July 2011 Archives

Brian Carney has this article in the WSJ with the above title, subtitled, "Prison psychiatrist Theodore Dalrymple asks why we feel compelled to understand monsters like Anders Breivik, but no need to explain others' righteous behavior."  The whole article is well worth reading, but here is an excerpt (emphasis added):

Your garden-variety convicts, he contends, are much simpler subjects than a man like Breivik. To ask them why they steal, he says, "is like asking you why you have lunch." They want something, so they take it. "And since in Britain," he adds with a smirk, "the state does very little to discourage [thieves]," or to incarcerate them when they are caught, "the question is not why there are so many burglars, but why there are so few."

A Breivik is a deeper mystery. Of him, "you can say, 'This man is highly narcissistic, paranoid and grandiose,'" and this may lead you to seek reasons for that in his past--"his father disappeared at the age of 15 and so on and so forth." But uncovering such facts doesn't solve the mystery because "whatever you find, you would also find among hundreds or thousands or even millions of people who didn't do what he did." There is, he says, "always a gap between what is to be explained and your alleged explanation. So there's always a mystery, and I think that's going to remain."

The human impulse to explain the inexplicably horrific is revealing, according to Dr. Dalrymple, in two respects--one personal, one political. First, it says something about us that we feel compelled to explain evil in a way that we don't feel about people's good actions. The discrepancy arises, he says, "because [Jean-Jacques] Rousseau has triumphed," by which he means that "we believe ourselves to be good, and that evil, or bad, is the deviation from what is natural."

For most of human history, the prevailing view was different. Our intrinsic nature was something to be overcome, restrained and civilized. But Rousseau's view, famously, was that society corrupted man's pristine nature. This is not only wrong, Dr. Dalrymple argues, but it has had profound and baleful effects on society and our attitude toward crime and punishment. For one thing, it has alienated us from responsibility for our own actions. For another, it has reduced our willingness to hold others responsible for theirs.

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Delaware Executes Ax Murderer:  Jessica Gresko of the AP reports Delaware today carried out its first execution since 2005, putting to death convicted ax murderer Robert Jackson III shortly after midnight (see also yesterday's post).  Jackson maintained his innocence to the end, saying during his final words that his accomplice in the crime is "laughing his ass off right now because you're about to watch an innocent man die.  This isn't justice."  The U.S. Supreme Court and Delaware Governor Jack Markell both denied last minute requests to stay the execution.

Supreme Court Lets Florida Stay of Execution Stand:  The U.S. Supreme Court today refused to lift a stay of execution ordered by the Florida Supreme Court for Manuel Valle, who was originally scheduled for execution by lethal injection next Tuesday.  The Florida Supreme Court ordered a hearing on the state's switch to pentobarbital.  The hearing began yesterday and will continue next week.  Valle was sentenced to death for murdering a police officer 33 years ago.  The AP has this story.

No Pink Underwear for Edmonton Oilers Goalie:  Conal Pierse of The Vancouver Sun reports Nikolai Khabibulin will be enjoying some fun in the sun during his stay at Sheriff Joe Arpaio's tent city, after an Arizona judge ordered the sheriff to take it easy on the Edmonton Oilers goalie.  Khabibulan was sentenced to 15 days in jail for a drunk driving offense, but was made eligible for work release.  Despite Arpaio's assurances to the contrary, Khabibulin will not receive the same treatment as the other inmates: as long as he abides by the tent city's rules, he will not be forced to wear a black and white striped jumpsuit or pink underwear (the jail's standard uniform) and he will be free to spend his days as he chooses.

Motion to Suppress the Crocodile

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The Connecticut Supreme Court ruled this week that a police officer unlawfully entered a Connecticut man's home while searching for a missing teenager and that the trial court should have granted the defendant's motion to suppress the subsequently discovered evidence, to wit, a large crocodile:

[The officer] testified that based on the facts as he knew them to be, he believed that the missing [teenager] may be in danger inside the house.
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The officers searched the first floor of the house for [the missing teenager] and then proceeded upstairs.  At one point . . . [one of the officers] went into a bathroom on the second floor and noticed what appeared to be a dark figure though the bathtub shower door. ... He testified that he believed the dark figure was the missing [teenager].  In this regard, he testified as follows: I slid the door open to the tub.  To the greatest bit of relief, just a crocodile or a large lizard [was] in the tub. [The officer] estimated that the reptile was six or seven feet in length. 

The defendant was charged with illegal possession of a reptile and risk of injury to a child, but the state's high court ordered that the motion to dismiss be granted and all charges dismissed because the circumstances did not justify the officer's warrantless entry. 

Perhaps the most remarkable part of this story is the officers' reactions to discovering a large crocodile in the bathtub of a home in an affluent Greenwich, Connecticut neighborhood:

[The officer] closed the shower door, and he and . . . [another officer present] continued to search the rest of the residence for the [teenager]. ... The officers, have completed their search . . . exited the residence and left the reptile still in the bathtub where they found it.

AP story here.  Hat tip to How Appealing.

14 Weeks for Murder

Valeria Criscione and Oren Dorell report for USA Today on the controversy over the Anders Breivik case in Norway, where the defendant faces a maximum 21-year sentence for 76 murders.

That is about 14 weeks per life taken. 

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Rhode Island Refuses to Hand Over Murder Defendant: Laura Crimaldi of the AP reports the U.S. Court of Appeals for the First Circuit heard argument today regarding Rhode Island's refusal to turn over a murder defendant to federal authorities in an attempt to protect him from facing the death penalty. Jason W. Pleau was indicted in federal court last year for the September 2010 robbery and fatal shooting of a gas station clerk at a bank. If convicted, Pleau could face the death penalty. Rhode Island Governor Lincoln D. Chafee refused a request to turn over Pleau, citing the state's longtime opposition to the death penalty. Governor Chafee filed a request after the hearing seeking to join the case.

The Sex Offender Registration and Notification Act, Five Years Later: Emanuella Grinberg of CNN reports on the status of the Sex Offender Registration and Notification Act, signed by President George W. Bush five years ago this week. The law set forth national standards for monitoring sex offenders in U.S. communities. This week also marks the deadline for states, tribes, and U.S. territories to meet the act's requirements or face a 10% cut in federal justice assistance funding. Fourteen states have implemented SORNA, with many making last minute submissions. According to Linda Baldwin, director of the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, the biggest hurdles for most states are implementing technology and adjusting statutes.

Utah Law Enforcement Agencies Launch Anonymous Crime Tipping Program: PR Newswire reports more than 50 law enforcement agencies in Utah today have launched an anonymous crime tipping program that allows the public to send secure and anonymous tips to law enforcement through their web browser, text message, or smart phone. Rep. Greg Hughes says, "in this day of shrinking state budgets and downsizing of resources, it's important for law enforcement to find new ways to fight crime." The program, TipSoft, is already being used by more than 800 law enforcement agencies throughout the country.

Delaware Set to Have First Execution Since 2005:  Esteban Parra of The News Journal (DE) reports that Delaware death row inmate Robert W. Jackson III is set to be executed between midnight and 3 a.m. Friday.  Jackson was sentenced to death for killing 47-year-old Elizabeth Girardi with an ax during a robbery of her home in 1992.  Two different juries voted on a death sentence for Jackson.  Jackson's attorneys have continued to seek a stay of execution, challenging the use of the drug Pentobarbital that Delaware plans to use, along with new claims that he is innocent.  Adam Taylor of the News Journal has this update on the Third Circuit panel which will hear arguments on the claims via telephone at 5 p.m. in the Philadelphia Federal Courthouse.  

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Videotaped Execution to Lead to Similar Requests in Texas?:  Diane Jennings of The Dallas Morning News reports last week's videotaped execution of Georgia death row inmate Andrew DeYoung might inspire attorneys to make similar requests on behalf of capital inmates in Texas.  One proponent claims the videotaping will bring the death penalty "out of the shadows into the light of public opinion," but Jason Clark, public information officer for the Texas Department of Criminal Justice, disputes that the Texas capital system is secretive, saying it already allows for witnesses and the media to be present.    

DC Murder Rate Falls as Temperatures Rise:  Scott McCabe of The Washington Examiner reports that since Memorial Day two months ago, the number of killings in Washington, D.C. has dropped by 44 percent compared to the previous year.  Before the holiday, homicides were up 16 percent.  Ellen G. Cohn, a professor at Florida International University who has studied the connections between weather and crime for decades, says the drop in murders may have something to do with the recent record-breaking heat wave.  "People say, 'it's too hot to kill, or I don't have the energy to kill.  It becomes more important to find a drink than exact revenge."  Cohn says that violent crime tends to rise with hotter temperatures, but only to a certain point.  "It may have reached the point that it's so blasted hot outside that violent offenders, like everybody else, are staying inside."  D.C. Police Chief Cathy Lanier disagrees, claiming the credit belongs to the proactive work of the Metropolitan Police Department.

"'Til Death (or Conviction) Do Us Part":  An August date has been set for the wedding of a Sacramento woman to Curtis Allgier, a Utah inmate charged with murdering a Utah corrections officer in 2007, reports Kylie Conway of ABC4.com Salt Lake City.  Erica Herrera, who says her half-Hawaiian-half Hispanic ethnicity refutes the claim that Allgier is a white supremacist, believes Allgier is innocent.  She admits, however, that if he is convicted, she will seek a divorce or annulment. 
Maura Dolan, Maria LaGanga, and Jessica Garrison of the LA Times have this story on the Liu nomination.  A quote in the story confirms what I have long suspected about those who make the seemingly indefensible argument that Liu is "mainstream" while Alito is not.

UC Berkeley Law School Dean Christopher Edley said Liu is "non-ideological, slightly left of the center for judges. Among law professors, he is quite centrist."

Edley said Liu would not change the balance on the court, but "I think it will be very interesting to add Goodwin's style to the mix, his ability to be both pragmatic and cerebral."

Does Edley not know that he lives in Bizarro World?  Given that the median law professor is two standard deviations to the left of the median American, a person who is "quite centrist" among law professors is quite leftist when measured by the correct benchmark -- the American median.

"Slightly to the left of center for judges" is nonsense unless Edley's frame of reference is the judges of the Ninth Circuit and the U.S. District Court for the Northern District of California.

Jesse McKinley has this story in the NYT.

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New iPhone App Fights Back: The San Francisco Chronicle has this article from PRWeb about Thugs Mug, the first safety protection app for the iPhone and iPad 2. When activated the app sends photos to the user's safety contacts along with the GPS coordinates of where the crime is occurring while simultaneously calling 911. The goal of the app is to capture evidence and deter criminals.

No Pensions for Pedophiles: Catherine Lucey and Michael Hinkelman of the Philadelphia Daily News report Pennsylvania state Reps. Brendan Boyle (D) and Kevin Boyle (D) are working on a bill that would disqualify state and municipal workers from getting a public pension if they have been convicted of a sex crime against a minor. Under the state's current pension law, forfeiture rules could cover crimes committed while on duty, but sex crimes committed on employee's own time don't disqualify them. No official action can be taken until September when the state House is back in session.

First Death Row Hearing Under Racial Justice Act: Paul Woolverton and Gregory Phillips of The Fayetteville Observer (NC) report Marcus Reymond Robinson will be the first North Carolina death row inmate to argue to a judge that his sentence should be converted to life without parole under the Racial Justice Act. Robinson was convicted for the 1991 robbery and murder of a 17-year-old boy. Robinson was set to be executed in January 2007, but all executions in the state were postponed indefinitely while the courts sorted out other controversies regarding North Carolina's execution procedures. The Racial Justice Act of 2009 says that death row inmates can seek to have their sentenced converted to life without parole if they have evidence that their sentence was racially motivated. 151 of the 158 inmates on North Carolina's death row are pursuing claims under the Racial Justice Act. Robinson's hearing is scheduled for September 6.

