Owens acknowledges that the estimate of the cost of crime she is using may be a lowball. "More recent studies (Cohen et al. 2004; Rockoff and Linden 2006) have suggested that the social cost of crime may be significantly higher."

Even with the low-end estimate of the cost of crime, Owens finds recidivist enhancements to be cost-effective on the incapacitation effect alone. Add the deterrent effect, see, e.g. Kessler & Levitt, Using Sentence Enhancements to Distinguish between Deterrence and Incapacitation, 42 J. Law & Econ. 353 (1999), on top of that, and the case is clear.

Letting habitual criminals out to save money is penny wise and pound foolish.

Blog Scan

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Supreme Court Petitions to Watch:  SCTOUSBlog's Erin Miller has posted a list of "Petitions to Watch" for the Supreme Court conference tomorrow.  Kent noted in his earlier post that Wong v Belmontes (08-1263) and Bobby v. Van Hook (09-144) have been relisted.  Another crime-related case up for consideration is Manning v. United States (08-1595).  Manning asks the Court to address whether a judgment on Federal Tort Claims Act claims bars a judgment on Bivens claims when the claims were brought together in the same lawsuit. We blogged about Manning last October, when the Seventh Circuit upheld a lower court decision that Manning could not collect his jury award.  Manning was given the death penalty on a murder conviction in Illinois and a life sentence for a kidnapping in Missouri.  When both convictions were overturned he filed suit against the FBI, saying he was framed.

LWOP in California:
  Thanks to posts from How Appealing's Howard Bashman and Sentencing Law and Policy's Doug Berman we have a link to Lawrence Hurley's Daily Journal article U.S. Supreme Court Considers Life Sentences for Juveniles.  The article discusses how the Supreme Court's decisions in Graham and Sullivan could effect juveniles sentenced to life without parole in California.  The article also quotes CJLF's Kent Scheidegger.  CJLF is concerned that Graham and Sullivan could add fodder to defense-side arguments for softer punishments, just as they immediately tried to use Roper outside its capital punishment context.  

Guilt First, Sentencing Second - The Structure of a Verdict:  CrimProf Blog has posted a link to Talia Fisher's SSRN article, Rethinking the Bipolar Structure of the Criminal Verdicts.  In her article, Fisher argues against assumptions that the decision making processes during guilt and sentencing phases can be separated.  According to the paper's abstract, she claims she will demonstrate that our sentencing structure has created "a de facto correlation between certainty of guilt and severity of punishment."  She also seeks to show that when reasonable doubt as to guilt is not an issue, "correlating the size of the punishment with the certainty of guilt is preferable to uniform punishment."  She also believes that "when the certitude level as to the defendant's guilt does not reach the beyond reasonable doubt standard of proof, the imposition of partial punishment...can lead to better outcomes than the existing alternative of full acquittal and no punishment." 

ALI Compromise on Death Penalty

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The American Law Institute recently adopted a compromise position on the death penalty. The background is in a report available here. The Model Penal Code section on the death penalty was withdrawn, a move many supporters of capital punishment, including CJLF, agree was proper. The proposal for ALI to take a stand against the death penalty was decisively rejected.

Mary Fuchs writes in the Newark Star-Ledger:

It's not the hottest issue on the campaign trail, but how the candidates for governor stand on the appointment of state Supreme Court justices could affect New Jersey for years to come.

That's because the next governor could remake the seven-member court by appointing as many as four justices....

For the sake of the people of New Jersey, I hope the next governor is someone who recognizes what a travesty that court has been and is determined to change it.

When the the New Jersey Death Penalty Study Commission asked me to testify, I examined the decisions of that court in its capital cases. I was astonished. And I am not easily astonished. After California in the Bird years followed by 20 years of the Ninth Circus, I thought I had seen the ultimate in raw judicial contortion of the law to fit the judge's political goals. I had not.

News Scan

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Crime is Sweet:  Forbes.com writer Trevor Butterworth opines on a recent study by the British Journal of Psychiatry correlating candy and crime.  Now, according to their statistics, regularly eating candy not only gives you a life of cavities, but also crime.  These kinds of studies, Butterworth says, are the "cheap carbs of news", filler that attempts to prove why bad things happen to good people.  Correlation is not the same as causation.  Butterworth connects frequent consumption of junk food to family income.  Poorer people tend to consume more junk food on a habitual basis for multiple reasons: a lack of food knowledge and how to maintain a proper diet, the relative unavailabilty of fresh produce in socio-economically deprived areas, and the simple fact that junk food is cheap.  The relationship between poverty and crime is much stronger than the correlation of junk food and jail time.

Balanced Penalties:  The Washington Post, in an editorial, opines on the disparity in sentencing between crack cocaine and powder cocaine.  As it stands today, one must be caught with 100 times the amount of powder to trigger the same mandatory minimum sentence that someone caught with crack cocaine would receive.  The Justice Department is throwing its support behind Sen. Richard J. Durbin's bill to change that ratio to 1-1 for the amount of cocaine required for minimum sentencing.  A 2007 report from the U.S. Sentencing Commission shows that smoking crack delivers a faster, more intense high.  It compels crack users to seek additional doses.  The report notes that about one-fourth of  crack offenders are associated with violence, this exceeds the rate of violent cocaine offenders.  The Washington Post editorial suggests to eliminate mandatory minimums and judge offenses on a case by case basis allowing for tougher penalty ranges for crack.

Soft Serve Slayings Tossed in Texas:  Associated Press writer Jim Vertuno reports that on Wednesday, a Texas judge dimissed murder charges against two men awaiting retrial for the 1991 slayings of four teens, after prosecutors admitted they weren't ready to take the case to a jury.  Robert Springsteen was sent to death row in 2001 for the capital murder of one of the girls.  Michael Scott had been convicted in her death previously, and sentenced to life in prison.  Both convictions were overturned when the Texas Court of Criminal Appeals said Springsteen and Scott were unfairly denied the chance to cross-examine each other.  They had implicated each other in statements to investigators.  The men were released in June after new DNA tests could not match them to the crime scene and revealed the presence of an unknown male.  District Attorney Rosemary Lehmberg plans to continue her investigation into the murders, and notes that the men could be charged again if new evidence emerges.

California Attorney General's Office Blast Cooper's Innocence Claims: Yesterday, Will Bigham of the Contra Costa Times, had an article discussing the California Attorney General's response to Kevin Cooper's U.S. Supreme Court petition.  Apparently Cooper, the man convicted of murdering four people in 1983, has asked the Supreme Court to intervene in his case and address his innocence claims.  The Attorney General's opposition filing presents evidence of Cooper's guilt and assails claims that he's had in insufficient opportunity to review evidence he claims will prove his innocence. The state's filing points out that when Cooper's execution was halted in 2004, so that Cooper could conduct forensic testing on a T-shirt and hair evidence, the results just revealed further evidence of Cooper's guilt. Cooper will reply to the state's filing next week, and the Supreme Court could decide whether to hear the case as early as November. 

Smarter Donating

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At National Review Online, Todd Zywicki has some suggestions for alumni who feel they need to give to their alma maters even though the school may be run in a way that indoctrinates the students in the Politically Correct view and shuts out other viewpoints. He suggests various ways to target or withhold donations to achieve more diversity of viewpoint.

At the end, he suggests that donors need not necessarily give to the school they attended. If your old school is hopelessly in the clutches of the PC crowd, give to another school that is not.

Going one step further, you can always donate to an advocacy group that is focused specifically on promoting a non-PC position.

Relisted Capital Cases

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As predicted here, the Belmontes case from California and the Van Hook case from Ohio have been relisted for their fourth consideration by the Supreme Court at the Friday, October 30 conference.

Another interesting nugget from the Belmontes docket is that on Monday the Court also requested the record from the Ninth Circuit. Hard to believe they would need that for a one-line order granting or denying certiorari. This smells more and more like a summary reversal in the offing.

Blog Scan

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"Adult Time for Adult Crimes":  That's the title of David L. Hudson Jr.'s ABA Journal article on Graham v. Florida and Sullivan v. FloridaHudson's article discusses whether the Supreme Court will decide that its reasoning in Roper v. Simmons - that juvenile defendants are fundamentally different from adult defendants - extends from the death penalty to life without parole.  The article quotes representatives from several of the groups that authored amicus briefs for the cases, including CJLF's Kent Scheidegger.  CJLF's amicus brief in Graham and Sullivan can be found here - our thoughts on Roper begin on page 12. 

Resentencing a "Good" Prisoner:
  At Sentencing Law and Policy, Doug Berman posts on a Wichita, Kansas hearing that could lead to a longer sentence for convicted nurse Linda Kaufman.  Kaufman and her husband were convicted in 2006 of defrauding and abusing the mentally ill residents of the home where she worked and provided care.  Kaufman was sentenced to seven years, but now U.S. District Judge Monti Belot is reconsidering factors that could lengthen the seven-year prison sentence he originally imposed on Kaufman.  Yesterday, in a two hour hearing one of the home's victim's stated Kaufman should be resentenced and held accountable for what happened there.  Kaufman, on the other hand, argued that she did not deserve a longer sentence because she has done a lot of volunteer activities and coexisted peacefully with other inmates.  In his post on the case, Berman wonders "whether readers think Linda Kaufman's positive behavior while incarcerated can (or should or must) be a significant consideration in her resentencing in light of Booker and the terms of 3553(a)[?]"

Crime Spending and Social Costs:  Mark Kleiman continues his guest-blogging on Volokh Conspiracy with a post on "Benefits and costs: crime, crime avoidance, crime control."  In his post, Kleiman argues that society's crime-avoidance behavior - placing deadbolts on doors, moving to low-crime neighborhoods - "impose costs on others beyond shifting crime risk."  He believes this behavior sustains concentrated poverty, and that we can better control crime if we spend money on providing "services, where it works," instead of using threats or imposing punishment.  Kleiman's post is interesting in that he initially points out that we are self-serving creatures (we choose to place alarms on our houses even when it may mean our neighbor gets robbed), but then goes on to infer that we cannot effectively deter crime by imposing harsh punishments or threatening offenders.  Aren't offenders self-serving creatures too?

The Thin Veil of Science

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The lead article in this month's issue of the American Psychologist is an article titled Are Adolescents Less Mature than Adults?  The article attempts to reconcile the contradictory positions of the American Psychological Association highlighted by Justice Scalia in his dissent in Roper v. Simmons:

[T]he American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U.S. 417 (1990), the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement.

Simmons at 617 (Scalia, J. dissenting)
Since those lines were laid to text, the American Psychological Association has tried to defend its position that when it comes to obtaining an abortion, the scientific evidence shows that adolescents posses the cognitive capacity to make that choice free from parental consent yet when it comes to the criminal punishment, juveniles as a categorical group, are insufficiently mature to be subject to the full range of criminal sanctions available under the law.  The article in this month's American Psychologist claims to demonstrate how these positions are compatible despite the robust intuition that they simply can't be. 

News Scan

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Death Row Requested By Inmate:  Dailymail.co.uk reports that convicted California murderer Billy Joe Johnson has requested the death sentence in order to take advantage of the nicer facilities.  Johnson is already serving a 45 year sentence for a killing in 2004 and is in lockdown for most of the day.  He was recently convicted of a second murder, and hopes that the jury will sentence him to death.  Yesterday, he told the jury he has killed two other people and never been caught.  On death row, Johnson claims he could "stretch his bones a little bit" and "get out of his confined cell more often."  His lawyer states that 46-year-old Johnson believes that by the time his death sentence appeals run out, he'll be 65 or 70 years old and won't want to live longer anyway.

Lawyers Attempt a Release of Admited Al-Qaida Members:  Associated Press writer David Mercer reports that defense attorneys for Ali al-Marri, an al-Qaida sleeper agent, plan to argue at his sentencing this week that five years spent locked up without a charge was enough punishment.  They claim he should be immediately released.  Al-Marri has pled guilty to one count of conspiring to provide material support or resources to a foreign terrorist organization.  Prosecutors have asked that al-Marri serve 15 years.  The United States still holds more than 200 people without charge at Guantanamo Bay.  If al-Marri's attorneys should get the five years, those detainees also could argue that their time in custody should be considered at sentencing.

25-Year Prison Sentence Tossed for Texas Woman:  Associated Press writer Michael Graczyk reports that the Texas Criminal Court of Appeals threw out a 25-year prison sentence given to a woman convicted of killing her husband by stabbing him 193 times.  Susan Wright's appellate attorney argued that her trial lawyers were deficient because they presented a meager case during the punishment phase of her trial, neglecting to properly represent that she had killed her husband in self-defense.  Wright's attorney is now in negotiations with the district attorney's office hoping to reach a new sentencing without the necessity of a new punishment hearing.

Sex-Trafficking Raids Rescue 52 Children:  LA Times writer Joe Markman reports that federal officials rescued 52 children and arrested nearly 700 people over the last three days in a nationwide crackdown on child prostitution.  The sweep, dubbed Operation Cross Country, is part of the Innocence Lost National Initiative, started in 2003 to address child sex trafficking in the United States.  The initiative has rescued nearly 900 children, led to the conviction of 510 traffickers, and seized $3.1 million in assets, according to the FBI.  The President of the National Center for Missing and Exploited Children, Ernie Allen, states that while their efforts are having a large impact on sex trafficking, the problem is growing partly because of the recession.

Hair Today, Gov Tomorrow?

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Here is a funny campaign video by Illinois gubernatorial candidate Andy McKenna using ex-Gov. Blago's hairstyle as a symbol of corruption in that state's politics. (Hat tip: The Fix)

Blog Scan

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Right to Attorney in Civil Cases:  Ashby Jones writes on Wall Street Journal's Law Blog that a new California law will give poor residents the right to an attorney in civil matters such as child custody and foreclosure.  Jones calls the law the state's "Civil Gideon" law, after the landmark case Gideon v. Wainwright, which held states must provide attorneys for indigent criminal defendants.  Under the new law, counsel is now available for those living at 200% above the federal poverty guidelines or less.  For a family of four, that means an annual income of $44,100.  The law will be funded by a pre-approved $10 increase in some court fees.  More information can be found in Tamara Audi's Wall Street Journal article.

Justices Debate Constitutional Rights in Tuscon:  Howard Bashman compiles press coverage of Justice Scalia's and Justice Breyer's constitutional interpretation debate at the University of Arizona to debate "Principles of Constitutional and Statutory Interpretation."  Arizona Star writer Kim Smith reports that Justice Scalia held firm to his belief that the U.S. Constitution and Bill of Rights needs to be interpreted based solely on the words contained within the text, while Justice Breyer said justices need to look beyond the words at such things as tradition, precedent, purpose and consequences.  Justice Breyer argued his point by referencing recent developments in the confrontation clause cases, wondering whether the Constitution meant to preclude a police officer from testifying about statements made by a murdered domestic abuse victim because the defendant has a constitutional right to confront his accuser.  Arizona Public Media provides an online link to the debate.

Behold the Power of Legal Blogs:
  David Kopel has a post on Volokh Conspiracy titled "Legal Scholarship in the Internet Age," where he discusses Denver University's law school symposium on the topic.  He notes law blogs have expanded legal scholarship "beyond the world of law professors and legal professionals."  More information on the topic can be found in his article, Connecting Laypeople with the Law Through Blogs, and DUProcess, the law school's online law review.    

News Scan

DP Debate at Harvard:  On October 14th the Harvard chapter of the Federalist Society hosted a debate on the future of the death penalty between CJLF Legal Director Kent Scheidegger and Harvard Law Professor Carol Steiker.  The audio of this exchange is available here.

DC Sniper Set for Injection:  The Associated Press reports that convicted DC sniper John Allen Muhammad will die by lethal injection next month.  Muhammad's lawyers have asked the Virginia governor for clemency and plan to file an appeal with the U.S. Supreme Court next month.

Blog Scan

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Innocence Project Report on Willingham: At Homicide Survivors, Dudley Sharp refutes multiple misstatements in the Innocence Project's report on the Willingham case.

Wood v. Allen Argument Preview: At SCOTUSblog, Tiffany Cartwright, a 3L at Stanford Law School, previews Wood v. Allen.  The case addresses how a federal court should review the state court's finding of facts under the Antiterrorism and Effective Death Penalty Act (AEDPA).  Wood was convicted for murdering his ex-girlfriend and sentenced to death.  On direct appeal, the state courts rejected his petition for postconviction relief, in which he alleged that his trial counsel's failure to investigate and present evidence of his mental impairments during sentencing constituted ineffective assistance.  He filed a habeas petition and the district court granted relief because it believed the "finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record."  The Eleventh Circuit reversed. Now that the Supreme Court has agreed to hear the case, Cartwright notes that Wood's first argument is different from the question presented in his cert. petition, i.e., that relief may be granted because the state court decision was an unreasonable application of the Court's decisions in Strickland v. Washington and Wiggins v. Smith.  Alabama's brief urges the Court to disregard this argument because because it is not the question presented, and it is also without merit.  CJLF also filed a brief in Wood.  It can be found here, along with Kent's other posts on the case (here, here and here). The Supreme Court is scheduled to hear oral arguments next Wednesday, November 4th.  

