November 2010 Archives

News Scan

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Tennessee Supreme Court Delays Executions:  As an update to yesterday's news scan, the Tennessee Supreme Court ordered a halt on four upcoming executions in the state, including today's scheduled execution of Stephen Michael West.  The court ordered judicial review of the Tenneesee's new execution protocol to determine if a stroke of the inmate's eyelashes or a shake of their body is sufficient to guarantee unconsciousness.  The review must be completed within 90 days.  Jamie Satterfield of the Knoxville News Sentinel has this story.

Hung Jury in California Murderer's Sentencing:  The San Gabriel Valley Tribune (CA) reports a jury has deadlocked in the penalty phase of Manling Williams.  Williams was convicted earlier this month of slashing to death her husband and smothering her seven- and three- year old sons with a pillow in 2007.  The Los Angeles District Attorney stated the divide was eight jurors for death and four for life.  If the DA's office elects not to retry the penalty phase, Williams will be sentenced to life without parole.

Controversy Over San Francisco's Sidewalk Law:  Civil rights and community activists are less than thrilled about San Francisco's new sidewalk law, reports Claudia Cowan of Fox News.  Prop. L, passed by 53 percent of voters this month, forbids people from sitting or lying on public sidewalks between 7 a.m. and 11 p.m.  Those who refuse may be fined or arrested.  Proponents praise the ordinance, claiming the violent transients and their dogs currently scattered over the city's sidewalks are a far cry from those individuals who gave rise to the city's iconic street culture.

"Prison Ruling Stirs Up California":  Joanna Chung and Bobby White of The Wall Street Journal have this piece on the California inmate release case, argued before the U.S. Supreme Court today.

New Trial for Skid Row Killer:  The 9th Circuit today ordered a new trial for Bobby Joe Maxwell, reports the AP.  Maxwell was charged with killing 10 people in Los Angeles's Skid Row in the late 1970s and ultimately convicted in 1984 of two counts of murder.  The court found Maxwell's convictions relied largely on the false testimony of an infamous jailhouse snitch.

Race and the Death Penalty

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Charles Lane at The American Interest has an interesting article addressing the issue of race and the death penalty.  As he notes:

In fact, much of the statistical evidence cited by death-penalty critics to show that blacks and whites fare differently in capital cases does not necessarily prove racism at all. To the contrary, it could well reflect racial progress. 

Initial Reports on Plata Argument

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Still waiting for the transcript of the argument in the California prisoner release case, Schwarzenegger v. Plata. The AP reports, "The Supreme Court appears ready to endorse an order calling on California to move thousands of inmates out of its overcrowded prisons so that those who remain get adequate health care."  However, Lyle Denniston at SCOTUSblog has a quite different take:

Both the Court and the two lawyers who argued were so locked into a review of the details of the actual release order issued by a three-judge District Court in the case that no one spent even a second of the lengthy hearing discussing procedural complications that might have kept the Justices from ever ruling on the validity of that order.  It appeared that the Court had silently accepted the notion that the entire case, with some parts of it stretching back 20 years, was before it for a definitive ruling.

The focus of attention shifted fully to Justice Kennedy, as the other Justices appeared very closely divided as they made clear where they stood for or against what the District Court had done in ordering that upwards of 35,000 inmates be turned loose in California over the next two years.  And, if what Kennedy said controls how he would be voting on the final outcome, it seemed that he would not be willing to overturn that release order in its entirety, but would find ways to indicate that the remedy had to be reshaped or pared down in its scope.

The jurisdictional argument was a significant part of CJLF's brief.  We argued that the whole case is indeed before the Court, so it is encouraging that this point appears to be accepted.

Update: The transcript is here.

After reading the transcript, I think Lyle has it pretty much right.  Justice Kennedy seems appropriately skeptical of the three-judge court's choice of a number for prison population reduction.  Given the burden of proof, if there is a range of uncertainty, they should be picking the less-intrusive end of the range.  Justice Alito was appropriately skeptical of the claim that a reduction of this magnitude can be achieved without danger to public safety, but it doesn't look like he is in the majority on that.

Anything short of an outright affirmance means there will be a remand.  I hope the Court will take up CJLF's suggestion of reassignment to a new panel, although that point was not mentioned in the oral argument.

Greg Stohr has this report for Bloomberg.

The ABAJ Blawg 100

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The ABA Journal's annual Blawg 100 is available here.  We actually have another prosecution-oriented blog in the criminal justice section, much to our surprise.

An email from ABAJ says, "Urge your readers to vote for your blog here."

News Scan

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Last Minute Appeals in Scheduled Tennessee Execution:  Attorneys for Tennessee death row inmate Stephen Michael West are seeking a stay for tomorrow's scheduled execution, attacking the state's three-drug protocol as unconstitutional.  In response to a state chancellor's ruling last week, Tennessee added additional precautions to ensure the inmate is unconscious after the first drug is administered, requiring the warden to brush a hand over the inmate's eyelashes and gently shake the inmate.  Though the Tennessee Supreme Court approved the modified plans, West's attorneys today appealed to both the U.S. Supreme Court and the Sixth Circuit, arguing "[d]efendants waited until the eve of Thanksgiving holidays to spring a new protocol on the court and Mr. West with nothing to demonstrate its constitutionality."  West was sentenced to death for the 1986 stabbing deaths of a woman and her teen daughter.  Lucas L. Johnson II of the AP has this story.

Big Time Mexican Drug Gang Leader Captured:  Elisabeth Malkin of The New York Times reports on this weekend's arrest of Arturo Gallegos Catrellon, through whom one Mexican official claims "all the instructions for the murders committed in Cuidad Juaraz pass."  Gallegos admitted to ordering 80 percent of the killings in the border city in the past 15 months, including 15 people at a party in January and the wife of another drug gang leader.  More than 2,000 people have been killed in Juraez this year as a result of cartel violence.

Justice Stevens on the Death Penalty:
  In an essay on a book comparing the American and European approaches to the death penalty, retired Justice John Paul Stevens offers his opinion on the current state of capital punishment.  Adam Liptak of The New York Times opines the essay is a step towards "forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches."

Procedural Default

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Today the US Supreme Court heard argument in Walker v. Martin, on whether a federal court can hear a claim that state courts refused to hear because the petitioner presented it way too late.  See prior post here.  CJLF brief here.  Argument transcript here.  The rule applied by the Ninth Circuit is that the state procedural ground is "inadequate," and the federal court can disregard it, unless the state establishes that the rule is "regularly followed."

A number of points in the argument are encouraging.  Several justices seemed to understand that if a court denies relief on the merits rather than invoking a procedural default rule, that is not a failure to invoke the rule or something to be held against the state.  If the default rule is complex and the petition is patently meritless, the merits may be the simpler and easier ground of disposition.  Nothing wrong with that.  See, e.g., p. 29, Justice Breyer.

Several justices are also aware that no matter how vague California's definition of untimeliness is, it is obvious that the petitioner's delay in this case -- five years -- was excessive, and any lawyer would have known that a petition delayed that long would very likely be rejected.  See, e.g., p. 34, Justice Kagan, "... but five years without an explanation is -- why is that a hard question?"  See also p. 43, Justice Ginsburg.

Chief Justice Roberts seems to be the most interested in our proposal to replace "regularly followed" with "fair notice."

Several justices picked up on the perversity of a federal rule that encourages states to make rigid cut-offs rather than having flexible rules, continuing the theme from Beard v. Kindler last term.  See pp. 46-48, Justices Breyer, Sotomayor, and Scalia.

On p. 40, Justice Kagan asks, "isn't [California's rule] similar to the rule that governed Federal habeas review prior to AEDPA? A similar kind of delay standard, whatever 'delay' means?" Yep. Cf. CJLF brief, pp. 26-27. On page 47, defense counsel finds himself in the odd position of favorably comparing a provision of AEDPA that the defense bar "screamed and yelled" about at the time.

Look for a decision in late winter to early spring next year.

Supreme Court Orders List

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The U.S. Supreme Court decided to review three civil cases today.  The orders list is here.  Lyle Denniston describes the cases at SCOTUSblog.  No criminal cases were granted other than "vacated, and the case is remanded to ... for further consideration in light of ... " orders.  Among the criminal cases on SCOTUSblog's petitions to watch list, the relisted cases are all missing and presumed relisted again, and the first-time cases were all denied.

In Gamache v. California, No. 10-5196, a capital case, the Court decided without dissent not to review the decision of the California Supreme Court, 48 Cal. 4th 347.  However, Justice Sotomayor wrote a statement giving Cal. Supreme a C- on its opinion for not being clear enough on the standard it applied for harmless error review.  Justices Ginsburg, Breyer, and Kagan joined the statement.

Emotion and Capital Sentencing

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AP reports from Connecticut:

HARTFORD, Conn. -- A Connecticut judge has decided that a jury was fair in deciding that Steven Hayes should be executed for a home invasion that left a woman and her two daughters dead.
Lawyers for Hayes had argued that the jury was swayed by emotion after hearing and seeing gruesome testimony. Jurors condemned Hayes to death on Nov. 8.

New Haven Superior Court Judge Jon Blue on Friday denied defense lawyers' motion seeking a new trial, new penalty phase hearing or a sentence of life in prison without the possibility of parole.

The judge says the jury wasn't "driven by passion and prejudice." Public defender Thomas Ullmann says he believes the same issues will come up on appeal.

A capital sentencing jury certainly should not be driven by prejudice.  Is it necessary that the jury's deliberations be devoid of passion?  Is it possible?  Is it desirable?

Military Commissions

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Marc Thiessen has this column in the WaPo on military commission trials in the wake of the Ghailani debacle.  He cites former AG Michael Mukasey for the proposition that the key evidence excluded by the trial judge would likely have been admissible in a military commission trial.

Media Matters makes the predictable response: "However, as Media Matters has noted, numerous legal experts -- including the federal judge presiding over Ghailani's case -- have argued that a military commission would have also likely excluded this testimony." 

"Likely" is an overstatement as to the judge's opinion.  He discussed the issue in a footnote but did not purport to resolve it.

Thiessen responds to MM and other critics on the PostPartisan blog.

Closing the Curtain on Election 2010

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The last ballots are finally dribbling in to decide the election races with razor-thin margins. Two races we have followed on the Left Coast have turned out not to be close enough for a recount.

In Washington, State Supreme Court Justice Richard "The Heckler" Sanders has lost by 0.68%, not close enough for a recount, Peter Callaghan reports for the News Tribune.

In California, L.A. DA Steve Cooley has conceded the race to S.F. DA Kamala Harris.

Nationwide, this election has produced significant gains for the advocates of the law-abiding public and significant losses for the friends of criminals.  California, however, is looking gloomy.  Although far from perfect, the Governator has been at least generally on the side of the law-abiding.  For the next four years, we will have both a chief executive and a chief prosecutor whose hearts are largely in the opposing camp.  The Legislature, of course, will continue to dance to the ACLU tune, with the FOCs solidly in control and the moderate Democrats too spineless to exercise their balance-of-power position.

In 2012, California will have a new apportionment.  A bold experiment with a citizens' commission may get us competitive districts that represent communities instead of the incumbent-protection gerrymander that effectively locks each seat for one party or the other.  If legislators believe they will face competitive races, they may be more cooperative as that election approaches.  We may have some good initiatives on the ballot as well.  The sun has set in California even while rising in most of the country, but there is hope for change in the next cycle.

Undisclosed Serial Killers

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Thomas Hargrove has this report for Scripps-Howard News Service:

Authorities in Indiana and Ohio have launched investigations into suspected serial killings after a study of FBI computer files found clusters of unsolved homicides of women across the nation.
Also, police in Nevada are hunting a likely serial killer who has targeted up to seven women, mostly prostitutes, and has scattered their partial remains across three states.

Many of the suspected serial killings detected in the study have never before been disclosed to the public.

All told, authorities in seven cities have confirmed that a statistical analysis of federal crime files conducted by Scripps Howard News Service has detected known - or strongly suspected - serial homicides in their communities.

The study was based on computer records of 525,742 homicides committed from 1980 to 2008. The FBI provided most of the data. But Scripps supplemented these using the Freedom of Information Act to obtain detailed records of 15,322 killings that police did not disclose to the federal government's voluntary crime reporting system.

The resulting database - which crime experts say is the most complete accounting of homicide victims ever assembled in the U.S. - was created to determine whether serial killings could be identified among the nation's 185,000 unsolved homicides.

Murder, Clearance, and Gangs

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Douglas Quan reports in the National Post:

British Columbia and Quebec trail other parts of the country in solving murders, according to a new study, which reports a general decline in homicide clearance rates across Canada over the last few decades.
The study suggests that higher levels of organized crime and gang violence could be behind why fewer slayings are being solved in those two provinces.
The extent of organized crime is an important variable to consider whenever crime statistics are compared.  Whether the independent variable is locality, race, or anything else that might correlate with gang activity, failure to control for the gang variable can lead to a false conclusion.