Florida Attorney Asks Supreme Court Justice to Lift Stay of Execution: Bill Kaczor of the AP reports the Florida Supreme Court on Monday ordered a month-long stay of execution for Manuel Valle to allow a trial judge to conduct a fact-finding hearing on whether Valle would feel pain from a new drug Florida plans to use for lethal injection.  Florida Attorney General Pam Bondi filed a request to ask U.S. Supreme Court Justice Clarence Thomas to lift the stay. Valle was sentence to death for killing a Coral Gables police officer and was originally scheduled to be executed on August 2.

Lockerbie Bomber Makes an Appearance at a TV Rally: BBC News reports that Lockerbie bomber Abdelbaset al-Megrahi made a televised appearance at a rally of members of Megrahi's tribe broadcast live from Tripoli.  Megrahi was released in August 2009 on compassionate grounds because he suffered from prostate cancer and was thought to have only three months to live.  A presenter at the rally introduced Megrahi and announced that "half of the world conspired against" Megrahi.

The Real Impact of the Norway Massacre


...is that the California referendum to end the death penalty will be stillborn.   I assume the legislature will put it on the ballot, sure.  But it will be, for abolitionism, a mistake if not a disaster.

The inescapable and terminal flaw in the abolitionist argument is its absolutism:  No death penalty, not ever, don't bother me with the grisly facts of the murder or the dozens of murders, never, never, never.

Absolutist positions don't sell with the public, and this one won't either.  This would be true even if public opinion were in equipose, which it isn't.  The public favors the death penalty by better than two-to-one, and by close to three-to-one in California, if the typically reliable Field Poll is to be believed.

Like most zealots who become deaf to the real world by years of turning up the volume on their own True Believerism, California's abolitionists have become convinced that arguments they've been making, and losing, for years will win this time.  They can read the Field Poll as well as you can; they just refuse to believe it because they have the True Wisdom.

Fine.  More power to their invincibility.  But the gruesome events in Norway a few days ago, like the McVeigh massacre and the Petit family atrocity, leave the referendum backers with a question they can't answer:  "Do you mean that even if we have a Norway massacre in Los Angeles  --  a cold-blooded, remorseless killer of children in a case where no sane  person could question the defendant's guilt  --  we still can't have the death penalty?"

When the referendum's backers have to admit that the people will be denied the only penalty a normal person would view as justice, the results of the referendum will give them what they earned.

As President Bush said, bring it on.


The Second Time as Farce

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"Hegel remarks somewhere that all facts and personages of great importance in world history occur, as it were, twice. He forgot to add: the first time as tragedy, the second as farce." -- Karl Marx

Hands down, the worst mistake of Jerry Brown's first round as Governor of California was his disastrous appointment of the vehemently anti-death-penalty, pro-criminal Chief Justice Rose Bird.  It was a tragedy because there were enough Justices on the California Supreme Court at that time with similar inclinations to wreak havoc in criminal law.

President Obama's nomination of Goodwin Liu to the Ninth Circuit was correctly blocked by Senate Republicans.  As I have noted many times on this blog, Liu fails his own test.  His views are too far out of the mainstream (further by far than Samuel Alito's), provided that one measures "mainstream" by the obvious benchmark of the median voter.  Liu's deplorable attack on Justice Alito on the death penalty tells us all we need to know about his views on the subject.

Campaigning first for Attorney General and then for Governor, Brown repeatedly assured the voters he had learned his lesson.  He cited President Eisenhower and Governor Reagan for judicial appointments they came to deeply regret.  For my own part, I was deeply skeptical that he had really learned.

I was right.  Today Brown announced the appointment of Goodwin Liu to the California Supreme Court.  There is no chance of blocking this nomination, given that two of the three members of the Commission on Judicial Appointments are kindred spirits.

I hope this is farce rather than tragedy.  The California Supreme Court has six other Justices.  The Chief Justice, appointed by the Governator on his way out the door, is a person of sense, is relatively young, and will likely be there a long time.  For the time being, Liu's votes to erroneously reverse proper criminal judgments will be mostly dissents and frequently solo.  Let us hope that the other five associate justices hang in there and Brown gets no more appointments.
The Massachusetts Supreme Judicial Court has held that the rule on confrontation and lab reports established in Melendez-Diaz v. Massachusetts is not retroactive on collateral review in the case of Commonwealth v. Melendez-Diaz, SJC-10857.

Huh?  How can that be?  The court explains in footnote 2:

The defendant in this case is the same person who was the defendant in the Melendez-Diaz case. The conviction that led to the Supreme Court decision arose from events that took place in Suffolk County on November 15, 2001. See Commonwealth v. Melendez-Diaz, 69 Mass.App.Ct. 1114 (2007), rev'd, 129 S.Ct. 2527 (2009). The conviction in this case arose from events that took place in Plymouth County on February 20, 2004.
I can't link directly to the opinion due to Massachusetts's quirky system for posting opinions.  You can access it through this site.
Professor Scott Howe of Chapman University School of Law has this article on SSRN on the California death penalty expense debate.  Unlike some other recent, much-publicized writings on the subject, Howe actually read and thought about the arguments of proponents as well as opponents.

I disagree with Howe's conclusions that reform efforts are hopeless and that abolition is the lesser evil, and I will have more to say on that later.  For now, he deserves credit for at least taking a balanced look.  Thanks to Doug Berman for the tip.

Creepy Coincidence

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On the SF Chron website is a collection of photos of musicians who died at the age of 27, including Jimi Hendrix, Janis Joplin, Jim Morrison, Kurt Cobain, and Amy Winehouse.

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Ohio Serial Killer's Case Teaches Lessons:  Laura Strickler of CBS News reports that the case against Ohio serial killer Anthony Sowell, convicted last week of killing 11 women and hiding their bodies in his house, brought to light critical shortcomings in the collection and tracking of DNA samples by several law enforcement agencies.  Local police departments missed opportunities to test rape kits from victims claiming to have been attacked by Sowell, and even if these tests had been completed, a DNA sample collected from Sowell during a 1997 prison stint was never entered into the state's database.  Sowell's case has prompted local agencies to make rape kit testing a priority, and State Attorney General Mike Dewine is considering standardization of such testing across the state. 

California Governor to Decide on Informant Bill:  Bob Egelko of the San Francisco Chronicle reports California Governor Jerry Brown must decide by the end of the month whether to sign a bill that would ban California juries from convicting defendants based solely on jailhouse informant testimony.  State law already requires the judge to tell jurors to consider such testimony with caution and the prosecutor to disclose any promises of leniency to the informant, but Senator Mark Leno and defense lawyers claim jailhouse informant testimony is unreliable and ripe for exploitation by convicts seeking a reduced sentence.  The bill is opposed by the statewide prosecutors' association, with the exception of the San Francisco and Los Angeles district attorneys, who support it. 

Italian Mobster Inmates Banned from Wearing Designer Clothes:  Rita Barbera, the newly-appointed prison governor of a Sicilian prison, has banned inmates from wearing designer labels and flashy jewelry, reports Nick Squires in The Telegraph (UK).  Italian inmates are not required to wear uniforms, which has allowed the wealthier inmates to sport Louis Vuitton, Gucci, and Armani fashion.  Barbera says this "godfathers" image has to stop.  Some inmates and their families do not agree: "Why should the authorities be allowed to dictate what my husband wears?" one woman asked an Italian newspaper. 

DNA Sampling of Arrestees

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Mandatory DNA sampling of people convicted of felonies to build the database has become pretty routine.  In 42 U.S.C. §14135a(a)(1)(A), Congress authorized collection "from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States."  Well, that's pretty broad.

Does that violate the Fourth Amendment?  USCA3 en banc said no 8-6.  Decision here.  Here are posts at How Appealing and Volokh Conspiracy.

Crime Statistics and Unions

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One of the big problems of doing research with people (unlike, say, electrons) is that you cannot neatly control all the variables that might affect your result.  In crime research, the outcome variable is usually the official crime statistics.  The input variables we want to study are usually such things as sentencing policy, number of police on the beat, economic factors, and things like that.  When something else alters the official crime number, unknown to the researcher, that can really mess things up.

From the June issue of Police Quarterly is a study on an "error term" that would never have occurred to me:

This article examines the effect that collective bargaining had on official crime statistics compiled between 1998 and 2009 in Montreal, Canada. Police officers collectively decided to reduce their use of record-discretion on two occasions, to increase administrative workload and pressure their employers. Considerable increases of recorded assaults and mischief were observed, despite no apparent variation of reported infractions measured by calls for service. Recorded and reported car thefts and burglaries displayed no significant variation. Results suggest that observed variations can be explained in terms of temporary differential treatment of specific incidents rather than increases of reported criminality or proactive police activity. This research challenges the reliability of official statistics as measures of crime and demonstrates that external circumstances can influence police recording practices.

Fair and Balanced

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Yesterday, there appeared in the press a fair and balanced view of videotaping and broadcasting executions.  The issue is current because of last week's videotaped execution of Andrew DeYoung for the murder of his parents and 14 year-old sister.  Another death row inmate successfully sought the videotaping for use as evidence for his claim that the drug mix used in Georgia poses too much risk of pain to be acceptable under Baze.

Fair and balanced reporting is the slogan, and often, in my view, the reality of Fox News.  Much of the rest of the mainstream media takes positions more liberal than the electorate.  This is particularly true of the New York Times, which is, among other things, a relentless opponent of capital punishment.  I am thus pleased to report that yesterday's thoughtful piece was published in that self-same New York Times.

Media Assault on Justice Thomas

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Scott Douglas Gerber has this article in the National Law Journal (emphasis added):

The liberal media have published a flood of stories in recent months criticizing what they consider the ethical problems of conservative U.S. Supreme Court Justice Clarence Thomas....

The media would have the American people believe that we are in the midst of Thomas-gate: a series of ethical problems so sinister and serious that they make Thomas unfit to serve on the bench. In reality, however, we are simply witnessing the latest episode of the media's 20-year crusade against the nation's highest-ranking African-American jurist. Bluntly put, it is apparently an unforgivable sin in the eyes of the media for Thomas to be both black and conservative. It is difficult to forget, for example, that the Times famously editorialized that Thomas was "the youngest, cruelest justice" only four months into his first term on the Court and that the Times has also opined on several occasions, and without credible supporting evidence, that Thomas is not an impartial judge. 
Nothing could be further from the truth.
The author bio at the end of the article:

Scott Douglas Gerber is professor of law at Ohio Northern University Pettit College of Law and senior research scholar in law and politics at the Social Philosophy and Policy Center. His eight books include First Principles: The Jurisprudence of Clarence Thomas (New York University Press 1999; expanded ed. 2002)....

For two examples of misleading coverage of Justice Thomas, see posts here and here.

21 Years for an Atrocity?

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That's what the Daily Mail is reporting is the maximum prison sentence that can be imposed on Behring Breivik, the man accused of the horrific events in Norway this past weekend:

Norway's mass killer faces a maximum jail term of just 21 years. Astonishingly, that is the longest sentence available to judges in Norway's benevolent justice system.  In England and Wales, repeat killers can be told they will die behind bars with a 'whole life' tariff, and killers who use a knife or gun face minimum terms of 25 and 30 years.  But in Norway, few killers serve more than 14 years.  Even those given the maximum term can be released after two-thirds of their sentence, and many are given unsupervised weekend parole after just one third.

