August 2010 Archives

The California Supreme Court yesterday issued a pair of companion cases addressing state habeas claims by death row inmates.  Despite the state's argument to the contrary, the court reaffirmed its practice of accepting "shell petitions" in order to toll the statute of limitations for federal habeas petitions.  

In both cases, the inmates were sentenced to death and shortly thereafter requested habeas counsel, for which there is a statutory right in California.  In both cases, the court's appointment of counsel took a significant amount of time - in one case (In re Jimenez), it took the court eight and a half years for the court to appoint counsel, and in the other (In re Morgan) the court still had "not found qualified counsel willing to accept the appointment" after 13 years.  The court stated that these delays are common because "[q]uite few in number are the attorneys who meet this court's standards for representation and are willing to represent capital inmates in habeas corpus proceedings."  (The court's standards are listed in a footnote on page 6 of the In re Morgan opinion.)  Until the court finds suitable counsel, the court reaffirmed that the inmate may file a cursory "shell petition" to preserve his right to seek later relief in the federal courts.  The court also upheld its practice of, upon appointment of counsel, allowing the counsel to amend the habeas petition for up to 36 months.

Justice Corrigan wrote separately against the practice, noting that allowing shell petitions only burdens the court and the public by permitting capital inmates to "languish without representation for several years."  Justice Corrigan also stated that while the court is charged with the obligation to provide habeas counsel to these inmates, it "is not, however, [the court's] proper role to help one class of convicted inmates evade a federal statute of limitations."

News Scan

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21 Life Terms... Plus 433 Years:  After being convicted earlier this month of 22 felony counts, a Los Angeles man was sentenced yesterday to 21 life terms (10 of which were stayed) and a base term of 433 years, reports the AP.  In 2008, Charles Juan Proctor's use of a razor blade during his attacks of six women in the Long Beach area gave him the nickname "box cutter."  One victim testified that Proctor dug a blade into her neck and cheek and twisted it to make the wound deeper.  During sentencing, presiding Judge Gary Ferrari referred to the Proctor's crime spree as "unconscionable" and told him "I can say absolutely ... you deserve each of these 433 years."

Federal Judge Holds Hearing in MA Death Penalty Case:  A federal judge yesterday held a hearing in the case of Gary Lee Sampson, the first person to be scheduled for execution in Massachusetts since 1947.  After Sampson pleaded guilty to the stabbing deaths of two men in 2001, a federal jury recommended a sentence of death - rejecting his proferred defense of mental disease or brain damage.  After imposing the sentence, presiding U.S. District Court Judge Mark Wolf angered some family members of the victims by stating that he believed Sampson was indeed mentally ill.  Judge Wolf is now also the presiding judge over Sampson's federal habeas proceeding, and family members are concerned that he will get a second chance to avoid imposing a death sentence for Sampson.  Read the Boston Globe's story here.

Tired of Being Called a Racist?

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Well get used to it.  Those who enthusiastically support the death penalty and other forms of serious punishment for serious crime are just the latter-day Klan, according to one sort of thnking  -- the sort briliantly described in the "oikophobia" essay to which Kent made reference earlier today.

It's well worth the read, as is this column by Charles Krauthammer.  Krauthammer's piece is titled, "The Last Refuge of a Liberal."  You will not be surprised to learn that the refuge is the reflexive but still snarling charge of racism.

Krauthammer does not discuss the culture war about the death penalty, but he might as well have.  To abolitionists and a distressingly large number of other liberals, there is no such thing as principled or good faith support for capital punishment.  There is only the fact that blacks make up a much larger share of death row than they do of the population, and that suffices to show that, if you support the "barbarism" of capital punishment (as do two-thirds of the American people), you are a racist (as they are).

The fact that the great bulk of recent scholarship shows that the death penalty saves innocent lives by its deterrent effect (abstracts collected here), or that for some especially gruesome murders a mere prison term could not possibly be thought of as justice by a normal person  --  these things don't count.

As I said last week, abolitionism and the go-easy approach to crime in general can no longer be thought of as "arguments" as traditionally understood.  They have become a Test of Righteousness and a cult religion, and have a cult religion's certainty and venom. 

A Strange End to a Capital Case

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George Smithey murdered Cheryl Nesler in 1988. He was sentenced to death the next year. The California Supreme Court unanimously upheld his conviction and sentence on appeal in 1999, 20 Cal.4th 936.  Last week, "a Calaveras County Superior Court judge last week vacated Smithey's death sentence and resentenced him to life in prison without parole," AP reports.

Before the resentencing paperwork arrived at the Big Q, Smithey hanged himself with bedsheets.

Great Job, You're Fired

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The murder rate in the District of Columbia is down substantially.  The District's dismal schools (a "root cause") are getting better, though they still have a very long way to go.  So naturally the people of the District are poised to fire the mayor.  Robert McCartney reports for the WaPo on "Adrian Fenty, Vincent Gray and the politics of race and class in D.C."

At 39, [incumbent Mayor] Fenty is a post-civil-rights leader who prides himself on being color-blind. It doesn't matter whether you're black or white, rich or poor; the key is that your trash is picked up, your potholes are filled and your kid's teacher is qualified.

That doesn't sit well with some of the old-timers.

Part of the controversy is school chief Michelle Rhee.  She has taken on a very tough job and done it very well, but she's Korean.  Well, if the people dump Fenty, and the new mayor dumps Rhee, she can come to Sacramento.  She gets along pretty well with our mayor.


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James Taranto at the WSJ has found a word for an attitude that often comes up in debates on crime, especially capital punishment, although the focus of Taranto's column is the Ground Zero mosque dispute. The word is "oikophobia."  It is the opposite of xenophobia.  It is contempt and loathing of the familiar.  The source is this essay at Civitas in England by Roger Scruton: "the disposition, in any conflict, to side with 'them' against 'us', and the felt need to denigrate the customs, culture and institutions that are identifiably 'ours.' "  Taranto explains the American variant of this attitude:

Yet the oiks' vision of themselves as an intellectual aristocracy violates the first American principle ever articulated: "We hold these truths to be self-evident, that all men are created equal . . ."

This cannot be reconciled with the elitist notion that most men are economically insecure bitter clinging intolerant bigots who need to be governed by an educated elite. Marxism Lite is not only false; it is, according to the American creed, self-evidently false. That is why the liberal elite finds Americans revolting.

Fiona Ma on SB 399

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Tim Redmond at the San Francisco Bay Guardian is very upset with California Assemblywoman Fiona Ma for voting against the bill to effectively abolish life without parole for the very worst 17-year-old murderers.  We have a different take, of course.  We will put aside our disagreements with Ms. Ma on other issues and give her a Profile in Courage award on this one.  The pressure from the soft-on-crime crowd was intense, and the major newspapers had lined up, repeating Senator Yee's vignettes without verification.  Here is the statement from Ms. Ma's office, as quoted in the SFBG story:

I did not come to my decision on SB 399 easily - it's legislation that I have carefully reviewed and considered for months. While I acknowledge that some juveniles in the correctional system may have the capacity to be rehabilitated after decades of being incarcerated, I feel that we cannot reset a defendant's clock 25 years later expecting a victim's family will reset their hearts.

Life = Life in North Carolina

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The Supreme Court of North Carolina today rejected a claim brought by dozens of North Carolina lifers that their life sentences must be reduced by good time credits.  See News 14 Carolina's story here.

The claims were filed by NC inmates who were sentenced to life terms between April 1974 and June 1978.  At that time, the relevant state statute defined a "sentence of life imprisonment" to mean a term of 80 years.  With earned good time and merit credits, the inmates claimed that they had completed their sentences and were entitled to immediate release.  The Department of Corrections countered that under their policy, credits earned by lifers was not for the purpose of reducing the inmate's sentence, but rather to calculate a release date in the event the sentence is commuted.  Alfred Jones - a convicted murderer originally sentenced to death and one of the complaining inmates - successfully challenged this policy in the state trial court.  After calculating his credits, the court ordered his immediate release.

News Scan

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Blago Holdout Juror Talks:  Juror JoAnn Chiakulas - the holdout juror in former Governor Rob Blagojevich's trial - recently told the Chicago Tribune that she stands by her decisions.  This AP story reports that Chiakulas found Blago's recorded statements about allegedly selling President Obama's former Senate seat too disorganized to constitute a criminal conspiracy.  Chiakulas also expressed concerns about the credibility of some of the government's key witnesses, who had cut deals with prosecutors before the trial.  A judge announced yesterday that Blago's retrial will begin the week of January 4th.  

Escaped NC Convict Charged with Murder in CA:   The San Diego Union Tribune reports prosecutors yesterday charged Michael Eugene Richardson with two counts of special-circumstance murder for the deaths of his wife and mother-in-law, who were found in a wrecked car in what appears to be a staged auto accident.  Before her death, Richardson's wife reported to authorities her discovery that Richardson had been maintaining a sexual relationship with his 17-year-old niece.  Richardson's run-ins with the law date back to the '80s and reach coast-to-coast - in 1982, he escaped from a North Carolina prison after serving only a few years of a 30-year sentence for armed robbery.  He was captured in 2000, but was paroled back to California after serving only a few years.  

AZ Governor Files Brief in Appeal:   Lawyers for Arizona Governor Jan Brewer yesterday filed their first brief in the appeal of last month's ruling putting the state's controversial immigration law on hold, reports the AP.  The state is appealing to the 9th Circuit Court of Appeals, arguing that the district judge improperly relied on speculation that the law would place an unconstitutional burden on legal immigrants in the U.S.

Trial for USS Cole Bomber Delayed:   Approaching the 10th anniversary of the terrorist attack of the USS Cole, during which 17 sailors were killed and dozens more injured, the DOJ this week indicated that there "are not charges either pending or contemplated" for Adb al-Rahim al-Nashiri, the suspected bomber.  The Department of Defense claims, however, that prosecutors in the Office of Military Commissions are actively investigating a case and developing charges against him.  In any event, friends and families of those killed aboard the Cole remain frustrated with the government's delay in seeking justice.  Read the Washington Post's article here.   

Felony Stupid:  The AP has this story about a Washington state man who appeared in court to face a methamphetamine charge... with a bag of meth in his pocket.  He now faces an additional felony possession charge after a guard discovered the drugs during a pat down.     

Postconviction Discovery

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The California Supreme Court today decided Barnett v. Superior Court, resolving some questions regarding California's postconviction discovery statute, Penal Code ยง1054.9. The Court had previously rejected the attack on the statute itself by a couple of trouble makers in People v. Superior Court (Pearson) (2010) 48 Cal.4th 564.

In summary, we conclude that, to be entitled to receive discovery beyond merely recovering items that the prosecutor had provided to defense counsel before trial, defendants must show they have a reasonable basis to believe that the specific materials they seek actually exist. To obviate one concern that petitioner has expressed, we note that a reasonable basis to believe that the prosecution had possessed the materials in the past would also provide a reasonable basis to believe the prosecution still possesses the materials. Petitioner need not make some additional showing that the prosecution still possesses the materials, a showing that would be impossible to make. (However, as we explained in Steele, 1054.9 "imposes no preservation duties that do not otherwise exist." [Steele, supra, 32 Cal.4th at p. 695.].) We disapprove People v. Superior Court (Maury), supra, 145 Cal.App.4th 473, and Curl v. Superior Court, supra, 140 Cal.App.4th 310, to the extent they are inconsistent with this opinion.

*                            *                            *
Accordingly, we conclude the prosecution is not required to provide discovery of materials from the out-of-state law enforcement agencies of this case that the prosecution does not itself possess.

Congrats to Ward Campbell and Eric Christoffersen, who mostly won this case.

