August 2011 Archives

News Scan

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260 Days For Ruining A Man's Life: Bonnie Eslinger of the San Jose Mercury News reports a 47-year-old San Jose man was brutally beaten in Redwood City Caltrain station by a mob of nine to thirteen assailants trying to rob him. According to San Mateo Deputy District Attorney Karen Guidotti, Thomas Furman, 29, and his mob started to beat the man when he refused to hand over his valuables and tried to walk away. Furman was later caught using the man's credit card and was sentenced to 260 days in the county jail and probation after pleading no contest to burglary and grand theft charges on Monday. The unidentified victim is receiving ongoing care due to a brain injury that leaves him unable to conduct his daily activities.

Death Penalty Considered for Child Murderer: Prosecutors in Missouri are considering seeking the death penalty in the case against accused murderer and kidnapper Shawn Morgan, 43. Morgan is
accused of suffocating his three-year-old neighbor Breeann Rodriguez with a white plastic trash bag, holding it over her face and mouth after he spotted the girl standing by his backyard pool. According to a court document, "Morgan states that he felt like it took an hour for the girl to die." Morgan told police he put the girl's body into the same trash bag, and threw it over a railing into a floodway ditch. Morgan has not yet entered a plea.  Chris Perry of CNN has this story.

Optimistic New Strategy for Philadelphia Police: Philadelphia Police Commissioner Charles H. Ramsey released a plan today that continues to encourage the city's officers to look for creative ways of preventing crime, such as asking the city to fix broken streetlights or clean up overgrown lots.  The plan stresses community cooperation and relies on the realization that small problems and the big are interconnected. Ramsey explains: "Law enforcement is a very small slice of what we do. We're not here to feed the criminal-justice system; we ought to be here to starve it. You have got to be able to come up with ways to keep people out of the system and to keep people on the right side of law." Allison Steele of the Philadelphia Inquirer has this story.

Jury Recommends Death Sentence:
Steve Fry of The Topeka Capital-Journal reports that after 55 minutes of deliberation, a Osage County jury decided on a death sentence for James Kraig Kahler for the murders of his estranged wife, two teenage daughters, and estranged wife's grandmother. Kahler shot to death the victims during a 2009 rampage through the grandmother's home. He allowed his son, Sean Kahler, then 10, to escape unharmed. When urging jurors to chose a death sentence, assistant attorney general Amy Hanley said the victims "all died with an awareness that gave them the torture of slow death." Under Kansas law, the presiding judge must now determine whether the evidence supports the verdict.

Guilty Verdict in Major San Francisco Gang Trial: A federal jury in San Francisco jury yesterday returned with guilty verdicts for six members of the MS-13 gang in the city's biggest gang trial in many years. During the four-month trial, prosecutors portrayed the men as as leaders of a heavily armed gang that controlled the San Francisco's Mission District through fear and violence. The prosecutors' case largely relied on informants and secretly-taped conversations with the defendants. MS-13 is a violent gang that originated in Los Angeles by El Salvadoran immigrants, and now has 8,000 to 10,000 members in the U.S. Bob Egelko of the SF Chronicle has this report.

A Scandal by Any Other Name

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We are coming up on the tenth anniversary of the most grotesque terrorist attack in our history.  We know the bunch who did it.  To his credit, President Obama approved the operation that eradicated one of them, Osama bin Laden, and likewise to his credit, did so without a lick of due process.  We are, after all, in a war.

We have custody of the principal operational mastermind, Khalid Sheikh Mohammed.  We have had him for eight years, since 2003.  President Bush belatedly put him before a military commission.  A little less than three years ago, KSM and some of his cohorts pleaded guilty.  He wanted to become a "martyr."

The commission foolishly put off the plea in order to conduct a mental competency hearing, notwithstanding that there was not the ghost of a reason to suspect that KSM had any mental issues at all, other than being a bloodthirsty, America-hating jihadist.

In the ensuing delay, Eric Holder saw his chance. 

Rong-Gong Lin II reports in the L.A. Times:

Los Angeles County Dist. Atty. Steve Cooley said a new state law to force counties, instead of the state, to jail non-violent felons is a "horribly flawed plan" that would increase crime on the streets.

"Public safety will be seriously jeopardized," Cooley said Tuesday. "We're not kidding. There will be tens of thousands of people let out all over California, who would otherwise be incarcerated.... I've been predicting ... that there will be a spike in crime.

"The state Legislature is abandoning their highest-priority core mission in terms of public safety, shifting it to the counties. And it is a bait and switch. They had a big fiscal problem, so they're abandoning a core mission and the county's going to pick up the pieces, and the public is going to pay the price," Cooley told reporters outside the L.A. County Hall of Administration.

Cooley said there's not enough room in the county jails to house felons who would otherwise go to state prison. Already, county jails are being forced to release their own inmates early.

Cooley is well known in the state (and disliked by some of the hard-core DAs) for his restrained use of the Three Strikes law.  The people who have applauded him for that restraint need to listen to him now.  This bill was a terrible idea, and it needs to be repealed.

Update:  Thomas Watkins of AP has this story on the same subject.  On the SF Chron website, the article is headlined "LA district attorney frets over parolee transfer."  Imagine if the same headline writer had been around on the 18th of April in '75:  "Paul Revere frets over the British coming."

He Keeps Going and Going.....

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You might remember the fellow who masterminded the bombing of Pan Am Flight 103 over Lockerbie, Scotland, one Abdel Bassett Al al-Megrahi.  The bombing resulted in the deaths of 270 people, 189 of them Americans. 

Mr. al-Megrahi was the purported head of Libyan intelligence under Colonel Qaddafi.  He was eventually convicted in Scotland.  Of course he was not given a death sentence, the Scots being, you know, too civilized for that.  Instead, they released him two years ago for "compassionate" reasons, to wit, that he was dying of cancer and would pass this veil of tears in three months, if he made it even that long.

Yes, well, that was then.  Few people were surprised to find out that al-Megrahi was nowhere near death and has been living in style in Libya, up until recently under Qaddafi's protection.

Now that Qaddafi's rule has been ended by forces backed by NATO and the Untied States, you might think those whose victory over the tyrant was made possible would like to see a better brand of justice than the kind worked out between their ex-dictator and a feckless and corrupt Scotish government.

As the New York Times reports, you would need to think again.  But not to worry. The Times also reports, apparently with a straight face, that al-Megrahi is  --  guess what  --  about to give up the ghost!

Less than eight hours [after the rebels refused to turn over al-Megrahi], Nic Robertson of CNN reported having found Mr. Megrahi at the villa, where his family said that it was caring for him without help and that he was dying.

"We just give him oxygen," the report quoted Mr. Megrahi's son, Khaled, as saying. "Nobody gives us any advice. There is no doctor. There is nobody to ask. We don't have any phone line to call anybody."

Well gosh.  I'll be happy to contribute a phone, with a built-in GPS and an autodial number for the Navy SEALS. 