Bryon Johnson of Baylor University has this op-ed in the Houston Chronicle titled "The factor of faith in crime reduction."  Johnson is the author of "More God, Less Crime: Why Faith Matters and How it Could Matter More" (2011).

Put simply, increasing religiosity tends to be associated with decreasing crime. The weight of this evidence is especially intriguing in light of the fact that religion continues to be overlooked by so many. For example, one will look in vain to find any references at all to religion in criminology and criminal justice textbooks.

Texas Forensic Science Commission

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Brandi Grissom of the Texas Tribune has this article, also in the NYT, on Dr. Nizam Peerwani, who will now chair the Texas Forensic Science Commission.

Dr. Peerwani said he agreed with experts who testified before the board that the arson science used to convict Mr. Willingham was seriously flawed. But when asked whether Mr. Willingham was guilty or innocent, he was less definitive.

"There were other issues," Dr. Peerwani said of what led to Mr. Willingham's conviction. "There were eyewitness accounts; there were hospital and doctor testimony given and investigative findings."

The latter point is a good one to see in the NYT, even buried far down the story.  A finding that the forensic evidence originally claimed to show arson was "flawed" is not the same thing as a finding that the forensic evidence disproves arson, as Willingham's advocates so often claim.  If the forensic evidence tells us little or nothing either way, then we look to the other evidence cited by Dr. Peerwani, which continues to show guilt.

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Ohio Serial Killer Convicted of Aggravated Murder:  The Plain Dealer (OH) staff reports a Cuyahoga County, Ohio jury convicted Anthony Sowell today of multiple counts of aggravated murder and related offenses for the slayings of 11 women whose bodies were discovered in his home.  The same jury will now decide whether to impose a life or death sentence. 

Illinois Sex Offenders Will Lose Medical Licenses:  Illinois Governor Pat Quinn yesterday signed into law a measure that will permanently strip the medical licenses of doctors and other health care workers who have been convicted of sex crimes, forcible felonies, or battery of a patient.  A spokesperson for Quinn said the governor acted in response to a Chicago Tribune investigation finding that doctors with criminal histories often faced little or no punishment from state regulators.  The law is set to take effect in 30 days.  Megan Twohey of the Chicago Tribune has this story

Sloppy Finances in California Prison System: 
The Press-Enterprise has this op-ed about a recent audit indicating careless financial practices within the California Department of Corrections and Rehabilitation.  The audit says the department often failed to monitor reimbursement of workers' salary and travel advances and to reconcile bank accounts to verify the accuracy of its records.  The author of the article opines this type of financial mismanagement is especially troublesome at a time when the state is in a financial crisis, and that "[t]he sloppy fiscal oversight also erodes public confidence in a prison system already under court assault for crowded conditions, substandard medical care and assorted other ills."

"New life for death penalty":  The Daily Triplicate out of Crescent City, California has this editorial by Richard Weins that starts out, "It's possible to agree with someone's description of a problem and completely disagree with that person's solution."  While California's current capital punishment system is admittedly flawed, scrapping it altogether (as recent legislation has proposed) is not the only solution.  Weins's proposal: "Streamline the costly appeals process so that a condemned person gets one thorough review of the sentence. Make sure that review includes any DNA evidence that might indicate the jury erred. If the sentence stands up, carry out the execution immediately, no further appeals allowed."

USCA3 Lifts Delaware Stay

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AP reports:

A federal appeals court has vacated a judge's order halting the execution of a Delaware ax murderer who had been scheduled to die later this month.

The Third Circuit Court of Appeals vacated the stay of execution Thursday, saying U.S. District Court Judge Sue Robinson in Wilmington failed to explain why she put the execution of Robert Jackson III on hold, as federal court rules require.

Robinson issued her order last week after Jackson's attorneys asked her to reopen a lawsuit he filed several years ago challenging Delaware's lethal injection system because the state now wants to use a new drug.

Jackson's federal public defender said he does not believe the appeals court ruling will interfere with a hearing Robinson scheduled for Wednesday on their request to reopen the lawsuit.

Court records show that in 1992, 47-year-old Elizabeth Girardi was killed after encountering Jackson and accomplice Anthony Lachette as they left her Hockessin home with property they had stolen and planned to pawn to buy drugs.

Text of the order, by Judge Rendell, follows the jump:

Sometimes It's Just Too Much

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Hat tip to reader notablogger for sending in this story about a defense lawyer who decided that all the stuff about being a champion for the downtrodden did not stack up against the dictates of a father's conscience.

The story is from MSNBC:  "Attorney for accused killer of Brooklyn boy quits"

Saying his conscience prevented him from continuing, an attorney for the accused murderer of 8-year-old Brooklyn boy Leiby Kletzky has quit the case, a newspaper reported Friday.

Gerard Marone, who was one of two lawyers defending Levi Aron, told The New York Daily News that he stepped down because of "the horrific way this boy was killed."

"I have three little boys," Marone told the paper.

"You can't look at your kids and then look at yourself in the mirror, knowing that a little boy, who's close in age to my eldest son, was murdered so brutally," the Daily News quoted him as saying.

The story goes on to say that Mr. Aron claims to have been hearing voices.  If the state of New York were sensible enough to have the death penalty, he would at some point be hearing one more voice  --  the one that says, "Do you have any last words?"

Yes, I understand.  Anyone who would dismember an eight year-old boy whose only crime was to ask for directions is, in some sense, out of his mind.  But the idea that he didn't know his ghastly actions were wrong is preposterous.  One way or the other, the notion that Mr. Aron should remain among us, confined or otherwise, is impossible to reconcile with the fundamentals of civilized life. 

Gitmo, not New York

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Senators Joseph Lieberman and Kelly Ayotte have this op-ed in the WaPo:

The United States has a first-rate, professionally run facility at Guantanamo Bay, Cuba, that is designed for terrorist detentions, interrogations and military trials. So why would a suspected Somali terrorist, captured half a world away, be held on a Navy ship for two months of interrogations and then brought to a New York federal court for trial? In our opinion, there is no good reason.

Videotaped Execution Carried Out


The Atlanta Journal Constitution reports:

A Georgia man convicted of killing his parents and sister has been executed after the courts allowed what was likely the nation's first video-recorded execution in almost two decades.

Andrew DeYoung was put to death by lethal injection Thursday night at the state prison in Jackson after courts turned down his appeals.

The 37-year-old was pronounced dead at 8:04 p.m. DeYoung blinked his eyes and swallowed for about two minutes, then his eyes closed and he became still.

DeYoung murdered his parents and 14 year-old sister in order to gets his hands on the estate and insurance proceeds.

Over at Sentencing Law & Policy, the debate has been raging all day about whether the videotaping is a good thing.  Personally  --  and putting privacy concerns to one side  --  I have no great objection to it so long as we make sure that, if and when the videotape is played publicly, it's accompanied by a montage of equal length of photographs of the murder scene, including the victims' corpses, plus photographs of their autopsies.

If we're going to be taking a look at the result, we had best take an equally graphic look at the cause.

But for however that may be, tonight's execution did not live up to abolitionists' hopes.  The idea was to show the condemned thrashing about in pain.  From the news account, neither that nor anything similar happened.  This, of course, is all to the good, and not primarily because the abolitionist strategy was thwarted.  DeYoung earned his execution, but he was still a human being.

News Scan

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Judge Stands by Order to Videotape Georgia Execution:  Bill Rankin of The Atlanta Journal-Constitution reports Superior Court Judge Bensonetta Tipton Lane upheld her order to allow the videotaping of tonight's execution of Georgia death row inmate Andrew DeYoung.  Judge Lane ordered that the execution be taped after hearing claims that the state's lethal injection process caused unnecessary pain.  The state Attorney General sought to block the videotaping, arguing that the order may conflict with state law and interfere with security.  DeYoung was sentenced to death for the 1993 stabbing deaths of his parents and 14-year-old sister.  If carried out, the taping of DeYoung's execution will be the first such recording in almost two decades. 

California County Agrees to Minimize Collaboration with Feds:  The Sonoma County Sheriff's Office reached a settlement in a 2008 lawsuit accusing its officers of unlawfully detaining illegal immigrations, reports Brett Wilkison of The Press Democrat (CA).  As part of the settlement, the sheriff's office agreed to minimize collaboration with federal operations and programs that target law-abiding illegal immigrants, promising that before any local-federal cooperation takes place, federal authorities must agree not to arrest illegal immigrants solely for civil immigration or minor traffic violations.  The sheriff's office also agreed to consider accepting identification cards from the Mexican consulate as a way to avoid arrests for lack of a valid ID.

Prison Resumes Forcible Medication of Tuscon Shooter, Attorneys Say: Attorneys for accused Tuscon shooter Jared Loughner say prison officials have resumed forcibly medicating their client on an emergency basis, reports the AP.  In filings submitted to the Ninth Circuit today, Loughner's attorneys say this violates an earlier order by that court to halt forced medication pending the outcome of his appeal on the issue.
Cynthia Hubert and Sam Stanton have this article in the Sacramento Bee about interviewing the children in a case where a private elementary school principal is accused of molestation.  The infamous McMartin Preschool case of the 1980s remains the exemplar of how not to do it.

News Scan

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Protest in San Francisco Over Fatal Police Shooting:  The AP reports 35 people were arrested after a march through San Francisco protesting the police shooting of 19-year-old parolee Kenneth Harding over the weekend.  Harding was on parole for promoting prostitution in Washington state and was a person of interest in a fatal shooting in Seattle last week.  The march occurred on the same day investigators said tests indicated that Harding had fired the first shot at police, prompting the police to fire back.

Arizona Allowed to Build Border Fence from Private Donations:  A law effective today will allow Arizona to build a fence along its border with Mexico as long as it can raise enough private donations and receives permission from private landowners to use their property.  Much of the Arizona border is on federal land or Indian reservations, and Sen. Steve Smith (R), who sponsored the bill, says the easiest path would be for the federal government to grant the state an easement along the border.  Smith hopes to raise at least $50 million from donors across the nation, stressing that the country's security "is an American problem, not an Arizona problem."  Alia Beard Rua has this story in The Arizona Republic.

Oregon Court Denies Request to Reinstate Death Row Inmate's Attorneys: The Oregon Supreme Court on Monday denied a request by the former lawyers of Oregon death row inmate Gary Haugen to be reinstated, reports Helen Jung of The Oregonian.  Haugen, who is on death row for murdering a fellow inmate in 2003, has asked to waive his appeals and be executed.  A county judge last week granted Haugen's request to replace his attorneys after finding that their attorney-client relationship had been "irretrievably broken."  Though Haugen's former attorneys said they would not make any more filings in the case, they later submitted a request to be reinstated.  Haugen will now be represented by a public defender and will undergo a full competency hearing before a final execution date is set.

28-Year Inmate on Alabama's Death Row Files Another Appeal:  M.J. Ellington of the Times Daily reports attorneys for Alabama death row inmate Tommy Douglas Arthur filed a petition last week asking the U.S. Supreme Court to overturn an Alabama court's denial of a new trial.  Arthur was sent to death row in 1983 for the murder of businessman Troy Wicker, committed while Arthur was on work release for a previous homicide.  Arthur has been scheduled for execution three times, but all dates have been delayed due to appeals.  Alabama Assistant Attorney General Clay Crenshaw filed a petition with the state supreme court to proceed with the execution, arguing that waiting for a decision from the U.S. Supreme Court would add a significant and unnecessary delay.