Constitutionalizing Polygamy

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Polygamy is a crime in British Columbia, as it is in the United States.  Yet the Supreme Court of that province is seriously considering an argument that the prohibition violates Canada's Charter of Rights and Freedoms.  Wendy Stueck has this report in the Globe and Mail.

News Scan

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Challenge to Connecticut Death Sentence:  Connecticut Judge John Blue heard arguments today from the defense team of Steven Hayes, recently sentenced to death for murdering three members of the Petit family.  Hayes's attorneys are seeking a new trial, a new penalty phase hearing, and/or a reduction in sentence, claiming the jury's decisions were "the product of passion and prejudice" and "impermissible emotional factors."  Judge Blue delayed ruling on the motion.  Randall Beach of the New Haven Register has this story (and relevant court pleadings).

Death Sentence in South Carolina Murder Case:  A Georgia man was sentenced to death yesterday for the kidnap and murder of 16-year-old Samuel Sturrup, reports the AP for The Atlanta Journal-Constitution.  Prosecutors alleged Steven "Big Man" Barnes beat Sturrup with a pipe, drove him to a wooded area in South Carolina, and ordered four other people to shoot the teen before personally delivering a final shot to the head.  Barnes was arrested in his home, where police also found four teenage girls Barnes had imprisoned and forced to have sex for money.

Feds Move to Outlaw Synthetic Marijuana: 
Alicia A. Caldwell of the AP reports on the DEA's efforts to outlaw five chemicals used to make synthetic marijuana, after the government agency received increasing reports about the products from poison centers and law enforcement agencies.  Nicknamed "spice," the chemicals mimic THC, the active ingredient in marijuana, and are sold in head shops and on the internet.  

The Police Didn't Get the Memo:  WTAE (PA) reports that in response to a fire at the George Washington Hotel, Police Chief J.R. Blyth discovered in one of the hotel rooms the "most grisly murder scene in his 35 years in law enforcement," complete with blood on the floor, mattress, and pillows.  Blyth called several detectives to the scene before learning the room was a set for a horror film shot several years ago, left intact for possible re-takes.

Greg Coleman Dies in Plane Crash

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We received some very sad news this day before Thanksgiving.  Gregory Coleman, former Solicitor General of Texas, died in a plane crash in Florida.  This local report covers the crash.

I have known Greg since we worked together in Texas v. Cobb in 2001. He was an accomplished Supreme Court advocate, appearing most recently in Skinner v. Switzer.  He will be missed.

Opt-Out Day Fizzling?

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Reports I have seen so far indicate that few are participating in National Opt-Out Day, so the long lines and missed flights I had been concerned about may not happen.  Erin Ailworth has this report for the Boston Globe.

Full-body scanners at courthouses?

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Now some courthouses are getting the full-body scanners that are so controversial at airports, reports P. Solomon Banda for AP.

There are two important differences between courthouses and airports relevant here.  First, courthouses aren't nearly as vulnerable as airplanes.  No one is going to kill thousands of people by bringing a box cutter knife into a courthouse.

Second, people can choose not to fly.  You can't choose not to enter the courthouse.  If you are summoned as a juror or witness, you have to go.  If you are a litigant, you don't have a practical alternative.  (Defaulting on a $1M complaint is an alternative, but not a practical one.)

Vance Raye Named Presiding Justice

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The Governator has nominated Associate Justice Vance Raye to be Presiding Justice of the Third District Court of Appeals in Sacramento.  The Sacramento Bee has this report.  An excellent choice, IMHO.

The Guv's legal affairs secretary also got an end-of-term appointment, as often happens.  He also elevated two Superior Court judges to the appeals court, Elena Duarte of Sacramento and William Murray of San Joaquin.

US Supreme Court Next Week

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Next week on Monday, the Supreme Court will issue an orders list, indicating which cases it will take up and which it will not from those considered in today's conference. Some of the petitions considered are listed at SCOTUSblog. The Court will hear oral argument in Wall v. Kholi, an AEDPA statute of limitations case, and Walker v. Martin, on when a state procedural default rule is "adequate" to preclude review of the defaulted claim on federal habeas.

On Tuesday, the Court will issue one or more opinions in argued cases.  Opinions issued this early in the term are typically the less controversial ones with decisions that are unanimous or nearly so.  The Court will also hear oral argument in the big California prisoner release case, Schwarzenegger v. Plata, featuring Phillips v. Clement.

Holder Rescinds AEDPA Regs

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As expected (prior post here) AG Holder has rescinded the already long-delayed regulations to implement the certification procedure by which states that provide qualified counsel on state habeas are supposed to get expedited review of their cases in federal habeas.

This "fast track" program is set up by Chapter 154 of title 28, United States Code, §§2261-2266.  Section 2265(b) provides, "The Attorney General shall promulgate regulations to implement the certification procedure under subsection (a)."  The AG is given no authority to promulgate regulations governing the substantive criteria for qualification.  Congress has reserved that authority to itself, providing in paragraph (a)(3), "There are no requirements for certification or for application of this chapter other than those expressly stated in this chapter."

Today's notice of rescission of the regulations states, in response to CJLF's objections, "it makes little sense to retain that process in the absence of substantive certification criteria."  No, it makes no sense to write substantive criteria into regulations when Congress has expressly provided that the D.C. Circuit's review of certification decisions will be de novo, with no deference to what DoJ decides.  The statutory criteria, as the D.C. Circuit or ultimately the Supreme Court construe them, are all that matter.

Memo to incoming House Judiciary Chairman Lamar Smith: Bring Mr. Holder before the Committee to explain himself as one of the first items of business in the 112th Congress.

And put a line in DoJ's appropriation bill that the previously promulgated regulations are reinstated effective immediately.


Privacy & Cigarette Butts

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A California appeals court ruled yesterday on whether police must obtain a warrant before running a DNA test on a voluntarily discarded cigarette butt.  Citing a string of cases from other jurisdictions, the court answered in the negative:

By voluntarily discarding his cigarette butt on the public sidewalk, defendant actively demonstrated an intent to abandon the item and, necessarily, any of his DNA that may have been contained thereon.  The facts here show the DNA testing of the abandoned cigarette butt was carried out only to identify defendant as a suspect in an ongoing criminal investigation.  On these facts, we conclude that a reasonable expectation of privacy did not arise in the DNA test of the cigarette butt, and consequently neither did a search for Fourth Amendment purposes.

Danny Walsh of The Sacramento Bee has this story.  Hat tip to "How Appealing" for the link.

News Scan

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Arrest in Boston Slayings:  John M. Guilfoil of The Boston Globe reports on an arrest in "one of the worst multiple homicides in Boston's history," which left four people, including a two-year-old boy, shot to death on a street in September.  Dwane Moore, who was released from custody earlier this year after serving time for manslaughter, is charged with four counts of murder and numerous other supporting counts.  Milton J. Valencia and John R. Ellement, also of The Globe, have this story on what authorities say happened on the night of this drug robbery gone bad.

Jury Recommends Death Sentence in Alabama Murder Case:  After deliberating for an hour and a half, an Alabama jury yesterday recommended a death sentence for convicted murderer Ryan Gerald Russell.  Russell was convicted of killing his 11-year-old cousin Katherine Gillespie in 2008, after her body was found stuffed head first in a trashcan in Russell's SUV.  An autopsy report showed she died from a contact gunshot wound to the head.  Russell's defense team claimed the shooting was accidental.  Katie Hurst and Samantha Hurst of the Shelby County Reporter (AL) have this story.

Queens Sniper Convicted:  Matthew Colletta was convicted of one count of murder and 12 counts of attempted murder stemming from his summer 2006 shooting spree, reports Christina Carrega of the New York Post.  For six and a half hours, Colletta went through Queens targeting red cars and people wearing red clothing.  He defended his behavior to authorities by claiming the Bloods gang (whose members wear red) had threatened him.

DC GPS Ruling Stands:  In a 5-4 ruling, the U.S. Court of Appeals for the DC Circuit declined to revisit their previous ruling that police must obtain a warrant before tracking a vehicle with GPS.  A three-judge panel of justices determined this summer that GPS tracking absent a warrant violates the Fourth Amendment because a "reasonable person does not expect anyone to monitor and retain a record every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there."  Jim McElhatton of The Washington Times has this article.

Inadequate SCOTUS Grounds

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As a general rule, if you want to assert a federal claim in state-court litigation and fail to follow the state's rules for doing so, you cannot make the same claim in federal court.  This rule applies on writ of certiorari in the U.S. Supreme Court in all kinds of cases and on habeas corpus in any federal court when a state criminal conviction results in incarceration.

An exception to this rule is when the state ground is deemed "inadequate."  This area of jurisprudence was the subject of many Supreme Court decisions during the civil rights struggle of the 1950s and 1960s, when southern state courts tried to evade civil rights precedents with creative interpretations of their procedural rules to declare federal claims defaulted.  Unfortunately, the Warren Court completely botched the task of formulating a coherent rule.  The incoherence of this jurisprudence has been denounced by numerous commentators.  Many are cited in our Philip Morris v. Williams brief.  See also this article by Tom Gede and yours truly in the September issue of Engage. The Ninth Circuit has exploited this incoherence to run roughshod over state procedural rules on a regular basis, a practice the Supreme Court has finally decided to review in Walker v. Martin, to be argued next week.

Today we have a perfectly sensible order from the Supreme Court regarding the late filing of an amicus brief in the prisoner release case, Schwarzenegger v. Plata.  What this otherwise unremarkable order illustrates is that the Supreme Court's own rules would be declared "inadequate" if subjected to the same kind of review that the Ninth Circuit applies to state court rules.

More on Airport Searches

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Some more opinions on the airport search controversy.

Debra Saunders, self-described "token conservative" at the SF Chron, has this column.  On the Chron's site, it is titled, "TSA pat-downs prove it - Americans are whiners."  Elsewhere on the Net, the same column is titled, "Not TSA Pat-Downs, but Freedom Fondles."  Remember "freedom fries"?  Saunders disagrees with those who claim that profiling is a complete answer to intrusive searches, particularly Ann Coulter.  "In 1986 a pregnant young Irish woman named Anne Marie Murphy was planning on flying to Israel to meet her fiance's parents. Little did she know the fiance had hidden plastic explosives in her suitcase. Israeli security stopped what would have been a horrific terrorist attack because they did not rely on the profile alone."  I assume that also ended the engagement.

Over at the WaPo, Jonathan Capehart has this column expressing similar sentiments. "The national debate over the full-body scanners has gotten ridiculous. The planned opt-out day on Wednesday is taking understandable concerns to an irrational extreme."

It is true that we need airport security and also true that profiling alone is not a substitute for some degree on preflight inspection.  By all means, we should continue scanning luggage and searching when necessary, as Saunders' example indicates.  But the number of people subjected to intrusive body searches could be reduced with a major expansion of the trusted traveler program.

BTW, I did a recorded interview with Pete Williams of NBC yesterday, following up on my previous post on National Opt-Out Day.  It may be on the evening news today, or it may show up as a clip on NBC-related cable shows.  I repeated both my disdain for the choice of the day of the protest and my belief that we need to focus more on people and less on objects.  What parts of the interview will actually make the air I do not know.

Update:  NBC did play a brief clip from the interview on the nightly news.  The caption beneath my name says "Conservative Activist."  I don't know where they got that.  I do not consider myself an "activist," a term that has many negative connotations in my view, and I am not an advocate for conservative causes generally, just law and order.

News Scan

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Arrest in 1975 Texas Cold Case:  Jackie Vega of KXAN (TX) reports on a crack in the unsolved murder case of college student Sheryl Ann Norris, who was sexually assaulted and strangled in her apartment in 1975.  For nearly 35 years, the San Marcos Police Department kept up their investigation and earlier this year, obtained a DNA hit to Willie Roy Jenkins, currently under civil confinement as a sexually violent predator in California.  Jenkins was indicted today for capital murder and extradition proceedings are underway to bring him back to Texas for trial.

Execution Drug Approved in Oklahoma:
  A federal judge in Oklahoma last week approved the state's use of pentobarbital, a drug deemed by veterinarians as "an ideal anesthetic agent for humane euthanasia in animals," during executions.  The approval comes after a shortage of thiopental sodium, which has long been used to carry out lethal injections.  The sole U.S. maker of thiopental announced that it won't resume production of the drug until 2011, also noting that it doesn't approve of drug's use in executions.  Nathan Koppel of The Wall Street Journal has this story.

New Forensic Method Determines Age From Blood Sample:  Popular Science reports Dutch researchers have devised a new method for estimating the age of the source of a blood sample.  Though the method has a margin of error of nine years in either direction, researchers believe it will provide at least some assistance to investigators in reconstructing the identities of persons from crime scene blood samples. 

