September 2010 Archives

Who Supports the Death Penalty?


As is so often the case, it depends on who you ask.

Doug Berman of the always interesting Sentencing Law and Policy notes a story about the top 50 blogs that discuss capital punishment.  The story starts out by acknowledging that over 70% of our citizens "reportedly" support it.  That is not the case, however, among blogs on the subject.  As Doug observes, the blog breakdown is: three in favor, eight neutral, and thirty-nine opposed.

Now anyone can gin up a blog, but presumably those who take the trouble at least hold themselves out as knowing something about the subject.  By and large, this seems to me to be correct.  Indeed a number of the abolitionist blogs appear to be run by law professors.

The reason I bring this up is to re-inforce a theme I have sounded before, namely, that there is a yawning gap between the views of ordinary citizens and those who take themselves to be  --  and sometimes actually are  --  the elite.  On the death penalty and many other things, the media and the academy are way out of step with the public.  This has a number of effects:  It allows elite-run institutions, courts among them, to get away with circumventing rules that normal people would think ought to apply to them.  It distorts the public debate.  And it creates distrust among the the governed about the intentions and fidelity of those doing the governing.

The latter effect seems to me to be closely akin to what has given rise to the Tea Party movement.  In less than five weeks, we may get the public's verdict about the elite's massive and sneering condescension.  My prediction:  For the elites, it ain't gonna be pretty.

The Military Funeral Protest Case

Mark Sherman has this story for AP previewing Snyder v. Phelps, No. 09-751, the military funeral protest case to be argued Wednesday, October 6.

One thing Al Snyder wants to make clear: His boy fought and died for freedom in Iraq, but not for the right of some "wackos" to spew hate at soldiers' funerals under the protection of the Constitution.

"It's an insult to myself, my family and the veterans to say this is what our military men and women died for," Snyder says, barely concealing his anger.

Yet more than four years after the death of his only son, Matthew, Snyder is in the middle of a Supreme Court case that raises almost precisely that issue.

This is a civil torts case, not a criminal case.  However, if the Court brings restriction of these kinds of protests under the "time, place, and manner" umbrella, as I think it should, it would clear the way for the application of disorderly conduct statutes as well.

And there is one more criminal law hook, at the end of the story:

But he also struck a more ominous tone. "It has to be stopped," Snyder said. "If the courts don't stop it, believe me, someone is going to."
One of the reasons we have government in the first place is to protect people through an ordered legal system. If that system fails, some will resort to protecting themselves.  I think Mr. Snyder's predicition is correct. 

The right of free expression is certainly important, but it is also subject to reasonable limits, and the Phelps group is way beyond any reasonable limit.

Here is my rule of thumb for First Amendment challenges to legal restrictions. If I were an autocrat bent on stifling dissent, how useful and effective would this restriction be for that purpose? Would it seriously crimp the ability of those who disagree with my policies to get their message out, or would getting around it be trivially easy?  If the latter, it's probably not a First Amendment violation.

The Phelpsians can simply take it somewhere else.

News Scan

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Colorado's "Katie's Law" to Take Effect Tomorrow:  CBS4Denver (CO) reports that starting tomorrow, Colorado will begin collecting DNA from those arrested for felonies.  The DNA samples will be added to the state's database, but an arrestee may request removal from the database if he or she is not charged within 90 days.  Current state law permits DNA collection of only those actually convicted of a crime.  The ACLU is expected to challenge the new law.

Connecticut Deadly Home Invasion Case Wraps Up:  Closing arguments are set for tomorrow in the case against Steven Hayes, charged with murdering the family of Dr. Petit and setting their Connecticut home on fire.  The state was granted an additional 30 minutes to present its final arguments to the jury, in light of the complicated facts of the case.  (See, for example, previous AP articles about the evidence presented here, here, and here.)  Hayes's attorney expressed concern with allowing the additional time, arguing that the case was "pretty simple" and that a longer closing argument would give the prosecution a better opportunity to "create greater prejudice" against Hayes.  Throughout his trial, Hayes's defense has remained fairly limited -  Helen Ubinas has this editorial about his efforts to make co-conspirator Joshua Komisarjevsky look like the "bigger monster," and vice versa. 

Judge in Trouble for Handing Out Condom-Filled Acorns: 
District judge Isaac H. Stolzfus of Intercourse, PA is finding himself on the other side of the law after he was caught handing out condom-filled acorns to unsuspecting women in the state capitol complex last week.  According to, the nuts appear to have been cracked open, stuffed, and resealed with putty.  The judge, who presides over low-level cases in Lancaster County, was charged with disorderly conduct.
You just can't make this stuff up.

Steven Burns Denied Parole

Scott Smith reports for the Stockton Record:

COALINGA - A state parole board this week declined to release murderer Steven John Burns, who has served 31 years in state prison for shooting a woman at University of the Pacific because she rejected his love.

Burns, 49, was convicted of second-degree murder and sentenced to spend 17 years to life in prison for killing Catina Rose Salarno on Sept. 3, 1979. In Tuesday's hearing - his eighth chance at parole - Burns said he wanted to go home to care for his elderly parents.

Opposing his release, Salarno's two sisters and parents traveled to Pleasant Valley State Prison, a remote Central Valley institution surrounded by scrub brush. They sat in a cramped room, listening to him plead with officials to let him live again in his boyhood home in San Francisco.

No California Execution This Week

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AP reports:

The attorney general's office said in a court filing Wednesday that it can no longer try to proceed with the lethal injection of Albert Greenwood Brown this week. It would've been California's first since 2006.

How about next week?

Without another gubernatorial reprieve, passage of the execution date means the people must return to Superior Court for a new date, so even if the awareness dawns that "expiration date" of the drugs is no big deal, it would still be a month or two.

Update: USCA9 voluntary dismissal order is here.

Go to the Circus Without Leaving Home

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Kent has posted over the last couple of days about the flurry of litigation concerning the forthcoming  --  or, now, probably not so forthcoming  --  Brown execution. 

I will not attempt to summarize how things got to where they are, first because Kent has done a better job than I could, and second, because it's just too annoying.

The law should speak with authority and confidence.  It should do so all the more in a case, like this one, where there is no doubt of factual guilt, the crime is horrendous, and the defendant has had years to appeal every issue under the sun.  A system that interminably questions itself to the point of paralysis is not living up to "America's highest values," or whatever the Leftist catch-phrase is.  It's making a joke of itself.

Two things in particular should be borne in mind.  One is that in supposedly barbaric America, all this comes about out of a humanitarian, but now run amok, desire to seek the most pain-free method of execution.  Actual barbarism should be made of sterner stuff (and is).  Second, the very people most responsible for creating a system that endlessly hashes out every detail, no matter how niggling, will be the first to say that the current episode vindicates their view of the death-penalty-as-circus.  And, though I hate to say it, they'll have a point, because the rest of us failed to take the action needed to prevent it from degenerating to this point.

I'll be the first to confess that I have no sure-fire suggestion for preventing the sort of thing we have seen unfold in this case.  The willingness of courts to accommodate every indulgence, and of legislatures to let them, seems to be buried deep in the culture.  We are reminded, now and for not the first time, that we had best dig it out.  

Bob Egelko reports in the SF Chron that the California Supreme Court has denied the state's request to speed up the effective date of the Court of Appeal's decision vacating the Superior Court's erroneous injunction against the execution of Albert Greenwood Brown.

This decision effectively postpones the execution until at least Friday.  The story notes that Friday is the expiration date of the state's stock of the drug prescribed by regulation for use in the process.  As noted in this post, that date is something of a fiction.  Nothing magic happens to the drug on Friday.  It doesn't turn into a pumpkin.

I think the Governator should issue another one-day reprieve.  If Brown's lawyers want to argue that a stock of pentothal that is perfectly good tomorrow is unconstitutional the day after tomorrow, let them make that frivolous argument.

Appeal of the California Stay

The Ninth Circuit has this page for public access to pleadings and orders in the California stay of execution case.  As of this writing (2:07 PDT), the state's petition is there. Brown's response was due a few minutes ago but it not yet on the page.  The state's reply is due at 3:30.

I expect the Supreme Court Justices know this case is on its way to them and are receiving copies of the arguments as the case goes along.

If Chapter 154 applied to this case, a federal court would not have authority to grant the stay.  See 28 U.S.C. §2262(c).  Any last-minute litigation such as this would be in the state courts, subject to review by the California Supreme Court rather than the Ninth Circuit.

The Riverside Press-Enterprise has this story by Richard K. DeAtley on the case with links to the District Court arguments and decision, and also this FAQ.

Medical parole

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AP reports,

Certain severely ill or incapacitated inmates in California could be eligible for parole under legislation signed Tuesday by Gov. Arnold Schwarzenegger.

The governor approved a measure allowing certain offenders to be released on supervised parole if they require constant medical care and are not considered threats. If a parolee's condition unexpectedly improves, he could be sent back to prison.

Offenders sentenced to death or life without the possibility of parole will not be eligible for medical parole.

The actual bill, SB 1399, provides, 

[A]ny prisoner who the head physician of the institution ... determines ... is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety.

If the prisoner is actually bedridden and incapable of hurting anyone, I don't have a problem with that. The effect will be mainly to take the cost of that 24-hour care off the corrections budget and dump it on the Medicaid budget, which is a good thing. Whether the application of this law will actually be so limited in practice remains to be seen.

Sex Offender Registration

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The Ninth Circuit today decided in United States v. George, No. 08-30339:

The registration requirement under SORNA [the Sex Offender Registration and Notification Act] required [George] to register as a sex offender in the State of Washington, even though Washington had not implemented the statute. SORNA's registration requirements are a valid exercise of congressional power, and do not violate the ex post facto clause of the Constitution.

Supreme Court Argument Audio

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The U.S. Supreme Court issued this press release yesterday:

Beginning with October Term 2010, the audio recordings of all oral arguments heard by the Supreme Court of the United States will be available free to the public on the Court's Web site,, at the end of each argument week.  The audio recordings will be posted on Fridays after Conference.


The public may either download the audio files or listen to the recordings on the Court's Web site.  The MP3 files of the audio recordings may be accessed by clicking on the "Oral Arguments" prompt on the home page, and selecting "Argument Audio."  The audio recordings will be listed by case name, docket number, and the date of oral argument.  The recordings will also be accessible by clicking on "What's New" on the site's home page.


The Court began audio recording oral arguments in 1955.  The recordings are maintained at The National Archives and Records Administration.  Prior to the 2010 Term, the recordings from one Term of Court were not available until the beginning of the next Term.  The Archives will continue to serve as the official repository for the Court's audio recordings. 

News Scan

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Execution Drug Shortage?  SF Chronicle writer Kevin Fagan reports that the California Department of Corrections has run out of the anesthesia used to euthanize condemned murderers. As noted in a earlier post yesterday, the state's current supply of sodium pentothal will reach its expiration date Friday, and the manufacturer will be unable to provide fresh doses until early next year.  If the drug expires before the current stay of execution is lifted for rapist/murderer Albert Greenwood Brown, he could avoid his sentence for several additional months.  Alternatives are available according to CJLF President Mike Rushford who said "there are other drugs that could be used, such as morphine.  Of course if we switched to another drug at this point, I fear that the jackels would start screaming that we have to do an entire administrative review all over again."

Pot Farmer Sues Landlord Over Stolen Marijuana Crop:  Gary Hite, a Southern California pot farmer, is suing his landlord because his $35,000 indoor marijuana crop was stolen during a break-in.  Hite, claiming he was growing the marijuana for medical purposes, filed the Riverside County lawsuit against Hunco Way LLC claiming negligence and breach of contract.  The Superior Court suit alleges the landlord failed to fix a broken door and lock after a previous break-in in a neighboring unit.  Police say Hite's operation was illegal and he has been cited for various code violations.  The San Francisco Chronicle has the story here.

Senate Hearing Today on Release of Lockerbie Bomber:  In response to demands from U.S. politicians, the Senate Foreign Relations Committee held a hearing today to probe the reasons for Scotland's "compassionate release" of Lockerbie bomber Abdel Baset al-Megrahi last year.  Scotland released Megrahi in response to a medical prognosis that terminal prostate cancer gave him only three months to live.  Thirteen months later, Megrahi is still living in his native Libya.  Although several U.S. Senators have demanded that Scotland disclose Megrahi's medical records, Scotland has so far denied these requests.  Read the Wall Street Journal's story here.

A New Stay

Judge Fogel's stay order is
.  I expect this will go to the Supreme Court. Hopefully we won't have the same kind of debacle as in the Harris case in 1992.

Update: The AP reports on the state's appeal to the Ninth Circuit.

California Governor Debate

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UC Davis has the video here.  Note the second question and this prior post.
A lot of people seem to think that Proposition 19 on the California ballot is a simple question of whether to legalize marijuana. It is not. It is a specific piece of legislation, and it is a very badly written one.  Fortunately, newspaper editorials are recognizing this.  The LA Times opines:

Whether marijuana should be legal is a valid subject for discussion. Californians ought to welcome a debate about whether marijuana is any more dangerous than alcohol, whether legalization would or would not increase consumption, and whether crime would go down as a result of decriminalization. But Proposition 19 is so poorly thought out, badly crafted and replete with loopholes and contradictions that it offers an unstable platform on which to base such a weighty conversation.

Its flaws begin with the misleading title: Regulate, Control and Tax Act. Those are hefty words that suggest responsibility and order. But the proposition is in fact an invitation to chaos. It would permit each of California's 478 cities and 58 counties to create local regulations regarding the cultivation, possession and distribution of marijuana. In other words, the law could change hundreds of times from county to county. In Los Angeles County alone it could mean 88 different sets of regulations.

All it takes is one locality within a region to allow marijuana sales with little or no tax and the much-touted revenue enhancements go up in smoke.  As every person of sense who lives in California is keenly aware, some of our localities are run by complete nut jobs.

The Modesto Bee inquires, "What were they smoking when they came up with Proposition 19?"

CJLF has not taken a position on the underlying question of legalization. But I am going to vote against this proposition with gusto.

Circuit Justices

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At the end of today's orders list is the "allotment order" specifying the justices assigned as circuit justice for the various circuits.  That assignment means a lot less than it did in the old days, when the circuit justice actually presided over the circuit court.  (E.g., Chief Justice Marshall presiding in the Aaron Burr trial.)  Now it pretty much means ruling on the extension of time and stay requests for cases from the circuit.  Even the more important stay requests, such as capital cases, are routinely referred to the full court for decision.

Anyhow, bad news for Texas defense lawyers -- the extension-stingy Justice Scalia still has the Fifth Circuit.  Former Circuit Judges Roberts, Breyer, Ginsburg, Alito, and Kennedy have the circuits from whence they came (D.C., First, Second, Third, and Ninth, respectively). The Chief also gets the Fourth and Federal, and Justice Alito also gets the Eighth.

Justice Thomas gets the Eleventh, which includes his native Georgia.  Justice Sotomayor gets the Tenth.  The rookie gets the Midwest (Sixth and Seventh).

More California Execution Developments

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Think you got short deadlines? "A federal judge on Tuesday gave lawyers six hours to file written arguments on whether California's first execution in nearly five years should go forward," Paul Elias reports for AP.  I noted here that I did not think Judge Fogel's "choice" order was valid. The Ninth Circuit panel didn't think so either and kicked it back to him. The panel is Judges Kleinfeld, McKeown, and Fisher, not the panel I expected.