Death Toll for Police Officers on the Rise:  A report by the National Law Enforcement Officers Memorial Fund finds that law enforcement fatalities rose sharply during the first half of 2011 (press release here).  40 officers were killed by gunfire, the highest number in two decades.  Firearms-related fatalities have even outpaced traffic-related fatalities, which have been the leading cause of officer deaths for 13 years in a row.  Douglas Stanglin of USA Today has this story

Texas Execution and Shari'a Law

The Texas Court of Criminal Appeals is probably not the ideal venue for an appeal to Shari'a law.  Yet in this petition on behalf of double-murderer (and would-be triple murderer) Mark Stroman,* counsel notes on page 8, "It is perhaps ironic, given the 9/11 spark that precipitated these tragedies, that Islamic (or Shari'a) law would not permit executions under these circumstances."

Stroman went hunting for "people of Middle East descent in the days after the Sept. 11 terrorist attacks," Michael Graczyk reports for AP.  He shot three people, two of whom died.  The one he is set to be executed for killing was not from the Middle East and apparently not a Muslim:

Restoring the Great Charter

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Brett Zongker reports for AP:

A painstaking conservation effort to remove old patches and repair weak spots in a 714-year-old copy of the Magna Carta has revealed that the full text of that English declaration of human rights remains intact even though some words are faded and illegible to the eye, the National Archives said Tuesday.

California Goes Nuts


The great state of California is all but bankrupt.  There's no money to be found.  It's been ordered to release over 30,000 prisoners because the funding is not there to keep them in what a (slim) Supreme Court majority views as constitutionally adequate conditions.  The state legislature seems poised to order a referendum to abolish the death penalty, based principally on the argument that, deserved or not, it's just too expensive.

The state education system has not been spared. UC San Diego will no longer offer a master's degree in electrical and computer engineering; it also eliminated a master's program in comparative literature and courses in French, German, Spanish, and English literature.

Still, while the State's foremost obligation  --  the physical safety of its citizens  --  and long-honored fundamentals of its university system take a hit, some things escape.  As Heather MacDonald reports, the "diversity" leviathon is going great guns:

Not only have diversity sinecures been protected from budget cuts, their numbers are actually growing. The University of California at San Diego, for example, is creating a new full-time "vice chancellor for equity, diversity, and inclusion." This position would augment UC San Diego's already massive diversity apparatus, which includes the Chancellor's Diversity Office, the associate vice chancellor for faculty equity, the assistant vice chancellor for diversity, the faculty equity advisors, the graduate diversity coordinators, the staff diversity liaison, the undergraduate student diversity liaison, the graduate student diversity liaison, the chief diversity officer, the director of development for diversity initiatives, the Office of Academic Diversity and Equal Opportunity, the Committee on Gender Identity and Sexual Orientation Issues, the Committee on the Status of Women, the Campus Council on Climate, Culture and Inclusion, the Diversity Council, and the directors of the Cross-Cultural Center, the Lesbian Gay Bisexual Transgender Resource Center, and the Women's Center.

Translation:  While the already bloated culture of victimization gets a geyser of funding to take over the state's universities, the number of actual victims  --  of recidivist crime, that is  --  is headed for a big increase, because there's no money left to see to their safety.

Attack Chihuahua

What this dog lacks in size he makes up in feistiness.  The LA Sheriff uploaded this video of an armed robbery of a smoke shop in Altadena.  The diminutive canine chases off the robbers.  One robber points a gun at the dog, but apparently the small, fast-moving target is too difficult for him.  The sheriff asks for tips regarding the suspects.

News Scan

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Wisconsin Governor Repeals Early Release Program: The Associated Press reports Wisconsin Governor Scott Walker has signed a bill that will end an early release program put in place two years ago. The program, proposed by former Wisconsin Governor Jim Doyle, allowed well-behaved inmates to move onto extended supervision sooner. About 500 inmates have been released through the program between October 2009 and March 2011.

Illegal Re-Entry Top Federal Crime: Poder 360 has this report about a study by the Transactional Records Access Clearinghouse of Syracuse University which indicates the most common federal charge in the U.S. involves illegal immigration. Justice Department data shows during the first half of Fiscal Year 2011, prosecution for the crime of illegal re-entry into the U.S. made up almost one quarter of all federal prosecutions and almost half of all immigration prosecutions. Illegal entry is the second most common immigration crime.

Facebook to the Rescue: Terra Sullivan of KXAN (TX) reports that Renny Harvard, 32, is facing second-degree felony charges of robbery by assault after he was identified by his alleged victim on Facebook.  Harvard met the victim at a low income housing organization while she was counting money from a recent fundraiser.  Pretending that he was deaf, he wrote a note asking the woman for water.  When she returned from retrieving the water she saw Harvard grab some money and her car keys.  The two struggled but Harvard managed to escape.  The woman did provided the police with the description of Harvard, who had a unique arm sleeve tattoo.  After later seeing Harvard's picture on Crime Stoppers advertisement she discovered he had a Facebook page with several photos of him.  After she notified the police Harvard was arrested.
The US Supreme Court argument calendar for October, the beginning of the new term, is now available.  The criminal and related cases are:

Monday, October 3Reynolds v. United States, standing to challenge rules under the Sex Offender Registration and Notification Act (SORNA).

Tuesday, October 4:  Three habeas cases:

Maples v. Thomas:  Ineffective assistance of counsel on state collateral review as cause for a procedural default.

Martinez v. Ryan: Similar to Maples.  Also whether the constitutional right to counsel extends to the first collateral review.

Howes v. Fields:  When a prisoner incarcerated for another crime is "in custody" for the purpose of Miranda.

Tuesday, October 11Greene v. Fisher:  As of what time does a federal court ask whether the law was "clearly established" as contrary to a state court decision for the purpose of federal habeas review.

Wednesday, October 12Florence v. Board of Chosen Freeholders:  Strip searches in jail.

Arizona Execution

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The long overdue execution of Thomas Paul West in Arizona is scheduled for tomorrow.  A panel of the Ninth Circuit today denied leave to file a successive petition.  This is the same panel (Judge O'Scannlain, Wardlaw, and Callahan) who affirmed denial of West's first habeas petition a year ago.

West is also litigating Arizona's abrupt switch from thiopental to pentobarbital.  His US Supreme Court petition for certiorari to review the state court's rejection of that claim is here.  The docket on his stay application is here.  AP has this story on the Arizona Supreme Court's rejection of that claim.

Update (7/19 @ 07:30 PDT):  KVOA Tucson has this story on the reaction of the family of Donald Bortle, who was beaten, bound, robbed, and left to die by West 24 years ago.

Update 2 (7/19 @ 10:40):  US Supreme Court orders denying a stay are here and here.  No dissent is noted.

Update 3:  Mission accomplished.  Catherine Holland has this story at azfamily.com.

Reversing USCA9

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Carol Williams has this story in the LAT on the Ninth Circuit's numerous reversals by the US Supreme Court.

It was another bruising year for the liberal judges of the U.S. 9th Circuit Court of Appeals as the Supreme Court overturned the majority of their decisions, at times sharply criticizing their legal reasoning.

NYT Editorials and Facts

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Benjamin Wittes has this post at Lawfare, a national security blog:

I am not sure how I stumbled into the role of unpaid fact-checker for the New York Times editorial page on matters of law and security. But as long as the Times keeps publishing editorials like this one, there needs to be some correction mechanism somewhere. And since the Times itself insists both on making serial factual errors and on not ever correcting any of them, the sad burden seems to fall on me. The Times, of course, has policies about correcting factual errors-not to mention presumably about not publishing facts its writers know to be false. But the editorial page on detention matters, as I have documented in the past, has not been scrupulous about observing those policies. So until the page begins correcting its own errors, Lawfare will have to serve as the correction column it should run-at least on the issues of concern to Lawfare readers. I will not, at least not in this post, argue with any of the Times's opinions-just with factual questions that seem to me beyond reasonable argumentation.
Keep up the good work, Ben, but be aware you are not alone.  See, e.g., this post on the NYT editorial page's loose association with the truth.

Eric (Heart) Crack Dealers


In the Friday afternoon news dump  --  undertaken to insure minimal press coverage and public attention  --  Attorney General Eric Holder reversed a largely successful DOJ policy that had resisted retroactive application of the so-called Fair Sentencing Act.  The majority of courts of appeals to have addressed the issue have held, consistently with the general Savings Statute, 1 U.S.C. § 109, that the FSA does not have retroactive application, since there is no express provision for it, as the Savings Statute unambiguously requires.  (In fairness, an almost equal number of appellate courts have held the opposite).

For those unfamiliar with it, the "Fair Sentencing Act," in my view more aptly called the Crack Dealers' Relief Act, prospectively reduces crack cocaine sentences to make them more nearly equal to the sentences imposed for powder cocaine.  I have no strong objection in principle to the aims of the Act, but the accompanying oozing rhetoric, wonderfully parroted in Mr. Holder's memo, is a bit hard to take for those familiar with the actual and considerable dangers of crack.

As an aside, I would note that Holder's cave-in on retroactive application is not the end of the matter that he might believe it to be.  Unlike what Holder apparently thinks, DOJ does not decide the law.  Courts do.  DOJ can surrender, but those courts having held as correct the Department's former position are hardly bound to change their interpretation of the law.  They can and probably will appoint amicus counsel should the issue be contested in the future, as it is likely to be.  This is also true in the event the issue reaches the Supreme Court, mimicking what SCOTUS did when the Reno Justice Department bailed out on 18 U.S.C. § 3501 in the Dickerson case.

But that's not the real news here. 

David Ingram has this post at BLT on an article in the current issue of Judicature (subscription) on the White House's judicial selection shop.

Among the topics covered in the article is the relationship between the White House Counsel's Office and outside interest groups interested in judicial nominations. The article quotes one advocate who says that, after the November elections, when Democrats lost control of the House and nearly the Senate, the administration began screening e-mails in an attempt to "clamp down" on communication.
That might be a good thing.  Given that the disastrous choice of Goodwin Liu preceded the 2010 election, whatever they were doing back then wasn't working.  Quite possibly they were listening too much to interest groups.

Time to Re-Visit Kennedy v. Louisiana?

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Hat tip to Doug Berman at Sentencing Law & Policy for noting this Washington Post column by Charles Lane, a WaPo editorial writer who previously had the Post's Supreme Court beat.

Lane wonders whether the Court would do well to reconsider Its opinion in Kennedy v. Louisiana in the aftermath of the publicaiton of Jaycee Dugard's story of her 18 year-long sexual torture and rape, starting at age 11.  Readers will remember that, in Kennedy, a bare majority concluded that the death penalty could not be imposed for child rape, no matter how aggravated.

As Mr. Lane notes:

Kennedy's bottom line was that the death penalty is simply too "harsh" for a non-lethal crime: "We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim."

This sweeping ipse dixit was barely plausible in Kennedy v. Louisiana, which involved a single violent rape of an 8-year-old; it's more dubious with respect to a case like Dugard's.

As Justice Samuel A. Alito wrote in a dissenting opinion that now reads like prophecy, Kennedy's ban applies "no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be."

There is much to say about the majority opinion in Kennedy, none of it good.  The main thing I would note for now is that the majority's discernment of a national consensus against the death penalty for child rape was astounding in its disingenuity.  It is also, and not coincidentally, false.

Lane's whole column is worth the read.