News Scan

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Murderer Pleads Guilty in 1978 New Jersey Cold Case:  The AP reports Philander Hampton, 54, pleaded guilty today in a one of New Jersey's longest-running cold cases.  Hampton admitted three years ago to police that he and a cousin lured five teens to an abandoned house in Newark in 1978, locked them inside, and set the house on fire.  Hampton has been battling to suppress his confession, but a state judge earlier this year found his statements admissible in court.  Hampton's co-defendant, Lee Evans, is scheduled to go to trial this fall. 

Ninth Circuit to Hear Arguments Over Forced Medication of Tucson Shooter:  A panel of the Ninth Circuit heard argument today over a request to ban prison officials from forcibly medicating accused Tuscon shooter Jared Loughner, reports the AP.  Loughner's defense team says a judge should decide whether such medication is appropriate, while prosecutors claim the decision is up to prison officials.  Loughner was forcibly medicated from June 21 to July 1 while at a federal prison facility in Missouri after prison doctors found he posed a danger.  

Rapist Thought 69-Year-Old Victim was Gang Member:  Larry Altman of the Daily Breeze (CA) reports a Southern California man accused of raping and beating a 69-year-old woman told jurors during closing argument that he acted in self defense because he feared the elderly woman was a gang member.  Gary DeVaughn LaBon was charged with attacking the woman in her neighborhood, raping her, and beating her into a three-week coma.  During his closing argument, LaBon told jurors that there is a war in the streets and that he believed the victim was a Latino gang member because she was clothed in a dark jacket with a hood.  The trial judge ordered jurors to disregard most of what LaBon said.  Jurors convicted LaBon after five hours of deliberation, saying LaBon's decision to represent himself did not help his case. 

California Bill Seeks to Raise Bar for Early Release:  Marisa Lagos of the SF Chronicle has this piece on a California parole reform bill that seeks to make it more difficult for inmates to receive early release.  The bill, which was authored by Senator Ted Gaines and is receiving bipartisan support, would allow the state parole board to deny early release based solely on the circumstances of the inmate's underlying offense.  

Why Jury Nullification Is a Bad Idea

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Jury nullification is a bad idea because law should be made under established and visible procedures and in legislatures accountable to the electorate, not ad hoc by micro-legislatures deliberating in secret and accountable to no one.  The latter, in slightly different and earlier forms, had a pretty well known name:  Vigilantism. 

Today, however, I ran across another reason to oppose jury nullification.

Cal. DP Repeal Attempt

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Having failed to get even California's criminal-friendly Legislature to put a death penalty repeal measure on the ballot, opponents are now going the initiative route.  Sam Stanton has this article in the Sacramento Bee.

Patt Morrison hosted this discussion on KPCC radio with Don Heller and yours truly.

Heller likes to promote himself as the "author" of the 1978 initiative, for the purpose of implying that his conversion to the other side has some sort of extra weight.  The actual driving force behind the initiative was a state senator named John Briggs.  Heller was tapped to do the drafting work, which he proceeded to do badly.  If I had drafted this thing, I would keep quiet about it.  Anyhow, Heller's conversion really means nothing special.

An initiative that simply puts a choice between repeal and the status quo presents a false dilemma.  What really needs to be put before the people is a choice between repeal and the reforms that the Legislature has killed over the years, reforms that would give us an effective death penalty at an affordable price.  However, qualifying an initiative in California takes buckets of money.

Book Burning

Call the Fahrenheit 451 squad.  A former intern for an anti-death-penalty organization is writing a book, and the organization wants it suppressed.  Karen Sloan has this story in the NLJ.

The Louisiana Capital Assistance Center claimed that Alexandria Marzano-Lesnevich is violating attorney-client privilege in her writings, which have appeared on her Web site and in a literary journal. Marzano-Lesnevich was a law clerk at the center during the summer of 2003, when she was a student at Harvard Law School.
*                               *                             *
Marzano-Lesnevich's attorney, Lori Mince, told the Associated Press that her client has not disclosed any confidential information. Mince has filed court documents arguing that Marzano-Lesnevich isn't bound by attorney conduct rules.

"Her core position is, 'There's nothing privileged about what I'm saying and you can't get a court to order me not to talk,' " Mince said.

Marzano-Lesnevich, who lives in Massachusetts, is working on a book about the prosecution of Ricky Langley, a sex offender who was convicted of killing a 6-year-old boy in 1992. Langley is one of the center's clients.
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"I knew most of our clients were guilty," she wrote. "It was part of why I had chosen to spend my summer working at the firm."
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The center alleged that Marzano-Lesnevich's writings would also hurt the center's ability to collect donations and other financing.

That last part, I suspect, is the center's real problem.  If it were more widely known that almost all, perhaps truly all, of the center's clients are actually guilty of horrible crimes, a good portion of the people presently donating will decide there are better priorities for their limited donation funds.

News Scan

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Inmate's "Failure to Warn" Lawsuit to Proceed:  The AP reports a federal judge in Los Angeles has refused to dismiss most of a former inmate's lawsuit claiming that the federal government was negligent in exposing him to potentially deadly disease.  Convicted drug dealer Arjang Panah was transferred to a federal prison in California's Central Valley in 2005, where he contracted coccidioidomycosis ("valley fever"), a disease caused by a fungus found in soil in southwestern United States.  District Judge Gary Feess said the government's immunity in such cases "does not apply to plaintiff's negligence claims to the extent they are based on defendants' failure to warn of the cocci outbreak." 

More Feedback on Police Lineups:  As noted in this earlier post, the New Jersey Supreme Court has ordered that state to change rules governing police lineups.  A piece in Sunday's New York Times by Erica Goode and John Schwartz reports on research raising questions about the reliability of the identification of suspects via lineups, and on efforts by some larger police departments to reduce the pressure on witness and eliminate influence by detectives seeking a suspect. 

Rethinking Clarance Thomas:  "There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarance Thomas is, to put it as bluntly as many liberals do, a dunce and a worm," notes Walter Russell Mead early in this piece from the American Interest.  While liberal pundits and pop academics have stumbled over each other to malign Thomas since the day his appointment was announced, many who actually read Supreme Court opinions have recognized that Justice Thomas' intellectual depth and understanding of the Constitution put him on par historically with some of the Court's best legal minds.  Mead points to a profile of Thomas by Jeffery Toobin in the New Yorker which finally acknowledges that "In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court."  Areas where Justice Thomas is credited with influencing the Court include the First Amendment, Second Amendment and Eighth Amendment.  While characterizing the 2008 Second Amendment decision (District of Columbia v. Heller
as a constitutional land mine for the left, Mead describes Thomas' effort to seriously restore the Tenth Amendment as "a nuclear bomb." 

Saunders on Perry and Texas DP

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How can it be a political negative for a candidate that he enforces a law the vast majority of the people agree with?  Strangely, there has been a big effort to do just that since Rick Perry entered the presidential race.

Today, SF Chronicle columnist Debra Saunders takes the contrary view (as she usually does).  She notes the statistics (provided by yours truly) that Texas is actually close to average in death sentences relative to the number of murders.  Perry's "record" number of executions simply comes from being the longest-serving governor of the largest state with a functioning death penalty.