Videoconferencing Provides a Tech-Savvy "Day in Court":  John Wisely of USA Today reports on a recent study by the National Center for State Courts surveying the use of videoconferencing in courtrooms.  Courts across the country have turned to the technology to allow defendants to appear before a judge in an attempt to cut back on security and transportation costs.  Pennsylvania estimates it has saved $31 million so far, and Utah claims its transportation costs have been cut by one-third.
From the Prague Daily Monitor:

Almost two-thirds of Czechs would support the reintroduction of death penalty in the country, most of them in belief that this would help reduce the crime rate, according to an Internet public opinion poll the SANEP agency released yesterday.
A total of 65.5 percent of those polled said they would be for the death penalty to be reintroduced for the perpetrators of the most serious crimes, which, according to 60.7 percent of the respondents, may help lower the crime rate.
The Czechs can't actually do that, of course, because Western Europe has forced death penalty abolition on Eastern Europe through economic extortion.

The United States is unique among Western nations in retaining the death penalty not because the people of all the other countries have rejected it, but rather because several factors combine to make our government more responsive to the will of the people in this regard.  We are economically large enough by ourselves that we don't have to kow-tow to an organization such as the EU.  We divide our elections on both executive-legislative and federal-state lines.  Many countries do one or the other, but very few do both.  The unique ability of American voters to split tickets increases the responsiveness of candidates to issues that may not be number one or two on the voters' priority lists.

Kent makes the point that there are better ways to protest TSA's grope-your-kid spectacle, and I agree.  My suggestion is that, instead of uselessly and perversely delaying your fellow travelers, demand that the new Congress subpoena Big Sis for a groping of what it pleases her to call her mind.

I was an Assistant US Attorney for a long time.  I believe in unapologetic enforcement of the law, and certainly enforcement against those who want to blow airplanes out of the sky has to be the first order of business.  I am also aware that normal Fourth Amendment standards, which call for the amount of government intrusion to be matched by the level and specificity of individualized suspicion, cannot apply in the airport context.  Some generalized surrender of personal privacy is unavoidable, given the dangers we face.  But this Administration has taken it both too far and in the wrong direction.  It's foolish and misdirected to think that Obama's reckless government can be called to account by holding up innocent travelers in the grope-your-kid line, but a calling to account is imperative nonetheless.

We know who the bombers are because we have a lot of experience.  They're jihadist Muslim men in their 20's and 30's.  I'm sorry if it's politcally incorrect thus to "profile" them, but that is in fact who they are and it's past time to act on this knowledge rather than pretending we don't have it.

What's happening now parades under the title of the suddenly-popular-with-liberals "national security," but I seriously doubt that's what's going on.  More likely, in my view, is that this gross and quasi-sexual public humiliation of your teenager is a reflection of the view that government controls citizens rather than the other way around.  You have to ask whether this is less Big Sis than Big Brother, trying to turn us into a nation of sheep:  Accept some government operative's hands all over you, or your daughter, or your son for that matter, or face the mailed fist.  It's absolutely no coincidence that this is the same government that from now on plans to make life-or-death medical decisions for you, your wishes be damned.

This is not the America I grew up with or care to live in.  Don't add to the burdens of your fellow travelers.  But when Thanksgiving is over, demand that a new and hopefully more sober Congress put on public display the real motives of those who want to start degrading you by stripping you (as it were) of your privacy, but aim to end by stripping you of your freedom.

Your kid is not an object to be played with by The State and neither are you.  This is the lesson our new Congress will need to teach our President.   

 

A Cruel Way to Protest for a Valid Cause

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On the subject of excessively intrusive airport screenings, I agree with Charles Krauthammer.  We need to get rid of security theater, get over our problem with "profiling," and direct more scrutiny to those likely to be security risks and less to those who are not.

However, the idea of scheduling a gum-up-the-works protest for the day before Thanksgiving is beyond despicable. National Opt-Out Day is a call for large numbers of people to opt out of the scanners and elect the longer manual search, all on the same day. It is a cruel and heartless act of vandalism that will seriously hurt other passengers, not the people at whom it is supposedly directed.

The day before Thanksgiving is the busiest airport day of the year.  The airport is full of families, many of whom are not frequent fliers, going home to see Grandma for the holidays.  People who fly long distances between non-hub airports generally have to make connections.  When you have a connection, a delay is not just a delay.  It may mean not making it to your destination at all.  Most families planning to travel tomorrow have nonrefundable tickets.  Canceling is not an option.

Here is my request for people considering joining in this protest.  Look at the people in line behind you.  Do you see Janet Napolitano in the line, or do you see families with children?  If the latter, get through security by the fastest means possible this day and save your protest for another day.

Here is my suggestion for those who must travel Wednesday.  Get to the airport multiple hours early.  Waiting that long with your brood will be rough, but it's better than missing your connection.  If there are two adults in your group, and you have some time left, let one go on to the gate with the brood, while you stay near security.  Then exercise your right to free speech by telling the opt-outers to their faces what despicable, cruel, heartless people they are.

Scalia at the Fed Soc

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Mark Sherman has this report for AP on Justice Scalia's remarks at the Federalist Society convention:

Justice Antonin Scalia seems solidly old-fashioned. He's devoted to the Constitution's original meaning, prefers the Roman Catholic Mass in Latin and opposes TV cameras in the Supreme Court.

But the 74-year-old Scalia wants it known that he owns an iPod and an iPad and does so much work on his computer that he "can hardly write in longhand anymore."

Scalia revealed his embrace of modern technology at a Thursday dinner of the conservative Federalist Society, which he helped launch nearly 30 years ago to combat perceived liberal bias on the nation's law school faculties.

Perceived?  In other news, the sun was perceived to rise in the east a little before seven this morning.

On cameras, my preferred solution is to simply do with video what the Court presently does with audio.  Record the argument itself and embargo the recording until several days after the argument.

The main problem with live broadcast, IMHO, is that a few grandstanding lawyers will go out of their way to say something provocative in order to get their video clip on the evening news.  Embargo of a few days will greatly reduce, though not completely eliminate, that problem.  There's always YouTube.

Straight Talk on Evil

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Rabbi Shmuley Boteach has this op-ed in the WaPo:

We all owe a debt of gratitude to Dr. William Petit who, in his extreme hour of grief, taught us a valuable lesson about the nature of evil, forgiveness, and the problem of suffering.

No, not what you would expect. In speaking of the man convicted of killing his wife and two daughters, Petit did not deliver an amoral, slobbering speech about forgiving his wife and daughters' murderer and how all suffering teaches us some valuable lesson, enriching us in the process. On the contrary, he said that the murderer deserved his sentence of death and that the loss of his family would leave a gaping hole in his heart that would never close.

What a relief. Finally someone who does not excuse gross evil, who refuses to forgive monstrous acts of human cruelty, and who says that suffering is not only not redeeming but leaves a permanent wound that never heals.
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Over the past few years many of us have lost our moral bearings on the subject of evil and human suffering. Many of my Christian brothers and sisters take Jesus' teachings about forgiving our enemies completely out of context.
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Yes, Jesus said 'turn the other cheek.' But is anyone so morally lost as to suggest that he meant if someone rapes your wife, give him your daughter to rape as well? Of course, what Jesus meant was to forgive the petty slights that people enact against you. If a friend pretends not to notice you at a party, forgive them. If your husband loses his temper and yells, yes he must apologize. But be quick to forgive. But Jesus never meant that we should not dedicate ourselves to fighting evil.

Psalm 97 makes it clear. "Let those who love the Lord hate evil." It's repeated again in Proverbs Chap 8: "The fear of the Lord is to hate evil." Yes, hatred has its place, but only under a single condition that was met in the terrible Petit murders: the human confrontation with extreme evil.


News Scan

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New California Parole Teams Apprehend More that 250 Sex Offenders:  More than 250 paroled sex offenders were captured throughout California this week by recently formed parole teams specifically designed to target sex offenders.  The teams were established in part as a response to agents' failed attempt to monitor paroled sex offender Phillip Garrido, who held Jaycee Dugard captive in his backyard for 18 years.  By assigning fewer parolees to supervising agents on the teams, more focus can be directed on those parolees who have violated their conditions.  "We're going to look over the fences.  We don't want another Garrido," said Greg Shuman, supervisor of a Sacramento-based California Parole Apprehension Team.  "It's no tolerance.  Anything, any violation, they're going to jail."  Don Thompson of the AP has this story.

Appeals Court Allows Homeless Sex Offender to Not Register:  A Wisconsin appellate court yesterday tossed the conviction of 58-year-old William Dinkins, Sr. for failure to provide the Department of Corrections with the address at which he would "be residing" once released from custody.  A convicted child molester subject to sex offender registration requirements, Dinkins claimed he was unable to comply with the state law requiring information of his planned address because he had nowhere to live upon his release.  The court agreed: "Because it is undisputed that Dinkins lacked an address at which he could have reasonably predicted he would have been able to 'reside,' ... he could not be convicted for failing to comply."  The state argued such a ruling will allow other soon-to-be-released sex offenders to evade the law, and may appeal to the state supreme court.   Read the Pierce County Herald's article here.

Ghailani's Acquittals on Holder's Hands:  The Wall Street Journal has this editorial on Ahmed Ghailani's 284 acquittals, opining the "blunder" to be Eric Holder's "wholly political" decision to try the terrorist in civilian court.  The piece points out the irony, also noted by presiding Judge Kaplan, that despite extension of the American justice system and constitutional rights to this case, Ghailani's status as an enemy combatant likely permits his indefinite detainment.

Death Penalty to Be Sought in Kansas Teen's Killing:  The AP reports prosecutors will seek the death penalty in the case against Adam Longoria, accused of sodomizing and murdering 14-year-old Alica Debolt in August.  The teen's body was found bound in duct tape and burned so badly that dental records were needed for identification.  At a pretrial hearing, text messages between Longoria and the victim were presented regarding a party they were to attend the night of the killing, as was testimony from Longoria's live-in girlfriend that he came home with stained pants and smelling of gasoline.  A final text message from Longoria to Debolt that night read: "There isnt going 2 b a party never mind."

News Scan

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Child Molester Arrested Hour After Release:  Andrew Dalton of the AP reports on the arrest of Lawrence Brown, picked up an hour after being released from a California prison, where he served roughly half of a 49-year sentence for the kidnap and rape of two young girls in 1983.  Prior to Brown's release, the Orange County District Attorney's Office sought to have him civilly committed as a Sexually Violent Predator, but were unable to do so because the Department of Mental Health failed to submit the required paperwork.  After local officials warned the public of his upcoming release, a woman came forward claiming she recognized Brown as the man who raped her as a child in the late 1970s.  Brown was released, but rearrested almost immediately for violating conditions of his parole. 

Federal Judge to Plead Guilty to Some Charges:  U.S. District Judge Jack Camp is scheduled to plead guilty tomorrow to some charges, reports Greg Bluestein of the AP.  Camp faces gun and drug charges after was arrested last month for attempting to buy cocaine in a sting involving a stripper and an undercover police officer.  (See previous post here.)  Two firearms were also found in Camp's vehicle.

Massachusetts High Court Reverses Two Murder Convictions Today:  The Supreme Judicial Court of Massachusetts today reversed murder convictions in two separate cases, reports The Boston Globe.  In one case, the court reversed the second-degree murder conviction of Margaret Earle for the death of her 21-month-old daughter, who died from blunt force trauma to her abdomen and likely suffered excruciating pain over a period of several hours, finding Earle's failure to seek immediate medical attention for the toddler was insufficient to support a murder verdict.  The court also reversed the first-degree murder conviction of Jerome McNulty, accused of stabbing to death his girlfriend, after finding his confession inadmissible under state law because the police waited too long (14 minutes) to tell him his attorney was trying to contact him. 

Governor Strickland to Review 1,200 Clemency Requests: Ohio Governor Ted Strickland said he hopes to make decisions on the 1,200 applications for clemency already submitted for his consideration before leaving office in January.  During his term as governor, Strickland has commuted the sentences of five death row inmates (including one earlier this week, noted here, and others noted here and here), and presided over 17 carried out executions (noted by Doug Berman of SL&P here).  Laura Bischoff of the Dayton Daily News has this story.
President Obama's decision to try terrorists in civilian courts, rather than the military commissions authorized by Congress and international law, suffered a major defeat yesterday, as a jury which had been denied critical evidence acquitted Ahmed Khalfan Ghailani of all but one of the counts against him.  Benjamin Weiser has this report in the NYT.

As previously noted here and here, the government dodged the speedy trial bullet (with help from CJLF) that would have precluded the prosecution altogether.  However, as noted here, testimony of a critical witness was excluded on the ground that the government learned about the witness through involuntary interrogation of Ghailani.  See prior post here.  Rules designed to safeguard American citizens from oppressive police interrogations have no place governing military and intelligence services grilling alien enemies, yet the rule was applied to exclude this evidence.

You made a huge mistake, Mr. President.  Recognize it and do not repeat it.  Try the rest of the terrorists before military commissions.

Update:  The 11:02 a.m. update to this AP story reports, "A Justice Department official says the Obama administration is committed to trying some terrorism suspects in civilian courts."

