July 2010 Archives

The California Supreme Court yesterday clarified a looming question regarding the appropriate next step for when an inmate is denied parole, appeals the denial, and wins.  In the case In re Prather, the court held that the appropriate remedy is a new hearing by the Board of Parole Hearings (the Board) - not, as some appellate courts have held, an order that the Board release the inmate absent new evidence of the inmate's dangerousness emerging after the parole-suitability hearing.

News Scan

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Burglar Sues His Victim For Distress:  A Florida inmate serving a 12-year sentence for burglary and cocaine possession has filed suit against his victim, reports the AP.  Michael Dupree broke into the van of Anthony McKoy and stole a bicycle.  McKoy managed to catch Dupree and retrieve his property.  Dupree is now seeking $500,000 for, among other things, "distress" he suffered during the struggle.

SoCal Man Sentenced to Death For Teen's Brutal Murder: The AP reports that Roman Aldana was sentenced to death today for killing 16-year-old Kayla Wood.  Back in 2006, Aldana and two 15-year-old boys assaulted Wood with bottles, stabbed her more than 130 times, lit her hair on fire, and ultimately left her in a bathtub in a burning duplex.  The two boys have already been sentenced, one receiving 29 years to life and the other receiving a term of 23 years. 

9th Circuit Overturns Rape Conviction:  In an unpublished three page order announced last week a panel of the 9th Circuit overturned the 2004 rape conviction of habitual criminal Steven Frank Jackson, citing racial bias in the jury selection.  Sacramento Bee writer Denny Walsh reports that Jackson got his third strike for the brutal 2002 multiple rape of a 72-year-old woman.  Jackson's guilt was confirmed by his DNA and the victim's testimony.  Jackson, who is black, was convicted by a jury which had one black member after two other blacks were challenged by the Sacramento DA.  Jackson's claim of racial bias was rejected by the state court of appeals and a federal district judge before the 9th Circuit panel accepted it.  A request for reconsideration en banc is likely.  SCOTUS has already agreed to reconsider four 9th Circuit rulings in criminal cases this fall.   

Federal Judge Yanked from Case

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What does it take to have a federal judge yanked off a criminal case? The Seventh Circuit will tell us soon.

The panel is Judges Posner, Rovner, and Sykes. No dissent is indicated. The defendant has petitioned for rehearing and rehearing en banc.
The February issue of the Journal of Law & Economics arrived in hard copy this week. Crime-related articles include terrorism and human rights, effect of antiprofiling policies, and out-of-wedlock births as a root cause. Abstracts are after the jump.

News Scan

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First US Execution of Woman in Five Years:  As Kent noted earlier, a Virginia judge today set a September execution date for Teresa Lewis.  Lewis pleaded guilty to capital murder and was sentenced to death, but later sought to invalidate her plea - an attempt that was rejected by the Fourth Circuit.  If executed, Lewis will be the first woman to be executed in the U.S. in five years, and the first woman in Virginia in nearly 100.  Her defense team plans on appealing the case to the U.S. Supreme Court. 

AZ Appeals Federal Judge's Ruling:  Not surprisingly, Arizona filed an appeal today in the Ninth Circuit, challenging U.S. District Court Judge Susan Bolton's preliminary injunction of the state's controversial immigration law, reports the AP.  AZ Governor Jan Brewer is asking that the appeal be handled quickly, and has indicated her willingness to take the case all the way to the U.S. Supreme Court.

TX Man Gets Death Penalty For Second Time For Beheading Children:  After four hours of deliberation, a Texas jury today sentenced John Allen Rubio to death for beheading his common law wife's three children - a 3-year-old, a 14-month-old, and a 2-month-old - in 2003, as reported by the AP.  Rubio was previously convicted of the murders in 2003 and sentenced to death, but the Court of Criminal Appeals of Texas reversed the convictions based on improperly admitted statements by the mother of the children, who pleaded guilty for her involvement in the crimes and is currently serving a life sentence.  Presiding Judge Noe Gonzales, who claims to have sentenced more people to death than any other judge in south Texas, stated, "I have never seen a crime like this."

Execution Date for a "Black Widow"

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Dena Potter has this story for AP on the Sept. 23 execution date for one of the few women on death row, Teresa Lewis of Virginia. She had her husband and his son killed for the insurance money. So why are women such a small portion of death row, not only smaller than their portion of the general population, but also smaller than their proportion of murderers?

Women usually don't commit torture murders, they aren't serial killers and often don't have a history of other violent crimes compared with men who get sentenced to death, said Richard Dieter, executive director of the Death Penalty Information Center. They also typically kill someone they know.

"I think it's those facts, rather than just gender that make the difference," he said.

You could have knocked me over with a feather when I read that. The Death Penalty Information Center actually gave out correct information on the death penalty. There is a first time for everything, I guess.

The Supreme Court of the State of Washington today decided Brown v. Vail, No. 83474-1, the lethal injection challenge. The court unanimously rejected the challenges and lifted the stay in Brown's case. Stays in the cases of the other two plaintiffs had been entered by other courts and were not directly at issue.

The case is procedurally unusual in that it began as a challenge to the traditional three-drug method, but the state changed to a one-drug method similar to Ohio's while the case was pending appeal.

Briefly, the holdings are:

1. The claims are not barred by the statute of limitations, which begins running when a protocol is amended.

2. The DoC's promulgation of the protocol is not in excess of its authority delegated by the statute. The DoC is charged with the duty to carry out lethal injections, which implicitly delegates authority on the details. Procedurally, the DoC is exempt from the Administrative Procedure Act (APA), but the availability of judicial review is a sufficient procedural safeguard.

3. The court rejects the claim under the drug laws as not justiciable. It is up to FDA or DEA to enforce the drug laws (and there probably is no violation anyway).

4. The challenge to the three-drug protocol is moot, and any challenge to the one-drug protocol does not have enough in common with the challenge in the trial court to consider in this case. "In short, there has been no trial on the constitutionality of the new one-drug protocol, and we cannot hold such a trial on appeal."

This decision does not preclude a new challenge to the one-drug protocol, but it is hard to see a viable challenge there. Ohio has been using it without significant problems.

Thanks to "notablogger" for the tip.

Cal Coburn Brown, BTW, is long overdue for his appointment with eternity. In his case, like so many others, "By not according the required deference, the [Ninth Circuit] Court of Appeals failed to respect the limited role of federal habeas relief in this area prescribed by Congress and by [the Supreme Court's] cases." Uttecht v. Brown, 551 U.S. 1, 10 (2007). The Ninth's opinion on remand is here.

Rachel La Corte has this story for AP.

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Federal Judge Enjoins Controversial Parts of AZ Law:  The Washington Post reports U.S. District Judge Susan Bolten ruled this morning that several of the most contentious parts of Arizona's new immigration law will not take effect until the courts resolve the issues.  Included is the section of the law requiring police to check a person's immigration status while the person is being detained for other reasons.  According to Judge Bolton, this requirement "burdens lawfully-present aliens because their liberty will be restricted while their status is checked." 

Death Penalty Still On the Table For CT Killer:  A Connecticut Superior Court Judge today denied Steven J. Hayes's motions to bar the death penalty from his triple murder trial set to begin in September, as reported by the Middletown Press out of Connecticut.  In 2007, Hayes and co-defendant Joshua Komisarjevsky - both parolees at the time - broke into the home of Dr. William A. Petit, Jr., raped and killed Petit's wife, sexually assaulted one of his daughters, then set the house on fire killing both of his daughters.  (See C&C previous post here.)  Seeking to avoid a possible death sentence, Hayes's defense team claimed the state legislature's 2009 attempt to abolish the death penalty (see our previous posts here, here, and here) demonstrated that the sentence no longer comported with contemporary standards of decency.  The judge rejected the argument, pointing out this same argument has already been rejected by SCOTUS and the Supreme Court of Connecticut.

Bill Narrowing Gap in Cocaine Sentencing Sent for Presidential Approval:  The AP reports the House today approved a bill amending a 1986 law outlining mandatory minimum sentences for possession of cocaine.  Under the 1986 law, a person convicted of possession of crack cocaine receives the same mandatory minimum as a person convicted of possession of 100 times the same amount of powder cocaine.  If signed into law, the bill would reduce this ratio to about 18-1.  Notably, the bill also requires stricter penalties for drug violations involving violence.

Orders List

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The U.S. Supreme Court issued this orders list yesterday, mostly routine matters. Rehearing was denied in several cases, including Berghuis v. Thompkins, No. 08-1470, the 5-4 decision that trimmed back the Miranda rule, noted here.
Today, I participated in a panel discussion on Reexamining the Death Penalty at the National Conference of State Legislatures Legislative Summit in Louisville, Kentucky. The panel was 2-1, as is occurring with regularity. I think I held up my end nonetheless, but you will be able to judge for yourself. The event was video recorded, and they plan to put it on the web site.

