June 2011 Archives

A Worrisome Criminal Probe

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MSNBC is reporting that the Justice Department has undertaken a formal criminal investigation into the deaths of two terrorists, one in Iraq and one in Afghanistan, while they were in the custody of CIA interrogators:

The attorney general said that he accepted the recommendation of a federal prosecutor, John Durham, who since August, 2009, has conducted an into CIA interrogation practices during the Bush administration. Holder said Durham looked at the treatment of 101 detainees in U.S. custody since the Sept. 11, 2001, terrorist attacks and concluded that only these two deaths required criminal investigation.

Holder did not identify the two death cases. But former and current U.S. officials who requested anonymity said Durham was looking at the deaths of Gul Rahman and Manadel al-Jamadi.

Rahman died in the early hours of Nov. 20, 2002 after being shackled to a cold cement wall in a secret CIA prison in northern Kabul, Afghanistan, known as the Salt Pit. He was suspected of links to al-Qaida.

Al-Jamadi died in 2003 at the Abu Ghraib prison in Iraq. The death has been known to the public for years and a military autopsy declared al-Jamadi's death a homicide.

The rule of law is the rule of law.  I don't like or trust the atmospherics of this.  The people who do these interrogations aren't in it for profit, and we depend on their success for desperately needed intelligence in a dangerous world.  But law and civilization impose limits.  If attorneys in the Justice Department, exercising sensible judgment and acting in good faith, believe a criminal probe is warranted, follow the evidence and let the chips fall where they may.

Arizona Execution

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The long overdue execution of Richard Bible was carried out at 11:00 a.m. local time today.  Arizona Daily Sun story here.  Prior post here.

News Scan

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Judge OK's Forced Medication for Jared Loughner: Elliot Spagat of the Associated Press reports U.S. District Judge Larry Burns ruled Wednesday that prison officials can forcibly give Jared Loughner antipsychotic drugs. Loughner has been at a federal prison in Missouri since he was deemed mentally unfit to stand trial and assist in his defense. Mental health experts have determined that Loughner suffers from schizophrenia, and prosecutors argue that he should be given medication because he is a danger to others. In a filing prosecutors cited an incident in April when Loughner spit at his attorney and lunged at her before being restrained by prison staff, and a March incident where Loughner twice threw a plastic chair at a mental health expert. Loughner faces 49 charges stemming from a shooting rampage in Arizona in January that left six people dead and twelve injured.

Remains of I-5 Strangler Victim Identified 34 Years Later: Kate Mather of the Los Angeles Times reports the remains of Lou Ellen Burleigh of Walnut Creek, who was killed by the "I-5 Strangler" in 1977, have been identified. The I-5 Strangler got his name after six women in Northern California were killed and dumped along highways and other remote areas between 1977 and 1987. Roger Kibbe confessed to seven murders in 2003, and told authorities he left the remains of Burleigh near Lake Berryessa. In March, Napa County Deputy Sheriff Michael Bartlett found a bone fragment at the bottom of a shallow creek. Last week DNA tests confirmed that the remains were Burleigh's. Officials hope that this news can help to finally close the books on the I-5 Strangler.

Wisconsin:  Union Jobs Now Performed by Inmates: Tami Hughes of WITI (WI) reports that with no contracts in place and Governor Walker's collective bargaining changes going into effect, Racine County inmates are taking jobs that were once filled by union workers.  Inmates are doing landscape maintenance and picking up trash along roads that have been neglected due to the recent budget cuts.  In response, local unions filed a grievance complaining that those jobs should be done by their members.  The County Executive noted that by using inmates for maintenance work, county personnel can be assigned to the  more difficult tasks, providing savings to to the taxpayer without cutting any union jobs.

Can The DA Get Restitution From Dead Man?:  The Sacramento County District Attorney is attempting to collect  $300,000 in restitution from a contractor who died before the restitution order was finalized.  KCRA reports that Mark S. Ures pleaded no contest last year to working without a valid contractor's license.  He was sentenced to three years probation and ordered to pay restitution but he died in May before a judge could finalize the order.  Ures' attorney, who has petitioned the court to reduce the amount, argues that his dead client can no longer participate in his defense.  "...I can't communicate with him, and I may even have to withdraw from the matter and let the court issue a warrant for his arrest," said the attorney.  

certpool.com

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John Elwood at the Volokh Conspiracy points us to certpool.com, a website that tracks certiorari petitions in the United States Supreme Court.  Very cool.

As John notes, the certiorari docket isn't the whole docket.  It is, however, the source of almost all SCOTUS cases of interest in criminal law.  The exceptions are:

1.  The original docket.  Historically, this has mostly been states suing each other about water-related issues:  boundary disputes over shifting river channels, fights over the water itself (e.g., Arizona v. California, a real case that lasted longer than Dickens's fictional Jarndyce v. Jarndyce), and submerged minerals.  Zzzzzz.

Post-AEDPA, we also have a lot of death row inmates trying original habeas petitions.  Only two have gotten real action -- Felker right out of the gate in 1996 and Troy Davis in 2009 -- but those two were big news.

2.  Appeals from three-judge courts.  For a very few cases near and dear to the hearts of congressmen, we still have ye olde system of a three-judge trial court with a direct appeal to the U.S. Supreme Court.  Most common of these are reapportionment cases.  However, under the Prison Litigation Reform Act, prisoner release orders are also three-judge court cases, and that is the path that gave us the disastrous Brown v. Plata.

News Scan

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Delaware Supreme Court Reverses "Murder's" Murder Conviction:  Sean O'Sullivan on DelawareOnline reports Delaware's high court in a 3-2 decision reversed the first degree murder conviction of Allen J. "Murder" Taylor, after concluding a videotaped statement by a key witness implicating Taylor should not have been introduced at trial because it was coerced.  The court also expressed concerns about the prejudicial effect of Taylor's street name, advising that "in the retrial, the court should make an effort to delete all references to Taylor's nickname, if possible."

Texas Man Sentenced to Death for Murdering Family:  Melody McDonald of the Star-Telegram (TX) reports a Texas jury yesterday sentenced John "Johnny" Hummel to death for fatally stabbing his pregnant wife and beating to death his father-in-law and five-year-old daughter with a baseball bat in 2009.  During closing argument, Tarrant County prosecutor Miles Brissette reminded the jury that Hummel first attempted to kill his family by poisoning their dinner with rat poison, but that his wife fortuitously had thrown out the food thinking it was spoiled. The next day, Brisette said, Hummel went "room by room" killing his family members.  Hummel's defense team countered that Hummel had never learned how to deal with his emotions as a child.

Experts Conclude Critical DNA Evidence in Amanda Knox Trial is Unreliable:  A review by two court-appointed experts concludes that much of the DNA evidence used to convict American exchange student Amanda Knox of sexually assaulting and murdering her roommate was unreliable and possibly contaminated.  The 145-reports states that "international procedures for inspection and international protocols for gathering and sampling exhibits have not been followed."  The experts will present their review in court next month.  Alessandra Rizzo of the AP has this story.

Details Emerge About Night of Washington Prison Guard Slaying:  Diana Hefley and Scott North of The Herald (WA) report that more than 1,600 pages of police reports released yesterday detail the night that Washington inmate Byron Scherf is accused of murdering corrections officer Jayme Biendl, who was found strangled to death in a prison chapel.  The reports state that Scherf was also discovered in the chapel and that after he was returned to his cell, he repeatedly chewed and sucked on his fingernails.  Scherf has been charged with aggravated murder and could face the death penalty. 

Chicago Beach Closures: Weather or Gang Violence?:  Adam Zielinski of WLS Radio (Chicago) reports the "unprecedented closure" of a popular Chicago beach on Memorial Day has prompted controversy over whether the beach was closed due to high temperatures (around 88 degrees), as claimed by police and Chicago Mayor Rahm Emanuel, or gang violence, as indicated by several beachgoers.  A collection of 911 calls obtained by WLS Radio report threats and fighting, but Chicago Police Supt. Garry McCarthy maintains the closure was weather-related only and had no connection to gang activity.

A One Line Summary of Blago

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The Wall Street Journal has an article today about the recently convicted Gov. Blagojevich.  For hitting the nail on the head in one sentence, I think this is the best I've ever seen:  "You could cut his head off and he wouldn't be any dumber."
Rasmussen reports that public support for the death penalty remains steadily high.  This is consistent with polls by Gallup and Quinnipiac, previously noted on the blog.
Notwithstanding my deservedly strong condemnation of the Ninth Circuit's record this morning, it is a large court with some (not enough) very good judges.  Today in Bible v. Ryan, USCA9 correctly enforced the most successful of Congress's 1996 reforms, the strict limit on a second federal habeas petition by a murderer who has already had one petition heard and rejected.

Twenty-three years ago, Richard Bible kidnapped, molested, and murdered Jennifer Wilson, age 9.  His appeals took far too long, culminating in a Ninth Circuit opinion issued two years ago.  He has an execution date of June 30.  He waited until this spring, ten years after Arizona enacted a DNA testing law, to ask for testing of some hair found at the crime scene.

As is so often true in these cases, the test would not prove anything even if it did come out the way Bible claims.  "Whatever the DNA testing of the hair
evidence might reveal, it could not refute the overwhelming inculpatory evidence
presented at Bible's trial."

The panel of Judges Gould, Clifton, and Bybee denied permission to file a second habeas petition and denied a stay of execution.

Update (6/29):  The US Supreme Court today denied a stay of execution and a petition to review the decision of the Arizona Supreme Court in the same case.  The high court has no jurisdiction to review the Ninth Circuit's denial of permission to file a successive petition, and no petition for rehearing is permitted in the Ninth itself.  See 28 U.S.C. §2244(b)(3)(E).

Update 2:  Judge Thomas of USCA9 issued an order authorizing Bible to petition for rehearing of the stay order despite the fact that petitioning for rehearing of the successive petition order (without which there is no reason to stay) is expressly forbidden by law.  Bible filed the petition, the state responded, and no judge called for a vote, resulting in denial -- all within one day.  Courts, even USCA9, can move on these things when they want to.  It shouldn't take an imminent execution to make them want to.  AEDPA was supposed to fix that.

The Day the Law Left Town

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Ana Campoy reports in the WSJ:

ALTO, Texas--Folks here are bracing for a crime wave after the city put its police force on furlough.

"Everybody's talking about 'bolt your doors, buy a gun,' " said Monty Collins, Alto's mayor, who was against the measure.

But Alto wasn't going to make payroll in the coming months. So the City Council made the call, and on June 15 the police chief and his four officers secured the evidence room, changed the passwords on their computers and locked the department's doors for six months--longer if local finances don't improve by then.

When people talk about "essential services" from government, we should bear in mind that protecting people from crime is essential service number one for state and local government.  That is one of the two reasons we have government, the other being protection from outside invaders, essential service number one for the federal government.

News Scan

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Judge Blocks Parts of Georgia's Illegal Immigration Law: Jeremy Redmon of The Atlanta Journal-Constitution reports U.S. District Court Judge Thomas Thrash has temporarily halted portions of Georgia's new anti-illegal immigration law pending the the outcome of a lawsuit challenging its constitutionality, including a section that empowered police to investigate the immigration status of suspects who they believe have committed crimes and cannot produce identification.  Judge Thrash also rejected several other challenges to the law and upheld the portion that would require many Georgia businesses to use the federal E-Verify system.  In his order, Judge Thrash characterizes the "widespread belief that the federal government is doing nothing about illegal immigration" as "the belief in a myth" and that the concerns expressed by the federal government and Mexico "underscore the conflict between [the Georgia law] and federal immigration law."

Accused Arizona Shooter's Attorney Seeks to Stop Forced Medication: John R. Emshwiller and Tamara Audi of The Wall Street Journal report that attorneys for Jared Loughner, the accused shooter of Rep. Gabrielle Giffords and 18 others, have filed an emergency motion seeking to block federal authorities from forcibly medicating him. The motion alleges that federal prison officials declared Loughner to be a danger to others, thereby permitting forced medication, but the Bureau of Prisons spokeswoman said she could not comment on whether such medication has begun.

Circuit Scorecard -- Criminal

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SCOTUSblog is out with their batch of statistics for the US Supreme Court term just ended.  This year, they have helpfully posted their spreadsheet of raw data so others can crunch the numbers in different ways.

In accordance with the theme of this blog, I selected out the cases where the "nature" of the case is criminal or habeas.  From this subset, I made my own circuit scorecard.

In the full set compiled by SCOTUSblog, including civil cases, the Ninth Circuit is doing better than in prior years.  In the criminal cases, though, the Ninth remains dismal.  For cases decided on the merits with an opinion, reversals of the circuits line up as follows:

CA1:  0/2 = 0%
CA3:  1/2 = 50%
CA4:  0/1 = 0%
CA6:  2/3 = 67%
CA7:  1/2 = 50%
CA8:  1/1 = 100%
CA9:  8/8 = 100%
CA11: 1/2 = 50%

There were no criminal cases this term from the Second, Fifth, Tenth, or D.C. Circuits.  One Ninth Circuit federal case was "affirmed by an equally divided court," which in legal effect is the same as if the Supreme Court had not taken up the case at all.

More important than reversal rate is the number of unanimous reversals.  When the Supreme Court is close to evenly divided, that indicates the question was close and reasonable judges could go either way.  When not a single one of the nine justices of diverse viewpoints thinks a decision was correct, that is an indication that the court below is seriously out of the mainstream.

Nine federal court of appeals decisions in criminal or habeas cases were reversed unanimously this term, and the Ninth racked up a stunning six of them, twice as many as all other circuits put together.  All but one are cases where the Ninth wrongly granted habeas corpus to a state prisoner.  For its state-prisoner habeas cases, the Ninth got a grand total of two votes to affirm in six cases, a vote total of 50-2 to reverse.