Saunders goes on to note that President Obama may be the one with the death penalty problem.  Despite the long-standing administrative interpretation through administrations of both parties that the prescription-drug laws don't apply to drugs used by states for lethal injection, in this administration the DEA seized state supplies of the drugs.  The administration has some serious explaining to do.

CJLF Main Website Redesigned

CJLF's main website has been moved to a new host and redesigned by Irma Abella.  The new homepage features a feed with the latest posts from this blog.

The new site seems to be working well, but there are always glitches in transition, so please let us know if you see a problem.

James Q. Wilson on Crime Rates

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James Q. Wilson has this article in the City Journal on crime rates, unemployment, and the various reasons for variations in crime rates.  Some excerpts follow the jump.

Texas Pole Tax Upheld

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This is only marginally on topic, but interesting.  Texas has an entrance fee of $5 for strip joints that serve alcohol.  This has been humorously dubbed the "pole tax."  Cf. U.S. Const. Amdt. XXIV.  The Texas Supreme Court today upheld the pole tax against First Amendment challenge, reports Jim Vertuno of AP.

News Scan

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Judge Denies Komisarjevsky's Motion to Suppress Statements:  The staff of the New Haven Register (CT) report Superior Court Judge Jon Blue today denied a motion by accused murderer Joshua Komisarjevsky to suppress the detailed written and oral statements he made to police on the day of the Cheshire home invasion.  Komisarjevsky's attorneys had claimed he was sleep deprived at the time he gave his statements, and thus did not voluntarily waive his right against self-incrimination. 

Massachusetts Appeals Court Says State Can't Hold DNA: John R. Ellement of The Boston Globe reports the Massachusetts Appeals Court yesterday ruled that the government cannot unilaterally decide to keep DNA profiles of civilians who willingly provide genetic information to law enforcement as police try to solve crimes. Keith Amato voluntarily gave a biological sample in 2002 during the investigation of a high-profile murder. Another man was later convicted and Amato recovered his biological sample, but officials kept his genetic sample citing a state law that requires police to hold onto evidence in homicide cases for 50 years. The court ruled that, "DNA information is highly sensitive...citizens have a reasonable expectation of privacy in such information." 

Police Bust Greek Doughnut Shakedown: Greek police recently brought down a ring of alleged leaders of a doughnut market shakedown, reports the AP. Police received reports that three men, including a former Greek wrestling champion, were using violence to control the doughnut trade in the Halkididi peninsula. Police made the bust after conducting an undercover operation.

As Michael Rushford has noted, Kent had the dubious honor of appearing on "Hardball" to answer stand-in host Ron Reagan as Reagan fired one loaded question after the next, seldom allowing a response.  The ostensible purpose of the program was to explore Gov. Rick Perry's record on executions.  The actual purpose was to stage the "Willingham-Was-Innocent" show and paint death penalty advocates as bloodlusting hoodlums, ready to string up anyone at hand, guilty or not.

I note this because the death penalty might well become an issue in Presidential politics.  While Perry has been Governor, Texas has had vastly more executions than any other state.  With President Obama confronted with the prospect of having to run on a weak and sinking economy; sustained high unemployment; runaway debt; and an approval rating headed toward Jimmy Carter levels, you don't have to be a genius to figure out that the plan will be to make the election about his opponent's views and leadership rather than his.*

This presents a wonderful and, I must say, unexpected opportunity for a national debate about capital punishment.  A candidate has seldom been handed a more one-sided issue. 

*  The President's record on issues other than criminal law is not the subject of C&C, but has recently been noted elsewhere

Cal. JLWOP Bill Fails

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Sheila Kumar reports for AP:

Legislation intended to give juveniles a second chance after they have been sentenced to life in prison without the possibility of parole has failed in the state Assembly.

SB9 by Democratic Sen. Leland Yee of San Francisco received 36 votes Thursday, five short of the majority needed.

However, last tally I received showed the bill up to 40, just one short.

California judges already have the discretion to sentence any 16- or 17-year-old first-degree murderer to life-with-parole instead of life-without-parole.  The cases at issue are only those where the sentencing judge determined that life-without-parole was appropriate.

Update (8/26):  The final tally is 36-36 with 8 members not voting.  Four members listed as voting "aye" in an electronic vote-board snapshot yesterday afternoon are listed as not voting in the final tally:  Alejo, Campos, Hall, and Mendoza.  (In the California Legislature, there is no practical difference between not voting and voting no.  An affirmative vote of a majority of the membership is required for passage.)  Once an unpopular bill can be seen not to pass, a member can turn down the political heat by changing his vote.  Not exactly "profiles in courage" material.  Even so, it will be that much harder for these members to flip and vote for essentially the same bill next year (an election year) when Yee brings it up again.

Update 2:  Karen de Sa has this story in the San Jose Mercury News.

Texas Executions

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CJLF Legal Director Kent Scheidegger appeared on today's broadcast of Hardball on MSNBC to defend executions in Texas under Governor Rick Perry and the death penalty generally against Jordan Steiker, Professor at the Capital Punishment Center at the Texas University School of Law, and the show's replacement host Ron Reagan, Jr.   As expected, the Todd Willingham case, which is the "innocent execution" case de jour among DP opponents, was cited by the host as one example of Governor Perry's badness and the injustice of capital punishment.  After Kent dispatched the "are you concerned about that case?" question Reagan asked Kent the classic "how many innocent people must be executed?" question.  When Kent noted that opponents have not been able to produce one provable case of an innocent person being executed, Reagan quickly cited a number claimed by Amnesty International, then cut Kent off in mid-response.     

Cal. Death Penalty Bill Shelved

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Don Thompson reports for AP:

SACRAMENTO, Calif.--A legislative committee has shelved consideration of a bill that would have asked voters to close California's death row and replace capital punishment with life prison terms.

State Sen. Loni Hancock says she is disappointed. But she couldn't find the nine votes she needed to get SB490 out of the 17-member Assembly Appropriations Committee on Thursday.

The Democrat from Berkeley promised to keep lobbying lawmakers to pass her bill next year.
Seasoned political observers are generally aware that soft-on-crime bills are much less likely to pass in even-numbered years.

The lawmakers' decision came as Gov. Jerry Brown voiced support for putting "deep, troublesome issues" like capital punishment to a vote of the people.
Great.  Let's put to a vote of the people all the reforms that would have cut delays and costs that we have introduced year after year and that legislative committees have killed year after year and never allowed to get the floor for a vote.

Hancock's legislation was partly based on a recent study that found California has spent $184 million a year on death penalty cases and incarceration, yet very few condemned inmates are put to death.
And why do we incarcerate death row inmates for 20 years at great expense?  Because legislators like Hancock have killed the reforms.

News Scan

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Texas to Begin Deportation of Foreign Convicts: Mike Ward of the American-Statesman (TX) reports under a new Texas law that takes effect Sept. 1, the parole board can approve foreigners convicted of violent and nonviolent crimes for parole on the condition that they are deported to their home country. Parole officials are worried that once parolees are handed over to federal officials, they might never know whether the parolee was sent home or released in Texas. ICE officials have assured that convicts who are not deported will be returned to state prison officials. Bryan Collier, deputy executive director of the Texas Department of Criminal Justice, says about 11,500 of Texas' state prisoners are not U.S. citizens, and about 6,000 of them have a deportation order pending against them. If all of the foreign convicts were removed from Texas' prisons, the state could save more than $213 million. 