The panel says, "Timing is everything and the district court should take the time necessary to address the State's newly revised protocol in accord with Supreme Court authority."  The Supreme Court authority on point says (emphasis added):

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

It should not take much time to decide that California's new protocol is better than the Kentucky procedure at issue in Baze v. Rees, and, therefore, "a stay of execution may not be granted...."

Meanwhile, back at the ranch, the Attorney General wants the California Supreme Court to make the Court of Appeal decision lifting the Superior Court's stay final forthwith. The Court wants the opposition by noon today and the reply by 3:00 p.m. The case is California Dept. of Corrections and Rehabilitation v. Superior Court (Morales), S186751.

The Governator granted a one-day reprieve to allow Cal. Supreme to consider the case. Under California's unusual execution-date-setting mechanism, missing the date due to a court stay means you have to go back to Superior Court and get a new date set. However, missing the date due to a Governor's reprieve means "the execution shall be carried out on the day immediately after the period of the stay or reprieve without further judicial proceedings."  Cal. Penal Code § 1227.5. So there is a reverse Brer Rabbit effect here.  A reprieve nominally benefits the condemned inmate, but he may not actually want it.

News Scan

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Georgia Executes Death Row Inmate:  Last night, Georgia executed death row inmate Brandon Rhode, who was convicted of murdering three people while burglarizing their home in 1998.  The execution was scheduled for last week, but it was postponed after Rhode attempted to commit suicide in his cell.  His final request for a stay was denied by the U.S. Supreme Court two hours before his death.  The Macon Telegraph (GA) has this story.

Texas Governor Cracks Down on Rapists:  The AP reports on Texas Governor Rick Perry's plan to strengthen the state's response to repeat sex offenders.  Announced yesterday, the plan calls for a change in state law permitting LWOP for all repeat rapists (the current law allows LWOP only for repeat sex predators who target children).  Governor Perry also proposed electronic monitoring of the most high-risk sex offenders and a team of law enforcement officers to pursue violating parole offenders.  Governor Perry summed up his objective: "We're after them and we're gonna get em."

CA Bill to Seal Murdered Children's Autopsy Reports:  California Governor Arnold Schwarzenegger today signed a bill that could permanently seal autopsies of murdered children, reports the AP.  In an effort to protect the privacy of the victims' families, the bill was sought by San Diego District Attorney Bonnie Dumanis on behalf of the families of Chelsea King and Amber Dubois, both teenage girls killed by a convicted child molester.  The bill was narrowed from its original proposal to prohibit a relative from seeking a sealed record if he or she is suspected of involvement in the child's death. 

Brown Clueless on Death Penalty Reform

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Jerry Brown's interview with the Sacramento Bee on the death penalty (video here, transcript here) is remarkable in the apparently complete cluelessness of Mr. Brown when it comes to reform of the California's death penalty appeals.

I realize that there are many issues for a gubernatorial candidate, and no one could be completely up to speed on all of them, but Jerry Brown is not just any candidate, and this is not just any issue.  His appointment of the virulently anti-death-penalty Chief Justice Rose Bird was the single worst mistake of his prior tenure in the office he now seeks, according to his own former legal affairs secretary.  Enforcement of this law is one of the primary responsibilities of the office he now holds.  The appeal backlog is one of the primary problems of the California justice system.  So you would think he would be up to speed on the proposals that have been made for reform, right?  Well, he is not.

"The difficulty is it takes years to get a transcript and then to get the case teed up because you have to have a lawyer and there are not that many lawyers who can do it."

He seems to have swallowed the defense spin on the issue, hook, line, and sinker.  The reasons it takes years to get the record certified in California are: (1) the defense bar deliberately stalls; (2) the California Supreme Court lets them stall; (3) the Democratic leadership of the Legislature has killed legislation to stop the stalling.  There are a lot of lawyers who can do it, but the Judicial Council has limited the pool with pointlessly severe limitations on who is deemed "qualified," far in excess of what Congress requires for federal capital cases, for example, and the courts have not required lawyers to accept capital appointments as a condition for receiving noncapital appointments.

Q: So will death row will continue to grow, with no end in sight?
A: Unless we come up with some proposals.  Do you have any ideas? These cases are difficult.  The courts are very careful. And to tell you the truth, what I've done as Attorney General, I've appointed good leadership and believe in this law and they are doing the best job they can. And I just have to look at it. I have not seen too many proposals, other than to hire more lawyers and give them more money for investigators as far as advancing the cause.

Where have you been, Mr. Attorney General?  Hibernating in a cave? You haven't seen the proposals? Well, then, you haven't looked.

Several years ago, Senator Morrow introduced well-drafted, carefully considered proposals considerably beyond just hiring more lawyers.  They were routinely killed in committee.  Did you do anything to revive these bills and get them through the Legislature?  Not to my knowledge.  Are you even aware of the proposals?  Your interview indicates not.

You were a member of the commission that was supposed to investigate what to do about this problem. I testified to that commission about these proposals. I understand you could not attend in person and sent a representative.  Fine.  Did you ask the representative to tell you what was proposed? Apparently not.

The federal portion of the problem can be greatly reduced by invoking the fast track authority Congress has already given you.  I wrote to you almost two years ago asking you to do exactly that. You never answered. You never did anything. You show no awareness of the issue.

"And I will observe the law and I've been down this road before.  The people have spoken.  The courts have upheld it.  I'll carry it out."

But you haven't carried it out in four years. It is true, as you say, "I've appointed good leadership and believe in this law and they are doing the best job they can." I'll give you due credit for that. But that is not enough. Beyond routine litigation under existing law by the career staff, we need strong leadership from the top to grapple with this monster and get it under control.  You have not done that in the last four years as Attorney General.  Why should the people of California believe you will in the next four as Governor?

Drug Expiration Dates

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One of the issues in the Albert Greenwood Brown execution (on which I post more a little later) is that the state's stock of sodium thiopental has an "expiration date" of October 1. Does that mean it could not be used to carry out an execution on, say, October 3?  Of course not.  From Johns Hopkins comes this explanation of drug expiration dates:

Think of expiration dates -- which the U.S. Food and Drug Administration (FDA) requires be placed on most prescription and over-the-counter medications -- as a very conservative guide to longevity. The expiration date is a guarantee from the manufacturer that a medication will remain chemically stable--and thus maintain its full potency and safety -- prior to that date. Most medications, though, retain their potency well beyond the expiration date, and outdated medications, whether prescription or over-the-counter, are not usually harmful.

Confrontation and Lab Techs

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The U.S. Supreme Court has taken up the issue of lab techs and the Confrontation Clause again in Bullcoming v. New Mexico, No. 09-10876.  The opinion of the New Mexico Supreme Court begins:

Defendant, Donald Bullcoming, appeals his conviction of aggravated DWI, a fourth-degree felony, contrary to NMSA 1978, Section 66-8-102 (2005, prior to amendments through 2008). Of the three issues that Defendant raises, the main question presented in this appeal is whether a laboratory report of Defendant's blood draw results is testimonial evidence subject to the Confrontation Clause. We first addressed this issue in State v. Dedman, 2004-NMSC-037, ¶¶ 30, 45-46, 136 N.M. 561,102 P.3d 628, and followed the United States Supreme Court case in Crawford v. Washington, 541 U.S. 36 (2004), to hold that (1) blood alcohol reports are public records and (2) they are non-testimonial under Crawford because public records are not "investigative or prosecutorial" in nature. We reverse our holding in Dedman in light of the recent United States Supreme Court case of Melendez-Diaz v. Massachusetts, which held that the certificates reporting the results of forensic analysis were "quite plainly affidavits" and thus "there [was] little doubt that [they] fall within the 'core class of testimonial statements,'" governed by the Confrontation Clause. 557 U.S. ___, ___, 129 S. Ct. 2527, 2532 (2009) (5-4 decision) (quoting Crawford, 541 U.S. at 51). Although the blood alcohol report was testimonial, we conclude that its admission did not violate the  Confrontation Clause, because the analyst who prepared the report was a mere scrivener who simply transcribed the results generated by a gas chromatograph machine and, therefore, the live, in-court testimony of another qualified analyst was sufficient to satisfy Defendant's right to confrontation.

Should the analyst be relieved he doesn't have to go testify or insulted he is called a "mere scrivener"?

Also granted is the defendant's petition in Freeman v. United States, No. 09-10245.  This case has to do with crack, retroactivity of more lenient sentencing guidelines, and guilty pleas. Sixth Circuit opinion is here.

Also granted is the defendant's petition in Sykes v. United States, No. 09-11311. This case asks whether "resisting law enforcement" is a "violent felony" for the purpose of the Armed Career Criminal Act.  Seventh Circuit opinion is here; modification order is here. The actual question is whether Sykes has two violent priors or three. The other two priors are robbery, as is the present offense. Three robberies should be sufficient to throw away the key, regardless of the answer to the question in this case, IMHO.

Exigent Circumstances

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The Supreme Court has taken up the question of exigent circumstances to justify entry of an apartment without a warrant in Kentucky v. King, No. 09-1272. The opinion of the Kentucky Supreme Court summarizes the case:

At issue in this case is whether exigent circumstances existed, which justified the warrantless entry of the apartment occupied by Appellant Hollis Deshaun King. We hold that police were not in hot pursuit of a fleeing suspect, and that, with regard to the imminent destruction of evidence, any exigency was police-created. We also note that no "good faith" exception to the exclusionary rule applies in this case.

The orders list with the certiorari-granted cases from yesterday's "long conference" is here. The much longer list of certiorari-denied cases should be out on the day of the Court's official term opening, the first Monday in October.  Cases that were scheduled for the conference but are on neither list have likely been "relisted" for a second look at a later conference.

Also granted is the Solicitor General's petition in United States v. Tinklenberg, No. 09-1498, on the federal Speedy Trial Act.  This one will be decided by 8 Justices.
The Sacramento Bee has this page with video of its editorial board's interview with California Attorney General and candidate for Governor Jerry Brown.  They have conveniently broken up the video by topic, so you can watch the death penalty portion separately from the others.  For those who like to have a transcript for more convenient reference, I have transcribed it as best I can given the technical issues.  The transcript follows the jump.  I will have some comments in another post.

Lawyers with Depression

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The Erie County Bar Association has produced a good documentary on lawyers and depression which can be accessed at the blog,  Several studies have found high rates of depression among lawyers and law students alike.  The good news is that treatment is available and effective for most folks.  

California Execution Developments

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Terry Collins reports for AP:

On Monday, Brown asked Marin County Superior Court Judge Verna Adams to halt his execution until a lawsuit filed by Brown and another death row inmate is resolved. The suit challenges the state's new lethal injection regulations, saying the procedures were improperly adopted....

Judge Adams said after an hour-long hearing Monday that she would not halt Brown's execution while the lawsuit is pending.

"Mr. Brown can not prove that he will suffer pain if he is executed under the current regulations," Adams said.

Meanwhile, on the other end of the Golden Gate, the following order has been entered in the Ninth Circuit case on appeal from Judge Fogel's denial of a stay (noted here), Morales v. Cate, No. 10-99019:

By order of the district court, Albert Brown was granted leave to intervene in Morales v. Cate, No. C 06 219/926 JF HRL (N.D. Cal.). The instant appeal and related motions arise out of the Morales case and are inextricably intertwined with the issues in that case. Therefore, Albert Brown's appeal from a collateral order, alternative petition for a writ of mandamus, and motion for a stay of execution filed in this case are collectively referred to the panel having jurisdiction over Morales v. Ornoski, No. 06-99002. All other appeals, petitions for extraordinary writs, and motions filed by Brown that are not related to the Morales litigation will be referred to the panel having jurisdiction over Brown v.Ornoski, No. 05-99008.

That would be Judges Hawkins, Thomas, and Bea.  I do not expect any off-the-wall decisions from a majority of this panel.

Does the Judiciary Aim to be Taken Seriously?


The answer is no, it does not.  As this article notes, because of mindlessly indulged dallying, the average time in California between the imposition and the carrying out of a death sentence is more than 20 years.  Here's a three paragraph sample:

Since 1978, when California reinstituted the death penalty, 14 of the state's inmates have been executed ---- including one actually executed in Missouri for crimes committed in that state.

More than five times that number ---- 75 condemned inmates ---- have died of natural causes, suicide or other reasons, according to the state Department of Corrections and Rehabilitation.

The last five executions took place after condemned inmates had each spent more than 20 years on death row.

The father of one murder victim said, with understandable bitterness,

"California's idea of the death penalty is to bore them to death," said Roy Coe, whose daughter was murdered when she interrupted a burglary in her Vista home in 2005.

We have the death penalty to begin with because our citizens are serious.  They understand that some crimes are so grotesque that nothing else will do.  California's delays are beyond absurd, and unnecessary (the delay in Virginia is seven years).  It's past time for California's judges either to become as serious as its citizens, or find another line of work.

Florida Post-Graham

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The Miami Herald has this story about Florida's resentencing struggles in the post-Florida v. Graham era.  While most states are able conform to the Graham ruling by simply commuting juvenile LWOP sentences to life sentences WITH the possibility of parole, Florida abolished its parole system in 1983.  This leaves the state in a bind as to how to both follow the law, and make sure society is protected from the worst of the worst offenders under 18.

Florida has at least 100 juveniles who must be resentenced under Graham - the most of any state in the U.S.  As of now, individual sentencing judges must decide how to proceed with each case, and defense attorneys are already warning that long prison terms, though not technically violative of the Graham ruling, will defy the "spirit" of the decision and trigger further appeals.

To alleviate the burden on sentencing judges, Florida's association of prosecutors last month suggested that all the relevant LWOP cases be amended to sentences of life with the possibility of parole.  After an inmate serves 20 years, the parole commission board (who currently hears only those cases that pre-date the 1983 abolition of parole) would review the case and determine suitability.  Another solution, offered by state lawmaker Mike Weinstein, is legislation granting parole bids every seven years to inmates who demonstrate "maturity and reform" while in prison.  The article predicts neither proposed solution, or any others that may arise, will be acted on until after the November elections.

Hat tip to HowAppealing for the link.

News Scan

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Obama Administration Wants More Internet Wiretaps:  Charlie Savage of The New York Times reports on proposals by federal law enforcement and national security officials to facilitate internet wiretapping.  Officials will ask Congress to require all services that enable communications - such as Blackberries, Facebook, and Skype - to be technically capable of complying with a wiretap order.  Officials are also seeking to apply these regulations to companies that operate overseas.  The administration plans to submit the bill to lawmakers next year.  Valerie E. Caproni, general counsel for the FBI, defends the bill: "We're talking about lawfully authorized intercepts.  We're not talking about expanding authority.  We're talking about preserving our ability to execute our existing authority in order to protect the public safety and national security."

California Sees a Change in Direction of Public Feelings on Legalizing Marijuana:
  San Francisco Chronicle staff writer John Wildermuth reports on a shift in California voters' feelings on legalizing marijuana.  Back in July, 48% of voters surveyed planned to vote against Prop. 19 (the ballot initiative to legalize recreational marijuana for adults over 21-years old), while 44% planned to back the initiative.  According to a new poll, 49% of voters surveyed plan to support legalization.  Supporters and opponents of Prop. 19 have remained quiet throughout the campaign, and there has been no paid advertising for either side.  Nevertheless, 84% of voters surveyed were aware of the initiative - more than double the number of people aware of the other California initiatives in the upcoming election.

