January 2011 Archives

New Hampshire May Expand Death Penalty to Home Invasion Murders:  Norma Love of the Associated Press reports New Hampshire's Governor John Lynch and House Speaker William O'Brien are supporting legislation in making fatal home invasions punishable by death.  The proposed bill is named in honor of Kimberly Cates, who was killed during the course of a home invasion.  A 19-year-old man convicted of her murder was not eligible for the death penalty, because the crime did not fit into any of the eligible murders under New Hampshire law, one of the narrowest capital punishment statutes in the country. 

Connecticut to Upgrade Criminal Justice System Data:  Mary E. O'Leary of the New Haven Register reports that Connecticut Governor Dannel P. Malloy is proposing changes to allow easier access and communication between law enforcement agencies, in light of the the 2007 Petit family slayings.  Joshua Komisarjevsky, accused of participating in the brutal home invasion, was granted parole months before the killings after serving less than half of his sentence for 19 burglaries.  Because of accessibility issues, the state parole board did not consider Komisarjevsky's sentencing transcript, in which a judge referred to him as a "calculated, cold-blooded predator."  Previous efforts to update the state data retrieval system were unsuccessful due to funding issues.

New Mexico Governor to Propose Expansion of DNA Collection:  New Mexico Governor Susana Martinez will outline a bill tomorrow expanding "Katie's Bill," the state's DNA collection law, to mandate samples from all felony arrestees.  Twelve other states currently require DNA testing for every felony arrest, but have been met with legal challenges on the grounds the collection presumes guilt and violates privacy rights.  Milan Simonich of the Las Cruces Sun-News (NM) has this story.

Expunged Conviction Not Grounds for Libel Claim:  The New Jersey Supreme Court decided today that disclosure of a person's expunged conviction does not serve a basis for a libel claim, reports Chris Megerian of The Star-Ledger (NJ).  The court reasoned that "the traditional recognized defense of truth to a defamation action was not lost in this case because of the existence of an expungement order."   

This AP report from Monroe, Washington provides yet another grim reminder that a life sentence is not 100% effective at incapacitating a convict from committing further crimes.

A corrections officer who had raised concerns about being the sole guard in the chapel of a Washington state prison was strangled there over the weekend, and an inmate serving a life sentence is the primary suspect, authorities said Sunday.

Jayme Biendl, 34, was found dead Saturday night in the chapel at Monroe Correctional Complex about 30 miles northeast of Seattle, Department of Corrections spokesman Chad Lewis said. She had been strangled with a microphone cord.

I have been covering, episodically, the Justice Department's handling of the New Black Panther case.  Readers will recall that the case involves two members of the New Black Panther Party, both wearing mufti, and one menacingly holding a billy club, acting as  --  and I use this term advisedly  --  "poll watchers" outside a Philadelphia polling station.  A potential criminal case of voter intimidation was dropped like a hot rock by the Department's Civil Rights Division under Eric Holder's watch, even though the New Black Panther Party had already lost (by default judgment) a related civil case brought by the prior administration.

Despite stonewalling by the Department, the Civil Rights Commission undertook a study of whether, in fact, Holder's DOJ has adopted a policy of refusing to pursue complaints by whites against minority defendants (in other words, to use blunt language, a policy of anti-white bigotry).

Last week the Commission issued its report.  It is not happy reading.  Commissioner Todd Gaziano summarized it this way:

After a year of DOJ's intransigence and baseless refusals to comply with our subpoenas, two Department attorneys bravely defied orders to testify before the Commission: the former Civil Rights Division Voting Section chief, Christopher Coates, and a lead trial attorney in the NBPP case, J. Christian Adams. Their testimony and the sworn affidavits from former DOJ staff portray a pervasive culture of hostility to race-neutral enforcement of civil rights laws in the Civil Rights Division. The detailed allegations include: a former section chief who doctored a memo to try to prevent a meritorious case from being filed against black defendants, racially offensive statements by several supervisors and staff, and repeated instances of harassment and intimidation directed against anyone willing to work on lawsuits against minority defendants.

The whole sorry, and alarming, story is covered here by my friend John Hinderaker of Powerline. 

The only hope is that new Chairmen Lamar Smith of the House Judiciary Committee, and Darrell Issa of Government Oversight, will take up a full investigation.  If anti-white racism permeates the Civil Rights Division  --  of all things  --  we need to know.  

 

AP reports:

New Mexico's new governor, a longtime prosecutor in Las Cruces, said some crimes deserve the ultimate punishment, and she wants the death penalty back on the state's books.

"When a monster rapes and murders a child or a criminal kills a police officer, the death penalty should be an option for the jury," Gov. Susana Martinez, a Republican, said in her State of the State address to open the 2011 Legislature earlier this month.

Sarah Avery reports for McClatchy Newspapers, "A toddler's inability to exert self-control appears to predict trouble later in life with substance abuse, crime and money mismanagement, reports a team of researchers that include Duke University psychologists."

The psychologists recommend early intervention to improve a child's self-control.

In a simpler age, that was called disciplining your kids.

BTW, the lead researcher is Terrie Moffitt, whose work is cited extensively in CJLF's brief in Graham v. Florida.  Moffitt's work shows that juvenile offenders should not be lumped together in one mass.  Some offend briefly in adolescence and then desist.  Others are life-course offenders.  The Court majority chose to ignore this work, although it is mentioned in Justice Thomas's dissent.

The full article is here.

Debra Saunders, resident person of sense on the SF Chron's opinion pages, has this column on the recent string of unanimous reversals of the Ninth Circuit by the Supreme Court.  She covers Premo v. Moore, Harrington v. Richter, and Swarthout v. Cooke, previously discussed on this blog, and also a civil case, Chase Bank v. McCoy. 

Four times this month the U.S. Supreme Court has slapped down the Ninth Circuit Court of Appeals. Four times the Big Bench unanimously reversed Ninth U.S. Circuit Court of Appeals decisions. Unanimous is a big deal. It means that there's no left-right political divide in the Big Bench's findings - just right on the law and wrong on the law.

*                          *                        *

It's odd. When there is an opening on the Supreme Court, the Senate examines in detail whether nominees have the proper respect for past Supreme Court rulings. Sen. Dianne Feinstein is quite particular on that score. But in San Francisco, the Ninth Circuit doesn't seem to care what the U.S. Supreme Court writes. And it's OK.

Celeste Nixon reports for The Tribune in the Bahamas:

CANNABIS abuse could be one of the factors behind the high rate of crime in the Bahamas, according to a local psychiatrist.

Dr Kirk Christie, of the Sandilands Rehabilitation Centre, said taking into account the disinhibiting effects of cannabis and the fact that its use is widespread, the drug could be fuelling deviant behaviour.

In a meeting with Social Service Hotline councillors yesterday, Dr Christie stressed the dangers of substance abuse, and in particular cannabis abuse.

He said the fact that cannabis is culturally and socially accepted, cheap and readily available in the Bahamas, encourages the false perception it is not a dangerous drug.

When the sodium thiopental shortage kerfuffle first arose, I cruised around the 'Net a bit to see who sells the stuff.  There are vendors in India.  Press reports indicate that only American and European sources are approved by the FDA for drugs for medical use.

But of course lethal injection is not a medical use.  The FDA has strict standards to ensure that drugs are safe and effective.  For lethal injection, "safe" and "effective" are opposites.  Some small amount of impurity that could cause a medical patient problems after waking up from the sedative would be a big problem for medical use.  For lethal injection, that is what lawyers call a moot question.

Sure enough, India is where Nebraska got its big stash, JoAnne Young reports in the Lincoln Journal Star.

Will opponents try to make this a basis of a legal challenge?  Of course.  They challenge anything and everything.  Will courts dismiss the challenge summarily?  They should.

This is all short term.  States should move to pentobarbital as quickly as their administrative procedures allow.

In the WSJ, Michael Judge has an interesting interview with Clint Eastwood on law enforcement, war, terrorism, and Jerry Brown.

Late last year, the notorious Judge Charlie Baird in Austin was proceeding with a "court of inquiry" regarding the infamous Cameron Todd Willingham case.  Judge Baird's proceedings were lawless for a number of reasons:

1.  The purpose of a court of inquiry is to determine if there is probable cause to believe a prosecutable crime has been committed, and the statute of limitations had long since run on the offenses alleged.

2.  The court of inquiry statute requires the judge calling for the court to refer the matter to the presiding judge for assignment.  Proceeding with the court himself, as Judge Baird was doing, is patently illegal.

3.  The DA moved to recuse Judge Baird for bias, and the recusal procedure calls for the challenged judge to refer that motion for assignment to be heard by another judge.

On December 14, the Court of Appeals issued an order halting the circus, and on December 21, it issued an opinion explaining the order.  See prior posts here and here.  The stay was based on reason 3, above.

Willingham's family moved for rehearing, but they had one major problem.  The Court of Appeals' order and opinion dealt only with the question of which judge would hear the matter.  Twelve days after the opinion was issued, Judge Baird became ex-Judge Baird. [Insert Hallelujah Chorus here.]  Guess what happens next.

Today's News Scan reported the reversal of a first degree murder conviction, all because the defendant was not part of an email exchange between the judge, prosecutor, and defense attorney.  The 5-4 decision by the Washington Supreme Court rested on both federal and state constitutional grounds.  But did the inclusion of a state constitutional provision construct an impenetrable ceiling to further review?

Terrance Irby was charged with first degree murder, accused of bludgeoning a man to death.  In the first day of jury selection, the prospective jury pool completed a standard questionnaire submitted to the court.  That afternoon, the trial judge emailed the prosecutor and Irby's defense attorney, indicating that ten jurors had asked to be released for various reasons.  The prosecutor and Irby's counsel agreed that seven of the ten could be released, and the judge notified these jurors that they were excused.  Following a jury trial, Irby was convicted of first degree murder and sentenced to LWOP.  On appeal, Irby claimed he should have been a part of the just-described email exchange, and that his absence from it was a violation of his constitutional right to be present at trial.  The Washington Supreme Court bought it.

Matthew Perrone reports for AP,

The U.S. government says candy imported from Pakistan called Toxic Waste Nuclear Sludge is not safe to eat. Who would have guessed?

The only surprise is that the notice is handwritten.

California Law Would Bar Last Minute Clemency:   Sacramento Bee newsman Jim Sanders reports that a constitutional amendment introduced by California Assemblyman Jim Silva would bar the granting of executive clemency during the last 30 days of a Governor's term.  The measure ABA 14, was introduced in response to Governor Arnold Schwarzenegger's last minute clemency of Esteban Nunez, son of political ally and former Assembly Speaker Fabian Nunez.  In order to become law the measure would have to pass by both houses of the legislature and be adopted by California voters during a statewide election.   Jim Carlton of the Wall Street Journal reports on other action spurred by the Nunez clemency.  

Escaped Murderer Facing Multiple Charges:  Felicia Fonseca of the Associated Press reports that Tracy Province will be sentenced today after pleading guilty to escape, kidnapping, armed robbery, and other offenses earlier this month.  Province had escaped last summer from the Arizona State Prison where he was serving a life sentence for murder and robbery, and was later captured in Wyoming.  Province will then be sent to New Mexico where he faces capital murder charges for the death of a couple.

Virginia May Expand Death Penalty:  Tracy Sears of the Richmond Local News reports that Virginia Senator Mark Obenshain wants to repeal the "triggerman rule", which allows only the person who commits the actual murder to receive the death penalty with a few exceptions.  Obenshain argues, "If a jury believes that both people involved in a murder had the same willful, deliberate, pre-meditated intent to commit a capital murder, for me and most Virginians, there's no difference in the culpability of those two people."  On Thursday, legislation was passed by a subcommittee of the Senate Courts of Justice Committee that would allow co-conspirators to receive the death penalty in cases of rape where the victim is murdered, to receive the death penalty.  Similar legislation in prior years was vetoed by then-Gov. Tim Kaine.

Defeated Washington Justice Casts Deciding Vote Throwing Out Murder Conviction:  Gene Johnson of the Associated Press reports that Washington's Supreme Court yesterday reversed a murder conviction because the defendant was not present when the attorney and judge decided by email which jurors to excuse for hardship before beginning the "voir dire" questioning process.  Terrance Irby was convicted and sentenced to life in prison in 2007 for the beating and stabbing murder of James Rock. The court's 5-4 decision concluded that the email exchange which resulted in the discharge of seven potential jurors violated Irby's constitutional right to be present at all critical stages of the trial.  The opinion was joined by Justice Richard Sanders, who was appointed as a temporary judge even though voters recently denied him another term. 