This is an utterly dismal record.  The Ninth is a clear and present danger to public safety and the rule of law.  Once more, with feeling, the Senate needs to carefully examine any nominees for this train wreck of a court to make sure that they will make it better on habeas, not worse.

News Scan

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Ohio Governor Will Sign Sentencing Bill This Week:  Joe Guillen of The Plain Dealer (OH) reports Ohio Governor John Kasich is expected to sign an overhaul of the state's criminal sentencing laws aimed at easing overcrowding and saving money.  Among the changes, the reform package will send low-level offenders to halfway houses and community corrections facilities instead of prison, and will also eliminate the sentencing disparity between powder and crack cocaine.

"Viewpoints: Don't blame state's 'three-strikes' law for prison overcrowding":  Margaret A. Bengs has this piece in The Sacramento Bee exposing some of the myths heralded by opponents of California's three-strikes laws.  Bengs notes that three-strikes is not the primary contributor to California's overcrowded prisons (the high recidivism rate is), that the law affords judges and prosecutors discretion in deciding when to aggressively pursue three-strikes cases, and that three-strikes sentencing is not filling the state prisons with petty thieves.  Bengs also points out that "California's violent crime rate plummeted 58.9 percent between 1992 and 2009, reaching its lowest level since 1968, with the help of three strikes."

Wisconsin Justice Accuses Colleague of Choking Her:  Wisconsin Supreme Court Justice Ann Walsh Bradley has accused co-Justice Davis Prosser of trying to choke her after an argument in her office, reports Todd Richmond of the AP.  Walsh alleges the assault took place the day before the court handed down a decision upholding a new state law that eliminates most public employees' collective bargaining rights.  Prosser denies the accusation.  A county sheriff's office and the state judicial commission have opened investigations.

Audit Brings Criticism to Michigan's Parolee Program:  Mike Martindale of The Detroit News reports some critics believe the success of Michigan's Prisoner Re-Entry Initiative, which has been credited with a decline in the state's recidivism rate, may be distorted because parolees who commit new crimes but receive a "non-prison disposition," such as jail time or GPS monitoring, are not included in the state's recidivism numbers.  

Blago Down the Tubes

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A federal jury in Chicago has convicted the former Democratic Illinois governor of trying to sell or barter Barack Obama's Senate seat, and of 16 additional felony counts.

An earlier jury had convicted on only one count, and had been unable to reach a verdict on almost two dozen others.

The outcome today is a huge victory for US Attorney Patrick Fitzgerald, who had been widely criticized for his decision to re-try the case.  Yes, it was costly, but justice has been done, and a powerful and prominent crook has been called to account.

Lest it be thought that I'm being partisan here, former Illinois Gov. George Ryan, a Republican, is also in the federal slammer, also for corruption.  Quite a group, all in all.

The story is here.

Violent Video Games

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Much of the discussion on the Supreme Court today will likely be in the violent video game case, Brown v. Entertainment Merchants Assn., No. 09-1448.  (Gov. Moonbeam is automatically substituted as a party for the Governator.  See S.C. Rule 35.3.)

It's not really up our alley, so I won't discuss it in depth on this blog.  The split among the Justices is interesting, though.  Justice Scalia takes a straight First Amendment approach along the same lines the Supreme Court used in olden days to legalize pornography.  This is content-based regulation.  Strict scrutiny applies.  The statute fails that test (as statutes almost always do).  Justices Kennedy, Ginsburg, Sotomayor, and Kagan concur.

Justice Alito, joined by Chief Justice Roberts, concur in the judgment.  They would strike down the statute on due process grounds as too vague, leaving to another day what they see as difficult First Amendment questions regarding applying old rules to new technology.

Justice Thomas does not see the First Amendment question as difficult.  Speech to minors bypassing the parents is not within "the freedom of speech" protected by the First Amendment as originally understood.

Justice Breyer believes the statute passes strict scrutiny, and he appends a 15-page list of "peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games."

This should throw a wrench into the "justice agreement statistics."

US Supreme Court Orders

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Today the US Supreme Court released an orders list from its last regularly scheduled conference day of the term.  The 11 cases taken up for hearing next term include one criminal prosecution, one capital habeas case, and one civil suit against police officers.

In United States v. Jones, No. 10-1259, the question framed by the Government is, "Whether the warrantless use of a tracking device on petitioner's vehicle to monitor its movements on public streets violated the Fourth Amendment."  The Court's order granting certiorari adds the question, "Whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent."  I've wondered about that aspect of the case as well.

In Martel v. Clair, No. 10-1265, the question presented in California's petition is, "Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence."

In Messerschmidt v. Millender, No. 10-704, the question presented as framed by counsel for the police officers is, "(1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her? (2) Whether United States v. Leon, 468 U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered or clarified?"

I was a bit taken aback to see the attorneys for the cops asking for reconsideration of decidedly pro-cop precedents.  It's really more on the "clarified" aspect.  They assert that the rare exceptions to good faith under Leon have proven, at least in some courts, not to be rare enough, and the open-ended wording provides too much wiggle room for judges who want to get around it.

The Court turned down the twice-relisted Russell v. California, No. 10-10201, on exclusion of hearsay evidence offered as mitigation in a capital penalty retrial.

Oh, Never Mind

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The US Supreme Court will not decide whether retroactive application of the Sex Offender Registration and Notification Act (SORNA) violates the Ex Post Facto Clause in the ungainly-named case of United States v. Juvenile Male, No. 09-940.

In that case, in 2007, the District Court ordered the juvenile sex offender to register until he turned 21.  On a leisurely appeal, the Ninth Circuit decided September 10, 2009 that was ex post facto, apparently unaware that no-longer-Juvenile Male was by then 22.

Moot.

Oh, and federal courts, please figure out a better way to name your juvie cases.

Celebrating Graffiti, Not

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Heather MacDonald in the City Journal:

The Brooklyn Museum has canceled its participation in Art in the Streets, a recklessly irresponsible exhibition glorifying graffiti that was scheduled to open in Brooklyn next year. Director Arnold Lehman says that the cost of mounting the show, which was organized by the Museum of Contemporary Art (MOCA) in downtown Los Angeles, was too great in the "current financial climate." It's difficult to believe that the cost of mounting a graffiti exhibit is any higher than the cost, say, of insuring the sublime John Singer Sargent watercolors that the Brooklyn Museum will be exhibiting in 2013 in conjunction with Boston's Museum of Fine Arts. Let's hope, rather, that the Brooklyn Museum canceled the graffiti show because its trustees wisely spotted a public-relations disaster--if not a betrayal of their civic obligations--in the making.

Following an editorial in the New York Daily News criticizing the show, City Council member Peter F. Vallone, Jr. wrote to Lehman, warning him that taxpayer money shouldn't be used to encourage the destruction of public property. Had the museum proceeded with this self-indulgent wallow in anti-bourgeois values, its standing as a responsible institution deserving taxpayer support would have suffered incalculable damage. New Yorkers who lived through the epidemic of subway vandalism in the 1970s and 1980s understand graffiti's poisonous effect on urban life. That epidemic, which overran Central Park and other precious public and private spaces as well, led many residents to flee the city and convinced the rest of the country that New York was ungovernable. Yet Art in the Streets actually celebrates the assault on the New York subway system, indifferent both to graffiti's illegality and to its corrosive effect on civic vitality.


News Scan

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Oklahoma Selected for Intensive Criminal Justice Study:  Oklahoma state leaders announced yesterday that the state's criminal justice system will be the subject of an extensive study, reports Sean Murphy of The Oklahoman.  The Justice Reinvestment Initiative, funded in part by the federal Department of Justice, is aimed at improving public safety and reducing prison overcrowding and costs.  Most states have seen a dramatic drop in violent crime rates over the past decade, but Oklahoma's violent crime rate has increased slightly and ranks 11th in the nation. 

Abandoned Houses Breed Crime in Chicago:  Chicago Tribune reporters Dahleen Glanton, Antonio Olivo, and William Mullen have this piece on the effect the foreclosure crisis in the Englewood section of Chicago has had on crime.  The foreclosure crisis, which one researcher referred to as the city's "tsunami," has resulted in an increasing number of abandoned houses and stories like that of Karen Edwards, who was pulled into a vacant and boarded-up home in 2005 after walking her children to school and raped by three men.

Death Penalty for Leader of Irish Mob?:  Laurel J. Sweet reports in the Boston Herald that while capital punishment "will not be an option" in prosecuting James "Whitey" Bulger in a Massachusetts federal court for 19 homicides, he could later face death sentences in Oklahoma and Florida for murders in those states.  Bulger, 81, and his girlfriend Catherine Greig, 60, were arrested Wednesday night outside their Santa Monica apartment after 16 years on the run. 

California Parolee Accused of Burglary the Day After GPS Tracker Removed:  California parolee and gang member Lawrence Lamar Jackio, 20, is accused of participating in a bloody home burglary the day after his GPS tracker was removed, reports Sam Stanton of The Sacramento Bee.  California began GPS monitoring of gang member parolees last year, but began removing the tracking devices from more than half of the offenders to cut costs by July 1.  In Sacramento County alone, 40 of the 60 who were bring monitored already have had their tracking devices removed.

The Terms of the Debate

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I frequently comment at Sentencing Law and Policy because, among other reasons, I like to keep my finger on the pulse of what the other side is thinking.  The fellow who runs that blog, Prof. Doug Berman, is a liberal/centrist  --  an eclectic and sometimes innovative thinker who mostly, but not absolutely always, sides with the defense. 

The commenters are something else.  Some are anti-American hotheads.  Some are ex-cons.  Some are defense counsel, who can range from snark specialists to extremely thoughtful and fair-minded people.  A few are conservatives and/or libertarians.

The reason I bring this up is that I have found some common blind spots that recur on the Left no matter what the topic.  Right now I want to talk about three of them.  They are the failure fully to understand that (1) every act of government, in law enforcement and otherwise, costs money; (2) every institution of government is unavoidably fallible, because human beings are unavoidably fallible; and (3) everything in life involves trade-off's, often painful ones.

After the break, I give some in-the-news examples of where these errors crop up.  Right now, I want to emphasize what an appreciation of these errors, taken together, means, to wit, that it's frivolous for our opponents to engage in blinkered sloganeering and think they've made an "argument."  For example, to bullhorn constantly about the costs of X, without being candid about what X achieves, or the costs the alternative to X is likely to create, is unpersuasive and dishonest. 

Even more than dishonest, it is, I have come to believe, childlike  --  not in the sense of charming or innocent, but in the sense of bedazzlement with things that sparkle combined with disinterest in things that don't, but are equally or more important to the task at hand.   The juvenile quality of Leftist thinking, perhaps more than anything else, is what makes it consistently untrustworthy in matters of consequence.

Among the most lasting actions a President takes are his appointments to the federal courts.  Most of the Carter Administration is just a distant, bad memory, like a recurring nightmare that you used to have but haven't had in many years.  However, Carter's abysmal appointments to the Ninth Circuit plague the people of the Far West to this day.  Thank God and Potter Stewart he didn't get any Supreme Court appointments.

So judicial nominations really should get more attention as a campaign issue.  Tim Pawlenty has this ad touting his "conservative" appointments to the Minnesota Supreme Court.  Carrie Severino has this post at Bench Memos on the ad, and David Ingram has this post at BLT.

Of course, it is not "conservative" appointments we need but rather judges who believe in judicial restraint.  We need judges who will not graft their personal opinions on to the Constitution, declare them to be the supreme law, and "on the pretense of a repugnancy ... substitute their own pleasure to the constitutional intentions of the legislature."  "Conservative" judicial activism of the Hammer v. Dagenhart variety is every bit as bad as liberal judicial activism.  That doesn't fit in a political sound-bite, but I hope Pawlenty and the others understand the distinction.

A New Bill to Legalize Pot

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Two notable Congressmen  --  Barney Frank and Ron Paul  --  have jointly, as it were, introduced legislation to repeal the federal ban on marijuana, and leave its legal status to the states, so the on-line Houston Chronicle reports.

This story struck me, not only for its intrinsic interest on this hotly debated topic, but because it comes out on the same day as another story to which I shall presently refer.

One of the principal arguments for legalizing marijuana is that, by doing so, we can tax it, thus increasing government revenue at a time of considerable need, and simultaneously reduce the violence that often accompanies the illegal drug trade.  If we treated marijuana like the painkiller it is said to be, and made it available at the pharmacy, as other painkillers are, we could put an end to the gunplay with which illegal drugs have become associated. 

The idea that violence will end with legalization is most appealing.  It depends, however, on the tacit assumption that the sort of people who seek drugs are really just law-abiding citizens unjustifiably if not irrationally labelled as criminals. 

As I say, this notion is appealing.  It's just not so reliably true.

News Scan

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Man Sentenced to 30 Years After Admitting to Crime on CHP Job Application: The Los Angeles Times has this story about Christian Hernandez, 31, who admitted he had recently viewed child pornography in a background questionnaire when he applied to join the California Highway Patrol. During a search of Hernandez's home CHP investigators found a collection of child pornography on his computer, including photos showing him molesting a girl in his bedroom. Hernandez received a maximum sentence of 360 months in prison, and also faces trial on additional molestation charges.

U.S. District Judge Rules Florida's Death Penalty Unconstitutional: David Ovalle of the Miami Herald reports a Miami federal judge has ruled that the Florida death penalty statute is unconstitutional because it leaves open the possibility that the sentencing judge, rather than the jury, makes the factual findings necessary for imposition of the death penalty. U.S. District Judge Jose E. Martinez made the ruling specifically in the case of Paul H. Evans and ordered that he receive a new sentencing hearing. The ruling will likely be argued in appellate courts for years, but if it survives appeals it could force lawmakers to change the statute and give convicts new avenues for appeal. The judge's order can be accessed here. (Thanks to Sentencing Law and Policy for the link.)