More Death Penalty Delay in Ohio:
Doug Berman reports on Sentencing Law and Policy that Ohio is having a hard time finding doctors to help revise its lethal injection protocol.  Berman links to an Associated Press article by Andrew Welsh-Huggins that reports ethical and professional rules are deterring doctors and nurses from speaking publicly or privately about alternatives to the state's lethal injection process.  Attorney General Richard Cordray has said that it has been difficult to identify qualified medical personnel willing and able to provide advice to the state regarding lethal injection.  This is nothing new, North Carolina has had to address similar issues in the past.  There is one fairly recent factual development (although relatively old-hat request) mentioned in the article.  According to Welsh-Huggins, last Friday the European Union asked Ohio's governor not to execute Broom and to temporarily halt all executions in Ohio.  

Less Punishment = Less Crime?: Over the weekend Volokh Conspiracy opened up its blog to UCLA Public Policy Professor Mark Kleiman, so that he could present his thoughts on How to Have Less Crime and Less Punishment.  In his post, Kleiman argues that "brute force" has not helped America control crime, and believes that now is the time for Americans to start thinking about new ways to control our crime rate.  In Kleiman's view, "[p]unishment should be swift and certain rather than severe; those subject to it should know precisely what actions will lead to punishment; efforts should be concentrated, rather than dispersed, to enjoy the benefit of the positive-feedback process in which reduced offending leads to increased deterrence." The argument is typical of the claim that better enforcement and sufficient punishment are somehow opposed, and we must choose between them. It is a false dilemma. We would need to cut one to boost the other only if everything else government does is higher priority than public safety, and there is nowhere else in the entire budget to cut. We all know that is not true.

News Scan

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Fewer Criminals in Prison=More Crime: The British may be learning something today that the United States learned thirty years ago.  A story in the Telegraph reports that official figures on crime showed that burglaries, robberies and theft offenses have risen in England.  An unpublished report from Britain's Policy Exchange Crime and Justice Unit disclosed that there are 410,000 more hardened offenders on the streets today than in 2001.  The report found that, of that number, 350,000 are habitual criminals, each of whom commit an average of 260 crimes annually.  Commenting on these findings, a research fellow at the think tank said, "these figures are a terrible indictment of the failure to crack down on the crime that blights so many of our communities... [a]ccording to these figures only one in every 20 criminals is in prison."  A spokesman for the British Government disputes these findings noting that there are many ways to estimate levels of criminality.  He said that official studies show no increase in the number of prolific offenders.   

Arizona Prisons May Go Private: New York Times writer Jennifer Steinhauer reports that  Arizona will soon ask for bids from private companies to run 9 of their 10 prisons housing  40,000 inmates.  The state hopes to save $100 million from its roughly $2 billion budget shortfall by contracting out management of its prisons.  Among the facilities state officials hope can be run less expensively by private companies is the state's death row.  The story reports that while executions would still be carried out by the state, the state would relinquish the day-to-day management to the private operator.  The Chairman of the state's House Appropriation Committee noted that "We have private prisons in Arizona already, and we are very happy with the performance and the savings we get from them." 

Statement on Willingham

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One person the New Yorker story has definitely not convinced of Cameron Todd Willingham's innocence is Stacy Kuykendall. Her statement, printed in the Fort Worth Star-Telegram, says, "Governor Rick Perry called Cameron Todd Willingham a 'monster' and indeed he was." She should know. She was married to him and is the mother of the three baby girls who died in the fire.

I did witness Cameron Todd Willingham's execution. Todd set our house on fire then stood outside and watched it burn. He knew our three daughters were inside this home taking [their] last breath. He watched them die. I felt like the only thing that I could do is watch their murderer die. I wasn't there for closure. My closure was when he told me what he had done. I stood on the behalf of my three daughters. Todd's final words never mentioned his daughters but yet I keep hearing what a loving father he was. Todd spent his last words expressing his love to his prison pen pal Gabby and then he addressed me. He told me repeatedly in obscenity-laced language that he hoped I would "rot in hell" and attempted to maneuver his hand, strapped at the wrist, into an obscene gesture.

So we have confirmation that the tirade in Willingham's very last words, the portion David Grann chose to omit from his story, was indeed directed at her.  Further, unless Ms. Kuykendall is lying, Willingham himself admitted his guilt.

One thing is certain. Those who contend Willingham was certainly innocent are full of baloney.  This is looking more and more like a rerun of the Coleman case. A major news magazine convinced large numbers of people the executed man was innocent. His supporters asserted his innocence as a proven fact. When all the facts were in, he was clearly guilty.

Also in the FWS-T, Dave Montgomery has this long story on the case.

Update: The Dallas Morning News has this story by Steve McGonigle, Brooks Egerton, and Gary Jacobson.  They come close to calling Barry Scheck a liar.

Blog Scan

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Issues Added to Kiyemba v. Obama At SCOTUSblog, Lyle Denniston reports that Chief Justice Roberts has allowed the counsel for Kiyemba detainees' counsel to add a new case to the Supreme Court docket.  In what Denniston calls Kiyemba II, the Supreme Court will address a D.C. Circuit Court opinion which held that district courts may not "ba[r] the transfer of a Guantanamo detainee on the ground that he is likely to be tortured or subject to further prosecution or detention in the recipient country."  This issue was not included in the detainees' first petition.  Apparently, after the Court granted cert in Kiyemba I, counsel for the detainees filed an application to extend their petition for a writ of certiorari.  Chief Justice Roberts granted the petition today, and extended the time to file until November 10, 2009. 

Mandatory Minimums in Hate Crime Legislation:  Sentencing Law and Policy blogger, Doug Berman, links to the New York Times coverage of the new hate crime bill.  In the article, David Stout, reports that the Senate approved measure will "broaden[] the definition of federal hate crimes to include those committed because of a victim's gender or gender identity, or sexual orientation."  According to Berman, the bill also "includes a provision that requires the US Sentencing Commission to produce a new study on the impact of mandatory minimum sentences."  Berman's post also links to a statement from New York Senator Patrick Leahy.  In his statement, Leahy provides some background on the bill, and gives his reaction to its provision that attacks against service members will be subject to a mandatory minimum sentence. Leahy also states, "I am also glad that we were able to pass this bill without adding a new Federal death penalty, which would have needlessly inserted a divisive issue into this legislation." Exactly how Senator Leahy defines a "divisive" issue is unclear. Hate crime laws do have their opponents, as noted in the next item.

Constitutional Questions Surrounding Hate Crime Legislation:  At Wall Street Journal's Law Blog, Ashby Jones wonders, "Does the Hate Crime Bill Have 14th Amendment Problems?"  According to Jones, Nat Hentoff, a political columnist, has recently questioned whether the bill runs afoul of the Fourteenth Amendment. Hentoff's article, in Real Clear Politics, describes his concerns.  Hentoff believes there is a violation because it "set[s] up a special collective class of victims whose assailants, when convicted, will be given extra punishment for crimes perceived to be based on gender identity, sexual orientation or disability, among other biases. Those who attack the elderly, police or those of the poor who are not among the 'protected classes' would not get lengthier 'hate' sentences than the law provides for the act itself."  (Technically, for a federal statute, the constitutional doctrine in question is  the "equal protection component" of the Fifth Amendment Due Process Clause.) Others, like College of Charleston mathematics professor Herb Silverman have articulated similar concerns. He wrote: "Suppose three murders occur: one for money, another out of jealousy, and a third because the victim is a black, gay Wiccan. If the first two murderers are sentenced to 20 years in prison and the third is sentenced to 30 years, would the families of the victims in the first two cases feel they had received equal justice under the law?"       


Simpson on Graham and Sullivan

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Former Senator Alan Simpson has this op-ed in the WaPo on the Graham and Sullivan cases now before SCOTUS. He discusses his own delinquent youth and why we need to give juvenile offenders a shot at redemption. Unfortunately, he completely fails to grasp the difference between typical delinquency and intentional crimes of great violence.

Simpson says, "When I was a teen, we rode aimlessly around town, shot things up, started fires and generally raised hell. It was only dumb luck that we never really hurt anyone." No, it wasn't only dumb luck. It was partly luck but mostly because they weren't trying to hurt anyone. There is a huge difference between reckless conduct that might hurt someone and Joe Sullivan's forcible rape of a helpless elderly woman,* the culmination of 17 crimes over 2 years.

Sure, what Simpson says is true of most delinquent juveniles, but not all. Life without parole needs to be available for the rare exceptions.

News Scan

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The O'Malley Stall in Maryland: Barry Rascovar, an opinion writer from the Maryland Gazette discusses the controversy surrounding Governor Martin O'Malley's effort to block enforcement of the death penalty for his state's worst murders. Rascovar suggests that because he has been unable to get the votes to abolish the death penalty, Governor O'Malley has taken other steps to prevent executions, including dragging out the process for approving lethal injection procedures.  Rascovar speculates that Governor O'Malley can continue the delay tactics until after his re-election next year he can officially announce a death penalty moratorium as he presses for abolition for another four years.

New Hampshire Creates DP Panel: Margot Sanger-Katz from the Concord Monitor reports that the New Hampshire state senate has appointed a panel to study the death penalty.  This action follows last year's vote in the state's lower house to abolish capital punishment.  The Senate tabled the bill and passed legislation to establish a committee to determine whether the death penalty serves a "legitimate public interest," whether it is fairly applied, whether it encompasses the right types of murders and whether it is a cost-effective use of resources, among other questions. Sound familiar?  The committee has twenty-two members and is chaired by a former Chief Justice of the state supreme court.  They will be meeting monthly and will report their findings by the end of 2010.

DNA May Link Death Row Inmate to 25-Year old Crime: Greg Morrison from CNN.com reports on San Quentin prisoner Richard Ramirez, who was known as the Night Stalker, and the DNA now linking him to the unsolved murder of a 9 year-old girl.  Police are seeking Ramirez's DNA in connection with the 25 year old murder case, but have not yet charged him for the brutal killing of 9 year-old Mei Lung.  Ramirez is already facing the death penalty for the series of the murders of 13 people and attempted murder of five others between 1984-1985.  Ramirez was also convicted of 14 burglaries and 11 sexual assaults.  For more background information on Ramirez, as well as a summary of recent coverage, check out Ashby Jones' post on Wall Street Journal's Law Blog. 

Nevada Man Avoids Death Penalty After Two Sentences:
Sandra Cherb from the Mercury News reports on the case of a man charged with the murder of a cabdriver in 1990.  Frederick Paine has been tried and sentenced to death twice for murdering Kenneth Marcom and robbing him of 45 dollars.  Both convictions have been overturned.  The first time, a panel judge fell asleep during the hearing making the vote invalid.  The second time, the panel imposed the death penalty, but the Nevada Supreme Court determined the aggravators used to sentence Paine were invalid, once again voiding his death sentence.  Paine will be re-sentenced to what will likely be life in prison. 

Threats in Self-Defense

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In a situation where the law permits you to shoot someone in self-defense, can you say "Stop, or I'll shoot" instead? A "yes" answer would seem to be obvious, but in Kansas you had better go ahead and shoot him. The Supreme Court of Kansas gave an overly literal and cramped interpretation of its self-defense statute in State v. Hendrix, No. 97,323, today, finding that only use of force, not threat to use force, comes within the statute. Thanks to How Appealing for the pointer.

Prompt legislative action is in order.

Blog Scan

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Prosecutor Immunity in Pottawattamie County:  In today's Thursday Round-up, SCOTUSblog's Anna Christensen has posted a link to the ABA Journal's coverage of Pottawattamie County v. McGhee (08-1065).  In this month's ABA Journal, John Gibeaut describes the case, which could determine the extent to which prosecutors are liable under 42 USC §1983.  The case involves the murder of former Iowa police Captain John Schweer in 1977.  He was found, killed by a 12-gauge shotgun wound to the chest, near a car dealership where he worked as a night security guard.  The accused, Curtis W. McGhee Jr. and Terry J. Harrington, claim that during the investigation local prosecutors conspired with police officers to frame them, and then relied on the same evidence to convict them of first-degree murder.  Local prosecutors, however, maintain that using the challenged evidence at trial immunizes them from a lawsuit, even though they helped police develop the evidence.  The Eighth Circuit held that prosecutors could be civilly liable for falsifying evidence used at trial.  The Supreme Court will hear arguments on November 4th, and may give clues as to whether it agrees. 

No Surprise, "Judges Reject California Plan to Cut Prison Crowding":
  CrimProf Blog and How Appealing both provide links to an L.A. Times article describing the three Judge panel's rejection of the Schwarzenegger's approved plan to cut prison crowding.  Michael Rothfeld reports for the Times that the panel is now threatening to impose their own plan within three weeks.  The panel had ordered the administration to devise a plan would cut the number of state prisoners by 40,000 within two years.  The plan submitted by the Governor would have cut the prison population by about 18,000 after two years, less than half of what had been ordered.  The state has three weeks to comply with the court's order.  Spokeswoman for the Governor, Rachel Arrezola, said the state would respond by its November 12 deadline. She said the administration is continuing to appeal to the U.S. Supreme Court the judges' "arbitrary" reduction order.  Howard Basham's How Appealing post links to coverage from other sources. 

DOJ Goes After Gangs - More on La Familia, and Fraudulent Billing:  To follow-up on today's News Scan, read Mike Scarcella's Blog of the Legal Times post on the Justice Department's strike against one of the "newest" Mexican drug cartels. Scarcella writes that today, Attorney General Eric Holder, Jr. announced that federal authorities have seized more than $32 million during the 44-month investigation of the cartel, which has been operating since 2006.  According to Scarcella, the DOJ arrested more than 300 members of the cartel, and yesterday charges were unsealed in state and federal courts in California, Massachusetts, New York, Texas, Tennessee, Missouri, Georgia and Minnesota.  Mike Scarcella also covered yesterday's charges against members of Los Angeles' Lil Brook street gang for a fraudulent health care billing scheme.    

News Scan

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More Than 300 Arrested in Raids on Mexican Cartel:  Associated Press writer Devlin Barrett reports on one of the largest single strikes on a Mexican drug cartel operating in the United States.  The drug raids were aimed at the La Familia cartel, the newest and most violent of the five Mexican drug cartels.  Over the past two days, more than 3,000 federal agents and police officers carried out arrests in more than a dozen states, as part of a long running anti-drug operation that has netted nearly 1,200 arrests over almost four years.  The cartel has been pumping methamphetamine into the United States and has been linked to the murders of Mexican law enforcement officers.

DNA Fingerprinting, Criminals Think Twice:   San Francisco based MissionLocal.org writer Patrick Kollman reports on the use of the DNA fingerprint as a tool for law enforcement.  In August 2007, only eight states required DNA samples from some arrestees.  The number rose to twenty-one states this year.  Earlier this month, the ACLU filed a lawsuit against California stating that the statute on DNA collection violates the search and seizure laws of the Fourth Amendment, and the due process clause under the Fourteenth Amendment.  The lawsuit, Haskell v. Brown, has also brought into question the issue of human error when using the DNA database.  Michael Rushford, President of the Criminal Justice Legal Foundation says the positives of DNA usage in law enforcement far outweigh the negatives.  "I don't know why anyone would want to inhibit such a valuable tool to exonerate the innocent and convict the guilty." DNA's use in the penal system has led to the exoneration of over 200 wrongfully convicted American citizens, as well as convicting thousands of criminals who otherwise may never have been caught.  Recent court rulings provide no indication as to the success or failure of the ACLU's suit against the state.

Automated Crime Victim Notification

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The California Department of Corrections and Rehabilitation has this press release:

In its effort to keep crime victims informed, the Office of Victim and Survivor Rights with the California Department of Corrections and Rehabilitation (CDCR) is asking crime victims to register for a new automated system that will soon provide real-time information about the custody status of their offenders....

The new statewide automated Victim Information and Notification Everyday (VINE) system will provide a 24-hour service and will give registered victims an instant notice by phone or email about their offender's whereabouts....

The automated system will also inform victims and next-of-kin of when their offender is scheduled for a parole board hearing if they are serving a life term....

California Penal Code and the addition of Marsy's Law requires CDCR to notify witnesses, victims and next of kin if a violent offender is  released, escapes, dies, or is up for parole.


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The Reason Foundation calls California's new law on ignition interlocks for drunk drivers "idiotic." (See prior post.) The New York Times is in favor of it. Now I have to agree with the NYT. Ouch. (Hat tip: SL&P)

Stephen Barnett, R.I.P.

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Bob Egelko has this story in the SF Chron on UC Berkeley law prof. Stephen Barnett, who died October 13:

A political moderate, he became a vehement critic of liberal Chief Justice Rose Bird, who was voted out of office in 1986 along with Justices Cruz Reynoso and Joseph Grodin after a campaign that focused on their votes to overturn death sentences. Professor Barnett said he objected to Bird not because of her ideology, but because, in his view, she let her personal and political opinions influence her judicial decisions.

It was a courageous stance for an academic at a time when the forces of Political Correctness were lionizing Bird and demonizing anyone who dared to criticize her.

Egelko is being cautious, and perhaps overly so, with the hedge words "in his view." It is close to impossible for any objective person to read Bird's opinions and come to any other conclusion. Yet many people did assert the opposite conclusion, with all the vigor of those who praised the emperor's clothes in the fable. Barnett called a spade a spade.

