October 2010 Archives

Juror Dismissed for Candor?

From the Register-Citizen in Connecticut, a surprising development in the Steven Hayes trial:

NEW HAVEN -- A juror in the Steven J. Hayes triple homicide trial was dismissed today after being overheard saying to another juror that this is "bullshit," an apparent reference to testimony being presented during testimony in the penalty phase of trial.
*                                   *                             *
The juror's comment apparently referred to statements by either Hayes' defense attorney or that of forensic psychiatrist Dr. Eric Goldsmith, who was hired by the defense and has given extensive testimony during the penalty phase of the trial.
New Haven Chief Public Defender Thomas Ullmann, Hayes' attorney, made the motion that the juror be dismissed, which [Judge] Blue granted.
The juror was called back into the courtroom, still outside the presence of other jurors, and told by Blue that her comment was "clearly improper."
What is improper here?  Using profanity?  If we dismiss every juror who uses profanity, we are going to need a lot more alternates.  Stating disbelief of a witness?  That kind of evaluation is exactly what jurors are supposed to do.  Skepticism of the mental experts in the penalty phase of capital cases is entirely warranted.  Talking during the testimony, rather than waiting for deliberations?  Admonishment rather than dismissal would have been appropriate.  Sounds to me like the juror was merely expressing a candid evaluation.

News Scan

| No Comments
Two Mississippi Death Sentences Tossed:  The Clarion Ledger (MS) reports on two overturned death sentences in Mississippi this week.  In one case, the Fifth Circuit upheld a finding that William Wiley, convicted in 1982 of murdering a store owner, was mentally retarded and could not be executed.  In the second case, the Mississippi Supreme Court reversed the death sentence of Kristi Fulgham, convicted of murdering her husband, based on the trial court's exclusion during the penalty phase of a social worker's mitigating testimony.

Different Portraits of Steven Hayes:  The New York Times has this story about the two versions of Steven Hayes presented to a Connecticut jury, who must decide on a life or death sentence for the convicted murder.  Hayes's defense team has attempted to portray him as a troubled man with an abusive childhood, who got caught up with an evil person (co-conspirator Joshua Komisarjevsky), and now feels extreme remorse for his crimes.  The prosecution has countered with letters from Hayes's younger brother, characterizing Hayes as manipulative and recounting childhood memories of torture at the hands of his older brother.  A psychiatrist also testified that Hayes admitted to strangling and raping Mrs. Hawke-Petit after flying into a rage when police arrived at the Petit house.  The AP has more here.

Police Chief's Fourth Amendment Rights Violated:  In an ironic role reversal, a Montana police chief this week succeeded in suppressing evidence found during a search of his home.  Last summer, a sheriff deputy obtained a search warrant to investigate possible marijuana plants growing on Poplar Police Chief Chad Hilde's land and discovered eight plants growing in a barn.  When Hilde was charged with production and possession of dangerous drugs, he argued he was letting a friend use the building to legally grow medical marijuana.  A state court judge tossed the warrant, concluding the police likely knew Hilde wasn't personally involved in criminal activity and that failing to disclose this knowledge when applying for the warrant "undermine[d] due process."  The Billings Gazette (MT) has this story.

Misleading NYT Editorial

| 1 Comment
The New York Times fancies itself as the nation's premiere newspaper, and in some ways it is.  Its editorial page, though, is among the worst of any major paper.  It is not just that the positions are monotonically "politically correct."  That is true of many, perhaps most, major papers in the country.  The problem is the assertions of fact made to support their opinions.  These assertions vary from misleading to outright wrong.

The NYT has this editorial in reaction to the Landrigan execution, noted here. The NYT is, of course, against the death penalty. No news there. But now they denounce "the particular barbarism of this form of execution," i.e., lethal injection, and this statement immediately follows a quote from Justice Stevens.  Of the methods that have been used in this country, this one is exceptionally bad relative to the others?  What utter nonsense.

In reality, lethal injection was adopted precisely because it is less painful than the methods previously used.  In 1992, the very same Justice Stevens urged the adoption of this method. "The unnecessary cruelty of [the gas chamber] convinced Arizona's Attorney General that that State should abandon execution by gas in favor of execution by lethal injection.  His conclusion coincides with that of numerous medical, legal, and ethical experts." Gomez v. United States District Court, 503 U.S. 653 (1992) (dissenting opinion).  Richard Ruelas in the Arizona Republic reports the history of the adoption of lethal injection in reaction to the Harding execution.

News Scan

| No Comments
Justice Kagan's First Vote:  The LA Times reports on Justice Elena Kagan's first vote as a Supreme Court justice -  a dissenting vote in Tuesday's decision to lift the stay of execution of Arizona inmate Jeffrey Landigan (read Kent's post here).  Joining Justice Kagan in the dissent were Justices Ginsburg, Breyer, and Sotomayor.

Spray-On DNA:  Selectmark Security Systems, a U.K.-based company, has developed a "DNA security system" that offers companies a potential deterrent to would-be criminals.  Through the system, a business targeted by thieves can install a device near its entrance with a warning sign nearby.  Ideally, the sign's reference to "DNA" will scare criminals away but if not, the person is doused with an odorless and sticky spray.  The spray illuminates under a UV light for weeks, linking the person to the crime scene.  The system is currently used in the U.K., the Netherlands, and Germany.  The Toronto Star has this story.  

Thanks, But We Don't Need the Snakes:   The AP reports John Joseph Maillet pleaded guilty in federal court last month to production of child pornography for coercing a young girl to pose with 41 venomous snakes.  He originally forfeited computer equipment and the snakes to the government, but a judge yesterday approved the DOJ's request to drop the reptiles from the list of seized property.  Maillet will be sentenced in December.  

Crime Around the World

| 1 Comment
Comparing crime across countries with different legal systems is notoriously difficult.  Official crime statistics come with issues about which crimes to include in the index, varying definitions of crime, different reporting rates, and other problems.

From Gallup comes this simple basis of comparison.  "Do you feel safe walking alone at night in the city or area where you live?"


Among the American left, it is nearly an article of faith that Europe handles its crime problems better than the United States.  Why, then, do the Europeans feel less safe?

Nevada Robo-Call Update

| No Comments
Here is an update on the Nevada judicial selection ballot question robo-calls, previously noted here. Tony Mauro at BLT reports that Justice O'Connor has issued a statement that she did not authorize use of her recorded statement for the calls.

Work in Prison

| No Comments
The California Supreme Court today decided In re Jenkins, S175242:

A prison inmate's participation in a prison work program may favorably affect that inmate's custody level. Such participation can cause the inmate to be considered a reduced security risk, which in turn may cause the inmate to be placed in a lower security level institution. We must decide whether an inmate who is willing to work but, without his or her fault, is not assigned to a work program may receive the benefit of work participation for classification purposes. The applicable regulations say no; they provide that actual work participation, and not mere willingness to work, is required for an inmate to receive a lower security evaluation. Petitioner contends the regulations are invalid. In accordance with the deference courts generally give to prison authorities in promulgating regulations concerning prison security, we conclude the regulations are valid. It is rational, and not arbitrary, to consider an inmate's actual work performance for purposes of classifying and housing that inmate.
The decision is correct, but we should be providing work to any inmate who wants to work and whose security classification permits it.  One place to start is to reexamine restrictions on the sale of prison-made goods.  There are now large segments of the economy where substantially all of the goods are made overseas, and prison-made goods could be sold in these segments without displacing American workers.
Eugene Volokh provides us this splendid example of how not to write a petition for rehearing, which he got from Paul Milligan at Lowering the Bar.

The petition states that the court failed to address the key issues.  Okay, I've seen that before. Then there is this:

As stated earlier, the Court will address these issues, or there will be civil unrest. Civil unrest that is going to start at the doorsteps of the slime ball, piece of <expletive> judges that thought they were going to violate the constitutional rights of the innocent and poor with impunity.

News Scan

| No Comments
Judge Denies Blagojevich's Motion to Nullify Conviction:  The AP reports a federal judge in Chicago today denied former Governor Rod Blagojevich's motion to deny his August conviction.  The judge rejected the argument that Blagojevich's conviction was due in part to prosecutorial misconduct, noting that defendants often make such claims in the absence of a colorable legal or factual challenge.  Blogojevich faces up to five years in prison.

Tourette's Syndrome Defense:  Jennifer Mee, a 19-year-old once famous for her five-week bout of hiccups, was charged last weekend with the first-degree murder of Shannon Griffin.  Her lawyer now claims he might present a Tourette's syndrome defense, citing hiccups as a symptom of the condition.  The AP has this story.

Federal Judge Enjoins Massachusetts "Anti-Sexting" Law:  A federal district judge in Massachusetts today granted a preliminary injunction of a new state law aimed at protecting children from online predators, reports the AP.  Earlier this year, the state's high court ruled that the law outlawing dissemination of harmful materials to minors did not cover electronic communications such as text messages or emails.  The state legislature passed a new law to fill in these gaps.  The ACLU and several other groups challenged the amendments, claiming their broad language included material on the internet that adults have a right to view, even if harmful to minors.  Judge Rya Zobel agreed, finding that the new law "without question" violates the First Amendment   
Last night the U.S. Supreme Court lifted the stay of execution of repeat murderer Jeffrey Landrigan.  The decision was 5-4.  The District Court's grant of a stay based on mere speculation had failed to heed the standard set forth in the 2008 lethal injection case from Kentucky, Baze v. Rees.  "But speculation cannot substitute for evidence that the use of the drug is ' "sure or very likely to cause serious illness and needless suffering." ' Baze v. Rees, 553 U. S. 35, 50 (2008) (quoting Helling v. McKinney, 509 U. S. 25, 33 (1993))."  (Emphasis by the Court.)

The execution proceeded shortly after 10:00 p.m. MST.  Michael Kiefer has this story in the Arizona Republic.  The execution was apparently uncomplicated, confirming that the brouhaha over the source of the drug was indeed pure speculation.

Will this decision affect the stay litigation in California?  It should.  Judge Fogel now has a clear directive from the high court that unless the new California protocol fails this "sure or very likely" standard, he should allow executions to proceed.  The protocol surely passes.

The worrisome note here is the 5-4 division on the Court and the party-line nature of the division.  If one of the five retires while Barack Obama is President, the course of justice could take a sharp turn for the worse.

Update: John Schwartz has this story in the NYT.

News Scan

| No Comments
Cal. Supreme Affirms Dismissal of Hundreds of Criminal Cases:  The California Supreme Court yesterday upheld the dismissal of criminal cases in Riverside County due to a shortage of judges and courtrooms.  The court held that although criminal cases receive priority over civil matters via a state statute, the Riverside County court was not required to reserve juvenile, probate, and family law courtrooms for the overflow of criminal cases.  The court also found that the lack of available judges and courtrooms did not constitute "good cause" justifying delay of certain criminal trials.  The LA Times reports the ruling could end prosecutions of as many as 300 defendants.

Massachusetts Serial Killer Admits to More Murders:  (This is a complicated one.)  Massachusetts serial killer Alfred Gaynor, currently serving a life sentence for raping and strangling to death four women in the 1990s, pleaded guilty today to raping and murdering three other women in 1997.  Gaynor also pleaded not guilty to a 1995 murder, though his attorney hinted a guilty plea on that charge may be coming.  The four indictments came as part of a plea bargain with Gaynor's nephew, Paul Fickling, who was convicted of killing Amy Smith and leaving Smith's 22-month-old daughter to die of starvation and dehydration in a hot apartment.  When Gaynor later admitted to killing Smith, Fickling won a new trial and pleaded guilty to manslaughter.  Fickling's plea agreement was also contingent on Gaynor's pleas to the four unsolved murders (three of which he pleaded guilty to today).  Prosecutors claim charges are possible against Gaynor in the deaths of Smith and her daughter once the current charges are resolved.  The AP has this story.

DNA Sample Case in 3rd Circuit:  Shannon P. Duffy of The Legal Intelligencer has this piece about a challenge to collection of arrestees' DNA for a national database, currently before the Third Circuit.  In November 2009, a federal judge in Pennsylvania ruled that such DNA collection violated the Fourth Amendment because no government interest outweighed the privacy expectations of the arrestees, who are presumed innocent.  The DOJ appealed, arguing that the presumption of innocence "has no bearing on an assessment of privacy interests for Fourth Amendment purposes."  The case was originally argued to a three-judge panel in April, but the court last week scheduled the case for en banc reargument.

Midnight Judges

| No Comments
Did you get a phone call from retired Supreme Court Justice Sandra Day O'Connor at 1:00 a.m. last night?  A lot of folks in Nevada did.  Actually, it was a "robocall" recording of her voice in support of Question 1 on the ballot, dealing with judicial selection.

The call was supposed to go out at 1:00 p.m.  Oops. Doug McMurdo has this story in the Las Vegas Review-Journal.

The ballot proposition, described here, would change Nevada's judicial selection system from direct election to gubernatorial appointment with retention elections.  That would be an improvement if that were all.  However, as described in the previous post, the proposal is fatally flawed by limiting the governor to choosing from a short list prepared by a commission, and half the commission is appointed by the State Bar.

What if President Reagan had been limited to such a short list in 1981?  Who would have been on it?  I know for certain who would not have been on it: an intermediate state appellate court judge from "flyover country."

Landrigan Case Back to SCOTUS

| 1 Comment
The case of repeat murderer Jeffrey Landrigan is back in the U.S. Supreme Court, which has reinstated his death sentence once before.

The case is docketed as application 10A416.  I don't have Arizona's application, but the way these last-minute pre-execution appeals usually work, the parties lodge their lower court pleadings with the high court as they are filed, and only minor adjustments are needed after the lower court rules.  The Ninth Circuit pleadings are on this page.

Update: CNN has this story.

That Didn't Take Long

| No Comments
If the State of Arizona supplies the name of its overseas supplier of sodium thiopental, that company will surely come under pressure to stop supplying it.  This story by Michael Kiefer in the Arizona Republic states that the supplier is in Britain.  Sure enough, the Guardian (London's even-further-left newspaper), has this column by Clive Stafford Smith calling for just such pressure. 

Seattle Times Unfriends Justice Sanders

| 1 Comment
Controversial remarks by Washington Supreme Court Justice Richard Sanders have caused the Seattle Times to reverse itself, withdraw its endorsement, and endorse opponent Charlie Wiggins instead.

Whether the most recent incident is really worth the controversy is a little difficult to tell from news reports.  To the extent that Sanders said that the proportion of black people in prison is greater than in the general population because of a higher crime rate, that statement should not even be controversial.  It is true, and if the truth makes people uncomfortable, their discomfort should not be vented against the messenger.  However, there were apparently other aspects of the talk that people found offensive as well.  I don't know; I wasn't there, and the reports are sketchy.