Ohio Sets Two Execution Dates for 2013: Andrew Welsh-Huggins of the Associated Press reports the Ohio Supreme Court set two new execution dates for 2013, the furthest into the future the court has ever scheduled executions. One of the execution dates was set for Steven Smith, who raped and killed his girlfriend's 6-month-old daughter 1998. The number of executions scheduled in Ohio from this September to May 2013 is now 10. Ohio has enough pentobarbital to last through February. In a court filing earlier this month, Ohio officials said that they "recognize that the feasibility of using pentobarbital, as the drug administered in defendants' primary method of execution by lethal injection, could become an issue, which could require further modifications in defendants' procedures."

Cop Killer's Lawsuit Denied: Robert Gearty of the New York Daily News reports convicted cop killer Lee Woods' civil suit against New York City and five Rikers Island guards was rejected. Woods was seeking damages for a purported 2007 jailhouse beating in which Woods charged corrections officers with breaking two of his ribs and his eye socket and tearing out some of his dreadlocks. The city acknowledged that Woods was injured, but said he was hurt after flinging food and swearing at the guards. Jenny Weng, the lawyer for the city, told the panel that the officers were just doing their job. Woods was sent back to prison empty handed. The mother of slain Officer Russel Timoshenko said the suit was "ridiculous" and "disgusting." 

News Scan

Legislator, Victims' Group Demands Released Inmates Return to Prison: Red Bluff Daily News (CA) reports California Assemblyman Jim Nielsen and Crime Victims United of California are calling for the return to custody of dozens of inmates released on parole.  The inmates' releases were dictated by a 2010 Ninth Circuit decision that was overruled by the Supreme Court earlier this year. (See Swarthout v. Cooke.)  Nielsen says the Ninth Circuit ruling "has placed the public in danger," and the Governor and state parole board should take appropriate action to rescind the inmates' early releases.

With Death Penalty No Longer an Option, Charges Dropped:
Prosecutors will "reluctantly" dismiss charges in two cases against Paul Runge
, 41, an Illinois inmate serving life in prison for the sexual assault and murders of Yolanda Gutierrez, 35, and her daughter, Jessica Muniz, 10. Citing Illinois's recent abolition of the death penalty, DuPage County State's Attorney Robert Berlin announced today that "it would not be a prudent use of the resources" of the office to try Runge for the 1995 murders of sisters Dzeneta and Amela Pasanbegovic. In March, Cook County prosecutors dropped three murder charges against Runge, also citing the state's abolishment of the death penalty. Lisa Balde of NBC Chicago has this story.

New Jersey Supreme Court Issues Ruling on Eyewitness ID's: Beth DeFalco of the AP reports the New Jersey Supreme Court today ordered changes to the way eyewitness identifications are use in court, saying the current system is not reliable enough. The case against Larry Henderson, convicted of manslaughter in 2004, prompted the court to order a yearlong review of police identification procedures. The review found that the test used in 48 states and the federal system to asses the reliability of witness identification was flawed and inadequate. The ruling is being closely watched, as New Jersey has long been at the forefront of identification standards and was the first state to issue guidelines for lineups designed to prevent mistaken identifications.

News Scan

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Rick Perry and Texas Executions: Robert Barnes of The Washington Post has this story on Texas Governor Rick Perry and the fact that Texas has more executions than any other state. According to the Criminal Justice Legal Foundation's Kent Scheidegger, the answer to why Texas has the most executions is "(1) size, and (2) not being obstructed by hostile courts." In Texas, governors are given little opportunity to slow down the execution process. In Texas the governor does not sign death warrants or set execution dates, and the governor is forbidden by the state constitution from calling a moratorium on executions. Local prosecutors make the decision to seek the death penalty, and clemency is only allowed if the Board of Pardons and Paroles recommends it. On the campaign trail last week, Perry said the death penalty is a decision to be made by states and said, "I will suggest to you that I'm going to work a whole lot harder on a balanced budget amendment to the United States constitution than I am for an amendment that will ban capital punishment."

Dirt From Serial Killer's Backyard For Sale: Pat Galbincea of The Plain Dealer (OH) reports Eric Gein of Serial Killers Ink is selling dirt collected from convicted serial killer Anthony Sowell's backyard for $25 per gram. Gein claims the dirt is valuable because Sowell's victims were buried in it and that, as of Monday, he had sold six bags. Gein admits he likely will not not sell any soil to locals because, "[a]fter all, all a Clevelander has to do is go to Imperial Avenue and get their own." Emily Valdez of Fox 8 Cleveland has this report on the reactions of the victims' family members.

Florida Supreme Court Lifts Stay of Execution for Cop Killer: Matthew Hendley of Broward-Palm Beach New Times reports cop killer Manuel Valle is scheduled to be executed on September 1 after the Florida Supreme Court today lifted his stay of execution. The stay was ordered after questions arose regarding Florida's switch to pentobarbital, which had not previously been used in an execution in the state. The state Supreme Court ruled unanimously that use of the new drug is constitutional.

Illinois Revokes Health Care Licenses From Sex Offenders: The Associated Press reports a new law went into effect over the weekend in Illinois that allows the state to permanently revoke health care licenses from registered sex offenders and people convicted of violent felonies. Under the new law restrictions can also be imposed after charges have been filed but before conviction, and the state can require those charged with sex crimes or forcible felonies to see patients only in the presence of another health care professional. Several doctors have filed lawsuits against the Illinois Department of Financial and Professional Regulation, claiming the state's action is creating a "double jeopardy" situation because they have already been disciplined and had their medical licenses restored after temporary suspensions.     

News Scan

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Dr. Petit Can Attend Entire Trial, Judge Rules:  New Haven Superior Court Judge Jon Blue ruled today that surviving victim Dr. William Petit can attend the entire trial of Joshua Komisarkevsky, the second man to be tried for the brutal killings of Petit's wife and two daughters.  Komisarjevsky had filed a motion to sequester Petit, claiming Petit, who will testify in the case, could be affected by the testimony of other witnesses in the case.  Komisarjevky's trial begins next month.  Randall Beach of the New Haven Register has this story.

Mass. High Court Orders New Trial for Landlord Killing:  Denise Lavoie of the AP reports the Massachusetts Supreme Judicial Court today ordered a new trial for Nino DiPadova, convicted of murder for stabbing his former landlady 100 times.  DiPadova, who had a long history of serious mental illness, told police that voices told him to kill 56-year-old Nancy Carignan.  DiPadova also admitted to using cocaine on the night of the killing.  The court ruled the jury instructions given at trial explaining the interrelation between mental disease and voluntary intoxication was erroneous.  "In these circumstances, the defendant was entitled to an instruction informing the jury that, if his mental illness alone had caused him to lack criminal responsibility at the time of the murder, any drug use that increased or aggravated his condition did not negate his lack of criminal responsibility."  The court also revised its standard model jury instructions related to this issue. The case Commonwealth v. DiPadova can be accessed through the Massachusetts court website.

