December 2010 Archives

News Scan

Another Killer Nailed by DNA:  A cold case DNA hit has identified habitual sex offender and murderer Robert Stansbury as the man who raped and murdered a 29-year-old Barbara Hall in 1974.   As reported by Ruby Gonzales of the Mercury News, Stansbury died on San Quentin's death row in 2003 while awaiting execution for the kidnap, rape and murder of 10-year-old Robin Jackson in Pomona.  He had been in and out of prison since 1959 for several other kidnappings and rapes, apparently benefiting from policies initiated in the late 1960s which focused on short sentences and rehabilitation.  At the time that he murdered Hall, Stansbury had finished serving a short sentence for the 1970 robbery and rape of an Oklahoma woman. 

Watch Out for "No refusal" DUI Checkpoints:  If you get waved into a checkpoint after a few drinks in Florida or Texas tomorrow night, go ahead and take the breath test.  Adam Freeman of Florida's Channel 10 News and Charles Gonzalez of KSAT in San Antonio report that police will draw blood at DUI checkpoints for any drunk driving suspect who refuses to take the breath test.  At checkpoints in both states, a judge will be on site to issue search warrants authorizing the taking of a blood sample.  Defense attorneys are unhappy, claiming that the mandatory blood test is a violation of a suspect's constitutional rights.  "What other misdemeanor offense do we have in the United States where the government can forcefully put a needle in your arm," said Florida DUI attorney Kevin Hayslett.  Texas attorney Jamie Balagia, known as the "DWI Dude", is also upset. "If they don't have enough evidence against you to make a solid case, how is what little they have enough for a judge to sign a warrant?" said Balagia.

Scarface v. US

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Here is yet another entry from the Cases You Have to Look Up Just for the Name File: Julius Omar Robinson, aka Face, aka Scar, aka Scarface, Petitioner v. United States, U.S. Supreme Court No. 10-8146.  As noted here before, I think it is bad form to list aliases in the official name of the case, yet attorneys for both sides do it.

Anyhow, Scarface is a very bad dude who has murdered multiple people and committed other acts of violence.  He was quite justly sentenced to death.  On collateral review, he claimed his attorney was ineffective for not introducing mitigating evidence that pales in comparison with his multiple acts of violence.  The Fifth Circuit denied him a certificate of appealability.  The Ninth Circuit would have wrung its hands over the same case for another decade.

I don't have the petition, but from the Fifth's opinion I suspect he is relying on Rompilla v. Beard.  The only good reason for the Supreme Court to take this case would be to overrule that misguided precedent.

Enumerated Powers

In the federal structure of the United States, the residual legislative authority lies with the states.  The Congress has only the legislative powers enumerated in Article I, Section 8 and a few other places in the Constitution and its amendments (e.g., section 5 of the Fourteenth).

For much too long, too many Members of Congress have taken the attitude that they can and should enact any legislation they think is good policy and leave it to the courts to decide if they actually had the authority to pass it.  Since 1937, the idea that Congress can regulate anything that affects interstate commerce, as long as the regulation is not prohibited by some other provision, has been taken to lengths that raise the question of whether we still have a government of enumerated powers.

There have been a handful of cases, mostly criminal and related cases, where the Supreme Court has drawn the line.  United States v. Lopez, 514 U.S. 549 (1995) held that prohibiting otherwise legal possession of firearms in a school zone exceeded the Commerce Clause authority.  United States v. Morrison, 529 U.S. 598 (2000) struck down a civil remedy for rape by persons who were not state actors.  Jones v. United States, 529 U.S. 848 (2000) gave the federal arson statute a narrowing reading than its words seem to warrant to avoid the constitutional limit.  Despite these modest limits, though, federal regulation and criminalization remains pervasive.

In a refreshing move, the House of Representatives in the 112th Congress "will require that every new bill contain a statement by the lawmaker who wrote it citing the constitutional authority to enact the proposed legislation," Philip Rucker and Krissah Thompson report in the WaPo.  The requirement is symbolic, of course.  Those who conceive of federal authority as limitless will just recite that the activity in question affects interstate commerce.  Everything does, at some level.  Yet even purely symbolic gestures can have an effect on the group mindset.  It is a good thing to remind congressmen daily that theirs is a legislature of enumerated powers.  I, for one, am glad to see this rule.

Federal criminal law is for inherently federal matters such as international terrorism, smuggling, or counterfeiting, crime in federal enclaves (forts, ships, D.C.), or for crimes of a scope that spans multiple states such as large crime syndicates or the Bernie Madoff scheme.  Arson, rape, murder, kidnapping, or bank robbery (FDIC or not) should be state-law matters absent unusual circumstances.

Learning Nothing from Willie Horton


Fox News has this appalling story of a thoroughly preventable murder.   In the name of ever-sprawling (and mostly fake) "compassion," and because he was a "changed man," a lifelong violent criminal was released on parole through a unanimous vote of the Massachusetts Parole Board.  Less than two years later, he gunned down a police officer in the course of a robbery.  As the story recounts, the paroled killer, Dominic Cinelli:

...had a lengthy rap sheet filled with armed robberies, assaults and other offenses, had been serving three life sentences since 1976, and had chronic disciplinary problems while in prison including two escapes during which he committed crimes, the Globe reported. Still, he won the board over by saying the deaths in the family, including his mother's, and drug counseling changed him.
Yes indeed, counseling wins the day.  Doesn't it ever. What is going on here is not actually the failure to learn from Willie Horton.  It's the refusal to learn. 

News Scan

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The Heroin is for Grandma:  The Associated Press reports that Stevan Patong Thao was caught by customs at the Detroit Metro Airport bringing in $50,000 with of heroin he claimed was for his ailing grandmother in Oklahoma.  Thao had arrived from Laos with 490 capsules of the drug.  After the drugs were discovered Thao initially said they were for granny and that he had a prescription.   When that story was rejected he then claimed that his nephew bought the heroin for his diabetes and high blood pressure.

Speaking of Grandma: James Taranto writes in the WSJ's Best of the Web blog, "Why do grandmothers get frisked at airports? For years this rhetorical question has been a trope of the Transportation Security Administration's critics. But maybe the TSA was on to something all along. reports that 'a 46-year-old Indiana grandmother is under investigation for her possible ties to suspected and convicted international terrorists.'"

DP Reinstated for Kentucky Murderer:  The 6th Circuit has reinstated the death sentence of rapist/murderer Parramore Sanborn in a unanimous decision which reversed a District Court ruling contending that questing by a psychiatrist had violated the attorney-client privilege.  Brett Barrouquere of AP reports that Sanborn was convicted and sentenced to death for the 1983 kidnap, rape and stabbing murder of Barbara Heilman.  Shortly before she died, the victim was raped, sodomized and forced to engage in oral sex with Sanborn.  The murderer was retried after the state Supreme Court upheld a claim of prosecutor misconduct. Facing overwhelming forensic and testimonial evidence of guilt,  Sanborn initially attempted to claim that he suffered from EED (extreme emotional distress) at the time of the murder.  Failing at this, he attempted to mitigate his guilt with evidence that he had been drinking when he killed Ms Heilman. 

The main issue turned on the psychiatrist's asking Sanborn about a change in his story between two parts of the mental examination and the fact that he had talked with his attorney in the interim.  The opinion is by Judge Boggs, joined by Judges Merritt and Moore.  Judge Merritt does not often vote to uphold death sentences.

Efficient When It Wants To Be


The AP reports:

A person with knowledge of a federal campaign-finance investigation says a criminal probe has been opened into whether Delaware Republican Christine O'Donnell broke the law by using campaign money to pay personal expenses.

The person spoke on condition of anonymity to protect the identity of a client who has been questioned in the probe. The case, which has been assigned to two federal prosecutors and two FBI agents in Delaware, has not been brought before a grand jury.

O'Donnell, who set a state record by raising more than $7.3 million in an unsuccessful U.S. Senate campaign this year, has been dogged by questions about her finances.

My goodness. DOJ can decide in eight weeks to investigate a losing Senate candidate from the opposition party, but, after more than a year, still cannot decide on even the venue in which to try the man who planned the 9-11 mass murder.

Efficient when it wants to be.  Yes indeed.

Michigan CJ

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In Michigan, the CJ is elected by the justices themselves.  Leonard Fleming reports for the Detroit News, "The next chief justice of the Michigan Supreme Court could be deeply conservative Justice Robert P. Young Jr., who promises to bring harmony to the panel even though he is excoriated by liberals."

Among those unhappy with this prospect is defense lawyer Geoffrey Fieger, best known for his representation of Jack Kevorkian.  Mr. Fieger "called Young a 'black snake' in a radio ad before last month's election...."  Calling a left-leaning black judge a "black snake" would, of course, be blatant racism resulting in the attorney doing so being ostracized if not disbarred, but Fieger's use of that term is okay because Young is conservative.
Tomorrow in People v. Martin, S175356, the California Supreme Court will answer this question:

Can factors underlying a charged criminal offense that is dismissed as part of a plea bargain be considered in setting conditions of probation if the plea agreement did not include a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) permitting the dismissed count to be considered in determining the sentence to be imposed?
Announcement is here.

Update:  And the answer is:

[W]hen under a plea agreement a defendant pleads guilty to one or more charges in exchange for dismissal of one or more charges, the trial court cannot, in placing the defendant on probation, impose conditions that are based solely on the dismissed charge or charges unless the defendant agreed to them or unless there is a "transactional" relationship between the charge or charges to which the defendant pled and the facts of the dismissed charge or charges.

Summary Contempt

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Memo to defendants:  If you are unhappy with the trial judge's decision, it is still not a good idea to yell "F*** y'all" at the judge.

That is what the anonymous defendant did in In re Sealed Case, decided today by the D.C. Circuit.

To Live and Not Die in L.A.

Joel Rubin and Robert Faturechi report in the Los Angeles Times:

For the first time in more than four decades, Los Angeles is on track to end the year with fewer than 300 killings, a milestone in a steady decline of homicides that has changed the quality of life in many neighborhoods and defied predictions that a bad economy would inexorably lead to higher crime.

As of mid-afternoon on Sunday, the Los Angeles Police Department had tallied 291 homicides in 2010. The city is likely to record the fewest number of killings since 1967, when its population was almost 30% smaller.

Strikingly, homicides in the city have dropped by about one-third since 2007, the last full year before the economic downturn, according to a Times' analysis of coroner records. Throughout the rest of the county, which is patrolled by the L.A. County sheriff and individual cities' police departments, homicides during the same period tumbled by nearly 40%.

So, if economic ups and downs aren't the explanation, what is?

The change, experts say, is not easily explained and is probably the result of several factors working together, including effective crime-fighting strategies, strict sentencing laws that have greatly increased the number of people in prison, demographic shifts and sociological influences.
(Italics added.)  Yes, the elephant has been sighted, if mentioned only briefly and in passing.  And it's not that we have more people in prison, it's that we have a specific type of people in prison -- those who have committed serious crimes. 

Locking up the bad guys is, indeed, only one of multiple reasons for the decline in crime generally and murder specifically.  But it is a reason, and we must not abandon measures that have worked merely because "experts" tell us it would be "smart" to do so. 

People are walking around alive who would have been murdered but for our failed, ignorant, politicized "tough on crime" policies. The living people who would have been murdered will never know who they are.  They will never know that these "failed" policies saved their lives. But they were saved nonetheless.

Recusing the Entire Supreme Court

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This somewhat off-topic post concerns a civil case that is interesting from a court-watching perspective as well as on the issues of public finance that pervade all government decisions today.

A California appellate court has declined the Governator's request to lift an injunction stopping him from selling off several state buildings and leasing them back before he leaves office.  David Siders has this story in the Sacto Bee.  The deal would trade valuable assets for a one-time infusion of cash and incur a permanent expense.  This is the kind of kick-the-can-down-the-road government financing the Governator was supposed to end when he stormed into Sacramento in what seems like an age ago.

So the only chance of lifting the injunction lies with the California Supreme Court, but there is one problem. Their building is one of the assets in question.

In California, the conflict is handled by the justices recusing themselves and seven court of appeal justices being designated to hear the case.  SCOTUS has no equivalent procedure, so they go ahead and hear cases concerning their own building.  See United States v. Grace, 461 U.S. 171 (1983).

There is, of course, a better approach to selling the Cal. Supreme building.  There is no valid reason for a court of statewide jurisdiction to be located on extremely valuable real estate in a city that is not the state capital.  If the state owns the asset, there is a huge opportunity cost in being there.  If the state leases the asset, the rent will be huge.  So the obvious solution is to sell the building and buy cheaper but equally functional digs in a lower-cost city such as Sacramento.  Apparently nobody is even considering that.

News Scan

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Police Fatalities Up in 2010:  The number of police officers killed in the line of duty is up 37% from last year, according to data released today by the the National Law Enforcement Officers Memorial Fund.  160 officers have died so far this year, up from a 50 year low of 117 in 2009.  Greg Bluestein of the Associate Press has this story.

No Death Penalty for Accused Arsonist:  Leila Atassi of The Plain Dealer (OH) reports an Ohio defendant accused of setting the deadliest fire in Cleveland's history will not face the death penalty after a federal judge adjudged him mentally retarded.  27-year-old Antun Lewis is charged with igniting a multi-family home in 2005, killing eight children and one adult.  Lewis's trial is scheduled to begin in January.

Warrant Needed for GPS Tracking, Says Delaware Judge:  GPS tracking of a vehicle without a warrant violates the Delaware constitution, according to Superior Court Judge Jan R. Jurden.  Judge Jurden reasoned that if no warrant were required, "any individual could be tracked indefinitely without suspicion of any crime. . . No one should be subject to such scrutiny by police without probable cause."  The courts are currently split on the issue, but this ruling puts Delaware with New York, Oregon, and Massachusetts requiring a warrant for such tracking.  Sean O'Sullivan of The News Journal (DE) has this story.  Hat tip to How Appealing.

Wrong Holiday, Guys:  Two days before Christmas, Customs and Border Protection officers caught 23-year-old Esteban Gates of Florida attempting to smuggle 14 pounds of cocaine camouflaged as Easter eggs, reports Michael Martinez of CNN.  The agents were tipped off because they "trained to detect anomalies in all kinds of situations," stated CBP spokeswoman Lee Harty.

Obama Confesses Error


The phrase "to confess error" is generally used in appellate law to denote the government's admission that its behavior or legal position in the lower court was mistaken.  But the Obama administration's conduct of "lawfare"  --  its lame attempt to conduct the war on terror via subpoena  --  might as well be the subject of a confession of error as well.  As today's Wall Street Journal puts it

White House aides say they are working up an executive order to allow the U.S. to hold enemy combatants indefinitely, while last week a Democratic Congress barred the Pentagon from spending money to transfer detainees held at Guantanamo Bay to the U.S. mainland. Did we just wake up and discover this is 2003 and George W. Bush is still President?