The Federalist Society's Criminal Law Practice Group has a new Facebook page, with links to criminal law related items of interest.

Murder Registry Bill Proposed after Killer Walks:  The Huffington Post reports Illinois state legislator Dennis Reboletti (R) has proposed "Andrea's Law" to track some convicted murderers.  The bill is named after Andrea Will, who was murdered in 1998 at the age of 18.  Her murderer, Justin Boulay, was released last year after serving half of his 24-year sentence. If passed, the bill would apply only to those violent offenders convicted before Illinois passed its "truth in sentencing" laws in 1998, which require those convicted of violent crimes to serve a minimum of 85% of their sentence (100% for murderers).  The bill would target those sentenced before adoption of nonretroactive truth in sentencing laws, such as Boulay, requiring them to register on an online database for 10 years after their release.

Kidney Transplant in Commutation Gets More Complicated:  Jimmie E. Gates of the Clarion Ledger reports on a decision by Mississippi Governor Haley Barbour earlier this month to suspend the life sentences of Jaime Scott and her sister Gladys for their participation in a 1993 armed robbery.  Gladys's release was conditioned on her donating a kidney to Jaime,  whose prison dialysis has cost the state nearly $200,000 a year - a requirement some critics argue is unenforceable.  Doctors recently told both sisters they must lose weight before the transplant can occur.

Convicted Serial Killer Charged in Two Additional NY Deaths:  Jennifer Peltz of the Associated Press reports that Rodney Alcala, a California death row inmate, will be charged with two more killings in New York.  Alcala was found guilty last year of the 1970s strangling of four women and a young girl in California.  After his conviction, authorities released hundreds of photos of women found in Alcala's storage locker.  These photos helped prosecutors reopen cold case files that led them to suspect Alcala in the two additional killings in New York.  Prior to last year's conviction, Alcala had been convicted and sentenced to death twice for the California girl's murder, but both verdicts were overturned on appeal.

Texas Short on Lethal Injection Drug:  Russell Goldman of the ABC News reports that Texas has enough of the lethal injection drug to execute only two out of the 317 inmates on death row.  Texas will likely look to the execution process in Ohio and its upcoming plans to start using pentobarbital.  Johnnie Baston, a convicted Ohio death row inmate, is the first inmate scheduled to be injected with this new drug in that state.  (See yesterday's News Scan.)

A Day on the Other Side of the Bench:  Montgomery County Circuit Judge Joseph M. Quirk recently arrived at court for his job of the day - Juror No. 4 in a criminal theft case, conducted in a courtroom a few floors above his chambers.  Judge Quirk stated he was pleased to serve the role of the juror and that he made it a point to jump into the discussions during the jury's deliberations.  Jurors laughed when learning their fellow juror's profession after the close of trial.  WaPo staff writer Dan Morse has this story.  Hat tip to How Appealing. 

The steady drumbeat of claims that locking up the bad guys is bankrupting our state governments has taken its toll in voter ignorance.  In a poll by the Public Policy Institute, 45% of California adults and 41% of likely voters wrongly named "prisons and corrections" as the largest item in the budget.  In fact, K-12 education is a vastly larger slice of the pie, 42% of general fund spending, but only 16% of adults and 22% of likely voters knew it was largest.  Prison spending is actually dead last of the categories mentioned.

As this graph (from the National Association of State Budget Officers) shows, corrections spending has been and remains a sliver of state budgets nationwide.  (Click on the graph for a larger, clearer picture.)  We could let every last murderer and rapist go, and it still wouldn't fix the budget holes of the states in deepest trouble.

A table of criminal and related cases in the current term of the US Supreme Court is available here.

Sari Horwitz reports for the WaPo:

In the weeks and days before the shooting rampage in Tucson, suspect Jared Lee Loughner surfed the Internet on his computer in what investigators believe was an effort to prepare for his alleged assassination attempt, law enforcement sources familiar with the investigation said.

Loughner pulled up several Web sites about lethal injections and solitary confinement in prison, said the sources, who asked to be anonymous because the investigation is ongoing. He also viewed Internet sites about political assassins, according to an analysis of Loughner's computer that was completed by investigators last week, the sources said.

One of the stock arguments against the death penalty is that most killings are impulsive, committed by people who don't even think about the penalty, and therefore can't be deterred by a greater penalty.  In the event that anyone proposes the death penalty for voluntary manslaughter, that argument may be considered.  When we are talking about the death penalty for premeditated murder, as we usually are, an argument presuming spur-of-the-moment killing is simply irrelevant.

Did Loughner's research tell him that death sentences are carried out 20-to-never years after the crime, and was that fact significant in his decision to go ahead?  We will probably never know.  It is certainly possible.  It is quite likely that this calculus in some form has entered the heads of many killers and that many innocent people are dead as a result.

Judge Richard Posner has a second article criticizing "the Bluebook," the citation form manual jointly published by several law schools and used by most law reviews outside Chicago.  The first article was published in 1986 and titled "Goodbye to the Bluebook," a title Judge Posner now recognizes was naive.  The article is entertaining if you dislike the Bluebook, though I doubt any of you dear readers dislike it as intensely as Judge Posner does.  Eugene Volokh and Ilya Somin have posts at VC.

I find that a surprising number of law students and recent graduates think the Bluebook is Holy Writ and that all other forms of citation are "wrong."  I once received a letter from a rookie opposing counsel who made a snotty reference to the "poor citation style" in my brief.  In fact, the brief in question scrupulously cited authorities in the style of the official reporter for the court in which it was filed, as do all CJLF briefs.

California attorneys must unlearn the Bluebook-as-Gospel fallacy immediately upon graduation.  Our state courts have their own style manual, which is quite different from the Bluebook.

The most prestigious organization to ignore the Bluebook is, of course, the Supreme Court of the United States.  Unlike the California courts, they don't publish their own style manual for the public, but they do have one internally.  Read the slip opinions or the bound volumes on the Court's website, and you will see that they do not follow the Bluebook.  CJLF's U.S. Supreme Court briefs also follow the Court's style, not the Bluebook, to the extent we can infer their rules from the opinions.

The Bluebook may be followed by nearly everyone in academia, but not in the judiciary.  Neither the nation's highest court nor the courts of the largest state follow it.  We use it at CJLF only for articles in law reviews that require it and for briefs in the federal courts of appeals, which apparently follow it.

Ohio Will Be First State to Use Pentobarbital Alone During Executions:  The AP reports that in March, Ohio will being using pentobarbital during executions, in light of the nationwide shortage of sodium thiopental.  Oklahoma also switched to pentobarbital last year as part of its three-drug protocol, but Ohio would be the first state to use the drug alone.

DNA Match Leads to Arrest in 1983 Chicago Murder:  Jason Meisner of the Chicago Tribune reports on the arrest of Anthony Kemp, accused of the fatal stabbing death of a man during a home invasion in 1983.  Kemp, who has spent much of the past 20 years in prison for burglary, sexual assault, and armed violence convictions, was linked to the crime after his DNA profile in a nationwide database matched a crime scene sample.  His arrest marks one of several cold cases cracked by Chicago police since 2007 with the help of DOJ funds.

Legislator Proposes Reinstating Death Penalty in New Jersey:  New Jersey Senator Robert Singer (R) introduced a bill to reinstate the death penalty in the state for those convicted or murdering a child, killing a police officer in the line of duty, or committing a fatal terrorist attack.  The legislature repealed capital punishment in the New Jersey in December 2007.  Megan DeMarco has this story in The Star-Ledger (NJ).

Adjusting to Graham :  Lynda Waddington of The Iowa Independent has this story on a study bill pending before the Iowa Senate Judiciary Committee, which would allow some juveniles sentenced to LWOP to be eligible for release hearings after serving 25 years.  The proposed legislation comes in response to the Supreme Court case Graham v. Florida.  The Iowa Supreme Court, like courts in a number of other states, has had difficulty reconciling Graham with an incompatible statutory structure.  The story notes an anomalous result of a defendant convicted of first-degree kidnapping being eligible for parole earlier than if he had been convicted of second-degree.

It was Eric Holder, if I recall correctly, who decided it would be a bright idea to use a civilian criminal court to try Ahmed Khalfan Ghailani, one of the Tanzanian embassy bombers.  (You know, "smart on crime" and all).  The Justice Department indicted Ghailani on 285 counts, consisting of 284 murder counts and one count of conspiracy to commit murder.

The jury evidently didn't think much of the government's case, since it acquitted Ghailani on all the murder counts and convicted only on the conspiracy charge.  That is a 99.65% acquittal rate.  To put it another way, the Department came within a hair's breadth of one of the most appalling and scandalous failures in its history.  But at least we were going to "show the world"  --  meaning, I take it, our enemies in the world  --  that we were "enlightened."  (Not that they would have or ever will view us as enlightened in any event, nor that such a view vel non makes a particle of difference.  National survival is actually more important than the good opinion of terrorists and their sympathizers).

Today, Judge Lewis A. Kaplan partly rescued the Department from the mortification its handling of this case earned by imposing a life sentence.  See this story from the Wall Street Journal.  Since federal law no longer has parole, this is an LWOP sentence.  Not the death penalty, which is what this case obviously warrants, but better than the Department's fecklessness deserves.

Thank you, Judge Kaplan, and no thank you, Eric Holder.

[The judgment is here  -- KS]

Police Seek Shooting Suspect in Oregon:  Nigel Duara of the Associated Press reports that David Anthony Durham, 43, is suspected of shooting Lincoln City Police Officer Steven Dodds during a traffic stop before fleeing into the nearby woods.  Durham's records show a 1999 misdemeanor prostitution charge and citations for speeding in 2000.  According to family and friends, he had been acting strangely since he and his girlfriend ended their relationship.  Local schools have been closed while police search for the suspected shooter.

Troy Davis Seeks Another High Court Appeal:  The Associated Press reports that Georgia death row inmate Troy Anthony Davis is asking the Supreme Court to overrule a federal judge's decision that the additional evidence presented by Davis was not sufficient to disprove his guilt for murdering a police officer.  In 2009, the Supreme Court granted Davis' request for a hearing to review new evidence he claimed proved he was wrongly convicted of shooting Savannah Police Officer Mark MacPhail in 1989.  Eyewitnesses identified Davis as the shooter, but there was no physical evidence linking him to the crime.  His defense now argues that the federal judge denied them the opportunity to present witnesses who would have identified someone else as the murderer.  Since 2007, Davis has been spared from execution three times, and has become a cause-celebre among death penalty opponents.

Georgia Murderer Facing Execution:  Rhonda Cook of the Atlanta Journal Constitution reports how 27-year-old fitness instructor Julie Love's disappearance in 1988 received national attention after she ran out of gas and decided to walk home.  Now almost 23 years later, Emmanuel Fitzgerald Hammond is awaiting execution for Love's murder. Hammond, with his cousin and girlfriend, spotted Love as she was walking along a street in the Buckhead district, and asked Love if she needed a ride.  When she refused, Hammond got out of the car and hit her over the head.  After his cousin raped her, Hammond shot Love in the face with a shotgun and dumped her body.  Love was missing for over a year until Hammond's girlfriend, Janice Weldon, led investigators to her body.  Hammond is scheduled to die by lethal injection today. 

Florida looks to Texas for Advice on Cutting Prison Costs:  Bill Kaczor of the Associated Press reports that Florida is looking to Texas for help in cutting prison costs without appearing to be lenient on crime.  In 2007, Texas's strategy of putting low risk, non-violent offenders on probation and parole and providing rehabilitation programs in certain cases saved the state $2 billion in prison costs.

That's the title of a recent article by psychiatrist Ronald Pies at Psychiatric Times (free login).  As Dr. Pies states:

There are some crimes so heinous, they may simply be beyond the human capacity to forgive: genocide, murder, and rape come quickly to mind. Gangdev (following Mahoney et al, 2005) defines forgiveness as the "...releasing or foregoing of bitterness and vengeance by a victim toward the perpetrator of an offence, while acknowledging the seriousness of the wrong."⁵ (italics added) Thus, none of us--other than the surviving victims--is in a position to forgive the Tucson shooter for the wounding or killing of innocent bystanders.

I doubt it, but given the recent rash of shooting at and killing police officers, you can't blame those who wonder.  This news story reveals that:

Anyone in the criminal law business knows that finding preposterous claims from defense counsel is not exactly a difficult enterprise.  Still, every now and again, I like to point out one example or another of defense whoppers just as an antidote to the typically smug and self-righteous claim that defense work is really about Being Champions of the Constitution.