New York City spends $5,000 on 800 Neon Smocks for Rikers Island Visitors:
Reuven Blau of the New York Daily News reports female visitors to Rikers Island who violate the dress code will be issued a size XXL neon green T-shirt. The smocks are designed to reduce the sexual desires from inmates. Jail officials also hope the T-shirts will help reduce the amount of contraband that is smuggled in. The city spent $5,000 on 800 T-shirts, which will be laundered daily. Norman Seabrook, president of the Correction Officers' Benevolent Association, says the shirts are a waste of money and instead the city should be spending money on hiring more correction officers.

Probationers Don't Take Well to Georgia Farm Work: Ray Henry and Kate Brumback of the AP report the experiment under way in Georgia to encourage probationers to fill the 11,000 vacant jobs in the agriculture business is proving unsuccessful so far. The first group of probationers started work last week on a farm owned by Dick Minor and during the first two days, all the probationers quit by mid-afternoon. "It's not going to work.  No way. If I'm going to depend on the probation people, I'm never going to get the crops up," said Benito Mendez, one of the farm's crew leaders.

Arkansas High Court Halts Three Executions: John Lyon of Arkansas News Bureau reports the Arkansas Supreme Court today halted the executions of Jason Farrell McGehee, Bruce Earl Ward, and Marcel Wayne Williams, who were all scheduled for execution this summer.  The three men are plaintiffs in a lawsuit alleging that a 2009 state law authorizing the director of the Department of Correction to choose the drugs used for lethal injection amounts to an unconstitutional delegation of authority.

Conviction in Sweat Lodge Deaths: Bob Oretega of The Arizona Republic News reports an Arizona jury yesterday found James Arthur Ray guilty of three counts of negligent homicide for the deaths of Kirby Brown, 38; James Shore, 40; and Liz Neuman, 49, in a sweat-lodge he ran in 2009.  Prosecutors had sought convictions for manslaughter, but the jury's convictions on the lesser charge indicates it did not find that Ray was aware or recognized that risk of death caused by the manner in which he ran the sweat lodge.  Ray is eligible for probation and faces a maximum of 11 years and three months behind bars.      
Our friend Tim Baughman of the Wayne County Prosecutor's Office (Detroit, MI), posted a comment on the previous post that I think deserves mention on the main page. He says Justice Ginsburg "has something of a blunder in footnote 10," comparing the time lab techs spend in court in Michigan before and after Melendez-Diaz.

A Supreme Court decision banning a particular practice only changes things in those states where the practice is allowed under state law.  For example, one study trying to determine the impact of Mapp v. Ohio compared crime rates before and after Mapp from states that previously allowed illegally seized evidence to those that did not even before Mapp.  The states that already followed the rule the Supreme Court announced are, in effect, the control group.

Tim says (and he's the Michigan expert) that Melendez-Diaz made no difference there.  So if tech testimony rises sharply in states that previously allowed the evidence without confrontation and doesn't in those that did not, that supports the dissent's view, not the majority's.

Drunks, Techs, and Confrontation

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Today the U.S. Supreme Court decided Bullcoming v. New Mexico, the sequel to Melendez-Diaz v. Massachusetts on lab techs and the Confrontation Clause.  The decision was 5-4 for most of the opinion, written by Justice Ginsburg and joined by Justices Scalia, Thomas, Sotomayor, and Kagan.  One part of Justice Ginsburg's opinion, though, was joined only by Justice Scalia.  The dissent is by Justice Kennedy joined by Chief Justice Roberts, and Justices Breyer and Alito.  For cases in this line, the lineup typically does not follow the usual "conservative v. liberal" labels.

Bullcoming rear-ended another vehicle and took off but was apprehended.  He was obviously drunk without any forensic evidence, but the lab test showed his blood alcohol at .21.  In New Mexico, topping .16 qualifies for aggravated DWI, also known as "drunk as a skunk."  By the time of trial, the lab tech who did the analysis and prepared the report was on "unpaid leave" for undisclosed reasons (which probably means some kind of discipline issue).  Another tech testified as to lab practices.

The New Mexico Supreme Court in Bullcoming thought it could get around Melenez-Diaz by saying the tech was a "mere scrivener," simply recording what comes out of the machine.  I worked in labs for several years, both as a worker bee and later as a manager, and I knew that holding was, well, bull.  The technician's skill and meticulousness matters.  When a sample was especially important, I made damn sure the test was done by one of the good ones.

So where does this leave us as a practical matter?  Testimony in every case by the technician who ran the sample is potentially a huge problem.  People leave organizations, not always on good terms.  People sometimes die before their time.

A Welcome Acquittal

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MSNBC is carrying this story about the acquittal of a Dutch politician on charges of "hate speech," that being, among other things,  that Islam is an inherently violent religion and that the Koran should be banned.

The question is why there should have been a criminal case against a politician for such a thing as "hate speech" to begin with.  Yes, we all know that the Netherlands are not governed by the Constitution of the United States, but any liberal Western country should be beyond prosecuting a case like this.

There were two things that struck me as particulary noteworthy here.  First, it apparently was not the prosecutors' idea to launch this case; it seems the judicial branch ordered that it be undertaken  --  "Even the prosecutors called for his acquittal, saying that his remarks may be offensive, but they are part of legitimate political debate."

Second, I hope the irony is not lost on the defendant that he won his hate speech acquittal by defeating the charge that, among other things, he suggested that a book be banned.

To say the obvious, there are plenty of uses for a robust criminal justice system that calls to account dangerous and destructive behavior.  Suppressing political speech is not among them.  


 

The above-titled National Institute of Justice special report by Nancy Ritter confronts the dilemma of untested sexual assault kits (SAKs).  The issue has garnered increasing attention lately, as police departments around the country report their discoveries of tens of thousands of untested SAKs, including Los Angeles (10,000), Dallas (12,000), and Detroit (10,500).

The entire report can be viewed from the NIJ's website, but here are a few of the interesting issues discussed.

  • Outsourcing - Some law enforcement agencies, including Los Angeles, opt to outsource some testing to private labs because of backlogs and staffing difficulties.  While alleviating some pressure on public labs, outsourcing presents additional costs and burdens.  Public labs must conduct a technical or "peer" review of analyses performed in private labs, which has led to what some refer to as a "new backlog."  Also, under the Supreme Court's decision in Melendez-Diaz v. Massachusetts, jurisdictions must pay for private lab scientists to testify in court in criminal cases if the testing is outsourced.      

  • Victim Notification - Most agree that victims deserve to know if and when their untested SAKs are discovered, tested, or matched to a suspect, but the best procedure is debated.  One city mails an official-looking letter asking the victim to call regarding an unspecified matter.  Another city composes a team of four, including a victim advocate and former detective, to conduct in-person notifications.  In any event, the situation must be handled delicately.  Some victims may find peace upon learning their attacker from 20 years ago has been identified, but others may have moved on completely and are unwilling to revisit the crime. 

  • Statute of Limitations - The statutes of limitation for sexual assault charges have changed over the years, including recent changes in some jurisdictions that stop the clock if a DNA profile is obtained from the SAK.  But what about the thousands of untested SAKs that are discovered where the statute of limitations has clearly expired?  Testing of these SAKs may initially appear to be of lower priority, but victims' advocates argue testing may link the attacker to other unsolved crimes and provide closure to victims.

News Scan

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Judge Allows Georgia Execution to Proceed:  A Fulton County judge has rejected an attempt by Georgia death row inmate Roy Blankenship to halt his Thursday execution, reports Greg Bluestein of the AP.  Blankenship's attorney argued that Georgia's switch to pentobarbital would cause pain and suffering during the execution, but state attorneys countered that the drug has been used in more than a dozen executions.  Superior Court Judge Wendy Shoob also noted that every court to address the issue has found the use of pentobarbital constitutional.

ICE Announces Arrests of Over 2,400 Convicted Criminal Aliens:  Immigrations and Customs Enforcement announced yesterday that it's seven-day "Cross Check" enforcement operation in May led to the arrest of more than 2,400 convicted criminal aliens and immigration fugitives.  The nationwide operation involved the collaboration of more than 500 ICE agents, as well as other federal, state, and local law enforcement officers, and targeted aliens with serious convictions including armed robbery, drug trafficking, and sexual crimes against minors.  Craig Johnson has this story on CNN.

Suspect "Facebooks" During Hostage Standoff With Police:  Jennifer Dobner of the AP reports a Utah man held a woman hostage in a hotel overnight during a 16-hour standoff with police - all while posting Facebook statuses to keep his family and friends updated.  Jason Valdez's first post read, "I'm currently in a standoff ... kinda ugly, but ready for whatever," and he later added pictures of the female hostage with the caption "Got a cute 'Hostage' huh."  One of Valdez's friends also warned via a Facebook post that a SWAT officer was hiding in the bushes.  SWAT officers eventually swarmed the hotel and arrested Valdez, who is currently in critical condition from a self-inflicted gunshot wound.  Authorities are also discussing whether some of Valdez's friends should be charged with obstruction of justice for hampering a police investigation.

Texas Execution

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The execution of Milton Mathis, noted in yesterday's News Scan, was carried out yesterday.  The updated AP story (same link) has details.  Even though he murdered two people and paralyzed a 15-year-old girl, Mathis actually had the gall to say this:

"The system has failed me," he said. "This is what you call a miscarriage of justice. Life is not supposed to end this way ... I just ask the Lord, when I knock at the gates, you just let me in."
Mathis's life did not end that way because of the "system."  It ended that way because of the crimes he chose to commit. The miscarriages of justice are the way Travis Brown and Daniel Hibbard's lives ended and the way Melony Almaguer must spend most of her life paralyzed.

As for his retardation claim, the U.S. Court of Appeals noted:

The evidence presented to the state trial court showed Mathis to have a low range of intelligence but all above the threshold for mental retardation. Specifically, the expert's report indicated that Mathis' full scale I.Q. was 79, his verbal I.Q. was 77 and his performance I.Q. was 85. Testing performed by a psychologist for the Texas Department of Criminal Justice after his conviction reflect different results. Those results show Mathis to have a full scale I.Q. of 62, verbal I.Q. of 65 and a performance I.Q. of 60.
It is not, however, a "mystery" how scores can vary so much, as the court said.  IQ testing depends for its validity on the subject doing his best.  All you have to do to score low, if that is the result you want, is not try hard.  On the other hand, it is not possible to fake being smarter than you really are unless you cheat, which a person on the low end of the scale is not capable of doing.  So the higher score is the more reliable one.  Mathis's 79 score precludes his claim of retardation.

News Scan

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Execution in Texas Scheduled for Today: Michael Graczyk of the Associated Press reports Milton Mathis, 32, is scheduled to be executed in Texas by lethal injection at 6pm today. Mathis was on probation for aggravated robbery in 1998 when he killed two men and paralyzed a 15-year-old girl in a shooting spree inside a Houston crack house. In 2005, Mathis was within days of being executed before the punishment was stopped so that his claims could be reviewed by the Texas Court of Criminal Appeals. Defense lawyers for Mathis have asked the U.S. Supreme Court to stop the execution, arguing that Mathis is mentally impaired. His lawyers cited tests that put his IQ as low as 62, but other tests have shown his IQ is considerably higher. State attorneys have said the low tests results may have been the result of heavy drug use by Mathis. Mathis will be the sixth inmate executed in Texas this year.

Philadelphia Reaches Settlement in Stop-And-Frisk Lawsuit: Allison Steele of the Philadelphia Inquirer reports Philadelphia has reached a settlement from a class-action lawsuit filed against the city last year by the ACLU on behalf of eight men who said they had been searched illegally. The lawsuit alleged that many black and Latino men are stopped and searched without just cause. "Stop-and-frisk" searches by police will now be entered into a database, which will be monitored and audited regularly.

Man Robs Bank for $1 to Get Medical Care in Jail:
Rad Berky of WCNC (NC) reports James Verone of Gaston County, North Carolina handed a note to a bank teller stating that he was robbing the bank for $1, and then sat and waited for the police to arrive. Verone, 59, is unemployed with no medical insurance and thought that jail would be the best place to go to receive medical care for his variety of ailments. He was hoping for a three year sentence so that he would be able to begin collecting Social Security when he got out. Since Verone did not have a weapon and only demanded one dollar, he was charged with larceny from a person instead of bank robbery, so he might not get as much time in jail as he had planned for.

New Katie's Law Goes into Effect on July 1 in New Mexico: Milan Simonich of Las Cruces Sun-News.com reports "Katie's Law" will go into effect July 1 requiring DNA to be collected from all felony arrestees.  The law was named after Katie Sepich, who was raped and murdered at the age of 22 by a stranger in Las Cruces, NM, who was eventually linked to the crime by DNA evidence.

Mandatory Requirement for Bulletproof Vests to be Worn by All Dallas Police: Tanya Eiserer of The Dallas Morning News reports Dallas police officials announced a policy change that makes it mandatory for all uniformed police officers to wear a bulletproof vest. Due to a sharp increase in the number of officers killed in the line of duty last year, the federal government will not continue to grant funds for body armor unless the agency enacts a mandatory-wear policy.

News Scan

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"The Ray Lewis Challenge":  PolitiFact Georgia has this response to a prediction by Ravens linebacker Ray Lewis that crime rates will increase if the NFL lockout continues through the season (see previous post here).  The prediction prompted several groups, including PolitiFact, The Baltimore Sun, and criminologist James A. Fox to conduct (unscientific) studies into the merits of Lewis's claim, and all generally concluded it to be false.