"Women's Values"?

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WomensValues.jpgI go past the California State Capitol twice a day, so I see a lot of silly demonstrations and displays.  This one goes in the Hall of Infame.

The banner says "1920 -- Votes for Women; 2010 -- Vote for Women's Values."

So let me get this straight. Barbara Boxer and Ann Coulter are both women. So in terms of values, they have more in common with each other than Boxer does with Barack Obama or Coulter does with Glenn Beck, right?

It seems like the message here is similar to the one directed at black conservatives such as Clarence Thomas and Thomas Sowell.  Don't think for yourself.  Don't stray from the script.  If you do, you are not "authentic." 

This kind of stereotyping is a betrayal of the drive for equal rights, not a celebration of it.

So what are "women's values" on issues of crime and punishment? I haven't seen any strong correlation between sex and positions on this issue.

Update: It's worse than I thought. The rally was staged by the California Nurses Association for the purpose of taking cheap shots at the person who is at least even money to be the first woman governor of California. Jack Chang has this story in the SacBee.

CNA Executive Director Rose DeMoro said, "We're basically here to call attention to the hypocrisy of her running and to say just because you're female, that doesn't make you a woman."

Yep. That's pretty much the same as the "not authentic" comments noted above.

Geography Quiz


Q:  What country is the new Workers Paradise of the Western Hemisphere, embodying compassionate socialist values?

A:  Venezuela, courtesy of Hugo Chavez.

Q:  What country was proudly the first to abolish the death penalty?

A:  Venezuela (1863, in its Constitution).

Q:  What country has the highest murder rate for any large nation in the world?

A:  You got it  --  Venezuela.

I'm no fan of these international "studies" relentlessly tossed out to show that the United States has a murder rate higher than countries (mostly in Western Europe) without capital punishment.  But since they're all the rage with the DPIC and similar outfits, I thought I would join the fun by noting this story from the New York Times:  "Venezuela, More Deadly Than Iraq, Wonders Why."

Yes, why indeed.  You will not be surprised to hear that, among the numerous reasons the Times suggests, the absence of capital punishment nowhere appears.  Indeed the story omits this fact altogether.

This gem, however does appear, concerning the efforts of the National Police to "respect human rights."  The Times quotes a high police official remarking, "I'm not saying we'll be weak...but the idea is to use dialogue and dissuasion as methods of verbal control when approaching problems."  Gads, this guy must get his stuff from Amnesty International press releases.  I haven't heard as much mush since Eric Holder's last speech.

The whole thing, here, is an eye-opener.  Bear it in mind the next time an abolitionist starts in on you with "the murder rate in the United States....." 



Pot Sellers Against Proposition 19

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And now, for something completely different. Peter Hecht reports in the SacBee:

The Canna Care medical marijuana dispensary has a truck driving around Sacramento with a sign telling people to vote "no" on the state ballot initiative that would legalize pot for recreational use.

George Mull, a lawyer for several Northern California pot shops, is fighting Proposition 19 on claims it threatens protections put in place for medical pot users with the 1996 passage of California's medical marijuana law.

And a Humboldt County dispensary operator complains that the new pot measure simply isn't needed. "They say they're legalizing marijuana," said Stephen Gasparas, who runs the iCenter pot dispensary in Arcata. "It's already legal. All they're doing is taxing it."

California's landmark initiative to legalize marijuana use for adults over 21 and permit local governments to tax retail pot sales is backed - and bankrolled - by leaders in California's medical cannabis movement.

And yet some of its more stubborn opposition comes from a vocal segment of the same community who worry their dispensary operations may be negatively affected.

On a more predictable note, six former "drug czars" from both Republican and Democratic administrations have this LA Times op-ed opposing the marijuana legalization proposition.  Politics makes strange bedfellows, as the saying goes.  Doug Berman at SL&P has this post on the op-ed.

News Scan

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Persuasive Appellant Now Triple-Homicide Suspect:  The Seattle Times has this story about John Allen Booth Jr., currently on the loose and wanted for three murders committed last weekend in Washington state.  Booth's life of crime began at age 13, and his record ranges from thefts and trespassing to witness intimidation and serious assault charges.  The article details Booth's successful journeys through the criminal appeals process, which almost always ended in an early release and an additional crime.  After his last stint in prison for two counts of first-degree assault for bludgeoning a man in the head with a crowbar, Booth was again released early and is now wanted for three point-blank gun murders.

Feds Dismissing Deportation Cases:  The Houston Chronicle reports that the Department of Homeland Security has begun reviewing thousands of pending deportation cases and moving to dismiss those against illegal immigrants with no serious criminal record.  A memo from an ICE official explains that the agency has the capacity to remove about 4% of the illegal immigrant population in the country annually, and the deportation of those with serious criminal records is the top priority.  Still, critics claim that dismissal of these other cases amounts to backdoor "amnesty" by the Obama administration and will leave local agencies with no choice but to pick up the slack.  

Federal Murder Convict Spared the Death Penalty:   A federal jury was unable to reach a unanimous decision on the death penalty for Timothy O'Reilly reports the AP. See prior post on this case here. Both the story and the defense lawyer quoted in the story erroneously say the jury decided against the death penalty.  No, they did not.  The jury could not decide, and the badly written federal death penalty law requires a life sentence as the result of nondecision.  In 2001, while robbing a federal credit union, O'Reilly murdered 30-year-old guard Norman Stephens.   

Troy Davis and Iconic Innocence


Those of you who follow Doug Berman's entertaining Sentencing Law and Policy will see that a hue and cry is being raised about the Davis opinion.  This was to be expected.  As I have noted there:

The abolitionist refrain about Troy Davis's "innocence" is identical in its shrill, superior and indignant character to the same claim they made about Roger Keith Coleman. And it's identical in one other respect as well, to wit, it's identically false.

Let's face it. Troy Davis's "innocence" was, in the abolitionist eye, never going to be a product of evidence. The district court's opinion could have gone on for 1000 pages and it would have made no difference. Davis's "innocence" has become an urban myth of the abolitionist Left, much in the way that George Bush's "complicity" in arranging the 9-11 attacks has become a Leftist myth. Davis's innocence must be assumed, no matter what the balance of the evidence or the care taken to parse it, because that assumption is the necessary predicate to slam the United States as a rogue country that willy-nilly executes people for the fun of it, especially if they're black.

This mindset is related to, though not exactly the same as, the one that insists OJ didn't do it. OJ was acquitted (by the criminal jury, although not the civil one), so he's not an adjudicated murderer, no doubt about that.  But is he the guy who stuck in the knife? No serious person -- except those who're serious about hating the country -- thinks he wasn't.

Again, to a certain turn of mind, these episodes have long since stopped being cases and started being icons. They are the Religion of the Left. That's the reason debates with abolitionists go nowhere. You can argue facts, but you can't argue religion.

Yee Bill Defeated

Yesterday, the California Assembly voted down SB 399, Senator Leland Yee's attempt to create a possibility of parole for all 17-year-old murderers, regardless of how heinous the crime. The vote was 34-38, with 41 needed for passage. All the Republicans and 9 Democrats voted no. Another 6 Democrats abstained, which in California is effectively the same as voting no.

This was a hard fought battle, with victims' groups and prosecutors fighting uphill and with misleading and misinformed editorials in all the leading newspapers of the state.  Congratulations to those who worked so hard to defeat this ill-advised measure.

NOVJL's press release is quoted after the jump.

Still Guilty, After All These Years

Bill Rankin reports in the Atlanta Journal-Constitution:

A federal judge on Tuesday emphatically rejected condemned inmate Troy Anthony Davis' claims that he was wrongly convicted of killing a Savannah Police officer in 1989.
In a 174-page order, U.S. District Judge William T. Moore Jr. said Davis had failed to prove his innocence during an extraordinary hearing this summer ordered by the U.S. Supreme Court.

"Ultimately, while Mr. Davis' new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors," Moore wrote. "The vast majority of the evidence at trial remains largely intact, and the new evidence is largely not credible or lacking in probative value."
*                                    *                               *

Moore did answer one question posed by the U.S. Supreme Court. He found that executing an innocent person would violate the Eighth Amendment's ban against cruel and unusual punishment.

"However, Mr. Davis is not innocent," Moore wrote.

For those who have been around the death penalty debate for a while, there is a sense of deja vu about all this. Eighteen years ago, the Supreme Court took up the case of Herrera v. Collins, 506 U.S. 390 to address the monumental question of whether a strong case of actual innocence was sufficient to block an execution, even though there was no claim that any violation of federal law or the Constitution occurred in the the trial. Once they got their hands on the case, though, the Supreme Court discovered an inconvenient truth: Herrera was guilty as sin. "Oh, never mind."

News Scan

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Murder Charges For Shooting 15 Years AgoTwo gang members will stand trial for murder in California after their victim died 15 years after being shot, reports the San Francisco Chronicle.  In 1994, Erwin Johnny Sanchez and Daniel Paul Cruz shot victim Scott Sittler, who became a quadriplegic as a result of the injuries and spent the rest of his life on a respirator.  At the time, Sanchez and Cruz pleaded guilty to attempted murder.  The two men now face murder charges after Sittler died last February from pneumonia.

Appeals Court Hears Argument on Student Drug Testing in CA:  The Sacramento Bee reports that a California Court of Appeal heard oral argument yesterday on a legal challenge to random drug testing of California high school students.  While random testing of student athletes is well-established, some claim that expansion of testing to students in other extracurricular activities violates the California constitution, which includes an explicit right to privacy.  A California trial court judge last year issued a preliminary injunction of random drug tests of students (other than athletes), finding it likely that these suspicionless searches were invasions of the students' state constitutional rights.  According to the article, the questions posed by the justices during argument indicated they might agree with the trial court judge. 

Chelsea's Law Approved by CA Senate:  In response to the deaths of two teenage girls at the hands of a convicted child molester, the California Senate today unanimously approved a bill allowing LWOP for predators who kidnap, drug, bind, torture or use a weapon while committing a sex crime against a child.  The AP has this story here.

Tortured Dog Key Witness in Parole Hearing:  The AP reports that after 8-year-old pit bull "Louis Vuitton" was led into the hearing room, the Alabama Parole Board unanimously voted to deny early release to Juan Daniels.  In 2009, Juan was sentenced to more than nine years in prison for dousing the dog in lighter fluid, setting him on fire, and beating him with a shovel.  Although one official called this case the worst case of animal cruelty he had ever seen, Louis Vuitton has fortunately recovered and found a new loving home. 

Bad Eggs

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Due to the salmonella outbreak, Alexandra Petri at the WaPo's PostPartisan Blog has this post on 12 signs your eggs have turned. The one most pertinent to this blog is number 8:

One juror insists the eggs are "perfectly fresh" and that the government failed to make its case. Eggs go free.
The whole list is well worth reading.

The Financial Squeeze on Prisons

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We hear more and more that brutally tight state budgets require cutbacks in imprisonment.  Sentences for the much-heralded and apparently ubiquitous "low-level, first-time" offender should not include a jail term, and some  --  or many  --  of those already in prison should be released early.  The money just isn't there.

Those of us not born yesterday recognize this argument as a make-weight for the pre-existing position that sentences have been too harsh for years (roughly the years coinciding with a dramatic drop in the crime rate, although that last part is kept quiet).  The frugality argument is simply one that opponents of serious sentencing figure can gain some traction where their other arguments have deservedly failed. 

But as ever, the first thing you need to do with the argument is check its factual premises.  It sounds plausible because the economy in fact remains weak, as everyone but the President seems to know.  The problem is that not every plausible proposition is a true proposition.