No part of President Obama's agenda has been as thoroughly repudiated as the one regarding terrorist detainees. From the February 2009 promise to close Guantanamo in a year, to the misbegotten attempt to try Khalid Sheikh Mohammed in Manhattan, to the near acquittal of Ahmed Ghailani in a civilian trial, the Administration has failed to change the fundamental architecture of Mr. Bush's legal war on terror. Sounds like it's time for Mr. Obama to accept that Mr. Bush mostly got it right, much as Republican isolationists eventually accepted Harry Truman's Cold War institutions.

Backsliding at the WaPo?

The Washington Post's editorial page has generally been better on criminal law issues than, e.g., the New York Times.  Regrettably, today we see this editorial on the death penalty indicating a move in the wrong direction.  The problem is not an opinion I disagree with.  That is par for the course.  The problem is misleading assertions of fact made in the course of supporting that opinion.  The WaPo, like everyone else, is entitled to its own opinion but not its own facts, as the saying goes.  The editorial says, "Since 1973, some 130 death row inmates have been exonerated, largely through the use of DNA evidence."  Did they do any fact-checking at all?  I posted the following comment on their site:

That statement is stunningly ignorant. DPIC only claims DNA was "involved" in 18 of the cases only their list, not "largely" in any sense of the word.
More importantly, that list is not a list of people "exonerated" as most people understand that term -- shown not to have committed the crime. All that is required to get on the list is to have the conviction reversed and no new conviction made on retrial. In some cases on the list, murderers have gotten away with murder because essential evidence has been suppressed or is no longer available (e.g., because an essential witness is dead).
Timothy Hennis is still on the list. A subsequent advance in DNA technology proved beyond serious question that he really committed the murder.

The writer of this editorial has apparently not read the book by Charles Lane of your own staff. I recommend that everyone at the Post read it before writing anything on the death penalty.

AEDPA Rules Rescission

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Bob Egelko has this story in the SF Chron on USDoJ's decision to rescind the AEDPA fast track regulations and start over.

"The way they do things now is preposterously long," said Kent Scheidegger, legal director of the conservative Criminal Justice Legal Foundation in Sacramento. "What a federal (judge) is supposed to be doing is very limited ... to see if the (sentencing) decision is reasonable. That doesn't take very long if you do it right."

Actually, I didn't say the sentencing decision, I said the state court decision.

As is common in newspaper stories, the "conservative" organization (CJLF) is designated as such, while the organization on the other side, DPIC, is just referred to by name with no qualifier.

The head of the state habeas representation office is also quoted.

Considering the complexity of death penalty cases and the inadequacy of review at the state level, he said, even if fast-track took effect, "I don't see it possibly working. They can't be resolved any faster than now."
But that is preposterous.  The cases are resolved faster than in California nearly everywhere else in the country.

Merry Christmas

The topic of this blog requires that we spend a lot of time discussing the dark side of human behavior.

Today, we pause from all that to wish you and your family a happy Christmas and new year.

Midnight Confirmations

On their way out the door, the Senators of the 111th Congress confirmed a batch of judicial appointments.  The Senate Daily Digest is here.

Speaking of the Ninth, Goodwin Liu is not on the list.  He is the Berkeley law professor who attacked Samuel Alito as "out of the mainstream" in large part because Alito voted for the murderer in only 40% of the capital cases to come before him.  Liu's view of the "mainstream" would have required something like 90%.  This demonstrates that Liu is so far to the left he has no idea where the middle is.

The President can, of course, renominate Liu for consideration by the 112th Congress, but I hope he will not.

AP story is here. WSJ story by Evan Perez is here.  WSJ Law Blog post by Nathan Koppel is here.

Correction:  This post earlier stated that Robert Chatigny was among those confirmed.  The digest page cited actually lists his nomination as among those returned to the President.

The Cowardly Counsel Exception

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Judge Ed Carnes for the Eleventh Circuit in United States v. Rodriguez, No. 08-16696, Dec. 22, 2010:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.
Ms. Rodriguez ripped off you and me for 3 megabucks in Medicare fraud.  In accordance with a plea agreement, she was sentenced to 7 1/2 years.  The claim has to do with a passing comment by the judge about her coming to the country seeking refuge and then ripping us off.  Thanks to How Appealing for the pointer.

The Second Circuit cases are United States v. Leung, 40 F.3d 577 (2d Cir. 1994), and United States v. Kaba, 480 F.3d 152 (2d Cir. 2007).

The question of whether there is a heartless tin man exception is not presented by the facts of Rodriguez and will have to be resolved in a later case.

News Scan

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Oklahoma Set to Execute Two Murderers:   Rachel Petersen of the McAlester News-Capital reports that two convicted murderers will be executed by lethal injection in early January.  Billy Don Alverson's sentence will be carried on January 6, for the robbery and murder of a 30-year-old convenience store clerk in 1995.  David Matthews will be put to death on January 11, for the 1994 robbery and murder of his great uncle.  While Alverson has admitted his crime, Matthews still claims to be innocent.  Both murderers will receive a lethal injection cocktail which utilizes the readily-available sedative pentobarbital, a drug usually given in animal euthanasia and physician-assisted suicide in Oregon and the Netherlands, instead of sodium thiopental, the sedative used by most other death penalty states.   

Parole Revoked for Dangerous Sex Offender:  Rachanee Srisavasdi of The Orange County Register (CA) reports parole has been revoked for California sex offender Lawrence Brown.  (Read previous post here.)  Brown was released from prison last month after serving roughly half of his 49 year sentence for sexual assaulting two girls in the 1980s.  State officials opposed his early release, and Brown was rearrested an hour after he left prison for violating conditions of his parole.  Orange County District Attorney Tony Rackauckas announced yesterday that his office will ask a court to designate Brown a sexually violent predator, adding:  "Brown is a convicted repeat child rapist who should never be allowed to walk the streets and hurt innocent victims."

Oregon Bank Bombers Sentenced to Death:  A father-son duo who planted a bomb in an Oregon bank that killed two police officers have been sentenced to death.  Helen Jung of The Oregonian reports that Bruce Turnidge and his son Joshua had planed to rob the bank after setting off the bomb by remote control, but the plan went awry when the bomb exploded as State Trooper William Hakim and Police Captain Tim Tennant were trying to dismantle it.  The blast also critically injured Woodburn Police Chief Scott Russell, who lost a leg, and bank employee Laurie Perkett.   At trial both Trunidge and his son blamed the other for placing bomb and and argued that the police were partially to blame for recklessly attempting to dismantle it.  They also floated the idea that a transmission from an unknown source set off the bomb.

Convicted Murderer Laughs While During Sentencing:  Laura Italiano of the New York Post reports Jeromie Cancel, a drifter convicted of strangling New York City college student Kevin Pravia with an electrical cord, laughed while receiving a sentence of 25 years to life.  Cancel's lack of remorse during the sentencing, which mirrored his attitude throughout the trial, prompted emotional responses from the victim's family.  Since the proceedings began, Cancel has bragged to the media and law enforcement that he killed Pravia "because he wanted to" and to "add spice" to the robbery of the victim's cell phone and computer.  Even Presiding Judge Daniel FitzGerald addressed Cancel's callousness when imposing the maximum possible sentence: "You showed no hint of mercy or human decency toward Mr. Pravia.  I don't think you even understand the basic notion of mercy.  So you'll get none from me."

Sex Offender Impersonates Police Officer to Rape Woman:  A convicted sex offender pretending to be a police officer "arrested" a woman in a Walmart parking lot and raped her, reports Matt Campbell of The Kansas City Star.  55-year-old Wesley Earl Watson was convicted of attempted rape in 1977 and rape/aggravated sodomy in 1984.  He was released on parole in January and required to wear a GPS monitoring device, which allowed police to locate and arrest him earlier this week.  He now faces several felony charges, including rape, kidnapping, and intimidation of a witness.
Psychologist Robin Wilson provides an overview of two new studies published in the journal Sexual Abuse: A Journal of Research and Treatment on whether those who download and view child pornography are likely to engage in contact offenses with children.

Many jurisdictions now have tough penalties for those caught possessing, distributing, or creating child pornography. In some cases, the mandatory minimum sentences for possessing child pornography exceed the typical sentences given for contact offenses against children. Clearly, as a society, we take a very dim view of those who traffic in these sorts of materials.

But, what of the offenders?

In some respects, this may be a "chicken and egg" dilemma. Do pedophiles seek out child pornography or does downloading (and other subsequent activities best left to the imagination) of sexually explicit images of children lead to eventual contact (or "offline") offending with children?


In regard to the question of how many online offenders also have contact sexual offenses, Seto and colleagues found that only one in eight online offenders had officially-documented histories of contact offenses. However, this is tempered by their finding that more than half of such offenders are inclined to admit to contact offenses that are unknown to authorities... The first statistic (1:8) seems consistent with the argument made by some offenders that they are only interested in the pictures, and that surfing internet child pornography meets their needs and helps them to refrain from engaging in contact offenses. However, the second statistic (50%) gets to the heart of our (SO professionals) fears that many of these guys are just not getting caught. Indeed, under-reporting has always been the fly in the ointment for all of us quoting statistics regarding sexual abuse rates,incidence or recidivism.

The second study discussed by Wilson suggests that there may indeed be a subgroup of online offenders who pose a low risk for contact offenses.  The problem, of course, is identifying those offenders from the general pool of online offenders. 

Comments Back On, For Now

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I have turned comments back on.  Hopefully the technical problem that required turning them off has been fixed.  No guarantee, though. 

Crime Conundrum?

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In The New Republic, Bradford Plumer has another article about left-leaning crime experts scratching their heads over how crime could possibly go down in a time of high unemployment, given the unquestionable truth that poverty is the root cause of crime, yada, yada, yada.

To Plumer's credit, he does actually mention the elephant in the living room that most others consider unmentionable:

Writing in the Wall Street Journal earlier this year, Heather MacDonald noted that the recession "has undercut one of the most destructive social theories that came out of the 1960s: the idea that the root cause of crime lies in income inequality and social injustice." What this recession proves, MacDonald argued, is that we needn't worry about alleviating poverty to fight crime. As long as cities continue practicing savvy policing (such as deploying foot patrols to high-crime areas, a technique pioneered by William Bratton in New York in the 1990s) and locking people up for long periods of time, crime will keep dropping. Conservatives, you see, were right all along.

But of course TNR can't possibly actually admit that conservatives are right about anything, so it is necessary to roll out other explanations.  It's not high unemployment that causes crime but high inflation, which we don't have right now.  Or maybe crime goes down in recessions because there are fewer targets when people don't have as much stuff. Uh-huh.

News Scan

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Haze Shrouds Michigan Pot Law:   Two years after its enactment, communities, courts, the public and the police remain confused about what is legal under the state's medical marijuana law.  AP writers Tim Martin & Mike Householder report that, because the law is largely silent on how the drug can be grown and distributed, local governments are adopting their own ordinances to limit or regulate the new businesses popping up to grow and sell pot.  "There is absolutely no connection to medicine and what's going on with medical marijuana right now," said Oakland Country Sheriff Mike Bouchard.  Last Summer narcotics agents from Brouchard's department raided two pot dispensaries which sold the drug to deputies who presented phony ID cards.  The ACLU has filed lawsuits against several Michigan cities which it claims have policies effectively banning marijuana use.  The state currently has 45,000 licensed medical marijuana patients and even boasts the Med Grow Cannabis College in suburban Detroit.  The article notes that fourteen other states have medical pot laws and several are having similar problems. 

DNA Solves Another Cold Case:  Every month or two a story about a criminal exonerated by DNA makes national headlines but, except for the most notorious crimes, the hundreds of instances where DNA evidence leads police to the criminal usually end up buried in the "crime beat" section.  Nineteen years ago, 28-year-old Julie Bucalo was found strangled to death in a remote cottage in San Jose.  While habitual criminal Ralph Baldenegro was considered a suspect at the time, there was little evidence tying him to the murder and he denied having any contact with the victim.  This week, Santa Clara prosecutors charged Baldenegro with the murder after the crime lab identified his DNA under the victim's fingernails and on clothing torn from her body during the assault.  Baldenegro is currently serving a 94-year-prison term for raping a 14-year-old girl, beating and tying up his ex-girlfriend, and kidnapping their 6-year-old son.  More details are available in this story from the San Jose Mercury News.   

Bad Skiing Etiquette in Colorado:  Georgia skier Scott Fuller has been permanently banned from Vail Resorts and faces charges of child abuse for attacking a 14-year-old girl who knocked down his son on the slopes of Beaver Creek Mountain in Colorado.  Sarah Mausolf of Vail Daily reports that Fuller's 4-year-old son was bumped by the girl who had swerved to miss another skier. After both youngsters fell, Fuller jumped on the girl and slugged her in the face.  She was later treated at a medical clinic for her injuries. 

Rehab Strikes Again

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The never-ending debate between rehab and imprisonment is, well, never-ending.  One thing we know for sure is that a significant increase in the number of criminals imprisoned has coincided with a significant decrease in the crime rate.  Indeed, as C&C has noted, over the last 15 to 20 years  --  as what is called "incarceration nation" has taken hold  --  the crime rate has fallen by more than 40%.  That means many thousands of people have not become crime victims.

Those in the Compassion Industry are duly unimpressed.  They insist that imprisonment is a relic of discredited punitive thinking.  If we could just get our minds right, we would see this.

I know it's unfair to argue by anecdote, but it can also be somewhat illuminating, and in this instance, it's irresistable.  Thus I bring you the latest from Ms. Rehab herself, Lindsay Lohan.

Blog Maintenance

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We will be doing some maintenance on the blog.  It may be unavailable at various times over the next couple of days.

Ryan Stays in Stir

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AP reports from Chicago, "George Ryan's son says the family is 'tremendously saddened' by a judge's decision to keep the former Illinois governor in federal prison.... Ryan called the judge's ruling 'heartless and cruel.' He says his parents are 'devastated.'"

Well, Mr. Ryan, Jr., a lot of families who suffered much more than yours were tremendously saddened and devastated on January 11, 2003.  Mr. Ryan, Sr. cannot be punished criminally for his grotesque misuse of the power of executive clemency, but he certainly has no claim for any sympathy.

News Scan

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Pedophilia Guide Author Jailed:  Rick Rousos of The Ledger (FL) reports Polk County, Florida officials traveled 1,900 miles to arrest 47-year-old Phillip Greaves in his Colorado home.  Greaves is charged with violating Florida's obscenity laws, after he sold and mailed a copy of his book "The Pedophile's Guide to Love and Pleasure," which one officials deemed "a how-to guide" for raping children.  The book was at one time sold on until protests persuaded the retailer to remove the item from its listing.  Legal experts predict major issues in the case will be whether the picture-less book meets the definition of "obscenity" and whether the book falls within Greaves's First Amendment rights.

Random Bag Searches at Washington Metro Stations:  The Washington Metro transit agency began randomized bag searches at two stations today, reports Kytja Weir of The Washington Examiner.  The bags are screened for hazardous materials using ionization technology and K-9 units, and do not need to be opened unless further inspection is necessary.  Interest groups have mounted opposition to the security measures, but several Metro riders referred to the process as "relatively painless" and not offensive.