This is not to say that all defense work is baloney.  Some of it actually is about defending the Constitution.  But let's face it, most of it is about trying to bamboozle the jury into buying a concocted story about how the defendant is Mr. Nicey, or, if not that exactly, at least a "victim" of something or other, and thus not really responsible for his behavior.

Thus tonight's story of the fellow in Buffalo, NY  --  a successful and seemingly well-built, six-foot man  --  who is claiming self-defense in the slaying of his diminuitive wife.  For years, she had physically and psychologically abused him, so sayeth the defendant.  Thus he defended himself by offing her. 

Only one thing.  The "self-defense" consisted of stabbing her 40 times  --  that's FORTY times  --  then sawing her head off.  Read all about it.

Lee Ross of FoxNews has this story on the uncertain attendance of the Supreme Court Justices at tomorrow's State of the Union Address.  As of Friday, a court spokeswoman couldn't confirm attendance plans for any of the nine, but several Justices have made clear their feelings on the issue:

Chief Justice Roberts: "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there."

Justice Alito:  "For many years the more senior members of the Supreme Court, Justice [John Paul] Stevens before he retired, Justice [Antonin] Scalia, stopped the practice of attending State of the Union addresses because they have become very political events and very awkward for the justices. . . We have to sit there like the proverbial potted plant most of the time.  And we're not allowed to applaud--and those of us who are more disciplined refrain from manifesting any emotion or opinion whatsoever."

Justice Thomas:  "I don't go because it has become so partisan. . . And it's very uncomfortable for a judge to sit there.  There's a lot that you don't hear on TV: the catcalls, the whooping and hollering and under-the-breath comments.  One of the consequences is now the court becomes part of the conversation, if you want to call it that, in the speeches.  It's just an example of why I don't go.

Justice Scalia:  "It is a juvenile spectacle, and I resent being called upon to give it dignity. . . It's really not appropriate for the justices to be there."

Justice Breyer:  "I think it's very, very, very important -- very important -- for us to show up at that State of the Union, because people today, as you know, are more and more visual. . . I'd like them to read, but they are visual.  And what they see in front of them in that State of the Union is the federal government, every part -- the president, the Congress, the cabinet, the military, and I would like them to see the judges, too, because federal judges are also part of that government.  And I want to be there."

The US Supreme Court decided a crime-related civil procedure case involving qualified immunity in Ortiz v. Jordan, No. 09-737.  Lawyers for officers need to appeal denial of summary judgment before trial, not after.  After trial, they need to ask for judgment as a matter of law under FRCP 50(b) to take that issue up on appeal.  Opinion by Justice Ginsburg 6-3-0.  Justices Thomas, Scalia, and Kennedy do not think the Rule 50 question is properly presented.

The Court granted certiorari in two criminal cases:

The Michigan SG continues on a roll with Howes v. Fields, No. 10-680 addressing Miranda questions left hanging in Maryland v. Shatzer last term.  When a prisoner is in prison or jail for an unrelated offense, under what circumstances is he in "custody" for Miranda purposes when he is brought out from the general population and questioned by police officers?  When Miranda was still new, Mathis v. United States, 391 U.S. 1 (1968), a characteristically terse Hugo Black opinion, arguably decided that custody is custody.  Justice White thought that was a "cavalier" conclusion.  Subsequent decisions, including Shatzer, cast some doubt on Mathis, but the Sixth Circuit in Fields thought the state court opinion was an unreasonable application of it.

Reynolds v. United States, No. 10-6549, is a challenge to the Sex Offender Registration and Notification Act (SORNA), including a federalism challenge that Congress exceeded the bounds of its enumerated powers.  Third Circuit opinion rejecting the challenge is here.

Parolee Suspected of Killing Girlfriend:  Paige Hewitt of the Houston Chronicle reports Texas parolee Joe Amos Shaw is accused of fatally shooting his girlfriend.  Rhonda Scott was found dead in her home from a gun shot wound to the head, with Shaw's ankle monitor found near the body.  Shaw was on parole after being released early for a 1982 murder conviction.

Man to be Resentenced for 2003 Smuggling Deaths:  Juan A. Lozano from the Associated Press reports that Tyrone Williams was resentenced today to 34 years in prison for his role in the U.S.'s deadliest human smuggling attempt.  Prosecutors allege that in 2003, Williams transported a group of illegal immigrants inside a tractor trailer through southern Texas.  The temperature in the trailer reached as high as 173 degrees during the three-hour trip, but Williams ignored the immigrants' kicks and screams for help.  17 people, including a 5-year-old boy, were found dead in the trailer, and two others died later.  The Fifth Circuit reversed his original sentence of life without parole on the grounds that the judge - not the jury - should have determined the appropriate sentence.

Two Officers Shot and Killed in Florida:  Tamara Lush and Mitch Stacy from the Associated Press report two Florida police officers were fatally shot and a U.S. Marshall wounded earlier today after an hourslong standoff.  Hydra Lacy Jr. 39, failed to show for his scheduled trial in November for aggravated battery.  When officers arrived at his residence, he allegedly shot two officers while hiding in the attic of the home.  Lacy has a long criminal record, including convictions for armed burglary, resisting arrest, and sexual battery.

Illinois Death Penalty Law Could Impact Murder Case:  Art Barnum of the Chicago Tribune reports that Laurence Lovejoy, convicted and sentenced to death in 2007 for killing his stepdaughter, will be back in court after the Illinois Supreme court overturned his conviction and sentence.  Prosecutors allege Lovejoy killed his 16-year-old stepdaughter three weeks after she reported he had raped her.  Prosecutors are seeking a death sentence for Lovejoy if convicted, though a bill currently pending before Governor Pat Quinn to abolish the death penalty in Illinois might affect the case if signed before the end of trial.

For the third time in two weeks, the U.S. Supreme Court has reversed a Ninth Circuit decision in a crime-related case without a single Justice concluding the Ninth was correct.

In Swarthout v. Cooke, No. 10-333, the Ninth Circuit took it upon itself to review whether California's parole authority and state courts had correctly applied the standard under state law for deciding when to parole a person convicted of murder or attempted murder.  (Only a few crimes in California still have these "indeterminate" terms with discretionary release by the parole board.  Most have "determinate" terms with a set term of years which may be reduced by credits for working or behaving in prison. Noncapital murder is one of the few.)

The parole board* decides when and whether to grant parole based on whether the public safety requires keeping the murderer locked up, and the state courts review whether there is "some evidence" supporting the board's decision.  What is the federal question here?  There isn't any.  There is a federal constitutional minimum of due process, but there is no claim in this case that California's procedures do not meet it.

Jason Riley of the WSJ has this Weekend Interview with GMU economist Walter Williams.  Williams' main thesis is that government programs intended to help the poor and minorities (including addressing the infamous "root cause of crime") have actually done great harm.  The decline of the family is the big problem today, and the welfare state is a cause of that decline.

"Racial discrimination is not the problem of black people that it used to be" in his youth, says Mr. Williams. "Today I doubt you could find any significant problem that blacks face that is caused by racial discrimination. The 70% illegitimacy rate is a devastating problem, but it doesn't have a damn thing to do with racism. The fact that in some areas black people are huddled in their homes at night, sometimes serving meals on the floor so they don't get hit by a stray bullet--that's not because the Klan is riding through the neighborhood."

Hospira, the only US manufacturer of the sodium thiopental used in lethal injection in most death penalty states, has decided to discontinue manufacture altogether, AP reports.  See also this report by Nathan Koppel at WSJ.

There is nothing special about this particular anesthetic, and Oklahoma has already switched to a more readily available one.  Time for the other states to follow suit.

In some states, changing the protocol requires a lengthy administrative regulation procedure.  Where the legislature can't be persuaded to change that, the procedure should begin immediately.

Update:  Carol Williams has this story in the LA Times.  Rob Stein has this story in the WaPo.

Chris Paschenko reports in the Galveston Daily News:

A judge refused Thursday to declare the state's death penalty unconstitutional, rejecting motions by the defense team of an accused child killer who faces a capital murder trial March 7.

*                             *                         *

[Travis James] Mullis' defense team of Robert K. Loper and Gerald Bourque filed 10 motions in March, claiming, among other things, the Texas Code of Criminal Procedure involving the death penalty was unconstitutional.

On the crime itself,

[Judge] Ellisor heard from Philadelphia police and detectives Tuesday and Wednesday and saw a videotaped interview, where Mullis described the final moments of his son's life. Mullis on videotape told detectives he stomped his [3-month-old] son's skull three or four times, because "the only way to make him stop crying was to kill him."

Gillian Gotora reports for AP:

HARARE, Zimbabwe (AP) -- Zimbabwe's top lawyer may seek treason charges against former opposition politicians named in diplomatic cables released by WikiLeaks, a move that drew criticism Thursday from a prominent legal rights group.

*                                *                            *

Tomana says the panel cannot be identified for ethical reasons. He said he asked panel members to submit their legal opinions by March on contacts between U.S. diplomats and Prime Minister Morgan Tsvangirai's party that allegedly conspired to oust longtime ruler President Robert Mugabe.

*                                *                            *

Treason carries a possible death sentence in Zimbabwe. In 2007, Tsvangirai was acquitted on charges that he plotted the assassination of Mugabe, after a lengthy trial seen as a political ploy against the then opposition leader.

Some folks on the fringe left consider Julian Assange to be a hero.  Giving a thug like Mugabe ammunition to go after the people who dare to stand up to him is not my idea of heroism.

Sharp v. Superior Court, California Court of Appeal, 2d Dist. Div. 6, B222025, Jan. 18:

In Verdin v. Superior Court (2008) 43 Cal.4th 1096 (Verdin), our Supreme Court held that the prosecution had no right to compel a mental examination of a defendant by a retained prosecution expert because such an examination is a form of discovery that is not authorized by statute or mandated by the Constitution. Here, we hold that a 2010 amendment to the California discovery law authorizes such a mental examination of a defendant who pleads not guilty by reason of insanity (NGRI). (Pen. Code,1 § 1054.3, subd. (b), see also § 1027.)

It is good to see that California's legislators actually got it right on this.  Now we need them to enact Park Dietz's suggestion that all mental examinations by either side be fully video recorded.

Ruling on Ghailani Conviction:  Benjamin Weiser of the New York Times reports that Ahmed Khalfan Ghailani's conviction of conspiracy to destroy government buildings and property will be upheld.  A federal Judge in Manhattan rejected arguments from Ghailani's defense team seeking an acquittal or a new trial. Federal prosecutors will seek a life sentence for the convicted Terrorist on Tuesday.

Massachusetts Suspends Release of Parolees:  The Boston Globe reports that Massachusetts has suspended the release of all inmates who had previously been granted parole, while the governor is in the process of creating a new parole board.   In a statement released by the state's undersecretary of public safety John Grossman states "that there is a now a transition period to create leadership and ensure public safety". The suspension comes in response to the fatal shooting of Officer John Maguire during a department store robbery, allegedly by parolee Domenic Cinelli.  Cinelli had been granted early release while serving three life sentences. 

Immigration Bill Introduced in Colorado Senate:  Tim Hoover of the Denver Post reports on an immigration bill introduced in the Colorado Senate, which would allow police to arrest illegal immigrants who are facing deportation, have been issued a detaining order by federal immigration authorities, or have been indicted/convicted of aggravated felonies.  Under current Colorado law, police are required to report to ICE all arrestees suspected of being illegal immigrants.  Another bill is expected to be introduced in the future that would allow illegal immigrants to receive in-state tuition rates to attend public colleges if they have graduated from a Colorado high school.

The NYT's Room for Debate feature has five short statements on this topic:

In the three decades since the Hinckley case, brain research and brain scans have made many advances in diagnosing and categorizing mental illness. Yet this seems to have little bearing on how society deals with insanity and culpability in the legal arena.

What has been learned in the decades since the Hinckley case? Should a better medical understanding of mental illness alter our legal definitions of insanity? Or is the insanity defense rooted in principles or traditions that actually don't have much to do with medicine?

The participants are Alan Dershowitz, James Whitman, William Carpenter, David Bruck, and yours truly. 

Update:  A sixth piece, by Beatriz Luna, has been added.