Hence I want to call to your attention this news clip from California, one of the states where the release-early-to-save-money pitch is at its peak.  The story concerns the recent opening of a taxpayer funded half-billion dollar high school.

That's not a misprint.  It's half a BILLION.   Actually, several million more than that.  For a high school.

This high school doesn't sound a bit like the one I went to.  It does, however, sound a lot like the Acapulco Four Seasons. 

Moral of story:  It's not about money.  It's about getting serious.

News Scan

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9th Circuit Reversal #1:  The 9th Circuit last week reversed the death sentence of David Scott Detrich.  In 1989, Detrich sexually assaulted and stabbed to death Elizabeth Souter and dumped her body in the desert near Tucson.  He was convicted of first-degree murder, kidnapping and sexual assault and sentenced to death.  The 9th Circuit reversed, finding that Detrich's attorney provided ineffective assistance during the penalty phase of trial.

9th Circuit Reversal #2:  The AP reports that the 9th Circuit today reversed the convictions of Kurt Williams Havelock, who mailed to various media outlets letters containing violent threats and describing his planned massacre at the 2008 Super Bowl.  Havelock also drove to the stadium on the day of the Super Bowl armed with an assault rifle, but turned himself in before firing any shots.  He was convicted in federal court of six counts of mailing threatening communications, but the 9th Circuit reversed because the letters were addressed (i.e., on the envelope) to corporations - not natural persons as required for a conviction under the statute.

CA Teen Sentenced to 159 Years for Crime Spree:  A Sacramento judge on Friday sentenced Sammie Lee Nichols to a term of 159 years to life for 18 felonies Nichols committed during his teen years, reports the AP.  At age 17, Nichols went on a year-long home invasion crime spree, entering female victims' homes and ordering them at gun point to withdraw money from an ATM.  He also raped two of his victims.  Post-Graham v. Florida, Nichols is not eligible for LWOP. 

"A Conservative is a Liberal Who Got Mugged the Night Before"?:   The Miami Herald (FL) reports Marleine Bastien was robbed at gunpoint while waiting in a church parking lot for a campaign event.  Bastien is a Democratic candidate currently campaigning for a seat in the House.

The Bad Parent Defense

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It seems that the single most popular way to argue against the death penalty today is to put the defendant's parents on trial. Usually, the target is someone who isn't around any more.  The only people with personal knowledge of what happened inside the family are the defendant's family, and they usually want to help him and not the prosecution, so there is pretty much a green light to exaggerate or just make things up. The most extreme example was the Menendez case, where the defendants themselves eliminated their parents as witnesses, so they could say anything they wanted. 

A federal death penalty case being tried in Michigan starts off standard but has a twist, according to this story by David Ashenfelter in the Detroit Free Press. In this case, the father is still around.

Defense lawyers in the Timothy O'Reilly federal death penalty case have portrayed his father as an ogre -- an uncaring, domineering brute who verbally abused his son and put him on a path that resulted in a fatal 2001 armored-car robbery in Dearborn.

But O'Reilly may not agree.

During a 20-minute phone call from the federal prison in Milan in January, O'Reilly told his father that defense attorneys were off base in pursuing the bad-parent defense.

"Who are they to tell you that?" O'Reilly, 37, told his 61-year-old father, Patrick O'Reilly, during a phone call monitored by prison staffers. "I mean, some stuff is irrelevant and it doesn't need to be in the courtroom anyway."

Later in the story, "Legal experts said the tape could hurt O'Reilly." What would we do without legal experts?

Anyhow, O'Reilly's statement that "some stuff is irrelevant" may go down in judicial history next to that of civilly committed sex offender Hendricks, quoted by the Supreme Court for the proposition that "treatment is bull____."

Some stuff is indeed irrelevant. The perpetrator knows more than the learned judges.  The sentence should be based on the circumstances of the crime and the perpetrator's criminal record or lack of one. Get rid of everything else, and capital litigation would be faster, cheaper, and fairer.

Why fairer?  Because the present "bad parent" defense depends more on the advocate's skill in weaving a sob story than on the actual, minimal weight of this mitigating evidence.

D-Day on SB 399

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Looks like today is the decision day on California Senator Leland Yee's latest attempt to prevent the families of persons murdered by 17-year-olds from ever resting completely sure that the perpetrator will not be released.  Sacramento TV station KCRA has this story.

Howler of the Day from the NYT

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After a six year investigation, the Justice Department decided last week that it had no prosecutable case against Tom DeLay, the Republican House Majority Leader from way back when.  On Saturday, the New York Times, ever a reliable voice for the convicted criminal (see, e.g., its crusade for lower sentences for crack dealers and its screeching opposition to the death penalty), took after the long-gone DeLay, reminding us in acid tones of the behavior Eric Holder's DOJ just found to be not criminal.

A suspicious person might whiff the aroma of double standards, or  --  dare I say it  --  partisanship.  The Times does manage to choke out that, "Others in Congress, including House Speaker Nancy Pelosi, have put family members on the payroll," but that is the last we hear of anyone currently in power.  The Times instead reminds us of, inter  alia, Mr. DeLay's all-expense-paid trip to Saipan  --  13 years ago.

Well gosh.  While we're at it, I wonder what Monica is doing these days. 

But I digress.  The howler in the Times editorial is this:  "[M]any of Mr. DeLay's actions remain legal only because lawmakers have chosen not to criminalize them."

No kidding!  The actions, even of the supposedly rancid Mr. DeLay, not to mention everybody else, are not illegal unless they're made illegal.  Wow.  You learn something new in the Times every day.  The editorial staff must all be Harvard Law graduates.  Maybe they got their degrees while Elena Kagan was Dean.

P.S.  What "lawmakers," exactly  --  currently holdiing a substantial majority  --  have "chosen not to criminalize" sleazy fundraising practices?  Might it be the ones raising dough like crazy in Hollywood and for whom the Times has been going goo-goo for the last three-plus years?

Voter ID

This poll from Rasmussen is only tangentially related to crime. (Voting fraud is a crime.) It is, though, a good example of how extremely out of touch academia and some elements in the judiciary are from regular folks. Among academics and judges, requiring voters to show some ID is a troubling and controversial practice. Not so for regular folks:

An overwhelming majority of Likely Voters in the United States think all voters in the country should be required to present photo identification in order to vote in U.S. elections.

A new Rasmussen Reports telephone survey of Likely Voters finds that just 14% disagree and think the current identification system is sufficient. Just 4% are undecided on the issue.

This is a sentiment that spans demographics, as majorities in every demographic agree that photo identification should be required to vote.

For the mathematically challenged, that's 82% in favor.

Cal. JLWOP Developments

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Marisa Lagos has this post on the SF Chron Politics Blog. As reported earlier, Senator Leland Yee has made some amendments to his SB 399 to create possibilities of parole for 16- and 17-year-old murderers sentenced to life without parole.  "The amendments were apparently aimed at garnering enough support for the bill, which is strongly opposed by some victims rights groups and prosecutors (including GOP Attorney General candidate Steve Cooley, the District Attorney for Los Angeles County)."

CJLF sent this letter to members of the Assembly today.  The psychological studies referred to in the letter are described in our brief in Graham v. Florida.

Daniel Horowitz of NOVJL has this letter to Assemblyman Lieu with this attachment describing Mario Vitale's statement at the sentencing of his mother's killer.

News Scan

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 Justice Kennedy's Take on Terrorist Trials:  At a recent Ninth Circuit Judicial Conference, U.S. Supreme Court Justice Anthony Kennedy disclosed his favor for trying terrorists in civilian rather than military courts, reports the AP.  Referring to terrorism as "one of the most crucial, dangerous and disturbing issues of our time," Kennedy nevertheless believes that "Article III courts are quite capable of trying these terrorist cases."

"Detroit 300" Seeks to Combat City's Rampant Crime:  Following the assaults of three elderly women last week in Detroit - including the rape of a 90-year-old woman - citizens fed up with the city's rampant crime rate have joined forces to patrol the streets.  The Detroit News has this story about the "Detroit 300," who drive through the streets in vehicles equipped with lights and cameras, interview people, and blast a bullhorn to let would-be criminals know that someone is watching.  Last year, Forbes Magazine declared Detroit to be the country's most dangerous city, with a rate of 1,220 violent crimes committed per 100,000 people.

Kentucky's Three-Drug Execution Method Re-Challenged:  In a Kentucky state court today, two death row inmates sought to reopen their previous constitutional challenge to Kentucky's three-drug execution method, reports the AP.  In 2008, SCOTUS rejected their claim that the three-drug method constituted cruel and unusual punishment.  (See CJLF's brief here.)  The inmates are seeking to revive their claim in light of Ohio's recent one-drug execution method, which the inmates claim is safer, but  wasn't available during the high court's review in 2008.  Kentucky Circuit Judge Phillip Shephard didn't immediately rule on the inmates' claim to reopen the case, but expressed some concern about the state's refusal to consider switching to one drug, even though the state allows both the one-drug and three-drug methods.

How many times have we been told that "prison will keep us as safe as the death penalty"?  The people who say this are well aware of (indeed they're obsessed with) the fact that the judicial system is fallible  --  but apparently oblivious to the fact that the penal system is also fallible.

Hence today's story of the capture and arrest of an escaped killer, from which I excerpt the following tidbits about prison security:


The prison has a badly defective alarm system, a perimeter post was unstaffed, an outside dormitory door had been propped open with a rock and the alarms went off so often that prison personnel often just ignored them, the report said. Also, operational practices often led to a gap of 15 minutes or longer during shift changes along the perimeter fence, Ryan said.

Prison staff told a review team that the dormitory door was left open because of the heavy amount of foot traffic. That open door allowed the three inmates to reach a 10-foot chain-linked fence that hadn't been topped with razor wire. They scaled that fence and hid out for a time behind a building in an area that isn't visible to staff from the yard.


While on the lam, the convict and an accomplice apparently killed two other people, Gary and Linda Haas of Tecumseh, Okla.

How easy it is for academics and defense lawyers to talk about the supposed safety of incarcerating killers when they full well know that it will be other people who wind up paying the price for their deceit.


Eric Felten has this article in the WSJ.

Beloit College in Wisconsin put out its annual "Mindset List" this week, a collection of pop-cultural tidbits meant to give professors a quick peek into their new students' knowledge base. It's a sort of academic parallel to the Steely Dan song "Hey, Nineteen," a lament that the young don't get the cultural references of even a decade past. Come to think of it, the class of 2014 probably has no idea who Steely Dan is.
Shouldn't that be "who Steely Dan are"?  Anyhow, Felten's main point is in the subheading: "Jokes aside, Beloit's arbiters may be the out-of-it ones."  One paragraph refers to a CJLF case:

Or maybe the widely cited list is just intellectually sloppy. Consider item 22, which asserts that, for those who have just turned 18, "Cross-burning has always been deemed protected speech." Actually, the Supreme Court ruled in 2003, in Virginia v. Black et al., that laws criminalizing the Ku-Kluxers' pernicious pyrotechnics can be perfectly constitutional. Justice Sandra Day O'Connor wrote in the court's majority opinion that states can "outlaw cross burnings done with the intent to intimidate."

The "et al." matters here. There were actually two cases.  Barry Black, the Klansman, burned a cross at a rally.  He was expressing his ideology in general terms, not directed to anyone in particular.  Despicable as it is, that was protected speech.  The other case involved a couple of punks named Elliott and O'Mara who burned a cross on a neighbor's lawn to intimidate him and his family. That is not protected speech, and their convictions were reinstated.  CJLF's brief, which addresses primarily the latter case, is here.

