February 2010 Archives

Mock Trial on DP

Tuesday starting at 6:30 GMT, there will be a "mock trial" on the death penalty in London. (That is 1:30pm ET or 10:30am PT.) Witnesses for the "defense" will be Paul Cassell, Robert Blecker, and yours truly. The announcement is here.

The "verdict" is probably predetermined. As I understand it, the audience will vote. Given that the audience is people who have paid $100 to attend a fundraiser for an anti-death-penalty organization, a unanimous vote for the other side is a distinct possibility, regardless of the presentations. My experience is that events such as this rarely or never sway the views of anyone whose mind is already made up either way, and not too many "swing votes" attend.

Nonetheless, this is a chance to present the other side to people who have probably never heard anything but the anti side's propaganda. The sponsors do seem to be interested in having the presentations balanced and flew us over for that purpose.

Don't know yet if the event will be available on the Web.


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Dr. Edward Shorter has this commentary in the WSJ on the draft DSM-V. The most important part for our topic is near the end:

A new problem is the extension of "schizophrenia" to a larger population, with "psychosis risk syndrome." Even if you aren't floridly psychotic with hallucinations and delusions, eccentric behavior can nonetheless awaken the suspicion that you might someday become psychotic. Let's say you have "disorganized speech." This would apply to about half of my students. Pour on the Seroquel for "psychosis risk syndrome"!

DSM-V accelerates the trend of making variants on the spectrum of everyday behavior into diseases: turning grief into depression, apprehension into anxiety, and boyishness into hyperactivity.

Any collection of behaviors with a code in the DSM will be claimed as mitigation in criminal cases, if not a complete excuse for crimes. The continuing sprawl of such "diseases" is cause for concern.

Blog Scan

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Monday at the Supreme Court:  Today, SCOTUSblog has two posts addressing cases that will be argued at the Supreme Court on Monday.  In one post, Harvard Law School student Kate Wevers previews Holland v. Florida (09-5327), a capital case addressing whether AEDPA's one-year time limit can be equitably tolled when the petition is not timely filed if the prisoner alleges the delay was caused by the "gross negligence" of his lawyer.  Wever's post details the procedural history of the case, and briefly describes the arguments made by the Florida Attorney General, Holland, and Holland's amici.  Wever's post omits the fact that in 1990 witnesses saw Holland brutally beat a woman to the point of unconsciousness and shoot the police officer who tried to stop him.  The post also fails to mention the arguments made by amici on behalf of the Respondent.  Amicus briefs for the State of Texas, et. al., and the Criminal Justice Legal Foundation are available here and here.  In another SCOTUSblog post, Anna Christensen mentions that Berghuis v. Thompkins (08-1470) will be argued on Monday.  She then links to Charles Weisselberg's Huffington Post critique of the Obama administration's position in the case.  According to Weisselberg the Administration's stance is "more hostile to Miranda than any taken in the Supreme Court by previous Democratic Administrations."  The S.G.'s brief is available here, and CJLF's brief in Thompkins is available here.

Was It Acceptable to Sentence a Drug Cartel Chief in Private?:  At Sentencing Law and Policy, Doug Berman posts links to recent media coverage of the "super-secret" sentencing proceedings of Osiel Cárdenas Guillén, the head of the Gulf Cartel, which controls much of the cocaine traffic across the border in South Texas.  According to a New York Times article by James C. McKinley, Jr., Cárdenas Guillén pleaded guilty to drug dealing, money laundering and the attempted murder and assault of federal agents, and was sentenced 25 years in federal prison.  An editorial in the Houston Chronicle criticizes the private sentencing procedures, and argues that handling the sentencing through closed hearings and sealed documents "is unacceptable."  The editorial argues that the public should have had access to the sentencing, and "[a]t a minimum,...should be entitled to an explanation of why secrecy is being granted."

The Liu Nomination:
  Earlier today, Kent had a post discussing the death penalty views of Ninth Circuit judicial nominee Professor Goodwin Liu.  At Volokh Conspiracy, David Kopel provides information regarding Liu's views on firearms policy.  Apparently in a 2003 Georgetown Law Journal article, Liu and co-author Senator Hillary Rodham Clinton criticized recent Supreme Court decisions declaring two federal gun control laws unconstitutional.  Liu and Clinton did not like that activists judges were overturning gun laws created by Congress, and argued that the decisions "underscore how important it is that we in the Senate diligently exercise our constitutional duty to scrutinize judicial nominees--including nominees to the lower federal courts."   Ed Whelan has multiple posts on Liu at Bench Memos.

Moving USCA9 in the Wrong Direction

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    However partisan the atmosphere in Washington may be, there is one thing I thought there should be a consensus on -- the U.S. Court of Appeals for the Ninth Circuit is badly out of the mainstream on criminal cases generally and capital cases in particular. Therefore, any appointments to that court should be made with the purpose of correcting toward the middle.

    Astonishingly, the Administration has done just the opposite. It has nominated Berkeley Professor Goodwin Liu. When Justice Alito was nominated, Professor Liu wrote a paper titled "Judge Alito and the Death Penalty." I wrote a rebuttal.

    To anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point. If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case. Adding him to the Ninth would take a court that is already far out of the judicial mainstream and push it even further in that direction.

    This calls for pull-out-the-stops opposition. The West suffers to this day from appointments made by Jimmy Carter on the advice of Alan Cranston three decades ago. We don't need more bad appointments to plague us for another generation.

Blog Scan

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Origins of Shatzer's 14-day Clause:  At SCOTUSblog and Volokh Conspiracy, Orin Kerr takes a look at how yesterday's decision in Maryland v. Shatzer created a new rule of criminal procedure.  Kerr writes that yesterday's decision in Shatzer addressed whether the Supreme Court's ruling in Edwards v. Arizona (that police cannot question a suspect after he has requested a lawyer) still applies "if the suspect has been released from police custody and is then rearrested."  According to the Court it does not, and, according to Kerr, the Court's decision created a "clear rule" that police may re-interrogate a suspect 14 days after his first interrogation.  So where did this 14-day rule come from?  Kerr isn't sure.  His guess is that "14 days was chosen [because]... it's easy to remember and seemed in the right ballpark."

Justice Stevens May Set Another Milestone:
  At Blog of Legal Times, Tony Mauro "Track[s] Justice Stevens' Milestones[,]" and writes that in about three months Justice Stevens "will pass 'the great chief justice' John Marshall in terms of length of service, and a month after that he'll pass Justice Stephen Field's length of tenure as well, lagging behind only William O. Douglas."  Justice Stevens would need to serve two more years to reach Douglas' record, who interestingly, Justice Stevens succeeded to the Court.  Mauro also writes that statistics posted on the Oyez Project demonstrate that Justice Stevens "is also bumping up to a record held by Justice Oliver Wendell Holmes Jr. as the oldest justice to serve on the Court."

Ninth Circuit Rules on Miranda and "Involuntary" Confession:  Earlier today a Blog commenter linked to a "freshly minted" Miranda case from the Ninth Circuit.  This afternoon, How Appealing's Howard Bashman linked to Judge Rawlinson's opinion and an AP news story by Amanda Lee Myers.  The case, Doody v. Schriro, involves the 1991 murder of six priests, a nun and two helpers during a robbery at a Buddhist temple west of Phoenix.  The bodies at the temple were found arranged in a circle, and all had been shot in the head.  Today, the Ninth Circuit ruled that Doody's confession was involuntary partly because he wasn't properly read his rights by the officers interrogating him.  The court reversed the lower court's decision and remanded the case to the district court to grant Doody's habeas petition. 

News Scan

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Supreme Court Relaxes Miranda: Los Angeles Times writer David G. Savage reports on Wednesday's Supreme Court decision, Maryland v. Shatzer, to allow a suspect to be questioned for a second time 14 days after first invoking his Miranda "right to remain silent".  A 7-2 majority overturned a strict rule set in 1981 that barred police from questioning a suspect after he had asked to remain silent and speak with a lawyer.  Known as the "Edwards rule," it was intended to prevent investigators from "badgering" a suspect who was held in jail after he had invoked his Miranda rights.  "In a country that harbors a large number of repeat offenders, the consequence" of the no-further questioning rule "is disastrous," said Justice Antonin Scalia.  Lauren's blog on the decision can be found here.  Our brief in the case can be found here.

NY Subway Bomb Plotters Say "Not Guilty": Associated Press writer Adam Goldman reports on the guilty pleas of two high school classmates of admitted terrorist plotter Najibullah Zazi for a foiled plot to bomb New York City subways in the days after the eighth anniversary of the September 11th attacks.  Zarein Ahmedzay and Adis Medunjanin were indicted with conspiracy to use weapons of mass destruction, conspiracy to commit murder in a foreign country and providing material support to the al-Qaida terrorist network.  After Zazi pleaded guilty last week (News Scan coverage available here) Attorney General Eric Holder stated that, "The facts alleged in this indictment shed further light on the scope of this attempted attack and underscore the importance of using every tool we have available to both disrupt plots against our nations and hold suspected tterrorists accountable." Both Ahmedzay and Medunjanin had travelled to Pakistan with Zazi in 2008.  Medunjanin's attorney did not know if Zazi had told prosecutors anything about his client.

UPDATE "Death Penalty Thrown Out in Texas Murders": New York Times writer John Schwartz reports on Wednesday's Texas Court of Appeals' decision to throw out the death sentence of a man whose double murder conviction gained international attention because of revelations that the judge and prosecutor had had an extramarital affair.  The Court of Appeals, however, did not mention the affair, instead focusing on whether jurors had been blocked from getting information that mght have helped them deliver a less severe sentence.  The court's decision will give convicted murderer, Charles Hood, a new hearing on the question of punishment.  The Criminal Justice Legal Foundation's Kent Scheidegger stated that now that the death penalty has been removed from the table, it is unlikely the Supreme Court will agree to hear the petitions for appeal.

Blog Scan

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Reporting on Early Prison Release:  Today, at Sentencing Law and Policy, Doug Berman posts a link to John Gramlich's Stateline.org article detailing how different states are treating early prisoner release.  Gramlich's article focuses on an Oregon law that lets some of the state's inmates trim as much as 30% from their sentences through expanded "earned-time credits," which are awarded to prisoners who finish coursework, gain work experience or otherwise work to improve their lives behind bars.  The law has moved up release dates for about 3,500 prisoners, including 950 who have already been released.  Victims, prosecutors and Oregon's State Attorney General, John Kroger, all say that the law goes too far, and inmates should only be able to shave 15% off their sentences through credits.  Gramlich reports that last week, Oregon lawmakers suspended the earned-time program until 2011, and made changes to ensure that serious criminals no longer will be eligible for 30% sentence reductions when the program resumes.

President Obama Nominates Two for Federal Appellate Court:  At Blog of Legal Times, Mike Scarcella reports that the President has nominated Goodwin Liu and Judge Robert Chatigny for spots on the Ninth and Second Circuit.  Liu is a professor at the University of California, Berkeley School of Law.  He also chairs the board of directors for the American Constitution Society for Law and Policy (which Ed Whalen mentions in his Bench Memos post).  Jonathan H. Adler briefly discusses Liu's nomination at Volokh Conspiracy, and Ashby Jones offers some comments on Wall Street Journal's Law Blog.  Goodwin Liu's name has appeared on our blog before.  In 2005, Professor Liu co-authored a paper criticizing then-Federal Judge Alito's death penalty decisions.  Kent's response to his critique can be found here
Judge Robert Chatigny has served on the federal bench since 1994 and served as Chief Judge from 2003 to 2009.  The official announcement is here.    

Jeffrey Skilling was convicted for, among numerous other things, conspiracy to violate the federal "honest services statute," 18 USC § 1346, for his role in the collapse of Enron.  He was sentenced to 24 years.  His case will be argued next week in the Supreme Court.  The focus will be on whether the statute is too vague to pass muster under the Constitution -- in other words, whether a person of normal intelligence could figure out what behavior is forbidden.

My own view is that the need for honest dealing is beyond the law's capacity to establish; it's a cultural problem, and in this culture the problem has become severe.  Still, the Skilling case might have something to say about it.  My analysis of what will happen, and what should happen, follows the break.  To give a hint:  I think Skilling should prevail, but not for the reasons that have become the conventional wisdom among Court watchers.

Detention of Enemy Aliens

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AUSA Theodore Cooperstein has this article in the Dartmouth Law Journal:

How should the United States deal with alien enemies during the ongoing Global War on Terror? The government's new policy to end the detention of combatants in Guantanamo Bay seems to offer only two choices: try alien enemies in the civilian criminal justice system or simply release them. Conveniently, the Alien Enemy Act of 1798 provides another alternative. This paper outlines the Act's history and explains its implications for America's options in dealing with alien enemies in the War on Terror.

1798? Another oldie but goodie.

Oh, Never Mind

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The controversy in the Charles Hood case about the judge who years earlier had an affair with the prosecutor is now moot, at least as to the death sentence. The Texas Court of Criminal Appeals today ordered resentencing on other grounds. The problem (as in so many Texas capital cases, and, to a lesser degree, those of other states) is the U.S. Supreme Court's inability to agree with itself from one year to the next what the Constitution requires and what it forbids.

We wade once more into the murky waters of Penry law and the Texas death-penalty sentencing scheme. The ebb and flow of constitutional jurisprudence concerning when and what special instructions are necessary for the jury to give meaningful consideration to relevant mitigating evidence has sharply divided the United States Supreme Court, the Fifth Circuit, and this Court for some twenty years. The Chief Justice of the Supreme Court has noted that the jurisprudence surrounding the intersection of mitigation evidence and the Texas "nullification instruction" in pre-1991 death-penalty cases is "a dog's breakfast of divided, conflicting, and ever-changing analyses." Reasonable jurists differ on these matters.

Update: John Schwartz has this story in the NYT.

News Scan

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First Amendment vs Aid to Terrorists:  Adam Liptak of the New York Times reports on the Supreme Court hearing on Tuesday regarding a complicated dispute over free speech and lending aid to terrorists.  In Tuesday's arguments in Holder v. Humanitarian Law Project, Solicitor General Elena Kagan defended 18 U.S.C. §2339B(a)(1), a 1996 law designed to combat terrorism, as "a vital weapon in this nation's continuing struggle against international terrorism."  Lawyer, David D. Cole, representing the Humanitarian Law Project, challenged the law claiming it is unconstitutional with respect to speech that furthers lawful, nonviolent activities of proscribed organizations.  His clients claim they want to provide support for the legal, nonviolent activities of a Kurdish political party and a Tamil group, both of which have been designated as terrorist organizations by the State Department.  According to Kagan, even this benign help is prohibited, stating that, "What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs."  Justice Anthony M. Kennedy, the Court's most popular defender of First Amendment freedoms admits this is "a complicated issue".  "Support of any kind", says Kennedy, "will ultimately inure to the benefit of a terrorist organization, and we have a governmental interest in not allowing that." Lauren's blog on the oral argument can be found here.

Decision in Maryland v. Shatzer

The U.S. Supreme Court announced its decision in Maryland v. Shatzer (08-680) today.  The opinion is available here.  Our brief in the case is available here

The decision recognizes an exception to the requirement in Edwards v. Arizona that an officer must cease interrogation once a suspect invoked his right to counsel, and established that a "break in custody" permits the police to resume questioning a suspect who had previously asked for a lawyer.  Seven members of the Court agreed that if the "break in custody" lasts more than 14 days between interrogations, Edwards did not require suppression of the confession.  Justices Thomas and Stevens did not join the 14-day rule.

Update: Tony Mauro has this story for the NLJ: "'Miranda' dealt one-two punch by high court"

Sins of Omission

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Lauren notes the NYT article on the Charles Dean Hood case. The first sentence of the article is:

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case.
Only those readers who make it halfway down the article find out that the affair ended three years before the trial. Readers never do find out that the jury, not the judge, is the primary decision-maker on capital-case sentencing in Texas. Simply saying that Hood was sentenced to death by the judge leaves a reader with the impression that she made the discretionary sentencing judgment call in the case, which is not true.

That is not to defend what happened in this case, but there is no reason to make it sound worse than it really was.

