February 2011 Archives

The "Incarceration Nation" Shell Game

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Proponents of reducing the prison population because of excessive cost and over-crowding  --  that is, those who have been upbraiding the United States about being "incarceration nation"  --  inevitably make it a point to to reassure us that using "less structured" and more "rehabilitation-friendly" alternatives like halfway houses will save tax dollars and do just fine protecting public safety.

OK, that was then.

Today's Washington Post editorial is a tip-off that they've been pulling our leg all along.
Seems like halfway houses are also too expensive (isn't everything), harsh and ineffective, not to mention inconvenient to your local felon. 

As I suspected, the real agenda turns out to be, not the curtailment of prison as punishment, but the curtailment of punishment at all.

And why not? If, as we are so often lectured by the Left, the criminal is the victim (of poor schooling, bad parents, brain lesions, twinkies, et al.) why should he be punished? It wasn't his fault; it was our fault.

So we're the ones who should be punished.

As more and more of these characters are quietly put back on the street, as the Post all but explicitly suggests, we will be.

Joshua Komisarjevksy, the remaining suspect accused of the brutal Petit family slayings, will face a jury in the same court as convicted co-defendant Steven Hayes.  The New Haven Register reports:

Superior Court Judge Jon C. Blue Monday released his decision in which he denies a motion by attorneys for Komisarjevsky to move the trial to Fairfield County.
Komisarjevsky lawyers had had argued their client would probably get a fairer trial in Stamford than in New Haven.
But Blue said in his decision that he did not find Komisarjevsky's lawyers established a presumption of prejudice requiring a change of venue prior to the questioning, or voir dire, that will take place of potential jurors.
If the voir dire does not result in the seating of a jury, Blue said "the motion now before the court must be revisited."

Hat tip to How Appealing.

Memory Lapse

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There are some events that everyone who is out of early childhood at the time remembers as long as they live, 9/11 being the most recent.  June 4, 1968 is another.

Well, almost everyone.  Sirhan Sirhan claims not to remember the events of the latter date, Linda Deutsch reports for AP.

Like the other once-death-sentenced murderers of the Class of '72, Sirhan is eligible to be considered for parole.  California had no "life without parole" sentence at the time, so everyone taken off death row in the debacle of that year became eligible for parole.

ABC-TV director William Weisel is a surviving victim of the crime.  "Having covered the White House through seven presidents, he said he does not ascribe to conspiracy theories because, 'The government can't keep a secret.'"

News Scan

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Husband-Wife Make Confession in Jaycee Lee Dugard Kidnapping:  Phillip and Nancy Garrido have made a "full confession" to the kidnapping of Jaycee Lee Dugard, reports Sam Stanton of The Sacramento Bee.  Nancy admitted to taking the then-child off an El Dorado County street in 1991, years later delivering two children Jaycee bore with Phillip.  Nancy's attorney claims the couple confessed in the hopes that Nancy would receive less than a life sentence, but that the district attorney is currently offering her a deal for a sentence of 241 years to life.  The offer to Phillip is more than 400 years to life.

Man Accused in 2006 Fatal Stabbing Faces Death Penalty:  Chelsi Zash of WFMY News (NC) reports trial began today in the case against Tony Savalis Summers, a registered sex offender accused of stabbing to death Lavell Williams in 2006.  Prosecutors claim Summers broke into the home of Williams and attacked her and her two daughters, ages 11 and 16.  Summers will face a death sentence if convicted.

Midshipmen Detail Synthetic Marijuana Use at Naval Academy:  Daniel de Vise of the Washington Post has this story on the use of synthetic marijuana at the U.S. Naval Academy.  Commonly referred to as "spice," the mood-altering substance is illegal in at least 12 states and the U.S. military, but is undetectable in urine tests.  As a result, according to some midshipmen, it has become the school's drug of choice, with remote corners of the historic Annapolis campus serving as well-known smoking locations.  An investigation beginning last October has already led to the "separation" of at least eight midshipmen and several more are expected.

Two Arrested in Connection to a Dozen Chicago Murders:  Jeremy Gorner and Tara Malone of the Chicago Tribune report charges were filed today against two members of a drug crew linked to more than a dozen slayings in Chicago.  Officials believe Augustin Toscano and Raul Segura-Rodriguez were part of a crew that set up large-scale drug deals to rob and kill potential buyers.  The men were arrested over the weekend after a confrontation with police that left one officer shot and another suspect killed. 

"Murderabilia":  Chris Kenning of the Courier-Journal (KY) reports victims and victims' advocates are outraged over the sale of artwork, letters, and a prison I.D. from Michael Carneal, a Kentucky inmate serving a life sentence for a 1997 shooting spree that left three high school students dead and five injured.  The availability of internet markets has allowed the growth of "murderabilia," the sale of prison paraphernalia from convicted serial killers and murderers.  These sales do not fall within "Son of Sam" laws, which prevent criminals from making money from books and movies detailing their crimes.   

No New SCOTUS Cases

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The US Supreme Court's orders list today does not include any new cases taken up for full briefing and argument.  No action on the Maples case.

Update:  Ala. AG tells us Maples is relisted for Friday's conference.

Maples' supplemental brief is here.

Confrontation and "Testimonial" Hearsay

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Seven years ago, the Supreme Court revamped the jurisprudence of the Confrontation Clause in Crawford v. Washington, 541 U.S. 36 (2004).  No longer would the admissibility of a hearsay statement of an unavailable witness depend on its reliability.  Instead, the statement would be excluded if it was "testimonial" in nature.  If not, its admissibility is a matter for the jurisdiction's hearsay rule.  What the heck does "testimonial" mean?  They would work that out later.

Today in Michigan v. Bryant, the high court addressed whether on-the-scene statements from a wounded and dying shooting victim are "testimonial."  The answer is "it depends," and it depends on quite a lot.  The test is whether the "primary purpose" of the question is to deal with the emergency as opposed to gathering evidence for prosecution of the perpetrator.  As in Fourth Amendment law, the circumstances to be examined are objective, not probing the subjective intent of police officers. 

Justice Sotomayor, for the majority of five, wrote a long and fact-intense opinion explaining why this case passed the test.  Justice Thomas, splitting with Justice Scalia on this point, wrote a brief concurrence in the judgment with a simpler test.  The on-the-scene questioning bears no resemblance to formal testimony or a deposition or affidavit.  "This interrogation bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate."

Justices Scalia and Ginsburg dissent.  So much for predictable "liberal v. conservative" labeling.

Justice Kagan was recused, having appeared as amicus in support of the state while SG.  See docket.

Congrats to the Wayne County (Detroit) Prosecuting Attorney's Office.

Where's Your Compassion? A Lockerbie Update.

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Kent and I wrote a number of times about the "compassionate release" of the Lockerbie bomber/mass murderer,  Abdelbaset Ali Mohmed al-Megrahi, by Scotish authorities.  Al-Megrahi had only a few weeks to live, so we were told.  As Scottish Justice Secretary Kenny MacAskill huffed in the characteristically superior style of European Higher Wisdom, "Our justice system demands that judgment be imposed but compassion be available. Our beliefs dictate that justice be served but mercy be shown."

This sounded like a bunch of baloney at the time, and I said so.

I must now confess error.  It was not so much baloney as a pack of outright lies, compounded, we now find out, by international blackmail and big-time payoffs.  The whole astoundingly corrupt story is covered in this Powerline entry.  Its first two paragraphs read:

The most interesting news story of the morning comes from Libya, where it is claimed that Abdelbaset Ali Mohmed al-Megrahi, the Lockerbie bomber, secured his release by blackmailing Muammar Qadaffi, who in turn bribed England's Labour government to let him go:

Abdelbaset Ali Mohmed al-Megrahi allegedly threatened "revenge" on Col Gaddafi unless he was returned home to his family, prompting the dictator to spend £50,000-a-month on lobbying and legal fees in a campaign to secure the terrorist's release.

Most of the criminal defense bar's nonstop yammering about "compassion" is nowhere near as reprehensible as the Lockerbie release story; it's merely the last gasp of the guilty trying a shopworn courtroom stunt.  Still, the Lockerbie tale is worth remembering the next time defense counsel starts in on you for being short on "compassion."

P.S.   Al-Megrahi, the man about to kick the bucket when released, now lives as a celebrity in Libya, a year and a half after being freed.


News Scan

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Convicted Killer Denied Parole:   A story by Paul Srubas of the Green Bay Press Gazette reports that murderer Rey Moore, 64, has been denied parole for his part in the 1992 killing of a co-worker.  Moore was one five employees at the James River Paper Mill in Green Bay, convicted of participating in the murder of mill worker Tom Monfils by tying a weight around his neck and throwing him in pulp vat.  Monfils was killed after the group learned that he had told police that one of them planed to steal an extension cord from the Mill.  Like Moore, the other accomplices received life sentences.

NY Lifer Gets Another Sentence for Cold Case Killing:  Joe Arena of WIVB in Buffalo reports that murderer Frederick Wooten, 53, has been convicted and sentenced to 5 to 15 years for the 1993 strangling murder of Karyn Snead, a co-worker at Buffalo General Hospital.  The cold case was solved while Wooten was serving a life term for the 1994 rape and murder of 30-year-old Denise Broughton.  

28-year-old Could Face Death Penalty in Teen Murder:  Santa Monica Times writer April Charlton reports that prosecutors plan to seek the death penalty if 28-year-old Ty Michael Hill is convicted of the 2010 killing 15-year-old Dystiny Myers.  Hill has been charged with first degree murder, kidnapping, torture, and aiding and abetting in the murder of Myers.  Four others are also being charged in connection with this case.  Allegedly, Myers died after being drugged, beaten, duct-tapped, and had a glove shoved down her throat.  The victim's charred body was discovered last September in a remote area of San Luis Obispo County.

Mother Sentenced to Death for Murder of her Daughter:  Angela Darlene McAnulty on Thursday became the first Oregon woman sentenced to death since state voters restored capital punishment in 1984.  Karen McCowen of The Register Guard reports  that McAnulty, 42, was convicted of the 2009 killing of her 15-year-old daughter Jeanette.  At her trial jurors heard evidence indicating that McAnulty deprived Jeanette of food and water while beating her regularly which eventually led to her death.  Jeanette's father Richard McAnulty has also been charged with aggravated murder and his trial is set for May.

SCOTUS smackdown of Ninth Circuit -- again:  SF Chron Token Conservative Debra Saunders has this post, with the foregoing title, on the Martin decision.

What Became of Catching Crooks?


I've blogged before about opaque phrases like "smart on crime"  --  phrases that have no very obvious definition, but that inevitably turn out to mean a bunch of proposals to empty the prisons or not put anyone in them to start with. 

A first cousin of "smart on crime" is "smart policing."  I have been largely unable to tell what that means, but being a suspicious man, I've had an inkling it means something bad.  Today I think I got a clue, courtesy of this story.  It seems that a police captain is suing the deputy chief for directing him to order his officers to attend a not-entirely-conventional event at the local mosque:

 A Tulsa police captain has filed a federal lawsuit claiming his civil rights were violated after he was reassigned and placed under investigation for refusing to order officers to attend a voluntary social event at a mosque.


The events leading to the lawsuit started last week when members of the Tulsa Police Department were invited to attend a "Law Enforcement Appreciation Day" at the Islamic Center of Tulsa.  It was advertised as a social gathering featuring food, an opportunity to watch a Muslim prayer service, and an invitation to join lectures on beliefs, human rights and women.

According to [Fields' attorney], no one responded to the invitations and no one volunteered. The following day, Fields received a directive ordering him to find officers to attend.

Now your guess is as good as mine as to what this is actually about.  It's no doubt a good thing for the police to know their community.  But you have to wonder what's going on when they're ordered to watch the prayer service of a particular religion, and to participate in lectues about whatever Islamic religious leaders think of "human rights" and "women."  What would the reaction be if the police were ordered to do the exact same thing, except in a speaking-in-tongues, evangelical Christian church?

When I was growing up, the cops were supposed to catch crooks, and that was about it.  On the other hand, when I was growing up, it was a long, long time ago.  No one had heard of sensitivity training, political correctness, or "smart policing."


At Least Someone Gets It

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A fellow in Washington state serving LWOP for his third (!) rape made up his mind to kill a prison guard and did so, with calculation and a good deal of force.  He has concluded that he deserves the death penalty and explains why, as related in this article.

His reasoning seems apt.  A system that refuses, ever, to give the jury the option of imposing the DP for murder effectively gives its LWOP inmates a license to kill.  What's to lose?

This fellow killed because he felt like it, and is honest enough to say so.  Abolitionists demand that we furnish him, and others as bad or worse, not merely a license to kill, but an unlimited license to kill  --  which is about all you need to know about abolitionism.

A related question is why an inmate is able to figure out something that so many academics get wrong.  And the answer, I suspect, is that prison is better connected to reality than a lot of law schools.

Hat tip to notablogger.

Simple Truths

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Sometimes simple people grasp simple truths that more sophisticated minds find convoluted ways to rationalize away.  Sometimes people who have committed very evil acts have a better sense of what is just than some gentle souls who never hurt anyone.

Life prisoner Byron Scherf understands that justice requires that he die for the murder of Washington correctional officer Jayme Biendl, Jennifer Sullivan reports for the Seattle Times.

"I took her life and I think I should forfeit mine," Byron Scherf allegedly told Monroe police investigators earlier this month. "If I get a life sentence and she's [dead] then there's no punishment attached to it because I already have a life sentence."
Obviously.  Who can't see that?  Well, Justice Harry Blackmun and five of his colleagues couldn't when they decided in 1987 that a mandatory death sentence for murder by a life prisoner was unconstitutional.

News Scan

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DNA Links Man to Seven Murders:  AP writer Dinesh Ramda reports that DNA evidence has resulted in the conviction and LWOP sentence of a Milwaukee man who murdered seven women between 1986 and 2007.  Habitual criminal Walter Ellis was arrested in 2009 after his name surfaced in connection with a string of unsolved murders.  His DNA matched semen samples from six of the victims and blood evidence at the scene linked him to the seventh.  Authorities believe that if a correct sample of Ellis' DNA had been taken during an earlier prison term, the last victim might have been spared.  At the time, Ellis had a fellow inmate submit a sample under his name. 