Supreme Court to Revisit Eyewitness Identifications:  Adam Liptak has this piece in the New York Times about the upcoming U.S. Supreme Court case Perry v. New Hampshire, addressing the restrictions for admitting out-of-court eyewitness identifications.  The court has not addressed eyewitness evidence since 1977.
The Concord Monitor has this interview with presidential candidate Ron Paul.  He claims to have changed his view on the death penalty based on "study."  From what he says, it appears that his study consists of lapping up the anti side's propaganda the way a dog laps up antifreeze, completely unaware it is poison.

For example, "It's so racist, too. I think more than half the people getting the death penalty are poor blacks."

What did he study to come up with that gem?  The DPIC website?

We don't have firm numbers on "poor," but we have reams of data on race.  As of 12/31/09, the population of death row was 3,173, of whom 1,317 were black. (BJS, Capital Punishment in the United States, 2009, Table 4.)  That is 41.5%, significantly less than half, but I won't quibble over the 8.5%.  Far more important is the logical leap that this ratio somehow indicates racism.

What percentage of murderers are black?  It runs pretty consistently about half.  For 2009 single-offender, single-victim homicides where the race of the offender is known, there were 6,631 total with 3,106 black perpetrators, 46.8%. (Sourcebook of Criminal Statistics, Table 3.129.2009.)  Other years are similar.

Given that the percentage of blacks on death row is about the same (actually a tad less) as the percentage of murderers who are black, how does Paul make the leap to "so racist"?  Probably by falling for the Fallacy of the Irrelevant Denominator and comparing the percentage on death row with the general population.  But the general population is 99+% nonmurderers and hence irrelevant to a calculation about race and the death penalty.

You don't have to be a genius to recognize the correct denominator in this problem.  You only have to think about it a little.  By failing to do so, even while claiming to have studied the problem, Paul demonstrates appalling shallowness of thought.

If you research the issue even a little, you will find that in more sophisticated studies -- even those conducted by the opponents themselves -- the race-of-defendant-bias claim has been blown out of the water.  The studies are discussed in my 2003 Engage article and my 2011 Connecticut Death Penalty Report, beginning on page 14.  For decades, the main controversy has been the race-of-victim-bias claim.  Even there the opponents are off-base, but it takes more digging to see that.  For race-of-defendant, though, it does not take any digging at all.  It's right on the surface, for anyone who bothers to look.  Paul apparently did not.

To say that the death penalty is "so racist" is to say that the people who administer it are racist -- the prosecutors who seek it, the jurors who vote for it, and the judges who impose it.  That is an incendiary allegation, not to be made lightly.  But Ron Paul did make it lightly, based on skimpy information and shallow thought.
A murderer a day shy of his 18th birthday is categorically exempt from a death sentence.  Should that arbitrary cut-off based on chronological age alone similarly exempt him from a true life-without-parole sentence, regardless of the circumstances of the crime and regardless of the length of his criminal record?  Incredibly, a bill to do just that has made it to the floor of the California Assembly.

Margaret Bengs has this article in the Sacramento Bee:

Prosecutors and judges already have discretion in seeking and imposing life-without-parole sentences and have reserved it for the "worst of the worst." Most teen criminals in California are tried in the juvenile court system and must be released at age 25. Of those tried in adult court, only first-degree murder with special circumstances can result in life without parole, and only for 16- and 17-year-olds. All states allow juveniles to be tried as adults in criminal court under certain circumstances, according to the U.S. Justice Department.
James Bovard has this article in the WSJ about the Obama Administration making subsidized housing even worse than it presently is.

Poverty is correlated with crime not because poverty causes crime but because irresponsibility is correlated with both.  That is, while a good many responsible people are poor through no fault of their own, the ranks of the poor include proportionately more irresponsible people than the ranks of other income strata because irresponsible people tend to be poor.  Those irresponsible people are more likely to engage in crime and otherwise behave in ways that make life difficult if not miserable for those around them.  It is the responsible poor people who suffer most from the actions of the irresponsible ones.

A government that really cared about the responsible poor people would crack down on the irresponsible ones.  A government that cares more about demographic numbers than real people would instead obsess about a crackdown on irresponsible behavior having a "disparate impact" on a demographic category of people, defining that category by race, sex, or income without differentiating responsibility versus irresponsibility.  That is exactly what the Obama Administration is doing, cracking down on local governments that try to crack down on people who raise hell, according to Bovard.

Nevertheless, middle-class blacks are the program's least inhibited critics. Sheldon Carter of Antelope Valley, Calif., testified at a recent public hearing on local Section 8 controversies: "This is not a racial issue. It is a color issue. The color is green and it's my dollars." Shirlee Bolds told Iowa's Dubuque Telegraph Herald in 2009: "I moved away from the city to get away from all this crap. Dubuque's getting rough. I think it's turning into a little Chicago, like they're bringing the street rep here."
We need to wake up, folks.  The great divide in America today is not between white and black or rich and poor or labor and management or any of the old divisions.  The great divide is between the responsible people on one side and the irresponsible people and their apologists on the other.

News Scan

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U.S. to Stop Deporting Most Illegal Aliens:  Alicia A. Caldwell of the AP reports that many illegal immigrants who have no criminal record will be allowed to stay in the country and apply for a work permit under new rules from the Department of Homeland Security. DHS Secretary Janet Napolitano announced yesterday that the department will focus on deporting illegal immigrants who are criminals or pose a threat to national security or public safety. This decision comes after continued protest by immigrant communities which have criticized the DHS for focusing too much on deporting those whose only offense is being in the country without the proper documents or who have been arrested for traffic violations or other misdemeanors.  House Judiciary Committee Chairman Lamar Smith, R-Texas, said the shift is the administration's "plan to grant backdoor amnesty to illegal immigrants."

Missouri City Sets Curfew After Flash Mob Shooting: After a weekend shooting that injured three teenagers who were part of a large late-night "flash mob" gathering in Kansas City, the city on Thursday passed a curfew as early as 9 p.m. for people under age 18, reports Kevin Murphy of Reuters. The ordinance will allow police to issue citations to parents whose children violated the curfew. Passing an ordinance so quickly is unusual, but council members said they had feared a repeat of potentially dangerous gatherings this weekend. 

Lawyer Claims Teenage Girl Will Someday Forget Sex Crimes: Tom Gilchrist of The Saginaw News (MI) reports that the lawyer for former Michigan softball coach Mickey T. Gotwalt, 52, argued to a judge that the 14-year-old female victim of his client's sexual assault crimes will someday forget all about it. Gotwalt pleaded guilty to three counts of second-degree criminal sexual conduct against the female student in return for dismissal of nine other alleged crimes against her. Gotwalt's attorney, Thomas A. Warda of Flint, MI, said to the judge: "I mean (Gotwalt) didn't kill this girl... I mean this isn't - I don't think she's gonna have psychological injury the rest of her life. I mean he'll be in prison, but, you know, she'll have forgotten all about it at some point."  Gotwalt was sentenced to a minimum of seven years and two months in prison.