Expert Witness in Trouble For Trial Exhibits:  The Sixth Circuit yesterday ruled a civil case may proceed against Ohio attorney Dean Boland.  While serving as an expert witness in a 2004 federal child pornography trial, Boland created pornographic images from morphed photos of children downloaded from the internet, in order to demonstrate the capabilities of modern computer-imaging technology.  When he was sued by the children and their guardians, Boland argued he should not be liable given his role as an expert witness.  The court rejected his argument, holding that the civil remedy provisions of the federal child porn statute includes no such exception.  Martha Neil has this story in the ABA Journal.

Louisiana Prison Overhaul:  Jan Moller of The Times-Pacyune (LA) reports that Louisiana has teamed up with a national think tank as part of an attempt to lower the state's recidivism and incarceration rates.  The overhaul comes in light of Louisiana's $1.6 billion budget shortfall.

Memorial Service for Arizona Border Patrol Officer:  A memorial service will be held tomorrow in honor of U.S. Border Patrol Officer Brian Terry, reports Derek Jordan of the Sierra Vista Herald (AZ).  Last December, Terry was shot to death while on duty northwest of Nogales by suspected border bandits.

Ghailani's Attempt to Overturn Conviction Looking Grim:  Mark Hamblett of the New York Law Journal reports on the U.S. District Court Judge Lewis A. Kaplan's skeptical response this morning, when convicted terrorist Ahmed Ghailani attempted to set aside his conviction.  Ghailani's defense team had argued the conviction could not stand because the jury had acquitted him of other related counts, but Judge Kaplan quickly interrupted, stating "I don't understand your argument at all."  The judge is expected to issue a ruling tomorrow or Monday.  Update: As predicted, the judge denied the motion.  Opinion is here.

"Ninth Circuit Judge Stephen Reinhardt Feels High Court's Wrath":  Nathan Koppel at WSJ Law Blog has this post on the two Supreme Court opinions issued yesterday, both reversing Judge Reinhardt's decisions to overturn murder convictions.

Philly Abortion Doctor Ran "House of Horrors:  The Philadelphia Inquirer has this disturbing story on this morning's arrest of former Doctor Kermit Gosnell, charged with the murders of a 41-year-old woman and seven babies.  Prosecutors alleged Gosnell ran a late-term abortion clinic out of his Philadelphia medical clinic, permitting untrained and unsupervised workers (including a 15-year-old girl) to administer sedatives to patients.  41-year-old Karnamaya Mongar allegedly died from an anesthetic overdose prescribed by Gosnell.  Prosecutors also allege Gosnell delivered the seven infants live, then severed their spinal cords with scissors.  In what is being described as a "house of horrors," police officers discovered bags and bottles of aborted fetuses scattered throughout Gosnell's office. 

Victim's Family to Sue Over Commuted Sentence:  The family of victim of Luis Dos Santos is expected to file suit against former Governor Schwarzenegger, reports The Sacramento Bee.  The lawsuit stems from the Schwarzenegger's eleventh hour prison sentence commutation of Santos's convicted killer Esteban Nunez, the son of a former Assembly speaker.  (Prior post here.)  Santos's family claims the former governor violated their constitutional rights under "Marsy's Law," a voter-approved constitutional amendment mandating that crime victims and their family members receive advance notice of parole hearings.

New Forensics:  The BBC has this article on a new method to help catch sex offenders by detecting condom lubricant on crime scene fingerprints.  Dr. Simona Francese of Sheffield Hallam University stated: "Offenders are increasingly aware of forensic issues and it is common now for condoms to be used and removed from the scene of a sexual assault. . . If condom lubricant can be detected in fingermarks it would improve the evidence for the prosecution by establishing the assailant's presence at the scene and, crucially, having had contact with a condom."

Trial Starts in Deadly Ohio Arson Case:  Thomas J. Sheeran of the AP reports jury selection began today in the case against Antun Lewis, accused of setting a 2005 house fire that killed nine people, including eight children, at a birthday sleepover.  The case is being heard in federal court, after prosecutors argued the house set ablaze was involved in interstate commerce via a federal rent subsidy.  Lewis faces a life sentence if convicted, but is ineligible for the death penalty as a judge already deemed him mentally disabled.

Harrington v. Richter, No. 09-587, decided 7-1-0 today by the US Supreme Court, is a landmark decision in the law of federal habeas corpus. The opinion is as rich with nuggets as any I have seen from the Court in some time.  One in particular makes the opinion stand out, though.  The Court has finally comes to grips with the true nature of the most controversial provision of the habeas reforms in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA): 28 U.S.C. §2254(d).

Twice again, the U.S. Supreme Court has reversed the U.S. Court of Appeals for the Ninth Circuit, reinstating state-court convictions overturned by the Ninth, without a single Justice voting to uphold the Ninth's decision.  The cases are Harrington v. Richter and Premo v. Moore.  I will have more on the specifics later this morning.

Both Ninth Circuit opinions are by the infamous Judge Stephen Reinhardt.  Both Supreme Court opinions are by Justice Anthony Kennedy, joined in full by six other Justices, with Justice Ginsburg concurring in the judgment and Justice Kagan recused.

Pharmaceutical Companies Won't Sell Injection Drug to Kentucky:  Documents obtained by the Associated Press show that two pharmaceutical companies will not sell sodium thiopental to Kentucky for the state's executions.  One company claimed its refusal was because a medical doctor was not involved in the process, even though Kentucky law prohibits doctor participation during executions.  These emails are the first public records of companies refusing to sell the drug to a state for this purpose.  Brett Barrouquere of the AP has this story. 

Video of Toddler with Pot Pipe Lands Parents in Jail:  Beatriz Valenzeula of the Victorville Daily Press (CA) reports a San Bernardino County couple is behind bars after a video surfaced of their 23-month-old child puffing on a marijuana pipe.  Police arrested mother Melanie Soliz, 20, over the weekend, and father Blake Hightower, 24, later turned himself in.  Both admit to possessing medical marijuana cards, but could not explain why they would give their baby the pipe and videotape it.

Op-Ed on Chancellor Birgeneau's Statement:  Dan Walters of The Sacramento Bee has this response to UC Berkeley Chancellor Robert Birgeneau's statements on the Loughner case (prior post here).  "It was not the first time that Birgeneau had offered up a laughably illogical observation on current events.  A few years earlier, he had claimed that protesters against the construction of a new sports training center were motivated by 'racism against our underrepresented minority student athletes.' . . . Birgeneau is a physicist by academic training, someone schooled in rigorous scientific research.  Without a scintilla of proof, however, he ascribes racist motives to an entire state and even to demonstrators against a campus project."

The Deliberation Part Might Be Tough For Him:  Fox25 Boston reports Sal Esposito - a cat from East Boston - was summoned for jury duty after his owners listed him as a "pet" on the recent Census.  "Sal's owners tried to have him disqualified due to his inability to speak or understand English, but were denied.  Unless the matter is resolved, [owner] Anna Esposito said she will take the feline to court to perform his civic duty on March 23."

Two of the victims in the embassy bombing case have filed statements with the court to be considered in sentencing: Hellen Adhiambo Ogindo and Jane Kathuka.

We must not forget the real people in this case and the real harm done to them.

Slightly more than four years ago, in November 2006, Wisconsin voters approved a non-binding referendum to restore the death penalty.  The vote was not particularly close  --  55.5% to 44.5%.  The measure called on the Legislature to enact a death penalty for first degree murder convictions supported by DNA evidence.  However, since the Legislature was controlled by Democrats, and the Governor was an abolitionist, the will of the voters was ignored.

Times have changed.  In the last election, Wisconsin voters threw out the old crowd, putting a Republican in the Governor's mansion and giving Republicans control of both houses of the Legislature.  What was impossible four years ago has become doable today.

A restoration of capital punishment in Wisconsin would shake abolitionism to its roots.  Wisconsin was among the first states to abolish the death penalty and has not had an execution for 160 years.  It's the capital of modern progessivism.  And it can scarcely be dismissed as a retrograde Confederate hold-out, which is a typical smear abolitionists use against retentionists.

Abolitionists think "reform" means a one-way street toward restricting, or ending, the death penalty.  "History is on our side" is what we constantly hear.  I don't know the exact political landscape in the Badger State, but given the 2006 referendum and the 2010 legislative and gubernatorial change, I have to believe Wisconsin has a chance to show that history is actually on the people's side.

Illinois:  Tony Mauro has this article in NLJ (subscription required, alas).  My letter referred to in the article is here.  Stella Foster in the Chicago Sun-Times reprints her 1995 article, noting she hasn't changed her mind since.  "Some human beings are just plain EVIL."

Maryland:  This state's remnant of the death penalty is held up primarily by bureaucratic red tape on the execution protocol.  The Senate President is pushing to get the bureaucrats off the dime, John Wagner reports for the WaPo.

New Mexico:  Stuart Dyson of KOB reports on the "repeal the repeal" effort.  The new governor is in favor.  However, New Mexico had no Senate election last year, so the same crowd is back, making it an uphill battle, to put it mildly.

The US Supreme Court denied certiorari in the case of Texas murderer Cleve Foster.  The prior post on the Court's stay of execution last week is here.  Foster's lawyers claim he is innocent, but they have a problem with the inconvenient truth of a conclusive DNA match.  The previously entered stay terminates automatically with the denial of certiorari.

The Court did not take up any new criminal cases today or issue any opinions.  Today's arguments are all civil cases.  Lyle Denniston at SCOTUSblog has this preview of argument in a "legal soap opera" that actually has some interesting issues regarding relations between state and federal courts. 

Opinions are expected tomorrow, but we do not know in what cases.

Swarthout v. Cooke, regarding the Ninth Circuit's self-assigned additional duty as California's Parole Appeals Board, has been relisted for Friday's conference.

Update:  John Elwood has this relist watch at SCOTUSblog.

Staff writer Robert Barnes has this piece in The Washington Post, discussing a recent study on laughter in the U.S. Supreme Court.  Building on a previous study, Texas litigation consultant Ryan Malphurs analyzed the "laughters" during oral argument in the 2006-2007 term, determining Justice Scalia to be the comedian of the bench, with Justice Breyer a far second.  Justice Ginsberg, Justice Alito, and Justice Thomas (who does not speak during oral argument) finished last.  In his published results " 'People Did Sometimes Stick Things in My Underwear': The Function of Laughter at the U.S. Supreme Court," (so named after a notable question from Justice Breyer), Malphurs writes:

Because the Courtroom is a site of significant debate and argument, we would expect the justices' laughter to challenge the position of advocates or each other, functioning as control and resistance. However, after considering the four areas of interaction, readers will recognize that the justices do not use laughter to reinforce control or resistance within the Courtroom; instead the justices' laughter diminishes formal control and power barriers, facilitating communication amongst themselves, between the justices and advocates, and with the audience members as well.

Hat tip to How Appealing.

Fugitive Charged with Murdering New Jersey Police Officer:  The Star-Ledger (NJ) reports on the arrest of 19-year-old Jahmell Crockam, an alleged Bloods gang member charged with the murder of Lakewood (NJ) Police Officer Christopher Matlosz.  Crockam is accused of fatally shooting Matlosz on Friday afternoon, after the police officer approached him and asked a few questions.  Crockam fled the scene, but was arrested on Sunday morning 70 miles from the crime scene by a team of state and federal law enforcement officers.  Crockham was already wanted on a December arrest warrant for weapons offenses.

Feds Will Challenge Change of Venue in Loughner Case:  The Department of Justice will oppose a change in venue in the case against Jared Loughner, reports Greg Moran of the San Diego Union-Tribune.  Loughner's defense team and the presiding judge are located in San Diego, giving rise to speculation the trial will be moved to the southern California city.   

Detroit Serial Rapist on the Loose:  Police in Detroit are on the lookout for a serial rapist, accused of raping seven women and attacking an eighth since the beginning of January, reports Gina Damron and Elisha Anderson of the Detroit Free Press.  All of the women were between the ages of 17 and 33 and were attacked during the overnight and early morning hours.  Detroit Police Chief Ralph Godbee Jr. remains confident they will capture the attacker: "We are not going to let this monster cripple us."

For several days after the Tucson massacre and the grievous wounding of Rep. Giffords, the airwaves and some of the mainstream media  --  in particular the New York Times  --   were filled with evidence-free but poisonous accusations that conservative "rhetoric" was the underlying cause.  Paul Krugman of the Times was a particularly vicious, but unfortunately not a lonely, source of this sort of thing.