Feds Conduct Major Sweep for Drug Gangs:  Responding to last week's murder of U.S. Immigration agent Jamie Zapata by drug cartel members in Mexico, DEA and ICE are coordinating a massive sweep in the U.S. and Latin America to round up suspected  cartel members.  By Thursday over $4.5 million in cash, guns, a substantial amount of drugs had been confiscated and more than 100 placed under arrest.  "This is personal," said ICE agent Louie Garcia.  "We lost an agent, we lost a good agent, and we have to respond."   The AP story by Alicia A. Caldwell is here.

Saudi student in Texas to carry out Jihad:  A 20 year old Saudi national has been arrested by Federal agents after electronic surveillance and searches revealed evidence that he was plotting to conduct terrorist bombings.  Khalid Ali-M Aldawsari allegedly obtained a student visa to attend South Plains College, near Lubbock, in order to become a martyr.  Even Perez of the Wall Street Journal has the story

How Broad is Martin, Really?

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How much of a change is the Martin decision, really?  After reading it over some more, I am even more firmly convinced that this is a major step forward.  Between last term's Beard v. Kindler decision and this one, the use of "inadequate state grounds" as a weapon for wholesale gumming up of the habeas works has been severely restricted.

Many times, over many cases, I have urged the high court to scrap the "firmly established and regularly followed" rubric and adopt fair notice and a reasonable opportunity to be heard instead, relying heavily on Charles Alan Wright's treatise.  This proposal alarmed the Politically Correct, and in the Martin case it produced an opposing brief from an ad hoc group modestly self-designated "Federal Courts Scholars."

As soon as I saw the opinion was unanimous and authored by Justice Ginsburg, I knew that the full sweep of my admittedly audacious proposal had not been accepted.  How much did the Justices who would have favored my proposal have to yield to achieve unanimity?  Not much.

At the bottom of page 7, the opinion restates the "firmly established and regularly followed" rubric.  But what does it take to qualify?  Nowhere near as much as the Ninth Circuit thought until today.

Maples on Conference List, Again

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In this post in January, we noted the connection between the Alabama murder case of Maples v. Allen and the then-pending case of Walker v. Martin.  With Martin decided, Maples is back on the US Supreme Court's conference list for this Friday.  The result should be a simple denial of certiorari.  We will find out Monday.

The Briefcase Veto

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In a post earlier today, Bill Otis describes the Clinton Administration's attempt to subvert the Act of Congress that sought to abrogate the Miranda rule.  A more subtle but equally wrong ploy was their attempt to subvert the Prison Litigation Reform Act by arguing that in order to uphold it the Court had to construe it in such a watered-down manner as to defeat its purpose.

CJLF filed briefs in both Dickerson v. United States and Miller v. French.  We batted .500.  "Sometimes you're the windshield/ Sometimes you're the bug."

When the President sits on a bill and Congress adjourns in the 10-day window, that is called a "pocket veto."  We need a term for effectively vetoing an already-enacted statute by sitting back and not defending it while it is attacked in the courts.

I suggest "briefcase veto."

N.B.:  As Bill already alluded to, neither this blog nor CJLF takes any position on the underlying gay marriage question.
The title of this post is the title of a commentary in NLJ's Supreme Court Insider.  Unfortunately, it's behind the paywall.  The title is certainly correct.

David Savage in the LA Times notes the reason Justice Thomas rarely participates in the verbal banter.  In his view, cases are decided on the briefs, and oral argument is mostly for show.  Savage reports, "On occasion, the [other] justices say, the answers they hear persuade them to change their decision."  Perhaps, but I think that is very rare.

In any case, on a nine-member court very little, if anything, is lost by one member not peppering the lawyers with questions.  Eight is enough, and probably too many.

Linton Weeks has this interesting story at NPR on Quiet People, including, inter alia, Justice Thomas, George Harrison, and of course President Coolidge.

When Is the Rule of Law Not the Rule of Law?


Answer:  When politics trumps everything else.

Today we hear that the Department of Justice will no longer defend the constitutionality of the Defense of Marriage Act.  This blog is, of course, not about gay marriage, but there is a much, much larger issue at stake.  

The Department has a long tradition of defending an Act of Congress when any reasonable argument can be made in its behalf.  This tradition is essential lest one administration be allowed simply to nullify duly enacted laws it views as politically or ideologically unpalatable.  Such a practice would grievously undermine stability and predictability, which are at the heart of the rule of law.  It would also create a gross expansion of executive power the Founders refused to indulge, i.e., a retroactive veto.  The President is authorized under the Constitution to veto legislation that arrives on his desk.  There is no provision authorizing him to veto legislation a previous Congress passed and a previous President signed.  But that is, for any practical purpose, what President Obama did today.

If the electorate now favors gay marriage, so be it; as I say, that is not the subject of this blog.  Let Congress repeal the DOMA, and President Obama can sign the repealer.  But make no mistake about it.  What we have today is a politics-first attack on the rule of law itself, and an attack undertaken simply to pander to Obama's left wing base.  Bill Clinton's midnight pardons look good by comparison.

Incidentally, we have been down this treacherous road before.  I traveled it myself.

Windy City Mayor

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As expected, Rahm Emanuel won the Chicago mayoral election handily yesterday, Deanna Bellandi and Don Babwin report for AP.  In an encouraging sign, his initial statement concerned public safety.  "We have not won anything until a kid can go to school thinking of their studies and not their safety."

That's a good start.

Now, Mr. Mayor, your next step should be to add your voice to those of your predecessor and the Attorney General and ask Gov. Quinn to veto the death penalty repeal bill.

News Scan

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Illegal Gets 17 Years for Murder:  Francisco Javier Ayala-Lares 21, was sentenced Tuesday after pleading no contest to voluntary manslaughter, two counts of child abuse, and three other felonies.  Ayala-Lares beat to death Elizabeth Reyes, 21, the mother of his two children, with a baseball bat last March because she wanted to end their relationship.  Reyes was found dead at her Oakley home.  The couples' two children, a two-year-old girl and a ten-month old boy, were home during the attack.  Once Ayala-Lares completes his 17 year sentence he is expected to be deported because he is not in this country legally.  The AP has this story.

Men Get 9 Years for Pennsylvania Hate-Crime Killing:  Two Pennsylvania men were convicted of a federal hate crime and sentenced to nine years in prison for the fatal beating of a Mexican immigrant.  Derrick Donchak and Brandon Piekarsky were among a group of white high school football players who attacked 25-year-old Luis Ramirez in 2008.  Prosecutors alleged that this was a hate crime alleging that Donchak and Piekarsky didn't like Hispanics and wanted them out of their town.  Under federal sentencing guidelines, the two could have been sentenced to 12-15 years, but the Judge in this case departed downward from the guidelines "because of their personal character and conduct before Ramirez's beating," AP writer Michael Rubinkam reports.

Napa Police Officer Justified in Shooting of Nurse:
  Prosecutors say a Napa police officer acted justifiably and in self-defense when he fatally shot a man who aggressively lunged at him with a pocket knife.  Richard Poccia 60, was shot and killed outside his home last November.  The psychiatric nurse had lost his job and was on disability for several months after being diagnosed with post-traumatic stress disorder.  On the day of the shooting, Poccia had a 0.32 blood alcohol level, along with a methadone and diphenhydramine, a common sedative, in his system.  Poccia told a friend that day that if confronted by the police, "they would die or he would die or both," prosecutors said.  Poccia's family filed a wrongful death claim last month claiming that the officers' behavior "escalated their confrontation with a cooperative citizen into an extremely dangerous and hyper-volatile situation."  Jaxon Van Derbeken of the San Francisco Chronicle has this story.

Important Victory in Habeas

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The United States Supreme Court has unanimously reversed the Ninth Circuit in the California murder case of Walker v. Martin.  The high court held that claims that Martin raised too late in state court, and were therefore barred there, cannot be considered in federal court. (This rule has exceptions for claims delayed for good cause and for prisoners who can show actual innocence, but those exceptions do not apply in this case.)

The evasion of the "procedural default" rule in the Ninth Circuit, and to a lesser extent in other circuits, is a major source of delay in habeas litigation.  The problem is most acute in capital cases, where execution of the judgment is delayed.  (Martin is not a capital case.) 

The device used to evade the rule is to declare that the state court's rule is "inadequate."  Last term in a Pennsylvania murder case, the Supreme Court decided that a state rule is not "inadequate" merely because it allows for the use of discretion.  Today's opinion expands on that holding.  Prisoners cannot evade the state's rule by throwing on the state a burden of showing perfect consistency.  Discretionary rules by nature have varying application.  The purpose of the "inadequate state ground" exception is to prevent discrimination, and there is no such showing here.

This is a major victory.  It may be the most important case of the term in criminal law.

CJLF's brief in Martin is here.

Texas Execution

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Timothy Adams, Jr. lived only 19 months in this world.  In 2002, he was taken hostage and then murdered during the resulting standoff.

The man who shot the toddler twice in the chest was his own father, also named Timothy Adams.  Adams was executed today by the State of Texas.  Juan Lozano has this story for AP. 

The Supreme Court order denying a stay is here.  No dissent is noted.

Treatises and Revisions

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Eugene Volokh has this interesting post on treatises that have been revised by persons other than the original author.  This practice has a long history in the legal profession, but it can result in confusion as to who wrote what, and sometimes that matters.

Volokh has been trying to get the Supreme Court to say that the requirement that jury verdicts be unanimous is a constitutional requirement, overruling Apodaca v. Oregon, 406 U.S. 404 (1972).  (That would, of course, be a disaster for Oregon and other states allowing nonunanimous verdicts, with massive numbers of retrials required.)

So he was no doubt delighted to find a statement to that effect in the famous constitutional law treatise by Justice Joseph Story.  Not only is Story highly respected, but he was close in time to the Founders, and his statements carry special weight in trying to figure out what the provisions of the Bill of Rights were understood to mean when they were adopted.  That understanding, in turn, is important in swaying the "conservative" justices not generally inclined to expand procedural rights of criminal defendants.

The bad news for Volokh, and good news for those who regard his project with alarm, is that Story did not write that.  It was added by an 1858 revisor, Edmund Bennett.  That still has some value in arguing that a unanimous jury was part of "due process of law" when the Fourteenth Amendment was adopted, but it is not as powerful as an original Story quote.
The transcript of oral argument in Bond v. United States is here.  Supreme Court arguments sometimes wander off into amusing hypotheticals, and Justice Alito had one on the potential breadth of the federal chemical weapons law at issue in this case. 

Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it?
Two pages later, Justice Ginsburg reminds everyone that the merits of the defendant's challenge to the law are not at issue here, just standing.

News Scan

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Police Officer Fatally Shot in St. Petersburg:  Tamara Lush of the Associated Press reports that Officer David Crawford, 46, was fatally shot Monday night after investigating a report of a suspicious person.  Police are still searching for the suspect while nearby schools and streets have been closed.  Crawford is the third officer in the last month to be killed in St. Petersburg, Florida.

Appeals Court Blocks Parole for 73-year-old:  Bob Egelko of the San Francisco Chronicle has this story about a First District Court of Appeal ruling which has denied parole for Jimmie Sole, 73.  In 2008, the State Parole board granted parole to Sole but Governor Arnold Schwarzenegger overruled the board in 2009.  Sole pleaded guilty to second degree murder in 1980 and was sentenced to 15 years to life for murdering his ex-wife Joyce Williams.  Sole had been convicted of assaulting Williams prior to her death and his extensive criminal record has been linked to alcohol abuse.

Killer Sentenced to Death in Beheading:  AP writer Brent Kallestad reports that a jury has recommended the death penalty for Gary Michael Hilton, 64, for the 2007 killing of Cherly Dunlap, 46.  Hilton is already serving a life sentence for pleading guilty to killing Meredith Emerson, 24, about a month after Dunlap's disappearance.  Both victims were beheaded and their remains were found in forests in Georgia where Hilton camped.  Hilton is also a suspect in three other murders, two in North Carolina and one in Florida. 

Prosecutors May Seek Death Penalty in Arizona Case:  A story by Nogales International writer Jonathan Clark reports that Juan Antonia Villa, 38, is being charged with the first degree murder of his wife Christina Carrizoza Villa, 35, after fatally stabbing her in their Nogales apartment.  Villa allegedly confessed to killing Carrizoza and was carrying a 3-inch blade when he was arrested.  Superior Court Judge Kimberly Corsaro will determine if there is probable cause for Villa to be tried for first degree murder at the preliminary hearing on March 4th.  While the determination to pursue the death penalty against Villa will largely be a law-and-order issue, Silva said, prosecutors also plan to reach out to Carrizoza's family members for their feelings.

Supreme Court Tuesday

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This morning the Supreme Court issued its weekly orders list.  Certiorari was granted in two civil cases.  The Court also decided two civil cases.

Two criminal cases are being argued today, neither too exciting from our point of view.  Bond v. United States merely asks whether a defendant has standing to raise a Tenth Amendment challenge to a federal criminal statute (answer: of course), not whether the challenge has merit.  United States v. Tinklenberg involves the federal Speedy Trial Act.

Update:  Robert Barnes covers the Bond case in the WaPo.

Justices' Speaking Engagements

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The WaPo has this editorial with some refreshing evenhandedness regarding Supreme Court Justices appearing at events with their expenses paid by the organization.  They note that Justices Scalia and Thomas have been criticized for such events at conservative organization but Justices Breyer, Ginsburg, and Sotomayor have done the same at events sponsored by liberal organizations.

The WaPo's bottom line is that they think there is some appearance of impropriety in this and suggest that the taxpayers pay the expenses.  On that point I disagree.  There is nothing at all wrong with inviting someone to speak and just reimbursing expenses with no net profit to the speaker.  I have been a guest speaker at such events, and it is definitely not a vacation or a benefit to the speaker.  Preparing for the event, traveling to the event, and speaking at the event is work, and the travel expenses paid by the organization are rarely greater than the value of the speaker's time.  Only once in my experience, for an overseas trip, has the value of the trip even been close to the value of the time.

In nearly all cases, it is clearly a matter of the speaker doing a favor for the organization, not the organization trying to curry favor with the speaker.  This is much ado about nothing.

Predicting Recidivism

Leon Neyfakh has this long article in the Boston Globe on predicting recidivism and the use of such predictions in sentencing and parole decisions.

Part of the controversy over the use of risk assessment tools goes to the dual purpose of punishment.  We punish for both utilitarian and retributive purposes.  The practical reasons to punish are to (1) deter other potential wrongdoers with the example, (2) incapacitate the individual wrongdoer, at least for a time, and (3) hopefully rehabilitate the individual.  Risk assessment informs us on the latter two points.

The retributive purpose is to punish evildoers because they deserve it, period.

The two philosophies of punishment are in harmony when it comes to punishing repeaters more severely than first-timers.  Recidivism is the single strongest predictor of repeating again, and the repeaters deserve more punishment as a matter of simple justice.  For other factors, though, things get more complicated.  Is it moral to punish someone more severely due to a "risk factor" beyond his control?

Occupational Hazard

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Egypt is not the only place reporters are being attacked.  The Sacramento Bee has this story on an attack on a television news crew, with video from a tumbling camera.

Men and Responsibility

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Kay Hymowtiz has a great essay in today's Wall Street Journal, Where Have All of the Good Men Gone?  As Hymowitz explains:

Not so long ago, the average American man in his 20s had achieved most of the milestones of adulthood: a high-school diploma, financial independence, marriage and children. Today, most men in their 20s hang out in a novel sort of limbo, a hybrid state of semi-hormonal adolescence and responsible self-reliance. This "pre-adulthood" has much to recommend it, especially for the college-educated. But it's time to state what has become obvious to legions of frustrated young women: It doesn't bring out the best in men.

                       *                       *                              *

But for all its familiarity, pre-adulthood represents a momentous sociological development. It's no exaggeration to say that having large numbers of single young men and women living independently, while also having enough disposable income to avoid ever messing up their kitchens, is something entirely new in human experience. Yes, at other points in Western history young people have waited well into their 20s to marry, and yes, office girls and bachelor lawyers have been working and finding amusement in cities for more than a century. But their numbers and their money supply were always relatively small. Today's pre-adults are a different matter. They are a major demographic event.

Don't Stop With Just Hiding the Tattoos


Wear glasses, too.  No kidding.  So reports the ABA Journal.

Personally, I suggest the defense bar go whole hog and dress up their clients as Mother Teresa.

California Senate

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California's State Senate became a bit less criminal-friendly with the swearing in of two senators, both former assembly members elected to vacant seats in Tuesday's special election. 

Sharon Runner was elected to seat formerly held by her husband George.  The Runners have been among the foremost leaders for crime victims' rights in California.

Ted Lieu is a rare specimen of what is now an endangered species in California, an elected Democrat who actually cares about justice.

They were sworn in by Senate President Pro Tem Darrell Steinberg, whose positions on crime issues are, unfortunately, much more typical of the California Democrats in office today.

Death Penalty Legislation Notes

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Here are a few notes on death penalty legislation around the country:

Illinois:  Republican legislators Kirk Dillard and Dennis Reboletti are calling on the governor to veto the repeal bill and also for a referendum to let the people vote on the issue, Patrick Yeagle reports in the Illinois Times.  Attorney General Lisa Madigan, a Democrat, has responded to a request from the governor by urging him to veto the bill.  Eric Zorn of the Tribune is surprised, disappointed, and snarky, but he does reprint the letter in full here.  Jim Suhr of AP has this article on prosecutors' reactions to a possible repeal.

West Virginia:  Tuesday there was a public hearing on restoration of the death penalty in that state.  Action this year is unlikely, but the effort could build momentum for next year.  (Tough crime bills are more likely to pass in even-numbered years, for some reason.)

Montana:  The State Senate passed a death penalty repeal bill, as it did in 2009.  The 2009 bill did not make it out of committee in the House.  AP story here.

More on the Spisak Execution

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Alan Johnson has this story in the Columbus Dispatch:

When Frank Spisak was going on "hunting parties" targeting blacks in Cleveland, Ronald Reagan was president, a stamp cost 20 cents and the Cincinnati Bengals played in the Super Bowl XVI.

More than 10,000 days later, Spisak, 59, a triple murderer, was executed today at the Southern Ohio Correctional Facility near Lucasville. The time of death was 10:34 a.m.

That is a good way of illustrating how preposterous the delay is in a case with no question of guilt.  Whether Spisak's mental issues were sufficient to warrant a penalty less than death is something reasonable people can disagree on, but it does not warrant decades of litigation.  A trial, an appeal to review the trial, and an application for executive clemency are all the process that is due.  All other reviews should be limited to guilt-related issues.

Johnson also adds a nice touch on Spisak's last words.

Before the lethal chemical began flowing, Spisak recited -- in German -- the first seven verses from the 21st chapter of from the Book of Revelation. He had trouble reading the passage, which had to be moved closer to him.

He apparently did not read the eighth verse, which says: "But the cowardly, the unbelieving, the vile, the murderers, the sexually immoral, those who practice magic arts, the idolaters and all liars -- they will be consigned to the fiery lake of burning sulfur. This is the second death."

Doug Berman has this post on the case.  He also notes that the executions so far this year are dispersed around the country, not concentrated in one or two states.  The states are Oklahoma (2), Alabama, Georgia, Missouri, Texas, and Ohio.

Governor Susana Martinez of New Mexico has taken some heat for an executive order regarding checking the immigration status of arrestees.  Columnist Ruben Navarette comes to her defense in this piece, distinguishing people arrested from those merely detained.  After comparing polar opposite approaches to immigration status, he writes,

Neither of these approaches makes sense. The better alternative is in the middle. The trigger for a state or local law enforcement agency questioning someone's immigration status should be an arrest, not a stop or a detention, as it is in Arizona.

That's good policing. And that's what Martinez is trying to encourage. For her, this isn't about cracking down on the undocumented to advance a political agenda.

"What I've done is purely a public safety issue," she said, "not an immigration issue."
A stop or detention requires only reasonable suspicion that criminal activity is afoot, under the 1968 decision in Terry v. Ohio (written by CJ Earl Warren).  An arrest requires probable cause to believe the person has committed a crime, and in most states a crime above the minor infraction level.

News Scan

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Tennessee Lethal Injection Procedure Ruled Constitutional:  United Press International reports Davidson County Judge Claudia Bonnyman ruled that Tennessee's execution protocol provides enough safeguards to check for an inmate's consciousness.  The ruling paves the way for the execution of death row inmate Stephen Michael West, sentenced to death in 1987 for the kidnapping and fatal stabbing of Wanda Romines and her 15-year-old daughter.  If the State Supreme Court affirms, West's execution date could be set for September.  

Jury Recommends Death Sentence for Florida Murderer:  A Florida jury recommended a sentence of death for convicted triple murderer Leon Davis, Jr., reports Kathy Leigh Berkowitz of The Polk County Democrat (FL).  Prosecutors allege that while robbing an insurance agency, Davis forced clerks Yvonne Bustamonte and Juanita Luciano into a restroom, duct-taped them, poured gasoline on them, and set them on fire with a crumpled piece of paper.  Luciano's prematurely born son also died as a result.

Killer Pleads Guilty to 49th Murder:  Kevin Hayes of CBS News reports Gary Ridgway the "Green River Killer", currently serving 48 life sentences, has pleaded guilty to the murder of his 49th victim Becky Marrero.  Her remains were found in December after she was last seen in 1982.  A 2003 plea agreement with prosecutors spared Ridgway the death penalty in exchange for his promise to plead guilty in any future cases in which his confession could be corroborated with other evidence.  Because Marrero's case falls within this agreement, prosecutors will not seek the death penalty for Ridgway's most recent alleged victim.   

Ringleader in Couple's Murder Sentenced to Death:  On Thursday Circuit Judge Nick Geeker sentenced Leonard Patrick Gonzalez Jr. to death for the execution-style murders of Florida couple Byrd and Melanie Billings.  Gonzalez, a former karate instructor, led a group of five men and one teenager into the couple's home in the belief that they kept a fortune in the house.  Gonzales fatally shot the Billings in front of a few of the couple's nine adopted special-needs children, all between the ages of five and 12.  Kern Wernowsky of the Pensacola News Journal has this story.

Spisak Executed by Ohio


The Post Chronicle today reports:

A Nazi sympathizer who was convicted of killing three people in 1982 on an Ohio college campus was executed on Thursday by lethal injection, officials said.

Frank Spisak, 59, died at 10:34 a.m. local time at the Southern Ohio Correctional Facility in Lucasville, according to the Ohio Department of Rehabilitation and Correction. This was the seventh execution in the United States so far this year.

Spisak wore a Hitler-style mustache during his 1983 trial.


Spisak said he killed Rickerson because he was a black man who rebuffed his sexual advances, according to prosecutors. Spisak tried to kill another man, John Hardaway, 54, while on a "hunting party" for black people, prosecutors said. While on another "hunting party," Spisak killed Warford, who was black, prosecutors said.

He killed Timothy Sheehan, who was white, because Spisak believed he was a potential witness in the Rickerson murder, prosecutors said.

Spisak's lawyers argued for a commutation on the grounds that their client was mentally ill.  In some sense, I'm sure they're right, but people who are mentally ill in the legal sense generally do not plan, and then carry out, witness elimination.

News Scan

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Feds Crack Down on Armenian Crime Syndicate:  Ian Lovett of The New York Times has this article on this week's arrests of 74 members and associates of the Armenian Power crime group, an international organization affiliated with drug trafficking and white-collar crime.  Starting off as an East Hollywood street gang, the Armenian Power has evolved over the last few decades into a sophisticated organization with ties to organized crime groups in Eastern Europe and Russia, as well as local Mexican gangs.  Federal officials claim the group has engaged in complex credit card and bank account schemes, costing victims a total of at least $20 million.

Colorado's "Katie's Law" Links Suspects to 40 Unsolved Crimes:  A new Colorado law requiring DNA collection from all felony arrestees has already linked suspects to 40 unsolved crimes since it went into effect in September 2010.  "Katie's Law" was named after 22-year-old Katie Sepich, who was raped, strangled and set on fire by a man released on bond.  The DNA testing is funded by a $2.50 surcharge for convicted offenders.  Kirk Mitchell of The Denver Post has this story.

Craigslist Ad Turns Woman into Sex Slave:  Kristen Hamill of CNN reports a 27-year-old Wisconsin woman allegedly became a man's sex slave after responding to a Cragslist ad.  John Hopkins agreed to let the woman stay in his New York apartment in exchange for housework, but she claims he instead repeatedly raped her for eight days, tied her with rope, and handcuffed her to a radiator.  Hopkins is facing charges of rape and unlawful imprisonment and faces up to 25 years in prison.

Sisters of Murder Suspect Offer DNA Samples:   Chrystal Gutierrez of KRQU Santa Fe reports that two sisters of suspected triple murderer Kenneth Ray Luna have offered DNA samples for testing.  Police believe Luna is responsible for the sexual assault and strangulation of three women in New Mexico in the 1980s, but Luna killed himself in a jail cell before any of his court proceedings.  His sisters are now offering their DNA samples in the hopes it will bring closure to the victims' families.

Inability to See the Center

I have previously noted that some people are so far off to one side ideologically that they lose the ability to see where the center is.  For example, there is Goodwin Liu claiming that Samuel Alito is too far out of the mainstream to be confirmed and then putting himself up for confirmation.

With this thought in mind, we read with interest this Flagpole interview with Dahlia Lithwick, who covers the Supreme Court for Slate.  The interview eliminates any doubt, if indeed any remained.  Ms. Lithwick has absolutely no concept where the middle of the road is.  Regarding judicial nominations, she says (emphasis added):

It goes to [the idea that] the center has moved. I mean, the center has moved so far to the right that anybody who's... marginally to the left of Stephen Breyer is, you know, a radical. You see that in Obama's judicial picks: one person he put up who was moderately liberal was Goodwin Liu in California, who was perfectly analogous to most of the people on the Right that Bush put up. But he's been blocked, and excoriated; his hearing was just a disaster... he's been sort of painted as [being] to the left of Thurgood Marshall: a pot-smoking, hemp-wearing hippie. And, you know, he's a renowned academic... So, I think it's that ability to say, anyone who isn't in the center--even though the center isn't even in the center--is a radical and a socialist who doesn't love this country is just another really effective way of moving the conversation to the right.

But of course the center is the center by definition.  The survey marker of the center is the median American voter, the one who had a hard time choosing between Bush and Gore in 2000.  To be "renowned" in academia when the median academic is at least one standard deviation to the left of the American center, maybe two, is not any kind of indication of mainstreamness. 

While Glenn Beck et al. do get overheated with their rhetoric, it is absurd to suggest that comes exclusively from one side.  (Has anyone on Fox News referred to a female pundit of opposing views as a "bag of meat"?  An MSNBC commentator did.)  It is absurd to suggest that attacks on judicial nominees of the present Administration are worse than the savage attacks on Clarence Thomas, Miguel Estrada, or other Republican nominees.  Indeed, it is absurd to say that attacks on Liu are even as bad as Liu's own attack on Alito, much less to say they are worse.

BTW, I haven't heard anyone call Goodwin Liu "a pot-smoking, hemp-wearing hippie."  I have heard people say he is way out of the mainstream, not moderate, mainly because that is true.  The suggestion that he is no further off center than the typical Bush appointee is preposterous.

But the real howler comes with her discussion of the Supreme Court press corps.

I mean, is it a good thing or a bad thing that we still cover the Court in the voice of Linda Greenhouse? That is, dispassionate and neutral.
Neutral?  Linda Greenhouse? That isn't just funny.  That is laugh until your sides ache with tears rolling down your cheeks funny. That is turning blue because you are laughing so hard you can't inhale funny.

Ms. Lithwick lives in an ideological Bizarro World and doesn't know it.  It is one thing to be out on the fringe and well aware you are on the fringe.  It is quite another to be unaware of your position.

Stay Denied for Spisak

The US Supreme Court has denied a stay to Ohio murderer (and neo-Nazi) Frank Spisak.  The order reads, "The application for stay of execution of sentence of death presented to Justice Kagan and by her referred to the Court is denied. The petition for a writ of certiorari is denied." 

No dissent is noted.  The referral part is standard operating procedure.  The order does not say Justice Kagan took no part, as it usually does in cases where the decision not to file an amicus brief for the United States was made during her SG watch.  (Not that it matters; just curious.)

The Supreme Court's prior opinion in the case, Jan. 12, 2010, is here.  There were no dissents then, either.

Joe Guillen of the Cleveland Plain Dealer had this story earlier today.

Update:  Andrew Welsh-Huggins has this post-stay-denied story for AP:

Cora Warford, whose son Brian Warford was just 17 when Spisak shot him in the head on Aug. 30, 1982, says she's making an exception to her opposition to capital punishment after much thought and discussion with her pastor. She said Spisak's latest attempts to avoid execution by pleading mental illness were the final straw.

"Justice has to be done, that's all," said Warford, 75, now retired in Cincinnati. "He didn't care about the lives he took, and now it's time for him to go to rest."
That's right, 67.  Meghann M. Cuniff of the Spokesman-Review (WA) reports:

A Spokane man who avoided prison as a teenager for his role in a murder because a judge believed he could be rehabilitated marked his 67th arrest in the past five years over the weekend.

Nicholas Adam Limpert, now 25, pleaded not guilty Tuesday to a first-degree burglary charge. If convicted, it would be his 10th felony since 2007.

*                         *                         *

Limpert's criminal history began at age 15 with the November 2000 robbery and murder of a disabled janitor in northwest Spokane. The decision to allow him to be charged as a juvenile angered the victim's family, who said they doubted he could be rehabilitated.

Now news of a dizzying post-detention arrest record has the judge who sentenced him wondering the same thing.

"He probably should have been tried as an adult," said Neal Rielly, who retired last fall after 15 years as a Spokane County Superior Court judge. "If I ruled the other way, it was a mistake."

O.C.'s Death Row

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Larry Welborn of the Orange County Register has this article in a series on inmates on death row from Orange County, California.  This is a wonderful public service by the newspaper.  In the wide-ranging debates over the death penalty, the crimes these monsters chose to commit and the victims of those crimes are too often forgotten.  Here are entries 13 and 14 in the series:


James Marlow, an ex-convict from Kentucky known as "The Folsom Wolf," and his girlfriend, Cynthia Coffman, who abandoned a husband and kids, traveled around together randomly killing young girls. He got the death penalty in 1990 for abducting, raping and strangling Lynel Murray, 19, of Huntington Beach on Nov. 12, 1986. Coffman, a former cocktail waitress, was sentenced to life in prison without the possibility of parole. Both were sentenced to death in San Bernardino County in 1989 for kidnapping, raping and murdering Corinna D. Novis, 20, of Redlands three days before Murray. Coffman, who had "Property of the Folsom Wolf" tattooed on her behind, is one of a handful of women on death row in California. Marlow's case has been affirmed by the California Supreme Court.


Christian "Rascal" Monterroso shot to death two convenience-store clerks, Tarsem Singh, 28, and Ashokkumar Patel, 40, during two robberies four hours apart in Anaheim in November 1991. Monterroso later confessed to a friend: "I shot two dudes. I hit the second clerk because he was being an ass. The Circle K clerk didn't think I was serious, so I shot him, too." His case has been affirmed by the California Supreme Court.

News Scan

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Georgia Death Row Inmate's "Expiration" Claim Tossed:  U.S. District Court Judge Timothy Batten yesterday denied a request for a stay of execution by Georgia death row inmate Roy Willard Blankenship, reports Carla Caldwell of the Atlanta Business Chronicle.  Blankenship sought to have his execution held off pending an investigation into expiration date of the state's supply of sodium thiopental.  The state's attorneys argued the supply will not expire until 2014.  Blankenship was scheduled for execution last week, but was delayed for further DNA testing.

"GTG" Text Messages Compels Killer to Enter Guilty Plea:
  CNN reports 21-year-old Steven Pieper's shorthand text message "GTG" [i.e. "got to go"], which he sent from his ex-girlfriend Jenni-Lynn Watson's phone pretending to be her, in part persuaded him to plead guilty to her murder.  After a review of the text message records of both Pieper and Watson, prosecutors concluded the shorthand lingo was characteristic of Pieper, not Watson.  This discovery blasted Piper's attempt to cover his tracks after he dumped the 20-year-old college student's body in a park in North Syracuse. 

"Lara Logan and misogyny on the left":  James Taranto has this so-titled piece in The Wall Street Journal detailing some responses to last Friday's attack and sexual assault of CBS chief foreign correspondent Lara Logan in Cairo.  CBS reports that while covering the celebrations for a "60 Minutes" episode, Logan was separated from her crew and "suffered a brutal and sustained sexual assault and beating."  Among the responses to Logan's attack, left-wing journalist Nir Rosen tweeted that "at a moment when she is going to become a martyr and glorified we should at least remember her role as a major war monger," HBO's Bill Maher joked about sending conservative Elizabeth Hasselbeck to former Egyptian president Hosni Mubarak in exchange for Logan, and a right-wing blogger allegedly used the incident as a basis for an anti-Muslim rant.  Taranto opines that "left-wing politics too often serves as an excuse for, and a spur to, the expression of misogynistic attitudes."

Suspect's Dog Helps Make Drug Bust:  While pulling over a truck earlier this month, an Oregon sheriff's deputy witnessed a sock filled with marijuana and hashish fly out the truck's window.  The suspect claimed he and his pit bull mix had been playing a game of tug-of-war.  The dog won and tossed the sock.  "Sheriff Brad Lohrey says he wished everyone traveled with their own personal drug dog."  The AP has this story.

Sloppy Citing of Biased Research:  Cully Stimson at Heritage's Foundry blog spanks the National Conference of State Legislatures for citing a Human Rights Watch report on the number of juveniles serving LWOP sentences. "If NCSL is serious about its credibility, it ought to find a better source for data on criminal justice and avoid quoting reports that have already been thoroughly discredited."

Texas Execution

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Michael Graczyk reports for AP:

An Arlington man was executed Tuesday for the 1998 torture-slaying of a 19-year-old mentally challenged woman exactly 13 years ago.

Michael Wayne Hall, 31, received lethal injection less than an hour after the U.S. Supreme Court refused to stop his punishment for the abduction and murder of Amy Robinson. Hall was pronounced dead at 6:23 p.m. at the Huntsville Unit of the Texas Department of Criminal Justice.
The second man convicted in her death, Robert Neville, was put to death five years ago.
*                               *                         *
Robinson had a genetic disorder called Turner's syndrome, a rare chromosome condition found only in women and characterized by short stature and lack of sexual development at puberty. Prosecutors described her as mentally challenged and trusting.

Authorities said Hall and Neville stopped Robinson along the bike route they knew she took to work and offered her a ride. She accepted.

They drove her about 12 miles to a remote area of Tarrant County where Neville shot at her repeatedly with a crossbow but missed. They also shot her numerous times with a pellet gun and a .22-caliber rifle, prosecutors said.

"Target practice," they bragged to reporters after they were arrested two weeks later trying to cross into Mexico near Eagle Pass. They also told reporters how they laughed as Robinson pleaded for her life.

The Supreme Court orders denying a stay are here and here.  No dissent is noted.

Habeas For Gitmo Detainee Reversed

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The US Court of Appeals for the DC Circuit has reversed the District Court's grant of habeas corpus relief to Guantanamo detainee Saeed Mohammed Saleh Hatim.

The district court ruled that the military could detain only individuals who were "part of" al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that "those who purposefully and materially support" al-Qaida or the Taliban could also be detained. 590 F.3d 866, 872 (D.C. Cir. 2010).  Hatim admits the error, but says it was harmless. We cannot see how. As the district court stated in issuing the stay, Al-Bihani "calls into question" a "key  determination[]" upon which the order rested.

News Scan

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Oakland Officials Say Gang Injunction is Showing Results:  A report by Oakland City Attorney John Russo and Police Chief Anthony Batts notes that drug arrests in Oakland are down nearly 70 percent since a gang injunction was approved in June, as reported by Demian Bulwa and Matthai Kuruvila of the SF Chronicle.  The injunction specifically prohibits 15 named gang members from being on the streets after 10 p.m. and from being in contact with other alleged gang members in a 100 block area.  The report will be presented to a City Council committee next week.  The city hopes to secure another gang injunction in another neighborhood.

Jury Will Decide Almaleki's Fate:  My Fox Phoenix reports that closing arguments were heard yesterday in the case against Faleh Almaleki, who is on trial for the first degree murder of his daughter Noor and the attempted murder of her roommate Amal Khalaf.  Almaleki is accused of running them both down with his SUV in 2009.  Prosecutors have characterized the Iraqi man's actions as an "honor killing", because his daughter had become too westernized.  The defense claims it was an accident.  After the crash, Almaleki fled the country.  He was later apprehended in London and extradited to Phoenix.

Montana Senate Adopts DP Repeal:  Stephen Dockery of the Associated Press reports that on Monday, the Montana Senate endorsed a bill to repeal the death penalty in a party line 26-24 vote.  Democrats supporting the repeal argued that the risk of putting an innocent person to death is too high, it is applied in a racially disproportionate manner and the death penalty process it too expensive.  Opponents argued the death penalty removes dangerous criminals from prison and encourages defendants to plead guilty to avoid the possibility of a death sentence, which actually saves the cost of a trial and appeals.  The proposal faces one more vote in the Senate before it moves to the House, which is controlled by Republicans 68-32. 

Judge In Second Petit Murder Trial Stays:   The New Haven Register reports that Superior Court Judge Brian T. Fischer denied the defense motion to remove Judge Jon C. Blue from Joshua Komisarjevsky's trial for the 2007 home-invasion murders of Jennifer Hawke-Petit and her daughters, Michaela, 11, and Hayley, 17 and the attack on Dr. William Petit Jr.  The defense claimed that Judge Blue, who had presided over the conviction and sentencing of Komisarjevsky's accomplice Steven Hayes, could not impartially handle the trial of their client.  Judge Fischer denied the motion, stating that nothing he had heard in court "gives rise to a reasonable question regarding (Blue's) impartiality." 

"At Northern Border, Agents Fight Drug War on Ice":  Chris Hawley of the Associated Press reports on the drug war in the largely "forgotten border" between the U.S. and Canada.  A report by the U.S. Government Accountability Office states that the terrorist threat from Canada is higher than from Mexico, because only 32 miles of the nearly 4,000-mile border "reached an acceptable level of security" from Border Patrol during fiscal year 2010.  The DOJ also estimates that 20 percent of the high-potency marijuana produced in Canada is smuggled through a 10-mile stretch of the border located in a Mohawk reservation, an area whose thick forestry and small islands provide ideal hiding spots for drug runners.  Politics on the reservation make drug enforcement even more difficult, as federal agents encounter "a lot of intimidation techniques" and rarely enter the territory without a tribal escort.  Two large signs at an intersection on the reservation state:  "Yes, 'terrorists' come thru [the reservation].  They are N.Y.S.P. [state police], Border Patrol, ATF, FBI, etc., etc.!"  

An Abdication of Leadership


It's no secret that both the state and federal governments have vastly overspent their means.  The main culprits are, for the states, Medicaid, followed closely by overly generous public employee pensions; and, for the feds, Social Security and Medicare.

The budget crunch has led to an increasing number of proposals to trim costs by releasing prison inmates.  It is no exaggeration to say that this has become the No. 1 theme on Doug Berman's Sentencing Law and Policy, as it was yesterday when the President announced his budget.

Doug quotes one report as saying:

President Obama's proposed federal budget for the year starting Oct. 1, issued today, calls for a 2 percent increase in the Justice Department's spending but a major cut in the Office of Justice Programs and Community Oriented Policing Services (COPS) office, both of which provide state and local anticrime aid.  Describing the reductions as "tough choices," the White House still seeks $600 million to hire "first responders," including police officers and sheriff's deputies.

The proposed budget includes a solid increase for the FBI but a reduction for the Drug Enforcement Administration. It would cut funding for juvenile justice and child safety programs.

Left unsaid in the report is that the President's budget proposes no reform whatever  --  not a dime  --  in the explosive entitlement spending that is, by any measure, the heart (and lungs and liver) of the budget crisis.  

Our overspending might indeed have come to the point that we will have to save short-term dollars by releasing prisoners.  But to allow those releases while intentionally doing nothing about the major spending problem is an abdication of leadership of astonishing proportions.

Melendez-Diaz Wins Again

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Martin Finucane of The Boston Globe reports Luis Melendez-Diaz, the star of the Supreme Court's 2009 lab report-Confrontation Clause case, Melendez-Diaz v. Massachusetts, was acquitted last week in his retrial for cocaine trafficking.

In this second go-around, the Commonwealth proceeded under the new rules laid out by the Supreme Court, calling to the stand a chemist to testify that the white, bagged powder found in the backseat of a police cruiser with Melendez-Diaz and two others in 2001 was indeed cocaine.  In his original trial, prosecutors had submitted sworn "certificates of analysis" from the lab indicating the substance was cocaine.

Did the presence of the chemists in the courtroom tip the scales?  Unlikely.  Defense attorney Margaret Fox claimed that this "was a case that really seemed to be about guilt by association... the [second] jury got it right."  Proof of the makeup of the white powdery substance stored in small plastic baggies comprised the crux of the Supreme Court's opinion, but appears to have been somewhat irrelevant in both of Melendez-Diaz's trials.  It seems instead that a different group of 12 simply came to a different conclusion on some other element(s) of the offense.  

A spokesman for the Suffolk County District Attorney's pointed to the time gap: "We're 10 years out from the original incident, and the passage of so much time only makes a case tougher to try."

As a side note, the acquitted man is currently serving a 10-year sentence for drug trafficking in another Massachusetts county.

More on Cell Phone Searches

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Does a warrant authorizing a vehicle search for "evidence of a crime" also permit police to view the contents of a cell phone found in the vehicle?  The West Virginia Supreme Court says yes:                   

In [United States v.] Ross, the Supreme Court explained that
a lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. . . A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search.  When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between . . . glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.
*                         *                         *
Accordingly, we now expressly hold that, when searching a vehicle pursuant to a valid search warrant, no additional search warrant is required to examine the contents of items that are properly seized in the execution of the warrant, including, but not limited to, cellular telephones.

The AP has this story.

It's Not a Swindle, it's Root Causes! Please!

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"Root causes," like "smart on crime," is one of those phrases you want to be on the lookout for.  Not to put too fine a point on it, what it means is that someone, usually affiliated with the press and/or the academy, is about to put out a "report" or a "study" full of odd-sounding, multisyllabic words and phrases.  The point of beginning that way is to make you doubt your common sense.  Starting from there, the chances are better that you can be sold a real lallapalooza.  Some of the sorts of things that the Left tries to palm off in this fashion are, for example, the notion  that when fewer criminals are in prison, we will have less crime.  (A New York Times editorial actually said this). 

That this is counterintuitive, not to mention counter-factual, is  --  you will be told  --  most certainly not a sign that Those In the Know have intellectualized themselves into the shape of a pretzel.  It's the opposite:  a sign that you, the skeptic, are probably one of Those People With Big Hair, a/k/a the Unwashed Masses.  Your grandpa might even be in the Rotary, heaven forbid.

But then, reality strikes.  A story will come along  --  an inconvenient truth, one might say  --  to remind you that what you had thought all along was driving the criminal train (to wit, greed) actually is driving it.  Thus I bring you today's gem from the Washington Post.  If anyone can find the defendant in this story who was overborne by the need to escape poverty, or poor schooling, or lack of opportunity, or childhood abuse, or the brain syndrome du jour, etc., please let me know in the comments section.  To my less sophisticated mindset, it looks less like the downtrodden than like a bunch of greedy, dishonest businessmen in bed with a bunch of even greedier and more dishonest local politicians.  A person lacking Ivy League Sophistication might be tempted to say that an episode like this is caused by......uh.............well......................dishonesty and greed!

Oh no!  Can't be that!  Please, somebody, get me some "root causes."  Fast!


The Tribe Brief

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No, it's not a John Grisham novel. Tony Mauro has this post at BLT on a "dust up" over whether whether the Harvard Law prof's name can appear on an amicus brief in a global warming climate change case now before the US Supreme Court, American Electric Power Co. v. Connecticut, No. 10-174.

The dust-up, as well as [co-counsel] Duncan's willingness to go public with it, reflects the high-stakes nature of Supreme Court briefing, and the value many clients place on hiring marquee legal talent for their submissions to the Court -- especially when the representation seems counter-intuitive.

A liberal icon, Tribe nonetheless came down in the brief on the side of the energy industry, espousing the view that issues like climate change are "textually committed" to the political branches and are ill-suited for resolution by courts. Tribe declined comment.

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On Feb. 7, just hours before the filing deadline by Duncan's account, the Justice Department "insisted" that Tribe's name be removed because of the ethics law barring former employees from seeking to "influence" the department for a period after they leave. The brief was re-submitted without Tribe's name, listing Duncan instead as counsel of record.

News Scan

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ACLU Opposes No-knock Police Raids:  Ron Barnett and Paul Alongi of USA Today report on opposition to the issuance of no-knock warrants, which a judge may issue if there is a belief that the element of surprise could help officers avoid danger or prevent the destruction of evidence.  Critics argue it poses an unnecessary threat to people whose residences are invaded, citing as an example an incident in Utah when police officers fatally shot a man after a no-knock entry whom they mistakenly believed was yielding a sword.  One attorney for the ACLU states the no-knock tactic will just "increase invasions of privacy and tragic harm to both residents and officers." 

Man in Custody Following 28-Hour Rampage:  Andrew Grossman of The Wall Street Journal reports on a New York man accused of a 28-hour killing spree that left four dead.  After his stepfather refused to let Maksim Gelman, 23, borrow his car, he allegedly stabbed him to death, then went to the home of a woman who had jilted him and fatally stabbed both the girl and her mother.  Gelman then allegedly stabbed another man and carjacked his vehicle, running down 62-year-old Stephen Tennanbaum who died from his injuries.  Gelman stabbed at least one more person, a passenger on the subway, before he was arrested early Saturday morning on a subway car in Times Square.  New York City Police Commissioner Ray Kelly described the killing spree as "so horrendous and bizarre." 

Ohio Parolee Charged with Rape and Burglary:  Fox19 in Ohio reports Cincinnati parolee Terry Austin, 52, was charged with rape, burglary, and drug possession on Saturday after he allegedly broke into a woman's home, hit her with a baseball bat, and sexually assaulted her.  Austin was released on parole in 2009 after serving time for a 1989 rape conviction.

Petit Trial Update:  Randall Beach of The New Haven Register (CT) reports on a number of motions filed by Joshua Komisarjevsky, the remaining untried co-conspirator in the brutal home invasion/murder case.  The motions include, among other things, a request for change of venue, a removal of Superior Court Judge Jon C. Blue, who presided over the trial of co-conspirator Steven Hayes last year, due to his "lack of objectivity," and a request to sequester the jury.  Komisarjevsky's defense is also asking that the jury pool view graphic crime scene photos during vior dire to check on "prejudice or influence... that could affect the outcome of the trial," and that the defense be afforded double the number of peremptory challenged given "a societal anti-defendant bias, specifically an anti-Joshua Komisarjevsky bias."  Connecticut's responses to the motions can be viewed here.  
We don't generally do celebrity gossip stories here, but once in a while the tabloids actually touch on a genuine criminal law policy question.

TMZ reports that the necklace that Lindsay Lohan allegedly pilfered is not worth the $2500 the store claims.  "The jewelers we spoke with said the fair market value ranged between $800 and $1,000."  Imagine that, a tinsel-town jeweler overpricing the tinsel.  Who would have guessed?

Now, that value would easily be grand theft in most states, and it would have been in California until fairly recently.  You see, the $400 threshold for grand theft had not been adjusted for inflation in many years.  The legislature did raise it in 2009, though, as part of a bill to try to cut down the number of people in state prison.  Petty theft is a misdemeanor punishable by, at most, a year in county jail.  Grand theft is what we call a "wobbler" in California.  It can be punished with state prison time, in which case it is a felony conviction, but the judge has discretion to impose a lesser penalty and make it a misdemeanor.

Failure to adjust the grand theft threshold for inflation is an old problem.  [Audience: How old is it?]  This problem is so old that Sir William Blackstone complained about it in 1767.

Crime Statistics

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The reliability and interpretation of crime statistics are an issue with our neighbors to the north, just as they are in the U.S.  John Robson of the Macdonald-Laurier Institute has this op-ed in the Ottawa Citizen.

The problem is not just that we don't have some numbers we ought to have. It's that we have a high-profile, apparently excellent source of data on crime that is unsuitable in important ways. Once a year Statistics Canada releases a comprehensive review of police-reported crime statistics (the "Juristat report"), generally suggesting that crime rates are low, and falling, and generally leading commentators to suggest that anyone who thinks crime is a serious problem in Canada is an ignorant fear monger and probably a hayseed to boot. But in a new study from the Macdonald-Laurier Institute, where I am managing editor, former Crown prosecutor Scott Newark makes clear in detail that there are a number of serious flaws in the way the Juristat numbers are collected, presented, and interpreted. The result is to deprive Canadian policy-makers, opinion-makers, and citizens proper information on which to make difficult decisions about the complex social phenomenon known as crime.

News Scan

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Levy Murderer Gets 60 Years:  Jessica Gresko of the Associated Press reports that the man convicted of first-degree murder in 2001 for the disappearance and death of Washington intern Chandra Levy, was sentenced today to 60 years in prison.  Levy's remains were found in Rock Creek Park, the same location where repeat felon Ingmar Guandique had attacked other female joggers. Prosecutors had asked for a life sentence arguing that Guandique showed no remorse and has had a history of violence. 

Defendant Could Face Death Penalty in Campus Stabbing:  Henry K. Lee of the San Francisco Chronicle reports that Laungastasi Ahio, 21, who has been charged with fatally stabbing Jared Afu, 19, and could face the death penalty after prosecutors added a special circumstance allegation of murder while lying in wait.  Prior to the murder, prosecutors allege Ahio and Afu had argued over a woman at the campus of Mills High School in Millbrae, CA.  If Ahio is found guilty, he will be eligible for the death penalty or life in prison without parole. 

State Court Reinstates Murder Conviction:  Adam Lynn of The News Tribune reports that the Washington State Supreme Court has reinstated the murder conviction of Kristina R. Grier, 50.  The unanimous decision overturned an appellate ruling ordering new trial based on her ineffective assistance of counsel claim.  Grier was convicted of second degree murder and sentenced to 18 years for shooting Gregory Owen, 29, during an argument in her home.   In a strange twist, the jury declined to find she was armed with a handgun when she shot Owen.  The lower court held that, by failing to request that the jury be allowed to consider convicting Grier on a lesser charge, the defense attorney was ineffective. The Supreme Court noted that the "all-or-nothing approach" taken by defense counsel was reasonable under the facts of the case. 

Fifteen years ago, the U.S. Sentencing Commission was the 900 pound gorilla of federal sentencing law. It wrote binding rules, followed by district courts more than 70 percent of the time, all on an annual budget of roughly $8.8 million. Today, the Commission is more like a chimpanzee. It writes "advisory only" sentencing suggestions, followed by the courts about half the time and falling, at roughly twice the annual cost. If, in private enterprise, a business created a diluted product with a shrinking consumer base and continuously rising production costs, how long would that business survive? How long should it survive?

Kyl's Consequences

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The WSJ has this editorial:

The U.S. Senate has 13 freshmen this year, and we hope more than a few of them have signed up for Jon Kyl's seminar on how to make a difference in what can be the world's most dysfunctional body. If it's not a formal class, it should be.

Mr. Kyl, who announced yesterday that he won't seek re-election in 2012, has been as consequential as any Republican in Congress over the last decade and a half. The Arizonan, who is now second in the GOP leadership, has made his mark the old fashioned way--by knowing what he is talking about.

Senator Kyl has been a vital player in criminal justice issues, especially habeas reform.  We sorry to hear we will be losing him in the next cycle.

The fact that he would leave despite the likelihood of being the Majority Whip in the 113th Congress says something about him.  Not everyone in Congress is there just to aggrandize his own power.  The best people are not.  The unfortunate and ironic consequence is that many of the most effective good guys move on, while those who are effective at causing harm seem to hang around forever.

Yelling in Theaters

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"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," Justice Oliver Wendell Holmes famously wrote for the Supreme Court in Schenk v. United States, 249 U.S. 47, 52 (1919). It also does not protect urging draft resistance in wartime, which is the actual holding of the case.

How about yelling "bitch" in a theater?  How the issues change with the times.  David Hudson at the First Amendment Center has this post on an unpublished opinion of the Kansas Court of Appeals In the Matter of H.A.-G.  (Thanks to How Appealing for the tip.)  The profanity by itself probably wouldn't have done it, but "'H.A.-G's adjudication of disorderly conduct was based upon her disruptive conduct in the movie theatre and not based solely upon her speech,' the appeals court wrote."  Kansas does not make the full text of unpublished opinions available on its court web site.

BTW, does it really help to identify a juvenile by her initials when the initials are distinctive in a way that everyone who knows her will recognize them?  One more reason not to give kids hyphenated names.

Smart for Criminals


Kent has pretty much debunked today's release of the Constitution Project's "Smart on Crime" report  --  and I use the word "report" advisedly, since it's actually just the defense bar's wish list, and an old one at that.

The one thing I would add is that you can get the quick story on a "report" like this just from its vocabulary.  The phrase "Smart on Crime" always means a bunch of pro-criminal proposals.  In this sense, it's like the phrase "government investment," which always means handing over taxpayer money to constituencies favored by the party in power, or "revenue enhancement," which always means increased taxes.

The particularly noteworthy item about today's "report" is that it omits to mention  --  indeed, it intentionally obscures  --  the fact that we already know what is, in truth, "smart on crime," namely, punishing it.  The statistics are unanswerable.  As more and more criminals have been incarcerated over the last two decades, crime has plummeted to levels not seen in fifty years.  When the death penalty was reinstated and became actively used starting in the later 1980's, the murder rate likewise plummeted, and is now also at lows not seen in fifty years.

If "smart on crime" meant what a normal person would think it means, i.e., what works to reduce crime, we already know the answer:  When the crooks are in jail, they aren't robbing your house.  This is not exactly rocket science.  But the Constitution Project and its pals aren't about to tell you.  Instead, they're going to tell you the opposite.

It was because vocabulary is an excellent tip-off to defense double-talk that I started the "Dictionary for the Politically Incorrect," see, e.g., here, here and here.  The release of today's "report" makes me think I should crank it up again.

Repackaging Soft on Crime

The folks who want to repeat the sentencing mistakes of the 1960s are putting a lot of effort into the repackaging of old ideas.  Today the Constitution Project announced with great fanfare this report titled with the repackagers' favorite term, "Smart on Crime."  (Every con man tells you it would be smart to accept his deal, and you would be a fool to pass up the great opportunity.)

The bulk of the report is pro-thug.  The death penalty chapter proposes eviscerating AEDPA, the exact opposite of the change actually needed.  Astonishingly, the report asserts that "death sentences are disproportionately imposed on people of color."  In a debate with me on NPR on November 7, 2007, Constitution Project President Virginia Sloan said, "It's not the race of the defendant that is the major factor, and I don't think there are many studies that claim that."  Right.  The basis for the new, contrary assertion is our old friend, the Fallacy of the Irrelevant Denominator: "with African Americans comprising more than 40% of today's death-row inmates while constituting only 12% of the national population."  If you use the relevant denominator, murderers, there is no disproportion.

The first chapter is on overcriminalization and overfederalization, legitimate beefs that I have noted here before.  But they are fair-weather federalists.  They call for increased federal involvement in juvenile justice, an issue with little legitimate federal role.

The Constitution Project claims a "diverse coalition" for their soft-on-crime proposals.  Most of the coalition members listed on page vi are decidedly lefty, such as George Soros's Open Society Institute.  They also list Cato Institute, a libertarian organization allied with conservative free-marketers on economic issues but listing left on criminal law issues (even though they deny it).  Institute for Justice is similar.

Chapter 1 claims the Heritage Foundation as a contributor, and they do have a project on the overcriminalization and overfederalization issues, but Heritage is conspicuously missing from the coalition list on page vi.  We will try to clarify where Heritage stands on this.  I very much doubt they endorse the bulk of this report.

The Fort Hood Killer

"62% Still Favor Death Penalty for Fort Hood Killer," reads the headline on this Rasmussen survey report.  My immediate reaction on seeing headline, of course, was "What's with the other 38%?"  The percentage favoring the death penalty for Timothy McVeigh was much higher.

In the text of the story, we see that only 16% are opposed, exactly the same as Gallup's tally for McVeigh.  The big difference here is the 21% not sure.  That is entirely understandable, as this case is still in the pretrial stage while the Gallup survey on McVeigh was after trial and sentencing.

News Scan

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Prosecutors Seek Death Penalty Against the "Kensington Strangler":  Philadelphia prosecutors plan to seek the death penalty against suspected serial strangler Antonio Rodriguez, nicknamed the Kensington strangler.  At a preliminary hearing yesterday, two police detectives read confessions Rodriguez gave regarding three women he allegedly sexually assaulted and murdered between November and December of 2010.  DNA testing linked the 21-year-old homeless man to the attacks in the city's Kensington district.  Rodriguez is suspected of killing Casey Mahoney, 27; Elaine Goldberg, 21; and Nicole Piacentini, 35.  CNN has this story.

Apprendi Cited to Overturn Third Strike:
  San Francisco Chronicle writer Bob Egelko reports on a decision by the Ninth U.S. Circuit Court of Appeals to overturn the 25-years-to-life sentence for three-time felon Rick Wilson.  In its 2-1 ruling Tuesday, the court cited the Supreme Court's 2000 ruling in Apprendi v. New Jersey which entitles defendants to a jury trial on sentencing factors that increase the maximum sentence.  There is an exception for prior convictions, but sometimes the sentence enhancement does not fit neatly with the elements of crime in the prior case. In 1993 Wilson, while intoxicated, crashed the vehicle he was driving, killing one passenger and seriously injuring the other.  He pleaded no contest to gross vehicular manslaughter while under the influence and to proximately causing bodily injury while under the influence.  In 1999 Wilson ran a red light and refused to take a blood test and a jury convicted him of drunk driving, which due to his prior convictions of two serious felonies, counts as a felony.  At the sentencing hearing for the DUI, the Judge counted the prior convictions as strikes and imposed a sentence of 25 years to life.  The Ninth Circuit ruling overturned the sentence.   For the "strike" involving the surviving passenger, the trial judge found three facts which were not elements of the offense: personal infliction of the injury, extent of the injury as "great," and that the victim was not an accomplice. Chief Judge Kozinski dissented on the ground that whether such findings violate Apprendi is not clearly established, so under AEDPA the state court decision should stand.

Prosecutors May Increase Charges Due to Lack of Cooperation:  In another Ninth Circuit ruling announced Tuesday, the Court upheld the ability of prosecutors to up the charges against defendants who agree to plead guilty but refuse to testify against others.  It's the second time in a week that the federal appeals court has supported the tough plea-bargaining practices used by former U.S. Attorney Joseph Russoniello.  In U.S. v. Jay Kent the court upheld a San Francisco drug dealer's 10-year sentence.  The defendant was willing to plead guilty to distributing crack cocaine, which is punishable by at least five years in prison.  Prosecutors said they would specify a prior drug conviction, increasing his sentence to ten years, unless Kent agreed to testify against others.  U.S. District Judge Maxine Chesney allowed prosecutors to file the additional charge and Kent later pleaded guilty to both charges and received a ten-year sentence.  Bob Egelko of the San Francisco Chronicle has this story.

Great New Blog

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Neurolaw expert and law professor Nita Farahany has a great new blog covering recent case developments in neurolaw and biosciences.  Law and Biosciences Daily Digest is sure to be regular reading among those who follow this intriguing field. 

Lethal Injection Developments

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In California, Judge Fogel toured the new, not-yet-used facility.  Howard Mintz has this story in the San Jose Mercury-News.  Carol Williams has this story in the Los Angeles Times.  Scott Smith has this story in the Stockton Record.

The Ninth Circuit today rejected the attack on Arizona's lethal injection protocol in Dickens v. Brewer, No. 09-16539.  The panel was Judges Hug, Nelson, and McKeown, a relatively prisoner-friendly panel, even for the Ninth. 

First, the Ninth correctly finds that Chief Justice Roberts' plurality opinion in Baze is the controlling one under the Marks rule. Next,

Baze creates a safe harbor for lethal injection protocols that are substantially similar to Kentucky's protocol; the plurality states that such protocols do not create a substantial risk of serious harm. Id. at 61. Arizona's Protocol falls within this safe harbor--it incorporates even more safeguards against maladministration than Kentucky's protocol . . . .

That is also true in California.  So what's left to argue?  The prisoners, Dickens et al., argue about a risk that Arizona will not actually follow its protocol, citing incidents before the protocol's adoption.  The court is not convinced.

And, no, the availability of a one-drug protocol, even if superior, does not make the three-drug protocol unconstitutional.

Judicial Activism

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James Taranto at WSJ has this piece on the term "judicial activism."  Is the term still useful, or has it been so badly misused that it should be discarded?  He links to this 2004 Cal. L. Rev. article by Keenan Kmiec, who traces the term to a 1947 Fortune magazine article by Arthur Schlesinger.

Taranto quotes Kmiec quoting Justice Scalia saying the term is meaningless, but then,

Kmiec disagrees: "When explained carefully, the term can be a starting point for meaningful conversation about the judicial craft." That may be, and Kmiec's interesting article is a case in point. But when it comes to "judicial activism" as a term of political rhetoric, surely Scalia is right. "Judicial activism" is a shopworn phrase that has outlived its political usefulness.
The purpose of words is to communicate, and when a term will be understood to mean different things by different readers its usefulness is seriously diminished.  You can explain which meaning you intend, but that is a diversion from the flow of thought.

The right meaning of judicial activism, in my view, is largely Schlesinger's original meaning.  Believers in judicial restraint go where the law takes them when the path is clearly marked, even though their preference is for a different result.  Judicial activists decide what result they want and back in the legal reasoning to support it.

If we abandon the term "judicial activism," what should we call this important concept?  Result-oriented judging, perhaps?

Certainly we must not stop talking about it.  Constitutional right number one, the right of the people to govern themselves, depends on it.

News Scan

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Virginia Justice Hassell Dies:  Virginia Supreme Court Justice Leroy Hassell has died at the age of 55.  The Richmond Times-Dispatch has this story.  Attorney General Cuccinelli has this press release.

Cell Phone Recorded Man Killing Wife:  Ronald Earl Williams, 45, is on trial in Florida, charged with killing his wife.  In opening arguments yesterday, prosecutors said that Williams accidentally activated his cell phone and called his wife's cell phone.  The voicemail left on the wife's phone recorded Williams saying he was going to kill her, as well as her terrified screams.  Despite Williams' attorney's argument that the killing was not premeditated, prosecutors are seeking a first-degree murder conviction and the death penalty.  The AP has this story.

"Killing Machine" Gets 88 Years in Prison for Killing Two Cellmates:  Kurt Karcher, an Inmate already serving a life sentence for murder, was sentenced yesterday to 88 years to life for strangling two cellmates.  Jurors convicted Karcher of second-degree murder of Scott Manning at a state prison in Lancaster in 2006 and of voluntary manslaughter of Edgar Jimenez at the Twin Towers jail in downtown Los Angeles in 2007.  Sentencing Judge Stephen Marcus referred to Karcher as "essentially a killing machine."  The San Francisco Chronicle has this story.

"House Rejects Extensions of Patriot Act Provisions":  AP writer Jim Abrams reports on the failure of House Republicans to win enough votes to extend the use of three surveillance tools that are crucial to America's post-September 11 anti-terror law.  The GOP leadership brought the bill to the floor yesterday using a special expedited procedure which requires a 2/3 vote.  After 26 Republicans joined 122 Democrats in opposition, the tally was  277-148, seven votes short of passage. The three measures included court-approved roving wiretaps that permit surveillance on multiple phones, a library records provision that gives the FBI court-approved access to "any tangible thing" useful to a terrorist investigation, and the "lone-wolf" provision that permits secret intelligence surveillance of non-citizens not known to be affiliated with a specific terrorist organization.  House leaders must now bring the measure up under the regular procedure, which requires only a majority vote, and have it pass in the Senate before the three provisions expire on February 28.  The White House, said it "would strongly prefer" extending the measures to the end of 2013.  Jena Baker McNeill and Charles Stimson of the Heritage Foundation explain here why letting the provisions expire is a bad idea.

Child Killer Executed in Missouri

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People who murder children deserve a special place in hell, and they surely have a special place in the public mind.  Folks who handle the end of the capital punishment process tell me that they observe a marked diminution in the number of execution protesters in child-victim cases.  Even some of the "true believers" just have somewhere else they really have to be that day. 

Elissa Self-Braun, then eleven years old, was kidnapped, raped, and murdered in 1991.  While most capital cases involve no genuine doubt of guilt, the case against Martin Link was exceptional in that his guilt was doubly confirmed by DNA.  His semen was in Elissa's body, and her blood was in a jar of petroleum jelly in his car. The Eighth Circuit opinion from 2006 has the facts of the crime.

Yesterday's News Scan noted the governor's denial of clemency.  The St. Louis Post-Dispatch has this story on the execution.

Elissa's parents Don Self and Pamela Braun were among the witnesses at Link's execution.

"Justice was a long time coming," Self said afterward.

Link himself apparently absorbed the rhetoric of the anti-death-penalty movement.

"The state says killing is wrong, so why do they do it? It's revenge," Link said. "Where is the closure? There is none. The death penalty is an act of revenge."

Retribution is the correct word.  And it is the right thing to do.  We need to do it much more quickly, particularly in cases with no doubt of guilt.  For starters, Congress should remove from federal habeas all issues that affect only penalty and are irrelevant to guilt.

A Progressive Remedy for Clarence Thomas


Conservative Justice Clarence Thomas was, as he famously said at his confirmation hearing, the target of a "high tech lynching."  Tagging along with the lynching party was liberal hero Sen. Ted Kennedy, who watched in amusement as his colleagues grilled Thomas about his supposed harrassment of an attractive young woman, Anita Hill.  As I recall, Kennedy himself said little or nothing  --  a wise decision,  given that his own most famous encounter with an attractive young woman was to drown her.

As a recent gathering of progressives has now reminded us, a "high tech" lynching is not the only kind.  After gushing for more than a week about how "civility" is urgently needed in the wake of the grievous wounding of Rep. Giffords and the assassination of Chief Judge Roll, progressives gathered in California to protest a meeting of conservative business leaders.  Civility was not really their thing; shouting obscenities was.  A provocateur from Fox News started asking, among other things, what they would like to see done about Justice Thomas.

The answer, from the "civility" crowd, was "string him up."

Don't believe it?  I don't blame you, but see for yourself

Hat tip to John Hinderaker at Powerline. 

Neuroscience blog

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Here is a blog titled Law and Biosciences Daily Digest, by Nita Farahany at Vanderbilt.  The title threw me at first.  "Biosciences" sounds like the whole of life sciences, an immensely broad field.  Turns out the blog is about "neuroscience and behavioral genetics" and their use in law.  The daily digests are summaries of legal opinions.  One follows the jump.  There are also trial transcripts in this post, which could be very useful, particularly if you have notice that the expert in question is testifying for your opponent.

Thanks to Orin Kerr at VC for the pointer.

How Dangerous Is Pot?


CJLF takes no position on proposals to legalize marijuana, although Kent and I personally opposed (and California voters defeated), Prop 19.  Still, the debate rages on.  Libertarian scholars like my colleague Prof. Randy Barnett at Georgetown believe that continued criminalization is a bad and very costly idea.  My own view, both when I was the chief advisor to the head of the DEA, and in my career as a federal prosecutor, was that pot's relatively benign reputation is a myth, driven in part by my generation's fondness for the follies of its youth.

I too yearn for the follies of my younger days.  Just not that one.

Today, MSNBC  --  not the source of a lot of Puritan thinking  --  puts out this article on the growing evidence of the link between smoking pot and the early onset of mental disease, specifically schizophrenia and related forms of psychosis.  The study discussed in the story has its critics, but it seems to me to be sufficiently worrisome that legalizers might want to take note.

We report, you decide.

News Scan

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Teen Sentenced to 50 Years for Killing Neighbor:  John de Leon of The Seattle Times reports that Daniel J. Mustard, 19, was sentenced to 50 years in prison for killing his 87-year-old neighbor Ruby Andrews.  Mustard, 17 at the time, was invited into Andrew's home in 2009 after he told her he was conducting a survey for school.  Prosecutors allege he stabbed Andrews 16 times, took pictures of her body, and stole her white Cadillac.  He later bragged to others about the killing. Prosecutors were able to seek a longer sentence because the jury determined Andrews was a "particularly vulnerable" victim.

Ohio Supreme Court Sets Seven Execution Dates: 
Andrew Welsh-Huggins of the Associated Press reports the Ohio Supreme Court today set the dates for seven executions, scheduling one for per month through October.  The court spaced the dates a month apart in response a request from Ohio Department of Rehabilitation and Correction director Gary Mohr, who stated 30 days would be helpful to the department.  If the scheduled executions are carried out, 2011 would set a state record for executions in a single year with a total of nine.

Ohio Murderer's Confession Released:  Holly Zachariah and Allison Manning of The Columbus Dispatch have this story on the four-page confession released yesterday of Matthew Hoffman, drafted as part of Hoffman's agreement with prosecutors to take the death penalty off the table.  Hoffman admits to fatally stabbing Tina Herrmann and her friend Stephanie Sprang with a hunting knife, later killing Herrmann's son when he returned home from school.  After dumping the bodies in a hollowed out tree, Hoffman took Herrmann's 13-year-old daughter, still alive, to his basement and raped her several times over a four-day period.  Hoffman states in his confession that he did not intend to hurt the girl, claiming he cooked hamburgers, slept with his arm around her, and let her play video games. 

Clemency is Denied for Missouri Death Row Inmate:  The Associated Press reports Missouri Governor Jay Nixon has denied clemency to Martin Link, 47.  Link is scheduled to die tomorrow for the kidnap, rape and murder of 11-year-old girl Elissa Self in 1991.  Link has appeals pending before a federal judge and the Missouri Supreme Court challenging the legality of Missouri's lethal injection process.        

Reconsidering the Gas Chamber

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In 1992, the US Supreme Court rejected an attack on California's gas chamber on the procedural ground that the prisoner had withheld the challenge until the last minute even though the effects of cyanide gas had been well known the whole time.  Justices Stevens and Blackmun dissented, and among the reasons they gave was that all the experts agreed that another method was so much better -- lethal injection.  See Gomez v. US District Court, 503 U.S. 653, 656 & n. 7 (1992) (Stevens, J., dissenting).  California's first post-Furman execution went forward.

The message, loud and clear, was that the method-of-execution challenges could be stopped by adopting the method the prisoners' lawyers proposed.  And so it did, for over a decade.  Now we are back where we were.