Tuscan Friars Ask God to Deliver Diarrhea for Basilica Bible Thief: Tom Kington of the Guardian (UK) reports a group of Franciscan friars, angry over the theft of bibles from their church in Florence, have taken an unusual approach to get the thief to come forward by praying that the thief gets struck down by diarrhea and sees the error of his or her ways.  One of the friars admits that it is an unorthodox request but it will be forgiven. "It is not exactly clean language," the friar said, '' but we couldn't put up with it any longer. The Lord and the faithful will understand." Hat tip to Kenneth Anderson at The Volokh Conspiracy for the link.  


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Remember "Hope and Change?"  Remember "a new way of doing things in Washington?"  That was Barack Obama running in 2008.

This was President Obama in 2009:  "Don't think we're not keeping score, brother." That's what Obama said to Rep. Peter DeFazio in a closed-door meeting of the House Democratic Caucus, when DeFazio had gotten out of line on the stimulus vote.

And this is the Obama Administration today:  

The Justice Department is investigating whether the nation's largest credit ratings agency, Standard & Poor's, improperly rated dozens of mortgage securities in the years leading up to the financial crisis, according to two people interviewed by the government and another briefed on such interviews.

You might remember that this is the same Standard & Poor's whose downgrading of U.S. debt infuriated the administration and set off the most recent slide in the President's approval, now down to a dismal 39%.

It's true that the probe is not, for the moment, criminal.  But you can be sure the people at S&P know the Criminal Divsion is just one floor down from the Civil Division in the Main Justice building.

So what's going on?  Is the Hope and Change Adminstration showing S&P that there's a price to be paid for dissin' the Prez?  And that the price is intimidation by our "no-politics-in-these-parts" Justice Department?  


The Abuse Excuse

Burglar/robber/rapist/murderer Jerry Terrell Jackson is set to be executed at 9 p.m. EDT in Virginia.  Matthew Ward of Reuters reports:

Jackson, on death row since 2003, entered the Williamsburg apartment of 88-year-old Ruth Phillips on August 26, 2001. He told police he did not know Phillips was home.

But she was lying in bed at the time and confronted Jackson. She told him to take what he wanted and leave, but he held a pillow against her face until she stopped screaming, raping her at the same time.

*                         *                        *

A fingerprint on a piece of paper inside a wallet next to Phillips' bed and DNA from hair found on and around her body implicated Jackson, and a jury found him guilty of capital murder.

So what's to argue about?  A horrible crime against a helpless victim with no doubt of guilt  -- by no stretch of the imagination could execution of this sentence be considered a miscarriage of justice except by the few people who think all death sentences are unjust.  Well, you guessed it, it's the abuse excuse.

Jackson's lawyers in the appeal argue that his trial defense failed to present an adequate picture of the sexual, physical and psychological abuse he endured as a child.

Notably, Jackson's brother and sister were not called to testify at trial, reportedly because Jackson's defense believed it would harm his case as his brother suffered the same abuse and has no criminal record.
And there is the fallacy of the abuse excuse.  Yes, it's a terrible thing if someone has a bad childhood.  But regrettably lots of people do, and very few of them become murderers.  The decision to rape and murder remains an act of free will no matter how bad your childhood was.

States should have the authority in capital cases that they have in noncapital cases to decide that the probative value of this evidence is just not worth the cost of protracted litigation over whether the defense lawyer dug up and presented enough of it.  They did, until the Supreme Court fabricated a constitutional mandate out of thin air in Lockett v. Ohio and Eddings v. Oklahoma.  Justice White was right all along.  It is high time for the Court to acknowledge and correct its error.

For the present case, the Court denied a stay 7-2, with Justices Ginsburg and Sotomayor dissenting.

Update:  The execution was carried out without incident.  Frank Green has this story in the Richmond Times-Dispatch.
Rong-Gong Lin reports in the LAT:

Los Angeles County supervisors on Tuesday condemned Sacramento's cost-cutting decision to keep some state prisoners in local lockups and have parolees be supervised by county agencies, asserting that both would lead to an increase in crime.
*                               *                            *
[County Supervisor Michael] Antonovich said it is likely that Los Angeles County will run out of jail beds unless it "uses other models of supervisions such as electronic monitoring, work furloughs, weekenders and GPS tracking."

"It's irresponsible for us to turn around and dump these [prisoners] into our communities with an ankle bracelet and hope they don't re-offend," Antonovich said. Without finding a way to increase prison time, Antonovich said, "I believe we'll have a spike in crime."

News Scan

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Proposed California Bill Would Reform State Parole System: Maria L. La Ganga of the Los Angeles Times reports a bill introduced Wednesday by Sen. Ted Gaines (R-Roseville) to reform California's parole system was inspired by the Jaycee Dugard case. Senate Bill 391 would reverse a 2008 state Supreme Court decision that requires the California parole board to to look at a convicted felon's behavior in prison and not the crimes that put them there. If the bill is passed, the state parole board would be allowed to place more emphasis on the prisoner's crime and prior convictions. "Let's keep our worst criminals behind bars and keep California safe," said Gaines yesterday during a press conference, supported by several district attorneys and other California legislators.  Nanette Miranda of KABC Sacramento has more here.

Virginia Scheduled to Execute Murder-Rapist: Matthew A. Ward reports in Reuters that Jerry Terrell Jackson, 30, is scheduled to be executed in Virgina at 9pm local time today by a drug cocktail that includes pentobarbital.  Jackson has been on death row since 2003 for the 2001 rape and murder of a 88-year-old woman. Jackson has an appeal currently before the Supreme Court. Governor Bob McDonnell declined to grant clemency last week. Jackson will be the first inmate executed in Virgina this year.

Prison Population in England and Wales Hits New High: The prison population of England and Wales has hit a new record high of 86,608 inmates after nearly 700 rioters were arrested this week, reports Alan Travis in the Guardian (UK). 65 percent of those arrested for riot-related offenses have been remanded in custody - a sharp increase from the "normal" remand rate for serious offenses of 10 percent, according to the Ministry of Justice. Prison governors say the system faces "an unprecedented situation" that will require emergency contingency measures if the number continues to rise, but that they are confident the situation can be handled safely.

California Supreme Court Affirms "Ninja Prowler" Death Sentence:
Richard K. De Atley of The Press-Enterprise (CA) reports the California Supreme Court has upheld the 1998 death sentence of 40-year-old David Lynn Scott, the so-called "Ninja Prowler" who terrorized Riverside County with a series of sexual assaults nearly 20 years ago. Scott was sentenced to death for the 1992 murder of Brenda Gail Kenny, 38, whom he raped and stabbed to death during a burglary of her apartment. Witnesses say Scott would break into apartments or houses at night, dressed in dark clothing like a ninja and carrying a pistol and two swords. He was convicted of a total of 15 counts stemming from six attacks. 