Drug Policy and Addiction

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Over at SL&P blog there's an interesting discussion in the comments section about the wisdom of decriminalizing marijuana.  For those who are interested in the debate, a notable and enlightening read is Gene M. Heyman, Addiction: A Disorder of Choice.    

When does 71 become 25,000?

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What's the prevalence of mental illness among the general population?  Do a growing number of children actually suffer from autism?  Are 1 in 4 people in Britain mentally ill?  These are all legitimate questions - and all are skewed by a number of factors.  The Neuroskeptic has a revealing post on how a survey of 71 so easily becomes the headline that "25,000 women are involved in forced sex trafficking each year."   

Blog Scan

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Officer Questioning During Traffic Stop:  At Volokh Conspiracy, Orin Kerr posts on "an interesting (and to my mind troubling) recent example of" Fourth Amendment limits on police conducting traffic stops.  Kerr's post covers the First Circuit's recent decision, United States v. Chaney, where the court upheld an officer's extended questioning after a traffic stop.  Apparently, the officer pulled the car over because a headlight was out.  He then proceeded to ask both the passenger and the driver for their IDs.  When the passenger said he didn't have his, and the officer was unable to get a positive ID on him, the officer asked the driver to get out of the car so he could ask the driver more questions about the passenger.  The officer became suspicious, shined a light on the passenger and saw a bulge in his jacket.  This turned out be a gun, and Chaney was arrested for being a felon in possession of a handgun.  Kerr is uncomfortable with the First Circuit's conclusion that this was a "de minimus" stop that "did not unreasonably extend the duration of the traffic stop," because it "gives the police a few minutes to question anyone in the car on whatever topic the officers like, even absent any reasonable suspicion or identifiable threat to officer safety..."  But, in this case, it only took the officer two minutes to develop reasonable suspicion, and the passenger turned out to be a felon in possession of a handgun.  Getting him off the street isn't all that "troubling."

U.S. Sentencing Commission District Hearings in Denver:  Doug Berman has been posting on the U.S. Sentencing Commission's Denver hearings on his Sentencing Law and Policy Blog.  This morning, he posted a link a Denver Post article describing yesterday's hearings.  The article, by Felisa Cardona, describes the testimony given by U.S. District Senior District Judge John L. Kane and Colorado U.S. Attorney David Gaouette.  According to Cardona, Judge Kane would like more clarity on why the federal sentencing guidelines are set to certain terms for various offenses.  He does not like lawyers and probation officers telling him he must set a certain sentence "because the guidelines say so."  Gaouette, on the other hand, is concerned that judges are inconsistently following the commission's sentencing guidelines, and favoring their own discretion when sentencing.  It will be interesting to see how the Commission resolves that debate...

Is the Suppression Hearing the Exclusionary Rule's Unsung Hero?
  That's what Scott E. Sunby concludes in his SSRN paper, Mapp v. Ohio's Unsung Hero: Suppression Hearings as Morality Play.  Sunby's paper takes a look at recent speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions.  Sunby believes that the future of the exclusionary rule will depend on whether the "benefit" of deterring police misbehavior outweighs the "cost" of lost evidence and convictions.  Sunby thinks this misses one of the key benefits of the exclusionary rule - suppression hearings. He writes that these hearings inform law enforcement of proper conduct, and create transparency in the criminal justice process. (Thanks to CrimProf Blog for posting the link)  

Spinning DP Poll Results

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How do you "spin" a poll result that shows 2/3 of the American people oppose your position and have for a long time?

As noted here, the Gallup Poll released a survey on the death penalty last week. Gallup's title for their report is, "In U.S., Two-Thirds Continue to Support Death Penalty: Little change in recent years despite international opposition."

How does the "nonpartisan" Death Penalty Information Center report the same survey? "Gallup Poll: Support for Death Penalty Remains Near 25-Year Low."

There was a bump in support for the death penalty during the horrifically high crime years of the late-80s to early-90s. Since the crime drop of the 90s, "yes" answers on Gallup's generic question have come down to a lower but still very high 2/3 and remained remarkably stable. DPIC maintains its claim that support is "down" by cherry-picking the bump as its point of reference. See previous post here.

A better-phrased question asks whether the death penalty is imposed too often, about right, or not often enough. Unlike all the other phrasings, this one does not imply that the respondent is being asked to specify a single punishment for all murderers. (If that were really the question, I would say LWOP myself.) Support for the death penalty at its present scope or greater has been steady at 3/4 of the population for the entire nine years Gallup has asked the question.

Poker, Skill, Chance, and Crime

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Is it a crime to organize a poker game? In Pennsylvania, and a surprising number of other states, the answer depends on whether the game is predominantly one of skill or chance. Howard Bashman of How Appealing argued a case on this question today. Tom Goldstein filed an amicus brief.

This is a thoroughly bad way to write a criminal statute, because the balance of skill and chance can vary with subtle changes in the game. Indeed, in poker tournaments that balance varies even within a single game. Early in the tournament, the mandatory bets ("blinds") are small compared to the chip stacks. Also, with two blinds and ten players per table, a given player must post a blind only twice in ten hands. The players have many options at this stage, and the skill factor is relatively high.

Late in the tournament, the blinds are much higher. As players get knocked out of the final table, the remaining players must post blinds more often. Options are fewer, with fewer opportunities for elegant strategies, and taking big chances becomes more common. This stage is "nasty, brutish, and short." (Dan Harrington quoting Thomas Hobbes.)

I'll root for Howard, but the real answer is to amend the statute. The status of an act as a crime or perfectly legal ought not to depend on such a fuzzy question.

California, BTW, does not follow this rule as a general matter, although it does for mechanical games. We have a statute prohibiting a number of games by name, not including poker but including hokey-pokey. That illustrates why enactments must be interpreted in accordance with their original understanding, not what their words mean today. If Penal Code § 330 were a "living document," we would have to bust all the preschool teachers.

Murder on Video

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The Sacramento, California Sheriff has this press release with video of a minimart robbery-murder. The perpetrator shot and killed Ravinder Singh Banga for no good reason, as you can see for yourself.

Meanwhile, in Georgia, the attorney for Mark McClain, who was executed yesterday, is quoted by Christian Boone in the AJ-C saying the death penalty is not imposed for this kind of crime any more. It should be.

News Scan

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UPDATE Transfer of Guantanamo Prisoners for Trial Approved:  Associated Press writer Andrew Taylor reports on the moving of terrorist suspects held at Guantanamo Bay prison to the U.S. to face civilian trial.  The plan passed the Senate by a 79-19 vote as part of a larger $44.1 budget bill for the Department of Homeland Security.  The bill also supports the Obama administration's refusal to release new photos showing U.S. personnel abusing detainees held overseas.  The ACLU had filed suit to obtain unreleased photos of detainee abuse under the Freedom of Information Act, and won two rounds in federal court.  This bill would put an end to their case.

Willingham's Last Words

The very last paragraph of David Grann's much-discussed New Yorker piece on the Willingham case is:

Just before Willingham received the lethal injection, he was asked if he had any last words. He said, "The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God's dust I came and to dust I will return, so the Earth shall become my throne."

That poignant end reads almost like a Hollywood script, doesn't it?  He reasserts his innocence, and his very last words are religious. Fade to black. Well, Grann doesn't actually say those words are the very last, but that is certainly the picture the reader gets. And the statement as Grann reports it is consistent with what we might expect from a person who actually was innocent.

Is Grann's report the truth? Yes, if one defines truth in the Clintonesque way of defensible as not literally false. Is it the whole truth?

Notice: The extended portion of this post (following this paragraph and after the jump if you are viewing our main page), contains language we would not normally use on this blog. However, it is necessary in order to tell the whole truth.

Blog Scan

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Certiorari Granted in Detainee Case:  Kent noted earlier today that the U.S. Supreme Court has granted certiorari in the detainee case, Kiyemba, et al. v. Obama, et al. (08-1234).  SCOTUSblog's Lyle Denniston has been providing updates on the case for several months, and now that cert has been granted, Denniston has posted an analysis of the case.  Kiyemba addresses whether federal judges have authority to order the transfer of a Guantanamo detainee into the U.S. mainland, something that the Obama administration has tried to control as it takes steps toward closing its facilities at Guantanamo Bay.  Denniston believes that with the Court entering the debate, what was a matter of policy choice, domestic and foreign, could now be a matter of what the Constitution will permit. He does not believe this is something that the Administration wanted to see happen, and near the end of his post, wonders whether the government move the case beyond the Court's reach, and "moot" the constitutional question, by finding a place where the 13 Uighurs can be re-settled.  Tony Mauro also reports on the Supreme Court's grants for The Blog of Legal Times.  His report contains information on Kiyemba, and the Court's denial of cert in the drunk driving case Virginia v. Harris (08-1385).  Chief Justice Roberts apparently dissented from the Court's denial.  The Chief Justice would have taken the case because he believes it addresses "an important question that is not answered by our past decisions, and that has deeply divided federal and state courts."

Federal Judge Stays Another Execution
:  Doug Berman posts on Sentencing Law and Policy news of a federal judge's decision to stay the December 8th execution of Kenneth Brios.  Berman writes that this "stay means Ohio executions [are] almost certain not to resume until at least 2010."  Berman also links to Bob Driehaus' report on the stay in the New York Times.  According to Driehaus, the stay will allow the state attorney general and defense lawyers to gather more information about Ohio's lethal injection protocol, which has come under question since a failed execution on September 15th.

Federalism and Marijuana Prosecution:
  At NRO's Bench Memos, Matthew Franck opines that the Obama Administration's decision to cease prosecution of medical-marijuana users and distributors who are acting in accord with state laws, is a "terrible idea," particularly when considering what it means for federalism.  Franck believes that '[b]y announcing the non-prosecution of marijuana cases only in those 14 states that legalize some use of the drug for medical purposes, the administration has effectively proclaimed that federal law means one thing in those 14 states, and something else in the other 36."  He believes this could give rise to equal protection claims, and effectively subject the validity of federal law to the will of state legislators. 

A Well Rehearsed Judicial Nomination:  At Wall Street Journal's Law Blog, Jennifer Forsyth reports that during a speech given at Yale Justice Sotomayor acknowledged that "her nomination process was so tightly scripted that the White House picked out her dress."  Forsyth notes that reporters were not allowed into the event - per Justice Sotomayor's request - but the New Haven Register was able to gather information from interviews with people who attended the event.  According to the Register's story, Justice Sotomayor was told by government officials to chose five suits she would like to wear to her acceptance ceremony so that officials could recommend which one to wear.  

DoJ Statement on Kiyemba

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On SCOTUSblog, but not on DoJ's own web site as far as I can determine, is a statement by spokesman Dean Boyd regarding the Kiyemba Guantanamo detainee case, in which the Supreme Court granted certiorari today:

The Habeas Roads Not Taken

When a habeas petitioner has multiple claims against the judgment in his case, what should a federal district judge do when he finds one of them entitles the petitioner to relief? If he passes on the others, what should the court of appeals do when it reverses on that one? Whose obligation is it to bring all this to the court of appeals's attention?

In Corcoran v. Buss, 483 F.Supp.2d 709 (N.D. Ind. 2007), the federal judge found that one claim entitled the petitioner to relief from his death sentence, so he didn't rule on the remaining penalty phase claims. The claim decided was that an offer by the prosecution to forego the death penalty in return for a waiver of jury trial violated the Sixth Amendment, even though plea bargains to waive that penalty in return for waiving trial altogether, i.e., pleading guilty, are perfectly valid. The judge also held that Corcoran was competent to waive his state postconviction proceeding, which had the effect of defaulting the guilt phase claims.

The state appealed the grant of relief on penalty, and the petitioner cross-appealed on the competency issue. The Seventh Circuit reversed on penalty, affirmed on guilt, and remanded "with instructions to deny the writ...." Corcoran v. Buss, 551 F.3d 703, 714 (CA7 2008). On petition for rehearing, Corcoran claimed for the first time that the appropriate disposition was not to remand with instructions to deny the writ but rather with instructions to consider the previously undecided penalty phase claims. The court denied rehearing.

Today the US Supreme Court vacated and remanded in a brief and somewhat cryptic opinion.

Son of the Chunky Peanut Butter Case

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As the Prison Litigation Reform Act case was making its way through Congress, a frequently cited example was the prisoner who sued because he got the wrong kind of peanut butter. Circuit Judge Jon Newman later wrote a law review article contending that the suit had been misrepresented, 62 Brooklyn L. Rev. 519, but he failed to provide the case information so others could check it out. Even under Newman's version of the facts, the case was over $2.50 and shouldn't have been a federal court matter.

Whatever the facts of the peanut butter case are, prisoners do claim constitutional violations over trivial matters, and SFweekly.com has a fresh example for us. Prisoners at Pelican Bay, California's maximum security institution also known as "Slammer by the Sea," have sued because the prison raised the price of a jar of coffee from $6.40 to $7.50. (That's a penny more than the SF Safeway charges for the same jar, BTW.) The prison is no longer able to fund the Inmate Welfare Fund by keeping the interest on inmate trust accounts (even though the State Bar confiscates interest on lawyer trust accounts to fund its pet project). So they increased the markup on food items to make up the difference.

Is that a policy people may legitimately disagree with? Sure. Is it a violation of the Constitution of the United States? Get real.

One of the great things about the Internet is that, unlike in 1995, the article is accompanied by a link to the actual complaint, so everyone can read it for themselves. Yep, that's really what it says. On top of that, the inmates are represented by counsel, and of course they want attorneys' fees under 42 U.S.C. §1988.

One thing we really need in civil rights suits is reciprocity of attorney fee awards. It is fundamentally wrong for one party to be entitled to receive fees if he wins but not subject to pay them if he loses. California recognized that over three decades ago when it provided reciprocity in contract cases (Civil Code §1717). It is high time we did the same in civil rights cases. Falsely or frivolously accusing someone of a civil rights violation is just as bad as committing a civil rights violation, and the same liability for fees should follow.

News Scan

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Civilian Courts Are Not the Place to Try Terrorists:  Wall Street Journal writer, and former United States Attorney General, Michael Mukasey opines on the Obama administration's plan to try several of the prisoners now detained at Guantanamo Bay in United States civilian courts.  The Justice Department claims that civilian courts are well suited to the task.  Mukasey, U.S. Attorney General from 2007-09, believes that civilian courts are ill-suited for trying terrorists and states the matter should be left to the military.  Mukasey cites as an example Ahmed Ghailani's transfer from Guantanamo.  In a civilian terrorist trial, to maintain the security of the courthouse and the jail, deputy U.S. marshals must be brought in to escort the defendant, jurors, and judge to and from the courthouse.  Prosecuting a terrorist in civilian court also creates problems for the intelligence gathering community by disclosing evidence about means and methods of evidence collection that have nothing to do with the case for the public's knowledge.  By trying terrorists before a military commission where the permissibility of evidence is based on relevance and apparent reliability, the circumstances of their capture on the battlefield can be described by affidavit, without bringing to court the particular soldier or unit that effected the capture.

A Study on Why States Can't Afford Death Penalty:  CNN writer Bill Mears reports on the cost of the death penalty in the U.S.  At 678, California has the nation's largest death row population, yet the state has not executed anyone in four years.  The state still spends $130 million a year on its capital punishment system, housing and prosecuting inmates while they cope with an appellate system that has kept some convicted killers waiting for an execution date since the late 1970's.  Many death penalty supporters say part of the problem is that states have added unnecessary, time consuming delays because of a reluctance to carry out the death penalties their own legislatures have enacted.  Kent Scheidegger, Legal Director of the Sacramento, California based Criminal Justice Legal Foundation, states that by building support for the death sentence and imposing it more regularly where it is warranted, states can have a powerful incentive for plea bargaining, and could also provide states with large savings in trial and incarceration costs.

First Woman Given Federal Death Sentence Appeals:  The Associated Press reports that Angela Johnson, the first woman given a federal death sentence after it's reinstatement has challenged her conviction and sentence.  Johnson was convicted in federal court in 2005 for the 1993 drug-related slayings of three adults and two children in northern Iowa.  She was sentenced to death for four of the killings and given a life sentence for the fifth.  Johnson's attorneys argue that not only did her past attorneys not adequately investigate the facts of the case, but Johnson was tried while incompetent, in violation of her constitutional rights.  They say she suffered from brain damage, bipolar disorder, post-traumatic stress disorder and methamphetamine addiction. 

Recycled Cost Argument from the DPIC

The anti-death-penalty spin doctors at the Death Penalty Information Center have issued yet another report banging the drum for abolition of the death penalty as a cost saving measure. Most of it appears to be recycling of the same stuff we have seen before. The present long course of review, with the accompanying long, expensive stays on death row, is assumed to continue indefinitely, assuming efforts to change this will fail. High trial costs resulting from the Supreme Court's high-handed and unjustified decision in Lockett v. Ohio are assumed to be permanent without considering what would change if that decision were overruled (as it should be).