The Right-to-Counsel Term

The US Supreme Court's next term does not formally begin until October, but we can already see a major theme shaping up.  There are five cases on the right to counsel, and none of them directly involves counsel's representation in a criminal trial.

Copyright Monkey Business

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This is totally off-topic, but I just love it.  Over at VC, David Post ponders who owns the copyright to this remarkable self-portrait, snapped by an Indonesian macaque monkey after a nature photographer left his camera unguarded.  Post contends that his knowledge of copyright law and background in primate research uniquely qualify him to represent the monkey.

The original story in the Daily Mail is here.

Kent has noted that abolitionists in California are in full throat attempting to take down that  state's death penalty.  Their main arguments are that it costs too much and takes too long.  One recent piece setting out the case is by George Skelton in the LA Times.  Skelton relies largely on the recent Alarcon and Mitchell article on the death penalty, which Kent has previously deconstructed.

Skelton's attack is, in its way, clever.  He acknowledges that there are some killers who, when conclusively proved guilty, should be dispatched.  Indeed, he says that some should be "appropriately tortured first."  (He doesn't define what torture would be "appropriate," for which I'm grateful, being of the view that torture is barbaric).  But there's a problem, he says:

...the issue here is not about the merits of the death penalty. It's about inefficiencies and priorities. As we raise university tuitions out of sight, whack the poor and lay off cops, do we really want to be spending $308 million to snuff out one individual?

Am I the only one who thinks it's odd to maintain that, in considering whether to abolish the death penalty, we should shuffle off to the side "the merits of the death penalty"?

Hello!!!  If you want to lower the costs of X, you don't ignore the merits of X, and you don't just abolish it in a fit of frustration (however justified). You lower its costs. Under the theory advanced by Skelton, we should abolish imprisonment too, since, whatever its merits  --  which we'll take a pass on examining  --  it costs a bundle (much more than the death penalty), so out it goes.  Ditto with, say, Medicaid.  It might have its "merits," but we're going to walk past those to focus just on its massive and burgeoning costs.  Indeed, Medicaid expenses contribute vastly more to budgetary woes than the death penalty.  If the idea is to cut costs without worrying about the merits, that's the place to go.

Serious people understand that there is a good deal of low-hanging fruit out there to contain the expense and delay of California's death penalty.  I pick some of it after the break.  But Skelton is right about one thing:  California voters are very unlikely to abolish the death penalty unless they can be flumoxed into ignoring its merits.


Pondering Actual Innocence

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William Baude of Robbins, Russell has this article on SSRN on the actual innocence problem, with particular reference to the Troy Davis case.  His bottom line is that judges should not stretch existing procedures, thereby exceeding the limits of their legitimate authority.  Rather, legislatures should adjust the procedures to take better account of importance of actual innocence.

I have come to a similar conclusion in many years of litigating AEDPA.  AEPDA was a hammered-out compromise and therefore nobody's idea of an optimum solution.  It had many problems as a result.  The biggest deficiency, in my view, is that Congress cracked down too hard on the very few habeas petitioners with substantial claims of real "got the wrong guy" innocence and not hard enough on the much larger number who merely contest the sentencer's discretionary choice of sentence within the legal range for their crime.

From the 2006 election to the present, I have been content that Congress do nothing on habeas, given the grave danger that they would enact legislation moving in the wrong direction.  If the balance shifts a bit further in the next election in the same direction as the last, it may be safe to go in the water again.  We could make an actual innocence exception to the statute of limitations to match the one in the successive petition rule.  We could even make a substantive actual innocence ground of relief in capital cases.  In return, review of sentencing claims already decided by the state courts should be boosted from the present so-called "deference" standard to the Stone v. Powell rule used for Fourth Amendment claims.

Once more, with feeling, "actual innocence" in this context means "got the wrong guy."  It does not mean that the defense team dredges up a psychiatric prostitute who will swear the defendant couldn't have formed intent because he had consumed too much alcohol, sugar, or whatever.  See page 29 of CJLF's brief in Maples v. Thomas.

News Scan

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Man Accused of Sex Crimes Allowed to View Child Porn in Jail: Adam Lynn of The News Tribune (WA) reports on a man accused of sex crimes is being allowed to view child pornography while in a Washington jail awaiting trial. Weldon Marc Gilbert is acting as his own attorney in the case, which means he is allowed to review the evidence. In this case, the evidence is more than 100 videos seized from Gilbert's home in 2007. Gilbert is accused of luring more than a dozen young boys to his home and molesting them. Prosecutors say Gilbert videotaped some of the alleged acts. Gilbert has scheduled times when he can view the material, and the room is monitored by corrections officers. Pierce County Jail spokesman Ed Troyer says, "the whole thing is just very strange."

OnStar Helps Apprehend Murder Suspect: WLOX (MS) reports that Jeremy Wayne Manieri, 31, was arrested for the murder of a priest in Florida after authorities used the auto tracking system OnStar to locate the victim's vehicle. Manieri was driving the victim's SUV, which police found at a hotel where Manieri was staying by using the GPS feature. Authorities say that Manieri, a convicted sex offender, is also wanted on a warrant in Escambia County, Florida for grand larceny. Larry McShane of The New York Daily News reports that Manieri was planning on going to Disney World, where he had bought three-day passes for his ex-wife and children, using money he stole from the slain priest.   

Man Arrested After Reporting Marijuana Robbery:
The Sun-Times Media Wire (IL) reports that Chicago druggie Max Fleck, 20, was charged with two counts of felony possession of a controlled substance and two counts of possession of cannabis after police found narcotics in his apartment. Police were called to the apartment after Fleck had called the police to report being robbed of two pounds of marijuana and a laptop.

12 year-old Girl Sentence for Cyberstalking: A 12-year-old girl has been given a deferred sentence and ordered to stay out of trouble for six months, attend counseling and perform 20 hours of community service for cyberstalking and first-degree computer trespassing as reported  by Jennifer Sullivan of the Seattle Times.  An 11-year-old co-defendant was also charged and given probation.  According to the charges, after the two girls and the the victim had a falling out, the defendants used the victim's password to post sexually explicit content on her Facebook page and instant-messaged "random individuals" under her name to offer sex acts.  The trial judge refused to grant the prosecution's request that the 12-year-old girl be banned from all social-networking sites for the term of her sentence, ordering instead that an adult supervise her while on social-networking sites.
Assemblyman Donald Wagner has this post at Flash Report on the cost-based attack on California's death penalty:

Democrats have mounted an effort in Sacramento to abolish the death penalty. Critics of capital punishment say it is too expensive - allegedly up to $184 million per year - to justify sentencing miscreants to death. Thus, a bill has been introduced calling for a referendum abolishing capital punishment in favor of life imprisonment. Soon it will be on the floor for a final vote where I expect the ruling Democrats to rubber stamp it.

Death penalty critics are right in both of their major challenges to keeping it on the books: it is too costly and too haphazardly implemented. However, those critics are wrong to say that the solution therefore is its elimination. We can fix both of those problems; indeed we have a moral obligation to fix those problems rather than abandon capital punishment.

A Battle Between Sick and Crazy

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The following headline says it all:  "Casey Anthony admirers send her cash in jail."

The story is on MSNBC, if you care to read it, which, for the sake of your digestion, I do not particularly recommend.

Cal. Supreme

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The California Supreme Court does not plan to decide any criminal cases tomorrow, but there is one opinion coming out that is destined for the Cases You Have to Look Up Just for the Name file:  Save the Plastic Bag Coalition v. City of Manhattan Beach, No. S180720.

Loughner's Meds

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Reading this CNN story, you might think that the Ninth Circuit has decided that the mentally incompetent Jared Loughner can permanently refuse medication and thus avoid trial indefinitely.  In fact, the order simply provides that "during the pendency of this appeal, we continue in force the stay we entered on July 1, 2011, enjoining the Bureau of Prisons from forcibly medicating Loughner with psychotropic drugs."  (Emphasis added.)

The appeal is expedited with oral argument the week of August 29 in SF.  Extensions?  Fuhgeddaboudit.

News Scan

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New Protected Class in SF; Ex Cons:  San Francisco Chronicle writers Phillip Matier and Andrew Ross report that city leaders are considering making it illegal for private employers and landlords to deny a job or an apartment to an ex-convict.  The proposal would also make it illegal to ask a job or apartment applicant if they have been convicted of a felony.  The new rules would not apply to sex offenders and some violent ex-cons. Of course if you cannot ask, how would you find out?  Not surprisingly, the city already has made ex-cons a protected class when it comes to government jobs or housing.  Ross Mirkarimi, a county supervisor and candidate for sheriff noted, "This is a very important discussion on the eve of an immense state prison realignment that's going to return hundreds of prisoners back to San Francisco."   The city has already given protected class status to African Americans, Latinos, gays, transgenders, and people who are disabled and pregnant. 

Facial Profiling:  A new device from BI2 Technologies in MA can scan a photograph of a person's face or iris and match it with a database of people with criminal records.  Wall Street Journal writers Emily Steel and Julia Angwin report that the gadget, which attaches to an iPhone, will be in use by police agencies all across the country by September.  Questions about the legality of snapping someone's picture and running it through a database currently remain unanswered, but it is generally considered legal to take anyone's picture when they are out in public.  Brockton, Mass., Police Chief Wm. Conlon told reporters., "It's just a picture.  If you are out in public, I can take a picture of anybody."  The article notes the privacy advocates are worried about misuse of the new technology. 

Defense Moves to Bar Victim's Husband:  Lawyers representing Joshua Komisarjevsky, the habitual criminal charged with the home invasion murders of Jennifer Hawke-Petit and her two daughters, are seeking to bar the victims' husband and father from attending the trial.  An Associated Press story reports that defense counsel believes that Dr. William Petit would "unduly influence jurors seated in close proximity to the Petit posse," apparently in reference to spectators who support the victims.  Prosecutors are objecting, noting that Petit has given testimony consistent with what he gave at the earlier trial of Komisarjevsky's accomplice, Steven Hayes, and that, as a victim, he has a right to attend the trial.  The judge's ruling on the request is pending.


They're Baaaack

Twice again, a circuit divisible by three has gotten a capital case back from the Supreme Court only to overturn the death penalty again, followed by a new certiorari petition from the state.  Such petitions have a high grant and reversal rate.  Both are from Pennsylvania this time.

Wetzel v. Kindler:  USCA3 opinion here.  Docket 11-48 here.
Wetzel v. Abu-Jamal:  USCA3 opinion here.  Docket 11-49 here.

CJLF Brief in Maples

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CJLF has filed this friend-of-the-court brief in Maples v. Thomas in support of the State of Alabama.   Maples is a double murderer who was represented by the big-name New York law firm of Sullivan & Cromwell for his state collateral review petition.  However, the big shots blew the deadline to appeal because (1) they didn't bother to inform the state court of a change in the attorneys handling the case; (2) the firm had a strange policy of not letting the attorneys use the firm name in their appearance -- even though the firm touts the work on its web site; and (3) when notices of decision addressed to the individual, departed attorneys arrived at the firm's mail room, the mail room sent them back to the court.

Contrary to what you may have read, Maples was not "abandoned" by the two departed associates.  They left the firm knowing that others at the firm, including a partner, were working on the case.  Maples was actively represented by attorneys at the big firm at all relevant times.

Maples is now represented by former Bush Administration Solicitor General Gregory Garre.  I don't get why so many Bush Administration lawyers are doing work contra bono publico.  Has the country completely run out of worthy causes for volunteer work?

The summary of argument from our brief follows the jump.