I was there when Sanders heckled the guest speaker, the Attorney General of the United States, at the annual dinner of the Federalist Society.  See prior post here.  For this blatant breach of fundamental standards of conduct and decorum, and other reasons, I do hope the people of Washington remove him from his seat.

Landrigan Developments

Update 2: The Ninth Circuit's order denying the State's appeal of the TRO is here.
Update: Paul Davenport has this update for AP on the State's appeal.

The Ninth's denial of leave to file a second habeas petition is here.  They call it an "SOS order," for "second or successive," an interesting term I had not heard before.
On Saturday, USDC Judge Roslyn Silver ordered the State of Arizona to disclose its source for the sodium thiopental to be used to execute repeat murderer Jeffrey Landrigan. See prior posts here and here.  Michael Kiefer has this story in the Arizona Republic.  The disclosure order is here.  Today, the Arizona Republic reports that Judge Silver has stayed the execution in order to litigate this extremely tenuous (to put in mildly) claim.

Is there a solution to all this last-minute federal court litigation in capital cases?  Yes, there is.  In 28 U.S.C. §2262(c), Congress has provided that once the first federal habeas proceeding is completed "no Federal court thereafter shall have the authority to enter a stay of execution in the case, unless the court of appeals approves the filing of a second or successive [habeas] application under section 2244(b)," which has very tight standards for such an approval.

To qualify for this bar, the state must (1) have a mechanism for appointing counsel in state postconviction proceedings; (2) have standards of qualification for appointment; (3) provide reasonable litigation expenses; and (4) apply for certification that it has done (1), (2), and (3) to the U.S. Attorney General, with de novo review of his decision by the D.C. Circuit.

Many states with capital punishment already have (1), (2), and (3), but none have pursued (4).  Get off the stick and apply, state attorneys general.

Justice Kagan and Guns

| 1 Comment
Alexis Levinson reports in the Daily Caller, "According to two witnesses, Supreme Court Justice Antonin Scalia took fellow Justice Elena Kagan out for a lesson in skeet shooting at his shooting club in Virginia last week."

Skeet, for those who don't know, are little clay frisbees.  A machine flings them, and you shoot them on the fly with a shotgun.  Or at least you try.  When you get a solid hit, there is nothing left but dust.  My first real job was as a "trap boy" at a skeet shooting range. Coincidentally, it was not far from the one noted in the story, and not far from where Gen. Jackson stood "like a stone wall."

Is Justice Kagan really interested in taking this up as a hobby?  I doubt it.  More likely she wanted to get a taste of it to better understand the people who are into it.  That is quite commendable, IMHO.

The Cost That Goes Unmentioned


We hear relentless reports that imprisonment costs too much.  What we seldom if ever hear is an account of what crime costs.  I guess the idea is that, if the defense bar and its allies can focus public attention on the dollars needed to keep the bad guys locked up, the public will forget about what the bad guys do when they're not locked up.

What they do, of course, is continue on their merry criminal way, resulting in costs that dwarf the costs of incarceration  --  and this is not to mention the human suffering and the loss of a sense of security that befall their thousands of victims.  

But the costs of crime don't disappear simply because the defense bar would like to keep quiet about them.  In this Slate piece, we get more detail on the story.

Hat tip to "notablogger." 

Brown Surging or Maybe Not

| No Comments
California has not had an anti-death-penalty Governor since Jerry Brown back in the Saturday Night Fever days, so naturally we are following with some interest the possibility of having one again, i.e., Jerry Brown.

Is Brown surging in the polls, or is he steady with a lead a tad greater than the margin of error?

Depends on who you ask.  A Greenburg Research poll for the LA Times has him surging to a 49-37 lead among total voters and 52-39 among likely voters.  However, Rasmussen has him with a 6-point lead, the same margin as its previous poll.

The Greenburg poll also shows Cooley ahead of Harris by 3 points for AG in the total column and 5 points ahead among likely voters. The pot initiative is down 40-49 among total voters and 39-51 among likely voters.

Curious.  Why would pot be doing less well among likely voters than total while Jerry does a shade better?  This can't be ascribed to sampling error because the same sample is being asked all three questions (Governor, Prop 19, likelihood of voting).

news scan

| No Comments
Crime, the NAACP, and the Tea Party:  Jason Riley in the WSJ opines that the NAACP has its priorities misplaced, obsessing about the Tea Party. "Blacks are 13% of the population but comprise 38% of prison or jail inmates in the U.S., and black-on-black violent crime is the norm. Blacks commit 52% of all murders and make up 49% of all murder victims--90% of them are killed by other blacks. Is this problem perhaps a little more pressing than supposed racial overtones in Michele Bachmann speeches?"

Mental Health Courts: Lee Romney reports for the LA Times on San Francisco's "Behavioral Health Court," another innovation in the "drug court" model.

Some Immigrants Face Deportation, Despite Service:  The U.S. Armed Forces enlists nearly 8,000 non-citizens every year.  Rohan Coombs, 43, was born in Jamaica and immigrated to the U.S. legally as a child.  He enlisted in the U.S. Marine Corps and served for at least 6 years.  But because of his past criminal convictions, many for drug charges, Coombs is facing deportation and is currently locked up at an immigration detention center.  Supporters of non-citizen servicemen and women are trying to change a 1996 law that expanded the list of crimes that qualify a non-citizen for deportation.  Attorneys are taking cases, like Coombs' to court, arguing that an individual who serves in the Armed Forces should be considered a U.S. national and protected from deportation, regardless if that individual is an immigrant or not.    Juliana Barbassa of the San Francisco Chronicle has more on the story here.

Manhunt in Missouri After 3 Convicts Escape Jail:  Three inmates, including a convicted murderer, successfully escape a northwest Missouri jail by simply crawling under a fence.  Of the three fugitives, one was convicted of murdering a fellow roommate with a hammer, another was jailed for a previous attempt to escape from prison, and the third was convicted in an assault case.  Missouri State Highway Patrol troopers have joined forces with sheriffs deputies from different law enforcement agencies to track down the escapees.  CBS News has more on the story here.

Landrigan's Bogus "Innocence" Claim

| 1 Comment
Along with the brouhaha over where the State of Arizona gets its thiopental (noted in this post and this NYT story), attorneys for two-time murderer Jeffrey Landrigan also want to file a successive habeas petition using DNA evidence and invoking the "actual innocence" exception for successive petitions, 28 U.S.C. §2244(b)(2)(B).  USCA9 has this page with the pleadings.

The problem is that the DNA evidence does not show Landrigan was innocent or even that he is ineligible for the death penalty (if that mattered). It only shows the involvement of an accomplice, and Landigan's own statement of the crime is sufficient to establish both guilt and eligibility.  The statement is quoted after the jump.

I've written before about the infamous dropped-down-the-well case of the Black Panther "poll watchers"  --  said poll watching assisted by billy clubs. 

Comes now the Washington Post, all but alone among the liberal media, to do some investigatve reporting,

I quote below an excerpt from the Post story by Jerry Markon and Krissah Thompson (emphasis added):


Before the New Black Panther controversy, another case had inflamed those passions. Ike Brown, an African American political boss in rural Mississippi, was accused by the Justice Department in 2005 of discriminating against the county's white minority. It was the first time the 1965 Voting Rights Act was used against minorities and to protect whites.

Coates and Adams [two career attorneys] later told the civil rights commission [against the Department's orders] that the decision to bring the Brown case caused bitter divisions in the voting section and opposition from civil rights groups.

Three Justice Department lawyers, speaking on the condition of anonymity because they feared retaliation from their supervisors, described the same tensions, among career lawyers as well as political appointees. Employees who worked on the Brown case were harassed by colleagues, they said, and some department lawyers anonymously went on legal blogs "absolutely tearing apart anybody who was involved in that case," said one lawyer.

"There are career people who feel strongly that it is not the voting section's job to protect white voters," the lawyer said. "The environment is that you better toe the line of traditional civil rights ideas or you better keep quiet about it, because you will not advance, you will not receive awards and you will be ostracized."


We now have a Justice Department whose own lawyers fear retaliation if they seek equal treatment for all races.  This is what Eric Holder has brought us.

John Schwartz has this article in the NYT on the latest in the anti-DP movement's efforts to litigate every nook and cranny of the process just to bog it down.  The State of Arizona has located an alternate source of the drug used for lethal injection.  They don't want to reveal the source, as they know that company will be pressured not to sell it for executions. So of course the anti side sees this as another opportunity to litigate, litigate, litigate.

Claims that lethal injection drugs need to comply with the federal Food, Drug, and Cosmetic Act are absurd, as I am quoted saying in the article. That act is intended to ensure that drugs used for healing patients are safe and effective, and the whole point of an execution is to end the murderer's life.  The article also quotes FDA spokeswoman Shelly Burgess saying executions are "clearly not under our purview or authority."

College Enthusiasm on Speed, So to Speak

| No Comments

I am an adjunct professor of law at Georgetown University.  The class I'm teaching this semester is a writing course called "Conservatism in Law in America."  As you might suspect, many of the students have a libertarian streak, and not a few favor decriminalization of drugs.

Libertarianism has a respectable intellectual pedigree, but I have to wonder if some of Georgetown's students aren't taking their enthusiasm for less hindered availability of drugs a mite too far.

Fox News story is here.

The Rehab Joke

| No Comments

CBS news reports the following tonight (emphasis added):

A judge has ordered Lindsay Lohan to return to rehab instead of jail for a failed drug test, telling her she was an addict and faced jail time if she relapsed again.

Los Angeles Superior Court Judge Elden S. Fox ordered Lohan to remain at the Betty Ford Center until Jan. 3 and report back to court in late February.

A prosecutor had advocated a six-month jail sentence for the actress, but Fox opted for rehab after reviewing filings by probation and rehab officials and a letter written by Lohan.

Lohan cried after hearing the sentence.

The judge acknowledged that Lohan, 24, has been in and out of court and rehab since a pair of high-profile arrests in 2007. He told the actress that he would not be manipulated by her, but was giving her a final chance to stay clean.

Ms. Lohan is not the most dangerous criminal out there, but her dangerousness, such as it may be, is not what makes this story newsworthy.  What makes it newsworthy is its exposure of the joke of "rehabilitation" as a component of sentencing.

The defense bar relentlessly pushes rehab as the alternative to jail.  The endless Lindsay Lohan saga shows what rehab actually means, to wit, zip.  And for those believing that this is really a "final chance," well, there's this bridge in Brooklyn...

Our legal system doesn't know the meaning of "final chance"  --  unless you're a victim.  That's when the real final chance shows up.

Weakest Batson Claim Ever?

What is the weakest Batson claim you ever heard?  This decision today in a robbery case from the Nevada Supreme Court is a good candidate: Orenthal James Simpson v. State.

The court also held that the trial judge did not overly restrict voir dire regarding the defendant's prior case that you probably heard about.

The judge's efforts to maintain order despite disorderly conduct by counsel for both sides in not judicial misconduct.  The court also rejects a number of fairly routine claims. A codefendant got a reversal due to the judge's refusal to sever the cases for trial.

Oskar Garcia has this story for AP.

Bigotry in a PC World, Part II


Michael Rushford noted with justified dismay NPR's split-second dismissal of liberal commentator Juan Williams for saying, on the O'Reilly Factor, that he becomes nervous when people in Muslim garb get on his plane.

Williams had the temerity to say out loud what millions of people think.  It was by no stretch a blanket indictment of Islam, and could not possibly have been understood to be such.  This didn't stop NPR from giving him the axe, with a parting shot from its CEO that it was the sort of thought Williams should have saved for his "psychiatrist or publicist."  Real class there. (She later perforce apologized). 

Sensing that its true, snarling, censorship-prone attitude is dangerously on display, most of the Left has remained mute.  To its credit, the Washington Post has not.  Its editorial today ends with the following:

Mr. Williams was attempting to do exactly what a responsible commentator should do: speak honestly without being inflammatory. His reward was to lose his job, just as Agriculture Department employee Shirley Sherrod lost hers over purportedly racist remarks that turned out to be anything but. NPR management appears to have learned nothing from that rush to judgment. "Political correctness can lead to some kind of paralysis where you don't address reality," Mr. Williams told Mr. O'Reilly. NPR, alas, has proved his point.

The Post is part of an increasingly rare breed  --  staunch but level-headed liberals.  Hats off to it.

[Editor's Note: An AP story on public reaction is here. -- KS]

News Scan

| No Comments
Burglary Suspect Did Not Think This One Through:  After burglarizing three condos, Connecticut man Geraldo "Tito" Figueroa reported to police that the car he allegedly used in the break-ins had been stolen.  Police identified a car linked to Figueroa at the condo complex and inside the car found the reported stolen items.  Figueroa was arraigned on Wednesday on burglary and larceny charges and held on $300,000 cash bond.  The AP has more on the story here.

Texas Follows Through With Execution:  Juan A. Lozano of the San Francisco Chronicle reports on the execution last night of Texas man, Larry Wooten, making him Texas' 17th inmate to be executed this year.  Wooten served on death row for more than 14 years.  On Tuesday the Texas Board of Pardons and Paroles rejected his plea to commute his sentence to life in prison.  The U.S. Supreme Court refused to consider Wooten's appeals earlier this month.  Read previous story here.

Illegal Immigrants in WA Canvass Neighborhoods for Votes:
  San Francisco Chronicle Staff Writer Manuel Valdes reports on dozens of volunteers, many of them illegal immigrants, roaming door-to-door in Seattle neighborhoods to get naturalized citizens to cast ballots for Democratic candidates, such as Sen. Patty Murray, who's running against Republican Dino Rossi.  The OneAmerica Votes campaign is about empowering illegal immigrants who feel they can't contribute because of their ineligibility to vote.  Craig Keller, an organizer for Respect WA, a group pushing for stricter immigration law in Washington, is not opposed to illegal immigrants volunteering for vote drives: "Anybody can go out and wave a sign, but when it comes to who's making the choices, there's no question they need to be citizens."

Massachusetts Gubernatorial Candidates Argue Death Penalty:
  In a debate in Western Massachusetts yesterday, gubernatorial candidates argued about reinstatement of the death penalty.  Republican Charles Baker and independent candidate Timothy Cahill support reinstituting the death penalty while incumbent governor Democrat Deval Patrick and Green-Rainbow Party candidate Jill Stein oppose it.  The debate was sparked by a serial killer's confession to the murders of nine women.  Alfred Gaynor of Springfield was convicted in 2000 for four killings, but earlier this week admitted to five more slayings during the 1990s.  San Francisco Chronicle Staff Writer Glen Johnson has more on the story here.