The important point of deterrence, and the great savings in lives if the deterrence studies are correct, is brushed off in a few cavalier paragraphs. Radelet's misleading survey of criminologists is cited without mentioning the inconvenient truth that the criminologists are not the ones who have been doing most of the recent research in this area. DPIC claims "most experts conclud[e] that the relative rarity of executions and their concentration in a few states renders national conclusions about a deterrent effect to the death penalty unreliable." Yet the authority cited for that proposition is the Donohue and Wolfers article.  That article makes no such claim about what most experts conclude but criticizes some of the existing articles. The collection of abstracts that CJLF has compiled here shows that most of the research does indicate a deterrent effect, and DPIC very well knows that.

The one thing that is new is an attempt to refute the point I made in February that the existing studies fail to consider the savings that result when a murderer plea-bargains to a life sentence to avoid the death penalty. They announce, as if it proves something, that "Prosecutors in New Jersey said that abolition of the death penalty there in 2007 has made no difference in their ability to secure guilty pleas." Of course not. Every defense lawyer in New Jersey, and probably most murderers, knew that the state did not really have a death penalty because their state supreme court was making quite certain no one was executed. The study also states that this kind of plea bargaining is an unethical interference with the defendant's Sixth Amendment rights. Of course it is not. The Seventh Circuit discussed this issue in Corcoran v. Buss, 551 F.3d 703 (2008), which the Supreme Court sent back today to decide other issues without the slightest indication of any disapproval of the Sixth Amendment analysis.

SCOTUS Conference

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Today was a conference day at the US Supreme Court. That is when the Justices decide which of the cases from lower courts they are going to review. (They only take about 1 in a 100.) Up for a third consideration are two dubious decisions in capital cases from circuits divisible by 3: Wong v. Belmontes, No. 08-1263 from California and Bobby (Anderson?) v. Van Hook, No. 09-144 from Ohio. An orders list with the results of today's conference is expected at 10:00 am ET tomorrow (Tuesday).

The fact that each of these cases has been put on the conference list three times is an indication (but not a guarantee) that the Court is considering something more than just the usual binary choice of "yes, we will take it" or "no, we won't." That something may be a summary reversal, an action reserved for opinions so obviously wrong that full briefing and argument is unnecessary.

Update, Tuesday morning: The orders list is here, and neither of the above cases is on it. Presumably, they will be "relisted" for a fourth consideration. The Court took a Gitmo detainee case and a commercial case involving shipping, described at SCOTUSblog.

The Court denied review of a Virginia case on stopping drivers based on a tip that they are drunk, over a dissent by Chief Justice Roberts. Virginia v. Harris, No. 08-1385 is here.

The first opinion of the term is a summary reversal in an Indiana capital habeas case, Corcoran v. Levenhagen, which I will describe in a separate post.

Update 2: The Texas capital case of Mosley v. Thaler, previously noted here and here, was among those denied today. Mosley contended, and the state denied, that the case was similar to the pending Alabama case of Wood v. Allen, set for argument November 4. (CJLF brief here.) Is the denial of certiorari a harbinger of an Alabama win in Wood, or did the Court accept Texas's argument that the cases are not really similar? Any answer to that question is pure speculation.

Blog Scan

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Pennsylvania Sentencing Commission Publishes Report on Mandatory Minimums:  Yesterday at Sentencing Law and Policy, Doug Berman posted portions of Riley Yates' article discussing the Pennsylvania Commission's study on the impact of mandatory minimums.  Yates' piece, in Pennsylvania's The Morning Call, reports that the Pennsylvania Sentencing Commission is now advocating that the state repeal its drug-free zone law and raise the threshold of cocaine needed to trigger enhanced penalties for trafficking from 2 to 5 grams.  The Commission's recommendation is a break from the tough-on-crime laws enacted in the 1990s.  Critics of these laws claim they are clogging prisons, breaking state budgets and failing to address the problems they aim to address.  But prosecutors in Pennsylvania see things differently.  Yates reports that Northampton County District Attorney John Morganelli supports Pennsylvania's mandatory minimums because they are useful in reaching plea deals - which also save the states the cost of trial.  Another Assistant District Attorney, Michele Kluk, also believes that in some cases mandatory minimums are appropriate in cases when the defendant is not willing to admit responsibility.

Justice Stevens Sees Himself as a "Judicial Conservative":  Today at Volokh Conspiracy, Orin Kerr posts on Justice Stevens personal belief that he is a "judicial conservative."  Kerr has posted his views on Justice Stevens' self-perception before.  Back in 2007, Kerr opined that Justice Stevens may be referring to the beliefs of the 1960s and 1970s that judicial liberals "favored the courts bringing about dramatic changes to the foundations of American law," and "judicial conservatives were the folks who favored resisting those changes."  Kerr then references this weekend's USA Today interview with the Justice, and his statement that "You can be a conservative by deciding cases narrowly and paying attention to (precedent)."  Kerr thinks this comment "suggest[s] that," Justice Stevens may believe "a Justice could consistently vote to try to make the law more aligned with the views of political liberals, but as long as he did so mostly in relatively small steps and by 'paying attention' to precedent..."

A Note of Caution on Willingham

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At the Dallas Morning News's Texas Death Penalty Blog, editorial writer and death penalty opponent Rodger Jones has a note of caution for his fellow opponents:

But we haven't heard the full and undistorted story about this tortured, politically tinged case. I'm dismayed that so many people are jumping the gun on it -- assuming the worst on the part of the state and suspending all skepticism where fire expert Craig Beyler is concerned. This extends to people in the media. How can we make conclusions until we know everything that's knowable? How can we fail to question Dr. Beyler's findings as though he is the last word in these matters? Is there no range of thought within the world of science or forensics?

*                              *                            *

Blog Scan

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Oral Argument Recap in Speedy Trial Act Case:  At SCOTUSblog, Anna Christensen recaps last Tuesday's oral arguments in Bloate v. United States.  According to Christensen, last week's arguments could have left spectators "believ[ing] that several of the justices were acting as legislators."  She points to the fact that several Justices appeared concerned over the Speedy Trial Act's failure to set a set time for courts responding to pretrial motions.  Justices were concerned that Act allows different districts allocate different times for responding to pretrial motions.  Christensen appears disappointed by the course of the arguments.  She notes that the more interesting issue raised in Bloate - how to address "dueling policies" that public interest prevents a defendant from prospectively waiving his right to a speedy trial, and Congress' intent of furthering the criminal defendant's constitutional right to receive a speedy trial - was hardly addressed.  She hopes that the decision focuses on more important issues than those raised during argument.

Does the Eighth Amendment Only Prohibit Cruel and Unusual Punishment?  That's what Professor Meghan J. Ryan wants to find out in her new SSRN article which will be published in the Washington University Law Review.  Doug Berman posts the link and the abstract to her article at Sentencing Law and Policy.  In her article, Professor Ryan, traces the history of the Eighth Amendment and analyzes the Court's early interpretations of the prohibition on "cruel and unusual punishments," to conclude that the Eighth Amendment  "prohibits only punishments that are both cruel and unusual and that each of these components of the Clause should thus be independently assessed."  Meghan Ryan is a visiting professor at University of Minnesota's School of Law.  Last year she published an article in the North Carolina Law Review asking whether stare decisis applied in the Eighth Amendment context.  

Federalist Society SCOTUScast:  At the Federalist Society's website, Jacob Loshin, reviews the Supreme Court's October 6th arguments in United States v. Stevens.  The case reviews the constitutionality of a federal statute that criminalizes the creation for sale of depictions of animal cruelty.  Loshin's SCOTUScast describes the arguments made by each party, including the government's position that animal cruelty videos are not protected by the First Amendment.  Loshin categorizes this position as "ambitious," since the Court has traditionally taken a narrow view of what constitutes unprotected speech.  Loshin is an associate in Winston & Strawn's Washington, D.C. office, and filed a brief on the behalf of Respondent, Stevens, for the CATO Institute.  More information on Stevens can be found in last week's News Scan

News Scan

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Victim Wants to Promote Hope:  Sacramento Bee writer Jennifer Garza reports on the survival of Carmina Salcido, whose father attempted to kill her when she was 3 years old.  On April 14, 1989, 28-year-old Ramon Salcido, went on a killing spree to murder his wife, two daughters, his mother-in-law, two young sisters-in-law, and his boss.  He also shot another co-worker and slashed Carmina's throat.  Carmina lay at the county dump for 36 hours, only surviving because her head had fallen forward and kept her airway intact long enough for the blood to congeal and seal it off.  In November 1990, Ramon was convicted of murder and other crimes and was sent to death row at San Quentin State Prison.  Carmina used to visit her father in prison, but eventually stopped.  She says that Ramon never took responsibility for his actions.  It has been years since her father's killing spree and Carmina is now writing a book and telling her story, hoping it will inspire other victims to never give up hope.  Carmina says, "I think there is a reason I survived and that's to tell my story, to show that people can live through the horrible things that can happen."

Backlogged Rape Kits:  CNN writer Stephanie Chen reports on the rape kit backlog problem plaguing our nation.  The man who raped Lavinia Masters when she was 13 years old will never be prosecuted because the DNA results came after the statute of limitations had run.  She was raped in 1985 and her rape kit sat idle until 2005.  In 2005, the Dallas Police Department re-opened her case and matched the old DNA to samples from a man who was already serving time in prison for unrelated crimes - including sexual assault.  Government officials say the reason for the backlog is that crime labs are overwhelmed and underfunded.  Victim advocate groups claim that the kits go untested because law enforcement fail to make rape cases a priority.  Most cities have large DNA backlogs.  In Houston, Texas and Chicago, Illinois, crime labs have about 1,000 rape kits untested.  However, some cities make it a priority to test every rape kit, and consider a kit untested for 30 days a backlog.  New York City requires every kit to be tested, and has seen its arrest rate jump from 30 to 70 percent since 2003.  Victim advocate groups say the best way to get the kit tested is to be persistent, and constantly ask for updates.  There is hope that the backlog problem will diminish.  In 2004, congress passed the Debbie Smith Act, providing more than a billion dollars to improve DNA testing procedures and reduce backlog.     
Now here is a hopeful sign. On Tuesday, the US Supreme Court heard oral argument in the Ohio capital case of Smith v. Spisak, No. 08-724. The question, once again, is whether the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States...." 28 U.S.C. §2254(d)(1). The precedent at issue in Question 1 is the dubious 5-4 decision in Mills v. Maryland, 486 U.S. 367 (1988), the source of many needless reversals.

Right out of the gate, Justice Sotomayor asks if everyone has been asking the wrong question. Does it make sense to ask if the Ohio Supreme Court's decision of April 13, 1988 is contrary to or an unreasonable application of a US Supreme Court decision issued two months later? Does it matter that the US Supreme Court denied certiorari the following year, after Mills? It appears that Justice Sotomayor raised the issue on her own. I did not see it in Ohio's brief or in the amicus brief for Pennsylvania and other states.

More on Willingham Case

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The AP has this story on the Willingham case, a case in which the anti side is running around saying it is certain an innocent man was executed. (The last time they said that was in the case of Roger Coleman, subsequently proven guilty to a certainty by DNA.)

Kuykendall said his sister Stacy, Willingham's former wife, called her family together on Feb. 8, 2004, to tell them about a visit with her ex-husband, the Corsicana Daily Sun reported.

"Stacy asked all of us to come into the living room, at this time she started crying and told us about her visit with Willingham," Ronnie Kuykendall said in the affidavit.

"She stated that after visiting with him for about one hour and 45 minutes he told her that he had set the fire because he knew that she was going to leave him in January (1992) like she had said and that she was going to divorce him and he figured if he did this she would stay with him and she could get her tubes untied and that they could start another family and that he wanted her to write the board a letter because he did not want to die," according to Ronnie Kuykendall.

Stacy Kuykendall has declined to talk to the media since her ex-husband's execution.

The second affidavit is from a neighbor who this month gave a statement about what he saw on the morning of the December 1991 fire.

Tony Ayala told Corsicana police Detective Seth Fuller on Oct. 6 that he saw Willingham packing his vehicle and moving it out of the carport as smoke poured out of the house.

Ayala told Fuller that he tried to tell police in 1991 what he saw, but he was rebuffed.

Janet Jacobs has this story in the Corsicana Daily Sun. An earlier story on Gov. Perry's statement regarding the Forensic Science Commission is noted in yesterday's News Scan.

Anderson Cooper of CNN has this interview with Willingham's trial counsel David Martin and Chicago Tribune reporter Steve Mills.

Blog Scan

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Questioning the ACLU Involvement of Federal Judiciary Nominees:  At The Blog of Legal Times, David Ingram reports that Republicans have focused in on Federal Judiciary nominees' involvement in the ACLU.  According to Ingram, Republicans on the Senate Judiciary Committee have raised objections to nominees with a history of working for the ACLU.  Senator Jeff Sessions (R-Ala.), the ranking Republican on the committee, dislikes the ACLU's stands on the death penalty and separation of church and state. He called its argument that capital punishment is unconstitutional an "outrageous position" that's unworthy of serious consideration.  On the other hand, democrats, like Senator Patrick Leahy (D-Vt.), believe that involvement with the ACLU is "more defensible than involvement with the conservative Federalist Society."

LWOP for Juveniles Just May Be Appropriate:
  Sentencing Law and Policy's blogger, Doug Berman, links to a column by Jake Parsley in yesterday's Minnesota Daily.  The column, "The kids are not alright," discusses the Minnesota Supreme Court's ruling that LWOP for a seventeen year old offender did not violate the state or federal constitution, and recognizes that some juveniles commit terrible crimes, after all "[y]ou don't get life without parole for vandalizing the neighbor's garage."  Parsley then goes on to discuss the upcoming Supreme Court case Sullivan v. Florida. He recognizes that at the time of sentencing "Sullivan's criminal record merited 846 points under Florida's sentencing guidelines -- well over the 583 points needed to impose a life sentence[,]" yet believes LWOP for juveniles may not be the best way to deal with severe juvenile offenders.  CJLF authored a brief for both Graham v. Florida and Sullivan v. Florida.   Our Summary of Facts and Case describes the violent criminal history of each defendant.  

Justice Ginsburg Hospitalized Overnight:  SCOTUSblog reporter Lyle Denniston posts news of Justice Ginsburg's quick trip to the hospital yesterday.  According to the Supreme Court, the hospitalization is due to an "adverse reaction" to her medication.  The reaction occurred as Justice Ginsburg was getting ready to fly to London where she and other members of the Court were to attend opening ceremonies this week for Britain's new Supreme Court.  The Court's statement explained that after she boarded the plane, she "experienced extreme drowsiness causing her to fall from her seat.  Paramedics were called and the Justice was taken to the Washington Hospital Center as a precaution."  She was found to be in stable health and released this morning.  Tony Mauro also reports on the Justice's hospitalization for Blog of Legal Times.

Alvarez v. Smith May Be Dismissed on Procedural Grounds:
  At Wall Street Journal's Law Blog, Nathan Koppel reports on yesterday's oral arguments in the asset forfeiture case Alvarez v. Smith.  According to Koppel, the case "was shaping up as an interesting battle pitting the government against individual rights," but yesterday's Supreme Court arguments focused on procedural rules that would remove the case from their docket.  Wall Street Journal reporter, Jess Bravin, wrote that "Supreme Court justices seemed inclined to dismiss rather than decide a property-rights case centering on an owner's ability to challenge police seizure of cars or cash in narcotics investigations."  Evidently, the justices appeared largely in agreement on the wisdom of dismissing the case, believing the case was moot.   The arguments' transcript was posted yesterday on SCOTUSblog.  Ilya Somin also states his impression of yesterday's argument at Volokh Conspiracy.   

"Idiotic" New Laws? Maybe Not

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Our friends on the conservative-libertarian side of things sometimes do good work in exposing and opposing wacky government intervention in things that the government shouldn't be involved in, but sometimes they can get a bit wacky themselves. Matt Welch of Reason Foundation has this article on Opposing Views on the supposedly "idiotic" new laws recently signed by Cal. Gov. Schwarzenegger. The anti-paparrazi law may well get struck down, notwithstanding my gut reaction that paparrazi should be shot on sight. But Welch also counts among the supposedly idiotic new laws, "A law requiring DUI convicts in four counties to install ignition-interlock breathalyzer devices on their cars."

Does this guy have any idea how much death and destruction is caused by drunk drivers? Even if we put aside the human element and look at things in strictly economic terms, a single injury-causing accident can rack up huge costs in lost income and medical and rehabilitation expenses. Even a noninjury fender-bender costs many, many thousands of dollars. Combine this with a sound basis for believing that interlocks are effective for the duration of their installation, and I don't see anything "idiotic" about this law.

If the losses fell only on the drunk driver, one might make a libertarian case for letting him bear the fruits of his own misconduct, but we all know they do not. Protecting people from the misdeeds of others, acts in which they have no choice, is precisely the proper role of government. Recognizing that distinction is the difference between being a libertarian and being an anarchist.