Ineffective Assistance

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Did Curt Flood win the Golden Gloves?  Course not.  Flood was a baseball player, and the Golden Gloves competitions are boxing tournaments.  But Flood's lawyer made that whopper of a mistake, among others, in oral argument in the Supreme Court of the United States.

And who was this disastrously unprepared lawyer?  Former Justice Arthur Goldberg.  Flood lost 5-3.  Justice Powell was recused.  Goldberg would have had to sway two more votes to win, as a 4-4 split would have affirmed the Court of Appeals decision in favor of MLB.

Richard Sandomir has this interesting story on a bit of baseball history -- and Supreme Court history -- in the NYT.

Bilingualism and SCOCAN

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"Language is not the supreme criteria for top-court appointments" is the headline on this editorial in the Globe and Mail.  (Knowing that the singular is "criterion" is evidently not a job requirement for headline writers at the Globe and Mail.)  Anyhow:

One of the more contentious debates in the last Parliament centred on a private member's bill that would have required all Supreme Court of Canada judges to be bilingual.
*                               *                               *
A Supreme Court vacancy should be filled by the best available candidate. He or she will spend the next 10 to 20 years deciding key federal-provincial disputes and, perhaps, social issues as momentous as euthanasia and capital punishment.

Cal. Death Penalty Debate

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KQED, San Francisco public radio, had this debate this morning between State Senator Loni Hancock (D - Berkeley) and CJLF Legal Director Kent Scheidegger to put a death penalty repeal bill on the ballot.  (California's death penalty law is an initiative and cannot be repealed without a vote of the people.)  At the beginning of the program, Sen. Hancock insists it is a "replacement" rather than a repeal, which host Michael Krasny finds a bit strange.

The New York Times is a relentless and not especially honest crusader against the death penalty.  At one point recently, as Kent noted, the Times claimed it is now "undeniable" that the death penalty does not deter murder, a claim that is wildly and demonstrably false.  See, e.g., the research collected here by CJLF.

The Times' most recent zinger is in a sidebar by Adam Liptak.  The piece is an unalloyed whack at Alabama's judicial override in death penalty cases.  Under Alabama law, the trial judge may override a jury's recommended sentence, whether life or death.  Since on any number of occasions the override has resulted in the imposition of a death sentence, the NYT is having none of it.

You will not be surprised to learn that the examples Mr. Liptak presents are designed to make the override look as bad as possible.  Thus:

Alabama judges have justified their decisions to override in favor of death on other grounds as well. Judge Dale Segrest, who retired in 2001, said he had rejected one jury's recommendation that a white defendant's life be spared on the ground of racial equality. "If I had not imposed the death sentence, I would have sentenced three black people to death and no white people," he said at a sentencing hearing in 2000.

Judge Charles C. Partin, who sat in Bay Minette, said the defendant before him was probably not mentally disabled, a factor that may have figured in the jury's life verdict. "The sociological literature suggests that Gypsies intentionally test low on standard I.Q. tests," he wrote in a 1990 sentencing order.

Gads, this is really terrible!  How has it survived all this time?  Still.......still.......if you keep reading, you'll see, thirteen paragraphs down the page, and four from the end, one small and cleverly worded line that might tip you off, if you're very, very observant, that there's something you haven't been told.

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California Supreme Court Upholds Death Sentence: Howard Mintz of the San Jose Mercury News reports the California Supreme Court yesterday rejected Mark Christopher Crew's challenge to his death sentence. Crew was convicted of fatally shooting his wife in 1982 as part of a plot to steal her money.  Crew said he dismembered her body, placing her body in a cement-filled barrel that he buried in a friend's backyard and her head in a cement-filled bucket that he threw off the Dumbarton Bridge.  The victim's body was never found.  Crew argued that jurors at his trial should have been informed about his dysfunctional childhood, but the court said even though such evidence "might have elicited some jury sympathy for him at the penalty phase of his capital trial . . . [Crew] showed no causal connection between his family environment and his cold-blooded and calculated decision to brutally murder his wife."

Homelessness Not an Excuse: Dawson Bell of the Detroit Free Press reports the Michigan Supreme Court ruled yesterday that convicted sex offenders cannot use homelessness as an excuse for failing to report their location to police as required by Michigan's Sex Offender Registry Act. Randall Dowdy, who served 18 years in prison for kidnapping and rape, was charged in 2006 with failing to report his location and change of address after he was forced to leave a shelter. The charges against him were dropped by a county judge and the decision affirmed by the appeals court, but overruled Monday in a 4-3 decision by the state's high court. The court majority found that homelessness
"in no way prevents (an) offender from physically entering a law enforcement agency and truthfully reporting... information regarding the offender's residence."

Bay Area Counties Prepare for Influx of Inmates: Rachel Gordon of the San Francisco Chronicle reports local criminal justice officials are scrambling to meet the added demands on their jails and services as tens of thousands of convicted felons and parole violators in California will be diverted from state prison to county supervision, without the assurance of adequate funding. The state has set aside $5 billion to help counties handle the additional responsibilities but according to a spokeswoman for the state Department of Corrections and Rehabilitation, "whether it's going to be enough is a matter of opinion." Local law enforcement authorities are anticipating an increase in crime with fewer criminals serving their sentences in state prisons, and worry about increased trouble behind bars in county lockups. The inmate populations in San Francisco and Marin County could increase by over 40 percent.

Pharmacist Gets Life with Possibility of Parole: The AP reports that Oklahoma pharmacist Jerome Ersland, 59, was sentenced yesterday to life with the possibility of parole. Jurors convicted Ersland in May of murdering a teenager who tried to rob the pharmacy where Ersland worked. Ersland claimed he was defending himself and two female co-workers. (See previous post here.) Ersland's son Jeff and others have been collecting signatures for a petition urging Governor Mary Fallin to "right this wrong." "We believe that armed robbers who enter our businesses and threaten our lives bear the responsibility for the outcome of an armed conflict that they initiate," said Jeff.

Immoral v. Illegal

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Richard Cohen has this column in the WaPo lamenting the "lynching" of Anthony Weiner.  What I find interesting is what the column reveals about Cohen's view of the line between the illegal and the immoral.

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Jaycee Dugard Speaks About Abduction, Captivity:  Jessica Hopper of ABC News reports Jaycee Dugard is writing and speaking about her 18-year captivity in the backyard of a convicted sex offender.  Dugard says she was shocked with a stun gun on her way to school by a passerby and stuffed into the backseat of the Phillip and Nancy Garrido's car, then brought to a shed in the backyard of their Antioch home where she was raped and gave birth to two of her abuser's children.  Dugard calls Garrido's wife "just as evil as her husband."  Dugard now wears a charm of a pine cone around her neck as a symbol of hope, as a sticky pine cone was the last thing she touched on the side of the road before her abduction. 

Monitoring of Jaycee Dugard's Kidnapper "Substandard":  In a related story, federal supervision of convicted sex offender Phillip Garrido was "clearly substandard," according to a report by U.S. Chief District Judge James Ware in San Francisco.  Garrido was classified as a high-risk sex offender after he served a federal prison sentence for kidnapping a Nevada woman in 1976, but the report states federal probation officers "failed to supervise him accordingly" despite Garrido's questionable behavior, problematic psychological reports, and dirty urine samples.  The report says that California authorities did an equally poor job supervising Garrido after he was transferred to their authority in 1999, missing several opportunities to discover Jaycee and her children hidden in a backyard shed.  Don Thompson of the AP has this story

New Mexico Labs Post-BullcomingNew Mexico officials are brainstorming ways to conform to the Supreme Court's recent decision in Bullcoming v. New Mexico in cases involving drug- and alcohol-related tests, reports Elizabeth Piazza of The Daily Times (NM).  New Mexico has only one lab for such testing, making it expensive and time-consuming for lab technicians to travel to courts in other areas of the state.  Hiring more lab technicians might prove difficult for budget-strapped agencies, and so officials are considering alternative solutions such as notice-and-demand statutes and video conferencing.  Hit tip to How Appealing

Richter on Remand

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In January, the Ninth Circuit's en banc decision overturning the murder conviction of Joshua Richter was unanimously reversed by the Supreme Court.  Today, USCA9 tied up the loose threads, rejecting without dissent the claims Richter made that were not resolved by the Supreme Court.

The opinion is designated per curiam -- by the court as a whole without a designated author -- but the liberal use of contractions marks it as a Kozinski product.

Competency to Waive Appeal

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AP reports:

The 9th U.S. Circuit Court of Appeals has thrown out the death penalty of Joseph Edward Duncan III, saying he should have been given a competency hearing before he was allowed to waive his appeal.

The appellate court handed down the ruling Monday, ordering U.S. District Court Judge Edward Lodge to hold a retrospective competency hearing for Duncan.

Duncan was sentenced to die in 2008 for kidnapping, torturing and murdering a 9-year-old Coeur d'Alene boy in 2005. Prosecutors said Duncan snatched Dylan Groene and his 8-year-old sister from their northern Idaho home after killing their older brother, mother and mother's fiance. Duncan kept the children at a remote Montana campsite for weeks before killing Dylan and returning with Dylan's sister to Coeur d'Alene, where he was arrested.

"Thrown out" is not correct.  USCA9 did not reverse the sentence.  They sent the case back for a new competency hearing.  Opinion is here.  The trial judge had already held extensive competency proceedings when Duncan wanted to represent himself, so the notion that this has to be done all over again when he wants to waive appeal is a bit odd.

Should the prosecution seek further review of this decision or just go ahead with the hearing so the trial judge can find Duncan competent again?

Update:  Rebecca Boone of AP has a corrected story here.

Criminalizing Speech

Europe likes to fancy itself as "ahead" of the United States in the human rights realm these days, but of course it is not.  AP reports that a German court has upheld a criminal conviction for denying the Holocaust.  This "crime" did not even happen in Germany.  A British bishop made comments on a Swedish TV station that ended up being broadcast in Germany.

Holocaust deniers are worthy of scorn and contempt.  However, criminal prosecution simply for expressing an opinion, however vile, is equally contemptible.

Caylee's Law

Associated Press reports:

Lawmakers outraged over Casey Anthony's acquittal have responded by proposing so-called Caylee's laws that would allow prosecutors to bring felony charges against parents who do not quickly report missing children.
*                             *                          *
"Casey Anthony broke new ground in brazenness," said Florida state Rep. Scott Plakon, who is sponsoring the proposal in his state. "It's very sad that we even need a law like this, but Casey Anthony just proved that we do as unfortunate as that is."
*                             *                          *
Other states are considering similar measures and the online petition at Change.org, started by an Oklahoma woman, calls for a federal law.

A federal law?  Which of the enumerated powers does this come under?  None, in my opinion.  Leave this to the states.  That is where person-on-person criminal laws belong.

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Ninth Circuit Tosses Arizona Death Sentence:  The Ninth Circuit yesterday vacated the death sentence of Arizona inmate Richard Hurles, who was convicted of raping librarian Kay Blanton before stabbing her to death 37 times with a paring knife.  The court found the trial judge displayed judicial bias and should have recused herself, and ordered a new sentencing hearing to be presided over by a different judge.  Amanda Lee Myers of the AP has this story.

Iowa Sex Offender Inmates Can Be Required to Admit Crimes:  The Iowa Supreme Court today ruled that prison treatment programs can require sex offender inmates to admit their crimes without violating the inmates' right against self incrimination, reports the Des Moines Register.  Convicted sex offender Robert Harkins claimed an Iowa law permitting inmates to earn good time credits for participating in treatment programs, which in some cases requires assuming full responsibility for past offenses, violated his constitutional rights.  A closely divided court disagreed: "Harkins had every right not to be a witness against himself... Now that he has been convicted as a sex offender, though, the State of Iowa may constitutionally establish an incentive for him to obtain treatment in prison by withholding earned-time credits if he declines to participate."