In the days since, it has become clear that political debate,  whether heated or not, and whether coming from conservatives or not, had zip to do with the shootings.  This revelation has had the healthy effect of quite visibly putting the lie to the left's Smear Machine.  A reliably liberal op-ed columnist for the Times, Charles Blow, now commendably admits what's been going on, even while conspicuously declining to single out Krugman by name.  As Blow notes,

Immediately after the news broke, the air became thick with conjecture, speculation and innuendo. There was a giddy, almost punch-drunk excitement on the left. The prophecy had been fulfilled: "words have consequences." And now, the right's rhetorical chickens had finally come home to roost. ****

Within hours of the shooting, there was a full-fledged witch hunt to link the shooter to the right.... 

The only problem is that there was no evidence then, and even now, that overheated rhetoric from the right had anything to do with the shooting. (In fact, a couple of people who said they knew him have described him as either apolitical or "quite liberal.") The picture emerging is of a sad and lonely soul slowly, and publicly, slipping into insanity.

Kent has quoted Charles Krauthammer as observing that Jared Loughner's behavior is probably explained by schizophrenia in some form, and wondering what Krugman's excuse is.  My suggestion is simple.  Hate  --  indeed precisely the kind of hate Krugman falsely attributes to those with the temerity to disagree with him.  

If this dreadful episode has any good side, this is it:  It has fully pulled back the curtain on liberal McCarthyism.

 

The Pennsylvania item in today's News Scan illustrates one problem with Pennsylvania's death penalty.  That state has the "single juror veto" rule under which a single juror can effectively give the defendant a life sentence despite the contrary opinion of the other 11.  Better methods include those in California, where the jury must be unanimous one way or the other, and Florida, where a nonunanimous jury can make a recommendation to the judge.

The larger problem, though, is the interminable appeals process.  Departing Governor Ed Rendell has this letter to the legislature.  It is surprising to me that the head of the state government can be so keenly aware of the problem yet so utterly clueless that the solutions are well known and require only the political will to enact.

The time lapse between conviction and execution generally results from capital defendants' efforts to exhaust every legal challenge to their conviction and death sentence that is available to them under state and federal law. That is the way it should be; every meritorious issue must be raised and addressed.

The problem is that one cannot say that an issue is meritorious until it is addressed.  To have any finality in the system, we have to have a mechanism to cut off some categories of claims at some point, even though we are aware that the few such issues might be considered "meritorious" in the abstract

The obvious and just place to draw the line is between substantial claims of actual we-got-the-wrong-guy innocence and all the others.  The bulk of capital litigation goes into the "all the others" category.  Claims that go only to the sentencer's discretionary choice of penalty within the legal range for the offense simply do not need to be considered in any review after the first.  If we have the right guy and he receives a penalty within the legal range for the crime he chose to commit, that is not a miscarriage of justice.

While Congress and this body have enacted laws to help curtail and streamline the appellate process in capital cases, the length of time between the imposition of the sentence and actual execution, if it occurs at all, can be decades and is still too long. Victims' survivors are frustrated; the police are frustrated. The lengthy appeals process not only costs taxpayers substantial money, but it also robs the victims' families and friends of peace of mind, and they get no closure.

Yes, all true.

I would ask you to explore whether there can be any additional steps taken that allow for a thorough and exhaustive review of the facts and the law in each case, but that would significantly shorten the time between offense and carrying out the sentence.

Of course there is.

To be continued . . . .

Two Philly Murderers Avoid Death Sentences:  Joseph A. Slobodzian of The Philadelphia Inquirer reports Gerald Drummond, 26, and Robert McDowell, 28, were sentenced yesterday for the execution-style shooting deaths of two men in 2007.  The jury announced they were deadlocked after four hours of deliberation, leaving the judge with no choice under Pennsylvania law than to impose a sentence of life without parole.  Upon hearing the jury's deadlock, McDowell's smile and slap on Drummond's back garnered an angry response from presiding Judge Renee Cardwell Hughes: "Please don't smile and please don't think you won, gentlemen, because now you have to deal with me.  You'd be better off being sentenced to death because then you'd have the Supreme Court."

DHS Scraps Border Fence Project:  Keith Johnson The Wall Street Journal reports the Department of Homeland Security has called off the billion-dollar program to build a high-tech fence along the Arizona border.  The program was conceived in 2005, but its technology problems and expanded costs have made it center of controversy.  DHS plans on implementing a new plan to guard the border, supposedly at a lower cost.

Acquittal in Massachusetts Gun Show Case:   A Massachusetts jury today acquitted former Police Chief and gun show organizer Edward Fleury of manslaughter, stemming from the accidental shooting death of an 8-year-old boy at a gun show in 2008.  Prosecutors had alleged Fleury acted recklessly in allowing children to shoot machine guns without proper supervision at the event and was therefore responsible for the boy's fatal self-inflicted gunshot wound.  Dave Collins of AP has this story.

Loughner & Illegal Immigration?:  Howard Blume of the Los Angeles Times has this piece on UC Berkeley's Chancellor Robert Birgeneau's recent campuswide email, which linked the Tucson shooting to, among other things, Arizona's efforts against illegal immigration: "I believe that it is not a coincidence that this calamity has occurred in a state which has legislated discrimination against undocumented persons."  Birgeneau also condemned a "climate in which demonization of others goes unchallenged and hateful speech is tolerated."  The email is drawing much criticism, including from a civil liberties group.

Leroy White was executed by the State of Alabama yesterday.  He killed his estranged wife, Ruby White, with a shotgun in 1988.  Keith Clines of the Huntsville Times has this report.

As is common in last-minute capital appeals, White had two petitions to the Supreme Court.  White v. Culliver, Warden, No. 10-8367 sought review of the decision of a lower federal court, and White v. Alabama, No. 10-8382 sought review of the decision of the state high court.

The statute on stays pending Supreme Court review, 28 U.S.C. §2101(f) gives the power to grant a stay to individual Justices, but it was settled in 1807* that a power given by law to individual Justices may be exercised by the full Court.  In capital cases, the individual Justice assigned to the circuit regularly refers the application to the full Court whenever there is time.

In this case, the execution was held up when Justice Thomas, the Justice assigned to the Eleventh Circuit, granted a stay individually, apparently to allow time for the full Court to consider the application.  The claim involved ineffective assistance in plea bargaining, an issue the Court is actively considering in other cases.  The Court subsequently denied the stay and certiorari petition, without dissent, and lifted the stay previously issued.  The execution went forward about 3 hours later than scheduled.

The case also illustrates one reason why the death penalty is less often imposed in domestic violence cases.  The victim's daughter is also the perpetrator's daughter, and she was opposed to the execution. 

* Ex parte Bollman, 8 U.S. 75 (1807), a case arising out of the Aaron Burr conspiracy.

Edwin Edwards, the "colorful" governor of Louisiana who inspired the above bumper sticker, got out of the federal slammer today.  Melinda DeSlatte has this story for AP.  Background is here.

This month's California Lawyer has an interview with Justice Scalia by UC Hastings law professor Calvin Massey.  The discussion of the Constitution contains no surprises for those familiar with Justice Scalia's writings and philosophy.  The final question is new, and least to me:

You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?

I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas--it's not pizza. It's very good, but ... call it tomato pie or something. ... I'm a traditionalist, what can I tell you?

Resignations from Massachusetts Parole Board:  Martin Finucane of The Boston Globe reports Massachusetts Governor Duval Patrick announced today the resignations of five members of the state's parole board and the agency's executive director.  The shake up comes after the recent shooting death of a local police officer, allegedly by Dominic Cinelli, a parolee with an extensive and violent criminal background.  After a review of the board's decision making and supervision with respect to Cinelli, Duval stated he "cannot say that the Parole Board or parole office did all they could to ensure public safety."  Duval also announced he intends to place a moratorium on executive sessions for high-risk offenders and to propose tougher legislation on repeat offenders.

California Judge Reduces Teen Murderers' Sentences:  California Judge J.D. Lord yesterday reduced the sentences of two Long Beach teens by more than 100 years, reports Press-Telegram (CA) staff writer Tracy Manzer.  Eric Benites and Jason Trejo were 15- and 14-years-old, respectively, when they went on a several week shooting spree in 2007-2008, leaving one teen permanently disabled and another dead.  Judge Lord originally sentenced Benites to 255 years to life and Trejo 212 years to life, but reduced the sentences to 50 years to life with the possibility of parole.  The pair have allegedly shown no qualms about spending time behind bars, Benites indicating his plans to attack black people while in custody and Trejo boasting of his future role as a "shot-caller" to send young gangsters on missions.

Female Escapee Arrested after 32 Years on the Lam:  Nancy Garces was arrested in a Santa Barbara train station yesterday after spending 32 years on the run, report Amanda Watts and Michael Martinez of CNN.  Garces escaped in 1979 from a Chino prison while serving time for credit card fraud.  She allegedly changed her name and has been living in New Mexico.

Washington Proposal to Shield Rape Victims:  The Washington legislature held a hearing yesterday on a proposed bill to protect rape victims from direct questioning by their accused rapists, reports Molly Rosbach of the AP.  Under current law, criminal defendants who represent themselves at trial have a right to directly question victims who choose to testify.  The bill would give presiding judges the option to run the questions through a third party, thus avoiding the direct confrontation.  The proposed legislation comes in light of an incident last year, when a rape victim climbed atop a courthouse and threatened to jump before cross examination by her accused rapist.  Opponents of the bill are pointing to possible violations of a criminal defendant's Sixth Amendment's right to confront his or her accuser.  

The US Supreme Court has put the certiorari petition in the Alabama murder case of Maples v. Allen, No. 10-63, on its list to be considered at tomorrow's conference.

The case has been dormant since the "long conference" in late September.  It presents an issue related to the one in the pending case of Walker v. Martin, and counsel for Maples, former SG Gregory Garre, filed an amicus brief in Martin.  The restoration of the case to active consideration may portend some action in Martin.

In the simplified version of the Maples case, he missed the deadline for appeal of his state post-conviction petition when his pro bono lawyers left their big-name NYC law firm, and the firm's mailroom just returned a notice to the Alabama court instead of forwarding it.  The truth is a little messier.  Maples also had local Alabama counsel who received actual notice but did nothing.  The two NYC lawyers had failed to notify the court of their change of address.  This is a case of lawyer failure of duty, not mailroom clerk error.

Maples' claim does not dispute that he is the one who shot Stacy Terry and Barry Robinson in the head with a .22.  He claims the old too-intoxicated-to-form-the-mental-state defense.  (In noncapital cases, at least, the State may decide, as a matter of penological policy, "too damn bad," which was the common law rule.  See Montana v. Egelhoff, 518 U.S. 37 (1996).)  Given the lack of any basic miscarriage of justice, it seems an inappropriate case to bend the rules.  The Eleventh Circuit opinion is here.

Greg Moran reports for the San Diego Union-Tribune:

U.S. District Judge Larry A. Burns of San Diego was appointed Wednesday to preside over the case of Jared Loughner, the Tucson man accused of shooting Rep. Gabrielle Giffords and killing a federal judge and five others.

The 56-year-old Burns was named to the case after all the federal judges in Arizona recused themselves to avoid the appearance they could not be impartial in a trial of Loughner. One of the victims who was shot in a Tucson supermarket parking lot Saturday was Judge John Roll, the district's chief judge.

*                   *                  *

Burns was a federal prosecutor in San Diego from 1985 to 1997, building a formidable reputation as the office's top lawyer tackling -- and winning -- the most difficult cases. [He and defense lawyer Judy Clarke] squared off in several cases.

The U.S. Supreme Court today heard oral argument in Kentucky v. King, a case that asks the question - at what point do police impermissibly create exigent circumstances, such that they cannot rely on exigency to enter a home without a warrant?

"[W]arrants are generally required to search a person's home or his person unless the 'exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment."  (Mincey v. Arizona.)  The boundaries of what constitutes "exigent circumstances" have been the source of much litigation, but were not really at issue in the case argued today.

CJLF has sent a letter to Illinois Governor Pat Quinn, urging him to veto the death penalty repeal bill.  The PDF version is here.  The text is after the jump.

If you live in Illinois, contact the governor and urge him to veto this most misguided piece of legislation.  His contact page is here.

The Ninth Circuit is not quite the "Ninth Circus" that it was previously, as a result of appointments during the Bush Administration.  Panel decisions in favor of criminal defendants are now sometimes corrected en banc, rather than going up to the Supreme Court to add to the Ninth's notorious reversal rate.

