November 2009 Archives

Blog Scan

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PTSD Made Him Do It:  Lyle Denniston reports over on SCOTUSblog that the Supreme Court has "put defense lawyers on notice that they should be prepared to use evidence of 'post-traumatic stress disorder' to try to save accused veterans from the death penalty."  According to Denniston, the Court's decision to overturn the death sentence of George Porter, Jr., in Porter v. McCollum (08-10537), reflects the Court's desire to protect a veteran's right to a fair trial, and is "a sign of the times for a nation at war on two fronts[.]"  Porter was convicted for murdering his former girlfriend and her boyfriend in 1986.  Today, the Court sent his case back to the Eleventh Circuit.  The Court reasoned that if jury had heard about Porter's wartime experiences and other evidence about mental problems, it might well have refused to recommend a death sentence.  Tony Mauro also has a post on the Court's decision, and the significance of some of its language.  Mauro believes that the Court's decision uses "language that is sure to be cited in future cases involving veterans."  Kent's post, Michigan on a Roll, also notes the Court's decision. 

The Clemency Power:  This past week, Sentencing Law and Policy's Doug Berman has spent some time blogging on the use of the clemency power for convicted criminals.  On Thursday, he posted his thoughts on a Washington Post op-ed by Molly Gill that was critical of the President's use of the clemency power.  Berman noted that he "shared [Gill's] concern for the lack of use of the clemency power" but did not believe it was fair to place blame entirely on President Obama and his staff.  The blame could be placed on the the crimes committed by some pardoned offenders.  Today on Sentencing Law and Policy, Berman noted that Mike Huckabee's grant of clemency to Washington's suspected cop killer could impact crime and justice debates.  In 2000, then-Arkansas governor Huckabee commuted the 95-year prison sentence of Maurice Clemmons, the man suspected of killing four officers in Lakewood, Washington.  Berman comments that this sort of high profile case "could further contribute to giving all clemency grants a very bad name and likely will make governors and presidents even more skittish about how they use their clemency power."  

More Comments on the "Right and Left Join[ing] Forces on Criminal Justice:
  Last week Adam Liptak reported in the New York Times that in some Supreme Court cases a few conservative groups have filed amicus briefs supporting defendants.  Our News Scan linked to the article and Kent provided his comments.  Last Saturday, Joel Jacobsen posted his thoughts on the piece on his blog, Judging Crimes.  According to Jacobsen, the "cheering article" also ranks "among the most nauseating [Jacobsen has] ever read about the criminal justice system" - mostly for its support of Ed Meese. Apparently Jacobsen does not agree with Mr. Meese's role in what Jacobsen calls the "modern era of mass incarceration."  To each his own.  There's no denying that Mr. Meese is a staunch supporter of law and order, as Kent noted in his post, nor is there anything wrong with holding criminals accountable for their crimes.

The ABA's Top 100 Blawgs:  Hat tip to Howard Bashman for today's link to "Third Annual ABA Journal Blawg 100."  The article, which will be published on the cover of the December 2009 issue, lists Crime and Consequences as one of the top 100 Blawgs.   Crime and Consequences is one of five blawgs listed under the ABA's Criminal Justice category.  It calls us - to borrow the words of Stephen E. Maher, an attorney from Attorney General's Office of Ohio, Capital Crimes Section -  "most informative for the prosecution crowd." 



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"GVR" is an abbreviation used by U.S. Supreme Court watchers for a particular kind of order. The high court grants the petition for certiorari (asking it to take the case) but it does not decide the underlying question. Instead it vacates the judgment and remands the case to the lower court to reconsider in light of some intervening development. A prime example is today's order in Department of Defense v. ACLU, where Congress changed the law after the Second Circuit's decision. The legal landscape is now different, so the high court sends it back to USCA2 to decide the new question.

Sometimes, though, the new development does not actually postdate the lower court's opinion, but is merely recent and perhaps not clearly understood. In that case, the lower court should ask for supplemental briefing or the parties should ask the court to allow such briefing. If the lower court instead just went ahead and decided, what does the Supreme Court do? Well, in Webster v. Cooper today, the Court "GVR'd."

Justice Scalia dissents.

In my view we have no power to set aside the duly recorded judgments of lower courts unless we find them to be in error, or unless they are cast in doubt by a factor arising after they were rendered. The GVR for consideration of a day's old Supreme Court case is already a technical violation of sound practice and should not be extended further. Since we review judgments rather than opinions, a lower court's failure to discuss a pre-existing factor it should have discussed is no basis for reversal. Once we disregard the logic (and the attendant limits) of "intervening-factor" GVRs, they metastasize into today's monster. We should at least give it a new and honest name--not GVR, but perhaps SRMEOPR: Summary Remand for a More Extensive Opinion than Petitioner Requested. If the acronym is ugly, so is the monster.

Good Time in Federal Prison

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The case of Barber v. Thomas, No. 09-5201, taken up by the Supreme Court today, has to do with the computation of good time credits for federal prisoners. The District Court opinion in a companion case, Tablada, is here. The Ninth Circuit opinion affirming in that case is here. The Ninth's order in the present cases, Barber and Jihad-Black, is summary without opinion, based on Tablada. Tablada's certiorari petition is still pending in case 08-11034. SCOTUSblog has the certiorari petition in Barber here and the brief in opposition here. Doug Berman has this post at SL&P.

News Scan

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Supreme Court News:  The Wall Street Journal reports that today the Supreme Court threw out an order by the 2nd Circuit Court of Appeals to disclose the photographs of abused detainees.  The Court cited a recent change in federal law that allows the pictures to be withheld.  At first, the Obama administration supported the release of the pictures, but then switched positions because the pictures could cause anti-American sentiment overseas and endanger troops.  The Court ordered the second circuit to take another look at the lawsuit filed by the American Civil Liberties Union (ACLU).  This case is discussed by Kent Scheidegger here.  The Court has also rejected an appeal from a California death row inmate Kevin Cooper.  Cooper was convicted of murdering four people in 1983.  In 2004, within hours of his execution, the Ninth Circuit halted the execution and ordered genetic testing.  Cooper claimed that the DNA evidence would prove his innocence.  The testing was done, and the Ninth Circuit agreed that the evidence did not prove Cooper's innocence.  More on the Cooper case is available here

Violent Criminal History for Suspect in Officers' Killings:  New York Times writer William Yardley reports that the "person of interest" in the shooting deaths of four uniformed officers has an "extensive, violent criminal history."  Clemmons had previously been incarcerated in Arkansas, but his lengthy prison sentence was commuted by Mike Huckabee, according to the Seattle Times.  Recently, Clemmons had been arrested in Pierce County, charged with assaulting a police office and raping a child.  Clemmons allegedly walked into Forza Coffee Company cafe and then shot and killed Officer Tina Griswold, 40; Officer Ronald Owens, 37; Sgt. Mark Renninger, 39; and Officer Greg Richards, 42.  The coffee shop was a well known "safe spot" for Lakewood officers.  Ed Troyer, spokesman for the Pierce County Sheriff's Office, says "It's a place where they can plug in their computers, do reports, work and share intelligence with other police officers and agencies." 

Unsuccessful Enforcement of Jessica's Law: Denise Zapata and Kevin Crowe of the San Diego Watchdog Institute report that more than 70% of San Diego's registered sex offenders are violating state law by living too close schools and parks.  In 2006, California voters approved Jessica's Law, which bars convicted sex offenders from living within 2,000 ft of a school or park.  Authorities blame the lack of enforcement on the vagueness of the law.  Tom Tobin, a clinical psychologist and member of the state Sex Offender Management Board, says, "[t]he initiative itself was so badly written, no one knows how retroactive it is."  California's sex offender law has been challenged by four registered sex offenders, whose case is now before the California Supreme Court.  The men challenging the law were paroled before Jessica's Law passed, but their most recent crimes, which were not sex offenses, landed them on the registry.  The men challenged the law after being told they have to move from their home or go back to jail.  According to Zapata and Crowe a ruling in In re E.J., S.P., J.S. & K.T. is expected in February.  Many California municipalities are waiting for the ruling before enacting their own ordinances that restrict where convicted sex offenders can live.  But some cities are not waiting and have already increased the number of restricted areas a sex offender can live in.  Supporting tougher sex offender laws, Senator George Runner is working towards improving the monitoring of sex offenders. 

Michigan on a Roll

The State of Michigan has been remarkably successful this term in getting Sixth Circuit decisions in habeas cases reviewed by the Supreme Court. Berghuis v. Smith and Berghuis v. Thompkins are presently being briefed on the merits. Today the Court granted certiorari in Renico v. Lett, No. 09-338, a double jeopardy case. Erroneous grants of habeas in double jeopardy cases are particularly damaging. In most habeas cases, an erroneous grant means a new trial, but in a double jeopardy case it means the guy walks. The panel blunders and a murderer goes free. The cert. petition is on SCOTUSblog. The USCA6 opinion is here.

Is the high grant rate because MichSG Eric Restuccia is an exceptionally good petition writer, or is it because the Sixth has been blundering exceptionally badly? Or perhaps a bit of each?

Also granted is Barber v. Thomas, No. 09-5201, from the Ninth Circuit. This appears to be a federal prisoner case. The opinion (or memorandum) doesn't seem to be on the Ninth Circuit's site. Will get more details later.

In Porter v. McCollum, previously noted here as much-relisted case, the Supreme Court summarily reversed the Eleventh Circuit. This capital case involves ineffective assistance in the penalty phase.

Among the denials of certiorari is the notorious Kevin Cooper case, Cooper v. Ayers, No. 09-363. This is the case that went for a rare second round of federal habeas review for additional forensic testing. The district court found, "Postconviction DNA testing confirms that Petitioner committed the murders of the Ryen/Hughes victims."

Blog Scan

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Where Have the Decisions Gone?  That's what John Elwood is wondering over at Volokh Conspiracy.  According to Elwood, "usually by this point in November, we've had at least an opinion or two released in an argued case," and so far, the Court has only delivered three per curiam summary reversals.  Elwood then examines the statistics for terms dating all the way back to 1968, and discovers "his term is shaping up to be one of the four latest starts of the past 41 years."  Glancing over statistics for those past 41 years, one can see that with the exception of October terms 1984 and 2007, the Court has always issued an opinion by the end of November.  "So... where are the (argued) Supreme Court opinions?"  Dave N. and spo comment on Elwood's post to assure that McDaniel v. Brown should be handed down soon.  CJLF's Brown brief is available here

Another Argument Against Mass Incarceration:
  On ACSblog, Paul Butler, the Associate Dean for Faculty Development and a law professor for George Washington University Law School, blogs on his new book, Let's Get Free: A Hip-Hop Theory of Justice.  In his book, Butler, a former prosecutor, argues that mass incarceration is bad for the average citizen.  He focuses on the "tipping point"of incarceration and argues that when too many people are locked up, the crime rate goes up.  He advocates the usual solutions: diversion of imprisonment funds to education, health care and the environment, and proposes a few unusual remedies.  He also calls for jury nullification in drug cases.  The idea of softer sentencing and expanded social programs to reduce crime is not new. It used to be called "the Great Society." We all know how well that worked. 

The Original Understanding of the Sixth Amendment Right "to have the Assistance of Counsel": 
At Volokh Conspiracy, Orin Kerr posted some thoughts on the debate on originalism versus stare decisis in constitutional interpretation.  Kerr briefly looks at how the debate is affecting arguments in McDonald v. City of Chicago, and then turns to the Sixth Amendment's right to assistance of counsel.  According to Kerr, "[t]he right to Assistance of Counsel was a response to the traditional English common law practice of forbidding defense lawyers in criminal trials," and the Sixth Amendment acknowledged "a right to have a lawyer if you had one, not a constitutional right to have a lawyer provided to you free of charge."  That being said, Kerr proposes two questions for true originalists, "if you agree that the original understanding was just a right to have a lawyer present you if you hired one, do you believe that courts should overturn the modern precedents and return to that original understanding? And second, ... do you agree that this is the original public understanding?"

Habeas Corpus and Executive Detentions:
  CrimProf Blog provides a link to Marc D. Falkoff's SSRN article "Back to Basics:  Habeas Corpus Procedures and Long-Term Executive Detention."  In his article, Falkoff, an Assistant Professor at Northern Illinois University's College of Law, focuses on the use of habeas corpus to challenge executive detentions, and wonders what sort of procedures a federal court would use to review a detainee's claims.  He writes that "[i]f the Guantanamo petitioners, for example, are properly before the courts pursuant to section 2241 of the Title 28 of the United States Code, they would presumably be entitled to at least the 'skeletal' procedures provided by Congress for other habeas petitioners." But they don't come under section 2241. Subdivision (e) expressly excludes them from the statutory provision. The Supreme Court decided in Boumediene (wrongly, in CJLF's opinion) that the Constitution requires habeas anyway, but that does not mean they necessarily have to have the procedures that Congress added to habeas long after the Suspension Clause was adopted.

News Scan

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Block Removed For Ohio Execution:  The Associated Press reports on a previously blocked execution set for Dec. 8th that can now go forward due to a change in Ohio's lethal injection policies because of a federal appeals court ruling today.  The Sixth Circuit's decision  means that Kenneth Biros will be the first inmate executed under the new one-drug IV injection, with a two-drug muscle injection serving as a backup.  The change in drugs renders Biros' argument, that the state's former policy was unconstitutional, invalid.  The court wrote that,"In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure.  Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect."  Biros' attorney, Tim Sweeney, argued that conducting the execution under the new protocol would be "human experimentation, pure and simple." Kent's post discussing the stay is available here.

"The Bird" Makes Pittsburgh Pay:  Pittsburgh Tribune-Review writer Adam Brandolph reports on the Pittsburgh City Council's recent decision to settle a First Amendment dispute, giving a man who gave 'the bird' to a police officer a total of $50,000. The officer initially cited the man for disorderly conduct for the display, but after the county dropped the charge, motorist David Hackbart sued to recover the cost of defending himself.  U.S. District Judge David S. Cercone ruled that the officer had violated Hackbart's First Amendment right to free speech.  With the onset of the holiday shopping season and this case circling each other, try to avoid the first amendment issue.  Enjoy your bird on Thursday only.

Moratorium on Kentucky Executions:  Lexington Herald-Leader writer Jack Brammer reports on the Kentucky Supreme Court's decision that Kentucky may not execute anyone until it adopts regulations in compliance with the law.  The court ruling came in the case of three death row inmates, Thomas C. Bowling, Ralph Baze and Brian Keith Moore, who were challenging the state's lethal injection protocol.  The court said the state Department of Corrections must follow state-mandated administrative procedures before adopting the current lethal injection process of a three-drug cocktail.  The state's top public defenders, a leading anti-death-penalty group, and a group of independent lawyers are asking the court to allow an American Bar Association review of the implementation of the death penalty in Kentucky.  This process could take 12 to 18 months.  Another article by Brett Barrouquere of the Associated Press can be found here. Update: John Schwartz has this story in the NYT.

Biros Stay Vacated

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The Sixth Circuit this morning vacated the stay of execution granted by the District Court to Ohio murderer Kenneth Biros. The per curiam opinion in the case of Cooey v. Strickland, No. 09-4300, is here. Judges Siler, Gibbons, and Sutton were on the panel. No dissent.