California Death Penalty Abolition Bill Advances:  Parash Dave reports in The Sacramento Bee a bill to abolish the death penalty in California cleared its first legislative hearing yesterday after it was approved by the Assembly's Public Safety Committee.  If Senate Bill 490 receives a majority vote to pass the California legislature, the decision will be left up to voters in the November 2012 election.  Many lawmakers acknowledge that polls show two-thirds of voters support capital punishment, but are nevertheless harping on California's fiscal crisis to argue capital punishment is an exorbitant cost.

Connecticut Supreme Court Reverses Order Freeing Two Men:  The Connecticut Supreme Court today unanimously reversed a lower court's ruling that ordered two men to be freed from their 80-year prison terms.  George Gould and Ronald Taylor were convicted of participating in a deadly robbery of a New Haven retail store in 1993.  A judge last year ordered the two men to be released immediately, accepting their claims of actual innocence based largely on a recanting witness.  The state's high court determined the lower judge applied the wrong standard in evaluating "actual innocence," relying too heavily on the recantation and failing to identify affirmative evidence that the men did not commit the crime.  David Owens has this story in The Hartford Courant. 

At SCOTUSblog, Orin Kerr has this summary of the Fourth Amendment cases for the U.S. Supreme Court term just ended.  There were five, but only three were decided on the merits:  Kentucky v. King on exigent circumstances, Davis v. United States on a good-faith exception to exclusion for a change in case law, and Ashcroft v. al-Kidd on qualified immunity from civil suit.  I think it is worth noting (though Orin does not) that only one of the three was a substantive Fourth Amendment issue.  The other two were about remedies.

What's the take-away from the Term's Fourth Amendment cases?   Three quick observations come to mind.

First, the current Court is rather friendly to the government in Fourth Amendment cases.    Of the three cases on the merits, the government's side won 23 votes and lost only 3 votes.   This Term, at least, none of the Fourth Amendment cases were even close.  Second, it's interesting that Justice Alito wrote two of the three cases....

Finally, it's particularly interesting that neither of the two newest Justices, Justices Sotomayor and Kagan, voted for a defendant or civil plaintiff in any of the three cases.

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Casey Anthony to Be Released July 13: Amy Pavuk and Anthony Colarossi of the Orlando Sentinel report court officials have announced Casey Anthony will be released from the Orange County Jail on July 13. Anthony was sentenced to four years in jail for lying to police, with credit for time served. In addition Anthony must pay the court several thousand dollars for the charges. Assistant State Attorney Linda Drane Burdick informed Chief Judge Belvin Perry about the state's interest in collecting investigative costs from Anthony related to the search for Caylee Marie in 2008. A hearing on that issue was set for August 25.

Accused Serial Killer Changes Mind, Wants Attorney: Accused serial killer Joseph Naso, 77, requested legal representation on Wednesday, telling the judge that he can not properly defend himself because his incarceration has limited his ability to conduct legal research and he is having a heard time understanding the law. Naso has been representing himself, telling a judge in May that he knew the case better than anyone and didn't want to use his financial resources on attorneys. (See previous post here.) Naso has $1 million in assets, which includes a home in Reno, NV and Nevada officials recently released $150,000 that was frozen due to another investigation.  Naso is accused of murdering four prostitutes in the 1970s and 1990s throughout Northern California: Roxene Roggasch, Carmen Colon, Pamela Parsons, and Tracy Tafoya. A decision will be made on Friday regarding whether Naso will receive a court-appointed attorney.  The AP has this story.

South Dakota Parole System Under Fire: John Hult reports in The Argus Leader (SD) that the recent killing of a hospice nurse allegedly at the hands of a former prison inmate has called into question South Dakota's parole policy of releasing some inmates without a hearing. James Vernon McVay, 41, is accused of killing 75-year-old Maybelle Schein in her bed two days after he was released into a community transition program.  Under South Dakota law, the parole board doesn't review an inmate unless the person is deemed "noncompliant" with the Individual Program Directive (IPD) the inmate receives from prison officials during the first few weeks of custody.  The IPD system is based on a set of mental and physical evaluations and is designed to focus on rehabilitating the inmate.  If an inmate complies, he or she is released without any review from the state's parole authority.

Stay Denied in Leal

The Supreme Court's order is here.  It's 5-4, lined up as you would expect.

Leal and the United States ask us to stay the execution so that Congress may consider whether to enact legislation implementing the Avena decision. Leal contends that the Due Process Clause prohibits Texas from executing him while such legislation is under consideration. This argument is meritless. The Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment.

The United States does not endorse Leal's due process claim. Instead, it asks us to stay the execution until January 2012 in support of our "future jurisdiction to review the judgment in a proceeding" under this yet-to-be enacted legislation. Brief for United States as Amicus Curiae 2-3, n. 1. It relies on the fact that on June 14, 2011, Senator Patrick Leahy introduced implementing legislation in the Senate with the Executive Branch's support. No implementing legislation has been introduced in the House.

We reject this suggestion. First, we are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be. In light of Medellín I, it is clear that there is no "fair prospect that a majority of the Court will conclude that the decision below was erroneous," O'Brien v. O'Laughlin, 557 U. S. ___, ___ (2009) (slip op., at 2) (BREYER, J., in chambers), and our task should be at an end. Neither the United States nor JUSTICE BREYER, post, at 1-6 (dissenting opinion), cites a single instance in this Court's history in which a stay issued under analogous circumstances.
My previous post on the case is here.  Bill Otis's take on it is here.  Kenneth Anderson has this post at Volokh Conspiracy, followed by the usual VC comment thread of high intensity and low information.

Update:  Michelle Mondo has this story on the execution in the San Antonio Express.
I recently obtained a copy of the third edition of Garner's Dictionary of Legal Usage.  (The publisher decided to put Bryan Garner's name in the title, an indication of its view of his marketability.)  As with Garner's other works, this one is a valuable collection of sound advice on legal writing.  I expect it will be a frequently used addition to our library.

The book contains much good advice on general usage of words.  There is an entry on "that" v. "which" and one on "it's" v. "its."  The advice generally leans conservative, recognizing that legal writing is usually formal, and it is not good to distract the reader with a usage that many consider wrong.  But Garner also refutes a number of false rules in an entry on Superstitions.  Superstition (D), for example, is "Never Begin a Sentence with and or but."

Memo to Justice Ginsburg: Stay Put

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There is scuttlebutt going around inside the Beltway that liberals are pressuring Justice Ruth Bader Ginsburg, 78, to retire now, lest President Obama lose next year and a Republican successor might have the opportunity to appoint a (presumably conservative) replacement.

I have disagreed with Justice Ginsburg in most of her votes in criminal cases, including her disastrous votes in both halves of Booker, first finding that the Federal Sentencing Guidelines did not survive the reasoning of Blakely, and then switching sides to implement a remedy of "advisory" guidelines.  I have explained the calamitous results of that remedy here.

Having said that, Justice Ginsburg is a person of principle.  She takes law, and the idea of law, seriously, for however much conservatives disagree with most of her outcomes.  She is also a person of courage, having battled an exceptionally deadly form of cancer.  And she is a person of strength, belied by her seemingly frail build.

The pressure for her to resign is creepy and classless, as Yale law professor Stephen Carter explains in this piece.  I hope she resists, and I'm reasonably confident she will. 

Casey Anthony: "The System Worked"???


Harvard law professor Alan Dershowitz has a piece in today's Wall Street Journal titled, "Casey Anthony: The System Worked."

My first reaction was to think  --  then we need to change the system.  In fact, however, the column mostly just makes the mundane point that, for good reason, a criminal trial requires proof beyond a reasonable doubt, this being an essential safeguard against the power of the state.

So far, so good.  Indeed, one wonders why Prof. Dershowitz goes to the trouble of stating the obvious.  But there is one point at which he goes critically astray.  He states, "...a criminal trial is not a search for truth. Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt."

In a strictly formalistic sense, that's right, but in reality, it's more an expose' of the deficiencies of formalism.  His error is in omitting what exactly is to be proved beyond a reasonable doubt, namely, the truth about the defendant's conduct and state of mind.  The idea that "a criminal trial is not a search for truth" is at best very distorted, and, taken on its own terms, poisonous.

When truth gets put in second place, we already know what fills the vacuum left at the top, i.e., gamesmanship.  It just won't do to dismiss truth-seeking as the mission only of scientists, and morality as the off-there-somewhere business of philosophers.  Justice  --  the merger of truth and morality  --  is, instead, the indispensable backdrop that gives resonance to, and assures continued public support for, the requirement of proof beyond a reasonable doubt.  When these things are dismissed as easily as Professor Dershowitz seems to, and when in consequence Casey Anthony-type verdicts start to proliferate, we are certain to see growing pressure to junk the very civil libertarian safeguards Professor Dershowitz rightly values.

What Can We Learn from Casey Anthony?


Absolutely nothing  --  or that is what many disgusted readers might say.  To which I reply:  I hear you.

But I think there are a couple of lessons  --  maybe more, but two I want to discuss just now.

First, as I said in an earlier post, we can learn that acceptance of fallibility and error, even outrageous error, is part of adult life.  I think, as many, many others do, that Casey Anthony almost certainly had some degree of criminal involvement in her daughter's death.  The acquittal on every felony charge strikes me the same way the OJ verdict did, namely, as an inexplicable blunder and a miscarriage of justice.

But, as I also said in that post, law is a bunch of trade-offs.  It's easily possible, for example, to imagine a country with no Double Jeopardy Clause, in which a reviewing court (or king or president) could toss the acquittals as farcical and order a new trial.  

The Double Jeopardy Clause was not written by people who thought acquittals are inevitably factually correct.  It was written by people who knew full well that some of them are wrong or even vile, but for whom restraining the awesome power of the state to hound its enemies was, on balance, the more important virtue.

Trade-offs and acceptance of error are not guaranteed to make us happy in the short run; indeed, they are pretty much guaranteed to do the opposite.  But the Framers did not write our Constitution for the short run.  We have become the leading country in the history of the world by honoring their foresight. 

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Death Penalty Sought in Fort Hood Killings:  The commanding general of the Fort Hood military post announced today that accused murderer Maj. Nidal Hasan will be tried in a military court and face the death penalty, reports Angela K. Brown of the AP.  Hasan is charged with 13 counts of premeditated murder and 32 counts of attempted murder stemming from a November 2009 shooting spree.

Alleged Rape Victim Testifies at Accused Serial Killer's Trial:  Thomas J. Sheeran of the AP reports a woman who said she was raped by accused serial killer Anthony Sowell defended her accusation during an aggressive cross examination today by Sowell's defense team.  The woman told jurors she was choked and violently raped by Sowell after a night of partying in October 2009, about a week before police discovered the first two bodies in his home.  Jurors were also shown a cellphone video that prosecutors say show a woman falling from an attic window of Sowell's home and a naked man, identified by the witness as Sowell, attempting to move her motionless body.  Sowell's defense team questioned her about her conflicting versions of the attack, including her claim to police that her injuries were from a car accident - a story she testified she told to save her life. 