News Scan

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Senate Bill Would Eliminate Cocaine Sentencing Disparity:   Washington Post Staff Writer Carrie Johnson reports that Thursday, the Senate's second-ranking democrat introduced a bill to eliminate the sentencing disparity between crack and powdered cocaine.  Under current law, it takes 100 times more powdered cocaine than crack to trigger the same mandatory minimum sentence.  Majority Whip Richard J. Durbin introduced the bill to change the sentencing disparity between the two forms of the drug.  Senator Durbin believes that tough sentencing has led to the imprisonment of African Americans at a rate six times the rate of whites. The bill would erase the current sentencing disparity and would increase the volume of crack cocaine required to trigger a mandatory prison term.  The measure would stiffen penalties for large-scale drug traffickers and violent criminals.  Law enforcement officials have approached the issue differently.  They advocate elimination of  the disparity by increasing the penalties for possessions of powder cocaine.  Raising the volume of crack cocaine required to trigger a mandatory prison term could save more than $510 million over the next 15 years, according to the U.S. Sentencing Commission.

Texas Governor Defends Execution:  Associated Press writers Kelly Shannon and Michael Graczyk report that Texas Governor Rick Perry is standing firm on the recent controversy surrounding Cameron Todd Willingham.  He stated that Willingham is "a monster" who killed his three children.  He believes suggestions that Willingham may have been innocent are anti-death penalty propaganda.  Willingham was convicted of capital murder for the 1991 deaths of his children, by setting fire to the family's home while the children were inside.  Recently, forensic scientists have called into question arson evidence used to convict Willingham, but the prosecutor in the case, John Jackson, still believes Willingham is guilty.  Governor Perry was recently criticized for replacing members of the Texas Forensic Science Commission before they reviewed the arson report used in Willingham's conviction.  Craig Beyler, an arson expert hired by the Forensic Science Commission to study the case, concluded that "the arson findings were not scientifically supported and that investigators at the scene had poor understanding of fire science."  Beyler went further last Wednesday, when he stated Governor Perry's failure to recuse himself from the Commission is "unethical and injurious to the cause of justice."  Allison Castle, the Governor's spokeswoman, said, "this statement demonstrates that [Beyler] was never an objective scientist looking only at forensic facts.  He clearly has another agenda."  Governor Perry states that he wants to remind the public of all the facts of the case that implicated the man, instead of "glomming onto" one piece of evidence "and saying 'Ah-ha.'" 

Blog Scan

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Counsel's Misadvice Has Its Day In Court:  At SCOTUSblog, Anna Christensen summarizes yesterday's oral arguments in Padilla v. Commonwealth of Kentucky, a case addressing whether the Sixth Amendment provides a remedy to defendants who have been misadvised as to immigration consequences by their attorneys.  Christensen writes that Padilla's attorney, Stephen Kinnaird, took the stance that Padilla should get relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability.  She writes that Supreme Court Justices expressed concern such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea.  Michael Dreeben, Deputy Solicitor General, argued in favor of affirming Kentucky's holding.  He argued that the Sixth Amendment does not entitle a defendant to advice regarding potential immigration consequences in the first place.  Christensen also reports that Kentucky's attorney, Wm. Robert Long, spent much of his time "respond[ing[to a series of questions concerning the 'professional norms' governing attorney conduct."  He argued that Strickland v. Washington treats "professional norms" as guidelines, and not as hard, and fast rules.  Adam Liptak also reports on yesterday's oral arguments in the New York Times. He believes the Justices were "sympathetic," but "uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system." Yesterday's News Scan provides some background on Padilla's claim. 

Death Penalty Support Remains Strong:  Yesterday, Gallup released the results of its annual Crime Survey and found "that 65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it..."  Today, on Sentencing Law and Policy, Doug Berman posts some of his highlights from the report.  According to Berman, "Gallup's death-penalty data stretch back more than seven decades," and as early as 1936, "59% of Americans supported the use of the death penalty in cases of murder, compared to 38% who opposed it[,]" -- numbers that aren't too far off recent results.  Another interesting finding is that 49% of Americans say the death penalty is not imposed often enough, 24% say it is imposed "the right amount," while 20% say it is imposed too often.  

Federal Forfeiture Argument at the Supreme Court
:  At Wall Street Journal's Law Blog, Jennifer Forsyth writes that today, the Supreme Court tackled the issue of whether owners of assets that have been seized are entitled to a more prompt hearing to make a case that they should get their property back.  The case, Alvarez v. Smith, arose from the Seventh Circuit's holding that the Constitution requires owners to get a more timely chance to reclaim their property.  In other words, evidence seized as part of a drug bust should not be held for three years before someone gets their car back.  Forsyth notes that this Seventh Circuit decision "features an interesting Sonia Sotomayor twist."  Apparently, Justice Sotomayor struck down New York City's forfeiture system when she sat as a Second Circuit judge.

A Familiar Death Penalty Challenge from 1983:
  At Bench Memos, Ed Whalen's "This Day in Liberal Judicial Activism" reports on the 1983 D.C. Circuit court finding that a state [that] carries out capital punishment by lethal injection, must have the drugs deemed "safe and effective" for that use by the Food and Drug Administration.  Then-Judge Scalia dissented from the decision, and the the Supreme Court unanimously reversed the holding to rule that the FDA's decision not to institute enforcement proceedings was not judicially reviewable.  

News Scan

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CIA Trial Lawyer Challenges Credibility of Identification:  Associated Press writer Colleen Barry reports that court appointed lawyer Arianna Barbazza, one of the attorneys the American defendants charged with kidnapping an Egyptian cleric, argued that her clients have never been positively identified and should be found innocent.  All but one of the 26 Americans on trial are believed to be CIA agents and are accused of kidnapping Osama Moustafa Hassa Nasr as part of the CIA's extraordinary rendition program.  Prosecutors say Nasr was taken in broad daylight from Milan and flown into Egypt, where he was allegedly tortured.  Human rights advocates say renditions were the CIA's way of outsourcing the torture of suspected terrorists to countries where it was practiced.  Barbazza argued that the evidence used to identify her clients, "poor quality passport photographs" and cell phone records, is not sufficient to identify defendants charged with kidnapping.  The CIA has yet to comment on the case.  It is the first time a country has scrutinized extraordinary renditions.  Another report on the topic can be found here.

D.C. Sniper Seeks to Dodge Death Penalty:  CNN reports that D.C. Sniper, John Allen Muhammad, will seek clemency from Virginia Governor Tim Kaine on October 22.  Kaine, however, spoke on WTOP Radio stating that he could not imagine a circumstance under which he would grant clemency.  Muhammad's attorney is also appealing to the U.S. Supreme Court.

Blog Scan

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ACLU Sues over California's Proposition 69:  Today on KQED's Forum, Michael Krasny hosted a panel discussion discussing the ACLU's challenge to voter approved Proposition 69.  Proposition 69 requires DNA samples of anyone arrested of a felony, and in Haskell v. Brown, the ACLU claims that the law violates privacy rights.  Michael Rushford, President of the Criminal Justice Legal Foundation, joined the panel to discuss the lawsuit with Kara P. Dansky, executive director of the Stanford Criminal Justice Center, and Michael T. Risher, the ACLU attorney filing the class action. 

Who Is Behind the Court's Criminal Law Grants?
  At Sentencing Law and Policy, Doug Berman wonders whether Justices Alito and Sotomayor are behind "all the big criminal law SCOTUS action?"  Berman notes that after today's certiorari grants in Holland, Marcus and Skilling v. United States, the Supreme Court has agreed to hear six criminal law cases in the past month.  He believes that the addition of two former prosecutors (Justices Alito and Sotomayor) may have led to the grants.  He speculates that the two Justices are "likely find a range of criminal law topics inherently more interesting than their colleagues, and they also likely understand more fully how important clarity and certainty is to the work of all criminal justice practitioners."

Supreme Court to Hear Former Enron President's Appeal:  At The Blog of the Legal Times, Tony Mauro reports on the Supreme Court's decision to review former Enron President Jeff Skilling's claim that "the massive pretrial publicity and 'community passion' in Houston surrounding Skilling's trial created a presumption of juror prejudice, and the presumption requires that Skilling's conviction be reversed.  Mauro reports that the Skilling case places before the Court, for the third time this term, the issue of how much proof a prosecutor must offer in order to win a conviction for failing to provide "honest services" to someone else.  The other two cases, Black v. United States and Weyhrauch v. United States will be heard in December.  Both Mauro, and Lyle Denniston at SCOTUSblog, report that the Court granted certiorari in Skilling against the advice of Solicitor General Elena Kagan.  Kagan had filed a brief urging the Court to keep Skilling's appeal pending the outcome of Black.  Nathan Koppel also posts on the Skilling grant at Wall Street Journal's Law Blog. Koppel predicts that, based on his dissent in Sorich v. United States, Justice Scalia could be "looking to put the breaks on this area of law."

News Scan

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Arizona Sheriff Stripped of Policing Powers:  Guardian News writer Daniel Nasaw reports on a two-year old agreement between the Department of Homeland Security and Maricopa County Sheriff Joe Arpaio has been canceled due to claims of abuse. In what critics call a political move, the White House has decided to strip the Sheriff of his federal authority to make immigration arrests.  Arpaio's aggressive tactics include the jailing of illegal immigrants in tent cities surrounded by barbed wire, the reduction of their meal costs to 20 cents per day, and chain gangs for women inmates.  Responding to the White House decision Arpaio told that press that he will personally drive illegals caught on the streets to the border if federal officers refused to take them into custody.  More than 60 law enforcement agencies across the country have signed onto the federal program allowing local officers to be deputized to enforce immigration law.  Critics claim that it wastes police resources needed to combat local crime and promotes the racial profiling of Hispanics. 

Update-DNA Advancements Brings Hope to Rape Victim: CNN writer Mayra Cuevas-Nazario reports that a suspect has been apprehended in the 19-year-old rape, abduction, and attempted murder of an 8-year-old girl.  The details of this case were reported in an earlier News Scan.  DNA, and other forensic evidence, led authorities to Dennis Earl Bradford.  Bradford was arrested on Tuesday morning in Little Rock, Arkansas.  Bradford's DNA was in the FBI database because of a previous conviction in Arkansas.  The victim Jennifer Schuett, who is now 27-years-old, said, "I hope that my case will remain as a reminder to all victims of violent crime to never give up hope ... With determination and by using your voice to speak out, you are capable of anything."

Supreme Court to Decide What Constitutes Effective Assistance of Counsel:  Associated Press writer Jesse J. Holland reports that Jose Padilla, a Honduras-born immigrant, wants his guilty plea to drug charges thrown out because his defense lawyer gave him the bad advice.  The Supreme Court is heard arguments today on whether defendants should expect their lawyers to advise them on all the possible consequences of a guilty plea.  Padilla agreed to plead guilty to drug charges because his lawyer had incorrectly told him it would not affect his immigration status.  When Padilla found out that he faced deportation, he tried to back out of the plea deal arguing that there had been a violation of his Sixth Amendment right to effective assistance to counsel.  The Kentucky Supreme Court ruled that adequate counsel does not extend to matters that are outside the criminal case.  Attorney Stephen Kinnaird says that is the constitutional duty of the attorney to inform his client about all consequences to a guilty plea because a lawyer's "duty is to inform the client of the legal risk."  But Kentucky Assistant Attorney General WM Robert Long Jr says that a criminal attorney's constitutional duty does not extend to what may happen in the future.  Justice Antonin Scalia questioned whether ruling in favor of Padilla would force courts to make exceptions for other consequences of a guilty plea.  "We have to decide whether we're opening Pandora's box here," Scalia said.   

Supreme Court Orders

The Supreme Court has granted certiorari in four new cases. SCOTUSblog has posted the orders list, and Lyle Denniston provides a brief summary of the four cases. 

Two of the four cases involve issues of criminal law.  The first, United States v. Marcus (08-1341), addresses the scope of federal appeals courts' authority to overturn a conviction that may have been based in part on conduct that was not criminal when it occurred. Justice Sotomayor has recused herself from this case.  The second criminal case, Holland v. Florida (09-5327), asks whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client.   

California Crime Report

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The annual report, "Crime in California, 2008: Advance Release," has been posted to the Attorney General's website.  According to the report, the violent crime rate decreased 4.2% from 2007 to 2008, and the property crime rate decreased 4.6%. 

Habeas Statute of Limitations

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The Supreme Court has granted certiorari in Holland v. Florida on the question of tolling the statute of limitations for habeas petitions. Despite the name, this is a federal habeas petition from the Eleventh Circuit. (The respondent is supposed to be a corrections official. The State has Eleventh Amendment immunity.) The Eleventh Circuit's decision is here.

The district court dismissed the petition as untimely because it was filed beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1). On appeal, Petitioner argues that he was entitled to equitable tolling of the limitations period for filing his federal habeas petition because of egregious conduct by his counsel during his post-conviction proceedings. Seeing no reversible error, we affirm the district court's dismissal of Petitioner's petition.

I will be traveling today and not able to blog further on this case or the Spisak argument until much later.

Blog Scan

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California Prison Case and the Supreme Court:  At PrawfsBlawg, Jonathan Simon, a Boalt Hall Law Professor, comments that the California inmate case, Plata v. Schwarzenegger, is likely to end up in the Supreme Court "sooner or later."  Referencing the Sacramento Bee's October 9th story on the inmates request to hold Governor Schwarzenegger in contempt, Simon focuses his post on some of the "legal flash points" that will spark interest if the case reaches the Supreme Court.  But the case is already there: Schwarzenegger v. Plata, No. 09-416.

Supreme Court Case Discussing Strickland in Deportation Context:  At SCOTUSblog, Anna Christensen previews tomorrow's Supreme Court argument in Padilla v. Kentucky, a case that will address whether a criminal defendant's guilty plea can be set aside because his defense counsel affirmatively misadvised him with regard to the deportation consequences of the plea.  In her post, Christensen goes through the parties' briefs, and discusses the United States amicus' position that misadvice with regard to immigration consequences can be ineffective assistance of counsel, so long it satisfies both the performance and prejudice prongs of Strickland (Padilla can't do this because evidence of guilt is overwhelming).  This position is contrary to the Kentucky Supreme Court's position that Strickland did not apply because Padilla's deportation constituted only a "collateral consequence" of his guilty plea.  Kentucky's brief supports this decision, and argues that after Brady v. United States and Boykin v. Alabama, trial courts have a duty only to ensure a defendant's understanding of the "direct" consequences of his guilty plea.  SCOTUSblog is likely to post transcripts of the oral arguments tomorrow.

Reconsidering Deference to Favor Uniform Rule of Law:  At Sentencing Law and Policy, Doug Berman posts the abstract of Marquette Law Professor Michael O'Hear's SSRN article, Appellate Review of Sentences: Reconsidering Deference.  According to the abstract, O'Hear believes it is "unfortunate" that appellate courts defer to the"sentencing competence of trial judges."  O'Hear writes this type of deference could hinder advancements in "uniformity and other rule-of-law values that are threatened by broad trial-court discretion."  Instead of relying on a sentencing judge's knowledge of the case and the procedure, O'Hear proposes "a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient."

Accuracy of Forensic Psychiatric Evaluators: 
CrimProf Blog editors have posted on Douglas Mossman, MD's finding that "psychiatrists who evaluated mental competence from case files of 156 criminal defendants performed at a strikingly high level of accuracy."  According to the study's press release, the results of Dr. Mossman's study show that, on average, in "29 out of every 30 cases, the psychiatrists could distinguish competent defendants from incompetent defendants."  In reference to the results of his study, Quantifying the Accuracy of Forensic Examiners in the Absence of a "Gold Standard," Mossman is quoted as saying,"[t]hese results help us see how courtroom experts can be quite accurate in distinguishing competence from incompetence, but still reach different conclusions.  It's a matter of where experts draw the line on the issue of competence."  Mossman advocates adoption of a statistical techniques that "make it possible to estimate diagnostic accuracy without gold standards." 

News Scan

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New York's DNA Registry is a Big Success: Binghamton Press & Sun-Bulletin writer Nancy Dooling reports on how DNA is solving numerous cold case murders in New York.  A murder from 1997 was solved from using the DNA found in the crime scene.  The murderer's DNA was in the registry from a previous and unrelated crime. The importance of this registry has only increased in the past twelve years, as various crimes now require DNA proof to convict a suspect.  The success has been partially tied to the expansion of including felony and misdemeanor crimes into the registry.  Roughly 8,270 police investigations have been assisted by the registry's matches, linking present unsolved crimes to suspects from previous unrelated crimes.  The DNA registry has opened a new medium for police investigators to solve old and new cases.

A Bill to Overhaul California's Adult Prison System:  Wall Street Journal writer Bobby White reports that Sunday, Governor Arnold Schwarzenegger signed into law a bill that overhauls California's adult-prison system, by modeling it after California's juvenile-prison system.   California has had success with the recent changes made to their juvenile-prison system.  The changes in the juvenile system have brought lower recidivism rates, reduced the number of incarcerated youths, and saved the state millions of dollars.  The bill gives more funding and responsibility for paroled offenders to counties, including placing non-violent offenders in county jails instead of state prisons.  A report by a nonprofit Center on Juvenile and Criminal Justice system has found that the changes resulted in youth having better living conditions, increased behavior counseling, and improved access to their families.  The attempt to revamp the adult system comes after a panel's finding that California must reduce prison population by 2011, which has been discussed in a previous News Scan.    Democratic state senator Gloria Romero believes, "there's plenty to learn from how we improved the juvenile system."  But some officials are less optimistic.  Bernie Warner, executive director of the Division of Juvenile System, says, it was a lot easier to make changes to the juvenile system because the size of the problem was smaller.  "The adult corrections system is much, much bigger and as a result a lot more complex."