Update 2:  The NYT's Room for Debate blog has this unbalanced debate, with only one of five, Andrew McCarthy, taking the position that this result demonstrates why these cases should not be tried in federal court. Robert Chesney of UT Law makes the astonishing statement, "Never mind that there's no particular reason to believe the result would have been any different with a military commission."  Yet later in the same post, he notes, "Much was made in the Ghailani case, for example, of the court's exclusion of a key witness because the government learned of the witness through coercive interrogation of the defendant."  That is the particular reason, professor.

Out-the-Door Pardon

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Departing governors occasionally use their pardon power on the way out the door more than they did during the bulk of their term.  Florida Governor Charlie Crist has decided to posthumously pardon The Doors lead singer Jim Morrison, who was convicted of indecent exposure in 1970.  Brendan Farrington has this story for AP.

The Human Cost of Overdeterring Police

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Elizabeth Smart's nine-month ordeal would have been only three months if a police detective had not feared committing a civil rights violation.  Ann O'Neill has this report for CNN.

Mitchell began to speak of going to California for the winter, and in August they walked to the library for maps. Someone called the police, saying Elizabeth Smart might be at the library. The caller said he thought he recognized her eyes.

Former Salt Lake City homicide detective Jon Richey was sent to investigate. Although he considered the lead "a long shot," he asked, repeatedly, to lift the young woman's veil. But Mitchell said it violated their religious beliefs for anyone but the young woman's husband to see her face.

Richey testified that it would have violated her civil rights to lift the veil if the story about her religious beliefs was true. And Mitchell's calm demeanor didn't set off any alarms for him. He said that when he learned about six months later that the girl he'd tried to question was Smart, it left him "traumatized."

"I don't see anything else I could have done," Richey told reporters after his testimony. "It's difficult for me, but I live with that, and there's nothing I would have done differently."

Smart testified that as the detective left, "I felt like hope was walking out the door."


Crimes Committed and Crimes Reported

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From Scotland comes a good example that "crimes reported" statistics are not always a good indicator of crimes committed.  David Gunn reports in The Scotsman, "The number of men reporting abuse by a woman has more than doubled in less than a decade, new figures revealed today."

Does that mean the highlands lasses are whacking the lads at double the rate of 2000?  More men being willing to come forward is the more likely explanation.

News Scan

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ACLU Sues Michigan Over Juvenile Lifer Laws:  The ACLU sued the state of Michigan today on behalf of nine juveniles convicted of murder and sentenced to life in prison without the possibility of parole.  The suit alleges that a state juvenile sentencing law, which requires 14-year-olds charged with certain felonies to be tried as adults and if convicted, sentenced to life in prison without the possibility of parole, constitutes cruel and unusual punishment.  The ACLU said Michigan has 350 such inmates, the second highest number of such offenders in the U.S.  The lawsuit is asking U.S. District Judge John Corbett O'Meara to declare Michigan's law unconstitutional, even for juvenile murderers.  The Detroit Free Press has this story.

Indiana Lawmakers Urged to Discuss Death Penalty Costs:  Indiana Attorney General Greg Zoeller attended a University of Notre Dame event Monday to discuss with lawyers and law students the costs of capital punishment in the state.  He did not present specific solutions to alleviate costs or for a moratorium on the death penalty, but rather pushed for a "candid conversation" about death penalty expenses, including costs at the trial and appellate levels.  Economics professor Anne Morrison Piehl of Rutgers University suggested at the event that Indiana develop stricter limitations on reimbursement for trial expenses, such as limiting the number or type of expert witnesses or reducing their fees, or develop audit procedures after the fact.  Read the Journal Gazette's article here.

First Death Sentence Under Japanese "Lay Judge System":  The first death sentence was handed down earlier this week under the Japanese lay judge system, in which a panel of professional and citizen judges examine a crime to determine the appropriate sentence, reports The Yomiui Shimbun.  Receiving the death sentence is double murder Hiroyuki Ikeda, who killed one of his victims by decapitation with an electric saw.  In making its ruling, the panel considered Ikeda's motive of personal gain, the "relentless and brutal" nature of the crimes, and consideration of the victims' families.  While the ruling also noted Ikeda's expressed remorse, the panel concluded this merely managed to recover his humanity.

Dubious Votes

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John Fund reports in the WSJ on the Cal. AG count:

The race to determine who will be the attorney general of California is still too close to call. Democrat Kamala Harris, San Francisco's district attorney, leads Republican Steve Cooley, the DA for Los Angeles County, by 31,000 votes out of nearly nine million cast. And there are more than 750,000 ballots left to count.

The tabulation process has led to a full-fledged food fight between the candidates and has roped in Dean Logan, the controversial voter registrar of Los Angeles County. Ms. Harris claims that Cooley officials have crowded election workers "and aggressively attempt(ed) to have ballots disqualified" in Los Angeles County. Cooley aides counter that election workers in Los Angeles are being far too sloppy in comparing signatures on provisional ballots with voter registration cards on file for that person. They allege that in some instances no comparison is being made.

Attorneys for Mr. Cooley also complain that county workers are contacting voters by phone to fill out incomplete voter registration forms in order that their provisional ballots can be made legal, a step that's not part of the county's written procedures for counting ballots.

That last one is a whopper.  That might even be a crime.  If it is, who is the non-conflicted prosecutor to prosecute it?

Selling the Supreme Court

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Tom Verdin reports for AP, "A lawsuit filed Tuesday seeks to halt the sale of 11 California office complexes, alleging the process illegally bypassed the state Judicial Council and amounts to an improper gift of public funds."

A particularly short-sighted way to deal with current budget problems while aggravating future budget problems is to sell an asset and then lease it back, trading a permanent expense for a one-time infusion of cash.  That is what the Governator wants to do with the California Supreme Court building in San Francisco, among others.

The lawsuit was filed against Schwarzenegger and the state Department of General Services on behalf of two people removed earlier this year from a Los Angeles building authority, Jerry Epstein and A. Redmond Doms. Schwarzenegger replaced them because they wanted the state to perform a cost-benefit analysis and questioned the long-term consequences for taxpayers.

There is a valid reason for selling the Cal. Supreme building.  That would be to sell the building in uber-expensive Frisco and buy more affordable quarters in relatively low-cost Sacramento, which is the state capital where the Supreme Court belongs.  But that isn't the plan.

Disclosure: Mr. Epstein is a member of CJLF's Board of Trustees.  However, CJLF is not involved in the suit.

The Death Penalty Information Center has announced its poll on (what else?) the death penalty.  To anyone familiar with DPIC, it will come as no surprise, as Doug Berman notes at SL&P, "that this latest poll was conduct in a way designed to prompt anti-death-penalty responses."

For example, they ask people which of four statements they are agree with, all beginning, "The penalty for murder should be ...."

Note the singular.  One penalty for all murders.  Should we be surprised that only 1/3 of the people think all murderers should be executed?  Of course not.

Later, they go on to read the people "facts" about the death penalty that are not facts or that are misleading half truths.  They drag out the tired, discredited "innocence list," and state as a "fact" that "Since 1973, 138 people have been released from death row after being exonerated of their crimes."  We have been through that many times.

Then there is, "Over the past 30 years, states in the South have accounted for 80 percent of all executions and have the highest murder rate. States in the Northeast have accounted for less than 1 percent of all executions and have the lowest murder rate."  The implication, of course, is the false assumption that this correlation proves causation, and the Southern states would have lower murder rates if they got rid of their death penalties.

Uh huh.  The City of Chicago has a lot of snow plows and significant problems with snow on the streets.  The City of Miami has no snow plows and no snow problems.  Therefore, Chicago should get rid of its snow plows so it will be more like Miami.  That argument is just as valid as the DPIC's argument.

File this poll in the trash can.

Update:  Now this is disappointing.  Warren Richey in the Christian Science Monitor reports the DPIC's poll uncritically, without noting the problems.  The only people quoted are Dieter and his hired pollster, Celinda Lake.  Warren is usually sharper than that.  Well, at least he noted that DPIC is "an antideath-penalty organization."

News Scan

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Supreme Court Issues First Signed Decision of the Term:  The U.S. Supreme Court yesterday issued its first signed decision of the term in Abbott v. United States, a unanimous decision authored by Justice Ginsberg (Justice Kagen did not participate).  At issue in the case is the interpretation of a federal sentencing law that imposes a five-year minimum for the use of guns in connection with drug sales.  Rejecting arguments from two convicted drug dealers, the court determined that the law imposes a five-year minimum sentence on top of , not instead of, most other sentences.  Adam Liptak of The New York Times has this story.

Longest-Serving Texas Death Row Inmate Dies:  Richard Abshire of The Dallas Morning News reports that 55-year-old Ronald Curtis Chambers, an inmate on Texas's death row for nearly 35 years, died yesterday after collapsing in his cell.  In 1975, Chambers and a cohort abducted two college students from a Dallas nightclub and shot them.  Chambers and his accomplice turned back to the scene after hearing one of the victims cry out, and continued to beat and choke the victims.  One of the victims died.  Jurors sentenced Chambers to death in 1975, 1985, and 1992, but the sentences were all overturned, including most recently by the Fifth Circuit in 2007.

Supreme Court Recusals:  Adam Liprak of The New York Times has this piece on the mysterious recusal practice of the Supreme Court.  The topic is especially relevant this term, as the bench's newest member, Justice Kagen, has been absent for 10 of 25 arguments heard this term.  The grounds for Kagen's recusals are largely self-evident given her previous position as solicitor general.  But others are less clear, since the court uses stock language without accompanying reasons to indicate a justice's recusal.

Justice Breyer on Facebook:  AP writer Eric Schelzig reports on comments made today by Justice Breyer at Vanderbilt University regarding Facebook and the recent film "The Social Network."  Breyer stated that although he "couldn't even understand" the movie, the court should consider things like social networking sites when interpreting the Constitution.
On November 30, the Supreme Court will hear argument in Schwarzenegger v. Plata.  In that case, the Criminals' Dream Team of Judges Reinhardt, Henderson, and Karlton ordered California to downsize its prisons by between 38,000 and 46,000 inmates.  But don't worry, the "experts" testified and the Dream Team found that this can be done without increasing crime rates, just like the "experts" assured America back in the 1960s that enacting the Great Society would reduce crime by addressing the "root causes."  Remember how well that turned out?

In today's orders list, the Supreme Court denied the prisoners' motion for divided argument.  However, the Court did add an additional 10 minutes of argument time for each side.

CJLF's brief in the case is here.  We ask the Court to not only reverse the order, but also to send the Dream Team to the showers.
Charles Andrew Fowler, a.k.a. "Man," is a murdering thug who thoroughly deserves to spend the rest of his life in prison or perhaps be executed.  Whether he should be punished by the federal government, rather than the state, is a closer question now before the U.S. Supreme Court.

News Scan

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Ohio Governor Commutes Death Sentence: Ohio Governor Ted Strickland today spared the life of Sidney Cornwell, scheduled to die tomorrow for killing 3-year-old Jessica Ballew during a 1996 gang-related shooting.  The state parole board recommended against clemency, but Strickland said jurors might have chosen a different sentence if they knew Cornwell suffered from Klinefelter Syndrome, a genetic condition that caused him to have development disabilities and large breasts as a child.  Julie Carr Smyth of the AP has this story.

Dead Man Crime Spree:  Holbrook Mohr of the AP reports on yesterday's arrest of Thomas Steven Sanders, a man declared legally dead 16 years ago after abandoning his family in Mississippi.  Sanders has lived unnoticed in several states since then, despite accumulating several arrests in Tennessee and a two-year sentence in Georgia for battery.  Sanders was wanted in the kidnapping of 12-year-old Lexie Roberts, whose skeletal remain were found by hunters in Louisiana.  Sanders allegedly met Lexie and her mother Suellen Roberts several months ago in Nevada, and vacationed with them over the Labor Day holiday.  Suellen is also missing and authorities fear she may be dead.

Syracuse Study Released On Police Stops and Race:  Douglass Dowty of the Post-Standard (NY) has this article on a recent study of Syracuse Police Department, finding a higher percentage of black and Latino citizens are let go after being stopped and frisked than white citizens.  The authors of the study concluded a bias by the Syracuse against blacks and Latinos, claiming officers made more errors in judgment in searching minorities than white people.  The Syracuse police have countered there is much more behind the numbers, arguing the study did not take into account the differences between a frisk intended to result in an arrest and a frisk to ensure officer safety, or between searches conducted before a decision to arrest and those conducted alongside an arrest.  The department also noted that because officers are most likely to stop people in high-crime neighborhoods, which tend to be predominantly black, officers will naturally interact more frequently with black citizens, thus giving rise to the disparate statistics.  

Potential Deadlock in Ghailani Trial:  A note from a juror in the Ghailani terrorist trial states she has come to her decision, is alone in her views, and requests to be excused from further deliberations because she has been "attacked for [her] conclusion," reports Benjamin Weiser of The New York Times.  One of Ghailani's lawyers asked presiding Judge Lewis A. Kaplan to declare a mistrial, but the judge declined to do so and ordered the jurors to continue deliberations. 