ATF Head Denies Knowing Details of "Fast and Furious" Operation:  In his first detailed comments about ATF's "Fast and Furious" gun tracking operation, acting ATF Director Kenneth Melson claimed he had only a superficial understanding of the program until after the controversy erupted.  Melson's claims contradict testimony and previously-released documents indicating that he had much more involvement in the operation, including emails released at a hearing last month showing Melson seeking to watch from his desk live hidden camera footage from cooperating gun shops that sold ATF-tracked guns.  Evan Perez has this story in The Wall Street Journal. 

The Vienna Convention, Again

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Humberto Leal is scheduled for execution in Texas tomorrow.  He was convicted of the rape and murder of Adria Sauceda, just 16, in 1994.  Among the evidence against him was Adria's bloody blouse found in his home.  AP story is here.

The Vienna Convention on Consular Relations requires notification of the consulate when a foreign national is arrested.  Leal immigrated to the U.S. from Mexico at the age of 1 1/2.

Article 36(2) of the Vienna Convention provides that rights under it must be asserted within the procedural rules of the jurisdiction.  In Breard v. Greene, 523 U.S. 371 (1998), the United States Supreme Court held (correctly, in my view), that this includes the same procedural default rule that applies to other rights, including those established by the Constitution.

The cases of a group of Mexican nationals, including Leal, went to the International Court of Justice.  That court held in 2004 that the procedural default rule could not be applied, at least in the circumstances of these cases.  The prisoners were entitled to hearings on the merits of their Vienna Convention claims, it said.

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9th Circuit Halts Forced Medication of Jared Loughner:  The AP reports the Ninth Circuit late Friday ordered federal prison officials to stop forcibly medicating Jared Lee Loughner.  A federal district judge ruled last week that officials could administer anti-psychotic medication, deferring to prison doctors who determined Loughner posed a danger.  Briefing by federal prosecutors and Loughner's defense team must be submitted by tomorrow.

Case Closed on 130-Year-Old Murder Case:  A British coroner has identified a skull found in a British garden as the remains of Julia Thomas, a wealthy widow who was murdered by her housekeeper in 1879.  The coroner's ruling closes the case on the 130-year-old murder.  The AP has this story.

Texas Town Lays Off Entire Police Force:  The east Texas town of Alto, population 1,200, has been left with no police force after the city council cut the police budge to zero, reports CBS News.  The patrol cars have been placed in an impound lot and all five police officers furloughed for at least six months.  CBS News Correspondent Don Teague says Alto has been experiencing a crime spree recently, including the burglary of a construction company located across the street from the now-vacant police station. 

Misrepresenting Justice Thomas

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There have been several stories in newspapers lately focusing on Justice Clarence Thomas.  Unfortunately, these stories have invariably been skewed so as to give the reader a distorted view of Justice Thomas's jurisprudence.

The most recent installment is this article by David Savage in Saturday's Los Angeles Times.  He brings up the old Hudson v. McMillian controversy from 1992.  Justice Thomas's dissent in this case is among the most misrepresented opinions in the modern history of the Court.

Sometimes, the law makes sense

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The DSK Lesson

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Bret Stephens has this confessional article in the WSJ on how and why many people, including himself, overlooked red flags in the DSK affair.

In other stories on the case, the accuser is suing the New York Post for defamation, Colleen Long reports for AP.  Meanwhile, back in Paris, Pierre-Antoine Souchard and Greg Keller report for AP, "A young author filed a sex assault complaint against former International Monetary Fund chief Dominique Strauss-Kahn on Tuesday, opening a new and potentially ugly episode in the legal woes of a man once seen as a top contender for the presidency of France."

Looking Ahead on Independence Day


Kent warned this morning about our slide back to insecurity  --  back to a country where ordinary people will bear a heavier burden of wondering about their safety and the security of their children, homes and property.  I would like to elaborate, to note that our country seems to be in the grasp of a poisonously short-sighted trend in which we sacrifice tomorrow's well-being for today's fleeting succor.

This is most obvious in criminal law in the accelerting trend, in California and many other states, to save money on the current budget by releasing prisoners before their sentences are complete.

Even if one could trust the easy assurances that these will be only much-fabled "low level, non-violent" sort of prisoners (have you ever heard the defense bar reference anything but the "low level, non-violent" prisoner?), we would still be in for more crime.  The quiet  --  very quiet  -- premise of these release plans is that, hey, we can afford a bit more crime.

This all depends, of course, on what is meant by "we," "can afford," and "bit."   

To Secure These Rights

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."  This is the most famous sentence of the declaration signed 235 years ago today. But the next two sentences are equally important:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Safety is essential to happiness.  We are not happy living in a state of seige.  We are not productive when we must devote energy and attention to protecting ourselves and what we have already earned from predators, rather than concentrating on new productive endeavors.  And that is why we created government in the first place.

Yet in some places government seems to have forgotten that public safety is its first and foremost mission.  In California, we are entering an era that has been called "misdemeanor anarchy."  That is actually an understatement, because the list of crimes one can commit with a near-certainty of not suffering any substantial punishment includes many crimes that have been considered felonies up to now.

Last I heard, July 4 was a celebration of our country's breaking free from the dictates of foreign powers.  I guess the Department of Justice didn't get the memo.

As the Independence Day weekend begins, the Department has filed this astounding application to stay the execution of a Mexican national by the State of Texas.  The gist of the application  --  filed under the All Writs Act, of all things  -- is that Texas must be required to defer the execution until the U. S. Senate has had the opportunity to consider, and presumably enact, a bill very recently, and hurriedly, introduced by Senator Leahy.  The bill (attached as an Appendix to the application) would expand the power of district courts to delay state executions in order to provide more time for federal review of consular notification claims.  Such claims are assertions by the defendant, usually abetted by the foreign government, that the defendant was denied his right under international law and treaty to consult with, and obtain the assistance of, his government's consular representatives.

One would think the Department would have at least a smidgen of modesty in these matters, having taken a pasting during the Bush Administration in Medellin v. Texas, 552 U.S. 491 (2008).  But modesty is not the Department's thing.  Still less is respect for state sovereignty, in the face of international blustering (and more to the point, I strongly suspect, in light of the AG's and the Solicitor General's determined, personal opposition to the death penalty).

But what is simply mind-boggling about this particular application is that it seeks a stay pending the Senate's possible consideration of the Leahy bill, a request made without any assurance, or anything approaching an assurance, that the bill actually will be considered, much less passed; or that any similar bill will even be introduced in the House, or considered, voted upon or adopted there. 

The reason such assurances are not given is that they would be guesses at best and (more likely) pure fiction.  In over two decades as an officer of the Department, I never heard of, much less saw filed, an application to the Supreme Court to stop a state execution (or do anything at all) based on the possibility that one chamber of the Congress might adopt a bill.  It's like asking the Court to act based on the possibility that half an earthquake might occur. 

It's outright nonsense.  It would be an enormous push for DOJ to seek an All Writs Act stay even if it submitted an affidavit that a given piece of legislation was imminently to be signed into law.  To ask the Supreme Court to enter a stay based on the possible/maybe/might happen/could happen action of one house of the Congress is flabbergasting.

It's not just that the Court should summarily deny this seat-of-the-pants, take-a-guess application.  It should admonish the Department for having filed it, and direct the Clerk to return it.  Those actions won't happen, but they're what the Department has earned.

News Scan

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Case Against Strauss-Kahn Nearing Collapse:  John Eligon has this article in The New York Times about the collapsing sexual assault case against former managing director of the International Monetary Fund Dominique Strauss-Kahn.  Strauss-Kahn was released from home arrest this morning in light of prosecutors' emerging doubts about the credibility of the alleged victim.

"Fast and Furious" Weapons Linked to Local Crime:  Weapons linked to ATF's controversial "Fast and Furious" weapons operation are being linked to neighborhood crime in Arizona, reports Lori Jane Gliha of ABC15 Arizona.  The operation allowed weapons to slip into the hands of straw buyers who would then distribute the weapons to known criminals.  The strategy was designed to lead ATF officials to key drug players in Mexico, but some agents admitted they never fully tracked the weapons after suspicious buyers purchased them. Phoenix ATF agents testified at a recent Congressional hearing that hundreds of weapons are now on the streets in the U.S. and Mexico as a result of the operation.

Officer's Warning About Dangerous Neighborhood Lands Him in Hot Water:  Noah Pransky of WTSP10 News (FL) reports St. Petersburg Police Officer Thad "Stu" Crisco is facing a possible suspension for warning a father about letting his teenage daughter hang around a dangerous part of town at night.  The department has launched an investigation into possible "disparaging comments against the city" and St. Petersberg Mayor Bill Foster stated in response to the incident that he "always want[s] to know [his] officers are representing this city in a very positive light."  Criso made the comment after the man's daughter and four other teens were robbed in the area by a group of armed men.

Pharmaceutical Company to Ban Pentobarbital in Executions:  Danish pharmaceutical company Lundbeck Inc. announced today it will demand that U.S. distributors sign an agreement that they will not make pentobarbital available for lethal injections.  Lundbeck's chief executive Ulf Wiinberg stated his company would take action against any distributor that breaks the agreement.  Jan M. Olsen and Greg Bluestein of the AP have this story.

Whitey Bulger Racks Up Quite the Bill:  Dave Wedge and Joe Dwinell of the Boston Herald report a federal judge yesterday declared accused Irish mob boss James "Whitey" Bulger indigent and entitled to a taxpayer-funded defense attorney.  The Boston Globe also reports Bulger was transported the forty miles from his jail cell to the Boston courthouse in a Coast Guard helicopter - which costs a mere $13,800 per hour.
*Update:  John R. Ellement and Maria Cramer of the Boston Globe write the reported cost of Bulger's helicopter ride is now being disputed by the U.S. Marshals Service, who claim the actual total was around $1,500. 

Executions at Midyear


The Death Penalty Information Center actually does offer some information, in addition to its more voluminous, and steady, diet of abolitionism.  The DPIC reports that as of yesterday, the midyear point for 2011, there had been 25 executions in the United States.

Extrapolating that through the end of the year, that would mean 50 executions will occur by the time 2012 begins.  That would be the second highest number of executions in the last five years (the highest was 52, in 2009, and the lowest was 37 the year before).

One frequent refrain from the DPIC is that "the death penalty is dying."  To the extent that means there are fewer executions, it was correct for several years toward the beginning of this millenium.  Thus, the number of executions fairly steadily declined from 66 in 2001 to a low of 37 seven years later.  In percentage terms, that is a significant drop-off (although some of it was due to the quasi-suspension that occurred while the Baze challenge was litigated through the Supreme Court).  As the 2011 midyear figure suggests, however  --  and as Michael Corleone famously said  --  "Times are changing."


A Banner Day for Crack Dealers

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Yesterday, the US Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the guidelines, making convicts previously sentenced for crack cocaine offenses eligible for significant sentencing reductions.  The Commission's gushing, self-congratulatory press release reflects, probably unintentionally, the extent to which the Commission has become the lap dog of the drug bar. 

Still, one must give credit where it's due.  The Commission makes only a minimal attempt to mask the de facto prison break it has authorized:

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months...

Well that's reassuring.  Not every crack offender (read, in large measure, "dealer") will get a break  --  only a mere 12,000.  When multiplied by the average sentence reduction (slightly more than three years), what this means is that the Commission has authorized 36,000 fewer man-years of imprisonment for those who have involved themselves with perhaps the most violence-related drug on the market, a drug that has wreaked havoc and misery in one community after the next.

Of course, if the crack recidivism rate were zero, that would be one thing.  In fact it's over 30% (a figure nowhere to be found in the press release).  In other words, the Commission seems to take great pride in virtually guaranteeing a rolling crime wave.



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