One such decision was a fairly standard case on premeditation, United States v. Begay.  Murder is a federal offense in certain places under federal jurisdiction, including "Indian Country," 18 U.S.C. §1153, and the degrees of murder are pretty standard.  See §1111.  The case involves a confrontation between young people that turns violent is an all-too-familiar way. 

Arizona Judges Recuse Themselves from Loughner Case:  The AP reports all federal judges in Arizona have recused themselves in the case against Jared Loughner.  U.S. District Judge Roslyn Silver issued an order today that the death of fellow Judge John Roll called into question the judges' impartiality.  Ninth Circuit Chief Judge Alex Kozinski will appoint a presiding judge from outside the state.

Insanity Defense in Loughner Case?:  Benjamin Weiser of The New York Times has this piece on the Loughner case, opining the defense team for the 22-year-old "may find it difficult to mount a successful insanity defense," though "his only chance might be to invoke such a defense."  One death penalty lawyer who has worked with Loughner's assigned attorney Judy Clarke in previous cases anticipates Clarke will dig far back into Loughner's life to "find this man's story," and may use any mental health problems to mitigate against a death sentence, should the possibility of one arise.  As of now, neither the feds nor Arizona has indicated whether it will seek the death penalty upon a conviction.    

Los Angeles Police Officer Shot in Face by Parolee:  Los Angeles County Sheriff's Deputy Mohamed Ahmed was shot last night by a California parolee, reports the Los Angeles Times.  27-year-old Ahmed and his training officer were on a routine patrol when they approached East L.A. gang member Nestor Torres, a violent criminal out on parole with prior felony convictions involving firearms.  Ahmed was shot in the face and is currently in critical, but stable, condition.  Torres was fatally shot.

Columnist/psychiatrist Charles Krauthammer has this column in the WaPo on the Tucson shooting and the reaction to it.  Here is the bottom line:

The origins of Loughner's delusions are clear: mental illness. What are the origins of Krugman's?

Update:  James Taranto has this post at WSJ on the vitriolic Mr. Krugman's denunciation of vitriol and a false factual premise for his opinions.

Update 2:  Gallup finds that the thesis of Krugman et al., that political rhetoric was a major cause, has gone over like the proverbial lead balloon with the American people.

Judge Kevin Fine in Texas had been conducting a hearing in a capital case, in which his aim  --  obvious to any fair-minded observer  --  was to declare the death penalty unconstitutional as too likely to result in the execution of an innocent person.

It was a novel theory to start with, since (1) no court or any other neutral body has determined that a single innocent person has been executed in at least 50 years; (2) even were it otherwise, the only relevant question before Judge Fine was whether the particular defendant before him was innocent; and (3) the weighing of the benefits of capital punishment versus its dangers is the quintessential legislative task, not a job for the judiciary.  The at least theoretical risk of executing an innocent person has been known since the death penalty was invented, and now, in the era of super due process, is less than ever.  The real risk, as followers of this blog know, is not that we execute innocent people but that we so often fail to execute guilty ones, leading, when they continue their lethal behavior, to the moral abomination of preventable murder.

Well, good news.  The highest criminal court in Texas, which initially called a temporary halt to Judge Fine's abolitionist carnival, has put it permanently out of business, as recounted in this story.

Congratulations to the Houston prosecutors for their excellent work.

[Editor's Note:  The CCA majority opinion is here.  I will post a link to the dissent when I find it. -- KS]

UPDATE:  It seems there is no dissenting opinion.  This makes perfect sense.  What in the world would it say?

The ex-Governator has apologized to the parents of Luis Santos for the "last minute nature" of his decision to commute the sentence of one of Luis's killers, who just by the wildest of coincidences happens to be the son of the former Speaker of the Assembly.  He does not apologize for the commutation itself.

Mr. Santos is also considering filing a lawsuit.  KNX in LA has this story and interview.  Such a suit would have nearly zero chance of success.  California's Victims Bill of Rights does contain a right to notice for victims of crime and the families of deceased victims.  However, executive clemency is not mentioned, and the courts are not about to read a restriction on the clemency power where it is not expressed.

E. Fuller Torrey gives us a different perspective on the Tucson shooting in this WSJ op-ed.

The killing of six people in Tucson is one more sad episode in an ongoing series of tragedies that should not be happening. The alleged shooter, Jared Lee Loughner, is reported to have had symptoms associated with schizophrenia--incoherent thought processes, delusional ideas, erratic behavior--and almost certainly was seriously mentally ill and untreated. The fact that he was barred from his college until he was evaluated by a psychiatrist would appear to confirm the nature of the problem.

*                             *                          *

These tragedies are the inevitable outcome of five decades of failed mental-health policies. During the 1960s, we began to empty the state mental hospitals but failed to put in place programs to ensure that the released patients received treatment after they left. By the 1980s, the results were evident--increasing numbers of seriously mentally ill persons among the homeless population and in the nation's jails and prisons.

*                             *                          *

The solution to this situation is obvious--make sure individuals with serious mental illnesses are receiving treatment. The mistake was not in emptying the nation's hospitals but rather in ignoring the treatment needs of the patients being released. Many such patients will take medication voluntarily if it is made available to them. Others are unaware they are sick and should be required by law to receive assisted outpatient treatment, including medication and counseling, as is the case in New York under Kendra's Law. If they do not comply with the court-ordered treatment plan, they can and should be involuntarily admitted to a hospital. Arizona has such a provision in its laws, but it is almost never used.

Susan Estrich has this commentary on the rapidity and looseness with which people started slinging blame in the Tucson shooting.  Who is really to blame?

Obviously, the person to blame is the one who pulled the trigger.  If, as all evidence suggests, that man was Jared Lee Loughner, then it is perfectly clear that the man to blame is a deeply disturbed, mentally ill, deranged individual who -- in my book at least -- knew what he was doing and knew that it was wrong. And that is all that is required to defeat an insanity plea and establish his responsibility.

He deserves a vigorous defense.

And if, as the evidence suggests, he is guilty, he deserves the ultimate penalty.

Sarah Palin also made a statement, including this: "Acts of monstrous criminality stand on their own. They begin and end with the criminals who commit them, not collectively with all the citizens of a state...."

F. Lee Bailey is apparently trying to squeeze more from his participation in the infamous O.J. Simpson trial.  Clarke Canfield of AP reports that Bailey claims to have evidence that proves Simpson's innocence but was not introduced at trial.

Uh-huh.  So why didn't Simpson's civil lawyers use it when he was being sued for (and ultimately found liable for) every penny he had?

The story concludes with the note that Bailey has been disbarred in Florida and Massachusetts.

Scheduled Execution:  Tim Talley of The Oklahoman reports on today's scheduled execution of Oklahoma death row inmate Jeffrey David Matthews, convicted of murdering his 77-year-old great-uncle in 1994.  Prosecutors allege that after Matthews and another man broke into Otis Earl Short's home, Matthews shot the elderly man in the head at close range while the other man cut the throat of Short's wife (who ultimately survived the attack).  Three execution dates were set for Matthews last year, but each one was postponed after challenges to either Matthews's guilt or the state's planned method of execution.

Bizarre Murder-by-Stove Conviction Affirmed:  In what reads like a law school exam question, a felony-murder conviction stemming from a stolen stove was affirmed last week by a California appeals court.  Prosecutors alleged that Cole Allen Wilkins stole several major appliances from a Riverside construction site, put them untied in the back of his truck, and fled down a freeway.  When a stove fell onto the highway, a Los Angeles County Sheriff's deputy on his way to work swerved to avoid it and was fatally crushed by a cement truck.  Wilkins was convicted of first-degree murder and sentenced to 26 years to life. The appellate court affirmed the murder as a death occurring during the commission of a felony: "Here, the act that caused the homicide - the failure to tie down the load of stolen loot - occurred at the scene of the burglary, not 60 miles later when part of the unsecured load fell off the back of defendant's truck."  Larry Welborn of The Orange County Register has this story.

NH Governor Endorses Expanded Death Penalty Eligibility:  New Hampshire Governor John Lynch last week endorsed expanding the state's death penalty to include "heinous" home invasion murders, reports Joseph G. Cote and Kevin Landrigan of The Nashua Telegraph (NH).  The Governor's endorsement comes in light of the 2009 brutal hacking death of a 42-year-old mother Kimberly Cates inside her home by two alleged co-defendants, neither of whom are eligible for capital punishment under the current law.  Opponents of the expansion claim it will be difficult to word the law so as to target crimes against innocent victims such as Cates and not, for instance, murders resulting from turf fights that result in a death.

Tim Madigan reports in the Fort Worth Star-Telegram, "Barring a last-minute intervention by the U.S. Supreme Court, former Army recruiter Cleve Foster will be executed by injection today for the 2002 rape-slaying in Fort Worth of a Sudanese immigrant."

Attorneys for Foster maintain he is innocent, but they have one small problem: DNA.  "'Foster was undoubtedly a participant in this murder,' [AG] Abbott's filing said. 'He offers no credible explanation for how his semen wound up in the victim's vagina.'"

Foster and his roommate/codefendant Sheldon Ward

were also linked to the death of Rachel Urnosky, 22, a Texas Tech graduate who had moved to North Texas for a job. Two months before Pal's slaying, Urnosky was found dead in her Fort Worth apartment, raped and shot in the head. Ballistic evidence showed that Ward's handgun was used in the killing.

Pal's family could not be reached. On Christmas Day, Urnosky's relatives issued a statement in which they "vehemently opposed" Foster's request for clemency, which was turned down Friday by the Texas Board of Pardons and Paroles.

"Our lives are forever altered by this premeditated crime against not just our daughter, Rachel, but another young woman, Miss Pal, both in the prime of their young lives," the statement said.

Ward was also sentence to death but died of natural causes.  The stay application docket is here.

Update:  The Supreme Court has granted a stay pending its disposition of the certiorari petition. Justices Scalia and Alito note they would have denied the stay.

The US Supreme Court is in session today, but there is no action in criminal law.  The Court issued opinions in a tax case and a bankruptcy case, and it is hearing oral arguments in two civil cases.

Seven years ago, the Green River Killer escaped execution for the murder of 48 women by extorting a life sentence in return for revealing the location of the victims' remains.  The Seattle Times has this info page on the case.

Kyle Moore reports at King 5 News that remains found by children have turned out to be those of Becky Marrero, who disappeared December 3, 1982.

Supreme Court Denies Challenge to Oregon Jury Law:  The U.S. Supreme Court today declined to revisit the issue of whether the Sixth Amendment's unanimous jury requirement for criminal cases is binding on the states.  Oregon law provides that a criminal defendant may be convicted by ten jurors (except in first degree murder cases).  Louisiana has a similar law, but all other states impose a unanimity requirement.  Lee Gross of FoxNews has this story. 

Missouri Governor Commutes Death Sentence:  Jim Salter of the AP reports Governor Jay Nixon today spared the life of Richard Clay, reducing the convicted murderer's death sentence to life in prison without the possibility of parole.  The governor's statement indicated he is "convinced of Richard Clay's involvement in the senseless murder of Randy Martindale," but did not explain the reason for the commutation.  Clay was set to be executed after midnight on Wednesday.

Change of Venue Denied in Second New Hampshire Machete Case:  New Hampshire Judge Gillian Abramson today rejected a change of venue request from alleged murderer Christopher Gribble, filed in light of alleged co-conspirator Steven Spader's first-degree murder conviction, reports WMUR (NH).  Judge Abramson also denied a request from Gribble's defense team that the prosecution refrain from using emotionally-charged words such as "slaughter" and "ambush" during trial.  The judge stated:  "If I see prosecutorial misconduct, I will address it, but short of that, I'm not going to turn into a thesaurus up here."

Texas's Alleged "Twilight Rapist" is Prison Employee:   Authorities believe 53-year-old Billy Joe Harris might be Texas's "twilight rapist," reports Anita Hassan of the Houston Chronicle.  Harris is facing burglary charges after he was caught fleeing from an elderly woman's home over the weekend, and police are looking into whether he is also behind 14 other rapes and attempted sexual assaults in the area, all taking place during the evening and early morning hours in 2009 and against women between the ages of 65 and 91.  Harris has worked on and off for the Texas Department of Corrections for more than 12 years

In the federal system, who has the authority to decide whether and under what circumstances persons previously convicted of crimes will be allowed to possess guns, bullet-proof vests, and similar items that can be used to commit crimes or to defend against them?