As to the merits, the district court's stay order must be vacated because any challenge to Ohio's three-drug execution protocol is now moot.
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There is no basis in the record or for that matter in common sense for assuming that the State will do anything other than what it has told us in court filings and what it has told the public at large: it has changed its execution protocol, and it intends to apply the substantially modified protocol to Biros.
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One final point deserves mention. In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure. Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect. Whether a stay is warranted under the new protocol is not before us at this time. Should Biros bring a new challenge on this ground, the district court and we can consider whether he has met the requirements for granting a stay, including the requirement of establishing a likelihood of success on the merits. See id. at 1537; Nelson v. Campbell, 541 U.S. 637, 649 (2004).
Today's News Scan notes Adam Liptak's article in the New York Times. The headlines reads, "Right and Left Join Forces on Criminal Justice." The trends that Liptak notes are interesting, but I think he overstates the case of how much has changed.

After noting that some conservative groups have filed amicus briefs supporting defendants in some cases, the article says, "The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration." No, not really. "Tough on crime" never did mean siding with the prosecution in every case. It meant keeping the trial focused on whether the defendant really did it, not on collateral issues. It meant imposing an adequate punishment for acts that every rational person agrees should be criminal, such as murder, rape and robbery. It did not mean expanding criminal law to cover such things as, e.g., importing lobsters.

The article continues, "Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws."

Mr. Meese is a valued advisor to CJLF, and he is just as much "a fervent supporter of law and order" as he ever was. His shop at Heritage was instrumental in coordinating the amici supporting the state in the Graham and Sullivan cases. They also published Adult Time for Adult Crimes to correct some of the misinformation about violent juveniles that the left-leaning think tanks have been pumping out.

Many conservatives now are opposing laws that make issues criminal that should be civil and make issues federal that should be state.  That is far different from the old liberal goals of making the trial an examination of what the police did rather than what the accused did and setting the murderer free because the constable blundered. On issues such as these, the liberal-conservative divide remains as strong as ever. The picture is somewhat complicated by the existence of libertarian groups such as Cato that side with conservatives on economic issues and liberals on criminal law issues, but that is an issue of taxonomy rather than realignment.

Another complication is the fact that the Supreme Court is more conservative than it was in the Warren and Burger years, and that has caused a shift in the issues it considers. Rules of law that overturn convictions for reasons having little or nothing to do with the reliability of the verdict, such as Mapp and Miranda, are fading in prominence as the Court whittles them down. The hot issues today are the Apprendi and Crawford lines of cases, which really are based in the Constitution and actually do have some relation to reliability of the verdict. The conservative "tough on crime" position never was about risking the conviction of innocent people. We were always the ones who agreed with Judge Friendly that innocence is indeed relevant.

The cases noted in the article where conservative groups have supported the defendant are different in kind from the cases that produced the liberal-conservative divide in the past and continue to make that division today. The changing mix of the cases before the Supreme Court is more of a factor producing the occasional odd bedfellows than any emerging consensus.

The trends noted in the article are interesting and important, but let's not get carried away. Conservatives and liberals are still locked in opposition on the death penalty, habeas corpus, the exclusionary rule, Miranda, and every other rule that enables violent criminals to get off easy or get off completely for crimes we know beyond a reasonable doubt they committed. There will not be consensus on those issues until the lefties see the error of their ways, and I'm not going to hold my breath.

Blog Scan

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Academics Discuss Changes to the U.S. Supreme Court:  At SCOTUSblog, Erin Miller reports on conference held entitled "Rethinking the Law Governing the Structure and Operation of the Supreme Court."  The conference, held last Friday, at George Washington University Law School, proposed four different changes to the Court: (1) the regular appointment of Justices; (2) Seven-year term limits for the Chief Justice; (3) creation of a certiorari division; and (4) an obligation for disabled Justices to retire.  Miller's post provides quick summaries of each panel discussion.  She notes, "panelists and audience members were often skeptical about both the specifics of the proposals and whether the problems that the proposals were designed to remedy in fact existed."

Kentucky's Death Penalty:  Doug Berman posts on Sentencing Law and Policy that Kentucky's Governor, Steve Beshear, has been asked to both halt all executions and set execution dates for three death row inmates.  According to a Courier-Journal article by R.G. Dunlop, the ABA has asked Governor Beshear to halt all executions until a 10-member team of state lawyers and former judges can assess Kentucky's death penalty system.  Another article, by Stephenie Steitzer reports on the Kentucky Attorney General's request that the Governor set execution dates for Ralph Baze Jr., Robert Foley and Gregory Wilson.  According to Attorney General, Jack Conway, all three have exhausted all of their "matter of right" appeals in state and federal courts.  Ralph Baze Jr. has made several attempts to appeal his sentence.  He challenged Kentucky's lethal injection procedure in the landmark case Baze v. Rees.  Doug Berman comments that he is "inclined to assume that the AG's request for execution dates will...eclipse the ABA's request for a moratorium," but notes that Kentucky has carried out only three executions "in the modern era."

Victims' Rights in Juvenile Court:  CrimProf Blog editor, Kevin Cole, posts an abstract and link to Kristin Henning's new article, "What's Wrong with Victims' Rights in Juvenile Court?: Retributive Versus Rehabilitative Systems of Justice."  Henning, a professor and the co-director of Georgetown University's Juvenile Justice Clinic, believes that "[s]tatutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court's priorities and altered the way judges think about young offenders."  She argues "that victim impact statements move the juvenile court too far away from its original mission and ignore the child's often diminished culpability in delinquent behavior."  The argument that we should not punish young offenders because of their diminished culpability is something we've seen before, most recently in Graham v. Florida and Sullivan v. Florida.  Our brief for the cases notes that "where teenagers are treated as adults, the increase in delinquent behavior among young males is either extremely mild or completely absent[,]" and "when societies become Westernized that adolescent delinquency rises."

News Scan

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"Right and Left Join Forces on Criminal Justice":  New York Times writer Adam Liptak reports on the Supreme Court's 2009-2010 docket.  He reports that this term, the Court "will decide at least half-dozen cases involving the rights of people accused of crimes involving drugs, sex and corruption."  Civil liberties groups and associations of defense lawyers have lined up on the side of the accused, and so have conservative, libertarian and business groups.  Liptak comments that briefs and public statements signal an emerging consensus that the criminal justice system is an aspect of big government and must be contained.  Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers stated, "The left and the right have bent to the point where they are now in agreement on many issues.  In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold."  Vague laws that lead to overcriminalization are at the heart of the conservative critique of crime policy.  Edwin Meese III, a Distinguished Fellow at The Heritage Foundation, said the "liberal ideas of extending the power of the state" were to blame for an out-of-control criminal justice system.  He believes that "[o]ur tradition has always been to construe criminal laws narrowly to protect people from the power of the state."

Obama and His Turkey:  The San Francisco Chronicle's Debra J. Saunders writes that on Wednesday, President Obama will issue the White House's standard hokey pardon of a Thanksgiving turkey - a tradition of the office.  She comments that while this is good for the turkey, it seems strange "because, nine months into office, Obama has yet to exercise his presidential pardon power."  The President has not pardoned a single offender, although 1,200 have asked for pardons and 2,000 inmates asking for commutations.  According to Professor P.S. Ruckman Jr. of Rock Valley College in Illinois, President Obama has taken longer to use the executive pardon and commutation power than all but four presidents - George Washington, John Adams, Bill Clinton and George W. Bush.
Most states limit the defendant's ability to appeal when he pleads guilty. Yesterday, the California Supreme Court addressed one aspect of this limitation in People v. Johnson, S166894:

We granted review to resolve a conflict among appellate court decisions addressing the issue whether a defendant who desires to appeal from a criminal judgment on the ground that counsel rendered ineffective assistance regarding the defendant's request to withdraw a guilty or no contest plea first must obtain a certificate of probable cause. The Court of Appeal below, concluding that a certificate of probable cause was required, dismissed defendant's appeal. We affirm the judgment rendered by that court.

Blog Scan

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Consequences of a Guilty Plea:  SCOTUSblog's Monday Round-up a link to Tony Mauro's National Law Journal article "Do Defendant's Get Enough Warning About a Guilty Plea's Consequences?"  In the article, Mauro comments on thesimilarities between the recent "Balloon Boy" incident in Colorado and Padilla v. Kentucky.  Mauro sees parallels between the two cases, because both "are casting new light" on "when, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty."  While some groups, like the Uniform Law Commission, support the idea of informing defendants about the collateral consequences of their pleas, others, like Supreme Court Justice Breyer, believe requiring lawyers to give accurate advice about those circumstances "will set in motion the great legal rule machine."  Sentencing Law and Policy blogger Doug Berman linked to the article yesterday. 

How Many "Bites" Will Prosecutors Have At Convicting Khalid Sheikh Mohammed?  This weekend, on Sentencing Law and Policy, Doug Berman posted on the media's fears that KSM could be acquitted or avoid the death sentence by commenting, "these professed fears fail to appreciate that various limits on double jeopardy would enable prosecutors many bites at the KSM apple, if needed."  Berman points out that "if shrewd" federal prosecutors could go after KSM for just the bombing of the Twin Towers and the deaths that resulted in New York City, and if necessary, then prosecute him for the bombing of the Pentagon and the deaths that resulted in Virginia or with the crash of United flight 93 and the deaths that resulted in Pennsylvania.   State prosecutors in Virginia, New York and Pennsylvania could also pursue charges against KSM.  Berman writes that of the three states, "citizens of [Virginia] have every reason to hope (and perhaps demand) that Virginia state prosecutors go after KSM if the results of the planned federal prosecutions do not seem satisfactory."  On a related topic, Howard Bashman posts on How Appealing that Jeffery Toobin is wondering "Post-Pizza: Who will judge Khalid Sheikh Mohammed?" in the November 30th edition of The New Yorker.   

Top Ten SSRN Downloads:  CrimProf Blog has posted a new version of  its Top-Ten Recent SSRN Downloads for manuscripts announced in the last 60 days in the criminal law and procedure journals.  Note number three on the list, Blaming the Brain, by our contributing blogger Steve Erickson.

v. Chicago Amicus Brief:
  At Volokh Conspiracy, David Kopel posts a link to, and expresses his praise for, the Cato Institute's amicus brief for the Second Amendment case McDonald v. Chicago.  Kopel writes that the brief "shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship," and "argues that Slaughterhouse violated canons of constitutional construction-such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause."  Kopel notes that Timothy Sandefur of the Pacific Legal Foundation is lead author of the brief.  Their News Release discussing the brief is available here.     

News Scan

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Death Penalty, and Strategy for 9/11 Terror Attacks Trial:  New York Daily News writers Robert Johnson and David Saltonstall report that according to a Daily News/Marist poll  77% of New Yorkers believe that Khalid Sheikh Mohammed and his four accomplices will be found guilty.  Some critics, including Mayor Rudy Giuliani say that having the trial in New York City is too risky, too costly, and gives the offenders too many rights.  Although not everyone believes that the terror suspects should be tried in New York, the decision has been made, and New Yorkers are not planning to let anyone down.  Henry Romer, a 51 year old construction manager in midtown Manhattan says, "[t]hose guys don't stand a chance.  There's no question they'll get the death penalty here."  Calvin Seibert, a 51 year old artist from Chelsea states, "New York will get it done, because the families of the people that died won't let them do anything else.  It's just what you have to do."  Polled New Yorkers may want to impose the death penalty on the terror suspects, but Germany says that it can't be done with evidence they collected.  New York Post writer Adam Nichols reports that Germany is sending a team to observe the trial to make sure the evidence they provided does not help sentence the terror suspects to death.  Evidence on the attacks was handed over to the US by the German government on the condition that the death penalty would not be sought.  It's unclear how essential the German evidence is to the convictions. but the suspects do not seem to be concerned about receiving the death penalty, instead they want to be heard.  The Associated press reports that the five terror suspects plan to plead not guilty in order to declare their displeasure with US foreign policy.  The lawyer for Ali Abd al-Aziz Ali says that the men would not deny their role in the 2001 attacks, but "would explain what happened and why they did it."  Many are worried that the decision to try the suspect in New York will provide them with a propaganda platform. 

Ohio's proposed Lethal Injection Method:  Cleveland's Plain Dealer reporter Aaron Marshal reports on Ohio's decision to change the three drug cocktail for lethal injection to a single injection of barbiturates.  Prison officials plan to use a single injection, and if they can't find a suitable vein the dose will be injected into an inmate's chest muscle.  Associate Director of the Death Penalty Clinic at the University of California-Berkeley, Ty Alper, says, "I think this is something that is pretty well accepted.  It's very similar to the way that animals are euthanized -- there's been a lot of testimony about it, and the effects of the anesthetic are pretty well known."  Kenneth Biros could be the first executed by the new method; he is scheduled to be executed on Dec. 8th.   His execution is on hold after he argued the three drug injection caused pain and is cruel and unusual punishment.  Ohio Attorney General Richard Cordray said in court papers that this new method renders Biros' argument moot.  Comments by Biros' attorney can be found in Lancaster Eagle Gazette.  There are skeptics of this new method.  Stuart Youngner says Dutch doctors have extensively studied the issue for their countries, and concluded the three drug cocktail is the best.

Priority for Backlogged Rape Kits:  Louisville, Kentucky's WLKY writer Steven Tellier reports on the problem of backlogged rape kits and the push to make them more of a priority.  Many times a rape kit is the only evidence linking a victim and their attacker.  But many of these kits go untested for months or years.  More funding would solve the problem.  The backlog problem has been brought to the attention of the US Senate and House of Representatives.  This month, in both houses, bills have been introduced that attempt to increase funding and decrease rape kit backlogs. 

Lauren's blog scan today notes an article by Jules Epstein proposing a "metric" for prosecutors' decision to seek the death penalty. In the article, we find that he is not actually proposed an objective measurement, as one might think from the term "metric."  His main point seems to be that prosecutors should assess the "deathworthiness" of the case as the main issue in deciding whether to seek the death penalty. Well, that is largely what most offices have been doing the whole time.

Blog Scan

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New Jersey Parole Board Using Polygraphs on Sex Offenders:  Sex Crimes blogger Corey Rayburn Yung posts on New Jersey's success in using polygraph tests to detect and prevent the parole violations of sex offenders.  An article in the New Jersey Star-Ledger, by Chris Megerian, reports on an internal parole board study suggesting that New Jersey's polygraph policy increases the ability of parole officers to detect parolees' failure to comply with conditions of supervision before they can escalate to behaviors warranting new arrest.  So far, the state has conducted only 400 tests, but "[m]ost of the 105 parole officers surveyed said the polygraph was useful, and 41 said they learned new information through the tests."

Should Prosecutors Scan for "Death Worthiness?" That appears to be the question raised by Jules Epstein in his new SSRN paper, "Death-Worthiness and Prosecutorial Discretion in Capital Case Charging."  The abstract is posted at CrimProf Blog. Epstein's paper proposes that any attempt to assess the merits of a prosecutorial 'selection' scheme in capital-eligible homicide cases be examined through a metric of "death worthiness."  He believes this screening method is superior to previously used methods that examined racial and intra-state geographic disparities.  Epstein notes three barriers to successful implementation of this method. It could create "an over-inclusive charging process" because: (1) counsel sometimes fails to develop mitigation evidence; (2) a defendant's youth may sometimes prevent him from assisting in mitigation; and (3) powerful victims support groups often "bar a well-intentioned prosecutor from declining to seek death even where the individual defendant is not death-worthy."