Juveniles and Accountability

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Craig Lerner of George Mason School of Law has this article on SSRN, forthcoming in Tulane Law Review, on the Supreme Court case of Graham v. Florida, which held that a person 17 years, 364 days old on the date of a nonhomicide crime cannot be sentenced to life without parole.  Lerner contends that Graham is based on a simplifying assumption and a moral claim, both of which "are demonstrably false in a nontrivial number of cases." The full abstract is after the jump.

Culture Outflanks Law

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The British have their hooligan rioters and we have our flash mobs.  The authorities in both countries stand by largely inert and listless as Those Who Are Entitled help themselves.  In a way, it makes sense.  They believe themselves entitled because we have spent two generations telling them so.

We didn't used to have a culture like that.  Some democratic countries still don't.


News Scan

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California Says It Will Meet Prison Reduction Goal: California prison officials announced yesterday they expect to meet their long-term goal of reducing the prison population by 33,000 or 23 percent in an effort to relieve overcrowding in state prisons and provide better medical and mental health care for inmates. The state is relying primarily on a controversial law set to take effect October 1 that will shift thousands of low level offenders to local custody. The Department of Corrections and Rehabilitation's projection conflicts with a report issued by a nonpartisan Legislative Analyst's office earlier this months urging the department to seek deadline extensions. Don Thompson of Associated Press has this story.

Missouri Maintains Death Penalty Procedure: Jim Salter of AP reports that U.S. District Judge Nanette Laughrey has rejected a challenge by Missouri inmates to the state's execution protocol. The lawsuit claimed that Missouri does not get valid prescriptions for its execution drugs and challenged the state's use of non-medical personnel to administer the drugs intravenously. Judge Laughrey ruled the inmates failed to show that anyone suffered as a result of non-medical personnel delivering the drugs. "Plaintiffs present neither an injury already suffered nor demonstrate any certainty that Plaintiffs will ever be subject to severe pain..." Joseph Luby, a Kansas City attorney who represented some of the inmates, said it was unclear whether they would appeal.

Plea Bargains Necessary, But Risky: Paul Rosynsky of the Oakland Tribune has this piece on the necessary, but sometimes troubling, function of plea bargaining in our criminal justice system. About 90 percent of all criminal cases charged in California are settled through plea bargains, according to Loyola Law School professor Laurie Levenson. Levenson says the process is essential given the criminal justice system's dwindling resources, but can be risky. Highlighting the issue are the cases of Lawrence Denard and Willie Torrence, charged with shooting to death three-year-old Carlos Fernando Nava during a failed attempt to kill two rivals. Both men have violent criminal histories, but have been free to walk the streets as a result of plea bargains. "Every time you make a deal, you have to worry, 'Is this the bad apple that is going to cause trouble down the road?' " Levenson said. "It is the risk inherent in plea bargaining, and you hope you make the right decision."

Police Question Dugard Kidnappers About Other Missing Girl: Hayward, California investigators last week questioned Phillip and Nancy Garrido, the abductors of Jaycee Dugard, about the unsolved disappearance of nine-year-old Michaela Garecht in 1988. Phillip previously told police that he was responsible for at least three more abductions and dozens of date rapes, but denied responsibility for the high-profile disappearance of Garecht. Phillip and Nancy both continued to deny involvement during their recent interview with police, but investigators plan to look at evidence taken from their Antioch compound. Eric Kurhi of the Oakland Tribune has this story.

Saving on Capital Defense Costs

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Kent asks why capital defense costs more than it needs to.  His answer is apt to the Loughner case in which the question arises, but let me suggest a broader answer.

Capital defense costs more than it needs to because we indulge its excesses.  When we stop indulging them, they'll disappear.

Case in point:  Timothy McVeigh.  McVeigh's defense cost $13,780,835.83.  And it wasn't even a real defense.  It was a story woven about some third character who was said to have been involved.  Even assuming the story were true, which it was not, it would not have constituted a defense or even mitigation.  If Mr. X were also involved, that would not dilute McVeigh's actions or his culpability for them.  And this would be true even if McVeigh had not gone on "Sixty Minutes" to calmly explain, not merely that he had done it, but why he had done it (as part of an undeclared war on the USA).

It's beyond absurd that the taxpayers should have had to pay nearly fourteen million dollars for the non-defense of a man who bragged about his guilt.  Maybe we thought we could afford absurdities at the time, but we know now that we can't.

To coin a phrase, we need to cut and cap.  States should cap defense expenditures in capital cases at $1,000,000.  The idea that we cannot fairly determine factual guilt and blame for that amount of money is ridiculous.  If, in some wildly exceptional case, the court were to determine that it was impossilbe to provide a constitutionally adequate defense for that amount, the court could add up to another $250,000.  But that's it.  The days of spending without limit are over.

We don't need to end the death penalty.  We need to end the limitless indulgence we have given those who seek to bleed us dry to evade it. 

Marc Lacey reports in the NYT:

Jared L. Loughner's grandparents and great-grandparents died years ago, but lawyers defending Mr. Loughner in connection with a Jan. 8 shooting spree outside Tucson are delving into their lives and those of numerous other Loughner ancestors in an apparent effort to show that mental illness runs in the family.
And who is paying for that?  You are, if you pay US federal taxes.

Why?  Family history of mental illness is, of course, a risk factor.  But the probative value of such a history in diagnosis is minimal compared to direct observation and testing and the person's history of behavior.  Why do we pay for such extensive and expensive investigation of material with such limited probative value?

The defendant has a right to effective assistance, but he does not have a right to a blank check.  We need some reasonable limits on defense expenditures.  This is way beyond any reasonable limit.

Thanks to SL&P for the link.

Finding Money for Incarceration

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Liberals are arguing that, in order to save money (they've recently discovered that saving money is important), we need to cut back on the number of criminals we imprison.  They've spent years losing the argument that criminals don't deserve to be in the slammer, but they're increasingly winning the argument that it costs too much to keep them there.

What to do?  Well, we could remind ourselves that securing the physical safety of our citizens from dangerous people is government's first obligation.  We could also remind ourselves that just punishment should not be left to accountants, however important accountants might be in other contexts.

Failing that, however, we could quit giving hundreds of millions of dollars to terrorists and criminals and use that money to fight them instead of reward them.

The story, Taliban, criminals get $360 million from US taxes, is here.

A Happy Ending, For Once

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Jeri Clausing reports from Albuquerque for AP:

Police are crediting an alert neighbor with saving a 6-year-old girl from a man who snatched her and shoved her into a van as she walked home from a neighbor's house where she had been sent to pick up tostadas.
*                             *                            *
A neighbor, Antonio Diaz Chacon, heard commotion and saw the abduction just before 5 p.m. Monday. Police said he hopped in his car and chased the van and the van's driver tried to lose Chacon but crashed into a light pole.

Give Mr. Chacon a medal.

News Scan

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Montana State Prison Modifies Execution Protocol: KXLH Helena News reports the Montana State Prison has modified its protocol for conducting executions. The review resulting in the changes was in response to an execution date set for last fall, which was eventually vacated by the courts. Like many other states, Montana will now use pentobarbital due to the inability to obtain sodium thiopental. Other changes include additional safeguards to ensure the drug is properly administered, the establishment of security zones, a reduction in the number of media witnesses, and clarifying the time line of an execution from the receipt of the death warrant to post-execution procedures.