Today, in Alderman v. United States, the U.S. Supreme Court declined to review a decision of the Ninth Circuit upholding a federal statute which forbids persons previously convicted of crimes of violence to possess "body armor."  Justice Thomas, joined by Justice Scalia, dissented, arguing the Court should take the case.  The federal law is supposed to come within the power to regulate interstate commerce because it requires that the body armor have moved in interstate commerce at some point.  That is a very tenuous hook, under some relatively recent* Supreme Court precedents, Lopez and Morrison.  See this prior post.

I have long contended that enumerated powers and not the Second Amendment was the way to go after Congress's more extreme limitations on firearm ownership (e.g., a lifetime ban for a single misdemeanor conviction of domestic violence).  The fact that only one other Justice joined the opinion is somewhat surprising, but a Justice's decision not to join an opinion such as this does not necessarily indicate disagreement on the underlying point.

Particularly in light of the tragedy in Tucson, let me make clear that I am not taking a broad stand against restrictions on firearm ownership.  Some restrictions are needed, obviously.  However, I do believe that these decisions come within the state's authority in our federal structure.

Hmong General Vang Pao, an important U.S. ally during the Vietnam War, died Thursday near Fresno, California.  He is so highly regarded in the Hmong community that 40,000 people are expected at his funeral, Stephen Magagnini reports in the Sacramento Bee.

Gen. Vang was at one point a defendant in a criminal case charging a plot to overthrow the communist government of Laos.  The general himself was dropped from the case, but it continued against others.  Much of it was thrown out by the Federal District Judge, and what remained was dismissed today, Denny Walsh reports in the SacBee.

The current issue of Engage has two articles regarding ethical issues arising from professional transitions.  Ronald Rotunda has this article entitled, Judicial Disqualification When a Solicitor General Moves to the Bench.  Also, Edwin Williamson and Richard Painter have a reprint of their March 2010 Weekly Standard article, DOJ's Ex-Detainee Lawyers: The Ethics Issue.  The reprinted article is followed by this Epilogue:

We have not done any additional research since the original publication of this article. We do note, however, the nearly disastrous outcome of DOJ's decision to try detainee Ahmed Khalfan Ghailani in a civilian court and wonder if the poor judgment reflected in that decision and the conduct of his trial reflects the influence of the ex-detainee lawyers. If it does, it adds more heat to the controversy as to whether those lawyers should have been banned from  participating in the disposition of the Guantanamo detainees.

Sirhan Sirhan was sentenced to death by the State of California, not the United States, for the 1968 murder of U.S. Senator Robert Kennedy.  Assassination of a member of Congress was not a federal offense at the time.* 

In 1971, Congress added 18 U.S.C. §351.  Subdivision (c) makes attempted murder of a member of Congress a federal offense punishable by life in prison.  Subdivision (a) applies the federal murder statute (§1111) to murder of members of Congress and Supreme Court Justices, but not lower federal judges.  However, §1114 broadly covers murder of federal employees "while ... engaged in or on account of the performance of official duties."

USDoJ has filed this complaint in the Loughner case.  It charges Loughner under §351(c) as to Congresswoman Giffords.  Section 1114 is invoked as to the murder of Gabriel Zimmerman, an aide to Ms. Giffords, and District Judge John Roll, and as to the attempted murder of aides Pamela Simon and Ron Barber.

The WSJ has this editorial and this op-ed by Glenn Harlan Reynolds on the shooting in Tucson and the reaction to it.

On New Year's Eve, Angie Lee of CBS 8 in San Diego had this story and interview with a juror from the Kevin Cooper case, Kahloah Doxey.  Ms. Doxey has no doubt of Cooper's guilt.

Illinois Repeal of Death Penalty Passes House:  The AP reports the effort to repeal the death penalty in Illinois was approved yesterday by the House after receiving the necessary 60 votes.  An earlier vote yesterday missed the mark by just one vote.  The legislation will now move to the Senate.

Jurors Explain Death Sentence in Father-Son Bank Bombing:  Convicted murderers Bruce and Joshua Turnridge's lack of emotion compelled jurors to decide on death sentences, reports Helen Jung of The Oregonian.  Jurors from the three-month trial also cited Joshua's arrogance and lack of eye contact while testifying, and the tremendous loss to the family members of the slain police officers as motives for their decision.  Some jurors balked against their personal and religious values in deciding on death sentences, as one juror explained their desire for the two men to "give us something: remorse, expression, tears. . . We wanted to save them so badly but there was such a lack of emotion and caring and compassion."

Ohio Tree-Cutter Sentenced to LWOP:  Allison Manning of The Columbus Dispatch (OH) reports 30-year-old Matthew Hoffman was sentenced yesterday to life without parole after pleading guilty to 10 felony counts, including murder, rape, and kidnapping.  Prosecutors allege that in November, while attempting to rob a home, Hoffman killed Tina Herrmann and Stephanie Sprang.  When Hermann's 11-year-old son and 13-year-old daughter returned home from school, prosecutors claim Hoffman killed the boy and abducted and sexually assaulted the girl.  In exchange for removal of the death penalty, Hoffman directed authorities to a hollowed-out tree in rural Knox County, where the dismembered bodies of the three murder victims and the family dog were discovered.

More on Governor Schwarzenegger's Last-Minute Commutations:  Debra J. Saunders of the SF Chronicle has this piece on former Governor Schwarzenegger's three last-minute commutations.  Saunders focuses on the notable commutation of Esteban Nunez, the son of former Assembly Speaker Fabian Nunez, noting that Schwarzenegger overlooked a few important aspects of Nunez's crime when determining a reduced sentence was appropriate.  Saunders also opines that the circumstances of the pardon indicate that the former governor "exited [the office] like a con man on the run."

The US Supreme Court has issued an orders list after its Friday conference.  (This time of year, the Court announces the cases taken on Friday rather than waiting until the Monday orders list to provide more time order to get them briefed and on the oral argument calendar for the present term.)  Three criminal cases were taken up.

Missouri v. Frye, No. 10-444, and Lafler v. Cooper, No. 10-209, deal with effective assistance and guilty pleas, related to an issue presently before the Court (and ripe for decision) in Premo v. Moore, No. 09-658.  The Court has added the question, "What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?"

Why did the Court take up two more cases on this issue.  Possibly Moore is going to be decided on narrow grounds, and they need some more vehicles to flesh out the rule.

McNeill v. United States, No. 10-5258, is yet another Armed Career Criminal Act case. The Fourth Circuit opinion is here.

Jim Reams, a member of the Commission to Study the Death Penalty in New Hampshire, has this op-ed in the Concord Monitor rebutting an earlier article.  He notes that the cost argument is not as cut-and-dried as the anti side claims, because many of the costs are difficult to determine.  The claim that public support is declining is pure blather, as we have documented many times on this blog.

Researchers from Colorado have a new report out which reports that inmates subjected to administrative segregation were not significantly harmed by administrative segregation housing.  Psychologist Karen Franklin has this critical commentary about the study.  Whatever the potential flaws the study may or may not have, it seems a bit odd that critics would deride a study because the researchers did not conduct personal interviews with the subjects.  Few studies do so and its curious how such interviews could be rigorously included in any analysis since qualitative measures are inherently subjective.  The ACLU has also posted its criticism and it too is odd:  Many psychiatric measures rely on self-report and those that do not instead rely on the judgment of the researchers.  These latter measures are often criticized because they incorporate the biased judgments of those conducting the research. 

Sometimes, you just can't win.   

Way back in 1969, Justice John Harlan wrote a prescient dissent in Desist v. United States, 394 U.S. 244, urging the Warren Court to desist from its approach to retroactivity of the new rules it was then creating at a brisk pace.  He was a lone voice in the wilderness at the time, but his view is now, largely, the law, having been adopted for direct appeals in Griffith v. Kentucky, 479 U.S. 314, in 1987 and for collateral review in Teague v. Lane, 489 U.S. 288, in 1989.

The basic rule of the Harlan view is that new rules apply retroactively to cases pending on direct appeal when the new case comes down but not to overturn judgments that have become "final" by the completion of the appeal process.  However, he noted two exceptions.  In reverse order, the second exception is for fundamental procedural reforms, and it explained his continued concurrence in granting habeas relief to people convicted of felonies without counsel.  Gideon v. Wainwright, 372 U.S. 355, was then only six years old.  In all the years since Teague, the Supreme Court has never found any new procedural rule "fundamental" enough to qualify, and it has never cited any case newer than Gideon as an example of such a rule.

The first exception is for new rules that render the conduct for which the defendant was convicted not a crime.  First Amendment cases were the big thing back then, with people being convicted on obscenity charges for materials that the Supreme Court would later decide were protected speech.  But the principle is not limited to the First Amendment, and that brings us to Heller.

Greg Miller reports in the WaPo, "A former CIA officer involved in spying efforts against Iran was arrested Thursday on charges of leaking classified information to a reporter, continuing the Obama administration's unprecedented crackdown on the flow of government secrets to the media."

Unprecedented?  Remember the "plumbers"?

"Steven Aftergood, an expert on government classification issues at the Federation of American Scientists, said the five leaks cases brought so far during the Obama administration exceed the total for all previous administrations."

Really?  Less than five unauthorized disclosure of secrets prosecutions from George Washington to George W. Bush?  That's pretty hard to believe.

Judicial appointments, and particularly the Chief Justice appointment, are widely regarded as the worst mistakes in Jerry Brown's first round as Governor of California.  Brown himself has cited President Eisenhower's "biggest damn fool mistake I ever made" comment in this regard.

Has he learned?  We are going to find out sooner than expected.  Justice Carlos Moreno has announced his retirement.  Howard Mintz has this story in the San Jose Mercury-News.

Bob Egelko reports in the SF Chron.:

A female jail guard's strip search of a male inmate was a "humiliating event" that violated his rights, a divided federal appeals court in San Francisco ruled Wednesday.

Such searches of a prisoner by a guard of the opposite sex are unconstitutional except in an emergency, the Ninth U.S. Circuit Court of Appeals said in a 6-5 decision.

The Ninth Circuit's decision in Byrd v. Maricopa Co. Sheriff's Dept. is here.  I actually agree with the prisoner, for once, on the main point.

In the background of this case is the dilemma of prison and jail administrators who will be accused of civil rights violations if they assign men and women correctional officers differently and constitutional violations if they do not.

We now have a split of authority on the constitutionality of the Stolen Valor Act, 18 U.S.C. §704(b), making it a crime to falsely claim an award of a military medal.  As noted in previous posts here and here, the act had been held unconstitutional by a District Court in Colorado and by the Ninth Circuit.

Eugene Volokh has this post pointing us to a decision by a District Court in Virginia upholding the act.

If this decision goes up to the Fourth Circuit and is affirmed, we will then have a "circuit split" worthy of the Supreme Court's attention.

Call for Action on "Melissa's Bill":  Joan Vennochi has this editorial in The Boston Globe, calling for Massachusetts lawmakers to vote on "Melissa's Bill," a decade-old bill mandating maximum sentences and parole ineligibility for repeat felons.  The bill was proposed in light of the 1999 murder of Melissa Gosule, who was abducted, raped, and murdered by a repeat offender.  The bill has languished for years in a judiciary committee, but has recently been revived after the recent shooting death of a police officer, allegedly by a released parolee with three life sentences.  Vennochi criticizes the state legislature's hands-off approach: "Letting the proposal die in committee is the coward's way out.  It deserves a vote and those lawmakers who don't support it should have the decency to look into the eyes of [victims'] relatives left behind and tell them why."

First Execution of 2011 Scheduled for Tonight:  Oklahoma is scheduled to carry out the first execution of the year, reports Naimah Jabali-Nash on the CBS Crimesider blog.  Billy Don Alverson, 39, was sentenced to death for the 1995 beating death of a convenience store supervisor in Tulsa.  Prosecutors say Alverson and three other men beat the victim with a baseball bat, delivering a total of 54 blows and leaving his body in the store's cooler.  The other three defendants were also sentenced to death, and one was executed in 2009.

Oregon Court Weighs in on Viewing Child Porn:  The Oregon Supreme Court today ruled that accessing, and presumably viewing, kiddie porn on the internet does not amount to "possession."  The court reasoned: "Looking for something on the Internet is like walking into a museum to look at pictures -- the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them."  Aimee Green of The Oregonian has this story.

Comic Relief:  A stupid criminal story or two is always good to lighten the mood.  Terry Sanginiti of The News Journal (DE) reports 44-year-old John Finch broke into a Wilmington, Delaware home, drank five bottles of liquor over the course of a few days, and finally called 911 when he couldn't figure out a way out.  After rescuing him from the house, police promptly arrested him.  And Lisa A. Davis of Tampa Bay Online reports a Florida teen, after being arrested on burglary charges, took several bites of a patrol car's back seat.  The sheriff's office estimates the teen caused $300 in damage.