On the previous event in London, I'm told the video is finally in "the post."  Hopefully, we will be able to make it accessible to the general public this week.

News Scan

Federal Fingerprint Initiative:  Ivan Moreno of the AP reports on the controversial federal program that seeks to identify illegal immigrants using fingerprints taken during arrests - a program that might end up having a much greater impact on illegal immigration than the new Arizona law.  Part of the Secure Communities program, fingerprints of anyone arrested in a participating jurisdiction will be run against FBI and DHS immigration records to check the arrestee's immigration and prior arrest status.  Although most jurisdictions are not currently participating, 35,000 people have already been identified as illegal immigrants previously arrested for serious felonies and 205,000 as illegal immigrants arrested for less serious crimes, since 2007.  ICE plans on implementing the program in every jail in the country by 2013.  Opponents claim the law deters victims from reporting crimes and creates an incentive for racial profiling.

Polygamist's Rape Conviction Reversed:  The Utah Supreme Court today
reversed the rape convictions of Warren Jeffs, head of the Fundamentalist Church of Jesus Christ of Latter Day Saints, as reported by the AP.  (That's a splinter group, not the real Mormon Church.)  Jeffs was originally convicted in 2007 for performing a marriage ceremony between a 14-year-old girl and her 19-year-old cousin, but the court reversed and ordered a new trial based on improper jury instructions.  Jeffs currently faces criminal charges in Texas as well, including sexual assault of a child and aggravated assault, based on a 2008 church ranch raid.  An extradition hearing was canceled after today's ruling, and Texas authorities will have to initiate new proceedings to extradite Jeffs to face these charges.  

Zoloft Case Gets Re-Do:  Meg Kinnard of the AP reports that Christopher Pittman of South Carolina will be retried for killing his grandparents.  Pittman was 12-years-old when he shot his grandparents to death and set fire to their home.  Pittman's case gained notoriety when he claimed his use of the antidepresent drug Zoloft caused him to commit the crimes.  (See C&C previous post here.)  In an order today, South Carolina Circuit Judge Roger Young ordered a new trial based on Pittman's defense team's failure to adequately pursue a plea bargain or explain to Pittman the possible benefits of such a deal.

Welcome Christine Dowling

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We welcome to the blog, and to CJLF, Christine Dowling, who is the recipient of our 2010-2011 Fellowship in Criminal Law.  The competition for the fellowship was particularly strong this year, and we thank all those who applied. Christine will be blogging here at C&C as well as working on CJLF's amicus briefs in precedent-setting criminal cases.

Travesty in Cambodia, Again

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"Comrade Duch" has been sentenced to a mere 19 years in prison for his role in the horrors of the Cambodian killing fields by a U.N.-sponsored tribunal.  Sopheng Cheang reports for AP:

Survivors expressed anger and disbelief that a key player in the genocide that wiped out a quarter of Cambodia's population could one day walk free - despite being convicted of war crimes and crimes against humanity.

"I can't accept this," sobbed Saodi Ouch, 46, shaking so hard she could hardly talk. "My family died ... my older sister, my older brother. I'm the only one left."

It was bad enough that the impotent tribunal was unable from the start to impose the only just punishment for crimes of this magnitude -- death.  Now it turns out to be even weaker than it needed to be.

There will never again be another Nuremberg, where the democratic countries of the world try war crimes and impose a just punishment. When the United States gets its hands on such criminals, we will have to try them alone.  When we do not, they will escape justice.

Race-of-Victim Bias

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My 2003 article on the race-of-victim bias claim is here.  A common theme throughout these studies is that an apparent racial disparity may appear in aggregrate, unadjusted data, but it disappears to a minor or even statistically insignificant factor when valid variables are controlled.

And, yes, county of prosecution is a valid variable. In Maryland, for example, the people of downtown Baltimore City elected prosecutors who sought the death penalty more sparingly than the prosecutor elected by the people of the suburban ring Baltimore County.  That "geographic disparity" is local democracy working as designed. That was their choice to make, although the result was fewer death penalties in black-victim cases.

The other interesting thing about the argument is that the opponents wax indignant that we supposedly value the lives of black victims less. In making this argument, they implicitly concede that executing the killer constitutes valuing the life of the victim. Game. Set. Match.

News Scan

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Ohio's Fragmented Probation System:   A report to be released today finds the Ohio probation system "fragmented into overlapping and disjointed agencies without any uniform standards," as reported by the Associated Press. Unlike many other states, Ohio's probation system is created and operated by individual counties.  As a result, there is currently no centralized database from which to gather statewide information.  The study also finds that the state's prison system cycles too many short-term offenders, due in part to Ohio's lower minimum sentence for low level felonies as compared to other states. 

LA Man Sentenced to Death for Second Time:  The AP reports that James Heard was sentenced to death for a second time in LA County Superior Court last Friday.  Heard sexually assaulted his girlfriend's 11-year-old daughter, then poured a bottle of rubbing alcohol down her throat and strangled her after she bit off a part of his tongue during the attack.  Heard was originally sentenced in 2003, but the California Supreme Court overturned the sentence after finding that the trial judge had improperly excused a juror.

Language, Sleight-of-Hand and Abolitionism


The two entries prior to this one, both by Kent, discuss (1) the role of slippery language in discussions about criminal law, and (2) deceptiveness in a recent North Carolina study purporting to find racial discrimination in that state's application of the death penalty.  The two analyses are related in a way that might not seem obvious, but is a telling illustration of the truth of both.

North Carolina adopted a so-called "Racial Justice Act" to permit the use of statistics to illustrate that the state's death penalty is applied more harshly, and frequently, to blacks.  The recent Radelet study purports to show just that, but does so only by silently redefining what "racial discrimination" has previously been understood to mean.

Up to now, normal people thought that discrimination against black defendants meant singling them out for harsher treatment because of their race. But the Radelet study shows nothing of the kind, and does not even claim to so far as I have been able to find. (The failure to find it mirrors a similar failure in a Maryland study a few years ago).  Instead, it finds disparity based on the race of the victim.

Note to Professor Radelet:  The victim was not selected for capital prosecution.  The defendant was, and the only relevant question is whether that selection was racially biased.  It wasn't.

In other words, Radelet's study finds a disproportionality that is irrelevant to the purpose for which the research was ostensibly undertaken.  This is the fact the study's rollout is designed to obscure by its sleight-of-hand language.  If Prof. Radelet wanted to make the point that blacks disproportionately commit crimes, including murder, he's a few decades late.  But that is not the fault of the criminal justice system, and still less is it evidence of biased prosecutors or juries.

What race-of-the-victim studies at least arguably show is that the system does not adequately value the lives of black murder victims, because their killers are less frequently subject to the death penalty.  But that is hardly a reason to end capital punishment.  To the exact contrary, it's a reason to apply it more resolutely, broadly  --  and frequently.




At SL&P, Doug Berman has a post titled, "New research suggests race of victim impacts NC death penalty administration."  The post links to and quotes this AP article on one more race-and-death-penalty study by the notorious Pierce and Radelet.

These are the same guys who claimed to find racial "disparity" in California death penalty cases even after controlling for the aggravated nature of the homicides. If you read the actual study, though, you find that their "control" was simply to count the number of "aggravating circumstances" with no attempt to account for the fact that some circumstances are far more weighty than others. If the perp. is a mass murderer, that is one aggravating circumstance. If the murder was committed in the course of a commercial burglary, that is also one circumstance. These two cases are equal in P&R's methodology, so if they are prosecuted differently and the races are different, that is evidence of discrimination.

That measure of aggravation is so crude, it is kind of like walking into the forensic lab and seeing a technician measuring the caliber of a bullet with a balsa wood yardstick from the paint store. Um, shouldn't you be using a micrometer?

So how does the NC study control for the highly relevant, powerful factor of the murderer's prior crimes? It doesn't. Not at all. Zip.

The fact that renders the study's conclusion worthless is revealed near the end of the story. The incendiary charge that, "A convicted killer is three times more likely to get a death sentence in North Carolina if the victim is white rather than black" is the first sentence.

Language Shaping Thought

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One more item from today's WSJ is this article by Lera Boroditsky on how language can shape thought. The language a person speaks can shape his view of the world. Implications for witnesses and jurors are discussed about halfway down. Also discussed are Juliet's rose and Justin Timberlake's "wardrobe malfunction."
Peggy Noonan has this column in the WSJ on the Shirley Sherrod kerfuffle. The whole article is well worth reading, but the portion that is "on topic" for this blog relates to the murder of Ms. Sherrod's father in 1965.