New Rules for Ohio's Lethal Injection Procedure: Washington Post writer Peter Slevin reports that Romell Broom's failed execution, discussed here, has motivated the administration of Ohio Governor Ted Strickland to revise its lethal injection protocols to better deal with cases like Broom's.  State officials are looking at the effectiveness of the existing lethal injection method, as well as other lethal injections methods.  Governor Strickland states that the execution of Kenneth Biros, scheduled for Dec. 8, will be postponed if the new protocols are not established.  Richard Dieter, executive director of the Death Penalty Information Center, says that other states are also working on their death penalty protocol and will be waiting for Ohio's outcome.  The Supreme Court has already ruled in Baze v. Rees that the lethal injection method used does not meet cruel and unusual punishment.  Some proponents of the death penalty wonder what all the fuss is about.  In a recent Sixth Circuit opinion addressing Broom's execution, Judge Jeffrey S. Sutton stated that Ohio's lethal injection procedure had been proven humane when Strickland called off the execution.  The "approach removes the foundation for an Eighth Amendment claim.  It does not lay the groundwork for one."  Most executions happen without complication, an example is Alabama death row inmate Max Payne executed last week. Payne was the 40th person in the United States to die by lethal injection this year. 

Blog Scan

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New CSPAN Programs on the Supreme Court:  Thanks to Anna Christensen at SCOTUSblog for posting this link to CSPAN's Supreme Court website, and for informing on the new "Supreme Court Week" programs available at the site.  CSPAN's offerings include: an interview with Joan Biskupic and SCOTUSblog's Lyle Denniston on the role of journalists at the Court; an interview with the Supreme Court's Clerk, William Suter, on the traditions of the Court, the process people must go through to get the Court to hear their cases, and his job during Oral Argument in the Supreme Court Chamber; and beginning sometime this evening, interviews with the Supreme Court Justices.  Orin Kerr posted his reaction to the CSPAN coverage early this morning.  Howard Bashman has also posted a link to the University of Michigan Law School's video of "A Conversation with Chief Justice John G. Roberts."

Interesting Article on "Semi-Voluntary Acts":  At Sentencing Law and Policy, Doug Berman posts a link to Deborah Denno's upcoming article, "Consciousness and Culpability in American Criminal Law," and asks "[h]ow might we punish semi-voluntary acts?"  Berman's question comes from reading the article's abstract, which proposes to that criminal law recognize a third category of "semi-voluntary acts."  Denno, a Fordham University professor (whose writings on lethal injections were used in Baze v. Rees), explains that our criminal law currently recognizes voluntary or involuntary acts.  If a crime is voluntary, the defendant is criminally liable; if involuntary (like murder while sleepwalking), then he may be acquitted.  Her article discusses research showing "that the boundaries between our conscious and unconscious states are permeable, dynamic, and interactive."  She proposes that criminal law recognize "semi-voluntary" acts so that individuals who commit crimes while sleepwalking will be less likely to be acquitted.  That could be the result, or "semi-involuntary" could become a new way to argue insanity.

International Comparisons of Juvenile LWOP:  CrimProg Blog posts a link to Bernard E. Harcourt's Balkinization blog post "The Supreme Court and Juveniles: International Comparisons."  Harcourt felt compelled to research the National Organization of Victims of "Juvenile Lifers" challenges to the claim that the United States is the only jurisdiction to sentence minors to life imprisonment without parole.  Harcourt unearthed information on international comparisons at the Center for Law and Global Justice at the University of San Francisco, and concluded that the United States is the only country to sentence juveniles to life without parole.  Harcourt reaches this conclusion, and comments, "this naturally raises the next question: whether international norms should inform the Supreme Court's consideration of domestic constitutional values."  He believes "this is a bit of a scholastic debate that seems to (overly) preoccupy some legal academics, a couple of Supreme Court justices, and most right-wing talk show hosts[,]" but still thinks it is "telling" that the U.S. is alone in sentencing juveniles to LWOP.  Harcourt appears happy "just let the Scholastics debate this one..."

News Scan

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California Inmates Claim the Governor Did Not Comply With Panel's Requirements:  Sacramento Bee writer Denny Walsh reports that the attorneys for Californian inmates have asked the panel to hold Governor Schwarzenegger in contempt for not complying with the panel's order to submit a plan to reduce California's prison population.  The panel found that prison overcrowding is the main reason inmates are receiving inadequate health care, and that care violates the Eighth Amendment's ban on cruel and unusual punishment.  The inmates' attorneys said, in response to the plan the Schwarzenegger administration submitted, "essentially [they] have told the court that they will reduce the prison population as the state sees fit, to a level the state deems appropriate, and in a time frame the state has set for itself."  In response to the claim, Schwarzenegger's spokeswoman Rachel Cameron said,"The state filed a plan that complies with population reduction and does not create risk to public safety, and we continue to object to the panel's arbitrary cap under a two-year timeline and are continuing our appeal to the U.S. Supreme Court."   

Effects of the Stop and Frisk Rule:  Associated Press writer Colleen Long reports on the mixed reviews of the stop and frisk rule.  In 1968, the Supreme Court held in Terry v. Ohio that if police have reasonable suspicion they can stop and frisk a suspect.  When a suspect is stopped, they could be questioned, patted down, or have their bag or backpack searched.  Civil liberty groups claim that the practice is racist and it fails to deter crime; but police departments maintain it is a necessary tool that turns up illegal weapons and drugs, and prevents more serious crime.  In the mid-1990s, Mayor Rudy Giuliani and New York Police Department made stop and frisk an integral part of the city's law enforcement procedure because they believed targeting low level offenses help prevent the bigger ones.  The increase of street stops resulted in an overall drop in the city's crime. Currently, the number of street stops are increasing throughout the nation.  In Philadelphia, stops have nearly doubled from 2007 to 2008, and in Los Angeles stops have doubled in the past six years.  Police in major U.S. cities stop and question more than a million people a year.  We've supported these stops in the past.  Most recently in our brief Arizona v. Johnson

Indiana Court Finds No Warrant is Needed For DNA Sample:  CBS blogger Declan McCullagh reports that on September 30, an Indiana Court of Appeals held that police do not need to obtain a search warrant before getting a DNA sample from them.  The case, Artho Garcia-Torres v. The State of Indiana, deals with the conviction of Artho Garcia-Torres for rape and attempted rape of two female Valparaiso University students.  In this case, police obtained a DNA sample from Garcia-Torres without a warrant. The defense argues that the Fourth Amendment prohibits the police conduct because it is an unreasonable search and seizure.  Courts are split on the issue.  In Minnesota, a state appeals court ruled that such conduct violates the Fourth Amendment, but in Virginia, a state court said that it's "no different in character than acquiring fingerprints upon arrest."  One federal court has addressed the issue by saying that if a judge or grand jury determine there is probable cause, a swap test is permissible upon arrest.  As new DNA testing laws are enacted, questions surrounding the constitutionality of the practice becomes more prevalent.

Alabama Death Row Inmate Executed:  Birmingham News writer Tom Gordon reports on the  execution of death row inmate Max Landon Payne.  Payne died by lethal injection on Thursday -- with no incidents -- in Holman Correctional Facility's chamber.  In 1994, Payne was sentenced for the 1992 robbing, kidnapping, and killing of Cullman County store owner Braxton Brown.  Brown was killed by two shotgun blasts to the face.  Alabama has no other scheduled executions.

Cal. Governor's Race

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The future direction of criminal justice policy in the formerly golden state will, of course, be strongly influenced by who is elected the next governor. Here is a recent Field Poll on the primary races.

On the Democratic side, Jerry "I'll Do It Right This Time" Brown has a strong lead over SF mayor Gavin "Whether You Like It or Not" Newsom. DiFi would trounce them both if she ran, but she isn't going to.

On the Republican side, Undecided holds an early commanding lead at 49%, but this is widely expected to slip by election day.

Among corporeal candidates, Meg Whitman has a slim lead of 22% over Tom Campbell's 20% with Steve Poizner at 9%.

Crime policy could be critical in the Republican primary. Whitman took a strong stance at CJLF's last board meeting, as noted here. Campbell appears to have imbibed the let-em-out kool-aid. Poizner also appears to be stronger than Campbell on crime, although we haven't heard much from him yet on that topic. With the candidates having similar messages on economic matters, crime could be the tie-breaker for many Republican primary voters.

Interesting, there is practically no gender gap in the Whitman-Campbell match. With the numbers rounded off to integers, Whitman is ahead 2% overall, 2% among men, and 3% among women, essentially no difference. Perhaps Republican voters don't give a hoot about identity politics, an indication we are indeed moving forward.

Duct Tape

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Duct tape, we all know, is the versatile wonder product that seems to be good for everything except taping ducts. Unfortunately, criminals find it useful for binding victims.

If they are foolish enough to keep possession of the roll, though, matching the strip on the victim to the remaining roll can be an important piece of evidence. Bill Lindelof of the SacBee has this story on a UC Davis study on the reliability of such matches.

Blog Scan

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The Other Side of the Innocent List:  At Homicide Survivors, Dudley Sharp posts a draft of his article, "The Innocent Executed: Deception & Death Penalty Opponents."  Sharp's article is meant to balance the anti-death penalty presentations of the cases that landed so-called "innocents" death row.  Some of the so-called innocents examined in Sharp's article include Roger Coleman, Ruben Cantu, Roger O'Dell, Gary Graham, Larry Griffin, and even infamous killers Sacco and Vanzetti. Sharp urges readers to "[a]vail yourself of reviewing, at least two contrasting positions, so you can make a, somewhat, informed decision." 

Recapping Maryland v. Shatzer This morning, SCOTUSblog posted a recap of Monday's oral arguments in Maryland v. Shatzer.  In the post, Diana Gillis a Georgetown Law student and Akin Gump summer associate, sums up the major points made by Maryland, the Solicitor General's office, and Shatzer.  She writes that much "of the argument focused on the substantive scope of Edwards and Miranda, as well as the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel."  She also summarizes the three rules, proposed by Justices Stevens, Breyer and Scalia, that would change our understanding of the federal rule.  Our summary of the oral arguments is available here.

Death Penalty May Be Key to Claiming Massachusetts' U.S. Senate Seat:  Sentencing Law and Policy blogger Doug Berman provides a link to a Boston Globe article reporting on Massachusetts' Senator Scott Brown's support of the death penalty.  In his article, Matt Viser writes that Brown, the most prominent Republican in the race for US Senate, has come out in support of the death penalty in order to distinguish himself from Democratic candidates. Apparently, all four candidates running in the Democratic primary oppose the death penalty, and some have recently began attacking each other.  Earlier this week, U.S. Representative Michael Capuano went after Attorney General Martha Coakley's limited past support for the death penalty.  In a campaign video, Brown states, "My Democratic opponents Martha Coakley and Mike Capuano are having an ongoing debate over who's more liberal.  Each one is trying to be softer on crime than the other. Unlike both of them, I support the death penalty."

News Scan

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Al Qaeda Terrorist Wont Face Death: A New York Daily News editorial chastised the Obama Administration for their treatment of Al Qaeda murder suspect Ahmed Khalfan Ghailani, who they decided will not be tried by a military tribunal nor face the death penalty.  Ghailani is accused of killing 224 people and participating in the bombing of a U.S. embassy in Tanzania.  Ghailani is the first detainee to be removed from Guantanamo and will be tried in a Manhattan Federal Court where Attorney General Eric Holder has barred the Manhattan US attorney from seeking the death penalty.  The reason for barring the death penalty is unclear, but a Justice Department spokesman did refer to an agreement with foreign governments that extradited earlier embassy bombing defendants to the United States.

Children Exposed to Violence: Associated Press writer Devlin Barrett reports that the Justice Department has found that more than 60 percent of children surveyed were exposed directly or indirectly to violence within the past year.  According to the report, found here, nearly half of the children surveyed were assaulted at least once in the past year, and about 6 percent were victimized sexually.  The survey consisted of 4,549 children and adolescents, aged 17 and younger being, interviewed on the telephone.  Leading criminologists warn that the the survey may be lumping serious and minor incidents together.  James Alan Fox, criminal justice professor at Northwestern University, says, "[w]hat concerns me when you hear numbers like that is that in their attempt to be inclusive, which is commendable, the definition of violence becomes so broad that the results lack real meaning."  The beating death of Derrion Albert has sparked the public's interest in youth violence around the country.  While in Chicago to meet with officials to discuss Albert's death, Attorney General Eric Holder said that "those numbers are astonishing, and they are unacceptable."  The tragic circumstances of Albert's death has caused a lot of talk about reform in Chicago.  Yesterday's news scan discusses a proposal to cut down on violence in Chicago's public schools. 

New Hampshire is Reevaluating the Death Penalty:  Portsmouth Herald writer Beth LaMontagne Hall reports that New Hampshire's Death Penalty Task Force Study Commission is meeting Oct 21, to examine the state's death penalty law.  The public outcry over the recent murder of Kimberly Cates could cause some Commission members to take a serious look at expanding the current law.   Cates was killed Sunday morning in her home while her husband was away on a business trip.  Her 11-year-old daughter was also attacked, but is expected to live.  Four teens are being charged in connection with the incident.  Steven Spader, 17, and Christopher Gribble, 19, are being charged with first-degree murder, conspiracy to commit murder and attempted murder.  William Marks 18, and Quinn Glover, 17, are charged with burglary, conspiracy to commit burglary, and robbery.  Under the current law, Cates' murderers are not eligible to receive the death penalty.  State Representative Robert Cushing says, "I don't know  if any one particular murder will have an influence.  I think people there are still people who support the death penalty but who have concerns how it's administered and who selects it."

Blog Scan

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Binding States to the Second Amendment: Thanks to Doug Berman for posting a link to Michael Dorf's Findlaw article asking "Does the Second Amendment Bind the States?"  In his post, Dorf discusses the Supreme Court's decision in D.C. v. Heller, and points out Heller's footnoted invitation to gun right advocates to challenge state and local gun control laws, something that advocates have done with the case McDonald v. Chicago.  McDonald asks the Court to determine whether the Second Amendment applies to the states, and according to Dorf, "poses an intellectual challenge for the Justices who were in the Heller majority."  Dorf believes that because the Due Process Clause of the Fourteenth Amendment remains the basis for incorporation of most of the provisions of the Bill of Rights, the self-described textualists in the Heller majority are likely to struggle with the fact that the Constitution "does not mention a right to firearms possession as a limit on the states."  Dorf believes that the way the right will limit states is via substantive due process, or maybe the Privileges and Immunities Clause (if the Slaughterhouse Cases are overruled).  Dorf foresees this as a problem for Supreme Court textualists because it does not easily distinguish between enumerated and unenumerated rights.  Guess we'll know if Dorf's instinct is correct by the end of next June.

No Warrant Necessary for a Cheek Swab of DNA:  Orin Kerr posts on Volokh Conspiracy that an Indiana Court of Appeals has found that a cheek swab is "one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant."  Last week's decision in Garcia-Torres v. State found that because a cheek swab is less invasive than some searches allowed the reasonable suspicion doctrine, and because Supreme Court precedent allows a brief search of a suspect's outer clothing, a cheek swab may be conducted without a warrant.  Kerr is not sure that he agrees with the court's reasoning.  He points out that "the rule allowing pat-downs is an exception to the usual rule to account for the specific interest in officer safety," and that a DNA test is for evidence - not public safety.  He suspects the Supreme Court may someday have to decide this issue.  As far as Kerr knows district and state courts are divided on the issue, but the circuit courts are not split on the issue. 

Quick Thoughts on Graham and Sullivan Today, CrimProf Blog provides a link to Florida State University College of Law Professor Dan Markel's Graham and Sullivan post on PrawfsBlawg.  In his post, Markel "faces off" against a position that he believes Florida's Solicitor General, Scott D. Makar, is likely to take during oral arguments.  Markel believes that Makar is going to have to explain how LWOP for juveniles comports with what he believes is the Supreme Court's rationale in Panetti v. Quarterman - that "punishment... is basically a form of communicative retributivism."  Markel does not believe that LWOP for juveniles is a very good "interlocutor[] of communicative punishment."  Markel develops his theories in his paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment, where he argues "[b]eing a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed."  For this reason he believes that Makar might have a hard time arguing that Panetti does not apply to this case because Panetti dealt with the death penalty, and "death is different."  We'll find out when Makar appears before the Court on November 9th.     

News Scan

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The Supreme Court to Consider Whether Dog Fighting Videos are Protected by Free Speech:  New York Times writer Adam Liptak reports that the Supreme Court is questioning the constitutionality of a 1999 federal law banning commercial trafficking in depictions of animal cruelty.  The case, United States v. Stevens, deals with the conviction of a Virginia man for selling dog fighting videos.  The conviction is being fought on the First Amendment freedom of speech grounds.  As reported in yesterday's Blog Scan, during yesterday's oral arguments the justices asked how the law would apply to many hypotheticals.  Justice Stevens asked, "what about hunting with a bow and arrow out of season?"  Justice Scalia asked, "what if I am an aficionado of bullfights, and I think, contrary to the animal cruelty people, they ennoble both beast and man?"  All the questions suggests that the Court believes the law is too broadly written.  The aim of the law was to eliminate crush videos.  These videos show women in high heels stepping on small animals to satisfy a sexual fetish.  Justice Breyer wanted to "ask congress to write a statute that actually aims at those frightful things it was trying to prohibit."

