April 2011 Archives

NYT Ed. Makes Up Its Own "Facts"

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"Everyone is entitled to his own opinion," Daniel Patrick Moynihan famously said, "but not his own facts."  The editorial writers of the New York Times didn't get the memo.  They regularly lard their editorials with misstatements of fact.  The downward spiral of the newspaper once considered the "newspaper of record" continues with this editorial on the Connecticut death penalty repeal bill.  Near the end is this whopper:

But the facts are undeniable. The death penalty does not deter crime and the long history of legal abuses is well documented.
No need to mince words here.  To state that it is an "undeniable" fact that the death penalty does not deter is a bald-faced lie. 

The academic debate continues.  There have been multiple studies showing a deterrent effect.  There have been a few criticisms of those studies.  The authors have responded to the criticisms.  Our list of abstracts is here.  If the Times finds one side of the debate more convincing than the other and wants to say so, fine.  To say that there is no debate and one position is undeniable fact is simply, obviously, outrageously false.

The comment about a "long history of legal abuses" is sufficiently vague that I can't say that is a lie, just bad writing.  If they are referring to the abuses that occurred in Chicago, that is true but of marginal relevance.  If they mean that the overlong review process is an abuse of the victims' families, that is true but fixable.  If they mean to imply there is a "long history of legal abuses" in Connecticut, that would be false, as our report last Thursday showed.

The main point of the editorial is to promote the view of some murder victims' families that the long review process in capital cases constitutes revictimization, and it would be better to just do away with it.  I certainly understand that point of view, but I do not concede that the length of review problem is unfixable.  We are close to finally implementing the federal fast track promised in 1996, and states can fix the delay in their own systems.

News Scan

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FBI Poorly Equipped for Cyber Crime:  Pete Yost of the Associated Press reports on the Justice Department's Inspector General's report finding that about a third of FBI agents lack the networking and counter intelligence skills to investigate cyber crimes.  Senator Susan Collins stated, that the need for a strong cyber security work force in the federal government "is more urgent than ever".  The report suggested that to improve the ability to stop cyber attacks their needs to be better information sharing between the FBI and other law enforcement officials on the National Cyber Investigative Joint Task Force.  The report said that some representatives on the task force were often asked to leave meetings that focused on cyber threats due to a need-to-know policy, even though the task force was created to share information.

Drug Smugglers Using Aircraft to Cross Tighter U.S. Borders:  Elliot Spagat and Amanda Lee Myers of the Associated Press report that drug smugglers are using low-flying aircraft to circumvent new fences along the U.S/Mexico border.  The pilots are flying into the U.S. without landing and are dropping aluminum bins filled with about 200 pounds of marijuana for drivers who are waiting on the ground with blinking lights or glow-sticks.  The Customs and Border Protection agency counted 228 incursions by ultralights along the Mexican border in 2010, up from 118 a year earlier.

Governor Brown Excels at Paroling Murderers:  David Siders of The Sacramento Bee reports Governor Jerry Brown is letting convicted killers leave prison on parole at a far higher rate than previous governors.  Brown has let about 106 out of 130 convicted killers' parole releases stand, about 82 percent, compared to former Governor Arnold Schwarzenegger who let about 27 percent stand.  Former Governor Gray Davis only let 9 out of 374 paroled killers out of prison.  Davis stated, "I see no reason to parole people who have committed an act of murder."  Brown spokesperson Elizabeth Ashford said the Governor is basing his parole decisions on public safety concerns and a 2008 Supreme Court decision that a governor cannot deny parole based only on the prisoner's crime, but also needs evidence that the prisoner is still a danger to the public.  Christine Ward, director of the Crime Victims Action Alliance, stated, "The larger number does cause us concern, and we will be investigating" when referring to Browns parole decisions.

Court Rejects Death Sentence Appeal:  Jamie Satterfield of the Knoxville News Sentinel reports that murderer Christa Gail Pike's death sentence appeal has been rejected by a Tennessee appeals court.  Appellate Judge John Everett Williams said Pike had failed to show her defense team was inadequate during her 1996 trial or to persuade the court to exempt 18-year-olds with mental health problems from a death sentence.  Pike was involved in a love triangle with Colleen Slemmer and 17-year-old Shadolla Peterson.  Pike, along with Tadaryl Shipp and Peterson lured Slemmer to a secluded area at the University of Tennessee campus.  Slemmer was beaten, sliced with a box cutter and meat cleaver and bludgeoned to death with a rock.  Shipp, who was under the age of 18, is serving a life sentence and Peterson was given probation.  Pike's defense team had tried to persuade the appellate court to create a new class of killers, 18-year-olds with a history of mental illness, who should be exempt from the death penalty.  Juries are already allowed to consider a killer's youth and mental status in deciding whether to impose the death penalty.   


Report on Connecticut Death Penalty

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CJLF has released a report examining the death penalty in Connecticut and the claims made by those proposing repeal. The report finds that capital cases in Connecticut are remarkably free of the problems that prompted repeal in Illinois. The report also addresses claims that death penalty prosecutions in the state are racially biased and that repeal of the death penalty would result in substantial savings of tax dollars. Both claims are found to be unsupported by solid evidence.

Press release is here.

News Scan

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LAPD Finally Analyzes All 6,132 Untested DNA Rape Kits:  The Los Angeles Police Department announced it has finally cleared its decade-long 6,000 rape kit DNA backlog.  The evidence sat untouched in LAPD storage freezers for years as the department's understaffed lab fell way behind.  The backlog was cleared after police officials gathered several million dollars in federal grants, public funds, and private donations to cover the costs of outsourcing the DNA testing to private labs.  The testing revealed 1,000 matches between DNA profiles found in the rape kits and those stored in the databases.  However, in several of the cases, the person identified by the DNA match had already been convicted.  The LAPD's lab has doubled in size to 78 people and city officials would like to add another 20 to handle almost all of the department's DNA testing.  "Today, we pledge to never let justice wait like this again," Mayor Antonio Villaraigosa said at a City Hall news conference with LAPD Chief Charlie Beck and other elected officials. "For every sexual assault evidence kit, there is an individual -- a mother, a daughter, a friend -- who rightfully deserves justice. We recognize that there is still a lot of work to accomplish."  Joel Rubin of the Los Angeles Times has this story.

Inmates Sue Over Race-Based Prison Lockdowns:
  Several attorneys representing inmates in a class-action lawsuit say California's use of race as a basis for locking prisoners in their cells after fights leads to illegal discrimination and should be banned.  The non-profit Prison Law Office said in its lawsuit that the California Department of Corrections and Rehabilitation unfairly punishes inmates simply because they have the same color skin as those involved in the violence.  A spokeswoman for the CDCR, Terry Thornton, said lockdowns are necessary to protect the safety and security of inmates and staff and that it's not the department's policy to base lockdowns solely on race or ethnicity.  However, a proposed revision to the department's lockdown policy acknowledges that inmates often organize themselves based on race and some inmates who are uninvolved may be affected, but its the department's goal to get them back to a normal routine as quickly as possible.  In 2005, the U.S. Supreme Court rejected a similar argument and told the state to end its policy on housing-inmates based on their race because such race-based policies encourages violence.  The AP has this story.

Alleged Serial Killer Wants to Defend Himself:  San Francisco Chronicle Staff Writer Justin Berton reports the 77-year-old man charged with murdering four Northern California women over 17 years told a Marin County judge Wednesday that he wants to serve as his own defense attorney.  Joseph Naso told Superior Court Judge Andrew Sweet, "I have a lot of experience representing myself during proceedings...and I've done well-I've prevailed," referring to lawsuits he had contested and a court battle over the guardianship of one of his sons.  Naso was scheduled to enter a plea Wednesday but after he was told he was ineligible for public assistance because his assets amounted to nearly one million dollars, Naso spent the morning arguing to represent himself.  Judge Sweet gave Naso a seven-page document to test his knowledge on legal terms and courtroom rules.  He also told Naso that once he chooses to represent himself, he cannot hire a private attorney in midtrial.  Naso asked, "Why not?"  "This is a good example of why you don't understand the law," Sweet fired back.  "And I'm not going to explain it to you."  Sweet is scheduled to rule on Naso's request Thursday.

A "Terror Gap" in Our Nation's Gun Laws:
  Federal law permitted more than 200 people with suspected ties to terrorism to buy firearms in 2010.  The 247 people even went through background checks upon purchasing their firearms.  Roughly the same number of people with suspected ties to terrorism successfully purchased guns in 2009 as well.  New Jersey Democratic Sen. Frank Lautenberg is trying to change the law to keep weapons from being sold to alleged terrorists.  The terror watch list's secrecy has made it difficult to close what Lautenberg calls a "terror gap" in our nation's gun laws.  AP writer Eileen Sullivan has this story.

They Really Are Crazy

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It is sometimes said that, since the United States successfully deterred the Soviet Union with the threat of nuclear annihilation in retaliation for an attack, we can do the same to avert mass murder by al Qaeda terrorists.  Hence no need for an aggressive, forward-looking strategy to defeat them.

This overlooks the fact that the Soviet Union had a fixed address and al Qaeda doesn't.  More importantly, it overlooks the fact that the Soviet Union was an imperialist state, while al Qaeda is, apparently to a significant degree, a radical and primitive religious movement bent on death to "infidels," defined as non-Muslims.  As more than one al Qaeda adherent has said, they embrace death and martyrdom.  This makes deterrence a mite problematic.

I have been more than a little skeptical that these people really embrace death, having noticed, among other things, that many of their suicide/murder bombers are teenaged or mentally challenged people at the lowest rung of the organization.  But the following article from the Telegraph gives me pause.  Maybe they really are out of their minds.  If so, deterrence  --  typically one of the central objectives of criminal punishment  --  is not going to work.  They will have to be destroyed.  

News Scan

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Parole Denied in Bizarre California Plane Murder:  A California state panel denied parole Tuesday for 62-year-old Lawrence Cowell, a southern California man convicted of murdering his childhood friend, Scott Campbell, for money then throwing his body out of an airplane into the Pacific Ocean.  Cowell admitted in the parole hearing that he was responsible for Campbell's death but wouldn't admit that he killed him.  District Attorney Tony Rackauckas said, "Instead of accepting responsibility for what he did and showing remorse, Cowell has continued to lie, shift the blame to others and assault innocent people each time he was briefly set free."  When Campbell was killed, Cowell was free on bail awaiting trial for driving drunk that caused a crash that killed his passenger.  While free on bail awaiting his murder trial, Cowell assaulted his father and bit the finger off of his mother's hand.  He was also convicted in 1985 for murder and conspiracy to commit murder and robbery, but had his conviction overturned on the grounds that evidence was improperly admitted.  The parole board ruled that Cowell can apply for parole again in five years.  In response to the board's decision, Campbell's mother said, "It's not about bringing Scotty back," she said of her son, who was 27 when he died. "We can't do that. But it's about protecting life. Now I know that for five years people will be safe from Cowell."  The San Francisco Chronicle has this story.

Study Shows Investment in Early Education Saves on Crime:
  Christopher Cadelago reports Southern California law enforcement officials have pointed to a study by bipartisan anti-crime organization Fight Crime: Invest in Kids to renew attention to greater federal investment in early childhood education programs.  The report revealed that early investment in education, such as preschool, could save more money down the line in reduced criminal justice and education costs.  The study showed that at-risk children were 43% less likely to be placed in special education during their K-12 schooling if they received early training.  The organization is looking for policymakers to support provisions in the federal Elementary and Secondary Education Act re-authorization that encourages states to implement early learning into the educational structure. "This report shows that investment in very professional, well-targeted early education programs pays off in the long run, especially in the criminal justice system," said San Diego County Sheriff Bill Gore. 

Michigan State Police Defend Use of High-Tech Devices:  Following up on Michigan's controversial high tech device that allows officers to search cell phones during traffic stops, Michigan State Police stand behind the technology and claim they are not abusing the public trust by improperly downloading smartphone data during traffic stops.  State police inspector Greg Zarotney appeared before the House Oversight Reform and Ethics Committee to discuss concerns about the devices.   Zarotney said the devices are not used during routine traffic stops and are only used as an investigative tool for major cases such as homicide and child exploitation-and only with a search warrant or with the phone owner's consent.  Michigan State Police officials continue to deny the ACLU requests for information showing how this device actually works.  House Oversight Reform and Ethics Committee members say they will likely recall Michigan State Police officials to answer more questions about how the agency actually uses the new technology. The Lansing State Journal his this story.

Representing Unpopular Causes

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The ABA's theme for Law Day, May 1, is representing unpopular causes.  This article by Ed Finkel in ABA Journal notes that theme features John Adams and his defense of the British soldiers tried for murder after the Boston Massacre.  Adams got acquittals for six and got two off with manslaughter rather than murder.  Under the odd and soon-to-be-scrapped sentencing law of the time, that meant the difference between light punishment and hanging.  See G. Dalzell, Benefit of Clergy in America 204 (1955).  (For a brief summary of this early sentencing law, see Part I of our brief in Ring v. Arizona.)

The article's dateline says it was posted May 1, 2011, but unless I have stumbled into a time warp that is not correct.

Representation of detainees at Guantanamo Bay is mentioned as the modern equivalent of Adams' stand.  The DOMA kerfuffle is not mentioned.
The American Bar Association has a series of upcoming webinars that look quite intriguing.  Topics include Memory and Lie Detection, Substance Dependence, Competency Issues, and Violence.  The presenters include numerous scholars, researchers, and policy makers, including Professor Nita Farahany who runs the excellent Law and Bioscience Digest blog.  Hopefully, the presenters will refrain from brain overclaim.

Meeting George Soros

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Billionaire George Soros is not exactly known as a friend of vigorous law enforcement, or of the United States for that matter.  Nonetheless, and believing that meeting the opposition is better than just sneering at them, tomorrow it seems I will have the opportunity to ask Mr. Soros a question or two.  This is because I've been invited to the Cato Institute's book forum on "The Constitution of Liberty" by F. A. Hayek.  Also in on the forum will be the brilliant Professor Richard Epstein of NYU.

I've spent all day wondering what I should ask Mr. Soros, and if anyone has an idea, I'm all ears.

Whopper of the Day

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From Ms. Rehab herself, Ms. Lindsay Lohan:  "I'm gonna do what I'm told to do."

Don't believe me?  Hey, it's on tape.

I know, I know.  The Lohan story is a cheap trick at this point.  On the other hand, so is rehab, so why not just laugh at the joke?

It's a Wrap

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The US Supreme Court has concluded its scheduled arguments for this term.  From now through about mid-June, they will be releasing opinions in cases already argued, grants of certiorari petitions for argument next term (beginning in October), and some summary dispositions without oral argument.