Suppressing Identity

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This is shaping up to be a big term for Fourth Amendment cases.  This morning the U.S. Supreme Court took up the decision of the New York Court of Appeals (the highest court in NY) in Tolentino v. New York, 09-11556. The state court decision (People v. Tolentino, No. 37) is here.

The police stopped Jose Tolentino for playing music in his car too loudly.  Upon learning his identity, they checked the records and discovered his driver's license had been suspended.  Ten times.

Assuming the stop was invalid, is information in the public's own records, connected to the defendant by nothing but learning his identity, "fruit of the poisonous tree" and therefore subject to suppression under Mapp v. Ohio?  The NYCA said no, and never got around to deciding if the tree is poisonous.  (Stopping people for playing their car stereos at airplane-engine levels is something the police need to do more often, IMHO.)

Another Close Race Update

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I sure didn't expect to be blogging about election results 12 days after the election.

Arizona's medical marijuana initiative has apparently been approved, AP reports. "Proposition 203 won by a tiny margin of just 4,341 votes out of more than 1.67 million votes counted."  All ballots are now counted, but the count is unofficial.

In Washington, Rachel La Corte reports for AP that Supreme Court Justice Richard "The Heckler" Sanders has "all but conceded."

And in the California Attorney General race, Kamala Harris now has a 14,143 vote lead in an 8 million vote race as of Saturday morning.  The unprocessed ballot report showed almost 900,000 remaining as of Friday evening.  This race is well within what John Fund calls the "margin of litigation."  The LA Times has this "keep it civil" editorial.  I agree, for the most part,* with the editorial.  It has been mostly civil so far, and it should remain that way.  Civility does not mean rolling over, though.  There is too much at stake here.

* The LA Times just can't resist showing its skewed view of the world with this statement: "The dignified exits of defeated candidates past -- of John Glenn or Gerald Ford or Adlai Stevenson -- seem consigned to history along with Republican moderates."  Huh?  The decline in moderation is exclusively a Republican phenomenon?  Um, did you happen to notice who the House Democrats chose to be their leader a few years back, LA Times?  In addition, there are plenty of "dignified exits" among candidates who clearly lost the election, but a candidate who might have actually won should not exit, dignified or undignified, until the count has been thoroughly examined.

News Scan

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California Gang Member Sentenced to Death:  A Kings County judge sentenced Pedro Cortez Valles to death earlier this week for the 2004 murder of a rival gang member, reports the AP.  Valles was convicted of first-degree murder in March, with a special circumstance of a having a prior murder conviction four years earlier. 

Victims' Family Sues Over Killer's Early Release:  The Boston Herald reports that relatives of a Washington couple brutally murdered in 2007 filed a civil rights lawsuit this week against Massachusetts law enforcement officials.  Daniel Tavares Jr. was released early while serving a sentence for killing his mother based on an improper credit of 698 days of statutory good time.  The complaint alleges that at the time of the 2007 Washington murders, an outstanding warrant authorized Tavares's arrest in New England but that Massachusetts officials knew he had fled to Washington.  The family members claim that by releasing Taveres early and failing to arrest him in Washington before the murders, Massachusetts officials are to blame for the couple's slayings.  

Wedding Limo Carjacked:   45-year-old Joseph Ghella of Boston is facing charges of carjacking and larceny of a motor vehicle after he carjacked a limo during a wedding ceremony.  Last weekend, Ghella ordered the bridesmaids out of the limo in front of the church and took off with the vehicle.  The women proceeded calmly down the aisle and did not tell anyone about the incident until after the ceremony concluded.  The Boston Globe has this story
Don Thompson reports for AP that a forthcoming report from the California Department of Corrections and Rehabilitation will recommend repeal of the 2000-foot residency restriction in the 2006 initiative known as Jessica's Law.  Registered sex offenders are not allowed to live within 2000 feet of a school or park.  There is no link to the actual report in any of versions of this story I was able to find online, so we will probably have to wait for the official release next week to find out what it actually says.

A 2000 foot radius circle is a 3/4 mile diameter circle.  Plot one of those over every school and park on the map of a densely populated city, and you will find you have nearly covered the map.  Exiling sex offenders from the urban centers to the countryside is not a good idea, especially for those who live in the countryside.  Nor is making them give up regular residences and join the homeless population.

CJLF warned in its pre-election analysis of Jessica's Law that this provision might be struck down, and that has happened preliminarily at the trial court level.  See Nov. 4 News Scan and linked story.  However, we must take or leave initiatives as a package, and this ill-considered provision was necessary to enact the remainder of this important law.

This would not be necessary if the California Legislature would represent the views of the people on criminal law.  It does not, though.  The Legislature is firmly in the control of the Democratic Party, the California Democratic Party is firmly in the control of the thug-hugger left, and the public safety committees of both houses are stacked with anti-law-enforcement majorities.  Bills that would pass by a landslide if the people could vote on them and would probably pass the Legislature if they got to the floor are routinely killed in committee.  So we must resort to the initiative, with all its faults, again and again.

Democracy, it is said, is the worst form of government except for all the others.  In California, we take that a step further.  Direct democracy is the worst form of democracy except for the other one.

Thank You, Veterans

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Let us pause in our discussion of the meaning of justice in a free society to thank those who make a free society possible.  High-toned declarations and proclamations would be nothing but scraps of paper without the sacrifice of those who fight for freedom against the forces of totalitarianism.  Thank you, from the bottom of our hearts.

Internet Stings & Fictitious Victims

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Can a defendant be convicted of attempted rape of a child where the alleged victim is actually a fictitious character created by police?  The Washington Supreme Court today answered affirmatively in State v. Patel

Patel intended to have sex with a 13-year-old girl. . . [I]t does not matter that that he could not have completed the act.
[The defendant's] argument is similar to that of a thief who tries to pick an empty pocket and argues that he cannot be convicted of theft because he could not have completed the crime.

The AP has this story.

Pinholster: What's In a Claim?

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The oral argument in Cullen v. Pinholster produced some surprises for the Court.  In particular, it raised an issue that was not briefed in this case but was briefed in a case the Court heard but dumped two years ago, Bell v. Kelly.

Both Bell and Pinholster involved the fairly common scenario of a convicted criminal who challenges his conviction or sentence in state court, loses there, and then goes to federal court with additional evidence never presented to the state court.  Is this the same "claim" for the purpose of 28 U.S.C. §2254(d)?

As we explain in our Bell brief, the word "claim" means the same thing in the so-called "deference" requirement of §2254(d) that it means in the successive petition rule of §2244(b), which in turn is the same thing that "ground" meant in the pre-AEDPA §2244.  The pre-AEDPA law was surveyed by the Ninth Circuit in Molina v. Rison, 886 F.2d 1124, 1128-1129 (1989), and that discussion is appended to the Bell brief.

In a nutshell, a claim that petitioner was denied the effective assistance of counsel in the penalty phase of the trial is one claim, regardless of how many alleged failings of counsel the petitioner adds or modifies as his case meanders from court to court.

In the Pinholster argument, the attorney for the State took the position that by altering the evidence, the claim was transformed so that it is no longer the claim adjudicated by the State court.    From pp. 20-21 of the transcript:

JUSTICE KENNEDY: But if it's a new claim, then if -- we don't look to (d) because it wasn't adjudicated on the merits.
MR. BILDERBACK: Correct.
During the argument of the habeas petitioner (certiorari respondent), Justice Kennedy said (p. 29):

Now the Petitioner [i.e., the State], unaccountably, has told us a few minutes ago that this is a new claim, which I think changes the whole question. But it seems to me the claim is whether there is ineffective assistance of counsel by reason of mitigation evidence.
That is narrower than I would classify the claim, but it will do for this case.  Justice Kennedy has it right.  Defining "claim" so narrowly that habeas petitioners can dance around §2254(d) just by altering their allegations against the trial lawyer would gut the reform, which is exactly what they were trying to do in Bell.  If it is a new claim and the window for consideration of it in State court is closed, then it is procedurally defaulted, but the procedural default rule is effectively void in the Ninth Circuit.  (We might fix that in Martin, but we can't be certain at this time.)  The Ninth could then proceed merrily to the merits de novo, relieved of the deference standard it despises.

This is an issue of great magnitude, and the Court ought not decide it without briefing.  At the very least, they can and should refer back the Bell v. Kelly briefs, where the issue was thoroughly discussed.

News Scan

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Thiopental Supply Flap:  Nannette Miranda of KABC (Los Angeles) has this report on the flap over the supply of sodium thiopental, one of the drugs used for lethal injection, in California.

Parolee Arrested in Police Officer Killing:  The San Francisco Chronicle reports on Tuesday night's arrest of parolee Earl Ellis Green for the murder of police Officer Ryan Bonaminio.  On Sunday night, Bonaminio pulled Green over for driving a stolen big-rig cab in Riverside, California.  When Green jumped from the truck and ran into a nearby park, Bonaminio was shot and killed while chasing him on foot.  Green's criminal record dates back to at least 1990, and includes a conviction for battery on a police officer and a three-year prison sentence.  Bonaminio, a 27-year-old former military police officer, served two tours of duty in Iraq before returning to his hometown of Riverside to be a police officer.

18 Inmates Dead, 6 Decapitated at a Brazil Prison:  AP writer Juliana Barbassa reports on a Brazilian prison brawl between rival gangs that left 18 inmates dead - including six who were decapitated.  A prison employee is in stable condition at a hospital and the five prison workers held hostage were released unharmed.  The prison is faced with overcrowding; it currently holds twice the number of inmates for which it was designed.  The inmates have demanded better access to food and water and faster legal proceedings, as well as the resignation of the prison's director.  In response, Maranhao's governor, Roseana Sarney has made efforts to improve prison overcrowding, including the inauguration of two new prisons this year and a third to be opened next April.

Deliberations Begin in Terrorist Trial:  The AP reports that the case against Gitmo detainee Ahmed Ghailani has been handed over to the jury.  In closing arguments, the prosecution referred to Ghailani as a cold-blooded killer and a terrorist, while the defense characterized him as a "dupe" and "fall guy" for senior terrorists.  Deliberations began this afternoon.

Elizabeth Smart Testifies in Abduction Case:  After fifteen minutes of cross examination, Elizabeth Smart concluded her third day of testimony today in the case against Brian David Mitchell, accused of abducting Smart in 2002 and raping her almost daily until she was discovered in 2003.  Mitchell's defense team claims Mitchell believes his actions are directed by God, but Smart countered on the stand that "everything he did to me and my family is something I know that God would not tell somebody to do."  Mitchell was not in the courtroom to hear Smart testify - he has been removed from the courtroom every day during the trial for disrupting the proceedings with hymns.  Jennifer Dobner of the AP has this story

Man Looking For Drugs Misdialed Sheriffs Department:  A New York man looking to buy some drugs accidentally called the sheriff's "Crime Stoppers" line.  Although Erie County Sheriff's Detective Alan Rozansky answered the call with his usual "Crime Stoppers," the caller apparently did not hear that and told Rozansky he was looking "to score" drugs.  Rozansky played along and arranged a meeting with undercover officers.  Officers decided not to arrest the caller and instead used him as an informant to lead them to another transaction.  The caller led police to the arrest of a 35-year-old woman trying to sell her prescription pain killers.  The caller is off the hook for now.  The AP has the story here

Close Race Update

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As of 7:25 p.m. Tuesday, November 9, the California Secretary of State is showing Steve Cooley 43,212 votes ahead in a 7.7 million vote race for Attorney General. As of 5:00 p.m. the same evening, there were 1.3 million unprocessed ballots remaining.  The unprocessed ballots are now about evenly divided between mail-in ballots and provisional ballots.  The mail-ins have tended to slightly favor Cooley, who has generally been inching up since election night, but the provisional ballots may well be different as a group.  In addition, we don't know how many of the provisional ballots will actually end up being counted.  By definition, a provisional ballot is one cast by a person who did not appear to be properly registered according to the records at the polling place.  Update Wed. 2:15:  Looks like a batch of ballots from Raider Nation have trimmed Cooley's lead to 9,555.

Meanwhile, two states north, Supreme Court Justice Richard "The Heckler" Sanders may not have been reelected after all.  Steve Miletich has this story in the Seattle Times.  (Thanks to notablogger for the tip.)

Update (and slightly off-topic): Even further north, the outcome of a US Senate race may depend on how picky the Alaska courts are about write-in voters' spelling, Sandhya Somashekhar reports for the WaPo.  We at CJLF have no position on this race, but as a member of long standing of the hard-to-spell fraternity, I have to sympathize with Sen. Murkowski. I suspect reporter Somashekhar does, too.