Alito, Sotomayor on Criminal Justice System:  Robert Barnes has this piece in The Washington Post on Justices Samuel Alito and Sonia Sotomayor, the Supreme Court's two former prosecutors who often take very different views in criminal cases.  For instance last week, Alito authored the majority opinion in Davis v. United States, further paring back applicability of the exclusionary rule, while Sotomayor penned J.B.D. v. North Carolina, holding that child suspects deserve special consideration while being interrogated.

Cal. Supreme Grants Review of Deadly Domestic Violence Case:  Bob Egelko of the SF Chronicle reports the California Supreme Court last week agreed to review the notorious case against Tari Ramirez (also known as Tare Beltran), who stabbed to death his ex-girlfriend Tempongko in front of her children in San Francisco in 2000.  Ramirez had a history of violence against Tempongko, and the city's handling of the case led to a $500,000 settlement with Tempongko's family and changes in the way the city handles domestic violence cases.  Ramirez was convicted of murder in 2008, despite his claim that he killed his ex-girlfriend in the heat of passion after she told him had been pregnant with his child and had an abortion.  The Court of Appeals in San Francisco reversed his conviction in March, finding the voluntary manslaughter jury instruction given at trial erroneously allowed the jurors to consider how a reasonable person would have acted in Ramirez's situation, instead of whether a reasonable person would have acted out of passion rather than judgment.  Groups advocating for domestic violence victims joined the case seeking review from the California Supreme Court, arguing the current standard "eliminates accountability for abusers who claim provocation."

Anti-Death Penalty Group Files Complaint Against Doctor:  Walter Jones of the Savannah Morning News reports the Southern Center for Human Rights, a group opposed to the death penalty, filed a complaint to Georgia's medical board seeking to revoke the medical license of Dr. Carlo Anthony Musso.  The complaint accuses Musso of illegally importing a pain killer into the state and selling it to Tennessee and Kentucky for use in lethal injections. Georgia law requires two physicians to supervise executions, and Musso is scheduled to oversee the execution of Georgia death row inmate Roy Blankenship on Thursday.  If the license revocation is successful, the Department of Corrections will likely be forced to delay the execution to find another willing physician.
Judge Arthur Alarcon has a second law review article coming out on California's death penalty, this time co-authored with Paula Mitchell a former Alarcon clerk who is also an adjunct professor at Loyola LA.  Carol Williams has this article in the LA Times.

It will take some time to digest this 184-page article, but some issues are evident on a quick inspection.  A section titled "Alternate Routes Available: When Legislatures Lead and Governors Govern..." refers only to states that abolished or severely restricted the death penalty.  Why is Virginia, which has shown the nation that capital cases can be resolved in a reasonable time without cutting back the scope of the death penalty and without huge expenditures, not in this section?

The article does refer briefly to the needed reform of filing state habeas petitions in the trial court, and it correctly notes that the legislative committees have repeatedly killed the needed legislation.  "The Legislature's refusal to correct the causes for the unconscionable delay continues to burden the taxpayers who have already spent billions of dollars to fund a death penalty system that does not work."

For the direct appeal counsel backlog, the article says we need to increase the payment rate substantially above the current $145 per hour.  That is a misdiagnosis.  For noncapital cases, California pays $80-100/hour, and at that rate there are enough willing attorneys that the appellate projects turn away qualified applicants.  Compensation rate is not the problem.  The main problems are that (1) California is far too restrictive in who it considers "qualified"; and (2) the capital defense bar has created a culture in which handling a capital case is deemed a massive undertaking that consumes one's life for years, requiring the lawyer to exhaustively brief every conceivable issue.  But the US Supreme Court says that is not required and is not even good advocacy.  See Smith v. Murray, 477 U.S. 527, 536 (1986).

The article lists several propositions that might be adopted.  Unfortunately, the proposition for keeping the death penalty at its present scope accepts the false premise that inadequate funding is the primary problem with the present system, and so the proposition comes with a high initial price tag.  That alone is enough to give it no chance of enactment in the present environment.  Particularly horrifying is the article's acceptance of the stacked commission's conclusion that we need to increase the budget of the Habeas Corpus Resource Center fivefold.  HCRC as it presently exists is the problem, not the solution.  It is run by precisely the wrong people -- people who do not want the system to work.  The good ideas in prior legislation noted by the article are not included in its propositions.

What we need to do is put an end to obstruction.  Expand the pool of lawyers who are deemed qualified to take these cases.  Require briefs to be filed in a reasonable time and within reasonable page limits.  Make clear that the lawyer's duty is as set forth by the Supreme Court -- to identify a few keys issues and focus on those.  Reform state habeas to start in the trial court, be filed in a reasonable time, and to eliminate second or subsequent petitions for any claim except actual innocence.  Qualify for the federal fast track provided by Congress to get these cases through the federal courts.

Fishy Vehicle Stops

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Today the California Supreme Court decided People v. Maikhio, S180289.  From the Notice of Forthcoming Filing:

This case includes the following issue: Is a fish and game warden statutorily authorized to stop a vehicle occupied by a person the warden reasonably believes has recently been fishing or hunting to request the display of all fish or game that the angler or hunter has caught or taken, even when there is not reasonable suspicion that the angler or hunter has violated a fish and game statute or regulation? If so, does such a suspicionless stop of a vehicle by a fish and game warden violate the Fourth Amendment?

Answers: Yes and no.  This is an authorized administrative search.  It is well established that those who engage in hunting and fishing must show their licenses and catch on request.  The game warden in this case saw the fisherman catch something and then get in his car.  Just making it to your car doesn't get you out of an otherwise authorized inquiry.  Oh, and lying to the warden is not a good idea.  Telling him you caught nothing when you saw you catch something, even though he's not sure what, results in getting your car searched.

Little SCOTUS Crim. Action Today

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The US Supreme Court issued four decisions and took four new cases today, but all eight are civil cases.  In Turner v. Rogers, the right to counsel for contempt case, the fact that it is civil and not criminal is a key aspect of the case.

Gideon v. Wainwright and Argersinger v. Hamlin established that an indigent defendant facing jail in a criminal case is entitled to appointed counsel.  The requirement is based on the Sixth Amendment, which begins, "In all criminal prosecutions...."  So how about a civil case, specifically one for payment of child support?  Justice Breyer gives us a characteristically "it depends" answer:

In our view, a categorical right to counsel in proceedings of the kind before us would carry with it disadvantages (in the form of unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority over the alternatives that we have mentioned. We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).
In other action, the Court turned down ACORN in its bid to belly up to the government trough again despite being booted by Congress.  The decision of the Second Circuit involved the Bill of Attainder Clause, not an issue you see every day.  AP story here.

The Court declined to take up again the case of schizophrenic murderer Scott Panetti.  It relisted for the third time Russell v. California.

The Danger of Parole for Lifers

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Michael Rezendes at the Boston Globe has the story, Paroled Lifers Pose High Risk of New Crimes. The article begins:

More than a third of the most serious criminal offenders paroled in Massachusetts over the past five years were returned to prison for committing new crimes or violating the conditions of their release, a Globe review has found, raising questions about the public risk posed by granting early release to scores of convicted murderers, as well as the state's ability to supervise violent criminals on parole.


Coverage of Yesterday's Decisions

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Tony Mauro has this story in the NLJ on yesterday's decision in Davis v. United States:

The Supreme Court on Thursday took direct aim at the exclusionary rule, with a 7-2 majority saying that evidence collected during a police search can be used against a defendant, even if the search is of a type that is later found unconstitutional.

New justices Elena Kagan and Sonia Sotomayor joined in the majority's hostile approach toward the exclusionary rule, leading a dissenter to wonder if the rule -- already weakened by recent decisions -- might be on life support.

Marcia Coyle covers the Miranda case, J.D.B. v. North Carolina.  Adam Liptak has this story in the NYT on all of yesterday's decisions, highlighting J.D.B.

News Scan

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Update on Yesterday's Scheduled Executions:  The AP reports yesterday's execution of Texas death row inmate Lee Andrew Taylor, sentenced to death for the fatal stabbing of a fellow inmate 12 years ago, proceeded as scheduled.  The Supreme Court yesterday rejected Taylor's challenge to the effectiveness of his postconviction counsel, a claim that spared the life of fellow Texas death row inmate John Balentine on Wednesday (see previous post here).  The AP also reports Alabama death row inmate Eddie Duval Powell was executed as scheduled last night.

Murderer Shot Arkansas Mayor Who Backed His Parole:  A convicted murderer released on parole is accused of shooting the Arkansas mayor who backed his early release, reports Jeannie Nuss of the AP.  Records obtained by the AP show Everton Mayor Bill Gedes stated he would have no problem with Justin Bates returning to the Northern Arkansas town if he were released early from his prison term for second-degree murder.  Bates allegedly shot Gedes Wednesday evening and was arrested after an hours-long standoff with police.  Gedes is in critical condition.

Underwear Search Upheld:  The New Mexico Supreme Court today upheld a search stemming from a traffic stop in which the "officer pulled the waistband of Defendant's pants and underpants outward six to eight inches, looked down, and saw a plastic bag [of illegal substances] underneath Defendant's underpants."  The court found the officer had reason to believe the defendant was hiding something in his underpants and that the scope, manner, and location of the search were reasonable, but cautioned that "[i]nvasive, under-clothing searches remain the exception."  Milan Simonich of the El Paso Times has this story.

Can't Catch A Break:  Donna Gordon Blankinship of the AP reports an escaped convict from a Washington prison picked the wrong cabin door to knock on in his search for a phone - that of an off duty-prison guard from the same prison he fled.  The guard recognized James Edward Russell's red, prison-issue shirt and reported the incident after Russell was able to flee again.  Russell was apprehended the next day. 
What a difference a hyphen makes.  No, they are not calling on the President to resign.  After all, he hasn't tweeted . . . well, you know.  Felicia Sonmez has this post at the WaPo's congressional blog:

A group of 21 Republican House members, including 10 freshmen, is calling on President Obama to re-sign a measure extending key provisions of the Patriot Act, three weeks after he directed that it be signed into law through the use of an autopen.
Of course, since he didn't veto the bill within ten days and Congress hadn't adjourned, it would be law with or without his signature.  See U.S. Const., Article I, § 7.

Who is a Child?

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Ah, you mean 17-year-olds, a la Roper v. Simmons, are not children?  You don't say.  
Deborah Sontag at the New York Times has an article titled A Schizophrenic, a Slain Work, and Troubling Questions about the murder of Stephanie Moulton by Deshawn James Chappell.  The article raises a number of issues about this sad tale of the well-intentioned and devoted mental health worker who is killed by a man with severe mental illness.  And one of those issues is the continued reduction of long-term psychiatric beds at state hospitals:

In the cuts being debated now, Mr. Patrick proposes to eliminate roughly a quarter of the 626 long-term care beds left in the state's psychiatric hospital system. This unnerves many mental health professionals.

A true measure of a mature and principled society is how well it cares for the truly sick.  Closing long-term psychiatric beds is a tragedy because not only does it deprive necessary care for those who need it but also because it leads to more cases like this sorrowful one. 
Like chopping down an oak tree with a hatchet, the Supreme Court today took another chunk out of the abominable rule that courts must blind themselves to valid, probative evidence as a means of enforcing the Fourth Amendment.  The vote was 7-2 overall.  Justice Alito wrote the opinion, joined in full by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and, interestingly, Kagan.  Justice Sotomayor wrote a separate opinion concurring in the judgment and noting that the rule established was not as broad as the dissent implied, but she did not express any disagreement with anything in the majority opinion.  The opinion in United States v. Davis is here.  CJLF's amicus brief is here.

The Supreme Court established nearly thirty years ago in United States v. Leon that evidence should not be suppressed when the police rely on a magistrate's decision to issue a search warrant.  If good-faith reliance on a magistrate's assessment of probable cause is good enough, shouldn't reliance on a decision of law by a United States Court of Appeals be good enough?  Obviously, so the defendant had to get creative to argue to the contrary.  One argument was that applying the good-faith exception to this circumstance would effectively return to the old framework for retroactivity law abandoned in Griffith v. Kentucky and Teague v. Lane.  Another was that suppression of evidence was needed to create the incentive and standing needed to bring cases questioning precedent to the Court for review.

News Scan

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First Medical Parole Granted in California: Sam Stanton of The Sacramento Bee reports Craig Lemke, 48, has become the first person granted medical parole through a new California state law that authorizes the release of incapacitated inmates. Lemke is also the first three-strikes inmate to be released through a ruling by the state Board of Parole Hearings. The new law is designed to save the state millions of dollars in medical care for incapacitated inmates and guarding such inmates full time. There is ongoing debate about whether three-strikers should be allowed early release by medical parole.

Two Executions Scheduled for Today: Corrie MacLaggan of Reuters reports Lee Taylor, 32, is scheduled to be executed by lethal injection in Texas later today. Taylor was serving a life sentence for aggravated robbery when he fatally stabbed a fellow inmate in 1999. Taylor will be the fifth inmate executed in Texas this year. Monique Fields of Reuters reports Eddie Duvall Powell, 41, is scheduled to be executed at 6pm local time in Alabama for raping, sodomizing, and murdering a 70-year-old woman in 1995. Powell's execution will be the fourth in Alabama this year.

Oldest Ward of the State to be Released: Stephen Baxter of the Santa Cruz Sentinel reports
Donald Gerald Schmidt, 39, will be released from a youth correctional facility sometime between today and June 25. Schmidt was tried as a juvenile when he was 16 and convicted of molesting and drowning a 3-year-old in 1988. Schmidt has had parole hearings every two years since 1997. Santa Cruz County prosecutors argued that Schmidt has a mental disorder that makes him a danger to the public and should continue to be incarcerated. He has been in youth lockups since his conviction, making him the oldest ward of the state. Most juvenile offenders are released from the state system at age 25.