A Plan to Protect Those Likely to Be a Victim of Crime:  New York Times writer Susan Saulny reports on a plan by Ron Humberman, the new chief officer of the public schools in Chicago, to stop the killings of Chicago public school students.  A cellphone video capturing the beating death of high school student Derrion Albert brought to light the problem of students encountering violence on their way to and from school.  To find a solution Huberman first examined a study of 500 shootings that show statistically some students are at higher risk of violence than others.  His new plan gives those students who are most vulnerable to violence a lot of adult attention, including a paid job and local advocate.  Huberman realizes that his plan has its limitations.  For instance, Albert would not have been on the high risk list - his perpetrators would have been, but Huberman remains hopeful that the plan "will give us a fighting chance to identify those that are most in trouble."  Other cities will be watching this plan to see if it helps to solve the problem of youth violence.

DNA Backlog Prevents Capture of Repeat Offender:  Boston Herald writer Robert Napper reports that federal authorities had a DNA sample from Delmer Smith III, during the months he attacked numerous women in their homes, but were unable to process it for months due to DNA backlog.  Smith's DNA was collected when he was placed in a federal prison for a 1995 bank robbery.  The FBI received Smith's DNA sample on March 3, 2008, but the being one of the 295,000 samples backlogged, the sample was not entered into the database before his September 2008 release.  Police believe that Smith committed as many as 11 home invasion attacks in two Florida counties, Sarasota County and Manatee County.  On September 24, the DNA left in four of the cases was tested against Smith's sample, now in the database, and found to be a match.  Smith is being charged with armed home invasion, false imprisonment, and sexual battery. The FBI has implemented an automated system that will increase the processing capabilities, but the backlog remains a major problem.  

Prison Population and Crime

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Is the existing research on the effect of imprisonment on crime biased against finding an effect? Is the research cited with such confidence by the let-em-out crowd wrong?

On SSRN is a new study by Thomas Marvell of Justec Research. Here is the abstract (emphasis added):

This is a critical review of the literature concerning the impact of prison populations on crime. It summarizes 44 time series studies that use prison population in the crime equation, emphasizing problems of simultaneity and disaggregation bias. It briefly reviews studies that estimate the incapacitation impact of prisons by using criminals' individual crime rates, emphasizing problems caused by skewness of the crime rates and their relationship with arrest rates. Almost all the numerous problems with prior research bias results towards finding that prisons have limited impacts, and once the problems are addressed the best estimate of the elasticity of prison populations on crime is about 1.0.

Wow. This could be huge.

The final topic is the policy implications of this body of research. Perhaps the most obvious is that economists and criminologists have not been able to provide policy makers with credible estimates of the impact of prisons on crime and with useable advice about whether further prison expansion is worth the costs.  My conclusion is that the elasticity is roughly one, and that prisons are worth the costs, but other researchers believe that the elasticity is much smaller and that crime prevention money is best spent elsewhere.

In California, we have the administration confidently asserting that tens of thousands of prisoners can be released without danger to the public. The three-judge criminals' dream team rules with even greater confidence that even larger numbers can be safely released. But here we have an expert in the field telling us that the prior estimates by other experts are biased.

Jurors often say after the verdict that when the expert witnesses contradict each other, they just ignore them both and go with common sense. Maybe that's what we should do here.

Thanks to Doug Berman for noting this paper.

Firing Back in the Willingham Case

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The City of Corsicana, Texas, has responded to the report of Craig Beyler regarding the arson investigation of the case of Cameron Todd Willingham. Janet Jacobs had this story over the weekend in the Corsicana Daily Sun. The tone of the response is rather breezy for such a serious matter. The author is apparently a member of the Kozinski school of contractions. Even so, it provides more pieces to the puzzle.

From the opening paragraphs, it appears that the Forensic Science Commission gave the fire chief one month to investigate and respond to allegations about an 18 year old case. This tends to confirm the suspicions that the commission was engaged in a setup and the governor was correct to replace three members whose terms had expired.

On page 2 is this paragraph:

Dr. Beyler continually uses the phrase "standard of care." NFPA 921 speaks in terms of Recommended Practices and Standards. As I understand it, the phrase "standard of care" is usually used by lawyers and judges when talking about medical care. Corsicana runs an EMS service and that phrase is used to describe what a reasonably prudent EMT (or nurse or physician) would do under the same or similar circumstances based on accepted medical practices. The use of the phrase in this context leaves the impression that Dr. Beyler's report is being written much like an expert witness report in a lawsuit -- that is, Dr. Beyler is assuming the role of an advocate and not acting as an objective, independent voice. Given some of Dr. Beyler's distortions of the trial record, as described below, it may be that he has assumed the role of an advocate.

The response of the state fire marshal is not in yet. We look forward to that response. In the meantime, it would be good for everyone to remember that New Yorker Magazine is not Revealed Truth. I shouldn't have to say that, but people who really should know better (such as Jonathan Adler at VC) seem to be accepting the magazine story uncritically.

Ig Nobel Prize Stolen

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On the 2009 prizes themselves, they are listed here. The more-or-less crime-related ones are after the jump.

Blog Scan

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Will "Hardened Criminals" Really Respond to Lighter Sanctions?:  Sentencing Law and Policy blogger Doug Berman posts today on Robert H. Frank's New York Times piece "A Smarter (and Cost-Efficient) Way to Fight Crime."  The piece, published last Saturday, argues that law enforcement policy in the United States is flawed because it assumes "that crime will be deterred if the expected punishment is strong enough."  According to Frank, UCLA professor Mark Kleiman has argued that instead of making punishments more severe, the authorities should increase the odds that lawbreakers will be apprehended and punished quickly.  Kleinman makes his point in his new book, "When Brute Force Fails," where he argues that most criminals are not the dispassionate rational actors, and are more like impulsive children.  This means that they are less likely to consider the cost of punishment and more likely to react to swift punishment. Berman, Frank and Kleinman all appear to view the idea as revolutionary - particularly in light of state budget woes.   Another, not so revolutionary, idea?  Swift and harsh punishment that discourages all criminals regardless of whether they act rationally or impulsively.

Federal Law Criminalizing Animal Cruelty:  At SCOTUSblog, Lyle Denniston reports on Supreme Court oral arguments in U.S. v. Stevens, a case that tests the constitutionality of a federal law criminalizing commercial making and selling of  "any visual or auditory depiction" of killing or seriously abusing a living animal, if the conduct is illegal under either federal or a state's law. Denniston reports that despite the Obama Administration's best attempts to demonstrate that the law was carefully and narrowly crafted, most of the Justices implied that the law probably goes too far.  Only Justice Alito appeared to support the law as it is.  Several Justices appeared to believe that the law was too vague to clarify what was constitutional.  At one point during oral arguments Justice Breyer pointed out that because the law was unclear it could apply to the the stuffing geese for pate de fois gras and quail hunting.  This went far beyond what Deputy U.S. Solicitor General Neal K. Katyal argued to be the intent of the law - shutting down the robust market "crush videos," images of small animals being stomped to death.  Denniston does not believe that the federal law will survive, but predicts a decision in the next "several weeks."  Tony Mauro also predicts that the Supreme Court will strike down the law in his post on The Blog of Legal Times.


News Scan

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Los Angeles Makes Eliminating the DNA Backlog a Priority:  Los Angeles Times writer Joel Rubin reports that according to police figures the Los Angeles Police Department (LAPD) has cut its backlog of untested DNA from rapes and sexual assault cases in half.  In 2008, the LAPD had a backlog of nearly 7,500 untested kits collected from rape and sexual assaults.  That number has fallen to 3,157 because of the formation of a task force of police and outside experts that oversee the effort.  According to LAPD Chief William J. Bratton and Deputy Chief Charlie Beck, if the current pace of testing is kept, the backlog will by gone by the summer of 2011.  The 2011 date can only be reached if city officials continue to commit funds.  This task could prove difficult with LA's $400 million budget shortfall.  So far the DNA backlogs that have been tested matched the profiles of 405 men in the state's databases.

Supreme Court to Decide What is Cruel and Unusual Punishment for Minors: Wall Street Journal writer Jess Bravin reports that on Nov. 9th the Supreme Court will hear arguments on whether sentencing a minor to life in prison is cruel and unusual punishment.  Two cases dealing with the Eighth Amendment issue will be argued on the same day.  One case involves Joe Sullivan's sentence to life in prison, for breaking into a Pensacola, FL  home, stealing jewelry and coins, and raping the 72-year-old woman who lived there.  Sullivan had 17 prior offenses before being sentenced for the Pensacola crime.  More on Sullivan v. Florida found here.  The second case involves the armed burglary of a Jackson, FL barbecue restaurant with masks, and Graham bludgeoned the restaurant manger with a steel bar.  More on Graham v. Florida found here.  The Court is hearing the two cases separately, suggesting that it could distinguish the two cases based on their ages.  The Court is expected to rule before July.   CJLF's brief is here.

Sotomayor Proves She Is Not Shy:  Los Angeles Times writer David G. Savage reports on Justice Sonia Sotomayor's first day on the Supreme Court.  Justices of the past have chosen to slowly ease there way into the Court arguments by listening a few days before joining in.  However, Justice Sotomayor jumped right into the arguments.  Within the first hour she had asked 36 questions, keeping up with Justices Scalia and Ginsburg.  Her first day as a Supreme Court Justice, Sotomayor has maintained her image as a strong assertive judge.

Kindler, Escape, and Procedural Default

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On November 2, the Supreme Court will hear oral argument in the Philadelphia capital case of Beard v. Kindler. The case involves whether a federal habeas court should hear a claim that the defendant defaulted in state court. The case is all too common in one respect and highly unusual in another. It is common in that the federal court cavalierly brushed aside the state default rule as "inadequate" with its own inadequate analysis of that issue. The case is unusual, though, in that the default is not some omission by defendant's lawyer in arguing his case but rather defendant's own action in escaping from custody and fleeing to Canada. CJLF's brief in the case is here. The warden's reply brief is now in. After discussing the odd notion that discretionary rules are inadequate, it contains this gem of a paragraph:

Apparently recognizing this dilemma, Kindler resorts to mere chutzpah: he blames the Commonwealth, asserting that his forfeiture should be forgiven in federal court because the state is just trying to execute him without any review at all. But it was not the Commonwealth's idea to short-circuit the challenge to Kindler's sentence; he arranged all that by himself. He essentially said to the state courts, "so long, suckers," and now demands to know where his appeals went. They went across the border with him. That was the "appeal" he chose.

Perhaps Kindler will be the seminal case of the "so long, suckers" doctrine.

Juveniles and Handguns

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18 U.S.C. § 922(x)(2) bans the simple possession of a handgun by any juvenile. Does Congress have this authority? The First Circuit said yes yesterday in U.S. v. Rene E., No. 08-1974. The court rejected a Heller-based Second Amendment attack and also reaffirmed its earlier rejection of a Lopez-based challenge that this law does not come within the power of Congress under the Commerce Clause. Personally, I'd like to see the Commerce Clause challenge go up to the Supreme Court. The peoples of Arkansas and Massachusetts should be able to come to different conclusions regarding whether 17-year-olds can possess handguns.

Perhaps we should also have a limit on the length of statutes so that none will ever need a subdivision (x).

Ohio Developments

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Here is some coverage on developments in Ohio following the aborted execution of Romell Broom. The Sixth Circuit granted a stay to the on-deck murderer, Lawrence Reynolds, over a dissent by Judge Sutton. Governor Strickland then reprieved Reynolds' execution and that of in-the-hole Darryl Durr until March and April, respectively, to give the DoRC time to develop backup procedures for inmates with difficult vein-access problems.

Alan Johnson has this story in the Columbus Dispatch. Along with quoting the usual suspects (Richard Dieter and yours truly) he also quotes some of the comments made on the paper's web site. That's an interesting twist.

In the NYT, Bob Driehaus reports that Ohio AG Cordray "appealed to the United States Supreme Court on Monday to overturn the stay...."  Driehaus quotes Doug Berman, "The stakes are not just preserving this execution date but whether they can continue to administer the death penalty over the next few months." Update: The vacate-stay application is Strickland v. Reynolds, 09A322. It is submitted to Justice Stevens, the designated Circuit Justice for the Sixth, who will undoubtedly refer it to the full court.

Blog Scan

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Denials of Certiorari on Opening Day:  SCOTUSblog has been busy reporting on the Supreme Court's opening day.  Kent noted earlier that the Court had denied certiorari in Ryan v. Styers, and SCOTUSblog's Most of the cases address First Amendment and civil law issues.  Kent's post contains information on the death penalty cases that the Supreme Court has not yet addressed, but Christensen posts information on the criminal cases Holmes v. Louisiana, involving an appeal from a death row inmate who has claimed that developmental disabilities caused by fetal alcohol syndrome make her ineligible for execution; and Mikos v. United States, which covers the Court's denial of an appeal of the conviction of a doctor who allegedly shot a nurse to prevent her from testifying against him in a Medicare fraud case, when the defense claimed prosecutors encouraged the jury to focus on the doctor's failure to testify on his own behalf.

How Does the Supreme Court "Decid[e] a case"?:  Perhaps in anticipation of opening day at the Supreme Court, Joel Jacobsen posted on Judging Crimes on a New York Times article discussing the number of cases "decided" by the U.S Supreme Court.  Jacobsen's post critiques "the assumption on which the article rested: that 'deciding a case' is a fixed and meaningful category, and therefore a rational way to analyze the court's output."  According to Jacobsen, in recent years the Supreme Court has not been "deciding cases" so much as utilizing a new way to make law.  Jacobsen looks to the length of Supreme Court opinions to prove his point.  He points out that in most recent volumes of the U.S. Supreme Court reporter, the Court has authored opinions that exceed 80 pages.  He argues that the lengthy opinions are a departure from the common law practice of judicial law making (where judges would decide cases and then retrospectively abstracting doctrine from the decisions), and is now doing the opposite: announcing new abstract doctrine and then applying it to the particular case that provided the excuse for announcing the doctrine.

A Hold Executions in Ohio: 
At Sentencing Law Policy, Doug Berman has posted a report on the Sixth Circuit's grant of a stay for the October 8 execution of Lawrence Reynolds, as well as a post on Ohio Governor Ted Strickland's decision to "halt to all executions in the state until at least 2010." The post is ambiguous on whether Governor Strickland also intended to delay the execution of Kenneth Biros, who is scheduled for execution on December 8, 2009.  The Governor's statement only issues reprieves to Lawrence Reynolds and Daryl Durr until 2010, still no word on Biros.

New Justice on the Bench:  Tony Mauro writes on The Blog of Legal Times that "Justice Sonia Sotomayor lived up to her billing as a forceful questioner today as the Supreme Court opened its fall term..."  He reports, that unlike some new justices, Justice Sotomayor was a "frequent interrogator, often formulating her queries as a prosecutor or trial lawyer might: declarative statements about an aspect of the case, followed by the question, 'Correct?'"  Mauro also reported that the new seating arrangements gave both Justices Thomas and Breyer new perspectives on the courtroom.  Mauro writes that both spent "several minutes during arguments peering at the marble friezes of lawgivers on the walls of the Court high above them..."  Jonathan Adler also has a post on Volokh Conspiracy reporting on a Washington Post article asking legal experts to comment on what they expect from Justice Sotomayor during her first term.

The Embassy Bombing Case

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Very few crimes should be both capital and federal. The bombing of U.S. embassies in Africa in 1998 is among the few. The last time conspirators in this plot were tried, they got off with life because of the federal system's ill-advised single-juror-veto rule. Instead of requiring the jury to deliberate until it is unanimous one way or the other (as we do in California), a single juror can effectively veto the considered decision of the other eleven just by holding out.

Today, Larry Neumeister reports for AP, "The U.S. government has decided not to seek the death penalty against a Guantanamo detainee charged in the 1998 bombings of two U.S. embassies in Africa.... Authorities allege [Ahmed Ghailani] was a bomb-maker, document forger and aide to Osama bin Laden. The attacks at embassies in Tanzania and Kenya killed 124 people, including 12 Americans."

If he made the bomb knowing what it was going to be used for, he certainly deserves the death penalty. Hopefully, we will have some further explanation for this decision later.

Candy Causes Crime?

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The classic example for the fundamental principle that correlation does not prove causation is the ice cream/crime connection. Daily spikes in the rates for aggravated assault are correlated with spikes in sales of ice cream. Therefore, ice cream causes crime and we should ban it, right? Wrong. Hot weather causes people prone to assault to commit more assaults and people who like ice cream to buy more ice cream.

The reason the example is classic is that the hypothesized direct causal connection (that ice cream causes crime) strikes us as so patently absurd (in jargon, lacking facial validity) that the students instantly know something is amiss. Where the causal connection is plausible, though, we see exactly the same fallacy put forth and accepted by too many too often. The correlation between poverty and crime "proves" that poverty is the root cause of crime, for example. Too many people see no need to probe further.