Amicus Appointed in Bond

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As predicted here, the U.S. Supreme Court has appointed an amicus to argue the position adopted by the Third Circuit but abandoned by the Solicitor General -- that a defendant prosecuted under an Act of Congress does not have standing to make a Tenth Amendment argument that the statute was beyond the power of Congress to enact.

The Court has appointed Stephen McAllister, the Solicitor General of Kansas, to make the argument.  I also predicted in the prior post that the appointed amicus "will get a glowingly complementary footnote in the opinion and a unanimous (or nearly so) defeat."  We will have wait until spring to see if I was right on that one.

Substitute Lethal Injection Drug

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There is nothing magic about the choice of sodium thiopental as the drug to be used in lethal injections.  That was a choice made when the method was introduced, and the other states have just gone along.  So if there is a shortage, why not just use another anesthetic?

Oklahoma wants to do exactly that, reports Nathan Koppel in the WSJ Blog.  They want to use pentobarbital, the drug veterinarians use to euthanize animals.  The argument against it is predictable. "It 'is untested, potentially dangerous, and could well result in a torturous execution,' the attorneys [for murderer John David Duty] stated in a court filing."  Except it is not untested. Chris McGreal reports in the Guardian, "However, pentobarbital has been used for doctor-assisted suicides in Oregon and by the Swiss euthanasia group, Dignitas."

Opponents try to bog down the process by making changes expensive and difficult.  In some states, they have gotten courts to rule that changes in execution protocol have to go through the administrative procedures act process for regulations.

News Scan

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Life Sentence in New Hampshire Machete Murder:  A New Hampshire judge today sentenced 19-year-old Steven Spader to life in prison, reports The Nashua Telegraph (NH).  After only two hours of deliberating, a jury convicted Spader earlier today of first-degree murder and several other felonies.  New Hampshire Union Leader writer Kathryn Marchocki reports that on an early 2009 morning, Spader and a co-conspirator broke into the home of Kimberly Cates, brutally killed the 42 year-old nurse with a machete, and seriously injured her 11-year-old daughter Jaime.  Jaime survived the attack by pretending to be dead.  While handing down the life sentence, presiding Judge Gillian L. Abramson addressed Spader:  "I could go on for days and days about the depth of your depravity.  Suffice it to say you belong in a cage."

Another 120 Years for Tennessee Mass Murderer:  Lawrence Buser of the The Commercial Appeal (TN) reports a Tennessee judge today handed down an additional 120-year sentence to Jessie Dotson, convicted and sentenced to death for the 2008 murders of six people.  (See previous post here.)  The additional years added today were for Dotson's convictions for attempted murder of three of his nieces and nephews, ages two months, five years, and nine years, whom be tried to kill using boards and knives.

Child Predator Sentenced for Fourth Sexual Conviction:  A New Jersey child predator was sentenced yesterday to 25 years in federal prison after receiving his fourth conviction since 2002 involving the sexual abuse of young children.  John Desper's criminal history includes convictions in 2003 for possession of child pornography and solicitation of a minor, as well as a 2007 conviction for sending letters to a woman suggesting she prepare children in her care for sexual activity upon his release from prison.  Five months after his release, Desper made plans with another woman to photograph her undressed daughters for money - this time finding himself in an undercover sting with a Pennsylvania detective.  John Barna of the Gloucester County Times has this story.

Petit Trial Jury Interview

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The Today Show (NBC) has this interview with six of the jurors.  Clearly, this is a very conscientious group of people.

Connecticut does not have the "single juror veto" rule.  The jury must be unanimous one way or the other, or it's a mistrial (as in, e.g., California).  The quality of deliberations in this case was surely affected by the fact that no juror knew he could veto the decision of the others just by holding out.  We have had some ugly reports of jurors doing just that in states with single juror veto.

In states that have that rule and have a more victim-friendly legislature as a result of the recent election, a priority on the agenda should be repealing the rule.
Frank Jordans reports from Geneva for AP:

The United States dismissed international calls Tuesday to abolish the death penalty as friends and foes alike delivered their recommendations on how Washington can improve its human rights record.

U.S. State Department legal adviser Harold Koh said capital punishment was permitted under international law, brushing aside long-standing appeals by European countries and others to temporarily halt or completely abolish the death penalty, which critics say is inhumane and unfairly applied.
The United Nations Human Rights Council that is lecturing us on this subject, among others, includes such sterling defenders of human rights as Cuba and Libya.

News Scan

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Jurors Find Death Penalty Appropriate In Triple-Murder Case:  William Glaberson of the New York Times reports on today's decision by a Connecticut jury to impose a death sentence on Steven Hayes for his role in a home invasion in Cheshire, Connecticut, that left a mother and her two daughters dead.  The jury deliberated for three full days before deciding death was the appropriate sentence for Hayes' six felony convictions.  Now that the jury has reached a verdict, it is up to Judge Jon C. Blue of State Superior Court to officially impose the death sentence. 

Ex-BART Police Officer Receives a Two-Year Minimum Term:  On Friday, a judge sentenced ex-BART police officer Johannes Mehserle to the minimum term of two years in prison for the fatal shooting of Oscar Grant.  The judge believed Mehserle's testimony that he had confused his pistol for a Taser.  The judge also believed that Mehserle would have been justified in using his Taser because Grant was resisting arrest.  Mehserle was looking at as many as 14 years in prison after he was convicted in July of involuntary manslaughter.  Due to the credit for time he has already served behind bars, Mehserle will be eligible for release in about seven months.  San Francisco Chronicle Staff Writer Demian Bulwa has more on the story here.

New Lead in 1961 Kentucky Murder:  The Lexington Herald-Leader reports on new developments in the 1961 unsolved murder of 19-year-old Betty Gail Brown, who was strangled with her bra and left dead in her car.  A drifter originally confessed to the crime, but a 1965 trial ended in a hung jury.  Recently, similarities between Brown's death and other murders pointed to 67-year-old Nolan Ray George, who was previously convicted of strangling two young women and confessed to killing a third.  George was released from prison in 1992, but rearrested in July for a 1968 murder in Michigan.  He has not been charged in Brown's death.

Here's One Way to Avoid Jury Duty...:  John Backderf, a prospective juror in Ohio, was excused from jury service after mentioning he was a childhood friend of serial killer Jeffrey Dahmer.  When asked if he knew anyone convicted of a crime, Backderf responded, "I had a close friend in high school who killed 17 people."  After the judge's and lawyers' shocked responses, he was dismissed from the jury list.  The AP has this story.

Rift Among Abu-Jamal Lawyers

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Maryclaire Dale reports for AP from Philadelphia:

A rift has led death row inmate Mumia Abu-Jamal's (moo-MEE'-ah AH'-boo jah-MAHL's) longtime lawyer to quit days before the latest oral arguments in the case.
Lawyer Robert Bryan of San Francisco says he was forced to quit over a difference in strategy for Tuesday's arguments before the 3rd U.S. Circuit Court of Appeals.

The court had granted Mumia a new sentencing hearing based on what it considered flawed jury instructions in his 1982 conviction in a Philadelphia police officer's death. But the U.S. Supreme Court ordered the 3rd Circuit to reconsider that decision, prompting Tuesday's hearing.

Bryan says he is stepping aside because Mumia wants Widener University law professor Judith Ritter to argue for him. Ritter did not immediately return a call for comment.

SCOTUS Orders

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The U.S. Supreme Court orders list is here.  The Court dealt with two capital habeas cases we have been watching.  In Wilson v. Corcoran, the Supreme Court reversed the Seventh Circuit for committing the obvious error of granting federal habeas relief for a perceived error of state law -- contrary to the view of the state supreme court, the final word on such matters.  When it comes to aggravating circumstances in capital cases, states can either restrict the sentencer to a prescribed list or open it up to something pretty close to a mirror image of the Lockett anything-goes rule.  If the state chooses the former, a claim that the sentencer considered something not on the list is a question of state law to be resolved by the state courts.  It does not violate any federal right.  The case goes back to the Seventh Circuit for a third decision.  That court has made elementary errors twice now in one case, and in the latest round it inexplicably failed to correct the error after being notified in the petition for rehearing.

Unfortunately, the Ninth Circuit gets a pass on its decision in the Arizona murder case, Ryan v. Robinson, noted here.

Gallup: Death Penalty Support Steady

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Gallup is out with its annual poll on the death penalty.  Support remains steady.  Two-thirds express support in the generic question that Gallup has been asking since the 1930s.  In the "how often" question (which I consider a better indication of true support) three-quarters of the people say the death penalty is imposed either about often enough or not often enough. This sum has been rock steady at 71-76% for the 10 years Gallup has been asking the question.

The "too often" number has shrunk to 18%.  That means over a third of the people who answer "no" to the generic question (11% percent of the total) do not think the death penalty is imposed too often. The generic question overstates opposition and understates support.  It is useful primarily as an indicator of relative support trends over time because of the length of time Gallup has been asking it, not as an absolute indicator.

After a four-year hiatus, Gallup has once again asked the opponents' favorite question: "If you could choose between the following two approaches, which do you think is the better penalty for murder, the death penalty or life imprisonment with absolutely no possibility of parole?"  If forced to choose a single punishment for all murderers, I would choose LWOP myself, but that is not the relevant policy question.  With the question so phrased, the LWOP option briefly hit a plurality in 2006 but is now down a shade below the death penalty option.

Another Cal. AG Update

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Here is coverage of the continuing ballot count in the California Attorney General race:  Don Thompson for AP; Marisa Lagos in the SF Chron; Phil Willon in the LA Times.  Lagos quotes the consultants for both campaigns:

Everyone involved in the races is trying to spin it their way. On Wednesday, Harris' camp held a conference call where campaign manager Ace Smith expressed "confidence that we are going to win this race." In typical fashion, Smith was, um, anything but understated:

"We are, I think, witnessing history -- one of the most interesting upsets of political convention in California political history," he said. "You can clearly tell that in early returns we were down -- but we came roaring back...I believe we won on election day by about 3 percentage points based on our modeling -- that's critical because there are still absentee ballots to be counted, and those in the queue, generally speaking, reflect election day results."

Cooley consultant Kevin Spillane, meanwhile, sent out a memo late Thursday noting that Cooley carried 40 out of the state's 58 counties and saying that the "significance of that number is that there are more ballots to be tabulated in counties carried by Steve Cooley rather than in those counties carried by Kamala Harris." Spillane also stressed that Cooley was the top vote-getter among all Republicans on the statewide ticket (those other candidates, as we noted earlier, had a pretty dismal showing).

With apologies to Shakespeare, the first thing we should do is kill all the campaign consultants.  Both are wildly wrong.

If the uncounted ballots reflect election day results, then Harris didn't win by anywhere near 3 points.  It is a fractional-point race any way you slice it.  Also, early returns being more conservative than the final tally is not remotely an upset of convention.  It is the usual pattern.

Number of counties is irrelevant when counties vary widely in size.  Democrat-leaning Los Angeles is the 500-pound gorilla of California, but Republican-leaning San Diego and Orange are 300-pound gorillas.  Tiny Modoc County only matters if the gorillas cancel each other (which they might).

As of 8:53 Saturday morning, the Secretary of State is showing Cooley 22,817 votes ahead.  The unprocessed ballot report, updated 5:00 p.m. Friday, says there were 2,342,664 unprocessed ballots at that time.

Update to Update: The margin as of 9:14 11:51 a.m. Monday is 44,508 19,189 for Cooley.  The unprocessed ballot report has not been updated.  San Francisco, Santa Clara, and Ventura Counties updating in the most recent reports.

News Scan

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California Court Orders Release of Convicted Murderer:  Governor Arnold Schwarzenegger has vetoed the state parole board's decision to release convicted killer Michael McDonald three separate times, claiming McDonald shows a "lack of insight" into his crime because he still insists that he's innocent.  But a state appeals court ruled this week that neither the governor nor the parole board can insist on a confession before granting parole to a prisoner, and that McDonald's refusal to confess does not prove he lacks insight or that he's prone to violence.  In light of McDonald's background, his behavior in prison, and psychological evaluations, the court determined he poses little risk of future violence.  In 1992, at age 16, McDonald stabbed 16-year-old Alexander Geraldo in the neck and strangled him with a guitar string in San Pedro.  He was convicted of second-degree murder and sentenced to 15 years to life.  Bob Egelko of the San Francisco Chronicle has more on the story here.

LWOP vs. Death Penalty:  William Glaberson of the New York Times reports on closing arguments in the sentencing trial of Steven Hayes, convicted of killing three members of the Petit family.  Defense attorneys argued that Hayes should be sent to life in prison, claiming it would be the "harshest punishment."  Arguing for a death sentence, prosecutor Gary Nicholson told the jury that "if there ever was a case where the facts and the law require such a penalty, it is this case.  It was horrific.  It was shocking.  It was vicious.  It was brutal.  It was evil."  Jurors began deliberating today.  Update:  The New Haven Register (CT) reports on a note sent by the jury related to mitigating factors.