Pilot Challenging Full-Body Scanners at Airports:  Tennessee pilot Michael Roberts is challenging full-body screening at airports as a violation of the Fourth Amendment, reports The Commercial Appeal (TN).  While commuting to his base airport in Houston last week, Roberts refused to undergo a scan equipped with advanced imaging technology and was turned away at the checkpoint.  TSA has defended the use of these scanners, claiming they do not present a health risk and that travelers selected for the scan have the option of selecting a manual pat-down instead. 

It fell apart.

Of course, no votes have been taken yet, but today's poll published by the San Francisco Chronicle shows that the No side has taken the lead from the Yes side on Prop 19:

"Californians are souring on a ballot measure to legalize adult recreational use and cultivation of marijuana, according to a new poll conducted by the Public Policy Institute of California.

"The poll found that 44 percent of likely voters support Proposition 19, the marijuana ballot measure, while 49 percent are opposed. The results are a significant decline from last month, when the same survey found Prop. 19 leading 52 to 41 percent."

The rest of the article on the poll is here.

News Scan

| No Comments
Canadian Air Force Officer Sentenced:  Canadian Air Force Col. Russell Williams received two concurrent life sentences without the possibility of parole for 25 years, after pleading guilty earlier this week to two counts of first-degree murder, two counts of sexual assault, and 82 counts of breaking-and-entering.  (The Belleville Intelligencer, the local paper in the city where Russell's court proceedings took place, discusses the disturbing details of the crimes here.)  Although Russell expressed remorse for his three-year crime spree, the sentencing judge referred to him as a "sadosexual serial killer," whose "fall from grace has been swift and sure."  One military official stated the military community has been "deeply shaken" by Russell's secret life of crime.  Read more from AP and The Toronto Star.

Texas Execution Scheduled for Tonight:  AP writer Juan A. Lozano reports that Texas is set to execute death row inmate Larry Wooten for murdering an elderly couple in 1996.  Wooten beat and stabbed 80-year-old Grady Alexander and 86-year-old Bessie Alexander, slit their throats and nearly severed their heads.  Wooten maintains his innocence, but DNA evidence strongly linked him to the crime scene.  He will be the 17th inmate executed in Texas this year.

California Death Sentence Upheld:  The California Supreme Court today upheld the death sentence of Robert Bacon, convicted of raping and murdering Deborah Sammons in 1995.  Three months after being released from prison for killing an Arizona man, Bacon beat Sammons to death after her estranged husband said he wanted her "out of the picture."  Bacon's claims on appeal included a Miranda violation and challenges to the jury instructions used at trial.  The SF Chronicle has this story.    

California Lawyer Questions DNA Collection from Cigarette Butt:  A California appeals court heard argument yesterday on whether DNA testing of a discarded cigarette butt without a warrant violates the discarder's Fourth Amendment rights, reports The Sacramento Bee.  In 2006, police collected a cigarette butt tossed by Rolando Gallego, whom they suspected of stabbing to death Leticia Estores in 1991.  DNA from the cigarette matched a crime scene sample and Gallego was convicted of second-degree murder.  On appeal, he argued DNA testing of a discarded cigarette butt is distinguishable from rummaging through garbage left on the curb (which police can do without a warrant) because most people don't have access to genetic testing.  The state countered that Gallago had no expectation of privacy in the discarded cigarette, and that other courts have upheld such investigatory tactics. 

Bigotry in a PC World

| 1 Comment
NPR announced late Wednesday that it has fired longtime journalist Juan Williams for a comment he made on the Fox News program the O'Reilly Factor.  A story in today's Washington Post by Debbi Wilgoren and Paul Farhi quotes Williams saying "....when I get on a plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they're identifying themselves first and foremost as Muslims, I get worried.  I get nervous."  According to NPR that statement was "inconsistent with our editorial standards and practices, and undermined his credibility as a news analyst with NPR."  Let me get this straight; many Muslim leaders have told the world on countless occasions that Islam is at war with America i.e., the "Great Satan"; jihadist groups are funded by Muslim nations; for two decades male Muslims of Middle Eastern descent have been exploding bombs or engaged in suicide missions murdering thousands of innocent people in America and Western Europe but, you're a bigot if you get nervous when you see fellow air passengers who are identifying themselves as Muslims.  William Kristol puts this blind stupidity in perspective this morning on WeeklyStandard.com.     

The "Whatever" Dude Vote

| No Comments
Barbara "Boxer's fate in the Senate may hinge on how many 'whatever' dudes mail a ballot."  So concludes SurveyUSA in the analysis section of this poll in California.

The theory is that people who support the marijuana initiative, Proposition 19, are "uniquely motivated" to vote, and most of them will vote for Democrats, reversing the enthusiasm gap seen elsewhere in the country.

However, the poll also shows the "no" vote on Prop. 19 steadily gaining.  It could be that two facts are sinking in: (1) the Legislature has already lowered simple possession to an "infraction," i.e., on a par with a traffic ticket, undercutting the already weak "stop putting tokers in jail" argument; and (2) this measure is exceptionally badly written, even for an initiative.

Halloween 4 (...th Amendment)

Complete with murders and graveyards, all the makings of a constitutional Halloween story are appearing in a Michigan courtroom, where Ronald Jabalee Jr. stands trial for the murder of his mother and father.  The couple was found stabbed and bludgeoned to death in their garage, the mother apparently scribbling a bloody and cryptic message on the floor before she died.  Police installed a recording device at the parents' gravesite and were able to record a conversation between Ronald and his brother, Ryan.  Ryan is heard sobbing, but Ronald is not.  The prosecution wants to play the recording at trial to portray Ronald as emotionless son, but his defense attorney is arguing that installation of the device without a warrant raises Fourth Amendment and privacy concerns.  Read the Detroit Free Press's story here.

Rated R for Reversible?

| No Comments
James Barron reports in the NYT that the Second Circuit has denied rehearing en banc in the federal death penalty case of Ronell Wilson, alias Rated R.

The defendant, Ronell Wilson, was convicted in 2006 of shooting the undercover detectives, James V. Nemorin and Rodney J. Andrews, after he climbed into the back seat of their car outside a housing project. Detective Nemorin was running a weapons sting operation and had brought Detective Andrews along for backup.
Mr. Wilson, now 28, was known by the street name Rated R. He and another gang member climbed into the back seat of the detectives' police-issued Nissan Altima. As they drove down a dead-end street, Mr. Wilson fired .44-caliber bullets into each detective's skull. It was not clear at Mr. Wilson's trial whether he knew the two were police officers.
The four dissenting judges -- led by Debra A. Livingston, who was on the three-judge panel in June and dissented in part from its ruling -- called the facts of the case "heartbreaking." She noted that Mr. Wilson murdered the first officer without warning and killed the second "even as the young officer, a father of three, pleaded for his life."

Exclusionary Rule Horror Stories

| No Comments
"The criminal is to go free because the constable has blundered." Judge Cardozo famously rejected the federal exclusionary rule for New York courts in People v. Defore, 242 N.Y. 13, 21 (1926).  He noted that the principle suggested by the defendant would apply even in the case of the discovery of the body of a murder victim. Id., at 23-24.  Defore was not a murderer, but neither was his crime "victimless." He was a thief.

Do you have a favorite exclusionary rule horror story?  I am collecting verifiable examples of people guilty of violent crimes getting away with them because of the Fourth Amendment exclusionary rule, Weeks v. United States and Mapp v. Ohio.  To share your story, add a comment to this post or email with the link after the jump.

News Scan

| No Comments
New State Briefing in Nunley Case: The Missouri Supreme Court has ordered a new round of briefing and scheduled oral argument in the Nunley case, previously noted here and here.  Tony Rizzo has this story in the Kansas City Star.

Two Inmates Shot at California Prison Brawl:  Two inmates were shot and a dozen injured after a violent brawl broke out among the general population at Calipatria State Prison in Southern California.  The pepper spray wasn't enough to stop the 120 inmates from fighting, so the guards fired four rounds from a Ruger Mini-14 shotgun, and two of the rounds happened to hit prisoners.  Fortunately, no staff members were injured.  The incident comes as a shock; Calipatria had not seen a significant disturbance for some time.  "We were just commenting on how quiet it has been," Lt. Jorge Santana said. "Something of this magnitude, it's been a few years."  The San Francisco Chronicle has more on the story here.

15-Year-Old Points Rifle at Police, City Sued:  A civil rights lawsuit filed by the parents of a 15-year-old shot to death by police officers was settled and the city of Oakland, CA will have to pay a half a million dollars.  Jose Luis Buenrostro was killed by police in 2008 after he pointed a sawed-off rifle at them.  The Buenrostro family's attorney claims the police overreacted.  The San Francisco Chronicle has more on the story here.

Federal Officials May Take Legal Action if CA Passes Prop 19:  Federal "drug czar" Gil Kerlikowske said Justice Department officials are "looking at all their options" if California voters approve Prop 19, a ballot initiative that would legalize recreational marijuana use in the state.  Because the initiative would conflict with federal laws, nine of the nation's former Drug Enforcement Agency chiefs wrote a letter to Attorney General Eric Holder recommending President Obama sue to overturn Prop 19 as an affront to federal authority.  Holder responded that the U.S. government plans to  "vigorously enforce" federal laws prohibiting marijuana possession and distribution even if state law allows it.  Read the San Francisco Chronicle's story here.

Inmate Teleconferencing:  The Herald-Mail of Hagerstown reports on Maryland's proposed inmate teleconferencing program, which would allow inmates to make court appearances and doctor's visits from prison.  The system would cut back on costs and avoid the risks that accompany transporting inmates.  One county began using the system last week to hear internal grievances and officials hope to expand the program to someday allow inmates to visit with family members via "video visiting booths."

The Unexonerated

Here is an entry for the list of "wrongfully" executed former cause celebres that are now unequivocally known to be guilty.

Once upon a time, it was an article of faith among the anti-anti-communist American left that Julius and Ethel Rosenberg were framed and wrongfully executed in the McCarthyist fervor of the 1950s.  Among the Rosenbergs' staunchest defenders was journalist Walter Schneir.

In the WSJ today, Michael Moynihan has this review of Schneir's posthumously published book, Final Inquest.  "The book does grudgingly admit that Julius Rosenberg was a Stalinist agent (Ethel remains, in the Schneirs' view, an innocent bystander)."

Given the viciousness with which those who asserted Rosenberg's guilt were attacked at the time and the absolute certainty with which his supporters asserted his innocence, this story has a message of caution for our time.  We saw the same thing in the Roger Coleman case. His supporters asserted his innocence with absolute certainty, vehemently trashed people who defended the verdict, and stated flatly that another person was guilty of the murder. Improved DNA technology eventually proved Coleman's guilt beyond question, and his defenders slinked off without even a hint of apology to the people they had trashed.

Today, we have the Willingham case.  Will the question of his guilt ever be resolved to the certainty of Rosenberg or Coleman? Not likely, but we can always hope.  In the meantime, his defenders should turn it down a notch.

The Murder of Ann Harrison

A Kansas City television station provides some background on the Nunley case, the subject of this morning's post.

In 1989, Roderick Nunley kidnapped, raped and killed Kansas City teenager Ann Harrison. The death of the 15-year-old girl is still fresh in the minds of many around Kansas City.

On March 22, 1989, Harrison walked to the end of her driveway near 68th and Manchester to wait for her school bus. Retired detective Pete Edlund remembers that day all too well.

"Every parent's worst nightmare, their child is snatched off the street at the end of her driveway waiting for a school bus. That doesn't happen every day," he said.

*                                           *                                      *

Nunley drove Harrison to his mother's house. She was forced to crawl down to the basement. Each man accused the other of raping Harrison, but eventually, DNA testing linked Taylor directly to the rape.

The men then forced Harrison into the trunk of the car and tied her up. Both men testified that Harrison begged for her life, offering them money if they would spare her.

Instead, Nunley and Taylor grabbed two knives from the kitchen and both men stabbed the girl.

"Here was an innocent child, who was brutally sexually assaulted and murdered and it wasn't like they stabbed her once and walked away, it was brutal," Edlund said.

In Nunley's videotaped confession, he says he knew Harrison would die in the trunk.

The medical examiner testified that it took about half an hour for the girl to die after her kidnappers stabbed her 10 times.

News Scan

| No Comments
FBI Report: 48 Law Enforcement Officers Feloniously Killed in 2009: The FBI yesterday released its annual edition of Law Enforcement Officers Killed and Assaulted in the line of duty.  The survey reports that 48 officers were feloniously killed, 47 died as a result of accidents, and 57,268 were assaulted.  Of the 41 suspects identified in connection with the felonious deaths, 33 of the assailants had prior criminal records and 13 were under judicial supervision.

Decline in Arrests at US-Mexican Border: DHS Secretary Janet Napolitano yesterday announced a 17% drop in arrests by Border Patrol, marking the fifth straight year of declines.  Napolitano attributed the decline in large part to Obama's beefed-up manpower along the border, but others point to the struggling U.S. economy as the main reason for the drop.  The AP has this story.

Ex-Death Row Inmate Avoids Prison Again: The Omaha World-Herald (NE) reports that ex-death row inmate Jeremy Sheets once again avoided a prison term, receiving probation for threatening a teenage girl with a knife in a Colorado parking lot.  Sheets was previously accused of abducting a teenage girl from a school parking lot in 1992, raping her, and stabbing her to death.  He was originally convicted of murder and sat on Nebraska's death row until the state Supreme Court reversed his conviction in 2001, based on the improper introduction of a co-conspirator's taped confession at trial.    

No More Suits for You

| No Comments
Under a district court order issued today, the Bureau of Prisons can reject the legal mail of inmate Jonathan Lee Riches, who has filed more than 5,000 lawsuits since 2006.  AP writer Brett Barrouquere reports on a few of his alleged wrongdoers:

The 33-year-old inmate at the federal prison in Lexington has sued New England Patriots coach Bill Belichick, former President George W. Bush, then-Atlanta Falcons quarterback Michael Vick and even Somali pirates.


| 1 Comment
Here is another case from the Cases You Have to Look Up Just for the Name file. (The file is getting thick.)

I'm not a big fan of including the defendant's alias in the official case name. Nonetheless, both prosecutors and defense lawyers do it. Case 10-7012 in the United States Supreme Court (a defendant's certiorari petition) is titled Stephen M. Levy, aka Reallybad@aol.com, aka Steve Levy v. United States.

So how bad is Reallybad?

The Case of the Poisoned Paramour

| No Comments
No, this story is not by Erle Stanley Gardner. It's by Adam Liptak in the NYT.

The Tea Party's favorite part of the Constitution -- the 10th Amendment, which limits federal power -- arrived at the Supreme Court last week. In keeping with the spirit of the times, it came wrapped in the plot of a soap opera.
*                             *                         *
Now the court has decided to consider what to do about a woman hellbent on poisoning her best friend.