Irony at its Finest:  AP reporter Robert Barr writes Julian Assange is complaining that someone improperly leaked a Swedish police report on his alleged sexual offenses.  Assange claimed to the British newspaper The Times that a rival newspaper, The Guardian, "selectively publish[ed]" parts of the report.   Assange also criticized the timing of the leak: "The leak of the police report to The Guardian was clearly designed to undermine my bail application.  It was timed to come up on the desk of the judge that morning."

Malingering and PTSD

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PTSD is often criticized because it is extremely easy to feign.  Most of the symptoms are entirely subjective and hard to independently verify.  The current issue of  Psychological Injury and Law has several articles on the purposed changes to the PTSD diagnosis in the upcoming DSM-V.   The lead article by Michael B. First sets the pace:

This commentary focuses on the proposed changes to the trauma stressor criterion for PTSD for DSM-5, specifically its likely impact on malingering. PTSD is particularly susceptible to malingering because the diagnosis relies so heavily on a patient's subjective symptoms. Because the traumatic event that is the trigger of the PTSD syndrome is generally based on objective fact and thus often easily corroborated, this element of the diagnosis is usually more challenging to malinger than subjective reports of symptoms. Therefore, one of the main gateways for limiting the misuse of the PTSD diagnosis in forensic settings is the criterion defining the range of qualifying traumas. Proposed changes to criterion A of PTSD in the draft include modifying the types of qualifying trauma by replacing "threat to physical integrity" with "sexual violation," and clarifying the modes of exposure by replacing the phrase "confronted with" with two criterion: "learning that the event occurred to a close relative or close friend" and "experiencing repeated or extreme exposure to aversive details of the event." Each of these changes has the potential to significantly broaden the range of qualifying stressors and consequently expand the potential pool of individuals who might be in a position to malinger the disorder. Given the likelihood that the DSM-5 field trials will be unable to provide information relevant to assessing the impact of making these changes in forensic settings, it would be prudent to resist the inclination to tinker with the wording unless other mechanisms are available to ensure that the wording changes do more good than harm.

NJ Sup Ct Fracas

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Things are getting nasty in New Jersey. has this report.

Gov. Christie declined to reappoint Justice John Wallace.  He nominated Anne Patterson for the seat.  This decision is highly controversial, and the Senate President has blocked confirmation. 

Chief Justice Stuart Rabner appointed a temporary justice to fill the seat.  Justice Roberto Rivera-Soto says that is unconstitutional and refuses to vote until the court is properly constituted.  Now three Democratic Senators are calling for his impeachment.

New Jersey has a judicial retention system that is supposed to insulate the judiciary from politics.  Uh-huh.

Yes/no retention elections are the way to go, folks.  Whatever that system's deficiencies, it is better than any of the others.

TexCA Rebukes Lawless Willingham Judge

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Last October, Austin, Texas District Judge Charlie Baird was proceeding with a "court of inquiry" on the controversial Willingham matter in violation of two Texas laws.  The court of inquiry statute requires a judge calling for the court to refer the matter to the presiding judge for assignment, not proceed to hold the court himself.  A recusal motion by the district attorney was also required by the rules to be referred to the presiding judge.

The Court of Appeals issued a stay halting the circus, as noted here.  Today the court issued its opinion requiring Judge Baird to follow the rules on recusal motions.  CJLF's press release is here.

The recusal motion will probably become moot before it is decided, as Judge Baird will soon be ex-Judge Baird, not a moment too soon.

We Told You So

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The sentence a convicted defendant receives should depend on what he did and what he has done before, not which judge he draws.  The Sentencing Reform Act of 1984 was the product of a rare bipartisan consensus on criminal law that judge-to-judge disparity had gone too far and needed to be reined in.  The Supreme Court threw out the key element of that reform, mandatory sentencing guidelines, in the Booker case in 2005.  We didn't need to be clairvoyant to predict what would happen.

Jonathan Saltzman reports in the Boston Globe:

Since the US Supreme Court struck down mandatory sentencing guidelines five years ago in a landmark ruling, the difference in the average sentences of the most lenient and most severe federal judges in Boston has widened, according to a new study that says the trend threatens to undermine fairness.

Now that the guidelines are only advisory, the three most lenient jurists impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week. The two toughest impose average sentences double that.

Regional Differences in Crime Drop

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The FBI's preliminary first-half 2010 crime stats. show a substantial drop in crime, as has been widely reported.  See prior post here.  There is a curious regional difference, though.

Violent crime is down 6.2% nationally.  By region, though, it is down 7.8% in the South, 7.2% in the West and Midwest, and hardly changed in the Northeast.  For murder, the regional variation is even greater.  Murder is down a whopping 12% in the South, down 7.2% and 6.3% in the West and Midwest respectively, and up 5.7% in the Northeast.

These numbers bounce around from one time period to another.  In 2009, the Northeast improved somewhat more than the rest of the country.  In 2008, the Northeast and Midwest had fractional point increases in murder while the South and West dropped about 7%.  I wouldn't jump to any conclusions based on one report, but the nearly 18% spread from best to worst region is remarkable and the variation is worth keeping an eye on.
David Espo reports for AP:

After a monthslong blockade, Senate Republicans have agreed to let at least 19 of President Barack Obama's non-controversial judicial nominees win confirmation in the waning days of the congressional session in exchange for a commitment by Democrats not to seek votes on four others, according to officials familiar with the deal.

Among the four is Goodwin Liu, a law school dean seen as a potential future Supreme Court pick, whose current nomination to the 9th U.S. Circuit Court of Appeals in San Francisco has sparked strong criticism from Republicans.

As part of the arrangement, the Senate has approved 10 judges in the past few days without a single dissenting vote. One of them, Albert Diaz, had been awaiting confirmation to the 4th Circuit Court of Appeals in Richmond, Va., since clearing the Judiciary Committee in January.
*                                 *                              *
The unconfirmed nominations will expire when Congress adjourns for the year. Obama is free to reappoint them, but Republicans will have more seats in the Senate in 2011, and there is no assurance the most controversial among them would be approved quickly, if at all.

The Death Penalty in 2010

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It's time for year-end wrap-ups.  CJLF has this press release on some key facts, countering some of the misinformation we have heard during the year and expect to be repeated in the opposition's year-end wrap-ups.

News Scan

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Ghailani Appeals Conviction:  The AP reports former Gitmo detainee Ahmed Ghailani has appealed his conviction for conspiracy to destroy government buildings, the only count out of 224 he was convicted of last month.  His defense team claims the conviction should be tossed because once the jury found him not guilty of bombing the embassies, they should likewise have acquitted him of conspiracy to bomb the buildings.

Disparity in Federal Sentencing:  Boston Globe staff writer Jonathan Saltzman has this article on a recent study of the widened disparity in federal sentences in light of the case United States v. Booker, which declared the federal sentencing guidelines instructive, but not mandatory.  In his article "Inter-Judge Sentencing Disparity After Booker: A First Look," published this week in the Stanford Law Review, law school professor Ryan W. Scott analyzed 2,262 sentences imposed by ten federal judges in Boston.  In an interview, Scott indicated his findings were troubling: "It offends our notions of equality and consistency and the rule of law that an offender's sentence should depend on which judge happens to be assigned to the case."  Hat tip to How Appealing.

Pennsylvania Serial Killer Appeals Death Sentence:  Convicted serial killer Harvey Robinson attempted last week to have his last remaining death sentence vacated, reports Kevin Amerman of The Morning Call (PA).  Robinson had at one time point racked up three death sentences, all for killing women in Allentown, PA, but succeeded in having two of the sentences vacated.  In Robinson's current appeal, he argues his trial attorneys were deficient in failing to present evidence he suffered from frontal lobe brain damage.

Thermometer Attack:  The Los Angeles Times reports a California man was convicted last week of attempted murder for attacking a moviegoer with a five inch long digital thermometer.  During a movie screening, the victim politely asked 40-year-old Landry Boullard's female companion to turn off her cell phone.  Boullard responded with a brutal stabbing attack, leaving the victim with puncture wounds in the neck and bleeding in the brain.  Boullard faces up to life in prison when sentenced in January.

Certiorari Comments in Capital Cases:  Robert Barnes has this article in the WaPo on the frequency of Supreme Court Justices commenting on the Court's decision to deny review of capital cases.  Such denials are usually without comment.

Legislation Next Year on the Death Penalty:   Maureen Callahan has this article in the New York Post on the politics of death penalty repeal in Connecticut.  Misty Higgins has this article in the Martinsburg Journal on a drive to reinstate the death penalty in West Virginia.

Crime Down, Experts Still Searching

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Alicia Caldwell reports for AP:

"Reports of violent and property crimes continued to decline in the first half of 2010, according to preliminary crime report released by the FBI Monday."

Earlier reports of falling crime despite bad economic times had produced puzzlement from experts.  Today's AP story says,

"Some experts have been hard-pressed to explain the decreasing crime when a weak economy has put a continuing strain on local police budgets.

"David Kennedy, director of the Center for Crime Prevention and Control at John Jay College of Criminal Justice in New York, said it's a common misconception to believe the economy alone influences crime rates.

"'Any impact the economy has on crime ... is really insignificant compared to much more powerful influences, especially drug epidemics,' Kennedy said."

That's somewhat better.  Drug epidemics do indeed have an influence.  Still, the effect of simply locking up large numbers of evil people remains curiously and conspicuously absent from quoted experts' pronouncements on the reasons for crime decline.

Spam, Spam, Spam, Spam, Spam

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Spam is a problem that the government has tried to address in various ways, including criminal law.  One fed-up user tried a civil suit approach, unsuccessfully.  Last week the Ninth Circuit decided Balsam v. Tucows, Inc., No. 09-17625:

There is no simple remedy for the vast number of unsolicited emails, popularly known as "spam," that fill our electronic inboxes daily. Even though federal and state legislatures have adopted various laws to combat this problem, "spammers" continue to find new ways to advertise. Daniel Balsam, a victim of spam, seeks an alternative method of enforcement by bringing claims against the registrar of a domain site that bombarded him with more than 1,000 unwanted emails advertising a pornographic website. He claims that the registrar utilizes a system to hide the identity of spammers, making it difficult to identify the spammer. We consider Balsam's claim that he is an intended third-party beneficiary of an agreement between the registrar and the Internet Corporation for Assigned Names and Numbers("ICANN"). Under Balsam's theory, the agreement's provisions on wrongful use of domain names inure to his benefit. Although his approach is novel and creative, it cannot survive a motion to dismiss.

Comments Temporarily Off

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Due to technical difficulties, the comments are turned off for the time being.

Our host informed us that the comment process was consuming an undue amount of processor capacity.  I'm not sure why this is.  We use a standard blog program, nothing fancy.  Anyway, until we get it figured out and fixed, the comments will have to remain off.
Ken Ellingwood has this story with accompanying video in the LA Times:

Reporting from Mexico City --
Outraged when judges freed the main suspect in her daughter's killing, Marisela Escobedo Ortiz launched a one-woman protest across the street from government offices in northern Mexico.

Now she is dead too.

In a brazen killing caught on video, a gunman chased Escobedo and shot her at close range Thursday night in front of the governor's office building in the capital of Chihuahua state.

How bad it is in Mexico?

Amnesty International blamed "the negligence of state and federal authorities" for what it called reprisal attacks against activists and relatives of crime victims. "The deficiencies of the judicial system in cases of murdered women and girls have been demonstrated once again," the group said in a statement Friday.

That's right.   Amnesty International, the organization that works so hard to support murderers in the United States, is actually taking the side of the victims of crime for once.  Even a stopped clock is right twice a day.  It is unfortunate, though, that things have to get this bad before Amnesty wakes up to the reality that the murderers are the oppressors and the murdered are the oppressed.

The Feds Do Something Right

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I have been harshly critical of the Department of Justice for everything from its botched handling of terrorist cases to its winking at so-called "medical" marijuana in California.

Every now and again, however, the feds get it right.  They did this week, intercepting a boatload of meth at the border, AP reports.

I don't know how much misery and/or death that amount of meth would cause.  Fortunately, because our people at the border were not asleep at the switch, I won't be finding out.

Congratulations to my former federal colleagues.

News Scan

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Death Toll Tops 30,000 in Mexican Drug War:  Jens Erik Gould Black of Bloomberg News reports the number of drug-related deaths in Mexico since current President Felipe Calderon took office four years ago has topped 30,000.  Calderon's strategy of increased military presence in the affected areas was praised by U.S. officials, but has caused infighting within the cartels.  One such feud in Ciudad Juarez alone resulted in 3,000 murders this year.

Pentobarbital Might Gain More Popularity:  Oklahoma's use of the drug pentobarbital during yesterday's execution could lead the way for other states in light of the nationwide shortage of sodium thiopental, some experts say.  Opponents of the death penalty have attacked use of the drug as inhumane, arguing it could leave an inmate paralyzed but still conscious during administration of the heart-stopping third drug.  But several expert - including a defense expert - testified at a federal court hearing in November that Oklahoma's planned dosage of the drug was enough to cause unconsciousness and even death within minutes.  Sean Murphy of the AP has this story

Cigarette Leads to Rape Suspect: 
A cigarette enabled police to link a California man to a Pittsburgh home invasion and rape, reports the Pittsburgh Tribune-Review.  Authorities allege 29-year-old Akaninyene Efiong Akran broke into a 20-year-old woman's apartment in September, raped her, and threatened to kill her and her family.  While being questioned by police shortly after the crime, Akran asked for a cigarette.  Police grabbed his discarded cigarette butt and were able to match his DNA to a crime scene sample.

LAPD: Grim Sleeper Photo Release the Right Decision:  
The Los Angeles Times reports LAPD police are calling their decision to release photos found in the possession of the "Grim Sleeper" serial killer an "agonizing" decision, but the best one to determine the identity of the unknown women.  The photos, many of which were sexually explicit, were released in cropped form to protect the dignity of the women and their family members.

Especially Heinous

What kind of monster kills someone and then immediately contacts the victim's mother to gloat?  Well, there are two we know of: Albert Greenwood Brown in California and John David Duty in Oklahoma.  The Chickasha Express News has this story on Duty.

Oklahoma is switching to pentobarbital due to the shortage of thiopental.  As expected, DPIC is protesting that this drug has not been used for executions before.  Well someone has to be first.  It's not like you are going to do controlled trials with volunteers.

CNN quotes Richard Dieter: "It's been used on animals and humans in an anesthetic way, not a killing way, but if it doesn't work in that context, we know that the other two drugs are extremely painful, so it's going to be an excruciating process."  But in the three-drug protocol, it only needs to work "in an anesthetic way" in order that it not be "an excruciating process."

Update:  The execution was completed and Duty was pronounced dead at 6:18 Central Time, AP reports.

Protesting at the Supreme Court

The D.C. Court of Appeals has upheld the convictions of some anti-DP protesters who held their protests on the Supreme Court grounds in violation of 40 U.S.C. § 6135.  The Court has held that there is a First Amendment right to protest on the sidewalk by the Court building, but not on the grounds.  See United States v. Grace, 461 U.S. 171, 181 (1983).