Now we see a serious proposal that comes close to the classic example. Does candy cause crime? Jennifer Thomas reports in USN&WR:

Children fed candy and sweets on a daily basis are more likely to be convicted of violent crimes as adults, a new study finds.
As Kent noted earlier today, the U.S. Supreme Court heard oral arguments in Maryland v. Shatzer first thing this morning.  The transcript is available here. Today's arguments over the Edwards' rule - that police must cannot initiate questioning of a custodial suspect once he requests an attorney - provide an interesting discussion of just how far Edwards' rule must reach. The arguments also provided some interesting debate over what exactly Miranda was meant to protect.  
The US Supreme Court's official opening-of-the-term orders list is here. You can expect slow response time during the first hour or so.

"They can't reverse them all," the unofficial motto of the Ninth Circuit, is confirmed once again, as the Supreme Court denied certiorari of the Ninth's patently wrong reversal of yet another death sentence in Ryan v. Styers. CJLF's amicus brief in that case is here. Twenty years ago this December, James Styers told 5-year-old Christopher Milke, his girlfriend's son, that he would take him to a shopping mall to see Santa Claus. Instead, he took little Christopher out into the Arizona desert and put three bullets in the back of his head.

On the brighter side, the Ninth's equally erroneous decision in the Belmontes case, a case in which its judgments have already been vacated twice by the Supreme Court (cites here), is not out of the woods yet. Belmontes was on the conference list but is not on the orders list. That means (1) the state's petition will be considered again at another conference; or (2) the Court is preparing a summary reversal opinion.

In arguments today, Maryland's AG Gansler is personally arguing Maryland v. Shatzer, on the question of whether the Edwards v. Arizona "don't ask again" rule for invocation of the Miranda right to counsel is perpetual. Tricia Bishop has this story in the Baltimore Sun. Lauren's brief for CJLF as amicus is here.

AP has this brief story on denial of certiorari in Holmes v. Louisiana, No. 08-1359, a broad challenge to the death penalty in that state.

More on not (yet) denied capital cases after the jump.

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Review of Study on Death Penalty Reversals:  Homicide Survivors posts "A Broken Study," Dudley Sharp's critique of James Liebman's notorious "A Broken System: The Persistent Pattern of Death Penalty Reversals in the United States," along with its 2002 updates. Sharp finds that less than 30% of the 5555 death sentences handed out between 1975-1995 were overturned because of error.  This contradicts the study's conclusion that 68% of the death sentences were overturned because of error.  The post goes on to say that "[e]ven the 30% is too high, because some of those cases were overturned because of either new legislative or case law that didn't exist at the time of the trial."  Dudley Sharp then offers up some criticisms by others of the study's review of Pennsylvania, Florida and Nevada death sentences.  In Nevada, for example, the AG responded that "death penalty records are kept by the Nevada Supreme Court, Attorney General, Department of Prisons, 17 district attorneys and 17 court clerks, yet Liebman got his from criminal defense attorneys (who apparently reported their wins, but not their losses) and the NAACP Capital Punishment Project...."

Two Different Ninth Circuit AEDPA decisions:
  At Sentencing Law and Policy, Doug Berman has a quick post on Jones v. Ryan and Libberton v. Ryan, two Ninth Circuit cases granting habeas because the defendant received ineffective assistance of counsel.  Jones reversed the district court's denial of habeas because counsel failed to: 1) secure the appointment of a mental health expert; 2) timely move for neurological and neuropsychological testing; and 3) present additional mitigation witnesses and evidence.  Libberton affirmed denial of habeas as to the guilt phase of petitioner's trial, but reversed as to the penalty phase where counsel failed to call a sufficient number of mitigating witnesses and to pursue evidence of another perpetrator's primary responsibility for the crime.  Berman comments: "Though I think the Ninth Circuit has generally failed to live up to its (deserved?) liberal reputation in much of its post-Blakely and post-Booker non-capital sentencing jurisprudence, the judges on the Ninth Circuit continue to find ways to reverse capital sentences...."

En Banc Hearing in Ninth Circuit Search Case:  Eugene Volokh posts on Volokh Conspiracy that the Ninth Circuit has agreed to to rehear a Fourth Amendment search case addressing the search of a family member's home for a suspect's weapon.  Millender v. County of Los Angeles addressed the search of a felon's foster mothers' home after police heard the felon might be staying at his foster mothers'.  The police obtained a warrant for "all firearms and firearm-related items."  When they searched the house, police did not find Bowen or the gun with which he had committed the crime, but they did find and seize "Mrs. Millender's personal shotgun ... and a box of 45-caliber ammunition."  Mrs. Millender then sued, claiming the search violated the Fourth Amendment.  In May the Ninth Circuit held that the defendant police officers were shielded by qualified immunity because the search was authorized by the warrant, and that this would be so even if the warrant was unconstitutionally overbroad.  Concurring Judge Fernandez agreed that the officers were shielded by qualified immunity because of the warrant, but concluded that the search was indeed unconstitutional.  Dissenting Judge Ikuta concluded "no officer of reasonable competence could have thought [the] affidavit established probable cause to search for the items listed in the warrant."  Stay tuned for the Ninth's en banc ruling.

SCOTUSblog with a UK Accent:   Kristina Moore posts on SCOTUSblog that barristers at Matrix and solicitors at Olswang LLP have launched UKSC Blog to cover the United Kingdom's new Supreme Court.  The United Kingdom's Supreme Court opened for its first session yesterday and has already handed down it's first decision, in the JSF (or Jewish Free School) case.  UKSC Blog reports on the decision as well as opening day at the Court.

News Scan

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David Wells Recants Documentary Story: New York Times writers Michael Cieply and Brooks Barnes report that former Los Angeles Deputy District Attorney David Wells lied about conversations he had with Judge Laurence J. Rittenband involving Roman Polanski.  Wells had been interviewed for a documentary about Polanski and then lied about his role in the case.  Wells had given a detailed description of a fabricated conversation with Judge Rittenband to the documentary.  In it, Wells claimed that he had given sentencing advice to the judge, and that Judge Rittenband followed his advice.   Polanski plead guilty to one count of having sex with a minor after a 1977 encounter with a 13-year-old girl, but then fled the country.  After 32 years, Polanski was arrested last Saturday in Switzerland and facing possible extradition. Before his arrest, Polanski's attorneys had asked a Los Angeles court to throw out his case, or allow another court to review the case, due to alleged corruption.  The matter is still pending in an appellate court.  Wells says, "I am embarrassed about the whole thing.  I regret it.  I embarrassed the DA's office."

Maryland Now Has Stricter Guidelines to Seek the Death Penalty: Annapolis' Capital Newspaper writer Liam Farrell reports on Maryland's new law that says capital punishment can only be imposed in cases with a videotape confession, or in cases where biological, DNA or videotaped evidence conclusively links a defendant to a murder.  Cases relying on eyewitness testimony are ineligible.  Frank Weathersbee, the state's attorney for Anne Arundel County, says that Maryland rarely uses the death penalty and that it probably will not affect the status quo.  This new law is part of Governor Martin O'Malley's three year attempt to repeal Maryland's death penalty. State Senate President Thomas V. Mike Miller Jr. is skeptical that the issue will be addressed before the 2010 elections.  He said that the Senate debate only lasted a few minutes before  a repeal was discarded and instead they put limitations on the use of capital punishment.  Governor O'Malley is not sure whether he will continue his fight to repeal the death penalty, but does see the limitations as a positive step. 

Kentucky's Sex Offender Law Will Not Apply to All:  Associated Press writer Roger Alford reports that in a 5-2 decision the Kentucky Supreme Court ruled that a 2006 sex offender law barring sex offenders from living within 1,000 feet of schools, day care centers, and playgrounds is unconstitutional when applied to those convicted before the law was passed.  The majority wrote that the law is punitive because it applies to sex offenders retroactively.  Attorney Bradley Wayne Fox challenged the law for a man convicted on statutory rape in 1995, and arrested in 2007 for living 1,000 feet within a public park.  Judge Abramson dissented from the decision, "because our democratic system leaves such policy up to the legislature, and because I agree with several other courts that have held that retroactive sex offender residency restrictions do not exceed legislative authority to address vital public safety concerns."  The Kentucky Attorney General's office is deciding whether to appeal the decision to U.S. Supreme Court. 

Justice Thomas on Oral Arguments

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Miriam Rosen of Texas Lawyer reports on a conversation between Justice Thomas and Ted Olson at SMU:

In response to Olson's questions about the value of oral arguments, Thomas said that sometimes they made a difference but rarely did they change votes, and never did they make a difference on a sustained basis. Olson asked if oral arguments should be dispatched with altogether. Thomas said no but that the other court members should let the advocates talk rather than peppering and interrupting them with questions. He said, "I have no idea what they are doing," about his fellow justices who speak more often in oral arguments and speculated that other justices may be seeking "to get a chuckle out of the audience."
Hat tip: SCOTUSblog.

More on Mosley and Wood

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On Sept. 24, we noted the stay of execution in the Texas capital case of Mosley v. Thaler, No. 08-9991. Mosley contends, and the State disputes, that the case is similar to the Alabama case of Wood v. Allen, set for argument Nov. 4. Yesterday, the Court put the Mosley case on the Oct. 19 conference list. If certiorari is denied on Oct. 19, the stay automatically terminates. If the case is "relisted," then they probably are holding it for Wood.

Blog Scan

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No Delay for Ohio Execution:  At Sentencing Law and Policy, Doug Berman writes that the Ohio Supreme Court has refused to delay the October 8 execution of Lawrence Reynolds Jr.  Yesterday's News Scan reported that Lawrence Raymond Reynolds Jr. had claimed Ohio's execution protocol was inadequate and had requested a stay.  Today, Alan Johnson of the Columbus Dispatch reported that the Ohio Supreme Court "dismissed the appeal and denied the stay request, both on 6-0 votes."  Berman predicts that the Sixth Circuit will grant a stay.

The Outer Limits of Edwards v. Arizona:  At CrimProf Blog Don Dripps and Yale Kamisar discuss upcoming Supreme Court case Maryland v. Shatzer, a case where the facts "read almost like a question on a law professor's criminal procedure exam."  Shatzer addresses whether the incriminating statements of a child molester, made almost three years after he first invoked his right to an attorney, are inadmissible under Edwards' rule that when a suspect asserts his right to counsel the police cannot re-initiate interrogation. The Maryland trial court ruled that Edwards did not prevent use of the defendant's statements, but the Maryland Court of Appeals reversed. The court of appeals was unable to find any case that relied "solely upon the passage of time factor standing alone" (emphasis in the original) to conclude that the Edwards protection had expired.  Dripps and Kamisar predict that the Supreme Court will overrule the court of appeals' decision.  They believe that "odds are high that the Court will say that no reasonable suspect could possibly believe that the police were pestering him if they had "tried again" 31 months after their first meeting with the suspect."  The Supreme Court will hear arguments on Monday, October 5th.  CJLF's brief in the case is available here.  Orin Kerr has a quick post on Dripps and Kamisar's piece on Volokh Conspiracy.

Pilot Program to Protect Maryland Domestic Abuse Victims:
  Jordan Weissman writes for The Blog of Legal Times that courts in Montgomery County, Maryland are launching a new program to safeguard domestic abuse victims.  The program will allow victims to file protective orders without ever setting foot in court.   Instead, they will file protective orders from the Montgomery County Family Justice Center, and have judges hear their requests via a video link to the courthouse.  The program is meant to respond to instances where women were killed by their abusers at or near courthouses in Maryland.  According to Chief Judge Ben Clyburn of the District Court of Maryland the program is patterned after a model used in San Diego, where courts have also adopted video conferencing to protect abuse victims.

Petition for Cert. in Exclusionary Rule Case:  Today, on Volokh Conspiracy, Orin Kerr posts snippets from his petition for certiorari in McCane v. United States.   According to Kerr, McCane addresses "[w]hether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional."  He, and co-counsel William H. Campbell, argue that Court should grant certiorari because this particular exclusionary rule question "is raised every time a court issues a ruling in a defendant's favor that departs unexpectedly from earlier decisions. Criminal defendants with similar cases still in the pipeline will invoke the new ruling in support of suppression. The question is, does the new case apply in full force so that the evidence is suppressed? Or does the good-faith exception to the exclusionary rule apply so that the evidence is admitted?" Kerr's petition, written on behalf of defendant Markice McCane, addresses the Tenth Circuit's conclusion that McKane's conviction for being a felon in possession of a firearm should nevertheless be upheld because the good-faith exception to the exclusionary rule applied.   The search revealing McKane's possession of the gun was conducted before Arizona v. Gant overruled New York v. Belton.

Supreme Court Irrelevant?:
  Wall Street Journal Law Blogger Ashby Jones posts on Barry Friedman's New Republic article "Benched. Why the Supreme Court is Irrelevant."  According to Jones, Friedman's main point is that the Supreme Court is becoming irrelevant as it continues to regularly punt "on the big issues of the day."  Friedman faults the Roberts court for looking to avoid trouble by taking fewer hot-button cases and by handing down rulings on relatively narrow grounds on the big cases they have decided to take.  He believes the Court's actions are largely a matter of politics.  A skeptical Friedman writes, "don't expect much in the way of blockbusters from the Roberts Court anytime soon. Stuck between political forces on the left and conservative disarray on the right, the Court will most likely continue to creep rightward with no bold agenda."


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CSPAN has this poll on the US Supreme Court, taken Sept. 17. Question 11 asks, "Of the following list, which issue or issues do you think the U.S. Supreme Court should deal with more often?" Capital punishment ties for first, with free speech, at 32%. (Multiple responses were permitted.) That does not bode well for Doug Berman's quest to have the Court take fewer.

Interestingly, the desire for the Court to take more capital cases is highest among Democrats and lowest among Independents, with Republicans in the middle. I suspect that people with strong views on the issue either way tended to choose this issue, with opponents wanting the high court to reverse more death sentences and supporters wanting it to reinstate more.

As Doug notes, no new capital cases were taken on the long conference list released yesterday, discussed here, but there are already three on the docket for the term: Spisak, Kindler, and Wood. So this term will not be unusually light on capital cases, even if they take no more. (And I do expect them to take more.)

Texas Forensic Science Developments

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For a very long time, the anti-death-penalty crowd has been desperately seeking proof of an innocent person who has been executed. For many years, Roger Coleman of Virginia was their poster boy, despite the fact that the limited DNA testing available before his execution confirmed his guilt to substantial degree. He even made the cover of Time Magazine. When the definitive test was done with improved technology years later, it proved his guilt beyond doubt, and the people who had proclaimed him certainly innocent were publicly shown to be the dishonest people they are.

Then they dug up Ellis Wayne Felker. The test in that case was inconclusive. The search continued.

The latest darling is Cameron Todd Willingham.  For background, see this article by Janet Jacobs from the local newspaper, the Corsicana Daily Sun.  This story includes this nugget:

From his seat at the defense table, attorney David Martin's job was to fight tooth and nail for Willingham. Once it was over, though, Martin became convinced his client was guilty. He dismisses the Beyler report as propaganda from anti-death penalty supporters.
"The Innocence Project is an absolute farce," Martin said. "It's a bunch of hype, in my opinion."
In these actual innocence claim cases, it is not unusual for the trial prosecutor to stand by his case, but I do not recall one where the original defense lawyer is also convinced his former client was indeed guilty as charged.

The New Yorker Magazine, unsurprisingly, has a different take in this article by David Grann.

The dispute turns on arson investigation, and the Texas Forensic Science Commission had scheduled a meeting on Friday to consider a report on the case. However, the terms of four of the members expired on September 1. Gov. Rick Perry has decided not to reappoint three of them. The new chairman has decided to postpone the meeting until the new members acquaint themselves with the issues. Janet Jacobs, once again, reports on the case for the local paper.

The Dallas Morning News is predictably outraged, with this story by Christy Hoppe. How many loaded words can you count in the story? The new appointee to the commission chair is "conservative" and "hard-core." The author of the report is "a nationally recognized fire expert." The predictable Barry Scheck is prominently quoted with a predictably incendiary comparison to President Nixon's "Saturday night massacre" firing of Archibald Cox. Not until half-way down the story does the reader who reads that far find out that the governor did not fire anyone but rather declined to reappoint people who terms had expired, a major difference.

Missing from the story is any mention of the concerns I have heard, albeit second-hand, that the hearing was a set-up and the commission was not going to give the Texas fire marshal's office a fair chance to respond.

The commission has nine members. Replacement of three is not going to produce a whitewash. A pause for the new members to get up to speed and to conduct a fair hearing may produce a report that people can have more confidence in.

On War, Obama Could Turn to GOP

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Tell the truth, now. From the title of this post, you were expecting a link to a satire in The Onion, weren't you? No, that is the headline of a real news story in the venerable Washington Post by Scott Wilson.

This development presents a challenge for the writers at the aforementioned Onion. Satire needs to be a step more ridiculous than reality, but reality is a moving target.

This doesn't really have anything to do with the topic of this blog except for the general point that you cannot take anything for granted in politics, which does, of course, impact crime. It was just too good to pass up.

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