There really hasn't been any huge change in this area.  Black and R.A.V. v. St. Paul are reasonably consistent with prior First Amendment law.  They are clarifications rather than quantum leaps.  The free speech rights of hate-spewing bigots had been protected for a long time.  See, e.g., National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). So this is not a good example of a big shift in life experience between generations.

The Compassion Scam

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A year ago today, Scotland released a Libyan operative, Abdel Baset Al-Megrahi, the only person convicted in the Lockerbie airliner bombing.  This was done because the government didn't want to be, you know, "inhumane."  The convict, so we were told, was dying of cancer and had but three months to live.

Not exactly.  He's alive today, having a good 'ole time back home.  Lan' sakes alive!  With a straight face, AP reports:

EDINBURGH, Scotland (AP) -- Britain's government says it has warned Libya that any celebration of Friday's anniversary of the release from jail of the Lockerbie bomber would be deeply offensive to the families of the mainly U.S. victims of the attack.

Abdel Baset Al-Megrahi, the only person convicted in connection with the 1988 bombing of Pan Am Flight 103 above Lockerbie, Scotland, was ordered in 2001 to serve 27 years in jail, but freed on Aug. 20 of last year on compassionate grounds, as he is suffering from prostate cancer.  
Now that'll set 'em straight.  A national party occasioned by scamming a bunch of willing fools "would be deeply offensive," so those Libyans had really better not do it. Moral of story:  When the apologists for killers, abroad or at home, start yammering about "compassion," what they really aim to do is celebrate your stupidity.
California Senate Bill 399 by Senator Leland Yee is intended to create the possibility of parole for those very few 16- and 17-year-old murderers that the trial judge decides at sentencing should never be paroled. (Under current law, the judge always has the discretion to choose a 25-to-life sentence instead.)  The bill passed the Senate, but Yee apparently does not have the votes in the Assembly.  We have received reports that he intends to further amend to bill to scrape up the last few votes. 

No matter what amendments he puts in, the bill remains unnecessary.  Between the trial judge's discretion at sentencing and the governor's commutation power, current law has all the flexibility needed.

The  National Organization of Victims of Juvenile Lifers has this press release:

Sacramento - SB 399, which could free teen killers in California sentenced to life as adults because of the extraordinarily heinous nature of their crimes, is before the California Assembly currently.  Victims' families of these crimes and legal experts question the validity of some of the facts of the cases being used in support of SB 399 by Senator Leland Yee and other advocates, such as Human Rights Watch, that interviewed and published the offenders' versions of the cases which sometimes stood in direct contradiction to the facts proven in court.

NOVJL President and famed attorney Daniel Horowitz today said "The stories that Human Rights Watch uses are produced by the criminals or their supporters.  They are not documented with court files or in any other way.  One we know about in Oakland is fraudulent.  The legal stories are impossible in many cases as they describe procedures that do not exist or things that cannot happen in California's criminal justice system. The accounts are frightening because these lying, unremorseful killers are manipulating their way out of life sentences."

News Scan

Heated Debate in Blagojevich Jury Room:  Sarah Ostman and Rummana Hussain of the Chicago Sun-Times have this story about tensions in the jury room during former Governor Rod Blagojevich's trial.  The jury foreman stated that deliberations were contentious from the get-go.  Another juror explained that many of them were overwhelmed by the amount of evidence presented and frustrated by the government's seemingly-illogical presentation of the case.  The jurors focused their deliberations on the most serious charges - those related to the former governor's alleged attempt to sell Barack Obama's Senate seat - but ended deadlocked due to one holdout juror.  If the feds decide to retry the case, the jury foreman recommends that they focus more on these charges and simplify the rest.

Parole Board Denies Clemency for Ohio Death Row Inmate:  The Dayton Daily News (OH) reports that the state's parole board this morning unanimously rejected a clemency plea from Kevin Keith, who is scheduled for execution next month.  In 1994, Keith shot to death 24-year-old Marichell Chatman, her 4-year-old daughter, and her 39-year-old aunt.  Two other children were also wounded during the attack.  Chatman's brother was an undercover police informant, who had assisted police weeks earlier in a drug raid leading to Keith's arrest.  In his appeal for clemency, Keith, with support from several innocence projects, argued another suspect was the killer and that Keith had a strong alibi.  The board was not persuaded, claiming no evidence was presented to it that would alter the outcome of the trial.  Now, Keith's fate rests in the hands of Ohio Governor Ted Strickland, who has the final word on Keith's scheduled execution. 

Reversed Murder Convictions Coast-to-Coast:  A California appeals court yesterday reduced the second degree murder conviction of Seth Cravens to manslaughter, reports the San Diego Union Tribune.  In May 2007, Cravens and several other men dubbed the "Bird Rock Bandits" were involved in an altercation with victim Emery Kauanui Jr.  Cravens punched Kauanui once in the head, causing him fall on the pavement and suffer a fatal skull fracture.  The court reduced the conviction, finding the evidence did not support a finding of the requisite mental state for murder.  In Massachusetts, the state's high court ordered a new trial today for Eric Durand, convicted of first-degree murder in 2006, reports by the Boston Globe.  In 2003, Durand beat to death his girlfriend's 4-year-old son, throwing a toy shark at him as punishment and eventually delivering a fatal blow to the boy's stomach.  At trial, the medical examiner testifying as to the boy's autopsy report was not the medical examiner who had prepared it.  The court found this to be a violation of Durand's right to confrontation and reversed.

Satire Overtaken by Reality

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A good satirist needs to be one step more ridiculous than reality. The problem is that reality is a moving target. James Taranto writes in his WSJ newsletter Best of the Web:

We were only kidding last week when we headlined an item "Bring Back HUAC." The reference was to the House Committee on Un-American Activities, disbanded in 1975, and we were poking fun at the tendency of today's liberals to label anyone who disagrees with them "un-American." In the case of the Ground Zero mosque, that would mean the vast majority of Americans are un-American.

Speaker Nancy Pelosi, however, seems to have taken our little joke seriously. Politico reports that "Pelosi on Tuesday said she supports an investigation of groups opposing the building of a mosque near ground zero in New York":

News Scan

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Leniency for Juvenile Offenders in Proposed CA Bill:  The San Fransisco Chronicle has this story about SB399, a bill that would allow some juvenile offenders serving life sentences to petition a court for review of their case after ten years - and possibly receive a significant sentence reduction.  Supporters claim the bill is needed to account for the differences between juvenile and adult offenders.  Opponents argue the bill is unnecessary, as only the "worst of the worst" juvenile offenders are up for LWOP, especially in light of the recent SCOTUS decision Graham v. Florida.  SB399 has already been approved by the state Senate and is set to be taken up by the Assembly as early as this week.

Early Released Rapist Arrested for Murder:  The Journal Gazette (IN) reports on Tuesday's arrest of Edward Kinslow for the murder and rape of 46-year-old Darlene Day, who was found dead in her home in May from blunt force trauma.  In 2003, Kinslow was convicted in Indiana of rape and sentenced to 12 years.  He was released after serving slightly more than half his term, however, because Indiana prisoners receive one day of credit for each day served with good behavior.

Oklahoma City Bomber's Whole Grain-Deficient Diet:  The AP reports a judge dismissed a federal civil rights lawsuit filed by Oklahoma City bombing conspirator Terry Nichols, who claimed his prison diet constituted cruel and unusual punishment because it was insufficient in whole grains, fiber, and raw fruits.  Nichols also alleged that by keeping him from his preferred diet, prison officials violated his First Amendment right to freedom of religion.  U.S. District Judge Christine Arguello disagreed and tossed out the suit.

Justice Jim Johnson handily won reelection to the Washington Supreme Court yesterday. Justice Barbara Madsen was unopposed. Justice Richard Sanders received a plurality but not a majority and heads to a run-off against challenger Charlie Wiggins. Prior post here.

The Stolen Valor Act, Part 2

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Another court has upheld the constitutional right to lie, specifically to lie about being a war hero. The Ninth Circuit's opinion in United States v. Alvarez, No. 08-50345, is here. The majority opinion is by Judge Milan Smith; the dissent is by Judge Bybee. A previous post on a Colorado District Court opinion is here.

The Legalization Fraud

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We often hear that legalization of marijuana is not a first step toward legalizing everything, and that claims to the contrary are just so much fear mongering by Puritanical types who relish putting otherwise law abiding citizens in prison.  The truth, so we are told, is that marijuana legalizers understand that the harder drugs, such as heroin and cocaine, should remain prohibited.

Yes, well, as Emily Litella said on Saturday Night Live, "Never mind."

The London Telegraph has this story.

News Scan

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NH Judge Rejects Deal in Machete Murder Case:  The Nashua (NH) Telegraph reports that a New Hampshire judge yesterday rejected a plea deal reached between prosecutors and William Marks.  Last October, Marks and four other men broke into the home of 42-year-old Kimberly Cates and killed her with a machete.  The men also attacked Cates's 11-year-old daughter, leaving her with life-threatening injuries.  Marks agreed to plead guilty in exchange for reduced charges and a sentence of 30-60 years.  Judge Gillian Abramson rejected the deal, however, stating that it did not satisfy the goals of deterrence, rehabilitation, and separation from the community.

Last Minute Stay of Execution For Oklahoma Death Row Inmate:  A federal judge today issued a stay of execution until October 16th for Jeffrey David Matthews, scheduled for execution later today, reports the Oklahoman.  Matthews was convicted of killing his 77-year-old great-uncle and assaulting his great-uncle's wife during a burglary in 1994.  The stay was issued after Matthews joined in a lawsuit challenging the death penalty. The story does not state the basis of the stay or the suit, but it is apparently a lethal injection method challenge.

Blago Verdict In:  The Chicago Tribune reports a federal jury today convicted former Gov. Rod Blagojevich of lying to the FBI - only one of 24 counts charged against him.  The jury deadlocked on the remaining counts, forcing the judge to declare a mistrial.  The government has until August 26th to decide whether to retry Blagojevich, but one Assistant U.S. Attorney has already indicated that, "[i[t is absolutely our intent to retry this."  As the verdict stands now, Blogojevich faces up to five years in prison. Update: This AP story by Michael Tarm and Don Babwin reports that the jury vote was 11-1 for conviction on selling the Senate seat.

The Final Chapter of a Too-Long Story

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Tonight, Texas is scheduled to finally carry out justice in the case of the ringleader of one of the state's most notorious crimes. In 1993, two teenage girls, Jennifer Ertman and Elizabeth Pena, took a shortcut home and ran in to a violent street gang led by Peter Cantu. The facts are described in CJLF's brief in the first Medellin case in the Supreme Court here.  The victims' memorial web page is here.  CJLF filed two more briefs in Medellin's case: this one in the Texas Court of Criminal Appeals and this one in the U.S. Supreme Court in its second review of the case. In the last brief, we were pleased to represent Randy and Sandra Ertman as well.

Michael Graczyk of AP has this story on the case and Mr. Ertman.  He has previously attended the executions of Medellin and Derrick O'Brien, and he will be there tonight for Cantu's. Two other perpetrators escaped execution because they were 17 at the time of the crime. Some of Cantu's supporters claim it is unfair that he is executed while they were spared due to a small difference in age. That is an argument that Roper v. Simmons was wrongly decided and that it was unfair to let the others off from the punishment they so richly deserved; it is not a good argument we should let Cantu off as well. In any event, Cantu is distinguished by his leadership role in the crime as well as his age.

Update: Mission accomplished.