The protesters were holding a banner and also doing the Spoiled Children Cheer.  You know the one.  It goes "What do want? [whatever] When do we want it? Now!"  Why anyone does this cheer any more is something of a mystery, given that the medium devalues the message.  The [whatever] expresses an opinion, but the rest of the cheer informs hearers that the person expressing that opinion is a whiny, spoiled, obnoxious brat, thereby making the hearers less rather more likely to be persuaded of [whatever].  In this case, [whatever] was "Abolition."

The opinion is here.  Mike Scarcella has this post at BLT with pictures.

News Scan

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Oklahoma Execution Tonight:  Oklahoma death row inmate John David Duty is scheduled for execution at 6 p.m. this evening, reports Rachel Peterson of the McAlester News-Capital (OK).  Duty was sentenced to death for murdering 22-year-old Curtis Wise, his cellmate at a state prison where Duty was serving three life sentences for rape and robbery.  Duty strangled Wise with a shoelace, afterwards writing a letter to his victim's mother:  "Well I tied him up hands and feet, then I strangled him.  It's not like the movies, it took awhile."  The U.S. Supreme Court denied his last appeal in early October.

Professional Masks Giving Criminals Extra Protection:  Los Angeles Times writer Sharon Bernstein reports on an increasing trend in the criminal underworld - ultra-realistic masks that instantly transform the appearance of one's race and/or age.  SPFXMasks, one company in the industry, manufactures masks to look and feel like human skin, selling them for between $600 and $1,200.  Last year, a European bank robber used one of SPFXMask's mask to disguise himself as an African American male, which lead to the mistaken arrest and identification of another man.  Investigators also suspect the SoCal "Geezer Bandit" may not actually be an elderly man, given his resemblance to SPFXMask's "Elder" mask.

Escaped Inmate Caught After 19-Hour Crime Spree:  A 20-year-old Iowa inmate who escaped from a university hospital and commenced a 19-hour crime spree was caught last night after he flipped and crashed a stolen vehicle.  Anthony Koehlhoeffer was awaiting trial on 11 charges when he escaped into the 10 degree night wearing only a hospital gown and sandals.  He is suspected of committing several carjackings throughout the state during his flight.  Lee Hermiston of the Iowa City Press-Citizen has this story.

Charles Manson Gets 30 Extra Days: 
IBMTimes reports another 30 days has been added to Charles Manson's life sentence after a cell phone was recently discovered in his prison cell.  Manson was able to make calls and send text messages to people in three states and Canada before the phone was confiscated, but officials have not identified who he contacted.  An official from the California Department of Corrections stated it was "troubling that he (Manson) had a cellphone since he's a person who got other people to murder on his behalf."

Violent Crime Up in California Counties:
  Despite a decline in the crime rate for much of California, the Alameda and Contra Costa Sheriff's Departments are reporting a 24% and 39%, respectively, jump in violent crime for the first half of 2010 from last year.  The increase may be due in part to budget cuts, but academics and officials also point to the spread of gang activity into the unincorporated parts of the counties.  Several unincorporated areas in Alameda and Contra Costa, some of which one county official stated are "left to fend for themselves," have experienced gang-related violence over the past year.  Justin Scheck and Bobby White of The Wall Street Journal have this article.

Search for "Grim Sleeper" Victims:  The LAPD has released 180 photos found in the possession of alleged serial killer David Franklin, hoping to determine if any of them are additional victims, reports the LA Times.

Saunders: Parker Clueless on Cooper

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SF Chrontrarian Debra Saunders takes on CNN's Kathleen Parker, who apparently has been swallowing uncritically everything Kevin Cooper's advocates feed her:

Kathleen Parker actually said, "When you look at the facts in this case, nearly everything points toward Cooper's innocence."

Really? DNA tests placed Cooper at the Ryen home and in the Ryen's car, even though Cooper testified that he had never been in either. Before DNA testing, a jury found Cooper guilty based largely on physical evidence that tied him to the crime. The California Supreme Court upheld the conviction, and a majority of the uber-liberal Ninth Circuit Court of Appeals rejected Cooper's bogus grounds for appeal -- because nearly everything pointed toward his innocence? Can Parker really believe that?

As I've noted before, the whackier and more convoluted Cooper's tall tale becomes, the more gullible professionals flock to his corner. Part II of the Cooper phenom: The further away journalists are from Chino Hills, the easier it is for them to ignore mountains of evidence.

We'll See More of This


The American Association for the Advancement of Science's Science Insider has this article: "Brain Exam May Have Swayed Jury in Sentencing Convicted Murderer" by Greg Miller.

Earlier this month, a jury in Miami rejected the death penalty and chose life in prison for Grady Nelson, who in 2005 stabbed his wife 61 times, killing her, and stabbed and raped her 11-year-old, mentally handicapped daughter.  A  report in The Miami Herald last weekend suggests that measurements of Nelson's brain activity may have influenced some members of the jury, who viewed the results as evidence of a brain injury that would partially explain his behavior. But some scientists are critical of the way this technology was used in the case. During the sentencing phase of the trial, the court heard testimony from Robert Thatcher, a neuroscientist and president of by Applied Neuroscience Inc. of St. Petersburg, Florida. Thatcher's company examined Nelson using a method called quantitative electroencephalography (QEEG). As in standard EEG, technicians place electrodes on the skull to record electrical activity in the brain. In QEEG, a computer program analyzes these recordings to locate regions of abnormal activity...


The QEEG data Thatcher presented were riddled with artifacts, and his analysis was undermined by serious statistical flaws, says Charles Epstein, a neurologist at Emory University in Atlanta, who testified for the prosecution. Epstein adds that the sharp waves Thatcher reported looked more like blips caused by the contraction of muscles in the head. "I treat people with head trauma all the time," he says. "I never see this in people with head trauma."

"Extremely Mainstream"

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Abby Phillip at Politico has this post on Republican opposition to the confirmation of Goodwin Liu and three others in the lame duck session.  The disagreement comes down to a perception of what it means to be "mainstream."  Liu himself has been a combatant in this debate, opposing the confirmation of Justice Samuel Alito on the ground that he was supposedly out of the mainstream, and particularly with regard to the death penalty.  "GOP lawmakers have flagged Liu and three other nominees as too liberal and inexperienced to be included with a batch of other 'noncontroversial' candidates set for confirmation during the rapidly dwindling lame-duck legislative session."

"Overall, the Republicans are really flexing their muscles" by opposing the four, said Caroline Frederickson, executive director of the American Constitution Society. "They are all extremely mainstream nominees, and the fact of the matter is, the Republicans are trying to show the president that they're in control."

Extremely mainstream?  What does that mean?  And can any rational person say that Goodwin Liu is more "mainstream" than the man he opposed for not being "mainstream," Samuel Alito?

How do we measure out-of-the-mainstreamness?  If we somewhat simplistically consider a single-dimension liberal-conservative scale, then the obvious measure of out-of-mainstreamness would be the absolute value of the difference between the nominee's position on that scale and that of the median American voter.  By no stretch of the imagination is Goodwin Liu closer to the median voter than Samuel Alito or, for that matter, Miguel Estrada.

So how can people who opposed nominees of the previous administration on this ground assert that Liu is "mainstream" or even "extremely mainstream"?  The only explanation I can think of is that they are using some other benchmark than the median voter.  They must be measuring "mainstreamness" relative to the median academic or perhaps just relative to themselves.

That seems to be the question posed by a new outfit called "Right on Crime."  Those heading up this group have genuine conservative credentials.  Foremost among them is former Reagan administration Attorney General Ed Meese.  Also included are Newt Gingrich and Grover Norquist.

Small government and respect for individual liberty are two of the central principles of conservatism.  It seems that Right on Crime asks whether the size of the prison population, the expense of maintaining it, and its rate of growth can be squared with those principles.  Accordingly, it is viewed as an ally of convenience by those on the Left who think now, as they have thought for years, that a dime spent on imprisonment is a dime too much, and that "rehabilitation"  --  or, as I see it, the mostly phony promise of rehabilitation  --  is the answer.  Thus Right on Crime is all the rage today on Doug Berman's blog

When a man of Ed Meese's stature lends his name to this sort of "reform effort," we need to pay attention.  I have tried to think it through, and have five observations.


News Scan

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Death Sentence Sought for 21-Year-Old Accused Murderer:  The Ventura County District Attorney announced yesterday he will seek the death penalty in the case against Joshua Graham Packer, accused of stabbing to death a husband and pregnant wife at their beach house last year.  Packer was linked to the killings through a crime scene DNA sample.  He is charged with three counts of first-degree murder (including one for the unborn child, who was six-months-old), and several robbery and burglary charges.  Raul Hernandez of the Ventura County Star has this story.

California Teen Charged as Adult in Brutal Home Invasion:  Catherine Browen of The Reporter (CA) reports 14-year-old Alexander Cervantes was charged as an adult with a total of 15 felonies, including attempted murder, torture, and numerous sex offenses stemming from a home invasion over the weekend.  Early Sunday morning, Cervantes broke into a Vacaville home and raped a 13-year-old girl after stabbing her more than 30 times.  Cervantes also stabbed the girl's 18-month-old brother, who awoke during the attack.  Cervantes is the minimum eligible age in California to be prosecuted as an adult, but prosecutors say he is unfit for juvenile court.

Sixth Circuit: Warrant Required to Search Emails:  The Sixth Circuit yesterday defined the scope of Fourth Amendment protection for emails, ruling a search warrant is required before the government can obtain email messages from an internet service provider (ISP).  While investigating Steven Warshak for fraud, the feds subpoenaed his emails from an ISP without a warrant.  The court determined this was a violation of his Fourth Amendment rights.  "Warshak plainly manifested an expectation that his emails would be shielded from outside scrutiny," and given the inherently private nature of email communication, his expectation was reasonable.  Read the AP's story here.

Obnoxious but Protected "Speech"

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Giving a Nazi salute to the city council during a public meeting is a breach of decorum, but should it get one expelled and arrested?  The Ninth Circuit en banc reversed a summary judgment in favor of the city on procedural grounds in Norse v. Santa Cruz today.  The odd couple of Judges Kozinski and Reinhardt have no doubt Norse should prevail on the merits.

This video (also found in the record) clearly shows that Norse's sieg heil was momentary and casual, causing no disruption whatsoever. It would have remained entirely unnoticed, had a city councilman not interrupted the proceedings to take umbrage and insist that Norse be cast out of the meeting. Councilman Fitzmaurice clearly wants Norse expelled because the "Nazi salute" is "against the dignity of this body and the decorum of this body" and not because of any disruption. But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech. See Cohen v. California, 403 U.S. 15 (1971); Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir. 1990).

WikiLeaks Developments

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Kevin Huffman on the WaPo's PostPartisan blog:

In his latest episode of jack-assery, Michael Moore has shelled out 20,000 pounds in bail money for WikiLeaks founder Julian Assange. As has been well chronicled, Assange is sitting in a London jail awaiting extradition to Sweden on rape charges. The Post reported this morning that Assange's attorney has decried the "Dickensian conditions" at his London jail, noting he is "kept in solitary confinement, maintained in a lone cell, denied a computer and permitted only heavily censored reading material."

I found this shocking, since I don't remember a single Dickens episode, not even Bleak House, in which the protagonist was denied a computer. Yet despite being confronted with a story of such abject cruelty as Internet-denial, I wasn't moved to write a check for 20 grand.
The word "jack-assery" is new to me, but I kind of like it.  Note that the check is actually over $30,000US.

In the National Law Journal, Leonard Orland of U. Conn. School of Law calls for DoJ to indict Assange for espionage.

AP reports that the Air Force has blocked the NYT site from its computers to prevent the viewing of classified information.  Huh?  "The New York Times Co. issued a statement in response to the action Tuesday, saying 'it is unfortunate that the U.S. Air Force has chosen not to allow its personnel access to information that virtually everyone else in the world can access.'"

Update:  AP reports, "The Berkeley City Council Tuesday night indefinitely delayed a vote on whether to bestow hero status on a soldier who allegedly released classified information to WikiLeaks.... 'Items like this are a huge distraction from what I feel like I was elected to do,' said Councilwoman Susan Wengraf."  Bingo.  City councils should make sure the potholes are filled and the garbage picked up.  Leave foreign and military affairs to the feds.

Death Sentencing Rates

The number of death sentences imposed in the U.S. has been dropping for the last 11 years.  Those interested in spinning can claim a single cause consistent with their viewpoint, e.g., (1) the American people are turning away from the death penalty; or (2) sentences are down because murder is down because the death penalty is working.  Reality is a bit messier, as it usually is.

DPsPerMurder2.jpgThis graph shows the number of murders, number of death penalties, and the ratio of the two.  Click on the graph for a larger version.  To get the three numbers on the same scale, I divided the murders by 100 and calculated the ratio as death penalties per 10,000 murders.  The two death penalty numbers are lagged one year so that the sentences more or less match up with the crimes.

The decline in the number of death sentences imposed began in the late 1990s.  In this period, the decline in the murder rate was the predominant factor.  While the number of death sentences was declining overall, death sentences per murder were actually rising.

News Scan

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Tenth Circuit Affirms Use of Pentobarbital in Oklahoma Execution:  The Tenth Circuit today rejected Oklahoma death row inmate Jeffrey Matthews's appeal for a stay of execution.  Matthews had argued Oklahoma's use of the drug pentobarbital as part of its three-drug protocol threatened to violate his right against cruel and unusual punishment.  Citing the U.S. Supreme Court decision, Baze v. Rees, the Tenth Circuit affirmed it was very unlikely Matthews could prove that the use of pentobarbital was "sure or very likely to cause serious injury and needless suffering and give rise to sufficiently imminent dangers."  The AP has this story.

Inmate Strike Orchestrated by Cell Phones:  Rhonda Cook of The Atlanta Journal-Constitution (GA) reports on a prison strike, which inmates claim they were able to organize via text messages.  In four Georgia state prisons, the inmates are demanding to get paid for their prison jobs and complaining about the lack of fruit and vegetables available at meals.  Prison officials dispute the inmates' version of the story, stating the wardens ordered lock downs of the facilities as a precautionary measure.

Elizabeth Smart Role Model for Other Victims:
  Rosemary Winters of the Salt Lake Tribune (UT) writes Elizabeth Smart's willingness to confront her abductor/rapist and testify in court has provided an example of courage for other rape victims.  Victims advocates are praising her strength, hoping it will empower other victims to come forward and help remove some of the stigma attached to sexual assaults.  Smart's family members have also helped out in the effort, pushing for a national alert system for kidnappings and lobbying for Congress to create a national sex-offender registry.

"Festivus" Claim Wins Inmate Kosher Meals: 
An Orange County inmate used devotion to the fictitious holiday "Festivus," created on "Seinfeld," to get kosher meals for nearly two months, reports KTLA (CA).  Unhappy with the jail's salami sandwiches, convicted drug dealer Malcolm Alarmo King argued successfully to a judge that his religious beliefs required alternative meals.  Orange County officials eventually got the order thrown out after realizing King's claim "probably wasn't legitimate."

Kevin Cooper is guilty

The title of this post is the title of this column by SF Chrontrarian Debra Saunders.  Among those quoted are two former members of Cooper's own team: former cop turned PI Paul Ingels and well-known forensic DNA expert Edward Blake.

Dr. Edward T. Blake boasts that he has been involved in "more postconviction exonerations than anybody in the world," and he worked for Cooper's defense.
As a professional, Blake doesn't appreciate others trying to game DNA testing.

I asked, "Is Cooper guilty?"

"Yeah, he's guilty," Blake answered, "as determined by the trial and the failure of a very extensive postconviction investigation to prove otherwise."

Blake also doesn't appreciate that [Ninth Circuit Judge William Fletcher's] conspiracy theory outrageously accuses and condemns law enforcement officials without an investigation or a trial.

Worse, to buy into Fletcher's theory, you have to believe that as far back as 1983, the local constabulary had the foresight to plant Cooper's blood in the Ryen home, his saliva in the car and also found a way to put Cooper's DNA on a T-shirt with a victim's DNA - even though prosecutors didn't present the T-shirt at trial. That is, you have to believe everything but the evidence.

Update:  Saunders' follow-up post on her "Token Conservative" blog is here, noting California's "twice convicted of felony" limitation on the governor's clemency authority.

News Scan

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"Parent Accountability Act" Sends Parents to School:  Thomas Watkins of the Associated Press reports on the recent implementation of California's "Parent Accountability Act," the first state law allowing judges to order parents of gang members to attend parenting classes.  The law went into effect in January, but classes only recently started due to budget cuts and low attendance.  The training courses teach parents about warning signs that a child may be involved in gang activity and the legal consequences of gang-related offenses, and will eventually include victims of gang violence as guest speakers.

Suspects in Hotel Killing Could Face Death Penalty:  A husband-wife duo appeared in court today, accused of killing and dismembering a man in a Los Angeles hotel room.  The couple is charged with first degree murder with special circumstances, meaning they could face the death penalty if convicted.  49-year-old Herbert Tracy White's body was discovered mutilated in late November in a hotel room the two were renting.  The Los Angeles Times has this story.

Misdirected Criticism?:
  The Washington Post has this editorial on Attorney General Eric Holder's attack on a recent House vote to bar federal funds to move any detainee from Guantanamo to the US for any purpose, including trial.  The editorial begins: "We have some sympathy for Attorney General Eric H. Holder Jr. as he rails against Congress's latest proposed limits on moving detainees from Guantanamo Bay, Cuba - but not much.  The House is irresponsibly filling a vacuum created because the Obama administration failed to lead."

 Death Row Inmate Back in Prison:  A former Ohio death row inmate is back behind bars, reports John Futty of The Columbus Dispatch.  Thomas Anderson was sentenced to death at the age of 17 for murdering a Columbus police officer during a robbery, but was released in 1988 after the Ohio Supreme Court reduced his sentence to life.  His most recent crime, one count of robbery for punching a women who confronted him after he stole a purse from her car, is his seventh felony charge since his early release.

"An Eye for an Eye"... Literally:  FoxNews reports an Iranian man who blinded his lover's husband by throwing poison into his eyes has been sentenced to a punishment to match his crime:  having acid poured in his eyes.  The sentence has been upheld by Iran's highest court and the prosecutor on the case indicated that officials, "have asked for forensic specialists to oversee the blinding of the convict."

The Dodd-Frank Act

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The Fed Soc Crim. Law Practice Group has this run-down of criminal provisions in the Dodd-Frank Wall Street Reform & Consumer Protection Act, by Tiffany Joslyn of NACDL.

Elizabeth Smart Makes A Choice


For those of you who occasionally tune in to Sentencing Law & Policy, and in particular to some of the commenters on that site, it will come as no surprise to learn that prosecutors are fascist thugs who manufacture evidence to put innocent people behind bars, usually for the purpose of torturing them.  The torture is undertaken, inter alia, by such sinister means as refusing to replace their 18" TV's with 24" TV's.  Amerika has no shame!

Still, Elizabeth Smart, fresh from testifying at the trial of the fellow who abducted her at knifepoint at age 14 and then raped her for the next nine months, seems to have a different outlook.  According to her father, she was so inspired by the prosecutor's work in her case that now, at age 23, she wants to go to law school to become..........

A prosecutor.

Today Show interview is here.

To all our readers who pursue this honorable if not particularly well paid profession, a special hat-tip today. 

Electronic Briefs

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The US Supreme Court has long required parties and amici to print their briefs on an odd size of paper: 6 1/8 x 9 1/4.  The size does fit nicely in the hand and is easier to read than 8 1/2 x 11, but it's a pain to produce.  We have to print ours on the big 11 x 17 sheets and send them out to be cut down.

In recent years, the Court has also required an electronic copy emailed in PDF format.  I suspected most of the clerks were reading the electronic versions rather than the paper ones but that the justices were sticking with paper.

Turns out two justices on opposite ends of the seniority scale have gone electronic.  Justice Scalia reads his on an iPad while Justice Kagan uses a Kindle.  See interview here.  Perhaps in the not-too-distant future we can get rid of the printed briefs altogether.

An Injustice in Alabama

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The US Supreme Court today declined to review a decision of the Eleventh Circuit overturning the well-deserved death sentence of James Lawhorn.  Justice Scalia dissented, joined by Justices Thomas and Alito:

In March 1988, Altion Maxine Walker offered to pay her nephews, James Lawhorn and his brother Mac Lawhorn, $100 in exchange for murdering her boyfriend, William Berry. The Lawhorns accepted. After they ambushed Berry, Mac Lawhorn shot him, causing him to fall. James Lawhorn (hereinafter Lawhorn) then heard Berry making"'gurgling noises'" and shot him repeatedly "'to make sure he was dead.'" 519 F. 3d 1272, 1278 (CA11 2008).
*                               *                             *
It has been over 21 years since Lawhorn was sentenced to death. Alabama should be not barred from carrying out its judgment based on a federal court's lawless speculation. I would not dissent from denial of certiorari if what happened here were an isolated judicial error. It is not. With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress's command that state criminal judgments must not be revised by federal courts unless they are "contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1) (emphasis added). We invite continued lawlessness when we permit a patently improper interference with state justice such as that which occurred in this case to stand. We should grant Alabama's petition for certiorari and summarily reverse the Eleventh Circuit's judgment.

Although the AEDPA deference standard has been largely a success in the guilt phase, it has been much less effective in the penalty phase.  We have reached a point where federal court review of state penalty phase determinations is causing more harm than good.  While the Ninth Circuit is the worst offender, and the Sixth is second, these miscarriages of justice occur in other circuits as well.  The penalty phase should now be removed from federal habeas review of state judgments altogether.

A Caution on Comments

Since we began this blog, the comment traffic has been more sparse than most blogs, but it has been largely civil, in contrast to the "food fight" type of comment thread you often see elsewhere.

A while back, I loosened some settings to make it easier to register and comment.  I expected that would increase the comment traffic but worried that it might increase the number of low-grade comments.  For the most part, for a time, it did not.  Recently, though, we are getting an increase in comments that merely call people names while adding nothing of substance to the discussion.

Blogs are analogous to a private living room, not "speaker's corner" in a public park.  There is no First Amendment right to say anything you want.  As a guest, you observe the host's rules or you leave.

If you want to add to the discussion with thoughtful, substantive comments, you are welcome here, and that applies equally whether you agree or disagree with the post.  However, we do not need or welcome comments that just sling mud.  We also do not need or welcome comments that make gross mischaracterizations of what the original post said just to knock down the straw man.

I very rarely ban commenters, other than spammers.  If I do find it necessary, though, let me note in advance that doing so is not "censorship," the claim that banned commenters usually make.  Censorship is when the government fines or imprisons people for speech in the public forum.  Asking an unruly guest to leave a private party in your living room in not censorship; it is being a responsible host.

Guilty Verdict in Smart Case

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Jennifer Dobner reports for AP:

Elizabeth Smart waited more than eight years for the word she heard Friday.

"Guilty," the court clerk said, after a federal jury deliberated five hours to convict street preacher Brian David Mitchell of snatching Smart from her bed, at knifepoint in the dead of night, and forcing sex on her while he held her captive for nine months.

Smart smiled as the verdict was read, while a bedraggled, bearded Mitchell sat at the defense table, singing hymns with his hands before his chest, as if in prayer.

"I hope that not only is this an example that justice can be served in America, but that it is possible to move on after something terrible has happened," Smart said, after she walked arm-in-arm with her mother through a crush of media.

*                               *                              *

Jurors did not buy the insanity defense, finding him guilty of kidnapping and unlawful transportation of a minor across state lines for the purposes of illegal sex. The sex charge was based on Mitchell taking her for five of the nine months to California.

Mitchell could face up to life in prison when he is sentenced on May 25.

Cert. Grants

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The Supreme Court announced that it has taken up three new cases today.  There are two civil cases and one federal sentencing case, Tapia v. United States, No. 10-5400.  The orders list is here.

If the Court follows its usual pattern, the Monday orders list will have no grants for certiorari for full briefing and argument.  There may be some vacate-and-remand orders or some summary reversals.  The Court may also issue opinions in previously argued cases.

Lame Duck Judicial Confirmations

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It looks like the Senate may move to confirm a batch of judicial nominations with bipartisan agreement.  Goodwin Liu and Robert Chatigny are not in the batch.  I am told by informed sources that there is no time left in the session to invoke cloture to break a Republican filibuster on these two.

Liu, nominated to the Ninth Circuit, attacked the nomination of Samuel Alito to the Supreme Court.  He claimed that Alito was "out of mainstream" and focused particularly on the capital cases.  It was a bizarre charge, given that Alito had actually voted for the murderer in 40% of the cases.  A person who thinks that 40% in favor of the murderer is an "out of the mainstream" pro-prosecution record must think that the correct decision is to vote for the murderer nearly every time.  Indeed, a close reading of the paper Liu wrote in his opposition to Alito indicates that Liu thinks that the correct resolution of every point discussed in the paper was in favor of the murderer.  A judge like that is the absolute last thing we need on a court that is already far too murderer-friendly.  See CJLF letter here.

Robert Chatigny is infamous for his mishandling of the case of Connecticut death row "volunteer" Michael Ross.  He threatened Ross's attorney with bar discipline for arguing in favor of allowing Ross to call off his appeal, even though the rules of professional ethics require lawyers to respect the client's right to decide the goals of representation.  Judge Chatigny also believes that sadism is not only a mitigating circumstance, but a powerful one.  See Robert Blecker's comment here

Speaking of time in the Senate, Senator Bernie Sanders (Socialist-Vermont) has been burning it up talking for seven hours (so far) against the tax cut compromise. Melissa Bell has this post on the WaPo site.  Burn it up, Bernie.  The more time you consume, the less time there is for Harry Reid to do damage while he still has a heavy majority.

Update:  Abby Phillip at Politico has this post on the negotiations.

Crush Video Do-Over

The President has signed H.R. 5566, the ''Animal Crush Video Prohibition Act of 2010''.

What is an animal crush video?  New 18 U.S.C. §48(a) provides,

DEFINITION.--In this section the term 'animal crush video' means any photograph, motion-picture film, video or digital recording, or electronic image that--

(1) depicts actual conduct in which 1 or more living nonhuman mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury (as defined in section 1365 and including conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242); and

(2) is obscene.
The definition of "obscene" is punted to the courts.  They know it when they see it.

For the fate of Congress's previous attempt, see United States v. Stevens, decided last April.

Torts and Private Prisons

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In the 1971 Bivens case, the Supreme Court created a cause of action for constitutional violations by government actors.  Does that cause of action apply to the guards employed by a privately operated prison who have no immunity from ordinary tort remedies?  The Ninth Circuit today denied rehearing en banc to a decision saying yes.  Judge Bea dissents, joined by seven others.  He says this creates a split with the Fourth and Eleventh Circuits.

Next stop, 1 First Street, NE.

Determining Age Exactly

A number of rules in criminal law have sharp cut-offs based on age.  We have constitutional rules limiting sentencing based on the age of the defendant in Roper v. Simmons and Graham v. Florida, and there are a host of statutory rules as well.  A murder might be death-eligible if the victim is a "child" as the law defines child.  And of course there are sex-with-minors laws where the difference between perfectly legal and a serious crime may turn on a single day.

Eugene Volokh points us to an immigration case where the Sixth Circuit pondered when exactly a person turns 18.  In Duarte-Ceri v. Holder, the government wanted to deport a habitual criminal. His mother had been naturalized on his 18th birthday.  When aliens are naturalized, their children under 18 get derivative citizenship.

Duarte claimed he was born in the evening, and therefore his mother was naturalized before he was fully 18 years old.  The majority bought that theory, but the dissent did not.  Judge Livingston stuck with the traditional view that only day matters, not time.  If the relevant event occurs on the 18th anniversary of the birth, the person is 18.

The majority's theory is unworkable.  Birth is not an instantaneous event, as all mothers and most fathers are well aware.  Births are not necessarily well documented.  Not everyone is born in a hospital.  Even determining date may be hard enough, especially for persons born in countries less developed than ours.  Determining time is harder still in such cases.

It is important to keep in mind that these sharp cut-offs are arbitrary to begin with.  We draw the age-of-majority line at 18 years not because it is magic but because it is as good a place as any once we decide we need a cutoff.  The main advantage of a sharp cut-off is simplicity, and we should therefore keep it as simple as possible.  Let us hope this decision is reversed before it causes mischief beyond the immigration laws.

News Scan

Massachusetts Court Affirms Murder Conviction:  The Supreme Judicial Court of Massachusetts today affirmed the conviction of Christopher McCowen, rejecting his claim that the jury's decision was tainted by racial bias.  McCowen, an African America trash collector, raped and fatally stabbed Christa Worthington, a white female, in 2002.  Worthington's two-year-old daughter was found unharmed clinging to her mother's body.  He claimed on appeal that several jurors made racially charged statements during deliberations, but the court found no violation of his right to due process.  Justice Roderick Ireland, who was recently appointed the court's first black chief justice, joined the court's opinion.  Denise Lavoie of the San Francisco Chronicle has more on the story here.

"A Want-to-be Vampire" Burns "V" on Teen's Forehead:
  Police in Alabama say 20-year-old Evan Francis Brown, a follower of Satanism, believes he's a vampire and is accused of burning a "V" into the forehead of another teenager.  After tricking a 17-year-old into thinking they were playing a game, Brown allegedly tied the teen up and used a heated fork or spoon to brand a "V" into his forehead.    Police also discovered cigarette burns on the teen's face and arms and further signs of beatings.  Brown is charged with second degree assault.  The San Francisco Chronicle has the story here.

Man Given Life With Possibility of Parole for Stomping Woman to Death:  Michael Kiefer of the Arizona Republic reports on the sentencing of Jose Preciliano Quintero, 18, for the stomping death of Helen Coulter, 39, in 2008.  Quintero, a gang member since the age of 14, approached Coulter and requested sexual acts from her.  When she allegedly responded with a racial epithet, Quintero dragged Coulter to a vacant lot, stripped her and stomped on her throat and face for 30-45 minutes.  Coulter's face was deformed beyond recognition.  Quintero confessed to the killing after bloody prints from his sneakers were found on Coulter's face.  Quintero was sentenced yesterday to life in prison with a possibility of parole after 25 years, plus an additional 23 and a half years for kidnapping and sexual abuse to be served thereafter.  The prosecutor elected not to seek a sentence of life without parole, in light of the pending litigation of such sentences for juveniles.

Where Will They Honeymoon?:  Emiley Morgan of the Deseret News reports Utah death row inmate Troy Kell was married yesterday.  Kell and his bride were not permitted any physical contact before, during, or after the ceremony, which took place in a small room with a physical barrier between the couple.  Kell was sent to death row for brutally stabbing a fellow inmate in a Utah state prison, where Kell was already serving a sentence of life without parole for shooting a man in the face six times.

News Scan

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Massachusetts High Court Rules on "John Doe" Indictments:  The Supreme Judicial Court of Massachusetts today affirmed the use of "John Doe" indictments to meet the statute of limitations for filing a rape charge.  A "John Doe" indictment identifies the alleged perpetrator primarily by his or her DNA profile, and can be later amended to name a suspect if authorities identify a match to the sample.  Andrew Ryan of The Boston Globe has this story.

Plea in Zoloft Killings Case:  Meg Kinnard of the AP reports Christopher Pittman pleaded guilty today to voluntary manslaughter for the shooting deaths of his grandparents nearly ten years ago.  The case gained notoriety when his defense team attempted (unsuccessfully) to the blame the killings on Pittman's use of the antidepressant drug Zoloft.  A judge this summer reversed Pittman's original murder convictions after finding his attorneys should have pursued a plea bargain.  Under the deal accepted today, Pittman could be released from prison in about 12 years.

Parole Hearing Set for Oregon Mother, Murderer:  A parole hearing is set for tomorrow for Diane Downs, convicted of shooting her three children and killing one in 1984.  Downs was previously denied parole in a 2008, after a hearing in which she maintained her innocence and spouted conspiracy theories.  (Video clips available here.)  Local prosecutor Alex Gardner is urging the parole board to again deny Downs early release, and to defer any further hearings for another decade under a new state law that extended the permitted time between hearings from two years to ten.  Gardner states that since Downs knows she will not be paroled, it is unfair to allow her to use "the parole hearings process as a means of publicizing her latest revelations and conspiracy accusations."  The AP has this story

Father and Son Face Death for Fatal Bank Bombing: 
The lives of a father-son team of bank bombers rests in the hands of an Oregon jury, reports Helen Jung of The Oregonian.  Bruce and Joshua Turnridge, described by witnesses as anti-government extremists, were convicted yesterday of aggravated murder, stemming from a failed bank robbery during which two police officers were killed and another maimed.  The same jury that convicted the Turnridges after only a few hours of deliberation must now decide whether the men should be sentenced to death, LWOP, or life with the possibility of parole after 30 years. 

Kevin Cooper, Again

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In the NYT, Nicholas Kristof has this column on the Kevin Cooper case in California.  Kristof relies entirely on the view of the case expressed in a dissenting opinion on appeal.  He completely ignores the opinion of the judge who actually heard the evidence, US District Judge Marilyn Huff.  Her lengthy opinion concludes:

Post-conviction DNA testing confirms that Petitioner committed the murders of the Ryen/Hughes victims. This Court has conducted mitochondrial DNA testing and EDTA testing, has heard testimony from forty-two witnesses, independently reviewed the evidence, including the trial and evidentiary hearing transcripts and all of the parties' submissions and arguments. Based on this careful review, the Court agrees with the post-conviction DNA results and all of the courts that came before it in this case: Petitioner is the one responsible for these brutal murders. Accordingly, the Court DENIES the successive petition for writ of habeas corpus.

Kristof is also apparently unaware that the Governator does not have the authority to commute Cooper's sentence by himself.  Many states have put constraint of some type on gubernatorial clemency, and the Illinois fiasco by subsequently convicted felon George Ryan illustrates why that is a good idea.  California's restraint is unique.  A person "twice convicted of felony" may not receive a commutation without the recommendation of a majority of the California Supreme Court.

No More Ghailani-type Trials?

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We have made no secret here of the fact that we consider President Obama's transfer of terrorist trials from military commissions to civilian courts to be a huge error.  However, we have not questioned that as commander-in-chief he did have the authority to make that decision.

Maybe not much longer, though.  AP reports:

In a setback for President Barack Obama, Democrats still controlling the House have approved legislation to prevent Khalid Sheikh Mohammed and other detainees at the military prison at Guantanamo Bay from being transferred to the U.S. for trials in criminal courts.

The Guantanamo ban was included in a huge catchall spending bill that passed the House Wednesday by a 212-206 vote. The Senate has yet to act on the legislation, which would further imperil Obama's effort to close the detention center for terrorist suspects.

The move comes after the first Guantanamo detainee to face a civilian trial, Ahmed Ghailani, was found guilty last month of just one of the hundreds of charges brought against him connected to attacks on two U.S. embassies in 1998.

Although Ghailani faces up to life in prison, Republican lawmakers pointed to the case as a reason to support military trials for the Guantanamo detainees.

Update:  David Ingram at BLT has this post and a link to the actual bill language. (The official government system, Thomas, typically does not give bill language to the public until it is too late to contact your congressman.)  Section 1116 of the bill provides:

SEC. 1116. None of the funds made available in this or any prior Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee who--
(1) is not a United States citizen or a member of the Armed Forces of the United States; and
(2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

How To Identify a Meth Lab

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I am proud to announce that I have found the foolproof method for identifying a meth lab.

Dr. Petit on Oprah's Show


Our friend Dudley Sharp tells me that Dr. William Petit, whose family was slaughtered in a case that by itself justifies retaining the death penalty, will be on the Oprah Winfrey show today:

In hours of terror, Jennifer Hawke-Petit, Dr. Petit's wife, was raped and strangled. Their two daughters, 17-year-old  Haley and 11-year-old Michaela were also murdered.. Michaela was sexually assaulted. Both girls were burned alive and died of smoke inhalation. 
Dr. Petit was beaten with a baseball bat, suffers permanent injuries, but survived. He is the sole survivor from his immediate family.
Here is Dr. Petit's victim impact statement from the first trial, wherein Steven Hayes was given the death penalty.

I have never before watched Oprah Winfrey, as I am opposed to the sentimentalization of everything.  But maybe I should make an exception today.

When Government Justice Fails

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Nick Miroff and William Booth report for the WaPo:

IN ASCENCION, MEXICO -- In this dusty farm town, an hour south of the U.S. border, more than 40 people were abducted - one a week - in the first nine months of the year.

Then, on Sept. 21, the kidnappings stopped.

That was the day a gang of kidnappers with AK-47s burst into Lolo's seafood restaurant and tried to abduct the 17-year-old cashier. A mob of enraged residents chased down two of the teenage attackers and lynched them in a cotton field on the edge of town.
As John Locke explained over three centuries ago, people in a state of nature have the right to carry out their own justice.  We give that up when we agree to live under a government of laws.  If that government fails in its first duty, then people must revert to self help. 

John Hinderacker of PowerLine has an interesting post today titled, "Why Obama Can't Shake George Bush."

John's thesis is that the current furor (mostly among liberals) about extending all the Bush tax cuts is a reflection of the fact that Obama, as President instead of candidate, has to deal with reality.  As respects Gitmo, Obama's reneging on his promise of closure reflects the reality that the terrorist threat is real, not a right wing fantasy.  John continues, quoting Politico, that the President's cave in on taxes "is the domestic counterpart of Obama's early decision not to repudiate and investigate reviled Bush national security policies such as indefinite detention and warrantless wiretapping, but to refine and embrace them."  He observes:

It remains to be seen whether, in political terms, Obama's compromises will allow him to triangulate successfully, like Bill Clinton, or will leave him in the worst of all worlds, satisfying hardly anyone. The national security case is an interesting one. Obama has defaulted on his campaign promise to close Guantanamo Bay, but not for lack of trying. One thing we learned from Wikileaks is the length to which the administration would go in order to persuade foreign governments to take prisoners off our hands--generally unsuccessfully, it appears. So the administration has pursued a policy of closure by degrees through premature release of terrorists from Gitmo.

As documentation, he quotes Tom Joscelyn in the Weekly Standard:

150 former Guantanamo detainees are either "confirmed or suspected of reengaging in terrorist or insurgent activities," according to a new intelligence assessment released by the Director of National Intelligence's office on Tuesday. In total, 598 detainees have been transferred out of U.S. custody at Guantanamo. 1 out of every 4, or 25 percent, of these former detainees is now considered a confirmed or suspected recidivist by the U.S. government.

Read John's full analysis here.



As noted Monday, this is a light week for criminal law at the US Supreme Court.  Doug Berman has a guest post at SCOTUSblog recapping the oral argument of the only criminal case on the docket, Pepper v. United States.  No argued cases were decided this week.  The Arizona immigration preemption case was argued today. Mark Sherman of AP reports the state will likely prevail, but Robert Barnes of the WaPo reports the Court is "conflicted."  The transcript is here.

Friday is a conference day.  SCOTUSblog's petitions to watch list is here.  There are two cases on ineffective assistance and plea bargaining: Missouri v. Frye, 10-444, and Lafler v. Cooper, 10-209.  There is Swarthout v. Cooke, 10-333, on the Ninth Circuit second-guessing parole decisions.  Allen v. Lawhorn is relisted for its ninth conference.  Anybody know the Court record for relistings?

Newdow Again

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From the ever-expanding Cases You Have to Look Up Just for the Name File comes Michael Newdow, et al., Petitioners v. John G. Roberts, Jr., Chief Justice of the United States, et al., No. 10-757.  Professional pain in the derriere Michael Newdow is upset about religious elements in President Obama's inauguration this time. 

The D.C. Circuit opinion by Judge Janice Brown is here. Joined by Judge Ginsburg, she rejects the claims on mootness and standing grounds.  Judge Kavanaugh would find standing and reject the claims on the merits.

The CJ's role in all this is appending the words "So help me God" to the oath at the President-elect's request.  Why does this modest role get him the lead defendant designation?  As a publicity stunt, of course, in keeping with Mr. Newdow's chosen role as a professional pain in the derriere.  The practical effect will be the CJ's recusal from the forthcoming no-dissent denial of certiorari.

Not Quite Separated Powers

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The Framers of the United States Constitution decided to separate the legislative, executive, and judicial powers to a greater degree than was true in England at the time.  The judicial branch is headed by a separate Supreme Court, not the upper house of the legislature, an example imitated by the mother country only recently.

They didn't go the whole hog, though.  They did leave with the Senate one judicial power of the House of Lords -- trial of impeachments.  This less-than-complete separation is defended in the Federalist Papers, especially in number 66 by Hamilton.

The Senate exercised this judicial power for the first time in a decade today, convicting a corrupt judge from Louisiana, Thomas Porteous. Michael Memoli has this story in the LA Times.

Conviction on the first count was unanimous.  Subsequent counts were less than unanimous, but they have no consequence.  One is enough for removal from office, and the Senate is powerless to impose any other punishment.

"Porteous, who served on the federal court for the eastern district of Louisiana, was charged with accepting cash and other favors from individuals with business before his court in order to pay gambling debts, and with lying to the Senate and FBI following his nomination to the federal bench."

The "everybody does it in Louisiana" defense apparently didn't get much traction.

News Scan

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Fire Ignited by Inmates Kills 83:  Officials say a fire was deliberately started during a fight among inmates at the San Miguel prison in Chile, fire killing 83 inmates and critically injuring 14 others.  The Chilean government said it's the worst incident yet in the country's jail system.  President Sebastian Pinera's response to the frustrated and angry relatives of the inmates was, "We cannot keep living in a prison system which is absolutely inhumane," referring to the overcrowding in the country's jails.  "We are going to speed up the process to ensure our country has a humane, dignified prison system that befits a civilized country."  The New York Times has more on the story here

Santa Gets Fired From Macy's:
  John Toomey, known as "Santa John" has been the Santa for 20 years at the Union Square Macy's in San Francisco.  This past Saturday he was fired because an adult couple complained about a joke he made.  "When I ask the older people who sit on my lap if they've been good and they say, 'Yes,' I say, 'Gee, that's too bad,' " the Santa said Monday.  "Then, if they ask why Santa is so jolly, I joke that it's because I know where all the naughty boys and girls live."  "Santa John" admits to having told the jokes for years and he's never had any complaints before.  He claims he has never said anything inappropriate to the children, he only saves his sense of humor for the adults.  Several workers and fans of "Santa John" say they're devastated and believe the elderly couple overreacted by telling on him. Kevin Fagan from the San Francisco Chronicle has more on the story here.

Prosecutor Files Charges Against California Jail Escapee:  District Attorney Bob Lee filed charges yesterday against 24-year-old Maurice Lamont Ainsworth, including attempted murder for stealing a deputy's handgun and firing it at a woman who tried to intervene during Ainsworth's escape from Dominican Hospital on November 29.  Ainsworth faked a shoulder injury and was transported from a Santa Cruz jail to the hospital for an MRI, a procedure that requires inmates to be unshackled.  After assaulting the sheriff's deputy and shooting at a bystander, Ainsworth proceeded to terrorize a preschool and point a gun at the head of a teacher watching several toddlers.   The San Francisco Chronicle has the story here.

Trend in Culture as Defense:  Samantha Henry of the AP reports on the increasing trend to use cultural norms as a criminal defense, a tactic that recently proved unsuccessful in the human trafficking case against Togolese immigrant Akouavi Kpade Afolabi.  Afolabi, convicted of bringing to the U.S. at least 20 girls between the ages of 10 and 19 to work in salons for free, attempted to argue her behavior constituted "protective measures" in African culture.  Afolabi's case is just one example of "cultural defenses," by which defense attorneys argue cultural upbringing is probative of a defendant's culpability.  Ashby Jones has this post on the article at WSJ Law Blog.

TexCCA Halts Fine's Circus, For Now

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AP reports from Houston:

An unusual court hearing on the constitutionality of the death penalty in Texas was put on hold Tuesday after the state's highest criminal court granted a request by prosecutors to stop it.

The Texas Court of Criminal Appeals ordered that the hearing be temporarily halted so prosecutors and defense attorneys can file motions on whether the legal proceeding should be allowed to continue.

*                                  *                              *

The appeals court gave both sides 15 days to file their legal briefs. Loper said he doesn't know how long the hearing could remain on hold.

On Monday, the prosecutor's office had filed a motion with the appeals court, asking it to reconsider its decision from last month to not stop the hearing. In their motion, prosecutors reiterated their arguments that the claims being made by Greens' attorneys were well-settled case law and that Fine didn't have the authority to prevent the state from seeking the death penalty in the case.

Previous post is here.  Brian Rogers has this story in the Houston Chronicle.

The Ivy League, Leading the Way

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A few weeks ago, I noted that I'm teaching law at Georgetown University this semester.  It turns out that education is not the only thing going on on campus, see id.  Still, for as progressive as Georgetown is, the Ivy League continues to lead the way.  In all sorts of stuff.

No wonder I keep getting invited by students to do legalization debates.

House Chairmen

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AP reports the Republican steering committee's recommendations for House committee chairmen in the 112th Congress.  As expected, Lamar Smith of Texas will chair the committee most important to criminal law, Judiciary.  Peter King of New York will chair Homeland Security. Darrell Issa of California will chair Oversight and Government Reform.

News Scan

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Date Set for Second Trial in Connecticut Home Invasion:  Randall Beach of the New Haven Register (CT) reports a February 22, 2011 trial date has been set for Joshua Komisarjevsky, the second alleged perpetrator of the Petit family slayings in Connecticut.  Given the publicity of the trial and sentencing for Steven Hayes, however, jury selection could take months.  Hayes's defense team had attempted to portray Komisarkjevsky as the real monster, offering as evidence some of Komisarjevsky's disturbing journal entries describing the night of the killings (which can be viewed via the New Haven Register here).

Full Supply of Lethal Injection Drugs in California:  In response to a public records request from the ACLU, California corrections officials today disclosed they have imported enough to sodium thiopental from Arizona and Britain to execute 175 death row inmates.  The source of the drugs was submitted as part of a report to U.S. District Judge Jeremy Fogel, who is expected to rule early next year whether California's revised executions procedures are constitutional.  Read the Los Angeles Times's story here.

Ninth Circuit Lifts Injunction on Revised California Parole Standards:  The Ninth Circuit yesterday cleared the way for California's Prop. 9, an initiative that significantly extended the time period prisoners must wait for deferred parole suitability hearings.  Earlier this year, a federal district judge halted enforcement of the law, finding that a constitutional challenge to the law by a group of life-term inmates was likely to succeed.  The Ninth Circuit concluded inmates likely did not have a valid ex post facto claim and reversed the district judge's ruling.  Denny Walsh of The Sacramento Bee has this story.

Looking for a New Career?:  How about pot delivery?  Garvin Thomas of NBC Bay Area reports on medical marijuana delivery services in California.  Thomas spent the day with one such delivery man, Chris Rynearson of MedEx in San Jose, who Thomas said packs his delivery suitcase with 1/8 ounce containers of several types of marijuana, cannabis-based lotions, rolling papers, and lighters.  Rynearson said of his job, "This is something that's normal.  It doesn't seem abnormal to me."

Justice Stevens and the Press:  At Accuracy in Media, Lester Jackson has this critical review of press coverage of Justice Stevens, with emphasis on the death penalty issue.

"Defense Lawyers as a Group"


Kent noted in the preceding entry that he does not join with those who bash "defense lawyers as a group.  For the most part, they are responsible professionals who perform an important function in our system."

I agree with that, but there is more to say, sufficiently so that I think it's worth a separate entry.

Out the outset, I want to note that, to an extent, Kent has understated the case.  In some instances, defense lawyers are not merely responsible but heroic.  One of the most obvious recent examples was the execrable Duke lacrosse case, in which prosecutor Mike Nifong brought felony rape charges against three white lacrosse players knowing or having reason to know that the whole "rape" was a fabrication.  He brought the charges for one reason only, to wit, that he was in a close and contested primary campaign in heavily black Durham, NC, and wanted to win racial brownie points with the Democratic electorate.  Risking the venomous wrath of the Duke PC community, which is most of the campus, the players' defense counsel showed that the prosecution was a hoax.  This is a shining example of criminal defense as a national treasure. 

Nor is it a lone example.  The defense bar at its best can be a sentinel against corrupt, factually baseless and/or politically rigged or motivated prosecutions.  Unfortunately, such instances are not representative, as I shall now attempt to explain.   

An Utterly Repugnant Statement

I generally don't join with those who bash defense lawyers as a group.  For the most part, they are responsible professionals who perform an important function in our system.  When it comes to the death penalty, though, some on the defense side seem to come completely unhinged.  AP has this story on the sentencing of Steven Hayes in Connecticut.  Our friend Dudley Sharp has this reaction to defense counsel's remarks:

Defense attorney Thomas Ullmann defended  Steven Hayes in the capital murder trial of the three rape/torture/murders of Jennifer Hawke-Petit, who was raped and strangled to death, along with her two daughters, 17-year-old  Haley and 11-year-old Michaela. Michaela was sexually assaulted. Both girls were burned alive and died of smoke inhalation.  Dr. Bill Petit was beaten with a baseball bat, suffers permanent injuries, but survived. He is the sole survivor from his immediate family.
When the day came for sentencing Hayes to death, what did Ullman say?
"Today when the court sentences Steven Hayes to death everyone becomes a killer. We all become Steven Hayes." 

Ullman said that with Bill Petit and  the extended Hawke/Petit family, loved ones and friends in the courtroom. Ullman called all of them Steven Hayes, as well as all others who find the death penalty a just and appropriate punishment for horrendous crimes.
The moral decay of Ullman's statement is hard to fathom, as is the profound cruelty of when and where he voiced it.
Even Steven Hayes voiced knowing the moral differences between guilty murderer and innocent victims, the punishment of the guilty and the violation of the innocent.

Extreme Makeover: Criminal Court Edition

DitullioBeforeAfter.jpgJohn Schwartz has this story in the NYT with the above headline:

CLEARWATER, Fla. -- When John Ditullio goes on trial on Monday, jurors will not see the large swastika tattooed on his neck. Or the crude insult tattooed on the other side of his neck. Or any of the other markings he has acquired since being jailed on charges related to a double stabbing that wounded a woman and killed a teenager in 2006.

Mr. Ditullio's lawyer successfully argued that the tattoos could be distracting or prejudicial to the jurors, who under the law are supposed to consider only the facts presented to them.
*                             *                        *
The court approved the judicial equivalent of an extreme makeover, paying $125 a day for the services of a cosmetologist to cover up the tattoos that Mr. Ditullio has gotten since his arrest.

Boycotting a Boycott

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Amazon Web Services kicked off WikiLeaks last week. This statement explains that WikiLeaks was violating the terms of service, including a requirement "you represent and warrant ... that use of the content you supply ... will not cause injury to any person or entity."  It's pretty obvious that WikiLeaks violated that term on a Guinness Book of Records scale.  So it was perfectly correct and proper for Amazon to bounce them, and persons of sense commended them for doing so.  See, e.g., Sen. Joe Lieberman.

Well, the loony lefties at actually think that Amazon did something wrong.  Really, I'm not making that up.  They have this petition to boycott Amazon until it knowingly becomes an accessory to espionage.

I, for one, am boycotting the boycott.  I placed an order with Amazon yesterday.

A Slightly Less Pitiful Giant

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WikiLeaks mastermind Julian Assange is now in custody in the UK and has been denied bail.  If the USA had any hand in this salutary development, I have been unable to find out about it.

Still, there is a glimmer of consciousness in Washington.  Senator Dianne Feinstein (D-CA) has figured out, even if Eric Holder has not, that Assange can be prosecuted for espionage.  Her op-ed in the Wall Street Journal is here.  It gets right to the point:

When WikiLeaks founder Julian Assange released his latest document trove--more than 250,000 secret State Department cables--he intentionally harmed the U.S. government. The release of these documents damages our national interests and puts innocent lives at risk. He should be vigorously prosecuted for espionage.

The law Mr. Assange continues to violate is the Espionage Act of 1917. That law makes it a felony for an unauthorized person to possess or transmit "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."

The Espionage Act also makes it a felony to fail to return such materials to the U.S. government. Importantly, the courts have held that "information relating to the national defense" applies to both classified and unclassified material. Each violation is punishable by up to 10 years in prison.

The specific statutory language is in 18 U.S.C. §793(e), which provides:  

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it...Shall be fined under this title or imprisoned not more than ten years, or both.

Lies, Damn Lies, and the New York Times


It's always hard, and risky, to say the New York Times has surpassed itself in mendacity and foolishness, but today's editorial has to be a candidate.

The Times says, picking through the oral argument in Plata v. Schwarzenegger, that less imprisonment will mean, as a "growing body" of unnamed "experts" is about to conclude, less crime.

If I were a smartypants, I would take the Times at its word and recommend that we empty the prisons entirely, so we can have no crime at all.  But, preferring to try to at least simulate Kent's seriousness, I will just say, as I did in evaluating this on Doug Berman's SL&P, that the editorial is a pack of lies.

As the prison population has grown over roughly the last two decades, the crime rate has fallen by more than 40%. And it's not all that hard to figure out. When you take off the street the people who are committing crime, less crime gets committed.

The Times, however, will have none of this rube-like simplemindedness, and sniffs that imprisonment has been a "failure."

Not exactly.  If we want to look at what "failure" actually means, we don't have to look far. In the late 60's and 70's, in the heyday of the liberal rehabilitation model the "experts" want to bring back, the crime rate doubled. That is what failure looks like -- not that the NYT is about to tell us.

The Pitiful, Helpless Giant

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CBS News reports tonight that WikiLeaks has possession of a secret State Department cable that, as the broadcast puts it, is a virtual "to do" list for Osama bin Laden.  It lists numerous choke points around the world that, if attacked, could massively harm our national security.

The United States is, or until quite recently was, a great power.  For such a power to allow these disclosures to continue is stupefying.

One would think that our strongest law enforcement agency would take action.  (Actually, in a sensible world, one would think that it would have taken action months ago when WikiLeaks started down this path).  And action, if you want to call it that, is underway.  Eric Holder held a press conference.  WikiLeaks must be trembling.

It's impossible to summarize in a small space the damage WikiLeaks is causing.  It needs to be put out of business, pronto.  The minimum we should expect from the Department of Justice (or the Department of Defense if that's what is needed) is that this menace be brought to a stop.  But we can't get even a hint that that might happen.  What we actually get is the usual  --  mumbling and feckless posturing.

"Hope and change."  Righto.



News Scan

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More on Justice Stevens's Essay:  Boston Globe columnist Jeff Jacoby has this piece on Justice Stevens's essay on capital punishment.  In response to Justice Stevens's belief that death sentences are more common when the victim is white, which Stevens likened to a "haunting reminder of once-prevalent Southern lynchings," Jacoby writes: "To imply that there is a whiff of the lynch mob in [Americans'] view may make a good story for the Sunday paper.  It doesn't make a convincing argument."

Convicted Murderer Challenges DNA Sample:  The Missouri Supreme Court heard argument last week in the case of death row inmate Gregory Bowman, reports Beth Hundsdorfer of the Bellville News-Democrat (IL).  In 2002, Bowman volunteered a blood sample to clear his name in the 1978 murders of two young women in Illinois.  Police later sent his DNA profile to a Missouri cold case squad, who were able to link Bowman to the unsolved sexual assault and murder of 17-year-old Velda Joy Rumfelt.  Bowman was convicted and sentenced to death for Rumfelt's murder last year.  Now, Bowman claims the DNA evidence should not have been considered in the Rumfelt case because while he volunteered the sample to the Illinois police, he did not consent to its transmission to other law enforcement agencies.

Video Tape Challenge in Child Uzi Death:  Dave Collins of the AP reports a Massachusetts judge today heard argument over the admissibility of a video in the case against former police Chief Edward Fluery.  The video shows an 8-year-old boy accidentally shooting himself in the head with an Uzi at a gun show, as well as the reactions of both the boy and his father.  Fleury, whose company co-sponsored the gun show, is charged with involuntary manslaughter and furnishing a machine gun to minors.  His attorney argued the tape should not be shown because the fact of the fatal shooting is not in dispute, and the horrific nature of the video is likely to inflame the jury.  The prosecution countered the video is important evidence because it displays the recklessness of those who ran the event.
*Update:  The judge ruled the video can be shown to the jury, as reported by the AP.

ICE Deportation Figures May Be Skewed:  Andrew Becker of the Center for Investigative Reporting has this article on ICE's reported "record number of deportations" this year, which totals 19,000 more than the last fiscal year.  Becker opines creative tactics might be behind this figure, such as a more flexible approach to "voluntary returns" (i.e. allowing illegal immigrants, who normally would face an immigration judge, to leave the country voluntarily) and a five-week extension of a Mexican repatriation program.  ICE officials deny the use of any unusual practices in reaching the number.
The Texas death penalty case of John Edward Green is getting a lot of press today.  That is not Green at the left, though, as you might think.  That is the judge, Kevin Fine.  (AP photo by Nick de la Torre)

According to this AP story by Juan Lozano, the prosecution has decided to "stand mute" while the defense side trashes the Texas death penalty with all the usual innocence claims.  Whether that is good strategy for their individual case I'm not sure.  I expect it will be bad public relations overall, though.  The cases they will make about Todd Willingham and Claude Jones are quite rebuttable, as we have described in this blog, but the rebuttal will not be there.

It is not hard to understand that the prosecution believes there is no way to get a fair hearing from Judge Fine and their only chance is on appeal.  This WSJ article by Ana Campoy notes, "The main impact the case will have in Texas and beyond may be on public opinion, which the defense hopes will help drive changes in the way the death penalty is applied."  In other words, it is a publicity stunt, and the publicity will be worse for lack of a rebuttal.

George Will on Judicial Activism

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Last January, I criticized George Will on this blog for "muddi[ng] the linguistic waters by using the term 'judicial activism' to mean something entirely different from what that term has been understood to mean for many years."

Yesterday, Will had this column on the same subject as the January column, judicial review of health care mandates.  This time, however, he takes his linguistic cue from Texas Supreme Court Justice Don Willett, who wrote a concurring opinion in a case striking down a statute for violating a constitutional prohibition on retroactivity.

"There is," Willett explains, "a profound difference between an activist judge and an engaged judge." The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means.
Better.  Much better.

[CJLF takes no position on the health care question, BTW.]

This Week at the Supreme Court

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This is an argument week at the US Supreme Court, but the docket is light on criminal law.  The only criminal case on the oral argument calendar is a minor federal sentencing matter, Pepper v. United States.  On Wednesday, a controversial case from Arizona on state regulation of immigration matters, Chamber of Commerce v. Whiting, involves preemption issues that may impact criminal cases.

Today, the Court will announce the orders list from Friday's conference, listing cases the Court will take up or turn down.  Opinions may be announced this week, probably Tuesday or Wednesday.  This early in the term, decisions are usually on the less controversial cases.

Update:  The orders list is here.  The Court took up two civil cases.  Lyle Denniston covers them at SCOTUSblog.  Justice Sotomayor, joined by Justice Ginsburg, dissents from denial of certiorari in an Arkansas habeas case, Williams v. Hobbs, No. 09-10382.  John Elwood notes the relists at VC, including Ryan v. Schad and Allen v. Lawhorn.
US Supreme Court Justice John Paul Stevens (Ret.) is the principal architect of today's constitutional jurisprudence of capital sentencing.  Looking back over the decisions from Gregg v. Georgia, 428 U.S. 153 (1976) to last term, Justice Stevens was on the winning side of more of the major battles than any other justice.  So it is exceedingly odd that he has written this article in the New York Review of Books bashing a body of law that is largely his own creation.

The article is a review of a book by David Garland, titled Peculiar Institution: America's Death Penalty in an Age of Abolition.  From the title alone, we know where Garland is coming from.  He asks why America has the death penalty when Europe has abandoned it.  The short answer is that our government is more democratic than theirs, but Garland manages to spin that in ways that make it sound like democracy is a bad thing.  I'll leave refuting Garland for another day.

For much of the article, Justice Stevens makes the claim that the jurisprudence of the death penalty has moved in the prosecution's favor as a result of changes in the membership of the Supreme Court, and he speculates how Justice Stewart would have voted on various cases decided after he retired.  This is where the review gets most peculiar both for what he says and what he leaves out.  To understand how truly peculiar this is, it is important to have some background on the overall evolution of "the fog of confusion that is [the Supreme Court's] annually improvised Eighth Amendment, 'death is different' jurisprudence," Morgan v. Illinois, 504 U.S. 719, 751 (1992) (Scalia, J., dissenting), and Justice Stevens' role in creating it.

City Crime Rankings

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"Criminologists say an annual ranking of cities by crime rates is guilty of statistical offenses."

WSJ Numbers Guy Carl Bialik has this story and this blog post on criticisms of CQ Press's City Crime Rankings.

For just one example, suppose two metropolitan areas have similar crime rates and profiles, with the core city having a higher crime rate than the suburban collar (a very common profile).  Suppose the city limits are tightly drawn in one area to include only downtown and a few old neighborhoods nearby and widely drawn in the other to include the suburban ring.  Then the statistics will show the divided area to have one high-crime jurisdiction and another low-crime jurisdiction, while the consolidated area has one medium-crime jurisdiction.  But criminals don't heed city limits signs, so the risk of being victimized is the same in both areas.

Any time someone publishes a ranking list, whether it be crime, schools, or whatever, it seems to get more attention than it deserves.

Simplistic statistics go beyond annoying into dangerous when people use them to support arguments over policy.  A common but obvious fallacy is to take the statistic that states that have abolished the death penalty have lower murder rates, on average, than those that have not and use that statistic to claim it disproves deterrence.  Even a retired Supreme Court justice, who really should know better, fell into this trap recently.

Eric Holder, Working for Us All...


.......on soccer.  And no, that is not a typo.  The Attorney General of the United States took a taxpayer-financed trip to Switzerland to try to bring the World Cup competition to the USA.

As is becoming typical with him, the effort was a flop.  Instead, the competition (for 2022) is headed for Qatar, where women have to walk around in a tent-like wardrobe called a burka and soccer is almost unknown; the favorite sports are falconry and camel racing.

DOJ put out this statement:  "The president asked the attorney general to attend to show the high-level commitment of our government to secure the World Cup and to make clear that the United States has the capacity to host a World Cup that is both secure and welcoming to the people of the world."

Now let's see.  Mr. Holder can't quite figure out what to do about WikiLeaks' spilling diplomatic and military secrets all over the world; we still haven't decided where to try Kahlid Sheikh Mohammed; we're going to continue to give Miranda warnings to terrorists, or maybe not; and drug cartels are mutilating and killing dozens of people within shouting distance of our border; etc., et al.  Still, we need the AG to wage the (losing) fight against holding soccer matches in Qatar.

Your tax dollars at work.


After the "Exoneration" Comes....


......the conviction.  For the same murder, and via a guilty plea, no less.  This gem was courtesy of the Innocence Project, which now might want to consider re-naming itself the Not All That Innocent Project.

Here are the first three paragraphs of today's AP story:

A Texas man who spent 21 years in prison for murder pleaded guilty to the same crime on Friday, three years after he was freed from prison and granted a new trial by DNA evidence that showed his original conviction was tainted.

Clay Chabot was sentenced to time served under an agreement that allows prosecutors to claim a conviction and the defendant to go home. He was taken into custody by sheriff's deputies but was expected to be processed out quickly.

The 51-year-old pleaded guilty to murdering Galua Crosby, who was found in her Garland home tied up and gagged with three gunshot wounds to the head. Prosecutors portrayed it as a drug deal gone bad.

The whole story is here.

Moral of story:  Abolitionists were willing to lie for at least a decade about Roger Keith Coleman, and some things never change.

The Washington Supreme Court Election

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Commenter notablogger tips us to this op-ed by outgoing Washington Supreme Court Justice Richard Sanders.  He takes the Seattle Times to task for mischaracterizing his statements about race and incarceration rates and blames that for his election loss.

Notablogger notes, "The irony is that he's probably right.  For all the reasons he should have been tossed off the court long ago, he finally gets fired for the one accurate thing he's ever said about the criminal justice system, i.e., that people are in prison because they are guilty."

News Scan

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State Cause of Action to Challenge Method of Execution?:  The Ohio Supreme Court yesterday ruled that Ohio law does not provide a vehicle for death row inmates to challenge the state's method of execution.  The court found that the Ohio legislature had not yet created a cause of action for such a challenge, and that death row inmates had the option of proceeding under the federal civil rights statute.  Reginald Fields of The Plain Dealer (OH) has this story

Spammer Arraigned in Federal Court:  Dinesh Ramde of the AP reports 23-year-old Oleg Nikolaenko of Russia was arraigned today in a Wisconsin federal court, pleading not guilty to charges of violating a federal anti-spam act.  Prosecutors claim Nikolaenko ran a network that hacked into computers and sent out billions of emails.  On some days, one out of every three unwanted emails in the world could be traced to this network, according to some experts.

New California Chief Justice Sworn In:  The Sacramento Bee reports 51-year-old Tani Cantil-Sakauye was sworn in today as the new chief justice of the California Supreme Court.  Cantil-Sakauye previously served as deputy legal affairs secretary to former Governor George Deukmejian, a deputy district attorney in Sacramento County, and a Municipal and Superior Court judge.  At the swearing in, the new chief justice conceded that tough times are ahead for the state, but that she was happily dedicated to the "monumental, indescribable challenge ahead."

Prisoners and Cell Phones

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Guess who has a cell phone now?  Charles Manson.  Well, he did until he was caught recently, according to this story from the L.A. Times.

Manson was justly sentenced to death for his crimes.  His sentence, along with all the others on California's death row, was overturned when the California Supreme Court decided that the death penalty violated the California Constitution.  The state high court was untroubled by the inconvenient truth that the constitutional convention had expressly decided the precise question the other way.  (A few months later, the U.S. Supreme Court wiped out the death sentences in the rest of the country, but on narrower grounds.)  The people of California then had to amend the constitution to make it say again what it said in the first place.

For the worst murderers, life in prison is just not enough punishment.

Judicial Nominees "Stuck"

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Ben Pershing has this post in the WaPo's D.C. Wire blog.  The post focuses on D.C. District Court nominees, but the assessment of "an end-of-session Senate logjam" applies across the board.

A logjam at this point is a good thing, although it may cause a few months delay for some good nominees.  Qualified and uncontroversial nominees should be confirmed early in the 112th Congress.  With 47 Republican Senators, though, it should be possible to block the bad nominations, especially President Obama's appalling plan to move the out-in-left-field Ninth Circuit even further out of the judicial mainstream. See, e.g., here.

For better or worse, the Democrats established the practice of routinely filibustering nominees based on ideological disagreement during the Bush Administration. Republicans need not and should not unilaterally disarm and give the present Administration carte blanche to fill the courts with judicial activists.  The judiciary tilts toward left-wing activism in the best of circumstances, and to have an asymmetrical standard for confirmations tilting in the same direction would make a bad situation worse.

The safest course is to just keep judicial nominations entirely out of the lame duck session and take them up first thing in January.

News Scan

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Victim, Killer Speak at Connecticut Sentencing:  Connecticut Judge Jon Blue today formally sentenced triple-murderer Steven Hayes to death, reports AP writer John Christoffersen.  Hayes addressed the court, claiming he was "tormented" by his actions and that death "will be a welcome relief."  Dr. Petit, fighting back tears, admitted to suffering flashbacks and suicidal thoughts, and described his immeasurable loss: "I lost my entire family.  I lost the records of our shared lives together due to the fire.  Thus I lost my past and my future."  While handing down the sentence, Judge Blue addressed Hayes:  "This is a terrible sentence, but is, in truth, a sentence you wrote for yourself in flames."

Texas Trial Judge to Hear Death Penalty Challenge:  Brandi Grissom of The Texas Tribune reports trial court Judge Kevin Fine will hear argument on Monday on whether the risk of executing an innocent person renders the death penalty unconstitutional.  The hearing was set in the case of John Edward Green, who is charged with a 2008 murder and faces the death penalty if convicted.  His defense team is pointing to the cases of Cameron Todd Willingham and Claude Jones, claiming the existence of a systemic flaw in the system.  But prosecutors are arguing they should not have to prove the innocence or guilt of defendants in other capital cases, and that in any event, a ruling on the constitutionality of a death sentence is inappropriate because Green has not been convicted.

Inmate Tax Fraud:  Inmates claimed $130 million in fraudulent tax returns by March of this year - a 37 percent increase since 2004.  The issue of inmates filing false returns was discovered in 2005 by the Treasury Inspector General for Tax Administration, prompting increased inspection and regulation of tax returns filed behind bars.  One official from the TIGTA reports these fraudulent tax returns are a "major problem," but that the IRS "is making very good progress."  The increased surveillance may account for the increase in fraudulent returns caught.  Ed O'Keefe of The Washington Post has this story.

A Plea from a Police Officer:  After 27-year-old Riverside Police Officer Ryan Bonaminio was fatally shot in November, and a parolee arrested for the killing shortly thereafter, LAPD Officer Joseph D. Marx wrote this letter (appearing in The Desert Sun (CA)) to the California parole director.  Marx highlighted Bonaminio's accomplished life, including his two tours of duty in Iraq, and asked the director to remember several things when deciding whether to grant an inmate early release: "Remember the victims they created and the reason they were sentenced to prison in the first place.  Remember that more than 70 percent of the convicts that appear in front of your board will ignore the warnings to live a law-abiding life, and will re-offend. . . Most importantly, remember Ryan and the dozens of other police officers who have been murdered in the line of duty by convicts who were granted parole by your board."

The Insanity Defense

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The insanity defense has raised its head again in the federal trial Brian David Mitchell for kidnapping Elizabeth Smart.  Jennifer Dobner reports for AP:

A clinical psychologist for a federal prison hospital says a former street preacher charged in the abduction of Elizabeth Smart believes he will fight and defeat the anti-Christ.

Dr. Richart DeMier testified Thursday that he diagnosed defendant Brian David Mitchell as a paranoid schizophrenic after being ordered by a court to evaluate him in 2008.
During earlier testimony, 

Kidnap victim Elizabeth Smart stormed from a Utah courtroom Wednesday as a psychiatrist testified that her alleged attacker had been motivated by a desire to have children and create a new race in an imaginary Zion.
It must indeed be very difficult for Miss Smart to listen to all this. Her fortitude during this trial is quite admirable, and it is not surprising that it gets too much to take at some point.

Congress cut back on the insanity defense after the John Hinckley fiasco.  18 U.S.C. §17, enacted in 1984, provides:
And now, for something completely different.

We have seen a long line, in state after state, of death penalty study groups stacked with and controlled by the anti-DP crowd.  In California, for example, the commission's first act was to hire one of the most strident anti-DP partisans in the state to be its executive director.  The result was a predictably worthless report.

When I spoke to the National Conference of State Legislatures last summer, an opponent from New Hampshire told me their commission actually had a majority of supporters.  I was skeptical of that, as opponents often put forward faux supporters to create an illusion of balance.

Today we have news reports that the New Hampshire Commission has voted 12-10 to retain the death penalty but not expand it.  Maddie Hanna has this story in the Concord Monitor.

Unfortunately, as of this writing the report itself is not on the Commission's web site, and I am reluctant to say much without reading the actual report.

I agree with the proposition that most states have set their death penalty eligibility criteria too wide, relying on the discretion of prosecutors and juries to narrow the scope.  New Hampshire, however, has gone to the opposite extreme and legality excluded cases that cry out for the death penalty.  A careful, sober expansion should be considered by the Legislature next year.

Just as importantly, nearly all states need procedural reforms so that penalty phase claims are examined and finally resolved expeditiously, with repeated reviews reserved only for claims which would undermine confidence in the guilt verdict.

News Scan

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Pennsylvania Death Row Inmate's State of Mind Revisited:  The Pennsylvania Supreme Court faced the question yesterday of whether death row inmate George Banks's on-again, off-again understanding of his sentence is sufficient to spare him from execution.  Banks's attorney argued he lives in a permanent delusional state, but the state countered he has shown times of complete rationality.  Banks has already undergone three competency hearings; a county judge twice deemed him incompetent but was overturned on appeal and a similar ruling earlier this year prompted the state's most recent appeal.  Banks was sentenced to death for gunning down 13 people in 1982, and his case previously made it all the way to the U.S. Supreme Court.  (Read CJLF's brief here.)  Terrie Morgan-Besecker of The Times Leader (PA) has this story.

Victim's Family Urges Death Sentence:  AP writer Jay Reeves reports victims' family members are fighting for a death sentence for Scott Lamar Abbott, convicted of murdering his ex-girlfriend and three others during an early morning slashing frenzy in an Alabama home.  A jury recommended a life sentence, but the family members collected more than 4,000 petitions asking the judge to instead impose a death sentence.  Abbott is also facing attempted murder charges for attacking a jail official.

Don't Add Him as a Friend:  ABC News reports on the resulting outrage after the discovery of a Facebook page for Oklahoma inmate James Walker, which he maintained from behind bars using a Blackberry.  Walker was sentenced to 30 years after he and a cohort shot to death Sheriff Dwight Woodrell Jr., reportedly singing "I Shot the Sheriff" after the killing.  Walker's Facebook page included updates about prison life, communications with outside friends, and photographs displaying tattoos, marijuana, and shanks.  The mother of slain Officer Woodrell stated Walker doesn't deserve to be alive, let along update his Facebook status.

The Consequences of Excessive Leniency

Aside from the death penalty, there is probably no criminal sentencing law in the United States more reviled by those who fancy themselves "enlightened" than California's three strikes law.  The Los Angeles Times today has this article by Richard Winton and Jack Leonard, headlined "Multiple murder suspect had benefited from three-strikes leniency."

To hear him tell his story, John Wesley Ewell was the victim of an overly harsh criminal justice system.

The South Los Angeles hairstylist complained to journalists over the last decade about the unfairness of the state's tough three-strikes law, saying he lived in fear that even a small offense would land him back in prison for life.

He even appeared on the "The Montel Williams Show" to argue the case against three strikes. A caption that flashed on the screen when Ewell spoke read: "Afraid to leave his house because he has 2 'Strikes.'"

But Ewell is now charged with murdering four people in a series of home invasion robberies that terrorized the South Bay this fall. On Tuesday, he pleaded not guilty during a brief appearance at the Airport Courthouse.

Far from embodying the severity of the justice system, Ewell benefited from its lenience over the last 16 years, according to a Times review of court records and interviews.

Ewell has a lengthy criminal history that includes two robbery convictions from the 1980s. Nevertheless, the Los Angeles County district attorney's office decided on four occasions against seeking to use the full weight of the three-strikes law when he was charged with new crimes.

And this year, after Ewell was arrested three times for allegedly stealing from Home Depot stores, a judge agreed to delay sending Ewell to prison so he could take care of some medical problems.

It was during that delay, authorities say, that Ewell robbed three homes and killed the victims.

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