The woman, Carol A. Bond of Lansdale, Pa., was at first delighted to learn that her friend was pregnant. Ms. Bond's mood darkened, though, when it emerged that her husband was the father. "I am going to make your life a living hell," she said, according to her now-former friend, Myrlinda Haynes.

Ms. Bond, a microbiologist, certainly tried. On about two dozen occasions, she spread lethal chemicals on her friend's car, mailbox and doorknob.
However, the Question Presented to the U.S. Supreme Court is not whether this crime lies within the power of Congress to prohibit as a federal offense, but only whether Ms. Bond has standing to make that claim. That's a pretty easy question, IMHO.  See prior posts here and here.

Doug Berman has this post at SL&P.

A Patently Improper Stay?

| No Comments
It is always dicey to judge the propriety of a judicial action from newspaper stories, so what I say here is necessarily tentative.  However, it appears that Chief U.S. District Judge Fernando Gaitan in Kansas City may have gone way out of bounds in granting a stay of execution to murderer Roderick Nunley.  Tony Rizzo has this story in the Kansas City Star.  See also yesterday's News Scan.

Nunley, 45, is set to be executed by lethal injection at 12:01 a.m. Wednesday for the 1989 kidnapping, rape and murder of Kansas City teenager Ann Harrison.

[Judge Gaitan] issued the stay order Monday morning after lawyers for Nunley argued that he was entitled to a new sentencing hearing because a judge, not a jury, heard the evidence to determine if he should receive a death sentence.

The Supreme Court and Public Opinion

| No Comments
David Savage has this story in the L.A. Times last Saturday, noting "if American public opinion is the measure, the Roberts court has made the right call in most of its major decisions since [Justice Alito joined the court], according to a recent study that asked respondents about cases."

The survey is the Constitutional Attitudes Survey by Nathaniel Persily of Columbia and Stephen Ansolabehere of Harvard.  Doug Berman has this post at SL&P.

The formatting of this survey makes it a little difficult to follow. The full questions are in one appendix and the answers are listed with abbreviated versions of the questions in another. Another confusing aspect is that some questions about Supreme Court cases ask for the respondent's opinion about whether the decision was correct, while others only ask for knowledge about how the Court actually did decide the case. 

Here are some questions and answers of interest:

Q207. Should the government be allowed to apply the death penalty in any of the following cases?

An adult convicted of murder:   76.9 / 21.8 / 1.2

This wording provides an interesting contrast to the "standard" question, discussed many times on this blog (e.g., here).  Unlike the usual question, this one does not imply that the respondent is being asked to choose a single sentence for all murderers.  Lo and behold, support jumps ~10% above the standard result, from about 2/3 to about 3/4 of the population.

A Ludicrous Inference

| No Comments
One of the downsides to being quoted in the press is that there is literally no misrepresentation of your statements so bizarre that someone will not make it and, with the internet, broadcast that falsehood to lots of people.

Here is a case in point.  Last week, I was quoted in the NYT saying that if the cherry-picked Judge Baird did go ahead with his kangaroo court and pronounce Cameron Willingham actually innocent, no one on our side of the aisle would regard that holding as having any credibility.

Well, a blogger by the name of Todd Krohn deigns to inform the world what I said "in other words," as distinguished from what I actually said. "What he's saying, in other words, is that even if it's true, that Texas did execute an innocent man, so what?"

By no stretch of logic could any reasonable person take a statement that Judge A has no credibility when he rules on Fact X and infer a statement that Fact X is unimportant.  But logic, like truth, is expendable when you are signed up for the anti-death-penalty crusade.

News Scan

| 1 Comment
Woman Who Stabbed Husband 193 Times Resentenced:  Resentencing began today in the case against Susan Wright, convicted in a Texas court for the 2003 murder of her husband, reports The Houston Chronicle.  After stabbing her husband in their bed 193 times, Wright buried his body in the backyard.  She was originally sentenced to 25 years, but the Texas Court of Criminal Appeals reversed the punishment based on penalty phase ineffective assistance of counsel.  Her attorneys are expected to argue that Wright killed her husband in "sudden passion," which would cap her possible sentence at 20 years.

Los Angeles County Chips Away at Rape Kit Backlog:  Los Angeles county is on track towards eliminating its 5,000 backlogged rape kits by June 2011, according to the county sheriff's department.  Once the backlog is cleared, the county plans to implement a new system with improved inventory and testing procedures.  The Los Angeles Times has this story.

An Officer and a Serial Killer:  AP writer Charmaine Noronha reports an esteemed officer in the Canadian Air Force pleaded guilty today to murdering two women, sexually assaulting two others, and stealing underwear from dozens of women's bedrooms.  Until his arrest earlier this year, Col. Russell Williams served as commander of Canada's largest Air Force base.  But prosecutors today exposed his disturbing secret life, presenting photographs of Williams adorned in and engaged in sex acts with the stolen panties.  Warning the jury that the sentencing phase trial will include "extremely disturbing" evidence, prosecutors also claim Williams videotaped the murders and assaults.  Indicative of the shock felt by the Canadian military, one of Williams's former superiors referred to the officer/serial killer as "a very twisted individual."

Fed. Judge Grants Stay of Execution for Missouri Inmate:   A federal judge in Kansas City today granted a stay of execution for Roderick Nunley, a Missouri inmate scheduled to die on Wednesday.  In 1989, Nunley and a co-conspirator abducted, raped, and stabbed to death 15-year-old Ann Harrison.  Nunley pleaded guilty in an attempt to avoid the death penalty, but was sentenced to death by a county judge in 1991 (and later resentenced to death in 1994 after a Missouri Supreme Court ruling).  Nunley's last minute appeals concern his right to a jury and the Missouri three-drug execution method.  The state attorney general is appealing the stay to the Eighth Circuit.  Read the AP's story here.

Roads Not Taken, Yet

| 1 Comment
The most notable denial of certiorari on today's orders list is Simmons v. Galvin, No. 09-920, the felon voting case. As noted here, the Ninth Circuit's elimination of the circuit split October 7 made this an easy call.

The relisted cases noted last week are missing from this week's list as well.

Justice Sotomayor dissents from denial of certiorari in a prisoner Eighth Amendment case, Pitre v. Cain.

Hall v. Thaler, No. 10-37, the retardation claim noted on SCOTUSblog's "petitions to watch" list, was turned down.

Suing the Attorney General

| No Comments
In the wake of 9/11, the USDoJ began use of material witness warrants to detain persons with ties to terrorists.  One of them, Abdullah Al-Kidd, sued former Attorney General John Ashcroft personally.  The Supreme Court took up that case today in Ashcroft v. Al-Kidd, No. 10-98, limited to Questions 1 and 2 in the certiorari petition. They are:

1. Whether the court of appeals erred in denying petitioner absolute immunity from the pretext claim.
2. Whether the court of appeals erred in denying petitioner qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of respondent's arrest.
Question 3, not taken up, was:

3. Whether the former Attorney General may be held liable for the alleged false statements in the affidavit supporting the material witness warrant, even though the complaint does not allege that he either participated in the preparation of the affidavit or implemented any policy encouraging such alleged misconduct.

Jean Valjean? Not Exactly.

| No Comments

Our friends in the Excuse Factory, sometimes known as the "criminal defense bar," often tell us that poverty is the "root cause" of crime.  They seldom say directly  --  since it would be too easy to disprove  --  that criminals act as they do to to fend off starvation.  But time after time, the implication, sometimes sharp and sometimes prudently fuzzy, is that they steal because they lack life's basic material goods.  To hear them tell it, half the people in the dock are Jean Valjean.

I am not a criminologist, and I make no pretense of knowing why thugs are thugs.  But in almost two decades in the U.S. Attorney's Office, not one time did I encounter a defendant who stole, mugged or swindled to keep body and soul together.

This fact was brought home again tonight when I read this story.  It would appear that over the weekend, a Baltimore police detective was killed so that his assailant could get, well, something other than his bag of groceries.  What the assailant wanted was his parking space.  The killer, evidently less than overcome with contrition (or even any genuine longing for the space) was arrested a few hours later, having a good 'ole time at a nightclub with his girlfriend.

I guess we won't see the "parking space syndrome" as the defense this time  --  although, with the defense bar, you never know.

More Incoherence from Eric Holder


Does the Justice Department bow to "states' rights" on the question of marijuana?  I guess it depends on which the day of the week you ask.

Months ago, Attorney General Eric Holder said that the Department would not enforce the federal Controlled Substances Act against California's (or other states') "medical" marijuana provisions, deferring instead to the individual state's judgment about when marijuana should be available to its citizens.

Yesterday it was a different story.  The AP reports:

SAN FRANCISCO -- The U.S. government will "vigorously enforce" federal laws against marijuana even if voters next month make California the first state to legalize pot, Attorney General Eric Holder says.

Holder's warning, contained in a letter to ex-federal drug enforcement chiefs, was his most direct statement yet against Proposition 19, and it sets up another showdown with California over marijuana if the measure passes.

With Prop 19 leading in the polls, the letter also raised questions about the extent to which federal drug agents would go into communities across the state to catch small-time users and dealers, or whether they even had the resources to do it.

Of course it's already the case that federal drug agents generally do not go after small-time users and dealers.  What's changed is that Holder, who was ready to kiss goodbye to federal law in this area only a short time ago, now says he'll enforce it.  If the supposed difference is the distinction between "medical" marijuana and "recreational" marijuana (a distinction that as a practical matter barely exists), Holder needs to re-check his premises.  Under the CSA, smoked marijuana is a Schedule I substance, meaning that, under federal law, it has no recognized medical value.

If the Attorney General wants to defer to some muscular version of states' rights we haven't seen since Jim Crow laws, at least he should be consistent.  Well, forget that.  Why would we expect consistency from the man who wants to apply the Miranda rule to captured terrorists, except when he doesn't want to apply it?

News Scan

| No Comments
Interstate Probation Rules Tightened:  The Seattle Times reports on amendments to the Interstate Compact on Adult Offender Supervision, which oversees the state-to-state movement of certain probationers.  The changes were sparked in part by the murders of four Washington police officers last November by Maurice Clemmons, an Arkansas probationer.  Washington claims it did not know the full extent of Clemmons's criminal background, or about an outstanding Arkansas warrant issued a month before the officers were killed.  The new rules require offenders to be sent back to their home states after one violent offense and out-of-state warrants be entered into in a national database.

Crimefighting Critical Issue in Massachusetts Governor Debate:  Four candidates vying for the Massachusetts Governorship offered four different crime prevention strategies in today's debate, reports the AP.  Current Democratic Governor Patrick Duval argued for a longer school year to discourage gang participation, while Republican candidate Charlie Baker pushed for the state's involvement in a federal program targeting illegal immigrants involved in crime.  A video of the entire debate can be viewed here.  

LWOP for Indiana Boy Who Murdered Brother:  An Indiana judge today sentenced 18-year-old Andrew Conley to life without parole for murdering his younger brother last November.  After strangling the 10-year-old, Conley wrapped his body in a garbage bag, and dragged him into the trunk of his car.  Conley stopped to visit a friend for a few hours before finally dumping his brother's body in the woods behind a school.  Because Conley was a few months shy of 18 at the time of the crime, LWOP is the most serious sentence he can receive.  Read Cincinnati.com's article here.

"And the Gold Medal in Recidivism Goes To...":  Career criminal John Stolarz, 69, who attempted to rob a Times Square bank less than 24 hours after his release from a federal prison in New Jersey.  Stolarz "took a detour" on his way to a halfway house to purchase a knife and (unsuccessfully) rob a Chase Bank.  He did the same thing within a year of his release from a Kansas prison in the 1980's, hitting banks in Las Vegas and New York City.  In total, Stolarz's rap sheet spans over 50 years, including prison breaks in three states and theft offenses in several others.  The New York Post has this story.    
AP reports

AUSTIN, Texas (AP) -- A state appeals court halted a hearing Thursday that was to determine whether Texas wrongfully executed a man based on faulty arson evidence.

The court granted an emergency stay and ordered District Judge Charlie Baird not to rule on the case. The order gives Innocence Project lawyers seeking to clear Cameron Todd Willingham's name until Oct. 22 to respond.

John Schwartz has this article in the NYT on the hearing prior to the stay.

Text of the order follows the jump. PDF version is here.
When the question the jury is supposed to be deciding is clearly against your client, what do you do?  Try to get them to decide some other question? 

In Connecticut, the law (§53a-46a(e)) says the jury is supposed to decide "whether any aggravating factor or factors outweigh any mitigating factor or factors..." In the case of triple murderer Steven Hayes, the answer to that question is quite obviously "yes."  So his lawyers want to argue about other things, such as the cost of the death penalty.  The trial judge rejected that argument today.

Jason Vallee reports for the Record-Journal:

Charles Lane on the Death Penalty

I just received a new book by WaPo editorial writer Charles Lane titled Stay of Execution: Saving the Death Penalty From Itself.  Here is the description from the jacket:

The United States stands alone as the only Western democracy that still practices capital punishment. Yet the American death penalty has gone into noticeable decline, with annual death sentences and executions dwindling steadily in recent years.  In Stay of Execution, Charles Lane offers a fresh analysis of the unexpected trend and its moral and political implications.  Countering conventional wisdom that attributes the death penalty's decline to public rejection of the "ultimate sanction," he shows that it is instead related to the ebbing of violent crime itself.  The death penalty is not only more popular than critics claim, is also less flawed by wrongful executions or racial bias. Lane argues that capital punishment should be preserved, while proposing major reforms to address its real inequities and inconsistencies.
I look forward to reading this book.

News Scan

| 1 Comment
SCOTUS Denies Last Minute Stay of Oklahoma Execution:  The AP reports that today's scheduled execution of Oklahoma death row inmate Donald Ray Wackerly will proceed as planned, after the Supreme Court denied his request for stay of execution.  The AP also reports that a federal judge yesterday dismissed Wackerly's lawsuit demanding the presence of a Buddhist monk in the death chamber during his execution, a demand rejected by the Oklahoma Department of Corrections as contrary to its policy.  Wackerly and prison officials allegedly reached an agreement that the monk could enter the chamber after the execution is carried out to perform 15-20 minutes of Buddhist rituals on Wackerly's body.

Death Sentence Recommended in "Baby Lollipops" Murder Trial:  In a 7-5 vote, a Florida jury recommended a death sentence for Maria Cardona, a mother convicted of beating to death her 3-year-old son with a baseball bat in 1990.  The baby's body was found outside Cardona's Florida home, with a lollipop on his bloody t-shirt.  Cardona's original murder conviction was reversed in 2002 by the Florida Supreme Court based on a Brady violation.  Cardona's fate now lies in the hands of the trial judge, who may accept or reject the jury's recommendation.  The AP has this story.