Kent will have more comment on this article in a separate post.
Can Sunday Football Contribute to Domestic Violence?:  Freakonomics Blog Editor posts today on a new study, by Economics Professors David Card and Gordon Dahl, that tests whether violent episodes occur when the perpetrator loses control by examining data on domestic violence occurring on Sundays during the NFL season.  The two found that unexpected losses by the home team "lead to an 8 percent increase in police reports of at-home male-on-female intimate-partner violence." They also found that unexpected losses in important or particularly frustrating games have a 50 to 100 percent larger effect on domestic violence.

Greenhouse's Take on Justice Sotomayor and the Death Penalty:
  At New York Times Opinionator, Linda Greenhouse takes a moment to comment on Justice Sotomayor's decision to join a statement issued by Justice Stevens after the Court declined to grant a stay of execution to John Allen Muhammad.  Greenhouse points out that Justice Sotomayor's decision demonstrates that she was troubled by Muhammad's rushed execution date, and alludes to the fact that Justice Sotomayor may not be as pro-prosecution as many had hoped (and others had feared).  

News Scan

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Strive For Unbiased DNA Database:  Guardian commentary writer, Gavin Phillipson, discusses the incomplete national DNA database and his solution to make solving a crime more than just chance.  DNA evidence is an essential tool to solving crimes, but if a person is not in a DNA database, the evidence will not lead authorities to them.  The British Government is now proposing to keep the the DNA of those never proven guilty for only six years.  Then they will dump it.  Phillipson does not see the government's proposal as a workable solution.  He believes instead of limiting people from the database, they should be including everyone.  According to Phillipson, not only would an all inclusive database "radically increas[e] its effectiveness", but it would also eliminate the claim that the database singles out minorities.   

NY Terrorist Trial: The WaPo has two contrasting pieces on AG Holder's decision to try Khalid Sheik Mohammed et al. in civilian court in New York. Charles Krauthammer blasts the decision, saying it gives the terrorists a second round of propaganda for one deed. "Just as the memory fades, 9/11 has been granted a second life -- and KSM, a second act: '9/11, The Director's Cut,' narration by KSM."  On the other hand, former Bush Administration DoJ officials James Comey and Jack Goldsmith surprisingly make a better case for Holder's decision than Holder did.

Tulsa Police Using DNA to Solve Non-Violent Crimes: Tulsa's KOTV writer Lori Fullbright reports on the success of Tulsa police solving property crime by using DNA evidence.  In the past month, 10 burglaries have been solved with DNA evidence.  Detectives say that you would not believe how much DNA burglars leave at a crime scene.  Sgt. Brandon Watkins says, "Some leave behind clothes; their hat will come off or their gloves come off.  They'll do something to leave behind large amounts of DNA: throw a cigarette down, spit - people leave behind traces." Officers hope that the new method of crime solving will deter crime.

Brain Scan to Determine Guilt or Innocence:  Ingfei Chen writes in the Stanford report that brain-scanning lie detection technology has debuted in justice system.  In two cases, in California and New York, defendants accused of first-degree murder, were able to receive the lesser charge of manslaughter after presenting brain scans that established diminished capacity.  Although brain scans have been used in criminal proceedings, some believe that the science is not reliable enough to be used.  Law Professor Hank Greely stated that maybe society will someday find a technological solution to lie detection, "but we need to demand the highest standards of proof before we ruin people's lives based on its application."  The legal consequences could be a problem.  For example, does a brain scan invade a defendant's right to privacy or the Fifth Amendment Right against self-incrimination.  In United States v. Scheffer, four justices said that a lie detection test, regardless of accuracy, should not be admitted into federal court because it would infringe on the jury's role as the human "lie detector" in the courtroom.  Most likely the evidence of a brain scan will be used to predict recidivism rather than find guilt or innocence.  Parole boards have started to use evidence based on predictions of behavior, and a brain scan could be an effective predictor of recidivism.  Former Justice Sandra Day O'Connor, who is presiding over the Law and Neuroscience research project, says, "Our jails are overloaded, and they are overloaded with people who have committed drug crimes.  So it just becomes enormously important to figure out how people get addicted to drugs and what we can do to sever that connection if we can."      

U. Cal. Fees

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The University of California Regents have voted once again to increase the "fees."  The fees are really tuition, but they call them fees to maintain the facade that U.C. doesn't charge tuition to California residents. Alan Duke has this story for CNN.

The regents claim this is a last resort with no alternatives left. Oh, really?  They've cut everything that isn't necessary to the core mission of operating a university?

Among the things they should have axed a long time ago is the Death Penalty Clinic at Boalt Hall. The clinic states its "mission is to offer a program that helps students develop outstanding legal skills and to serve clients facing capital punishment." The first part is a legitimate function of a law school clinical program, but there is no reason for it to be solely on the defense side of the ledger. The last part is simply not UC's mission. While taking California cases may be a mere shift of dollars that would otherwise be spent elsewhere in the government, the clinic is not limited to California. The taxpayers and students of California should not be paying to represent death row inmates in others states, and they most certainly should not be paying for an anti-death-penalty advocacy group.

So, regents, before you hike fees another penny, ax this program.

Another place to cut is by not admitting students who are not ready for the university yet.  Some of the student protesters chanted, "We're fired up. Can't take it no more" [sic]. They clearly need a year or two of remedial courses in basic grammar and should go to community college first.

Blog Scan

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Fact Checking, Morality and the Death Penalty:  Yesterday, Judging Crimes blogger Joel Jacobsen posted his thoughts on Sarah Palin and Stephen Reinhardt.  The connection may not be entirely obvious, but Jacobsen makes his point quickly.  First, Jacobsen takes a look at the criticism that Sarah Palin is getting for not fact-checking her new book.  He then points out that the criticism is unfair when one considers that the media has yet to attack Stephen Reinhardt "despite this weeks ritual Supreme Court per curiam slapdown" in Belmontes.  As Kent pointed out on Monday, the Supreme Court's decision marks the third time the Supreme Court has vacated the Ninth Circuit (and Reinhardt's) decision in Belmontes' case.  Jacobsen argues the "slapdown" occurred because of Reinhardt's take on the facts.  Jacobsen believes that for some judges "their opposition to the death penalty is of such overriding moral significance that the law and the facts don't matter, and in particular the violent death of a 19-year-old girl doesn't matter.  They find it easy to dismiss her suffering..."  Ed Whalen also has a post on NRO's Bench Memos critiquing Judge Reinhardt. 

Thin Line Between Life and Death:  At Women in Crime Ink, blogger Donna Pendergast posts on the gruesome 1989 murders of Wanda and Glenn Tarr by Joseph Passeno and Bruce (Christoper) Michaels.  The two were arrested, after bragging about their "thrill kill" to schoolmates, and sentenced as adults to life in prison without parole.  Pendergast then goes on to discuss Sullivan v. Florida and Graham v. Florida. She argues that while Sullivan and Graham have generated debate on rehabilitation, she believes an "antisocial predator who has spent years or decades in prison is extremely unlikely to be able to reintegrate into society."  She writes, "as a prosecutor, I want [the LWOP for juveniles] tool in my arsenal."  

Electric Chair Execution:  CrimProf Blog links to a Jurist article by Jaclyn Belczyk reporting on the Tuesday execution of Larry Bill Elliott.  Elliott was convicted of a 2001 double murder and chose to be electrocuted by electric chair. Virginia Governor Tim Kaine refused to intervene, and the U.S. Supreme Court denied a stay.  Belczyk writes that the last execution via electrocution occurred in South Carolina in June 2008.

SCOTUS "Academic Round-up":  SCOTUSblog writer David Stras posts that Stefanie Lepore has published "The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General" on SSRN.  The article discusses the Solicitor General's role as a "a special type of amicus" who gets to act as adviser and advocate to the Supreme Court, and respond to the Court's invitation to express the views of the United States in given petitions for certiorari.  It tracks the development of the Solicitor General's role as "the Tenth Justice," and argues the relationship is mutually beneficial for the Court and the S.G. Stras notes that while there are many empirical articles that show the importance of the Solicitor General in persuading the Court to grant cases, Lepore's article is the first article he has read "that actually traces the history of the device to its origins."

News Scan

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Texas Governor May Commute Death Sentence:  Associated Press writer Michael Graczyk reports on the fate of a man facing execution tonight for his role in a fatal robbery.  The decision is now in the hands of Texas Gov. Rick Perry after the state parole board recommended that the death sentence be commuted to life in prison.  The Texas Board of Pardons and Paroles made the rare recommendation Wednesday for Robert Lee Thompson, who was not the triggerman in the robbery.  The shooter was convicted and received life in prison.  Gov. Perry is not required to follow the recommendation of the board, whose members he appointed. Update: As federalist notes in the comments, Gov. Perry has denied clemency. His statement is here.

Ex-Guantanamo Inmate Unable to Keep Military Lawyers:  New York Times writer Benjamin Weiser reports on a federal judge's denial of a former Guantanamo detainee's request to keep two military lawyers, who had been representing him, now that his case has been transferred to federal court.  The detainee, Ahmed Khalfan Ghailani, faces charges of conspiring in Al Qaeda's 1998 bombing of two American embassies.  This issue is seen as important because it could have implications for other Guantanamo detainees.  He is "not entitled to choose particular government-paid counsel, military or civilian, and he does not have a right to the continued services of previously appointed counsel," stated Judge Kaplan.

UPDATE None Want Gitmo Detainees:
  Associated Press writer Ben Fox reports on the Obama administration's difficulties with persuading other nations to take detainees, such as Walid Abu Hijazi.  The 29 year-old Palestinian is nearing his eighth year at Guantanamo even though the U.S. approved his release in February 2008.  No one else has been willing to allow him, or dozens of others, into their territory.  This dilemma is one of the chief obstacles to closing the jail.  Matthew Waxman, a professor at Columbia Law School states, "It's very difficult to persuade third countries to accept the political or security risks involved, especially when the United States has been unwilling to accept that risk itself."  Waxman further commented that Guantanamo will not be able to be closed effectively until there is more support from both Congress and U.S. allies abroad.

Texas Execution

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Just under 10 years ago in Palestine, Texas, 84-year-old retired school teacher Geraldine Davidson came home to find a burglary in progress. The leader was Danielle Simpson (a man, notwithstanding the name). Paul Stone reports for the Palestine Herald:

During his trial, testimony showed that Simpson and three other Palestine youths kidnapped Davidson from her South Sycamore Street residence on Jan. 26, 2000 and paraded her around in the trunk of her vehicle before tossing her into the frigid waters of the Neches River with her hands bound behind her back and a cinder block tied to her ankles.
*                 *                   *
Authorities have said eight-to-10 people at separate locations in Palestine and Grapeland were shown Davidson's body in the trunk of her own car prior to her death, but did not notify police.

Simpson was executed in the unusually short time of less than 10 years because he called off his appeals. Chris McGreal reports for the Guardian (London):

Days before his execution, Simpson told the Guardian that he waived his appeals against execution because life confined to a small metal cage was unbearable. "This Texas system is sick. They treat us less than the human beings that we are and it's like instead of them trying to see us as being a human being they look at us as being an animal," he said.

Uh, huh. And what were you treating Mrs. Davidson like as you proudly displayed her body to your friends?

The Supreme Court order denying a stay is here.  Justice Sotomayor joins the dissent, not a good sign.

The accomplices were all juveniles and will not be executed.

Failure is a Definite Possibility

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"Failure is not an option," Eric Holder declared before the Senate Judiciary Committee, regarding the civilian criminal prosecution of 9/11 mastermind Khalid Sheik Mohammed. A post by Mike Scarcella at BLT is here. In addition, President Obama predicted both a conviction and a death sentence, Mark Sherman reports for AP.

I didn't like the "failure is not an option" expression even when it was new and arguably clever. It has grown even more irritating with age and triteness. Few people choose to fail, and sometimes failure happens despite every possible effort. "All the king's horses and all the king's men..." and all that. What he means, I suppose, is that every possible effort will be made to avoid failure. But will every possible effort from the executive branch alone, which is all he can directly control, be enough?

First, what is "failure" in this case? Anything less than a death sentence is failure. The prosecution of Zacharias Moussaoui was a failure. Can Holder guarantee that the KSM trial will not end like Moussaoui's, despite the President's prediction. No.

As noted in this post, the single-juror veto rule in federal civilian capital cases presents a grave danger of failure. The federal system can and should adopt the California rule that the jury verdict on penalty must be unanimous one way or the other, just as it is on guilt. That requires an act of Congress. If Holder is serious about making every possible effort to avoid failure, he should be pressing hard right now for such an act.

Blog Scan

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Supreme Court Media Coverage:  This term the U.S. Supreme Court has agreed to hear several crime related cases.  The media and academics have followed suit.  SCOTUSblog's Erin Miller notes in her Wednesday Roundup that last Saturday, C-SPAN aired interviews with the lawyers who argued Graham v. Florida and Sullivan v. Florida.  Also, the Federalist Society's SCOTUScast, posted its "Cert. Granted SCOTUScast Debate" for the Second Amendment case, McDonald v. City of Chicago.  In the debate, George Mason University School of Law Professor Nelson Lund moderates a discussion between Clark Niely, a Senior Attorney for the Institute for Justice (and co-counsel for the plaintiffs in District of Columbia v. Heller), and Kurt Lash, a Loyola Law School Professor.  The two discuss whether the Privileges or Immunities Clause of the Fourteenth Amendment makes the Second Amendment applicable to the States and invalidates Chicago's ordinance prohibiting the possession of handguns in the home.

Attorney General Holder Comments on Criminal Justice System:  Doug Berman posts on Sentencing Law and Policy that AG Holder has recently given "[t]wo notable speeches" on criminal justice and sentencing.  Berman first addresses yesterday's speech at the Financial Fraud Enforcement Task Force Press Conference where Holder announced the launch of an interagency Financial Fraud Enforcement Task Force to combat financial crime.  In his speech Holder stated, "In the tough economic environment we face today, one of this Administration's most important missions is to draw upon all of the resources of the federal government to fight financial fraud in all of its forms."  He believes the new task force will hold criminals accountable and stop future financial meltdowns.  The second speech, given Monday at the Brennan Center for Justice Legacy Awards Dinner, focused on the importance of effective defense counsel, and urged federal, state, and local governments to provide better services to indigent defendants. Holder believes, "that if more Americans knew more about how some of their fellow citizens experience the criminal justice system, they would be shocked and angered...."  Berman notes that he does not always share this belief.  He states that when it comes to to repeat and violent offenders he is not sure "whether many members of the public would truly be 'shocked and angered' about how these defendants experience the criminal justice system."