"Garrido Trial Delayed for Psych Evaluation:  The 13-month-old case against paroled sex offender Phillip Garrido, who is accused of holding Jaycee Dugard captive for 18 years and repeatedly raping her, was suspended Friday after his defense attorney successfully argued that Garrido might be unable to understand the proceedings and assist in his defense.  As San Francisco Chronicle writer Damian Bulwa's reports, Garrido will face either a judge or jury for a psychiatric evaluation and competency hearing.  The delay comes after the presiding judge expressed concern with Garrido's bizarre conduct while in court.  The case against Garrido's wife Nancy will likely not be affected.
The title of this post is the headline of this column by SF Chrontrarian Debra Saunders.  I think I can guess who she is going to vote for in the Cal. AG race:

I don't understand why San Francisco District Attorney Kamala Harris wants to be California's next attorney general. Then again, it's hard to understand why she even ran for D.A. - other than because she has a yen for elective office.

She hasn't been an aggressive prosecutor. She hasn't been a competent administrator. She seems more interested in advancing liberal causes than putting bad guys behind bars.

It is a sad testament to the Democratic Party that Harris is its chosen nominee to run against Los Angeles County District Attorney Steve Cooley, a consummate lawman whose tenure could serve as a model for both toughness and fairness.

The Civil Rights Division Turns Racist


I was a career Justice Department attorney for many years.  I almost always took pride in the Department's work.  I was proud in particular of its use of federal power to overwhelm and defeat Jim Crow.  States rights stop where intimidation, not to mention murder, begin.

That was then.

Today we hear from Politico  --  not exactly a conservative mouthpiece  --  news that the Civil Rights Division at DOJ has given up the fight for equal justice in favor of giving the go-ahead to black racism.  The first two paragraphs in the Politico story state:

A Justice Department prosecutor defied his superiors by testifying at a U.S. Civil Rights Commission hearing Friday, where he leveled an explosive allegation: top officials in the department gutted a voter intimidation case against a fringe African American militant group because the suspects were black and their alleged victims were white.

The prosecutor, Christopher Coates, also said the downgrading of the case against the New Black Panther Party was evidence of a Justice Department culture which discouraged "race neutral" enforcement of civil rights laws, frowned on prosecuting minority perpetrators and folded under pressure from black and Latino rights groups. After President Barack Obama and Attorney General Eric Holder took office, the culture intensified, Coates told the panel, ultimately leading to his departure as chief of the voting rights section early this year.

Hat tip to my friends at Powerline, which carries the story here. The Politico piece is here.   The Washington Post also carries the story. The New York Times, however, can't find anything to write about.  Imagine that.

The Desert Argument

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This comment by "mack" over at the Volokh.Conspiracy sums up the desert argument for the death penalty quite well:

Just had the anniversary of the murder of a local family -- the father age 46, the mother age 39, a 16 year old daughter who was sexually assaulted, a 14 year old son, a 11 year old son -- the 3 year old baby girl survived her beating as the perpetrators believed her dead.

So what should we do with the murders? Sentence them to life so they can be eligible for parole in twenty years? Sentence them to 200 plus years in prison so they won't get parole but actually will be in prison for life (unless they escape)? So they should get to go on living, reading books, going to school, working out, having family visits, get married and then get conjugal visits, cruise the internet on the prison library computers, sign a book deal and even if they don't get money they get fame and notoriety.....all paid for by taxes -- including the taxes of the surviving family and loved ones of the victims. No, I don't think so -- I think for brutally murdering five people by bloodily beating them to death one at a time with a tire iron that they need to die. I think they forfeited their right to life when they decided to coldly murder a family of five innocent people. I think they forfeited their lives when they killed three young souls that never had the chance to grow up. I think they forfeited their right to life when they murdered the parents of a 3 year old little girl and beat her half to death.

They should pay for their crime by losing the thing most precious to them, just as they coldly and callously took the lives of their victims. If some here don't have the stomach to do the right thing then I am sure there are enough of us who do have the stomach for it. They committed the ultimate crime and they need to pay the ultimate price -- hell if they had one shred of decency they would save everyone the trouble of having to go through the process and take care of it themselves.

There is nothing noble or civilized about shirking ones duty to exact punishment and to see that justice is done. In fact quite the opposite, it shows a lack of civilization and a lack of nobility and honor to not do the right thing.

I'm sure some will say -- oh well -- they're dead -- so sad -- too bad -- but killing their murderers won't bring them back. And we are civilized so we should not lower ourselves to their level by killing too. Bull, you honor the murdered dead by putting to death their murderers -- you dishonor them by letting their killers live -- by letting them feel the sun on their faces -- to feel their hearts beat -- to feel life.  

California Execution Moratorium Lifted

It appears that a California execution will go ahead as scheduled next Wednesday, ending a four-year hiatus.  Howard Mintz has this article in the San Jose Mercury-News.

Details are sketchy, but it appears that Judge Fogel recognized the limitation on his ability to block the execution under Baze v. Rees.  However, he assumed the authority to allow Brown to choose a single-drug execution.  I doubt he has the authority to do that, but at least the long-overdue sentence can be carried out in this case.

Update:  The order is
.  News coverage: Bob Egelko in the SF Chron; Carol Williams in the LA Times; Jesse McKinley in the NYT, Howard Mintz in the San Jose Mercury-News.

News Scan

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"California Home Health Care Program Hires Felons":  Felons convicted of violent crimes, such as rape and assault with a deadly weapon, have been hired by California's home health care program to look after elderly residents.  Investigators believe there are at least 210 unsuitable workers and applicants in the program, but background checks haven't been completed because the program rules currently allow felons to work as home care aides.  Applicants are disqualified only if they have a history of child/elder abuse or of defrauding public assistance programs.  Because of privacy laws, the elderly and disabled residents are not warned if their caregivers are felons.  The San Francisco Chronicle has the story here.

"Arizona Death Row Inmate to be Executed in October":  AP writer Paul Davenport reports on a warrant of execution issued by the Arizona Supreme Court, setting an October 26th date of execution for Jeffrey Landrigan.  If carried out, Landrigan would be the first person executed in the state since 2007.  A month after escaping from an Oklahoma prison, where he was serving time for a 1982 murder and 1986 prison stabbing, Landrigan stabbed and strangled to death Chester Dyer.  He was linked to the murder by DNA evidence.  The defense is requesting a delay in the execution because of a shortage of at least one of the three drugs Arizona uses for lethal injections.

California County Jail Limits Inmate Mail:  Beginning October 4th, Ventura County jail will ban most letters to and from inmates, except for postcards.  The Sheriff's Department claims the restriction is for security reasons, because inmates are able to receive contraband and coded gang and crime information in letters.  The postcards have strict limitations: they must be under a certain size and cannot contain paint, stickers, nudity, etc.  Inmates will still be allowed to send and receive letters from their attorneys.  Counties in other states such as Colorado, Florida, and Arizona have implemented similar letter bans.  The Mercury News has the story here.

San Diego Judge Accused of Taping Court Proceedings for TV Tryout:  Debra Cassens Weiss of the ABA Journal reports on an ethics complaint filed against Judge DeAnn Salcido for taping courtroom proceedings for a TV tryout, during which she made improper remarks and encouraged spectator participation.  The judge is accused of warning a defendant that if he commits another crime he "will definitely be screwed and we don't offer Vaseline for that," and asking courtroom spectators for a "woo, woo, woo" after learning a defendant had tested positive for marijuana.  Judge Salcido has defended her behavior, stating: "I have found the use of humor and a 'tough love' approach to be very successful in getting through to the criminal defendants and helping them see the benefits of cleaning up their lives."

At Least He'll Die in Prison:  A Philippine court earlier this month sentenced a man to 14,400 years for raping his daughter nearly every day for a year.  The man was originally sentenced to death after being convicted of 360 counts of rape, but had his sentence reduced after the country repealed the death penalty in 2006.  Read the AP's story here.

Teresa Lewis Execution

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Teresa Lewis was executed last night for the double murder of her husband and stepson for the insurance money.  Kathy Lohr has this preexecution story at NPR, with a link to the audio.

Frank Green and Zachary Reid have this postexecution story in the Richmond Times-Dispatch. "Outside the prison, about a dozen people stood in protest. They were outnumbered by about three dozen members of the media, including reporters from Great Britain and Italy."  When the media outnumber the protesters 3-1, you know there has been a big PR scam running.

Lewis's lawyer is quoted as saying, "Tonight the machinery of death in Virginia extinguished the childlike and loving spirit of Teresa Lewis."

Oh, really? "Childlike and loving," huh?  Here is the description of the crime:

Lewis was sentenced to death in 2003 for the Oct. 30, 2002, murder-for-hire slayings of her husband and stepson. Using sex and promises of money, she persuaded two men to kill for her in a failed effort to gain $250,000 in life insurance.
Julian Lewis, 51, and C.J. Lewis, 25, were hit with multiple shotgun blasts in their beds while Teresa Lewis stood by in the kitchen of the family trailer early that morning. As her husband was dying, she took his wallet, split the money inside it with the gunmen, and then waited 45 minutes to call for help.

In the L.A. Times, Carol Williams writes that the execution "could also psychologically clear the way to carrying out death sentences on others among the 60 condemned women in the nation -- including 18 in California, according to some capital punishment observers."

But of course 60 is a very small number relative to the total. Women just don't commit the kinds of murders that land a person on death row very often. "Legal scholars attribute the 'gender bias' in executions to women's lower propensity to kill and the tendency of those who do to kill a husband, lover or child in the heat of emotion, seldom with the 'aggravating factors' states require for a death sentence."

The use of the word "bias" in this sentence is a reminder that "bias" in the mathematical sense does not equal invidious discrimination, which is the secondary meaning of the word "bias."  Two groups may have very different sentencing rates for the completely legitimate reason that they offend at different rates and with different degrees of culpability.

Vouchers for the Defense

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Professors Stephen Schulhofer of NYU and David Friedman of Santa Clara propose a voucher system for indigent criminal defense in a Cato Policy Analysis, Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System.  Summary here; full text here.

The Depravity Scale

Michael Welner has this website for his proposed Depravity Scale, intended to be an objective method of saying which crimes are worse than others.  I am generally in favor of objectifying sentencing judgments, but the Supreme Court seems bent in the other direction.  They threw out mandatory capital sentencing many years ago.  They threw out the mandatory Federal Sentencing Guidelines in Booker.

Anyway, Welner invites the public to participate in saying what is more depraved than what.  I am skeptical of the method here.  As I have noted before, self-selection is one of the worst ways to select participants for a study.  The FAQ page notes:

We collect demographic and background information to ensure balanced representation of different viewpoints, ages, and origin of our study participants and to make sure that the Depravity Standard items, when later finalized for inclusion, enjoy consensus support for inclusion that cuts across all imaginable demographics.
But just because a sample is representative on all the usual demographic criteria does not mean that it is representative of the population on opinions about heinousness.  Demographic groups are not homogenous, and selection bias is still a problem even after correcting for demographics.  A self-selected internet survey is going to be weighted toward the opinions of people active on the internet.  A self-selected survey about crime is going to be weighted toward the opinions of people intensely interested in crime.  A self-selected survey depending on links from blogs will be weighted toward the opinions of the readership of those blogs.  I could go on, but you get the idea.

Research such as this is probably a step in the right direction, but we want to be careful not to give it too much weight and to always keep in mind its limitations.

News Scan

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Kentucky Supreme Court Limits Post-Conviction DNA Testing:  Kentucky's high court today defined the scope of an inmate's access to post-conviction DNA testing, reports the Lexington Herald-Reader (KY).  In response to a lawsuit by death row inmate Thomas Clyde Bowling, the court held that inmates are entitled to only one DNA test of old evidence - regardless of the results that test might produce.  Bowling was sentenced to death for the 1990 murders of Eddie and Tina Early, whom he shot in their car in the presence of their 2-year-old son.  The Kentucky Supreme Court's opinion can be accessed here (from the court's minutes, click on the link to the case Bowling v. Commonwealth).

Hearing in Massachusetts Bullying Case:  Three teenage girls appeared in a Massachusetts court today, charged with civil rights violations following the suicide of 15-year-old Phoebe Prince.  Prosecutors claim the three girls, along with several other students at their high school, bullied Prince so relentlessly that she hung herself earlier this year.  All three have pleaded not guilty, with trials set to begin in 2011.  Prince's case in part prompted Massachusetts lawmakers to pass anti-bulling legislation.  The Boston Herald has this story.

Proposed Bill Would Strengthen Response to Sexual Assault Crimes:  The International Business Times reports that U.S Rep. Jerry Nadler (D-NY) today introduced the Justice for Rape Victims and Improving Use of DNA Evidence Act of 2010.  Under the bill, state and local governments would receive extra federal funding if they meet specific requirements related to the handling of rape cases, such as establishing a process through which a victim can have her rape kit tested within 180 days.  The bill would also require the Department of Justice to issue annual reports detailing the rape kit DNA backlog.  Rep. Nadler highlighted the need for this legislation, citing the "unconscionable" statistic that "fully 1/5 of American women fall[] victim in their lifetimes."

Sometimes, It IS the Prosecutor's Fault

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USA Today is out with a lengthy article on prosecutorial abuse, in which it details appalling instances of prosecutors hiding exculpatory evidence.

One need not be a genius to figure out that the article is written with a certain bias, and that its author sought out "experts" sharing that bias.  This is typical of this sort of muckraking journalism.

But that's not the point.  The point is that those of us favoring an honest appraisal of the justice system need to take this seriously, biased or not, and not brush it off.  The prosecutor's profession cannot simply demand respect for wearing the white hat.  It has to earn respect by keeping faith with its creed.  For whatever our courtroom adversaries might think or do, and for whatever stunts they might pull, for us, a criminal case is not a "game" with "moves."  It is a search for the truth, let the chips fall where they may. 

 I thus agree with former AG Dick Thornburgh, who was quoted in the article:

"There are rogue prosecutors, often motivated by personal ambition or partisan reasons," said Thornburgh, who was attorney general under Presidents Reagan and George H. W. Bush.  Such people are uncommon, though, he added: "Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office."

Stories like this make the news for the same reason "Man Bites Dog" makes the news  --  they're uncommon.  There isn't going to be a story about defense shenanigans because no one expects defense lawyers to play it straight and devote themselves to finding the truth.  Generally the only sort of stories you see about the defense side hiding the ball concern outright witness murder.

But, again, today's story is not the occasion for focusing on misdeeds by the defense.  It's the occasion for prosecutors to remind themselves, in the words of the Marine song, to "keep our honor clean." 

Nevada Judicial Selection

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Nevada voters have a judicial selection question on the ballot this November.  Retired Supreme Court Justice O'Connor is out campaigning for it, Doug McMurdo reports in the Review-Journal.

The proposal would replace direct elections for Supreme Court and District Court with gubernatorial appointment followed by retention elections. To that extent, it would be an improvement, in my opinion.

But there is a fly in the ointment.  The governor can't choose anyone he wants.  He must choose from a list of three submitted by a commission, and the State Bar appoints almost half the members of the commission.