Expect most of the opinions to be released on Mondays (or the Tuesday after Memorial Day), with possibly a few on Thursdays in June.

Herring what?

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A Millville, New Jersey police officer stopped a group of people for unlawfully riding bicycles on the sidewalk.  One of the riders identified himself as Germaine Handy of Millville, New Jersey, birth date March 18, 1974.  The dispatcher informed Officer Carlo Drogo that there was a ten-year-old outstanding warrant for Handy.  Handy was found to be in possession of cocaine and was subsequently charged with a drug offense.

It was later learned that the outstanding warrant was for Jermaine Handy of Los Angeles, California, birth date March 14, 1972.  Handy moved to suppress the drugs as the fruit of an unlawful arrest.  The trial court determined the dispatcher had been aware of the discrepancies between the Germaine's information and that contained in the warrant.

But does the dispatcher's mistake require suppression of the drugs? The New Jersey Supreme Court yesterday answered yes.

News Scan

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Trucker With 10 Tons of Marijuana Sentenced to 21 Years: Greg Moran of The San Diego Union-Tribune reports that Carlos Cunningham was sentenced to 21 years and 8 months in prison for hauling almost 19,400 pounds of marijuana in November. Cunningham was stopped at a Southern California checkpoint and agents found the drugs in the back of the rig he was driving. Agents searched the warehouse in Otay Mesa where they had tracked Cunningham from and found a tunnel that ran beneath the border to Tijuana. Authorities seized 16 tons of marijuana from inside the tunnel. A second tunnel was found in Otay Mesa a few weeks after the first, and authorities say they ultimately seized close to 100,000 pounds of marijuana. Ten people have been arrested and are being prosecuted in connection with both tunnels. U.S District Judge Larry Burns stated today during sentencing, "this is a sit-up-and-take-notice amount of narcotics, even in a district where we have become jaded by very large amounts."

Florida Records Lowest Crime Rate in 40 Years: Juan Ortega of the Sun Sentinel (FL) reports Florida officials announced today the number of major crimes reported in the state has fallen below rates recorded four decades ago. Florida Attorney General Pam Bondi and Governor Rick Scott both attest the numbers to the dedication of public safety by law enforcement officers. Governor Scott also noted that six officers have already been killed in the line of duty this year.

Convicted Rapist Turns Down Heart Transplant: The Associated Press reports that Kenneth Pike, an inmate in a New York state prison serving an 18 to 40 year sentence for raping a 12-year-old female relative in 1996, has turned down a heart transplant after the story of his transplant evaluation sparked debate over inmates receiving organ transplants at taxpayer's expense. Pike's procedure could have cost up to $800,000. A relative says Pike recently had a triple bypass and would likely die without the heart transplant.   

Corporal Punishment

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The Chronicle of Higher Education has an article by Peter Moskos titled, In Defense of Flogging:

If I'd learned one thing as a police officer patrolling a poor neighborhood, it was the working- and lower-class populations' great fondness for corporal punishment. No punishment is as easy or seemingly satisfying as a physical beating. I learned this not because I beat people, but because the good citizens I swore to serve and protect often urged me to do so. It wasn't hard for me to resist (I liked my job, and besides, I wasn't raised that way), but I agreed that many of the disrespectful hoodlums deserved a beating. Why? Because, as the old-school thinking goes, when people do wrong, they deserve to be punished.

Here is one of those pieces that is more remarkable for who says it than for what is said:

Add sensible safety laws to the list of things that California can no longer afford.

Forty-three other states and the federal government have laws forbidding the possession of cell phones in prisons. These other states have decided that the risks of allowing inmates to use cell phones - and occasionally to set up other crimes on the outside - outweighs the costs of punishment. In California, even though prison officials confiscate thousands of phones from inmates every year, the Legislature isn't sure we can afford to make phone smuggling or possession illegal.

*                        *                     *
The bill makes perfect sense, but it's being held in the Senate Appropriations Committee. The reason? Cost - the Department of finance estimates that the bill could create thousands of dollars in additional costs per inmate.

We understand that the state is broke. But we have to find a way to outlaw a dangerous practice that has been addressed by nearly every other state.

That all makes perfect sense, right?  It appears on a page that rarely makes sense in the criminal justice field, the main editorial page of the San Francisco Chronicle.

Yes, SF Chron, our state government is seemingly too broke to perform the function that people created government for in the first place -- ensuring public safety.  We are not too broke for high-speed rail boondoggles.  We are not too broke to restrict sources of energy, drive business out of the state, and thereby further erode the tax base.  We are not too broke to pay University of California administrators stratospheric compensation.  We are not too broke to subsidize major league sports teams.  We are not too broke for California taxpayers to provide a UC Death Penalty Clinic that represents murderers in Alabama.

We are only too broke to perform the number one function of state government.

The King and Spalding Kerfuffle

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Following up on Bill's post yesterday, the WSJ has this story by Ashby Jones and this editorial on the flap over King and Spalding's bailing out of the Defense of Marriage Act case and Paul Clement's bailing out of King and Spalding.

As Bill noted, CJLF takes no position on the underlying DOMA controversy.  Not our field. Jonathan Adler at VC has a post on people, including himself, "who oppose DOMA have nonetheless praised Paul Clement's willingness to defend the law, and his refusal to abandon the representation."

Paul Clement and K&S represent the prison inmates seeking release in Brown v. Plata, which I noted yesterday.  Arguing for tens of thousands of thugs to be dumped on the streets of California to commit new crimes is not too controversial for K&S.  All in a day's work.  Lawyers are supposed to represent the unpopular.  Yada, yada, yada.  But the House of Representatives is too controversial a client.  Can't touch that.  The WSJ calls K&S "invertebrate."  Nice choice of words.

Naturally, we can count on the American Bar Association (the neutral, even-handed, non-political representative of the entire bar and defender of the high standards of the profession in defending the unpopular), to come out and vigorously denounce the blackmail of the firm.  After all, to defend defense only for some causes and not for others based solely on their Political Correctness quotient would be the grossest of hypocrisy, and the ABA would never lower itself to that. 

I cruised over to the Presidential Statements Page to check.  Nothing there as of 11:45 a.m. Monday.  Well, I'm sure he'll get around to it.  He is probably very busy.

Update:  Clement picked up some support from AG Holder, AP reports.

Abu-Jamal, Again

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The US Court of Appeals for the Third Circuit, having been told by the Supreme Court to reconsider the Abu-Jamal case in light of Smith v. Spisak, has decided that Spisak does not alter its decision, and it has overturned Abu-Jamal's death sentence yet again.

The decision is based on a far-fetched notion that the verdict form might have caused some jurors to disregard mitigating factors they found true and others did not, and then concur in the unanimous verdict of death after disregarding those factors.  Real jurors do not think that way.  This is all based on the Supreme Court's dubious precedent of Mills v. Maryland (1988), one of the worst cases of capital sentencing micromanagement in the whole sorry history.  It is high time that the Court threw Mills overboard.  A lower profile case would be a better vehicle, though.

Update:  Maryclaire Dale has this story for AP.  "District Attorney Seth Williams said he would consider mounting another appeal to the U.S. Supreme Court."

Update 2
: Michael Hinkelman of Philadelphia Daily News reports that the DA will seek US Supreme Court review.  Again.

No SCOTUS Criminal Cases Today

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The US Supreme Court issued one opinion today.  United States v. Tohono O'odham Nation is a civil case about having two suits in two different courts at the same time on substantially the same claim.  (The unsurprising answer: no.)  Today's oral argument is also a civil case.

The question of when two claims are the same is not a trivial one, and it arises frequently in habeas cases under 28 U.S.C. §2254(d).  CJLF has briefed the issue several times, including in Bell v. Kelly, but the Supreme Court has not yet squarely addressed it in the habeas context.  Today's decision turns largely on the unique history and language of the federal claims statute and will likely be little help in other contexts.

Here is one nugget from today's opinion, page 7: "Still, the Court of Appeals was wrong to allow its precedent to suppress the statute's aims. Courts should not render statutes nugatory through construction."  That should be usable in habeas cases, especially in circuits divisible by three.
The title of this post is the headline of this story in the WaPo by Jerry Markon.  The fact that Mr. Holder is not going to resign is not surprising, of course.  The odd thing is that such a statement would be headline news.

Defending Jihadists But Not Marriage

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The legal profession views it as an obligation and an honor to defend unpopular people and causes.  That is why, despite my decided misgivings about standard criminal defense tactics (such as huckstering for fake mental conditions), I do not view criminal defense per se as a bad thing.  I did some of it as a Stanford Law student, and, as I have said here previously, it is sometimes essential in order for the rule of law to prevail.  In the Duke lacrosse rape hoax, for example, it was only the courage of criminal defense lawyers that stood between a corrupt, race-baiting prosecutor and three falsely accused students.   In a Duke community awash in Political Correctness, it took guts for defense counsel to step forward in behalf of "privileged white jocks."

It was also honorable for members of the legal profession to defend even truly awful and dangerous people, such as those being held at Gitmo.  It's not that terrorist detainees deserve anything but the severe sentences (and in some cases, execution) they have worked so hard to earn.  It's that they deserve, as any human being deserves, a fair determination of actual guilt.  Thus, unlike some conservatives, I did not condemn the Department of Justice for hiring attorneys who, in an earlier life, provided pro bono representation for Gitmo prisoners. 

Today, however, the legal profession displayed cowardice on a grand scale.   


Supplemental Brief in Plata

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On Friday, counsel for the Governor of California asked leave to file a supplement brief in Brown v. Plata, the prisoner release case.  The very brief supplemental brief merely advises the Court of further legislative developments.  AB109, recently enacted, will make a major shift of inmates from state prison to county jail.  (Of course, the jails have no room, so the felons will either be further shifted to the street or displace other crooks from jail to the street, a dollar savings to the state government paid in the blood of innocent people.)  The brief contains no argument on the implications of this for the case, but the Court should understand that it further aggravates the panel's error in failure to consider changes between the time the individual judges called for the three-judge court and the time the three-judge court issued its injunction.

Faking Mental Disorders

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Since those who appear as defendants in criminal cases are almost always factually guilty, some method has to be devised to pry them away from any actual consequences of their acts.  One of the favorites these days is to hire some Rolodex shrink who can be counted on to testify that the defendant was "suffering" from some mysterious but dreadful-sounding "syndrome." 

If you never heard of the "syndrome" before, that's because you're a Neandethal.  Plus you're not nearly as creative as the defense bar and its well-paid entourage of Professional Excuse Writers.

All this is by way of introducing today's little nugget from MSNBC, titled, " Adults Who Claim to Have ADHD?  1 in 4 May Be Faking It."

Amid what some claim is a growing epidemic of ADHD diagnoses, a study finds that almost one in four adults who show up in doctors' offices seeking treatment may be exaggerating -- or even faking -- their symptoms.

Twenty-two percent of adults in the study who claimed they suffered from attention-deficit/hyperactivity disorder tried to skew test results to make their symptoms look worse, according to a new report based on the medical records of 268 patients and published in the journal The Clinical Neuropsychologist.

For as useful as faking symptoms might be in getting ahold of some juicy drugs, it's even more useful for the now-standard defendant stunt of portraying yourself as a victim, then making the whimpering (or, if that doesn't work, snarling) demand for "compassion." 

Monday SCOTUS Orders

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The US Supreme Court's Monday orders list is here.  No new cases were taken up.  Bobby v. Mitts, No. 10-1000, Ohio's bid to take up yet another wrong-headed USCA6 capital decision, is missing and already relisted for this Friday's conference.

Opinions are expected tomorrow.  The "ripest" of the cases we are following is Brown v. Plata, the big California prisoner release order case.  (Moonbeam is automatically substituted for the Governator.  See Sup. Ct. Rule 35.3.)  See separate post.

News Scan

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Serial Killer Goes on Trial for 1968 Murder:  L.L. Brasier of the Detroit Free Press reports serial killer Nolan Ray George, 67, will go on trial today in the Oakland County Circuit Court for the 1968 murder of 36-year-old Gwendolyn Perry.  George allegedly met Perry at a local drug store before strangling and sexually assaulting her.  He confessed to killing Perry over forty-two years ago, but was not charged with the murder until last summer after a special investigative task force reopened the case.  Although he was convicted of strangling two other women, George has only served a total of twenty-two years in prison due to a series of plea deals and appellate court decisions.  He also allegedly bragged about killing five to seven other women. Chief Assistant Prosecutor Paul Walton remains confident about the case, despite the fact the crime occurred 43 years ago. 

Parolee Sentenced to Over 250 Years in Prison:  Fox 4 Kansas City News reports Taurian J. Burton, 25, was sentenced to over 250 years for a 2009 rape, assault, and robbery.  Burton had been on parole for another home invasion in Jackson County at the time of the crime.  In 2009, Burton and his accomplice invaded the victims home to steal their plasma television.  While inside the home, Burton pistol whipped and bound the couple before raping the woman at gunpoint.  Burton will be eligible for parole in forty-two years.

Judge Overturns Death Sentence:  Howard Mintz of Mercury News reports U.S. District Judge Saundra Brown Armstrong overturned the 1980 murder conviction and death sentence of Marvin Pete Walker Jr., 51, one of California's longest-serving death row inmates.  Walker was sentenced to die for the 1987 fatal shooting of 15-year-old Joseph Vasquez during a liquor store robbery.  The judge concluded Walker had been improperly shackled in front of the jury throughout trial, thus tainting the verdict.  The California Attorney General has until Friday to decide whether to appeal the ruling to the 9th Circuit Court of Appeal.  If there is no appeal to this decision, then prosecutors will have the choice of retrying the case or releasing Walker.   

"Mass graves in Mexico reveal new levels of savagery":  Authorities in Mexico believe most of the 177 people recently discovered in the largest grave site ever found in Mexico were killed by blunt force trauma, reports Nick Miroff and William Booth of The Washington Post.  Bodies have been discovered in 34 grave sites around the farming town of San Fernando, almost all stripped of their identification and many with severe cranial trauma.  The Mexican military took over San Fernando last year after 72 migrants were kidnapped and fatally shot, but locals say the crime gangs moved back in quickly and began commandeering ranches and converting barns and sheds into holding pens and execution chambers.  After two large groups of bus travelers were kidnapped last month, several suspects tipped authorities to the mass grave sites.  As many as 122 of the bodies found were passengers on their way to the United States.