Latin American Countries Join Fight Against HB 87 Immigration Law: Greg Bluestein of the AP reports that 11 countries, including Mexico, Brazil and Argentina, filed briefs late Wednesday asking a federal judge to block Georgia's new immigration law before it takes effect, arguing the law could possibly jeopardize the current ties between the U.S. and Latin America.  As it stands HB 87 would allow law enforcement to check the immigration status of a suspect who cannot provide identification and empowers them to turn over anyone found to be in the country illegally to federal authorities.  People who harbor illegal immigrants and immigrants who present false documents when applying for a job could also be charged under HB 87. 

Lesson Learned: Before You Honk at a Cop Make Sure Drugs Aren't in the Car!: Sebastian Force of WPIX (NY) reports that after Michael Rost, 30, honked his horn twice at a police officer in a middle of investigating a civil matter, the officer pulled Rost over and ask for his credentials. When Rost opened the glove compartment, he also revealed a steel pipe and a plastic baggie that had leafy substance in it. Rost was arrested and charged with possession of drug paraphernalia and several other offenses.
From the syllabi:

Davis: "Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule."

J.D.B.: "A child's age properly informs Miranda's custody analysis."

Tapia:  18 U.S.C. "Section 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant's rehabilitation."

Bond:  "Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States."

Creep, Not Criminal

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Steve Simpson of Institute for Justice has this op-ed in the WSJ arguing that John Edwards prosecution is a case of overcriminalization.

It seems that everyone other than the most devoted supporters of campaign-finance laws thinks that the Justice Department's indictment of John Edwards is overkill. Mr. Edwards cheated on his wife while she was dying of cancer, then he used over $900,000 given by two campaign donors to cover it up. In the process, he paid off an aide to pretend that he was the father of Mr. Edwards's love child. It's behavior that would make even Anthony Weiner blush.

But being a creep is not illegal. So why is any of this the government's business?

The short answer is that campaign-finance laws make it the government's business. Those who are outraged at the Edwards indictment should take note that when we have laws that make helping candidates illegal, prosecutions like this are inevitable.

I'm not too sure about that Weiner line.

News Scan

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Georgia Governor Offers Labor Solution After Crackdown on Illegal Immigration:   The AP reports Georgia Governor Nathan Deal yesterday offered a solution to the growing need of agricultural laborers after the state's crackdown on illegal immigration has reportedly scared off workers - hire people on probation to do the work.  The state's correction department has already launched a pilot program matching unemployed probationers, who are generally required to seek work, with employers, sending more than 15,000 people to a south Georgia vegetable farm on Monday.  An unscientific study showed around 11,000 job openings in Georgia's agricultural economy.

Texas Execution Scheduled for Tonight:
  Texas death row inmate and triple murderer John Balentine is scheduled for execution tonight, reports Michael Graczyk of the AP.  Balentine was sentenced to death for shooting to death three teenagers in Amarillo more than 13 years ago.  The Supreme Court declined to hear Balentine's appeal on Monday, but a second appeal currently pending before the court argues his appellate lawyers failed to raise claims that his trial counsel was ineffective in not presenting mitigating evidence about Balentine's background and character.  Randy Sherrod, one of Balentine's trial attorneys, says the defense team tried to find evidence to persuade the jury to impose a life sentence instead of death, but that they "couldn't find anyone to say anything good about him."  Update:  The Supreme Court granted a stay of execution pending the disposition of Balentine's petition for writ of certiorari filed yesterday (docket no. 10-11036).  Michael Graczyk of the AP has this story.

Federal Jury in Connecticut Decides Death Sentence for First Time Since 1988:  David Owens of The Hartford Courant reports a federal jury in New Haven, Connecticut today decided Azibo Aquart should be sentenced to death for the gruesome murders of three people in 2005.  Aquart, the founder and leader of a drug trafficking crew that primarily sold crack cocaine, was convicted last month of beating to death three people with a baseball bat over a drug dealing dispute.  The U.S. Attorneys office said this is the first time a federal jury in Connecticut has found a defendant should be sentenced to death since the federal death penalty was reinstated in 1988.

California Realignment Plan Threatens Inmate Firefighting Program:  California Governor Jerry Brown's plan to shift responsibility for tens of thousands of inmates from state prison to county supervision may threaten the state's prisoner firefighting program, reports the AP.  Through the program low-level offenders are able to complete training in fire camps, earn a daily wage and good time credits, and obtain skills and licenses that may help them gain employment after their release.  4,300 state prison inmates work on the front lines of California's wildfires each year, making up nearly half of the state's wildland firefighters.  Under Governor Brown's realignment plan, many of the low-level offenders eligible for the fire program will be under county supervision and it is uncertain whether county sheriffs will elect to send inmates through the program. 

The Baldus Study

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Adam Liptak has this story in the NYT on David Baldus, who died Monday at the age of 75.  Baldus was the lead researcher in the study on race and the death penalty that went to the U.S. Supreme Court in McCleskey v. Kemp.  Regrettably, Liptak's story perpetuates the myth that Baldus's findings are unquestioned fact.

The study's findings have often been misunderstood. They did not show that blacks were significantly more likely to be sentenced to death than whites. What the study found was that people accused of killing white victims were four times as likely to be sentenced to death as those accused of killing black victims. In other words, a death sentence often hinged not on the race of the defendant but on the race of the victim.

But what a study "found" is not necessarily the reality of the matter.  Baldus's study was the subject of a full-blown trial in Federal District Court.  The court found that the models purporting to show race-of-victim bias were invalid for omission of legitimate variables.  Include those variables, and you get a different result.

Half the truth that's fit to print

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Joan Biskupic has this article in USA Today on Justice Thomas's record in criminal cases.  Her theme is accurately reflected in the headline, "Clarence Thomas takes hard line on defendants."  That is true in many ways, many of which are summarized in the article.

But how does Biskupic deal with Justice Thomas's key role in the Apprendi and Crawford lines of cases?  Those two pro-defendant lines have made revolutionary changes, and Justice Thomas has had a major role, including providing the decisive fifth vote in Apprendi.  This term he refused to join Justice Sotomayor's opinion in Michigan v. Bryant, which may have significantly undercut Crawford, although he agreed with the result on narrower grounds.  What does the USA Today story say about that?

Nothing.

News Scan

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Megan's Law Killer Can Continue Appeal: The AP reports on a New Jersey appeals court ruling today that Jesse Timmendequas, whose crimes against seven-year-old Megan Kanka led to the creation of state and federal Megan's Laws, should be allowed to pursue claims of ineffective assistance of counsel. Megan's Law requires notification when high-risk sex offenders move into a neighborhood. In 1994 Timmendequas lured seven-year-old neighbor Megan Kanka into his home where he sexually assaulted and strangled her before dumping her body in a park. At the time Timmendequas was living with two other convicted sex offenders and had previously served six years in prison for aggravated assault and attempted sexual assault of another child. Timmendequas's death sentence was converted to life without the possibility of parole after New Jersey abolished the death penalty in 2007. A state judge has been ordered to consider whether there is any merit to Timmendequas' challenges to the performance of his counsel.

Southern California Juvenile Prison to Be Closed: The AP reports the state corrections department will close one of the two remaining juvenile prisons in Southern California by January. According to corrections officials, the move is part of a long-term strategy to save money and respond to a declining offender population by transferring most youth offenders from state to county jurisdiction. The Southern Youth Reception Center and Clinic in Norwalk, which holds 209 male juvenile offenders, is the third juvenile facility to close in the last 24 months.

DNA Links Convicted Killer to 40-Year-Old Cold Case: Howard Altman and Stephen Thompson of Tampa Bay Online report cold case investigators with the Pinellas County Sheriff's Office used DNA evidence to connect Jerry Fletcher, 69, to the rape and slaying of a 14-year-old Tampa girl in 1971. Fletcher is currently serving life in prison in Illinois for the murder of a teenage girl in 1974. Pinellas sheriff's detectives made the connection about a month ago. Fletcher was not a suspect until the recent DNA evidence became available, and he did not acknowledge any involvement when questioned last week.

Louisiana Bill Would Increase Monthly Fee For Parolees and Probationers: The Times-Picayune Staff (LA) report legislation approved by the Louisiana House of Representatives would increase the monthly fees charged to people on probation and parole by $10. The Legislative Fiscal Office estimates that the increase would generate at least $3 million a year, to be used to pay probation and parole officers. The bill passed 86-5 and now goes to the Senate for a vote.

Arizona Escapee Suspect Ordered to Wear Stun Belt: Jim Seckler reports in the Mohave Daily News that a Superior Court Judge has ordered that suspected prison escapee John Charles McCluskey wear a stun belt during the duration of his trial.  McCluskey is charged with escaping from a privately-run Arizona prison last summer and kidnapping two truckers.  He also faces capital murder charges in New Mexico for the death of an elderly couple.  The stun belt, which can discharge 50,000 volts of electricity, was ordered after correctional officers discovered McCluskey had created a one-and-a-half foot newspaper club in his cell. 

Jury Instruction #105: Don't "Facebook" the Defendant During Trial:
James Lumley from Bloomberg reports an English juror will be jailed for contempt of court after she contacted the defendant during the course of trial using Facebook's instant messaging system and discussed the jury's deliberations.  The defendant, who had been acquitted of the drug charges, was also found in contempt.

Gov. Perry and Willingham

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At the NYT's 538 political blog, Nate Silver has a post titled Debate Swings Door Open for Perry, Closed for Palin.  He suggests that Perry may be the potential presidential candidate best fitting the Buckley Criterion:  "the most conservative candidate who is electable."

Meanwhile, at the Houston Chronicle's political blog, Richard Dunham has this list of potential attacks on Perry by his in-state critics.  One of them, of course, is "The 2004 execution of Cameron Todd Willingham for murder of his three children by arson, despite significant evidence that arson had not caused the fire."

Don't bother clicking on that "significant evidence" link.  It is David Grann's notorious propaganda piece in the New Yorker.  (See, e.g., this post.)

If Perry does decide to run, he will certainly need to make a more vigorous defense of the Willingham execution than he has to date.  The distinction between forensic evidence that fails to prove arson by itself and evidence that affirmatively disproves arson is vital to understanding this case, but that distinction is widely glossed over in discussions of it.  The non-forensic evidence confirming guilt has been pushed to the background when it should be front and center.  A run by Perry could be helpful in bringing all this out in more prominent form.

News Scan

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Supreme Court Orders Reconsideration Cases of Four California Parolees:  The AP reports the Supreme Court today vacated four Ninth Circuit rulings granting early release to four California inmates.  The high court ordered the Ninth Circuit to reconsider these cases in light of Swarthout v. Cooke, the January Supreme Court decision reminding the Ninth Circuit that "the responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, and is no part of the Ninth Circuit's business."

Corruption at the Border:  Mexican drug cartels are attempting "systematic corruption" among U.S. border agents with offers of cash bribes and sexual favors, top officials in the Department of Homeland Security acknowledged during a Senate subcommittee hearing last week.  Customs and Border Protection (CBP) commissioner Alan Bersin says a hiring boom in effect since 2004 has led to a "younger, less experienced" workforce and "exposed critical organizational and individual vulnerabilities within CBP."  The agency is responding with internal investigations and Congress last year passed the Anti-Border Corruption Act of 2010, which requires that all applicants to law enforcement positions in CBP be screened by a polygraph.  Daniel Hernandez has this story in the LA Times.

Georgia High Court Upholds Strict Standard in Capital Cases:  Bill Rankin of the Atlanta Journal-Constitution reports the Georgia Supreme Court affirmed the state's standard requiring that a capital defendant prove beyond a reasonable doubt that he or she is mentally retarded to avoid the death penalty.  Georgia's standard is the strictest among the death penalty states.  Hat tip to How Appealing.
A recurring theme in criminal law is the endless efforts of apologists for criminals to transform misconduct into disorders warranting treatment rather than punishment.  The efforts are often farcical, but they are not funny when gullible judges or juries actually buy them.  One extreme case was US District Judge Robert Chatigny, who actually bought the claim that serial rapist/murderer Michael Ross's sadism was mitigating.  See posts here and here.  That probably cost him a seat on the Second Circuit.  Steve Erickson's refutation of the notion that psychopathy is an excuse is noted here.

The Anthony Weiner kerfuffle is not a criminal case, at least not yet, but the latest episode relates to the misconduct-as-disorder problem.  AP reports, "Congress returns to work on Monday, but at least one lawmaker won't be there. Rep. Anthony Weiner starts this week on a temporary leave of absence, in treatment for an undisclosed disorder at an undisclosed location."

Weiner is in trouble primarily for shamelessly lying through his teeth to the entire nation.  What "disorder" is that?  What "treatment" is there for it?  There is no treatment because gross dishonesty is not a disorder.  It is a character defect.  The same is true for the underlying conduct that he lied about.  But going into "treatment" seems to automatically earn sympathy from the segment of the population that swallows this nonsense that everything is a disorder, so people go into "treatment" when there is nothing to treat.

New SCOTUS Criminal Cases

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The US Supreme Court today took up three criminal cases for decision next term.

Gonzalez v. Thaler, No. 10-895, is a gnarled habeas procedure case on statute of limitations, certificates of appealability, and waived objections.

Gonzalez may or may not have filed his federal habeas petition late, depending on when the clock starts -- when the time to seek a higher court's review on direct appeal expires or when the mandate actually issues.  (I think it's the former.)  USCA5 took that question up in its certificate of appealability, but it did not identify an underlying constitutional claim with any arguable merit, as the statute and Slack v. McDaniel require.  But the state didn't object to that until the case reached the SCOTUS certiorari stage.

Smith v. Louisiana, No. 10-8145, is a noncapital murder case from the Louisiana Supreme Court without a published opinion.  It involves claims of nondisclosure of evidence under the rule of Brady v. Maryland and other cases in that line.  Why did the Supreme Court take up such a fact-bound case?  Pre-AEDPA, they probably would have let the case go to federal habeas, but perhaps they see a need for de novo review here and are more inclined to take such cases straight from the state courts.

Setser v. United States, No. 10-7387, involves when a federal sentence can be made to run consecutively to a state sentence.

Prison Labour

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The British think tank Policy Exchange has a report on prison labor titled Inside Job.  Press release is here; full text is here.  From the press release:

The report recommends a whole new prison work regime based on full-time, paid employment that is run by private companies, profit-driven and commissioned by prison governors. Offenders would still go to prison - but regimes would do much more to offer proper work for inmates to make them more employable on release. Privileges - like in-cell TVs - should be reformed to focus on those who work and paid for out of wages. The result would be more prisoners working, with the most engaged and compliant prisoners getting privileges from work.

A new 'Category W' of prisoner - low security risk, drug free and literate - would be allowed to apply for a job and earn a 'prisoner minimum wage' of £3.10 an hour. This net wage could be split three ways between victims, resettlement, and a management charge - retained by the prison. A prisoner would 'take home' around 70p per hour and a resettlement savings pot for use on release could provide for costs like a rent deposit.
At today's exchange rate of 1.63$/£, that would be $5.05 gross and $1.14 take home.

James Slack has this story in the Daily Mail.  Alan Travis has this story in the Guardian.  Kevin Schofield has this story in the Sun.  The Sun story sports a graphic of an English judge's wig with the caption "The Sun says no to soft justice."  I would link to the graphic, but the Sun apparently does not want bloggers to do that.

No SCOTUS Criminal Opinions Today

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The US Supreme Court decided four cases this morning.  The only criminal case is an immigration matter, Flores-Villar v. United States.  The Court split 4-4 with Justice Kagan recused.  With an even split, the Court just affirms in a summary order without opinion.  This has the effect of affirming the Court of Appeals decision in the individual case but does not set a Supreme Court precedent.

News Scan

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Anti-Death Penalty Group Asks Judge to Block Oregon Execution:  Jonathan J. Cooper of the AP reports the Oregon Capital Resource Center announced yesterday that it is filing a petition next week to block the execution of Oregon death row inmate Gary Haugen.  An August 18 execution date was set for Haugen after he requested to waive his appeals and a judge determined he was competent to do so.  The anti-death penalty group claims the judge should have authorized a professional mental health evaluation before signing the death warrant. 

Feds in "Panic Mode" Over Failed Gun Tracking Program:  Department of Justice officials are in "panic mode" as a congressional hearing approaches to investigate a failed anti-gun trafficking program, reports William La Jeunesse of Fox News.  Documents allegedly show that the Bureau of Alcohol Tobacco and Firearms' "Operation Fast and Furious" knowingly flooded Mexico with assault rifles with the intent of exposing the entire smuggling process, but spun out of control.  After the death of a Border Patrol Agent, another agent stepped forward and exposed the scandal.  Some Arizona gun store owners claim they were explicitly told by the ATF to sell up to 40 guns to a single person in a single day, even though it is illegal to purchase a gun for anyone but yourself.  Mexican officials estimate 150 people have been shot by "Fast and Furious"-tracked guns.

Jury Selection Almost Complete in Second Home Invasion Trial:  Randall Beach of the New Haven Register (CT) reports jury selection is nearly complete in the capital murder case against Joshua Komisarjevsky, the second defendant to be tried for the deadly Petit family home invasion.  After three months of jury selection, defense and prosecution attorneys have agreed on 12 regular jurors, six alternates, and two back-up alternates - leaving only one back-up alternate to be selected.  The defense team yesterday used the last of its 40 peremptory challenges and presiding Judge Jon C. Blue denied its request for an additional 40 challenges.  Judge Blue called the original allotment of challenges "immensely fair" and remarked "it's harder to get onto this jury than into Yale."
On June 1, the Nevada Legislature sent AB 501 to the Governor.  I wrote to the Governor two days later:

Assembly Bill 501 directs "an audit of the fiscal costs associated with the death penalty in this State."  A full, balanced study of the costs associated with retaining, reforming, or abolishing the death penalty would be informative for the public debate.  Regrettably, this imbalanced and poorly drafted bill does not call for such a study.  It calls for a one-sided study for use as a propaganda tool by the opponents of capital punishment.  The State of Nevada has better uses for its limited dollars.
The full text of the letter is here.

Yesterday, the Governor vetoed the bill, Cy Ryan reports in the Las Vegas Sun.  "Thus, because the bill fails to assure me that the outcome of the audit will be reliable and fair, I veto it," the governor said.

News Scan

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Virginia Defendant Could be First to Die Under Fetus-Mother Death Law:  Bill McKelway of the Richmond Times-Dispatch reports Gregory L. Nelson Jr., 27, could be the first to be executed under a 2004 Virginia law that allows imposition of the death penalty for the murder of an expectant mother and her fetus.  A grand jury handed down an indictment yesterday charging him with the capital murder of 24-year-old Susana Cisneros, who was found slashed to death outside a restaurant where she and Nelson had worked.  Cisneros was pregnant at the time and had told family members that Nelson was the father, though the prosecutors says this fact that has not yet been confirmed.

How Do You Dismantle A Meth Lab?:  Daniel Potter of NPR has this so-titled piece on states' efforts to handle the dangerous and costly process of dismantling methamphetamine-cooking labs.  Tennessee, which leads the nation with more than 2,000 meth lab busts last year, reportedly paid $4.5 million last year to certified contractors to neutralize and haul away the poisonous materials used in the meth-cooking process.  The federal government funded these cleanups until budget cuts this spring, leaving law enforcement officials worried that smaller counties will not report meth labs to avoid the $2,000-$3,000 per lab cleanup bill.

Border Issues Not Confined to Border:  John MacCormack of the San Antonio Express-News has this story about the fight against illegal immigration in rural Brooks County, Texas.  Sheriff deputies several times a week encounter groups of illegal immigrants sneaking through towns and ranches in the county, and more than 100 bodies have been found lost or abandoned by smugglers in the brush since 2009.  Though several hundred Border Patrol agents work in the county, much of the burden falls to local agencies.  And because the county is not considered a "border county," it does not receive federal aid.  "It's not our problem, but it's become our job,"  said Brooks County Sheriff investigator Daniel Davila.

Articles of Interest

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Here are several recent articles of interest.

Steven Erickson and Michael Vitacco have this article on SSRN entitled Predators and Punishment on psychopathy as an excuse.  Here is the abstract:

Psychopathy is characterized as an emotional disorder tightly woven with persistent antisocial behavior. Prevailing legal doctrine and social norms hold psychopaths responsible for their conduct and punishment legitimately flows to psychopaths who violate the law. Recent scholarship, however, has challenged that view by claiming the emotional and cognitive deficits inherent in psychopathy should preclude culpability for some psychopaths. This view necessarily imposes a substantial modification on how the law conceptualizes culpability that is ultimately unwise. Legal responsibility entails the capacity for rationality and psychopaths comport with the established meanings of rationality as understood by the law and the communal intuitions which guide it. Extant scholarship indicates psychopaths are rationale agents and can be fairly subjected to punishment for conduct which violates the law. The law should reject efforts to include psychopaths within its excuse jurisprudence.

In the current issue of Engage are two criminal law articles:
From the former:

The Guidelines are a lost cause. When they became optional after Booker, the Sentencing Commission lost the central purpose for which Congress established it. Yet each year it spends more money making suggestions district courts now follow only little more than half the time. It's time for the Commission to go, and for Congress to re-write the Sentencing Reform Act.

California Realignment

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Tom Meyer had the above picture, worth a thousand words, in the SF Chron.

Two Federal Sentencing Cases

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The US Supreme Court decided two federal sentencing cases today.

Sykes
v. United States involves the chronic problem of defining a "violent felony" for the purpose of the three strikes provision of the Armed Career Criminal Act.  (If that sounds familiar, see Monday's post on the "serious drug offense" provision of the same act.)  How about fleeing an officer in a car?  The facts of the case are nowhere near the kind of chase involved in Scott v. Harris.  Even so, the Court affirmed the sentence.  Those who like to track Justice agreement and label them by ideology should note the split -- Kennedy joined by Roberts, Breyer, Alito, and Sotomayor and joined in the judgment by Thomas.  Scalia, Kagan, and Ginsburg dissent.

DePierre v. United States asks the seemingly easy question of whether "cocaine base" in the drug statute means "cocaine base" or whether Congress used that term when it really meant "crack cocaine," which is one variety of cocaine base.  The Court holds unanimously that the statute means what it says.  Opinion by Justice Sotomayor.  Justice Scalia grouses separately about the use of legislative history (which he considers bunk) to interpret a statute that is clear on its face.

Note that we are now seeing former SG Kagan in federal criminal cases, so the cases from which she is recused have apparently been largely flushed from the pipeline.

This article by Diane Jennings on death penalty delays is on the Bellingham Herald site today.  It was originally in the Dallas Morning News, but it's behind the DMN paywall there.  The story includes this gem of a quote:

"There are no frivolous issues when you're trying to save another man's life," said Patrick Metze, director of the Capital Punishment Clinic at Texas Tech School of Law.
But of course there are frivolous issues, and burying the courts with frivolous pleadings is ethically forbidden, not ethically required.

Further down the story, Texas prosecutor Chip Wilkinson is quoted:

An issue that Wilkinson said "puts terror in the hearts" of appellate attorneys is whether defendants are entitled to "effective" assistance of counsel on a state writ of habeas corpus. Under current law, attorneys must be "effective" at trial, meaning their entire performance during the trial can be reviewed and used as a basis for reversal.

If that same performance measure is demanded for a writ seeking re-examination of the entire case, "you're adding an entirely new level of review," Wilkinson said.

To date, it is solidly established law that the constitutional right to counsel, and hence the right to effective counsel, ends with the first appeal. Effectiveness review after that creates the danger of an unending spiral of every lawyer litigating the effectiveness of the lawyer before him.  The recent grant of certiorari in Martinez v. Ryan is a troubling indicator the Supreme Court might be considering tinkering with this established law.

News Scan

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Ohio Governor Spares Condemned Killer of Two Scheduled to Die Next Week:  The AP reports Ohio Governor John Kasich today spared the life of death row inmate Shawn Hawkins, saying he had no doubt of Hawkins involvement in the 1989 double murder, but that "[p]recise details of that role are frustratingly unclear to the point that Ohio shouldn't deliver the ultimate penalty in this case."  The governor's decision came after the Ohio Parole Board recommended the same last month, citing several possible problems with Hawkins' case.  Hawkins is the first death row inmate to receive clemency since Kasich took office in January and the seventh to be spared since Ohio resumed executions in 1999.  

Danish Pharmaceutical Company Seeks to Block Access to Execution Drug:  Peter Stanners of The Copenhagen Post reports the Danish pharmaceutical company Lundbeck, makers of the drug Nembutal (generically known as pentobarbital), met with a human rights organization this week to discuss ways to prevent the drug from being used in executions in the United States.  The meeting represents a reversal of Lundbeck's previous position on the use of its drugs, as the company in March said there was little it could do to prevent the ultimate use of its drug and dismissed forcing distributors to sign "end user agreements" to prevent the drug from being sold to prisons.  "We have now realised that even though we can't be completely certain where the drugs end up we should work towards making it harder for the prisons to get the drugs," said Lundbeck spokesperson Mads Kronborg.

More Than 100 Arrested in California Gang Sweep:  California authorities raided more than 50 properties and arrested 101 suspected members of the "Nuestra Familia" gang, a Northern California gang tied to the state prisons and Mexican drug cartels and characterized by California Attorney General Kamala Harris as "one of the most vicious and lethal gangs in our state."  This week's sweep, conducted by more than 300 state, federal, and local agents, was the fifth and largest in two years targeting gang members in Central California.  Yesterday's arrests included two street commanders who controlled operations in Madera and Merced counties.  "Literally, they've been terrorizing these two counties," said Harris.  Don Thompson of the AP has this story.

News Scan

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Nevada DNA Bill Dies in Committee: Cy Ryan of Las Vegas Sun reports Nevada Assembly Bill 552 has died in the Senate Finance Committee without a vote.  The bill would have allowed DNA testing of those arrested for a felony or a misdemeanor sexual offense. The bill had heavy support from law enforcement and passed the Assembly 13-11.  The state's current DNA law allows testing only after a conviction. 

Latino Gang Specifically Targeting Blacks in Southern California City:  Greg Risling of the Associated Press reports federal authorities are cracking down on a Latino gang seeking to rid the Southern California town of Azusa of its black residents.  Federal prosecutors say the Varrio Azusa 13 gang has used threats and violence since as far back as the early 1990s to show its loyalty to the Mexican Mafia prison gang.  More than a dozen people were arrested today during early morning raids, and more than 50 people are facing charges.  The Varrio Azusa 13 gang is only the latest gang to be targeted in the Los Angeles area for engaging in racially-motivated violence towards blacks.

Governor Reveals Plan to Reduce California Prison Population:
  California Governor Jerry Brown's administration revealed today that the state's plan to reduce the prison population, as ordered by the Supreme Court last month, is to shift thousands of inmates from state prison to local custody.  The governor's plan was signed into law in April, but does not take effect until local governments receive some funding from the state - funding that is currently stalled in the state Legislature.  State officials acknowledged today that it might not meet the court's initial goal of cutting the prison population by more than 10,000 inmates by November, but did not request a delay.  The AP has this story.

I have thus far avoided putting up an entry on the Casey Anthony trial, even though, notwithstanding John Edwards' indictment and Rep. Wiener's Excellent Internet Adventures, it's the most prominent criminal case out there.  I've stayed away because this site is (and we hope it remains) different from and better than People Magazine.  But even more than that, the Casey Anthony trial is simultaneously disgusting and oddly routine.

It's disgusting for the obvious reasons; there's only so much you can, or would want to, say about a mother who suffocates her two year-old daughter and tosses her corpse into the woods. 

It's routine because the outline of the defense, although in one way a surprise (having been sprung the first day of trial) is, at this point, standard issue:  A cacophany of lies; free-floating and grotesque accusations against others; lots of "bad memory;" going to the hilt playing the victim (of childhood sexual abuse (what else)); and claims of panic  --  said panic having lasted a month or so while the defendant declined to call the cops to report her daughter missing, then extending considerably longer while she made up an involved story about how she left the child with a non-existent baby sitter.

Although lying is off-the-shelf inventory for criminal defense, I must say the defense here has taken it to a different level.  Ms. Anthony, her counsel tells us, lied about her toddler's "accidental" death because she was molested as a child by her father.  (I believe the brother has been thrown in for good measure).  The logical relationship of such abuse to the parade of lies years later has not been entirely explained.

Yikes.  It makes you nostalgic for the Twinkie Defense.

For those interested, part of the story is here.

Name That Creep

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Today's quiz:  Who is it that, when confronted with evidence of outlandish misbehavior, undertakes the following strategy:   Indignantly lies, accuses others, suffers from "bad memory," plays the victim, and claims that he/she "panicked," even after days, weeks or months of thinking it over?

a)  Casey Anthony, explaining how her two year-old daughter happened to wind up dead.

b)  A prominent New York lawmaker.

c)  Your everyday felony defendant.

d)  All of the above.

The answer is too easy to get into, but as of this afternoon, we can concentrate on b).

Racers

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Here is a new term for a concept that has been in need of a word for some time.  From the Racer of the Week blog, we have this video of radio host Tony Katz interviewed by Contessa Brewer on MSNBC.  It is April 28, 2011.  They are discussing the birth certificate kerfuffle, and Brewer makes a typically unsupported accusation that the controversy was really about race.  Katz says this:

If there are "birthers," and they're all crazy and silly for wanting to actually see a birth certificate, well let's talk about the "racers" -- the people who believe that everything is a conspiracy about race.
That is a good term and a good comparison.  The people who find racism every place they look and as the hidden motivation for every position they disagree with are every bit as "crazy and silly" as the birthers.  They are far more dangerous, however, because many of them are in positions of power and influence.  Perhaps most pernicious of all for the long term, many of them are in academia, filling the heads of the next generation with their craziness.

I got the link from James Taranto at WSJ, who has this post on Bizarro World Racism.  Mitt Romney says Barack Obama has a European type of viewpoint on policy issues, and Chris Matthews finds race in that.  Huh?

Of course, we see "racer" arguments all the time in criminal justice.  The death penalty is racist because black people are a larger portion of death row than of the general population, conveniently overlooking the fact that black murderers are a smaller portion of death row than of the population of murderers, the relevant denominator.  And on and on and on ....

Eighty Percent Discount Just for You!

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Many of our readers have a criminal law practice.  Many also know that I am an adjunct professor of law at Georgetown Law Center.  I am happy to be able to say that the ever-handy Annual Review of Criminal Procedure, sponsored by the Georgetown Law Journal, and hailed as "the most important and widely used law review publication in the U.S.," is now available. 

As an added bonus, I'm pleased to say that our readers can get it at an 80% discount.  The regular price is $75.  But for you, it's $15.

There's only one catch:  In order to get it at this special price, you have to be more than just a C&C reader.  You have to be an inmate.  And you have to have it mailed to your prison address.

And no, this is not a joke.  Here's the order form.

Sorry, the price for law-abiding people is the regular $75.  And for people who are dorky enough to contribute something significant to society, the price is $1000, plus your letter of apology for being a nerd.

(Hat tip to the reader who sent this one in).

News Scan

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'Baseline Killer' Trial Begins Today:  Michael Kiefer of The Arizona Republic reports the capital murder case will begin today against Mark Goudeau, 46, who is already serving a 438 -year prison sentence for the September 2005 sexual assaults of two sisters in Phoenix.  Police and prosecutors believe Goudeau is the 'Baseline Killer' who terrorized Phoenix for 13 months in 2005 and 2006 and killed 9 people.  He faces 74 felony charges, including nine counts of first-degree murder (for which he could face the death penalty), 11 counts of kidnapping, 12 counts of armed robbery, and 14 counts of sexual assault.  Goudeau was arrested in 2006 after police got a DNA hit from the 2005 rapes.

Jury Selection Begins in Trial of Ohio Sex Serial Killer: The AP reports jury selection begins today in the case against Anthony Sowell, a convicted sex offender and ex-marine who is charged with killing 11 women and hiding their remains in his Cleveland home.  The trial was originally scheduled to begin last year, but was delayed by an unsuccessful change of venue request and the removal of two presiding judges.  Jury selection is expected to last two weeks.

Do You Take Pennies?:  A Utah man is facing a disorderly conduct charge after he attempted to pay for a $25 disputed medical bill in pennies, reports Geoff Liesik of the Deseret News (UT).  Jason West, 38, allegedly dumped the 2,500 pennies (weighing 138 pounds) onto the counter and asked the clinic staff count then.  A receptionist called the police.  West was issued a citation and faces a potential fine of 14,000 pennies.

Partly Frivolous Lawsuits

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One civil case decided today involves awards of attorneys' fees under 42 U.S.C. §1988, an issue that arises frequently in suits against law enforcement.

The late Billy Ray Vice, one-time chief of police of Vinton, Louisiana, was evidently a real sleazoid.  His dirty campaign against his election opponent, Ricky Fox, was a triple loser.  He lost the election to Fox.  He was prosecuted and convicted of extortion.  Finally, Fox sued him.

Fox had very good grounds to sue Vice, but he messed up by including a federal civil rights claim.  The Federal District Court found that the civil rights portion was not only meritless but frivolous, awarded summary judgment and attorneys' fees to Vice, and booted the remainder of the case back to state court.

Today, the Supreme Court decided that the award of attorneys' fees should have been limited to the portions that would not have been incurred without the bogus civil rights claim, excluding fees incurred for work that overlaps the valid and bogus claims.

The case did not involve, and does not address, the true vice of the Supreme Court's §1988 jurisprudence -- the different standards for plaintiffs and defendants.  There is no basis for this in the language of the statute, and the Court explained in the John Fogerty case, involving a different statute, why a dual standard is a bad idea.  (Oh, Lord, stuck in litigation again.)  That issue must await another case, or possibly congressional action.

Facts on Marijuana

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The National Association of Drug Court Professionals has this publication titled The Facts on Marijuana by Douglas Marlowe.  Fact number one refutes the curiously persistent myth that legalization of marijuana would solve our prison crowding issues.  Nonsense.

It is exceedingly rare to be incarcerated in the U.S. for the use or possession of marijuana. According to the National Center on Addiction & Substance Abuse at Columbia University (CASA, 2010), less than 1 percent (0.9%) of jail and prison inmates in the U.S. were incarcerated for marijuana possession as their sole offense.

Excluding jail detainees who may be held pending booking or release on bond, the rates are even lower. Prison inmates sentenced for marijuana possession account for 0.7 percent of state prisoners and 0.8 percent of federal prisoners (see Table).  And, considering that many of those prisoners pled down from more serious charges, the true incarceration rate for marijuana possession can only be described as negligible.
CJLF has not taken a position on the legalization question as such.  But to the extent that false arguments used in that debate impact the larger debates on sentencing policy, it is important to point out when they are bogus.  The claim that we can safely release large numbers of prison inmates because many of them are just harmless pot-smokers is false and dangerous.

The Prior Problem

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Only one actual criminal law opinion issued from the US Supreme Court today, a minor federal sentencing case.

McNeill v. United States, No. 10-5258, decided today, dealt with the continuing problem of categorizing prior convictions for recidivist sentencing.  The three strikes provision of the Armed Career Criminal Act imposes tougher penalties on convicted felons if they have three priors for a violent felony or a "serious drug offense."  Sounds fine, but where do you draw the line on "serious"?  Congress drew it, for state priors, by the maximum penalty the state has chosen to impose for that crime.  If you can get 10 years for it, it's serious.  See 18 U.S.C. §924(e)(2)(A)(ii).

What if the state changes its mind and lowers the penalty between the time of the prior and the time the defendant is sentenced for the federal firearms offense?  Tough beans, said a unanimous Supreme Court.  No big surprise.  In similar cases, the Court has looked to the law in effect at the time of the prior offense without regard to subsequent changes.  See page 5 of the slip opinion.

Q:  Who picks up the tab for criminal defense in this country?

A:  You do.

One of the innovations of the Warren Court was its 1963 decision in Gideon v. Wainwright that accused felons have a right to counsel provided by the state.  Nine years later, in Argersinger v. Hamlin, the Court held that counsel must be provided whenever a criminal charge, whether or not denominated a felony, might result in imprisonment.

So who pays the bill?  I have not been able to find very recent statistics, but according to the PBS program "Presumed Guilty," using figures provided by the Bureau of Justice Statistics, in 1998, roughly 66 percent of all federal felony defendants were represented by public defenders or other publicly funded counsel. At the county level, in 1996, 82 percent of felony defendants in the 75 most populous counties used public defenders.

OK, next issue:

Q:  Does the criminal defense for which you're shelling out millions emphasize candid, straightforward, unvarnished truth telling?

A:  Don't get me started.  

Due Process Run Amok

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I reported a few days ago about a bus crash that killed four passengers.  Driver fatigue was apparently the principal cause.  What made the story relevant for this site is that the bus company's safety record can fairly be described as criminally negligent, yet nothing had been done:   The tour company had been involved in several crashes in less than 20 months, and had been cited 46 times for allowing fatigued drivers to take the wheel, but the fleet was still on the road.

It now comes out that the Department of Transportation was, it claims, about to shut the company down, but gave it extra time to appeal its "unsatisfactory" safety rating:

A timeline released Wednesday by the department indicates that without the extension Sky Express of Charlotte, N.C., would have been shut down before the crash that killed four passengers and injured dozens of other people****

According to the timeline, Sky Express' authority to operate would have been revoked last Saturday. The department gave the company an extra 10 days to appeal.  Since the fatal crash, the bus company has been shut down...Federal records show Tuesday's fatal Virginia crash was the fifth highway accident involving the Sky Express bus company since last July.

The fifth accident since last July?  And the company was still operating?  And given extra time to appeal?

Time and again, we have seen in the context of the death penalty the travesty of drawn-out appeals, almost all of them of the run-the-clock variety.  We now see, in a different but still lethal context, the consequences when an hypnotic obsession with "due process" overrides just results.

It's time  --  past time  --  to change our priorities and get moving.  

 

Yet Another "Human Right"

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Death penalty opponents are adamant that capital punishment is a violation of "human rights."  Amnesty International, for example, could hardly be more explicit:  "The death penalty is the ultimate denial of human rights," see this site.

I have never been real sure of the source of authority to declare that a punishment perfectly legal in countries with more than half the world's population (including India, the world's largest democracy) is a violation of "human rights," nor am I sure of what objective and agreed upon standards are used to decide what a "human right" is.

Evidently, I need to find out right quick, because it seems that we have a new one:  Access to the Internet.  And no, I am not making this up.  MSNBC reports that said access has been declared a "human right" by none other than Frank La Rue, a 'special rapporteur' for the UN's Human Rights Council (emphasis added): 

The UN report defines Internet access to include both free information flow as well as access to infrastructure, "such as cables, modems, computers and software, to access the Internet in the first place."

Well that's cool.  I trust the UN will be sending someone over in short order to give me up-to-date cables, modems, computers and software.  I also trust someone else  --  although I'm not sure who  --  will pick up the tab for this, since I think it's a no-no to charge for, you know, human rights.

Moral of story:  Next time you hear abolitionists start in on "human rights," watch your wallet (in addition to your chance for justice).


 

Two of our most thoughtful readers, mjs and federalist, have noted, in their comments to my earlier post, that there are reasons a fair-minded person could have doubts about the Edwards prosecution.  Federalist concentrates on the stretch needed to apply the statutory language to Edwards' behavior (or, indeed, merely behavior from which Edwards benefited), while mjs thinks this might be taken by the jury as an example of federal over-reaching.

Their concerns are shared by my friend John Hinderaker, writing on Powerline.  John notes: 

I am no fan of John Edwards, but this prosecution strikes me as unfortunate. Based on a quick review, it does not seem to be an indefensible application of the campaign finance laws, although the government's theory, as Edwards' lawyer put it, is "novel and untested." But what's the point? The campaign finance laws are intended to keep candidates on a level playing field. (Some would say they are mainly intended to promote the re-election of incumbents, but that is a debate for another day.) The money that was spent here didn't go for campaign ads or get-out-the-vote efforts. It was invisible to voters. It allowed Edwards to keep his wife (and voters too, of course) in the dark about his girlfriend and baby and relieved Edwards of the need to support them. Those are hardly noble objectives, but is policing this sort of misconduct really the function of campaign finance laws?

John's entire piece is worth the read.  But I have to confess that, as a former AUSA, I would pay good money to be part of the prosecution team for this one.

Crack Retroactivity and Plata

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In this video, WSJ's Jason Riley interviews Heritage's Cully Stimson on the retroactive application of the crack sentencing reductions.  Riley also brings up the Plata decision and notes that the law-abiding people of poor neighborhoods will suffer most from the release of criminals, most of whom will be headed back to those neighborhoods.