9/11 Victim's Family Upset Over Civil Trials for Terrorists:
  At Blog of Legal Times, Mike Scarcella reports that in a personal conversation with Attorney General Holder, Alice Hoagland, who lost a son when Flight 93 crashed in a Pennsylvania field, told Holder that she takes "great exception to your decision to give short shrift to the military commissions."  She told Holder, ""I think I speak for many 9-11 families when I say that we are heartsick and weary of the delays and the machinations. I am afraid the theatrics are going to take over at this point, and I very much regret that."  According to Scarcella, Holder asked Hoagland to trust the administration.  He stated, "There are reasons why bringing this case in an Article III court, when it comes to the admissibility of certain evidence, is really the right way to go and really maximizes our chances of getting a successful outcome."  At Volokh Conspiracy, Eric Posner hypothesizes on how the DOJ may view the civilian trials for 9/11 terrorists. 

New Biography on Justice Scalia: Over the past two days Bench Memos' Ed Whalen, a former clerk for Justice Scalia, has been commenting on Joan Biskupic's new biography, An American Original: The Life and Constitution of Justice Antonin Scalia.  Whalen's take on the biography is not too positive.  In his first post he notes, "The book is well written, much more so than I expected from my occasional encounters with Biskupic's reporting.  It is also in many places more evenhanded than I expected.  And I found the first four chapters particularly interesting."  The remaining posts (here, here and here) flesh out Whalen's criticisms.

Google Adds Case Law to 'Scholar': 
Ashby Jones of Wall Street Journal's Law Blog has the details here.    

Taney, Scott, and Judicial Activism

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In front of City Hall in Frederick, Maryland is a bust of native son Chief Justice Roger Taney. The bust has been controversial, but the contending parties have reached a compromise. Nicholas Stern reports for the Frederick News-Post:

Recent studies of the deterrent effect of the death penalty (since 2000) have been done mostly by economists. Abstracts and citations are collected here. Although not conclusive, the weight of the evidence favors a deterrent effect, regardless of what you may hear from the anti-side spinmeisters. These studies tend to look at long-term effects.

Earlier, there were many studies done by criminologists. These studies examined short-term effects. They would ask if homicides went down after an execution and whether it mattered if the execution was well publicized. The results were mixed, but many of these studies found no deterrent effect. I have long been skeptical of this method, because I do not believe the recency effect is as important a component of deterrence as these researchers seem to believe. In a sense, I give criminals more credit for intelligence than they do. I begin with the hypothesis that an awareness that the state has the death penalty and actually enforces it will cause some people to refrain from killing. That is consistent with the general principle that incentives matter in human behavior; anyone who claims that the death penalty is an exception has the burden of proof. Awareness of the death penalty may be heightened by a recent, well-publicized execution, but it doesn't go away in a month. So a finding that the recency component of the deterrent effect, if any, is below the level a study could have detected doesn't tell us anything significant from a policy perspective. It tells us nothing about whether there is a total deterrent effect, the sum of short and long term effects, which is what we really want to know.

The September issue of Criminology, volume 47, number 4, has a new study on the short term effects.

News Scan

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Gitmo's Deadline for Closure Becomes Blurred:  Washington Post writer Anne E. Kornblut reports on President Obama's statement directly acknowledging that the prison facility at Guantanamo Bay will not be closed in time for the January deadline set by the administration.  Although Obama came to office pledging to close the facility that had become a symbol for prisoner abuse, White House officials quickly encountered resistance from members of Congress opposed to moving prisoners to U.S. soil and from other countries they had hoped would accept detainees.  Obama insists that the facility will be closed next year, pending support from Congress.

News Scan

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Supreme Court Restores Death Sentence for CA Murderer:  LA Times writer David G. Savage reports on the Supreme Court's Monday decision to reverse the Ninth Circuit and restore a death sentence to a CA murderer.  Fernando Belmontes bludgeoned a young woman to death in 1981 to steal a stereo from her house that he later sold for drugs and beer.  The justices, in a unanimous opinion, rejected the notion that Belmontes should be spared because his lawyer had failed him by not presenting mitigating evidence about Belmontes' difficult childhood.  This is the third time the U.S. Supreme Court has had to reverse the decision by the 9th Circuit to rescend Belmontes' death penalty.  Kent's analysis is available here.

Halloween Attack Renews Debate on LWOP:  Mercury News writer Howard Mintz reports on the potential sentences of three teenagers accused of attempted murders of their 12 and 13 year old victims.  Currently locked up in Santa Clara County Jail, these 15 and 16 year old boys now find themselves in the middle of an ongoing debate over imprisoning violent juvenile offenders for life.  Last week, the Supreme Court heard arguments in Graham v. Florida and Sullivan v. Florida that will decide whether it is constitutional to sentence juveniles to life without the possibility of parole for crimes short of murder.  Kent Scheidegger, Legal Director for the Criminal Justice Legal Foundation, notes that the legal attack on life without parole sentences gained momentum after the Supreme Court struck down the death penalty for juveniles four years ago,"The ink was barely dry on the decision and there was an effort to apply the same rules to life without the possibility of parole."

"In Prison, Playing Just to Kill Time and Just Maybe to Help Solve a Murder":  New York Times writer Dan Barry reports on the appearance of a new product among prisoners: the unsolved deck.  The South Carolina Dept. of Correctons started selling these decks in its prison canteens for $1.72 about a year ago; since then, inmates have bought more than 10,000 packs.  Each card features the portrait of a crime victim and then along the bottom asks that if the inmate has any information on the case, to call a hotline number listed on the card.  Each card also lists *49, the anonymous prison hotline, to give a degree of safety to their reports.  Tom Lucas, designer of the cards circulating in South Carolina, has pictured on the Ace of Spades his son Brian, murdered in his motorsports shop in 2003.  While Lucas acknowledges that the cards have yet to solve a murder in South Carolina, he emphasizes that they have prompted dozens of tips, including a promising lead in a case more than a dozen years old.

Blog Scan

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Foreign Coverage of U.S. Death Penalty:  At Sentencing Law and Policy, Doug Berman posts a few articles from "across the pond" reporting on the state of the death penalty in the United States and abroad.  Chris McGreal reports for the U.K.'s Guardian that "Texas accounts for half of executions in the US but now having doubts over death row."  McGreal also reports that convicted murder Danielle Simpson is claiming that his years on death row have been a "form of torture."  Meanwhile, Irish Times writer Carol Coulter reports that former-Irish High Court Justice Richard Johnson believes the Irish government should look into the death penalty, because "if the people want it they should have it."  The former judge is in favor of revisiting whether Ireland should have a death penalty.  A constitutional ban on the death penalty was introduced as the 21st amendment to the Irish Constitution in 2001.

Monday's Supreme Court Action:  Tony Mauro reports for Blog of Legal Times, that the Court began the morning with a brief recognition of Justice O'Connor's late husband by Chief Justice Roberts Jr.  Mauro reports that the Chief Justice spoke on behalf of the Court and retired Justice Souter to express their "profound sympathy" to retired Justice Sandra Day O'Connor.  Mauro also commented that today's per curiam decision in Wong v. Belmontes, marks the third time the Supreme Court has reinstated the death penalty for Fernando Belmontes Jr., convicted in the 1981 murder of a California woman in the course of a burglary.  Volokh Conspiracy blogger Orin Kerr, comments that while there is nothing unusual about the Supreme Court reversing "liberal lion" Stephen Reinhardt on a death penalty case, the Belmontes case was unique for the simple fact that Reinhardt authored every opinion that the Supreme Court reversed in this case.  Kent's earlier post, "Thrice Vacated," elaborates on the Supreme Court's decision.

Prosecuting Khalid Sheik Mohammed:  Wall Street Journal's Law Blogger, Ashby Jones, wonders whether Mohammed will confess, and whether he will get the death penalty. Jones points to an article by Wall Street Journal writer Jess Bravin where Bravin writes that if Mohammed acts to speed his own execution and await what he asserts is glorious martyrdom with a guilty plea in federal court, he would bypass a trial, eliminate the need to select a jury and lead to sentencing probably before the end of 2010.  Apparently, Perkins Coie's Harry Schneider, who helped defend Osama bin Laden's former driver, in a military commission, thinks a confession is the likeliest scenario.  If the case does go to trial, however, Jones writes that if prosecutors pursue the death penalty, they pull from a jury pool that "is generally perceived by prosecutors and defense lawyers to be more liberal than other places."  For more on "The Best Way to Try Terrorists" check out former federal prosecutor James J. Benjamin Jr.'s debate with Glenn Sulmasy on the New York Times Opinion page (hat tip CrimProg Blog).   
Today, the U.S. Supreme Court agreed to address whether Billy Joe Magwood's second habeas petition, filed in 1997, was a "second or successive claim" under 28 U.S.C. §2244(b).  Magwood's Petition for Certiorari is asking the Court to address whether his claim is "second or successive" when he could have challenged his previously imposed (and now vacated) sentence on the same grounds.  A three judge panel for the Eleventh Circuit thought Magwood's petition was successive, but Magwood's attorneys, Jeffrey Fisher and Pamela Karlan of the Stanford Law School Supreme Court Litigation Clinic, see things differently. 

Magwood, a former jail inmate in Coffee County, Alabama, shot and killed Sheriff Grantham on March 1, 1979.  He was convicted and sentenced to death in 1981.  In 1983, he filed a petition for habeas corpus challenging his sentence under Alabama's 1975 Death Penalty Act.  A district court granted relief, finding the sentencing court had failed to consider certain mitigating circumstances.  Magwood was re-sentenced in 1986.  The Alabama trial court considered Magwood's additional mitigating circumstances, and again sentenced Magwood to death.  Both the Alabama Court of Appeals and the Alabama Supreme Court affirmed.   

Thrice Vacated

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As predicted, the Supreme Court has summarily reversed the decision of the Ninth Circuit in the latter court's third attempt to defeat justice for the murder of Steacy McConnell. The per curiam opinion in Wong v. Belmontes is here.

After having its decisions vacated by the high court twice before, the Ninth Circuit fell back on the old reliable ineffective assistance of counsel in the penalty phase claim.  On round 2, when it thought it had another basis for overturning the death sentence, the Ninth characterized the mitigation case that trial counsel put on as "substantial." On round 3, with no change the facts but only a change in whether it enabled overturning the death sentence, the Ninth labeled the very same case "cursory." See page 7 of the slip opinion.

There was no dissent. Justice Stevens kvetched separately to reiterate his disagreement on an earlier decision in the case.

This case illustrates clearly and obviously that the Ninth Circuit cannot be trusted to review the penalty phase of capital cases. There are rogue judges on that court who will find a reason to reverse every death sentence, and the court en banc is unwilling to rein them in. The jurisdiction should simply be removed from them.

Blog Scan

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Civilian Trials for 9/11 Suspects:  Our News Scan reported on the Obama Administration's decision to send five Guantanamo Bay detainees to a federal District Court in New York City for civilian court trial, and on SCOTUSblog, Lyle Denniston provides a little more information on the administration's announcement. According to Denniston, Attorney General Eric Holder, Jr., and Defense Secretary Robert Gates have decided to revive the stalled and often troubled military commission process, to try the detainee accused of orchestrating the October 2000 attack on the USS Cole.  Denniston's post also provides a link to Holder's statement, and the official press release from the Department of Justice.  Blog of Legal Times reporter Mike Scarcella also has a post discussing former Attorney General Michael Mukasey's criticism of the Justice Department's decision to prosecute the detainees in federal court.  According to Scarcella, the former AG believes prosecution of terror suspects in civilian courts poses a significant challenge to the criminal justice system.  He also worries that, "Manhattan could become a target for 'mischief' among the followers of the defendants."

Graham and Sullivan Decisions Could Reach Further Than Life Without Parole:
  On Wednesday, Gerry Shih, the author of the New York Times Bay Area Blog, posted his thoughts on a new San Francisco Board of Supervisors ordinance that bans local officials from reporting undocumented youth who are accused of felonies to federal immigration authorities.  The ordinance will treat adults differently, and continue to be reported to immigration authorities when arrested for felony crimes.  Shih believes that Graham, Sullivan and the ordinance all have one thing in common - "the question of whether the law should treat young convicted criminals differently than adults."  While he notes that "the age question [is] most salient when discussing life imprisonment," he believes that the Supreme Court's decisions will reach further than just life without parole.  He believes Sullivan and Graham could affect the way prosecutors treat juveniles arrested for rape, murder and robbery.  Right now, some can be prosecuted as adults, and Shih appears to wonder whether that could change after Sullivan and Graham are decided.

Violent Offenders Choose Their Victims:  At Judging Crimes, Joel Jacobsen wonders "how violent criminals, and especially rapists and abusers, choose their victims"?  Jacobsen explores his question by expanding on a study conducted by three researchers at Ontario's Brock University.  The study selected several women and brought them into Room A.  As the women were escorted from Room A to Room B, the researchers videotaped the women from behind, documenting their natural gait.  Videos of 12 of the women (six of them were prior victims) were chosen to show to a group of college males who had been rated for psychopathic traits.  The men were asked to rank the vulnerability of the women on a scale of 1 through 10.  The researchers "found a robust, positive correlation between psychopathy scores and accuracy in determining victim and [vulnerability]."  Jacobsen's terryifing conclusion is that prior victimization is a risk factor for future victimization because violent men identify vulnerable women.

Executions in North Carolina:  CrimProf Blog writer Kevin Cole posts a link to Cynthia F. Adcock's new SSRN article, "The Twenty-Fifth Anniversary of Post-Furman Executions in North Carolina: A History of One Southern State's Evolving Standards of Decency."  Adcock, a Charlotte School of Law professor, writes about the state of the death penalty in North Carolina.  She believes that while North Carolina is currently experiencing a de facto moratorium on executions, the state's new Governor, Beverly Perdue, will face "a wave of execution dates not seen by any previous governor of this state...."  Adcock believes this "wave" is the result of a "sea change" in both the public support for the death penalty in North Carolina and in the reliability of the death penalty system, which has increased dramatically due to recent reforms.  

KSM and the Single Juror Veto

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Evan Perez reports in the WSJ:

U.S. prosecutors plan criminal trials for five men accused of orchestrating the Sept. 11, 2001, terror attacks, and military tribunals for five others held at the Guantanamo Bay prison.

Khalid Sheikh Mohammed, self-described mastermind of the attacks, and four others will be tried in New York federal court. Attorney General Eric Holder said Friday he expects to order prosecutors to seek the death penalty in the five cases.

Many people are criticizing this decision for security reasons. We don't need to add anything to that debate. But there is another problem with federal civilian courts in a capital case, especially for a notorious terrorist. That is the asinine single-juror veto rule used in the penalty phase of such cases.

A life sentence for KSM would be a travesty of mammoth proportions. It's bad enough that we have Charles Manson and his classmates of the Class of '72 grinning at us from their inadequate punishment, but to have this killer of thousands do so is close to unthinkable.

Yet in federal court, if the jury votes 11 for death and 1 for life, the decision of the 1 prevails over the decision of the 11. This rule is brain dead, but it is followed in a surprising number of jurisdictions. One better alternative is the California rule, where deadlock means a mistrial and retrial of the penalty phase before another jury. Another is the Florida rule, where a nonunanimous jury can make a recommendation to the trial judge, who makes the final decision.