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The U.S. Supreme Court issued this orders list yesterday. Nothing of substantive interest. This order in Michigan v. Bryant, No. 09-150, a confrontation case, has some mild interest for Court-watchers:

The motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of Richard D. Friedman for leave to participate in oral argument as amicus curiae and for divided argument is denied. Justice Kagan took no part in the consideration or decision of these motions.
I believe that is the first time the words "Justice Kagan" have appeared in a Supreme Court order. The recusal is no surprise. The US amicus brief was filed May 6, while Ms. Kagan was still SG. So the Bryant case will be decided by an 8-Justice court. A 4-4 division would mean that the Michigan Supreme Court decision in favor of the defendant is affirmed, but no Supreme Court precedent is set.

News Scan

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Sentence Appealed for Cambodian War Crimes Convict:  The AP reports that prosecutors for the U.N.-backed genocide tribunal today filed an appeal seeking a longer sentence for Kaing Guek Eav (aka Duch), who was convicted of war crimes and crimes against humanity.  Duch served as the chief jailer of a prison during the 1975-79 communist Khmer Rouge regime in Cambodia, during which an estimated 1.7 million people died from execution, work conditions, and disease. Despite Duch's role in the genocide, he received a sentence of only 35 years - which, with time served, was reduced to 11 years.  In their appeal, prosecutors argued that the tribunal gave too much consideration to mitigating factors.

Source of Hair Strand Questioned in Executed Texan's Case:  Some advocates are calling into doubt the murder conviction of Claude Jones, a Texas death row inmate who was executed ten years ago, reports the AP.  In 1989, Jones - on parole after serving time for robbery and setting a fellow inmate on fire - shot 44-year-old Allen Hilzendager three times while robbing the man's liquor store.  Jones was convicted of murder and sentenced to death based on the testimony of two accomplices, eyewitness identification, and a strand of hair found in the liquor store, which an expert testified could have come from Jones but not the other men.  Jones's case was reviewed by seven state and federal courts, none of which reversed the judgment.  Now, based on requests from Jones's son and several innocence projects, a judge has ordered re-testing of the hair strand. The article notes that a DNA test result that shows the hair did not belong to Jones would not exonerate him.

Federal Judge Orders Release of Detainee: 
The AP reports that a federal district court judge has ordered the release of Adnan Farhan Abd Al Latif, who has been a Guantanamo Bay detainee for over 8 years.  Latif was suspected of receiving al-Qaida military training in Afghanistan, but the judge ruled that the government failed to show he was part of an al-Qaida force.

News Scan

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Alabama Inmate Executed:  The AP reports Michael Land, an inmate on Alabama's death row, was executed yesterday after his last minute appeal and clemency request were denied.  Land broke into the home of 30-year-old Candace Brown, shot her in the back of the head, and dumped her in the woods.  Brown's 2-year-old son was present at the time and was discovered by the police in the house alone the next day.

President Signs $600 Million Border Bill:  President Obama today signed a bill directing $600 million to border security efforts, including funds to hire 1000 more agents, purchase new surveillance equipment, and assist in prosecuting drug dealers and human traffickers, reports the AP.  While Republicans in Congress supported the bill, they maintain the bill falls short of what is required to effectively combat illegal immigration.

Life Sentence for 9-Time DWI-er:  ABC reports Bobby Stovall was arrested early last month in Texas after hitting a vehicle and testing a .32 blood alcohol concentration - four times the state's legal limit.  The sentencing judge imposed a life sentence after learning that this was Stovall's ninth drunk driving conviction.

Speech in the Mall

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This is somewhat off-topic, as no crime is involved, but it is interesting as a matter of constitutional law.

Generally, constitutional limitations only restrain government. We look to statutes and common law to restrain individuals. The only exception in the United States Constitution is the Thirteenth Amendment.

The California Supreme Court, however, held many years ago that the California Constitution's guarantee of free speech also applies to some privately owned premises open to the public, such as shopping malls, and the U.S. Supreme Court upheld the state's authority to make such a rule.  Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979), affirmed sub nom. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).

Given Pruneyard, would any competent lawyer advise a shopping mall client in California that it can make a rule that you cannot approach someone you do not know for the purpose of discussing something unrelated to mall business?  I certainly would not.  Soliciting on-the-spot payment or donation of money is different, as held in the various Hare Krishna cases, but just talking? Why did they think they could get away with that?

Well, they didn't. The Court of Appeal for the Third District struck down the Roseville Galleria's rules today in Snatchko v. Westfield LLC, C059985. The opinion is by Chief Justice nominee Tani Cantil-Sakauye.

Denny Walsh has this story in the Sacramento Bee.

More on Root Causes


Why is it a bad idea to tell criminals that they're mere vessels of adverse social forces and thus, in all fairness, entitled to understanding rather than punishment?

First, because it's false.  Second, because it retards the development of a sense of guilt, an important ingredient in changing behavior.  Below are the first three paragraphs of a piece in today's Wall Street Journal that makes the point:


Authorities in China recently made a surprising announcement: They want to see an end to public shaming of miscreants by the police.

It's a step in the right direction that shame is falling out of favor as an official punishment in China. Thankfully, here, too, it remains the exception rather than the rule. Most of us have little appetite for bringing back the town stocks, and "perp walks" can end up parading an innocent suspect. The ugliness of shame makes us want to avert our eyes wherever we find it.

Yet in rejecting the cruelty of public humiliation, it's important that we not make the mistake of tossing aside guilt as well. Despite the bad reputation it has acquired since perhaps Freud, few emotions are more socially productive or personally beneficial. Let's not hold it against guilt that many people can't distinguish it from its evil twin, shame.

Sovereign Immunity and Stolen Goods

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The grandson of a woman whose valuable painting was confiscated by the Nazis can sue an arm of the government of Spain to recover it, the Ninth Circuit en banc held today in Cassirer v. Spain. There is exception to the Foreign Sovereign Immunities Act for property taken in violation of international law when the instrumentality of the state involved is engaged in commercial activity in the U.S. The court held that the exception does not require that the violation have been committed by the same government that now has the property.

News Scan

Blagojevich Jury Deadlocked:  The Chicago Tribune reports that the jury in the case of former Governor Rod Blagojevich has reached a verdict for two counts but is deadlocked on the rest.  Blagojevich is on trial in federal court for 24 counts, ranging from rackteering to wire fraud.  The jury, today on their 12th day of deliberations, also told the judge they have not yet voted on the 11 wire fraud counts.  U.S. District Court Judge James Zagel instructed the jury to continue deliberations.

CA Death Row Inmate Dies of Natural Causes:  Robert Rubane Diaz, a former nurse sentenced to death in 1981 for killing 12 patients, died yesterday of natural causes reports the AP.  Diaz had been on California's death row since 1984.  51 California death row inmates have died from natural causes since the state reinstated capital punishment in 1978.  13 have been executed.

Arizona Supreme Court Overturns Death Sentence:  The Arizona Republic reports that the state's high court this week overturned the death sentence of Gary Snelling, who strangled 66-year-old Adele Curtis with a lamp cord in 1996.  Snelling was convicted of first-degree murder and in 2008, a jury decided on a sentence of death after finding that the murder was especially cruel.  The Arizona Supreme Court disagreed, concluding that it was unlikely Curtis suffered mental anguish or physical pain because Snelling strangled her quickly and by surprise.

Federal Death Penalty Sought in Ohio Fire:  Federal prosecutors are seeking the death penalty in their case against Antun Lewis, who is charged with setting a Cleveland house on fire resulting in the deaths of eight children and three adults, reports the AP.  Federal prosecutors argue that, because the damaged home was rented with the help of a federal Section 8 rent subsidy, the house was a part of interstate commerce.  The feds therefore have jurisdiction to seek the death penalty because the fatalities were caused by the alleged arson of government property.  Since the 1960s, only three federal defendants have been executed.

Building Out Cal's Death Row

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Don Thompson reports for AP:

Despite California's $19 billion budget deficit, Gov. Arnold Schwarzenegger's administration said Wednesday it will borrow nearly $65 million from the state's cash-strapped general fund to begin building a new 1,152-bed death row at San Quentin State Prison.

But of course we don't need a 1,152-bed death row. I took a sample of 50 cases out of the list of death row inmates, and only 6 had been there less than 6 years. If we properly processed the appeals, then, death row would be somewhere in the neighborhood of 1/8 of its present size, less than 100.

Assemblyman Jared Huffman, D-San Rafael, called it "stunningly hypocritical" that the governor is borrowing from the general fund at the same time he is attempting to furlough state employees three days each month to avoid a looming cash crisis....  He and Sen. Mark Leno, D-San Francisco, also criticized the projected cost overruns for a project that originally was expected to cost $220 million.

And what have you done, Messrs. Huffman & Leno, to get the needed reforms through the Legislature so we don't need the large death row?  Less than zero?

The Governor's record on capital punishment is mixed. I have no complaints about his Supreme Court appointments or his handling of clemency requests. When it comes to fixing the systemic problems, though, he has not shown the leadership that I expected when he stormed into office.

Officially a Travesty

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Doug Clark writes in the Greensboro, NC News-Record:

The misnamed Racial Justice Act has officially created a travesty, with 119 of North Carolina's 159 Death Row inmates filing discrimination claims. (Update, per Nancy's story Thursday: 135.)

Most of them might succeed. All they need is a little statistical manipulation to "prove" their claim.

Even white offenders, like Blanche Taylor Moore, have a case if their victims were white. As a recent study showed, murderers of white people are statistically three times more likely to receive the death penalty in North Carolina than are killers whose victims are of other races. Therefore, by the logic invested in the Racial Justice Act, Moore was sentenced under a racial disparity. She deserves to have her sentence commuted!

There might be an angle of this kind for everyone.

Reopening 119 old murder cases is going to gum up our already overloaded criminal-justice system -- which may have been the intent of the legislation approved last year by the legislature and signed -- with cheers -- by our governor. It will be easier just to move everyone off Death Row and give up future capital prosecutions.

When murderers can use state law to present themselves as victims of racial discrimination in virtually any case, capital punishment is over.

When Flaming Is a Crime

Freedom of speech is not unlimited. Threats directed to a a specific target can be a criminal offense.  See Virginia v. Black, 538 U.S. 343 (2003). CJLF brief here.

Some people just love to "flame" others on the Internet.  See this recent discussion of blog comments at SL&P.  A blogger named Hal Turner was very unhappy with a Seventh Circuit decision on the Second Amendment, even though the judges believed with substantial justification that they were duly following a Supreme Court precedent that only the high court itself could overrule. Of course, people do have the right to criticize court decisions until the cows come home. But Turner went further, reports Tom Hays for AP.

Authorities say he then went too far by writing: "Let me be the first to say this plainly: These judges must die. Their blood will replenish the tree of liberty."

[Circuit Judge William] Bauer testified that one of his clerks alerted him to the posting. He recalled being concerned over some of the supportive comments from readers.

"A great number of people thought it was a great idea," he said. "I didn't."
The case was moved to Brooklyn. There have already been two hung juries.

News Scan

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DNA Evidence Lost in More Than 200 Rape Cases:  According to a report by the Department of Justice, Office of the Inspector General, D.C. police have lost DNA samples from more than 200 unsolved rape cases reports the Washington Examiner.  D.C. is currently in the process of building its own DNA lab, which was supposed to be completed last June but is now not expected to open until 2010.  In the meantime, D.C. received a grant allowing them to use the FBI's lab in Quantico, VA for DNA testing.  The loss of the samples was discovered during a recent OIG review of the FBI lab.  A spokeswoman for the D.C. police chief casts doubt on the allegation.