The House of Representatives is reading the Constitution this morning.  It is a symbolic gesture, but as noted in this post, symbolic gestures can have an effect on the zeitgeist and ultimately impact substantive decisions.

You hear some rhapsodizing in some quarters about the "perfect Constitution."  That is nonsense, as a full reading reveals.  The original Constitution was far from perfect.  Some deficiencies stemmed from necessary political compromises, some from oversights, and some from ideas that just didn't work out.  Amendments were necessary and remain necessary.

From the SacBee's Capitol Alert blog:

Gov. Jerry Brown this afternoon defended his appointment of Bill Honig to the state Board of Education, saying the former state schools chief has "acquitted himself well" since being convicted of felony conflict-of-interest charges in 1993.

Now there is an interesting play on words.

In the same stroke, Gov. Brown has appointed the fox to guard the chicken house.  Another nominee is "Patricia Ann Rucker of Elk Grove, the legislative advocate for the California Teachers Association."

The title above is the title of this post by David Ingram at BLT:

President Barack Obama today re-nominated, as expected, the vast majority of judicial nominees who were not confirmed at the end of 2010. But exactly one previous nominee is not among them: Judge Robert Chatigny for the U.S. Court of Appeals for the 2nd Circuit.

The lack of another nomination makes Chatigny the first of Obama's judicial picks to fail to win confirmation, though others, such as Goodwin Liu for the 9th Circuit, may be filibustered.

Chatigny faced heated Republican opposition because of his involvement, as a federal district judge, in a state capital case. A threat he made about a lawyer's law license had prompted an ethics inquiry, though a panel of three other federal judges cleared Chatigny.

It is good to see capital cases getting the attention they warrant in the judicial confirmation process.  These cases have a particularly strong effect in exposing the tendency of judges and wannabe judges to substitute their policy preferences for the laws duly enacted through the democratic process.

The Ninth Circuit today put some reasonable limits on the use of equitable tolling to extend the reach of its now-discredited precedent on late-filed federal habeas petitions.

State prisoners have one year to file their federal habeas petitions after their state direct appeals are denied, but the time is tolled during the pendency of any "properly filed" state-court collateral reviews.  Is a state collateral petition "properly filed" if it is untimely under state rules?  The Ninth said yes in Dictado v. Ducharme, 244 F.3d 724 (2001), effectively allowing every inmate to give himself extensions of time by filing untimely state petitions, extending his federal deadline by the length of time the state court takes to get around to dismissing.  The Supreme Court decided otherwise in Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Do inmates get "equitable tolling" claiming they were relying on Dictado before its demise?  Up to a point. 

40-Year Low in Los Angeles Homicide Rate:  With a total of 297 homicides in 2010, Los Angeles is reporting its lowest homicide rate since 1967, writes Emily Henry of The South Los Angeles Report.  The total is five percent less than the number in 2009, 22 percent less than in 2008, and 75 percent less than in 1992 when the total peaked at 1,092.  All is not rosy, however;  the holiday season this year saw four killings on Christmas Eve and five on Christmas Day.

Homeless Camp Raids Illegal, Says Alaska Judge:  An Alaska trial judge yesterday struck down a city ordinance allowing authorities to clear out illegal homeless camps and toss remaining property after five days' notice.  Judge Mark Rindner determined the ordinance to be facially unconstitutional, finding the five-day notice inadequate, especially in light of hardships faced by the homeless.  Lisa Demer of the Anchorage Daily News has this story.

Border Crime on the Rise?:  KPHO (AZ) reports on today's release by officials in Pinal County, Arizona, disputing Janet Napolitano's statements that border crime is down.  The Pinal County Sheriff's Office says that since 2007, the poundage of marijuana seized has gone up 65 percent and the number of calls to Border Patrol for assistance has more than doubled.  The release also identifies several officer shootings, violent kidnappings, and instances of rescued aliens abandoned in the desert by their "coyotes."

12-Year-Old Murder Gets 30 Year Sentence:  WANE (IN) reports 12-year-old Paul Gingerich was sentenced yesterday to 25 years in prison plus five years of probation for his part in the 2010 shooting death of a friend's stepfather, Philip Danner.  Police allege Gingerich, Colt Lundy (Danner's stepson) and another boy planned the killing for weeks, snuck into Danner's home, shot him in the wrist, eye, and chest, and then attempted to flee to Arizona.  Lundy pleaded guilty in September to conspiracy to commit murder and was sentenced to 30 years.

Last evening upon my return home, I found on my doorstep a flyer claiming irrefutable Biblical proof that the world will end this coming May 21.  Seems like a good occasion to recall how different newspapers will report the end of the world:

WSJ:  World Ends: Dow off 5000, Gold Steady

NYT:  World Ends: Women and Minorities Hurt Most

Sporting News:  Series Canceled -- No World

Carrie Johnson reports for NPR:

The White House will tomorrow renominate more than a dozen candidates for judicial positions on federal courts, a person familiar with the administration's plans tells NPR.

The Senate failed to vote on the nominees before the last Congressional term expired last month.

In all, the Senate never took an up or down vote on 19 of the Obama administration's judicial nominees, leaving them stranded at the end of the congressional session.

Among those the president will renominate are the most controversial nominees, who include University of California law professor Goodwin Liu and California magistrate judge Edward Chen.

Liu has come under particular criticism from some Republicans, in part because of sharp comments he made about the nomination of now-Supreme Court Justice Samuel Alito.

My previous post on judicial nominations contained an error regarding Second Circuit nominee Robert Chatigny, which has been corrected.

On a related issue, Ruth Marcus has this column in the WaPo warning Democrats that proposals to change filibuster rules could backfire.

Another of the Governator's last-minute clemencies was for Sara Kruzan, who committed murder at the age of 16.  Her cause was championed by State Senator Leland Yee, who for the last several years has been pushing legislation to create a possibility of parole for all under-18 murderers.

The National Organization of Victims of Juvenile Lifers cites the Kruzan clemency as evidence that Yee's legislation is unnecessary.  There are already enough safety valves in the system.  Their press release follows the jump.

Note to would-be gang members:  If you decide to throw away the opportunities you have for a law-abiding life, join a gang, and participate in stabbing someone to death just because you weren't allowed into a party to which you were not invited, just be sure your father is the speaker of the state assembly.

On his way out the door, the Governator commuted the manslaughter sentence of Esteban Nunez, who just by the wildest of coincidences happens to be the son of former Speaker Fabian Nunez.

This 2008 LAT article by Tony Perry and Patrick McGreevy describes Nunez's membership in The Hazard Crew and the circumstances of the killing of Luis Dos Santos near San Diego State University.

Ryan Lillis reports in the SacBee, "Dos Santos' family was outraged by the governor's action. 'This is wrong, that's why they did it on the last day, so they wouldn't have to answer to anybody,' said Fred Santos, the victim's father."

Dana Littlefield and Karen Kucher report in the San Diego Union-Tribune:

San Diego County District Attorney Bonnie Dumanis said her office was not consulted before fellow Republican Schwarzenegger announced his decision to reduce the prison sentence from 16 years to seven years.

"We were shocked to hear of the Governor's last-minute commutation, which greatly diminishes justice for victim Luis Santos and re-victimizes his family and friends," Dumanis, a former Superior Court judge, said in a statement.

Nunez had already received leniency by being allowed to plead to manslaughter when the crime was straight-up murder.  Failure to consult the prosecutor and get the other side of the story in a case such as this is inexcusable.

The San Jose Mercury-News has this editorial calling for an end to end-of-term pardons.  In 2003, I wrote a constitutional amendment that would have done just that.  It was killed in committee.

While making a lawful arrest, can a police officer peruse through the arrestee's cell phone?  The California Supreme Court yesterday answered yes, in light of U.S. Supreme Court decisions outlining the scope of a valid search incident to an arrest:

As the People explain, the cell phone "was an item [of personal property] on [defendant's] person at the time of his arrest and during the administrative processing at the police station." . . . Because the cell phone was immediately associated with defendant's person, [the arresting officer] was "entitled to inspect" its contents without a warrant . . . at the sheriff's station 90 minutes after defendant's arrest, whether or not an exigency existed.

(Internal citations and footnotes omitted.)  The court rejected the notion that the warrant requirement "depends on the item's character, including its capacity for storing personal information."

Taking a different approach, the Ohio Supreme Court recently arrived at the opposite conclusion.

In part, whether the warrantless search of a cell phone passes constitutional muster depends upon how a cell phone is characterized . . . . 

*                  *                  *

[Cell phones'] ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. . . .  Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone are neither lost nor erased.  But because a person has a high expectation of privacy in a cell phone's content, police must then obtain a warrant before intruding into the phone's contents.

The AP has this story.

Gov. Schwarzenegger Commutes Sentence During Final Hours:  During the final hours of his term in office, Governor Schwarzenegger commuted the manslaughter sentence of Esteban Nunez, who pleaded guilty earlier this year to fatally stabbing a man during a fight.  Family members of victim Luis Santos, deeming Schwarzenegger's decision a "sneaky" move, pointed out that Esteban had already received a reduced sentence as part of a plea bargain and that Esteban's father, former assembly speaker Fabian Nunez, previously worked with the Governor on key legislation.  One legal analyst countered that the Nunez family properly followed the required legal process for obtaining a commuted sentence.  Lilian Kim of KGO-TV (CA) has this story.

Accused New Year's Day Murderer Had Violent History:  Teri Figueroa of the North County Times (CA) reports Dontaye Henderson, charged with shooting to death his wife on New Year's Day in front of their six-year-old daughter, was a parolee with a history of violence against women.  Henderson pleaded guilty in 2003 to raping his estranged first wife at knife-point.  He was released on parole in 2005, but returned to prison at least three times for parole violations. Henderson has been on the run since the shooting over the weekend.

Arizona High Court to Consider Execution Drug Dispute:  The Arizona Supreme Court will consider today how to proceed in the case of double murderer and death row inmate Daniel Wayne Cook, reports Michael Kiefer of The Arizona Republic.  Cook's attorneys have asked the court to hold off on setting an execution date unless and until it can be determined whether the state legally obtained its supply of thiopental.  If the court elects to issue a death warrant, Cook would be executed in 35 days.

Foot-Shootin' DEA Agent's Suit Tossed:  The AP reports a federal judge in Florida last week dismissed a lawsuit against the DEA by former agent Lee Paige, who was made infamous by his 2004 foot-shooting blunder during a gun safety demonstration.  Paige had alleged a violation of his right to privacy, but the judge determined Paige failed to provide evidence as to who made the video public.

Today the Ninth Circuit rejected an attack on the California statute providing for DNA testing of prison inmates.  It's pretty straightforward, given the Ninth's prior rejection of an attack on the similar federal statute in United States v. Kincade, 379 F.3d 813 (2004) (en banc).  The case is Hamilton v. Brown, 09-15236.

Is crime down in New York?  Turns out the answer depends on which crimes you count and possibly how you count them.  Tamer El-Ghobashy reports in this year-end article in the WSJ, "Based on the latest NYPD statistics, overall crime was down 1.4% through [Dec. 26] compared with the same period in 2009. However, murder, rape, robbery and felony assault remain higher than last year."

Crime indices typically count numbers of crimes without weighting for severity.  Because crimes tend to occur in inverse proportion to severity, crime indices tend to reflect the rates of the least serious crimes included in them.  The FBI's violent crime index is mostly an index of robbery and aggravated assault, with murder and rape rates having little effect.  The overall crime index is dominated by property crimes, which are more numerous than violent crimes.

According to the article, academics Eli Silverman of John Jay College and John Eterno of Malloy College think NYPD is cooking the books by downgrading some of the property offenses to charges that sink below the radar of the index.  However,  "A Wall Street Journal analysis of those numbers, assisted by professors on both sides of the statistics debate, found there were no obvious trends to indicate that index crimes were being downgraded into misdemeanors."

A skew between violent and property crime rates is consistent with what one would expect from the policy trends in New York, emphasizing improved policing and deemphasizing punishment.

I had hoped to start off the New Year with a hopeful story, but apparently it is not to be.  This Boston Globe article follows up on an earlier report about the Massachusetts Parole Board's unconscionable decision to put back on the street a life-long, violent criminal who, less than two years later, gunned down a police officer during a robbery.  As the article recounts: