March 2011 Archives

A Confession of Error

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Most of our readers will know that a "confession of error" usually means that the government has concluded, or discovered, that its position in a previous filing  --  usually in the lower court  --  was incorrect.

I'm no longer in the government, but I must make a confession of error.

In my comments to a February 2 piece by Kent, Orin Kerr and the Davis Case, I criticized Orin for supporting the defense view that the exclusionary rule applies on the facts Davis presents.  I did so, however, in an unnecessarily nasty tone, saying, "Tony Mauro's puff piece on Orin is to be expected. I know Orin slightly, and his reputation as center-right is overblown. He is to legal conservatism what David Brooks is to conservatism in general, to wit, the 'conservative' liberals most eagerly embrace."  I went on to make a couple more shorter but equally snippy remarks.

In a later comment on the same posting, I partly redeemed myself, saying, "Orin is a plenty nice fellow and...a balanced and fertile intellect."

I ran into Orin tonight and had the chance to talk with him for a few minutes.  I was reminded of what a decent, gracious and good-hearted person he is.  The tone of my February 2 criticism was out of line.  I continue to believe his argument in the Davis case is unavailing and that the Court will disagree with it, but I regret having used an ill-tempered tone in describing him.  He deserved, and deserves, much better, a fact I will remember from now on.


News Scan

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Utah Sex Offender Finds Perfect Loophole to get Off the Hook:  Convicted Utah sex offender Lonnie Hyrum Johnson, 38, who has been charged with almost two dozen counts of child sex abuse may soon be released from a Utah State Hospital.  Doctors say he no longer poses a danger to society, despite the fact that he's mentally incompetent to stand trial.  Johnson was charged in 2007 with rape, sodomy, and aggravated sexual abuse of a child for alleged acts with his niece and her step-cousin between 2001 and 2006.  In 2006, Johnson was convicted of raping a teenage girl in Washington state and was sent to prison, where he served less than a year.  If convicted of the Utah rapes, Johnson could face life sentences for every count.  Instead, he may be released following a hearing this afternoon.  Several weeks ago, a judge found that Johnson is unlikely to become competent to stand trial and doctors do not believe he would pose a threat to society if released.  District Attorney Craig Johnson sought to have the defendant civilly committed, but doctors say he doesn't meet the necessary legal requirement.  For civil commitment under Utah law, a doctor must find that a person's mental illness makes them a danger to himself or others.  "I am just floored," said Christy Danner, the mother of one victim. "I don't understand how he's competent enough to let go but not competent enough to stand trial. It's not fair to the girls. It's almost like they are victimized again.  He's found the perfect loophole and the scary thing is now he's got it figured out if he ever does something like this again," she said.  AP writer Jennifer Dobner has this story.

Murder Charges Dropped for Serial Killer after Death Penalty Repeal:  Rummana Hussain of the Chicago Sun Times reports on a decision made by Cook County prosecutors to drop three murder charges against alleged serial killer Paul Runge, due to the state's recent abolishment of the death penalty.  "In light of the state's recent decision to abolish the death penalty in Illinois, the State's Attorney's Office reluctantly concluded that with the death penalty no longer an option for Runge in these brutal murders, there was no other course of action but to drop the remaining murder charges in these cases," the office said in a statement.  The murder charges dropped against Runge included the 1995 killing of Stacy Frobel and the 1997 murders of Dorothy Dziubak and Kazimera Paruch.  Runge, 41, was taken off death row along with 14 others earlier this month when Gov. Pat Quinn signed a bill repealing the death penalty in Illinois.  Runge continues to serve a life sentence for the 1997 sexual assault and murders of 35-year-old Chicago resident Yolanda Gutierrez and her 10-year-old daughter Jessica Muniz.

Massachusetts' Highest Court Rejects Killer's Plea for New Trial:  The Massachusetts Supreme Judicial Court yesterday  rejected a killer's claim that his lawyer deprived him of his right to appeal by telling him he would likely face the death penalty in a new trial.  John Petetabella has been serving a life sentence for nearly 50 years for fatally shooting bar owner Jean Thibeault in 1963, and did not appeal his conviction until May 2008.  During his 1964 trial, Petetabella admitted to shooting Thibeault in the back with two other men as they robbed the bar.  He claimed he was drunk and insane.  Persuaded by Petetabella's attorney, the jury sentenced him to life in prison, sparring him the death penalty Massachusetts then had in effect.  The state abolished the death penalty in 1984.  "This defendant has admitted to committing the murder, and today's ruling by the SJC affirms our view that he knowingly testified to his guilt at trial and voluntarily waived his right to a direct appeal more than four decades ago,'' Bristol District Attorney Sam Sutter said.  Denise Lavoie from the Boston Globe has this story.

Hunt for Serial Killer Continues as Police Discover More Human Remains on Long Island Beach:
  Police discovered more human remains on a Long Island, New York, beach approximately one mile from where the bodies of four other women were discovered last year.  The hunt for a potential serial killer continues, as does the search for Shannan Gilbert, 24, whose disappearance led to the discovery of the other bodies.  All four women found dead were prostitutes offering services on Craigslist.  Nina Golgowski of CNN has this story.

The Ghost, and Ghosts, of Lockerbie

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The Wall Street Journal has this news alert:

Scottish prosecutors want to interview Moussa Koussa, the former Libyan foreign minister who flew to the U.K. Wednesday, in connection with the 1988 Lockerbie bombing. Mr. Koussa has at times been alleged to have had a role in the bombing.

Earlier Thursday, U.K. Foreign Secretary William Hague said Mr. Koussa won't be offered immunity from British and international justice.

What really needs to happen is that Koussa should be extradited to, or seized by, the United States, and brought here to be executed for the mass murder in which he is up to his eyeballs.

As I have noted before, there has been no serious punishment for the vindictive and horrifying slaughter of 270 innocent people.  One Libyan intelligence official was jailed, then released on fake "compassionate" grounds.

The whole Libyan adventure is beyond the scope of this blog, but one piece of it is easy.  It's time for justice for Mr. Koussa.

News Scan

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California Judge Issues 7-Year Gang Injunction:   Hudson Sangree of the Sacramento Bee reports Yolo Superior Court Judge Kathleen White yesterday issued a tentative anti-gang injunction across a large part of West Sacramento for seven years.  During a six-month trial, prosecutors pushed for the injunction to control the alleged street gang known as the Broderick Boys, who prosecutors claim are responsible for the criminal activity across the Bryte and Broderick neighborhoods.

Danes Won't Block Execution Drug:  Danish drug manufacturer Lundbeck A/S, the only company currently making pentobarbital, will not cease production or restrict the sale of the drug despite its use in some states' execution protocol.  Lundbeck A/S has made clear its belief that this use of pentobarbital is "misuse," but refused to monitor its sale of approximately 50 million doses per year.  Jan M. Olsen and Karl Ritter of the AP have this story.  "'Financially speaking this is not an important product for us and we thought about whether we should withdraw it and the reaction we got from doctors was that they didn't want us to withdraw the product,' [the CEO] said at the drug maker's annual shareholders meeting in Copenhagen."

The "I'm New to Snow" Defense?:
  Laurie Mason Schroeder of the Bucks County Courier Times (PA) reports Eddie Simmons, 26, was sentenced to three to 23 months in prison after he pulled out a 9 mm handgun and threatened a snow removal contractor who was blowing snow near Simmons's car.  Although ultimately pleading guilty to a misdemeanor, Simmons offered the judge an excuse for his behavior: his previous home in North Carolina's Outer Banks region, which averages about an inch of snow, left him unequipped to deal with Pennsylvania winters.  "This was not a deliberate act.  This man looked about his window that morning and saw three feet of snow.  He lost it," said Simmons's attorney Craig Pengase.

Laptops at the Border

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From the Ninth Circuit today, a 2-1 decision on the border search doctrine:

Today we examine a question of first impression in the Ninth Circuit: whether the search of a laptop computer that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away can still fall within the border search doctrine. The district court considered the issue to be a simple matter of time and space. It concluded that the search of property seized at an international border and moved 170 miles from that border for further search cannot be justified by the border search doctrine. We disagree.
*                    *                  *
Because we agree with the district court's conclusion that the federal agents acted reasonably, and find that neither the scope of the intrusion nor the duration of the deprivation was egregious, we reverse the district court's order suppressing hundreds of images and videos of child pornography found on Howard Cotterman's computer and remand the case to the district court for further proceedings consistent with our decision.

Opinion by Judge Tallman, joined by Judge Rawlinson.  Judge B. Fletcher dissents.

You Can't Make This Stuff Up

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Let me post verbatim an entry Doug Berman put up today on his always worthwhile blog, Sentencing Law and Policy.  This is really too good to pass up:

"From the 'you can't make this stuff up' file come this local sentencing story from California, headlined 'Woman in court for sentencing allegedly presents forged doctor's note, then collapses.'  Here are the particulars:

A 41-year-old woman who was in court this morning to be sentenced for prescription drug forgery allegedly presented a forged doctor's note in an attempt to delay the proceedings, and then collapsed when the judge ordered her back into custody, according to a prosecutor.

Michelle Elaine Astumian, who had been out of jail after posting $45,000 bail, was scheduled to be sentenced today by Judge Barry LaBarbera to four years and eight months in state prison.  She had pleaded no contest in January to two counts of forging a drug prescription and one count of using a fraudulent check.  Each count is a felony.

But before the sentencing Deputy District Attorney Dave Pomeroy said that Astumian presented a doctor's note stating that her sentencing should be postponed.  Pomeroy called the doctor whose name was signed on the note, and the doctor told him that the note was forged.

Pomeroy said that he reported the alleged forgery to LaBarbera, who ordered Astumian into custody.  She then fell to the floor, prompting the judge to clear the courtroom for about 30 minutes.  An ambulance arrived and took Astumian to a local hospital.

It's very unusual for a defendant to react in the manner that Astumian did, Pomeroy said. "I'm trying to approach her reaction with understandable skepticism," Pomeroy said.  Pomeroy said that Astumian will need to be brought back to court to be sentenced, but he wasn't sure exactly when that might happen.

Although Ms. Astumian takes it to an extreme, she has the basic defense routine down pat: When caught red-handed, turn yourself into a victim and demand compassion.


Most Influential Lawyers?

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The National Law Journal has picked its Most Influential Lawyers in 10 practice areas.  However, if you are a prosecutor or if you are a defense lawyer handling violent crime cases, don't bother looking for your colleagues (or yourself) there.  The only criminal law area listed is "white collar defense."

Matters of life and death are not important enough to be included, apparently.
Associated Press reports:

A United Nations court for Rwanda's 1994 genocide has sentenced a former mayor to life imprisonment for the mass killings of Tutsis, some of whom were refugees seeking sanctuary in churches to escape violence.

The International Criminal Tribunal for Rwanda on Tuesday found Jean Baptiste Gatete guilty of ordering killings of members of the Tutsi community in Murambi commune where he was mayor, and in the parishes of Kiziguro and Mukarange.

The court said Gatete, who later became a director at the Ministry of Women and Family Affairs, led the attack at Mukarange. Those attacks resulted in the killing of "hundreds if not thousands of Tutsi civilians."

At least 500,000 ethnic Tutsis and moderate Hutus were killed during Rwanda's genocide.

Because it is a United Nations tribunal with heavy European influence, the court is incapable of imposing the only adequate sentence for genocide, i.e., death.  Unless and until our allies find their lost backbones, the United States will have to go it alone when it comes to punishing terrorists and other mass killers that happen to come within our power.

Thiopental in Arizona, Part II

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The US Supreme Court denied a stay and certiorari to Arizona murderer Eric King.  No dissent is noted.  Prior post on the thiopental issue is here.

Update:  Michael Kiefer of the Arizona Republic reports the execution was completed at 10:22 a.m., local time.

Supreme Court Dumps Tolentino Case

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The US Supreme Court today "dismissed as improvidently granted" the Fourth Amendment case of Tolentino v. New York, argued last week.  CJLF's brief in the case, written by Christine Dowling, is here.

The case involved the question of whether a driver's DMV record, indicating ten suspensions of his license, can be suppressed on the ground that the police did not have sufficient cause to stop him.

So why did the Court drop the case?

One of the things that bothered me about this case from the beginning is that the defendant was trying to suppress the wrong item.  Early in the proceedings, he moved to suppress both the police officer's identification of him as the driver and the DMV records.  But the trial court never ruled on the first point, and the defendant didn't press it in subsequent reviews.

From the argument, it is apparent that this bothered Justice Scalia also.  If the stop were illegal (something never adjudicated), then any observations after the stop would be suppressible.  The DA was ready with an answer that any such claim is now defaulted as a matter of state law.

So the Court might have said that the DMV records are not suppressible but the identification might have been except we are not really sure if that argument is waived because defendant didn't argue it in the state appellate courts.  Well, that would be messy.

That's my best guess as to the reason for the "DIG."  We will never really know.

The Supreme Court today gave the prosecution a big win in Connick v. Thompson, described below in the Heritage Foundation summary:

In a 5-4 decision by Thomas, the Court held that a district attorney's office cannot be held liable under section 1983 for failure to train its prosecutors based on a single BRADY violation. 

Thompson was convicted of armed robbery, and later, capital murder.  He chose not to testify at his murder trial because of his prior robbery conviction.  A month before Thompson was to be executed, an exculpatory crime lab report was discovered relating to the armed robbery.  The execution was stayed, and his robbery conviction was overturned.  A Louisiana appellate court reversed Thompson's murder conviction, and he was acquitted when retried. 

Thompson sued the district attorney's office under section 1983, claiming they had violated BRADY by failing to disclose the crime lab report.  The equally divided Fifth Circuit court affirmed a liability finding on the theory that the violation was caused by the office's unconstitutional policy and its deliberate indifference to an obvious need to train its prosecutors on BRADY. 

In reversing the Fifth Circuit, the Court noted that a pattern of similar constitutional violations is "ordinarily necessary" to demonstrate deliberate indifference.  Thompson did not prove a pattern of BRADY violations, and mistakenly relied on the "single incident" theory of liability hypothesized in CANTON.  Deliberate indifference in this context requires proof that city policymakers disregarded the "known or obvious consequence" that a particular omission in training would cause the violation.  Here, failure to train prosecutors in their BRADY obligations did not fall under CANTON; the attorneys are trained in the law, understood constitutional limits, engage in continuing education, and must satisfy licensing and ethical obligations.  Failing to train prosecutors in the grey areas of BRADY does not amount to "a decision by the city itself to violate the constitution." 

Ginsburg filed a dissent, joined by Breyer, Sotomayor, and Kagan.  Scalia (with Alito) joined the Court's opinion but also filed a concurrence addressing the dissent.

Of course this sort of issue should never arise.  Criminal litigation is not a game.  Those who insist on putting the truth first and ending all the clever maneuvering will never have discovery issues.  When I was an AUSA, although the law and Departmental regs did not require open file discovery, I provided it in every case (except where witness safety was an issue).  It shouldn't take Brady or any office training.  It should take only the conscience that brought you into the prosecutor's office to begin with.

Defendants ordinarily have much to fear from the truth, because it tends to send them to jail.  Those on the prosecution side should welcome the truth and let the chips fall where they may.



News Scan

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Serial Killer Sues Jail Over Candy Bars and Playboy:  Larry Welborn of The Orange County Register reports California death row inmate Rodney Alcala, 67, filed twenty-six civil claims against the county for damages while he was incarcerated in the Orange County Jail awaiting trial.   Among his claims, nearly all of which have been denied, Alcala alleged he didn't receive two candy bars like the other inmates one Thanksgiving, that he was denied access to his Playboy subscription, and that the county failed to provide "climatically suitable clothing for adequate seasonal comfort and protection," because he was cold at night.  A few of his lawsuits seek as little as $1.50 in recovery.  Alcala was convicted last year of sexually assaulting and killing five women in the 1970s, and remains a suspect in at least three other killings.  His previous conviction and death sentence were overturned by the Ninth Circuit in 2003.

Serial Killer Dies in Prison at Age 82:  Sam Stanton of The Sacramento Bee reports Sacramento serial killer Dorothea Puente, 82, died of natural causes Sunday at the Central California Women's Facility.  Puente ran a boarding house for disabled and elderly residents, but caught officials' attention after a social worker reported one of her tenants missing.  Police eventually unearthed seven bodies in the backyard and learned that Puente had cashed at least 60 government assistance checks belonging to them.  She was convicted in 1993 of three counts of murder (the jury deadlocked on six other murder counts) and sentenced to life in prison.

Tennessee Bill Aims to Improve Domestic Violence Accounting:  Brian Haas of The Tennessean reports a proposed bill in the Tennessee legislature seeks to develop a better accounting of domestic violence in the state by forcing police officers to give a detailed report of any domestic violence complaint within 48 hours.  Police reportedly have been documenting many domestic violence complaints by filing "matter of record" reports, which records an incident that is significant enough to document but does not rise to the level of a crime.  These "matter of record" reports are not accounted into crime totals given to the state, the FBI, or the public.  Under the proposed legislation, the more detailed reports can be tracked in state statistics.  State Representative and sponsor of the bill Karen Camper wants a more clear understanding of domestic violence in Tennessee and states, "we wanted to get a true representation of what was going on in order to develop good public policy."       
The regular Monday orders list from the US Supreme Court today is rather unremarkable.  Stoval v. Miller, noted here, is missing and presumed relisted.

The only certiorari grant is a civil case.  Missouri murderer Michael Anthony Taylor is denied again.  A quick docket search indicates this is the fourth time in seven terms.

On the argument docket, it's a thin week for criminal law.  On Tuesday, the Court hears Fowler v. United States, where the US Attorney stretched a long way to prosecute a case as federal.  Fowler murdered Haines City, Florida Police Officer Todd Horner, a crime for which he thoroughly deserves to be punished by life in prison or death.  But by whom?  The United States or the State of Florida?  He was prosecuted in federal court on the theory that he killed "Officer Horner with the intent to prevent Horner from communicating information about a federal offense[bank robbery, conspiracy, and firearm and drug possession] to a federal law enforcement officer or judge of the United States, in violation of 18 U.S.C. § 1512(a)(1)(C)...." 

Troy Davis Thrice Denied

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In August 2009, the US Supreme Court took the rare step of transferring an original habeas petition to the District Court.  "Original," in this sense, means that the habeas petition was filed directly in the Supreme Court, as opposed to the usual practice of filing the petition in the District Court and appealing up the chain.

The petitioner was Troy Davis, and the Court's action is described in this post.  Davis claims he is innocent of the crime for which he was sentenced to death, and he has a chorus of supporters.

The Court's action raised a lot of unsettled questions about how the restrictions in the Antiterrorism and Effective Death Penalty Act of 1996 apply to original petitions in the Supreme Court.  There are also issues about whether a strong claim of actual innocence by a death-sentenced inmate might render some of those restrictions unconstitutional as applied.  After the District Court denied the petition, there were further issues as to how that decision might be reviewed.

I noted in that prior post:

I suspect the swing votes on the Court are hoping the District Court comes to the same conclusion as the Georgia Board of Pardons and Paroles [that Davis is truly guilty] but, unlike that board, writes a thorough explanation of why. Then the case can go the way of Herrera [v. Collins, 506 U.S. 390 (1993).]

That is what happened.  A year after the transfer order, as noted in this post, the District Court found "Mr. Davis is not innocent."

Today, the high court denied three attempts to seek further review: No. 10-950, a purported direct appeal from the District Court, is "dismissed," along with denial of a habeas petition and "common law writ of certiorari."  In No. 10-949, the Court denies certiorari, declining to review the Eleventh Circuit's decision.  In No. 08-1443, the Court denies the same original habeas petition it transferred to the District Court in the first place.

What do these unexplained orders tell us about habeas procedure in such cases?  Not much.  The facts have trumped procedure in this case.  Troy Davis is guilty, so the Court is not going to use the case to tell us what happens in cases of actual innocence.

Update:  Lyle Denniston has this post at SCOTUSblog.  He notes there were no dissents to any of today's orders.

Thiopental in Arizona

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AP reports from Phoenix:

An attorney for an Arizona death row inmate scheduled to be executed Tuesday says the state may have committed fraud in importing two execution drugs from Britain.

The lawyer for inmate Eric John King asked the state attorney general Friday to have an independent law enforcement agency investigate possible violation of a state law against making false statements on official documents.

The request cites Food and Drug Administration forms in which the imported drugs are described as "animal (food processing)."

At least one of the drugs is in short supply nationally.

A spokeswoman for Attorney General Tom Horne and a spokesman for the Department of Corrections say they weren't aware of the request and had no immediate comment Friday.

If a lab can test the drug to confirm that it is what it is supposed to be and has no impurities, then it really doesn't matter where it came from for the purpose of the execution going forward.

Cal. JLWOP Attack Back Again

California State Senator Leland Yee is back with his persistent attempts to ensure that the families of victims of under-18 murderers can never rest assured that the murderer will not be released.  The bill is numbered SB 9 this year, and the legislative web site indicates it is set for hearing April 5 in the Senate "Public Safety" Committee.  I put the name in quotes because the committee is badly stacked to ensure that public safety gets short shrift.

The bill is unnecessary, because sentencing judges in California always have discretion to allow a possibility of parole for under-18 criminals.  The only ones sentenced to life-without-parole are those that the trial judge has determined must never be released.  For the rare prisoner who actually does make a complete turnaround in prison, there is always executive clemency.

See the Heritage Foundation report on this issue here.

NOVJL's opposition letter is here.

BTW, the existence of this campaign conclusively disproves the anti-death-penalty crowd's claim that life "with absolutely no possibility of parole" is an alternative to the death penalty.  If the death penalty is removed as an option on Tuesday, the campaign to abolish LWOP begins Wednesday.  We have already seen it with the 17-year-old murderers.

News Scan

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"Tension takes toll at Monroe prison":  Rikki King, Scott North, and Diana Hefley of the Herald (WA) have this article on rising tensions at Monroe prison after correctional officer Jayme Biendl was killed in the prison chapel, allegedly at the hands of inmate Byron Scherf.  An anonymous correctional officer reported to the Herald that Biendl's colleagues have begun questioning each other as to whether a staff error led to Biendl being left alone in the chapel with the serial rapist. The National Institute of Corrections conducted an independent review of the prison at Governor Chris Gregoire's request, and issued a report with 15 recommendations to improve safety conditions.  An internal investigation is scheduled to begin next.

California Attorney General Tours Border:  California Attorney General Kamala Harris met with state, federal, and local officials yesterday in Imperial County, California to discuss cross-border crime, reports Elliot Spagat of the AP.  Imperial County, largely a farming region, is also one of the main drug smuggling corridors between Mexico and the U.S.  The county's District Attorney Gil Otero stated that drug seizures in the area are measured in tons, not pounds.  Harris vowed to redouble efforts to prevent the Mexican cartel violence from spilling over the border.  

Minnesota Rules on Expert Testimony in Rape Cases:  The Minnesota Supreme Court yesterday ruled that in a criminal assault case in which the defendant argues the sex was consensual, expert witnesses may testify about the "typicality of delayed reporting, lack of physical injuries, and submissive behavior by rape victims."  The court reasoned this type of testimony could be helpful to the jury, because a rape victim's reaction to the crime may be beyond the knowledge of the jury.  "With this decision, we can educate jurors about some of the misconceptions [people] might have about why victims act the way they do when something like this happens to them," said Ramsey County Attorney John Choi.  Abby Simons of the Star Tribune (MN) has this story.

"Infinity is not enough jail time."

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Lynne Tuohy reports for AP from Nashua, New Hampshire:

A 21-year-old man who admitted he took part in a machete and knife attack on a New Hampshire woman and her daughter was convicted of murder Friday, after jurors rejected his claim of insanity.

Minutes after the jury returned the verdict against Christopher Gribble, New Hampshire Superior Court Judge Gillian Abramson imposed the mandatory sentence of life without parole, telling Gribble, "infinity is not enough jail time."

Bonuses for Conviction Rates

Now here is a thoroughly bad idea.  Jessica Fender reports in the Denver Post,

Eighteenth Judicial District* Attorney Carol Chambers has created an unusual incentive for her felony prosecutors, paying them bonuses if they achieve a predetermined standard for conviction rates at trial.

The threshold for an assistant district attorney to earn the average $1,100 reward: Participate in at least five trials during the year, with 70 percent of them ending in a felony conviction. Plea bargains or mistrials don't count.

I understand that she wants to reward the better performers and have an objective measure for deciding who is better, but the measure falls considerably short.

A Surprising Snapshot

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I have been critical of Linda Greenhouse's NYT writings on the Supreme Court from time to time, but this article with the above title is well worth reading.  She begins:

Among common impressions of the current Supreme Court are that Justices Antonin Scalia and Clarence Thomas are joined at the hip and that the majority tilts reflexively in favor of corporations and employers.
The surprise is that neither of those impressions is true.  It's not a surprise to me or to regular readers of this blog, but I'm glad to see Greenhouse conveying that to readers of the NYT.

In decisions that have split the court in any direction, Justices Scalia and Thomas have voted on opposite sides more often than they voted together. They differed in all three of the non-unanimous criminal-law cases that the court has decided so far.
She also plays the SCOTUS sudoku game and notes that Justice Thomas is the only Justice not to author a majority opinion this term and that Connick v. Thompson, on suing DAs offices for Brady violations, is the only October calendar case undecided.  So it is likely Justice Thomas has the assignment, and there is some reason the opinion is unusually difficult to get out.  Perhaps there is an unstable majority, or maybe the dissent is taking a long time.

News Scan

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Serial Rapist Gets 12 Life Sentences:  Truck driver and convicted serial rapist Marvin Martin, 33, was sentenced in a Georgia court today to 12 consecutive life sentences for abducting and raping seven women over a four-year period, reports Larry Hartstein of The Atlanta Journal-Constitution.  Prosecutors allege Martin searched for women, coaxed or forced them into his work 18-wheeler, and raped them at knife or gunpoint.  The case was solved in 2009 after police linked Martin to the crimes through a Department of Transportation number imprinted on his truck.  His sentence is the longest prison term handed down in Fulton County, Georgia for a sex crime.

"Why Sacramento can't get cell phones out of prison":  Debra Saunders of the SF Chronicle has this piece on the uphill battle to keep cell phones out of California prisons.  Saunders specifically notes that smuggling a cell phone into a state prison is still not a crime in California, and that a policy of searching prison guards on their way into the prisons threatens a significant financial burden because it will increase the officers' paid "walk time."

Teeth Not Dangerous Weapon Says Oregon Court:  Tom Hallman Jr. of The Oregonian reports the Oregon Court of Appeals yesterday ruled teeth are not a "dangerous weapon" to support a conviction for first-degree assault.  The court determined that the state law definition of a "dangerous weapon," i.e. "any weapon, device, instrument, material or substance under the circumstances in which it is used . . . is readily capable of causing death or serious physical injury," because they " does not include teeth because they "are not external to the human body."  Hat tip to How Appealing.

Heat of Passion?:  The Houston Chronicle reports a Taco Bell customer in San Antonio faces three counts of attempted capital murder after he shot an air gun at the restaurant manager, displayed a semiautomatic assault rifle, and exchanged gun fire with three police officers.  He was arrested after a three-hour standoff at a hotel.  The cause of the man's violent outburst?  The 50 cent price increase, from 99 cents to $1.49, for a Beefy Crunch Burrito.

"Fat Slobs" and the First Amendment:  In Villa Hills, near Cincinnati, Kevin Kennedy is suing police officer/building inspector Joseph Schutzman.  Schutzman arrested Kennedy following a dispute over zoning enforcement in which Kennedy called Schutzman a "fat slob."  The Sixth Circuit today ruled that Kennedy's suit can go forward.  AP story here; opinion here
SCOTUSblog's "Petitions to Watch" list for tomorrow's US Supreme Court conference is here.  Among the cases listed is the very interesting Stoval v. Miller, 10-851.

Under 28 U.S.C. §2254(d)(1), a federal court can overturn a state court decision on habeas corpus if it is "contrary to, or was an unreasonable application of, clearly established Federal law, as determined by the Supreme Court ...."

What happens if (1) an intermediate state appellate court correctly applies US Supreme Court precedent, then (2) the US Supreme Court overrules that precedent and substitutes an entirely different rule, and then (3) the state supreme court denies discretionary review?  Neither state court decision can be fairly said to be contrary to US Supreme Court precedent at the time of the decision.  Appellate courts are not expected to be clairvoyant, and state high courts are not required to grant discretionary review for error correction.  Still, the change occurred while the case was still in the state court system.  The pre-AEDPA Teague doctrine would have applied the new rule in this circumstance.

The underlying substantive question is what constitutes a "testimonial" statement for the purpose of Crawford v. Washington's revamped version of the Confrontation Clause.  How about the suicide note of the defendant's co-conspirator and triggerman?  I'll bet Justice Scalia will say yes, and Justice Thomas will say no.  Not sure about the others.

Also on the list are two petitions by cause celebre Troy Davis, whose "actual innocence" case is now significantly handicapped by a District Court finding of fact that "Mr. Davis is not innocent."

Mirandizing Terror Suspects, Part II


No nation with even a rudimentary sense of survival would delay the questioning of captured terrorists to take time to advise them that they need not say a word and that a lawyer will be provided to assist them in clamming up.  I made that point earlier this month.

I'm thrilled that the Department of Justice is not as 100% clueless as it had seemed when Eric Holder couldn't give a coherent answer to Congress on the Miranda-and-terrorists question.  Now it's merely 90% clueless.

The key to understanding its cluelessness is in a paragraph farther down in the WSJ piece Kent cites:

The Justice Department believes it has the authority to tinker with Miranda procedures [by expanding the Quarles exception]. Making the change administratively rather than through legislation in Congress, however, presents legal risks.

"I don't think the administration can accomplish what I think needs to be done by policy guidance alone," said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. "It may not withstand the scrutiny of the courts in the absence of legislation."

Rep. Schiff hits the nail on the head.  If there were anyone at DOJ capable of reading a Supreme Court case, this would be pellucidly clear.

Mirandizing Terror Suspects

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There are further developments on the much-confused issue of when detained terror suspects have to be "Mirandized."  Evan Perez reports in the WSJ:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court's 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

Who Will Head the FBI?

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Robert Mueller's term as FBI Director ends next month.  Naturally there is rampant speculation about who will replace him.  Among those mentioned are Jim Comey, former Deputy AG under President Bush, and another former Deputy AG, Jamie Gorelick, who served under President Clinton.

I know Jim Comey decently well.  We were AUSA'S together in the Eastern District of Virginia in the 1990's.  When a Carter-appointed district judge in Richmond threatend to hold the US Attorney in contempt for having the audacity to fill his docket with federal gun charges under Project Exile, Jim and I represented her at the show-cause hearing.  The judge backed down, and Project Exile continued unabated (helping to reduce the murder rate in Richmond by more than 50%).

In a later post, I might say more about various FBI candidates, but for now I just want to say a word, not about Jim, but about Ms. Gorelick, who was a disaster as DAG and an even bigger disaster when she went to Fannie Mae and helped usher in the most crushing banking collapse since the Great Depression. For a variety of reasons, I doubt the President will be foolish enough to nominate her.  If he does, the Republicans should filibuster the nomination, and I expect that they will.

Pro Bono Publico

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Tony Mauro reports in NLJ:

Six years of "back channel work" by lawyers from Sidley Austin and Hogan Lovells finally paid off earlier this month, when the Cuban government released human rights activist Oscar Biscet from prison after more than eight years behind bars, often in solitary confinement.

"We were delirious with joy when we got the call from Oscar's wife," said Sidley Washington partner Andrew Strenio Jr. "It was a labor of love."

Strenio credits Sidley associate Lauren Buckley and Hogan Lovells Washington partner Jeremy Zucker for much of the pro bono behind-the-scenes work they all did to help win Biscet's release.

It's good to hear of big law firms doing pro bono work that actually is pro bono publico, in contrast to the contra bono publico work on behalf of murderers and terrorists that seems to be in vogue, even among people who should know better.

The Number One "Root Cause"

The hand-wringing crowd loves to talk about the "root causes" of crime, spinning off into discussions about how society, not the criminal, is actually to blame.  It's all our fault for not having enough welfare programs.

But a genuine "root cause" of crime is bad parenting, specifically the failure of some parents to teach their children the values of respect for the law and for the rights of others.  Eugene Volokh and VC commenter Debrah point us to this video of a prime example of rotten-to-the-core parenting, a mother actively encouraging her teenage son to beat another kid.  The video was posted on You Tube, and authorities tracked down Jennifer Zuniga, 33, and charged her with child endangerment and contributing to the delinquency of a minor.

We have previously noted the importance of culture in determining crime rates.  But culture is the sum total of individual choices, and the choices people make are influenced by culture.  That is the cycle we need to break.

News Scan

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Restitution Fund for Victims of Juvie Crime:  Victims who were denied full restitution after the kickback scandal involving former Pennsylvania Judge Mark Ciavarella can now seek compensation from a special fund, reports Terrie Moran-Beseckers of the Times Leader (PA).  When the state's high court vacated the convictions of thousands of juveniles who appeared before the former judge, the victims were no longer eligible to receive restitution payments.  The $500,000 fund was established last year by the state Legislature to compensate these victims.  180 such victims have already been identified.  

Mississippi Switching to Pentobarbital:  Miss. AG Jim Hood says the state "most likely will" make the switch to pentobarbital, AP reports.  He has asked the Mississippi Supreme Court to set an April 20 execution date for Robert Simon.  This AP report from Monday states that the U.S. Supreme Court declined to hear an appeal from Simon, who claims his lawyers failed to investigate his history of child abuse to possibly avoid a death sentence.  Simon was sentenced to death for the 1990 killings of Carl Parker, Bobbie Jo Parker, and their son Gregory, and to life in prison for killing their 9-year-old daughter Charlotte.

Petit Case Updates:   Randall Beach of The New Haven Register reports two prospective jurors for Joshua Komisarjevsky's triple-homicide trial were dismissed after refusing to be in the same room with the alleged murderer.  Since jury selection began one week ago, only two jurors have been selected.  The New Haven Register also reports Judge Roland Fasano today denied Komisarjevsky's motion to plead guilty in exchange for a life sentence.

Non-Emergency? Call 3-1-1:  Fran Spielman and Frank Main of the Chicago Sun-Times report Chicago is preparing to divert non-emergency 911 calls to a 311 number or the city police department's website.  Officials say the changes will allow officers to respond to the most serious reports during a time of severe manpower shortage.

They stole the what? Burglars in Bellingham, Washington broke into a shuttered sports bar, where there was nothing left but fixtures to be auctioned off, AP reports.  They stole the condom machine.  "It's unknown if any condoms were left in the machine when it was stolen."

Yesterday, former NFL star Lawrence Taylor was sentenced to six years' probation (no jail time) for having sex with a 16 year-old girl.  As might be expected, a big fight has broken out about this sentence.  Some believe that the court blew it by giving a celebrity a break few if any ordinary people would receive.  Others think it was a disastrous exercise of prosecutorial discretion for the DA to allow Taylor to plead to two misdemeanors, rather than insisting on a felony plea.

The defense bar is, as ever, up in arms, as you can see on Sentencing Law and Policy.  The odd thing about the defense bar  --  or one of the odd things  --  is that it's up in arms when a defendant gets what it views as an undeserved break, and equally up in arms when the defendant does not get a break, deserved or not (you know, a "compassionate society" and all that).  This is because defense lawyering is largely about being up in arms, the better to deflect attention from your client's God awful behavior.

Still, there is a serious question here, beneath the usual defense posturing and name-calling.  What are we to make of a system in which a seemingly sweetheart deal like this happens?  Who is to blame, and what can be done?

The Barry Bonds Defense


A big story for baseball fans these days is the federal perjury trial of Barry Bonds.  Bonds is the Major League home run king by a wide margin.  You have to be really strong to hit a home run in a park of major league dimensions, and Bonds hit over 700 of them.  This resulted in his making a ton of money, as you might expect.

Bonds was asked about this before a federal grand jury, and said that he never knowingly took steroids.  His trainer, the one who injected him, has refused to testify and is currently in jail for coercive contempt.

Bonds' trial started yesterday.  According to this AP story, Bonds's defense lawyer stepped up to the plate this way:

Barry Bonds admits using steroids during his baseball career, his lawyer told a jury Tuesday. The catch is that Bonds' personal trainer misled him into believing he was taking flax seed oil and arthritis cream.

"I know that doesn't make a great story," Allen Ruby said during his opening statement at the home run leader's perjury trial. "But that's what happened."

OK, let's see if I have this straight.  Bonds was a professional athlete, a man who made his living with his physical abilities.  He repeatedly allowed his body to be injected with a substance, not knowing what it was.  Over the years, as this continued, his body became laden with muscle, enabling him to hit a zillion home runs.  This in turn allowed him to make a zillion dollars.

But he didn't know.............What, dontcha believe me?

In United States v. Buenrostro, No. 08-16185, the Ninth Circuit shoots down an attempt to use FRCP 60(b) to evade AEDPA's successive petition rule.  This is a federal-prisoner §2255 case, but the statutes for state and federal prisoners are essentially the same for this purpose, and the court applies Gonzalez v. Crosby, 545 U.S. 524, 531 (2005).

Buenrostro wanted to use 60(b) to add a claim of ineffective assistance that he says he didn't know about before.  Nope. 

Buenrostro misunderstands the meaning of Gonzalez.  To show a defect in the integrity of his first § 2255 proceeding, Buenrostro must point to something that happened during that proceeding that rendered its outcome suspect. We have explained that "[f]raud on the court must involve an unconscionable plan or scheme which is designed to improperly influence the court in its decision." Abatti v. Comm'r, 859 F.2d 115, 118 (9th Cir. 1988) (internal quotation marks omitted).
Robin Hindery of AP reports on an astonishing and appalling plea bargain (emphasis added):

A 22-year-old soldier accused of taking a lead role in a brutal plot to murder Afghan civilians faces a court-martial Wednesday in a case that involves some of the most serious criminal allegations to arise from the U.S. war in Afghanistan.

Spc. Jeremy Morlock, of Wasilla, Alaska, has agreed to plead guilty to three counts of murder, one count of conspiracy to commit assault and battery, and one count of illegal drug use in exchange for a maximum sentence of 24 years, said Geoffrey Nathan, one of his lawyers.

His client is one of five soldiers from Joint Base Lewis-McChord's 5th Stryker Brigade charged in the killings of three unarmed Afghan men in Kandahar province in January, February and May 2010. Morlock is the first of the five men to be court-martialed -- which Nathan characterized as an advantage.

"The first up gets the best deal," he said by phone Tuesday, noting that even under the maximum sentence, Morlock would serve no more than eight years before becoming eligible for parole.

According to a copy of the plea agreement obtained by The Associated Press, Morlock has agreed to testify against his co-defendants. In his plea deal, Morlock said he and others slaughtered the three civilians knowing that they were unarmed and posed no legitimate threat.

WHAT?!?!?  For the leader of this rampage, anything less than death is a travesty.  And they agreed to a bargain that will let him out in eight years?  The Afghans are already outraged, and rightly so, and now our military leaders have agreed to a plea bargain that will pour gasoline on the fire?

Update:  A later version of the story omits the allegation that Morlock took a "lead role."  It says,

"Did everybody know, `We're killing people who are completely innocent'?" the judge asked.

"Generally, yes, sir, everyone knew," Morlock replied.

Morlock told investigators the murder plot was led by Staff Sgt. Calvin Gibbs of Billings, Mont., who is also charged in the case; Gibbs maintains the killings were legitimate.

My comment that the leader deserves the death penalty stands, but I will give the prosecutors the benefit of the doubt that Morlock is not the leader.  Even so, the plea bargain remains far too lenient.
A couple of articles on the US Supreme Court are worth noting today.  Tony Mauro has this article at NLJ headlined, "Court rules for 'little guys' over corporations in two business cases." (Good to see Mauro's work out from behind the paywall for a change.) Corporations lost both of yesterday's civil cases, refuting the notion that the current Supreme Court reflexively supports the business position every time.  Chief Justice Roberts promised at his confirmation that he would not vote according to "big guy" versus "little guy" but according to whose position he concludes is the legally correct one, and that is what we have.

In sharp contrast, the NYT Magazine last weekend published this hit piece against Justice Alito by Emily Bazelon.  She claims that Alito simply votes for the conservative result.  But of course he doesn't, as yesterday's cases illustrate.  Justice Alito voted against the corporations in both cases.

Bazelon complains that Justice Alito does not vote for criminal defendants often enough.  But he does vote for them when they are right.  Just two weeks ago, he wrote the opinion in favor of the habeas petitioner in Wall v. Kholi, extending the time to file a federal habeas petition.  If he votes for the criminal defendant "only" 17% of the time, as Bazelon says, that is probably about the percentage of the time the defense position is correct.

Bazelon contends that Justice Alito votes based on "empathy" and that he reserves that empathy for persons like himself.  Nonsense.  Kholi repeatedly molested his very young stepdaughters over many years.  See 672 A.2d 429.  Even the hardest-core defense lawyers would have difficulty mustering empathy for this reprobate.  The decision is based on a correct reading of the statute, let the chips fall where they may.  And that is exactly what judges are supposed to do.

Boundaries of Gideon and Miranda

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Today the US Supreme Court hears oral arguments regarding the boundaries of two of its most famous decisions, Gideon v. Wainwright and Miranda v. Arizona (or, for Miranda, infamous).

In Turner v. Rogers, No. 10-10, the Court will consider whether "an indigent
defendant has [a] constitutional right to appointed counsel at a civil contempt
proceeding that results in his incarceration."  Incarceration is where we draw the line for a right to appointed counsel in criminal cases.  (You have no right to appointed counsel to fight your traffic ticket.  Sorry.)  As a policy matter, it makes sense to apply criminal law protections in civil cases when those cases cross the line from compensation to punishment.  For example, I have long believed that the protection against punishment for an act when the law fails to give fair warning the act is illegal should apply to punitive damage actions.  However, the Sixth Amendment on which Gideon is based quite expressly applies to "criminal prosecutions."  Civil contempt is not a criminal prosecution.  UpdateThis AP report of the argument indicates that extension of Gideon is unlikely.

In J.D.B. v. North Carolina, 09-11121, the Court considers the impact of a juvenile's age in deciding whether he is "in custody" for the purpose of Miranda under the "totality of circumstances."  Lyle Denniston has this argument preview at SCOTUSblog.  A 13-year-old boy was called to the principal's office and questioned by a police investigator.  I am no fan of the Miranda rule and do not like to see any expansion, but it's pretty hard to swallow that a reasonable person in this kid's shoes would have felt free to leave under the totality of the circumstances.

Update 2:  Lyle has this recap of the argument in J.D.B.  The transcript is here.  Looks like 4-4 with Justice Kennedy in the middle.  "Deja vu all over again," as Yogi Berra said.

One of the "proud" accomplishments of the last Congress was adopting the so-called Fair Sentencing Act, which reduced the disparity in sentencing between crack and powder cocaine. 

Many, on both sides of the aisle, supported that legislation, which President Obama cheerfully signed.  And while there were reasonable arguments to be had for reducing the disparity, it could have been accomplished, of course, by raising the penalties for powder instead of lowering those for crack.  If this ever occured to Chairman Leahy or then-Chairman Conyers, I never heard of it.

The following story does not deal with crack (so far as I have been able to find out), but it illustrates what is likely to become yet more prevalent if we lose our nerve in the war on drugs.  It was that loss of nerve, combined with a good deal of racial bullying, that, in my close-up view, accounted for the FSA.

Four students at a Washington, D.C. elementary school were briefly hospitalized after snorting and swallowing cocaine brought to the school by a fourth-grader.

The unidentified fourth-grade student was charged with drug possession after allegedly bringing the cocaine to Thomson Elementary School and sharing it with his or her classmates.

The children, whose names and ages have not been released, are all in good condition and were taken to the hospital only as a precaution, officials said in a statement. They said school staff called the authorities after the students became sick. When police arrived, they confirmed that the substance was cocaine.

Schools for Misrule, Part II

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Kent discussed Walter Olson's book, Schools for Misrule, earlier this week.  Today, I had lunch with Walter and a few friends at the Heritage Foundation, where Walter gave a talk on the massive pro-defendant (and generally leftist) bias in the nation's law schools.  I'm embarrassed to say that my alma mater, Stanford, is right up there, or down there, with the worst.  Stanford's Supreme Court Litigation Clinic is, for example, a true menace.  In a criminal case, I have never known it to take the side of anyone except a murderer or a terrorist (or both simultaneously).

The question is what can be done about it.  I have two suggestions, although I'm not that confident either will work.  First, remember that just about everyone on the faculty of these "elite" law schools thinks of himself/herself as a future federal judge, if not Justice.  But they know that there will be a Senate hurdle to clear, and that Republicans will have a say.  Thus the smart ones know it's in their interest to have a few conservatives on the faculty to speak up for them at crunch time.  This worked, in a way, with Justice Kagan, when she was Dean at Harvard.  She developed a reputation as being more open to hiring conservative faculty, and that reputation tamped down the intenstity of opposition to her when she was nominated to the Court.  A similar phenomenon is happening with Goodwin Liu, who has fellow Berkeley professor (and "torture memo" author) John Yoo saying that, for a Democratic choice, Liu isn't that bad.

The other strategy, also based in faculty self-interest, is in adjusting your alumi financial support to the school's willingness to hire faculty from both sides.  Mistaking me for a rich man (either that or just being on its mailing list), Stanford keeps sending me requests for donations.  I wrote back that I wouldn't be sending any dough until I saw more balance on the faculty.  Shortly thereafter, Stanford hired Judge Mike McConnell, a renowned conservative thinker.  I will bet good money that my letter had zilch to do with it, but I suspect that a batch of similar letters at least might have.

I expect the law school pro-defendant bias to last a long time, but there is a source of hope: students.  My students at Georgetown last semester made up their own minds, and seemed to regard the opinions of faculty as something other than Holy Writ.

News Scan

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Jurors' Privacy vs Public Rights:  Michael Tarm of the Associated Press reports that jurors of the perjury trial for retired baseball player Barry Bonds will remain anonymous, according to Judge Susan Illston.  Illston based her decision on a previous case in which Judge James Zagel withheld the names of the jurors in the trial of former impeached Illinois Governor Rod Blagojevich.  Zagel said that keeping the names of jurors private protected the jurors from media harassment and stated, "jurors summoned from the community to serve as participants in our democratic system of justice are entitled to safety, privacy and protection against harassment."  Opponents argue that in the 1987 racketeering trial of John Gotti, keeping the names of the jurors anonymous led to Gotti's friend being selected as part of the jury who took bribes, which resulted in Gotti being acquitted.  Chicago attorney Christopher Keleher states, "jurors engage in improprieties when not subject to public scrutiny."

Judge Orders Mental Exam for Loughner:  Amanda Lee Myers of the Associated Press reports U.S. District Judge Larry Burns ordered Jared Lee Loughner, 22, to undergo a mental exam at the Federal Bureau of Prisons Facility in Springfield, Missouri.  Loughner pleaded not guilty to charges of an attack on January 8th that killed six and injured thirteen.  Burns stated that the purpose of the exam should be whether Loughner is competent to stand trial, not whether he was sane at the time of the shooting.  Loughner's defense lawyer Jude Clarke was concerned that moving Loughner to Missouri for the exam could harm their attorney-client relationship. 

Georgia Supreme Court Considers Strict Execution Standard:  NECN News reports Georgia's top court is considering whether death row inmates have an unfair standard to prove they are retarded to avoid execution. (The story uses the term "mentally disabled," but that is not correct.) In 1998, Georgia was the first state to ban executing retarded inmates, which was followed by the U.S. Supreme Court's 2002 Atkins decision making this a constitutional rule.  Georgia is the only state that requires defendants to prove they are retarded beyond a reasonable doubt.  On Monday, the Georgia Supreme Court heard arguments from Alphonso Stripling who claims he cannot be executed because he is retarded.  Stripling was sentenced to death in 1989 for fatally shooting two co-workers.  Defense Attorney David Gossett claims Georgia's execution standard is too strict and that, "it's far better for a few non-mentally retarded defendants to be sentenced to life in prison than a mentally retarded inmate to be executed."  However, even without the categorical exclusion, the jury can still consider low intelligence as a mitigating circumstance, just as they could before the Atkins decision.  Further, the Atkins decision was based on a finding that laws including Georgia's established a national consensus, and it is a strange argument to say that the very law used to establish a rule violates the rule.

Georgia Man Convicted in Serial Killer Hoax Seeks Appeal: Greg Bluestein of the Associated Press reports that Andrew Scott Haley, who posted a video on YouTube under the name "catchmekiller" where he claimed to have killed 16 people, asked the Georgia Supreme Court on Monday to overturn his conviction. Authorities quickly realized he had nothing to do with these crimes. Haley was convicted of tampering with evidence and making false statements. On his video he gave "clues" about where bodies were located and urged people to help solve the crimes. Prosecutors said that Haley's lies wasted countless hours of detective work. Haley made reference to two missing persons cases, and sent the link to his video to the father of one of the women. He admits what he did was wrong, but believes that his free speech rights were violated. Haley's defense team claims the law used to convict him was flawed because it failed to distinguish between a false statement and a fraudulent one.   

Civil Rights Attorneys' Fees

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Fox v. Vice, being argued today, is a somewhat crime-related case in that it involves attorneys' fees for a prevailing defendant in a suit against a law enforcement officer.  Unfortunately, the late Chief Vice is a particularly unsympathetic defendant.  He did, in fact, commit extortion against plaintiff Fox and was convicted of that crime.  He did not, though, commit the federal civil rights violation that Fox sued him for.  The District Court awarded him attorneys' fees, and the Fifth Circuit affirmed.

On its face, the civil rights suit attorneys' fee statute, 42 U.S.C. §1988, is symmetrical, applying exactly the same to plaintiffs and defendants.  The Supreme Court's rewrite of that statute to say that prevailing plaintiffs nearly always get fee awards and prevailing defendants almost never do was raw judicial activism.  It is also bad policy.

Falsely accusing someone of a civil rights violation is just as bad as committing a civil rights violation.  The victims of false accusations should be made whole just as the victims of real violations should be.

The asymmetry of the present rule is especially bad when litigation is used to influence public policy.  If the side opposed to a particular policy can position itself as the plaintiff in a civil rights case, then the threat of ruinous litigation expense can be used to convince a city council or school board not to a adopt a policy in the first place, even if the policy is actually constitutional and good policy.  If, for example, the ACLU sues a school district for hanging a "God Bless America" banner on a school the day after 9/11, then they should pay the district's attorneys' fees after their suit is thrown out.

But the issue before the Court in Fox is narrower than that.  Restoring the symmetry that the statute actually provides is not on the table.  Amy Howe has this argument preview at SCOTUSblog.


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It's a slow day for criminal law at the US Supreme Court.  Two decisions released today are both civil cases with no obvious implications for criminal or habeas cases.  The Ninth Circuit was actually affirmed for a change in Matrixx Initiatives v. Siracusano, but then it is a civil case.

Fox v. Vice, being argued today, is addressed in a separate post.

We are still waiting on Cullen v. Pinholster, argued November 9.  That case involves the remarkable holding of the Ninth Circuit that a federal court can consider evidence never presented to the state court in deciding whether a state court decision is "reasonable" within the meaning of 28 U.S.C. §2254(d)(1).

Coverage of yesterday's action:  Tony Mauro at NLJ on the Tolentino argument; Lyle Denniston at SCOTUSblog on the Davis argument; Adam Liptak at NYT on the Maples cert. grant.  David Savage in the LAT and Bob Egelko in the SF Chron on Felkner v. Jackson.
The Supreme Court heard argument today in Tolentino v. New York (transcript here).

There weren't too many surprises.  But if it wasn't clear before, it sure is now that Tolentino is "getting at it from the wrong end," (per Justice Scalia) by pursuing the wrong claim in the courts below.  Scalia noted right from the start that Tolentino would have a much easier time arguing that the police officer's observation of him as the driver of the car was suppressible as the fruit of an illegal seizure, rather than his DMV record.  But Tolentino waived this argument below as a matter of state law, a point the state's attorney Caitlin Halligan nicely drives home.

The Justices concocted a few colorful hypotheticals to test the limits of counsels' positions, such as Justice Breyer's driver discovered to have "no license, and in addition, he's wanted on 17 drug warrants and for 3 triple axe murders," and Justice Alito's man named "Dagwood," who police learn "is the guy [they've] been looking for, for the last 20 years.  He is responsible for all the drugs that come into this country, he's committed numerous acts of terrorism, he's a -- he's a serial killer, he's killed 50 people, we've been chasing him forever..."

Justice Breyer's example, though extreme, highlighted the possible implications of this case.  The idea of suppressing a DMV record and allowing a less-than-ideal driver back on the road might not leave us sleepless at night.  But suppressing a felon's outstanding warrants and criminal record, all because of a police error, is much scarier.  As CJLF's brief states (quoting USCA7), such an "official call of 'Olly, Olly, Oxen Free,'" should not be required.

Schools for Misrule

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John McGinnis has this review in the WSJ of Walter Olson's book, Schools for Misrule: Legal Academia and an Overlawyered America.  He especially likes the part about legal clinics:

Mr. Olson superbly describes the rise of legal clinics, the law-school component ostensibly designed to give students hands-on training. He notes that the charitable foundations that first funded these clinics were more concerned with creating turbines of social change than with educating students. These days, many more clinics engage in public-interest litigation (defined by a rather predictable liberal agenda) than devote themselves to matters like the legal ordeals of small businesses, though thinking about a deli's contract dispute with a supplier would be more relevant to a law student's future working life. Some of these public-interest litigation shops have substantial funds. Mr. Olson observes that the budget of Brennan Center at New York University alone comes to roughly 80% of that of the Federalist Society, the national organization of legal conservatives that is routinely vilified by Democratic politicians for its inordinate--and, of course, pernicious--effect on our legal culture.

An online ad for the book has this blurb from Chief Judge Kozinski of the Ninth Circuit:  "Every year I hire as law clerks some of the best and brightest law students in the country, and spend a year wringing out of them all the wrong-headed ideas their law professors taught them.  Now I know why."

Of course, in light of his opinion today in the Stolen Valor Act case (an opinion that will be greeted warmly in legal academia), Judge Kozinski needs to wring some wrong-headed ideas out of himself.

Is It Murder to Kill Muammar Gaddafi?


It's admittedly an exotic question for a blog devoted almost exclusively to domestic criminal law, but an intriguing one.  And it has a domestic law twist, which I muse about toward the end of this entry.

Over the weekend, President Obama authorized U.S. participation in bombing Libya.  Surely at the time, the President knew that Gaddifi's headquarters would be among the first targets, if not the first.

There was of course a non-trivial likelihood that Gaddafi would be there.  Obviously he might have been injured or killed; cynical types might speculate that the whole idea was to kill him.  Was the targeting attempted murder?

I certainly don't think so, just as I didn't when President Reagan ordered a strike on Gaddafi to retaliate for Libya's terrorist bombing of a nightclub in Berlin where American servicemen were known to visit.  But there's more to this episode, starting with this story in CQ Roll Call

A Motion Too Meritless to Deny

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Michael Tarn reports for AP from Chicago:

A federal judge on Monday brushed off a request from former Illinois Gov. Rod Blagojevich to cancel his upcoming retrial on political corruption charges, suggesting it amounted to a public-relations exercise.

At a pretrial status hearing, Judge James Zagel stopped just short of dressing down defense lawyers, but showed clear disdain for the motion by refusing to even rule on it. Instead, he said the motion would "vanish into thin air" and "die."

Experts and Eyewitnesses

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Here is the abstract from Kristy A. Martire and Richard I. Kemp, Can Experts Help Jurors to Evaluate Eyewitness Evidence?: A Review of Eyewitness Expert Effects, Legal and Criminological Psychology, 16(1), pp. 24-36 (Feb. 2011):

Courts occasionally permit psychologists to present expert evidence in an attempt to help jurors evaluate eyewitness identification evidence. This paper reviews research assessing the impact of this expert evidence, which the authors argue should aim to increase jurors' ability to discriminate accurate from inaccurate identifications. With this in mind we identify three different research designs, two indirectly measuring the expert's impact on juror discrimination accuracy and one which directly assesses its effect on this measure. Across a total of 24 experiments, 3 have used the superior direct methodology, only 1 of which provides evidence that expert testimony can improve jurors' ability to discriminate between accurate and inaccurate eyewitness identifications.

News Scan

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Virginia Governor Approves Familial DNA to Help Solve Crimes:  Rosalind S. Helderman of The Washington Post reports Virginia Governor Bob McDonnell announced today that new computer software will allow the state to search its DNA database for familial DNA matches.  This technique will allow authorities to look for matches in the database that suggest that a family member of a person in the database should be considered a suspect.  California and Colorado currently use familial DNA searches, but the method is prohibited in other states due to privacy concerns.

Florida Commission to Decide on Photo Lineup Bill:   Rene Stutzman of the Orlando Sentinel reports the Florida Innocence Commission will decide today whether or not to support a bill that would change the way police agencies conduct photo lineups.  Currently, a witness is given a photo lineup with six photos, but this bill would require an officer to show one photo at a time.  Also, it would require agencies to have someone administer the photo lineup that does not know which photo is the suspect.  The commission studied twelve Florida cases in which criminals who were convicted and sentenced to prison and were later released after DNA evidence proved their innocence.  In 75 percent of those cases, an eye-witness identification was wrong.  Commission member William Snyder states, "The way cops currently do photo lineups in Florida is fundamentally flawed." 

New Jersey Looks to New Model for Crime Investigations:  AP writer David Porter reports that a sudden increase in carjackings last December in New Jersey has encouraged an aggressive change to deal with crime in Newark and other northern New Jersey cities.  Mayor Cory Booker discussed the carjackings and stated. "It really created an atmosphere where people felt that any of us could be a victim, and that was really troubling."  The State Police, National Guard, FBI, and other agencies worked  together to address the carjacking problem in January. Prosecutor Robert Laurino announced the arrests of three groups of suspects that were linked to the carjackings.  Officials are considering the model of interagency cooperation that dealt with the carjackings for application to other crime issues.  Newark Police Director Garry McCarthy stated, "It's at the point where we're going to do less, but we're going to do it better, and we're going to have a bigger impact on what we're trying to do.  I really think that now that's what's normal, not only here in Newark, but across the country."   

Davis Argument

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The transcript of oral argument in Davis v. United States is here.  On a quick read, it looks like a win for our side.  Counsel for Davis got peppered with questions more than counsel for the government, which has been shown empirically to have a negative correlation with success.

Closely Regulated Industries

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Today the Supreme Court denied certiorari in a substantive Fourth Amendment case, Huber v. New Jersey Department of Environmental Protection, No. 10-388.  There is no dissent, but Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Thomas, fired a warning shot across the bow of officials who seek to extend too far the "limited exception to the Fourth Amendment's warrant requirement for searches of businesses in 'closely regulated industries.' "

"In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber's backyard."  It's a "wetland," you see, and that makes it the equivalent of pawnshop for warrantless searches?

Doubly Doubly Wrong

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Bill has already noted the Supreme Court's summary, unanimous reversal of the Ninth Circuit this morning in Felkner v. Jackson.  Two months ago, in Premo v. Moore, the high court characterized the Ninth's decision as "doubly wrong."  The Ninth had failed to give the proper deference to counsel's strategic decisions, as the governing Supreme Court precedent requires, and they had also failed to give proper deference to the state court decision applying that precedent, as the governing statute requires.

Today's decision is very similar.  When one attorney claims that another attorney is challenging jurors based on racial discrimination, and the challenger asserts a race-neutral reason, the trial judge must decide if those reasons are real or pretext.  This is a credibility determination, and the controlling precedent, in accordance with a very long tradition of appellate review of such determinations, requires broad deference to the judgment of the trial judge.  As in Moore, the habeas statute requires a federal court to further defer to the judgment of the state appellate court applying that standard.  The Ninth did none of that in this case.  The Supreme Court is clearly out of patience.

"That decision is as inexplicable as it is unexplained. It is reversed."

Cert. Granted in Maples

Today the US Supreme Court decided to take up the case of Maples v. Thomas (not Maples v. Maples, as the orders list erroneously says it's fixed), No. 10-63.  The Court limited the grant of certiorari to Question 2.  As drafted by counsel for petitioner, that question reads:

Whether the Eleventh Circuit properly held--in conflict with the decisions of this Court and other courts--that there was no "cause" to excuse any procedural default where petitioner was blameless for the default, the State's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.
This phrasing of the question commits the fallacy of assuming the conclusion.  Of course it would not be proper for the Eleventh Circuit to hold in conflict with Supreme Court precedent, but that is precisely the question in dispute.  The Supreme Court precedent closest in its facts is Coleman v. Thompson.  In that case, the Court held that ineffective assistance of state habeas counsel in blowing a deadline to appeal denial of habeas in the state trial court is not "cause" for a procedural default opening the claim up to federal habeas review.

The Ninth Circuit, at It for Sport?

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The Supreme Court today reversed the Ninth Circuit in yet another habeas case.  I shall simply repeat the Heritage Foundation report on the case without comment, except for drawing attention to the last two lines of the editor's note:

 FELKNER v. JACKSON, No. 10-797

 In a per curiam opinion, the Court reversed the Ninth Circuit in this habeas case stemming from a BATSON challenge in a state criminal trial. Respondent was convicted of numerous sexual offenses stemming from his attack on a 72-year-old woman. On appeal, Jackson raised a BATSON claim, asserting that the prosecutor exercised peremptory challenges to exclude two of three potential black jurors. The prosecutor offered race-neutral explanations in excusing the two jurors. The California Court of Appeals upheld the trial court's denial of the BATSON motion, and affirmed his conviction, and the California Supreme Court denied a petition for review. The federal district court, relying on AEDPA, held that the state court findings were not unreasonable. The Ninth Circuit reversed in a three-paragraph unpublished memorandum. In reversing that opinion, the Supreme Court noted AEDPA's requirement of deference to state court rulings, and that the opinion "did not discuss any specific facts or mention the reasoning of the other three courts," and merely "offered a one-sentence conclusory explanation for its decision." The Court found the Ninth Circuit's decision "inexplicable" and "unexplained," and held that the state appellate court's decision "was plainly not unreasonable." Furthermore, the Court found "simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner." [Ed. Note: Will the string of reversals of Ninth Circuit's obtuse habeas decisions, usually by a unanimous Court, have any effect? We are left to wonder if judges on the Ninth Circuit care or if this has become a sport to them.]


6 Months for Cross-Burning

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AP reports from Knoxville, Tennessee:

Prosecutors say a Tennessee man has been sentenced to six months in federal prison for burning a wooden cross at the Anderson County home of an interracial couple.

U.S. District Judge Thomas W. Phillips handed down the sentence to 50-year-old Steven D. Archer of Heiskell, Tenn., on Friday after his conviction last July of willfully interfering with the couple's federal housing rights because of their race. The couple lived in a home on his family's property.
In a pair of cases decided in 2003, the US Supreme Court held that cross-burning was protected "speech" when a cross was burned at a Klan rally, not directed at anyone in particular, but it can be proscribed and punished when it is a threat.  The opinion in Virginia v. Black is here.  CJLF's brief in that case (mainly on the joined Elliott/O'Mara case) is here.

A Tale of Two Traffic Stops

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On Monday, the US Supreme Court will hear argument in two Fourth Amendment cases.  Both arise out of traffic stops for excessive noise -- one in New York City and one in Greenville, Alabama.

Lyle Denniston at SCOTUSblog has this long preview article on Davis v. United States.  The case involves the fruit of a warrantless search of a vehicle incident to arrest, a search that was considered legal under the precedents of both the Alabama state courts and the Eleventh Circuit at the time of the search.  While the case was pending on appeal, the Supreme Court's decision in Arizona v. Gant effectively overruled those precedents and rendered the search illegal.  The question is whether the "good faith" exception that now applies where the police obey search warrants or facially valid statutes should be extended to cover judicial precedents.  Orin Kerr of GW Law and Volokh Conspiracy, representing Davis, asks the Court to exclude the evidence not to deter police misconduct, the usual rationale for exclusion, but rather to preserve the Court's own ability to reconsider precedent.  CJLF's response to his argument is here.

In Tolentino v. New York, the defendant asks for suppression of an item of evidence that was in the government's possession the whole time -- his DMV record showing ten license suspensions.  The claim is that this is a product of the challenged traffic stop because the record was not in the government's possession in a "meaningful sense" until the police learned his identity and linked him to the record during the stop.  New York and supporting amici (including CJLF) argue against exclusion based on the cases holding that identity of the defendant is not suppressible.  CJLF's brief by Christine Dowling also argues that a driver on a public street has no protectable interest in anonymity.  We require license plates that identify the owner.  We require clear windshields and side windows that let anyone see the driver.  Once you decide to drive a car on a public street, you are putting your identity on display for everyone to see.

New York is represented by the Manhattan DA's general counsel Caitlin Halligan, who has been nominated for the D.C. Circuit.

News Scan

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California Inmate Convicted for 1997 Rape:  The Associated Press reports California Inmate George Eugene Cross, 42, already serving a life sentence for assaulting three Sacramento County women in 2002, was sentenced to an additional 25 years to life for a 1997 rape of an Anaheim teenager.  Prosecutors used DNA evidence and testimony from the victim to link Cross to the rape. 

Pennsylvania Bill Would Expand DNA Collection:   The AP reports that Pennsylvania senate majority leader Dominic Pileggi proposed a bill to expand the state's DNA collection to include those accused of certain crimes after the preliminary hearing rather than waiting until conviction. If the bill is passed, Pennsylvania will join 24 other states with similar DNA collection laws.  The bill would also allow searches of the database for close but not exact matches to identify cases where the perpetrator is a close blood relative a person in the database.  The ACLU is opposed.

Family of Victims Files Lawsuit Against State of Arizona:  J.J. Hensley of The Arizona Republic reports that the family of a couple murdered by escapees from an Arizona prison last year, have filed a lawsuit against Arizona, the private prison operator, and the company that built the prison, alleging gross negligence.  Gary and Linda Haas were fatally shot and left in their burning camping trailer by Tracy Province, John McCluskey, and accomplice Casslyn Welch after Province and McCluskey escaped from a privately run prison near Kingman.  Daniel Renwick also escaped with Province and McCluskey, but headed to Colorado where he was captured after engaging in gunfire with local police. All three face federal murder and carjacking charges in connection with the Haas' deaths.  An attorney representing the family said "The purpose of this lawsuit is to get justice . . . not just for this family - the whole public is at risk."  After the escape the Arizona Department of Corrections conducted a review of the prison and found deficiencies in training and equipment, including an alarm system that frequently issued false alarms to the point where the staff ignored them.

Illinois Murder Registry Bill Passes Committee: Aledo Times Record (IL) reports that House Bill 263, also known as Andrea's Law, which calls for creating a murder registry much like sex offender registries, was passed out of the Illinois Judiciary II Committee today. The bill is named after Andrea Will, who was strangled to death in 1998 by her ex-boyfriend, Justin J. Boulay. Boulay was released in November after serving only half of his 24-year sentence. If passed, Illinois State Police would create an internet registry database of people convicted of first-degree murder, including information such as their names, residential addresses, and photographs.


John Fund on NPR

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John Fund has this article in the WSJ on the NPR defunding vote and George Soros's support for NPR.  The article includes this gem from the O'Keefe video:

[NPR's director of institutional giving] also noted that Mr. Soros's foundation first contributed to NPR in 2000 and that some of the money went to fund a documentary critical of the death penalty as it's employed in Texas. It aired on October 12, 2000, a day after then-Texas Governor George W. Bush was questioned about the death penalty in a debate with Democratic candidate Al Gore.
Alexander "Sasha" Volokh has this post at VC announcing this draft article at SSRN.  Here is the abstract (emphasis added):

This Article examines everything we know about the effectiveness of faith-based prisons, which is not very much.

Most studies can't be taken seriously, because they're tainted by the "self-selection problem." It's hard to determine the effect of faith-based prison programs, because they're voluntary, and volunteers are more likely to be motivated to change and are therefore already less likely to commit infractions or be re-arrested. This problem is the same one that education researchers have struggled with in determining whether private schools are better than public schools.

Illinois Notes

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In the course of deciding whether to sign the death penalty repeal, Gov. Pat Quinn found time to speak with Desmond Tutu, a citizen of South Africa whose experiences in a system radically different from ours shed little light on the controversy.

He refused to meet with Cindy McNamara, a citizen of Illinois whose experience as the mother of a murder victim is highly relevant to the question.  Along with signing the bill, Quinn commuted the sentence of the man who killed Shannon McNamara.  Mike Riopell has this story in the Daily Herald.

Meanwhile, a House committee has passed three restoration bills and sent them to the floor, Andy Brownfield reports in the State Journal-Register.  HB 1519 would reinstate a sharply narrowed death penalty.  HB 1738 would reinstate a somewhat broader one.  HB 1520 would submit the issue to a vote of the people, although the outcome would not be binding.  We have already seen such a referendum ignored in their neighbor to the north.

Of course, if you want to reinstate a reformed death penalty, narrowing the eligibility criteria is not the main reform to make.  The main thing is to fix the review system so that (1) cases with genuine claims of "you got the wrong guy" innocence get the most careful review; and (2) those without such a claim are reviewed expeditiously and, if affirmed, go from sentence to execution in five years.

Acquitted Conduct at Sentencing


The Washington Times has the story today of a defendant convicted for a $600 drug deal.  He had previously been acquitted of much more serious charges  --  namely, racketeering and conspiracy charges arising from his leadership of a violent drug gang in Washington, DC.  He got an 18 year sentence for the $600 deal because the trial judge relied upon some of the information adduced with respect to the more serious allegations.

The use of acquitted conduct really riles the defense bar, and, to be fair, it does have a counter-intuitive feel to it, at least at first blush.  But it has long been used at sentencing, and rightly so.  The reason is simple.  "Acquitted" doesn't mean "didn't do it"  (O.J. Simpson, call your office).

If one believes that sentencing should reflect actual reality, there is nothing wrong with using acquitted conduct, and plenty right with it. 

Next Friday, the New Orleans Lawyers Chapter of the Federalist Society has a mid-day event with the above topic featuring Roger Clegg of the Center for Equal Opportunity.  See the announcement.

Roger and I worked together on this brief in the New York case, written mostly by George Conway and Kenneth Lee.

Friday SCOTUS Orders

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The US Supreme Court has issued this orders list following its conference today.  Nothing unexpected.  The SG gets divided argument when he asks for it and nobody else does.  The deceased respondent in Fox v. Vice is substituted out.  "The motion to substitute Judy Ann Vice, as Executrix of the Estate of Billy Ray Vice, as respondent in place of Billy Ray Vice is granted."  They still use the archaic feminine form of "executor."  Not sure if that is the Court's preference or just reflects Louisiana practice.

In the middle of the term, the Court sometimes announced grants of certiorari in its day-of-conference orders list, and the list on the following Monday would all be denials.  Moving up the grant announcement gives more time to brief the cases before oral argument.  Now that it is too late to add cases for argument this term, we are back to all the grants and denials being announced on Monday.

Theft on a Grand Scale


A Wall Street Journal report out this afternoon relates:

The Federal Deposit Insurance Corp. sued three former executives of the failed Washington Mutual Bank, along with two of their wives, in a lawsuit filed on Wednesday.

The FDIC is seeking $900 million in damages for alleged gross negligence and other failures by the former executives in the run up to WaMu's collapse in September 2008, the largest-ever U.S. banking failure.

Gross negligence my foot.  The question is: why isn't this a criminal case?  Perhaps it will be in time.  On the other hand, the Holder Justice Department doesn't seem to be cooking with a lot of gas; if my most prominent recent case had ended with 284 not guilty verdicts out of 285 counts, I too might be mumbling instead of acting.

I did a number of white collar cases in my days in the USAO, and the defense was always that it was a poor, but not crooked, business decision, combined with bad luck and "sloppy bookkeeping."  I was always skeptical then, and I confess I remain skeptical now, that people manage to enrich themselves by hundreds of millions of dollars by being "sloppy."

Yesterday the Supreme Court of Idaho released its opinion in the case of State v. Windom, 2011 WL 891318. The facts of the case are gruesome and center on the murder of Judith Windom by her mentally disturbed son.  From an early age, Ethan Windom was fascinated with serial killers and death.  He was an avid follower of the thriller, American Psycho.  For years he dreamed of committing murder and finally indulged in that fantasy on January 24, 2007, brutally killing his mother while she slept.  At trial for murder, the inevitable question arose: what's wrong with Ethan?  Four mental health experts all came to different conclusions and Ethan was convicted of Murder 2nd.  At sentencing the trial judge had to determine what was the appropriate sentence for a crime so heinous and senseless but for a defendant so young and disturbed.   The trial court elected for a fixed life term.

News Scan

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Moving Forward in the Capital Punishment Debate: CJLF's Kent Scheidegger has this story in The Hill's Congress Blog about the legal developments surrounding the use of pentobarbital in lethal injections. Kent also discusses delays in capital cases, specifically post-trial litigation that can take decades and mostly involve claims related to the sentence, with little relevance to the actual crime. See a previous post here about pentobarbital-only executions.

New Hampshire Bill Would Make Fatal Home Invasions a Death Penalty Eligible Crime: The Associated Press reports a bill that would expand the state's death penalty to cover fatal home invasions was passed in the New Hampshire House on Tuesday. The bill is named after Kimberly Cates, who was killed by a machete and knife attack during a home invasion that also left her daughter maimed. New Hampshire currently has only six types of murder that are death penalty eligible under the state's statue. The last expansion was in 1994, when the killing of a judge was added. The last execution in New Hampshire was in 1939.

White House Makes Recommendations to Congress for Tougher Prison Sentences:
Jennifer Martinez of Politico reports that Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, presented a set of 20 suggestions to Congress on Tuesday for addressing intellectual property problems and passing legislation requiring tougher sentences for certain IP crimes, which, according to Espinel, have shorter prison sentences and a high profit margin compared to other offenses.

Woman Who Murdered Step-Son Free on Parole: Matt Campbell of the Kansas City Star reports that Sueanne Hobson, who was convicted in 1982 of first-degree murder for persuading her 17-year-old son and his 16-year-old friend to kill her 13-year-old stepson was released on parole. The teenagers took the boy to a field in Miami County and forced him to dig his own grave before turning their shotguns on him. According to testimony, she promised a car to her son and to fix his friend's motorcycle. Both teens, now men, were convicted of murder and paroled years ago. Hobson, now 68, became eligible for parole in 1989 and had been turned down eight times before. Says a neighbor, Ruth Brettle, "I'm very, very disappointed that she be allowed to walk the streets after what she did."

Jamming of Smuggled Cell Phones Tests to Begin in Texas Next Week: Mike Ward of the Statesman in Texas reports that after two years of delays, a Texas prison will begin testing cell phone jamming equipment early next week before permanently installing it. A test of the jamming technology was ordered after a prisoner escaped from the Stiles Unit using a smuggled cell phone to coordinate the plan. In 2008, legislative leaders demanded the testing of jamming technology after a convict on death row used a smuggled cell phone to call a state senator. State attorneys said that the approval of the FCC was necessary before a test could be conducted, but the FCC never gave its approval so no tests were conducted. Now, Livingston said prison officials believe that the tests can be conducted without violating federal laws, but no further details were provided.

Violent Sex Offender on Lifetime Parole Captured in Maine: Staff at the Milford Daily News in Massachusetts report that Brian Addeo, a six-time convicted rapist, was arrested last night after cutting off his ankle monitor and throwing it in the back of truck. According to state police, while he was out on bail awaiting trial for one rape charge, Addeo raped four young girls and a 19-year-old woman. Nevertheless, after serving some prison time, Addeo was sentenced to lifetime parole supervision in April 2010.

Better Late Than Never

Stephanie Hessler of the Manhattan Institute, and a former Senate Judiciary Committee staff attorney, has this article in the City Journal:

Two years after President Obama banned military trials, he has now come full circle, vindicating the legal strategy of President Bush. Of course, in the interim, detainee trials have been significantly delayed. But at least Obama has discovered the wisdom of the policies he once maligned.
Don't hold your breath waiting for an apology, though.

Life Imitates Woody Allen

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Frank Heinz reports for AP:

A Dallas bank robber who abided by a teller's request to provide two forms of identification before she could give him money is going to prison.

News Scan

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Texas Switches To a Different Execution Drug: Michael Graczyk of the Associated Press reports that the busiest death penalty state in the nation is switching to the use of pentobarbital in its three-drug cocktail used for lethal injections. The switch is due to a shortage of sodium thiopental, which Texas has used since 1982 when it became the first state to do lethal injections. This shortage is forcing multiple states to find alternative drugs. Pentobarbital has recently been used in executions in Oklahoma and Ohio.

San Francisco Begins Enforcement of Sit/Lie Law: CBS San Francisco reports that police officers have begun enforcing a new law passed by voters in November that makes sitting and lying on sidewalks illegal between 7am and 11pm. For now, police officers are giving out verbal or written warnings and are directing people to city services instead of handing out tickets. Brian Molony, one of the founders of the new Haight Ashbury Merchants Association, says he hopes the law will help clean up the Haight, where businesses can have a really hard time.

Familial DNA Used in Rape and Robbery Case: Stephen Baxter of the Santa Cruz Sentinel reports on the second arrest in the nation to use DNA from a family member to connect a suspect to a crime. Three years ago, a 24-year-old employee at the Kind Grind Coffee Shop in Santa Cruz was threatened with a knife, sexually assaulted, and locked in the walk-in refrigerator as the suspect took the cash from the register and fled. On Friday, 21-year-old Elvis Lorenzo Garcia was arrested for the crime. Police sent DNA evidence to the state Department of Justice laboratory in November 2008. In November 2010, DNA from a relative of Garcia's was matched to the DNA from the crime scene. Authorities ruled out the relative and kept a close watch on Garcia, and police obtained arrest and search warrants for him. His arraignment was postponed until later this month,  when prosecutors say he will be charged with eight counts including kidnapping, robbery, sexual assault, burglary and the use of a knife.

William J. Stuntz, 1958-2011

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Orin Kerr has news of the passing of Bill Stuntz.  Bill was my mentor at Harvard, a renowned scholar, and all around great guy.  His death was expected but that doesn't diminish the sadness of his loss.  It's generally accepted wisdom that when an extraordinary person passes, those of us left behind should have boundless words of praise for that life lived.  But, as the poet Mark Strand once put it, sometimes "there is silence instead of your name."  

DEA in the Thiopental Kerfuffle

The Drug Enforcement Administration has apparently stepped into the controversy over importation of the sodium thiopental used in executions, seizing Georgia's supply.  Bill Rankin and Kristi Swartz have this story in the Atlanta Journal-Constitution.  AP has this story.

Over at the Food and Drug Administration, more rational heads have prevailed.  That agency has recognized that the use of drugs for execution does not implicate the purposes of Food, Drug, and Cosmetic Act and does not come under its jurisdiction.  Under that act, the FDA regulates drugs to ensure they are "safe and effective" for medical use.  For lethal injection, "safe" and "effective" are mutually exclusive.

Hopefully, higher ups at DEA will countermand this order.  If not, the appropriate House committee should summon DEA officials to explain in an oversight hearing.

As the AP story notes, the legal issues have already been considered by the courts in the Hammond execution.  If there is any question about the purity of the drug, a simple laboratory analysis will resolve them.

In any case, this is one more reason to switch drugs as soon as possible.

Get Zonked In Oribit

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One of the standard debate arguments against legalizing drugs like marijuana and cocaine is to ask the audience how they would feel if they knew the mechanic for their flight was puffing up or snorting up while "working" on the aircraft.

Today's story takes it one step higher, as it were.

A man already on federal death row for a horrific crime in Idaho and Montana will be sentenced to two life-without-parole terms for the murder of another child in California, AP reports.

[Joseph Edward] Duncan was sentenced to death in 2008 for the kidnapping, torture and murder of 9-year old Dylan Groene of Coeur d'Alene, Idaho. He abducted the boy and his 8-year-old sister Shasta after killing their older brother, mother and her fiance with a hammer at the family's home in 2005.

He then took the children to a remote western Montana campsite where he raped, tortured and threatened them before shooting Dylan in the head and burning his body.
Oral argument in the federal case was held in the Ninth Circuit on January 12, Duncan v. United States, No. 08-99031. 

Meanwhile, back in California,

News Scan

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Florida Child Welfare Agency to Make Changes After Girl's Death

Proposed Massachusetts Bill Could Eliminate Parole for Repeat Violent Offenders 

Prosecutor to Seek Death Penalty in Correctional Officer's Killing  

Pennsylvania Governor Signs Two Death Warrants

Minnesota Bill Would Resurrect Open-Ended Sentencing for Sexual Predators
Jess Bravin has this article in the WSJ on mock trials presided over by Supreme Court Justices.  They include a competency hearing for the indecisive Prince of Denmark and a court-martial for Col. George Custer.

"Several justices say the faux trials, which often raise money for causes like the Supreme Court Historical Society and Washington's Shakespeare Theatre Company, provide a convenient excuse for pleasure reading."

Major General Ginsburg also likes the fact that she can drink a couple glasses of wine before oral argument.

In a separate blog post, Bravin reports on Judge Posner's sourpuss dissent.

Thanks to How Appealing for the tip.

The War with The Truth

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Hat tip to Doug Berman, who brings us this story spelling out in bold relief the real contours of the defense bar's war with the truth. 

For some of us, telling the truth is sufficiently virtuous per se to be non-optional  --  or, to put it more plainly, you have to do it even if it hurts.  But for those who require additional justification, this story makes it unmistakeable.

To sum it up, a fellow who'd been convicted in federal court of child porn appeared before the probation officer preparing the pre-sentence report.  The defendant had a previous conviction for attempting to molest an 11 year-old girl, had been in prison, and had gone through hundreds of hours of "counseling."

In those circumstances, most defendants are going to tell the P.O. that they've learned their lesson and submit some bought-and-paid-for psychiatric report so attesting.  This defendant chose another path.  He told the P.O. that he was a danger to the community, that he couldn't control himself, and that he would in all likelihood attempt to molest another child if given the chance.  The judge, not surprisingly, then gave him an upward departure at sentencing.

The defense bar types commenting on this story were outraged that the defense lawyer had not "better prepared" his client for the P.O. interview.  What he should have been "better prepared" to do was clam up  --  or, if that failed, lie  --  about what any sane legal system would consider the central fact for sentencing purposes, to wit, the likelihood that he'd do it again.

In other words, the defense lawyer's foremost mission here was to make sure the real truth stayed out of sight, and thus knowingly to increase the prospect that another child would be molested.  Is this what we want for "professional ethics?" 

No Looting in Japan

Another note on crime and culture -- Western journalists covering the aftermath of the tsunami in Japan have noted an absence of looting.  See, e.g., this post by Ed West at the London Telegraph.   Elsewhere in the world, disasters are regularly followed by looting.  Taking advantage of the chaos to make off with a big-screen Sony doesn't seem to have occurred to many Japanese.

Culture is the primary reason for differences in crime rates across jurisdictions, which is why simplistically comparing jurisdictions to see the effects of policy differences does not work.  Death penalty opponents regularly claim that Europe's lower homicide rates, relative to the U.S., disproves deterrence.  Substitute Japan for the U.S. in the same argument, and you get the opposite conclusion.

For crimes other than homicide, such as robbery and burglary, rates have risen in most of Western Europe to the point that they are close to or higher than America's rates.  See this post.  Not in Germany, though.  Why not, when Germany has been just as soft on crime as England, France, and Italy?  Probably cultural differences.

Although culture is a major determinant, it is the one that government can do the least about.  Government can avoid harmful policies, such as a welfare policy that undermines the family and corrodes the work ethic.  It can have some impact with public-service advertising, such as the "Just Say No" campaign that really did reduce drug use, despite the derision aimed at it.  But these changes are incremental and long-term.  Haitians will never think like Japanese, and there is nothing government can do about it.

When we discuss issues of policing and punishment and their effect on crime rates, we must keep in mind that other factors also affect crime rates.  But these are the factors within our direct control.

Justice Alito

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Thumbnail image for IMG_0795.JPG Last Friday, I attended an event featuring Justice Alito, hosted by the Silicon Valley Lawyers Chapter of the Federalist Society. The Justice offered his perspective on some of the "popular myths of judges," including the judge as a scientist, the judge as a constitutional-rubber-stamper, and the judge as a crowd-pleaser.  He also talked about the grueling confirmation process (not something he ever wants to go through again), televising Supreme Court oral arguments (not a good idea), and Marbury v. Madison (not a usurpation of judicial authority).  The Justice was very conversational, showing no qualms about mingling with the crowd or posing for a photo.

Pro Bono Opportunity

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D.C. attorneys, want to do some pro bono publico work?  Zoe Tillman at BLT has this post on an opportunity.  DC's Acting AG is looking for pro bono attorneys to lessen the office's crushing workload.

"Pro bono publico" is Latin for "for the public good."  The term is used for volunteer work by attorneys, but a great deal of what is done under that heading is actually contra bono publico.  Attorneys claiming that they are working "pro bono" conduct litigation that the public would be better off without, such as suing the FDA over its assistance rendered in importing the drugs needed for lethal injection.

Has America completely run out of worthy beneficiaries of pro bono assistance, such there is nothing left to do but help murderers avoid the execution of their well-deserved sentences?  I find that extremely doubtful.  More likely the problem is that helping regular folks with routine legal problems just isn't seen as boosting the firm's public profile.  They would rather do work that makes headlines, even if it means helping the bad guys.

Helping the DCAG with routine criminal cases won't make headlines, but it will get you some in-court experience you might not get otherwise, and you will know that your volunteer hours actually have been spent for the public good.

News Scan

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Court Hears Arguments about Death Penalty Protocol:  The Winston Salem Journal reports the North Carolina Supreme Court heard argument today about whether an administrative law judge had the authority to order the elected officials to revise the state's execution protocol.  Attorneys for five death row inmates argue the North Carolina Council of State failed to fulfill its duties when it hastily approved new execution procedures in 2007 without hearing from those representing condemned prisoners.  After a trial court judge ruled in the Council's favor, the death row inmates sought further review from the state's high court. 

First Amendment Rights Collide in Westboro Case:  John Crisp of Del Mar College in Corpus Christi has this op-ed in the San Angelo Times on Snyder v. Phelps, the recent Supreme Court case upholding the right of the Westboro Baptist Church to peacefully protest at military funerals.  Crisp opines "[t]he opinion's declaration of the reasoning behind judgment by eight members of the court is thoroughly convincing," but that "Alito [the lone dissenter] convincingly challenges the reasoning of the majority opinion."  Crisp concludes that "[l]imiting speech in any way is always dangerous.  But the right to speech is no more important than another essential American right, the right to be left alone, especially when you're grieving."

Convicted Killer Seeking Stay of Execution:  The AP reports attorneys for Arizona death row inmate Eric John King, 47, have filed a second motion with the state's high court seeking a stay from his scheduled March 29 execution date.  King was sentenced to death for fatally shooting a convenience store clerk and a security guard during a 1989 robbery.  His defense team claims jurors should not have been shown a condensed copy of a store surveillance video and that Jones has "no memory of the crime" because he was in an intoxicated state on the night of the robbery. 

New Hampshire House to Vote on Expansion of Death Penalty:  The New Hampshire House is scheduled to vote this week on whether to expand the state's category of death-eligible crimes to include murders during home invasions, reports the AP.  The proposed expansion comes in light of the 2009 fatal slashing death of Kimberly Cates in her home, a crime that, despite its gruesome nature (Andrew Wolfe of The Nashua Telegraph has the details here), was not death-eligible under current New Hampshire law.  

News Flash: Radical Islam Is Dangerous


We have a Secretary of Homeland Security who will jump through hoops to avoid saying the word "terrorism," preferring instead to refer to mysterious "man caused disasters."  Still less is the Administration willing to acknowledge that the principal source of terrorism man caused disasters is radical Islam.  The Attorney General is fully on board with the plan to pretend that, say, abortion clinic bombers and the IRA pose threats to the United States comparable to those posed by al Qaeda. 

Rep. Peter King does not share this somnambulent attitude, and so is holding hearings to examine the role of radical Islam it the landscape of terror.  And while the Attorney General may prefer to look the other way, his own Justice Department tells a different story when it comes down to the actual figures.

As Powerline reports:

The Department of Justice has tracked convictions resulting from international terrorism investigations conducted since September 11, 2001. It has compiled a chart of convictions that is included in this document.

In light of Rep. Peter King's hearings on the threat posed by radicalized Islam in the United States, the chart is an extremely interesting document. The folks at the Investigative Project on Terrorism have analyzed it, finding that Islamists are prominently featured, with more than 80 percent of all convictions tied to international terrorist groups and homegrown terrorism since 9/11 involving defendants driven by a radical Islamist agenda.

The New York Times isn't happy about Rep. King's hearing, so it has made much of King's past support for the IRA, devoting a page-one story to it. But the New York Post acidly comments: "as if anyone ever declined to walk through Times Square for fear of being blown up by a rabid Irishman."


Better Police Through Lower Standards


The ABC affilate in Dayton, Ohio carries this story:

The Dayton Police Department is lowering its testing standards for recruits.
It's a move required by the U.S. Department of Justice after it says not enough African-Americans passed the exam.    

Dayton is in desperate need of officers to replace dozens of retirees.  The hiring process was postponed for months because the DOJ rejected the original scores provided by the Dayton Civil Service Board, which administers the test.  Under the previous requirements, candidates had to get a 66% on part one of the exam and a 72% on part two.

The DOJ approved new scoring policy only requires potential police officers to get a 58% and a 63%.  That's the equivalent of an 'F' and a 'D'.


The DOJ and Civil Service Board declined Dayton's News Source's repeat requests for interviews.

How's that?  President Obama's "Hope and Change" administration is stonewalling questions about why police hiring is now to be geared toward tossing goodies to a reliable Democatic constituency instead of signing up the best qualified applicants?

And am I remembering this wrong, or isn't it DOJ itself that's beating the drum for "smart policing?"

I said in an earlier entry that I'd been having trouble figuring out what "smart policing" means.  Now I know.  It means dumber police.


Abolish the Bus Tours!

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NBC News is carrying a very unfortunate story, which begins thusly:

Several passengers who survived a horrific bus crash that killed 14 people told police the bus driver was driving erratically down I-95 shortly before the accident, sources told NBC News.

One official said investigators were looking into whether the driver fell asleep behind the wheel -- or was somehow not paying attention.

The bus had just reached the outskirts of New York City on a journey from the Mohegan Sun casino in Connecticut when the crash happened. The driver, who was injured, told police he lost control trying to avoid a swerving tractor-trailer.

Under abolitionist theory, it's time to ban bus tours (indeed, Gov. Quinn should immediately sign a bill doing so).  Bus tours are licensed by state governments and use publicly funded highways.  Such explicit government approval and facilitation is given knowing in advance that crashes are possible (indeed that they have happened many times), and that innocents will be killed.  Futhermore, there is not and never will be a way to establish infallibly safe bus tours.  Finally, bus tours have never been known to provide "closure." 

Indeed.  Of course abolishing bus tours would be nonsense, and no serious person supports doing it.  This is because, notwithstanding the prospect  --  indeed, the certainty  --  that they will kill innocent people, they produce enough by way of enjoyment that they're worth the candle.

Any lessons here?  The death penalty produces something a good deal more important than enjoyment, that being the only justice that befits particularly gruesome crimes.  And it has killed many fewer innocent people than bus tours.  (Indeed, it has killed zero innocent people in the modern era, so far as any neutral source has shown).

If we're going to keep bus tours, a fortiori we should keep the death penalty.  Just don't try arguing this to an abolitionist, analysis being no match for certitude. 


Crime and Culture

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Every now and again, some of our commenters have admonished me for wandering away from the central focus of this blog to talk more about cultural and political issues  --  for example, the sprawling welfare state and the assumptions about human nature that give rise to it.  We have some exceptionally astute readers, and I respect and welcome their perspective.  I remain convinced, however, that an understanding of culture and politics beyond the items that directly show up on the police blotter is essential to any long-range strategy for reducing crime.

Today I find support for this view in this Wall Street Journal piece about the brilliant James Q. Wilson.  Prof. Wilson asks an important question sometimes overlooked in day-to-day stories about criminal law:  What is the real reason for the now years-long drop in crime?  As the article notes:

It's now clear that a long and mysterious decline in America's serious crime rate began just about the time [a 1982 Atlantic article by Wilson] appeared. Like a true conservative, though, Mr. Wilson doubts government policies, including his own contributions, were all that important. Better policing and greater use of prison may have played a role, but he is convinced the major factor lies elsewhere. He believes "cultural change" was the important variable, albeit in a fashion he's still puzzling over.

Among the changes Prof. Wilson mentions are a "religious awakening" and a reaction against drug abuse as its dangers became better known.  My favorite, though, is this:

"[In the 1960's] there was cultural change as well as a numerical change [in the population of young males], and what caused the culture change? Whatever it was, it was powerful. I think it's best summarized by saying people abandoned the idea that self-control was the standard by which life should be led. That's my rough summary of what the '60s meant...I'm willing to guess that's less common today."

Just so, in my view anyway.  In the sixties, it was all about self-expression (you know, "do your own thing").  In recent times, I have the same sense Prof. Wilson does, that there has been a re-discovery of the virtues of self-control.  Liberals think "self-control" is code for leading a stifled, repressed, conformist life.  I think it's the key to leading free, peaceable and responsible one.  It's also the key to reducing crime, which is why I'll continue to talk about it, whatever its manifestations.  


News Scan

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California Wants to Try Illinois Killer Spared by DP RepealThe Associated Press reports that when Illinois Governor Pat Quinn abolished the death penalty on Wednesday, he commuted the death sentence of Andrew Urdiales, 46, to a life sentence.  Urdiales was convicted and sentenced to death in 2004 for the 1996 killing of Cassandra Corum.  Urdiales was also previously sentenced to death for killing two Chicago-area women, but his sentence was commuted to a life sentence after former Illinois Governor George Ryan cleared Illinois' death row in 2003.  The Orange County DA is now asking Governor Brown to OK a request for extradition of Urdiales to California for trial for the murders of five women.  In 2009, a California grand jury indicted Urdiales in the murders.  If Brown approves the request he will forward it to Quinn, who will decide whether or not to grant extradition of Urdiales.

Defense Opposes Mental Exam of Arizona Shooting Suspect:  Julie Watson of the Associated Press reports Jared Loughner's lawyer Judy Clarke is opposing a mental exam of her client, stating that it would interfere with her ability to work and develop trust with him.  Loughner, 22, could face the death penalty for the Tucson, Arizona shooting on January 8th that left four dead and Congresswoman Gabrielle Giffords recovering from a brain injury.  U.S. District Judge Larry Burns granted the prosecutors request to give Loughner a psychological evaluation, and set a hearing for May 25 to determine if Loughner is competent to stand trial.  If Loughner is determined to be competent, it could make it more difficult for Clarke to use an insanity defense.

Federal Prisons Are Out of Execution Drug:  Andrew Welsh-Huggins of the Associated Press reports the federal government, along with many states, have run out of the lethal injection drug sodium thiopental.  U.S. Attorney General Eric Holder stated that officials are researching other alternatives to the drug and death penalty procedures.  Oklahoma and Ohio have switched to the use of a surgical sedative, pentobarbital, in lethal injections.  While Oklahoma uses pentobarbital along with other drugs to execute inmates, on Thursday Ohio executed murderer Johnnie Batson using only pentobarbital.  The federal government and other states will have to make a similar switch to pentobarbital or find another alternative.

Jury Recommends Death for Killer:  The Associated Press reports  that David Dewayne Riley Jr., 26, was convicted a second time for killing 38-year-old store clerk Scott Michael Kirtley in a 2005 liquor store robbery.  The jury made a unanimous recommendation that he be sentenced to death.  In 2007, Riley was sentenced to death for the same crime but the conviction was overturned by the Alabama Court of Criminal Appeals in 2009. Nick Lough of WAFF News reports that the conviction was overturned because the judge did not instruct the jury to ignore a previous felony conviction.  

New Cars Could Have Alcohol Detectors:  MSNBC reports that a proposed California law, "The Roads Safe Act," could require an alcohol detector in every car.  If approved, this bill would make $60 million available over the next five years to research and develop an alcohol detecting device that could measure blood alcohol content of someone when they touch the steering wheel or ignition button.  Opponents, such as the American Beverage Institute, say that alcohol detectors should only be used for drunk drivers, not everyone.

Illinois Man Pleads Guilty to Murder and Sexual Assault of 73-year-old Woman: Terry Hillig of gives an updated report on Perry L. Henderson, who yesterday pleaded guilty to one count of first degree murder and one count of aggravated criminal sexual assault against 73-year-old Sandra Wood in her home in Alton, Illinois. Henderson entered an "open" plea, which allows prosecutors to request any penalty available under Illinois law. Madison County Assistant State's Attorney Neil Schroeder said he will request the sentence of natural life in prison. In Illinois, for first-degree murder convictions, parole is not possible until the entirety of the sentence is served. This plea came the day after the Illinois Governor signed legislation to abolish the state's death penalty. Wood's son, Rich Edelman, said he is glad Henderson pleaded guilty but added, "I'm sorry Gov. Quinn signed the bill yesterday." Henderson is a registered sex offender who has been sent to prison six times.     
The title of this post is from the headline of this press release from the Quinnipiac Poll.  Here is an excerpt from the press release (emphasis added):

Connecticut voters support the death penalty 67 - 28 percent, inching up to a new high, and say 48 - 43 percent that the penalty for first degree* murder should be the death penalty rather than life in prison with no chance of parole, also a new high, according to a Quinnipiac University poll released today.

Support for the death penalty, 65 - 23 percent in an October 13, 2010, survey by the independent Quinnipiac (KWIN-uh-pe-ack) University, has inched up in every survey since the July 23, 2007, Cheshire murders. Support for the death penalty was 59 - 31 percent January 12, 2005, before the murders. In that same 2005 Quinnipiac University poll, Connecticut voters preferred life in prison without parole over the death penalty 49 - 37 percent.
*                              *                            *
Offered three choices, 10 percent favor the death penalty for all people convicted of murder; 16 percent say no one should be executed and 73 percent say the death penalty depends on the circumstances of each case.

"Future of the Supreme Court"

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C-SPAN has this video of a February conversation/debate between ideological rivals Erwin Chemerinsky, Dean of UC Irvine School of Law, and John Eastman, former Dean of Chapman School of Law.  Topics discussed include California's three-strikes law, originalism, and the appointments of Justice Sotomayor and Justice Kagan.  Chemerinsky and Eastman did come to an agreement on a few points, including a more objective approach to the recusal of Justices on the Supreme Court, but generally remained on opposite sides of the fence.

A few of their predictions for anticipated Supreme Court cases:

Eastman - 5-4 that federal health care mandate is unconstitutional, with Justice Kennedy as the deciding vote.
Chemerinksy - Vote to uphold federal health care mandate, with Justice Scalia joining the majority in light of his vote in the last Supreme Court Commerce Clause case, Gonzales v. Raich

Same-Sex Marriages
Eastman - 5-4 upholding ban on same-sex marriages.
Chemerinsky - 5-4 striking down ban.

News Scan

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Illinois Repeal of Capital Punishment:  Following up on yesterday's post, Illinois Gov. Pat Quinn signed legislation yesterday putting an end to capital punishment in the state, making it the third state to abolish the punishment since 2007.  Quinn commuted the sentences of the state's remaining death row inmates to life in prison without parole.  The law becomes effective July 1, 2011.  State Senator William Haine, one of several Democrats to oppose repeal, said Quinn should have pushed for a statewide debate and a referendum on whether to keep capital punishment.  "This removes a remedy of the people of Illinois for great and evil acts of a unique kind: wanton cruelty, terrorism, rape and murder, the butchery of small children, mass murder," said Haine. "It removes a remedy for the community to seek the penalty of death in which someone forfeits one's life for these great wrongs committed to innocent people."  Matt Smith of CNN has this story.

Federal Prosecutors to use "Silent Witness" Procedure in Leak Trial:  Josh Gerstein of Politico reports on a courtroom tactic federal prosecutors are seeking to use to keep secret evidence from the public in the trial of a former senior National Security official, Thomas Drake, who's accused of illegally keeping classified documents at his home, lying to FBI agents investigating the case, and destroying evidence.  The "silent witness" procedure, allows courtroom to be kept open but sensitive evidence is referred to in a code only the judge, lawyers, defendant, and jury can understand.  "The evidence is presented in a public courtroom, but none of the participants are able to talk about what they're reading out loud or show the evidence, yet it's taking place in a so-called open court proceeding," said Jay Ward Brown, a media lawyer in Washington.  The last time the procedure was permitted at trial was in 2005 in the case of an Al Qaeda operative accused of plotting to kill President George W. Bush.  In this case the Judge Richard has yet to rule on allowing it.

Bill Proposed in Connecticut to Collect DNA From Felony Arrestees:
  Debra Bogstie of NBC Connecticut reports Jayann Sepich, the mother of a murdered New Mexico woman, is urging Connecticut state lawmakers to pass a bill requiring DNA to be collected from suspects arrested for serious felonies.  As of now, Connecticut requires DNA samples to be taken only from convicted felons.  Sepich's daughter Katie was 22 when she was beaten, raped, and strangled in New Mexico.  The case went unsolved for three-and-a-half years until the suspect was convicted of another crime and was forced to submit a DNA sample that ended up matching Katie's case.  Sepich says that if the sample had been collected upon arrest, the case would have been solved three months after her daughter's death and would have saved police about $200,000 in investigatory costs.  If the bill is passed, Connecticut would be the 25th state to collect DNA samples after serious felony arrests. 

Rhode Island Town Fights the Early Release of Child Killer: Abby Goodnough and Katie Zezima of The New York Times report on the possible early release of Michael Woodmansee, who was convicted of killing a 5-year-old Rhode Island boy in 1975. Woodmansee lured the boy into his home and stabbed him to death. The boy's bones were later discovered in Woodmansee's house. Woodmansee was also charged with the attempted murder of a 14-year-old paperboy. South Kingstown police chief Vincent Vespia, who has read Woodmansee's journal detailing his crimes, says that the shortening of his sentence is "mind-boggling." See prior post here. John Foreman, Jason's father, has threatened to kill Woodmansee if he is released. Locals have planned a rally at the Rhode Island Statehouse in protest to the "earned-time law."

Ohio Carries Out Nation's First Pentobarbital-Only Execution: Jim Provance of The Toledo Blade reports Johnny Roy Baston was pronounced dead at 10:30am this morning, becoming the first inmate in the U.S. to be executed solely by a dose of pentobarbital, a powerful anesthetic. See Kent's post here. Baston was convicted of murdering Chong-Hoon Mah, a former South Korean journalist who emigrated to the U.S. and owned a local shop in downtown Toledo. For 17 years Baston admitted only to the robbery of Mr. Mah and maintained that another man had killed him. But on Friday, the Ohio Department of Rehabilitation and Correction said that Baston had confessed to the slaying after his legal team and family arranged for him to have a polygraph test. Governor John Kasich denied Baston's petition for clemency, after the Ohio Parole Board unanimously recommended against it.

Gutting the Patriot Act

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Former CIA Director Michael Hayden and former Attorney General Michael Mukasey have this op-ed in the WaPo on Senator Leahy's bill "to hobble or eliminate" important provisions of law for fighting terrorism.

Sunset provisions terminating Section 215 [on business records], roving wiretap, NSLs and "lone wolf" authority as of Dec. 31, 2013, are included, even though neither Osama bin Laden, Ayman al-Zawahiri nor Anwar al-Aulaqi is term-limited as of that date. 
The "three-drug protocol" that has been the primary method of execution in the United States since the early 90s has had two main problems.  First, there was litigation over the possibility that the inmate might not be sufficiently sedated if the first drug, sodium thiopental, was not properly administered before the second and third drugs were used.  Second, there was a supply problem when the lone U.S. manufacture of thiopental first temporarily stopped production and then proposed to move production to Italy, which promptly saw an opportunity to meddle once again in an issue that is none of its business.

The first problem can be corrected by getting rid of the second and third drugs altogether and relying on the single massive dose of sedative to do the job.  The second can be corrected by switching to a different sedative.  There is nothing magic about thiopental.

Ohio and Washington have taken the first step, and Oklahoma has taken the second.  Today, Ohio became the first state to take both.  Johnnie Baston was executed for the murder of Chong Mah.  Rob Stein has this story in the WaPo.

My proposal to get rid of lethal injection altogether is here.

Snow and Murder

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Was the drop in murders in New York this winter due to bad weather?  We don't really know.  Sean Gardiner has this story in the WSJ.

Parole Grumbling at USCA9

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On January 24, the US Supreme Court reversed the Ninth Circuit on the way it had been interfering in California parole decisions, and it did so in unusually strong language.  See prior posts here and here.  Today we were tipped to an unpublished memorandum disposition on Feb. 8 grudgingly implementing that decision, Kutylo v. Vaughn, No. 07-55829.  The main opinion simply affirms on the basis of Swarthout v. Cooke, the Supreme Court decision.  Then the notorious Judge Reinhardt chimes in with this:

Because the Supreme Court has held that whether there is "some evidence" to support a denial of parole, a right that California law affords inmates, is "no part of the Ninth Circuit's business," Swarthout v. Cooke, No. 10-333, Slip Op. at 6 (Jan. 24, 2011), and for that reason only, I reluctantly concur.
That rule -- that alleged errors of state law in state criminal cases are to be dealt with by the state courts and that federal habeas for state prisoners addresses only questions of federal law -- was not new this January.  It has been an integral part of the law since Congress first authorized federal habeas for state prisoners, and it is codified at 28 U.S.C. §2254(a). 

Judge Reinhardt apparently has his nose out of joint because the Supreme Court told him to obey an elementary rule of law that he has been flouting for years.  And this is not the first time the high court has done so.  "We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'"  Swarthout, at 4 (quoting Estelle v. McGuire, 502 U. S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U. S. 764, 780 (1990))).

How many times do they have to explain this before he gets it?

Betrayal in Illinois

Gov. Pat Quinn today double-crossed the voters of Illinois.  During the recent election campaign he said he was in favor of the death penalty, as was his opponent.  Given his razor-thin margin of victory, less than one percent, it seems obvious he would not be Governor of Illinois today if he had told the people he would sign a repeal bill.

This is a sad day for justice and democracy.  If the new legislature repeals the repeal, will Governor Quinn sign that bill?

John Schwartz and Emma Fitzsimmons have this article in the NYT.

Comments and Spam

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It seems that our spam filter has been overly aggressive and has marked as "spam" some legitimate comments.  We apologize for the error.  Erroneously flagged comments within the last two weeks have been published, and the commenters have been designated "trusted" commenters whose future comments will appear immediately.  I have also tweaked the spam filter to make it less aggressive.

A while back, I turned off a method of registering on the blog that allowed a new commenter immediate "trusted" status.  Unfortunately, that feature must remain off due to the copious amounts of spam it produced.  I have also turned off trackbacks, which are largely obsolete anyway, due to spam.

News Scan

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Suspected Cole Bomber to Face Military Tribunal:  Richard A. Serrano and David G. Savage of the LA Times report Abd al Rahim al Nashiri, the suspected mastermind of 2000 bombing of the Cole destroyer, is expected to the the first Gitmo detainee to face a military tribunal during Obama's presidency.  Al Nashiri will be tried under the 2009 revised rules for military tribunals, which tightened the standards for the admissibility of hearsay statements and prohibits military prosecutors from admitting "statements obtained by torture, or cruel, inhuman or degrading statements."  Pentagon officials believe al Nashiri's trial could begin by this summer.

Florida Imposes Waiting Period for Felon Voting:  Florida Governor Rick Scott and other state officials voted unanimously today to impose a waiting period for convicted felons to regain their right to vote.  The previous rule enacted by then-Governor Charlie Crist in 2007 restored the right to vote almost automatically upon a felon's release from custody.  Under the rules passed today, violent felons must wait seven years before applying for their civil rights, while nonviolent felons must wait five.  Peter Wallsten of the Washington Post has this story.

Blagojevich: The Economy's Bad, So Let's Cancel the Retrial: 
Rod Blagojevich has asked a federal judge to cancel his retrial and immediately sentence him for his previous conviction, reports the Chicago Sun-Times.  Last summer, Blogojevich was convicted of one out of 24 counts against him, with the jury deadlocking on the rest.  The former governor's defense team claims "A second prosecution of this case is an irresponsible use of taxpayer funds in light of the current economic crisis and Blagojevich's imminent sentencing on the conviction from the first trial."  His attorneys also claim they haven't been paid for their work on his case.  

Burglar Locked in House Calls Police for Help:   After breaking into a house in Portland, Oregon, Timothy James Chapek 24, locked himself in the bathroom and called 911 because he feared the homeowner might hurt him.  When discovered by an occupant of the home, he assured her he had already notified the police.  The Portland Tribune has this story.  Click here to listen to the intruder's 911 call.

Mr. Nicey to Win Early Release

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I keep resolving to refrain from posting about the facts of individual murder cases, because after reading about one atrocity even more ghastly than the last, it just becomes redundant.  My resolve starts to slip, however, when I survey the unending excuses the defense bar can come up with, no matter how grotesque the crime (see, e.g., any three days' worth of comments on Sentencing Law & Policy).  It slips over the edge when I see a story like this

To sum it up briefly, which is all my stomach can take, a fellow named Michael Woodmansee butchered a five year-old because he wanted to see "'what it would be like' to kill someone. He thought it would be easy, easy to get away with it, and some form of fun..."  After he killed the kid, he cannibalized the body, keeping the skull for a souvenir.

The crime went unsolved for several years, but started to unravel when Woodmansee tried it again, this time with a 14 year-old.  Unfortunately for him, 14 year-old's can fight back.

Anyway, Woodmansee apparently is about to be released because of a fatuously generous "good behavior" rule that was in effect at the time of his conviction.  The little boy's father says that, if the release goes forward, he'll kill him.

CJLF does not condone murder in any form whatever, and neither do I.  But if the law mocks the grief and suffering of victims, what, other than vigilantism, do we expect? 

More on Death Row Organ Donation

Following up on yesterday's post on death row organ donation, Wesley Smith at The Corner (National Review Online), has this long post saying that "volunteer" Christian Longo is running an elaborate con.

That may very well be true.  Many death row inmates are sociopaths, and sociopaths are often skilled manipulators.  (The DSM-IV name "antisocial personality disorder" misleads many laymen to think they are socially awkward loners.  The opposite is more often true.)

Regardless of whether Longo is sincere or running a con, I do think organ donations should be allowed, and that is one more reason to switch to the single-drug protocol. 

Marijuana, "Victimless Crime"


The AP reports:

Authorities have charged a 30-year-old New York woman with endangering the welfare of a child after police say her toddler wandered into an upstate road clutching a bag of marijuana.

Police in the hamlet of Loch Sheldrake say Lakeisha Owens was sleeping in her apartment around 5 p.m. Saturday when her 3-year-old daughter was nearly struck by a vehicle.

Officials say the driver pulled over, removed the child from the road and called police. Authorities say the girl was holding a bag containing 15 grams of marijuana.

Police said Tuesday that Owens was released after her arrest on the misdemeanor charge. Authorities didn't know if she had a lawyer, and there was no phone listing for her in Loch Sheldrake, located 85 miles northwest of New York City.

Anyone here think that Ms. Owens was just "sleeping?"  Think maybe she got stoned, and while zonked out, her 3-year old took mommy's baggie and wanted to find out what happens when you play in the street?

You can say that simple possession and use of marijuana are harmless, and you'll make a point  --  if you're willing to ignore this and numerous similar stories.  At some point, though, somebody's  3 year-old isn't going to be as lucky as this one.  It's then that I want to hear more from the "victimless crime" crowd.

One More Quick Note on Gitmo

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Dana Milbank writes in the WaPo: "It was another important moment in the education of Barack Obama....  [N]ow he has essentially formalized George W. Bush's detention policy."  Rush Limbaugh said essentially the same thing on the radio this morning. 

Limbaugh and Milbank in harmony?  Was that a pig that just flew by my window?

News Scan

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Two California Death Row Inmates Die in One Week:  The Associated Press reports California death row inmate Richard Ray Parson, 67, died last week from natural causes while awaiting execution.  Parson was sentenced to death for the 1994 murder of Theresa Schmiedt, the mother of an inmate Parson met in prison.  Parson beat her to death with a claw hammer and stole her purse and bank cards.  The Associated Press also reports a second California death row inmate, James Van Pelt, 54, died over the weekend of natural causes while awaiting execution for the 1985 torture and murder of Frank Aguilar, whom Van Pelt mistakenly thought had killed one of his friends.  54 inmates have died on California's death row since the state reinstated the death penalty in 1978.  13 have been executed.

Convicted Murderer Charged with Cold Case Slayings:  Meghan Barr of the Associated Press reports that convicted murderer Joseph Harwell, 50, of Ohio was charged today with two additional cold case murders.  A DNA hit linked Harwell, currently serving time for a 1997 murder, to the body of Mary Thomas, who was discovered raped and beaten to death in an abandoned building in 1989.  DNA also linked Harwell to the rape and murder of Tondilear Harge, found in an empty lot in 1996.  Cuyahoga County Prosecutor Bill Mason states this is the second serial murderer being investigated in Cleveland's east side, after the bodies of 11 slain women were found in the home of Anthony Sowell in 2009.   

Investigators to Search for More Victims of East Coast Rapist:  John Christoffersen and Matthew Barakat of the Associated Press report  that 39-year-old Aaron Thomas, the suspected "East Coast Rapist," made his first court appearance in a Connecticut courtroom on Monday on charges of raping a woman in front of her baby in 2007.  Investigators say DNA from a discarded cigarette butt links Thomas to rapes in at least four states along the east coast, and possibly additional unreported attacks.  Prosecutor David Strollo also alleges Thomas asked police "Why haven't you picked me up sooner? and "What took you so long to get me?"  Investigators claim Thomas could have been caught years ago if Virginia permitted "familial DNA" testing, used to identify a suspect from a family member's DNA sample, because Thomas had a family member with a sample in a police database.  Familial DNA testing is barred in most states, though Virginia is now moving closer to allowing it.

Jurors Speak About Life Sentence for Cop Killer:  Jeremy Kohler of STL Today reports on two jurors who claim the life or death decision for convicted murderer Todd Shepard was roughly split early on in deliberations.  Shepard was convicted of shooting to death Missouri police Sergeant Michael King.  On the witness stand, Shepard told jurors he had no remorse for the killing and that he and some friends had talked for years about killing an officer to spark an anti-government revolution.  The jurors report that on Friday, they went home with a 10-2 vote in favor of a life term.  On Saturday, the two voters for a death sentence returned to court to vote for a life sentence, with one of the voters allegedly in tears as she switched.  In Missouri, if the jury cannot reach a unanimous sentencing verdict, the decision goes to the judge. 

News Scan

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Ohio to Execute with Single Drug:  Joanne Viviano of the Associated Press reports  that Ohio Governor John Kasich denied clemency on Friday for death row inmate Johnnie Baston, 37, who is scheduled to die this Thursday for the killing of a South Korean immigrant.  If carried out according to plan, Baston will be the first inmate executed in the U.S. with a single dose of the surgical sedative pentobarbital. 

Bill Introduced to Secure Death Penalty for Cop Killers:  Ashley Tarr of the Bedford-Katonah Patch reports that dozens of local law enforcement officers showed their support on Friday for a bill introduced by New York Senator Greg Ball that would reinstate the death penalty for individuals convicted of killing on-duty police, peace, or corrections officers.  A 2004 ruling from the New York Court of Appeals currently prevents prosecutors from seeking capital punishment in these cases.  Since that ruling, eight police officers have been murdered in the state.  Senator Ball states, "If it saves one life as an act of deterrence, and there's no doubt that it will as it has in other states, we will have done our job, not only as a legislature but as a community."

Supreme Court Rules on Inmate Access to DNA Testing:  Michael Graczyx of the Associated Press reports on today's 6-3 Supreme Court opinion allowing Texas death row inmate Hank Skinner to seek DNA testing via a federal civil rights complaint.  Skinner was convicted of killing his girlfriend and her two sons on New Years eve in 1993.  Police found Skinner hiding in a closet a few blocks away from the murder scene, splattered with blood of at least two victims and with a trail of blood leading from the bodies to the closet.  Skinner and his lawyers nevertheless claimed that untested evidence, including fingernail clippings from his girlfriend and two knives found in the house, could exonerate him.  Importantly, the court's ruling today does not hold that Skinner and other inmates have an automatic right to DNA testing, but only that such claims may be filed under the federal civil rights statute.

Capital Punishment in Connecticut:  Bill Kiner has this piece on outlining the competing arguments emerging in the Connecticut Legislature over the attempt to repeal capital punishment in the state.  The issue is proving especially controversial in Connecticut right now in light of the upcoming trial against the second alleged perpetrator of the Petit family murders.     

Gitmo Trials and Detentions

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Here is an excerpt from Evan Perez's report in the WSJ, noted in Bill's post:

The White House laid out its legal strategy Monday to indefinitely detain Guantanamo Bay prisoners who can't be tried but are too dangerous to be freed.
President Barack Obama issued an executive order to conduct periodic reviews of the cases of nearly 50 detainees who will be held under "the law of war" at the base in Cuba.
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The news came in tandem with an administration announcement of plans to conduct new military tribunals at Guantanamo. Defense Secretary Robert Gates rescinded a 2009 order that had frozen the filing of new charges against detainees imprisoned at the U.S. Naval base there.

Among the likely new trials expected is that of Abd al-Rahim al-Nashiri, the accused plotter of the 2000 bombing of the USS Cole in Yemen, U.S. officials said.
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In Monday's announcements, the administration remained silent on the most prominent prisoners at Guantanamo, those accused of plotting the Sept. 11, 2001, terrorist attacks.

In November 2009, Attorney General Eric Holder announced civilian criminal trials in New York City for Khalid Sheikh Mohammed and other alleged 9/11 plotters.

So, we have a step in the right direction, but KSM needs to be brought to trial.  The trial should be by military commission, but if it is to be a civilian trial, Congress must first repeal the single-juror-veto rule for the federal death penalty.  A life sentence imposed by a single juror over the objection of the other 11 was bad enough in Moussaoui's case, but it would be intolerable for KSM.

Anything less than death for KSM is failure, and failure, Mr. Holder assures us, is not an option.

Military Tribunals to Resume at Gitmo

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The Wall Street Journal reports that President Obama has decided to resume military tribunals at Gitmo.  Some of us might ask what took him so long  --  indeed, some of us did ask, more than a year ago  --  but better late than never, I suppose.

Of course the devil is in the details, and the important question remains whether the specific rules for these tribunals are designed to admit all truthful and relevant evidence  --  which is, of course, the surest path to saving American lives. 

Death Row Organ Donation

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The NYT has this op-ed by Oregon death row "volunteer" Christian Longo.  He writes that he has not only decided to drop his appeals but also wishes to donate his organs, but the prison authorities won't let him.

One reason is that the three-drug protocol presently prescribed in Oregon spoils the organ.  That is one more reason to switch to the one-drug protocol presently in use in Ohio and Washington.  The other objections that Longo discusses strike me as insubstantial.

Update: See follow-up post here.

Be Careful What You Ask For

Getting regular folks involved in sentencing, rather than leaving the sentence entirely to the judge, is better for defendants, right?  One might think so, given the defense bar's push to expand Apprendi as far and wide as they can.

But then again maybe not.  Kyodo News Service reports on a study from Japan regarding their innovation of "lay judges":

Lay judges tend to impose tougher sentences than professional judges on defendants who have committed sex crimes or inflicted injuries resulting in death, a comparative study of court rulings before and after the 2009 introduction of citizen judge panels showed Saturday.

Regardless of the nature of the crime, lay judges also handed down more suspended sentences than professional judges, while fewer appeals have been filed against their decisions, the research shows.
I have also been told anecdotally that prosecutors in Arizona found it easier to get death sentences after the post-Ring legislation made the jury rather than the judge the primary decider of sentence.

Monday SCOTUS Orders

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The US Supreme Court's Monday orders list is here.

One civil case was taken up: Golan v. Holder, regarding copyrights.  Kind of odd for the AG to be the respondent in a copyright case.  The second respondent is the head of the Copyright Office, which makes more sense.

Cases turned down:

Idaho v. Shackelford, No. 10-589, involving a state supreme court's stretch of Ring v. Arizona, was turned down.  That's not terribly surprising, as the decision was intertwined with state law.

Missouri v. Garcia, 10-718, involving fugitives and speedy trial.

Brown v. Valdivia, No. 10-848, on parole hearings and confrontation.  Not at issue in this petition was another point on consent decrees and changes in state law.  The state prevailed in the Ninth Circuit on that point, with some help from CJLF's amicus brief.

Three cases on bribery:  Rast v. United States, Pugh v. United States, and McNair v. United States.

No action (apparently relisted):

Maples v. Thomas (formerly Allen), on procedural default and lawyers who don't notify the court of change of address.

Felkner v. Jackson, on Batson peremptory challenge issues.

And last but not least:

It is ordered that Christine Luchok Fallon be appointed Reporter of Decisions of this Court to succeed Frank D. Wagner, effective March 3, 2011, and she is charged with the duty of reporting the decisions of the present Term which have not been reported prior to March 3, 2011.
Congratulations to Ms. Fallon.

Update:  John Elwood discusses the relists at SCOTUSblog and Volokh Conspiracy.  He opines the Felkner "may be under consideration for summary reversal."

DNA Testing Under Section 1983

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The Supreme Court today allowed the use of civil rights actions under 42 U.S.C. §1983 for postconviction DNA testing.  The opinion in Skinner v. Switzer, No. 09-9000, is here (6-3: Ginsburg, Roberts, Scalia, Breyer, Sotomayor, Kagan; dissent Thomas, Kennedy, Alito).
A motion to reduce sentence under Rhode Island Rule of Criminal Procedure 35 (similar to the federal rule) is "collateral review" and tolls the limitations period for filing a federal habeas petition under 28 U.S.C. §2244(d)(2).  The Supreme Court opinion in Wall v. Kholi, No. 09-868, is here.  Opinion by Justice Alito.  No dissents.  Justice Scalia does not join one footnote reserving the question of whether a Rule 35 motion can be "direct review."

More on Brain Scans

| No Comments has this article by Clara Moskowitz on brain scans and correlations with criminality.  Fortunately, they also have this piece by Arthur Caplan of the Center for Bioethics at the University of Pennsylvania cautioning that our knowledge remains much too limited to form a basis for a change in policy.

This last week I was invited to participate in a debate hosted by the University of Hawaii Law School chapter of the Federalist Society.  The topic was whether terror suspects should be given Miranda warnings.  I had the privilege of squaring off with an exceptional opponent, Lt. Colonel Dan Mori, a JAG Corps attorney who has seen service in both Iraq and Afghanistan, and who has represented a Gitmo detainee.

Unlike my drug legalization debate with Professor Doug Berman at Ohio State, the Hawaii event was not videotaped.  For those who might be interested, I set forth below my opening statement, explaining why Miranda is a regimen for a different, less deadly age.

Indictment in the Tucson Shooting

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Tamara Audi reports in the WSJ:

A federal grand jury indicted Jared Loughner on new charges, including the murder of two U.S. employees and four others, in the Jan. 8 mass shooting outside Tucson, Ariz., that left a federal judge dead and a congresswoman gravely injured.

The 49-count indictment, which was unsealed Friday, supersedes an earlier indictment that didn't include murder charges. The new charges against Mr. Loughner, 22 years old, could carry the death penalty. U.S. prosecutors said they were still weighing whether to seek the death penalty.
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Under an agreement with federal prosecutors, county attorneys in Pima County, where the shooting occurred, will pursue state charges against Mr. Loughner when the federal case is complete.

President Obama has re-nominated radical Berkeley law professor Goodwin Liu for the already out-to-sea Ninth Circuit.  Kent, I and many others supporting resolute law enforcement have expressed more than a little doubt abourt Liu.

Perhaps we should take another look.  Part of the punishment that can (and ought more often) be ordered at sentencing is restitution to the victim.  It turns out that Prof. Liu has spoken out strongly in favor of restitution.

Of course there's a catch, as there almost always is with Obama's nominees.  Prof. Liu doesn't require that the "victim" receiving the goodies actually be a victim; being the great grandson or something is close enough.   Nor does he require that the person forced to provide the goodies be convicted of anything  --  or, for that matter, be responsible for anything.

Nope.  Liu's criterion for being ordered to pay restitution has nothing to do with an individual's behavior at all.  It has to do with being white. 

Your Taxpayer Euros at Work

Nile Gardiner writes in the London Telegraph:

Why on earth are British taxpayers being forced to fund European Union lobbying for policy campaigns in the United States? Furthermore, why is the EU directly interfering in domestic political debates in America, and so far without Congressional oversight? As the research detailed below demonstrates, the EU's European Instrument for Democracy and Human Rights (EIDHR) is spending millions of Euros on US-based campaigns against the death penalty. An extraordinary development.

The International Covenant on Civil and Political Rights, to which the United States and all European countries are parties, permits the death penalty under certain conditions, all of which the United States complies with.  The Europeans have agreed among themselves not to have the death penalty, but their agreement with us (and a lot of other countries) permits it, so our having it is not legitimately any of their business.

But why shouldn't the taxpayers of Europe pay for advocacy on a subject that is none of Europe's business.  It's not like they have any financial problems over there, do they?

News Scan

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Death Penalty Upheld for Convicted Murderer on Third Try:  Lawrence Buser of The Commercial Appeal (TN) reports the Tennessee Supreme Court yesterday upheld the death sentence of Richard Odom, who was convicted of the 1991 rape and stabbing murder of 77-year-old Mina Ethyl Johnson.  Odom has been sentenced to death by three different juries, but the case has always been overturned on appeal.  In 1992, the state's high court overturned his death sentence after finding the murder did not meet the legal definition of heinous, atrocious and cruel.  In 2004, after another jury verdict, the same court overturned his second death sentence after finding that prosecutors should not have been allowed to give the jury graphic and violent details of a prior murder by Odom.  In 2007, Odom was sentenced to death for the third time, a sentence that was upheld yesterday.

Nevada Supreme Court Rejects Pleas from Two Murderers:  Cy Ryan of the Las Vegas Sun reports the Nevada Supreme Court yesterday affirmed the first-degree murder conviction of Robert Lamb, sentenced to two consecutive life terms without parole for shooting to death his younger sister in 2004.  Prosecutors alleged Lamb shot Susan Bivans eight times in a school parking lot, angry because he had been left out of his father's will.  The Nevada Supreme Court yesterday also denied the petition of death row inmate Robert Ybarra Jr., who claimed he was mentally ill and could not be executed.  Ybarra was sentenced to death in 1981 for the murder of his girlfriend Nancy Griffin, 16, whom he raped and set on fire in the Nevada desert.  Griffin was discovered wandering naked in the desert and was able to identify Ybarra as the perpetrator before she died a day later.

Bill Introduced to Abolish Death Penalty in Florida:  Jennifer Hancock of the Examiner reports Florida House Representative Michelle Rehwinkel introduced a bill yesterday to eliminate the death penalty in Florida, claiming it will save the state $50 million per year in taxpayers' money.  The bill is not expected to pass.  Harping on the alleged annual savings, Hancock writes the people of Florida "should be actively considering whether they would rather kill people or have teachers." 

Governor Quinn Still Deciding on Bill to Abolish Death Penalty:  Deanna Bellandi of the Associated Press reports on Illinois Governor Pat Quinn's upcoming decision to abolish the death penalty in the state.  A moratorium on capital punishment in Illinois has been in effect for 11 years, though the state currently has 15 inmates on its death row.   Governor Quinn claims his decision will rest on his conscience, but the article notes various other factors that may weigh on his decision, including alienation of the African American community or the support of those legislators who voted for the abolition bill.  Steve Huntley has this column in the Chicago Sun-Times, opining that any alleged flaws with the capital punishment system do not warrant protecting those convicted of brutal murders to receive the "fate [they] earned." 

Obama Toughens Up, Uses Beanbags


I have often questioned this Administration's seriousness in fighting crime.  It happily went along with the Crack Dealers Relief Act (formally known as the Fair Sentencing Act); it appointed an Attorney General who gushes all over himself seeking the approval of the defense bar but can't decide where, or whether, to try terror mastermind KSM; and we have a DOJ that looks the other way at club-wielding thugs menacing a polling station.

This story, however, reaches the point of low comedy.  Frankly, it sounds so bizarre that I have trouble believing it.  But so far as I have been able to discover, the Administration does not deny it.

The story is, in short, that we are fighting the war on illegal immigration at the border, and its intimately related massive drug smuggling, with beanbags.  Not too surprisingly, the opposition is not returning the favor, and is using guns.  One of them killed a federal agent.  If this has inspired any re-thinking of the Administration's policy, however, I haven't been able to discover that either.

Why a terrorist, or even a cat burglar, would take this crew seriously remains a mystery.

New AEDPA Opt-In Regs Published

When Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, the primary feature was supposed to be a reform that promised states a rapid and efficient trip through federal review if only they provided adequate counsel for state collateral review, which most states did at the time anyway.  That reform was spiked by hostile federal courts who did not want to be subject to the time limits and gave the statute a cramped construction to avoid implementing it.

In the Patriot Act reauthorization bill, Congress took the decision of whether a state qualified away from the federal habeas courts, with their conflict of interest, and gave it to the US Attorney General with de novo review by the US Court of Appeals for the District of Columbia Circuit, the one circuit that does not do state-prisoner habeas.

The act also provided for the Attorney General to promulgate regulations to implement the mechanics for certifying whether a state qualified, which was supposed to be a quick process.  Inexplicably, the Bush Administration Justice Department dragged its feet and did not publish final regulations until the end of the Administration.

The California Habeas Corpus Resource Center then commenced litigation to block the regulations, something it is not authorized to do under the statute creating it, and filed in a federal district court that would be subject to the time limits, a court Congress intended to cut out of this process due to its conflict of interest.  The Obama Administration Department of Justice failed to fight this blatant violation of the intent of Congress.

On top of all that, the Obama DoJ rescinded the already long overdue regulations and announced an intent to replace them.  Many supporters of justice, myself included, feared the worst.

Litigating Drug Abuse Programs

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In-prison drug abuse programs are something that many people think we need more of.  However, given prisoners' propensity to file lawsuits over every microscopic detail of life within prison, does having a program include not only the cost of the program but also the cost of litigating every prisoner gripe about it?  Maybe not, even in the Ninth Circuit.  Today, that court held in Reeb v. Thomas,

This case requires us to decide whether a district court has subject matter jurisdiction to review the Bureau of Prisons' ("BOP") individualized residential drug abuse program ("RDAP") determinations, a question of first impression in this Circuit....  Because we hold that 18 U.S.C. § 3625 precludes judicial review under the Administrative Procedure Act ("APA") of the BOP's individualized RDAP determinations made pursuant to 18 U.S.C. § 3621, we vacate and remand to the district court.
Reeb's specific gripe, BTW, was, "After exhibiting disruptive behavior in group counseling sessions on several occasions, Reeb was expelled from RDAP on April 2, 2008."

This is only a panel decision, though, so the en banc Ninth Circuit can still impose a litigation burden on the program.

News Scan

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1991 'Batgirl' Murderer Due a Parole Hearing:  Michelle Cummiskey (dubbed "Batgirl"), sentenced to 25 years to life in prison plus one additional year for extreme violence for the 1991 slaying of Sacramento man Philip Inhofer, is due for a parole hearing this month.  Cummiskey, a former prostitute at the Mustang Ranch brothel outside Reno, stabbed Inhofer 32 times, bludgeoned him with a blunt object, stuffed his body into the closet of his mobile home, and stole his Mercedes.  Investigators gave Cumminskey the nickname "Batgirl" because of a tattoo of bats on her arm and a tattoo of a vampire bite with blood droplets on her neck.  Cummiskey's parole hearing will be held on March 10 at the Valley State Prison for Women in Chowchilla, California.  Bill Enfield of the Sacramento Bee has this story.

Police Body Cameras Prove to be Effective in Minnesota:  Caroline Lowe of CBS Minnesota has this story on the Burnsville Police Department in Minnesota,  the first law enforcement agency in the state to utilize body cameras.  The officers like the video tool, typically worn on their hat or headband, claiming it helps capture a better image of what is going on when they are out on the streets.  Officers also say the technology has helped clear allegations of police misconduct within minutes, instead of several weeks.  According to Officer Shaun Anselment, "We are able to get the true emotions at the scene.  We are able to see what officers did, what suspects did."  Since the department started using body cameras, they no longer use the more expensive dash cams. Several other Minnesota police agencies, including the Minnesota State Patrol, and the Burnsville Fire Department are looking to get their crews equipped with the cameras. 

Parole Denied for Sirhan Sirhan:
  In follow up of yesterday's post, Robert F. Kennedy's assassin was denied parole Wednesday.  The California panel's decision was based on Sirhan's failure to understand the "magnitude" of his crimes.  Commissioner Mike Prizmich of the California Board of Parole Hearings noted Sirhan failed to participate in self-help programs and demonstrated immature behavior.  The parole board was also disturbed by Sirhan's mischaracterization of the injuries of the five other people he shot 1968 as "flesh wounds," when in fact they were much more serious.  Wednesday marked Sirhan's 14th parole hearing.  He will be eligible for parole again in five years.  Michael Martinez of CNN has this story.

Judge Overrides Jury Recommendation and Sentences Murderer to Death:   An Alabama judge yesterday overruled a unanimous jury recommendation of life without parole, instead imposing a sentence of death for convicted murderer Courtney Lockhart, reports Bob Johnson of the AP.  Lockhart was convicted last year of killing Auburn University freshman Lauren Burk, whom he abducted at gunpoint, forced to disrobe, and shot in the back as she tried to escape his car.  While imposing the sentence, Judge Walker noted that Lockhart had been suspected in five robberies in Alabama around the time of the murder, but that jurors had not heard this evidence during trial.
The Supreme Court heard argument today in Bullcoming v. New Mexico (case no. 09-10876), a sequel to the 2009 case Melendez-Diaz v. Massachusetts.

Like Melendez-Diaz, this case concerned the admissibility of lab reports in light of a criminal defendant's Sixth Amendment right to confront his or her accusers.  More specifically, the issue here was whether a defendant's opportunity to cross examine an analyst from the lab that prepared the report, rather than the analyst who personally prepared the report, satisfied this constitutional right.

Liu Hearing Today

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The Senate Judiciary Committee's second hearing on the nomination of Goodwin Liu, to push the Ninth Circuit even further out of the mainstream than it already is, will begin at 2:45 ET (11:45 PT) today.  A live webcast is available on the committee site.

David Ingram at BLT has this post, noting that one of the new members of the committee is Senator Mike Lee of Utah.  Lee is a former law clerk to Justice Alito, whom Liu said was too far out of the mainstream to be confirmed.  I expect he will be keenly aware that Liu is further from the mainstream than Alito and therefore should not be confirmed if judged by his own standard.

Update:  David Ingram has this post-hearing post at BLT.  Liu disavowed the rhetorically problematic last paragraph of his testimony against Alito.  However, it does not appear from the post or from the portion of the hearing that I was able to watch today that he disavowed the substance of his attack, which is the bigger problem.  See prior posts here and here.

News Scan

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Robert F. Kennedy's Assassin Faces Parole Board:  CNN reporter Michael Martinez reports that Sirhan Sirhan, the convicted assassin of Robert F. Kennedy, will appear before a parole board in the Pleasant Valley State Prison in Coalinga, California today for the first time in nine years.  Sirhan will be supported by two psychologists and one of the surviving shooting victims in the 1968 assassination, William Weisel.  The chances of Sirhan being released are slim, according to LA County Deputy District Attorney David Dahle.  Sirhan, 66, is serving a life sentence and roughly ten percent of California's life-sentenced convicts are granted parole.

Proposed Bill Would Make TSA Screening Agents Possible Sex Offenders:
  With the public outrage towards enhanced airport security measures, a proposed bill sponsored by Rep. George Lambert, R-Litchfield has been introduced to the House Criminal Justice and Public Safety Committee in Concord, New Hampshire.  HB 628 would make the touching or viewing of a person's breasts or genitals by a government security agent a sexual assault.  The bill would also require Transportation Security Administration agents convicted of sexual assault to register as tier 3 sex offenders.  A petition has been presented to the committee along with 145 signatures supporting the bill.  The committee has yet to make an immediate recommendation on the bill.  Garry Rayno of the New Hampshire Union Leader has this story.  The story does not discuss the obvious federalism issues of a state legislature trying to regulate the conduct of federal officers.

Prosecutor May Seek Death Penalty Quickly in Prison Killing:  Seattle Times staff writer Jennifer Sullivan reports on Snohomish County Prosecutor Mark Roe's decision to act quickly in deciding whether to seek the death penalty against prison inmate Byron Scherf, who is accused of killing corrections officer Jayme Biendi in January.  In the State of Washington, once a defendant is charged with aggravated first-degree murder in superior court, prosecutors have 30 days from the arraignment to decide whether to seek the death penalty.  Roe has hinted that he may not wait the entire 30 days.  "This is a somewhat unique situation in that the suspect has been a prison inmate for a good part of his adult life.  Many records already exist," Roe said.  More on Byron Scherf's criminal record can be found here.

Supreme Court Decisions

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The US Supreme Court today decided Pepper v. United States and Snyder v. Phelps.

The particular issue in Pepper is whether, when a case comes back to the trial court after a successful appeal, the judge can consider in sentencing evidence of the defendant's rehabilitation while the case was on appeal.  The Court says yes, to no one's surprise.  The more interesting aspect of the case is in the discussions about guideline sentencing versus discretionary sentencing more generally.  From Justice Alito's separate opinion:

Some language in today's opinion reads like a paean to that old regime, and I fear that it may be interpreted as sanctioning a move back toward the system that prevailed prior to 1984. If that occurs, I suspect that the day will come when the irrationality of that system is once again seen, and perhaps then the entire Booker line of cases will be reexamined.
Congress really needs clean up the mess from Booker.

Snyder involves a common-law infliction of emotional distress suit against the repugnant Phelpsians and their bizarre practice of staging protests at military funerals.  The suit in this case was based on the content of speech and therefore violated the First Amendment.  However,

Maryland now has a law imposing restrictions on funeral picketing, ... as do 43 other States and the Federal Government... To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland's law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.

Defining Depraved

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Legal scholars spend lots of time debating the definition and applicability of the various culpable mental states.  There's even an intriguing new paper out that suggests the influential Model Penal Code formulations might be wrong. But sometimes what constitutes depravity is just so obvious:

In 1986, appellant Paulos, f/k/a Paul Lindberg, was convicted of second-degree murder for strangling a woman to death after a sexual encounter. State v. Lindberg, 408 N.W.2d 589, 591-92 (Minn.App.1987). After killing the woman, Paulos put a cigarette lighter in her rectum and her keys in her vagina. Id. at 591. He spray painted her body green, wrapped her body in a rug, placed her body in his car, drove to a parking lot, and dumped her body beneath two trailers parked in the lot.

Paulos v. Ludeman, 2011 WL 691863 (Minn.App., 2011) 

For reasons that are unclear in the opinion, Paulos didn't serve a long prison term for this heinous crime and the state had him civilly committed 1997.  Seeking release in 2009, Paulos claimed that he posed little risk to society.  The judicial appeal panel didn't agree and neither did the Court of Appeals of Minnesota.

George Cullins, R.I.P.

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Major George Cullins, USMC (Ret.) died today of complications following an auto accident.

Major Cullins' daughter Janette was murdered on April 12, 1984.  Trial and appeal for the perpetrator took two decades.  See 36 Cal.4th 1215 (2005).  Major Cullins became a tireless campaigner against the atrocious delays in capital cases. 

Regrettably, he did not live to see justice carried out in his daughter's case.  It remains mired in habeas corpus.  This is a sad day for the cause of justice.

Time Limits and Jurisdiction

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The US Supreme Court issued three opinions today, all in civil cases.  Henderson v. Shinseki is a veteran benefit case involving the question of when a filing deadline will be considered jurisdictional, an issue that comes up in criminal appeals and habeas cases.

Because the consequences that attach to the jurisdictional label may be so drastic, we have tried in recent cases to bring some discipline to the use of this term. We have urged that a rule should not be referred to as jurisdictional unless it governs a court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction. Reed Elsevier, supra, at ___ (slip op., at 6); Kontrick, supra, at 455. Other rules, even if important and mandatory, we have said, should not be given the jurisdictional brand. See Union Pacific, 558 U. S., at ___ (slip op., at 12).

News Scan

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Plea Deal Possible in California Girl's Abduction Case:  Lisa Leff of the Associated Press reports defense attorneys are discussing plea deals for Nancy Garrido and her husband Phillip Garrido, accused of holding 11-year-old Jaycee Dugard captive for almost two decades in their Antioch home.  After initial doubts about Phillip Garrido's mental state, a judge last month declared him competent to stand trial, paving the way for the possibility of a plea deal.  Nancy's defense attorney claims the couple provided "full confessions" to the kidnapping during a recent interview, but neither Phillip's lawyer nor prosecutors would confirm this.

Life in Prison for Man Who Tortured California Teen:  Terry Collins of the Associated Press reports Anthony Waiters, 31, was sentenced Monday to three life sentences for torturing teen Kyle Ramirez and holding him captive in a Tracy home for more than a year.  Ramirez testified that Waiters' acts of cruelty included lighting the teen's pants on fire, and cutting his arm and pouring bleach on the wound.  Three of Waiters' co-defendants are serving at least 30 years in prison after accepting plea deals.  At his sentencing, Waiters refused to concede guilt, stating "I'm not a malevolent person.  I believe I'm altruistic." 

Execution Date set for Killer:  The Vindicator (OH) reports the Ohio Supreme Court set a January 2012 execution date for Charles Lorraine.  Lorraine was sentenced to death in 1986 for stabbing to death Raymond Montgomery, 77, and his bedridden wife Doris Montgomery, 80, with a butcher knife.       

Former Governor Explains His Clemency Decision:  Natasha Korecki and Dave McKinney of the Chicago Sun Times report imprisoned former Illinois Governor George Ryan explained during a recent deposition his 2003 decision to clear out the state's death row.  Ryan at one point admitted to spending as little as ten minutes on petitions, but at another point claimed he spent hours thinking about the cases.  He referred specifically to a case involving a former high school classmate's son, who was on death row for shooting a police officer.  When bumping into his former classmate at a meeting, the classmate asked: "Are you going to kill my son?"  Ryan claimed this confrontation had a "big impact" on his decision. 

Eric Holder on Black Panther Case:  Attorney General Eric Holder showed some frustration today at the response to the DOJ's handling of the Black Panther voter intimidation case, reports Josh Gerstein at  At a House subcommittee meeting, Holder allegedly took issue with the comparison of the Black Panthers' actions to those directed against blacks during the civil rights movement, stating:  "When you compare what people endured in the South in the 60s to try to get the right to vote for African Americans, to compare what people subjected to that with what happened in Philadelphia, which was describe it in those terms I think does a great disservice to people who put their lives on the line for my people."

Bryant Coverage

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Yesterday's US Supreme Court decision in Michigan v. Bryant is covered by Todd Spangler in the Detroit Free Press, Adam Liptak in the NYT, Robert Barnes in the WaPo,  Ashby Jones at WSJ Law Blog, and Warren Richey in the Christian Science Monitor.

The NYT story has an error that involves one of my pet peeves.

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