DNA Match in California Cold Case:  The DNA of a convicted Iowa rapist has recently been linked to a 19-year-old unsolved murder case in Shasta County, California reports the Redding Record Searchlight.  In 1991, Despina Magioudis was beaten, strangled, and left in a field.  A semen sample on her body was linked to that of Brian Eric Norton, who was convicted of rape in Iowa in 2007 and was set to be paroled as early as 2012.  Prosecutors plan to initiate extradition proceedings to bring Norton to California, where he faces a possible death sentence if convicted.

ICE Assistant Secretary Visit a "Political Stunt":  As reported by the Washington Times, two Arizona sheriffs are calling a visit yesterday by ICE's Assistant Secretary John Morton a "political stunt" intended to deflect attention from the failed promises by the federal government to support the border states.  In July, the Obama administration pledged to send 1,200 National Guard troops by August 1st to the southern border to help prevent border crossings and to assist in criminal investigations.  Full deployments have not occurred, and a National Guard spokesperson recently stated that the troops would not be performing direct law enforcement efforts.  

The Immigration Debate From a Father's Perspective:  Fox News has this op-ed written by Ray Tranchant, whose 16-year-old daughter was killed three years ago in Virginia Beach when an illegal immigrant crashed into her car going 70 mph.  Virginia Beach has previously been accused of being a "sanctuary city."

Race and Root Causes

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Columbia Prof. John McWhorter has this review in the New Republic of Amy Wax's book, Race, Wrongs, and Remedies: Group Justice in the 21st Century.

The weakness--and sadness--of this fine book is that it has no prescription. Wax makes a series of arguments--stop focusing on the past, think about culture rather than structure, criticize failure and emulate success--but she does not tell us how to accomplish these goals. The task is certainly huge. The focus on culture that Wax champions would be one in which a black family would be deeply ashamed of the man with two "baby mamas" who works only "odd jobs" and largely gets by selling drugs. But the implacable present-day fact is that in his actually existing community today that man is considered less than ideal but still quite normal. Hence as Wax notes, Tavis Smiley could produce a whole volume called The Covenant With Black America, urging blacks to "hold leaders to account" and include a mere two lines about out-of-wedlock child-rearing. The black radical is considered, even if "a little crazy," as "having something to say." Many black church audiences are now eager to get an earful of Jeremiah Wright.
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Wax usefully asks: "Is it possible to pursue an arduous program of self-improvement while simultaneously thinking of oneself as a victim of grievous mistreatment and of one's shortcomings as a product of external forces?" To the extent that our ideology on race is more about studied radicalism than about a healthy brand of what Wax calls an internal locus of control, her book provokes, at least in this reader, a certain hopelessness. If she is right, then the bulk of today's discussion of black America is performance art. Tragically, and for the most part, she is right.

News Scan

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ICE Fingerprint Program  in 25 U.S. Border Counties:  The Department of Homeland Security announced today that "Secure Communities," the new border security initiative that seeks to identify illegal immigrants using fingerprints taken during arrests (see our previous News Scan post here), has been deployed to all 25 U.S. counties along the southwestern border.  The AP reports the program has already led to the deportation of 47,000 illegal immigrants.

Suspected Rapist Was on Probation at Time of Crime:  The Seattle Times reports that John Alan Carter was on probation when he choked, bound, and raped a 49-year-old women for several hours last month in Washington.  After ordering the victim to withdraw $400 from her bank account, Carter fled and is still on the loose.  Carter had been checking in with his probation officer as required, and had even received permission from the officer to house-sit the residence where he committed the attack and rape. 

9th Circuit Tosses Life Sentence:  The 9th Circuit today vacated the life sentence of Adan Pineda-Doval, who was convicted in 2008 of ten counts of transporting illegal immigrants causing death as reported by the AP.  In 2006, Pineda-Doval crashed a vehicle carrying 20 illegal immigrants outside Yuma, Arizona, killing ten of the passengers.  The 9th Circuit sent the case back for re-sentencing, finding that the lower court failed to specifically find that Pineda-Doval acted with malice at the time of the crash and did not apply the correct standard of proof at sentencing. 

Another Ohio Execution

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Ohio continues its roll as the only non-southern state with something approaching an effective death penalty. James Nash reports for the Columbus Dispatch:

A Warren man who admitted that he "flipped out" and murdered two former coworkers and tried to kill a third in 1991 was put to death this morning.

Roderick Davie, 38, was declared dead at 10:31 a.m. after receiving a lethal dose of thiopental sodium at the Southern Ohio Correctional Facility. There were no complications, prison officials said.

I say "approaching" because 19 years in a case with no doubt of identity of the perpetrator is way too long.  Virginia remains the leader in showing how capital cases can be properly reviewed in the 5-6 year time frame.

The Dispatch also has this page with a database of Ohio's death row.

Garden Variety Javelinas

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Here is something we could use more of, a thoughtful and balanced op-ed on the Arizona illegal immigration law. This one is by Alan Dean Foster in the NYT. He finds support for the law where people who get their ideas about Arizona from watching the national television news coverage would not expect it:

Luis emigrated from southern Mexico 16 years ago. He now runs a car maintenance business where I bring my old Aurora every few months. To say that he and many immigrants like him are strongly in favor of Arizona's new immigration law . . . is like saying one or two New Yorkers dislike the Red Sox.

News Scan

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Big DNA Backlog at FBI:  A report by the Justice Department's Inspector General found that the FBI has 3,200 backlogged DNA samples waiting for analysis.  A story by CBS News reports that the backlog could have major consequences for law enforcement and counterterrorism investigations.  According the report it would take two years to clear the backlog, even if no new cases were added. 

ICE Can't Afford to Track Illegals:  A story by Jerry Seper of the Washington Times reports that, according to Assistant Secretary John Morton, who heads U.S. Immigration and Customs Enforcement, the agency only has the resources to remove about 4% of the nation's currently estimated illegal alien population.  New guidelines outlined in a recent memo by Morton note that the lack of resources will require the agency to focus on apprehension and removal of aliens who "pose a threat to national security and/or public safety, such as criminals and terrorists."   One unidentified ICE official said that the agency would only be pursuing high-profile drug and terrorism cases that involved the seizure of assets, and no longer would process illegal immigrants otherwise detained.  Responding to Morton's guidelines, House Judiciary Committee member Ted Poe (R) Texas, said "The message to those not yet in the United States is that they will get a free pass once they gain entry." 

Death Sentences Affirmed For Murderers Caught During Traffic Stop:  The San Francisco Chronicle reports that the California Supreme Court recently upheld in a 6-1 vote the death sentences of Richard Letner and Christopher Tobin. The two murderers were initially stopped by police in 1988, a stop the trial court found supported by "reasonable suspicion." Among other things, they were going 40 mph on the highway.  Police let the men go after a brief search of the car revealed nothing suspicious, but the next day, a further search of the car linked Letner and Tobin to the murder of a 59-year-old woman, whom the men robbed, beat, and stabbed to death.  The two unsuccessfully appealed to the California Supreme Court that their convictions should be overturned based on the illegality of the traffic stop.  Two of the justices agreed that the stop was illegal, but found that almost all of the incriminating evidence came from independent sources.  The other four justices in the majority rejected this argument, finding the circumstances were suspicious enough to permit the stop. Justice Kennard dissented.  Letner's and Tobin's attorneys claim they will seek SCOTUS review.

Habeas and the Non-B____

As one who specializes in the law of habeas corpus, I thought I had heard every use, misuse, and abuse of the Great Writ. Nope. AP reports from Madison, Wisconsin:

A candidate for the Wisconsin Legislature who wants to use an expletive and a racially charged phrase to describe herself on the ballot has lost an appeal of a federal judge's order dismissing her lawsuit.
Ieshuh (eye-EE'-shu) Griffin appealed U.S. District Judge Rudolph Randa's decision rejecting her lawsuit on Thursday. She wants to describe herself on the ballot as "NOT the 'whiteman's b----."

The judge on Friday dismissed her appeal, saying no matter how creatively she argues the issue, she can't file her lawsuit as a habeas corpus action. Randa says those are reserved for people in custody, which Griffin is not.

Griffin said Monday she will attempt to appeal the order directly to the U.S. Supreme Court.
Not quite sure what this story means when it says she appealed the district judge's decision on Thursday and the judge (the same judge?) dismissed the appeal on Friday.  That doesn't make much sense.  In any case, Ms. Griffin can't appeal a district court's denial of a habeas corpus petition directly to the U.S. Supreme Court, because that court has no jurisdiction to hear such an appeal. She can file a writ petition there, but it will be denied.

Reaction on My Kagan Post

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Scott Greenfield at Simple Justice has this reaction to my earlier post on Justice Kagan.  Greenfield is so over the top it is rather amusing.  I will point out a couple of inaccurate implications, though.

Greenfield characterizes my post as "castigating Elena Kagan," but I did no such thing. I expressed a concern and a hope that the concern will prove unfounded. That is a long way from castigating.

Regarding my comparison of Justice Sotomayor's background, Greenfield says, "Suddenly, Justice Sotomayor is looking pretty good compared to the pointy-headed Kagan?  Who knew that she was going from zero to hero in the eyes of those who look for 'a positive force'."

Suddenly? "Hero" is hyperbole, of course, but the implication that I have recently and suddenly changed my view on Justice Sotomayor (i.e., better than I expected from this administration) is just wrong.  The fact (easily discovered if one bothers to check) is that I wrote a positive review of Sotomayor's habeas opinions while her nomination was pending. (I didn't do the same for Kagan for the simple and obvious reason that there aren't any to review. That is part of my concern.)

I apparently touched a nerve by using the word "evil." Good. I'll try to use it more often.

I won't respond to everything in the post, but there is one more line worth mentioning. Greenfield refers to the defense side as "those of us disinclined to believe that every defendant deserves the death penalty . . . ." Um, that description would also include me.  It would also include every prosecutor and every victims' advocate I know.

Jerry Brown and Rose Bird

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Scott Herhold has this column in the San Jose Mercury-News:

When Meg Whitman recently attacked Jerry Brown for his appointment of Rose Bird as California's chief justice 33 years ago, some pundits dismissed it as a tired story.

Politically, they're probably right. But even Brown loyalists have conceded that the Bird appointment was a huge blunder. It's one the judiciary is still paying for.

Nearly 11 years after her death from cancer, it's impossible to mention Bird without encountering arguments that she was a symbol in the drive for women's equality -- a brave fighter for justice who was hounded from office.

Yet she failed for reasons other than sexism. To serve her principles, she was intellectually dishonest and insensitive to politics, an ideologue who betrayed contempt for the judicial structure. And Brown was amply warned of her shortcomings.

Brown's legal affairs secretary, J. Anthony Kline, conceded in a 1991 oral history that "in retrospect, the appointment of Rose Bird as chief justice was probably the biggest mistake that Jerry Brown made as governor.''

In 64 out of 64 cases, Bird voted against the death penalty. No matter what you think of capital punishment -- and I'm against it -- it beggars belief to think each of those carefully litigated cases was unfounded.

Language is used to express thought, but sometimes the terms we use get in the way of proper analysis of the situation. One situation so impaired is discussion of "the homeless." Use of a single term for everyone without a permanent residence tends to obscure the fact that different people are in that situation for very different reasons, and different causes call for different solutions.  There are at least three subgroups, sometimes called the "have nots," the "cannots," and the "will nots."

C.W. Nevius has this sad story in the SF Chron on one of the "cannots." For this subgroup, homelessness is just one facet of what is fundamentally a mental health issue.

CSI: Deepwater

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Jeffrey Collins reports for AP:

Now that BP appears to have vanquished its ruptured well, authorities are turning their attention to gathering evidence from what could amount to a crime scene at the bottom of the sea.
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BP and Transocean - which could face heavy penalties if found to be at fault - have said they will raise some of the wreckage if it can be done without doing more damage to the oil well. That would give the two companies responsibility for gathering up the very evidence that could be used against them.