Blog Scan

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Supreme Court Hears "Difficult" Antiterrorism Case:  At SCOTUSblog, Lyle Denniston reports on today's oral arguments in Holder v. Humanitarian Law Project (08-1498) and Humanitarian Law Project v. Holder (09-89).  The two cases address whether provisions in 18 U.S.C. §2339B(a)(1), a 1996 law designed to combat terrorism, are unconstitutional with respect to speech that furthers lawful, nonviolent activities of proscribed organizations.  After today's oral arguments, Denniston was left with the impression that the Supreme Court might be "tempted to conclude that, perhaps, the law may go too far."  The transcript is available here.  Howard Bashman provides links to media coverage of the argument at How Appealing. 

Counsel in Death Penalty Cases:  "Hire a Lawyer, Escape the Death Penalty?" That's what Scott Phillips proposes in his Issue Brief from the American Constitution Society.  A reader tipped us off to the piece. Doug Berman also links to the brief at Sentencing Law and Policy.  The article's summary details a study conducted by Phillips of murder cases in Harris County, Texas, where Phillips compared the outcomes in cases where the defendant hired a lawyer with cases where the defendant had a court-appointed lawyer.  Phillips' study led him to conclude that, "[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal."  One interesting thing to note:  Phillips' examined 504 adults indicted for capital murder in Harris County between 1992 and 1999.  The District Attorney only sought the death penalty in 129 of these cases.  That means the death penalty was sought in approximately 26% of murder cases in Harris County.  While defense counsel may have something to do with who receives the death penalty, the  prosecutor's own evaluation of the case also plays a significant role.

AG Holder Addresses His Critics:  At Blog of Legal Times, Mike Scarcella reports that Attorney General Eric Holder, Jr. has responded to those critical of the use of civilian federal courts to prosecute terror defendants.  In comments made at the Department of Justice's press conference announcing the guilty plea of Najibullah Zazi, Attorney General Holder declared that the denigration of civilian federal courts to prosecute terror defendants "flies in the face of the facts" and is more about politics than the cases.  While Holder believes that "[w]e are at war against a very dangerous, intelligent and adaptable enemy, and we must use every weapon available to us to win that war," he also believes "that our federal civilian criminal justice system has the ability to incapacitate terrorists, has the ability to gain intelligence from those terrorists and is a valuable tool in our fight against terrorism."  Today's News Scan provides a link to the details of Najibullah's plea deal.

Will the Supreme Court Review the Prosecutor/Judge Affair Case?  At Wall Street Journal's Law Blog, Ashby Jones wonders whether the Supreme Court will grant certiorari to convicted murderer Charles Hood, and address whether Hood's due process rights were violated when the judge trying the case had a secret, intimate sexual relationship for years with the prosecuting attorney.  Adam Liptak covers Hood's petition, and an amicus petition from 21 former judges and prosecutors and 30 legal ethics experts, in today's New York Times. Hood's Petition for certiorari is available here

Goldstein's Nomination Speculation

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Over at SCOTUSblog, Tom Goldstein has this long post on Supreme Court nomination prospects. "John Paul Stevens very likely will retire.  Ruth Bader Ginsburg definitely will not."

So who gets the Stevens seat? Tom emphasizes the political calculations, which I believe is correct for the Obama/Emanuel White House. Appointing a judicial activist is not as high on this President's agenda as boosting his political capital at a time when the yellow gas tank light is on. As Tom puts it,

Unfortunately for progressives who want the Administration to invest its political capital in a nomination, this summer is likely to be a profoundly difficult time in political terms.  It is hard to overstate the Administration's view of the significance of the loss of the sixtieth Democratic Senate seat.  The point isn't actually that there is a realistic chance that a Supreme Court nominee would be filibustered....

Instead, the effect of the vote is to reduce the Administration's political capital and maneuvering room at a time when both are in short supply.
What is "unfortunate[] for progressives" might be very fortunate for the people's right to govern themselves through the democratic process and not be ruled by philosopher kings with the power to propose and ratify their own constitutional amendments. Or it might not.

News Scan

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Florida's Miranda Warnings Pass Supreme Court Scrutiny: Associated Press writer Jesse J. Holland reports on today's Supreme Court decision approving Florida's version of the Miranda rights warnings.  The court's 7-2 decision in Florida v. Powell restored Kevin Dwayne Powell's conviction in the first of three Miranda rights cases heard this year.  The decision clarified what the long-established Miranda rights require police to do. Powell was convicted of illegally possessing a firearm after telling police he bought the weapon "off the street" for personal protection.  Before his confession, Powell signed a Miranda statement that included the words, "You have the right to talk to a lawyer before answering any of our questions.  If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning.  You have the right to use any of these rights at any time you want during this interview."  The Florida Supreme Court overturned Powell's conviction, saying police did not explicitly tell him he had a right to a lawyer during his interrogation.  "Nothing in the words used indicated that counsel's presence would be restricted after the after the questioning commenced," Justice Ruth Bader Ginsburg said, writing for the majority. "Instead, the warning communicated that the right to counsel carried forward to and through the interrogation." The Court has two more Miranda rights cases pending, including whether officers can interrogate a suspect who said he understood his rights but did not invoke them, and whether a request for a lawyer during interrogation can expire after a lengthy period of time.  The Foundation has entered both of these cases.  Our brief addressing the invocation issue in Berghuis v. Thompkins is available here.  The brief for the second case, Maryland v. Shatzer, is available here.  Lauren's post on the issue can be found here.

"NYC bomb plotter deal might help broaden case":
  Associated Press writers Adam Goldman and Tom Hays report on a plea deal prosecutors are making with a NYC bomb plotter, Najibullah Zazi.  Zazi, who once worked as a Colorado airport shuttle driver, admitted to being persuaded by al-Qaida and to work for the Taliban.  "I had discussions with al-Qaida leaders, including target locations, such as New York City subways," Zazi confessed.  Zazi pleaded guilty in Brooklyn federal court and is facing LWOP.  Now, Zazi has been presented with a plea deal, and has begun to release information regarding Al-Qaida.  Prosecutors hope that with Zazi's cooperation, other suspects will come to light.
Today, the U.S. Supreme Court announced its decision in Florida v. Powell, and held that Miranda does not require that a suspect be told that he has a right to an attorney during questioning.  In an opinion authored by Justice Ginsburg, the Court held that police warnings satisfy requirements outlined in Miranda v. Arizona if they advise that a suspect has the right to talk to a lawyer before answering any questions, and inform the suspect that he may invoke his right to an attorney at any time during questioning. 

In 2008, the Florida Supreme Court held that Florida law, and Miranda v. Arizona, required that a suspect be clearly informed of his right to have an attorney present during questioning.  It found that Florida's warnings were inadequate and misleading, because Florida's warnings only informed of "the right to talk to a lawyer before answering any of our questions[,]" and of "the right to use any of these rights at any time you want during this interview."  The Supreme Court overturned the lower court's holding.  It reasoned that because Miranda had not dictated the words by which essential information must be conveyed, police warnings could be satisfactory if they "reasonably convey to a suspect his rights as required by Miranda."

Justice Stevens authored a dissenting opinion, which Justice Breyer joined in part.

News Scan

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DNA Links Suspects to Church Fire:  Investigators claim DNA evidence has linked one of two suspects to the burning of a church in Smith County, Texas.  The torching of this particular church places it among ten that have been set fire to in eastern Texas since the start of 2010.  Investigators are looking into the possibility of connecting the two suspects, Jason Robert Bourque, 19, and Daniel George McAllister, 21, to other recent Texas church fires.  Bourque and McAllister are looking at life in prison if convicted.  This Associated Press story provides more details.

Rapist's Arrest Sparks Call to Expand DNA Database:  New York should be adding the DNA of those convicted of misdemeanors to its state database according to this New York Daily News editorial.  Over the past several years the New York legislature has refused calls to go beyond the state's current requirement -- that only the most serious offenders, such as murderers or rapists -- provide a DNA sample upon conviction.  Efforts to add those convicted of misdemeanors in 2006, were rejected by the Democratic-controlled Assembly. The recent arrest of Mauricio Rosales, an alleged serial rapist, helped New York police officers link him to the nighttime attack of an 11-year-old girl in 2000.  Rosales DNA sample has also linked him to the rape of a 19-year-old woman in 2003.  Rosales was required to provide DNA after he was convicted for theft.  Although DNA evidence is highly effective and accurate, new proposals to expand the database of criminals' DNA to include all felonies and misdemeanors are drawing opposition because of the added costs.  But failing to require convicted criminals to provide a DNA sample only enhances the possibility that rapists like Rosales, and other violent offenders, will remain free.

Pedophile Pediatrician: Cris Barrish reports for the Wilmington, Delaware News Journal: "For nearly two months prosecutors have suggested that Dr. Earl B. Bradley, the alleged pedophile pediatrician from Lewes, had molested an untold number of children, far more than the nine he was charged in December with raping. Today, the Attorney General's Office made their suspicions official, with a Sussex County grand jury indicting Bradley in the rapes of 102 girls and one boy he treated, a more-than-tenfold increase in the number of victims originally alleged. Bradley filmed many of his attacks, police have said, and for weeks investigators have been poring over hundreds of videotapes seized from his office and home as they amassed more evidence."

Don't Condemn What You Demand

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There is an on-going debate about whether to try terrorists and their sponsors in civilian court or before military tribunals.  The administration has preferred civilian trials to a greater extent than its critics, largely because, it says, civilian trials are more likely to be accepted as fair by the international community.  Assuming arguendo that the administration is correct, and that particular defendants involved with terror should be tried in civilian court, the last thing the administration ought then to do is condemn as malevolent the process it demanded.

It is thus troubling that Associate Deputy White House Counsel Rashad Hussain should have gone on record blasting as a "politically motivated persecution" the civilian trial of terrorist abettor Sami al-Arian, a case Hussain said was used to "squash dissent."  Hussain's criticism is particularly odd because al-Arian pleaded guilty to a charge of providing material assistance to a terrorist organization, following a trial in which a jury acquitted him on about half the counts and deadlocked on the others.

The case provides plenty of reason for concern, starting with why the White House would place in Counsel's Office a man with such a dim view of the very justice system the President says can be relied upon to bring terrorists to book, together with such an accommodating view of a man like al-Arian.  But that's not the end of it.  Instead, there's a brewing scandal about the serial coverup surrounding Mr. Hussain's remarks.

Another Summary AEDPA Reversal

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The Supreme Court today summarily reversed yet another federal court of appeals decision overturning a state court based on the federal court's own dubious extrapolation from Supreme Court precedent, rather than because anything in the state court decision is actually contrary to Supreme Court precedent. That misuse of habeas for pushing the envelope has been error under case law since the 1989 decision of Teague v. Lane, and it has been forbidden by an Act of Congress since 1996. Yet some federal judges still don't get it.

The only thing unusual in today's summary reversal is that it was the Fifth Circuit that crossed the line. Usually it is the Ninth or the Sixth.

In Thaler v. Haynes, the prosecutor said he challenged a juror because she was not taking this capital case seriously enough. The judge believed him, but the judge who decided the motion was not the same judge who conducted the voir dire.  While it helps if the same judge also observed the voir dire, it takes a very strained reading of Batson v. Kentucky to find a requirement to that effect. What if the judge who conducted voir dire died suddenly between voir dire and the Batson motion. Would the defendant have an automatic entitlement to have his motion granted? The Texas Court of Criminal Appeals didn't buy it. Neither did the federal district judge.

The Fifth Circuit granted habeas relief.  For the "clearly established" requirement that a challenge based on juror demeanor must be judged by the judge who presided at voir dire, the Fifth Circuit cited Snyder v. Louisiana, 552 U.S. 472 (2008).  The Supreme Court today noted that even if Snyder had held that (it didn't), Snyder was decided six years after the relevant state court opinion. Stare decisis requires obedience, not clairvoyance.
Today, the U.S. Supreme Court granted certiorari in Harrington v. Richter (09-587), and asked parties to address whether AEDPA deference applies to a state court's summary disposition of a claim, including a claim under Strickland v. WashingtonRichter raises a question of whether a defense lawyer violates the Sixth Amendment right to the effective assistance of counsel when he does not investigate or present available forensic evidence supporting the theory of defense he uses during trial, and instead relies on cross-examination and other methods designed to create reasonable doubt about the defendant's guilt.

In Richter, the Ninth Circuit granted habeas corpus relief to convicted murderer Joshua Richter because it believed that Richter's trial counsel had acted incompetently in declining to investigate and present helpful expert testimony on the source of a pool of blood found at the murder scene.  The blood had been photographed, but never tested, and on habeas, Richter argued that if the blood had been tested it would have corroborated his claim that the victim had been caught in gun crossfire, and had not been shot in cold blood. 

SCOTUSblog's Erin Miller posts a list of today's orders, and links to parties' briefs. The state's Petition for Certiorari is available here.  Richter's Brief in Opposition is available here, and the state's Reply brief is available here.

Death Penalty Repeal Fails in Kansas

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David Klepper reports for the Kansas City Star:

The debate was emotional and the vote as close as they come, but ultimately the Kansas Senate upheld the state's death penalty on Friday.
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Even if the bill had passed the Senate, House Speaker Mike O'Neal, a Hutchinson Republican, said it was unlikely the House would consider it.

Send the Marines, Not the Prosecutors

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Such is the view of former front-line federal prosecutor Andy McCarthy, the man who, ironically, led the successful trial of "the Blind Sheik," Omar Abdel Rahman, for the first attack on the World Trade Center in 1993. Here is a sample of Benjamin Weiser's New York Times piece on McCarthy:

"We become headquarters for counterterrorism in the United States," he said. "Not the C.I.A. Not anyplace in Washington. The U.S. attorney's office for the Southern District of New York."

"From the country's perspective," he said, "it's not a good thing." A prosecutor's job, he added, "is not the national security of the United States."

In June 1998, the office secretly indicted Osama bin Laden. Three months later, Al Qaeda blew up the two embassies.

"I mean, we could go into the grand jury and indict him three times a week," Mr. McCarthy said. "But to do anything about it, you needed the Marines. You didn't need us."

Like McCarthy, I was a long-time Assistant U.S. Attorney under administrations of both parties.  McCarthy is spot on in his description of why the federal criminal justice system, for as effective as it is in some contexts, is poorly adapted to serve as the country's mainstay for winning the war that has been thrust upon us.  The prosecutor's job is to punish those who have commited mayhem.  But what the nation most urgently needs now is to prevent mayhem and defeat its sponsors before they strike.

Forget the Hornbook.  As McCarthy says, bring on the Marines.

Report Clears Yoo and Bybee of Misconduct

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On January 30, we reported that a draft Justice Department assessment cleared John Yoo and Jay Bybee of professional misconduct in connection with their authorship of memos, written in the shadow of the 9-11 mass murder attacks, which argued that harsh interrogation techniques, including waterboarding, were permissible to obtain intelligence from captured terrorists.


The draft assessment has become final and was issued today by the Justice Department.  The Reuters report begins:


WASHINGTON - Two Bush administration lawyers who authorized harsh interrogation techniques on terrorism suspects used poor judgment but will not face punishment, the U.S. Justice Department said on Friday in summarizing a lengthy ethics report.


The department's Office of Professional Responsibility had originally found that the lawyers, John Yoo and Jay Bybee, had engaged in professional misconduct, according to a letter sent to the House Judiciary Committee leaders.


The harsh techniques they authorized included waterboarding of terrorism suspects as the Bush administration tried to elicit intelligence after the September 11, 2001, attacks for capturing or killing anti-American al Qaeda militants.


Isn't It Supposed to be Dying?

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As we continue to hear that "the death penalty is dying" from the New York Times, the DPIC and other abolitionist cheerleaders masquerading as news sources, facts continue to confound this claim.  The truth is that, according to Gallup, public support for the death penalty is at the same level now that it was five and ten years ago.  And the most liberal administration in the last fifty years, if not ever, openly (and to its credit) supports the almost never imposed federal death penalty for terrorists.


Today come news from overseas that the supposed international opposition to the death penalty is something less than it's cracked up to be.  The AP has this story:


Iraq Rejects Call to Abolish Death Penalty


 GENEVA  --  Iraq has rejected calls to abolish or suspend capital punishment made during a review by the U.N.'s top human rights body.

Some 20 countries had urged Iraq to end the death penalty that has been used against high-profile members of the former regime of Saddam Hussein and in the country's crackdown against insurgent groups.

Iraq has also dismissed suggestions that it should reduce the number of crimes for which the death penalty can be imposed.

Prosecutorial Misconduct of a Different Kind

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Stories of prosecutorial misconduct most often focus on the non-disclosure (or outright concealment) of exculpatory evidence.  Every now and again, as with Mike Nifong in the Duke rape hoax, they concern the decision to prosecute persons the authorities know or should have known are innocent.

Less widely reported, but far more prevalent, is what any serious person would also have to consider misconduct:  Doing nothing when events cry out for action.  The reasons this sort of prosecutorial misconduct gets a pass are manifold:  The defense bar is not about to complain; the press and the academy have an ideological stake in pretending prosecutors are never anything but "overzealous;" and there is no lobby to speak for future victims of criminals not brought to book.

Enter the case of Professor Amy Bishop, who last week gunned down three of her colleagues, ostensibly (so it is reported) because she was denied tenure.  The rub is that this was not Ms. Bishop's first killing.  Years before, she offed her brother in circumstances that were barely investigated then and are now subject to widely varying accounts.  What is not disputed is that the DA at the time, Robert Delahunt (now a member of Congress), did not so much as present the case to a grand jury.  Now there are allegations of a cover-up by the authorities. 

James Taranto of the Wall Street Journal takes a look at the troubling story: 

Duke Rape Hoax Exposed -- Again

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About four years ago, a drunken stripper named Crystal Mangum accused several members of the Duke men's lacrosse team of rape.  The accusation was a hoax from the getgo, and evidence that it was a hoax surfaced almost immediately.  This did not stop an appallingly corrupt prosecutor, Mike Nifong, from formally accusing three men he almost surely knew were innocent.   Nifong was in a tough primary race to hold onto his job as District Attorney of Durham, N.C., a liberal community virtually drowning in political correctness.  Apparently Nifong believed that charging three white "jocks" would go over well with primary voters.  

Whether that was correct is a matter of debate.  What is not a matter of debate is that it went over well with a significant portion of the Duke faculty, who dropped the much heralded presumption of innocence like a hot rock in favor of a blanket condemnation of the presumptively guilty (and racist and privileged and thuggish) lacrosse players, not to mention any other non-minority who refused reflexively to genuflect before Those Who Are Sensitive.   The faculty and Duke administration turned on their own team without trial or even remotely reliable evidence (there being none), and terminated the men's lacrosse season.

The North Carolina AG undertook and investigation which showed that the whole episode was cooked up.  Not only were the three accused players innocent; there had never been an attack at all.

Now comes word from AP that Ms. Mangum has continued her storied career.  Today she was arrested for attempted murder and arson, among a few other things. 

Defining Minorities for Batson

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In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the Equal Protection Clause forbids use of peremptory challenges to discriminate against prospective jurors on the basis of their race. The rule is more easily stated than applied. Among other problems, exactly who is a member of a racial minority, and whose perception of that status matters?

In United States v. Guerrero, No. 09-30066, decided today by the Ninth Circuit, the prosecution challenged juror D.T.  Defense counsel made a Batson challenge, saying, "She looked like she may have some native American or Hispanic background." The prosecutor didn't think she was a minority at all. Neither did the judge. All three were wrong. In the identification section of the questionnaire, which had been removed from the version provided to counsel, she had "identified herself as 'Native Hawaiian/Pacific Islander.' " As greater acceptance and prevalence of interracial marriage produces more people of mixed race, we are going to get more people not easily categorized.

Is it possible for a prosecutor to commit a Batson violation if he genuinely believes the juror is "white," assuming he is not trying to challenge whites off the jury? The panel majority in this case (Judges Tallman and Beezer) thought not. "The problem here is that there is no evidence that race played any role in the decision to strike the prospective juror because neither the prosecutor nor the judge recognized her as a minority." Judge Gould dissented.

Terrorist Trials and Senate Races

The controversy over whether to try terrorists in military tribunals or civilian courts popped up in two news stories on Senate races.

It comes as no surprise that conservative Marco Rubio, running for Senate from Florida, denounced the switch to civilian trials in a speech to the Conservative Political Action Committee conference, as reported by Philip Rucker in the WaPo.

More surprising is the position taken by Connecticut AG Richard Blumenthal, likely Democratic candidate to succeed Christopher Dodd. John Fund notes in the WSJ,

Two weeks ago, Mr. Blumenthal took strong issue with the Obama Justice Department's decision to hold civilian trials for terrorists in Manhattan. "My position is very different from the administration's," he said, adding that he favored military tribunals rather than civilian courts to try both the 9/11 conspirators and the Christmas Day bomber captured trying to blow up an airliner last December.

News Scan

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Experts Back San Francisco Police Chief on Tasers: SF Gate writer Jaxon Van Derbeken reports on San Francisco Police Chief George Gascón's proposal to equip the department's officers be equipped with stun guns.  Gascón has pushed for Tasers, stun guns that disrupt a target's muscle control, and ordered a study of officer involved shootings done last year.  That study concluded that one-third of 15 officer-involved shootings over a five-year period might have been avoided had officers had the devices.  Officials with the Police Executive Research Forum who studied seven departments that used Tasers and six that did not found a 78 percent drop in officer injuries and a 40 percent drop in suspect injuries with the deployment of the devices.

"68 Inmates Get Early Release, But Legal Battle Is Far From Over": Sacramento Bee writer Sam Stanton reports on the sixty-eight inmates released early from Sacramento County jails Wednesday, as law enforcement and victims' rights groups continue their legal efforts to stop such releases statewide.  Sheriff John McGinness resumed early releases of county jail inmates under a new state law designed to reduce California's state prison population and overhaul the parole system.  Counties around the state have interpreted a section of that law to apply to local jail inmates, increasing the amount of time that can be taken off sentences to one day off per day of good behavior or work credit.  McGinness halted all early releases last week, after a Sacramento judge ruled that the new law did not apply to county inmates and issued a temporary restraining order.  Judge Loren E. McMaster dissolved that order Tuesday, saying inmate representatives needed a chance to be heard on the issue.  Court hearings are set for Friday in Sacramento Superior Court.

"A Muslim Son, a Murder Trial and Many Questions": New York Times writer James Dao reports on the supposed terrorist connections of American citizen Abdulhakim Mujahid Muhammad, guilty of opening fire with a semiautomatic rifle on a military recreiting center in Little Rock, killing one soldier and wounding another.  Recently, Mr. Muhammad, 24, thrust himself back into the news by claiming in a note to an Arkansas judge that he was a member of Al Qaeda in the Arabian Peninsula, a terrorist group based in Yemen.  Like both the Ford Hood shooting and the Christmas Day bombing attempt, the murder committed by Mr. Muhammad might have connections to Yemen.  The attack also places doubt on the authorities' ability to anticipate an attack, despite having clues.  
Would anyone expect a court to buy this argument?

The police violated my right to privacy by looking in my open window. I had demonstrated an expectation of privacy by installing blinds, even though I left them open on this occasion.
Of course not. The cop can't know if you left the blinds open on purpose or inadvertently. If you expose something to public view, there is no violation in the police seeing what you have exposed, along with everyone else who happens to look.

Well, kiddie porn file sharer Charles Borowy made a similar argument, and the Ninth Circuit didn't buy it in United States v. Borowy, 09-10064, decided today. He installed software for a file sharing service on his computer, and he tried but failed to engage a privacy feature. So the whole world could see his kiddie porn, and an FBI agent did. "Borowy's subjective intention not to share his files did not create an objectively reasonable expectation of privacy in the face of such widespread public access."

Louisiana Takes the Proactive Approach

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The Louisiana Department of Corrections has taken a proactive approach against piecemeal litigation of lethal injection claims. In response to an Administrative Procedures Act claim (the type that has tied up capital punishment in California, Maryland, et al.), they filed their own suit naming all 84 prisoners on death row as parties. This post on the blog Solitary Watch takes a dim view of the tactic, but I'll raise a glass to some refreshing initiative.

He Should Have Given the Guy More Playing Time

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One thing you can't deny about defense counsel is their creativity.  In that respect, they far surpass humdrum prosecutors.  Thus today's gem of an AP story:


Ex-player:  I killed coach because I thought he was the Devil


A tearful former football player told Iowa police that he repeatedly shot his high school coach because he believed him to be a devil who turned students "into dead people," according to an interview with the murder suspect recorded just hours after Ed Thomas' death.

The scratchy, muddled audio recording of 24-year-old Mark Becker's confession was played to a packed Butler County courtroom on the second day of his trial for first-degree murder. Becker has pleaded not guilty by reason of insanity.

Mark Becker, right, with his defense attorneys during opening statements in Becker's trial.
Rodney White

Prosecutors say Becker calmly walked into the weight room at Aplington-Parkersburg High School on the morning of June 24 and killed Thomas in front of a group of teenage students.

"I put one in his head, then I put two more in his head, then I put one in the knee," Becker said in the recording of his interview with Division of Criminal Investigation agent Chris Callaway less than two hours after Thomas was shot dead. "I emptied the clip and left it empty."

Grossman Execution

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Twenty-six years ago, Florida Fish and Wildlife Officer Margaret Park was murdered in the course of her duties. The long overdue execution of Martin Grossman for this crime was carried out today. AP story here. The Supreme Court's "green light for the green mile" order is here. Mark Douglas of News Channel 8 notes a curious development:

Tonight, the Vatican, Jewish leaders as far away as Jerusalem, and thousands of petitioners are calling for a stop to the execution of convicted killer Martin Grossman.

But as of 5 p.m., there wasn't a single protester standing outside the Florida State Prison, where Grossman was scheduled to die of lethal injection....

Update: The part about no protesters is missing from the updated, post-execution version of Douglas's story.

Update 2: Douglas's "witness to execution" story is here.

Yeshiva World News reports that Governor Crist has sent out an answer to the emails he has received:

Blog Scan

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Two Vacancies on the Court?:  Tony Mauro thinks its a likely possibility in his National Law Journal article.  Mauro writes that the White House is reportedly preparing for more Supreme Court exits, as court watchers speculate that Justices Stevens and Ginsburg will announce their retirement this year.  Mauro doesn't readily embrace the speculation.  He writes that Justice Ginsburg has expressed a desire to stay on the Court until she reaches or exceeds the age of Louis Brandeis, her judicial idol, when he retired at age 83.  Justice Stevens, on the other hand, "has done nothing to discourage predictions that he will leave this term."  Mauro proposes two theories for the White House to prepare for two vacancies.  First, Justice Ginsburg could retire now, while the Senate is still controlled by Democrats, and spare the Obama administration and the next candidate the frustration of a Republican filibuster.  Second, Mauro proposes that "in a strange way, two vacancies at once might actually help Obama push through at least one liberal nominee."  At Sentencing Law and Policy, Doug Berman responds to Mauro's piece by offering his advice on whom the President should nominate.  Jonathan Adler rounds up media reports at NRO's Bench Memos. 

A Comment on New York Times Editorial:  At Sentencing Law and Policy, Doug Berman writes that the New York Times was "a little off" in its editorial "Justice Kennedy on Prisons."  The editorial, mentioned in today's News Scan, takes aim at Justice Kennedy's remarks on prison overcrowding in California, and the state's three-strikes law.  Berman takes issue with the editorial's comment that "[m]uch of the blame" for California's three-strikes law "lies with the Supreme Court."  He writes that the Court cannot be blamed for "for state decisions to pass stupid or harmful criminal laws and punishment." 

Supreme Court April Arguments:  Lyle Denniston reports on SCOTUSblog that the U. S. Supreme Court has released its April arguments calendar.  None of CJLF's cases are scheduled for argument in April, but we'll be interested to hear what the Court says when it hears Doe No. 1 v. Reed (09-559) on Wednesday, April 28th.

Volokh Conspiracy Bloggers Branch Out:
  On Sunday, Volokh Conspiracy blogger Orin Kerr posted news that he will be co-blogging at SCOTUSblog.  He writes that he will be commenting on about various aspects of the Court's criminal law docket, particularly the Fourth Amendment and constitutional criminal procedure cases.  Meanwhile, CrimProf Blog editor Kevin Cole has posted a link to Eugene Volokh's publication Nonlethal Self Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life.  Cole writes that the piece draws from Volokh's article in the Stanford Law Review and includes a discussion of state constitutional provisions protecting a right to self defense.   

Recession Takes Toll on Jury System:  Ashby Jones reports on Wall Street Journal's Law Blog that the recession has made people less available to serve on juries and spend several days away from their families or jobs.  A recent Los Angeles Times article by Carol J. Williams, reports that high unemployment has made it more difficult for courts to seat juries for trials running more than a day or two.  In one case, scheduled for a three-week trial, lawyers for both parties waived their right to a jury trial, after three days of mounting juror insurrection, and left the verdict up to Los Angeles Superior Court Judge James R. Dunn. 

Dumping So-called Merit Selection

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Since retiring from the Supreme Court, Justice O'Connor has been advocating the elimination of elections for judges. I agree with her up to a point. The point of disagreement is that she advocates the adoption of so-called "merit selection" systems instead. Today, in Arizona, Howard Fischer reports for Capitol Media Services,

On a 4-3 party-line vote, the Senate Judiciary Committee approved a measure that would scrap the "merit selection" process now used to choose the judges for the state Supreme Court, the Court of Appeals and the superior courts in Pima and Maricopa counties.* Instead it would mirror the federal system, with the governor getting to name who she or he wants, subject only to Senate confirmation.
"Merit selection" sounds great, but the devil is in the details, as it so often is. Who decides merit? In most states having a system with that label, the governor is constrained to choose from a short list prepared by a commission. Also, in most states, the state bar dominates the commission. So instead of replacing politics with merit, so-called "merit selection" just replaces general politics with bar politics. Given that choice, general politics is the better of the two.

To illustrate why, let us do a little "thought experiment." Let us go back to 1981. Justice Potter Stewart has announced his retirement. Now let us suppose that President Reagan is constitutionally constrained to appoint from a list of 3 names prepared by the American Bar Association. Who is on the list? Rose Bird, Laurence Tribe, and Alan Dershowitz, perhaps. Who would not have had a snowball's chance in hell of being on that list? An intermediate state appellate court judge from "flyover country."

News Scan

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Indefinite Detention Proposed to White House: In a Politico.com article Josh Gerstein reports that the White House might consider endorsing a law that would allow for indefinite detention of some alleged terrorists.  According to Senator Lindsey Graham (R - S.C.) this law seeks to alleviate some of the pressures created by the deadlock in Congress over President Obama's plan to close Guantanamo Bay.  Last summer, White House officials said they had ruled out seeking a "preventive detention" statute as a way to deal with anti-terror detainees, saying the administration would hold any Guantanamo prisoners brought to the U.S. in criminal courts or under the general "law of war" principles permitting detention of enemy combatants.  Asked whether the White House is again considering a preventive detention statute, spokesman Ben LaBolt said: "Senator Graham has expressed interest in habeas reform and other policy ideas.  We will review constructive proposals from Senator Graham and other Members of Congress that are consistent with the national security imperative that we close Guanatanamo and ensure the swift and certain justice the families of victimes have long deserved."

"Justice Kennedy on Prisons":  The New York Times posted an editorial today commenting on Justice Anthony Kennedy's criticism of California's excessive prison sentences and its three-strikes law. In an address to Pepperdine University law students, Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one.  The editorial praises Justice Kennedy's criticism, but then argues "[m]uch of the blame for the law, however, lies with the Supreme Court which upheld it in a decision on which Justice Kennedy cast the deciding vote."  In Ewing v. California, parolee, Gary Ewing, was sentenced to 25 years to life for shoplifting three golf clubs from a golf pro shop.  He had previously been convicted of four serious or violent felonies.  Mr. Ewing challenged his sentence before the Supreme Court as a violation of the Eighth Amendment prohibition on cruel and unusual punishment.  By a 5-to-4 vote, with Justice Kennedy in the majority, the court rejected the challenge.  Interestingly, Justice Kennedy joined O'Connor's opinion in Ewing.  That opinion found that Ewing's sentence was justified by California's public-safety interest in incapacitating and deterring recidivist felons, and that the sentence was amply supported by Ewing's long, serious criminal record.  Ewing been convicted of numerous offenses, served nine separate prison terms, and committed most of his crimes while on probation or parole.  CJLF's brief for Ewing is available here

With its "blame" comment, the NYT is characteristically clueless on the distinction between agreeing with a statute as a matter of policy and holding that it lies within the power of the people to enact.

Paul Mirengoff writes on Powerline that the administration is seeking a way to obviate the difficult problems of where to keep, and how to interrogate, captured al-Qaeda terrorists.  In short, the answer is: don't capture them; kill them.  I confess this solution is not without its appeal, but has significant costs, as Paul explains.



More Miranda Idiocy

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....is the title of Stuart Taylor's devastating piece in today's National Journal.  Taylor, a moderate who remains critical of waterboarding (and the death penalty), does not let ideology get in the way of fact.  He is appalled at the administration's lack of sobriety in obtaining what one day is certain to be vital intelligence.

The whole article is a must-read.  Here's a sample:

[T]he rationalizations by Attorney General Eric Holder and other administration apologists have been...breathtakingly bereft of seriousness about the need for aggressive interrogation to protect our country.

Abdulmutallab might have been the first of a dozen Christmas Day bombers seeking to perfect the Bojinka plot, for all Holder and his colleagues knew at the time. It was sheer luck that this was not the case.

And the decision to read Abdulmutallab his rights, bring him a lawyer, and stop asking questions may yet get Americans murdered by his co-conspirators in Yemen -- who might have been located and captured or killed but for his five weeks of post-Miranda silence.

The Ethics of Criminal Defense


Much is made of prosecutorial misconduct.  For the most part, there can be little legitimate objection to that.  Prosecutors are public servants wielding considerable power, and should expect and receive scrutiny.  Unlike others involved in litigation, prosecutors cannot view the case as a "game" with "moves."  It should be a search for truth, period.

But where is the scrutiny of the ethics of criminal defense?  Where does the truth fit in?  I was recently debating this topic on Doug Berman's Sentencing Law and Policy.  I posed this hypothetical:

Mr. Jones robbed the bank of a bag full of dough, using a pistol, which he fired past a teller's head to make sure everyone was paying attention.  He employs defense counsel to represent him. In preparation for trial, he tells counsel that, in fact, he did it (he needed the money to pay off his coke dealer, who otherwise had threatened to shoot him).
One of the government's important witnesses is Mrs. Smith, a slightly slow 70 year-old lady with glasses. Mrs. Smith testifies that she saw Jones running from the bank with a sack full of loot in one hand and a pistol in the other. Defense counsel knows this is true (his client told him), but starts a rapid-fire cross examination of Mrs. Smith about whether she was sure she was wearing her glasses, whether she's sure it was a pistol and not a cell phone, whether she was really close enough to be certain of her identification (she was across the street), whether she gets home care in light of her occasional forgetfulness, etc., etc. By the time all this finishes 45 minutes later, the poor old woman looks and sounds confused, hardly someone the jury could put a lot of trust in. This is exactly what counsel wanted.
Only one thing: Her memory was correct and her testimony truthful, and he knows it.

I'm pretty sure that under existing canons of ethics, counsel's behavior, though knowingly and intentionally misleading, was proper.  My question, upon which I hope commenters will shed some light, is:  Should it be?  To what extent should standards of honesty with the tribunal supersede the client's interest?

Why We Have the Death Penalty

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Commenter federalist passed on to me this story from today's Pittsburgh Post-Gazette.  I repeat below the first few paragraphs.  If any abolitionist can explain why a term of incarceration is proportionate, or adequate, justice for this crime, I'm all ears:

News Scan

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Trying Terrorists:  Two articles in yesterday's New York Times provide arguments in defense of what is currently reported as Attorney General Holder's decision in prosecute most suspected terrorists in civilian courts.  One, presented as a news story by Times reporter Scott Shane reports on some of the political skirmishes the decision has caused, particularly with regard to Umar Farouk Abdulmutallab, the Christmas Day (or underwear) bomber.  Shane notes that the Bush Administration prosecuted most of its terrorist cases in the civilian justice system and chides former Vice President Dick Cheney for his current criticism of the new administration's decision to do the same.  He does note that during the Bush years only three suspected terrorists were tried by military commissions "largely because the tribunals drew countless legal challenges."  In an op-ed piece, former FBI agent Ali H. Soufan also utilizes the Bush-did-it-first argument to justify the new administration's decision, and characterizes much of the criticism as intended to "smear the law enforcement community."  He closes writing that "for al Qaeda terrorists caught on the battlefield who....killed American civilians abroad, military commissions are appropriate."  That sounds like Ahmed Khalfan Ghailani, captured in Pakistan for blowing up U.S. embassies in East Africa, and being tried in New York Federal Court at the behest of the Obama administration.  Christi Parsons also reports for the Los Angeles Times that the Obama administration, and Attorney General Eric H. Holder Jr., have "declined to rule out the possibility that the trial could be shifted from federal court to a military commission."  Parsons reports that Holder did indicate "that that was not his preference."  

Former AG Mukasey has this op-ed in the WaPo:

Blog Scan

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The Death Penalty and Religion:  On Sentencing Law and Policy, Doug Berman posts a link to Susan Jacobson's Orlando Sentinel report on Jewish groups asking Florida Governor Charlie Crist to spare the life of convicted murderer Martin Grossman.  According to the article, Grossman was convicted of shooting Margaret Park, 26, in the head after she found him and a friend at a nature reserve, where they went to fire a gun.  He asked her not to report them, and when she refused, he shot her with her own gun.  Apparently, 200 organizations have asked Crist to grant a 60-day stay of execution to allow a clemency application to be considered.  Berman suggests that it is "principally the religion of the offender (and perhaps also the victim), and not the particulars of the offense, that is generating much of the special attention in this case."

More Briefing in Kiyemba:  Monday, our Blog Scan reported that the Department of Justice had argued in its merits brief for Kiyemba, et. al. v. Obama, et al. that "legal constraints prevent the courts from ordering that petitioners be brought to and released in the United States."  Today, Tony Mauro reports on Blog of Legal Times that the Supreme Court has asked for briefing on whether the case involving Uighurs detained at Guantanamo Bay should be dismissed.  He writes that now that the Obama administration has successfully found homes outside the United States for the Uighurs, Solicitor General Elena Kagan has argued that these developments "eliminate the factual premise" that "petitioners have no possibility of leaving Guantanamo Bay except by being released in the United States."  The Supreme Court has asked both parties for eight-page letter briefs due Feb. 19.  SCOTUSblog's Erin Miller reports that the briefs must address "What should be the effect, if any, of the developments discussed in the letters submitted by the parties on February 3 and 5 on the Court's grant of certiorari in this case?"

Notable Cert. Petition:  At SCOTUSblog, Erin Miller posts on a notable petition for certiorari from the Ninth Circuit Court of Appeals.  The case, Cate v. Ali, asks whether the Ninth Circuit failed to comply with 28 U.S.C. § 2254's deferential standard of review required when it disregarded the trial court's factual finding that the prosecutor's reasons for exercising peremptory challenges were genuine and conducted its own de novo comparative juror analysis.  The opinion, written by Judge Marsha Berzon, agreed with the district court that the record and a comparative juror analysis undermined the prosecutor's claim that he had struck a juror because he was concerned the juror would not be objective.  The Ninth Circuit also rejected the district court's finding that the prosecutor had struck the juror because he was legitimately troubled by her involvement in the criminal justice system.  California's petition for certiorari is available here

More Reports on McDonald v. City of Chicago:  Yesterday,  Jonathan Adler, posted "Gun Nuts vs. Constitution Nuts" on Volokh Conspiracy and linked to Brian Doherty's Reason.com report on the Supreme Court's grant of oral argument time to the NRA in McDonald.  Doherty's piece nicely summarizes the Court's decision to grant ten minutes of the Plaintiff's oral argument time to the NRA, and links to several scholarly blog posts weighing in on whether the Court is more likely to accept the plaintiff's argument --that the 14th Amendment's Privileges or Immunities Clause was more clearly intended to incorporate the 2nd Amendment to apply to the states-- or the NRA's argument --that the Due Process Clause of the 14th Amendment is the correct way to incorporate the 2nd Amendment.

Sheriff Joe Arpaio Plans to Get Tough on Illegal Immigrants:
  Yesterday, Ashby Jones posted on Wall Street Journal's Law Blog that Phoenix Sheriff Joe Arpaio has announced he would train all of his 881 deputies to enforce federal immigration law on the streets.  This contravenes an order from U.S. Immigration and Customs Enforcement that stripped the Sheriff of his ability to use 100 of his deputies to enforce federal immigration in his jurisdiction.

KSM to Military Tribunal After All?

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This AP story is on the MSNBC website:

U.S. may abandon civilian trial for 9/11 suspect

WASHINGTON - Attorney General Eric Holder is leaving open the possibility of trying professed Sept. 11 mastermind Khalid Sheikh Mohammed before a military commission instead of the civilian trial originally planned for New York City. "At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it's done as transparently as possible and with adherence to all the rules," Holder told The Washington Post in an interview published in Friday's editions. "If we do that, I'm not sure the location or even the forum is as important as what the world sees in that proceeding."  

 If the story is true, it is welcome news about the administration's judgment and outlook on the war on terror, which many of us have questioned.

News Scan

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No 3d Strike for Cheese: Hudson Sangree reports in the Sacramento Bee, "Yolo County prosecutors are dropping their bid for a life sentence for a man who put cheese down his pants at a Woodland market. A new psychological evaluation convinced prosecutors that Robert Preston Ferguson's most recent convictions for petty theft did not warrant a life sentence under the state's three-strikes law, said Jonathan Raven, Yolo County's assistant chief deputy district attorney." SL&P previously had this post on the case.

Nebraska Lethal Injection Rules: Martha Stoddard reports for the Omaha World-Herald, "Starting Monday, Nebraska will again have an approved method of executing people on death row.That's when rules and regulations for carrying out lethal injections will go into effect.The regulations carry out a law passed last year changing the state's method of execution from electrocution to lethal injection." As usual, opponents threaten to bog down the process with "years of litigation" at the same time they are saying the death penalty costs too much.

"Right to Free Speech Collides With Fight Against Terror":  New York Times writer Adam Liptak reports on Ralph D. Fertig's challenge to a law that pits First Amendment freedoms against the government's efforts to combat terrorism.  Fertig, a 79-year-old lawyer, says he would like to help a militant Kurdish group in Turkey find peaceful ways to achieve its goals.  But he fears prosecution under a law banning even benign assistance to groups said to engage in terrorism.  The case represents the court's first encounter with the free speech and association rights of American citizens in the context of terrorism since the Sept. 11th attacks, and is the first chance to test the constitutionality of a provision of the USA Patriot Act.  Opponents of the law, which bans providing "material support" to terrorist organizations, say it violates American values.  The government defends the law, under which it has secured many of its terrorism convictions in the last decade, as an important tool that takes account of the slippery nature of the nation's modern enemy.  The law takes a comprehensive approach to its ban on aid to terrorist groups, prohibiting not only providing cash, weapons and the like but also four more ambiguous sorts of help - "training, personnel, expert advice or assistance, and service." Fertig, in an interview at his Los Angeles home stated, "My mission would be to work with them on peaceful resolutions of their conflicts, to try to convince them to use nonviolent means of protest on the model of Mahatma Gandhi and Martin Luther King." The Supreme Court will hear arguments on February 23rd.

Prisoners Become Bigger Players in Census: Associted Press writer Hope Yen reports on a change in federal policy governing how prisoners are to be counted in Census.  Prison populations have historically been included in national headcounts, but now Census officials will make data on inmate populations available to states earlier than in the past.  This change will allow states to decide whether to count inmates for purposes of redistricting, a move that could reshape the political map.  The federal government relies on the Census not only to learn about Americans and their lives but also to parcel out federal dollars, as well as determine the number of US House seats representing each state.

The Innocence Fraud Project


When the cost argument against the death penalty falls flat, abolitionists resort to what is, at least in theory, a far more compelling argument:  That execution is irretrievable, and that the execution of an innocent person is not merely possible  --  it's happened.

Since the death penalty is a human institution, it is fallible.  No honest person could deny that it's possible an innocent man could be put to death, and that this would be a tragedy of the first order.  (Of course so would a subsequent murder by a convict who legally could have been executed but wasn't  --  something that has provably happened but that abolitionists routinely ignore).

The Innocence Project has spent years singing the "we-executed-the-wrong-guy" anthem.  For a long time, the poster boy was Roger Keith Coleman, a Virginia man advertised across the nation as the victim of sloppy or corrupt police and morally brain dead jurors, all working in concert against a "marginalized" defendant.  It was a compelling story, except for one thing:  It was all a fraud.

Blog Scan

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A Look into California Sentencing:  At Sentencing Law and Policy today, Doug Berman posts links to two California News stories reporting on sentences being requested by prosecutors.  In his first post, Berman links to Amina Khan's LA Times piece detailing a prosecutor's decision to seek a 27-month sentence for Michael David Barrett, who pled guilty to stalking ESPN reporter Erin Andrews, and is accused of filming her through the peephole of her hotel room and posting pictures on the Internet.  Berman comments that 27-months "seems pretty low," given the harm caused by the defendant's actions.  In his second post, Berman links to a Sacramento Bee story by Hudson Sangree. This story reports on a prosecutor's decision to request a life sentence for a man who earned his third strike by stealing a bag of shredded cheese from a grocery store.  The defendant, Robert Preston Ferguson, has a lengthy criminal history that dates back 35 years, including six first-degree burglary convictions.  He had served 22 years in prison before being convicted for his final offense. 

Examining Remarks Made by Justice Thomas:  Today, on FindLaw.com, Mike Dorf comments on recent remarks made by Justice Thomas at the University of Florida Law School.  Dorf writes that after viewing the Justice's speech, he believes that "Clarence Thomas is an original thinker whose ideas deserve to be taken seriously."  Dorf then goes on to examine Justice Thomas' remark that critics should refrain from "undermining" the Court, which, as an "institution should be respected and preserved." (hat tip Orin Kerr at Volokh Conspiracy)

Will the Ninth Circuit's Strip Search Case Goes to SCOTUS? 
That's what Eugene Volokh starts to wonder over at Volokh Conspiracy as he discusses yesterday's ruling in Bull v. City & County of San Francisco (en banc).  The case, (discussed by Kent here, and Volokh here) upheld San Francisco's policy of strip-searching everyone booked into the jail.  Volokh finds this noteworthy, because as Kent noted yesterday, if the case goes to SCOTUS, Justice Breyer can be expected to recuse.  Apparently, Justice Breyer has made it a practice to recuse in cases that were handled by his brother Charles, and Judge Charles Breyer was the district court judge that initially decided against San Francisco's policy.  Volokh writes that to prevail, plaintiffs need five votes and with Justice Breyer recusing, that requires at least two votes from the Court's conservative wing.  He doesn't think this is very likely.   

This Case is Tricky, We Need to "CVSG":  At SCOTUSblog, Lisa McElroy explains why a Supreme Court case calling for a CVSG "may well be some of the most interesting cases of the Term."  She writes that these cases (the most recent of which can be found here) are cases that Call for the Views of the Solicitor General.  According to McElroy, the Court will CVSG a case when the government is not a party to the action, but the Court is interested in knowing the Solicitor General's view anyway.  These cases are most likely to arise when a lower court's interpretation of a federal law has been called into question and the Supreme Court must decide whether to step in.  One crime related case on the CVSG list?  Robertson v. U. S. ex rel. Watson (08-6261), which will address whether a D.C. law authorizing a victim of domestic abuse to enforce violation of a civil protection order, via criminal contempt, violates due process.

Main Page Expanded

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The main page of the blog has been expanded from the 10 most recent posts to 30. Posting volume had increased to the point that posts were sometimes scrolling off the main page the same day they were posted. The expanded page may take a bit longer to load, though.