California Prison Population Further Reduced: 
California plans on sending another 5,000 inmates to private prisons in other states to reduce overcrowding, bringing the total reduction to 10,000 inmates since 2006.   Prison officials already signed a three-year contract with GEO Group Inc. to house 2,600 inmates at its prison in Baldwin, Michigan, at a cost of nearly $60 million annually.  Officials are currently negotiating with Corrections Corp. of America to house another 2,400 inmates.  The two-year contract will cost roughly $300 million a year to house inmates in Arizona, Colorado, Minnesota, Mississippi, and Oklahoma.  Later this month, the U.S. Supreme Court will hear arguments over whether federal courts can require California to cut its prison population further.  The San Francisco Chronicle has the story here.

Microwave Murder Conviction Reversed:  AP writer Lisa Cornwell has this article on an Ohio appeals court's decision reversing the conviction of China Arnold.  Arnold was accused of killing her 28-day-old daughter in 2005 by placing the baby in a microwave.  She was sentenced to life without parole in 2008, but the appellate court remanded the case after finding prosecutorial misconduct and an error by the trial court in refusing to let a key witness testify in Arnold's defense. 

Not Father of the Year

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Bob Johnson reports for AP from Atmore, Alabama:

Melinda Hallford Powell, who was 15 and pregnant at the time of the killing, said her father forced her to lure [her boyfriend, Eddie] Shannon to the rural site in Dale County, where he shot him to death and threw the body off a nearby bridge. Then, she said, her father made a necklace with the casings from the bullets and forced her to wear it.

Powell, who now lives in North Carolina and is married with three children, said she had been sexually abused by her father and had lived "a nightmare" for years.
"You can't imagine what it was like. I was kind of a zombie after that," Powell told The Associated Press in a phone interview Wednesday night.
Phillip Hallford is scheduled for execution tonight. The governor has denied clemency, and a stay petition is pending in the U.S. Supreme Court.   The high court denied an earlier petition October 12.

Shannon's stepmother, Angelita Johns, said in a statement that Hallford's execution "is long overdue."
Alabama DoC has plenty of sodium thiopental.

Update: Stay denied, no dissent. The Atmore Advance has this story on the execution, which proceeded as scheduled.

News Scan

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Elizabeth Smart Trial Abruptly Halted:  Presiding U.S. District Court Judge Dale Kimball interrupted opening statements today in the Elizabeth Smart kidnapping trial, sending jurors home and expressing his unhappiness about the further delay.  The AP reports the interruption came after a three-judge panel of the Tenth Circuit agreed to hear whether defendant Brian David Mitchell can get a fair trial in Utah. 

"I Will Kill":  On Saturday, November 6 at 10 p.m. EST, CBS News 48 Hours Mystery will air a special on John Gardner, the murderer of 14-year-old Amber Dubois and 17-year-old Chelsea King.  Serving life in Corcoran prison, Gardner revealed to CBS reporter Troy Roberts that he would kill again if released, stating "I never want to be let out.  I will kill.  I know I will... I am the type that needs to be locked up forever.  I am an animal."  Gardner thinks he will be killed in prison and that it "will be a release" for him to die.  Watch a sneak peak of the show here.

Conflicting Orders in Montana Death Penalty Case:  A Montana judge yesterday set an execution date of January 11, 2011 for convicted double murderer Ronald Smith, reports KRTV (MT).  Days earlier, another state court judge stayed Smith's execution, leaving a conflict one judge characterized as "uncharted territory."  While the issue is presented to the state's high court, prison warden Mike Mahoney plans to prepare for the execution that may or may not happen in less than 90 days.

Jessica's Law Provisions Blocked:  A LA County judge today temporarily halted enforcement of provisions of Jessica's Law prohibiting registered sex offenders from living within 2,000 feet of any school, park, or place where children regularly gather.  Judge Peter Espinoza determined qualifying parolees are left with limited housing options, and face a choice of homelessness or returning to prison.  The AP has this story.

CDCR Report

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The California Department of Corrections and Rehabilitation earlier this week released its 2010 Adult Institutions Outcome Evaluation Report.  Some interesting findings:

  • 67.5% of felons released in 2005-06 returned to prison within three years
  • Inmates committed for property crimes have the highest overall, three-year recidivism rate (71.9%)
  • Recidivism rates are highest for inmates who serve 19 to 24 months (71.5%)
  • Race/ethnicity appears to be related to recidivism rates for inmates released for the first time, but not for those who previously failed while on parole

The SF Chronicle has this story on the study.

Supreme Court Conference

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Tomorrow is conference day at the U.S. Supreme Court.  The relisted cases of Allen v. Lawhorn and Wilson v. Corcoran, noted here, are relisted again, but United States v. Gonzalez is not.  The Supreme Court on Monday took up the issue in Gonzalez in another case, as noted here.

An interesting case on the conference list is Ryan v. Robinson, yet another Arizona murder case botched by the Ninth Circuit.  SCOTUSblog's page on the case is here.  The case presents the recurring theme that I call The Puzzle of the Morphing Claim. How do you apply the procedural default and AEDPA deference rules when the claim morphs between state court and federal court, so that the claim petitioner is making to the federal court is sort of but not really the same as the one the state court rejected?

In Question 2, the state contends that the Ninth Circuit also took an overly expansive view of the Lockett rule.  That rule requires the sentencer to consider the defendant's proffered mitigation evidence, but it does not preclude a sentencer from deciding, after considering it, that it is not mitigating or entitled to zero weight.

The online docket says that Jeffrey Zick is counsel for Robinson.  Don't believe everything you read in the online docket.

Recidivism in England

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Tom Whitehead reports in the London Telegraph:

The first long term study of its kind shows that 74 per cent of criminals will commit at least one crime within nine years of being released from jail or serving a community sentence, Ministry of Justice figures show.

The figures show the true challenge facing Kenneth Clarke, the Justice Secretary, to meet his promise to bring about a "rehabilitation revolution".

Actually, the Ministry's figures don't and can't show how many crimes they commit, but only how many they are caught committing.  The one thing we know for sure is that the number committed is higher than the number caught.

Crispin Blunt, the Justice Minister, said: "Today's statistics show we need a more intelligent approach to sentencing that targets the root causes of crime and reoffending, so making our communities safer and better places to live."

Great name for a Justice Minister, although the term "root causes" is like fingernails on a blackboard to me.  It is a usually a prelude to excuse-making that ignores personal responsibility and tries to blame everything on society.  But wait.

"Reoffending rates among short sentence prisoners remain unacceptably high. We will address this failure in the system by making prisons into places of hard work which prepare offenders more effectively for the outside world."

Hard work!  Finally, an official who understands that work is the prison program we need most.  Too bad he's across the pond.

Cal. AG Update

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As the counting of mail-in ballots continues.  Kamala Harris's lead over Steve Cooley has been cut by another third.  (It was previously cut in half by the late returns from Riverside and San Bernardino Counties, as noted here.)  The Secretary of State's tally page shows a 9,000 vote gap in a 7,000,000 vote race as of 6:14 p.m. Wednesday.

Are we going to see something like Florida 2000?  Will there be recounts and litigation?  Will Democratic Party lawyers do high-fives in the hallway when they succeed in throwing out a service member's ballot? Let's hope not.

Even in San Francisco

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Yes, even in the famously tolerant City by the Bay people are getting fed up with the panhandlers, winos, and druggies plopped down on the sidewalks.  Terry Collins reports for AP:

San Francisco voters have approved a controversial ordinance that will soon restrict when to sit or lie on city sidewalks.

Voters on Tuesday supported Measure L, known as the "sit/lie" ordinance, that would ban sitting or lying on sidewalks between 7 a.m. and 11 p.m.
*                                 *                              *
After the city's Board of Supervisors voted down Gascon's proposal in June, Mayor Gavin Newsom to take the issue straight to voters.

Newsom became motivated after seeing a guy smoking crack cocaine while taking his infant daughter on a stroll shortly after moving to the iconic Haight-Ashbury neighborhood earlier this year.

All together now:  I am shocked, shocked to learn that there are druggies in the Haight.

The Catch-22 Argument

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John Christoffersen of AP has this article on the Hayes trial in Connecticut.  The mitigation is the usual stuff.  Having already dismissed the juror who saw their case for what it was, as noted here, the defense makes this audacious claim:

Superior Court Judge Jon Blue on Wednesday rejected defense attorneys' objection to using an alternate juror to help decide punishment. Last week, Blue dismissed one juror who was overheard making a derogatory comment about the defense and replaced that juror with an alternate.
Ullmann said the law calls for the jury that determined Hayes' guilt to decide his sentence. He says the alternate was not a member of the group that determined Hayes' guilt.
The judge acknowledged Wednesday that the issue is "very tricky" and that the law is not clear, and said lawyers could renew their request after the verdict. He also noted it was the defense who wanted the regular juror dismissed and said the case could proceed without the alternate and only 11 jurors if both sides agreed.

So what result should follow if one of the jurors who decided guilt is dismissed?  Does that mean the defendant escapes the death penalty regardless of the justice of that penalty in the case?  That would be arbitrary in the extreme.

Dangerousness and Bail

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Washington voters amended the bail section of the state constitution by a landslide 85-15:

All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great. Bail may be denied for offenses punishable by the possibility of life in prison upon a showing by clear and convincing evidence of a propensity for violence that creates a substantial likelihood of danger to the community or any persons, subject to such limitations as shall be determined by the legislature.

Original Understanding

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From the oral argument in the violent video game case, Schwarzenegger v. Entertainment Merchants Assn:

JUSTICE ALITO: Well, I think what Justice Scalia wants to know is what James Madison thought about video games.

          (Laughter.)

JUSTICE ALITO: Did he enjoy them?

Later, more seriously:


David Ingram has this post at the BLT:

Of the 12 Democratic senators now on the committee, three will not be back: Russ Feingold (Wis.), who lost on Tuesday; Ted Kaufman (Del.), who was filling a vacancy; and Arlen Specter (Pa.), who lost his party primary. Of the seven Republican members, all are expected to be back.
It might be weeks before Senate leaders determine the new partisan ratio on the committee and how many members it will have. One possible scenario: it stays at 19 members, divided between 10 Democrats and nine Republicans, leaving room for one new Democrat and two new Republicans.

Judicial Selection and Retention

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In Nevada, voters decisively rejected Question 1, which would have replaced judicial elections with an appointment/retention system in which the Governor would be limited to choosing judges from a short list appointed by a commission.  As noted previously, it is that commission feature that makes the proposal unacceptable, in my view.

In Iowa, which has a yes/no retention election, three justices of the Supreme Court were ousted in a campaign over their gay marriage decision.  Todd Zywicki has this post at VC.  CJLF takes no position on the gay marriage issue, but for courts to usurp that decision from the democratic process is the kind of judicial activism that we have long fought against in the criminal law arena.  As Californians did with the death penalty issue in 1986, Iowans have demonstrated that yes/no retention elections are the least bad of the available methods, striking a balance between judicial independence and judicial responsibility.  Under this system, judges have almost life tenure, but they can be yanked for a particularly egregious act of judicial activism.

In Washington, where they have named opponents on the ballot, The Heckler won reelection, alas.

Trees and Crime

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I think that I shall never see
A burglar alarm as lovely as a tree

Yuck.  My apologies to Joyce Kilmer and Ogden Nash. That really stunk.

Anyhow, Forest Service researchers Geoffrey Donovan and Jeffrey Prestemon have been looking into the relationship between trees and crime.  The Forest Service has this press release with the results.  The release glosses over the correlation-causation problem, as is all too typical.

Publication is forthcoming in Environment & Behavior, and Sage has generously made the full text available for free.

State Governments

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If you are looking for state government results, the National Conference of State Legislatures has some handy pages:
      Legislature Party Control Switch
      Legislature Party Control
      Party Control of State Government (Governor and Both Houses)
      State Governor

The "switch" page shows that 11 states have changed to Republican control of both houses, while Iowa has changed to divided.  North Carolina and Alabama are in Republican control for the first time since Reconstruction.  Memo to NC Republicans:  Bill Number 1 should be to repeal the Death Penalty Racial Quota Act.

In New England, Republicans were considered an endangered species recently, but they are now in control of both houses of the Maine and New Hampshire Legislatures.

The "control" page is showing New York, Washington, and Oregon as undecided. Danny Hakim reports in the NYT, "Based on the results through 11 a.m., the Senate would be split 31-31, but that includes the three races that remain undecided, leaving the ultimate outcome uncertain."

California Attorney General

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Surprisingly, on the morning after the election, we don't know who California's next Attorney General will be.  As to 9:45 a.m. PDT, the Secretary of State website shows Kamala Harris ahead by half a percent with 97.1% of precincts reporting, but the reporting problems are in San Bernadino and Riverside Counties, which have both gone heavily for Steve Cooley in the precincts that have reported.  Then there are lots of not-yet-counted mail-in ballots.  This could be a long one.