But isn't death so obviously the right punishment for KSM that we don't need to worry about that? No. Although people so adamantly against the death penalty that they would vote against it in every case are supposed to be screened off the jury, some simply lie when questioned about their attitudes. Among the murderers and terrorists who clearly deserved death but unjustly got less because of a small minority of the jury are:

• Zacarias Moussaoui, the so-called "20th hijacker"

• Conspirators in the plot to bomb U.S. embassies in Africa

• In Illinois state court, the perpetrators of the Brown's Chicken massacre

• In Georgia state court, Brian Nichols, the Atlanta courthouse murderer

In most of the states that have this rule, it is expressly in the statute. The badly drafted federal statute really doesn't say, but the Supreme Court found this rule implicit after the Fifth Circuit had interpreted it to be like the California system.

Whatever the source, Congress can fix it. They need to ram through a legislative fix pronto. Don't wait until another horse is stolen, the biggest one so far, before you lock the barn door.

News Scan

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"Medicalizing mass murder": In the WaPo, columnist and psychiatrist Charles Krauthammer punctures the notion that Nidal Hasan is a victim of secondary PTSD.  Krauthammer does this by noting that "[m]edicalizing mass murder not only exonerates.  It turns the murderer into a victim, indeed a sympathetic one."  The portrayal of Hasan as a possible victim, which has been advanced over the past week by the major media, may become the narrative for his defense now that he is facing trial by a military court and a possible death sentence as reported  by WSJ writers Yochi J. Dreazen, Peter Spiegel and Evan Perez. 

9/11 Defendants to be Tried in NY:  AP writer Devlin Barrett reports that five Guantanamo Bay detainees, accused of conspiring in the 2001 terrorist attack on the U.S., will be tried in New York federal court.  Among the defendants will be Kahlid Sheikh Mohammed, who has identified himself as the mastermind of the attack.  Attorney General Holder also announced that five other detainees accused of attacks on the military will be tried before a military commission.  The decision to try the 9/11 defendants in civilian court is reported to be a key step in the President's plan to close Gitmo.  It confirms that the administration intends to address the attack, which left nearly 3,000  dead, as a criminal act.  The sister of the airline pilot whose plane was hijacked and flown into the Pentagon responded to the announcement saying "We have a president who doesn't know we're at war." 

Governor Schwarzenegger - CA can comply with inmate release order:  AP writer Don Thompson reports that the Schwarzenegger administration has announced that California could comply with a federal judicial panel's August order to release over 40,000 prison inmates, if the judges choose to bypass the state legislature and pre-empt existing laws.  The administration's revised inmate release plan, released Thursday, presented the panel with options available to comply with their earlier order.  According to the Governor's Corrections Secretary "If the Legislature didn't make these changes, the court under its own powers could either waive state law...or order the state not to accept certain inmates."  The Secretary noted that California plans to appeal the release order to the Supreme Court.

Ohio Announces Plans to Switch to Single Lethal Injection Drug
:  AP writer Julie Carr Smyth reports that Ohio has become the first state to adopt a single drug procedure for lethal injections.  This method has never been tested on United States inmates.  In papers filed today, the state informed the U.S. District Court that it has decided to switch from a three-drug cocktail to a single injection of thiopental sodium into a vein. The state will also have a separate two-drug muscle injection available as a backup.  The idea for a single drug lethal injection procedure has been used in euthanizing animals and debated by states for some time, but Ohio is the first to drop the three-drug approach in favor of one dose. 

Blog Scan

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Supreme Court Database Covering 1953-2008 Terms:  SCOTUSblog's Erin Miller posts on a new online Supreme Court database that allows its users to search Supreme Court statistics and opinions, and answer questions like "How many Warren Court decisions declared an act of Congress, or a state constitutional provision unconstitutional?"  The database, compiled by Harold Spaeth and five other contributing law and political science professors, was funded by the National Science Foundation.  It features downloadable datasets and interactive search tools.  The website even provides a tutorial for those who are new to the site.  And for internet users interested in more than Supreme Court research, Ashby Jones reports on Wall Street Journal's Law Blog that recent George Mason law graduate, Josh Blackman, has created, a place for SCOTUS watchers to predict how the Supreme Court will rule on an argument and possibly win money.  Jones reports that points are awarded for predicting the outcome; the split (9-0, 8-1, 7-2, 6-3, 5-4, 4-1-4, or fragmented); as well as the justices in the majority and the justices in the dissent.  At the end of the term, points are tallied and a winner will be decreed.

"Nominations Talk Opens Federalist Convention":  At Blog of Legal Times, David reports that Senator Jeffery Sessions (R-Ala.), the top Republican the Senate Judiciary committee, launched the Federalist Society's annual convention with a speech criticizing President Obama's federal court nominations.  According to Ingram, Senator Sessions said that the confirmation process this summer of Justice Sonia Sotomayor showed that conservatives have a superior approach to interpreting the law.   He apparently encouraged conservatives to pursue a freewheeling, public debate on the role of federal judges.  Sessions is worried that "[u]nder the president's vision, the Constitution, I would suggest, is no longer the law of the land. Instead, each court... becomes a constitutional convention unto itself."

Commentary on Prosecuting "Non-stranger" Rape:  Judging Crimes blogger Joel Jacobsen has some interesting thoughts on what cross examination might sound like if we prosecuted auto theft the same way we prosecute "non-stranger" rape.  Jacobsen finds inspiration for his post from a recent CBS News interview with University of Massachusetts professor David Lisak.  Jacobsen's hypothetical cross-examination of an auto-theft victim gives its reader a good understanding of how Jacobsen feels about use of the consent defense in rape cases.

The Passing of John O'Connor III: 
Yesterday, at Blog of Legal Times, Tony Mauro reported that retired Justice Sandra Day O'Connor's husband, John O'Connor III, had passed away in Phoenix of complications from Alzheimer's disease.  As many know, Justice O'Connor decided to retire in 2006 in large part because of her husband's illness.  Mauro reports that services will be private.  Howard Bashman's How Appealing post includes a link to the AP report.    

Provocative Act Murder

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From the California Supreme Court today in People v. Concha, S163811:

Reyas Concha, Julio Hernandez, and Max Sanchez attempted to murder Jimmy Lee Harris. During the attempt, Harris responded in self-defense by stabbing Max Sanchez to death. Relying on the so-called provocative act murder doctrine, the jury convicted defendants Concha and Hernandez of first degree murder for the death of Sanchez. We granted review to determine whether a defendant may be liable for first degree murder when his accomplice is killed by the intended victim in the course of an attempted murder. We hold that a defendant may be convicted of first degree murder under these circumstances if the defendant personally acted willfully, deliberately, and with premeditation during the attempted murder.

I'm not a big fan of prosecutions such as this. The death of Sanchez was not a crime. The world is a better place without him. Concha and Hernandez should have been prosecuted for their crimes against Harris, but that's it.

News Scan

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"Death Penalty Rare, Executions Rarer in Military":  Associated Press writer Mark Sherman reports on the rarity of capital punishment in the military.  Though Major Nidal Hasan, the suspect in the shooting rampage at Fort Hood, could face the death penalty, he will be prosecuted by a military justice system that has not executed a person since 1961, although five men sit on the military's death row at Fort Leavenworth.  Authorities would have had more reason to take the case to federal court if they had found evidence Hasan acted with the support or training of a terrorist group, but investigators  believe he acted alone, without outside direction.  Before a military execution can be carried out, the president must personally approve.  The President's involvement sets military death-penalty cases apart.  The President can commute any federal death sentence, civilian or military, but must personally approve each military execution and sign an order to carry it out.  This makes the execution a political act of the president, subject to the differences of each administration.

UK Moves to Decrease DNA Database:  Associated Press writer Sylvia Hui reports on the UK's decision to decrease the size of their database.  Britain said Wednesday it plans to get rid of DNA profiles of most innocent people after six years in response to a European Court of Human Rights ruling that said keeping the information indefinitely was a violation of privacy.  The DNA of terror suspects could still be held indefinitely, even if they are not charged with terrorist offenses.  Britain has one of the largest DNA databases in the world, with profiles of over 5 million people, or 8 percent of their population.  Human rights groups are calling the six year retention of DNA unethical, and violating the spirit of the Court's ruling to get rid of innocent peoples'  DNA profiles.  Britain's government said that DNA data is essential for fighting crime and providing justice for victims.  The Home Office said that between April 1998 and September 2009 there were more than 410,589 crimes with DNA matches, providing the police with leads on the identities of offenders.

Some California Inmates Striving for Death Penalty:  LA Times writer Carol J. Williams reports on a problem that CA's penal system is facing with the current state moratorium on executions and an appeals process that can last for decades.  Most recently, white supremacist gang hit man Billy Joe Johnson got exactly what he asked for of the jury that convicted him of first-degree murder last month, a death sentence.  It was not remorse that drove him to his request, but the expectation of more comfortable living conditions on death row coupled with the knowledge that the executioner would be decades away if it came at all.  Compared to Virginia, where Beltway sniper John Allen Muhammad was put to death Tuesday night, capital punishment in California is a process that has become so bogged down by legal challenges it viewed by some as an empty threat.  "This is a dramatic reaffirmation of what we've already known for some time, that capital punishment in California takes way too long," Kent Scheidegger, Legal Direct for the Sacramento based Criminal Justice Legal Foundation, said of Johnson's gamble on life on death row.

New Lawsuits Threaten to End of Judicial Immunity:  Wall Street Journal writer Ashby Jones reports on the concept of absolute judicial immunity, and how today we are seeing it called to question.  People who believe they have been wronged by a judge can ask the judge to reconsider, appeal to a highe court or, if they suspect judicial wrongdoing, ask a bar association to investigate.  People cannot usually sue.  Absolute Judicial Immunity shields judges when they issue a ruling that makes someone unhappy.  A set of civil lawsuits filed against two former Pennsylvania judges is testing this doctrine of immunity.  In January, federal prosecutors filed fraud charges against Mark A. Ciavarella and Michael T. Conahan for allegedly sending numerous juveniles to detention centers over several years in exchange for more than $2.6 million in kickbacks.  After these criminal charges, several lawyers have filed civil suits seeking monatary damages on behalf of dozens of families, stating that the judges violated their civil rights.  "On one level, it seems outrageous to ban someone from suing a corrupt judge," states University of Pittsburgh law professor Arthur Hellman, "But if you allow plaintiffs to pierce the immunity by alleging bad motive, it opens the floodgates."

Miranda With an English Accent

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The new issue of Engage, the journal of the Federal Society's Practice Groups, is out, just in time for the National Lawyers Convention. The table of contents and a link to a PDF of the full issue are here.

Among the articles is one by CJLF's Lauren Altdoerffer comparing the U.K.'s statutorily prescribed interrogation warnings with the U.S.'s judicially crafted Miranda rule. A key difference in the U.K. is that the suspect is advised that his silence can be used at trial if he raises something he would reasonably have been expected to say upon arrest. For example, an arrestee with a real alibi would be expected to say so immediately. A criminal who wants to concoct a false alibi needs to line up people willing to lie for him first. There is a logically valid inference from silence in that situation, and the trier of fact should be allowed to consider it.

Contrary to popular myth and the prescribed Miranda warnings, the Fifth Amendment does not contain a right to remain silent. It says, "nor shall any person ... be compelled in any criminal case to be a witness against himself...." That is not the same thing.

Josh Blackman is liveblogging the Convention here.

 My name is Kwang Im Szuszka.  My sister, Hong Im Ballanger, was murdered on September 23, 2002, in Baton Rouge, Louisiana.


After finishing her work, and while walking toward her car, she was shot by snipers John Allen Muhammad and Lee Boyd Malvo.  The bullet hit her in the back of the head and exited through her mouth and chin.


My sister was a wonderful wife and mother to three sons, Greg, Jimmy, and Josh.  She was like an angel. She loved her family and friends and helped many people.  My family and I are devastated at her loss, and we grieve her absence each moment of every day.


John Allen Muhammad was a cold-blooded murderer.  He never gave any sort of apology to any of the families of the victims he murdered.  He stole so many precious lives from the families and friends who loved them.  He deserves the punishment he was given.  "Our loved ones will never come back."  I believe justice has been served.


I have much compassion for Muhammad's children and I pray that God will protect them.


I would like to thank everyone who worked so hard on this case.  I'm so proud that the United States government has laws set in place to protect its citizens from people like Muhammad and Malvo.  These men thought they were above the law and could get away with the horrible things they did.  The American law enforcement community has proved them wrong, and for that I am very grateful.  Thank you.  Muhammad's death has brought me and my family a measure of peace.  I wish that Malvo could face the same punishment.


Kwang Im Szuszka

Blog Scan

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New Supreme Court Justice Biography:  Erin Miller posts on SCOTUSblog that USA Today writer, Joan Biskupic, has published a new book on Justice Antonin Scalia.  The book, American Original, is being advertised as "The first full-scale biography of the Supreme Court's most provocative -- and influential -- justice."  SCOTUSblog's Tom Goldstein had the opportunity to interview Biskupic about her book.  The podcast covers Scalia's family, his "[t]wo passions: religion and Roe," and her predictions on Justice Scalia's legacy.  Ashby Jones posts more on Justice Scalia at the Wall Street Journal's Law Blog.  Jones' post wonders how Justice Scalia would have voted in Brown v. Board of Education

Coverage of Yesterday's Supreme Court Arguments:  Howard Bashman has compiled an extensive list of the media's coverage for oral arguments in Sullivan v. Florida and Graham v. Florida.  Our News Scan rounded up coverage from the New York Times and the LA Times this morning, and Kent's posts on Graham and Sullivan are available here and here

Justice Alito's Concurrence in Bobby v. VanHook:  At Blog of Legal Times, Marcia Coyle reports on what she calls, "A Justice's Curious Comment About ABA Guidelines For Death Penalty Lawyers."  Coyle's post reviews Justice Alito's concurring opinion, which emphasized his view that no "special relevance" should be given to the American Bar Association's guidelines on the appointment and performance of defense counsel in death penalty cases.  According to Coyle, Justice Alito's opinion reflects his belief that the ABA, an organization with limited membership, does not "reflect the views of the bar as a whole."  It is up to the courts to determine whether a defense lawyer's work meets the constitutional standard, not the ABA.  Those who support use of the guidelines, like Eric Freedman a member of the ABA's death penalty steering committee, believe "the ABA guidelines are only guides to putting content on the very vague Strickland standard."   

Federalist Society's National Lawyers Convention in Washington D.C.:
  The Federalist Society will be holding its annual National Lawyers Convention this Thursday, Friday and Saturday at the Mayflower Hotel.  Justice Alito will be speaking Thursday evening, and former Attorney General, Michael B. Mukasey, will be speaking Friday.  The schedule is available here.    

The Governor and the Sniper

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Ever since Virginia elected the anti-death-penalty Tim Kaine as its governor four years ago, I have been concerned that in his lame-duck period he might follow the path of convicted felon George Ryan and start issuing commutations en masse. He promised not to, but politicians have been known to break promises before.

It's a good thing that DC sniper John Allen Muhammad is the first execution of Kaine's lame-duck period. If he commuted this sentence, the backlash would be enormous. If he does not, then any large scale commutations will look even more unprincipled.

Today, Kaine's office issued this press release:

"Muhammad's trial, verdict, and sentence have been reviewed by state and federal courts, including the Supreme Court of Virginia, United States District Court for the Eastern District of Virginia, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court. Having carefully reviewed the petition for clemency and judicial opinions regarding this case, I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts.

"Accordingly, I decline to intervene."