Somebody at WSJ Online gave the video the regrettable caption "What is Obama Smoking?"  That's really beyond the pale, folks.  This is the Wall Street Journal, not the New York Post.

Extension of Time in Plata?

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When the Supreme Court, 5-4, affirmed the California prisoner release order, it very strongly hinted that if the State asked for more time, the panel should grant it.  This post on the LA Times politics blog indicates Gov. Brown will indeed ask for more time.

Now, the three judges on this panel don't actually give a hoot what the Supreme Court thinks.  They are the most pro-criminal, anti-law-enforcement panel in the history of the federal judiciary.  However, they know that the State has an appeal as of right to the Supreme Court.  Unlike almost all other cases, the high court has to take it if asked.  So Judge Reinhardt's "they can't reverse them all" maxim doesn't apply here.  So maybe they actually will pay attention to what the Supreme Court said.  Maybe.

One More Brief Note on Hypoxia

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In this post last February, I suggested hypoxia (via displacement of oxygen with a neutral gas) as an alternate method of execution.  I noted then, "I do not need reports or studies to know that hypoxia is painless.  I know it from personal experience in the altitude chamber during Air Force flight training."  This article by Kevin Svetcos, an altitude chamber instructor, describes that training in more detail.
The Ninth Circuit yesterday granted rehearing en banc in United States v. Pool, previously noted here.

News Scan

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Florida High Court Rules on Relief for Erroneous Death Sentences:  The Florida Supreme Court yesterday clarified the appropriate remedy for death sentences reversed because the sentencing judge erroneously overrode a jury recommendation of life.  The court previously handled such reversals inconsistently, sometimes remanding the case to the trial court for resentencing and other times remanding for imposition of a life sentence.  The court held the latter to be correct.  "Once a defendant has demonstrated that the mitigation presented would have provided a reasonable basis for the jury recommendation, the defendant is entitled to a life sentence.  Accordingly, we now hold that the proper course . . . is to remand the case to the trial court for imposition of a life sentence.  By eliminating the resentencing proceeding on remand, as well as any subsequent appeal, this approach will promote the timely resolution of these cases, and it will foster uniformity in this area."  Brendan Farrington of the AP has this story.

A Prostitute Can Be Recruited to Prostitution, California Supreme Court Says:  Bob Egelko of the SF Chronicle reports the California Supreme Court yesterday ruled that one who recruits another to "become a prostitute" can be convicted under California's pandering law - even if the recruitee is already a prostitute.  Jomo Zambia was arrested in June 2007 for soliciting an undercover policewoman who was posing as a prostitute, after he told her he was a pimp and offered to pay for her housing and clothing if she would work for him.  After he was convicted, his attorney argued on appeal that the relevant statute did not prohibit encouraging a current prostitute (or someone posing as one).  The court disagreed, noting that "[t]he plain intent and purpose [of the statute] . . . is to deter pimps or others from establishing new working relationships in the unlawful prostitution trade." 

"Mr. Blagojevich, you are a convicted liar, correct?": 
So went the first moments of Assistant U.S. Attorney Reid Schar's cross examination of former Governor Rod Blagojevich during his retrial on corruption charges, reports Chicago Tribune reporters Jeff Coen and Bob Secter.  After five days of direct testimony during which Blagojevich seemed "relaxed and sometimes jovial," prosecutors attacked about his past dishonesty while in office.  Blogojevich punted the questions, responding "I try to be as truthful as possible.  Politics is a difficult business," and characterizing what prosecutors called a "lie" as "a misdirection play in politics."  The AP has some additional notable quotations here.

South Dakota Inmates to Get Voicemail System:  Megan Luther of The Argus Leader (SD) reports the South Dakota Department of Corrections will soon be adding a voicemail feature to allow callers, for $1, to leave a 60-second voicemail for inmates in state prison.  Inmates will be able to check their messages twice a day for no cost.  Michael Winder, communications and information manager for the Department of Corrections, says the equipment and operating costs of the system will be covered by the $1 fee and will not cost taxpayers any additional money.  Under the current rules, inmates are allowed to place calls, but can only accept emergency incoming calls.

The John Edwards Case

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Because I think the John Edwards case will present important issues involving crime and consequences (to coin a phrase), I expect to be following it on this blog in some detail.  It is also near and dear to my heart in a number of ways.  I got my undergraduate degree at the University of North Carolina, where Edwards got his law degree.  He was a courtroom lawyer, as was I, although he made a great deal more money.  And his challenge to the indictment  --  a virtual certainty to be undertaken  -- will be decided in the US Court of Appeals for the Fourth Circuit, where I argued more than 100 criminal cases, representing the United States.

So let me make some observations.

Congratulations, Eric Holder

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I have often been critical of Attorney General Holder for a variety of his Department's decisions, from the Black Panther voting rights dismissal to his incoherent (and dangerous) handling of terrorist interrogations and prosecutions.

Today is a day for congratulating Mr. Holder.  Democratic Party big wig, ex-Senator and 2004 Vice-Presidential candidate John Edwards was indicted today on campaign finance corruption charges.  The gist of the case is that he funneled money from contributors to help cover up an affair with a campaign aide, and then further to cover up the existence of a daughter he had by her.

Some will try to say that this is merely the work of a holdover Republican US Attorney.  Let's get clear on that right now.  First, US Attorneys are political appointees who serve at the President's pleasure.  If President Obama wanted him out, he would have been out months or years ago.  Second, having been a long-time member of both a US Attorney's Office and a politically-appointed officer of the Justice Department, I can tell you with 100% certainty that this indictment was approved in advance at the highest levels, very likely by Holder himself, and if not that, by the DAG with Holder's blessing.

Holder knows that this is not good news for his Party, which is also suffering from the Weiner Matter, into which I shall not go further on a family blog.  He also knows that this is likely to be a long, slow torture; if Edwards were amenable to a plea agreement, it probably would have been reached in time to head off the indictment.  Accordingly, Holder is due credit and thanks for allowing this case to go forward.

P.S.  I could not end this without saying that Edwards may be the most despicable person I have ever run across in public life.  To have an affair while your wife is dying of cancer is bad enough; to deny your own child, which Edwards did for years, is pretty much beyond belief.  And this is the man John Kerry selected to be a heartbeat away.

Punishment for Imprisonment

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Sam Stanton of the SacBee reports on the sentencing of Phillip Garrido.

Garrido forcibly took Jaycee Lee Dugard away and held her prisoner for many years.  As punishment, society is going to forcibly take Garrido away and hold him prisoner for many years.

Anybody have a problem with that?

Is anyone going to hold a candlelight vigil for Garrido?  Will we hear unctuous sermons about how it is wrong to hold people prisoner to show that holding people prisoner is wrong?  Will we be lectured that doing so lowers us to his level?

Not likely.

News Scan

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Immigration To Add 1,300 Beds For California Detainees: Amy Taxin of the Associated Press reports U.S. Immigration and Customs Enforcement officials announced they will add 1,300 beds to detain suspected illegal immigrants in Southern California, a region where a substantial number of immigrants are detained. A facility will be set up in the city of Adelanto. Authorities say that they are trying to create more bed space to cut down on the transfer of detainees to other locations, often out of state, due to a lack of bed space in the Los Angeles area. With the addition of the facility in Adelanto, the number of beds available in the Los Angeles area will be more than 3,000.

North Carolina Bill Would Repeal The Racial Justice Act: Gary D. Robertson of the Associated Press reports a North Carolina House judiciary committee endorsed a bill that would repeal the Racial Justice Act, a two-year-old law which allows prisoners to challenge their death sentences on the basis of racial bias. If a judge agrees that the defendant's case was tainted by racial bias, they could reduce a death sentence to life in prison. Almost all of North Carolina's 158 death row inmates have filed paperwork under the act seeking to overturn their sentences. Repealing the measure would return the state to a standard set by a 1987 U.S. Supreme Court Decision that says a judge would have to find that police or prosecutors acted with discriminatory purpose to prove racial bias. The bill will go to the House floor for a vote.

California Senate Approves Giving Minors Sentenced to LWOP a Chance to Get Out:
Patrick McGreevy of the Los Angeles Times reports the California Senate voted 21 to 16 to approve SB 9, a bill by Sen. Leland Yee (D-San Francisco) that would allow those serving prison sentences of life without parole for crimes they committed when they were under 18 to have their cases reviewed after 15 years with the possibility of having their sentences changed to allow parole. According to an analysis by the Legislature, there are about 275 people in California serving sentences of life in prison without parole for crimes committed when they were minors. The Senate-approved bill now goes to the Assembly.


Under the structure established by the Supreme Court in the 1970's states are required to narrow the types of murders eligible for the death penalty.  Some states narrowed too much and some too little.  In the former category is New Hampshire, where a horrific home invasion robbery-murder was not eligible for the death penalty.

A corrective bill passed the Senate today on a voice vote, WMUR reports.
The headline above this AP story reads, "Holder to testify before commission on crack."  (Hat tip, James Taranto, WSJ.)

The AG testified about retroactivity of the reduction of the infamous crack/powder ratio in sentencing.  I'm pretty sure he was clean and sober when he testified.

A Pox on Both Your Houses

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Here is one from the right message, wrong messenger file.  Sarah Anne Hughes has this post at the WaPo.

As President Obama honored fallen soldiers at Arlington National Cemetery on Monday, three members of the Westboro Baptist Church protested the ceremony, holding signs that read "Pray for more dead soldiers" and "God hates your prayers," as the controversial group has become known to do. They were met by about 70 counterprotesters....

Dennis LaBonte, who told CNN he was a military veteran ..., said the approximately 10 members of the group came in "support of the troops." LaBonte ... said he "thinks that it's an absolute shame that [the WBC] show up and disrupt people's funerals."
All unremarkable, right?  The counterprotesters are completely correct, right?  So who is Dennis LeBonte?  I edited that part out.

News Scan

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Convicted Killer in $7 Holdup Set to Die:  Michael Graczyk of the AP reports that convicted killer Gayland Bradford will be put to death later today after the U.S. Supreme Court rejected his stay of execution last week. Bradford was already out on parole for a robbery conviction when he robbed a Dallas grocery store for $7 and gunned down 29-year-old security guard Brian Williams four days after Christmas in 1988.  Bradford will be the fourth Texas prisoner to be executed this year.

Missouri Supreme Court Rejects Death Row Inmates' Appeals:  Mark Morris of The Kansas City Star reports the Missouri Supreme Court yesterday rejected the appeals of death row inmates Michael Taylor and Roderick Nunley, both convicted of the 1989 kidnapping, rape, and fatal stabbing of 15 year-old Ann Harrison.  In 1991 both men pleaded guilty and opted to have a judge, rather than a jury, determine their sentence because they thought a judge would be more likely to sentence them to life in prison. Although the Supreme Court later ruled that a capital murder defendant has the right to have a jury find the aggravating factor required for a death sentence, both men validly waived a jury for this stage of the proceedings.  "To approve such an argument would solicit game-play in criminal cases. It essentially would encourage a defendant to waive his jury rights, take his chances with a judge and then, if he does not receive the leniency he expected from the judge, later feign confusion about having waived his right to jury sentencing so he could take his chances again before a jury," wrote Judge Mary R. Russell.

Execution Date Set for Jasper, Texas Dragging Death:  A September 21 execution date was set yesterday for Lawrence Russell Brewer,who was convicted and sentenced to death for his involvement in the infamous dragging death murder near Jasper, Texas.  In 1998, Brewer and two other men offered James Byrd a ride in one of their trucks, chained Byrd's ankles to the bumper, and dragged his body for three miles.  Prosecutors claimed Brewer was the leader of a supremacist prison gang and that the murder was racially motivated.  Michael Graczyk of the AP has this story.
  

KSM Re-charged

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Peter Finn reports in the WaPo:

Military prosecutors have re-filed capital charges against Khalid Sheik Mohammed and four co-defendants accused of orchestrating the attacks of Sept. 11, 2001, restarting a process that the Obama administration had halted as part of its failed effort to close the military detention center at Guantanamo Bay, Cuba.

Charges against the five men were withdrawn without prejudice and dismissed in January 2010 in anticipation of a federal trial in New York City. Bipartisan opposition scuttled that plan, and Attorney General Eric H. Holder Jr. announced in April that the defendants would be returned to a military tribunal at Guantanamo Bay.   

Murder Most Academic

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Theodore Dalrymple has this article in the City Journal.

If a satirist had come up with the idea of a violent criminal who had spent time in an asylum being admitted by a university to its doctoral program in "homicide studies," thereafter turning into a serial killer, that satirist would have been denounced for poor taste. But this is precisely what a British university did recently. A man with a long history of criminal violence became a serial killer while working on a Ph.D. thesis at the University of Bradford, the subject of his thesis being the methods of homicide used in the city during the nineteenth century. He himself used methods more reminiscent of the fourteenth.
The Last Psychiatrist has an interesting post about investigative journalism and the Wikileaks controversy that may be of interest to readers.  As the good doctor concludes:

It is very easy, very easy, to decide whether what Wikileaks is doing is right or wrong.  I don't mean you'll decide correctly, I just mean it only takes you a second to decide.  Just like it took you with WMD and climate change.

The hard question to answer is what happens now that Wikileaks is a reality.  The wholesale release of secret documents is now part of our cultural foundation, like porn, coffee, cohabitation, English, pants, driving, football. These things will be with us for generations.  Assange thinks that this reality itself-- not the documents themselves, but the ability to access secrets, reduces the size and power of governments.  Is he right?

If online porn can be seen as the wholesale leaking of sexual secrets, then its effect on traditional sexuality-- good and bad-- may serve as an analogy worth pondering.