But the federal government has said it simply doesn't have the know-how and the deep-sea equipment that the drilling industry has. And it said the operation will be closely supervised by the Coast Guard.

A criminal defendant has a constitutional right not to be compelled to be a witness against himself, but there is no privilege to withhold or conceal preexisting evidence. In some cases, there is an issue whether the act of producing the evidence is itself testimonial and hence privileged. See United States v. Hubbell, 530 U.S. 27 (2000). That doesn't look like a big issue here.

Liu Nomination Sent Back

David Savage reports in the LA Times:

Two of President Obama's choices for the federal bench in California have been dealt a setback, as the Senate adjourned for a month and sent back to the White House the nominations of UC Berkeley law professor Goodwin Liu and San Francisco Magistrate Edward M. Chen.

Liu and Chen face solid Republican opposition, and their chances of being confirmed now look to be in doubt.

This is very good news. As we have discussed before on this blog, Liu's paper attacking Samuel Alito on his death penalty record establishes that Liu would resolve virtually every debatable question in favor of the murderer.  He would be a bad appointment to any federal court, but to add him to the Ninth Circuit -- already the most hostile to justice of any federal court in the country -- would be a disaster.

Penry, Again

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Over two decades after it was rendered, the Supreme Court's ill-advised decision in Penry v. Lynaugh, 492 U.S. 302 (1989) continues to plague Texas. In the Rivers case noted in today's News Scan, the "inadequate" jury instructions in a 1988 trial tracked the statute that the Supreme Court had reviewed and upheld 12 years earlier in Jurek v. Texas.  The problem here is not trial court error, but the Supreme Court's inability to agree with itself from one year to the next what the Constitution requires and what it forbids.

The Fifth Circuit also maintains that Penry error is not subject to harmless error analysis. I will have to look at that issue more closely.

"Mosaic Theory" of Searches

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Can a series of surveillance steps by government agents, none of which is a "search" by itself, add up to a search? In this post at VC, Orin Kerr skeptically reviews today's D.C. Circuit decision in United States v. Maynard.

News Scan

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Oakland Gang Sweep:  Police in Oakland and surrounding cities arrested a total of 48 parole and probation violators yesterday in "Operation Gangbusters," reports the Oakland Tribune.  Police also picked up guns, machetes, and over $75,000 in marijuana plants.  The sweep was made easier, in part, due to California's new program requiring some parolees to wear GPS devices so that parole agents can monitor their whereabouts.  (See the San Francisco Chronicle's story about the new GPS monitoring here.) 

New Trial For TX Death Row Inmate:  The AP reports the 5th Circuit Court of Appeals upheld a lower court decision ordering a new sentencing trial for Warren Darrell Rivers based on inadequate jury instructions.  In 1987, Rivers lured an 11-year-old boy to an abandoned house where he beat, sexually abused, and stabbed the boy to death.  Fortunately, the Fifth Circuit rejected Rivers's argument to overturn his conviction based on racially-charged peremptory strikes, although his attorneys might seek further review from SCOTUS. See also Kent's post on this case.

Suppressed Evidence in Canadian Serial Killer Trial:  The Vancouver Sun has this story about the trial of serial killer Robert (Willie) Pickton, who is strongly suspected of killing and dismembering 26 women on his Canadian farm.  (Recommendation - if you chose to read this article, do so on an empty stomach.)  A slew of DNA evidence linking Pickton to the dead women was excluded from his trial for six of the murders, based on a plan to hold a second trial for the remaining 20.  However, after a ruling from the Supreme Court of Canada, those remaining charges have been stayed.  Based on the limited evidence that the court allowed at trial, the jury acquitted him of first-degree murder and instead convicted him of the lesser charge of second-degree murder.

Ginsburg Staying

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Mark Sherman of AP has this article on his interview with Justice Ruth Bader Ginsburg, now the oldest Justice on the high court. "Although some have speculated she might step down next year, the 77-year-old Ginsburg told The Associated Press on Tuesday she has no plans to retire anytime soon and still wants to match Justice Louis Brandeis, who stepped down at age 82."

Justice Scalia, 74, appears to be in good health and spirits. In addition, I believe he cares too much about the real Constitution to risk a third chance that President Obama might name someone of the "Constitution requires what I think is good policy" school.

So, the Court we have as of Saturday is probably the Court we will have for the remainder of this presidential term.

Tony Mauro has this post at BLT.

More on the Lockerbie Release

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Paul Sonne reports in the WSJ:

Scotland released the convicted Lockerbie bomber from prison in August 2009 on the grounds he likely had three months to live, even though there was no consensus among specialists treating his prostate cancer that his prognosis was so dire, according to publicly available documents and people familiar with the case.
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While there was no question that Mr. Megrahi's cancer was terminal, there is no evidence that any of his specialists--two urologists and two oncologists--gave or signed off on a three-month prognosis, a review of the records and interviews with people familiar with the case indicate. According to people familiar with the matter, neither of the urologists offered any prognosis or was asked for one.
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Families of Lockerbie victims have long been suspicious of the three-month prognosis, which has received little scrutiny against the backdrop of the BP allegations.

"It was a scam," said Eileen Walsh of Glen Rock, N.J., in an interview Thursday. Her father, brother and pregnant sister died on Pan Am 103. "The man may have cancer, but the condition and the extent of it were greatly exaggerated." She added: "Release his medical records and prove me wrong."

Justice Kagan Confirmed

As expected, the Senate today confirmed Elena Kagan as the 112th Justice of the U.S. Supreme Court. The vote was 63-37.  Paul Kane has this story in the WaPo.

I do not expect anyone nominated by the present administration to be a positive force in criminal law, but I am more concerned about Justice Kagan than Justice Sotomayor. The latter's experience as a deputy district attorney and trial judge assured us that she had looked evil in the face and knew how bad violent criminals really are. A career spent in the ivory tower provides no such assurance. It is too easy to be blase about crime and wring your hands over the poor, unfortunate torturer-rapist-murderer when you only read the facts in a transcript or opinion and then go home to your safe, leafy neighborhood.

I hope these apprehensions prove unfounded. We will see.

News Scan

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14 People Charged For Supporting Somalian Terrorist Group:  As reported by the AP, the feds charged 14 people today in Minnesota, California, and Alabama for supporting Al-Shabab - a Somalian terrorist group that practices a radical form of Islam similar to that practice by the Taliban.  One of the indictments alleges that several of the female defendants went door to door in U.S. communities raising money for charities, but sending the funds to Al-Shabab efforts.  Al-Shabab members assert allegiance to al-Qaida and have claimed responsibility for two recent bombings in Uganda that killed 76 people.

"Billy the Kid" Feud Lives On:  Rumors that New Mexico governor Bill Richardson is considering a pardon for legendary "Billy the Kid" are concerning descendants of Pat Garrett - the sheriff who supposedly shot the outlaw in 1881, reports the AP.  Garrett's grandchildren and great-grandchildren voiced their objections yesterday to Gov. Richardson, arguing that a pardon would glorify Billy the Kid while casting doubt on Garrett's honor.  Gov. Richardson is allegedly considering the pardon based on a unfulfilled promise of pardon by Territorial Gov. Lew Wallace in return for Billy the Kid's testimony about killings at the Lincoln County War.

Civil Liberties Groups Sue Treasury Dept. to Represent Wanted Terrorist:   The Washington Post reports that the Center for Constitutional Rights and the ACLU sued the Treasury Department and the Office of Foreign Assets Control this week, in an attempt to continue representing Anwar al-Aulaqi, a U.S. citizen who has been named a "specially designated global terrorist" and whom the CIA is authorized to kill.  As a result of this designation, U.S. entities are prohibited from transacting with him without first receiving a license from the OFAC.  The civil liberties groups claim that preventing attorneys from providing al-Aulaqui with free legal services absent a license is a violation of several constitutional guarantees, but OFAC counters that the Treasury Department has in place a general license that authorizes pro bono representation for persons such as al-Aulaqi.  al-Aulaqi is believed to have direct links to Maj. Nidal M. Hasan (the perpetrator of the killings at Ford Hood) and the failed Christmas day bombing of a plane bound for Detroit.

CA Supreme Court Chief Justice Nominee Well-Liked By All:  The Sacramento Bee has this story about Tani Cantil-Sakauye, who is expected to be confirmed as the new CA Supreme Court Chief Justice on August 25th.  She currently serves as a justice on the California Court of Appeal, Third Appellate District.  Prior to her appointment to the bench, Cantil-Sakauye worked for the Sacramento District Attorney and fomer CA Gov. George Deukmejian.   

Misrepresentation on Juvenile LWOP

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California State Senator Leland Yee has long been on a crusade to exempt from life-without-parole all murderers short of their 18th birthday at the time of crime, even if only a day and regardless of how heinous or numerous their crimes. Now he is resorting to outright misrepresentation to achieve this goal.

Yesterday, the Sacramento Bee had this story by Kim Minugh on Sacto DA Jan Scully's opposition to Yee's bill, SB 399, which is up for a vote in the Assembly.

To underscore her point, Scully cited two recent cases in which juvenile offenders were tried as adults and convicted of first-degree murder: Jimmy Siackasorn, who was 16 when he fatally shot Sacramento County Sheriff's Detective Vu Nguyen; and Frank Abella, who, with another suspect, robbed, tortured and fatally shot disabled William Deer just shy of Abella's 18th birthday.

Yee reacts in a separate story:

"Ms. Scully is misinformed on this issue and her remarks are misguided," said Yee. "The individuals she references will never be released under this bill, and she should know that. The public and the families of victims deserve better than fear-mongering from their elected district attorney.

"She fails to recognize that children have a greater capacity for rehabilitation than adults and that some kids deserve a second chance," Yee said.

Yee's unequivocal statement that they will never be released is a falsehood. He does not and cannot know that to a certainty. They would eligible for consideration for release under his bill, and we know very well that courts sometimes order release for persons eligible even when the parole board denies parole.

Yee's implication that the victims' families are on his side has enraged the National Organization of Victims of Juvenile Lifers.  Their press release is here.

And once more, with feeling, 16- and 17-year-olds are not children.

Heritage Foundation's excellent report on this issue is here.

Armstrong Williams Show

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I am scheduled to be on the Armstrong Williams radio show tomorrow at 4:30 ET, discussing the death penalty. If you are not near a radio station that carries the show, it can be heard via his website.

News Scan

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Canadian Judge Denies U.S. Extradition Request for Suspected Terrorist:  The AP reports a Canadian judge today released Abdullah Khadr, a man suspected of purchasing weapons for al-Qaida and conspiring to kill Americans abroad.  Khadr has been held in Canada on a U.S. warrant since 2005, but the judge today denied the U.S.'s extradition request finding Khadr's self-incriminating statement to U.S. agents was "manifestly unreasonable."

Justice Ginsberg Vows to Stay on Court at Least Until 2012:  Amidst rumors of retirement next year, Justice Ginsberg told the AP she was delighted at the prospect of being one of three female SCOTUS justices (contingent on Kagen's appointment) and that she didn't plan on stepping down for at least another five years.  Last year, Ginsberg's diagnosis of cancer and the death of her husband caused many to think her days on the court were winding down, which she denies.  If Ginsberg remains on the court for at least another year or so, President Obama's last chance to get a nominee through the Senate before the 2012 presidential election will be defeated.