Good. Now just keep that up through the end of your term.

Missouri Injection Decision

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More post-Baze cleanup work from the Eighth Circuit today in Middleton v. Crawford, No. 08-2807:

News Scan

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Role of Age in Life Sentences:  New York Times writer Adam Liptak reports on two cases concerning youth life without parole being considered by the Supreme Court.  The majority of justices seemed inclined to find a way to take account of the age of young offenders in deciding whether they may be sentenced to LWOP.  Liptak reports there was disagreement over whether to draw various lines for judging youthful offenders, or whether case by case determination is the right approach.  A lawyer for Joe Sullivan, who was sentenced to life at age 13 for the rape of a 72 year old woman, asked the court to say the Eighth Amendment's prohibition on cruel and unusual punishment forbids such sentences for youths under 14 convicted of any crime, including murder.  In the other case, a lawyer for Terrance Graham, sentenced to life for armed burglary at 16 and a probation violation at 17, says the line should be set at 18 but only for crimes that did not involve killing.  The court's capital jurisprudence has already drawn lines, forbidding the execution of offenders under 18 in Roper v. Simmons and of people of any age for crimes against individuals other than murder last year in Kennedy v. Louisiana.  The question in these two cases is whether to extend the logic of these decision to cases outside the area of the death penalty.  Another article by the LA Times discussing the topic can be found here.

Recent Cases Ensuring Death Penalty Vitality:  Sentencing Law and Policy writer Douglas A. Berman opines on three recent cases in today's public media that highlight the public's desire to keep the death penalty.  Virginia's efforts to execute the DC sniper, the consideration of capital punishment for the Fort Hood shooter, Nadal Hassan, and Ohio's sex offender serial killer, Anthony Sowell, are three of the top news stories of the last few months.  In all three cases, the public is confronted by sociopaths who have committed multiple brutal and senseless murders that have terrorized local communities and drawn the ire of the nation as a whole.  In none of these cases is the guilt of the offender an issue, and neither is there any good chance that poor lawyering or racial bias or any other kind of procedural defect caused an unfair trial.  With three such strong examples of why we need capital punishment filling up the news channels, there is little chance that anti-death penalty activists will change the minds of Americans on the subject anytime soon.

The Sullivan Argument

Now this is really sweet. The Sullivan case contains a major jurisdictional question of whether the state court decision rests on independent state grounds. Counsel for Sullivan, Bryan Stevenson, completely ignored that question in his principal brief on the merits. The State addressed it in their brief, and so did CJLF in our amicus brief. In his reply brief, Stevenson finally addressed the point.

On the first page of his argument, Stevenson only gets two sentences out on the point he really wants to argue before Justice Ginsburg cuts him off and directs him back to jurisdictional point. Then he takes fire from her and Justices Sotomayor, Scalia, Kennedy, and Alito (i.e., a majority) for the next ten pages before he is able to say another word about the underlying question.

But Justice Ginsburg isn't finished with him. When he comes back for rebuttal, there is this on page 48:

The Graham Argument

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The Graham case presents the constitutional question in its clearest terms. Unlike Sullivan, there is no procedural obstacle to reaching the merits. The facts also present the problem of a bright-line rule most clearly. Graham was just 35 days short of his 18th birthday when he committed the last offense. To believe in a constitutional bright line at the 18th birthday, you have to believe that Graham's sentence violates our most fundamental law even though the same sentence would have been perfectly proper had the same person with the same record committed the same crime 35 days later.

That's pretty hard to swallow, and in today's argument no Justice gave a clear indication of having swallowed it. Unlike a death sentence, which is cleanly distinguishable from all other sentences, a life-without-parole sentence may not be significantly different in reality from other sentences. How about a sentence of life with the possibility of parole after 50 years? How about consecutive sentences for each offense that add up to something far beyond defendant's life expectancy? The Justices asked about these possibilities, and defense counsel did not have a clear answer.

But is age irrelevant? Of course not. Well, why not take the proportionality rule from Solem v. Helm and Harmelin v. Michigan and say that age is a key factor under that rule? Chief Justice Roberts pushes hard for this rule throughout the argument. None of the others objects to it as a matter of principle. On pp. 21-23, Justice Ginsburg asks if there is an express proportionality review in Florida procedure. No, but at least since Solem in 1983 a proportionality objection has always been available as a matter of federal law, and a defendant can make it as part of the argument on sentencing.

The Chief knows where he wants to go with this case, and no one else seems to have a strong difference of opinion. Justice Breyer was uncharacteristically quiet. I think the Chief will get a majority, maybe even unanimity, for a resolution that does not differ much from the existing noncapital proportionality rule.

Blog Scan

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Is Life Without Parole for Juveniles Cruel and Unusual?:  SCOTUSblog writer Lyle Denniston posts that in today's Supreme Court oral arguments in Graham v. Florida, Chief Justice Roberts appeared to be urging the Court to decide that a state sentence to life without parole for juveniles does not violate the Eighth Amendment. According to Denniston, the Chief Justice favored an approach that would require judges to take the offender's youth into account in setting any sentence for a term of years, then judge whether that sentence was "proportional" both for an offender of that age and for the particular crime.  Hopefully the Court finds Chief Roberts' alternative more attractive than an outright ban.  Another issue addressed by the Court today was whether the Court had authority even to hear Sullivan v. Florida on the constitutional question.  That was addressed in our brief, and the 11 pages the Court spent reviewing the issue with Sullivan's counsel indicates the Court may not extend its ruling in Graham to Sullivan's case.  Doug Berman also posts on Graham and Sullivan at Sentencing Law and Policy. He wonders exactly how the Justices will line-up when the Court's decision comes down. 

The Fate of Major Nidal Malik Hasan:
  At Wall Street Journal's Law Blog, Ashby Jones wonders what will become of accused Fort Hood shooter, Major Malik Hasan once proceedings against him really begin.  Jones points to a Houston Chronicle article by Lynsi Burton and Stewart M. Powell that reports much of Hasan's fate rests in whether civilian prosecutors conclude he was part of a terrorist plot that might justify moving his case into the federal criminal courts under U.S. anti-terrorism laws.  This does seem likely to either Jones or the Chronicle. They write that Hasan is most likely to be court-martialed under Article 2 of the Uniform Code of Military Justice, and punished for offenses allegedly committed by a man wearing a U.S. military uniform against other military personnel on a military base.

The Constitution's "Necessary and Proper" Clause and the Adam Walsh Act:  At Volokh Conspiracy, Randy Barnett blogs that in the case, United States v. Comstock (08-1224), the Supreme Court could find a limit to Congress' ability "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."  Barnett, one of the authors of an amicus brief supporting Comstock, writes that a provision of the Adam Walsh Child Protection and Safety Act that authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be "sexually dangerous;" is not linked to one of the Constitution's enumerated powers.  Barnett, and co-author Ilya Shapiro believe that Congress' implied power "to establish a federal penal system" provides insufficient grounds for support.

Not Quite like the U.S. Supremes:  Howard Bashman posts an article from the Financial Times on the £350 fee the United Kingdom's Supreme Court will be charging members of the public who want access to court documents.  Financial Times writer, Michael Peel, reports that the Court provides free internet access for video links to easily digestible summaries of its judgments, but will charge those who want "to do an old-style reading of available legal arguments...a high price for their interest."  This makes this old-fashioned SCOTUS watcher all the more thankful for our Supreme Court's simple -and free- website.    

News Scan

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Is Sentencing a Juvenile to Life in Prison Cruel and Unusual Punishment?: Washington Post writer Robert Barnes reports that the US Supreme Court will hear arguments today on whether sentencing a juvenile to life in prison without parole is a violation of the Eighth Amendments ban on cruel and unusual punishment.  USA Today writer Joan Biskupic also reports on the cases.  The two cases that are at the center of the controversy are Graham v Florida and Sullivan v Florida.  In 2003, Terrance Graham was sentenced for armed robbery for attempting to rob a restaurant.  In 2005, Graham took part in a home invasion.  At that time, he was on probation for the 2003 robbery conviction.  Graham, a few days short of his 18th birthday, was sentenced to life imprison without parole.  The other petitioner, Joe Sullivan was sentenced to life in prison without parole for the 1989 rape of an elderly woman.  Today there are an estimated 111 defendants nationwide serving a life sentence for a crime other than murder that they committed when under 18. In support of Florida, the Criminal Justice Legal Foundation has submitted a friend of the court brief, found here.  Our Legal Director, Kent Scheidegger, also recently took part in this New York Times debate.  This is not the first time that the US Supreme Court has heard arguments on sentencing juveniles.  In 2005, the Court was asked to decide whether a state could sentence juvenile murderers to death.  The Court ruled that a state cannot execute any murderer under the age of 18.  Some hope that the Court will use the same reasoning to determine whether juveniles should be sentenced to life without parole for committing a crime other than murder.  Those supporting Florida say that this penalty is reserved for the worst offenders and is used to make the community safer.    

Evaluation of Kentucky's Death Penalty:  Louisville Courier- Journal writer R.G. Dunlop reports that many believe Kentucky's death penalty system is ineffective.  Since Kentucky reinstated its death penalty in 1976, 92 defendants have been sentenced to death, but only three have been executed.  More than one-third of the state's 36 current death row inmates have been there at least two decades.  This has caused critics to question whether Kentucky's death penalty system is worth it.  David Sexton, former prosecutor for the state Attorney General believes, it is inappropriate to apply a cost-benefit analysis to crimes that may be "too reprehensible ... to reduce the equation to some sort of business decision."  The cost of the death penalty is also an issue in California.  According to a study released by the anti-DP Death Penalty Information Center, California is spending $137 million per year in capital cases and has not carried out an execution since January 2006.   But the death penalty can save the states the cost of a trial as a negotiation tool.  Sacramento Bee writer Julie Johnson reported that the I-5 strangler, Roger Reece Kibbe, pleaded guilty to killing Lou Ellen Burleigh in 1977, and Lora Heedrick, Barbara Ann Scott, Stephanie Brown, Charmaine Sabrah and Katherine Kelly Quinones, in 1986, to elude the death penalty.  While some states are evaluating the effectiveness of their death penalty, Kentucky last addressed the issue in 2002.  Governor Steve Beshear said that he supports the death penalty "for violent and heinous crimes, and that public safety should not be sacrificed because of economic or budgetary concerns."      

No Stay for the Sniper

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The U.S. Supreme Court denied a stay of execution for convicted D.C. sniper John Allen Muhammad and denied his certiorari petition. Virginia takes the bold step of setting an execution date after the federal court of appeals decides the habeas petition, not waiting for the certiorari petition to the Supreme Court to be resolved. Justices Stevens and Ginsburg are unhappy with that, and new Justice Sotomayor has joined the call to stay all such cases until consideration of the certiorari petition in the normal course.

The Court did not accept any new cases for review in its Monday orders list. The Belmontes, Porter, and Wellons cases noted here are not on the list and will presumably be relisted for a later conference.

The Limited Relevance of ABA Guides

The U.S. Supreme Court today summarily reversed the Sixth Circuit for relying too much on ABA Guidelines when deciding a capital ineffective assistance case. There was no dissent. Justice Alito wrote separately to say he didn't think the Court had devalued the ABA Guidelines quite enough.

The opinion in Bobby v. Van Hook, No. 09-144, is here. The lower federal courts dithered with this case so long that it actually predates the provisions of the Antiterrorism and Effective Death Penalty Act of 1996. Yes, this case is a habeas petition filed 14 years ago.* 

JLWOP Debate

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The New York Times "Room for Debate" feature has this online debate on the Graham and Sullivan cases between Marc Mauer of the Sentencing Project and yours truly.

Update (12:35 p.m. ET / 9:35 a.m. PT): Lyle Denniston reports at SCOTUSblog that "it did not appear that there was a clearcut majority for taking away altogether the life-without-parole option even in cases where the victim of a youth's crime did not die." The transcript is not available yet.

Update 2: The transcript of the Graham argument is here. Due to the heavy load on the Court's website, we will temporarily mirror the transcript here.

Update 3: The transcript of the Sullivan argument is here.

Blog Scan

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SCOTUSblog Recaps Oral Argument in Wood v. Allen:  Readers who would like a quick recap of how members of the U.S. Supreme Court addressed the interaction between 28 U.S.C §2254(d)(2) and §2254(e)(1) should check out Anna Christensen's SCOTUSblog summary of the argument and Kent's Wednesday post. Christensen's post gives a quick account of the questions the Justices asked Wood's counsel, Kerry Scanlon, and the Solicitor General of Alabama, Corey Maze.  She notes that the Justices seemed particularly concerned with whether Wood's case actually addressed the question on which the Court granted certiorari, and worried that the interpretation proposed by the Solicitor General of Alabama would be too complicated for courts to apply.  According to Christensen, this was the primary concern of the Court, and after arguments, it is "in no way clear" how the Court will chose to define the relationship between 28 U.S.C §2254(d)(2) and §2254(e)(1).  The transcript is available here

Senate Rejects Proposal that Detainees Not be Tried in Federal Court:  At Jurist, Andrea Bottorff reports that the Senate voted yesterday to reject an amendment to an appropriations bill that would have prevented Guantanamo detainees accused of participating in the 9/11 attacks from being tried in federal courts. The amendment was proposed by Senator Lindsey Graham (R-SC) who had proposed the amendment in response to a letter signed by the families of 9/11 victims. Bottorff reports that the Obama Administration is expected to announce plans for detainee prosecutions by November 16th.

The "Slim Pickings" for the Next Supreme Court Vacancy:  At NRO's Bench Memos, Ed Whelan comments that if President Obama is given the opportunity to appoint a Supreme Court Justice next year, his pool could be fairly limited.  Whelan writes that if President Obama focuses his search on federal appellate judges who are 60 or younger by next year, and were appointed by a Democrat, he may only have 14 to choose from.  Whelan believes that only three or four on his list would be serious candidates.  He believes Diane Wood could still be a pick.

News Scan

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DP Case Sent Back Over IQ Dispute:  Jeff Arnold from the Arkansas Times Record reports that the Arkansas Supreme Court has ordered additional review of evidence that a convicted murderer was competent to stand trial in 2002.  Ricky Newman confessed to the murder of Marie Cholette and was sentenced to death.  He initially waived his right to appeal saying that he wanted to be executed.  He later claimed that he had been mentally incompetent. The doctor who had twice found him competent for trial and sentencing later reported that in his second review of Newman, he administered the wrong IQ test and miscalculated the results.  The defense also claims that the prosecution withheld evidence showing that Newman was not guilty.

AG Tries to Protect Sex Offender Restrictions:  The Associated Press reports that Attorney General Jack Conway is asking the U.S. Supreme Court to suspend a Kentucky high court ruling which lifted the residency restrictions on convicted sex offenders.  The state court 's October 1st ruling announced that the restrictions incorporated in the Kentucky sex offender law were unconstitutionally applied to defendants convicted prior to the law's enactment.  The law prohibits sex offenders from living within 1,000 feet of schools, child care facilities and playgrounds.  The press release from Kentucky's Office of Attorney General provides a link to the Application to Stay. 