Willingham Hearing Today

| No Comments
The notorious Judge Baird reconvenes the Willingham matter today at 1:00 1:30 p.m. CDT.  Morgan Smith has this article in the Texas Tribune.

Update: Baird proceeding with illegal hearing

Judge Baird is apparently proceeding with his court of inquiry in clear violation of Texas law.  Steven Kreytak has this update for the Austin American-Statesman at 1:44 CDT:

State District Judge Charlie Baird ruled today that the Navarro County District Attorney R. Lowell Thompson did not have standing to seek Baird's recusal in an inquiry into whether Cameron Todd Willingham was executed in 2004.

Baird said that Thompson is not a party to the lawsuit, in which Williingham's surviving relatives are seeking a declaration that he was wrongfully convicted of arson murder in the 1991 deaths of his three young daughters.

As he left the court Thompson said he was heading to Austin's 3rd Court of Appeals to seek a writ of mandamus to stop Baird from conducting the hearing.

Meanwhile, inside Baird's court, Willingham family lawyer Gerald Goldstein gave an opening statement summarizing the case. Witnesses are expected to follow.

There is no doubt that mandamus is proper. How fast can and will the Court of Appeals act?

A recent study by the RAND Drug Policy Research Center finds that legalizing marijuana in California will likely not significantly reduce drug cartel revenues and its accompanying violence.  Specifically:

"California already accounts for about one-seventh of U.S. marijuana consumption, and domestic production is already stronger in California than elsewhere in the United States.  Hence, if Prop 19 only affects revenues from supplying marijuana to California, DTO [drug trade organization] drug export revenue losses would be very small, on the order of 2-4 percent."

The study finds that drug cartel revenues could be significantly reduced if legally-grown marijuana from California beats out the prices of the Mexican variety.  But the study notes that "there is significant uncertainty regarding the assumptions underlying this estimate," such as whether California will tax marijuana exported to other states, and how vehemently federal and local law enforcement agencies will work to combat interstate distribution.  The AP has this story.

News Scan

| 1 Comment
Death Penalty Debate in Connecticut Home Invasion Trial:  The AP reports that Steven Hayes's defense team wants to introduce the costs of execution versus the cost of a life sentence during the penalty phase of Hayes's trial.  Prosecutors have objected to this evidence, arguing the costs of the sentences are not relevant to the sentence Hayes deserves.  A Connecticut judge heard argument today from both sides, but did not make an immediate ruling. 

Tennessee Murderer Gets 6 Death Sentences:  In an update to yesterday's post, jurors again acted quickly in the trial of Jessie Dotson, deciding on six death sentences for the Tennessee killer after deliberating for less than two hours.  Dotson's defense attorney admitted that such a sentence "was probably a foregone conclusion."  Read the AP story here.

Judge Charged With Perjury For Concealing CI's Identity:  The AP reports that retired Michigan Judge Mary Waterstone will stand trial on four felony counts, stemming from her private agreement with prosecutors to conceal the identity of a paid confidential informant who testified in her courtroom during a 2005 drug trial.  Waterstone claims she allowed informant Chad Povish's relationship with police to remain a secret for his safety, but the Michigan Attorney General's office counters that jurors and the defense had a right to know.  Prosecutors in the 2005 case also face conspiracy charges.

At Least 12 Years for Canadian Toilet Seat Murderer:  A Canadian killer was sentenced yesterday to life with the possibility of parole in 12 years after being convicted of killing a man with a porcelain toilet lid in 2008.  Tyler Lee Nolet used the heavy lid to strike victim Kenny Wong twice in the head in a Calgery nightclub.  Nolet argued he had acted in self defense.  The Calgary Herald has this story.
Quinnipiac has this interesting poll on the death penalty. The survey was taken in Connecticut, but the numbers run pretty close to the national average.  In particular, we see the result of phrasing the question in different ways:

The standard way Gallup has been asking since the 30s:
"Do you favor or oppose the death penalty for persons convicted of murder?"  65-23-12

This is problematic because it implies the respondent must choose a single punishment for all murderers.

The opponents' favorite phrasing, which makes the problem noted above even worse:
"Which punishment do you prefer for people convicted of murder, the death penalty or life in prison with no chance of parole?"  46-41-14

As strong a proponent of capital punishment as I am, I would answer that question LWOP myself if I were really constrained to a single choice for all murders.  Most polls with this phrasing report that a substantial portion of respondents break out of the choices offered and volunteer "it depends" or something like that.   No such breakout is reported here.  That could be a difference in the way the surveyor follows up if the respondent breaks out of the choices offered.  Some polls will simply record the volunteered answer, while others will press for a choice among those given.

And finally, the real question that is actually under discussion:
"Which statement comes closest to your point of view? (A) All persons convicted of murder should get the death penalty, (B) No one convicted of murder should get the death penalty, or (C) Whether or not someone convicted of murder gets the death penalty should depend on the circumstances of the case." A-7%; B-14%; C-78%; don't know/no answer-1%

Bravo for Quinnipiac!  When a pollster finally asks the real question, 78% of the people favor the basic approach of current law. Another 7% favor making it far more severe than it presently is or has been at any time in modern history, for a total of 85% in favor overall.

When they ask specifically about Steven Hayes, recently convicted of an exceptionally horrible multiple murder, the result is 76% favor, 18% oppose, 6% don't know.  It makes you wonder what the 4% who answered "oppose" to this question but did not answer (B) to the previous question are thinking, but polls often have a few percent of odd answers. The 5% who answered "don't know" to this question but not the previous one may simply be exercising caution in a case where the penalty phase has not been conducted yet.

The poll also finds, unsurprisingly, that very few people would base their vote for governor solely on the death penalty. Again, I would answer that question "no" myself.
Now here is something you don't see every day.  Or every term.  In a Supreme Court argument, counsel for the certiorari petitioner has 8 minutes reserved for rebuttal.  He says 82 words and asks if the Court has any questions. Nope. End of argument. Not a good sign for the other side.

So went Premo v. Moore, today's case on ineffective assistance before a plea bargain.  The transcript is here. The claim is that the lawyer was ineffective for not moving to suppress a confession.  The Attorney General of Oregon concedes that earlier in the litigation they forfeited the argument that a motion to suppress was meritless and would not have been granted.  That was a mistake but probably not a fatal one.  Counsel for defendant got beaten up on the "prejudice" point.  There is not a reasonable probability of a better outcome for the client in any event.  They had him nailed on kidnapping, and the victim indisputably died during that kidnapping.  That is all the state needs for felony murder and the 25 year sentence the defendant received.

Looks like a win for the state, possibly 8-0, and yet another Supreme Court reversal for Judge Reinhardt.

Deference and Summary Denials

| 1 Comment
The transcript of the Supreme Court argument in Harrington v. Richter is available here.

In this case, the defendant made his ineffective assistance of counsel claim for the first time in state court in a habeas corpus petition filed directly in the California Supreme Court, without going to any lower courts first.  The state high court, as it sometimes does, simply denied the petition without comment.  (If Richter had filed in the Superior Court, the preferred procedure, the Rules of Court would have entitled him to an explanation.)  The Ninth Circuit granted Richter's federal habeas petition.

When this case reached the U.S. Supreme Court, the Court on its own posed the question of whether a summary denial of relief by the state court is a disposition on the merits for the purpose of 28 U.S.C. §2254(d), limiting the authority of a federal court to grant a claim denied on the merits in state court.

There was no argument today on the question in the terms the Supreme Court posed, summary versus explained decisions.  Instead, the discussion was on (1) whether the state court's order was a disposition on the merits at all, as opposed to on procedural default; and (2) the merits of the ineffective assistance claim, with lots of fact-intense discussion about blood pools and high velocity spatter.

It appears possible that the Supreme Court could just go straight to the merits of the underlying claim and say there was effective assistance or no prejudice and leave all the other questions for another day in a cleaner case.

Update: Snarky WaPo columnist Dana Milbank, who does not usually cover the Supreme Court beat, comments on the blood and forenics in the argument here.

Update 2: John Elwood and Douglas Geyser have this recap at SCOTUSblog. They count 5 votes to reject Richter's ineffective assistance claim on the merits even without the AEDPA standard and a sixth to say that the state court determination was on the merits.

Keller Cleared

Morgan Smith reports in the Texas Tribune, "A specially appointed court of review vacated the State Commission on Judicial Conduct's sanction of Sharon Keller today, saying the state board acted unconstitutionally in reprimanding the presiding judge of the Court of Criminal Appeals."  Ashby has this post in the WSJ Law Blog. Peggy Fikac has this story in the Houston Chronicle.

The flap had to do with a misunderstanding regarding an after-hours filing for a stay of execution after the Supreme Court took up the lethal injection issue in a Kentucky case, Baze v. Rees.  Little noticed in the flap is that telling capital defense lawyers there is no remedy in Texas state courts is like throwing B'rer Rabbit in the briar patch.  It lets them go directly to where they really want to be -- federal court.  In the Richards case, the defendant's attorneys were able to go the U.S. Supreme Court with their stay request earlier than they otherwise would have.  The high court denied the stay, and Richards was executed.

The SG Response in Bond

| 1 Comment
As noted in the orders list post, the Supreme Court today took up the case of Bond v. United States, No. 09-1227.  In that case, the Third Circuit held that Ms. Bond does not have standing to complaint that the criminal statute under which she was convicted exceed the enumerated powers of Congress, at least as applied to her.  On the limited question of standing, the Solicitor General agreed with the defendant.

Petitioner contends (Pet. 19-26) that the court of appeals erred in concluding that she does not have standing to assert a claim that 18 U.S.C. 229 exceeded Congress's enumerated powers and thus violates the Tenth Amendment. The government agrees with that contention. A criminal defendant has standing to defend herself by arguing that the statute under which she is being prosecuted was beyond Congress's Article I authority to enact. The court of appeals' contrary conclusion was based on this Court's statement in TVA, supra, that the private parties in that civil case "ha[d] no standing to raise any question * * * under the [Tenth] [A]mendment" "absent the states or their officers" as parties to the litigation. 306 U.S. at 144; see Pet. App. 11. That portion of TVA addressed a distinct kind of Tenth Amendment claim involving unwarranted intrusions into State sovereignty and not a claim, like that here, that a statute exceeds Congress's enumerated powers. The Court has repeatedly permitted private parties to press such enumerated-power claims, and the court of appeals erred by not doing so here. The Court should grant the petition, vacate the judgment of the court of appeals, and remand for further proceedings in light of the position of the United States asserted in this brief.
But the Court did not "GVR."  They took the case for full briefing and argument.  So an amicus will be appointed to argue the position held by the court of appeals but abandoned by the SG.  He or she will get a glowingly complementary footnote in the opinion and a unanimous (or nearly so) defeat.

News Scan

| No Comments
Tennessee Mass Murderer Convicted:  After only 90 minutes of deliberating, a Tennessee jury found Jessie Dotson guilty yesterday of six counts of first-degree murder and three counts of attempted first-degree murder, reports The Commercial Appeal (TN).  In 2008, shortly after his release from prison for another murder, Dotson fatally shot his brother and three other adults in a Memphis home, and beat and stabbed to death his 2- and 4-year-old nephews.  Three of Dotson's other nephews, including a 2-month-old baby, survived their stab wounds and were found in the home 40 hours after the attack.  Two of those surviving nephews served as the state's key witnesses, identifying Dotson as the killer.  (Surprisingly, the jury didn't buy Dotson's story that he hid under a bed while his family was murdered, left the scene without checking to see if any of them were alive, and was later "coerced" into confessing to his mother and a detective.)  The sentencing phase of trial began today, and prosecutors are seeking the death penalty.

Oral Argument Tomorrow in Death Row DNA Access Case:  The Supreme Court will hear argument tomorrow in the case Skinner v. Switzer, 09-9000, which presents the question of whether an inmate may seek access to DNA testing via a civil rights claim.  (See Kent's previous post on the case here.)  Prosecutors maintain that Skinner doesn't qualify for further DNA testing under the applicable Texas statute, and that Skinner's last minute lawsuit is merely an effort to stall his execution.  The Star-Telegram has this story

Mexican Officer Investigating Falcon Lake Disappearance Killed:  The AP reports on the recent death of a Mexican police commander investigating the disappearance of David Hartley, an American tourist who went missing while vacationing at Falcon Lake.  No further details have been released, but U.S. officials report that threats from Mexican drug gangs have hindered the search for Hartley's body.  The Mexican Foreign Ministry claims it is actively investigating the case, but Hartley's family members and Texas Governor Rick Perry are calling on Mexican officials to do more in their search.

Tuesday Orders List

The U.S. Supreme Court's post-conference orders list is here.  It is released on a Tuesday because Monday was Columbus Day, a court holiday.

The Court has accepted for full briefing and argument Camreta v. Greene, No. 09-1454, a civil case on interviewing children at school when child abuse is suspected (noted here), and DePierre v. United States, No. 09-1533, on cocaine sentencing (noted here).

Also accepted is Bond v. United States, 09-1227, presenting the interesting federalism question, "Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government's enumerated powers and inconsistent with the Tenth Amendment."  I would think so, but USCA3 thought not.

Ryan v. Doody, No. 09-1443, the case of the horrible massacre at a Buddhist temple in Arizona, is sent back to the Ninth Circuit to reconsider in light of Florida v. Powell.

The Eleventh Circuit gets back the Florida case of Peterson v. McNeil, No. 09-11051, to reconsider in light of Holland v. Florida.  There is no Eleventh Circuit opinion.  That court just denied a certificate of appealability by summary order.

No sign of Wong v. Smith, No. 09-1031 (noted here), which is apparently re-re-listed. Multiple relistings plus the Court calling for the record are hints that a summary reversal may be in the cards.

Allen v. Lawhorn and Wilson v. Corcoran, two other state's petitions in murder cases noted here, are also absent from the list.  Ditto United States v. Gonzalez, No. 10-82, a Fourth Amendment case on the fallout from Arizona v. Gant, noted here.

Update: Anna Christensen at SCOTUSblog has the petitions to watch post for this Friday, and Wong v. Smith, Allen v. Lawhorn, and Wilson v. Corcoran are relisted.

Supreme Court Specialists

| No Comments
Adam Liptak has this article in the NYT on the rise of U.S. Supreme Court practices within law firms as well as specialized Supreme Court clinics at law schools.  Orin Kerr has this post at VC commenting on the article.

How does a law firm run a profitable business with a Supreme Court practice, given how few cases there are and how many of the clients are indigent, represented for free pro bono publico or on appointment for a nominal fee?  It doesn't.  The Supreme Court pro bono practice is a "loss leader and reputation enhancer" for the firm, Liptak writes.