I was against the change to lethal injection at the time.  There was something vaguely wrong about medicalizing a procedure that is supposed to be punishment.  The wrongness is no longer vague.

The problem with the gas chamber was not the method but the choice of gas.

Excessive Deliberations

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Two weeks ago, I discussed a murder case arising in Buffalo, NY.  The defendant claimed that he killed his wife in self-defense.  This was required, he maintained, after years of her "spousal abuse."

Although there may be rare instances in which the "spousal abuse" theory has merit, for the most part it's just defense lawyer hokum.  The common law of self-defense requires that the alleged defender be reacting to a reasonable fear of imminent grave bodily harm or death.  When you off your spouse in circumstances where there is no plausible claim of imminent danger, that is not called self-defense.  It has another, more familiar name:  Revenge.

But that's not what set the Buffalo story apart.  The kicker was that, whatever the general merits of self-defense grounded in spousal abuse, it probably does not fit comfortably where the "self-defense" consists of knifing your spouse forty times, than sawing her head off.  But that's what our beleagured defendant did.

The jury was suitably unimpressed, and returned its guilty verdict in an hour.  My only question is, what took them the extra 59 minutes?

Bias, Where?

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From John Tierney at the New York Times:

"Anywhere in the world that social psychologists see women or minorities underrepresented by a factor of two or three, our minds jump to discrimination as the explanation," said Dr. Haidt, who called himself a longtime liberal turned centrist. "But when we find out that conservatives are underrepresented among us by a factor of more than 100, suddenly everyone finds it quite easy to generate alternate explanations.

Dr. Haidt (pronounced height) told the audience that he had been corresponding with a couple of non-liberal graduate students in social psychology whose experiences reminded him of closeted gay students in the 1980s. He quoted -- anonymously -- from their e-mails describing how they hid their feelings when colleagues made political small talk and jokes predicated on the assumption that everyone was a liberal."

As the saying goes, read the whole thing.

Hat tip: The Right Coast

Tom Jackman of the Washington Post has this story on Chief General District Court Judge Dean S. Worcester of Loudoun County, Virginia, whose decisions to reopen the cases of five immigrants directly contradict a recent ruling by the state's high court.

Last month, the Virginia Supreme Court unanimously held in Commonwealth v. Morris that the state's writ of error coram vobis does not provide a vehicle for undoing a plea bargain based on defense counsel's failure to inform about possible immigration consequences.  "While ineffective assistance of counsel may render a judgment voidable upon the necessary showing, it does not render the trial court incapable of rendering judgment," as required for a successful writ of coram vobis. 

Nevertheless, Judge Worcester, in a recent case with facts paralleling those in Morris, found just the opposite:

[T]his Court finds that the [Morris opinion] is at odds with longstanding precedent and jurisprudence, is an infringement on the legislative power to amend, restrict or limit the common law, and creates confusion.
*                         *                         *
If this Court were to abide by the [Morris ruling], a constitutional violation will stand uncorrected, as the remedy of habeas corpus is not available to the Defendant in this case. . . the Court will not allow this to happen.
*                         *                         *
Had the Defendant been properly advised, he would not have entered into the plea agreement and this Court would have been prevented from entering this conviction.  This meets the elements necessary for relief under the general common law petition for Writ of Error Coram Vobis recognized in the Commonwealth of Virginia since its creation.

Judge Worcester's decision was met with shock from both defense counsel and prosecutor James E. Plowman, who is still deciding on his next step.

Thanks to How Appealing for the story and link.

Back to the Firing Squad?

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Professor Doug Berman at Sentencing Law and Policy has this entry today noting a NYT article about the possibility that states could, or should, return to the firing squad or other, past methods of execution in light of both the difficulty of obtaining the drugs used in the "three drug cocktail," and/or of the continuing, ceaseless litigation about whether states must use one particular kind of injection or another.

Lethal injection came about because our country was attempting to do what pro-defense groups wanted it to do, i.e., make executions less painful and more humane.

If it turns out that that agenda was only a head-fake, and was actually just the latest ploy to delay executions indefinitely (i.e., to impose a de facto moratorium without being honest enough to say so), society is not helpless.

[Editor's Note: If you have trouble accessing the NYT site, try the Texas Tribune.  Same story. -- KS]


Big Q Chamber Tour Tomorrow

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US District Judge Jeremy Fogel will tour San Quentin's new and improved execution chamber tomorrow, long after post-Baze claims have been rejected and executions resumed in other states.  The press corps will be in tow, and two reporters on the tour have these pregame articles:  Scott Smith in the Stockton Record and Howard Mintz in the San Jose Mercury-News.

News Scan

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After 14th Conviction, Man Sentenced to 15 Years:  Scott Daugherty of The Capital (Annapolis, MD) reports a Maryland judge imposed a 15 year prison term (seven years suspended) on Donald Eugene Farris, who has racked up 13 convictions over the last 18 years.  Despite his lengthy record, Ferris never served more than 9 months in jail at a time, usually pleading guilty and receiving sentences of time served and probation.  His latest conviction, stemming from the armed robbery of an Annapolis gas station, finally took the 27-year-old off the streets for a while because, as sentencing Judge MIchelle D. Jaklitsch stated, "You can't  sugarcoat an armed robbery, and you can't sugarcoat your record."

Judge Rejects Insanity Defense in Maine Murder Case:  David Sharp of the Associated Press reports that Chad Gurney, 29, was convicted of murder and arson after a judge rejected his insanity defense.  Prosecutors alleged Gurney strangled his girlfriend Zoe Sarnacki, 18, cut off her head, and set her body on fire.  Defense lawyers claimed Gurney has had mental health problems since a 2005 car accident, but prosecutors insisted Gurney was seeking revenge after finding out that his girlfriend had an affair.

Ex-convict Suspected of Shooting at Oakland Police Officers:  Harry Harris and Sean Maher of The Oakland Tribune report that Benny Ray Martin Jr., released from Nevada Prison two weeks ago after serving 5 years for a weapons conviction, is suspected of shooting at two Oakland Police officers.  His accomplice Anthony Perry, on parole for a weapons conviction, was arrested for trying to drive Martin away from the scene.  Martin, a suspected member of the Bushrod gang, was arrested shortly following the shooting after police officers tracing his escape route discovered the semi-automatic pistol allegedly used and ammunition in a nearby backyard.

1972 Cold Case Goes to Trial:  Ben Dobbin of the Associated Press reports that Willie James Kimble, 78, will be tried next month for the 1972 killing of a Georgia woman.  Kimble has previous convictions for the attempted rape of a 6-year-old in 1973 and the rape a 17-year-old-girl in 1981.  Police Investigator C.J. Dominic reopened the case after receiving an anonymous call.  Ironically Dominic's father, a police officer, questioned Kimble as a potential suspect in 1973 while investigating the murder.  A semen-stained blanket found in evidence storage provided a DNA match to Kimble.  If Kimble is convicted, this case would be one of the nation's oldest cold case murders solved by DNA evidence.  

The Hollywood Gift that Keeps on Giving

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I noted about six weeks ago that Lindsay Lohan, the poster girl for never ending (and seemingly never successful) "rehab," continues to light up the lives of those of us who think that a good stint in the slammer might bring about results that "counseling" and "treatment" seldom seem to produce.

Ms. Lohan appears to be determined to drive home the point.  Shortly following her latest and quite recent encounter with "rehab," she now faces charges of grand theft.  Her attorney, in wonderfully typical defense lawyer style, says, without giving any details, that she's innocent and will "fight the charges in court, not in the press."

It seems that representatives of starlets like this are always avoiding exposure in "the press"  --  except when they're courting it, which is virtually all the time when they haven't been fingered for lifting some pricey jewelry, as Ms. Lohan is accused of doing.  The one thing conspicuously absent from her lawyer's statement is any claim (1) that Ms. Lohan  didn't make off with the necklace in question, and (2) that she ever paid for it.

But I digress.  I have no idea what will become of these charges.  But I'll bet a goodly sum that we'll hear again from Ms. Rehab herself, and it won't take all that long.  It never does.    

Minorities and Crime

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It's not news at this late date that minorities, and blacks in particular, commit a disproportionate number of crimes (which is why, as Kent has pointed out, they represent a disproportionate share of the prison population).

It is fashionable among those on the Left to ascribe this fact to "white supremacy" and bigotry.  And while no serious person believes that racism has disappeared from the United States, the facts do not support the Left's favored theory.  Instead, the answer is set out in blunt terms by the generally liberal, but independently-minded black columnist, Colbert I. King, in today's Washington Post piece.  As Mr. King notes:

Here we are, another Black History Month: time to lionize great black men and women of the past. Twenty-eight days to praise the first African American to do this and the first African American who did that. Another month of looking back with pride - as we ignore the calamity in our midst.

When Black History Month was celebrated in 1950, according to State University of New York research, 77.7 percent of black families had two parents. As of January 2010, according to the Census Bureau, the share of two-parent families among African Americans had fallen to 38 percent.

We know that children, particularly young male African Americans, benefit from parental marriage and from having a father in the home. Today, the majority of black children are born to single, unmarried mothers.

As Mr. King observes, when fathers are absent from the home, what happens is that teenage  girls get babies and teenage boys get guns (and, I might add, drugs).  You don't have to be a genius to figure out what happens next.
In my view, the disintegration of black family life is a scandal, a tragedy and an enormous civic danger.  It's time for our cultural elites to say so out loud  --  and then do something about it.

One of the "Exonerated" Arrested for Rape

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Nolan Clay has this story in the Oklahoman, touching on several themes.  One is the misrepresentation of the notorious "innocence list."  Another is the difficulty in prosecuting gang-related crimes.  A related issue is why fewer black-victim homicides result in the death penalty.  I will depart from our usual practice here and quote the story in its entirety.

A former death row inmate was arrested Friday, accused of involvement in a gang rape at an Oklahoma City apartment last October.

Paris Lapriest Powell, 37, of Oklahoma City, was identified by DNA evidence as a suspect in the assault of two women, police reported.

The victims said three "males pushed their way into their apartment" sometime after 2 a.m. Oct. 6 "and raped ... and assaulted both of them throughout the night," police reported. One woman described being tied to her bed and blindfolded during the attack.

He's Baa-aaaack

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Kentucky death row inmate Ralph Steven Baze (from Baze v. Rees re: the Kentucky execution drug protocol) is back in court, this time seeking a federal court order for "unfettered access" to interview prison personnel in support of his application for clemency.  The district court ruled, and the Sixth Circuit affirmed, that federal courts lack jurisdiction to order such relief.

First, Baze argues that "the plain language of § 3599(f) provides jurisdiction and authority to prevent . . . interference" with an attorney's efforts to obtain investigative services.
*                        *                        *
We disagree with Baze's textual interpretation. The relevant provision simply empowers a court to authorize, for purposes of compensation, an attorney to acquire an investigator's efforts--not his total success. Therefore, it does not, as Baze argues, enable a court to order any party that stands in the investigator's way to stand down. To permit someone to seek information is not the same as establishing a substantive right for that person to acquire that information over all possible obstacles.
*                        *                         *
In the alternative, Baze argues that the All Writs Act, 28 U.S.C. § 1651, empowers the district court to order KDOC to allow him to interview prison personnel and inmates.  The All Writs Act provides, in relevant part, that "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." . . . Baze argues that, "because the district court was empowered under 18 U.S.C. § 3599 to authorize counsel to obtain services, the All Writs Act authorizes orders necessary to prevent government officials from interfering with those services." . . . Because section 3599 speaks only to funding, Baze's All Writs Act argument meets the same fate as his section-3599 argument. 

Thanks to commenter "federalist" for the link.

A Testimonal Tattoo

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Can a tattoo be a witness?  Felon Michael Greer was convicted of illegally possessing a firearm and ammunition.  On appeal to the Second Circuit, he argued the government's use of a tattoo on his left arm to link him to the car in which the ammo was found violated his Fifth Amendment right against self incrimination.  The court determined:

The government relied on the tattoo not as an "identifying physical characteristic" but for the "content of what [was] written." The tattoo was therefore testimonial and, because it linked Greer to the ammunition, incriminating.

But wait...

The voluntary tattooing of an incriminating word to Greer's arm was . . . not the product of government compulsion.  In the absence of compulsion, Greer's Fifth Amendment claim fails.
(citations omitted)   

Hat tip to How Appealing.

News Scan

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Jury Recommends Death Penalty for Killer:  David Ovalle of the Miami Herald reports a jury yesterday recommended a sentence of death for Brandon Rolle, convicted of fatally shooting Illinois tourist Ronald Gentile.  Prosecutors claim Rolle shot Gentile and stole his jewelry after Gentile stopped to ask for directions.  Rolle later posed at a nightclub with his finger outstretched like a gun wearing the victim's stolen bracelet.  Rolle had a long juvenile arrest record and had served three prison terms, his last one ending 17 days before Gentile's murder.

Man Convicted in 1975 Cold Case Killing:  Tracey Kaplan of the Mercury News reports that convicted sex offender Edward Dees, already serving a life sentence for four sexual assaults, pleaded no contest yesterday to killing Sandra Howard in 1975.  Howard's parents found the 22-year-old newlywed with a cake knife in her chest and a man's tie pulled tightly around her neck, and with evidence that she had been raped and strangled.  Dees was charged in 2007 after DNA evidence linked him to the crime.

Illinois to Seek Death Penalty for Harris Brothers:  Edith Brady-Lunny of the Pantagraph (IL) reports that prosecutors will seek the death penalty for Christopher J. Harris and Jason L. Harris for the home invasion murders of Ruth and Rick Gee and three of their children who were found beaten to death in 2009.  The Harris brothers will each face charges of first degree murder, home invasion, residential burglary, and attempted sexual assault, as well as the attempted murder of Tabitha Gee, who was 3 years old at the time of the attack.  Illinois lawmakers voted last month to abolish the death penalty, but Governor Pat Quinn has not signed the bill into law.  The prosecutor has expressed concerns that defense costs currently funded by the State Capital Litigation Trust Fund may fall on the county if the death penalty is abolished before the end of the trial.

California Prison Labor Rules Frustrate Ban on Inmate Cellphones:  Jack Dolan of the Los Angeles Times reports on an obstacle to keeping cellphones away from California's inmates.  The California prison guards union estimates that if officers are required to go through scanners at the beginning of a shift, it will cost millions of dollars more per year collectively to compensate them for the additional "walk time" to get from the front gate to their posts.  Last year, more than 10,000 cell phones made their way into California prisons.  Senator Alex Padilla has responded with a bill that would impose a $5,000 fine for anyone caught smuggling cell phones into prison and lengthen sentences for up to 5 years for inmates caught with cell phones.