I hope the voters reject this proposal and send the anti-election crowd back to the drawing board.  The lawyers of the state should not have any more say in the selection of judges than the other citizens.  The notion that the lawyers will select the best people for judges, and therefore that selection by the Bar constitutes "merit selection," is ludicrous.  Substituting bar politics for general politics is a step down, not a step up.

Go back and do it over, folks, and abolish that commission.

Question 2 on the ballot asks the voters if they want to create an intermediate appellate court. Nevada presently does not have one.  Felony cases and major civil cases are tried in the District Court and appealed directly to the Supreme Court.

News Scan

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Sentence Upheld for California Boy Convicted of Murdering his Father:  The San Francisco Chronicle reports on the First District Court of Appeals' decision yesterday to uphold the sentence of a boy convicted of murdering his father in Berkeley at the age of 15.  The court ruled the judge was correct in sentencing the boy to 50 years to life back in June 2008.  In the 3-0 ruling, the court rejected the defense's argument that confinement wouldn't help the boy.  Because he was tried as a juvenile, he will be released at the age of 25.  

Rehearing Set for Mumia Abu-Jamal: 
Per an order from SCOTUS, a U.S. Court of Appeals will again review the death sentence of infamous death row inmate Mumia Abu-Jamal.  Abu-Jama was sentenced to death for the 1981 murder of a Philadelphia police officer, but was granted a new hearing by the Third Circuit based on an improper jury form.  The court will revisit the issue, however, in light of this year's SCOTUS case Smith v. Spisak.  Read the AP's story here.

San Quentin Completes New Execution Center, One Week Ahead of Planned Execution:  San Francisco Chronicle Staff Writer Kevin Fagan reports on San Quentin's new lethal injection center, which cost $853,000 to build.  The center has three witness viewing rooms, from which every angle of the execution can be observed - providing much better visibility than was possible with the old poorly lighted gas chamber room.  The new execution center was completed yesterday, one week ahead of a planned execution.  Pictures of the center are available from the CA Department of Corrections here.  Albert Greenwood Brown is scheduled to die on September 29th, California's first execution in four years.  Brown was convicted of the rape and killing of a 15-year-old Riverside girl in 1980.

This Is Not a Lawyer Joke

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It just sounds like one. Leigh Jones reports in NLJ:

An assistant general counsel for Toyota Motor Sales USA Inc. who ran his company-owned SUV into another attorney in a crosswalk has been sanctioned for bringing a frivolous appeal in the case.

The California 2d District Court of Appeal on Sept. 20 sanctioned Granville Webster Burns, Toyota Motor Corp. and the law firm representing him $5,000 for appealing a jury verdict that found him liable for running into Ann Grant, a Manhattan Beach, Calif., lawyer. The court also affirmed a ruling that ordered Burns and Toyota to pay $123,455 in fees and costs. Grant was crossing a street on Nov. 7, 2007, after walking her children to school when Burns hit her, according to court records.

Maher, O'Donnell, and Extortion

According to this post at Politico, Bill Maher said to Senate candidate Christine O'Donnell, after showing a embarrassing video clip:

"You need to come on this show. If you don't come on this show, I'm going to show a clip every week. I'm the only one who has them. I hoarded them.
"I'm just saying Christine, it's like a hostage crisis. Every week you don't show up, I'm going to throw another body out."

Mr. Maher may wish to seek counsel regarding 18 U.S.C. § 875(d), which provides:

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

Are services (appearing on a television show) a "thing of value"? Maybe.  Services have been held a "thing of value" under other federal criminal statutes.  See, e.g., United States v. Croft, 750 F.2d 1354, 1361 (CA7 1984).  I have not yet found any authority specifically on this statute.

A Real Winner

Six murders, four rapes, two death sentences from two different states - and Alfred Prieto is still breathing.  Here is a case that poignantly demonstrates the deficiencies with the California death penalty track.

To best explain Prieto's homicidal history, a timeline might be best.

News Scan

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ACLU Sues Pittsburgh Police:  The Wall Street Journal reports the ACLU filed a 42-page lawsuit today against the Pittsburgh Police Department, alleging that police wrongly arrested 25 people at an anti-police brutality protest after last year's Group of 20 protest.  Referring to the incident as one of a "totalitarian regime," the ACLU's legal director likened the officers' conduct to incidents in Iran or Russia.  The lawsuit seeks, among other things, damages for "emotional distress." 

Low Security Expected for First Gitmo Detainee Trial:  The NYPD has not requested federal financial assistance for security in the upcoming terrorism trial against Ahmed Khalfan Ghailani, reports the Wall Street Journal.  While city police claim there will be some additional behind-the-scene measures taken and federal officials plan to beef up security in and around the federal courthouse, there will be no street closures or extra officers assigned to the area.  This stands in stark contrast to the $200 million a year NYPD requested for the proposed trial of Khalid Sheik Mohammed, who was at one point also set to be tried in the federal courthouse in NYC.  While counterterrorism officials have deemed Ghailani as one of the most dangerous terrorists in U.S. custody, an NYPD spokesman attributed the discrepancy in security costs to the fact that Ghailani "does not nearly have as high a profile as Khalid Sheik Mohammed and does not require the same security measures."

Georgia Execution Delayed:  The Georgia Supreme Court delayed tonight's scheduled execution of Brandon Rhode after he tried to kill himself in his cell.  Rhode's attorneys brought a new competency challenge, claiming the attempted suicide clearly proves Rhode is mentally incompetent and cannot constitutionally be executed.  Prison officials have re-scheduled the execution for this Friday.  The AP has this story.

SCOTUS Won't Block Execution of Virginia Woman:  The AP reports that in an order issued today, SCOTUS declined to halt the execution of Teresa Lewis, who is scheduled to die by lethal injection on Thursday.  Justices Ginsburg and Sotomayor voted to block the execution. Update: The order is here.


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What happens when their are no consequences for misbehavior?  C.W. Nevius reports in the SF Chron:

San Francisco police Officer Gary Buckner was assigned to patrol the streets looking for quality of life crimes - like people drinking or urinating on the street or aggressive panhandling - in 2008 and 2009. But after he cited one persistent panhandler 35 times for pestering drivers at a traffic light on South Van Ness, Buckner reached a discouraging conclusion.

"There is no consequence whatsoever for their actions," Buckner said. "I've written hundreds and hundreds of citations, and I think I was called to court (to testify) twice."

Citations for minor offenses are all well and good, but eventually they have to be backed up with serious consequences for those who scoff at mere tickets. The consequence of no consequences is:

The whiff of urine in the street, the drunk on the sidewalk, and the aggressive panhandler are constant reminders that San Francisco can't seem to get a handle on the challenge of deadbeats who loiter on the city's sidewalks. If we forget, we're reminded by tourists who came to what they thought was a world-class city.

"How can you expect people to pay to come into a city that is awash in fifth and slime?" one wrote me last year. "No thank you. I will stay as far away from the city as possible."

Witness Tampering

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Amanda Bronstad has this story in the NLJ:

Sean Erenstoft of the Law Office of Sean Erenstoft in Sherman Oaks, Calif., who was indicted in January, pleaded no contest on July 14 to one felony count of attempting to dissuade a witness. Specifically, he filed a civil case against a witness to dissuade her from testifying against his client, a defendant in a stalking case, during a preliminary hearing, according to the district attorney's office. He later dropped the civil case after the witness testified favorably during his client's sentencing hearing.
As part of his own sentence, Erenstoft was ordered to pay $9,028 in restitution to the witness.

Erenstoft, who was admitted to practice in California in 1992, faces automatic disbarment because he committed a felony "that involves moral turpitude," according to the State Bar of California.

Connecticut & the Death Penalty

| No Comments has this interesting editorial about the necessity of the death penalty in the most horrendous of cases.  The discussion appears to have been sparked by three such cases in Connecticut's recent history: Christopher DiMeo, who shot to death a husband and wife while robbing their jewelry store in 2005; Richard Roszkowski, who shot a man and woman, as well as the woman's nine-year-old daughter as she ran away, in 2006; and Steven Hayes and Joshua Komisarjevsky, who murdered, raped, and torched to death the family of Dr. William Petit in 2007.  The author of the editorial writes,

"The people who voluntarily committed these acts of savagery have declared themselves as aberrations, as living, breathing menaces to anyone who crosses their paths.  The just disposal of these cases, these revolting assaults on innocents, calls for the ultimate punishment."

Connecticut is a death penalty state and there are currently 10 men on its death row.  However, since Gregg v. Georgia in 1976, the state has only executed one person - Micheal Ross, aka "The Roadside Strangler" - who murdered and raped eight young women during a three-year period in the 1980's. 

Whitman on Prisons

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The Sacramento Bee has this story on its editorial board's interview with governor candidate Meg Whitman:

She also said she would "take a whack" at reining in the state's prison costs, including moving prisoners to other states and cutting prison health care costs.
She added that she would seek pension reforms for prison guards, while other public safety employees would be exempt from such changes. Whitman also said she could see building another prison if elected governor but would try to avoid building a new "death row" prison.
As we have noted previously on this blog, California does not need a new death row.  It needs to reduce the occupancy of the existing row by carrying out more of the judgments in a more timely manner.  One of the main reasons we haven't is the failure of Ms. Whitman's opponent, present AG Jerry Brown, to apply for the fast track on federal habeas that California has long qualified for but never received.

Cutting health care costs is going to be a problem, given that the system is presently being run by a czar rather than the elected government.  It can probably be done with improvements to efficiency, though, while still maintaining a constitutionally adequate standard of care.  Whether the federal court will understand that "constitutionally adequate" does not equal "best practices" remains to be seen.

California Execution Injunction Lifted

Just in from the California Court of Appeal, First District (which includes Marin Co. and the Big Q):

In accordance with our notification to the parties that we might do so, we will direct issuance of a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at pp. 177-180.) Petitioners' right to relief is obvious, a temporal urgency exists warranting acceleration of the normal process, and no useful purpose would be served by issuance of an alternative writ, further briefing and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241; see also Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240-1244.) Let a peremptory writ of mandate issue directing respondent superior court to vacate its August 31, 2010 order granting real party Sims's motion to enforce the injunction and ordering the CDCR to refrain from carrying out any lethal injections unless and until the court dissolves its permanent injunction, and to issue a new and different order denying real party Sims's motion to enforce the injunction and related requests. This decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(3).) The parties shall bear their own costs. (Cal. Rules of Court, rule 8.493(a)(1)(B), (2).) * Before Simons, Acting P.J., Needham, J. and Bruiniers, J.

California Department of Corrections and Rehabilitation et al. v. The Superior Court of Marin County, A129540.  The unpublished opinion is here.

Plain English translation: (1) California can proceed with execution by the new lethal injection protocol; (2) the Superior Court judge who tried to block it has been chastised.

This doesn't resolve the federal case, of course, but no stay is in effect in that case, and the Supreme Court said in Baze v. Rees that it is error to grant a stay if the protocol is at least as good as the Kentucky protocol before the Court in that case, which California's clearly is.

News Scan

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Seventh Time's a Charm?:  The murder trial against Alan Ruff is set to begin today in Florida for the seventh time, reports the Sun Sentinel (FL).  Ruff is charged with killing his ex-girlfriend Traci Cooper, whom he allegedly stabbed 49 times on a Sunday morning in 2001.  The first and fourth trials were declared mistrials before the case reached jurors, and the second, third, and fifth ended in hung juries.  The state's sixth attempt was successful, and Ruff was convicted of first degree murder and sentenced to life.  That conviction was overturned, however, by an appellate court's ruling that the prosecutor improperly presented Ruff's ex-wife as a witness.  The prosecutor in the case remains confident that this seventh trial will result in a conviction, but Cooper's family members are frustrated with their difficulties in finding closure.

Georgia Death Row Inmate to be Executed Tomorrow:  A parole board last week denied clemency to Georgia death row inmate Brandon Rhode, who is scheduled to be executed tomorrow evening.  Rhode was convicted of the murders of 11-year-old Bryan Moss, 15-year-old Kristin Moss, and 37-year-old Steven Moss, whom he killed during a home burglary in 1998.  The Jones County News (GA) has this story.

Senator Graham on KSM:  The Blog of LegalTimes reports on Senator Lindsey Graham's (R-SC) promise to do "anything in [his] power to make sure Khlid Sheikh Mohammed never sees the inside of a federal court."  Senator Graham claims that after the November elections, he will introduce new legislation to boost antiterrorism efforts, including a statutory national security exception to the Miranda rule and an official procedure for holding suspected terrorists indefinitely.  

NCSL Video

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Video of the death penalty session at the National Conference of State Legislators last July in Louisville is available here.  The usual "members only" rule is waived, and this video is accessible by everyone.

The panelists are yours truly, Richard Dieter of the "nonpartisan" [ahem] Death Penalty Information Center, and Moe Maestas, a New Mexico legislator involved in the repeal effort there. Two against one is becoming par for the course in events of this nature, but I think I held up my end even so.

The audience was apparently all or nearly all on the anti side, if the questions are any indication. My exchange with Dieter on the "innocence list" is at about the one hour mark.

Thanks, but . . .

While it's almost always nice to receive a complement, sometimes the complementer is so clueless that all you can do is laugh.  A web site called Criminal Justice Degree has this entry in a page listing the Top 50 Criminal Defense Blogs:

7. Crime and Consequences : This blog is sponsored by the Criminal Justice Legal Foundation. Issues include death penalty, mental state, sentencing, victim's rights, and more. With dozens of blog entries per month, make time for this criminal defense blog.

Now where's that application NACDL keeps sending me? I know I have it somewhere.

Oh yeah, not only is SCOTUSblog also a criminal defense blog (at least arguable, given that it does tilt in that direction whenever it covers criminal issues), but it is also "the official blog of the Supreme Court of the United States."  I expect that will come as a great surprise to the clerk and justices of the Supreme Court of the United States.

Howler for Today

Woody Will Smith killed his wife.  His defense?  Psychosis due to caffeine intoxication:

Defense attorney Shannon Sexton filed notice with the Newport court of plans to argue his client ingested so much caffeine in the days leading up to the killing that it rendered him temporarily insane -- unable even to form the intent of committing a crime.

And psychologist Robert Noelker has provided an expert opinion to bolster this patently absurd defense:

In the weeks preceding May 4, 2009, Woody Smith told Noelker, he hadn't been sleeping, in part out of fear his wife would take their two children and leave him.

"The next several hours of Mr. Smith's life, were described to me as if he were in a daze," Noelker wrote in a report.

After sleeping intermittently, Smith had nap with one child he picked up from school at midday at a school near their home in Dayton, Ky., across the Ohio River from Cincinnati. After picking up the second child later that day, Smith said he went to his mother and stepfather's house.

He described feeling "out of control," weeping to the point of being unable to communicate. Smith eventually confided in his stepfather, Noelker wrote, "I think my wife is dead..."

Noelker said he determined Smith was open to "brief psychosis" brought on by sleep deprivation, which was caused by the heavy ingestion of diet pills and caffeine in the weeks leading up to his wife's death.

"It is my opinion that this disorder was the direct result of psychosis due to severe insomnia," Noelker wrote in a report filed in Smith's case. Noelker is expected to be called as a defense witness.

 Yes, Kentucky does offer a voluntary intoxication defense (see, KRS 501.080(1)). 

EU Arrogance

Nile Gardiner has this commentary on the London Telegraph's world news blog:

It is bad enough that unelected, pompous Brussels bureaucrats constantly meddle in British affairs just over the Channel. But when European Union apparatchiks think they can even interfere in the internal policies of the United States several thousand miles away, that is surely a bridge too far. I don't recall Washington ever signing up to the Treaty of Lisbon or the European Convention on Human Rights, or the United States Congress rubber-stamping the ludicrously named European External Action Service.

The new EU Ambassador to Washington, Joao Vale de Almeida has already declared his bullish intention to speak for the whole of Europe at the expense of individual nation states. Now he seeks to put that into practice by condemning California's decision to execute a convicted kidnapper, murderer and rapist on September 29, who is isn't even from Europe.
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I hope that Governor Schwarzenegger sends the EU Ambassador a resounding hasta la vista on this matter, and that the citizens of California let Mr. Vale de Almeida know that they do not live in a far-flung province of the European Union and value their liberty and independence as part of the freest nation on earth.

Gov. Denies Clemency to Black Widow

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Virginia Governor McDonnell has denied clemency to Teresa Lewis, one of the few women on death row.  As is often the case with the very few women who commit capital murder (as distinguished from lesser degrees of homicide), Lewis is a "black widow" who had her husband killed for the insurance money.  One unusual variant is that Lewis also had her stepson killed.  As noted in the previous post, John Grisham conveniently overlooks the body count in claiming that other similar cases did not result in death sentences.

The Governor's statement is here at the GoDanRiver site (curiously not on the Governor's own site). WaPo story here; Richmond Times-Dispatch story here.

Also at is this story by Steve Doane with quotes from people who were involved in the case or knew Lewis personally (or both). They refute the notion that Lewis is so mentally impaired as to be incapable of masterminding this plot.

As for people who knew Teresa Lewis before the crime, several declined to comment because of the pain and deep sense of betrayal Lewis caused.

"She was raising her hand and praising the Lord even after he (Julian) was dead," said Debbie Yeatts. "I thought she was my friend, but she used and deceived us all."

Yeatts is described in court documents as Lewis' best friend, but wished to be identified only as an "acquaintance."

This is a case where regular folks who knew the person and observed her in daily life are much better judges of her capacity than psychologists with their artificial tests.

Poll on Sex Offenders

A new Rasmussen Poll shows that the American people favor tough laws on sex offenders, but they think "sex offender" should be defined more narrowly than present laws often do. Article here; toplines here.

Overwhelming majorities favor a public registry for sex offenders, continuing registration requirements after completion of parole, and even indefinite detention. However, a 17-year-old boy who has sex with his 15-year-old girlfriend is not the public's idea of a sex offender. A plurality say that should not be illegal at all, and 81% say he doesn't belong on the registry. During the oral argument of Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003), the Justices expressed concern about that situation, but Doe was not in that category, so they didn't address it.

We at CJLF have never been enthused about the civil commitment laws.  Among other problems, the whole concept requires buying into the idea that rapists are sick rather than evil.  The better solution, at least for the long term, is to return to indeterminate sentencing for forcible rape and similarly atrocious sex crimes.  Impose a sentence of X-to-life and let the parole board decide when it is safe to let them out.

The Dangers of Small Sample Sizes

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The Violence Policy Center has this study with the surprising finding that the State of Vermont, a very low-crime state generally, had the second-highest rate of women killed by men in 2008.  WCAX story here.

Does this mean anything? Probably not. The study only looks at one year, and there are only eight murders in the category in Vermont in that year.

Anomalous results pop up now and then just at random, particularly when sample sizes are small.  Why are so many recent Presidents left-handed?  Why are so many of the top poker pros named Phil?  Probably no reason but chance.  These are very small numbers of people.

This study would need to be done over many more years to see if there is anything worthwhile here.

News Scan

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No GPS For Some Massachusetts Sex Offenders:  The state's high court today affirmed that GPS monitoring may not be retroactively added to a probationer's conditions.  In 1990, Ralph Goodwin pleaded guilty to kidnapping a seven-year-old boy and sexually assaulting him in a basement.  Goodwin was sentenced to a term of 30 to 40 years, but was released on probation in 2009.  Shortly after his release, the state sought to add a GPS monitoring requirement to Goodwin's probation conditions.  Citing a 2009 case, the court ruled that absent a probation violation or other major change in circumstances, such a "punitive" condition as GPS monitoring could not be retroactively added to Goodwin's conditions.  The Boston Herald reports that 162 convicted sex offenders have also successfully terminated their GPS monitoring requirement as a result of the 2009 case.

Seattle Cold Case Killer x 2:  The Seattle Post Intelligencer (WA) reports a Washington ex-con has been hit with his second cold case murder charge of the year.  In March, Samuel Evans was charged with the shooting death of Jackson Schley in 1972 (Evans also abducted and raped Schley's wife at the time).  Today, prosecutors charged him with an even colder case - the stabbing death of James Kueler in 1968.  Both unsolved murders were linked to Evans through a DNA database, to which Evans was added while he served a separate 20 year sentence for sexual assault in Nevada.

En Banc Hearing for Washington's Felon Disenfranchisement Law:  The Ninth Circuit will revisit the legality of Washington's felon disenfranchisement law, which prohibits incarcerated felons from voting.  In January, a three-judge panel of the court struck down the law, finding that its disparate effect on minorities stemmed from racial discrimination in the state's criminal justice system.  Argument is set for next Tuesday.  The Seattle Times (WA) has this story.  
Marie Gryphon has this piece in the National Law Journal refuting the common misconceptions that "criminal defendants can't get a break from conservative judges" or that "Republican appointees decide criminal cases based on the identity of the parties rather than the content of the law."  Gryphon writes that in criminal cases involving statutory interpretation, "strict constructionist" justices such Scalia and Roberts take the same restrained approach they do in cases involving constitutional interpretation.  In the statutory cases, this approach often favors the criminal defendant, whose conduct may not be criminal under a narrow reading of the law.  In fact, Gryphon argues,

"In the nine criminal cases the Court decided last term that raised questions of statutory rather than constitutional interpretation, Justice Antonin Scalia, Chief Justice John Roberts Jr. and Justice Anthony Kennedy were among the most 'liberal' on the Court: They sided with the criminal defendants in these cases eight out of nine times.  The only justice with a more pro-defendant record on these cases last term was John Paul Stevens."

See also Kent's post here on this subject.
So reports a new study available from the American Journal of Psychiatry:

Objective: The authors recently observed a correlation between state altitude and suicide rate in the United States, which could be explained by higher rates of gun ownership and lower population density in the intermountain West. The present study evaluated the relationship between mean county and state altitude in the United States and total age-adjusted suicide rates, firearm-related suicide rates, and non-firearm-related suicide rates. The authors hypothesized that altitude would be significantly associated with suicide rate.  Method: Elevation data were calculated with an approximate spatial resolution of 0.5 km, using zonal statistics on data sets compiled from the National Geospatial-Intelligence Agency and the National Aeronautics and Space Administration. Suicide and population density data were obtained through the Centers for Disease Control and Prevention (CDC) WONDER database. Gun ownership data were< obtained through the CDC's Behavioral Risk Factor Surveillance System. Results: A significant positive correlation was observed between age-adjusted suicide rate and county elevation (r=0.51). Firearm (r=0.41) and non-firearm suicide rates (r=0.32) were also positively correlated with mean county elevation. Conclusions: When altitude, gun ownership, and population density are considered as predictor variables for suicide rates on a state basis, altitude appears to be a significant independent risk factor. This association may be related to the effects of metabolic stress associated with mild hypoxia in individuals with mood disorders

News Scan

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Military Judge Rejects Request to Keep Fort Hood Trial Closed:  Col. James Pohl, a military judge acting as the investigating officer in the case against Nidal Hasan, determined earlier today that Hasan's Article 32 hearing (the military equivalent of a grand jury hearing) will remain open to the public.  Hasan's attorneys sought to keep the hearing closed, claiming that allowing the public to hear testimony from the nearly three dozen expected witnesses will create even more pretrial hostility against their client.  Col. Pohl rejected the argument, stating that the public and the family of the 13 murder victims have a right to hear the testimony.  The AP has this story.  

Marijuana is Gateway Drug According to Government Report: 
CBS News reports on a government report showing an increase in illegal drug use in 2009 as compared to 2008.  The survey reports that over 20% of young adults experimented with illegal drugs last year, "driven in large part by the use of marijuana."  "Drug czar" Gil Kerlikowske attributes this figure in part to the mixed messages the population is receiving about the harmless or medicinal effects of the drug - for the first time since 2002, less than half of young adults believe that marijuana is harmful.

Kentucky Execution Put on Hold:   The execution of Kentucky death row inmate Gregory Wilson will not take place tonight as planned, reports the Lexington Herald-Leader (KY).  Wilson was sentenced to death for the 1987 murder of Debbie Pooley, whom he kidnapped, raped, and strangled.  A state court judge put the execution on hold last week, based on concerns with the state's lethal-injection process and the possibility that Wilson is mentally retarded.  Prosecutors appealed to the state supreme court to lift the stay.  The story says, the injunction stays in place because defense attorneys did not respond. That seems odd.  In most states a higher court can act on a motion to lift a stay in these circumstances without a response if the defendant chooses not to file one.   

Constitution Day

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Tomorrow, September 17, is the anniversary of the day in 1787 when the Constitutional Convention officially submitted its proposed constitution to the people of the United States. The Constitution was a huge step forward from the state of government up to that point. Its division of power between the states and the federal government and between the branches of the federal government was a structure that would provide a government both robust enough to meet the legitimate needs yet with enough built-in checks and balances to reduce abuse of power to a lower level than any other method tried before or since.

Yet for all the rhapsodizing one hears about the "perfect Constitution," it was far from perfect.  The Constitution was the product of political compromise.  Many of its original defects have been corrected by subsequent amendments, but some remain.

The limitation of Congress to enumerated powers does not have enough teeth.  In today's WSJ, Randy Barnett and William Howell propose a "repeal amendment" to allow 2/3 of the states to repeal an Act of Congress by resolution, an idea harkening back to the Virginia and Kentucky Resolutions drafted by Madison and Jefferson in reaction to the Alien and Sedition Acts of the Adams Administration.

Another defect, and in my view the more dangerous one, is the lack of an effective check against the Supreme Court "amend[ing] the Constitution by interpretation," as Justice Black put it. The Framers correctly required a very high degree of national consensus to affirmatively change the supreme law by constitutional amendment under Article V.  It takes 2/3 of both houses of Congress and 3/4 of the states. Yet five people can amend the Constitution to mean something it never meant before, and then we need that overwhelming consensus to adopt an amendment simply to put the Constitution back the way it was.

I suggest that whenever (1) a statute and a provision of the Constitution have both been on the books for 10 years or more, (2) within the first 10 years after the enactment of the later of the two, no appellate court in a published decision has held them to be in conflict, and (3) the Supreme Court then finds a conflict or denies review of a lower court decision so holding, the executive may appeal that decision to the Senate. By majority vote, the Senate may decide that the correct interpretation of the constitutional provision does not conflict with the statute and return the case to the court for a decision consistent with that interpretation.

This procedure would have little impact on legitimate judicial review of statutes.  If a statute is indeed in conflict with a constitutional provision, the conflict will be apparent right off the bat.  It would dampen the rewriting of long-ago adopted constitutional provisions to strike down long-standing statutes with interpretations that did not occur to the people who wrote and ratified the constitutional provisions. In Graham v. Florida, the Supreme Court discovered that punishments authorized by statutes of the federal government and 37 states now violate a 219-year-old constitutional amendment that they never violated before.  We need to have someplace to appeal such decisions.
... is question currently before the New Jersey Supreme Court.  During the 2007 Senate Primary, the Hudson County Democratic Party circulated flyers claiming that an aid to a Senate primary candidate was a "convicted drug dealer."  While the aid had in fact been convicted in 1993 of second-degree possession with intent to distribute and sentenced to five years in prison, his record was expunged in 2006.  He sued for libel, but the state appellate court determined that because the "successful expungement of [the] record does not make defendant's statements about that record 'false,'" circulation of the flyers did not give rise to an actionable defamation claim.  The aid appealed to the state supreme court, requesting that the court adopt a "legal fiction" that because the conviction was expunged, it never actually happened.     

 Read Michael Booth's article in the New Jersey Law Journal here.

A Legalization Debate

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Many of you will know Professor Doug Berman of Sentencing Law and Policy.  I had the opportunity to debate Doug this week on the issue of drug legalization.  The debate occurred at Ohio State Law School, where Doug is the William B. Saxbe Professor of Law and  --  no less  --  has his picture at the front entrance of the auditorium where the debate was held.  The event is posted at the site below.  Since both Doug and I like to talk, the debate, including audience questions, went on for over an hour.  It is presented in six segments, starting with this one.

Doug went first.  I show up in the first segment at about 13:20.  You can see for yourself, but I found Doug to be a friendly and gracious man and an innovative thinker.  He's a liberal and I'm a conservative, but I believe both of us came off as reasonably thoughtful.  He certainly did, I'm sure of that.

Thanks to the Ohio State Federalist Society and its President, Aman Sharma, for hosting the event. 

Statutory Stalemate in the 112th Congress?

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Keeping an eye on criminal law necessarily involves keeping an eye on politics. What are we likely to see in the 112th Congress in terms of its willingness to move criminal law in the right or wrong direction?

Real Clear Politics' "Battle for the House" page shows a strong possibility of a Republican takeover. With 218 needed for a majority, the Republicans need to win the seats categorized as safe, likely, or leaning theirs (or, if there are upsets, an equal number on each side) plus about 1/3 of the seats rated "toss ups."  That is likely, particularly in light of the "enthusiasm gap" consistently shown in the polls.

The Senate is the more important of the two houses, though, given its role in judicial confirmations.  In the "Battle for the Senate" page, the small print says "51 Seats Needed for Majority," but actually the Dems need only 50: tie goes to the Veep. Using the same assumption of zero or equal upsets, the Republicans would have to "run the table" of all 6 toss-ups to take control.  Change is possible, again considering the enthusiasm gap, but it is much less likely than in the House.

On the other hand, "control" means less in the Senate, where many actions require supermajorities. This applies to judicial nominations as well, after the Democrats established a practice of routine filibuster of nominees during the Bush Administration.  A majority of 51 means a party gets the committee chairs, but it doesn't mean the ability to ram its agenda through.

So what do we get in criminal legislation with the Republicans having a narrow majority in the House, the Senate almost evenly divided, and a member of the Democratic party's lefter wing in the White House?  Probably stalemate, for the most part.  Major legislation will require genuine bipartisan consensus.  That happens occasionally, as in the Sentencing Reform Act of 1984, but it's not common.  Stalemate would be an improvement over the present situation. We've been pretty much holding our breath since 2006, wondering what damage Congress will do.

On judicial nominees, President Obama may have to lean toward less plainly activist candidates, as President Clinton did after 1994.  We shall see.

News Scan

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Conviction and Life Sentence Overturned Due to Juror Calculations:  A California appeals court yesterday reversed the murder conviction and life sentence of John Davis, reports the San Francisco Chronicle.  In 1985, Barbara Martz was found raped and stabbed to death in her San Francisco apartment.  The case went cold until 2002, when a crime scene sample was matched to Davis, who was in the California DNA database following a robbery conviction.  During deliberations, a juror claiming to have specialized knowledge in the field proposed a formula for calculating the likelihood that one of Davis's four brothers could be the source of the crime scene sample.  The court found the jury's reliance on this extrajudicial formula (and a Melendez-Diaz issue) to be reversible error.

U.S. Fails to Counter Homegrown Terrorism According to Report:  FoxNews has this story on a new report compiled by the September 11 Commission, which finds that the U.S. has failed to take adequate steps to combat the serious threat of homegrown terrorism.  Referring to the deficiency as the U.S.'s "Achilles' heel," the report points to the lack of a specific federal agency charged with preventing radicalization and recruitment of U.S. citizens, as well as instances of domestic terrorism such as the Fort Hood massacre and the unsuccessful Times Square bombing.  The report is slated for release on Friday.

The Cal Brown Execution

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Jennifer Sullivan has this story in the Seattle Times.

"It's been so long that we have had to deal with all of this; now that it's over, I don't have to think about him anymore," a tearful Becky Washa, Holly's sister, told reporters during a news conference after the execution.
The story is mostly about the debut of Washington's one-drug protocol.

After making a nearly three-minute statement from the prison's death chamber, Brown was administered five grams of sodium thiopental intravenously while strapped to a gurney. His chest heaved three times and his lips shuddered, then there was no movement.

Witnesses said Brown died about a minute and a half after the drug was administered. He was pronounced dead by prison officials at 12:56 a.m. Brown was the first person executed in Washington since August 2001.

The anti-DP lawyer says exactly what you would expect. "However, killing a human being is never humane when we could instead lock him up forever."  Of course, we have seen in the case of the juvenile murderers that the instant the death penalty is off the table they start claiming that locking them up forever is inhumane and referring to LWOP as a sentence to "die in prison."  That is, death is suddenly no longer different.

He also predicts the other states will switch. On that point, I agree, although it may be a slow process. It will be slower than it needs to be because the anti-DP crowd and courts sympathetic to them have imposed unnecessary obstacles to the procedure for changing protocols in many states.

Campaign Ad

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Is there an Oscar-type award for campaign ads? This ad deserves one.  Although the candidate has zero chance of winning the election, he's having a good time.

Pretrial DNA Database Collection

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Collecting DNA for the purpose of entering into a database is well-established practice for people convicted of certain crimes.  Collecting DNA for this purpose from people merely accused is a more recent and more controversial development.  Obviously, the usefulness of the database for solving unsolved crimes grows as the database grows.

Congress authorized such collections in federal criminal cases in 42 U.S.C. §14135a and 18 U.S.C. §3142(b)&(c)(1)(A).  A divided panel of the Ninth Circuit today upheld the use of these statutes in United States v. Pool, No. 09-10303.  Look for this one to go en banc.

Pretrial DNA Database Collection

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Collecting DNA for the purpose of entering into a database is well-established practice for people convicted of certain crimes.  Collecting DNA for this purpose from people merely accused is a more recent and more controversial development.  Obviously, the usefulness of the database for solving unsolved crimes grows as the database grows.

Congress authorized such collections in federal criminal cases in 42 U.S.C. §14135a and 18 U.S.C. §3142(b)&(c)(1)(A).  A divided panel of the Ninth Circuit today upheld the use of these statutes in United States v. Pool, No. 09-10303.  Look for this one to go en banc.

The Pot Debate

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Cully Stimson at Heritage has this memorandum opposing the legalization of marijuana.

The Race Card

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The nuclear weapon of American political debate is to claim that the opposing position has a covert racist purpose.  The defense side of the criminal justice debate loves to play that card, and they do it every chance they get.  The accusation is made regularly against conservative positions generally. UVa Prof. Gerard Alexander has this piece in last Sunday's WaPo exposing some of the fallacies.
NPR has this recent interview with Justice Stephen Breyer, in which he discusses his ideas about the Constitution as a "living document," the appointment of judges based on their politics, and how the Supreme Court has changed since he was appointed to the bench in 1994.  The article also provides an excerpt from Justice Breyer's book Making Our Democracy Work, A Judge's View.

Maybe Next Time He'll Wear a Belt

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For our Fourth Amendment enthusiasts, the Minnesota Court of Appeals issued an interesting decision today regarding whether pulling up a suspect's baggy pants constitutes a "search."  Officer Kara Breci observed Frank Wiggins and several other men parked suspiciously in a high drug-activity parking lot.  After seeing a bag of marijuana in their car, Officer Breci ordered Wiggins to step out and raise his hands above his head.  When he did so, Wiggins's baggy jeans fell to his knees.  Before frisking him, Officer Breci pulled his pants up to his waist and felt a .380 caliber pistol (which Wiggins was not allowed to have, given his prior convictions).

Wiggins argued that Officer Breci conducted an illegal frisk by pulling his up his pants, and that to hold otherwise would "encourage officers to trample the privacy of young people who participate in the baggy-pants fashion trend." 

The ABA Blawg 100

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The ABA Journal is once again soliciting nominations for its annual list of the 100 best legal blogs.

"Friend-of-the-blawg briefs are due no later than Friday, Oct. 1."

News Scan

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Pretrial Hearings Continue in Case Against Suspected Embassy Bomber:  A hearing will be held today in the case against Ahmed Khalfan Ghailani, who is suspected of plotting the 1998 bombings of the U.S. Embassies in Tanzania and Kenya.  Last month, presiding U.S. District Court Judge Lewis A. Kaplan determined that the testimony of one of the government's proferred key witnesses was inadmissible because the witness was identified through the CIA's use of "extremely harsh interrogation methods" against Ghailani.  Today, the government will make another attempt for the testimony's admissibility, arguing that it is "sufficiently attenuated" from the alleged illegality.  Ghailani has already tried - unsuccessfully - to dismiss his case based on a violation of his right to a speedy trial.  (Read CJLF's brief here.)  Jury selection is set to begin next week, making Ghailani the first Gitmo detainee to be tried in civilian court.  The New York Law Journal has this story.

Nationwide Murder Suspect Appears in Court:  The Napa Valley Register (CA) reports on the court appearance of Roy Allen Melanson, who is suspected of stabbing to death Anita Andrews at a California bar 36 years ago.  Melanson arrived at the Napa Superior Court from his current residence - the Colorado Department of Corrections - where he is serving a life sentence for killing backpacker Michele Wallace.  Melanson was linked to Andrews's death after he was matched to a crime scene sample through a federal DNA database.  He has also been charged with the 1988 murder of Charlotte Lily Sauerwin in Louisiana and remains a suspect in an unsolved Texas murder case.

Husband/Father Takes Stand in Horrific Home Invasion Trial:  Connecticut doctor William Petit took the stand today in the case against Steven Hayes who is charged, along with co-defendant Joshua Komisarjevsky, with torturing, sexually assaulting, and murdering Petit's wife and two daughters in 2007.  Petit testified that after a pleasant Sunday with his family, he awoke at 3 a.m. on the couch with blood running down his face and two armed men standing in front of him.  After the men bound his wrists and ankles to the couch, he heard them upstairs with his wife and daughter.  Though he lost nearly seven pints of blood, Petit was able to free himself and crawl to a neighbor's house, but it was too late.  Hayes and Komisarjevsky offered to plead guilty for life sentences, but prosecutors commendably pushed for trials and a chance at death sentences for the men.  Read ABC New's story here.      

September Engage

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The September issue of Engage, the journal of the Federalist Society's practice groups, is available here.  There are two articles from the Criminal Law group.  One is The Inadequate Jurisprudence of Adequate State Grounds by Tom Gede and yours truly. Any resemblance to CJLF's briefs in Philip Morris v. Williams, Beard v. Kindler, and Walker v. Martin is purely intentional.

Also in this issue is Swinging a Sledge: The Right to Effective Assistance of Counsel, the Law of Deportations, and Padilla v. Kentucky by Joseph Ditkoff of the Suffolk County, Massachusetts, DAs office.

News Scan

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Mexico's Largest Prison Break in History:  CNN reporter Gustavo Valdes reports on a massive manhunt last Friday after 85 inmates escaped from a Mexico prison on Mexico-Texas border.  The prisoners used a ladder to escape and quickly dispersed through the streets of Mexico.  66 of the fugitives were serving time on federal charges, and the rest for less serious violations.  Two prison guards remain missing and 44 have been detained under suspicion for corruption.   

"Speed Freak Killer" Set to be Released:  One of two convicted in a methamphetamine-fueled murder spree lasting 15 years in San Joaquin County, California, is set to be released from prison in the coming days, reports the San Francisco Chronicle.  Wesley Shermantine and Loren Herzog were each initially convicted of several first-degree murder charges, but in 2004, the California Court of Appeals tossed out Herzog's convictions and sentence after finding his confession to be coerced.  Without his videotaped confession, prosecutors had no choice but to enter a plea deal with Herzog.  Now, though Shermantine fortunately remains on death row, Herzon will walk free after serving 14 years of a 78-year sentence. Residents of San Joaquin County fear Herzog's release even though he will be released hundreds of miles away.  Herzog and Shermantine are also implicated in several unsolved murders.

Impeachment Trial Begins Against Federal Judge:  In its first impeachment trial since 1999 against former President Clinton, the Senate today began impeachment hearings in the case against U.S. District Judge G. Thomas Porteous of Louisiana.  Porteous, who was appointed by Clinton in 1994, is charged with accepting money gifts from several attorneys, including an all-expense paid trip to Vegas complete with expensive meals and a trip to the strip club.  Porteous's conduct was discovered during the FBI investigation "Operation Wrinkled Robe."  Though he was never charged with a crime, the Judicial Conference of the U.S. recommended that Congress consider impeachment.  If convicted by the Senate, Porteous will be the eighth judge to be removed by impeachment.  Read the AP's story here.

Homeland Security to Test Iris Scanners:   USA Today reports on DHS's plan to test iris scan technology on illegal immigrants in a Texas Border Patrol station.  Able to scan and take pictures from three to four feet away, iris scanners pose a faster method of identification than fingerprinting.  The military has used the procedure since 2007 to track suspected Iraqi militants.  The ACLU has expressed ... wait for it ... objections to such an efficient means of tracking persons. 

The Dire Consequences of Incarceration Nation

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You have to be living in a cave to have missed the din about wildly excessive imprisonment in the United States.  According to the Left, in recent years we have become the shame of the world  --  "incarceration nation."  It's gotten so bad that we have locked up an astounding X percent of the population (I forget exactly what "X" is, and I suspect it varies depending on which liberal website you're looking at, but I'm sure it's big and designed to impress).

Some might wonder where this appalling state of affairs will lead.

This morning, we found out.

Florida Event

This morning I will be speaking to a conference of Florida appellate judges in Ponte Vedra near Jacksonville. The title of the program is Point/Counterpoint: Sentencing Law and Policy / Crime and Consequences. No points for guessing who the other speaker is.

On a legal history trivia note, this is the landing site of the German U-boat full of saboteurs that led to the landmark Supreme Court case of Ex parte Quirin, 317 U.S. 1 (1942).

Note the dates: about seven weeks from landing of the U-boat to execution of the saboteurs. Ah, the good old days.

Murder For Hire

When one person hires another to murder a third, who is more culpable?

In the Getsy case in Ohio, the mastermind was tried separately on different evidence (not including Getsy's confession) and found guilty of a noncapital crime. As a result, triggerman Getsy was sentenced to death but the man who hired him was not.  A three-judge panel of the Sixth Circuit found it so outrageous that the obviously more culpable boss received the lesser penalty that it declared Getsy's sentence unconstitutional. Fortunately, the Sixth corrected this error en banc.  CJLF's brief is here.

Now there is much wailing and gnashing of teeth that Virginia is going to execute the boss but not the triggerman in a murder for hire scheme.  The anti-DP PR machine is claiming she wasn't really the "mastermind," but that claim has been examined and rejected by both state and federal courts. John Grisham has a piece in the WaPo, dated tomorrow, titled "Teresa Lewis didn't pull the trigger. Why is she on death row?" The Fourth Circuit's answer follows the jump.

Modern Day Katko (Criminal Version)

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For our readers who graduated law school in the past 30 years, you probably all remember nostalgically the famous Torts "spring gun" case Katko v. Briney.  For those who aren't familiar with the case (or you lawyers who tucked away your Torts knowledge after the bar exam), it was a case about an Iowa farmer who, frustrated with a string of breakins of his unoccupied farmhouse, rigged the door with a 20-gauge spring-loaded shotgun to shoot the legs of any unwanted intruders.  In 1967, Katko and a buddy, thinking the building to be abandoned, entered the farmhouse to collect some antique bottles.  The shotgun went off and blew away much of Katko's leg.  Katko sued the farmer for $30,000 and won, and the case stands for the idea that a landowner may not set deadly traps simply to protect his property.

Had Californian Wesley Jones read this case, maybe he would have thought twice about rigging a grenade to his vacation home door.  He apparently did not, and is now dealing much more serious  - and criminal - consequences than his Iowa farmer counterpart.  Jones's wife heard the pin drop when she opened the booby-trapped door, but fortunately the grenade did not detonate.  Jones originally faced an attempted murder charge, but pleaded guilty to lesser offenses and was sentenced to eight years for burglary, assault, and weapons charges.  Read the AP story here.

Conservatism, Federalism, and Criminal Law

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When applying simplistic labels, it is common to assume that the "conservative" position is in favor of the prosecution in criminal cases, and the "liberal" position favors the defendant.

It is more complicated than that, especially when the issue is federal criminal law. Conservatives tend to oppose expansive interpretations of federal power.  In addition, strict "textualist" reading of statutes may favor the defendant, as Marie Gryphon of the Manhattan Institute notes in this commentary at NLJ, on some recent federal criminal cases in the Supreme Court.

Today from the Ninth Circuit, we see an unusual split between Judges Kleinfeld and Callahan in United States v. Bennett, No. 06-50580. The question is whether the defendant violated a federal statute against "defraud[ing] a financial institution," 18 U.S.C. §1344.  The entity defrauded was not a "financial institution," but it was a wholly-owned subsidiary of one, Bank of America. 

Judge Kleinfeld joined Judge Wardlaw's opinion that the defendant's conduct does not violate the federal statute. Judge Callahan dissents. There is, of course, a more general prohibition against "defraud[ing] any other person of money...." It is found in California Penal Code §484(a).

Death Penalty in Massachusetts?

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Hilary Chabot reports in the Boston Herald:

The "cold-blooded" murder of a Hyde Park deliveryman for his pocket cash and a pepperoni pizza has reignited the push to reinstate the death penalty - in the middle of a hotly contested gubernatorial campaign just as the race kicks into high gear.

Two of the candidates in the three-way governor's race have said they would sign a death penalty bill.  Unfortunately, the third one (the incumbent) is leading.  Even so, the enthusiasm gap, the facts that off-year elections tend to have low turnout and low turnout tends to favor the more conservative candidate, and the fact that people who tell pollsters they favor the third party candidate tend to move to the major-party challenger at the moment of truth all raise the possibility of an upset.

Also at the Herald, Joe Dwinell reports on an internet poll: readers voted "it's time" to bring back lethal injections - and electric chair - by a resounding 70 percent.

Another 15 percent opted for the death penalty only for the "very worst murders." Life without parole collected 13 percent of the vote.

The participants in internet polls are self-selected, among the worst ways to select, so take this with a heaping tablespoon of salt.

The Kagan Recusals

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Yesterday, I noted here that Justice Kagan had recused herself from two state-prisoner habeas cases even though the Solicitor General had not filed an amicus brief. Tony Mauro has this post at BLT clearing up the reason.  It was the SG's decision not to participate, made by Ms. Kagan herself, that prompted the recusals.

In answers to questions from Sen. Jeff Sessions, R-Ala. about her recusal plans, Kagan forecast her actions when she said she would not participate in cases in which she approved or denied amicus participation. "If I personally reviewed a draft pleading or participated in discussions to formulate the government's litigating position, then I would recuse myself from a case," she wrote to Sessions.

It is unlikely that Justice Kagan's recusal will make a major difference in either case. I don't see her casting the fifth vote to reverse in either one.  Conceivably she might have been the fifth vote to affirm.  In that case, her recusal would make the difference between (1) an opinion favoring the habeas petitioner and setting a Supreme Court precedent and (2) a decision to let the grant of habeas relief stand in the individual case without setting a Supreme Court precedent (although the case would still be Ninth Circuit precedent).  Even that chance if remote, though, in my estimation. I expect a majority of the remaining eight to vote to reverse in both cases.


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Here is our vocabulary word for the day. Sheri Qualters reports in the National Law Journal:

On Thursday, the U.S. Court of Appeals for the 1st Circuit heard arguments in Shuman v. Spencer, a habeas corpus case in which a man convicted of double homicide is seeking a new trial, alleging ineffective assistance of counsel. The appellant, Robert Shuman, claims his trial lawyer failed to raise the defense that he killed two business associates because his ingestion of Zoloft caused a drug-induced state of agitation called akathisia.

The "deference" standard applicable on federal habeas corpus should be more than sufficient to reject this claim at the present stage of the litigation.

News Scan

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Federal Appeals Court Upholds Death Sentence for Rapist in 1979 Murder:  Bob Egelko of the San Francisco Chronicle reports on a Ninth Circuit decision affirming the death sentence of Harvey Heishman, who was convicted of murdering an Oakland woman in 1979.  Heishman fatally shot 28-year-old Nancy Lugassy in her front yard after she told police that Heishman raped her.  In appealing his death sentence, Heishman's attorneys claimed his trial lawyers failed to adequately investigate his background, including physical and sexual abuse he experienced as a child.  The Ninth Circuit concluded that while trial counsel's performance may have been deficient in some respects, any error would not have affected the verdict - especially in light of the heinousness of the crime and Heishman's eight previous sexual assaults.  Heishman may still seek reconsideration by the Ninth Circuit or appeal to the U.S. Supreme Court.

Crackdown on Cell Phones in Prison:  The AP has this story about Mississippi's latest efforts to crack down on cell phone possession by the state's prison population.  The state's department of corrections has signed on with private companies to immobilize the cell phones by sending radio waves to intercept the unauthorized calls.  Emergency and official calls will still go through, but inmates attempting to make a call will hear a recorded message informing them that "the cellular device you are using ... has been identified as contraband ... the device will no longer function."  While illegal possession of cell phones by inmates is widespread, Mississippi is the first to use such a system.  The state reports it has confiscated over 5,000 cell phones in the past two years. 

Proposed ICE Policy Could Let Illegals Go Free:  Jana Winter of reports on a proposed ICE policy that would prevent immigration officers from detaining illegal immigrants discovered during traffic stops.  The proposal includes several exceptions, allowing detainment of illegals with prior convictions or previous deportations, or where the traffic stop involves alcohol or drugs, but those not fitting within these categories would be let go.  ICE has defended against criticism of the proposal, with one official claiming it is simply a way to "solicit public input on how to best set priorities for the use of our limited detention resources to protect public safety.     

Cal Coburn Brown Executed in Washington


Cal Coburn Brown was executed by the state of Washington last night.  The story is here.  Brown raped, tortured and murdered a young woman, Holly Washa, in 1991. Here are links to the prior posts of Sept. 7, 2010, March 9, 2009, and June 4, 2007.

 Mr. Brown was not particularly repentant.  The story notes that:

Brown protested sentencing disparities, saying that criminals who had killed many more people, such as Green River killer Gary Ridgway, were serving life sentences while he received a death sentence.

"I only killed one victim," he said. "I cannot really see that there is true justice. Hopefully, sometime in the future that gets straightened out."

Brown did not apologize to the family of the victim, but said he understood their emnity for him. He said he forgave that hatred, held no emnity toward them...

Well that's cool.  The rapist and killer "forgives" the family of the victim for thinking poorly of him.  You can't make this stuff up.  No wonder abolitionists refuse to talk about specifics.

Congratulations to the Kings County District Attorney's Office for its sustained, outstanding work in this case, which is the first execution in Washington since 2001. 


UPDATE:  An astute reader points out that Brown's last words, though odious, were cogent.  This puts the lie to his lawyer's argument, made only shortly before, that he was mentally incompetent.  The reader asks why sanctions should not be imposed for an argument that the lawyer almost surely knew was false.  My own experience from the US Attorney's Office is that it's next to impossible to get sanctions imposed on a criminal defense attorney; unfortunately, courts seem to have come to accept false (and even preposterous) filings as part of the game.

[Update 2: The Supreme Court's order denying a stay is here. No dissent noted. -- KS]

Why Is the FBI visiting Rev. Jones?


There are news reports that Rev. Terry Jones has called off his constitutionally protected and utterly perverse plan to burn the Koran, in exchange for Imam Rauf's agreement to move the Gound Zero Mosque.  Some later reports cast doubt on this, so at this stage, it cannot be said with assurance whether the Koran burning will go forward.

Lost in these developments is another, quite troubling story.  This is the first line in an AP report filed six hours ago:

GAINESVILLE, Fla. -- FBI agents visited Thursday with a minister of a small Florida church that plans to burn the Quran on Sept. 11, as public safety became a paramount concern and President Barack Obama added his voice to the chorus of opposition.

The wording of this report suggests that the FBI is there to protect public safety.  Having been an attorney with the Justice Department for many years, I do not see how that can be the case.  There may well be public safety concerns (which I guess is a euphemism for the threat of violent retaliation against the Koran burning), but that is the concern of state and local police, not the FBI.  There is no visible nexus whatever for FBI involvement.  So what gives?

Two days ago I observed here:

It's true that Holder is not threatening to punish Jones. But in the First Amendment context, creating a chill is the next "best" thing to an overt threat of punishment. I have not objected to any other officer of the government calling Jones an idiot, including Gen. Patraeus and Sec. Clinton. But they can't send in the FBI...Holder can.

It may be pure coincidence that Jones called this thing off very shortly after the FBI came calling.  For the sake of the Republic, I sure hope it is.

Stay Denial[s] from the High Court

On the Supreme Court's website is this order denying a stay of execution for Cal Brown. Prior post here.

Still waiting on Holly Wood, scheduled to be executed by Alabama at 6:00 p.m. CDT today. CJLF's press release following the Supreme Court decision has more information on the case.  This shouldn't be a hard one, given that the Court is already familiar with his case and just last January affirmed by a 7-2 vote.

Update: The order denying stay is here.  "Justice Sotomayor would grant the application for stay of execution."  That's a bit odd.  She wrote the opinion shooting down his claims.  No indication that Justice Kagan was recused or dissented. 

The execution proceeded as scheduled.  AP report is here.

Meanwhile, back in the Northwest, Brown is claiming that if he stops taking a drug prescribed to him for a "mood disorder" he will become incompetent to be executed.  Stay tuned.

News Scan

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9th Circuit Reverses Murder Conviction:  The federal appeals court yesterday reversed the murder conviction of Antwion Thompson, who was convicted in 2002 for the stabbing death of 17-year-old honors student Arie Bivins.  Thompson confessed to the killing three times - once before his Miranda rights were read and twice after his rights were read and waived.  Nevertheless, the 9th Circuit concluded that under the circumstances of the interrogation, and in light of a 2004 SCOTUS decision, any Miranda warnings were rendered ineffective and none of Thompson's confessions was admissible.  Read the Contra Costa Times's (CA) story here.

Governor Signs "Chelsea's Law":  California Governor Schwarzenegger signed a bill today permitting LWOP for those convicted of violent sex crimes against children, reports the AP.  The signing took place alongside the parents of Chelsea King, a teenager murdered earlier this year by a convicted child molester who was released after serving a three-year prison term.

Unmanned Aircraft Patrolling Border:   The Houston Chronicle has this story about one of the latest high-tech efforts to patrol the U.S.-Mexico border - a 5 ton, sleek gray MQ-9 Predator B.  Remote-controlled, the aircraft can be maneuvered from several air bases and is equipped with cameras capable of detecting a backpacker from a 19,000 feet high and eight miles away.  Customs and Border Patrol officials already credit the aircraft with capturing 39,000 pounds of narcotics and 7,000 illegal crossers.  

He Brings "Stalking" to New Heights:  A private pilot in California pleaded guilty Wednesday to three counts of stalking after flying his small plane at very low altitudes over his ex-girlfriend's neighborhood, reports the San Francisco Chronicle.  Police believe Tom Huey has been buzzing the neighborhood since 2008.  He was sentenced to probation and ordered to take anger management classes. 

Tolerance and Respect, at Gunpoint

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There are many good reasons to oppose the proposed burning of the Koran:  It lumps Islamic jihadists together with the huge majority of Muslims who want to live in peace; it disrespects an entire religion; and it will be offensive and hurtful to individual Muslims.  It is ungenerous and, if I may, unAmerican (I know the Left has forbidden use of the word "unAmerican," but I might get a pass this time, since I'm using it to agree with them).

Some would also say it's unChristian, but I'm not going there.

There is, however, one lousy reason to oppose the planned Koran burning, and that's the threat that, if it goes forward, there could be violent retaliation.

If Rev. Terry Jones persists in this perverse, blockheaded and insulting exercise of his First Amendment rights, he should be able to do it without physical retaliation directed at him, much less directed at others.  I would take that to be elementary among those dedicated to free speech.  But I'm not hearing it much.  Indeed, what I'm hearing is that Jones should stand down because, among other things, there could be a violent response.

Am I the only one who thinks that's thuggishness?  And that instead of mumbling to ourselves that, yes, we need to worry about violence, we should be saying that violence won't be tolerated no matter how offensive this Jones stunt turns out to be?  If an atheist group proposed to burn the Bible to protest "In God We Trust" on our national currency, and some crazy sect then snarled that the burning could provoke violence, should our leaders  --  or any respectable person  --  take the position that the sect's threat was a reason the atheists should stand down?  Or should they say that, in this country, the peaceable tolerance of free speech, no matter how offensive, is built into the price we pay for our liberty?

You can't get maturity, respect or tolerance  --  from Rev. Jones or anyone else  --  at the point of a gun.  And those employing gunpoint-like threats in the present controversy, or urging the rest of us to bow to them, have some answering to do themselves. 

Mukasey Event in Sacramento

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Former Attorney General Michael Mukasey will speak Monday at a Sacramento Federalist Society lunch event on The War on Terror: Where We Are and How We Got There. For readers in the Sacramento area, there is still time to make a reservation.

Curious Kagan Recusals

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Justice Kagan has been recused (presumably by herself, though the Court doesn't say) from two habeas cases from the Ninth Circuit: Harrington v. Richter, No. 09-587 (California) and Premo v. Moore, No. 09-658 (Oregon).  The reason for recusal is not immediately apparent.  Court-watchers all expected her to recuse in cases where the United States was a party or had filed a brief while she was SG, but there is no U.S. amicus in either of these cases.  (Both are noncapital murder cases, BTW.)

Here are links to CJLF's briefs in the cases: Richter; Moore.

California Execution This Month?

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As noted here, California has completed the drawn-out process of establishing its protocol through the Administrative Procedure Act process. A date of Sept. 29 was set for the long-overdue execution of Albert Brown, as noted in this story by Richard De Atley in the Riverside Press-Enterprise.

The Superior Court judge in Marin County said that her stay is still in effect, and the California Attorney General went to the Court of Appeal with a writ petition. That case is California Department of Corrections and Rehabilitation et al. v. The Superior Court of Marin County, A129450.  The petition was filed September 1. The next day, the court issued an order on three points. First was a deficiency in service of process, which was quickly corrected. Second, the court set fast-track briefing: opposition by Sept. 8 (today) and reply by Sept. 13. Most importantly,

We advise the parties that this court might proceed by issuing a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) Generally the court will employ "the accelerated Palma procedure ... only when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue ... or where there is an unusual urgency requiring acceleration of the normal process." (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)

Sounds like they are serious.

BTW, I was at the annual conference of the Association of Government Attorneys in Capital Litigation last week. (It's good once a year to get together with the fighters for justice in person, rather than the email and telephone interaction we normally do.) Anyway, the fellow from Texas advised against scheduling more than two executions in a given week. The folks from California didn't think that would be an issue.

News Scan

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Technically...Sex Among Inmates is Illegal:  Phillip Matier and Andrew Ross of the San Francisco Chronicle report on a county jail in San Francisco in which 16 condom machines were installed for the jail's 750 prisoners.  Installation of the condom dispensers is part of the jails' safe sex program that started in 1989.  Even though sex among inmates is technically illegal, UCSF and a Southern California nonprofit organization gave small grants so that the Sheriff's Department could install 16 condom machines, one for each jailhouse pod.  According to Kate Monico Klein, director of the safe-sex program for the city's Public Health Department, sex is already taking place and "If (providing condoms) saves one or two lives, it's worth it."

"Former Soldier Accused of Threatening to Kill Obama to Appear in Court":  According to the CNN Wire Staff, Robert Anthony Quinones, a 29-year-old former soldier, was arrested after a hostage incident at a Georgia military base and is scheduled to appear in court today.  Quinones is facing multiple charges, including assault of a federal officer, kidnapping, and threatening to kill President Obama and former President Clinton.  According to the FBI, Quinones held three people hostage at Winn Army Community Hospital on Fort Stewart early Monday morning, demanding mental health care at the hospital.  After two hours, the gunman surrendered and no one was injured.  During interrogation he "expressed his plans, preparation and intentions to kill President Obama and former President Clinton," according to an affidavit filed in federal court.  "Quinones detailed his studies of Secret Service protocols, sniper techniques and means of disguise and weapons concealment to implement his assassination plans."  A search of his residence revealed multiple guns, pistols, ammunition, bayonets and knives.

State Held Responsible for the Needs of Disabled Inmates in County Jails:  San Francisco Chronicle Staff Writer Bob Egelko reports the Ninth Circuit ruled yesterday that the state is responsible for meeting the needs of disabled inmates and parolees held in California county jails.  Yesterday's ruling applies to inmates who were sentenced to prison for felonies but are now receiving drug treatment in the state's county jails, or those jailed after being arrested or resentenced for violating their parole.  The court ordered state prison and parole officials to notify the counties about the inmates and their needs.  Although they are in county custody, the state remains responsible for maintaining equal access to educational and treatment programs and to "the fundamentals of life, such as sustenance, the use of toilet and bathing facilities, and elementary mobility and communication," Judge Stephen Reinhardt said in the 3-0 ruling.  Michael Bien, a lawyer for the inmates, says this ruling is important because "the state is contracting out more and more" of its prisoners to local agencies.  Attorney General Jerry Brown's office is reviewing the ruling, but Brown's lawyers have argued that the state should only be held responsible for disabled inmates in state prisons.