How much does it really enhance a firm's reputation that it freed a terrorist to return to Afghanistan to kill more of our troops or that it got a murderer off with far less punishment than he deserved?  Reputation with whom?  Perhaps that activity draws applause from the ABA and academia, but does it resonate with the corporate general counsels who make the decisions on who will get the truly big-bucks cases?

Some folks in the criminal defense bar aren't too thrilled with specialists looking to take cases up to the Supreme Court, possibly just because they want to ratchet up the number of cases they can say they argued there.  Critics say that the exclusionary rule case of Herring v. United States (2009) and the immigration case of Fernandez-Vargas v. Gonzales (2006) were poor vehicles that shouldn't have been taken up and made bad law (from the defense perspective).

Orin Kerr notes that it is important to break out the different issues involved. He is particularly critical of the emphasis on oral argument. "The press covers oral arguments, not briefs, and lawyers are known for how many arguments they gave rather than how many briefs they wrote."  That is true even though "the written briefs are far more important than the oral arguments...."

News Scan

| No Comments
Insanity Defense in Psychiatrist's Slaying:  NYDailyNews.com reports that trial is set to begin tomorrow for David Tarloff, accused of murdering Dr. Kathryn Haughey with a cleaver in 2008.  Tarloff admitted to the crime, claiming he killed Haughey in an attempt to rob another doctor in the same office.  Despite this confession, Tarloff's attorney plans to present an insanity defense at trial.  Although Haughey's family members are weary that Tarloff will succeed in showing the jury that he did not know right from wrong at the time of the killing, the article reports that such a defense is unsuccessful 80% of the time.  

Arkansas DNA Collection Law :  Arkansas's "Juli's Law," requiring DNA collection of those arrested for several of the most serious felonies, has failed to increase the state's DNA database as expected, reports the Texarkana Gazette.  Although projected to result in the collection of 1,400 samples per year, only 73 have been submitted since the law went into effect in July 2009.  Little Rock Police Chief Danny Bradley admitted that compliance is expected to be low during the first year of a new law, as law enforcement officers attempt to keep up with the state's frequently-changing criminal laws.

Meth Pipe + Blowtorch + Gunpowder:  Made for a a bad day for John Blanchard, whose approach to meth-smoking caused a storage yard fire earlier this month in San Mateo County, California.  Blanchard used a blowtorch to light a meth pipe, then left the torch near a container of gunpowder that subsequently exploded.  The SF Chronicle has this story.

Some Media Progress in Willingham

For some time, there has been widespread reporting of half-truths in the news media, old and new, on the Cameron Todd Willingham matter.  The claim that Texas has definitely executed an innocent man has been the standard script, repeated uncritically all over by people who read one magazine article and printed its spin as the truth without further checking.  The little Corsicana Daily Sun was regularly saying wait a minute -- there is lots of evidence he was guilty, untouched by the forensic issues.  Occasionally a glimmer of light would also emerge from another source, but mostly the spin of the Innocence Project et al. ruled the day.

The cracks in the edifice seem to be increasing now. Matt Smith of CNN has this article featuring Stacy Kuykendall and closing with the observation, "Corsicana authorities have said that evidence beyond the testimony of state fire marshals supported Willingham's conviction."  The anti-DP blog Grits for Breakfast now says that whether Willingham was actually innocent is not the important question. It is a sure sign that the other side knows it is losing on a question when they say it is not the important question.

But all is not rosy yet.   Newsweek has this article by Jonathan Alter that appears to have been written by simply accepting the New Yorker version without further investigation.   The Connecticut Post has this column by MariAn Gail Brown, repeating David Grann's intentionally misleading half-truth on Willingham's last words, previously exposed here.

PBS has a documentary airing Tuesday, October 19. We won't know until we see it, of course, but from the press release it doesn't look good.

Marijuana Initiative Trailing

| No Comments
A Reuters/Ipsos Poll (press release, toplines) shows the California marijuana initiative trailing by 10 points, 53-43.

The poll also shows the Senate race within the margin of error (barely), and Jerry Brown 7 points ahead of Meg Whitman for Governor.

A Small Victory for Victims' Rights

Generally, witnesses are not allowed to attend trials in which they are going to testify.  The theory is that witnesses should not hear the other witnesses and tailor their own testimony accordingly.  The rationale a bit of a stretch, though, because by the time of the trial the witnesses most interested in the case already know the gist of the evidence.

Can the defendant be excluded if he is going to testify?  Of course not.  Everyone knows that whatever value there may be in the "rule against witnesses" it does not override the more important value of allowing the defendant to attend the trial.

Can the victim (or, in a murder case, the victim's family) be excluded?  Surprisingly, the answer has historically been yes.  While the interest of the victims in attending the trial may not be precisely the same as the defendant's, it is still a strong interest and should generally override the relatively weak policies behind the rule against witnesses.  Yet victims of crime have had to fight for the right to attend trials.  In federal court, Congress has provided such a right, although a qualified one:

18 U.S.C. §3771:

(a) Rights of Crime Victims.-- A crime victim has the following rights:
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

Today, AP reports, "A judge has ruled that Chandra Levy's mother will be allowed to attend the entire trial of the man accused of killing the federal intern, even though Susan Levy will likely be called as a witness."

The Church of Body Modification

| No Comments
One of the big problems in accommodating religion in institutions is that anyone can claim anything is their religion, and there is precious little that can be done to probe the sincerity of that professed belief.  The standard joke in prisoner litigation is the inmate who is a member of the Church of the Daily Steak, whose mandatory sacrament is a USDA choice filet mignon, medium rare, with mushroom sauce.  If the prison serves him USDA prime instead, that is a violation of the Constitution of the United States.

Well once again reality overtakes satire. A 14-year-old high school student in North Carolina claims that her nose stud is required by her faith in the Church of Body Modification, exempting her from the school dress code.  A federal judge actually bought it.  Emery Dalesio has this story for AP.

Demographics and the Death Penalty

| No Comments

Let me follow up on Kent's post pointing out the limited importance of demographics with a footnote about the demographics of support for the death penalty.  The data are a bit dated (they're six years old), but overall support for the death penalty then was essentially identical to what it is now, to wit, two-thirds approval.

Gallup found that one demographic group, blacks, featured a narrow plurality opposing capital punishment, 49% to 44%. 

Majorities  --   most often substantial majorities  --  favored the death penalty among the following groups:  Men, women, conservatives, moderates, liberals, Republicans, Independents, Democrats, young, middle-aged, older, church attendees, chuch non-attendees, observant Catholics, non-observant Catholics, observant Protestants and non-observant Protestants.

News Scan

| No Comments
Husband Found Guilty of Killing Wife After 2nd Trial:  Quincy Norton, 36, whose murder conviction was overturned in 2008 on the grounds that his defense attorney was incompetent, was found guilty yesterday in a retrial of the case in San Mateo County, California (south of SF).  Norton was convicted of first-degree murder and a knife enhancement in the stabbing of his 31-year-old wife Tamika Norton.  The judge who overturned his 2008 conviction was convinced that Norton's attorney in the first trial deprived him of "potentially meritorious defenses" including retesting a knife for DNA evidence that could have implicated someone else.  Norton will face 26 years to life in prison.  Steve Wagstaffe, the chief deputy district attorney says, "He richly deserves to spend the rest of his life locked up in a cage for the evilness of his murdering the mother of his children."  San Francisco Chronicle Staff Writer Henry Lee has more on the story here.

Washington Inmate Voting Case:  Bob Egelko, San Francisco Chronicle Staff Writer, reports on the Ninth Circuit decision upholding a Washington law to prohibit felons from voting, "even if the ban disproportionately harms minorities." See prior post here.  If the court chose not to uphold Washington's law disenfranchising felons, it could have invalidated laws in the eight other states in the circuit, including California, if courts found that a state's system of arresting and prosecuting suspects was racially biased.  But, the 11-judge appeals court panel did uphold the Washington law and concluded that federal civil rights laws do not apply to a state's inmate voting ban.  The minority inmates would have to prove that a state's law or justice system was biased against them.  Attorney Ralph Kasarda of the Pacific Legal Foundation in Sacramento, which filed arguments supporting the Washington law, said the ruling means "states don't have to color-code their criminal justice systems....  [S]tates would have to monitor their criminal justice systems to ensure that the arrests and convictions were racially balanced," if unintentional racial bias was enough to invalidate the inmate voting ban.

Fort Hood Shooter Refuses to Participate in Sanity Review:
  CNN reporters, Larry Shaughnessy and Charley Keyes, report that former Army psychiatrist, Maj. Nidal Hasan, accused of killing 13 people last year at Fort Hood, Texas, refused to participate in a psychiatric evaluation yesterday. The request for a sanity review came a week before Hasan's Article 32 hearing next week, an important pre-trial procedure in which the first public testimony is given in the case.  Hasan's lawyer, John Galligan, believes this psychic evaluation is an Army attempt to "distract" him as he prepares for next week's hearing and has instructed his client not to talk to anyone connected with the sanity review. 

The Limited Importance of Demographics

| 1 Comment
In politics and social science, including criminology, some people seem to be obsessed with classifying people into demographic pigeonholes.  The Bureau of Justice Statistics is particularly annoying in this regard.  The Sourcebook has table after table after table of data broken down by race, sex, etc., but if you want to know something about the crimes as simple as whether the killers were convicted of murder or manslaughter, you are pretty much out of luck. And, more importantly, you're out of data.

Lydia Saad at Gallup has this interesting article on the divergence of demographics and ideology in the likely voter mix for the midterm election.  This is politics rather than criminology, of course, but I think it illustrates that demographics are less important than many people imagine.  Gallup finds that the citizens likely to vote are considerably more conservative and more Republican than in prior midterm elections, yet "these voters' demographic profile is quite similar to what Gallup found in 2006, when the Democrats recaptured majority control of Congress."  The only demographic change of note is that the proportion of "white" likely voters is down a bit.

How can the electorate be getting less white and more conservative at the same time? For the demographics-obsessed folks who think conservatism is nothing but a veneer over racism, that's a real head-scratcher.

Time to get over the obsession.  And BJS, tell us more about the crimes and less about pigeonholes.

Former Attorney General Michael Mukasey has this op-ed in the WSJ.

The plan was disrupted because we were lucky enough to have the key witness in detention. It's a shame we didn't try to extract similar intelligence from Times Square bomber Faisal Shahzad.
*                                  *                             *
The government seems to present us only with the choice that we kill [terrorists] with drones or give them Miranda warnings and access to a 24-karat justice system designed for conventional criminals. There are better ways, including but not limited to military commissions already provided by law but shunned by the administration, or other special- purpose tribunals that can be established by Congress.
*                                  *                             *
We will not always be so fortunate to have our would-be attackers detained by the military at Bagram. And even such detention may be the subject of further litigation if the Supreme Court agrees to review last spring's appellate decision denying habeas corpus to detainees at Bagram. Yet as recently as World War II this country held tens of thousands of war prisoners here and abroad without a single one of them being allowed to require his custodians to answer to a U.S. court.

For us, today, the lesson is clear. The importance of being able to gather human intelligence has never been more starkly demonstrated than in the capture and questioning of Ahmed Sidiqi, and the resulting drone attack. The former director of the CIA, Gen. Michael V. Hayden, has likened trying to survive on electronic intelligence alone to trying to put together a jigsaw puzzle without looking at the picture on the box. It is human intelligence that provides that picture.

Like Gulliver in the land of the Lilliputians, we seem tied down; unlike Gulliver, we have woven and tied the strings ourselves.

At Least One Side Knows We're at War

| 1 Comment

A story that got some reporting, but not enough, was the sentencing earlier this week of would-be Times Square bomber Faisal Shahzad.  As expected, he got life imprisonment. 

President Obama has said time and again that we are not at war with Islam.  He has been less specific about what it is, exactly, that we are at war with.  His Secretary of Homeland Security, Janet Napolitano, has observed that we seem to be confronting "man caused disasters."  The specific source of these mysteriously appearing "disasters" seems to elude her.

Mr. Shahzad is not similarly confused.  His words at sentencing were, inter alia:

"Brace yourselves, because the war with Muslims has just begun," 31-year-old...Shahzad told a federal judge. ... "We are only Muslims trying to defend our religion, people, homes and land, but if you call us terrorists, then we are proud terrorists and we will keep on terrorizing you until you leave our lands and people at peace."

Andy McCarthy, the man who convicted  Omar Abdel-Rahman (the "Blind Sheik") for the 1993 bombing of the World Trade Center, notes that we ignore Shahzad at our peril.  Among other things, Andy observes:

[W]hether they are right or wrong, there are millions upon millions of Muslims who believe exactly what Shahzad believes about the nature of jihad and the demands of sharia. It is of no moment to them that we do not see ourselves as at war with Islam, or that we see the victims of terrorism as "innocent." They see things as Shahzad sees them, even if they are not willing to go the next step of commiting acts of terrorism, as Shahzad is.

From the perspective of American national security, it does not matter if those Muslims are wrong about Islam. What matters is that there are a lot of them and they constitute a mainstream current of Islamic thought. They have the support of influential Islamic scholars who tell them Islam is under siege, and they don't care in the slightest whether Western intellectuals (at whom they scoff) or Muslim reformers (whom they regard as apostates) think they have interpreted Islam incorrectly.

One need not agree with everything Andy says to understand that the administration needs to take the jihadist threat a great deal more soberly than its complacent and self-congratulatory position suggests.

Investing in Prison

| No Comments

We frequently hear that prisons are squeezed for money and that, therefore, we need to release "low level, non-violent" inmates (which, to read defense-oriented websites, is most of them) to rescue the public fisc.

It now comes out that we have been investing quite a bit in prisons  --  or, more directly, in prisoners.

Remember the jobs-producing stimulus money?  Well, the jobs never showed up, but business is brisker than ever at the prison canteen.

Still, not to worry.  As the story shows, even though prisoners have been getting quite a chunk, the bulk of it went to people likely to be less energetic in using it, except, perhaps, to vote in Chicago.


No Circuit Split on Felon Voting

| No Comments
As noted in today's News Scan, the Ninth Circuit en banc has thrown over the side the circuit's previous decision in Farrakhan v. Gregoire regarding felon disenfranchisement laws and the Voting Rights Act of 1965.  The surprisingly brief majority opinion is here.  It is officially "per curiam," but the contractions mark it as a Kozinski product.  The court notes that since the original opinion three other circuits have rejected it.  Is it possible a majority of the Ninth Circuit now actually does not like being regarded as the extreme outlier of the federal judiciary?  Some of the judges, I am quite sure, take the attitude of "We are sane; the rest of the world is crazy" and consider outlier status to be a badge of honor (like reversal by the Supreme Court).