DNA Samples of Arrestees:   Dan Hinkel of the Chicago Tribune has this article on the growing controversy about some states' laws requiring DNA samples from all persons arrested.  23 states currently impose such a requirement, while others require samples only from those actually convicted of a crime.  Some civil liberties advocates oppose the procedure, summing it up as a "Big Brother" tactic.  Supporters argue, however, that for those who haven't committed a crime - i.e. those who don't have a DNA sample sitting in a cold case file somewhere - collection of a sample upon arrest would have no consequences.  Bringing light to this debate, Illinois prosecutors today dropped murder charges against Jerry Hobbs, who has been behind bars for five years for the stabbing deaths of his daughters.  Fortunately for Hobbs, Virginia is one of the 23 states requiring DNA samples from arrestees, and a man arrested earlier this year in the state was a match to sample taken from the crime scene of Hobb's daughters.  If the new suspect had been arrested in Illinois however, a DNA sample would not have been mandated unless a conviction were obtained.

Flurry of Racial Bias Claims From NC Death Row:   The Charlotte Observer reports that the first five cases under the state's 2009 Racial Justice Act have been filed by North Carolina death row inmates.  Under the Act, a capital defendant has an opportunity to prove to a judge that race was a basis in the state's decision to seek the death penalty, and the defendant may rely on county- or state-wide statistics regarding racial disparities in use of the death penalty and peremptory challenges.  If a defendant succeeds, the court can order that a death sentence not be imposed, or vacate the sentence and order the defendant be resentenced to LWOP.  NC's 159 death row inmates have until August 10th to file their claims under the Act.  Kentucky has a similar law.    
The title of the post is the headline of this story by Christopher Hope in the London Telegraph.

England and Wales has one of the worst crime rates among developed nations for rapes, burglaries and robberies, a major report has found.
However, offenders are locked up for shorter periods than in comparable countries - raising questions about claims made by Ken Clarke, the Justice Secretary, that too many criminals were being jailed.
On Friday, California's Office of Administrative Law finally approved the revised lethal injection protocol. Notice and final regs are here.  As expected, an attorney for a murderer immediately filed a lawsuit. Mitchell Sims' suit in Marin County (home of the Big Q) Superior Court "say[s] the state didn't follow the rules while gaining its newfound approval," reports Scott Smith in the Stockton Record. Carol Williams has this story in the LA Times.  Of course, OAL has determined that CDCR did follow the rules.

News Scan

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VA Attorney General Follows AZ's Lead:   The Washington Post has this story about VA Attorney General Ken Cuccinelli II's legal opinion issued yesterday regarding the authority of VA police to question a person's immigration status during a stop or arrest.  Cuccinelli's opinion states that consistent with U.S. Supreme Court law, police may inquire into a person's immigration status during a lawful stop so long as the questions do not significantly extend the duration of the stop.  (Note that under the Arizona law, police are required to make these inquiries.)  The opinion further concludes that VA police are permitted to make arrests for criminal violations of federal law, but probably not civil violations (e.g., overstaying a visa).

Illegal Immigrant Involved in Deadly DUI Was Awaiting Deportation:  The Washington Times reports that the man who crashed into the car of three Virginia nuns on Sunday morning, killing one and critically injuring the other two, is an illegal immigrant with two prior DUI's.  Carlos Montano was previously reported to federal authorities following one of his arrests and deportation proceedings were initiated.  Prior to the deadly crash, Montano had been released on his own recognizance.  The incident is fueling criticism of Homeland Security's policy of focusing most of its efforts on illegal immigrants in the U.S. suspected of terrorism and violent crime while allowing "virtual amnesty" of other deportable illegals.

Long Stays on NV Death Row:  The Reno Gazette Journal has this article about the extended appeals process in Nevada capital cases, which has resulted in an average time gap of 17 years between sentencing and execution.  Much of the delay is caused by ineffective assistance of counsel claims, the majority of which are dismissed.

27th Annual National Night Out:  Tonight is National Night Out - an event sponsored by the National Association of Town Watch to, in part, raise crime prevention awareness and strengthen support for local anti-crime efforts.  Last year, 15,000 communities from all 50 states participated.
Today, President Obama signed the Fair Sentencing Act of 2010. This act raises the amount of crack cocaine needed for various sentencing levels, reducing the crack/powder ratio to about 18.  In 1986, the Reagan Administration proposed a ratio of 20. In Congress, then-Senator Biden and others boosted the ratio to 100.  See 153 Cong. Rec. S8614, col. 2 (daily ed. June 27, 2007) (statement of Senator Biden). So, as of today, we are essentially back to the Reagan Administration proposal.

Washington Supreme Court Election

Washington has elections for its state supreme court with named opponents rather than yes/no confirmations. It's not the optimum system, in my opinion, but it is better than life tenure. The Seattle Post Intelligencer has this blog post on a recent debate. The post notes that incumbent Justice Jim Johnson came off well.

A fellow incumbent, Justice Richard Sanders, fared less well when faced off against challenger Charlie Wiggins, a Bainbridge attorney who briefly served on the Washington State Court of Appeals.

Sanders appeared righteous, rigid and prickly. Wiggins smoothly made his point that the Supremes need a new voice.

Wiggins argued that the outspoken Sanders has not shown a judicial temperament, and his opinions reflect "not a pattern of impartially" but rather advocacy.

In criminal cases where the Supreme Court has issued divided opinions, Sanders has backed the defendant 94 percent of the time. In cases on disciplining lawyers, when the Court has been divided, he has favored the lawyer against recommended discipline 90 percent of the time.

They also got into the bizarre incident at the November 2008 Federalist Society convention.

Slim Pickins

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Although fast food joints regularly super-size their offerings, the same is apparently not true of the cash drawers, to the dismay of robbers. Larry Hartstein reports in the Atlanta Journal-Constitution:

A man who robbed a Wendy's at gunpoint Saturday night apparently was so upset with his haul that he twice called the restaurant to complain, Atlanta police said.
"Next time there better be more than $586," he said during one call. He made "a similar threat" in the second call, police said.

Trial for Maxine Waters

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Brody Mullins reports in the WSJ:

House ethics investigators Monday formally said they will hold a public trial to determine if Rep. Maxine Waters violated congressional rules by helping steer federal funds to a bank in which her husband owned stock.

Ms. Waters said she welcomed a trial before the ethics committee as an opportunity to prove she did nothing improper.

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A report released today by ethics investigators shows that the probe centers on Ms. Waters' help in steering $12 million in federal funding to a Boston-based bank in which her husband had a financial interest.

Reading Minds

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Now this is spooky. Researchers at Northwestern University were able to confirm suspected details of mock terrorism plans by reading the brain waves of volunteers. The accuracy in this part of the study was 100%. NWU press release is here. Another part of the study involved finding plans without prior knowledge.

The most intriguing part of the study in terms of real-word implications, Rosenfeld said, is that even when the researchers had no advance details about mock terrorism plans, the technology was still accurate in identifying critical concealed information.

"Without any prior knowledge of the planned crime in our mock terrorism scenarios, we were able to identify 10 out of 12 terrorists and, among them, 20 out of 30 crime- related details," Rosenfeld said. "The test was 83 percent accurate in predicting concealed knowledge, suggesting that our complex protocol could identify future terrorist activity."

Development of a lie detector that actually works would have profound implications for criminal justice. While we could not force a person to take the test without repealing the Self-Incrimination Clause, the fact that any innocent person who is wrongly accused would be able to simply and immediately clear himself would virtually eliminate the possibility of wrongful convictions. It might well be time to reconsider the rule of Griffin v. California, 380 U.S. 609 (1965). If you can clear yourself by taking the test and choose not to take it, shouldn't the fact-finder be able to draw the obvious inference?  Even if we can't instruct the juries to that effect, don't we all know they will anyway once the availability of the test is common knowledge?

News Scan

VA Inmate Who Previously Asked For Death Penalty Kills Again:  The AP reports that Robert Gleason Jr., an inmate currently serving a life sentence for murder, has been linked to his second prison killing.  In 2009, Gleason beat and strangled his 63-year-old cellmate, afterward admitting, "I murdered that man cold-bloodedly.  I planned it, and I'm gonna do it again... The only way to stop me is to put me on death row."  Gleason was recently involved in another murder - this time, of a 26-year-old inmate who was found strangled in the recreation yard.  Gleason is set to be sentenced on August 31 for the 2009 murder, and prosecutors are waiting until after the sentencing to determine whether to charge him for his most recent killing.

Like Father, Like Son:  Natasha Singer of the NY Times reports that LA police's recent capture suspect Lonnie David Franklin Jr. in the "Grim Sleeper" serial killer case through the use of  "familial searching" is bringing exposure to the new - and controversial - genetic analysis procedure.  The procedure runs a crime-scene DNA sample against a search of nonsuspect DNA profiles whose profiles are at least partial matches.  If the profiles are similar enough, the nonsuspect might be related to the source of the crime-scene DNA sample.  The technique has been used in Britain for years, but in only a few U.S. states.  In Franklin's case, investigator's identified him from a partial match of a crime scene sample to a sample of Frankin's son, who was recently convicted of a felony weapons charge.

Tribal Law and Order Acts Gives Native American Police More Bite:  Last week, President Obama signed the Tribal Law and Order Act, which provides tribal law enforcement more power to fight crime on reservations reports the AP.  The Act grants tribal police the authority to enforce federal law, permits tribal courts to impose longer sentences for convicted offenders (tribal courts have up until now been limited to one-year sentences), and requires increased cooperation between tribal criminal justice systems the federal government.  Currently, the violent crime rates on reservations is between twice and twenty times the national average, and 34% of Native American women will be raped during their lifetime.  A summary of the Act can be viewed here.

Child Molester Could Go Free:  The Baltimore Sun reports that a federal judge's ruling could give convicted child molester John Joseph Merzbacher his ticket to freedom.   In 1994, Merzbacher was charged with 100 counts of sexual assault that occurred while he was a middle school teacher in Baltimore in the 70's.  The state ultimately dropped most of the cases after he was convicted of six counts of rape and sexual abuse of a preteen girl, whom he raped while holding a gun to her head and assaulting her with a pipe.  The federal court has ordered the case back to the Maryland courts so Merzbacher can be offered a 10-year plea bargain, which he claims he was offered before his original trial but never properly advised about by his trial attorneys.

Declining Commutations

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Is the small number of commutations in capital cases these days, relative to days of yore, the result of an anti-mercy political pressure on governors, as the anti-DP crowd would have us believe? Or is it simply because there is less need for commutation in the modern system?

From the NCJRS weekly accessions list: James R. Acker, Talia Harmon, and Craig Rivera, Merciful Justice: Lessons From 50 Years of New York Death Penalty Commutations, Criminal Justice Review  Volume:35  Issue:2  Dated:June 2010  Pages:183 to 199.

Abstract follows the jump.

A Century Addressing Root Causes

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Main-BoyScout.pngFor a century now, the Boy Scouts of America has been one of the very few organizations that effectively addresses the true root cause of crime -- lack of a sense of duty and personal responsibility. The WSJ has this editorial on the centennial, the attacks on the Scouts, and the curious fact that President Obama can't find time to address the Jamboree. 

Pruning Miranda

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Jesse Holland has this story for AP on the Supreme Court's pruning back of Miranda this term. The opening paragraphs exaggerate the extent of the changes, though. The opening sentence confuses the right to remain silent with the Edwards prohibition against the police renewing a request for a waiver. The two-weeks-out-of-custody rule of Shatzer is portrayed as a big shift in the state's favor.  Prior to Shatzer, a strong argument could have been made that any break in custody terminated the Edwards prohibition, so the two weeks was arguably a shift in the defendant's favor. The main change in the state's favor in Shatzer was the recognition that the defendant's status as a state prison inmate in custody on an unrelated charge was not the kind of police custody that triggers the extended protections of Miranda.

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