Health Related Inmate Deaths Drop: The Federal Receiver running California's prison healthcare system reported that preventable (read: health related) deaths dropped for the second year in a row last year.  The AP reports that while preventable deaths declined from 66 to 68 between 2007 and 2008, they dropped to 46 last year.  With a state prison population of 170,000, less than 100 health related deaths seems small.  Californians in the general population die of cancer at an annual rate of 128 per 100,000.  This suggests that the federal judicial order to release 46,000 California inmates to remedy substandard health care, which is currently under Supreme Court review, might have been a bit excessive. 

Warrants Required for Cell Tracking:  AP writer Maryclaire Dale reports that the Third Circuit U.S. Court of Appeals has ruled judges can require a probable cause warrant before allowing police to obtain cell phone usage patterns to identify the location of suspects.  The ruling came after federal government appealed a holding by the District Court requiring agents to get a warrant before obtaining cell tower information to track a suspected drug dealer.  The government argued that obtaining the information was allowed if there were "reasonable grounds" that the data was relevant to a criminal investigation.  The Electronic Frontier Foundation and the ACLU opposed the government. 

AG Holder Trashes Civil Rights


Remember a few days ago, when, in response to the controversy about the Ground Zero Mosque, liberals were reminding us of the First Amendment and  -- at an even higher decibel level  -- the value of tolerance, even for religious expression some might find hurtful and offensive?

Remember that?

Now there's a new controversy involving a minister for a small congregation in Florida.  The minister is planning to burn copies of the Koran to protest Islam (or something  --  I confess I don't understand precisely what he has in mind).

Are the liberals reminding us of all that tolerance stuff that was so important last week?

Not exactly.  Here's what a leading liberal, who also happens to be our chief prosecutor (and thus in a uniquely menacing position to chill speech) has to say.  Fox News reports:

WASHINGTON -  Attorney General Eric Holder is calling the planned burning of the Quran at a Florida church idiotic and dangerous.

That's the word from religious leaders who met with Holder for nearly an hour Tuesday to discuss recent attacks on Muslims and mosques around the United States.

The meeting was closed to reporters, but a Justice Department official who was present confirmed that Holder said that the plan by the Rev. Terry Jones to burn copies of the Quran at his church in Gainesville, Fla., Saturday was idiotic.

 'Lan sakes alive!  Not a word about tolerance, pluralism, the First Amendment or any of that.

For the record, Mr. Holder is correct on the merits.  Burning the Koran is idiotic and dangerous (as General Patraeus has noted).  To treat all Muslims as terrorists, and the Koran as a terror manual, is, for starters, factually wildly incorrect, not to mention disgraceful.  But the point to remember is that our Attorney General appears to be quite selective in his appreciation of free speech rights.  Some conservative extremists might worry about this.

Random? Hardly

Cal Coburn Brown has a long overdue date with justice Friday. Nicholas K. Geranios reports for AP:

"Brown, 52, is to be executed for raping, torturing and murdering Holly Washa, 22, in 1991 over a period of days in a Sea-Tac hotel room.

"Brown has been on Death Row for 16 years. Last year, he was just eight hours away from execution when his lawyers won a stay."

Now, you would think that where the perpetrator raped, tortured, and murdered a young woman over multiple days, the opponents would spare us the tired old refrain that the death penalty is imposed "randomly." Beyond question to rational people, Brown is in the upper single percent on a scale of heinousness, and the choice of sentence in this case is anything but random.  Guess again:

Judith Kay, professor of religion at the University of Puget Sound, has known Brown for eight years and visited him several times in prison. She opposes the death penalty, in part because it appears to be randomly applied. She noted Green River killer Gary Ridgway pleaded guilty to killing 48 women in King County, and was sentenced to life in prison. Both [James] Elledge [executed in 2001] and Brown were convicted of killing one person.
Because one murderer who is clearly worse escaped full justice through legalized extortion that makes every case from there on out "random"? What does Professor Kay think "random" means? Suppose a researcher submits an article for publication in a serious journal. The article finds a strong correlation between variables but nonetheless declares the results "random" because of a single outlier. Would that article be published? Of course not. After the editors stopped laughing, they would throw it in the garbage.

Inevitably, in any system of justice, some miscreants will escape full justice or even escape justice altogether. Some will simply never be caught. Some will receive inadequate sentences. Some will die of natural causes after a short time in jail. Do we forgo justice in all the other cases because some escape? Of course not. There is no reason for imposing a different standard on the death penalty.

King County Prosecutor Dan Satterberg, who plans to witness the execution, disagreed [with Kay].

"Cal Brown's sadistic and predatory crimes rank him among the worst of the worst criminals in our state, and there can be no doubt about his guilt," Satterberg said after the state Supreme Court cleared the way for the execution in late July.

BTW, I believe this will be the debut of Washington's new single-drug protocol.

News Scan

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VA Court Gives the Go-Ahead for GPS Tracking of Suspects:  A Virginia appeals court today upheld the ability of police to place a GPS monitoring device on a suspect's vehicle without a warrant.  David Foltz was already a registered sex offender when he became a suspect in a string of new sexual assaults, prompting police to place a GPS device on his work van.  As a result of Foltz's monitored movements and further police surveillance, he was convicted of abduction with intent to defile and sentenced to life.  Despite Foltz's arguments that his Fourth Amendment rights had been violated, the court found that placement of the device on the outside of the van did not constitute a search or seizure giving rise to such a claim.  Other courts have reached the opposite conclusion in similar cases, leaving this issue possibly ripe for SCOTUS review.  Read the Washington Post's article here.

Ban on Student Drug Testing Upheld in CA:  As the San Francisco Chronicle reports (and as an update to a previous News Scan post) a California appeals court last week upheld a ban on drug testing students in extracurricular activities until legality of the testing can be determined.  According to school officials, the district implemented the drug testing program after hearing reports of drug use within some school clubs, relying on a 2002 SCOTUS decision (Board of Education v. Earls) that such testing was constitutional.  In an opinion written by California Supreme Court Chief Justice nominee Tani Cantil-Sakauye, however, the appeals court found that the testing is likely illegal under the more protective California constitution.   

Court Tosses Out FL Death Row Inmate's Lawsuit Against Victim:  The St. Petersburg Times (FL) has this story about a gratifying end to a death row inmate's lawsuit against his victim's estate.  Seven years ago, William Deparvine responded to an ad placed by victim Richard Van Busen selling a refurbished 1971 Chevy Cheyenne.  After typing up a bill of sale, Deparvine murdered Van Busen and his wife, leaving their bodies facedown in a dirt highway.  From death row, Deparvine has accused Van Busen's family of stealing the truck from him - even contacting Van Busen's daughter personally - and pointed to the bill of sale as his proof of ownership.  Last week, a Florida appeals court affirmed that Van Busen's estate was the rightful owner of the vehicle.  The family remains doubtful that this will be the end of Deparvine's harassment.  

Who Do You Trust?

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...was the name of a TV game show, the one that gave Johnny Carson his start.  It is also the question of the day in politics, with the mid-term elections two months away.

It's relevant to criminal law because the public's trust in institutions with law enforcement responsibility is essential to their success.  If lawmakers, the courts and the police are viewed as incapable or corrupt, things will fall apart fast.  Police depend on community cooperation, and juries will reliably follow the law only if they think it's just and working to make them safer.  Public contempt for law is certain to breed crime, vigilantism and nullification.

A Wall Street Journal/MSNBC poll out this morning thus caught my eye.  The accompanying report says, among other things:

Confidence in key U.S. institutions is also incredibly low: 18 percent have confidence in the federal government; 13 percent have confidence in the news media; 12 percent have confidence in large corporations; 10 percent have confidence in the financial industry; and only 9 percent have confidence in Congress.

The numbers for the media and Congress are the lowest for those institutions in the entire history of the poll.

Confidence this low is a petri dish for cynicism and, ultimately, disrespect for law.  The voters need to do something to set things right.  According to the poll, they aim to. 

A study by Seena Fazel and colleagues in the September issue of the Archives of General Psychiatry is generating a bit of a buzz among mental health professionals - and it provides a good lesson on how the results of a good study can be viewed depending on the interpretative lens one wants to look through. 

The study examined arrests for violence among people with bipolar disorder in Sweden.  The study is notable because Sweden maintains a national mandatory health registrar which makes large epidemiological population studies possible.  This is in contrast to the approach taken in most other studies which rely on sampling which is prone to sampling bias and other errors. 

And what did Fazel and colleagues discover?

For people with bipolar disorder alone, the risk of violence was comparable to the general population.  But for those with bipolar disorder and substance abuse, the link was strong: the adjusted odds ratio was 6.4%.  That's a substantial increase in the risk of violence compared to the general population.  So, what's the take home message?

One might conclude that the association between bipolar disorder and violence is negligible and this study helps prove that fact.  But with the prevalence of substance abuse among those with bipolar disorder around 50% such conclusions seem overly simplistic.  Indeed as the authors themselves conclude: "Available data suggest a common familial etiology for bipolar disorder, violent criminality, and substance abuse."  Untangling that etiology has proven difficult but claims that "people with a severe mental illness are no more likely to be violent than anyone else - unless they abuse drugs or alcohol, a study has suggested" seems to understate matters a bit.


Battered Husbands

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Denis Campbell reports in the Observer that the British Crime Survey indicates that 40% of domestic violence victims are men.

Campaigners claim that men are often treated as "second-class victims" and that many police forces and councils do not take them seriously. "Male victims are almost invisible to the authorities such as the police, who rarely can be prevailed upon to take the man's side," said John Mays of Parity. "Their plight is largely overlooked by the media, in official reports and in government policy, for example in the provision of refuge places - 7,500 for females in England and Wales but only 60 for men."

News Scan

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GA DNA Database Cracks 2000th Case:  The Georgia Bureau of Investigation's DNA database recently reached its 2000th cold case hit, reports the AP.  The GBI began DNA testing in 1991, reaching 1000 hits in 2008.  Only two years later, the number of hits has doubled.  Notably, DNA collection was expanded in 2000 to include all incarcerated convicted felons, and in 2007 to those on probation for certain violent felonies.

CA Attorney General Challenges Order Blocking Executions:  As an update to a news scan story posted earlier this week, the California Attorney General on Wednesday filed papers challenging a superior court judge's order indefinitely suspending executions in the state until she formally lifts the ban.  The AG claims the judge's approval is not required for executions to resume, and is asking an appellate court to dismiss the lower judge's order.  Read the's article here.

"Sorry, Wrong Number":  FoxNews has this story about an unlucky teen looking to score some pot.  Intending to reach his dealer, a Washington state teen sent out a text message, "Hey Dawg, do you have a $20 I can buy right now?"  Due to a misdial, the message landed in the inbox of a county sheriff, who responded and set up an undercover meeting with the teen to teach him a lesson.

News Scan

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Chicago Gang Leaders Unhappy with Police:  The AP has this story about Chicago's recent "gang summit," during which police met with the city's gang leaders in an attempt to crack down on gang violence.  At the summit, the police superintendent explained that if gang violence continued, police efforts would be directed straight at the gang's leaders, who "are in the position to stop the killing."  Some activists criticized Chicago's strategy by questioning whether the gang leaders should be held accountable for the actions of their subordinates, and the gang leaders themselves complained during a news conference held after the summit that the police tactics were unfair.

CA Court Reverses Juvenile's Sentence:  A California appellate court today reversed the 84-year sentence of a juvenile offender, finding the term to be the equivalent of LWOP and therefore unconstitutional under the circumstances.  Victor Manuel Mendez, who has an extensive criminal record dating back to age 10, was tried and convicted as an adult for a series of gang-related robberies and carjackings he committed when 16.  He was sentenced to 84 years in prison, which he claimed was a violation of his Eighth Amendment rights in light of Graham v. Florida (no LWOP for juveniles convicted of non-homicide offenses).  The court agreed, finding that his sentence did not afford him "some meaningful opportunity to obtain release" as required under Graham, and was also unconstitutional under the traditional "proportionality" test.  The case was sent back to the trial court for resentencing.  Read the San Francisco Chronicle's article here.

Ohio Governor Spares Death Row Inmate:  Ohio convicted murder Kevin Keith, who also appeared in yesterday's news scan, was spared the death penalty today after Governor Ted Strickland commuted his sentence to life in prison, reports the AP.  The decision overrides last month's unanimous decision by the parole board to deny Keith clemency.  Although Governor Strickland made clear he believes Keith is guilty of the four murders that landed him on death row, the governor cited "legitimate questions" about evidence used at trial as a basis for his decision.

California's "Dark Ages" Continue

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The LA Times has this unsurprising editorial about the California Assembly's recent defeat of SB399, or in their words, the Assembly's refusal "to lead California out of the Dark Ages by banning sentences of life without the possibility of parole for juveniles."  (Read Kent's previous posts about the bill here, here, and here.)  Characterizing the bill as "extremely modest," the article implores Senator Yee to push again for such a law in the future in the hopes that "[a]t some point, the Assembly with find the courage to do the just thing."  The article implies that LWOP for juveniles serves neither of the two functions of incarceration - punishment and protection of the public - based on general studies of juvenile delinquency patterns.  Notably, the article omits the fact, noted in Sacramento District Attorney Jan Scully's press release, that LWOP is only available to juvenile offenders ages 16 to 18, convicted of first degree murder with special circumstances - not, as the article seems to suggest, to "children ... capable of reform" who find themselves in the wrong place at the wrong time. 

The Supreme Court Reporter

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Tony Mauro has a two-part interview, here and here, with Frank Wagner, who is retiring as the U.S. Supreme Court's Reporter of Decisions.  Among the esoteric topics discussed are whether there should be space between and word and a long dash.

News Scan

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Executions to Resume in California?:  According to California prison officials, new lethal injection procedures went into effect on Sunday for executions in the state.  After scheduling of executions in California was put on hold in 2006, the state was required to undergo a time consuming regulatory adopting process - which it completed on Sunday.  A superior court judge, however, ordered an indefinite ban on executions "unless and until" she says otherwise.  Prison officials claim they plan on going forward with any planned executions - the first of which has been scheduled for September 29th - but will honor the judge's order if it remains in effect at that time.  Read the AP's story here.

Solidarity on Ohio's Death Row:  One Ohio death row inmate is seeking to keep a fellow death row inmate alive long enough to testify on his behalf, reports the AP.  Inmate #1, Danny Lee Hill, was sentenced to death for raping and killing a 12-year-old boy in 1985.  He has argued - unsuccessfully - for years that he is mentally disabled and thus cannot be constitutionally executed.  He is now asking a federal judge to delay the execution of inmate #2, Kevin Keith, who is scheduled for execution on September 15th for killing three people, including a 4-year-old girl, in 1994.  (Read CJLF's previous post about Keith here.)  Hill claims that as his fellow inmate, Keith can attest to Hill's mental disability by providing information about Hill's infrequent bathing and cell-cleaning habits.

"Victims Visitors' Day":  The Daily Citizen (GA) has this story about Georgia's countywide "Victims Visitors' Days," at which crime victims and their relatives have the opportunity to speak one-on-one with members of the state parole board.  Victims can receive information about the offender's current status, "have input" into the parole process, and meet with victim service providers.  One former member of the state's pardons and parole board said that the events often provide some relief to victims and help them on their paths to recovery.  Since 2006, 13 Victims Visitors' Days have been held in Georgia.

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