Anyhow, there is no circuit split on the issue any longer.  Simmons v. Galvin, No. 09-920, is on the conference list for October 15, and it should be an easy denial now.

Fruit of the Wartime Tree

| No Comments
The Fifth Amendment provides that "no person shall be compelled to be a witness against himself in any criminal case."  Does that preclude the government from using the voluntary testimony of a witness whom it would not know about but for an involuntary statement from the defendant himself?  That gets us into arguments about "fruit of the poisonous tree" and so forth.

But what if the identity of the witness is obtained in a wartime interrogation of an enemy that is legal, even though involuntary?  The tree is not poisonous in the sense of any violation of the law occurring at the time of the interrogation.  And the defendant has not been compelled to be a "witness" in the sense that "witness" is now used in the new view of the Sixth Amendment's Confrontation Clause under the Crawford v. Washington line. That is not the sense in which the Supreme Court used the word "witness" while developing its Self-Incrimination Clause jurisprudence, of course.  Does "witness" mean two different things in amendments adopted simultaneously?

Well, Judge Lewis Kaplan has excluded the evidence in the civilian trial of alleged embassy bomber Ahmed Khalfan Ghailani.   James Taranto features the decision in this post at the WSJ.  If evidence such as this is truly inadmissible in a civilian trial for terrorism, that is one more reason to try such cases before military commissions.

I will have more to say on this decision after I have studied it some more.

The Ethics of SVP Evaluations

| No Comments

Psychologist Karen Franklin provides an interesting commentary on the article Normative Versus Consequential Ethics in Sexually Violent Predator Laws: An Ethics Conundrum for Psychiatry which supplements a companion article in the same issue, Alice In Actuarial-Land: Through the Looking Glass of Changing Static-99 Norms.   There's a lot of controversy among forensic psychologists these days about the validity of the Static-99, the chief measure of sexual recidivism used in SVP assessments.  The claim by many is that the Static-99 simply isn't a good measure of sexual recidivism: many of the studies are unpublished, the recidivism rates vary widely based on which sample norms are used, and the instrument fails to account for dynamic factors  - those that can change over time (e.g., substance abuse, loss of sexual function).  These are serious concerns and are a further detraction from basing confinement of nebulous mental abnormalities based on criteria defined by legislatures (although in all fairness, the American Psychiatric Association has numerous diagnosable sexual mental disorders, including pedophilia based on questionable grounds as well).   But the question at the end of the day is what to do given the reality of SVP laws?

Oh, Those Clueless Voters

| No Comments
America's political left shows its ugliest facet when it declares that the people must be stupid for not agreeing with lefty positions.  See, e.g., this Sept. 25 article by Hilary Chabot in the Boston Herald on remarks by John Kerry.

Well folks, here they go again.  Yesterday, Gallup announced this poll showing that only 19% of the people think the Supreme Court is too conservative, while 32% think it is too liberal and  43% think it is about right. Of course, it is perfectly obvious to persons who are themselves 2 standard deviations to the left of the median that the current Supreme Court is actually hard right.

Therefore, the people must be stupid and easily tricked.  Roberts and Alito are actually Penn and Teller, you see. That is the essence of this article by Barry Friedman and Dahlia Lithwick in Slate.  Trickery can't be that difficult when the audience is made up of those bitter, ignorant people who cling to guns and religion.

News Scan

| No Comments
California Restocks Execution Drugs:  California officials disclosed yesterday in a court filing that the state has been resupplied with sodium thiopental, one of the essential lethal injection drugs.  The state received the drug the same day Albert Greenwood Brown was scheduled for execution, but the execution had already been postponed after a ruling by the California Supreme Court.  Although prison officials now have enough drugs to execute four inmates, a new date for Brown will likely not be until next year.  AP writer Paul Elias has this story.

No Trick-or-Treating for Tulare County Sex Offenders:  The Porterville Recorder (CA) reports on a California county's efforts to keep children safe from sex offenders on Halloween.  Tulare County officials approved an ordinance earlier this week requiring convicted child sex offenders to turn off all exterior lighting on Halloween night, and prohibiting them from decorating their homes or distributing candy to trick-or-treaters.  The ordinance was passed under Jessica's Law, which gives local governments the authority to impose additional restrictions for sex offenders living within the jurisdiction.  Challenges to the constitutionality of the ordinance are anticipated.

Ninth Circuit Upholds Washington's Ban on Inmate Voting:   In an en banc opinion, the Ninth Circuit  today reversed its previous three-judge ruling striking down Washington's inmate disenfranchisement law. (See previous post here.)  In its opinion today, the court determined that for the inmates to prevail, they would have to show "intentional discrimination or that the felony disenfranchisement law was enacted with such intent,"  which they failed to do in this case.

$17.25 Million/Murder

| No Comments
ScienceDaily has this article about a recent study tallying the societal costs of five major crimes.  A sociology professor and five graduate students at Iowa State University calculated the numbers based on costs to victims and the criminal justice system, lost productivity of the victim and criminal, and the public's resulting willingness to pay for crime prevention measures.  The totals:

Murder -- $17,252,656
Rape -- $448,532
Armed robbery -- $335,733
Aggravated assault -- $145,379
Burglary -- $41,288

An abstract of the published study, "Murder by numbers: monetary costs imposed by a sample of homicide offenders," is available here.

Remedies for the Willingham Circus

Ever since loose cannon Texas Judge Charlie Baird was reported to be holding a court of inquiry on the Willingham case, the discussion among persons of sense was what remedy was available.  The law is crystal clear, as we noted Monday, that the first judge has no authority beyond asking the presiding judge to appoint a different judge to conduct the court of inquiry.  But what if Judge Baird (the Innocence Project's cherry picked judge and recipient of an award from a Texas anti-death-penalty group) ignores the law and goes ahead himself, as he has apparently done once before?

The District Attorney of Navarro County has filed this motion to recuse Judge Baird.  According to Texas Rules of Civil Procedure 18a(c), a judge presented with a recusal motion must either recuse himself or ask the presiding judge to assign another judge to hear the motion.

Also, the Texas Legislature passed two statutes in 1995 in reaction to abuses of the court of inquiry and lack of remedies. Chapter 318 § 65 amended the court of inquiry law (Code of Crim. Proc. Art. 52.01) to add, among other provisions, the requirement that the initiating judge ask the presiding judge to appoint a judge to conduct the court of inquiry, and it disqualified the initiating judge from receiving that appointment.  The purpose is to prevent exactly the kind of judge shopping that is happening in this case.  Chapter 839 gave the court of appeals authority to restrain a rogue judge by writ of mandamus, amending Government Code § 22.221(b).

So at this point it appears (1) that the DA is fully engaged and ready to battle; and (2) that there is a remedy by writ of mandamus from the court of appeals if Judge Baird decides to plow ahead on his own in defiance of the law.

Judge Baird, BTW, is not running for reelection, so he will soon be ex-Judge Baird for the second time, to the betterment of justice in the Lone Star State.

Hearing photos by Jay Janner of the Austin American-Statesman are here.
Here are two stories on the death penalty as an issue in the November elections:

From KGO-TV in San Francisco: AG race focuses on death penalty

From the New Haven Register: Candidates for Conn. governor weigh in on ads, death penalty

Relisting Update

| 1 Comment
Wong v. Smith, No. 09-1031 and Camreta v. Greene, No. 09-1454, noted as likely relists in Christine's post Monday, have been relisted for this Friday's conference.  So have Ryan v. Doody, DePierre v. United States, Allen v. Lawhorn, and Wilson v. Corcoran, noted in today's post.

Willingham Hearing Postponed

| No Comments
Steven Kreytak has this update in the AA-S:

An inquiry into whether Cameron Todd Willingham was wrongly executed was postponed today after state District Judge Charlie Baird announced that he needed some time to review a motion for his recusal from the case.

Baird reset the case for a week from Thursday in his Travis County courtroom.

News Scan

| No Comments
Ohio Executes Another Murderer:  Michael Benge, 49, was executed at 10:34 a.m. this morning at the Southern Ohio Correctional Facility near Lucasville, making him Ohio's eighth lethal injection this year, a new record.  Benge was convicted and sentenced to death for killing his 38-year-old girlfriend Judith Gabbard.  He stole her ATM card, beat her with a tire iron, then weighed down her body with concrete and dumped it in the Miami River.  He then proceeded to spend $400 from Gabbard's bank account.  After the execution, Kathy Johnson, the sister of the victim, said, "It makes us feel there was justice for my sister.  That's what this is all about."  Alan Johnson has more on the story here.

Appeals Court Reverses Gov. Schwarzenegger's Parole Decision:
  San Francisco Chronicle Staff Writer Bob Egelko reports on a California appeals court decision overruling Gov. Schwarzenegger's parole veto of Kludip Kler, a Fremont man who has spent 21 years in prison for fatally beating his 10-month old daughter.  Kler initially denied guilt, but later admitted that he lost control and beat his daughter to death because he could not stop her from crying.  In February, Schwarzenegger reversed the Parole Board's 2009 decision granting parole, saying he believes Kler is still dangerous because he committed a horrible crime and "lacks full insight into the circumstances."  The court said Tuesday that the governor had no evidence to support his conclusions and that the governor cannot deny parole because the inmate "cannot answer a question that has no satisfactory answer-why someone would kill their own child."  The governor can appeal the court's ruling to the State Supreme Court.  

Married Judge Caught With Stripper, Guns, and Drugs:  With what started off with a simple lap dance, 67-year-old Judge Jack T. Camp now finds himself in a sticky situation involving prostitutes, guns, and drug deals.  Camp developed a close relationship with a stripper, who had a previous drug trafficking conviction and had been secretly working with the FBI to build a case against the judge.  The FBI busted Camp shortly after a drug deal involving the stripper and an undercover officer.  Camp, a husband and father of two, had a reputation for delivering harsh sentences, especially for drug convictions.  Now, Camp could face years behind bars on drug and gun charges.  Attorneys are looking into the possibility that Camp was under the influence when he presided or ruled, but it is unclear whether any of his decisions will be revisited.  Greg Bluestein of the San Francisco Chronicle has more on the story here.

AP Investigation Prompts Changes in Prison Library Policy:  The AP reports that after its investigation revealed Connecticut inmates' unrestricted access to violent and graphic literature, the state Department of Corrections has vowed to revise its prison library policy.  In drafting the new policy, corrections officials plan to consider those of other states, as well as that of the Federal Bureau of Prisons, which does not explicitly address content-based restrictions.  One Connecticut lawmaker is calling for the removal of all books containing violence, but such a sweeping prohibition is expected to meet opposition from the American Library Association, who claims that the denial of the right to read "diminishes the human spirit of those segregated from society," and the ACLU. 
A few more "re-listed" criminal cases for a second consideration by the Supreme Court.

Ryan v. Doody
Docket:  09-1443
Brief Summary:  A 17-year-old confessed to participating in the murders of nine people inside a Buddhist temple.  At issue is whether the Miranda warnings administered by the police were adequate and whether the teen's confession was voluntary.  The Ninth Circuit answered both in the negative.

DePierre v. United States
Docket:  09-1533
Brief Summary:  DePierre was convicted of distributing 50 grams or more of cocaine base, a federal crime under 21 U.S.C. §841(b)(1)(A)(iii) that carries a ten-year minimum sentence.  DePierre claims the "cocaine base" contemplated by the statute is limited to crack cocaine.  Although some Circuits agree, the First Circuit held otherwise.

Allen v. Lawhorn
Docket:  10-24 
Brief Summary:  During the penalty phase of a capital murder trial, Lawhorn's defense attorney waived closing argument.  The Eleventh Circuit determined this waiver amounted to ineffective assistance of counsel entitling Lawhorn to a new sentencing hearing, which the state argues is a misapplication of AEDPA.

Wilson v. Corcoran
Docket:  10-91
Brief Summary:  Corcoran was convicted of murdering four people and sentenced to death in Indiana state court.  The Seventh Circuit reversed the sentence after finding that the court improperly applied Indiana sentencing law.  The state argues the Seventh Circuit erred in granting federal habeas relief based solely on a violation of state law.  

Stacy Kuykendall press conference

| 1 Comment
From the Corsicana Daily Sun:

Corsicana -- The  Associated Press is reporting that Stacy Kuykendall, former wife of Cameron Todd Willingham, will hold a press conference today before an Austin judge is scheduled to begin a hearing on whether or not Cameron Willingham was wrongly executed for the deaths of his three daughters in a 1991 fire ruled as arson.

Judge Charlie Baird is scheduled to begin the hearing at 1:30 p.m. Wednesday in Austin, at the request of the Willingham family.

Navarro County District Attorney Lowell Thompson filed a motion Monday asking that Baird recuse himself from the case due to his involvement in a prior appeal, and the judge's connections with an anti-death penalty organization.

Stacy Kuykendall's press conference is scheduled for 11 a.m. Wednesday.

That is a few minutes after the writing of this post.

Update (noon Austin time): Jeff Carlton reports on the press conference for AP:

Stacy Kuykendall read a prepared statement to reporters outside the Travis County courthouse. She told reporters that Cameron Todd Willingham set the fire that killed the girls "and watched while their tiny bodies burned."

*                             *                            *

"My ex-husband murdered my daughters, and just before he was executed, he told me he did it," Kuykendall said.

Kuykendall voice began quavering early in her statement, as she noted her oldest daughter would be 21 and her twins would be 19. "I think about my girls every day and I miss them," she said.

Update 2: Steven Kreytak continues his coverage in the AA-S.

Update 3:  The text of Ms. Kuykendall's statement, courtesy of Johnny Sutton, her attorney, follows the jump.

The Ninth Circuit and SCOTUS

| 1 Comment
Last term, there was some discussion in the press about the unusual number of Sixth Circuit cases taken up by the Supreme Court, and people were asking whether the Sixth was the new Ninth.  My opinion was that we should not read too much into one year's statistics, which could be just an anomaly.

Lawrence Hurley reports in the LA Daily Journal (via How Appealing) that the Ninth has resumed its usual place as the most-reviewed circuit.  Fully one-third of the Supreme Court's cert-granted docket (18/54) is Ninth Circuit cases, disproportionate even after considering the Ninth's size. "Commenting on the proportion of 9th Circuit cases, University of Pittsburgh School of Law professor Arthur Hellman noted that the circuit was 'overrepresented on the docket.'" And 6 of the 54 are from state court, so the Ninth's share of federal cases is 18/48 or 37.5%, close to double its 20% of total federal circuit cases.

The story describes Harrington v. Richter, a habeas case in which CJLF has filed an amicus brief, and several civil cases.