NY Governor Wants to Close Repeat Offender Loophole: Robert Baker of The Post Standard reports that Governor David Patterson is pushing the New York Legislature to close a loophole which automatically gives repeat offenders credit for the time served for their earlier crime.  As a result, serious repeat offenders receiving these credits become eligible for parole earlier.  They might serve less time than those convicted of a lesser offense.  To remove the windfall, the Governor proposes a requirement that all serious felons and repeat child sex offenders serve their new sentences consecutively to any time left remaining on the new sentence.

Original Habeas

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Habeas corpus petitions filed directly in the U.S. Supreme Court -- as opposed to asking them to review denial of a petition by a lower court -- used to be a zero-chance proposition. After the Troy Davis case, discussed here, we can't say it's zero any more. It's almost zero. The Court today denied the original habeas petition of Khristian Oliver. Michael Graczyk has this story on the execution for AP.

For more background, there is this story yesterday by Christy Wooten in the Nacogdoches Daily Sentinel.

Blog Scan

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Post-Booker Sentencing Disparities:  At Sentencing Law and Policy, Doug Berman posts on the "blame game" for the increasing number of sentencing disparities taking place in courts.  As our News Scan demonstrates, sentencing disparities have recently been the subject of some media criticism, and Berman comments that it may not be fair to blame judges for the increased disparity in sentencing outcomes after Booker.  Berman believes that judges are probably the least likely to blame for sentencing disparities, and instead places blame on Congress, the U. S. Sentencing Commission, The Supreme Court and the circuit courts, and the Justice Department.  Berman believes these actors deserve more blame than judges, because sentencing judges are "principally focus on achieving individualized justice in the individual cases they address each day."  Ashby Jones comments on today's Wall Street Journal article on WSJ's Law Blog. 

Sex Offender Residency Restrictions in the California Supreme Court: 
At Sex Crimes yesterday, Corey Rayburn Yung posted on oral arguments in a California case addressing sex offender residency restrictions.  Yung's post expands on the media coverage of the case, briefly mentioned in Monday's News Scan, and adds that the "California case could be important in the overall scheme of residency restriction law."  Yung believes that because California is the most high profile state to have its highest court review sex offender registry restrictions, the decision could have a wide effect.  A decision is expected within 90 days of oral arguments.

Can Ineffective Assistance of Counsel Be Legal Malpractice?: 
That's what Jonathan Adler wonders on Volokh Conspiracy.  Adler's post notes that "it is rare that defense attorneys are sanctioned for providing inadequate assistance to capital defendants," even though it is commonly claimed by capital defendants in their appeals. This could be because it deters criminal defense attorneys from taking capital cases, but it could also lead some attorneys to "tank" bad cases.  Adler points to the the Sixth Circuit holding in Johnson v. Mitchell as an example.  Johnson is the rare case of a defense attorney who secured a new capital trial by arguing that the defendant's first defense attorney was ineffective for failing to investigate the defendant's background for potential mitigation evidence.  The same attorney then proceeded to make the same error when he represents the defendant in the new trial.  Adler wonders whether the attorney's deficient representation was a product of incompetence or design.  He also believes the attorney should be sanctioned.  

Specter Speaks, He Wants the Justices on T.V.:
  At Blog of Legal Times, David Ingram reports on Senator Specter's (D-PA) Senate floor speech advocating televising sessions of the U. S. Supreme Court.  According to Ingram, the Senator's speech was meant to get a "sense of the Senate" and  line up his colleagues behind a resolution to place cameras in the Supreme Court.  His speech points out that the justices have not exactly been camera-shy and several have appeared on television shows like Primetime, CBS News and 60 Minutes.  Specter has pushed legislation for television coverage in the past, but it never won Senate approval. The new resolution, he said, is a more "restrained and modest approach."

Abuse of Discretion Standard

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From the en banc Ninth Circuit in a federal criminal case, United States v. Hinkson, No. 05-30303:

Today, after review of our cases and relevant Supreme Court precedent, we re-state the "abuse of discretion" standard of review of a trial court's factual findings as an objective two-part test. As discussed below, our newly stated "abuse of discretion" test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

Applying our "abuse of discretion" test, we affirm the district court's rulings.

Sounds a tad like 28 U.S.C. §2254(d), doesn't it? The opinion is by Judge Bea, with the dissent by Judge W. Fletcher. The vote is 7-4. Hinkson is a tax loony who had the misfortune to draw a Ninth Circuit pseudo-en-banc panel with a majority of persons of sense. In poker, that's called a "bad beat." The portion of the opinion summarizing Hinkson's claim is after the jump.

News Scan

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"Looser Sentencing Rules Stir Concerns About Equity":  Wall Street Journal writer Amir Efrati reports that federal judges today are excercising more freedoms as they depart from sentencing guidelines.  This new latitude in sentencing is creating a problem in the justice system: Defendants are receiving wildly different sentences for similar crimes.  This freedom of judicial sentencing risks a return to the problem that prompted Congress to call for uniform sentencing guildelines in the late 1980s, that defendants' fates will be subject largely to the whims of individual judges.  Even Attorney General Eric Holder is concerned.  In June, he said in a speech it was important to assess recent sentencing practices for disparties.

Wood v. Allen Competency Claim Varied:  New York Times writer Adam Liptak reports on a claim of incompetency in the defence of Holly Wood, convicted in 1994 of murdering his former girlfriend.  Wood is seking a decision overturning his death sentence because, he claims, his defense attorneys did not thoroughy investigate and produce evidence of Wood's mental retardation.  SCOTUSwiki summarizes this as a strategic move by the defendants attorneys to receive a merciful sentence.  The Criminal Justice Legal Foundation's press release on the case further shows how Wood's claim to mental retardation was a fabrication.  There were notes from his mental evaluation revealing Wood had a low IQ, but the same report shows he suffered no mental impairment that prevented him from understanding that his criminal behavior was wrong. Recognizing that the evaluation, as well as Wood's own statements about being prone to violent behavior might harm their defense, his lead attorney asked the court to suppress the evaluation and all other psychiatric and psychological evidence from the trial or sentence hearing.  As Justice Scalia noted, "There was nothing [in the report] that was going to help them, and there might be stuff that could hurt them."  It doesn't sound like he believed counsel was as ineffective as Woods claims.

USCA4 Nominations

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Now here is something interesting. Michael Fletcher reports in the WaPo:

President Obama Wednesday named two new nominees to serve on the Fourth Circuit U.S. Court of Appeals....

Obama nominated Judge Albert Diaz, a North Carolina superior court judge who handles complex business cases, and Judge James Wynn, of North Carolina's state Court of Appeals.

Morphing the Question Presented

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The Questions Presented in Wood v. Allen, argued today, have to do with the requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA) on federal courts' treatment of state court findings of fact. Yet for the first three pages of his argument, counsel for Wood didn't say a word about the fact findings but instead talked about the application of the Strickland v. Washington ineffective assistance of counsel standard.

The Justices weren't too pleased about the ruse of getting certiorari on one question and then arguing another question. Justice Alito leads off on page 5. Then the Chief chimes in. Then Justice Sotomayor asks it again on pages 8-9. So does Justice Ginsburg on page 14. When counsel returns for rebuttal, the Chief has counted quotations of the statute, 28 U.S.C. §2254, and notes that the "application" prong of the statute ((d)(1)) is quoted 11 times in the body of the petition but the "fact" prong ((d)(2)) is not quoted at all. "Now, I think there's a huge difference between (d)(1) and (d)(2). We've been talking about (d)(2) in a case that was only brought under (d)(1)."

It will be interesting to see how they deal with this. Justices who believe that a death-sentenced inmate has a solid claim on the "application" point (as Justice Ginsburg apparently does, p. 14) may be willing to waive the question-smuggling rule, as the Court has discretion to do.  However, several of the Justices, probably a majority, are much less impressed with the claim and may deliver a rebuke about misstating the question.

There is also a nugget in the argument for writers of Supreme Court briefs. When the opinion below is both published in the regular reports (e.g., the F. 3d) and reprinted in the appendix to the certiorari petition, should you cite to particular points in the decision with the page in the F. 3d or the page in the appendix?

Apparently the F.3d (or other official or quasi-official report). On pp. 11-12, counsel cites to a point in the App. to Pet. for Cert. Justice Kennedy asks for the F.3d page. Counsel doesn't have it. It's a small point, perhaps, but just one more thing to go wrong in what is already a high stress situation.

This is one more reason for numbering the paragraphs of opinions, as they do in avant-garde jurisdictions such as Mississippi.

Blog Scan

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Public Shaming Instead of Incarceration:  At Sentencing Law and Policy, Doug Berman posts on a Pennsylvania district attorney's decision to pursue probation instead of incarceration for two women who were arrested for stealing a gift card from a nine-year-old girl on her birthday.  The two women were arrested for swiping a gift card that the girl set on a shelf while a Walmart employee helped her.  The women have agreed to hold the signs in front of the Pennsylvania courthouse, reading "I stole from a 9-year-old girl on her birthday!  Don't steal or this could happen to you!" Of course, shaming punishment can only work on people who have a sense of shame, which seems to be a diminishing portion of the population.

Becker-Posner Book:  Gary Becker and Richard Posner, the editors of the Becker-Posner Blog, have published a book of greatest hits from their blog. The book includes a chapter on crime and terrorism.

D.C. Sniper Claims Ineffective Assistance to SCOTUS:
  Yesterday, D.C. Sniper, John Allen Muhammad asked the U.S. Supreme Court to halt his November 10th execution.  Today, Doug Berman posted a link to Maria Glod and Josh White's Washington Post article on the appeal.  According to Glod and White, Muhammad's petition alleges that his trial attorneys were ineffective for failing to object to Muhammad's demand to represent himself at trial.  The petition alleges his attorneys should have argued that Muhammad's mental problems made him unfit to present his own defense.  Berman also links to this SCOTUSblog post describing "the legal particulars" of the case.  Berman speculates that the Supreme Court will decline to take up this high profile case.  With only six days left before the scheduled execution, we will know the answer soon enough.  Wall Street Journal's Law Blog also has this post by Ashby Jones.

What Election Results Could Mean for the Next Supreme Court Vacancy:  At NRO's Bench Memos, Ed Whelan comments that after testimony in Justice Sotomayor's confirmation hearings "exasperated and disgusted many of her supporters," the "Left will be pushing for the next nominee to be an ardent advocate of the progressive vision of constitutional decisionmaking."  Whelan believes that, after results in yesterday's elections, the Left may not get its wish. 

The Perils of Genetic Mitigation

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From the New Scientist: Murderer with 'aggression genes' gets sentence cut.  And Prof. Farahany gets it right:  There are easily many more genes that could suggest a defendant should be incapacitated far longer than a typical sentence dolled out these days.  The real danger of linking genes with responsibility is that our genetic make-up is permanent. And that generally precludes any rehabilitative efforts.  

Parole Supervision of Garrido

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California's Inspector General, who keeps tabs on the Department of Corrections and Rehabilitation, has issued a report on the supervision of Phillip Garrido, who is accused of keeping the kidnapped Jaycee Dugard prisoner for 18 years despite the supervision. The IG does not agree with CDCR's self-congratulatory statement issued after Garrido's arrest and Jaycee's liberation. The executive summary says, "While it is true that Garrido's California parole was never officially violated, our review shows that Garrido committed numerous parole violations and that the department failed to properly supervise Garrido and missed numerous opportunities to discover his victims."

Also, "In this special report, the Office of the Inspector General shines a public light on systemic problems that transcend parolee Garrido's case and jeopardize public safety."

News Scan

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UPDATE Italy Convicts 23 in CIA Trials:  New York Times writer Rachel Donadio reports on the recent convictions of twenty-three Americans for the seizing of a Muslim cleric from the streets of Milan more than six years ago.  While three of the high-ranking American defendants were given diplomatic immunity, CIA station chief in Milan, Robert Seldon Lady, received an 8-year-term for his part in the seizure.  The other twenty-two Americans each received five years.  All were tried in absentia and it is unlikely that any will serve.  This was the first time American agents were tried in a foreign country for kidnapping and rendition.

Ohio Begins Setting New Execution Dates:  Associated Press writer Andrew Welsh-Huggins reports that after Gov. Ted Strickland's unprecendented halt of an execution, and grant of five-months reprieve to death row inmates, the Ohio Supreme Court has set two new execution dates.  These two dates are scheduled for May 13th and June 10th, even as the state develops new policies for lethal injection following the two hour failed attempt to execute inmate Rommel Broom.

Marijuana Statement Release by White House:  In a statement by Office of National Drug Control Policy Director R. Gil Kerlikowske, Kerlikowske is quick to point out that the Department of Justice's guidelines on marijuana usage are not meant as a Federal government approval of medical marijuana.  Marijuana legalization is something that is not on the agenda for the Obama administration.  Legalization is being sold as a cure-all for ending violence in Mexico, a cure to state budget problems, and a cure for health problems, Kerlikowske states, but American's should be skeptical of anyone selling one sultion as a cure for every single problem.  The taxes collected on legal drugs, alcohol and tobacco, substances pale in comparison to the social and health care costs related to their widespread use.

Stifling Prosecutors Worries Courts:  Associated Press writer Jesse J. Holland reports on a Supreme Court case in which two prosecutors were sued by the men they had convicted of first-degree murder.  The convictions were thrown out and the men sued the prosecutors. The lawyers unsuccessfully argued in the civil rights suits against them that they had absolute immunity because they were doing their jobs as prosecutors.  The case was argued before the Supreme Court this morning, several justices are worried about the effects such a ruling would have on prosecutors, where suspects would be able to sue prosecutors simply because they didn't like the verdict.  An earlier blog scan on the case can be found here. The argument transcript in Pottawattamie County v. McGhee is here.

Hope and Change

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One year ago, things looked grim for the forces of justice. A great deal of progress had been made in the previous 20 years, but a real danger of seeing it all undone was there. It was not just that the White House and both houses of Congress were in the hands of the Democratic Party. That had been the case in much of the post-WWII era. The danger was that the Democratic Party itself was in the hands of its further left (or "lefter") wing. From VJ Day through 2004, every time the Dems nominated their lefter candidate, they lost the general election. Now a disciple of Saul Alinsky (author of Rules for Radicals) was in the White House, and Nancy Pelosi (D-Wackoville) remained Speaker of the House. Although crime had been a nonissue in the election, friends of criminals were ascendant. What would happen next? Would the Supreme Court be filled with younger versions of Judge Reinhardt? Would the habeas reforms of AEDPA be repealed? It was not out of the question.

It didn't happen in the first year. I don't doubt that they would have liked to do these things, but they were not high on the agenda. In Supreme Court nominations, an unnamed White House official told the press "on background" that Democrats are always afraid of being pegged as "soft on crime," and Justice Sotomayor's prosecutor background and moderate-to-tough record in criminal cases as a judge were therefore considered pluses. We dodged a bullet (I think) because politics trumped ideology. On the legislative side, there apparently just wasn't room on their very full plate for rolling back the habeas reforms of AEDPA.

And what will the next year hold? Well, if they were scared of the "soft on crime" tag before, they should be terrified now. The off-year election is one year away. That is a point in the cycle in which the White House party historically loses seats, and it will be one year after Republicans won decisively in a state Mr. Obama carried and, more significantly, also won in a very heavily Democratic state. It will be an election in which war and the economy will likely be reduced as issues below what they were in 2008, raising the possibility that crime will resurface as an issue.

Let us suppose, hypothetically, that a Supreme Court Justice retires this June, five months before the election. Will this White House nominate one of the many Court of Appeals judges who delights in letting murderers off death row? Not likely. Will Pelosi, Reid, and Co. ask their members to pass pro-murderer legislation? Not likely. If they do, will members in genuinely contested seats vote for it? Not a snowball's chance in hell.

There is good reason to hope that the change already achieved will be maintained for the foreseeable future. Nothing good legislatively will come out of Nancy Pelosi's Congress, but they probably will not do much harm in the criminal law. Further positive change is quite likely in the judicial arena, and good legislation is a possibility in the next Congress. If the Republicans gain a substantial number of seats they might take control, but even if they do not the Democrats might see the light and dump their present leadership for people closer to the American median. It is not too much to hope that the 112th Congress will be in the control of persons of sense, and that would be a most welcome change.

Changing Times

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Is a fistfight in a newsroom news? Is it more like a dog biting a man or a man biting a dog?

WaPo editor Henry Allen, 68, is genuinely surprised that his fisticuffs with reporter Manuel Roig-Franzia made news, Michael Calderone reports at

"Back when I got into journalism, the idea that a fistfight in a newsroom would turn into a news story was unthinkable," Allen said when reached Monday evening. "The guys in the sports department at the New York Daily News, they had so many, you wouldn't even look up."

The incident and the reaction to it illustrate changing social mores. Allen's punch was a response to a vulgar insult by Roig-Franzia, which in turn was a response to Allen's harsh criticism of another reporter. Once upon a time, a punch would have been considered the appropriate response to such an insult in most of society. Today, most of society expects only a verbal response. Of course, in some depraved subcultures today, the normal response to being "dissed" is a drive-by shooting.

News Scan

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DC Sniper Cert. Petition: Mark Sherman reports for AP that D.C. sniper John Allen Muhammad has asked the Supreme Court for a stay of execution while they consider his certiorari petition.

Cal. Sex Offender Residency Restriction:  Jason Dearen reports for AP on oral argument in the California Supreme Court on the constitutionality of the portion of the state's "Jessica's Law" that bans registered sex offenders from living with 2000 feet (0.38 miles) of schools and parks. CJLF warned back in our Winter 2006 newsletter that this provision was constitutionally questionable because it effectively exiled registered offenders from some cities in their entirety.

Sheriff Makes Inmates Pay:  The New England News reports on a sheriff's controversial plan to make inmates pay for their time in prison.  In 2002, Bristol County sheriff Thomas Hodgsons began charging inmates fees for everyday services.  These included small fees for renting a cell, getting a haircut, and taking the G.E.D.  Hodgson ran the program for two years and got $750,000 in escrow.  A superior court judge ordered him to stop, but the sheriff has appealed and now the case is before the Supreme Judicial Court.

Ex-Con Charged in Mayberry Shootings:  Associated Press writer Alysia Patterson reports on a soured affair that may have led an ex-convict to gun down four men.  Marcos Chavez Gonzalez was charged with four counts of murder in the slayings last Sunday.  Jose Armando Hernandez said through a translator that three of the victims were his nephews and that his family has been destroyed over problems Gonzalez had with a woman.  Gonzalez has already served two years on a 2002 conviction for kidnapping a minor and a probation violation. 

Don't Flip Off the Judge:  The Chicago Area Local News reports on a man's punishment for raising his middle finger and hurling profanities at the judge while being sworn in. Kane Kellet is charged with aggravated battery and assault, and is accused of attacking two people, one of whom was a pregnant woman.  After Kellet's actions in court, Judge G. Martin Zopp promptly gave Kellett six months in jail for contempt of court.

Fifth Time the Charm?

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The US Supreme Court has relisted the Belmontes and Van Hook cases for their fifth consideration in five conferences on Friday. Prior posts here, here, here, and here.

Also up for their fifth and third considerations, respectively, are two prisoner petitions in capital cases, Porter v. McCollum from Florida and Wellons v. Hall from Georgia. In both of these cases, like Belmontes, the Supreme Court asked for the lower court record. However, while in Belmontes and McCollum the docket says "Record received from the U.S. Court of Appeals..." in Wellons it says "Record received electronically from the U.S. Court of Appeals...." Progress!

Oral arguments for Tuesday are all civil cases. Erin Miller summarizes at SCOTUSblog.

Sullivan Going Down

Some precedents are so obnoxious that seeing them overruled becomes something of a mission in itself. Among my career targets have been Fay v. Noia, 372 U.S. 391 (1963), overruled in Coleman v. Thompson, 501 U.S. 722 (1991) and Brown v. Allen, 344 U.S. 443 (1953), abrogated by Congress in AEDPA as recognized in Williams v. Taylor, 529 U.S. 362 (2000).

In Sullivan v. Little Hunting Park, 396 U.S. 229, 234 (1969), Justice William O. Douglas wrote for the Court that the U.S. Supreme Court had jurisdiction to review a federal question despite a state court ruling that the plaintiff had defaulted the claim under state law, for no reason other than that the rule "was more properly deemed discretionary than jurisdictional...." This is quintessential Douglas. If he researched the precedents on this question at all, the opinion shows no sign of it. His Imperial Majesty just issued his decree, and that was that. The odd thing was that four of his colleagues, some of whom usually had more sense than that, went along with it.

There actually was a good reason for holding the state ground inadequate, and Justice Harlan explained it in five pages of the dissent (242-247).  But "the majority's loose use of the word 'discretionary'" would cause problems for many years to come. See also 16B Wright, Miller, & Cooper, Federal Practice and Procedure, § 4026, pp. 385-386 (2d ed. 1996). One recent instance was Kindler v. Horn, 542 F.3d 70, 80 (CA3 2008), where the Third Circuit said,

When Kindler escaped in 1984, Galloway [a state court precedent on the fugitive dismissal rule] had not been overruled. Accordingly, the state trial court still had discretion to reinstate his post-verdict motions. Accordingly, we conclude that, under Doctor [a Third Circuit precedent on the "adequacy" of Pennsylvania's rule], Pennsylvania's fugitive waiver law did not preclude the district court from reviewing the merits of the claims raised in Kindler's habeas petition.

Ouch. The state court having discretion is enough to brush aside the state rule, and no more needs to be said?  The case was argued today in the Supreme Court as Beard v. Kindler. I feel confident in saying that Sullivan is down for the count. Justice Breyer says on page 38, "everybody agrees that the simple existence of discretion does not make a State ground inadequate...."

But just saying that and sending the case back, as some seemed to want to do, would provide insufficient guidance, Justice Breyer goes on. Discretionary rules will always have some degree of inconsistency in application. Doesn't the Court need to explain how to answer the inevitable follow-up question of how much is too much?

In CJLF's brief, we urge the Court (not for the first time) to adopt the late Charles Alan Wright's approach of reasonable notice and opportunity to make the claim. The state agrees. I don't know if the Court will go that far, but the law after Kindler should be in better shape than it was before. And Sullivan will finally be dead and buried.

Update: Erin Miller at SCOTUSblog has a different take on the argument.

Punishment for Escape

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Here is a nugget from the oral argument transcript in Beard v. Kindler. How does a state punish an escape by a person sentenced to death? One way is to declare his claims against his sentence forfeited, but Matthew Lawry was arguing against that:

CHIEF JUSTICE ROBERTS: No, no. Obviously if the State prevails he's in a worse position. But under your view, he's in this -- he's in no worse position. He hasn't waived all his objections and claims, procedures.

MR. LAWRY: Well, there are certainly other things that the State can do. They can -- they can prosecute him criminally for escape. There is administrative confinement, those kinds of things. But there is really --

JUSTICE SCALIA: Before or after his execution?


Blog Scan

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A SCOTUS Media Round-Up:  SCOTUSblog's Anna Christensen posts a Monday Round-up: Afternoon Addition discussing blog and media coverage of today's Supreme Court action.  She points to Kent's post on today's Supreme Court orders, and also links to David G. Savage's L.A. Times coverage of Wong v. Belmontes, a case the Supreme Court has once again decided to re-list.  Savage's coverage of the case focuses on in "the contrasting approaches [to the death penalty] of the regional U.S. courts of appeals."  He writes that while the South is "dominated by conservative judges who are inclined to reject appeals and to uphold death sentences[,]" the Ninth Circuit's decision to grant relief still stands, even though "[e]ight conservative judges of the 9th Circuit dissented and said the full appeals court should reconsider the ruling."

January Oral Arguments:  Lyle Denniston posted a link to the Supreme Court's January Oral Arguments Calendar today on SCOTUSblog.  It looks like Briscoe v. Virginia (07-11191) will be argued on Monday, January 11th, and Berghuis v. Smith (08-1402) will be covered on Wednesday, January 20th. 

Be Wary of Statistics: 
At Volokh Conspiracy, Eugene Volokh comments on how statistics get distorted by advocates citing studies.  He uses the example of a "legal academic discussion list" that had said, "[i]n two thirds of battered women's households that contained a firearm, the intimate partner used the gun against the woman, usually threatening to shoot/kill her (71.4 percent) or to shoot at her (5.1 percent)."  Volokh notes that this sounds like a lot of death threats, and goes directly to the study to find it is limited to women in California that are living in shelters.  These qualifying facts make a big difference.  Volokh reasons, "many of [the women] would have been deliberately threatened with death or serious injury at some point, which may be what led them to flee in the first instance; they are probably more likely than the typical person, including the typical domestic violence victim, to have been threatened in an especially serious way."  We have seen this before with death penalty statistics, and Volokh's example is important to keep in mind anytime an interest group cites a study to prove a general proposition.

Los Angeles Police Chief Given Credit for Dropping Crime Rates:  CrimProf Blog links to an L.A. Times article by L.A.'s growing confidence in its police force.  The authors credit the city's new found confidence in the LAPD to retiring Police Chief William J. Bratton.  Over the past seven year's Bratton's force has shown "drops in every major category of crime: drops of 53.1% for homicides, 38.6% for rapes, 66.9% for aggravated assaults, 28.6% for robbery."  The drop could be due to the 828 officers who were added to the force under Bratton's tenure, and is just one more example of how important it is to prioritize law enforcement when budget's are tight. 

News Scan

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Jessica's Law Challenge Reaches CA Supreme Court:  San Jose Mercury News writer Howard Mintz reports that the California Supreme Court will hear oral argument Tuesday for a case challenging residency restrictions on sex offenders under Jessica's Law.  In four consolidated cases: In re J. (E.) on Habeas Corpus (S156933);  In re P. (S.) on Habeas Corpus (S157631); In re S. (J.) on Habeas Corpus (S157633); and In re T. (K.) on Habeas Corpus (S157634), the court will consider whether the restrictions on where convicted sex offenders may live are so broad and intrusive that they violate constitutional rights of registered sex offenders.  The Jessica's Law initiative (Propostiion 83) was adopted by state voters in 2006.  It restricts registered sex offenders from living within 2,000 feet of a school, park or child care center.

Stop & Frisk Overused in NY?  In a New York Daily News article, City Journal contributing editor Heather MacDonald questions mayoral candidate William Thompson's assertion that a careful analysis of the NYPD stop and frisk policy is necessary to assure that officers are not violating New Yorkers' civil rights.  MacDonald notes that an analysis has already been done.  She cites a 2006 Rand study that documented over half a million encounters between police and civilians.  The study found that, based on perpetrator descriptions reported by the mostly minority victims and witnesses, the New York police had "greatly understopped" blacks compared to their crime rates.  She also notes that New York's aggressive policing strategy has brought down the crime rate by 77% over the past sixteen years, helping to revitalize the once crime infested city. 

DNA Links Peeping Tom to 11 Rapes:  AP writer Heather Clark reports that a DNA sample taken from a man by Colorado police has linked the man to the rapes of 11 women in New Mexico and Texas over a 15 year period.  Robert Howard Bruce was arrested on October 6th for rigging a propane tank to pump the gas into the home of a Pueblo County police officer the day he was scheduled to testify against Bruce in a peeping Tom case.  Bruce is wanted in  Albuquerque for 44 violent felonies including rape, kidnapping, aggravated battery and aggravated burglary.  While Albuquerque police had DNA samples from the victims, they did not have a sample from Bruce. Allowing DNA testing of arrestees seems like a good idea.  

Driving While Stoned

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Matt Kelley blogs on criminal justice issues at, and I rarely agree with him. But like the proverbial stopped clock:

Advocates for marijuana reform frequently argue that the drug should be legalized because it's safe.... But when it comes to driving and safety, legalization advocates often go a step too far -- claiming that driving under the influence of marijuana is not dangerous and that marijuana causes zero deaths each year.  These misleading arguments are harming the reform movement.

It's a fact: marijuana impairs driving ability. Reliable scientific studies have shown that marijuana usage causes slower reaction time, impairs eye tracking and lateral awareness and that drivers fail to reliably regulate speed and the distance between their car and the car ahead of them. Driving ability is especially bad when the a person has smoked recently.

No Zero Risk Option

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Lester Jackson has this article in TCS Daily titled, "A Death Penalty Red Herring." He attacks the argument that any risk at all of executing an innocent person makes the death penalty unacceptable. Life imprisonment is not zero risk either, though, because some murderers sentenced to life do kill again. Jackson notes that many of the same people are now arguing against life-without-parole sentences, when paroling killers involves a greater risk of death to innocent people. Yet they brush this off as an acceptable risk of a policy they favor even while maintaining that no risk at all is tolerable in a policy they oppose. A more detailed paper with references, "Fact Suppression and the Subversion of Capital Punishment: What Death Penalty Foes on the Supreme Court and in the Media Do Not Want the Public to Know," is on SSRN.

Supreme Court Orders List

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The US Supreme Court has released its orders list from Friday's conference. Once again, the capital cases of Belmontes from California and Van Hook from Ohio, previously noted here, are not on it. They will likely be relisted for a fifth consideration at a future conference. David Savage has this story on Belmontes in the LA Times, written before release of today's orders list.

The Court declined the request of the evenly divided en banc Fifth Circuit to clarify a statute of limitations question in a 60s-era civil rights case, United States v. Seale. Under the Lindbergh Law in effect at the time of the crime, kidnapping in certain circumstances was a federal capital offense, and there was no statute of limitations (and still is not) on capital offenses. A later amendment removed the death penalty. Did that amendment impose the regular statute of limitations by implication, or do alleged perpetrators of crimes committed when they were capital remain subject to prosecution for life?

Justice Stevens, joined by Justice Scalia, thinks the Court should have taken the Fifth's certified question. Even though they will get another crack at it if Seale's other claims on appeal are rejected, answering the question now would facilitate other such prosecutions going forward if the Court says it's okay or avoid the cost of trial and ultimate reversal if the Court says it is not. Unstated but lurking in the background is the fact that people who were in their prime in 1964 are now elderly and may escape prosecution through the ultimate loophole if their cases are delayed much longer.

One criminal case was sent back for reconsideration under last term's Melendez-Diaz case on confrontation of witnesses. The Court accepted three civil cases.

The Court asked for the views of the Solicitor General in four cases, two of which are prisoner cases involving damages suits under the Religious Land Use and Institutionalized Persons Act. SCOTUSblog has the details here. Howe and Russell represent the prisoners.

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