Update: With all the precincts reporting, Harris's lead has shrunk from 0.5% to 0.2%. Susan Ferriss of the Sacramento Bee reports:

Nicole Winger, spokeswoman for the Secretary of State's office, said the office asks counties to voluntarily provide estimates of unprocessed ballots by late Thursday after an election. By law, though, they have 28 days to report results.
"It would be safe to say there are at least several hundred thousand ballots still to be counted," Winger said. She said that after the 2008 general election that there were still 747,000 uncounted ballots the day after Tuesday balloting.

To make up a 14,838 vote deficit in 747,000 ballots, Cooley would need a 2% margin among the mail-in voters.  That is just what the last Field Poll said he had.

News Scan

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Parole Hearing for Sacramento Murderer:  A parole hearing is due for Richard Edwin Duncan, convicted of strangling his pregnant girlfriend Anita Mattson and dumping her body in a creek in 1972.  At trial, Duncan's brother testified that Duncan talked about chopping up the body and sending the head to Mattson's mother.  Duncan was convicted of second-degree murder and given the then maximum sentence - five years to life in prison.  The Sacramento Bee has more on the story here.

Prop 19 Opponents Prevail in Tuesday's Election:  CNN reporter Michael Martinez reports on California voters' decision to reject the legalization of marijuana at yesterday's election, despite supporters' claims that the measure could have generated tax revenue and saved the state hundreds of millions of dollars.  Opponents of the proposition asserted that even if it had passed, federal law would still prohibit groups from manufacturing, distributing, and possessing marijuana for recreational use and that driving under the influence of marijuana could pose a serious threat to the public.  Also opposing the proposition, U.S. Attorney General Eric Holder said he will continue to support the federal law.

Man Convicted of 90 Sex Crimes Gets 134 Years:  The San Francisco Chronicle reports on the sentencing of 38-year-old William Zavaleta Palacios for molesting a male relative for eight years, starting when the boy was ten-years-old.  Palacios was convicted of 90 sex crimes against a minor in a jury trial last month and yesterday, a San Luis Obispo County judge sentenced him to 134 years in prison.  His defense attorney will appeal his conviction, claiming his Spanish-speaking client misunderstood when he waived his Miranda rights and confessed to a police investigator.

Shooter May Have a Grievance With the Marine Corps:  AP writer Alicia A. Caldwell reports on a shooting at a Coast Guard recruiting station in Northern Virginia that the FBI believes to be connected to four similar incidents at military-related buildings.  According to FBI spokeswoman Lindsay Godwin, ballistics tests concluded that the same gun was used in all five shootings.  In mid-October, the unknown gunman fired at least ten rounds on the National Museum of the Marine Corps in Triangle, Va.  A few days later, the gunman shot five to seven shots at the Pentagon.  The next shooting was at the Marine Corps recruiting station in Chantilly, Va., before again targeting the museum.  The FBI said investigators claim the shooter may have a grievance with the Marine Corps.  Fortunately, no one has been injured and because the shootings have occurred at night, authorities believe that the shooter doesn't want to harm anyone. 

Halloween Crime of the Year:  Police cited 19-year-old Matthew Nieveen early Monday morning for driving under the influence and being a minor in possession of alcohol.  Dressed in a breathalyzer costume, Nieveen was pulled over by police after suspicion of DUI.  His blood alcohol measured more than twice the legal limit of .08 percent.  You could say the costume fit the crime.  The Lincoln Journal Star has the story and photo here.

Taking Down the Sword of Damocles

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The period of greatest danger for the cause of justice is drawing to a close.  In the 2006 and 2008 elections, for reasons that had nothing to do with criminal law, political forces friendly to the criminals gained greatly in strength.  This development raised the danger that much of what we had achieved in the 1980s and 1990s (achievements partly responsible for the historic drop in crime in the 90s) could be undone.  Indeed, the death penalty was officially abolished in two states that had no death penalty as a practical matter.  With substantial statehouse shifts in the Republican direction, we can likely make progress toward turning the debate back to fixing the appellate process, at least in many states.

With both houses of Congress and the White House in hostile hands, the possibility that major adverse changes in federal law would be pushed through was also a grave danger. Fortunately, crime was not high enough on the Obama-Pelosi agenda for major damage to be done by the 111th Congress.  Yesterday, the people gave control of the House of Representatives to the Republicans for the 112th Congress.  With the Senate and the White House still in Democratic hands, there will probably be no major legislative changes in either direction.  That is a less than optimum prospect, but it is far better that what we have faced for the last two years.

What about judicial appointments?  The Republicans did not take control of the Senate, and Patrick Leahy will still be waxing smug, self-righteous, and insufferable from the chair of the Judiciary Committee.  All of the Administration's nominees will get out of committee.  However, the Democrats set the standard during the Bush Administration that filibustering nominees for ideological differences is acceptable practice. The Republicans need not and should not unilaterally disarm, and their ability to filibuster is greatly enhanced for the 112th Congress.  Perhaps we will see more moderation in the nominees.  The federal courts will still be changing in the wrong direction for the remainder of the Obama Administration, but hopefully not as far in that direction as we had feared.

Senator Russ Feingold, who presided over the exoneration circus in 2002, will not be back.  See my statement here.  Thank you, Wisconsin, thank you.

Many important criminal law decisions remain entirely executive, though.  President Obama can still transfer as many terrorists to civilian court as he likes.  The executive branch can still release alien felons who should be deported.

The danger is reduced in intensity, but it is not over.  We still have much to do.

News Scan

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Court Rules False Social Security Number Not Criminal Impersonation:  In a divided opinion, the Colorado Supreme Court has ruled that the use of a stolen Social Security number on a loan application does not constitute presenting a false identity.  A Fox News story reports that Felix Montes Rodriguez used the stolen social security number to apply for a car loan.  The Court held that because Rodriguez (whose legal status is unknown) presented his home address, birth date and place of employment, use of the false SSI number did not rise to false identification.  

DNA Snags Suspect in 91 Murder:   A man suspected of the rape and murder of a 44 year-old mother 19 years ago was arrested last week in Columbus, Ohio.  Theodore Decker of the Columbus Dispatch reports that Richard Fugate was arrested last week for the 1991 murder after police matched a crime scene sample with Fugate's DNA taken shortly after the killing and another sample taken earlier this year.  Fugate had always been a suspect but forensics in 1991 was not capable of producing a DNA match.  The case was revived this year and, when the lab was able to match both the new sample and the earlier one with DNA left on the victim, Fugate was arrested.  Detective Russell Redman, who took charge of the case this year said, "Finally, the sciences in this particular area caught up with the suspect." 

The Deceased Vote

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Voting by dead people generally involves a crime.  How about voting for dead people?  Generally not.  How about when the official supposedly in charge of clean elections sends out an official-looking mailer urging people to vote for the dead (right around Halloween, BTW)?

Voters in the Long Beach area of Los Angeles County received this mailer recently.  In large, all-caps print it says "IMPORTANT INFORMATION FROM THE SECRETARY OF STATE."  The fine print is not legible on this scanned image.  Torey Van Oot reports in the SacBee that it is "a disclosure that it was paid for by the Democratic Party."  The text of the letter says,

You have a right to know how the tragedy of Senator Jenny Oropeza's illness impacts your Election Day choice.

Jenny Oropeza's name is on the ballot. You have the right to vote for her.

If you do, and she wins, there will be a Special Election called. You will then be able to thoughtfully consider who will represent you in the Senate for the next four years.

Debra Bowen
Secretary of State

Senator Oropeza is not "ill."  She is deceased.  Okay, put that down to a euphemism.  This is still a misleading mailer, dummied up to look like official business at first blush and only disclosed as a partisan piece in the fine print.  Is it a crime?  An election law expert I consulted thinks so.  Will it be prosecuted?  Probably not.
The Field Poll has this election eve report for California, noted in yesterday's News Scan. The ethnic breakdown on Proposition 19, the marijuana legalization initiative, is interesting.

Among white non-Hispanic voters, it's a dead heat, 46-46. The proposition leads among black voters, but only by 5%, 45-40.  But it's getting clobbered among Latino voters, 35-55, and even more so among the three Asian subgroups listed, with 40%+ margins for Chinese, Korean, and Vietnamese Americans.  The "other" group, made up largely of Asians not included in the three listed subgroups, is also against by a 43% margin.

News Scan

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Kidnapping Trial Finally Begins: Seven years after his arrest, the trial of the man charged with the kidnap and sexual abuse of 14 year-old Elizabeth Smart began today.  AP reporter Jennifer Dobner has this story on the first day of proceedings, which were devoted to jury selection.  The defendant, Brian Mitchell was removed from the courtroom after he sat singing hymns for the first half hour.  Mitchell was led to a another room and allowed to watch the jury selection via video.  While Mitchell's legal team said it will seek an insanity defense, the District Judge who will preside over his trial found him competent to stand trial earlier this year.  Mitchell is accused of abducting Smart from her bedroom in June of 2002 and forcing the girl to become his polygamous wife. 

Support for Pot Measure Dwindling:  In the final day of the campaign, the California Field Poll reports that public support for Proposition 19, which would legalize marijuana for personal use, is fading.  SF Chronicle staff writer Erin Aliday reports that the recent poll found that 49% of respondents oppose the measure while 42% support it.  Over the Summer, polls have reported that public opinion on the measure has shifted continuously.  Last September 49% of respondents indicated that they supported it.  Prop. 19 proponents suggest that polling voters about marijuana is difficult because respondents my be reluctant to tell the questioner about their support.  They might also have been too stoned to remember the question.  

Administration Cuts Deal on Terrorist Sentence:  Although a military jury at Guantanimo Bay has sentenced Canadian born terrorist Omar Khadr to 40 years in prison for the murder of an American commando in Afghanistan, in reality the terrorist will soon be transferred to his home country to serve less than a fifth of that sentence.  Sgt. 1st Class Christopher Speer, 28, was killed by a grenade hurled by Khadr during a firefight in 2002.  Khadr was 15 at the  time.  He was found nearly dead, after a later battle and treated by U.S. forces prior to his transfer to Guantanamo Bay.  A story by Miami Herald writer Carol Rosenberg reports that Khadr plead guilty to the murder and other war crimes in exchange for the sentencing arrangement.  The seven officer sentencing jury was unaware last Sunday that the Obama Administration had already cut a deal for Khadr to serve no more than eight years for the murder, most of it in Canada.   Former Army Sgt., Layne Morris, who lost an eye in the firefight that resulted in Khadr's capture was dissatisfied with the sentence which he said put the terrorist "on frankly the fast-track to freedom."




"The criminal is to go free because the constable has blundered," Judge Benjamin Cardozo famously declared in deciding not to adopt the Fourth Amendment exclusionary rule for New York courts, before it was deemed a federal constitutional requirement.  See People v. Defore, 242 N.Y. 13, 21 (1926).  But what if it wasn't the constable's "blunder," but a judge's?  In the context of issuing warrants, the Supreme Court held 26 years ago that if the police officer relies in good faith on a judge's determination of probable cause in issuing the warrant, the evidence will not be suppressed merely because a later court finds probable cause was lacking.  See United States v. Leon, 468 U.S. 897 (1984).

What if a police officer relies on an authoritative precedent by a court, and that precedent is later overturned based on a new edict from a higher court?  Is this just like Leon?  The constable did not blunder.  He did what a court told him he could do.

In United States v. Davis, No. 08-16654, the Eleventh Circuit was presented with this question.

Miranda in School

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If a teenager is taken out of class to the principal's office, where a police officer wants to ask him questions, is he "in custody" for the purpose of requiring the Miranda warnings?  Does it matter if he is only 13? How about if he is "special ed"?  In the Matter of J.D.B., the North Carolina Supreme Court did not find the juvenile to be "in custody."

This Court adheres to the view that "the custody inquiry states an objective rule designed to give clear guidance to the police, while consideration of a suspect's individual characteristics--including his age--could be viewed as creating a subjective inquiry." Yarborough v. Alvarado, 541 U.S. 652, 668, 124 S. Ct. 2140, 2151-52, 158 L. Ed. 2d 938, 954 (2004) (citing Mathiason, 429 U.S. at 495-96, 97 S. Ct. at 714, 50 L. Ed. 2d at 719).1 Under the circumstances of the case sub judice, we decline to extend the test for custody to include consideration of the age and academic standing of an individual subjected to questioning by police.

Footnote 1 notes that Alvarado was an AEDPA deference case and thus not strictly controlling, but the court finds the discussion persuasive nonetheless. Three justices dissented.

The U.S. Supreme Court today took up the case, now captioned J.D.B. v. North Carolina, No. 09-11121.

Relisted Cases

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Among the relisted cases we have been following (see here and here), Wong v. Smith was denied over a dissent by Justice Alito joined by the Chief Justice and Justice Scalia.  No sign of Allen v. Lawhorn, No. 10-24, United States v. Gonzalez, No. 10-82, or Wilson v. Corcoran, No. 10-91, all presumably relisted yet again.

Several interesting cases were taken up.  I will discuss those in separate posts.

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