As "federalist" notes in the comments, Ed Whelan has this post on the numbers.  Ed says it is "not much of a stretch" to count the prisoner release order case, Schwarzenegger v. Plata, as a Ninth Circuit case. Maybe, but I won't make the stretch.  This case is a direct appeal, not a certiorari petition, so I would not count it in either the numerator or denominator.

Willingham Developments

Steven Kreytak reports in the Austin American-Statesman, "Navarro County District Attorney Lowell Thompson has filed a motion asking for Judge Charlie Baird's recusal from tomorrow's planned court inquiry into the case of Cameron Todd Willingham, who was executed in 2004 for the arson deaths of his three young daughters."

"Thompson also noted that the statute of limitations for official oppression, the crime the petition alleges was committed by unnamed state officials, has expired."  The procedure being invoked here, the court of inquiry, is only for the purpose of determining if there is probable cause to believe a crime was committed and, if so, initiate a prosecution.  Absent a prosecutable offense, there is no reason for the proceeding.

Another nugget: "Thompson's motion also noted that earlier this year Baird received the Courage Award from the Texas Coalition to Abolish the Death Penalty, another factor that could call into question his ability to be impartial."

Jeff Carlton of AP has this brief story on the motion.

Also, at the DMN's blog, Michael Landauer has this post on CJLF's press release.

The prior post on this case is here.

Update: A revised version of Kreytak's story is here. Janet Jacobs has this story in the Corsicana Daily Sun, the local paper of the scene of the crime.

The first of the two defendants in the Connecticut home invasion/arson/rape/triple murder case was convicted this morning.  His sentence has yet to be determined.  The prosecutors, to their credit, turned down an offer to plead guilty in exchange for a life sentence.

The story is here.

I'm not going into the facts of the case because many readers will already know them.  You have to read it to believe that someone could be this sadistic and cruel to another human being.

I hope the abolitionists will have the courage of their convictions and start in on why a prison sentence represents justice in this case.  What's more likely is that they'll hunker down, as they did in the McVeigh case, or sulk among themselves on the Huffington Post or TalkLeft or whatever it is they tune into.  Of course I'm under no illusion that sulking is going to be their only response.  I'm sure we'll see the usual batch of, "This is a tragedy, but our real focus should be on..........," followed by pages roughly reading, "America stinks, and thus has no standing to execute anyone."  The actual facts of the case will be left, as ever, on the editing room floor.

News Scan

| No Comments
"Golden Flute" Murder Trial Ends in Conviction:  A bizarre murder trial in Contra Costa County, California concluded yesterday when a jury found Alejandro Rivera guilty of murdering 66-year-old Theodore Neff in 2008.  At the time, Rivera was living with his wife and young son, while also secretly prostituting himself to men and women on Craigslist.  Neff had been enlisting Rivera's services for about six months when Rivera strangled Neff, set fire to his home, and fled with his prized golden flute valued at over $20,000.  The golden flute took centerstage at trial, with the state's first witness (Neff's music teacher) even playing the instrument for the jury.  Rivera will be sentenced at the end of the month, and faces 28 years to life.  Milaika Fraley of the Contra Costa Times has this story.

Times Square Bomber Receives Six Life Sentences:  FoxNews reports Faisal Shahzad, who pleaded guilty to the attempted car bombing of Times Square, was sentenced today to six consecutive life sentences.  In a five minute statement before the sentence was handed down, Shahzad pledged his allegiance to Allah and spewed anti-American sentiments.  Shahzad became a naturalized U.S. citizen last year, which he explained to the sentencing judge was a "false oath."

New Hampshire Parole Board Angry Over New Law:  The AP reports that members of the New Hampshire Parole Board are outraged about the state's amended parole law, which limits the scope of the board's revocation powers to a 90-day sanction no matter what the triggering offense.  As a result, the board is limited to a 90-day penalty for convicted child sex offender Frederick Owens, a parolee recently charged with stalking a 16-year-old boy.  Under the previous law, the board could have returned Owens to prison for the remainder of his sentence (six years).
There is much buzz in Texas about a hearing that the notorious Judge Charles Baird intends to hold this week on the Willingham case.  According to this story by Steven Kreytak in the Austin-American Statesman, the Innocence Project went to their favorite judge to ask for a court of inquiry to examine whether the crime of "oppression" had been committed in this infamous case.  (See links to prior posts at the end of this one.)  Now, you wouldn't think that Texas law would allow such blatant judge-shopping, and you would be right.  Courts of inquiry are governed by Chapter 52 of the Texas Code of Criminal Procedure.  Article 52.01(b)(2) provides,

After the affidavit has been entered into the minutes of his court and a copy filed with the district clerk, the judge shall request the presiding judge of the administrative judicial district in which the affidavit is filed to appoint a judge to commence the Court of Inquiry. The judge appointed to commence the Court of Inquiry shall issue a written order commencing the Court of Inquiry and stating its scope. The presiding judge shall not name the judge who requests the Court of Inquiry to preside over the Court of Inquiry.

From the press reports, one would think that Judge Baird is actually going to conduct the Court of Inquiry this week and decide the question of whether there was a violation of the law in Willingham's case and (by the way) whether Willingham was actually innocent.

But Judge Baird has no authority to decide those things.  All he has authority to do is request the presiding judge to name another judge to conduct the inquiry.  Willingham's petition further asks him to "Declare that Mr. Willingham was wrongfully convicted, and that all legal disabilities attaching to him or his survivors as a result of that conviction are forever removed."

Judge Baird has no authority to enter such a declaration in this proceeding, and such an order would be void.

Oh, and there aren't any "legal disabilities."  Willingham is dead, and we haven't attached disabilities to criminals' family members since long before Texas was a state. Of course, Willingham doesn't have any descendants any more.  He burned them all alive.
Debra Saunders has this column in Sunday's San Francisco Chronicle on the Albert Brown execution debacle and the gubernatorial candidates' statements on the death penalty in last week's debate.  Interestingly, on the Chron's site (sfgate.com), the piece is headlined "We need an injection of common sense," but elsewhere on the Web (e.g., here) it is titled "California Death Penalty Once Again Thwarted by Thug Huggers."  Different editors attached different headlines in various venues.  I'm partial to the "thug hugger" one.

Saunders notes that AG Brown is quite wrong when he says, " 'under the Constitution, these men who are condemned have a right to first-class representation.' (Actually, [Chief Justice] George told me, 'The operative word is effective representation, not first-class.') "  She quotes this post for the proposition that "He seems to have swallowed the defense spin on the issue, hook, line, and sinker." Saunders is also critical of Whitman's emphasis on the financial aspects of the problem.

This isn't an issue of prison construction costs. The anti-death-penalty lobby is committed to burning through so much time and taxpayer money that voters cry uncle and give up on the death penalty because they're sick of bankrolling frivolous appeals that successfully thwart capital punishment even though the U.S. and California supreme courts have ruled it to be constitutional.
When they've won on the death penalty, they'll start trying to shave time from life-without-parole sentences, which they also consider to be inhumane - on your dime as well.
The next governor needs to understand these forces and not give in to the siren song of inertia. But I don't think either Jerry Brown or Meg Whitman understands what is at stake.

Re-Listed Criminal Cases

| No Comments
A number of interesting criminal cases were on the Supreme Court's conference list last Monday but are neither on Tuesday's list of cases taken for review nor today's (much longer) list of petitions denied.  These cases are likely "relisted" for a second consideration at a later conference.  Here are three of them:

United States v. Gonzalez
Docket: 10-82
Brief Summary:  Following a traffic stop and subsequent vehicle search, Gonzalez was convicted of illegally possessing a firearm.  At the time of the stop, the search was lawful under existing precedent. Pending final review of Gonzalez's conviction, however, the U.S. Supreme Court's decision Arizona v. Gant rendered the search illegal under the Fourth Amendment.  The Ninth Circuit applied Gant and tossed the evidence under the exclusionary rule, rejecting the government's argument that the exclusionary rule should not apply because the police were acting in reasonable and good faith reliance on well-established Supreme Court precedent at the time of the search.  This case therefore involves the fuzzy intersection of the purpose of the exclusionary rule and the retroactive application of new Fourth Amendment case law per United States v. Johnson.

Camreta v. Greene
Docket: 09-1454
Brief Summary:  A child protective services caseworker and a deputy sheriff interviewed a young girl at her elementary school about suspected sexual abuse by the girl's father.  The girl's mother filed a civil rights complaint, arguing the seizure and interrogation of the girl without probable cause, a warrant, or consent violated the girl's Fourth Amendment rights.  The Ninth Circuit agreed, finding that the "special needs" exception to the warrant requirement did not apply to these circumstances (but that the caseworker and sheriff were protected by qualified immunity).  In its Petition for Certiorari, the state argues that if the Ninth Circuit's decision is permitted to stand, child abuse investigations will be significantly hindered.

Wong v. Smith
Docket: 09-1031 
Brief Summary:  After a jury deadlocked several times on a sexual assault charge, the holdout juror wrote a note to the judge explaining he thought the state's DNA evidence linking Smith to the crime was tainted.  In response, the presiding judge instructed the jury to consider several specific pieces of evidence, including the "consistencies and inconsistencies" of statements made by Smith and a co-conspirator.  On habeas review, the Ninth Circuit held that the judge's "one-sided" description of the evidence was an impermissibly coercive instruction.  The state argues in its Petition for Certiorari that there is no clearly established federal law upon which to grant Smith federal habeas relief. 

News Scan

| No Comments
Brutal Murders Renew Death Penalty Debate in Massachusetts:  The Boston Globe reports on last week's debate between Massachusetts Attorney General candidates James McKenna (Rep.) and Martha Coakley (Dem.), during which reinstatement of capital punishment in the state emerged a divisive issue.  Coakley, Massachusetts's current AG, stated she was opposed to it, but McKenna expressed openness to the punishment for murderers of police officers or children.  The debate came just after four people, including a 2-year-old toddler, were gunned down in Boston earlier last week.

Big Sentence for Child Rapist:  A Florida judge recently guaranteed that Timothy Anderson will be spending the rest of his life in prison, sentencing the convicted child rapist to 999 years in prison.  Anderson was convicted of sexually assaulting a child younger than 12 during a 20-year period, and is suspected of similar long-term assaults on at least three other children.  WTSP 10News (FL) has this story.

25 Most Dangerous Cities in the U.S.:  WalletPop.com today released its annual list of the 25 most dangerous neighborhoods in the U.S.  The list is based on data obtained from NeighborhoodScout.com and FBI statistics.  This year, West Lake Street in Chicago took the #1 spot, where a person has a one in four chance of becoming a crime victim (in one year).  Four neighborhoods in Atlanta appear on the list, as well as two in Las Vegas.

Hazy Math

| No Comments
In the Oakland Tribune, Josh Richman has an article titled "Hazy math: How much do we spend to incarcerate pot users? Not as much as they say."

Advocates of the marijuana legalization measure on California's Nov. 2 ballot like to tout the criminal-justice cost savings such a change would bring, but the numbers -- though a bit sketchy -- don't really back up that proposition.

It's hard to attach a dollar-savings figure to Proposition 19 legalization when many of the current activities for which people are arrested, charged and imprisoned would remain illegal.

And the governor's signature of a bill Thursday to reduce possession of less than an ounce of marijuana from a misdemeanor to an infraction, something akin to a minor traffic offense, means most of the prosecution and court costs formerly associated with such cases already have been eliminated.

The Yes on Prop. 19 campaign's website says that because the measure would move police priorities away from pot arrests it would save "hundreds of millions of taxpayer dollars a year."

"It seems like real exaggeration," said professor Michael Vitiello, a California criminal justice expert at the University of the Pacific's McGeorge School of Law in Sacramento.

Few arrests

The fact is, California doesn't spend all that much on arresting and punishing nonviolent cannabis consumers.

Whatever legitimate arguments can be made for legalization, the claim that we will reap huge savings by no longer prosecuting tokers is not one of them. It is a fraud.

On the general question, Edwin Meese and Charles Stimson of Heritage Foundation have this op-ed in the Philly Inquirer.

I Don't Know How It Got There...

| No Comments

It was not uncommon, in the good ole days when I was an AUSA, for the defendant to claim that the bricks of cocaine found in the trunk of his car didn't belong to him.  Ditto with the dope in his luggage at the airport.  Or the magnum in his nightstand.

Still, you never want to underestimate the ability of the defense side to come up with even more, ummm, interesting stories involving denial of ownership.  But this one has to be among the all-time greats.

It really cracked me up, so to speak.

No Wonder Dope Gets Good Press

| No Comments

I  was noting the other day that the press and media elites live and think in a way largely unknown to the rest of us.  As if on cue, we now see this story.

Is it a big deal?  Nope.  Does it say something about whether you should view the next CBS "expose'" about the "wonders" of dope with a degree of skepticism?  Yup.

News Scan

| No Comments
"Golden Rule" Argument Leads to Reversed Murder Conviction:  A California appeals court this week reversed the murder conviction of Andrew Vance, who choked and shoved an acquaintance off a cliff in 2006.  In her closing argument, the prosecutor asked the jurors to "walk in [the victim's] shoes" and to "literally relive in your mind's eye and in your feelings what [the victim] experienced the night he was murdered."  The court found the closing reversible error because it "shifted the jury's attention from the evidence to the all too natural response of empathizing with the victim's suffering and his family's resulting torment."  Read the AP story here.

San Francisco Gang Injunctions Reduce Violence:  SF Chronicle Jaxon Van Derberken reports on San Francisco's efforts to curb gang violence through through court-ordered injunctions. A total of seven injunctions have been issued, identifying 134 known gang members and prohibiting them from activities such as loitering, flashing gang signs, or congregating with other gang members in designated "safety zones."  Authorities claim the injunctions have already noticeably "cooled off" some gang rivalries, and homicides this year amount to just over one-third of those in 2008.

NH's New Parole Law Centerstage in Governor Election:  The Concord Monitor (NH) reports on a controversial amendment to New Hampshire's parole law that is proving divisive in the state's upcoming governor election.  The amendment, signed by current Democratic Governor John Lynch, mandates that nearly all prisoners be released nine months before their maximum sentence.  Supporters of the amendment claim the law was intended to improve post-release supervision of the offenders, but others argue the law's broad language permits the release of violent offenders back into the communities.

Inmate on the Loose: Caucasian Male, Naked, Pink Socks:  After scaling five razor-wire fences, a Maricopa County (AZ) inmate was caught running down a Phoenix street wearing nothing but his jail-issued pink socks.  The sheriff's department has not yet explained how the inmate managed to flee the jail without being detected.  The Phoenix New Times has this story and photo (from the shoulders up).    

Monthly Archives