Tattoo of Murder Scene Leads to Conviction:  Robert Faturechi of the Los Angeles Times reports an LA County gang member's tattoo landed him a murder conviction, after a homicide detective recognized it as depicting an unsolved 2004 liquor store slaying.  The scene on Anthony Garcia's (aka "Chopper") chest matched the murder scene in perfect detail, complete with the Christmas lights that lined the store's roof, the direction the victim's body fell, and the nearby street light.  A miniature helicopter flew above, raining bullets on the scene.  After Garcia was photographed during booking for a traffic arrest, the tattoo caught the attention of Detective Kevin Lloyd, who had been at the murder scene.  Garcia ultimately confessed to a police officer posing as Garcia's cellmate.       

News Scan

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Any Help is Better Than No Help:  CNN writer Amanda Watts reports inmates at California's San Quentin helped rescue two boaters who had fallen and drifted from their boat in the San Francisco Bay early Wednesday.  Prison staffers and ten fire department inmates went into the water around 1 a.m. and rescued the man.  San Rafael Fire Department personnel arrived soon after and helped rescue the female.  A staff member and several prison inmates performed CPR and other life-saving measures on the male, who was later pronounced dead.  The woman was treated at a hospital and released shortly thereafter.  Prison spokesman Lt. Sam Robinson said the inmates in the prison's fire department are trained paramedics who were not convicted of violent or sexual offenses.  This was the first water rescue the inmates had ever responded to.  "Ninety-nine percent of what they do happens inside the facility," Robinson said.

"Military to Pursue First Capital Prosecution Against Terror Suspect":  Military prosecutors have recommended the death penalty for the accused mastermind behind the deadly bombing of the USS Cole in 2000.  After the announcement was made Wednesday, the 46-year-old Saudi native Abd al-Rahim al-Nashiri s now closer to trial before a military commission.  This could very well be the first death penalty trial in the reconfigured military trial system.   Intelligence sources have said Al-Nashiri led al Qaeda operations in the Persian Gulf before he was captured by the U.S. in 2002.  Al-Nashiri is charged with heading the attack on the USS Cole that ultimately killed 17 sailors and left 47 others injured.  The final decision about whether the death penalty will be pursued is up to retired Vice Adm. Bruce McDonald.  The last military execution was in 1961, involving a U.S. Army private who was convicted of rape and attempted murder of an Austrian girl.  CNN has this story.

Lawyers Urge Supreme Court to Extend Graham v. Florida Decision:  Almost a year ago, the Supreme Court ruled that sentencing juvenile offenders to life without the possibility of parole violated the Eighth Amendment, but only for crimes that didn't involve murder.  That decision affected around 130 prisoners convicted of crimes such as rape, armed robbery, and kidnapping.  Lawyers are now petitioning new cases to the Supreme Court involving other prisoners who were 14 when they were committed their murders, urging the justices to extend last year's decision Graham v. Florida to all 13-and 14-year-old offenders.  It should not be long until the justices decide to address the questions posed in the petitions.  If the Graham decision were to be extended to all juvenile offenders, about 2,500 prisoners would be affected.  Our own Kent Scheidegger disagrees with the Graham decision and "extending it to homicides would be wrong squared."  "Sharp cutoffs by age, where a person's legal status changes suddenly on some birthday, are only a crude approximation of correct policy," he added.  New York Times reporters Adam Liptak and Lisa Faye Petak have this story.

Indiana Supreme Court Hears Argument on Convict Voting:  Charles Wilson of the AP reports the Indiana Supreme Court heard argument today in a case challenging the scope of a state law stripping the voting rights of those in jail.  The Indiana constitution allows voting rights to be taken away for convictions of "infamous crimes."  A South Bend man, whose voter registration was canceled after he was sent to jail for misdemeanor battery, claims his crime shouldn't count.  Indiana Solicitor General Thomas Fisher says "infamous crimes" should mean whatever legislators want it to mean.

News Scan

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Psychiatric Hospitals Continue to Discharge Patients Leaving Police and Society to Deal With the Mentally Ill:  Like many officers across the country, Fairfax County police officer Leanna Wilson has ended up on the front line of the American public mental health system, doing a job she didn't sign up for.  As mental health resources shrink due to the financially strapped local and state governments cutting community-based mental health programs, police officers are forced to deal with serious mentally ill patients.  Volatile and sometimes deadly confrontations between the mentally ill and the police are becoming more frequent as psychiatric hospitals continue to discharge large numbers of patients.  In response, police departments throughout the United States have implemented "crisis intervention" training to provide officers with more than just an hour or two of mental health training.  During the training, officers are taught the importance of listening to those in crisis.  During a recent encounter with a suicidal man, Wilson spent over an hour attempting to calm him down and change his mind.  In her 12 years on the job, 36-year-old Wilson had encountered suicidal people, but had never confronted anyone on the verge of carrying out the threat.  As one Virginia officer put it, "This is not our job."  Henri E. Cauvin of the Washington Post has this story.

High-Tech Device Allows Michigan Officers to Search Cell Phones During Traffic Stops:  The Michigan State Police have a high-tech mobile forensics device capable of extracting information from the cell phones of drivers stopped for traffic violations.  The U.S. Department of Justice tested the CelleBrite UFED product used by Michigan police and found that the device can grab all the photos and videos off of an iPhone in less than two minutes.  "Complete extraction of existing, hidden, and deleted phone data, including call history, text messages, contacts, images, and geotags," a CelleBrite brochure explains regarding the device's capabilities.  "The Physical Analyzer allows visualization of both existing and deleted locations on Google Earth. In addition, location information from GPS devices and image geotags can be mapped on Google Maps."  The device is capable of working with 3000 different phone models and can even defeat any password protections.  The ACLU is in uproar and is concerned that these electronic capabilities bypass Fourth Amendment protections against unreasonable searches.  The Newspaper.com has this story.

Inmate Sues State Over Sex-Change Operation:  Lyralisa Stevens, who was born male but lives as a female, is serving 50 years to life in a California prison for killing a woman with a shotgun over a simple clothing dispute.  Since her incarceration in 2003, prison officials have been providing Stevens with her female hormones, but now she is asking the First District Court of Appeals in San Francisco to require the state to pay for a sex-change operation.  Stevens and her expert witness say that in order to be protected from rape and abuse by other male inmates, surgery is medically necessary, so she can be transferred to a women's prison.  If the court were to rule in Stevens' favor, it would make California the first place in the country required to provide reassignment surgery for an inmate.  Providing a transgendered inmate with hormonal treatments cost $1,000 a year per inmate.  Sex-change operations could cost anywhere between $15,000 to $50,000.  "A prison is not required by law to give a prisoner medical care that is as good as he would receive if he were a free person, let alone an affluent free person," attorney Steven J. Bechtold, who represents the receiver, wrote in the state's response to Stevens' petition for the operation.  Jack Dolan of the Los Angeles Times has this story

Schwarzenegger Says Controversial Commutation Was to Help a Friend:  Former Governor Arnold Schwarzenegger admitted he was helping a friend when he commuted the sentence of Esteban Nunez, who pleaded guilty to the 2008 stabbing death of a San Diego college student, reports Don Thompson of the AP.  Schwarzenegger's decision to reduce of Esteban's sentence from 16 years to seven drew criticism from prosecutors and the victim's family, especially in light of the fact that Estaban is the son of former Assembly speaker Fabian Nunez.  In a Newsweek interview published this week, Schwarzenegger said he felt good about his decision and that he acted because of his "working relationship" with Fabian, also stating "Well, hello! I mean, of course you help a friend."  Schwarzenegger has admitted to the victim's family that he failed to notify them before commuting Esteban's sentence, in violation of California law.

Alternatives to Injection

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Giles Whittell of The Times of London has this story* on alternatives to lethal injection after Britain banned export of sodium thiopental.  He notes my suggestion of neutral gas hypoxia.  Our friend Robert Blecker of New York Law School disagrees.  "Firing squad is my preferred method," he said.

*The link is to the web site of the Australian because the Times is subscription-only.

Outstanding Warrants

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AP reports:

ATTLEBORO, Mass. -- A Rhode Island man has finally settled a warrant issued for a traffic violation in Massachusetts nearly four decades ago.

Michael Young, of Warwick, R.I., asked a judge in Attleboro District Court on Tuesday to dismiss a driving to endanger charge issued in September 1974.

He was 23 at the time. The now 60-year-old told the court he found out about the warrant recently when he went to conduct business at the Rhode Island Registry of Motor Vehicles.

The Sun Chronicle of Attleboro reports that Judge Daniel O'Shea noted that half the people in court had not even been born at the time of the traffic violation. He granted Young's request, dismissing the case with payment of $100 in court costs.

Prosecutors agreed with the dismissal.

Cons Suing States

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Looks like this is "suing states" week at the US Supreme Court.  See prior post on states suing themselves.

Today's decision in Sossamon v. Texas involves the Religious Land Use and Institutionalized Persons Act of 1993, one of Congress's oddest and most ill-considered pieces of legislation in modern times.  Land use and institutionalized persons?  Kind of like pickles and ice cream or fish and bicycles.  That odd combination was used to forge a political alliance among churches chafing under oppressive zoning restrictions, property rights advocates who welcome any chance to trim the power of the zoning officials, prison ministry folks who want us to believe that every prisoner claiming to have found Jesus really has, and prisoner rights advocates who welcome any weapon to sue prisons and make them more expensive to run.

Harvey Sossamon was on cell restriction for violating prison rules and as a result could not attend religious services.  Instead of resolving to obey the rules in the future and get off restriction, he sued the State of Texas for money damages.  Although Congress can use the Spending Clause to bribe states into waiving sovereign immunity in return for Uncle Sam's greenbacks, the Supreme Court has always strictly construed any statutory language claimed to be waiver of sovereign immunity.  The Court today held, 6-2, that general language authorizing "appropriate relief" is not so clear.

News Scan

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Two British Men Fatally Shot in Florida as Part of "Gang Initiation":  Paul Thompson and Nick Britten of The Telegraph (UK) report that James Cooper, 25, and James Kouzaris, 24, from Britain were fatally shot in Florida early Saturday morning.  16-year-old Shawn Tyson, who was freed by a judge last week despite being arrested in connection with an armed robbery, is charged with the murders.  Authorities claim Cooper and Kouzaris were at a bar when they accepted a ride home from a stranger.  Instead of being driven home, they were driven to Newton, Sarasota, an area which is known for gang activity and drug dealing.  Cooper and Kouzaris were found dead after they were confronted by a gang of masked men.  Police are saying Tyson will be charged as an adult.

Repeal of Death Penalty Has Consequences:  Steve Huntley of the Chicago Sun-Times writes Governor Pat Quinn's decision to abolish the death penalty in Illinois has claimed its first victim.  Jitka Vesel, 36, was stalked and murdered by her Canadian ex-boyfriend Dmitry Smirnov, 20. According to DuPage County State's Attorney Robert Berlin, a videotaped interrogation by police showed Smirnov saying,"he had researched whether Illinois still had the death penalty and had researched it as recently as the morning of the murder."  Smirnov and Vesel met on an internet dating site and he moved to the Chicago area before returning to Canada after their relationship ended.  Smirnov continued to harass Vesel and returned to the United States two weeks ago.  He bought a handgun in Seattle and glued a GPS device to Vesel's car before tracking her down and shooting her.  Opponents of capital punishment claim among other things that it is not a deterrent for crime, but Vesel's murder may prove otherwise.  "Certainly in this case I think there was a considerable thought about potential penalties before he decided to act," said Berlin.  See Bill Otis's previous post here.

Court Rules Man is Sane Enough to Drop Appeals and Be Executed:  Eric Connor of Greenville Online (SC) reports that Jeffrey Motts, 35, is scheduled to die by lethal injection on May 6th after the Supreme Court found him to be competent enough to waive his appeals.  Motts had asked the South Carolina Supreme Court to dismiss his appellate attorneys and allow him to represent himself because he wanted to die for his crime.  Motts was already serving life in prison for binding and shooting two elderly victims in 1995 when he strangled his cellmate Charles Martin in 2005.  During his trial he asked for his life to be spared because he didn't want his family to have to live with his execution.  Shortly after his conviction, however, he began writing the state Supreme Court, seeking to drop all his remaining appeals because he believes he deserves to die. 

NY Lawmakers Propose Domestic Violence Offender Registry: Your News Now (NY) staff report that New York state lawmakers have proposed a bill to create a registry for domestic violence offenders. If the legislation is passed, anyone convicted of domestic violence would be listed on a statewide database, similar to the registry of sex offenders. The offender's basic personal information, employment information, and address would be made available on the registry. Bronx Assemblywoman Vanessa Gibson stated, "this is about information and this is about education."

Texas Bill Would Allow Testimony About Prior Conduct in Sexual Assault Cases: Patricia Kilday and Brian Rogers of the Houston Chronicle report  that the Texas Senate has tentatively approved a bill that would allow juries to hear testimony about similar allegations against a defendant in sexual assault cases, even if the similar incident did not result in criminal charges or a conviction. Before the testimony could be introduced, a judge would have to hear the evidence outside the presence of the jury and deem it relevant. A final vote on the bill is expected to take place in the coming days, and a companion bill is pending in a House committee. 

Oklahoma City

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It was 16 years ago today that Timothy McVeigh blew up the Murrah Building in Oklahoma City, killing 168 people, including 17 toddlers at a day care center.  McVeigh would later appear on "Sixty Minutes" to declare that they should be considered "collateral damange"  in the war he was conducting against the United States government.  Whether the four-year-olds blown to bits were aware there was a war, or even a United States, seemed to be beside the point.

It was a case about which death penalty abolitionists were notably silent, perhaps struck, for once, with the reality that there are some crimes so mind-bending in their scope and cruelty that no normal person could regard a prison sentence as justice.

It's a lesson they soon forgot.  Today they might take time to remember. 

States Suing Themselves

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The lone opinion from the US Supreme Court today is a civil case, Virginia Office for Protection and Advocacy v. Stewart, No. 09-529.

We consider whether Ex parte Young, 209 U. S. 123 (1908), allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same State.
Answer: yes (6-2, Kagan recused).

VOPA is an office set up to advocate for the disabled, but this could easily happen with a criminal defense agency with an overly broad view of its mission.  So Young and the Eleventh Amendment aren't going to kill such a suit.

Justice Kennedy, concurring joined by Justice Thomas, tells us that state law, not federal law, is the way to stop the absurdity of the state suing itself:

First, and most important, state law must authorize an agency or official to sue another arm of the State. If States do not wish to see their internal conflicts aired in federal court, they need not empower their officers or agencies to sue one another in a federal forum. And if state officers are not by state law empowered to sue, they may invoke federal jurisdiction only in their personal capacities. 

Second, to the extent there is some doubt under state law as to an officer's or agency's power to sue, or any other state-law issue that may be dispositive, federal courts should abstain under Railroad Comm'n of Tex. v. Pullman Co., 312 U. S. 496 (1941).
This opinion should have a bit more clout than most concurrences, as Justices Kennedy and Thomas are necessary votes for the majority.  Had they joined the dissent, it would have been a 4-4 affirmance by an equally divided court.

The Crack Ratio

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Heritage Foundation intern Maya Noronha has this post at the Foundry noting that the Fair Sentencing Act of 2010 essentially restored the crack/powder sentencing ratio to the Reagan Administration's original 1986 proposal.  It was Senators Lawton Chiles and Joseph Biden who upped it to 100/1.  We previously noted this here.  Then-Senator Biden, to his credit, candidly put the story in the Congressional Record in 2007.  See 153 Cong. Rec. S8614, available here.

Gitmo Habeas Case Fizzles

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Every once in a while, a petitioner comes to the Supreme Court with a tale of outrageous injustice that cries out for relief, but none is available under current law.  Then when the Court learns the truth about the facts of the case the difficult question of law vanishes.  Almost 20 years ago, we had the cause celebre of Leonel Herrera, the man those barbarians in Texas were going to execute despite compelling proof of his innocence.  The inconvenient truth was that Herrera was guilty as sin.  More recently, we have had the Troy Davis case along similar lines.

Now we have the Kiyemba case, innocent people being held indefinitely by our cruel government in Gitmo.  One small problem -- our government has offered to place them in a suitable country, and they haven't accepted the offer.  Justice Breyer's statement today follows the jump.

News Scan

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Serial Killer Seeks New Trial:  J.M. Lawrence of The Boston Globe reports U.S. District Court Judge Mark L. Wolf is investigating whether jurors who recommended death for a serial killer lied on their jury questionnaires.  In 2003, a Massachusetts federal jury recommended a sentence of death for Gary Lee Sampson, convicted of killing three men during a 2001 criminal rampage.  Judge Wolf summoned three of the jurors last November to testify in closed court about their juror questionnaires, according to court documents released on Friday.  Among a few discrepancies discovered, one juror admitted to omitting prior driving violations, and another to failing to disclose that her boyfriend was a university police officer.  Federal prosecutors claim these discrepancies do not amount to juror bias warranting reversal of Sampson's sentence.

New Police Task Force Solves Cold Case:  Katherine Krueger of The Badger Herald (WI) reports a cold case has been cracked by Madison Police Department's new task force, the Cold Case Review Team (CCRT).  Founded in 2010 and funded in part by a Department of Justice grant, the CCRT assess the "solvability" of cold cases using a number of factors.  After the CCRT determined a high level of solvability in the case of Dorothy Paige, found stabbed to death in her home nearly two decades ago, an investigation led to the first degree murder charge of a previous suspect in the case.  "This is critical in terms of bringing justice to victims," says Madison Police Department Chief Noble Wray.  "Not only do we have a new manner to approach cold cases, families at home can know it's not just a lottery of waiting for new tips in an investigation."

Duke Accuser Charged With Murder:  The woman who falsely accused three Duke lacrosse players with rape was charged today with murdering her boyfriend, reports Mike Baker of the AP.  Crystal Mangum is charged with the stabbing death of Reginald Daye, who died in a hospital earlier this month nearly two weeks after the attack.

Massachusetts Attorney General Reacts to Court Ruling:  In response to a ruling from the state's high court (see previous post here), Massachusetts Attorney General Martha Coakley today called for an update to the state's wiretapping law.  The current wording of the statute permits wiretapping only in connection with investigation of organized crime, but Coakley says the "whole face of crime has changed totally" and that wiretapping is also needed to combat "disorganized crime," such as street gangs and shoplifting rings.    John R. Ellement of The Boston Globe has this story.

Another Rehab Failure

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The "smart on crime" folks want us to believe that the experts know how to fix criminals, despite the disastrous consequences of our falling for that line in the 1960s.  This is not just in the United States.  Martin Bentham reports for the London Evening Standard:

A flagship Met police scheme to cut crime among convicts freed from jail has had no impact on the reoffending rate, an official study revealed today.

The £11 million "Diamond Initiative" was set up to rehabilitate serial offenders by offering them help with problems such as drug and alcohol misuse, housing, debt and unemployment after their release.

Scotland Yard chiefs hoped that the scheme, which focused on criminals freed after sentences of 12 months or less, would lead to a significant drop in reoffending and help to deliver the "rehabilitation revolution" wanted by Justice Secretary Ken Clarke.

An official analysis of the project has found, however, that 42.4 per cent of participants committed new crimes within a year of leaving jail - almost identical to the 41.6 per cent reoffending rate among a similar group of convicts who received no special help after being freed.
We have no objection to trying out programs on a limited scale and subjecting them to rigorous testing to see what, if anything, "works."  But until there is proof, not just "evidence," we should not abandon the tough sentencing practices that helped produce the dramatic drop in crime rates in the 1990s, and we should not return to the blind faith in the "experts" that produced disastrous results in the past.

Do It Over, USCA9

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The US Supreme Court has sent the cases of two Arizona murderers, Danny Jones and Edward Schad, back to the Ninth Circuit to do over in light of the Supreme Court's April 5 decision in another Ninth Circuit capital case, Cullen v. Pinholster.  The order list is here.  All three cases involve claims that the defendant's trial lawyer did not do a good enough job in the penalty phase of the case.  Attacks on the guilt determination have been uniformly rejected.

In the Jones case, Judge Sidney Thomas adds annoyance to error by consistently referring to the murderer as "Danny."  His precious "Danny" murdered three people including an elderly woman and a 7-year-old girl.  Judge Thomas refers to the elderly woman, Katherine Gumina, as "Gumina," not Mrs. Gumina or even Ms. Gumina, but the murderer is "Danny."

The only case taken up for full briefing and argument today is a crime-related immigration case, Judulang v. Holder.

Tapia on Tap

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Monday morning, the Supreme Court will hear argument in Tapia v. United States.  The question is whether a federal district court may increase a defendant's prison sentence (but still peg it within the Guidelines and statutory maximum) in order to allow the defendant to participate in a Bureau of Prisons drug rehab program.

The question seems to me to be close on the merits; the governing statutes are not written in airtight language. 

There are three pretty interesting sidelights to the case:  First, DOJ reversed its litigating position as the case travelled from the Ninth Circuit to the SCOTUS; second, the case may measure how far the Court will go in continuing the post-Booker trend of restoring the power of district courts over sentencing; and third, after stripping away the tussle over statutory language, the real dispute seems to me to center around the only-in-America question of how best to deliver social services to criminals.

From the City Journal:

Drive behind the Geffen Contemporary, an art museum in downtown Los Angeles, and you will notice that it has painted over the graffiti scrawled on its back wall. Ordinarily, that wouldn't be surprising; the Geffen's neighbors also maintain constant vigilance against graffiti vandalism. But beginning in April, the Geffen--a satellite of L.A.'s Museum of Contemporary Art--will host what MOCA proudly bills as America's first major museum survey of "street art," a euphemism for graffiti. Graffiti, it turns out, is something that MOCA celebrates only on other people's property, not on its own.

Habeas and Actual Innocence

There has long been widespread dissatisfaction with the waste of federal judges sifting through mountains of habeas petitions from clearly guilty criminals.  In his great 1953 concurrence in Brown v. Allen (actually a dissent on the main point), Justice Jackson compared searching for the meritorious petition to searching a haystack for a needle.

In 1970, Judge Henry Friendly proposed that we filter habeas petitions by requiring a colorable claim of actual innocence before considering a petition.  The proposal went nowhere in Congress.  A plurality of the Supreme Court endorsed it for successive petitions in Kuhlmann v. Wilson, but even that limited rule was never accepted by a majority.

For tomorrow's NYT, law professors Joseph Hoffman of Indiana U. and Nancy King of Vanderbilt have this op-ed.  They note the same problems as Jackson and Friendly and propose:

Congress should limit habeas review of state criminal cases to two categories in which it actually can do some serious good: capital cases and cases in which the prisoner can produce persuasive new evidence of his innocence. Limiting habeas to these cases will help protect the long-term future of the writ in all of its varied forms.
For noncapital cases, this proposal goes further than Friendly, who would have required only a colorable claim.  The reason for such a radical change in noncapital habeas is that the state courts are now receptive to federal claims and catching nearly all the clear errors.

Rodrigo Caballero, 16, is not guilty of murder, but not for lack of trying.  He was convicted of three counts of attempted murder for shooting at three rival gang members, wounding one of them, Bob Egelko reports in the SF Chron.  His sentences total 110 years.

Does that violate Graham v. Florida?  The California Supreme Court has taken the issue up.

Atlas Folds

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Two events occurred yesterday with a curious connection.  The first installment of the movie version of Ayn Rand's Atlas Shrugged opened in theaters. Ilya Somin at VC has this post with links to varying reviews.  Meanwhile, in New York, the US Attorney has obtained indictments and restraining orders against the three largest online poker sites.  Larry Neumeister and Oskar Garcia of AP have this story.

The biggest villain in Rand's novel is not the bureaucrats but rather the crony capitalist (and brother of the heroine) who exploits government regulation to frustrate business rivals.

And who is crowing the loudest over the poker shutdown?  A bible-thumping moralist railing against the evils of gambling?  Guess again.

Frank Fahrenkopf, chief executive of the American Gaming Association, the commercial casino industry's main trade group, said the prosecution shows a "clear need to strengthen laws to address illegal online gambling in the U.S."

He added: "Tough law enforcement is the key to making such a system work, and the AGA supports strong enforcement against illegal online gambling activity in this country. But illegal activity - and the risk of consumer fraud, money laundering and underage gambling - will continue until the U.S. passes laws ensuring that only licensed, taxed and highly regulated companies can operate in the U.S. market."

That's right.  It is casinos who don't want competition who are most anxious to see the online sites outlawed.

The US Solicitor General has petitioned for certiorari in United States v. Antoine Jones, presenting the following question:

Whether the warrantless use of a tracking device on petitioner's vehicle to monitor its movements on public streets violated the Fourth Amendment.
Mike Scarcella has this post at BLT.  The petition is here.  It cites a split between the D.C. Circuit and the Seventh, Eighth, and Ninth Circuits.  Scarcella reports that Jones's attorney is not a happy camper.

Jones' appellate lawyer, Stephen Leckar of Washington's Shainis & Peltzman, said it's "regrettable the Obama administration, which touted itself as a breath of fresh air, seems to be resistant when it comes to advancing the Fourth Amendment's interest in protecting a citizen's right to privacy."

Orin Kerr had this long post on the "mosaic theory" of the D.C. Circuit's opinion when it came out last year.

News Scan

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Differing Opinions About Pew Prison Study: Cliff Kincaid of Accuracy in Media has this piece responding to the Pew Prison Study, opining that a lot of media coverage, as well as the study itself, have minimized the positive effects of prison expansion - namely a decrease in crime rates.

Long Island Serial Killer Used Victim's Cell Phone to Make Taunting Phone Calls to Victim's Family: Christina Boyle of the NY Daily News reports the serial killer wanted for several murders of Long Island prostitutes used victim Melissa Barthelemy's cell phone to call her younger sister at least seven times. During the final phone call, the man confessed to killing 29-year-old Barthelemy. Barthelemy's 16-year-old sister Amanda said the alleged killer used "taunting and angry words." The man allowed Amanda to ask a few questions during the calls, which has given investigators some clues into the mindset of the presumed serial killer they are desperately hunting. Since police first discovered four bodies in December, the death toll in Suffolk County is now up to ten.

Juvenile Murderer Wants 1985 Conviction Reconsidered: Casey Grove of the Anchorage Daily News reports Winona Fletcher is asking the Alaska courts to reconsider her 25-year-old murder convictions, claiming she never had a fair shot of being tried as a juvenile. Fletcher pleaded guilty at the age of 15 to three counts of murder for killing three elderly people in their home in 1985. She was charged as an adult, after a two-week hearing on her juvenile status and a judge concluded she could not be rehabilitated in the juvenile justice system. Her attorney now claims modern research about juvenile brain development wasn't available at the time. The victims' friends and family were present at a court hearing yesterday, and say the ongoing litigation forces them to relive the day of the killings.

Georgia Governor Set to Sign Bill That Targets Illegal Immigration: Gustavo Valdes of CNN reports that the Georgia legislature last night passed an anti-illegal immigration bill that, in the words of its author Rep. Matt Ramsey (R), addresses issues forced on the state by the federal government's inaction. In 2006 the Georgia state legislature passed a law requiring public employers and government contractors to input the names of people they hire into federal database E-Verify to check their resident status. This new bill requires private employers with more than 11 workers to use the federal database. Provisions of the bill also include allowing law enforcement officers to ask about immigration status when questioning suspects during some criminal investigations and prison sentences for people who used fake documents to get jobs. Georgia Governor Nathan Deal plans to sign the bill into law.

Sex Offenders Online: Related to a story in yesterday's news scan, Camille Mann of CBS News has this report about John Burgess, a convicted sex offender given a five-year sentence after pleading guilty to the involuntary manslaughter of San Diego State University student Donna Jou, whom he met online in 2007. Burgess told authorities Jou died in his home after using drugs, where he panicked and dumped her body in the ocean. Burgess is being transferred to county custody for one year after serving two years in prison.

Researching a Good Place for Murder

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And where would that be?



Because it just abolished the death penalty!

This story seems like it comes out of central casting for those of us who know that the death penalty deters murder, but I didn't get it from central casting.  I got it from Doug Berman at Sentencing Law and Policy.  Doug is a liberal on most sentencing issues, but has an independent turn of mind, and three cheers to him for putting up this gem of a story.

Inconclusive Willingham Report

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Chuck Lindell reports in the Austin American-Statesman:

A state commission acknowledged Thursday that fire science has improved since investigators concluded that Cameron Todd Willingham killed his three children by setting fire to his Corsicana home in 1991.

But in issuing its long-awaited draft report on the Willingham case, the Texas Forensic Science Commission reached no conclusions about whether Willingham was convicted and executed based on evidence now considered scientifically unreliable.

As we have noted on this blog before, even if the forensic evidence tells us nothing, there is much other evidence indicating Willingham's guilt.

News Scan

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Two South Dakota Inmates Kill Prison Guard for Uniform in Attempt to Escape:  AP writer Dirk Lammers reports two South Dakota inmates attacked correctional officer Ronald Johnson, 63, wrapped his head in plastic shrink wrap and left him to die before using his uniform to sneak past security in a failed escape attempt Tuesday.  Eric Robert and Rodney Berget, both 48, are charged with first-degree and felony murder.  Robert is currently serving an 80-year sentence for a kidnapping conviction and Berget is serving life sentences for attempted murder and kidnapping.  Berget had two previous attempts to escape the penitentiary, one in 1984 and the other in 1987.  Robert was dressed in Johnson's uniform while pushing a cart with boxes in which Berget was hiding.  One officer became suspicious of Robert when he failed to show his electronic ID card.  Robert immediately began kicking and beating the officer and Berget jumped out of the box to join.  Fellow officers arrived and both inmates were apprehended and taken to a jail in Sioux Falls.  Johnson worked at the penitentiary for more than 23 years.  He was a father of two and grandfather of six.  Tuesday was his birthday.

States on Search for Execution Drug:  John Schwartz of The New York Times has this article on the efforts of death penalty states to find the increasingly hard-to-get drug sodium thiopental.  Faced with shortages of the execution drug, several states have looked to international manufacturers or borrowed supplies of the drug from other states.  These alternative methods have triggered new legal challenges and scrutiny from the federal government.  CJLF Legal Director Kent Scheidegger is quoted in the article, stating the recent challenges "seem to be accelerating the switch to pentobarbital," which is more readily available.

"Woman Sues Online Dating Site Over Alleged Sexual Assault":
  A Los Angeles entertainment executive says she was sexually assaulted by a man she met on Match.com and has filed a lawsuit demanding the dating website start screening its members for sexual predators.  The woman admits things went well on their first date but claims that after the second date, he allegedly followed her home and sexually assaulted her.  The woman later learned online that her assailant had been convicted of several counts of sexual battery.  "This horrific ordeal completely blindsided me because I had considered myself savvy about online dating safety," the woman said in a statement released through her attorney last week. "Things quickly turned into a nightmare, beyond my control."  The woman is asking Match.com to check members' names against public sex offender registries.  Charges against Match.com are pending.  The Los Angeles Times has this story.

California Law Enforcement Organizations Cave in for More Money:
  California's major law enforcement organizations and the Los Angeles County Sheriff Lee Baca rallied Wednesday in support of Gov. Jerry Brown's decision to extend tax increases to pay for a new law that shifts responsibility for thousands of criminals from the state to local governments.  Baca, whose county accounts for 30 percent of state prison inmates, said local law enforcement can do a better and cheaper job of punishing and rehabilitating offenders than the state as long as the proper funding is given to the jails and education programs.  Once angered by Gov. Brown's plan, several law enforcement organizations are now allying with Brown after learning $5.9 billion will fund the realignment.  Assemblyman Jim Nielsen predicts the realignment will overwhelm courts, jails, and rehabilitative programs, eventually leading to early releases and minimal punishments.  "That puts it way over the top, when you are going to compromise the personal safety of our families and you are going to compromise justice," Nielsen said.  AP writer Don Thompson has this story.

Inmate Set to be Released Today Gets Nailed for Cold Case Murder/Rape:  Richard Stanley Sandoval, 57, of Santa Ana was scheduled to be released today after serving a prison sentence for a 1985 rape conviction until authorities arrested him yesterday in connection with the 1984 murder and rape of an 84-year-old Southern California woman.  Prosecutors say recent DNA testing linked Sandoval the 1984 killing and rape.  Sandoval will be arraigned Thursday in Orange County Superior Court.  The San Francisco Chronicle has this story.

Walker v. Martin Podcast

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The Federalist Society has this SCOTUScast on February's Supreme Court decision in Walker v. Martin by CJLF Legal Director Kent Scheidegger.

These People Are Teaching Your Children

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There's not a whole lot I can say about this story, so I'll just let it speak for itself:

A California teachers union is under fire after passing a new resolution supporting a convicted cop killer.

The California Federation of Teachers (CFT) last month passed a resolution reaffirming their support for Mumia Abu-Jamal, who was sentenced to death in the 1982 murder of Philadelphia Police Officer Daniel Faulkner during a routine traffic stop.

In the resolution, the CFT alleges Abu-Jamal's trial was unfair and calls the former radio journalist a civil rights hero.

*          *         *

The resolution also describes the former Black Panther as a civil rights hero saying, "Mumia Abu-Jamal has for decades as a journalist fought courageously against racism and police brutality and for the human rights of all people...the continued unjust incarceration of Mumia Abu-Jamal represents a threat to the civil rights of all people."

*          *         *

The Third U.S. Circuit Court of Appeals is now reconsidering a 2008 decision to award Abu-Jamal a new sentencing hearing due to flawed jury instructions after the U.S. Supreme Court vacated the decision and ruled that a neo-Nazi did not deserve a new sentencing hearing on those grounds.

The Abu-Jamal case is a scandal, alright, but not for the reasons the CFT thinks.  It's a scandal because an unrepentant cop killer has played a willing audience of liberal airheads for close to 30 years to avoid the justice he has earned.

News Scan

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"Don't Ask, Don't Tell" Policy for Pittsburgh Felons:  On Tuesday, Pittsburgh City Councilman Ricky Burgess introduced legislation that would rid the question "Have you ever been convicted of any felony of the law?" from city job applications.  According to Burgess, the legislation is not meant to hide one's criminal record but to encourage a conversation between the employer and the applicant about the circumstances of any conviction.  He also says the legislation would not overrule state law prohibiting public safety employees, such as police officers and firefighters, from having a felony record.  Burgess is hopeful that similar legislation spreads to other communities and businesses in Western Pennsylvania.  The Pittsburgh Tribune-Review has this story.

Pew Study Shows High Recidivism Rates and a Failure in Rehabilitative Programs:
  AP writer Greg Bluestein reports on a study by the Pew Center on the recidivism rates of 41 states.  The study concluded that more than 40 percent of ex-cons commit crimes within three years of their release and are ultimately sent back to prison.  This is only a marginal improvement in the nation's recidivism rate, even though spending on corrections departments has increased to roughly $52 billion annually from around $30 billion a decade ago.  The recidivism rates show a failure in the programs and policies designed to deter re-offenders.  Adam Gelb of the Pew Center's Public Safety Performance Project says lawmakers should consider alternative sentences for nonviolent offenders.  However, the president of the National District Attorneys Association is skeptical of alternative sentencing and believes legislatures should not abandon tough-on-crime policies.  New Hampshire prosecutor Jim Reams said alternative sentencing strategies "only save money in the short-term."  "The assumption is that these are all choir boys at the prison and if we let them out, all will be well. And it doesn't work that way," Reams said. "We're getting exactly what we deserve when we do this -- we're getting more crime."  The study found that if the 41 states could cut their recidivism rates by 10 percent, they could save a combined $635 million in one year.  That is a big "if," for the reasons Reams noted.

Peculiarities in Victims' Names May Link Killer to California and New York Cold Cases:  Authorities have finally arrested a Reno man they believe murdered four women from 1977 to 1994 in Northern California.  But the alliteration in the victims' names has investigators suspicious of whether Joseph Naso, 77, is responsible for other killings whose similarities seem too bizarre to be just a coincidence.  New York state police are investigating whether there's a connection between Naso and the deaths of three young girls in the Rochester area in the early 1970s.  Like the four women whose bodies were found in Northern California, the three girls found in Rochester also had matching initials for their first and last names.  In a more peculiar similarity, one of the victims found in Northern California had the exact same name as one of the victims in Rochester.  Naso once lived in Rochester, New York and traveled between there and the West in the early 1970s as a professional photographer.  Authorities have found no other evidence linking Naso to the Rochester murders, and a DNA sample taken from one of the Rochester victims did not match Naso.  Still, New York authorities say Naso remains a suspect.  Marin County District Attorney Ed Berberian plans to seek the death penalty against Naso, who's scheduled for arraignment today on four counts of murder with special circumstances.  AP writers Jason Dearen and Scott Sonner have this story.

Computers in Prison

Should prison inmates be given access to computer to do legal research for their pro se appeals, habeas petitions, peanut butter suits, etc.?  Sure, why not, one might say.  Well, this NLJ story by Sheri Qualters tells us why not.

The U.S. Court of Appeals for the 1st Circuit upheld a lower court's order requiring a detainee convicted of hacking a prison computer system to pay for credit-monitoring services for prison employees.

In a unanimous panel ruling on April 12 in U.S. v. Janosko, the 1st Circuit affirmed District of Massachusetts Judge George O'Toole's restitution order. Retired U.S. Supreme Court Associate Justice David Souter, sitting by designation, wrote the opinion. Judge Kermit Lipez and Senior Judge Bruce Selya joined the ruling.

The appeal concerned O'Toole's order that Francis Janosko must pay the Plymouth County Sheriff's Department's $6,600 bill for credit monitoring. Court records show that Janosko hacked the Internet and employee and job applicant databases at the Plymouth County Correctional Facility in Plymouth, Mass. He was held at the prison from October 2006 through February 2007, first on a probation violation and then as a pretrial detainee.

Racial Profiling, Once More

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One of the principal means used to undermine confidence in law enforcement is the allegation that it's racist.  This is a common tool, and is a subset of the general attack on the United States as an indecent and profoundly flawed nation that long since forfieted the right unapologetically to defend its citizens from criminals.

The notion that a degree of racism persists in the United States is true.  The notion that it principally accounts for the higher arrest and incarceration rate of blacks is false.  The notion that we should hesitate forcefully to defend ourselves against criminals, whatever their race, is preposterous. 

Today, the subject is usefully re-visited by Scott Johnson on Powerline.  Here are a few excerpts:

Heather Mac Donald has done her best to illuminate the facts underlying the racial profiling controversy. See, for example, her National Review article "Reporting while wrong.". The article's subhead is "The New York Times peddles more 'driving while black' malarkey." As might be deduced from the article's title, Mac Donald explores the New York Times's abuse of the relevant data. This is a beat that Mac Donald has simply owned and that she covered in her book Are Cops Racist?.

Mac Donald's NR article begins with an exposition of the key role played by University of Toledo Law School Professor David Harris in promulgating the myth of racial profiling. Harris served as the intellectual guru of the racial profiling campaign waged by the ACLU. As an ACLU consultant, he wrote wrote the influential pamphlet Driving While Black to which Mac Donald referred at the top of her article; the racial profiling litigation that brought the issue of alleged racial profiling in traffic stops to national attention in 2000 was a project of the ACLU.


Harris argues that crime rates are equal among racial groups and that racial disparities in the criminal justice system are therefore a function of bias. He simply discounts the basic data regarding racial disparities in crime rates, omits any reference to the basic data regarding the racial identification of perpetrators by victims, and dispenses with the related criminological scholarship of the past 30 years or so.

Ohio executes two-time murderer

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AP reports from Lucasville, Ohio:

A man was executed Tuesday for beating and stomping to death a fellow jail inmate days after the two had argued over what to watch on television.

Clarence Carter, 49, died at 10:25 a.m. at the Southern Ohio Correctional Facility. He was the second inmate killed using the surgical sedative pentobarbital as a stand-alone execution drug.

Carter, who was waiting to be sentenced for aggravated murder in 1988 when he attacked Johnny Allen Jr., looked to see if any of Allen's family members were present. Seeing none, he still delivered an apology.

"I'd like to say I'm sorry for what I did, especially to his mother. I ask God for forgiveness and them for forgiveness," he said.

He smiled at his brother and appeared to pray as the lethal injection began. After several deep breaths, his eyes closed. He fell silent about a minute into the procedure.

Good to see AP referring to pentobarbital as a surgical sedative.  Earlier press reports on this substitute drug, uncritically regurgitating anti-death-penalty spin, have referred to it with the loaded term of "animal drug."  It is used on animals, of course, but it is also used for surgery on humans.  Referring to it as an animal drug is a misleading half-truth.  Even though literally true, it intentionally creates a false impression in the mind of the reader that this drug is not one used for humans.  The intentionally misleading half-truth is the number one weapon of the anti-DP side.

The manner of Carter's departure also contradicts the argument that the death penalty is degrading.  Quite the opposite, it provides an opportunity, for those who wish to take it, to accept responsibility, apologize, and take their punishment in one moment.  Life imprisonment cannot do that, as the punishment is necessarily dragged out over the remainder of their lifetime.  There is a redemption of sorts in this.

News Scan

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Attorney Seeks Delay in Two Mississippi executions:  The Clarion Ledger (MS) reports attorney Glenn Swartzfager of the Mississippi Office of Post-Conviction Counsel is seeking to delay the executions of death row inmates Rodney Gray and Benny Joe Stevens, claiming they received inadequate counsel.  Gray was sentenced to death in 1996 for the 1994 rape and murder of 79-year-old Grace Blackwell.  Swartzfager stated that Gray's previous attorney did not request a thorough mental exam or show evidence of Gray's "substantial brain dysfunction and traumatic childhood."  Stevens was sentenced to death in 1999 for killing four people, including his former wife and 11-year-old son.  Gray's execution date is scheduled for April 27th and Stevens' is scheduled for May 4th.  The U.S. Supreme Court has declined to hear both men's appeals. 

Supreme Court Asked to Hear Appeal in Overturned Conviction:  Danielle Camilli of the Burlington County Times (NJ) reports the Attorney General is seeking review from the New Jersey Supreme Court of the overturned conviction of 23-year-old Boyce Singleton.  Singleton was sentenced to 50 years in prison in 2008 for the murder of his 38-year-old pregnant girlfriend Michelle Cazan.  Singleton had raised an insanity defense at trial, claiming God had commanded him to kill Cazan because she had become evil. The Appellate Division of Superior Court overturned the conviction last month, finding that the jury should have been instructed that "at times insanity may be established even when the defendant knows his or her act is legally wrong if acting under the compulsion of a command from God."

Federal Death Sentence Tossed:  The AP reports U.S. District Judge Ginger Berrigan reversed the death sentence for John Wayne Johnson, 58, who participated in a 2004 robbery that led to the death of Sheriff Lt. Sydney Zaffuto in New Orleans.  In 2009, a jury convicted him and recommended a sentence of death. Johnson's attorneys claimed a racial bias in the government's selection of when to seek the death penalty. Johnson's conviction remains intact.  An appeal to the Fifth Circuit regarding the reversed sentence was dismissed by federal prosecutors.  

MA Mom Convicted After Withholding Cancer Meds from Autistic Son: Denise Lavoie of the Associated Press reports that a Massachusetts jury convicted Kristen LaBrie of attempted murder, child endangerment, and assault and battery for failing to give her son at least five months of of cancer medications for non-Hodgkins lymphoma. Jeremy Fraser, who was diagnosed in 2006 and was also autistic, died in 2009 at age 9. LaBrie said she stopped giving her son the medication because of  the side effects, and that she "didn't want to make him any sicker." Jeremy's oncologist testified that with proper care Jeremy's cancer had a 85 to 90 percent cure rate. LaBrie's sister said she expected the child endangerment and assault charges, but was surprised by the attempted murder conviction. Sentencing is scheduled for Friday morning.

Michigan Makes Changes to Sex Offender Registry: Kathy Barks Hoffman of the Associated Press reports that Michigan Governor Rick Snyder signed legislation today in which teenagers convicted of having consensual sex with minors will no longer have to register as sex offenders. It is still illegal to have sex with someone under 17 years old, but youth who had consensual partners between the ages of 13 and 16 will no longer be listed on the state sex offender registry, provided that they were no more than four years older than their partner. Youth offenders currently on the registry can now begin to petition to have their names removed. Also, the most dangerous sex offenders will now be included on the registry for life. Michigan risked losing part of its federal law enforcement funding unless changes were made. Offenders on the registry will now also have to provide more information like their Social Security numbers, email addresses, and passport details to make it easier for law enforcement to track offenders.
Good news and bad news from the Ninth Circuit yesterday.  The good news is that court held, in an opinion by Chief Judge Kozinski without dissent, "At some point, litigation must come to an end. That point has now been reached."

The bad news is that this statement was not made in a capital habeas case but rather in a civil case, the notorious Facebook v. Connectu, Inc.

Even so, it's a nice quotable line.

Murder of Police Officers Way Up This Year

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CBS News has a disturbing report that starts this way:

St. Petersburg, Fla. - The police killings began Jan. 1, with the fatal shooting of a deputy in Ohio. And the violence has continued, reports CBS News justice correspondent Bob Orr.

So far this year, 26 officers have been gunned down - 44 percent more than the 18 shot and killed at this point in 2010.

But it's the third paragraph that raised my eyebrows:

Many of the fallen have been ambushed by violent career criminals with easy access to high-powered weapons.

Q:  And why do we have "violent career criminals" out on the street where they have access to weapons at all, much less high-powered weapons?

A:  Because, contrary to the drumbeat about allegedly excessive imprisonment in "incarceration nation," the truth is that we aren't sufficiently serious about putting dangerous people behind bars and keeping them there.  The results of the Left's obsession with imprisonment (combined with its intentional obliviousness to crime) are, unfortunately  --  but predictably  --  spelled out in blood.

In United States v. Arizona, No. 10-16645, a divided panel of the US Court of Appeals for the Ninth Circuit has upheld the preliminary injunction of Arizona's controversial immigration law, SB 1070.  Opinion by Judge Paez.  Concurrence by Judge Noonan.  Dissent by Judge Bea.  Expect this to go en banc or to the Supreme Court.

News Scan

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Serial Killer Dies on Death Row:  The Associated Press reports Ohio death row inmate Edward Edwards, 77, died last Thursday of natural causes.  Edwards was sentenced to death for killing his foster son in 1996 for $250,000 in life insurance, a crime to which he reportedly confessed because he wanted the death penalty.  Edwards had also been convicted of shooting to death two people in the 1970s and a 19-year-old couple in 1980.  In his 1974 autobiography "Metamorphosis of a Criminal", Edwards writes he knew what he wanted to be at a young age: "I'm gonna be a crook, and I'm gonna be a good one." 

Appeals Court Reverses Whatcom County Convictions:  Peter Jensen reports in The News Tribune (WA) that at least 17 convictions in a Washington county have been or could be overturned because prospective jurors were questioned in judges' chambers.  Though this practice has been very common during jury selection, in its 1995 ruling, State v. Joe Bone-Club, and in several later decisions the Washington Supreme Court held it to violate a defendant's right to a public trial under certain circumstances.  Facing the additional burden of overturned convictions, the state prosecuting attorneys' association has filed a brief asking the state high court to revisit its 1995 ruling.

IQ Test Might Not Be Enough, Says State Supreme Court:  The Tennessee Supreme Court today held that trial courts are not required to accept the results of a standard IQ test when determining whether an inmate is "intellectually disabled" and thus ineligible for the death penalty.  Courts may also consider expert testimony that the test result is artificially inflated or deflated.  The AP has this story.

Missouri Bill Would Close Graphic Crime Images:  The AP reports that a Missouri legislator is sponsoring a bill that would exempt graphic crime photos and videos from the state's open records laws.  House Republican Scott Largent says the bill would protect victims' families by preventing these kinds of photos and videos from appearing on the internet.

Kent and I have put up a number of posts about Miranda as applied to captured terrorists.  The premise of my discussion has been the assumption that our government would make an effort to interrogate these people, given that they could have life-saving intelligence.

My bad.

Today's LA Times tells us that the CIA has now given up questioning terrorists captured abroad.  And no, this is not a late and bad April Fools Day joke.  The story starts out:

"He's considered one of world's most dangerous terrorism suspects, and the U.S. offered a $1-million reward for his capture in 2005. Intelligence experts say he's a master bomb maker and extremist leader who possesses a wealth of information about Al Qaeda-linked groups in Southeast Asia.

"Yet the U.S. has made no move to interrogate or seek custody of Indonesian militant Umar Patek since he was apprehended this year by officials in Pakistan with the help of a CIA tip, U.S. and Pakistani officials say****"The CIA is out of the detention and interrogation business," said a U.S. official who is familiar with intelligence operations but was not authorized to speak publicly."

A number of reasons are given for the change in policy, mostly linked to President Obama's pristine, Ivy League view of the nasty necessities of national self-defense, but this is the one I found most amazing:

[S]ome CIA officers are spooked by a long-running criminal investigation by a Washington special prosecutor into whether CIA officers broke the law by conducting brutal interrogations of suspected terrorists during the Bush administration.

Yes, folks, when you threaten your own people with jail for doing the unpleasant work needed to win our war against savagery, they're probably going to stop.


Lessons from Nuremberg

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The Attorney General has decided, albeit reluctantly, to go back on his word and allow KSM to be tried before a military tribunal.  The AG's furrowed brow consternation implies the relative undesirability of military tribunals compared to civilian trials.  This is both odd and unfortunate given, among many other things, his Department's deplorable record, most recently and prominently on display in the Ahmed Ghailani case, where the Department managed a conviction rate of 0.0035.

Well, whatever.  Why insist on success when we can have high-minded blather to soothe the fabulously hypocritical scolds in the "international community"  --  not that they could be soothed in any event.

The AG might do well to read today's op-ed in of all things the New York Times, titled "Lessons from Nuremberg."  The author is British journalist William Shawcross, son of Sir Hartley Shawcross, Britain's chief prosecutor at the Nuremberg trials and Winston Churchill's attorney.  The whole piece is worth your time, but these two paragraphs were particularly striking:

The trial of Khalid Shaikh Mohammed and his co-defendants is of vital significance because it addresses not just a group of thugs but the enduring human phenomenon of evil. No two eras are the same, nor are the threats they face identical. But evil is eternal and re-invents itself in every age.

In the 1940s the world confronted and, with immense sacrifice, defeated the evil of fascism. The scale and the nature of the threat is different today but true menace -- from the attacks of 9/11 itself to the recent beheading of United Nations workers in Afghanistan simply because a Koran was burned in Florida -- lurks patient and opportunistic. It cannot be appeased any more than Hitler could be appeased.

News Scan

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Judge Orders Alleged Rape Victim to Testify:  Josh Funk of the Associated Press reports Lancaster County District Judge Paul Merritt has issued a contempt order against a 24-year-old rape victim, threatening up to 90 days in jail if she does not testify against her alleged attacker.  Glen Riensche, 62, is charged with sexually assaulting the then-child victim over a two-year period in the early 1990s.  The victim was initially cooperative with police, but then became unwilling to testify, stating that discussion of her previous sexual abuse would cause humiliation to her and her children.  Although victim testimony in these cases is often critical, president and founder of the Rape, Abuse, and Incest National Network Scott Berkowitz says this type of judicial action is counterproductive to efforts to get more rape victims to report their assaults. 

Nevada Bill Could Reduce Death Penalty Appeals:  Testimony was heard yesterday on a bill proposed in the Nevada Senate aimed at cutting delays in the state's death penalty process, reports Jaclyn O'Malley of the Reno-Gazette Journal.  Last year, the average time spent on Nevada death row was 17 years.  The bill, introduced by Senator Don Gustavson (R), will give local judges the discretion to appoint new lawyers for the inmate's postconviction proceedings, rather than leaving it mandatory under current law.  Supporters estimate the bill, if passed, could save the state millions of dollars.

Wiretapping Not Permitted in Massachusetts Gang Murder:  The Massachusetts Supreme Judicial Court today held police improperly used the state wiretap law to gather evidence about a murderous street gang.  The state's current law permits wiretapping only for offenses associated with "organized crime," defined as "a continuing conspiracy among highly organized and disciplined groups to engage in supplying goods and services."  Because the gang murder in this case was not tied to a "pecuniary or illegal business purpose" or the strict disciplinary structure characteristic of organized crime groups, the wiretapping statute was not applicable.  John R. Ellement of The Boston Globe writes two concurring justices used "unusually blunt language" to urge legislative expansion of the 1986 law.

New York Choking Law Has "Unprecedented" Impact:  The Elmira Star-Gazette (NY) reports officials yesterday announced an "unprecedented" impact from New York's recent strangulation law.  The law established three crimes for strangulation, two felonies and one misdemeanor, depending on the severity of effect to the victim.  Previously, alleged abusers could strangle a victim almost to the point of unconsciousness but avoid punishment if the victim did not display signs of physical injury.  More than 2,000 people were charged during the first 15 weeks after the law went into effect.  Although a majority of the charges were misdemeanors, New York law requires DNA collection of those charged, which could help other law enforcement efforts.   

Spotting "Criminal Types"

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George Lowery has this post at physorg.com:

A woman walking her dog encounters a man. She has an instant, visceral reaction to him and screams. The next day, she sees his picture in the newspaper; he has been charged with rape.

This anecdote prompted three Cornell researchers to reopen a "long and sordid" history of research and debate about whether we can determine who is a criminal by looking at his face.

Their finding: We can.

"We can" is an overstatement.  The authors describe the effect as "small but reliable."

Somewhat surprisingly, men, on average, are better at spotting rapists than women.

More on Wisconsin

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Following up on Bill's post, Nate Silver at the NYT's 538 Blog has this post, throwing some numerical cold water on conspiracy theories.

Kent posted here about the very close race for the Wisconsin Supreme Court.  It appeared that the more liberal candidate had eeked out a victory.  But today's news is more encouraging.  As reported on Powerline:

The Wisconsin Supreme Court race is now in the canvassing stage, in which precincts and counties review their vote totals and confirm or revise the results that were initially reported. It is not unusual for mistakes to be discovered in this process; indeed, this was the phase in which Norm Coleman lost most of the lead over Al Franken that had been reported on election day.

The Milwaukee Journal Sentinel reports that Winnebago County has revised its vote totals in a manner that nets Justice David Prosser 244 additional votes, which would give him a 40-vote lead statewide. Most likely more changes will be forthcoming, but the message for now is that the race isn't over yet.

UPDATE: The latest development is that because of a computer error, Waukesha County apparently failed to report vote totals for the entire town of Brookfield, a solidly conservative city. According to this report, adding Brookfield's votes will give Justice Prosser an additional 7,381 net votes--and, presumably, the election.

Right Result, Wrong Process on Miranda

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A couple of weeks ago, I wrote that Congress should take a hand in revising Miranda rules to allow extended interrogation of terror suspects without Miranda warnings.  Simply changing Miranda's requirements by DOJ fiat would arrogate excess power to the executive branch, and is almost surely illegal in light of Dickerson v. United States.  In Dickerson, the Court held that since its own improvised Miranda rule was "rooted" in the Constitution, the elected branches had no authority to modify it.  Only the Court could modify it  --  as it had done, for example, in New York v. Quarles, 467 U.S. 649 (1984).

The Washington Post today editorializes that there should indeed be a relaxation of Miranda for terror interrogations; that the elected branches should compose the new rules; and, wisely, that those rules  should "allow a suspect to be questioned for a matter of days, rather than hours."  The Post adds that "this added measure of flexibility would come with a requirement that a federal judge be informed that the suspect was being questioned to ensure that the more malleable standards were not being abused."

This seems like a mostly sound proposal on its merits.  The problem is that it overlooks Dickerson, which would have to be overruled or significantly modified for the Post's suggestion to work.

Theoretically, of course, it's possible that the Post simply didn't know about Dickerson  --  but only theoretically.  In fact, at the time Dickerson was pending, the Post editorialized in favor of the obtuse result the Court reached, putting Miranda beyond the reach of democratic processes.  Beyond that, last week I submitted to the Post an op-ed suggesting largely the same changes to Miranda it endorsed today, but explicitly addressing the Dickerson problem and suggesting how it could be confronted.

If the Post didn't want to publish the op-ed, fine.  It's their paper, not mine.  But in order for its suggestion today to work, both it and the Court are going to have to eat a little Dickerson crow.  It won't be a tasty dish, but winning the intelligence war against al Qaeda is more important than optimal digestion. 

News Scan

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Suspect Pleads Not Guilty in Jaycee Dugard Case: The AP reports convicted sex offender Phillip Garrido pleaded not guilty today to charges he held captive and raped Jaycee Dugard for nearly twenty years.  His plea was unexpected, as defense attorney for Phillip's wife Nancy Garrido indicated last week that Phillip would plead guilty as part of an agreement with prosecutors.  Nancy also pleaded not guilty today to charges for her alleged involvement in Jaycee's abduction.  A trial has been set for this summer.

"Latin Kings" Leader Convicted in Federal Court:  A federal jury in Chicago yesterday convicted Augustin "Tino" Zambrano, considered by authorities to be the highest-ranking leader of the violent "Latin Kings" gang.  During the six week trial, prosecutors presented evidence gathered from over eight years about the gang's violence, drug dealing, and strict rules.  Three other gang leaders were also convicted.  The AP has this story.

Insanity and a Double Murder:  The AP reports the Mississippi Supreme Court today affirmed the conviction of Keir Sanders, found guilty of murdering his grandmother in 1985 but found not guilty by reason of insanity for killing his grandfather that same day.  His attorneys had claimed the inconsistent verdicts warranted a new trial.  The court disagreed 6-3:  "[T]here is reasonable evidence to conclude that [the grandmother] was slain in an effort to avoid responsibility for the death of [the grandfather] and not in a paranoid delusion. . . After being properly instructed regarding the burden of proving whether or not Sanders was legally sane, the jury found him guilty. . . We are in no position to make a better judgment than the jurors . . ."

The Insidious Costs of Crime

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With monetary issues now front and center in the crime debate, we have to consider costs and benefits of locking up the bad guys or letting them out.  One problem is that the full cost of letting them out (or the benefit of keeping them locked up) is impossible to measure.

A direct cost is borne by the people the predators prey upon.  Putting dollar values on crimes is dicey, but we can at least take a stab at it.  Other costs are even more difficult to quantify.  Suppose I buy a surveillance camera for my house for $300, a purchase made necessary by rising burglary rates, even though my house hasn't been hit yet.  That is $300 I don't have to spend on something else, such as a television, a vacation, or tuition.  The expenditure shows up equally in the GDP, but I have lost something in the quality of life by foregoing that other purchase.

Yesterday, I resumed taking public transportation to work after a hiatus, and I parked my car in the park-and-ride lot where I used to park it.  The other passengers promptly informed me that I was crazy to park there.  Smashed windows and thefts of car radios and entire cars are now rampant there.  All of the passengers who used to park there now either park at a less convenient stop or have family members drop them off.  There are costs to either alternative in lost time, but no economist can measure these costs.  Some other people, I am sure, have returned to driving their individual cars, with the impact on the environment that entails.  We can't measure that, either.

Impeachment Nonsense

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The President and other "civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, and other high Crimes and Misdemeanors."  Is sending military forces into action without prior approval of Congress any of those?  Of course not.  Yet Bruce Fein thinks so, calling for the impeachment of President Obama as he did for President Bush.  He's a crank, but at least he's a consistent crank.

Jonathan Adler has this post at VC and links to this article by Jack Goldsmith.

Nice Try, Jeff Skilling

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I have previously noted my view that our culture, including unfortunately our business culture, is shot through with deceit and slick practice.  I was therefore half-rooting for the government to win its "honest services" case in the Supreme Court against former Enron executive Jeffrey Skilling.

The honest services statute is broadly written, and therefore liable to abuse at the hands of a politically-driven executive branch.  In the present climate, that is no small concern.  On the other hand, the long-term dumbing down of standards of honesty strikes me as ominous.  Law is a blunt and inapt instrument for dealing with cultural decline, but has a certain utility nonetheless  --  as a sign, for example, that society is still capable of saying "no" and meaning it.

In Skilling's case, the Supreme Court took a bite out of the honest services statute by confining it to standard bribery and fraud.  It remanded the case to the Fifth Circuit to determine whether the prosecution's reliance in part on an impermissibly broad "honest services" theory was harmless error, in light of the mass of other evidence that supported Skilling's convictions under the honest services statute as narrowed.

Yesterday, a unanimous panel of the Fifth Circuit found the error harmless, affirmed all the convictions, and remanded the case to the district court for resentencing.  Skilling might get a small sentence reduction, but my bet is he won't.  Under the Sentencing Guidelines' still-viable relevant conduct rule, and the district court's much expanded discretion in the wake of Booker, Gall and Kimbrough, Skilling is likely to face the same music he faced the first time.  He is, after all, no less a breathtaking crook now than he was then.


News Scan

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Judge Refuses Killer's Guilty Plea:  A California judge has refused to allow a California man to plead guilty to capital charges, reports the AP.  Howard Smith is charged with shooting to death an 84-year-old father and his 48-year-old son while robbing their rural San Joaquin county property last month.  Smith refused a lawyer on Monday and attempted to plead guilty, even if the plea resulted in a death sentence.  The judge said she couldn't allow him to do so and assigned him a public defender.

Growing Body Count as Police Continue Search for Missing Woman Along Long Island Shore:   Long Island investigators discovered the remains of three more bodies on Monday, leaving a total of eight bodies that have been discovered on a several-mile stretch of Long Island shore.  (See previous post here.)  The search of the area began when investigators were looking for missing prostitute Shannan Gilbert, whose whereabouts are still unknown.  Chief of detectives of the Suffolk County Police Dominick Varrone said it was too soon to tell if any of the newest victims were connected to the earlier murders that were discovered in December, but that the four latest victims had been left there at least as long as the earlier victims.  Nearby residents are fearful and report that property values in the area have dropped significantly.  New York Times reporters Manny Fernandez and Al Baker have this story.

L.A. 'Grim Sleeper' Serial Killer May Have 8 Additional Victims:  Christina Hoag of the AP reports Los Angeles detectives believe the suspected "Grim Sleeper" serial killer may be responsible for up to eight additional killings, but the likelihood is strongest for three women whose photos and IDs were found in a secret stash in the killer's refrigerator.  Suspect Lonnie Franklin Jr. was arrested last July and indicted earlier this month on ten counts of murder and one attempted murder in connection with a string of slayings that started in the 1980s and extended into the 2000s.  Police are now focusing on the three women whose photos were found in Franklin's fridge along with a picture of another woman Franklin is charged with killing - Janecia Peters. The recently discovered photos were found separate from hundreds of other sexually explicit pictures of other women throughout Franklin's house.  Because Peters was found murdered, detectives fear the other women in the photos met the same fate.  Franklin has pleaded not guilty and is in jail awaiting trial.

House Approves Murder Registry Bill:  Todd Wilson of the Chicago Tribune reports the Illinois House approved legislation for a registry tracking convicted first-degree murderers for ten years after their release from prison.  "Andrea's Law," was inspired by the killing of Patricia Rosenberg's daughter, whose killer served only 10 years of a 24-year sentence.  The House vote was 97-1 and the bill will now move to the Senate.

New Jersey Governor Seeks to End Mandatory Parole Hearings:  New Jersey Governor Chris Christie is seeking to end mandatory parole hearings for inmates, reports Kibret Markos of NorthJersey.com.  In response to a bill that would widen the interval for mandatory parole hearings from three years to ten, Christie issued a conditional veto to eliminate mandatory hearings at any interval, noting that the bill as it stands "does not provide sufficient reform" to the current parole process.  Christie's move is receiving support so far from law enforcement and victims' families.  The New Jersey Senate may accept or reject Christie's conditional veto.

Photo Finish for Wisc. Supreme Ct.

Crime issues are not front and center in the Wisconsin Supreme Court race, but we have seen elsewhere how the dynamics on crime issues are affected by political shifts that happen for unrelated reasons.  In Illinois, for example, the repeal of the death penalty was pushed through in a lame duck session.  The legislature there, like much of America, had taken on an unusual leftward tilt in the 2006-2008 period.  It was set to become relatively more conservative as a result of the reversion-to-the-mean election of 2010.

In Wisconsin, the Chief Justice election is all about government employee unions.  Yet the outcome will surely affect criminal law.  As of 9:00 a.m., WPR reports, incumbent CJ David Prosser was a mere 800 votes ahead.

Update:  With all precincts reporting, Jay Sorgi of AP reports, "The race between Justice David Prosser and challenger JoAnne Kloppenburg was officially too close to call, but unofficially, JoAnne Kloppenburg has a 204 vote lead.  Final, official results could vary and a recount appeared likely. "

The Womb Snatcher Case

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The US Court of Appeals for the Eighth Circuit today upheld the federal conviction and death sentence of Lisa Montgomery.  This is the bizarre case of a woman who strangled a pregnant acquaintance, Bobbie Jo Stinnett, near the end of her term, sliced upon her womb, and kidnapped her baby, Victoria Jo.  The Kansas City Star has this story.

From a trial practice standpoint, the most important part of the decision may be its treatment of PET scan evidence and the testimony of Dr. Ruben Gur.

News Scan

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Governor Brown Signs Bill to Transfer State Prison Inmates to County Jails:  Jack Dolan of the Los Angeles Times reports California Governor Jerry Brown signed a bill that will transfer tens of thousands of felons convicted of non-violent crimes from state prisons to county jails.  The measure is intended to reduce the number of inmates in the overcrowded state prison system and keep low level offenders closer to their homes, where drug treatment and mental health services are available.  Los Angeles County District Attorney Steve Cooley opposes the bill, arguing county jails are also crowded and lack the resources to serve as a substitute prison.  "Public safety requires appropriate incarceration and deterrence ...and both of those will suffer under the proposal," said Cooley.   

Los Angeles Times on PinholsterDavid G. Savage of the Los Angeles Times has this report on yesterday's 5-4 decision Cullen v. Pinholster.

Supreme Court Grants Execution Stay for Arizona Inmate:  Amanda Lee Myers of the Associated Press reports the U.S. Supreme Court granted a stay of execution for Daniel Wayne Cook, 49, who was scheduled to die today for two 1987 murders.  Cook and co-defendant John Matzke raped, tortured, and killed 26-year-old Carlos Cruz-Ramos and 16-year-old Kevin Swaney.  Cook's lawyers argue that he received ineffective counsel during his post-conviction proceedings, claiming his attorneys failed to present evidence that Cook endured extreme physical and sexual abuse during his childhood.  His attorneys have also challenged the effectiveness of Arizona's current supply of sodium thiopental.  If the Supreme Court does not lift the stay by tomorrow morning, a new death warrant must be issued.

Another Life Sentence for Convicted Child Killer:
  Convicted serial killer and federal death row inmate Joseph Duncan III was sentenced to an additional life sentence today after pleading guilty last month to the abduction, rape, and beating death of a California boy in 1997.  Duncan has already been sentenced to death for the murders of an Idaho boy and three members of his family, a fact that ultimately led Riverside County District Attorney Paul Zellerbach against seeking the death penalty in this case.  But Zellerbach added when announcing his decision: "I've never seen a person in my professional career who deserves the death penalty more than Joseph Duncan."  The Desert Sun (CA) has this story.  Last month's guilty plea in the case was noted here.


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James Taranto of the WSJ writes on AG Eric Holder and the KSM trial reversal:

Attorney General Eric Holder was walking with a so-light tread on a roses' petals carpet--a dove on his shoulder, a swallow in each hand, pastel colors butterflies. It was only a dream. It was only a dream, but so beautiful that it was true. A smile on his lips, a smile that he has kept after his dream is over.

Oh sorry, that was Celine Dion.

The attorney general was all scowls yesterday when, according to a poignant New York Times editorial, "Mr. Holder's dream . . . crumbled." The somnolent fantasy in question was the "federal court trial for the self-professed mastermind of Sept. 11 attacks, Khalid Shaikh Mohammed," which Holder "described . . . as 'the defining event of my time as attorney general,' " although it did not happen and will not happen.

Well, yes, a failure in the KSM trial, defined as any result other than a death sentence, would indeed have been the defining moment, but not in a good way.  Although Mr. Holder said failure is not an option, in light of the Moussaoui and Ghailani failures it was a distinct possibility.  Much as he grumbles about it, Congress may have saved Mr. Holder from himself.

Death Sentences Up in Ohio

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The decline in the number of death sentences in recent years has been the subject of much discussion.  As I have noted previously on this blog, a big chunk of the decrease is attributable simply to the drop in murders.  What accounts for the rest?

One possible component is the fatigue factor.  The appeals drag out so long with such uncertain results that prosecutors are less likely to seek the death penalty in cases on the low end of the range of cases where they would seek the death penalty in a fully functioning system.  If this hypothesis is correct, then one would expect to see an increase in death sentences when a state gets its system working and actually carries out sentences in regular, if not necessarily speedy, manner.

Alan Johnson of the Columbus Dispatch reports that "Ohio bucked a national trend last year by sending seven people to Death Row - the most since 2003."  Ohio carried out 8 executions last year, the second most in the nation.

The story links to this report from the Ohio Attorney General.

Another Stay from SCOTUS

The US Supreme Court has stayed the execution of Texas murderer Cleve Foster.  Again.  Order here.  Docket here.  Curiously, as the docket shows, this arises on a petition for rehearing following denial of a certiorari petition.  Such rehearing petitions are "Hail Mary passes" that are very rarely granted.

Melody McDonald has this story in the Fort Worth Star Telegram.

A National Teaching Moment


Now that the Attorney General has decided  --  or, to hear him tell it, has been forced  --  to defer to military tribunals to try the hundreds of capital murder charges against KSM, we must seize the opportunity to have a national teaching moment about the death penalty. 

In the McVeigh case, abolitionists were prudent enough, for the most part, to hunker down.  They're wrong but they're not stupid, and they knew that the Oklahoma City atrocity was poison to their "never-no-matter-what" position.   A Gallup poll conducted shortly before McVeigh's execution found (emphasis added):

...that the vast majority of Americans -- including a majority of those who generally oppose the death penalty -- believe McVeigh should be executed....According to the poll, 81% of Americans believe McVeigh should be executed, while 16% think he should not. A majority of people who say they generally oppose the death penalty, 58%, believes McVeigh should be executed, while 42% do not. The latest Gallup poll figures show that 67% of Americans favor the death penalty in general, while 25% are opposed.

McVeigh killed fewer than seven percent of the number of people KSM slaughtered.  And, unlike the Murrah Building catastrophe, on 9-11 all of us saw the horrifying spectacle of human beings jumping to their final fate from a hundred stories up to avoid the terror and agony of being burned to death.

McVeigh was, as it were, a quasi-lethal injection to the abolitionist movement.  KSM gives us a drug ten times the strength.  The absurdity of the "never-no-matter-what" position is about to be writ large, and this time, we shouldn't let the abolitionists hide out. 

As I noted this morning, Attorney General Holder completely reversed field and declared that 9-11 mastermind KSM would be tried before a military commission at Gitmo after all.

This afternoon, Mr. Holder made clear that it wasn't his fault.  As news stories report:

Congress tied the Obama administration's hands in trying the alleged mastermind of the Sept. 11, 2001, terror attacks and his accomplices, Attorney General Eric Holder said Monday, announcing that he was left without a choice and has referred the cases to the Defense Department for trial. 

In stark language, Holder lambasted Congress for imposing restrictions blocking any detainees from being tried in the U.S., saying that the "unwise and unwarranted restrictions" undermine the U.S. in counter-intelligence and counter-terror efforts.

God forbid that the people's representatives should have a say about whether they want a civilian or military trial for the most bloody and brazen war criminal in 65 years or so.

Oddly, Mr. Holder forgot to mention how, exactly, this Congressional recalcitrance came about.  Further down the story, we find out (emphasis added):

During the lame-duck session last December, Congress acted to prevent the federal trials by attached to a defense authorization bill provisions that prohibited detainees from being brought to trial in the United States.

Oh, OK.  So barring a civilian trial was done by Mr. Holder's (and President Obama's) own party when it had massive Congressional majorities.  'Lan sakes alive! 


News Scan

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The AP on Pinholster:  The AP has this article on the Pinholster decision issued today.  See Kent's post here.

Court to Review Jail Strip Searches:  The Supreme Court today agreed to review a Third Circuit opinion upholding routine strip searches of arrestees upon their arrival in jail, reports the AP.  Albert Florence sued a New Jersey county jail after officials conducted a strip and visual body-cavity search, alleging a violation of his Fourth Amendment rights.  The Third Circuit, while "not minimiz[ing] the extreme intrusion on privacy" that accompanies a strip search, upheld the practice in light of a detention facility's security and safety interests.  The case is Florence v. Board of Chosen Freeholders of the County of Burlington, case no. 10-945.

Texas Board Denies Clemency for Death Row Inmate:
  The Texas Board of Pardons and Paroles denied clemency today for death row inmate Cleve Foster, 47, who is scheduled for execution tomorrow for the murder of a Sudanese woman at a Fort Worth bar nine years ago.  Foster's attorneys had argued officials didn't follow administrative procedures properly when they announced the substitute of pentobarbital for sodium thiopental last month, a claim rejected by a state trial court last week.  Michael Graczyk of the AP has this story.

Medical Marijuana & Guns:  Jeff Barnard of the AP reports on the clash unfolding in Oregon between medical marijuana rights and the Second Amendment.  A few sheriffs in Oregon have denied gun permits to people with medical marijuana cards, claiming support in federal gun control legislation.  A group of card carriers have fought back, arguing state gun law trumps federal law in this situation.  The case is now pending in the Oregon Supreme Court.

Burglarizing Your Own Home:  Your partial ownership of property doesn't mean you can't burgle it, the Supreme Court of South Carolina held today.  Ferris Singley was sentenced to life in prison after he was convicted of breaking into his childhood home, tying his mother to a bed, and demanding money.  On appeal, Singley claimed he had a 12.5 percent interest in the home and could not be validly convicted of breaking into his "own home."  The court rejected his argument.  "[T]he proper test is whether, under the totality of the circumstances, a burglary defendant had custody and control of, and the right and expectation to be safe and secure in, the dwelling burglarized."  Because Singley had been kicked out of his childhood home "with little protest," found another place to live, and reentered the house six months later through a back window, a jury could have reasonably concluded Singley did not have a lawful possessory interest in the home.  Meg Kinnard of the AP has this story.

Executions Tomorrow

Two executions are scheduled for tomorrow:  Cleve Foster in Texas, previously noted here, and Daniel Wayne Cook in Arizona, previously noted here.  Even the Ninth Circuit didn't buy Cook's lethal injection challenge. Update:  The Supreme Court has granted Cook a stay pending review of his certiorari petition.  Michael Kiefer of the Arizona Republic reports that the stay is not based on the thiopental claim ...

But the stay is instead based on a petition arguing that Cook did not have effective legal counsel during his trial. Cook fired his court-appointed attorney and defended himself. After his conviction in 1988, he failed - or did not know enough - to present mitigating evidence from his life that might have prompted the trial judge to impose a life sentence instead of death.
The stay does not necessarily mean the execution will not happen in the next couple of days.  Dylan Smith reports in the Tucson Sentinel,

Cook's death warrant runs from 10 a.m. Tuesday until 10 a.m. Wednesday. He could still be executed in that period at the Arizona State Prison Complex in Florence if the court denies to hear his appeal before the execution order expires.

Cook was convicted of two counts of first-degree murder in the tortuous 1987 killings of Kevin Swaney, 16, and Carlos Cruz-Ramos, 26, in Lake Havasu City.

As so often happens, today's US Supreme Court decision in Cullen v. Pinholster resolves an important question but leaves others unanswered.

Let us take the decision first.  In the language of the statute every federal habeas lawyer knows by heart, a claim rejected on the merits by the state court cannot be the basis for federal habeas relief "unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
The term "application" in paragraph (1) refers to application of the rule of law established in a Supreme Court precedent to particular facts.  What facts?  "It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."

Certainly this is important in terms of having the case decided with proper respect for the state court decision.  Will it also reduce the present egregious delays in capital cases?  It should.

As a candidate, Barack Obama relentlessly demagogued the previous administration's decision to use military tribunals to dispense justice to terrorists captured on the battlefield.  Civilian trials were more than adequate, we were told (finger wagging in the air), and, more importantly, kept us "faithful to our values"  --  although "faithful" seemed to be more than a stretch, since the largely jury-rigged Nuremburg trials were themselves military commissions, originally set in motion by such pikers as FDR and Winston Churchill.

The problem was that Mr. Obama's political allies in New York wanted none of the civilian trial of KSM that was originally to be held there.  Thus today, seemingly more out of politics than any hard thinking, comes this bulletin from Fox News:

The alleged mastermind of the Sept. 11, 2001, terror attacks on the U.S. will be referred to the Defense Department for trial, two sources familiar with the case told Fox News on Monday. 

Khalid Sheikh Mohammad, who has been incarcerated in Guantanamo Bay, Cuba, since 2006, after being captured in Pakistan in 2003, and his alleged Sept. 11 co-conspirators will face prosecution by a military commission, the source said. 

An announcement is expected by Attorney General Eric Holder later in the day. The decision is a turn-around after Holder said in November 2009 that he had decided the conspirators should be prosecuted in civilian court.

I won't even go into the governing law, since from Mr. Holder's perspective there doesn't seem to be any.  I'll settle just to observe that this back-and-forth incompetence is mind-boggling.  I can only pray the administration doesn't blow the case in the military tribunal, but I'm making no bets.

Victory in Pinholster

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Opinion is here.  Opinion by Justice Thomas.  Splits all over, but the opinion is a majority in its entirety.  I'll have more shortly.
Federal courts cannot overturn a state court decision on habeas corpus for mere disagreement on a question of federal law unless the state court decision was "contrary to or involved an unreasonable application of, clearly established Federal law."

Established as of when?  The Supreme Court took up that question today in Greene v. Fisher.  More on this case later.

BTW, in Greene v. Fisher, Greene is represented by a lawyer named Fisher.  An amicus supporting Greene is represented by a lawyer named Green.  So what is Fisher's lawyer's name?

Graham v. Florida, a Footnote

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In Graham v. Florida, decided a year ago next month, five Justices of the Supreme Court took the view that it is always cruel and unusual punishment to impose LWOP on a person under eighteen years of age for a non-homicide offense, no matter what it is.  Chief Justice Roberts believed that the punishment in Graham's particular case was cruel and unusual, but would not have established a per se rule.  Justices Scalia, Thomas and Alitio dissented.

I noted here that the decision had some ominous language for the death penalty.  Today, MSNBC brings us the news of a fellow, said to be 14 (although he doesn't look 14 to me) who brings his own perspective to the Jusitces' paean to teenage criminality.

The problem in Graham, as in other instances of high-minded judicial meandering, is that it sleepwalks its way past the fact that future victims are no less real, and no less deserving of the law's protection, than today's hoodlum, juvenile though he may be. 


Media Adjuncts to the Shake-and-Jive


I started out my last entry by noting that, because death penalty opponents can't sell their program by saying out loud what it is, there's always some diversionary wrinkle to get what they want without ever having to identify it.  Among those wrinkles are the moratorium with no end, LWOP that's not really LWOP, and the demand for the never-seems-to-be-possible correct mix of chemicals for lethal injection.

Reader "federalist" reminds me of another dipsy-doodle, to wit, the occasional pretense of educated neutrality.  This is most prominent with the very deceptively named Death Penalty Information Center.  You'd think from the name that dissemination of information is what goes on there and, in truth, some does.  But it's skewed, often vastly so, because the DPIC is in fact one of the leading abolitionist organizations in the country.

It was thus remarkable when the influential Washington Post referred to the DPIC as "a Washington-based group that does not take a position on the death penalty."  But that's exactly what the Post said.  

When "federalist" tried to get to Post to correct its error, he got nowhere.

The Post is my hometown paper, and although unabashedly abolitionist, is capable of very good journalism and, every now and again, giving space to dissenting views, including my own in a few op-eds.  It's disappointing that it would make a spectacular error like this, and yet worse that it declined to correct it. 

The Shake-and-Jive on Lethal Injection

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As public opinion polls overwhelmingly attest, death penalty opponents can't sell their program by saying out loud what it is, so there's always some diversionary wrinkle to get what they want without ever having to identify it.

This has a number of now-familiar guises.  One of the most popular in recent years has been the "moratorium."  You might have noticed that these proposed moratoria never seem to come with an end date.  Wonder what that means.

Then there's LWOP, the supposedly equally safe and effective alternative to the death penalty.  Putting to one side the fact that it is neither safe nor effective (see, e.g., Clarence Ray Allen), we now see  --  for example, as Kent set forth in spilling the beans about the movement in California to dilute LWOP for "juveniles,"  --  that LWOP doesn't actually deliver as advertised.  It's always one legislative session away from all manner of exceptions, if not outright repeal, for "sympathetic" cases.  

For the present moment, we have the lethal injection shake-and-jive.  You have to give abolitionists credit, though.  They might not have a persuasive argument, and they might not have that much candor, but by God they have persistence.   

What Works to Reduce Bad Behavior?


Not all that long ago, drunk driving was regarded as something anyone could be caught doing.  Drunk drivers were not thought of as criminals in the normal sense, and going to jail for a first or even a second offense was unusual.

It's true that drunk drivers are not criminals in the same way that the fellow who knocks over the liquor store is a criminal, or the guy who spends two or three years embezzling $50,000 from the bank.  But people generally understand when they've had one too many, and can adjust their behavior accordingly if they want to.

MADD wanted some adjusting as well from the courts' response to drunk driving, and largely succeeded.  In recent years, the prospect of going to jail for that offense, even if for only a short time, has considerably increased.

Today, we found out the amazing result.

Is tougher enforcement the only reason for so many more saved lives?  No, obviously.  Is it part of the reason?  You bet.

Moral of story:  Society gets the bad behavior it tolerates.  When it tolerates less, it gets less.  There's a message in their somewhere for the let-them-out-of-jail crowd.  Whether they get the message is a different question.

News Scan

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Former Duke Lacrosse Players Allowed to Pursue Lawsuit:  Mike Baker of the Associated Press reports U.S. District Judge James Beaty is allowing former Duke lacrosse players to pursue claims of malicious prosecution, concealment of evidence, and fabrication of false evidence against the ex-county prosecutor and police investigators.  In 2006 Reade Seligmann, Collin Finnerty, and Dave Evans were falsely accused of raping a stripper during a lacrosse team party.  All charges were dropped a year later when North Carolina Attorney General Roy Cooper declared the players innocent and victims of a "tragic rush to accuse".  The 2007 a civil lawsuit claims that former District Attorney Mike Nifong and investigators intentionally concealed DNA evidence and produced a misleading DNA report.

Death Row Inmate Executed After Appeal to U.S. Supreme Court Denied:  Bob Johnson of the Associated Press reports that Alabama death row inmate William Glenn Boyd was executed on Thursday. Boyd was convicted of the 1986 kidnapping and shooting deaths of Fred and Evelyn Blackmon.  Boyd and co-defendant Robert Milstead kidnapped the Blackmon's and forced them to cash a check for $5,000 before driving the couple to a rural area and shooting them to death.  Milstead pleaded guilty and testified against Boyd to avoid the death penalty.  Boyd had filed a petition to stop his execution claiming that the trial judge violated state rules when he overrode the jury's recommendation of life in prison without parole and sentenced Boyd to death.  The U.S. Supreme Court denied the appeal about three hours before the execution. Alabama Governor Robert Bentley also declined to grant clemency.

Court Overturns Shooting Conviction:  The Chicago Tribune reports the 7th Circuit Court of Appeals overturned Antonio Jones' conviction for the 2004 shootings that left four dead, including a 23-month-old boy.  Prosecutors allege Jones and two others shot four people during a robbery.  The appeals court found the trial court erred when it allowed police to testify about an informant's hearsay tip as evidence against Jones.

Man Avoids Death Penalty in Double Murder:  WYFF 4 News (SC) reports William Cannon Gresham, 25, agreed to a plea deal on Thursday to avoid the death penalty.  Gresham and co-defendant Shawn Owens, 22, are charged in the deaths of Eloise Corley, 66, and her sister Audrey Scull, 62.  Eloise was stabbed during a home burglary and when her husband Jerry and sister Audrey returned home they were kidnapped and shot.  Jerry was left in critical condition, but later survived.  Gresham pleaded guilty to all counts and will be sentenced after he testifies against Owens, for whom prosecutors plan on seeking the death penalty.

Texas Bill Would Raise Age Limit For a Capital Offense: Terrence Stutz of Dallas News has this story about a proposed bill in Texas that would expand death penalty eligible crimes to include murder of children up to 10-years-old. Currently in Texas, age six is the limit that triggers a capital offense. Texas has the youngest age limit for the murder of a child to be a capital offense, and most states classify the murder under the age of 12 as a capital crime. The legislation was approved by the Senate on Wednesday and now goes to the House for a vote.

No Clemency for Arizona Murderer: Amanda Lee Myers of the Associated Press reports that the Arizona Board of Executive Clemency decided yesterday by a 4-1 vote not to intervene in the execution of Daniel Wayne Cook scheduled for next Tuesday. Cook was convicted of two counts of first-degree murder for the 1987 killings of Kevin Swaney, 16, and Carlos Cruz-Ramos, 26, in Lake Havasu City. Cook and his roommate, John Matzke, stole $97 from Cruz-Ramos before gagging him and tying him to a chair. Cook and Matzke tortured Cruz-Ramos for six hours by beating and cutting him, burning his body with cigarettes, and sodomizing him before killing him by standing on a pipe over his throat. Cook sodomized Swaney before strangling him by hand. Matzke received a lighter sentence for testifying against Cook and was released in 2007. The board also voted against making a recommendation to the governor to delay the execution because of questions raised about the importation of two drugs used in the three-drug protocol. Cook's attorneys told the clemency board that Cook was only recently diagnosed with PTSD and brain dysfunction stemming from the abuse he suffered during childhood.

Convicted Sex Offender Arrested After 28 Years: Victoria Campbell of News 4 (NV) reports that 59-year-old Steven James, a convicted sex offender who has been wanted since 1983 for violating his probation, was arrested in Reno earlier this week by the US Marshals Service. James was convicted in Washington in 1983 of attempted indecent liberties with a child under the age of 14. He was sentenced to probation, but disappeared that same year. Christopher Hoye of the US Marshal for the State of Nevada says, "this arrest showcases how cooperation between federal and local law enforcement is paramount in locating fugitives fleeing from justice, in this case for nearly 28 years."

Head of NACDL Resigns

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In a surprise move, the head of the NACDL (National Association of Criminal Defense Lawyers) submitted his resignation last night.  The press release issued this morning says, in part:

After years of working to achieve justice for the many people wrongly accused and harshly sentenced, I have decided to move on.  I believe a younger generation should take the helm to deal with clients who constantly lie to them.  As champions of the downtrodden, I hope that those who must now step up bear in mind that, even though our clients are guilty as hell, the only truly American thing to do is flumox the jury and/or judge to put them back on the street to do it again.  To the future crime victims this will create, I would say  --  deal with it.  Look, boys gotta have fun.  And to the many charged with drug crimes under authoritarian statutes that deny a free people the right to put into their own bodies what they wish, I would say:  Meth is good for you.  Don't believe all that DEA tripe.

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