More Fallout from Swarthout v. Cooke

Bob Egelko of the SF Chronicle reports:

A U.S. Supreme Court ruling prohibiting federal judges from overturning state parole decisions has nullified court orders favoring two men convicted of Bay Area murders.
Paul Tash, was convicted of second-degree murder for fatally shooting a friend through a door at a drug dealer's San Francisco home in 1983. The other, Ron Mosley of Oakland, pleaded guilty to second-degree murder for stabbing his boss to death in an argument over a $60 payment for yard work.
*                              *                              *
The state parole board had found Tash suitable for release in 2004 and Mosley in 2005. The board said both men had done well in prison work and therapy programs and were no longer dangerous.
[Governor] Schwarzenegger overturned both decisions, citing the callous nature of the murders, as he did in most such cases. He also said Tash had shown a lack of insight into his crime by maintaining that he shot in self-defense, and that Mosley had a record of disciplinary offenses in prison.
Both men lost appeals in state court but had temporary successes in federal court.

That is, until the Supreme Court's forceful reminder last week that federal courts do not enjoy the role of final gatekeeper for California parole-eligible inmates.  The Ninth Circuit this week was forced to correct its earlier mistake of brushing aside the state's parole-suitability determinations, and imposing its own (or in Tash's case, that of a federal district judge). 

Noting that Mosley's parole hearing was conducted procedurally correctly, the Ninth Circuit concluded, "According to the Supreme Court, that is 'the beginning and the end' of our inquiry."

See also yesterday's post on another parole case here.
When a trial judge is found to have erroneously failed to hold a competency hearing before trial and must hold one long afterward, who has the burden of proof?

The California Supreme Court today held that the burden of proving incompetency is on the defendant, consistently with the statute for pretrial competency hearings. The opinion in People v. Ary, No. S173309, notes that a majority of jurisdictions agree, although there is an Eleventh Circuit opinion contra.

Two Decades for the General

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In the Supreme Court, it is common to hear attorneys general and solicitors general addressed as "General."  Personally, I think that is silly, one issue on which I agree with Janet Reno.

There is, however one real general in the room.  That is the Clerk of the Court, Maj. Gen. William Suter (US Army, Ret.).  Amy Howe has this post at SCOTUSblog noting General Suter's 20th anniversary as the clerk.

News Scan

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Florida Supreme Court Gives Go-Ahead for Execution:  The Florida Supreme Court today ruled death row inmate Donald Dufour is not mentally retarded and can be executed, reports Rene Stulzman of the Orlando Sentinel.  Defour was sentenced to death for the 1982 slaying of Zack Miller, whom Defour met at a bar and shot at very close range.  Defour is also accused of murdering four other people in Florida and Mississippi that same year, and is currently serving life sentences for two convictions.

Convicted Killer Caught After 22 Years on the Run:  John Howell of the West Hartford Patch (CT) reports that Adam M. Zachs, convicted of murdering a man outside a Connecticut restaurant, was recently captured in Leon, Mexico after 22 years on the run.  In 1988, Zachs was convicted of first degree murder and sentenced to 60 years for the fatal shooting of Peter Carone, but fled while out on bail pending his appeal.  Authorities have suspected for years that Zachs was hiding in Mexico and at the time of his arrest, found him married with two kids and running a computer repair business.

Guns Tracked by ATF Found at Border Crime Scene:  Kim Murphy of the LA Times has this story on the growing controversy surrounding a gun smuggling investigation conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives.  Whistleblowers within the agency have indicated that "Project Gunrunner" has focused heavily on illegal cross-border sales of guns, but paid little attention to tracking the guns after the sales.  The controversy has resurfaced after the feds confirmed two AK-47s, purchased for cash and monitored by the ATF, were used in the December gunfight that left Border Patrol Agent Brian Terry dead.

Preventable Mass Murder

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Political correctness is not merely annoying; it's dangerous.  When, on account of PC-induced soft-peddling of warning signs about unstable and radical behavior, a jihadist gunman mows down 13 unsuspecting people, it's time to check the PC at the door and act on what we know.  This isn't "racial profiling" or any other kind of "profiling," although that is the knee-jerk charge from the PC crowd.  It's what a country serious about its survival should insist upon.

We didn't, and Major Nadal Hasan exacted the price on November 5, 2009, at Ft. Hood, Texas.

Senators Lieberman and Collins have now issued a report that makes for shocking reading.  The key paragraph in the executive summary states:

Our basic conclusion is as follows: Although neither DoD nor the FBI had specific information concerning the time, place, or nature of the attack, they collectively had sufficient information to have detected Hasan's radicalization to violent Islamist extremism but failed both to understand and to act on it.  Our investigation found specific and systemic failures in the government's handling of the Hasan case and raises additional concerns about what may be broader systemic issues.

Obviously most Muslims are peaceable people.  But pretending that jihadism doesn't exist so that we will be seen as "tolerant" and "inclusive" is beyond stupid.  What we will actually be seen as is a country so feckless we fail to recognize the war we're in or even the identity of the enemy.

Ft. Hood was a preview of what follows from this degree of smiley-faced cluelessness.  How many more previews will it take for President Obama to wake up? 

Orin Kerr and the Davis Case

Tony Mauro has this story in the NLJ on their choice for Appellate Lawyer of the Week, GW Law Prof. and Volokh Conspirator Orin Kerr.

The article focuses on Davis v. United States.  This upcoming Supreme Court case asks whether there is a good-faith exception to the exclusionary rule when a search is authorized by precedent at the time of the search but that precedent is later overruled.

CJLF disagrees with Professor Kerr in this case, and our brief supporting the government is due Feb. 18.  The case will be argued March 21.

I'm glad to see this article accessible to the public.  So much of Mauro's work is behind the paywall these days we don't get to link to much of it on the blog.

USCA9 Getting the Message?

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Judson Berger has this story at Fox News on the recent spate of unanimous reversals of the Ninth Circuit by the US Supreme Court.

The Supreme Court may be sending a message to one of the country's most liberal appeals courts, unanimously overturning five consecutive cases out of the 9th Circuit in less than a week.
Will they get the message?

Today, the US Court of Appeals for the Ninth Circuit issued this order in Miller v. Oregon Parole Board, No. 07-36086:

Where You Gonna Appeal?

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When the legislature or executive violates the constitution, you go to a court to have the act declared unconstitutional or the executive action enjoined.  When a court violates the constitution, you go to a higher court for a writ of prohibition.

Where do you go when the highest court violates the constitution?

Washington Constitution, Article IV § 2 provides, "When necessary for the prompt and orderly administration of justice a majority of the Supreme Court is empowered to authorize judges or retired judges of courts of record of this state, to perform, temporarily, judicial duties in the Supreme Court...."

Clear enough?  Judges and retired judges.  Not former judges defeated for reelection.

PTSD and the Vet

Psychiatrist Sally Satel has a thoughtful article on the change in diagnosis of PTSD by the Veteran's Administration.  As Dr. Satel mentions:

On July 12, 2010, General Shinseki penned an op-ed in USA Today ("For Vets with PTSD, End of an Unfair Process") announcing a new Veterans Administration rule making it easier for veterans suffering from PTSD to file disability claims. Part of the rule was straightforward: The VA would no longer require that a veteran provide documentation of his exposure to combat trauma, seeing how such paperwork is often very difficult for veterans to obtain. Streamlining the lumbering claims bureaucracy is one thing, and welcome it is, but the new rule does not end there. It also establishes that noninfantry personnel can qualify for PTSD disability if they had good reason to fear danger, such as firefights or explosions, even if they did not actually experience it. "[If] a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity, he is eligible for a PTSD benefits," according to the Federal Register. This is a strikingly novel amendment. The idea that one can sustain an enduring and disabling mental disorder based on anxious anticipation of a traumatic event that never materialized is a radical departure from the clinical--and common-sense--understanding that traumatic stress disorders are caused by events that actually do happen to people. However, this is by no means the first time that controversy and ambiguity have swirled around the diagnosis of PTSD (emphasis added).

My Sixth Sense tells me that we'll see this in the civilian context in the near future. 

News Scan

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DNA Links LA Serial Killer to Four More Victims:  Chester Dewayne Turner, former pizza deliveryman, was charged Tuesday with strangling four more women in South Los Angeles in the 1980s and 1990s, after DNA tests linked him to the victims.  Another inmate was convicted of two of the murders and spent 11 years in prison before he was released in 2004 after DNA testing cleared him.  Turner is currently on death row for killing ten women, including one who was six and a half months pregnant.  The AP has this story.

Mental Hospital Administrator Allegedly Lured Boys for Sex:  Amy Taxin of the AP reports on the case against former Napa State Hospital director Claude Foulk, charged with molesting his adopted son for nearly a decade.  Prosecutors say 11 other men have accused Foulk of sexually abusing them over a period of four decades, after he lured them as boys with pizza and trips to a mountain cabin.  Because of the applicable statute of limitations, only the case involving Foulk's son can proceed.  If convicted of all counts, Foulk could face up to 280 years in prison.

"Europe's dangerous death penalty gesture":  Charles Lane has this editorial in The Washington Post on the decision of some European countries to restrict the export of sodium thiopental to the U.S. in protest to its use in lethal injections.  Lane points out the drug "has long been a mainstay of anesthesia; the World Health Organization lists is as an 'essential medicine' for any health-care system," and that refusal to export the drug will likely not deter states from proceeding with executions given the availability of substitute drugs.  Lane opines: "What we have here is not a serious, effective protest, but an exercise in feel-good politics that puts innocent people at risk.  You would have thought our friends in the Old World would know by now: In morality, as in economics, there is no free lunch."

Exaggerated Border Crime?:  During a speech in El Paso earlier this week, Homeland Security Secretary Janet Napolitano asked officials to stop exaggerating the violence in U.S. border towns, reports Brian Bennett of Los Angeles Times.  Napolitano cited dropping crime stats in southwest border counties despite the increasing violence over the border.  Representative Ben Quayle (R-Ariz.) responded that the drug and human smuggling efforts in the area was "far more impacting" on Arizona's cattle ranchers than Napolitano's comments suggested, and a spokesman for Arizona Governor Jan Brewer reiterated the state's concern that "the violence by the cartels will begin spilling across the border." 

A "Model Inmate"

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Ken Armstrong and Jennifer Sullivan of The Seattle Times have this story on Byron Scherf, a Washington inmate accused of strangling to death a 34-year-old female correctional officer in a prison chapel over the weekend.  (Prior post here.)  But first, a brief history of the inmate whom a state report labeled "an easy keeper" who took advantage of "every self-help program available":

The Fallacy of the Irrelevant Denominator raises its ugly head again as the soft-on-crime crowd once more tries to play its worn race card.

This time it comes from Illinois, which has a Disproportionate Justice Impact Study Commission.  Nobody seems to be interested in making the full report available on the Web, but I did find this "fact sheet" on the site of State Senator Mattie Hunter.

From long experience with people who mislead with statistics, any time I hear "disproportionate" I immediately ask "proportion to what?"  A favorite trick among mathematical prestidigitators is to keep your eye focused on the numerator while the skullduggery happens in the denominator.

Sure enough, the fact sheet says (emphasis added):  "Nonwhites were arrested at a higher rate than whites relative to their representation in the general population throughout Illinois."

What does this "disparity" tell us of importance to criminal justice policy?  Absolutely nothing.

The relevant denominator is people who commit the offense in question.  The general population, consisting mostly of people who have not committed the offense, is irrelevant.  The ratio of arrests over an irrelevant denominator is irrelevant.  A disparity of arrests of nonwhites relative to their representation among offenders would indicate at least a possibility of discriminatory enforcement, but that is not what the report says, at least as far as we can tell from the fact sheet.

On sentencing, they do compare to a relevant denominator of a class of offenders.  That raises a different problem.  You have to control for other relevant factors, such as prior criminal record.  Did they properly control?  Can't tell from the fact sheet.

Update:  Thanks to commenter mjs, we now have a link to the full report.

News Scan (Our 1000th!)

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Leader of Child Sex Ring in Thailand Sentenced to 25 Years:  CNN reports a federal judge in New Jersey sentenced 64-year-old John Wrenshall to 25 years in prison for running a child sex ring at his Thailand home.  Wrenshall pleaded guilty to conspiring to participate in sex tourism and to produce and distribute child pornography.  Court authorities said that since 2000, Wrenshall arranged illicit trips for Americans and others who paid him to engage in sexual acts with Thai boys, some as young as four.  Wrenshall also "trained" the boys for his clients and permitted customers to videotape and photograph their abuse.

Police Dropped Abuse Case Weeks Before Mom Allegedly Shot and Killed Kids:  Police ended their investigation into a Florida mother's child abuse weeks before the woman admitted killing her teenage children because they were "mouthy."  Julie K. Schenecker, 50, is charged with two counts of first-degree murder in the killings of 13-year-old Beau Powers Schenecker and her 16-year-old Calyx Powers Schenecker.  Police ended their investigation due to Calyx's lack of visible wounds, despite the fact that both the mother and daughter admitted the beatings.  Last Thursday, officers found Schenecker at her home covered in blood.  Both children were dead from gunshot wounds.  Schenecker confessed to a murder-suicide plan, but has yet to enter a plea pending a psychiatric evaluation.  CNN has this story.

Several Los Angeles Gang Units Temporarily Dismantled:  Joel Rubin and Scott Gold of the Los Angeles Times report the LAPD has temporarily dismantled anti-gang units in several of its high-crime neighborhoods, after officers refused to comply with a new controversial policy requiring them to periodically disclose their assets and debts.  The officers have been sent back to patrol duties, but there are concerns that the officers' absence from the neighborhoods will set back anti-gang efforts in the city. 

Ex-Marine Murder Defendant Urinates in Courtroom:   Sarah Burge of the Press-Enterprise (Riverside, CA) reports 23-year-old Kesaun Sykes ("Psycho"), one of four ex-Marines facing trial in Riverside County for the deaths of a Marine sergeant and his wife, will undergo a mental exam after urinating and flinging drops of urine during a court hearing on Friday.  The judge suspended the proceedings and ordered a psychiatric evaluation of Psycho.

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