And this is what she said. Forty-five years before, to the day, her father's funeral was held. He had been murdered by a white man in Baker County, Ga. These were still the bad old days; lynchings had taken place in her lifetime. The man who murdered her father "was never punished," even though there were three eyewitnesses. The grand jury refused to indict.
*                                *                              *
She was 17 when her father was killed, in 1965. After that, one night, a cross was burned on their lawn. Her mother had a gun, and black men from throughout the county came and surrounded the white men who surrounded the house. Shirley was terrified and hid in a back room, praying. That night something changed. "I made the decision that I would stay and work."

I've mentioned it here before, but it bears repeating. The most widespread abuses of prosecutorial authority in the "bad old days" were not wrongful prosecutions of the innocent on the basis of race but refusal to prosecute the guilty on the basis of race. Good thing that doesn't happen in America today, right?

The second paragraph illustrates the importance of the right of self-defense and the right to bear arms for the purpose of self-defense. The government cannot protect us all the time, even when it wants to. Much of the legal fight lately has been on the bearing-arms component, but we should not overlook the underlying right of self-defense. Too many people are still being sued or even prosecuted for using supposedly "excessive" force against the perpetrators of crime.

Finding the Bottom

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How crooked does a Congressman has to be before the "self-policing" House brings charges? There actually is a bottom to the pit, believe it or not. The WSJ has this editorial on "The Rangel Standard." The trial of Charles Rangel will be the first since the ouster of the colorful but crooked James "Beam me up, Mr. Speaker" Traficant eight years ago. 

Blagojevich Stops Talking

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In this video, WSJ columnist Peter Jeffrey gives us a whimsical view of what former Gov. Blago might say in explanation of his decision not to testify at his trial.

News Scan

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Homegrown Terrorists:  The FBI has documented a dramatic increase in domestic Islamist extremist activity, more than at any time since 9/11 according to a former White House counter terrorism adviser.  An ABC news story by Jason Ryan, Pierre Thomas and Xorje Olivares reports that law enforcement sources are deeply concerned about the unprecedented spike in homegrown terrorists that have been identified since 2009.  The story discusses several including (1) Zachary Chesser, who was playing high school football in Virginia two years ago and is now facing charges for assisting terrorists who killed 73 world cup fans in Uganda, and (2) Chicagoan David Headley, who was recently convicted of helping plan a terrorist attack in Mumbai which killed 170.

Florida Releases Child Molester Sentenced to 315
: WFTV out of Florida reports that a Brevard County man sentenced to 315 years will soon walk free after serving only thirteen years.  In the early 1990's, Thomas Spioch was arrested for molesting young boys, some of whom Spioch met while he was working at a Coast Guard auxiliary unit.  While behind bars, Spioch and his mother conspired to kill several people, including witnesses, a prosecutor, and a detective.  (See WFTV story here.)  Spioch was originally sentenced in 1997 to 315 years, but as a result of successful appeals was set to go free in 2007.  Florida managed to keep Spioch behind bars for another three years in a sex offender facility, but doctors now claim he does not meet the criteria for further commitment.  Prosecutors and Spioch's victims remain fearful that he will strike again.     

......is depressingly low.  Gallup measured confidence in 16 American institutions, Here are the results:


Confidence in Institutions -- % Great Deal or Quite a Lot of Confidence, June 2009 and July 2010, and Difference Between the Two

Politics is poisonous to the fair administration of justice.  It is for that reason that I have been critical of the dismissal of the Black Panther voter intimidation case over the protests of two career attorneys, and with plausible reason to believe that racism might  --  might  --  have contributed to the Department's decision.

Some time ago, there was another episode advertised as showing politics influencing justice:  the Bush Administration's firing of several United States Attorneys.  Although USA's are political appointees and can be fired at will, the charge  --  played out day after day on the front pages on the NYT and the WaPo  --  was that it was a ploy to squelch investigations that might embarrass well-connected Republicans.  If the firings were undertaken to wipe away legitimate criminal inquiries, that would very likely constitute a case of obstruction of justice.

Ever vigilant to set right the sins of his predecessors, if not his own, Eric Holder appointed a tough-as-nails career Assistant US Attorney to investigate the matter.  Today, the AP reports her findings. 

Still More on the Cal DP Poll

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In the last post, I noted the apparent major shift in support for the death penalty among African-Americans and speculated it might be a generational shift. I asked Mark DiCamillo of the Field Poll by email about this, and he graciously responded:

Regarding the African-American results, the sample included interviews with 119 African-Americans, so the results of a sample of this size have a margin of error of +/- 9.8 percentage points at the 95% confidence level.  So, while the 63 -28 distribution that we reported is subject to considerable random variation and could include distributions of closer to 55-35.  Also, because of the small sample size we are unable to examine the views of subgroups of the African-American population so comparisons of younger and older African-Americans can not reliably be made from this survey.
Even at the low end of the confidence interval, this would still be a major shift, from about even to a 20-point lead.

The generational shift hypothesis will have to wait for more data.
Jon Cawley reports for the Daily Press (Norfolk, Virginia):

All along, York-Poquoson Commonwealth's Attorney Eileen Addison said she was being made a scapegoat by the Virginia State Bar, and on Monday a three-judge Circuit Court panel declared there was no evidence to support misconduct charges leveled against her.

Addison and Newport News attorney Cathy Krinick were accused of coaching William Jones in the capital murder trial of Daryl Atkins and withholding information from Atkins' defense attorney. Atkins and Jones were co-defendants in the 1996 robbery and murder of Langley Air Force airman Erick Nesbitt.

News Scan

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Burns Executed:  After a brief delay as the U.S. Supreme Court considered and denied review of his request for a stay, Mississippi executed Joseph Burns, as reported in this AP story. As reported earlier, Burns murdered Floyd Melvin McBride while robbing the Town House Motel he managed in Tupelo.

DNA May Crack Cold Case:  A DNA sample taken from cigarette butt found in a bar 36 years ago has implicated a 73-year-old convicted murderer, serving a life sentence in Colorado, in the 1974 murder of a Napa woman.  Anita Andrews was found stabbed to death and robbed in a bar she co-owned with her sister.  A story by Alisha Wyman of the Napa Valley Register reports that witnesses saw a stranger in the bar, who was alone with the victim when the bar closed.  The DNA match placed Allen Mclanson in the bar on the night of the murder.  Last January, a witness who was in the bar on the night of the murder identified Mclanson as the stranger from a photo lineup. Mclanson, who was convicted of another killing two months after Andrews' death, denies being in Napa or meeting the victim.  Mclanson has been charged with the murder and the District Attorney is seeking extradition.   

More on the Cal DP Poll

The full text of the Field Poll is now available here. (Prior post is here.) As expected, the second question was, "Which do you prefer as a penalty for someone convicted of first degree murder - the death penalty or life in prison without the possibility of parole?"  If you wanted to give the answer that conforms to current California law (indeed, the law of every U.S. jurisdiction with the death penalty) -- it depends -- you had to break out of the choices offered and volunteer your own. Real support for an answer is far greater than the number who volunteer it in this way.

A stunning result in this poll is the apparent closing of the racial gap in attitudes on the death penalty. On the basic question, polls have generally shown African-Americans about equally divided, but this one comes in with a whopping 63-28 support. This could be a generational shift. Opposition may be stronger among African-Americans old enough to remember the bad old days.

As mentioned previously, there's intense interest among mental health researches about the relationship between marijuana use and mental illness.  Several past studies have suggested a link between marijuana use and risk of psychosis, but untangling the relationship has been tricky.  On the one hand, lots of people use marijuana and don't develop major mental illnesses like schizophrenia.  So, perhaps the relationship is just happenstance.  Yet other research suggests that for some, marijuana really can worsen existing mental illness and perhaps trigger episodes of psychosis for those with family histories of schizophrenia and psychotic illnesses.  After all, marijuana is a powerful psychoactive drug. 

Maia Szalavitz has a well-balanced article in July 21st issue of Time magazine which includes this assessment:

That marijuana can have such incompatible effects in schizophrenia patients -- enhancing mood while exacerbating hallucinations and delusions -- is not surprising, when its chemical makeup is considered. One chemical called delta-9 tetrahydocannabinol (THC) is known to cause hallucinations and in high doses can even make healthy people feel paranoid or suffer brief attacks of psychosis. But another component of marijuana called cannabidiol (CBD) has anti-psychotic effects.

Indeed, there's much we don't know about marijuana and the various chemicals it contains likely have a variety of effects depending on dose and the individual user.  That the human body contains its own endocannabinoid system suggests that legitimate medicinal purposes are likely, but that in no way means that it's harmless. 

New Data on Supermax

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The August issue of of the Journal of Criminal Justice has an interesting article on the use of supermax in Florida.  From the article: Supermax Housing: Placement, Duration, and Time to Reentry:

[T]he study found that supermax inmates typically experienced multiple placements in supermax housing. For example, 55 percent of supermax inmates experienced three or more episodes of supermax confinement. The study also found that, some inmates spent but a few months, or a small percentage, of their total prison term in such housing, while others spent much more time in it. To illustrate, for 44 percent of all supermax inmates, supermax confinement constituted less than 15 percent of their total term of incarceration; even so, for 14 percent of supermax inmates, supermax confinement constituted over half of their total term of incarceration. The analyses also revealed that 28 percent of inmates were released from supermax housing within three months of their return to society and 44 percent were released from it within six months of their return.

Logistic regression showed that violent behavior was the strongest predictor of supermax confinement:

supermax figure.jpg

Rage as a Mental Disorder

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Remy Melinda at Live Science has an article on the diagnosis of Intermittent Explosive Disorder (IED) which features this quote from Professor Emil F. Coccaro of the University of Chicago:

IED is a behavioral disorder that is a medical condition in the same way that depression or panic disorder is -- it is not simply 'bad behavior,'" said Emil F. Coccaro, a professor of psychiatry and behavioral neuroscience at the University of Chicago. "Aggressive behavior is under genetic influence and IED runs in families.

All behavior is under the influence of genes, that's what it means to say that we are biological creatures.  But just because some defined behavior is under genetic influence does not mean it's pathological in any medical sense.  After all, some folks are impatient at red lights and drive too fast, but they do not need medical intervention any more so than those who experience displeasure at waiting in line at the bank.  No, these folks need to learn what every parent teaches a child: patience is a virtue."

Now some may argue that the very idea of IED is that the behavior is so out of the ordinary that it must be pathological: that we're not talking about tempestuous drivers but those who exhibit behavior that is so disproportionate to the circumstances that it's, well, pathological.  But, of course, this doesn't help because the marker between conduct that is unwise and pathological cannot be merely that it's pathological.

The real lure of IED is the idea that it involves impaired volition - an irresistible impulse.  And linking it to genetic influences simply furthers the notion that folks with immodest tempers simply can't help themselves because of their biology.  It's the new biological predestination which strongly implies that we can't blame people for their conduct because their genes (or brains) made them do it.  But our brains (and genes) are us.   
A controversy is brewing among members of the American Psychological Association (APA).  As reported in the Spring issue of Clinical Science, apparently the "Practice Assessment Fee" collected by the APA is voluntary - except that nobody knew:

Many psychologists were stunned recently when the American Psychological Association revealed that the "practice assessment" it has charged its licensed members for the past 10 years is not in fact required for membership in the organization.  Instead, the association said, the payment is voluntary "financial assistance" to the APA's political affiliate.

Count this psychologist (and APA member) as stunned as well. 

A new field poll shows continued strong support for the death penalty in California, 70-24 on the basic question. Bob Egelko has this story in the SF Chron, and Michael Gardner has this story in the San Diego Union-Tribune. 

Nationwide over the last several years, when the question is badly worded to ask whether voters favor death or LWOP for first-degree murder, implying they must choose a single punishment for all murders, they split down the middle.  Today's poll as reported in the news stories appears to be consistent with this trend as well.  I will post the exact wording of the question when it is available on Field's site.

The other side loves to crow that they actually pull even on this question. I find it revealing that they can't get a clear majority even when the wording is skewed to the max in their favor.

New Cal CJ

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The Governator will nominate Court of Appeal Justice Tani Cantil-Sakauye to succeed Ron George as California Chief Justice. Maura Dolan has this story in the LA Times.  The speed of this appointment after CJ George's announced retirement suggests that the Gov. knew well in advance and had his nomination ready.

Justice Cantil-Sakauye has served at all levels of the California justice system, beginning at the now-defunct Municipal Court.  She was a deputy district attorney, then worked for Governor Deukmejian, who appointed her to the Muni. Court. Gov. Wilson elevated her to the Superior Court, and Governor Schwarzenegger elevated her to the Court of Appeal.

AP has this story, as carried on the SF Chron's site. The headline emphasizes Justice Cantil-Sakauye's ethnic group as if that were her most important characteristic. Sheesh. Give the LA Times credit for not doing that. 

Kagan Committee Vote

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No surprise. Elena Kagan's nomination to the Supreme Court was voted out of committee on a nearly party-line vote, with Lindsey Graham casting the lone Republican vote in favor. Julie Hirschfield Davis has this story for AP.

October Supreme Court Arguments

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SCOTUSblog has the U.S. Supreme Court calendar for the October session, although it is not on the Court's own site as of this writing. The criminal and related cases are as follows:

Monday, October 4: Abbott v. US & Gould v. US -- federal gun enhancements.

Tuesday, October 5: Michigan v. Bryant -- Confrontation Clause, Crawford, and questioning of wounded victim at the scene.

Los Angeles Co. v. Humphries -- civil liability of county for erroneous placement on child abuser list

Tuesday, October 12 (the big day for CJLF):

Harrington v. Richter:  This is a noncapital habeas murder case involving an ineffective assistance of counsel claim. The Court added the question of whether the "deference" standard of AEDPA, 28 USC §2554(d), applies when the state court decision is a summary disposition. CJLF's brief is here.

Premo v. Moore:  This is also a noncapital habeas murder case involving an ineffective assistance claim. The claim is that the attorney advised the defendant to take a plea rather than move to suppress his confession. The motion was of dubious merit, the prosecution had sufficient other evidence to convict Moore without it, and rejection of the deal would have exposed Moore to a possible conviction of a higher degree of murder and a more severe sentence.  The questions presented involve the standards for judging ineffective assistance claims in the guilty-plea context. CJLF's brief is here.

Connick v. Thompson: No singing; it's Harry, Sr. The case involves civil liability of DA offices for Brady nondisclosure violations.

Wednesday, October 13: Skinner v. Switzer: Postconviction DNA testing.

Privacy cases are also worth keeping an eye on, as the precedents set may work their way into suppression motions in criminal cases.  On Tuesday, October 5, the Court will hear NASA v. Nelson. The case involves property rights in the contents of Aladdin's lamps found during space missions privacy rights of government contractor employees during background investigations. Eugene Volokh has this post on the case and its implications.

Supplemental Order in Ghailani

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We previously noted here the District Court's denial of the motion of alleged embassy bomber Ahmed Khalfan Ghailani on speedy trial grounds. The opinion had a classified supplement which was not released to the public at the time. A public version of that supplement with classified information blacked out was released this morning, and I have uploaded it here.
Former AG Michael Mukasey has this op-ed in the WaPo responding to the Sullivan-Freeh proposal to form a US District Court in Guantanamo Bay for the trial of terrorists. The trial judge of the 1995 embassy bomber case still believes that military commissions are the way to go.

Among other problems, Mr. Mukasey cites the Sixth Amendment requirement of "an impartial jury of the state and district wherein the crime shall have been committed...," which he interprets as requiring juries from the districts where the planes crashed.  I'm not sure that is a big problem, given that much of the crime -- and all of the defendants' acts in the crime -- occurred overseas. The law has long provided for foreign-committed crimes to be tried in stateside districts with domestic juries, and multijurisdictional crimes can be tried in any of the several venues. The venue for a foreign-committed crime is the district where the defendant is first brought after his capture, which would indeed be Gitmo if Gitmo were a district. But it's not.

A potentially thornier problem is the next phrase, "... which district shall have been previously ascertained by law." That seems to me to be a flat prohibition on creating a new district or expanding an existing one ex post facto to try a case in an Article III court with a jury from a district that didn't exist before.

So if we can't draw the jury from Gitmo itself, and if we can't fly the jurors down from New York, for the reasons Mr. Mukasey discusses, what is left? How about a technological fix?  Have the jurors in New York with a big television screen watching the trial being conducted in Gitmo. Or maybe we could have multiple television screens. Have the jurors in a courtroom and put a screen where each of the players would be sitting -- one for the judge, one for the witness, one at each counsel table -- and have a dedicated camera for each screen.

News Scan

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Sex Offender Laws Modified:  AP writer Greg Bluestein reports that the Georgia Legislature has changed the state's tough sex offender law, removing the residency requirement, in response to a federal judge's threat to throw out the entire law.  Originally the law prohibited all sex offenders from living within 1,000 feet of schools, parks and other gathering places for children.  The revision waives this requirement for roughly 13,000 offenders who committed sex crimes before June 4, 2003.  It also allows some offenders to get off the state registry.  Iowa has also scaled back its sex offender law, removing its 2,000 foot residency restriction for all but the worst offenders. A spokesman for the National Center for Missing and Exploited Children thinks these changes could backfire,  "Lessening those kinds of restrictions is dangerous --it could lead to more crime, more offenders," he said.

Mississippi Execution Set for Wednesday:  Joseph Daniel "JoJo" Burns is scheduled for execution by lethal injection this week for the robbery and brutal 1994 murder of hotel manager Mike McBride.  Elizabeth Crisp of the Clarion Ledger reports that a clemency request has been made to Governor Haley Barbour and that Burns' defense attorney is seeking a stay.  In November of 1994, Burns and an accomplice who knew McBride, decided to steal the receipts from the hotel in Tupelo which he managed.  Burns stabbed McBride to death with a knife, a fork and a Phillips head screwdriver, before taking the cash and leaving.  The pair spent the money at casinos in the resort town Tunica, about 120 miles away.  In his six years in office, Governor Barbour has never granted a clemency request.  Burns would be the third murderer executed in Mississippi this year.     

Of Post and Panthers

WaPo ombudsman Andrew Alexander has this story on the curious incident of the WaPo's nonbarking on the controversy over DoJ's dropping of most charges in the New Black Panther Party voter intimidation case. (Prior posts here, here, and here.) Todd Zywicki at VC opines that the WaPo's "explanation won't wash."

Neuroscience as a Passing Fad

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Psychiatrist Jeffery Schwartz from UCLA has this interesting analysis:

[T]his vast output of neuroscience research over the last many years is largely a waste of money. Why? Because it doesn't really have any real world human application. Neuroscience is increasingly looking like a passing fad - at least in its current version. Until it changes to a form in which conscious attention has physiologic effects or has a dynamic causal role in how the brain functions, all this research is basically not applicable to anything that's particularly useful, and so the whole thing has been a gargantuan waste of money.

Schwartz is right insofar as so much of current neuroscience research operates under the assumption that the brain operates independently of the person; that the "user" is just along for the ride.  Or as was wisely said many years ago:

It is well known that there are many depraved persons who, by continued indulgence in vice and crime, have so debased and debauched their moral sense and blunted their susceptibilities that the 'still small voice' of conscience no longer responds to the dictates of human or divine law, and fails to utter warning against the impulse of greed or passion.

Hat tip: Brains on Purpose

The Stolen Valor Act

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Is there a constitutional right to lie about being a war hero?  Eugene Volokh has this post.  The decision of the USDC-Colorado is here.  Eugene's amicus brief is here. The ACLU and the Rutherford Institute filed amicus briefs in support of the phony.  On to the Tenth Circuit, assuming the current leadership of DoJ will appeal.

District Court of Gitmo

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Eugene Sullivan and Louis Freeh propose creation of a Federal District Court for Guantanamo Bay in this WaPo op-ed.  Sullivan is a former CJ of the Court of Appeals for the Armed Forces; Freeh is a former district judge and FBI Director. Their proposal would provide an Article III court and jury for trial of the terrorists without the security problems of the Administration's initial proposal of holding the trials in New York.

About that jury....  District courts generally draw their juries from adult citizens who are residents of the district.  In the case of Guantanamo, that would be military personnel, civilian employees of the military, and their families.  Given how small that population is, the chances of being tapped for jury duty would be far greater than anywhere else in the country.  And, of course, you will probably get a jury that leans more to the prosecution viewpoint than in any other district.

The idea is not as loopy as it seemed at first blush.  We should insist, though, that the legislation creating the district also plug the single-juror veto loophole that the Supreme Court read into the federal death penalty law in Jones v. United States, 527 U.S. 373, 380-381 (1999) and codify the interpretation that the Fifth Circuit gave in the same case, 132 F.3d 232, 242-243.  No more terrorists should escape the death penalty the way Zacharias Moussaoui did, with the opinion of one juror overriding the opinions of the other eleven.  (See posts here and here.)  We would never allow a vote of 11-1 for conviction to be an acquittal. Why do Congress and some state legislatures allow the same thing at the penalty phase?
As noted in today's News Scan, Sheik Omar Abdel-Rahman continued his involvement in terrorism even from within his prison cell, despite all the precautions intended to prevent that. So long as the perpetrator lives, there is always that possibility.

An executed sentence of death is the only 100% guarantee that the perpetrator will not repeat.

News Scan

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Terrorist Facilitator Gets 10 Years: Lynne Stewart, who used the attorney-client privilege to facilitate communications between imprisoned terrorist Omar Abdel-Rahman and his organization, was sentenced to 10 years in prison today. The Second Circuit sent the case back to the District Court for reconsideration of the original 2-year, 4-month sentence. Tom Hays and Larry Neumeister have this story for AP.  The judge made the increase "after concluding she lied to a jury and lacked remorse."

Justice Flub Freed Polanski:  An Associated Press story reports that the Justice Department's denial of a request by Swiss authorities for transcripts showing that child rapist Roman Polanski had more than six months to serve on his sentence resulted in their refusal to extradite him.  A letter from Swiss officials dated Monday provided a time line regarding the request and when it was turned down.  The Los Angeles District Attorney's Office was never notified of the request or the Justice Department's decision to turn it down.  Because of that decision the letter states "Under these circumstances it cannot be excluded with certainty that Roman Polanski, who was imprisoned in Chino State Prison for 42 days, has not already served the sentence imposed on him."  A Justice Department spokesperson had no comment on the matter. 

First Bloke

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Off-topic but interesting:  Debra Saunders has this column on Australia's new Prime Minister Julia Gillard and how her personal life is not much of an issue. 
Following up on my post on the retirement of Cal. CJ Ronald George, here are some ideas for the next CJ (as well as the Associate Justices and the Judicial Council) to consider regarding fixing California's death penalty.

First, they can simply stop allowing the defense bar to drag out the record certification process and the briefing of capital appeals. Enforce the deadlines and stop giving so many extensions.  Effective representation does not require briefing every conceivable issue, Jones v. Barnes, 463 U. S. 745 (1983), and, no, death is not different in this respect.

Second, reduce the time limit for filing the habeas petition to one year from appointment instead of three. Congress thinks one year is enough. See 28 U.S.C. §2255(f). Virginia gives an even shorter time. Three years is preposterous.

Third, automatically refer every capital habeas case to the original trial judge with directions to expeditiously appoint counsel, complete discovery, conduct any necessary evidentiary hearing, and write a report with findings and recommendations, like the federal magistrate judges do.  It would be a lot easier to get the cases through federal habeas if we had written findings and opinions instead of Cal. Supreme's present "postcard denials."

Fourth, amend the rules on counsel qualifications to expand the pool of qualified attorneys. California's standards are among the most restrictive in the nation, and we are getting little in return for this unnecessary restrictiveness.

Fifth, require every attorney taking appointments in noncapital felony appeals who has the requisite experience to accept capital appointments as well. The appellate projects are so flush with attorneys wanting to do noncapital appeals that they are turning down applications from qualified attorneys in order to keep the ones on their present lists fully employed. Require taking capital cases as well as the price of admission to the club.

All of these measures can be taken by the judiciary alone. We at CJLF urge the Governor to appoint a new CJ with the courage and determination to make this system work.

Cal. CJ Retiring

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California Chief Justice Ronald George has announced his retirement, report Bob Egelko in the SF Chron, Maura Dolan in the LA Times, and Paul Elias for AP.

Under Chief Justice George and his predecessor, Chief Justice Malcolm Lucas, the California Supreme Court has been rebuilt from the wreckage of the national disgrace that the court had become under the infamous Rose Bird.

Although justices often time their retirements to have their successors appointed by reasonably like-minded executives, they rarely say so publicly.  George was candid about it, though. He wants his successor appointed by the Governator. If he waited until the next gubernatorial term, there is about a 50-50 chance that his successor would be appointed by none other than the same person who appointed Bird -- Jerry Brown.

One area where George has been unsuccessful is in speeding up the appeals of capital cases. Dolan quotes Gerald Uelmen saying George "has been powerless to do anything about it."  I wouldn't say that. There are many things the judiciary could do, and the CJ has considerable clout in the judiciary. I have put some suggestions in a separate post.

In the popular image of the civil rights struggle, wrongful prosecutions of innocent black defendants loom large. The Scottsboro Boys and the fictional To Kill a Mockingbird have prominent places in the public mind. As bad as prosecutorial malfeasance sometimes was in that era, though, prosecutorial nonfeasance was far worse. The ability of a domestic terrorist organization to commit crimes against a racial minority with impunity was the injustice with a much more deleterious effect.

Against wrongful prosecutions, the judiciary can be a safeguard. Cases such as Brown v. Mississippi and Powell v. Alabama stand out as points of light in a dark era. Against wrongful failure to prosecute, though, there is really nothing the judiciary can do. The people must replace the executive.

Fast forward to 2010. This WaPo article by Krissah Thompson describes the political fallout from the dubious dismissal of most charges in the case of voter intimidation by the New Black Panther Party. See also Bill Otis's posts here and here.

The article quotes Abigail Thernstrom calling the case "small potatoes." "If you want to criticize [Attorney General] Eric Holder, there are lots of grounds on which to criticize him," she said. "Why waste your breath on this one?"

Although I have great respect for Ms. Thernstrom, I do not agree with her on this one. Sometimes an incident that is relatively small in itself serves to crystallize a problem in the public mind with a clear, simple example of what is wrong.

Another Ohio Execution

Quintuple murderer William Garner was executed Tuesday in Ohio, reports Eileen Kelley for the Cincinnati Enquirer. In 1992, Garner burned five children to death by setting fires to cover up a burglary.

Garner denies he intended to kill anyone.  Even assuming that is the truth, though, arson is one crime where the felony-murder rule is fully justified, especially when the building burned is a residence. The possibility of killing someone by setting a fire in these circumstances is so high that it really does not matter whether he specifically intended the death of the victims or simply didn't give a damn.  He is fully culpable for the resulting deaths either way.

Ohio used its unique one-drug protocol, and this execution apparently demonstrated the problem that the single massive dose of barbiturate can take a long time. The execution began at 10:21 a.m., and the time of death is officially 10:38, 17 minutes later. Even so, this problem is far less than the problems that have occurred with the three-drug method. Ohio has now racked up enough experience that the hypocritical shrieking about using untested methods on humans won't hold any water at all. (Not that it ever held much.) Other states should follow Ohio's lead.

For those who say that capital punishment is degrading, it seems to me that Garner went out with far more dignity than would have been possible with a life sentence.

How could any sensate person believe that this crime merits no more than a term of imprisonment?


A Houston man who beat his 6-year-old son for eight hours until the boy went into a seizure and died has been charged in the child's killing, police said Monday.   * * *

Saturday night, Duncan was angry because T.K. wouldn't go to sleep so he made the boy kneel with his arms extended in front of him for eight hours, Sgt. Brian Harris said. Whenever T.K. lowered his arms, Duncan delivered a "flurry of punches" to the boy's chest and body as part of what Duncan called "chest boxing," according to the police report.

Duncan refused to allow T.K. to go to the bathroom, and beat the boy after he urinated on himself, according to court records.

Duncan told investigators he beat his son to teach him how to "man up," police said.


I suppose the EU will object when the death penalty is sought  --  yet another reason to ignore foreign law.

Torture, American Style

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This just leaves me speechless.  Here are the first few paragraphs:


President Obama has not fulfilled his pledge to close the detainee prison at Guantanamo Bay, but he has brought Skype, Playstation3 and "life skills" classes to the detainees at the island facility.

While the 181 men being held in the prison wait to learn their fates after the administration fell through on its January 2010 deadline to move them out,  90 percent now live in a communal environment that includes Skype, the online video chat service, and access to a 17,000-book library. 

That's up from 40 percent of detainees a year ago. 

The "Twilight" series, a hit among so-called "tweens," is also popular with detainees, the camp's "librarian" said.


They try to kill us; we give them hit movies.  Can 3D be far behind?

News Scan

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Polanski Skates:  By now, the world knows that Swiss authorities have refused to extradite child-rapist Roman Polanski to the U.S. to serve his sentence.   A column by Eugene Robinson in today's Washington Post deftly expresses how most people, excluding cinema artists and criminals, felt upon hearing this news.  Robinson notes that when it was announced yesterday that the extradition request was denied one of Polanski's lawyers said it was "a great relief after the pain suffered by Roman Polanski and his family."   Robinson continues; "Anyone tempted to feel Polanski's pain should take a closer look at the case.  In 1977, when he was 43, Polanski lured a 13-year-old girl to a house in the Hollywood Hills owned by Jack Nicholson -- the actor was not home at the time -- and plied her with drugs and champagne before having sex with her."  To Polanski's Hollywood friends this was no big deal, as Whoopi Goldberg opined last year it "wasn't rape-rape." 

Death Penalty and California Election: Bob Egelko has this story in the SF Chron on the death penalty and the California election, noting that the Democratic Party candidates for both Governor and Attorney General are long-time opponents, while the Republican nominees are supporters. "The contrasts at the top of the major parties' tickets could not be starker."
Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York has denied the speedy trial motion of alleged embassy bomber Ahmed Khalfan Ghailani.

The Sixth Amendment guarantees "a speedy . . . trial," but it nowhere defines "speedy."  The right "is a more vague concept and other procedural rights . . . [and i]t is . . . impossible to determine with precision when [it] has been denied."  Delays as long and longer than five years have been held by the Supreme Court to be consistent with the Speedy Trial Clause.  Under the controlling decisions of the Supreme Court, courts have no alternative to considering carefully and weighing the specific facts in each case in determining speedy trial claims.

This Court has considered and weighed those facts.  Among them are these.  Although the delay of this proceeding was long and entirely the product of decisions for which the executive branch of our government is responsible, the decisions that caused the delay were not made for the purpose of gaining any advantage over Ghailani in the prosecution of this indictment.  Two years of the delay served compelling interest of national security.  None of the entire five-year delay of this prosecution subjected Ghailani to a single day of incarceration that he would not otherwise have suffered.  He would have been detained for that entire period as an enemy combatant regardless of the pendency of this indictment.  None of that delay prejudiced any interests protected by the Speedy Trial Clause in any significant degree.  In these specific circumstances, Ghailani's right to a speedy trial has not been infringed.
(Footnotes omitted.)

CJLF's brief, filed at the invitation of the court, is here. Benjamin Weiser has this story in the NYT.

Blog Stats

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For what it's worth, I checked C&C's statistics against the list of "Law Prof Blog Rankings" compiled by Paul Caron at TaxProf Blog. The rankings by page views are here, and the rankings by time-on-site (a.k.a. stickiness) are here.

C&C is not on these lists because (1) I do not profess to be a professor, and (2) we do not have a publicly available SiteMeter (at least not that I know of). However, if we had been on the list, I estimate we would have been 12th on page views, between PrawfsBlawg and Concurring Opinions, and 8th for time-on-site.

Racking up numbers is not a priority with us. I am more concerned with who is reading the blog than I am with numbers such as total page hits. Even so, it's nice to know we are reasonably widely read, relative to similar blogs.

News Scan

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Hatch Opposes Kagan:    In an OpEd published at National Review Online, Senate Judiciary Committee member Orrin Hatch explains his previously announced decision not to support Obama Solicitor General Elena Kagan's nomination to the United States Supreme Court.  "Elena Kagan's record shows that her primarily academic and political experience and her activist judicial philosophy make her inappropriate for serving on the Supreme Court," wrote Senator Hatch.  To support his position  Hatch cites Kagan's characterization of Justice Thurgood Marshall's view that the Constitution should be interpreted to safeguard the interests of people who had no other champion as a "thing of glory," and that, as Dean of Harvard Law School, she praised activist Israeli Justice Aharon Barak as the judge who best represents the rule of law.  The piece also reviews other positions Kagan took while serving at Harvard and with the Clinton administration.     

Felons for Franken:  A story by Fred Barnes of Fox News reports on a study which has concluded that comedian turned Senator Al Franken's 2008 election margin of 312 votes may have been cast illegally by convicted felons.  While Franken's election has been certified and is final, the new information showing that it may have been fraudulent drew no response from the Hennepin County Attorney's Office, the state's largest.  But Phil Carruthers a lawyer with the Ramsey County Attorney's Office said the information is being taken "very seriously" and that the Minnesota Majority, which conducted the study, "had done a good job in their review."   "What we did this time is irrefutable," said the group's Executive Director.  "We took the voting lists and matched them with conviction lists and then went back to the records and found the roster lists where voters sign in before walking to the voting booth, and matched them by hand.  The only way we can be wrong is if someone with the same first, middle and last names, the same year of birth as the felon, and living in the same community, has voted. And that isn't very likely." 

Racism at DOJ?


For most of the country's history, the victims of racist law enforcement have been black.  There were episodes when the perversion of police power was beyond grotesque.  The involvement of the Sheriff's Department in the savage murders of three young civil rights workers, Chaney, Schwerner and Goodman, in Philadelphia, Mississippi 46 years ago this summer stunned most of us old enough to remember it.  If the cruelty of Jim Crow didn't bring home the point, that episode certainly did.

Times have changed.

There are now non-frivolous reasons to believe that a racist  --  specifically, anti-white  --  bias is telling the tale in the Voting Rights Section of the Civil Rights Division at DOJ.  See, for example, this post at Powerline, which contains a video tape of a news conference held by the New Black Panther Party.  The leader is holding forth on the supposedly positive changes that followed the appointment of, as he says, "a black man," Eric Holder, as AG.  The particular "positive change" he has in mind is the deep-sixing of the case of voter intimidation against his Black Panther colleague.

We have been following the voter intimidation scandal in several posts, and will continue to follow it.  For now, I want to say only one thing about it (with apologies for personalizing it):  When I started my career, at DOJ, I was so proud to be working there.  I was idealistic, as many are at that age.  I was confident that I would be working for justice, and to help put thugs away whether they showed up at the convenience store at 4 a.m. or the polling place at noon.

Today, I would be neither proud nor confident.  Indeed I would look for work elsewhere.

News Scan

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The Summer's First Riot:  Hundreds of rioters tore up downtown Oakland Thursday night after a Los Angeles jury convicted Bart police officer Johannes Mehserle of involuntary manslaughter for the Jan. 1, 2009 shooting death of Oscar Grant, according to this story by San Francisco Chronicle reporter Henry K. Lee.  Most of the damage, which included the setting of fires, spraying graffiti, breaking store front windows and doors, and looting,  occurred in a six block area near City Hall. This morning the city's police chief reported that 3/4 of those arrested were not Oakland residents.  Indicative of the mindset of the protesters were statements such as "Kill all Cops,"  "Riot for Oscar,"  and "Say no to work, yes to looting," spray painted on building walls.   NPR writer Richard Gonzalez reports that the Justice Department's Civil Rights Division will review the case. 

Death Sentence Upheld:  More Oakland crime news.  Chronicle writer Bob Egelko reports that the California Supreme Court has upheld the death sentence of Gregory Tate for the brutal 1988 murder of social worker Sarah LaChapelle.  The victim's body suffered 24 stab wounds and 28 puncture wounds.  When her son discovered her, she had a butcher knife and a barbeque fork sticking out of her body and her ring finger had been cut off.  The decision  notes that Tate was found with the victim's car, belongings, and blood on his clothes.  His initial alibi was that a man named Fred killed the victim and loaned him the car.  The story changed when police informed Tate that Fred had been in jail at the time of the murder.  Among his claims on appeal, Tate attacked challenges to several potential jurors, claimed that he was tricked into waiving his Miranda rights, and suggested that the prosecutor's facial expressions constituted misconduct. 

Pot Revenue

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Proponents of marijuana legalization tout the big revenue gains that tax on legal weed will bring to strapped governments. Maybe not, says a new RAND Corporation study. See press release, full study by Beau Kilmer, Jonathan P. Caulkins, Rosalie Liccardo Pacula, Robert J. MacCoun, and Peter H. Reuter, LA Times story by John Hoeffel, and SF Chron story by Kevin Fagan.

Prices will likely drop, present enforcement costs are not as high as often claimed, and the brain-dead initiative version on the ballot this November actually leaves tax rates to local option, inevitably kicking off a price (tax) war among localities.

I was disappointed that the "alternatives" section of the report does not discuss legalization through a government-run monopoly, as "hard liquor" is presently sold in some states and as we presently have with the numbers racket state lottery in many states.

We're all in this together

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Chad Bray and Cassell Bryan-Low report in the WSJ:

Federal prosecutors charged a senior al-Qaeda leader Wednesday with helping to mastermind last year's attempted bombing of New York City's subway and said the effort was part of a larger plot that included a failed terrorist attempt in the U.K.

In an indictment unveiled in federal court in Brooklyn, prosecutors said 34-year-old Adnan el Shukrijumah, described as a leader of an al-Qaeda program dedicated to terrorist attacks in the U.S. and other Western countries, "recruited and directed" three U.S. citizens to carry out suicide bombings in Manhattan in September 2009.

The indictment also charged Abid Naseer and Tariq ur Rehman, who were previously arrested by authorities in the U.K. as part of a raid in relation to suspected terrorist activity there. Prosecutors said the two cases were "directly related." The charges underscored "the global nature of the terrorist threat we face," said David Kris, assistant attorney general for national security.

Note to Obama: Get Them While You Can

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This is not a political blog, but politics affects who sits in the Senate, and who sits in the Senate affects what kind of federal judges and Supreme Court Justices will be confirmed.  This in turn affects, among many other things, what sort of gun rights we have (McDonald) and what the limits of sentencing are under the Eighth Amendment (Graham). 

Thus today's Gallup poll is worth noting.  It reports,

Thirty-eight percent of independents approve of the job Barack Obama is doing as president, the first time independent approval of Obama has dropped below 40% in a Gallup Daily tracking weekly aggregate. Meanwhile, Obama maintains the support of 81% of Democrats, and his job approval among Republicans remains low, at 12%.  *  *  *

Over the past year, Obama has lost support among all party groups, though the decline has been steeper among independents than among Republicans or Democrats. Today's 38% approval rating among independents is 18 percentage points lower than the 56% found July 6-12, 2009. During the same period, his support has fallen nine points among Democrats (from 90% to 81%) and eight points among Republicans (from 20% to 12%).


President Obama, of course, won with an overall majority of 53% by taking the independent vote and increasing that part of the electorate represented by young and minority voters.  But with those voters historically showing up at low levels for off-year elections, and with the independents fleeing Obama in droves, the message is clear:  Either such nominees as Goodwin Liu and Robert ("sadism is a mitigating factor") Chatigny get confirmed in the next six months, or not at all.




In United States v. Graf, No. 07-50100, the Ninth Circuit addresses some of the thorny issues that arise when a business executive is prosecuted and corporate counsel is called to testify.

News Scan

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USDoJ Sues Arizona:  AP writer Bob Christie reports that the federal government filed a lawsuit against portions of Arizona's recently enacted illegal immigration law today.  The suit, which was filed in the Federal District Court in Phoenix, claims that the Arizona law will "cause the detention and harassment of authorized visitors, immigrants and citizens who do not have or carry identification documents."  The suit argues that the Supremacy Clause gives the federal government exclusive authority to enact and enforce laws against illegal immigration. A copy of the federal complaint is here.  Noting that the ACLU and other groups have already filed suits challenging the law, law professor Kris Kobach, who helped draft it, called the government's suit "unnecessary."  "The issue was already teed up in the courts.....the Justice Department doesn't add anything by bringing their own lawsuit," he added.

Focus on Lawyering

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Marcia Coyle has this article in the NLJ regarding the number of Supreme Court cases this term that dealt with "lawyering."  Broadly defining that term, she counts 16. However, it is hard to see a trend other than the greater number of cases.  The ineffective assistance cases are "a mixed bag."

Illegal Immigrants and Crime

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Linda Chavez has this op-ed in the Appeal-Democrat (Marysville, CA), taking on both President Obama and Gov. Brewer.  She recites Brewer's claims about illegal immigrants and crime and some of the available facts on the subject.

These facts don't justify ignoring illegal immigration or pretending that there aren't costs associated with it. Every nation has the right -- and obligation-- to protect its borders. We must secure the U.S. border, but pretending that illegal immigration is fueling a crime wave or is at historic highs is just plain wrong.

More on the Lockerbie Bomber

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Following up on Bill's post yesterday, Bret Stephens has a column in the WSJ titled "A (Better) Reason to Hate BP." The subscriber link is here. The system for making a temporary link available to nonsubscribers seems to have a glitch this morning.

Megrahi's not-so-surprising longevity is the latest sordid twist in a tale in which BP is no bystander. It begins in 2004, with efforts by then-British Prime Minister Tony Blair to rehabilitate Col. Gadhafi and open Libya to British commercial interests. BP inked its exploration deal with Libya following a second visit by Mr. Blair in 2007. But the deal nearly ran aground after the U.K. took its time finalizing a prisoner transfer agreement between the two countries.

It was at this point that BP became concerned. As this newspaper reported last September, BP admits that in 2007 it "told the U.K. government . . . it was concerned that a delay in concluding a prisoner transfer agrement with the Libyan government might hurt" the deal it had just signed. BP also told the Journal that a special adviser to the company named Mark Allen, formerly of MI6 and well-connected in Labour Party circles, raised the transfer agreement issue with then-Justice Secretary Jack Straw, though the company also says the two did not discuss Megrahi.

On what basis (other than sheer mercantilism) would a BP adviser raise a prisoner transfer agreement with senior U.K. officials? I put that question to a BP spokesperson and was told I'd hear back "shortly." As of press time, I still hadn't

Compassion Strikes Again, Take II

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A little less than four months ago, in this entry, I noted that "compassion"  --  the ever-present cry of the criminal defense bar  --  was being invoked, as usual, to bring about undeserved leniency for a hoodlum.  What was different this time was that it was no ordinary hoodlum.  It was the mastermind of the Lockerbie bombing.  He was being released, so we were told, because, due to cancer, he had three months or less to live.  As the London Evening Standard put it at the time:


Scottish Justice Secretary Kenny MacAskill defied pressure from Washington and the relatives of many of the 270 victims to order the release.

He said the Scottish people pride themselves on their "humanity" and that al-Megrahi was now facing a sentence from a "higher power".

He added: "Mr al-Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone their dying days.

"But that alone is not a reason for us to deny compassion to him and his family in his final days. Our justice system demands that judgment be imposed but compassion be available."


What it actually turns out to demand is outright fraud on behalf of mass murderers.  It appears that. lo and behold, Mr. al-Megrahi will live indefinitely.  The "three months" was, um, you know, kind of a guess.  Or, somewhat less generously,  it seems that the whole thing was a pack of lies.

Moral of story:  When you start to hear the braying about compassion, watch your wallet.

Kagan Death Penalty Testimony

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We finally have a transcript of Day 2 of the Kagan confirmation hearings. Here is her exchange with Senator Durbin on the death penalty:

The Jarndyce

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Cal. State Bar President Howard Miller proposes a new unit of measurement: the Jarndyce.  If you have read Charles Dickens' Bleak House, you don't need to be told what quantity this measure is for: legal waste and delay.

Miller's piece is about civil litigation, but it could just as easily be about review of capital cases. Why do we need 20 years of litigation to review a judgment in a case where there is no doubt whatever that the defendant is indeed the perpetrator? We don't.


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On this day in history, eleven score and fourteen years ago,

the greatest Question was decided, which ever was debated in America, and a greater perhaps, never was or will be decided among Men. A Resolution was passed without one dissenting Colony "that these united Colonies, are, and of right ought to be free and independent States, and as such, they have, and of Right ought to have full Power to make War, conclude Peace, establish Commerce, and to do all the other Acts and Things, which other States may rightfully do." You will see in a few days a Declaration setting forth the Causes, which have impell'd Us to this mighty Revolution, and the Reasons which will justify it, in the Sight of God and Man. A Plan of Confederation will be taken up in a few days.

-- John Adams, letter to Abigail, July 3, 1776

The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.

-- second letter the same day

So we have John Adams to thank for the Independence Day fireworks tradition, although he thought we would be celebrating the decision of the basic independence question, not the declaration laying out the reasons.

The Voting Rights/Black Panther Scandal

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In mid-April, while commenting on the gaping lack of trust our citizens now bear toward their government, I noted that one of the reasons for the loss of faith is growing evidence that the Justice Department has become incompetent or politicized or both.  One of the more alarming examples of politicization was the decision to drop what would seem to be an ice-cold case against the New Black Panthers for voter intimidation at a Philadelphia polling place.  (The C&C News Scan recently reported new developments in the matter).

The story is being covered in depth by Powerline, whose most recent entry is here.  Having been both a career attorney at the Department and a political appointee, I am appalled by it.  One of the two career attorneys who had been handling the matter thought the behavior of his political superiors so shocking and dishonest that he could not continue at the Department.  In an op-ed in the Washington Times, he made this observation:

The New Black Panther case was the simplest and most obvious violation of federal law I saw in my Justice Department career. Because of the corrupt nature of the dismissal, statements falsely characterizing the case and, most of all, indefensible orders for the career attorneys not to comply with lawful subpoenas investigating the dismissal, this month I resigned my position as a Department of Justice attorney.

The Department's decision to drop the case, apparently because the Black Panther toughs were intimidating "only" white and Republican voters, is a scandal unto itself.  But's that's too obvious for argument.  What I want to flag here is the other scandal:  the Big Press Cover-Up.

Wood Execution Set

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"I shot that bitch in the head, and blowed her brains out and all she did was wiggle," Holly Wood gloated to his cousin / getaway driver in September 1993. After an unsuccessful attempt to kill former girlfriend Ruby Gosha while she was awake and able to take defensive action, the brave Mr. Wood sneaked into her house and shot her in the head with a shotgun as she slept.

Wood is not retarded, no matter how many times you may read his defenders' propaganda reported without fact-checking. He is classified as borderline intellectual functioning, which is not "retarded" as defined in the DSM. On January 20, the Supreme Court rejected, 7-2, his claim that his trial counsel should have further pursued mental evidence. See day-of-decision post here.

The Alabama Supreme Court has set an execution date of September 2, Holli Keaton reports for the Troy Messenger. That is 17 years and 1 day from the crime.
Shayndi Raice has this short post on the WSJ Washington Wire blog on the military recruiter testimony.

"I find her actions unbecoming and certainly unbefitting a nominee to the Supreme Court," said Army National Guard Capt. Pete Hegseth, executive director of Vets for Freedom and a student at Harvard's Kennedy School of Government. The testimony came on the final day of Kagan's confirmation hearings.
*                           *                      *
A former student of Kagan's came to her defense. Army National Guard Captain Kurt White said the accusations against the nominee are "Unfair and untrue. "She went to such great lengths to show her respect and appreciation of the military and military veterans," said White, who is also the president of the Harvard Law Armed Forces Association.

In contrast to prior nominations, there still appear to be no freely available transcripts of the most of the hearings. The WaPo site has Day 1, FWIW.
In a comment to Bill's post, JAG Keith Petty points us to his forthcoming Georgetown J. Intl. L. paper, "Beyond the Court of Public Opinion: Military Commissions and the Reputational Pull of Compliance Theory," available now on SSRN. I thought it was worth highlighting here on the main page.

Hat tip to Scott Johnson at Powerline for calling attention to this delicious piece by Jay Nordlinger:


Michael Mukasey was attorney general from November 2007 to January 2009. He remembers visiting Guantanamo Bay in February 2008. He looked at many of the high-value detainees on video monitors. But he did not see Khalid Sheikh Mohammed; Mohammed wasn't in his cell. He was off having a Red Cross visit.


Mukasey did see the exercise room, adjacent to Mohammed's cell. And he noticed something interesting: Mohammed had the same elliptical machine that he, the attorney general, had back home in his Washington apartment building. Only there was this difference: Mukasey had to share his, with other residents; there was a mad scramble in the morning to get to it. Mohammed had his machine all to himself.


Bear in mind that he was the "mastermind" of the 9/11 attacks, which killed almost 3,000 people. That he was the beheader of Daniel Pearl. And so on. I wonder how much more tenderly America's critics expect us to treat such people. "Abdominal massages," of the type Al Gore apparently requests?


John Hinderaker adds: KSM is contemptuous of us because he thinks we are a bunch of idiots. I'm beginning to believe he's right.

Deporting Witnesses - Part Dos

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In May, the California Supreme Court upheld a conviction against a Compulsory Process Clause challenge when a defense witness was deported. Today, in People v. Herrera, S171895, Cal. Supreme upholds a conviction against a Confrontation Clause challenge when a prosecution witness testified at the preliminary hearing and was deported before trial, and his earlier testimony was admitted in evidence.

News Scan

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Texas Execution Stayed:  The Texas Court of Criminal Appeals has granted a last minute stay of execution to Jonathan Marcus Greene as reported by Nancy Flake in the Montgomery County Courier.  Greene  was convicted and scheduled for execution Wednesday for the kidnap, rape and strangulation murder of 12-year-old Christina LeAnn Neal ten years ago.  This AP story by Michael Graczyk notes that evidence of guilt included the girl's partially burned body found in Green's home and DNA evidence identifying him as the rapist.  During the sentencing hearing two women testified that Green had also raped them. Green's appellate attorney, who describes his client as "extremely, extremely mentally ill,"  won the stay after the trial court rejected his claim that Green was mentally incompetent for execution.  The Court has ordered the trial judge to clarify what standard she used to determine Green's competency.  The trial judge has 15 days to respond.  When she learned about the stay, the victim's mother, who traveled to Huntsville for the execution, told reporters "I'm trying to understand what in the world is going on."

Is the Court on a March to the Right?

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Not really  --  or at least such is the view of those of us who weren't thrilled with what was arguably the biggest criminal law decision of the term, Graham v. Florida.  Now, Tom Goldstein of SCOTUSblog joins in debunking the notion that conservatives are running the show.  Here is one excerpt of his analysis:

In United States v. Comstock, which upheld Congress's power to provide for the civil commitment of sexually dangerous persons after the completion of their prison sentences, the Chief Justice joined in full in the left's broad interpretation of Congress's power under the Commerce Clause; Kennedy and Alito did not; and Scalia and Thomas would have invalidated the statute.  In Padilla (the case about advising clients about the immigration consequences of pleading guilty), Kennedy joined the left, Roberts and Alito articulated a middle ground standard, and only Scalia and Thomas would have found that the attorneys had no relevant obligation.  And in Citizens United itself, Alito (along with Thomas) joined an opinion by Justice Scalia defending the result on originalist grounds, but the Chief Justice did not; Alito in turn joined the Chief's discussion of stare decisis, but Scalia and Thomas did not.

Mr. Goldstein is nobody's version of a conservative, but he's a fair-minded man and a keen observer of the Court.  His summary of the just-completed Term is here.

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