Death penalty opponents, including, for example, the ACLU, argue that capital punishment is too expensive, certainly compared to the costs of life without parole, and that we would be smarter and safer if we used the money currently invested in seeking capital punishment for more effective police work and other public safety programs. It all sounds nice.  And it would be nice, if it were true.

News Scan

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Judge Blocks Inmate Releases:  A Sacramento Superior Court judge has issued a temporary restraining order (TRO) blocking the early release of county jail inmates.  The order, in response to a petition from the Sacramento County Deputy Sheriffs Association (SCDPA), notes that state legislation adopted last fall which requires early inmate releases is ambiguous as to whether it applies to county jails as well as state prisons. In addition, the statute may be invalid.  A Sacramento Bee story by Andy Furillo reports that counsel for the SCDPA argued that the early releases violated Proposition 9, the Victims Bill of Rights Initiative adopted by California Voters in 2008, and also causes "irreparable harm" to public safety. The attorney cited a local jail inmate who received an early release last week and was arrested a short time later for attempted rape.  In his order Judge Loren E. McMaster found "that the moving party has shown that it is `reasonably probable' that it will succeed on the merits." 

Canadian Murder Case: Rob Gillies reports for AP, "Canada's top general says the military is in shock after the commander of Canada's largest Air Force base was charged with the murder of two women and the sexual assault of two others." Kathleen Harris reports for the Toronto Sun, "Facebook has become a busy forum for showing support for victims and unleashing outrage from Canadians calling for a return of the death penalty in the wake of murder and sex assault charges against Col. Russell Williams."

Less Talk, More Action, Mr. Brown

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Dan Balz has this article in the WaPo on the California governor's race, in which lifetime politico and current AG Jerry Brown will face off against a successful Silicon Valley business person (not sure which one yet).

"I know how state government works, how it should work, and I think I can fix it," Brown said in a recent interview.
Well, Mr. Brown, how about fixing one of the main things that is wrong within the scope of your current office?

Of all the long-overdue death sentences among California's ~700 denizens of the row, a good many are bottled up in the federal courts. Congress in 1996 provided for a fast track through the federal courts for states that provide qualified counsel on state habeas, as California has from the beginning. In 2006, Congress amended the law to remove some technical barriers to qualification for the fast track and moved the decision on qualification away from the conflicted habeas courts. Now the AG needs to apply for certification and pursue it through the USAG's office and the D.C. Circuit. I wrote to Mr. Brown over a year ago urging such action.  No answer. No action.

The fact that there is litigation over implementing regulations is no reason to delay further. Nothing in the statute requires that the regulations be finalized before the certification process can begin.

Overall, Mr. Brown has handled the criminal side of the AG's office by putting good people in charge and letting them do their jobs without interference. That is as good as we at CJLF ever expected from him. In this area, though, "benign neglect" doesn't cut the mustard. This requires affirmative leadership.

You are a man of action, Mr. Brown? You know how to fix problems? Don't tell us; show us. We haven't seen anything yet.

A Worthwhile Moratorium, For Once

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Chris Lehman reports for Oregon Public Broadcasting:

An Oregon Senate panel voted Tuesday to put a controversial prisoner re-sentencing program on hold.

Lawmakers approved the original plan last year as a way to cut costs in the public safety budget.

Critics blasted the effort, saying it allowed violent criminals to get out of prison early

Now, the Senate Judiciary Committee has voted to suspend the early release program until July of next year. Democratic Senator Floyd Prozanski chairs the committee.

ABA Dues Cut

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Lynne Marek reports on NLJ, "The American Bar Association announced this week that it's cutting the cost of dues for solo practitioners, government lawyers, judges and attorneys working for nonprofits as part of an effort to respond to lawyers' differing financial circumstances and the effects of the economic downturn."

Personally, I quit the ABA after I read their brief in Sawyer v. Smith, 497 U.S. 227 (1990), a case in which I also wrote a brief. Theirs was a straight defense-side brief with no semblance of consideration for the other side. The briefs I have seen them file in criminal cases in the twenty years since have been similarly tilted.

So I'll pass, despite the reduced dues. I will rejoin the ABA when it becomes evenhanded on criminal law or when hell freezes over, whichever comes first.

DSM V Draft

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As detailed in this ABC new story, a draft of the new edition of the Diagnostic and Statistical Manual for Mental Disorders is now available for review.

There was a rumor floating around a few months back that one of the new proposed diagnoses would include obesity.  We'll have to trot our way through the draft to see if that has come to fruition. 

Update: The Guardian reports:

Among the proposals is a new condition, "temper dysregulation with dysphoria", characterised by "severe, recurrent outbursts of temper" several times a week, that are "grossly out of proportion to the situation or provocation and that interfere significantly with functioning". To be considered, the "symptoms" must have been "diagnosed" before age 10.

Never let the other side dictate the vocabulary of the debate.  They know that words have meanings.  We need to know it too. They won't need analysis  --  and won't give any either  --  when their side's conclusion is built into the vocabulary of the discussion before it begins.


That is the reason I provide periodic installments of this Dictionary for the Politically Incorrect.  Here are a  few more entries:


At-risk child - A 220-pound 17 year-old whose first five trips to juvenile hall had the usual effect -- none -- and who now is coming after you with a switchblade, most assuredly putting you at risk.
Judgmentalism - The capacity to form moral judgments, this being the principal quality that gives human beings an advantage over orangutans, who after all are a good deal stronger. Nonetheless, judgmentalism is a bad thing, because the formation of judgments implies that one might correctly conclude that some ways of behaving are better than others. See "tolerance." The upshot is that only "non-judgmentalism" is an acceptable outlook on life -- with the caveat that non-judgmentalism is subject to cancellation without notice when the subject is Alberto Gonzales, anyone invovled with the imprisonment of terrorists at Guantanamo, or the Duke lacrosse team.
Torture - Asking a terrorist what his next plan for mass murder consists of, and doing it in conditions where there is at least some chance he'll think you're expecting an answer. Such conditions might include, for example, being held in an uncomfortably cold (or hot) cell, having to stand for long periods of time, being exposed to loud and unpleasant sounds, or having to sit in stress positions. None of this very closely resembles what used to be thought of as "torture," e.g., having your fingernails ripped out, being fed feet-first into the woodchipper, or being held in a dog cage while your captors ready their swords to cut your head off. But this latter collection of techniques apparently no longer qualifies as "torture," being the province of the terrorists rather than those who seek to stop them. See "judgmentalism, exceptions thereto," supra.


Evidence-based sentencing - The line of thought that starts with the proposition that incarceration fails to "rehabilitate" and - for that reason - any alternative sentence is better, such as a stern lecture from the judge.  (Hat tip to commenter Michael J. Santella).


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Achieving the proper balance in commenting is a challenge for a blog. We would like to have good discussion in the comments. However, we want to avoid (1) spam, which requires no explanation, and (2) food fights that detract from the quality of the blog. Each blogmeister must decide how to strike this balance. Some don't allow comments at all. Some take a laissez faire policy. We tried to take a middle-ground approach by allowing comments but requiring commenters to authenticate.

I have received a lot of feedback that the two authentication methods provided to date, OpenID and TypeKey/TypePad, are too difficult. I am particularly disappointed that the Movable Type folks merged their TypeKey authentication service into their TypePad hosting service, producing a very confusing tangle.

Today I have opened up a third alternative, which is to register/authenticate on the blog itself. When you click on the "sign in to comment" link, you should go to a screen which provides three alternatives, the first of which is "Movable Type" with a wrench icon. At the lower right corner of the box is a link that says "Not a member?  Sign Up!" Click on that link, enter a user name and password, go to your email program, get the "Movable Type Account Confirmation" email, and click on the link in the email. Then you should be registered and able to comment with just a sign-in from that point on. If your browser can remember sign-ins for you, you won't even need that. (If it can't, you need a new browser.)

We'll try this for a while. If it causes problems, we'll have to revert.

Blog Scan

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Where Can President Obama Try KSM?:  Today, on the Heritage Foundation's website, Charles Stimson posts his thoughts on why a U. S. Military Base [is] Not a Reasonable Option for [the] Khalid Sheikh Mohammed Trial.  Stimson writes that now that New York City has been ruled out as a viable option for the terror trials, the Administration look for a U. S. military base where it can try the terrorist plotters without spending tens of millions of dollars.  According to Stimson, the former-committee chair in charge of upgrading and building the military compound at Guantanamo, no such base exists.  He writes that no military base in the United States can accommodate the government's need for a "supermax" style prison, a state of the art courtroom, and nearby housing for every person that will participate in the trial.  Stimson urges the Obama administration to consider other options for the terror trials -- including conducting the trials "under the auspices of a properly resourced military commission, where they belong."

Petitions to Keep on Your Radar:  On SCOTUSblog, Erin Miller posts two "Notable Petitions" that have been recently filed with the U. S. Supreme Court.  She writes that although the briefs in opposition have not been filed, Tom Goldstein has already deemed Simmons v. Galvin and Arar v. Ashcroft cert-worthy.  Simmons is particularly interesting since it raises a claim similar to one recently decided by the Ninth Circuit in Farrakhan v. GregoireSimmons asks whether § 2 of the Voting Rights Act of 1965 applies to state felon disenfranchisement laws that result in discrimination on the basis of raceThe First Circuit held that Congress never intended § 2 of the Voting Rights Act to prohibit states from disenfranchising incarcerated felons.  The Ninth Circuit saw things differently.

Sentencing and the Death Penalty in Texas:  Sentencing Law and Policy's Doug Berman posts a link to a publication from the Texas Public Policy Foundation detailing its success with alternatives to incarceration.  The piece, by Mark Levin, reports that Texas has experienced lower crime rates and avoided "more than $2 billion in taxpayer costs that would have been incurred had Texas simply constructed more than 17,000 prison beds."  Grits for Breakfast posts more of Levin's work on Texas crime and punishment policy, and also links to a series of death-penalty related stories that have caught his attention.  One of the stories is David Pittman's article from the Amarillo-Globe News, which reports that given the high cost of pursuing the death penalty, some prosecutors will not pursue a death sentence unless they have a "dead-bang cinch guilt-innocence case ... one that you'll prove very easily the person on trial is the person who did it."

Thoughts on Prosecutorial Charging:  At CrimProf Blog, Kevin Cole posts a link to Daniel S. Medwed's SSRN article Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution.  In his article, the S.J. Quinney College of Law Professor examines a prosecutor's decision to charge a suspect with a crime, and proposes a series of reforms to the charging process that could reduce the possibility that an innocent person will face criminal charges.

"The Extreme Measures Taken to Hide Fingerprints":  At Women in Crime Ink, Andrea Campbell reports on the extreme measures criminals will take to avoid identification through their fingerprints.  
When we hear of "domestic violence," we tend to think of male perpetrators and female victims. Sometimes, though, it is the other way around. The Journal of Aggression, Maltreatment & Trauma has a special issue on this subject. In one article, Denise Hines and Emily Douglas note "that criminal justice and social service agencies are unsure of how to respond to or provide services to female perpetrators or male victims."

Strip Searches in Jail

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The Ninth Circuit en banc today upheld San Francisco's policy of strip-searching everyone booked into the jail, superseding a prior 2-1 decision of a 3-judge panel and reversing the decision of District Judge Charles Breyer.*

The decision was 6-1-4. Judge Ikuta wrote the opinion, joined by Judges Kozinski, Rymer, Gould, Clifton, and R. Smith. Judge Graber concurred in the judgment on qualified immunity grounds while agreeing with the dissent on the substantive Fourth Amendment question. Judge Thomas wrote the dissent, joined by Judges Wardlaw, Berzon, and Rawlinson.

An excerpt of the majority opinion follows the jump.

Crime on the Political Agenda

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The issue of crime was barely mentioned in the 2008 election, but shoots are poking up as we head into this year's season. Robert Garrett has this article in the Dallas Morning News on a Democratic primary debate for Texas governor. It appears that newcomer Farouk Shami has swallowed the anti side's propaganda hook, line, and sinker, and he has called for a moratorium on executions.

"We have killed lots of innocent people in the state of Texas," Shami said - a claim that hasn't been definitively proven.

Garrett's "hasn't been definitively proven" is a major understatement. Not a single execution of an innocent person in Texas has been definitively proven. Shami's claim of "lots" is a flight of imagination.

[Former Houston Mayor Bill] White, though, said a moratorium on executions would be too broad. "That would disrespect the juries and the victims," he said.

White acknowledged the system has problems, but said it generally works pretty well. He said he rejects "one-size-fits-all" solutions in this and other parts of government.

White also managed to get in a dig at Perry on the question, criticizing the governor for reshuffling a state forensic science panel that was scheduled to hear experts on flawed arson science used to convict and execute Cameron Todd Willingham for the fire that killed his three daughters.

News Scan

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Cop Financial Disclosure Requirement Upheld:  A federal district judge has upheld a controversial consent decree law which requires a review of personal finances of members of the Police Department's 600 anti-gang drug enforcement officers every two years. The consent decree was between the federal government and the City of Los Angeles.  The members of the LAPD were not a party to the agreement.  A story by Los Angeles Times writer Andrew Blankstein reports that District Court Judge Gary Feess turned away a constitutional challenge by the Los Angeles Police Protective League to the requirement in this 35 page summary judgement.    

Condescension and the Death Penalty


Condescension, discussed by Kent in the prior entry, has a long and prominent place in the death penalty debate.  The language of the debate is itself bloated with condescension.


What is the abolitionists' favorite phrase?  "Evolving standards of decency."  What this is used to suggest is that anyone whose thinking has "evolved," at least in the direction of "decency," opposes capital punishment.  And that is almost certainly what Justice Brennan intended it to imply.  Analysis, you see, is not required when your side's conclusion is built into the vocabulary of the discussion before it begins.


This is one reason I often use the following question when debating capital punishment:  I will note that the death penalty was not only supported but used by Dwight Eisenhower, George Washington, FDR and Abraham Lincoln (Bill Clinton also supported  and used it, but I tend  to leave him out).  I then ask my debate opponent whether he knows of any reason to believe that abolitionists know more, or are attuned to some Higher Morality, than these men.


You will not be surprised to learn that I almost never get a direct answer, few people being willing to proclaim their moral vision superior to Lincoln's.  And I confess I don't ask it to obtain such an answer.  I ask it to puncture the facade of moral superiority and the accompanying condescension that is the inevitable backdrop of abolitionism.  Once that facade is defeated, and the debate goes forward based on fact (e.g., the increasingly  one-sided evidence of deterrence) or the facts of particularly horrible, cruel and merciless murders, the debate's conclusion becomes obvious to fair-minded people.

On Condescension

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UVa Prof. Gerard Alexander has this op-ed in the WaPo. He does not address the debate over crime specifically, but the overall problem he addresses is quite consistent with what I have experienced debating crime issues over the years:

Every political community includes some members who insist that their side has all the answers and that their adversaries are idiots. But American liberals, to a degree far surpassing conservatives, appear committed to the proposition that their views are correct, self-evident, and based on fact and reason, while conservative positions are not just wrong but illegitimate, ideological and unworthy of serious consideration.
*                           *                         *
This condescension is part of a liberal tradition that for generations has impoverished American debates over the economy, society and the functions of government -- and threatens to do so again today, when dialogue would be more valuable than ever.

Federal Charges for Roeder?

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Federal officials are considering charging Scott Roeder with violating the federal Freedom of Access to Clinic Entrances Act (FACE), reports Judy Thomas for the Kansas City Star. This is despite the fact that Roeder has already been convicted of murder in state court for killing abortion doctor George Tiller.

Constitutionally, the "dual sovereignty" doctrine permits the federal government to prosecute after a conviction or acquittal in state court for the same crime. As a matter of policy, though, it is rarely done. It is justified, in my opinion, when an acquittal or a grossly inadequate sentence is the result of some major malfunction of the state court system. That occurred in cases of violence against civil rights workers in the early 60s, for example. I see no reason for it here. Roeder was convicted of the highest degree of offense available under Kansas law, first-degree murder. (The crime is not capital under either Kansas or federal law.)  A 51-year-old man who is ineligible for parole for 50 years is not going to see the outside of the prison wall again.

The other justification given in the article is to investigate whether others were involved in a conspiracy. I think other tools are more appropriate for that.

Generally speaking, crimes by one person against another should be matters of state criminal law. Federal law enforcement should be used for inherently federal issues such as national security, smuggling, or counterfeiting, large organized crimes rings that cross state lines and are beyond the capacity of any one state to prosecute, and malfunctions of the state system itself.

Blog Scan

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Popular Support for the Death Penalty:  Last month, Kent reported that the majority of Britons and Canadians supported the death penalty, and guest blogger Bill Otis wrote that "the death penalty exists in both law and in practice in countries with well over half the world's population."  Over the weekend, on Sentencing Law and Policy, Doug Berman reported that 86% of Japanese support the death penalty.  Berman writes that Japan stands as another modern example of an industrialized nation that still utilizes the death penalty.  And, apparently, 86% of the 3,000 men and women surveyed support its continued use. 

More on McDonald v. Chicago:  A few weeks ago, Tony Mauro reported that the Supreme Court granted the NRA's motion for oral argument time in the Second Amendment case of McDonald v. Chicago.  Today, Wall Street Journal's Law Blogger, Ashby Jones, reports that the Supreme Court's grant, "sliced the lead attorney's time by a third and gave it to the NRA and its recently hired attorney, Paul Clement, the former Solicitor General...."  Apparently, the NRA's argument is different from the argument offered by lead attorney, Alan Gura.  The NRA will argue that the most "straightforward route" to incorporating the Second Amendment on the states is through the Due Process Clause of the 14th Amendment, while Gura urges the Court to incorporate the Second Amendment through the 14th Amendment's "privileges or immunities" clause.  A Washington Post article by Robert Barnes comments that the NRA's motion for oral argument time "underscores the bad blood between the erstwhile Second Amendment allies."

Does Kiyemba Address a Moot Issue?:  That's what the Department of Justice appears to believe now that Switzerland has extended an offer of "resettlement" to the two Uighurs detained at Guantanamo Bay.  Jurist writer, Ximena Marinero, posts that the Department of Justice argued in its' merits brief for Kiyemba, et. al. v. Obama, that with all of the detainees scheduled for resettlement in other countries, "legal constraints prevent the courts from ordering that petitioners be brought to and released in the United States."  Lyle Denniston reports on SCOTUSblog that the DOJ suggested, "[a]s an alternative," that the Court uphold a D. C. Circuit Court ruling that denied federal judges any authority to order the transfer of Guantanamo prisoners to the U. S. itself.  Denniston writes that dismissing Kiyemba would allow the government to temporarily avoid a ruling that might allow courts to keep some some of the power to decide the fate of prisoners at Guantanamo Bay, after they have been cleared for release.  The Obama administration has long held that only the Executive Branch can decide what happens ultimately to Guantanamo prisoners.

Cracking Down on Juror Tweeting:  At Blog of Legal Times, Marcia Coyle reports that a committee of the Judicial Conference of the United States has endorsed a set of model jury instructions for district judges to help deter jurors from using cell phones, computers or other electronic technologies during their jury service.  The suggested federal instructions inform jurors that they may not use those technologies in the courtroom, in deliberations or outside the courthouse to communicate about or research cases on which they are serving.  The new instructions contain a laundry list of unacceptable forms of communication during the trial.  It is incredibly thorough and excludes communications through "your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube."

Inconsistent Verdicts

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Sir William Blackstone noted centuries ago that it is "better that ten guilty persons escape than that one innocent suffer." To that end, the system is intentionally tilted in the defendant's favor with such advantages as the requirement of proof beyond a reasonable doubt. But if one of those ten guilty persons has accomplices and they are tried separately, does it follow that they must also escape? Not in California, as of today. The California Supreme Court held in People v. Superior Court (Sparks), S164614:

Real party in interest, Dustin William Sparks (hereafter defendant or Sparks), was charged with two felony murders. Before his case came to trial, two other persons were tried for the same murders. One was convicted of voluntary manslaughter, and the other was acquitted. Concerned about possible inconsistent verdicts, and applying the doctrine of nonmutual collateral estoppel adopted in a criminal case in People v. Taylor (1974) 12 Cal.3d 686 (Taylor), the superior court ruled that those verdicts prohibit the prosecution from trying defendant for a crime greater than voluntary manslaughter.

We conclude that decisions postdating Taylor, supra, 12 Cal.3d 686, including decisions from this court and the United States Supreme Court, have undermined Taylor's reasoning and the authority on which it relied. Occasional inconsistent jury verdicts are inevitable in our criminal justice system. If a verdict regarding one participant in alleged criminal conduct is inconsistent with other verdicts, all of the verdicts may stand. (Standefer v. United States (1980) 447 U.S. 10, 25-26 (Standefer); People v. Palmer (2001) 24 Cal.4th 856, 860 (Palmer).) Accordingly, a verdict regarding one defendant has no effect on the trial of a different defendant. Courts should determine the propriety of a prosecution based on that prosecution's own record, not a different record. Nonmutual collateral estoppel does not apply to verdicts in criminal cases.
This is a unanimous opinion by Justice Chin. Another bad precedent from California criminal jurisprudence's dark ages bites the dust.

News Scan

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Arkansas Injection Protocol Upheld: Another attack on lethal injection has been rejected post-Baze, this time in Arkansas. Eighth Circuit opinion here. AP story here. (Hat tip: How Appealing.)

Japan Death Penalty Poll:  Mainichi Daily News reports, "Some 85.6 percent of Japanese are in favor of the death penalty, results of a Cabinet Office survey released Saturday indicate. The survey further found that only 5.7 percent of the 1,944 respondents think death sentences should be abolished."

An Unexpected Legal Advocate: New York Times writer Adam Liptak reports on a man who made the most of his time in prison by studying law.  Shon R. Hopwood committed five robberies in Nebraska in 1997 and 1998 and was sentenced more than a decade in federal prison.  There, he studied the law and became a Supreme Court practitioner.  In 2002, Hopwood prepared his first petition for certiorari to the U.S. Supreme Court for a fellow inmate, John Fellers.  The Court agreed to hear the case in December 2003.  Seth Waxman, a former U.S. Solicitor General, agreed to take Fellers case in part because "It was probably one of the best cert. petitions I have ever read."  Since being released from prison, Hopwood has taken a job with Cockle Printing, a leading printer of Supreme Court briefs.

Law Lagging With Technological Advances:  Boston Globe writers Jonathan Saltzman and John R. Ellement report on a loophole found in a Massachusetts law.  According to the Massachusetts Supreme Court opinion found here, state law does not bar people from sending lewd computer messages to minors.  Matt H. Zubiel was convicted of four counts of attempting to disseminate harmful matter.  He had emailed a photograph of himself and sent lewd messages to an undercover officer, who he thought to be a 13 year old girl.  On Friday, Zubiel's conviction was overturned.  The court's opinion stated, "If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition, it is for the Legislature, not the court, to do so."  Governor Deval Patrick plans to introduce a bill to close the loophole next week.  Eugene Volokh also posts his thoughts on the decision at Volokh Conspiracy.   

Internal Debate on SCOTUS Nominee

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With at least one vacancy on the high court quite possible this summer, "Democrats ... are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition," reports Jess Bravin in the WSJ.

Needless to say, nominating someone with a history of bending over backwards to let violent criminals off with less than they deserve, or off altogether, would be a substantial political liability in a year where control change in Congress is a possibility. On the latter point, John Fund had this article in Friday's WSJ.

Cooked books?

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Crime researchers pump out studies almost daily, it seems, with implications for the policy choices we must make. At bottom, though, a study can be no better than the data that go into it. As they say in the computer industry, "garbage in, garbage out." Numbers can be run through sophisticated statistics software, and the results can be dressed up with snazzy graphics, but if the raw data are bogus, the graphs are meaningless at best and dangerous at worst.

In the New York Post, Philip Messing, Larry Celona, and James Fanelli have this disturbing story about cooking the books on crime stats as a result of the data-driven police management system, CompStat.
The general rule that character evidence is inadmissible in criminal proceedings is always subject to exceptions.  One of those exceptions is when the prosecution "opens the door" by introducing evidence of the victim's virtuous life during the penalty phase.  But in a murder trial, is evidence that the victim possessed child pornography enough to sully his good character?  And if defense counsel fails to introduce that evidence, is it reversible error under Strickland v. Washington

Yes, says the Supreme Court of Missouri in the recent case of Gill v. State:

When the State introduced evidence regarding the victim's good character, Gill's counsel should have presented rebuttal evidence. However, his counsel failed to present rebuttal character evidence because they failed to discover it. They saw the names of the sexually explicit files on the report but were not diligent in investigating further. Defense counsel testified at the Rule 29.15 hearing that after more carefully reviewing the report, they noticed entries that should have alerted them to the presence of pornography on the computer. They had the opportunity to discover the child pornography, bestiality content, and instant message conversations on the victim's computer but neglected to do so.

By failing to discover those files on the victim's computer, Gill's counsel's performance was deficient.

Ohio Execution

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In 1994, Isam Salman and Hayder al-Turk were murdered in Salman's store. Justice for this crime was finally carried out yesterday. The perpetrators were emulating a scene from the movie Menace II Society. Alan Johnson has this story in the Columbus Dispatch. The Supreme Court's green light orders are here and here. No dissent is noted for either. 

Ohio's repeated successful use of a one-drug protocol should put to rest the nonsense emanating from the DPIC about using "untested" methods. It will probably be gradually adopted by the other states, just as the present three-drug method replaced the gas chamber and electric chair, which replaced hanging.

Ohio is doing a fine job of wrecking the opposition's containment strategy. They want to convince the rest of the country that the death penalty is a purely Southern phenomenon, with the usual express or implied accusation of racism. Now we need to get California on track. The Administrative Procedures Act mess should be fixed by May. There are 6 or 7 cases that are all the way through the review process, depending on whether the Ninth Circuit is finished being serially reversed in Belmontes.  Monthlies are possible in both states.

Blog Scan

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Examining Guantanamo Bay Policy:  In a post titled The Gitmo Rebellion, Volokh Conspiracy blogger, Kenneth Anderson, expresses his thoughts on Nick Baumann's Mother Jones article by the same name.  Baumann's article details recent efforts by Senators Jim Webb (D-Va.) and Blanche Lincoln (D-Ark.) to block funding to the Obama Administration's efforts to try 9/11 co-conspirators in civilian courts. Anderson offers these thoughts in response:  (1) the big question is whether the trial of KSM and potentially others will be tried as civilians, in the Federal courts, or by military commission; (2) the Senators' efforts may mean "that Congress might at last be getting involved in something that it has wanted to avoid getting involved with for years and years[;]" and finally, could changes proposed by Congress cause the administration's attorneys working on detainee policy to leave when things don't change? 

Justice Kennedy Addresses Pepperdine School of Law:  At Southern California Appellate News, Ben Shatz reports in on Justice Kennedy's 75 minute address to attendees of the William French Smith Memorial Lecture.  Shatz reports that during the question and answer session, Justice Kennedy expressed his views on international law, sentencing, effective  advocacy, and how he approaches the Constitution.  With regard to sentencing, Shatz quotes the Justice as saying "I'm against mandatory sentences. They take away judicial discretion to serve the four goals of sentencing. American sentences are 8 times longer than their equivalents in Europe. California's 3-strikes law emanated from the electorate, and the sponsor of the initiative was the correctional officers association -- 'and that is sick.'"

Justice Thomas' Law School Speaking Tour:  At Blog of Legal Times, Tony Mauro reports on speeches made by the Justice at Stetson University College of Law in Gulfport, Florida and the University of Florida Levin College of Law in Gainesville.  Mauro reports that both speeches demonstrate "yet again that [Justice Thomas] is incapable of giving a dull speech."

Two New Supreme Court Judges?  Yesterday, Doug Berman posted on Sentencing Law and Policy that the Supreme Court may be ready for two new Supreme Court Justices.  Berman links to an ABC News article by Ariane deVogue suggesting that both Justices Stevens and Ginsburg could leave the Court this year.  Vogue gives the usual explanations for why each Justice may retire, and then suggests possible candidates. The list contains the usual suspects - Solicitor General Elena Kagan, Seventh Circuit Judge Diane Wood, Homeland Security Secretary Janet Napolitano - and then mentions some less obvious candidates - Cass Sunstein, Justice Leah Ward Sears, and Judge Merrick Garland.  Berman does not appear to believe that Justice Ginsburg will leave this year.  Ed Whalen at NRO's Bench Memos agrees.  Jonathan Adler comments on Volokh Conspiracy that the specter of two Supreme Court vacancies "could help explain the Administration's tardiness in making other judicial nominations." 

How Oyezed Opened Up the Court:  At SCOTUSblog, Matt Sundquist posts a Q&A from his interview with Jerry Goldman, the creator of the Oyez Project and a Political Science Professor at Northwestern University.  In the post, Goldman explains why he became interested in digitizing oral arguments from the U. S. Supreme Court, and how he went about creating a publicly-accessible archive of Supreme Court oral arguments dating back to 1955.  

Collateral Estoppel

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On Monday, the California Supreme Court will answer the following questions in People v. Superior Court (Sparks):

(1) Did principles of collateral estoppel, as applied in People v. Taylor (1974) 12 Cal.3d 686, preclude the prosecution from trying defendant for murder on a felony-murder theory after the actual killer had been acquitted of murder on such a theory? (2) Is Taylor still good law, or should that decision be overruled or disapproved?

News Scan

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Ohio Prosecutors Move to Speed Up Executions:  The Associated Press reports that Ohio prosecutors are asking the state Supreme Court to step up its scheduling of execution dates.  The court's current policy of setting one execution date per month will drag out the sentences for the state's existing condemned murderers to 2025, according to Doug Berman at Sentencing Law and Policy.  Yesterday, Ohio executed Mark Brown, who murdered two clerks at a Youngstown convenience store in 1994 as reported in this AP story by Andrew Welsh-Huggins.
Online video is now available for the Federalist Society event "Will Trying Suspected Terrorists in Federal Court Advance the Interests of Justice and National Security?" The event was held January 27 at Fordham University in New York.

News Scan

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New Hampshire Reconsiders Definition of Capital Crime:  Nashua Telegraph writer Kathy Cleveland reports on Tuesday's New Hampshire Senate hearing discussing a bill to classify home invasion killings as capital crimes.  This bill was prompted by the October 4th murder and home invasion in Mont Vernon involving four men killing Kimberly Cates and leaving her young daughter for dead.  Currently, New Hampshire's capital murder law only covers the murder of a policeman, and this bill would expand the definition to include "purposely causing the death of another while in another's residence, or attempting to enter another's residence, or after having been in another's residence without invitation or right." Speaking before the Senate Judiciary Committee was John Quinlan Jr., a Mont Vernon selectman and a friend of the Cates family.  "I am not interested in an eye for an eye," he said.  "We need to make a statement that this will not be tolerated.  There is great frustration among people that no matter what the prosecution does," there will be no justice.  The last execution in New Hampshire was in 1939.

The Basics of It


A couple of days ago, I took note of the unchecked spending our new federal budget provides for the continued explosive growth of the welfare state.  Today I want to spell out, very briefly, the fundamental connection between the welfare state and a dysfunctional criminal law.  It might already be obvious; to readers of this blog it probably is.  But it's worth repeating because it is the central divide in domestic policy in our country.


Either we view citizens as responsible for their own lives and behavior or not.  If we do, we don't need and shouldn't have a welfare state of anything approaching its current gargantuan reach.  And we can embrace a criminal law grounded in the moral confidence of independent adults  --  the confidence, for example, to execute dangerous and malevolent killers, and do so without apologizing to the chattering class in the academy or the press.  It is likewise the confidence to imprison criminals for their punishment and our safety.  It enables us to reject calls to spurn accountability in favor of a phony and corrosive "compassion."  We can reserve authentic compassion for the victims of crime, and we won't confuse victims with victimizers.


The alternative theory views a citizen not as a responsible actor but as a vessel of forces beyond his control.  There is little or no genuine free will or choice.  There is only the overwhelming affliction of racism, militarism, childhood trauma, brain lesions and so on.  So viewed, citizens are not responsible.  The state is responsible.  It is thus up to the state to put food on the dining room table and excuses on the courtroom table.  Criminals are the real victims; those more traditionally thought of as victims of crime are mere inconvenient collateral damage of the capitalist behemoth, and will be treated as such.


For most of its history, our country has looked upon its citizens as responsible actors.  Taking that view, it has prospered like no other civilization in history  --  prosperity marked by respect for individual autonomy, the rights and dignity of minorities, private property and the rule of law.  But that view has been under attack for quite some time, and is under attack today as seldom before.  It is under attack by a government that assumes we cannot provide for ourselves and have neither the moral authority nor the wit to treat criminals for what they are or, for that matter, war criminals for what they are.  Indeed it's a government so lacking in moral clarity that it can't tell the one from the other.


The new budget is a literally gigantic reminder of the ideas we need to, and are going to, fight.   


UPDATE:  Some commenters have objected that this entry is off topic and shows that C&C has turned into a soapbox for conservative causes generally.  That is incorrect.


The entry is relevant to criminal  law and sentencing in  two ways.  Directly and  immediately, the open-the-prison-gates movement is gaining traction by arguing that the cost of imprisonment (not to mention the death penalty) is unsustainable in light of the deficits state governments, and particularly the federal government, are facing.  But the real cause of these deficits is the explosion of entitlement spending.   To fail to point this out is to give a free ride to the anti-imprisonment movement  --  in essence, to allow it to make incarceration the culprit when assuredly it is not.  If we are to contain deficit spending, neither prisons nor the law enforcement system is the place to look.  Entitlement spending is.


Second, over the long term, but at least equally important, public support for sober sentencing will not survive the underlying ethos of the welfare state.  That ethos  is that individuals cannot really be held  responsible for their own lives and behavior (or even for paying their own  bills with earned income).  The ethos of unapologetic criminal punishment is, contrariwise, that individuals are really responsible for their own lives and behavior (if they weren't, the morality of punishing  them would be  open to serious question).   To the extent the government indulges more and  more entitlement spending and the assumptions about human nature that underlie it, the very foundations of just punishment are undermined.  Thus entitlement spending is very much relevant to the core subjects here.


That Didn't Take Long

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Robert Lewis and Sam Stanton report for the Sacramento Bee:

One of the inmates the Sacramento County Sheriff's Department released early as part of an effort to reduce the state's prison population was arrested Tuesday on suspicion of attempted rape, less than 24 hours after getting out of jail, The Bee has learned.

Kevin Eugene Peterson got out of jail Monday night after serving about two months on a four-month sentence for violating probation on a prior felony conviction. Peterson was arrested 12 hours later, around 12:30 p.m. Tuesday, on suspicion of an attempted rape involving a female counselor at the 1300 block of North C Street, a Sacramento Police Department spokesman said. He was booked into the Sacramento County jail at 3:21 p.m. Tuesday on suspicion of attempted rape, sexual battery, false imprisonment and violating the terms of his probation.

"Our greatest fear has occurred almost immediately after the early release of these inmates," said Christine Ward of the Crime Victims Action Alliance. "We are certain that we will see more of this as more inmates are released from jails and prisons."

Peterson has a criminal history including a 2008 felony conviction for assault with a deadly weapon. He pled guilty and was sentenced to a year in prison. On Dec. 2, he was sentenced to four months for violating the terms of his probation, according to court documents.

Only nonviolent inmates will be released. There is no point in imprisoning people on technical parole violations. We know how to identify the ones who can be safely released. This program will enhance, not endanger, public safety. This is part of being smart on crime.

Oh, and would you like to buy a bridge?

Death Eligibility and Procedural Bars

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Lauren's Blog Scan notes a post at SL&P, noting an article by Lee Kovarsky on the question of whether relief for persons now ineligible for the death penalty should be blocked by procedural rules. I have to wonder if this is a solution in search of a problem.

All of the 17-year-old murderers' death sentences were commuted after Roper. None were executed anyway because of procedural default. In our experience, when a death row inmate is found to be genuinely retarded post-Atkins, the prosecution does not assert a procedural bar to relief.  I was at a meeting of California capital prosecutors Friday, and one of them noted a (rare) case where a person on death row really is retarded. Everyone there agreed that the right thing to do was to stipulate to a grant of state habeas corpus relief.

There are, of course, a great many false claims of retardation. The day after Atkins was decided, a massive wave of adult-onset retardation swept across the death rows of America, unhindered by the inconvenient truth that there is no such thing as adult-onset retardation. Experts came out of the woodwork to serve up platters of baloney, such as the so-called "Flynn effect," to get those inconvenient 70+ scores on pre-crime tests down where they needed to be. They staunchly assert their confidence in the validity of post-arrest tests where the defendant has every incentive to malinger, when everyone knows those tests are suspect.

Is it a problem if a phony claim of retardation is blocked on procedural default or the statute of limitations? No. How about one close to the ragged edge? Should we waive default and time rules and adjudicate them all on the merits? Maybe, but what if the case goes to one of those district judges or appellate panels that is determined to overturn all death sentences regardless of the truth? Should the statute of limitations be asserted to prevent a miscarriage of justice when the prosecution is convinced the murderer is not really retarded? It's a tough question.

Blog Scan

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A Proposal to Reform Habeas Corpus:  Yesterday, on Sentencing Law and Policy, Doug Berman posted a link to Lee Kovarsky's Cornell Law Review article, Death Ineligibility and Habeas Corpus.  In his article, Kovarsky argues that the current habeas scheme limits the number of procedural claims a petitioner may litigate during habeas corpus, and is ineffective in addressing death-ineligibility claims as the Supreme Court declares categories of prisoners ineligible for the death penalty.  He proposes that "in light of important distinctions between death-ineligibility challenges and the claims on which existing law is premised, the Supreme Court should reformulate habeas relief available to categories of offenders that may not be executed under the Eighth Amendment."  But with current habeas procedure being partially responsive to rights established during the Warren Court, a judicially created remedy may not be the fix Kovarsky envisions.  See also Kent's post on this.

Supreme Court Wants to See "Briefer Briefs": 
At Blog of Legal Times, Tony Mauro reports that when the new Supreme Court rules take effect on February 16, lawyers will have to keep their reply briefs at the merit stage to 6,000 words instead of the previously allowed 7,500.  To explain the change, the clerk of the Court comments that the change reflects a return to the word limit allowed when the Court used page limits.  Apparently, the extra words allowed lawyers to repeat previous arguments instead of addressing arguments made in the intervening briefs. Mauro cannot help himself from commenting, "In other words, lawyers have been padding their briefs."

"The Terrifying Right to Remain Silent":  How Appealing's Howard Bashman links to an Associated Press news analysis by Matt Apuzzo discussing the Obama administration's decision to read Umar Farouk Abdulmutallab his Miranda rights.  As with so many discussions, Apuzzo fails to cleanly distinguish between the right not to be compelled to be a witness against oneself in a criminal case, which is in the Constitution, and a "right to remain silent," which is a fabrication of the Miranda Court. The difference is important when it comes to interrogating a person for reasons other than criminal prosecution, such as learning what he knows about people whose mission is to kill every American they can anywhere in the world.

Justice Kennedy's Swing Vote in Race Cases:  As a part of SCOTUSblog's Race and the Supreme Court program, Yale Law Professor Heather Gerken posts a piece on "Justice Kennedy's Emerging View on Race."  Gerken's piece does not tackle the Justice's view on race and crime (it focuses on equal protection cases) but the piece does offer some insight into how Justice Kennedy approaches a race related issue.  Gerken writes that when the Justice has had to address voting-rights claims, or desegregation cases, he focuses on "values he otherwise associates with each domain."  For example, because "Kennedy has long thought of schools as institutions for teaching students to be citizens, ... now he sees that those lessons extend to interracial relations."  Gerken has also recently commented on Citizens United v. FEC during testimony before the Senate Committee on Rules & Administration.  According to this ACS post, Gerken believes the decision helped dismantle campaign finance rules designed to protect the democratic process and urged urged Congress to "protect U.S. elections from foreign influence."

News Scan

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Illinois Primary: "Like it or not, the establishment won last night," reports WaPo political analyst Chris "The Fix" Cillizza. He notes that incumbent Gov. Quinn nearly blew the advantage of incumbency when he "committed a massive unforced error -- acknowledging the accidental release of hundreds of prisoners from the state's jails -- that handed Hynes momentum he was struggling to find elsewhere." Although Quinn squeaked it out, the fact that an incumbent came that close to losing a primary should send a message.

In Virginia, now that Tim Kaine is former Gov., the irrational "triggerman" law may finally be repealed, reports Bill Sizemore in the Virginia Pilot. That is the law that says a conspiracy leader who orders a "hit" cannot get the death penalty, with a few, narrow exceptions, while the follower who does the dirty work can. In Ohio's Getsy case, a Sixth Circuit panel held that such a disparity in sentence was so gross as to be unconstitutional. That ruling was correctly overturned en banc, but the result is still one to be avoided when possible, certainly not one to be enshrined in law.

In Maryland, this WaPo blog post notes the curious incident of Gov. O'Malley's silence on the death penalty in his State of the State address.  "The legislature compromised last year on this issue, too, passing a bill that restricts death penalty cases to those with higher standards of evidence.... The issue of the death penalty will still be relevant this session. Some lawmakers are attempting to loosen the standards of evidence approved last year, and a panel of legislators is reviewing rules drafted by O'Malley's administration that would end an effective moratorium on capital punishment that began with a December 2006 court ruling."

Kiddie Porn: John Schwartz in the NYT has this interesting article on making the buyers of child pornography pay restitution to a little girl, now grown, who was victimized to make the video.

Gallup Poll on Ideology

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In how many states do the number of people who identify themselves as "liberal" outnumber those who identify themselves as "conservative"?

You Mean Jail Actually Works??!!

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A story on MSNBC reports the following:

A massive new federal study documents an unprecedented and dramatic decrease in incidents of serious child abuse, especially sexual abuse. Experts hailed the findings as proof that crackdowns and public awareness campaigns had made headway.

An estimated 553,000 children suffered physical, sexual or emotional abuse in 2005-06, down 26 percent from the estimated 743,200 abuse victims in 1993, the study found....

Finkelhor [the study's author], whose own previous research detected a drop in abuse rates, said the study reveals "real, substantial declines" that cannot be dismissed on any technical grounds, such as changing definitions of abuse.

He suggested that the decline was a product of several coinciding trends, including a "troop surge" in the 1990s when more people were deployed in child protection services and the criminal justice system intensified its anti-abuse efforts with more arrests and prison sentences.

Here they come

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From the Sacramento Bee's crime blog:

Sacramento County is releasing hundreds of prisoners from its jails as a result of California's new early-release program, an effort to save money in the cash-strapped state.

The county has already started releasing inmates from the Rio Cosumnes Correctional Center, and the county could release as many as 250 prisoners by the end of today, Sheriff John McGinness confirmed. The number could grow by the end of the week.

How many crimes will be committed as a result, that could have been avoided? We'll see.

The Millenium Bomber

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The U.S. Court of Appeals for the Ninth Circuit issued this opinion today in the case of the "Millenium Bomber," Ahmed Ressam. The Supreme Court's 2008 opinion, reinstating one count set aside by the Ninth, is here. On remand, the District Court imposed a sentence of 22 years, and the Government appealed. Today's opinion holds:

We vacate the sentence and remand for resentencing by a different district court judge because we conclude that the district court committed procedural error in failing to address specific, nonfrivolous arguments raised by the Government in imposing a sentence that is well below the advisory Sentencing Guidelines range.

A Dictionary for the Politically Incorrect


In the New World of language that means anything you want, it's sometimes hard to keep track of what some people, particularly criminal defense lawyers, actually mean.  To assist those of you who are having trouble, I offer the following dictionary:

Overzealous prosecutor - A prosecutor who's awake during business hours.

Stacking charges - An indictment whose counts correspond to the defendant's crime spree, including all 75 house burglaries.

Smart on Crime - Oblivious to crime, usually trotted out as "nuanced thinking."  This is in contrast to your "neanderthal thinking."

Alternative Sentencing - Anything except going to the slammer.  More broadly, any punishment other than one that might conceivably persuade the defendant that getting a normal job is better than knocking over the gas station. 

Multiculturalism - A big word meaning, "The West stinks." Shorthand version: "America stinks." Under multiculturalism, Abraham Lincoln, who supported and used the death penalty, is out, and Che Guevara, blood soaked anti-imperialist leader, is in.

Tolerance - The mind-set that requires you to assume that every way of living is as good as every other way of living. Thus, if a woman has X number of kids by Y number of men, none of whom she troubled herself to get to know all that well, much less marry, we must accept this in the name of "tolerance" of a "non-traditional lifestyle." (Indeed, we are required not merely to tolerate it but foot the bill). If you are rude enough to point out that the kids who come into the world this way are much more likely to be poorly educated, not to mention abused by the next boyfriend and eventually to wind up in jail, you are "intolerant." 

Verbal violence - A statement a liberal doesn't like but has trouble refuting analytically. Thus, if you say that hard-edged feminism is at odds with traditional families -- the kind in which children are most likely to prosper and live peaceful, law-abiding lives -- this is "verbal violence" against women, and you have to sit in the corner.


I'll have more entries over the next few days.


Blog Scan

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Be Skeptical of Census Data:  That's the advice of Justin Wolfers on the New York Times' Freakonomics Blog.  Wolfers points to a new paper, Inaccurate age and sex data in the Census PUMS files by Trent Alexander, Michael Davern and Betsey Stevenson, and its conclusion that errors in the information used by researchers (the public use microdata samples) is not representative of the population at individual ages for those ages 65 and over.  The authors found errors in the 2000 Decennial Census, the American Community Survey, and the Current Population Survey.  Wolfers reports that the erroneous microdata is used in "thousands of studies and countless policy discussions."  He believes that areas of studies focusing on seniors "--retirement, social security, elder care, disability, and medicare--will need to be revisited."

Weighing in on Presley v. Georgia On PrawfsBlog, Lyrissa Lidsky comments on the Supreme Court's per curiam decision in Presley v. Georgia, the Sixth Amendment case holding that the "right to a public trial extends to the voir dire of prospective jurors."  Lidsky, a Professor at University of Florida's Levin College of Law, was shocked by the Georgia courts "blatant disregard for Supreme Court precedent" and glad to see the Court uphold the right to a public trial.  She calls the case "disturbing" because only two state court judges "appreciated the importance of a constitutional right that has been clearly established for 25 years."  She worries that certain judges will close courtrooms to the public because they know "that few litigants will have the persistence or resources of Presley to appeal the closure order to the United States Supreme Court."

Supreme Court Review of Courts-Martial:
  Marcia Coyle reports on Blog of Legal Times that the House Judiciary Committee has approved a bill that would expand the jurisdiction of the Supreme Court so that it may review a military service member's challenge to a courts-martial decision.  Presently, if the U. S. Court of Appeals for the Armed Forces (CAAF) refuses to hear a petition, a service member who has not been sentenced to death may not petition the Supreme Court.  The bill, sponsored by Rep. Susan Davis (D-Calif.), would place service members on the same level as the government, which can petition the Court in any case referred to the CAAF.

The Untapped Resource of Inmate Labor:
  Today, Women in Crime Ink writer, Donna Pendergast, posts on successful inmate work programs that have saved counties "millions of dollars"
while providing "a positive way to teach inmates a work ethic, and provided them a chance to give back to the community at no cost to the county."  One such program?  The Maricopa County Animal Safe Hospice (MASH), which pays inmates 28 cents an hour to walk, feed and care for abused and neglected animals in Maricopa County, Arizona. Pendergast believes that similar programs might be a good way for states to address ballooning deficits and rising prison costs. 

A Tale of Two Terrorists

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David Rivkin and Marc Thiessen have this op-ed in the WSJ, contrasting the cases of alleged embassy bombing conspirator Ahmed Ghailani with that of the "Christmas Day bomber" Umar Farouk Abdulmutallab. Ghailani was held in CIA custody for years, and his interrogation revealed much of value. "Abdulmutallab was questioned for 50 minutes by local FBI agents and then later advised of his 'right to remain silent.' " Ghailani was captured, detained, and interrogated during the Bush Administration, but it falls to the Obama Administration to defend these actions in court, and Rivkin and Thiessen quote from the Government brief in Ghailani's case about the necessity and propriety of the Government's actions. CJLF's brief, invited by the court, is here.

News Scan

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Delaware's Death Penalty Upheld: Yesterday's Blog Scan reported that the Third Circuit had upheld Delaware's death penalty.  Today, News Journal writer Sean O'Sullivan reports that Monday's ruling will pave the way for executions, on hold since May 2006, to resume.  Attorneys opposing the protocol had used the 2005 case of Brian Steckel, the last person to be executed in Delaware, as a reason to bar the death penalty.  During Steckel's execution, an intravenous line used to deliver the drug cocktail became blocked and the procedure took far longer than usual.  The appeals court viewed the problems as "a string of isolated examples of maladministration." It is not clear when lethal injection executions will resume in Delaware or which death-row inmate will be the first scheduled to die.  While legal observers, such as defense attorney Joseph Gabay, believe Monday's ruling by the appeals court likely ends the matter, attorneys for Delaware's death-row inmates may ask for a re-hearing and attempt to have the U.S. Supreme Court review the case.

"U.S. pushes for Noriega Extradition to France":  The Associated Press reports on attempts by the U.S. government to clear the way for former Panamanian dictator Manuel Noriega to be extradited to France on money-laundering charges.  Prosecutors are asking U.S. District Judge Paul Huck to lift a stay blocking Noriega's extradition now that the U.S. Supreme Court last week rejected Noriega's appeals.  Noriega claims as a prisoner of war he should be sent home.  More information on the court's decision can be found here and here.

New Gitmo Prison Cost Included in Budget:  CNN writer Terry Frieden reports that President Obama has requested more than $230 million to buy and prepare an idle Illinois prison to house terrorism suspects now detained at Guantanamo Bay, Cuba.  The budget requires congressional approval, and several lawmakers in both the House and Senate have vowed to block the funds, potentially preventing the transfer of many of the 192 remaining Guantanamo detainees to U.S. soil.  "Even though Americans are facing tremendous economic challenges, the administration has chosen to spend $237 million dollars in taxpayer money to provide free travel, room and board in Thomson, Illinois for some of the most dangerous Guantanamo detainees," said Rep. Ileana Ros-Lehtinen (R-FL).  Even if the funds are approved in October 2010, Justice Department officials said Monday the transfer of any detainees was unlikely to start until several months later.

The Justice Department budget also seeks an additional $73 million dollars for the transfer, prosecution and incarceration of five Guantanamo Bay detainees currently slated to stand trial in criminal court for their alleged roles in the September 11, 2001 terrorist attacks.  Gary Grindler, the acting deputy attorney general, said the Justice Department is committed to a civilian trial for Khalid Shaikh Mohammed and four others charged in the terrorism case.  Grindler said no decision has been made on whether the trial would be moved from New York City.  Federal officials informed New York authorities that the cost of a long-running trial in New York City could approach $1 billion.

"Grand Jury Dusts off 31 Cold Cases":  CNN writer Gabriel Falcon reports on Northampton County, Pennsylvania district attorney, John M. Morganelli has decided to review as many as 31 homicide cases dating back for the last 30 years.  These cases will be presented to a special investigative grandy jury starting Thursday, and meeting over the next 18 months.  Richard Branagan is optimistic his daughter's killer will be found.  Holly Branagan, 17 at the time, was found murdered March 1979 in her home with repeated stab wounds.  No one was ever charged with her slaying.  Cases such as this have piled up as "cold cases." Advances in examining genetic material could play the most important role in unraveling these mysteries.  "There is evidence that we collected at the time it was initially investigated," said Robert Egan, the man leading the investigations for Morganelli's office.  "We are working with that evidence, and we are working with some of the new DNA technology." 

How ripped was he?

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Stephanie Reitz reports for AP, "Rip Torn was so intoxicated when he broke into a Connecticut bank carrying a loaded gun that he thought he was home, taking off his hat and boots and leaving them by the door, according to court records."

Recusal in Landrieu phone caper

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Here is some breaking news from New Orleans, by AP:

The top federal prosecutor for New Orleans has asked to be taken off the case of four conservative activists arrested while trying to capture hidden camera footage in a senator's office.

The Department of Justice said in a news release Monday that Jim Letten, U.S. Attorney for the Eastern District of Louisiana, has recused himself from the case involving the men arrested in Democrat Sen. Mary Landrieu's New Orleans office.

Assistant U.S. attorney Jan Mann is taking over the case.

The news release didn't say why Letten asked to be taken off, and a spokeswoman for Letten said she couldn't comment.

One of the men arrested, James O'Keefe, has said the group wanted to investigate complaints that constituents calling Landrieu's office couldn't get through.

When the story first broke, the allegation was that they were trying to plant illegal wiretaps. Now it's just hidden camera footage. Is that a crime? Whether it is or not, the crowing that this somehow vindicated ACORN was entirely uncalled for. That organization remains a racketeer influenced, corrupt organization. There oughta be a law to deal with organizations like that.

Oh yeah. There is.

The Politics of Bioethics

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Sally Satel has an intriguing article titled The Limits of Bioethics in this month's issue of Policy Review.  The article is a noteworthy read given the numerous criminal sanctions which surround medical practice and biomedical research these days.    

Blog Scan

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State Legislation on Sentencing and Corrections:  At Sentencing Law and Policy on Sunday, Doug Berman posted a link to the National Conference of State Legislatures' report on Significant State Sentencing and Corrections Legislation in 2009.  Berman writes that the report contains "a terrific (and seemingly comprehensive) state-by-state review of new sentencing and corrections legislation."  Overall, the report found that in 2009, "state legislatures addressed sentencing and corrections policies that better manage correctional populations and budgets."

Third Circuit Approves Delaware's Execution Protocols:
  Howard Bashman posts a report on the Third Circuit's decision to uphold Delaware's execution protocol.  According to the News Journal's Sean O'Sullivan, the court's decision also "lifted a stay on all executions in the state." In the opinion, Circuit Judge D. Michael Fisher wrote, "[t]he record before us reflects an occasional blitheness on Delaware's part that, while perhaps not unconstitutional, gives us great pause. We remind Delaware not only of its constitutional obligation ... but also of its moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands."

Another California Law School?  Wall Street Journal's Law Blog, says maybe.  Today, Ashby Jones reports that the University of California San Diego is reviving its "decades-old" plan to establish a law school through a partnership with San Diego-based California Western School of Law.  Jones reports that the schools are engaged in a preliminary discussion, and it is unclear what exactly UCSD plans to do.  An editorial in San Diego's Union-Tribune writes that while a law school "would enable UCSD to develop specialized legal research for its sciences-oriented curriculum[,]" it remains unclear whether the law school would be self-sustaining. 

Interviews with Justices:  SCOTUSblog's Monday round-up contained links to interviews with two members of the U.S. Supreme Court.  One, Jess Bravin's Wall Street Journal piece on Justice Stevens, discusses how former-Illinois Senator Charles Percy helped the 90-year-old Justice get his seat on the Court.   The other, from MEDIAite's Panel Nerds, reviews Nina Totenberg's January 28 interview with Justice Ginsburg.  Both pieces offer a rare glimpse into the personal lives of the Justices.  Bravin reports that although Justice Stevens and Charles Percy knew each other in college, when they first met to discuss Justice Stevens' appointment to the U.S. Supreme Court, the former Senator "had not realized that attorney J.P. Stevens was the same John Stevens he had known in college."  Similarly, Panel Nerds' post points to Justice Ginsburg's comment, that Justice Breyer gave her "a solid pinch[,]" so she would not nod off during the State of the Union.
Last Thursday, in an opinion authored by Justice Werdegar, the California Supreme Court decided that its 1971 decision in People v. Burton, that a minor's request to speak with his parent invoked his Fifth Amendment right to silence, was no longer good law in light of the United States Supreme Court decision in Fare v. Michael C

In Burton, a 16-year-old-minor was convicted of murder based on the confession he made in police custody.  He had asked to speak with his father, and police refused.  The police also refused the father's request to speak with his son.  The California Supreme Court reversed the conviction.  It believed the 16-year-old's request satisfied Miranda v. Arizona's requirement that police cease interrogation "if the accused indicates in any manner that he wishes to remain silent or consult an attorney."  The opinion, written by Justice Sullivan, reasoned that the minor's request for a parent was analogous to an adult's request for an attorney, and held that "when... a minor is taken into custody and is subject to interrogation, without the presence of an attorney, his request to see one of his parents,... must, in the evidence demanding a contrary conclusion, be construed to indicate that the minor desires to invoke his Fifth Amendment privilege."  Burton thereby created the presumption that a minor's request to see a parent invoked his right to remain silent.

The Supreme Court's decision in Fare v. Michael C. weakened the strength of Burton's presumption. 

Milligan Reenactment

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On Thursday, the New York Historical Society is hosting a reenactment of Ex parte Milligan, 71 U.S. 2 (1866). Justice Antonin Scalia is presiding. Apparently he is presiding alone, so it's not clear if he is reenacting Chief Justice Chase, opinion author Justice Davis, or a composite of the whole bench.

Lambdin Milligan was an American citizen and a civilian, yet he was convicted of treason by a military tribunal in the waning days of the Civil War. The Supreme Court granted a writ of habeas corpus on the only ground that habeas could be issued postconviction in those days -- that the committing court had no jurisdiction. There is a curious, if morbid, mootness discussion on page 118, involving an assertion that Milligan had already been hanged. In fact, according to the Wikipedia entry, President Johnson had commuted the sentence two days before the execution date.

Sounds like a fun evening for those of you in New York.

Residency Restrictions on Sex Offenders

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The California Supreme Court issued an opinion today in In re E.J. on the residency restrictions of Proposition 83, California's version of "Jessica's Law."

We have determined that petitioners' retroactivity and ex post facto claims, common to all four petitioners, can be addressed on the record currently before us. We conclude they lack merit and must be denied.

Petitioners' remaining claims -- that section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on a number of their fundamental constitutional rights -- present considerably more complex "as applied" challenges to the enforcement of the new residency restrictions in the respective jurisdictions to which each petitioner has been paroled. Petitioners are not all similarly situated with regard to their paroles. They have been paroled to different cities and counties within the state, and the extent of housing in compliance with section 3003.5(b) available to them during their terms of parole -- a matter critical to deciding the merits of their "as applied" constitutional challenges -- is not factually established on the declarations and materials appended to their petition and traverse. With regard to petitioners' remaining constitutional claims, evidentiary hearings will therefore have to be conducted to establish the relevant facts necessary to decide each claim.
Back to the trial court.

We at CJLF have never been enthused about this particular aspect of Jessica's Law. Both its constitutionality and its efficacy are doubtful.

News Scan

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Decision to Mirandize Christmas Day Bomber:  Los Angeles Times writers Richard A. Serrano and David G. Savage report that officials thoroughly discussed whether to Mirandize Umar Farouk Abdulmutallab after his attempt to bomb Northwest Flight 253.  An anonymous government source stated that Abdulmutallab was questioned by two sets of FBI agents before receiving Miranda warnings.  The Director of National Intelligence, Dennis C. Blair, stated before Congress that the decision was "made by the FBI team agent in charge on the scene, consulting with his headquarters and Department of Justice."  He called the decision a mistake. According to the reporters' sources, however, the decision on whether or not to advise Abdulmutallab of his rights involved at least four government agencies, and was discussed in a series of teleconferences.  An administration official, speaking anonymously, stated that their was no deviation from the treatment that Abdulmutallab received than other terror suspects on American soil since Sept. 11th. 

Charles Krauthammer had a different view of the case in this column in the WaPo Friday.

Trial by Ordeal. In the Boston Globe, Peter Leeson makes the case that medieval trials by ordeal actually worked when people believed in them strongly enough.

Baze Stay Lifted in Delaware

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From the Third Circuit today in Jackson v. Danberg:

This appeal, brought by a class of inmates sentenced to death by the State of Delaware, presents two main questions for our review. First, we must decide how to interpret the Supreme Court's highly splintered opinion in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008), which upheld Kentucky's lethal injection protocol against a challenge under the Eighth Amendment of the Constitution. The second question, whose resolution is largely dependent on the outcome of the first, is whether the lethal injection method employed by Delaware violates the Eighth Amendment. We conclude that, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware's protocol presents no such risk. Accordingly, we will affirm the District Court's grant of summary judgment for Delaware and dissolve the District Court's stay.

Congratulations to the folks in the Delaware AG's office. State by state, justice is getting back on track.
The current issue of Psychiatric Services provides further evidence that outpatient commitment programs such as Kendra's Law can be effective in managing the mental health treatment needs of those with severe mental illnesses with histories of violence or repeated involuntary hospitalizations:

OBJECTIVE: Outpatient commitment has been heralded as a necessary intervention that improves psychiatric outcomes and quality of life, and it has been criticized on the grounds that effective treatment must be voluntary and that outpatient commitment has negative unintended consequences. Because few methodologically strong data exist, this study evaluated New York State's outpatient commitment program with the objective of augmenting the existing literature. METHODS: A total of 76 individuals recently mandated to outpatient commitment and 108 individuals (comparison group) recently discharged from psychiatric hospitals in the Bronx and Queens who were attending the same outpatient facilities as the group mandated to outpatient commitment were followed for one year and compared in regard to psychotic symptoms, suicide risk, serious violence perpetration, quality of life, illness-related social functioning, and perceived coercion and stigma. Propensity score matching and generalized estimating equations were used to achieve the strongest causal inference possible without an experimental design. RESULTS: Serious violence perpetration and suicide risk were lower and illness-related social functioning was higher (p<.05 for all) in the outpatient commitment group than in the comparison group. Psychotic symptoms and quality of life did not differ significantly between the two groups. Potential unintended consequences were not evident: the outpatient commitment group reported marginally less (p<.10) stigma and coercion than the comparison group. CONCLUSIONS: Outpatient commitment in New York State affects many lives; therefore, it is reassuring that negative consequences were not observed. Rather, people's lives seem modestly improved by outpatient commitment. However, because outpatient commitment included treatment and other enhancements, these findings should be interpreted in terms of the overall impact of outpatient commitment, not of legal coercion per se. As such, the results do not support the expansion of coercion in psychiatric treatment.
Critics of outpatient commitment contend that these programs are not a panacea.  And they surely are correct.  But the "on the ground" reality of providing care for folks with these difficult issues often comes down to a short range of choices which include some form of involuntary treatment, incarceration, or severe neglect.  Out of these options, outpatient commitment has the right aims and accumulating evidence of modest success. 

Freezing Everything Except What's Needed

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President Obama submitted his budget to Congress today.  In terms of irresponsibility and dishonesty  --  not to mention adding to the national debt  --  it breaks all previous records.  The deficit for the upcoming year is projected to be over one and a-half trillion dollars.  The Wall Street Journal delivers the gruesome details here.


The President has proclaimed that his budget is a blueprint for "fiscal restraint," (I'm not making this up) in that it announces a three-year freeze on some discretionary spending.  But the "restraint" is a fraud even if taken at face value.  Discretionary spending accounts for about 17% of the budget. This means that 83%, consisting mostly of welfare state and nanny state entitlements, will go unrestrained.  (Not that discretionary spending will actually get restrained either, once Congress gets into the act).


The relevance of this to criminal law is plain enough.   As the explosion in entitlement spending continues unchecked, there will be increasing and, unfortunately, increasingly heeded calls to cut back on imprisonment and the death penalty (as Kent noted yesterday).  As ever, those calls will focus only on the dollars supposedly to be saved while ignoring the safety certainly to be lost.  They will turn a blind eye to future victims.  They will ignore not only the human but the fiscal costs of increased recidivism.  They will whistle past the real cause of the deficit in favor of a phony remedy.  And they will debase the punishments a society with moral confidence rightly imposes on its most dangerous actors.

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