Convicted Child Molester Hasn't Served One Day of 15-Year Sentence:
Chuck Williams and Jim Mustian Melvin C. Moseley has been free since he was sentenced to 15 years in prison in 2003 by Superior Court Judge Douglas C. Pullen. After being sentenced Moseley was allowed to remain free on bond by Pullen while post-sentencing psychological and sexual testing was conducted, which is how the case has stood for almost eight years. Following a hearing today in front of Judge John Allen, Moseley was taken into custody. Allen told 70-year-old Moseley and his lawyer that the original 15-year sentence has been filed with the clerk's office. "The defendant will surrender and will sit in jail until we have a hearing," Allen said. It is unclear how much Judge Allen can do under Georgia law. Pullen has called the Moseley case the worst mistake of his 40 years as a prosecutor and judge.

Supreme Court Ethics

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Nina Totenberg has this article for NPR on the controversies over the Supreme Court, judicial ethics, and H.R. 862, the bill to make the Code of Conduct applicable to the high court.

While I have been critical of Ms. Totenberg's coverage of the Court on other occasions, I find this piece, well, "fair and balanced."

Hardball Defense Tactics

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Del Quentin Weber reports in the WaPo:

Several security guards at the District's federal courthouse have landed in foul territory for accepting free baseballs autographed by superstar pitcher Roger Clemens shortly after a judge last month declared a mistrial in his perjury prosecution.

WSJ Comments on Europe

Here are two more voices in the "chorus" mentioned in Bill's post.  Joyce Lee Malcolm has this op-ed on the British riots:

As wild gangs of youths burned homes, shops and cars and severely beat anyone who tried to stop them last week, English people tried to defend themselves. Their desperation triggered a 5,000% increase in purchases of baseball bats from Amazon.

This is a sad symbol of the failure of the British approach to crime--with its sympathy for offenders, intolerance of self-defense, and unwillingness to pay for adequate crime control. A people once proud of their peaceful country and unarmed policemen had to resort to clubs to protect life and limb.

Bret Stephens has this column noting more generally that no, the European model doesn't "work" and that crime has been rising in the EU even as it falls in the US.

We have linked to quite a bit of commentary on the British riots lately, but I think there is an important lesson here.  This is where the self-proclaimed "smart on crime" people want to take us.

Comment on the Leal Case

Lester Jackson has this article in the American Thinker on the remarkable dissent of four Justices in Leal v. Texas.  Even though the State was entitled to prevail under clearly established precedent, the dissent thought a stay should be granted because Congress might enact new legislation.

The Welfare State Riots, Part IV

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Social critic Peter Hitchens adds his voice to the chorus pointing to England's overgrown welfare state as the godfather of the riots:

Say to [the Prime Minister]...that the police (and responsible adults) should be free to wallop louts and vandals caught in the act, that the police should return to preventive foot patrols, that prisons should be austere places of hard work, plain food and discipline without TV sets or semi-licit drugs, and that wrongdoers should be sent to them when they first take to crime, not when they are already habitual crooks, and he will throw up his well-tailored arms in horror at your barbarity

Water cannon and plastic bullets indeed. What an utter admission of failure, that after 50 years of the most lavish welfare state in the solar system, you cannot govern your country without soaking the citizenry in cold water and bombarding them with missiles from a safe distance. Except, of course, that it is because of the welfare system that this is so.

Hitchens' piece, published in the Mail Online, is here.

Druggies Rejoice!

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When you knock over the gas station or the liquor store to get some cash for your next hit, it's not your fault.  It's those darn neurons.

We just now got the news.  Being an inveterate druggie isn't a moral problem or a criminal problem:

It's a brain problem whose behaviors manifest in all these other areas," said Dr. Michael Miller, past president of ASAM who oversaw the development of the new definition. "Many behaviors driven by addiction are real problems and sometimes criminal acts. But the disease is about brains, not drugs. It's about underlying neurology, not outward actions."

So, please, will you Puritanical zealots quit fretting about "outward actions?"  The old excuse was boys-will-be-boys.  That's passe'.  Please get with it:  It's brains-will-be-brains.

"The disease creates distortions in thinking, feelings and perceptions, which drive people to behave in ways that are not understandable to others around them," Hajela said in a statement. "Simply put, addiction is not a choice. Addictive behaviors are a manifestation of the disease, not a cause."

It's a disease, not a crime.  Have I heard that before?  Hmmm, maybe the old versions aren't that passe' after all.

"So, we have to stop moralizing, blaming, controlling or smirking at the person with the disease of addiction, and start creating opportunities for individuals and families to get help and providing assistance in choosing proper treatment," Miller said.

Finally, we get to the bottom line, not that it's a surprise.  Turn away from all that moralizing, blaming, controlling and smirking.  Or, to state it more succinctly, put away that ancient notion that human beings are responsible for what they do.  Other people might be  --  like police and prosecutors  --  but if you're high as a kite thoroughly enough and often enough, you get a free pass. 


The Welfare State Riots, Part III

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Kent and I have blogged about the increasingly undeniable fact that the riots in England take root in a culture of grievance and entitlement.  It's the culture pushed upon us by an overgrown welfare state, where handouts count and morals don't.

As if to make the point in bold relief, the Telegraph has this article about the mother of a 13 year-old rioter.  Momma has identified the source of the trouble, that being  --  guess what  -- the state.

Not all of her thinking is distorted.  She turned her son in to the police, no longer able to control him.  She is also correct in thinking that the state has a hand in his dysfunctional life  --  but not in the way she conceives of it.

Other than that, her attitude is a case study in what welfare state culture has brought us.  It's ugly, and it's coming to a city near you (if it hasn't already):

The boy, who cannot be named because of his age, was one of the very few defendants to walk free from court, after receiving a nine month referral order for burglary and violent disorder.... 

[His mother] is on benefits, does not live with the boy's father and has 10 other children, the court heard.

Outside court she told reporters she was ''ashamed'' of her son.... 

But the woman also suggested her son was not entirely at fault, when asked who she blamed for the looting.

''The government,'' she replied, her son by her side, adding: ''There is f*** all for them to do.''

The boy's father claimed his son suffered ''police brutality'' because his parents appeared to be under the impression when they took him to police on Friday he would be released before going to court.

Instead he was kept in police cells over the weekend.

And there you have it.  She's on the dole, doesn't live with the father and has ten other children.  The father, wherever and with whomever he might be hanging out just now, thinks the kid is a victim of police brutality because he was held in jail for the weekend.

We don't need to know "why they hate us."  What we need to know is why we think so little of ourselves that we continue to finance an unaffordable, standards-free welfare state that produces a child who, at 13, may already be an irredeemable criminal disaster.


News Scan

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Wild Horses to Help Patrol U.S. Border:  Teri Vance of the Nevada Appeal reports seven wild horses from Nevada are on their way to the Mexican and Canadian borders after being tamed by inmates in a Carson City prison.  Border Patrol has usually worked with the Colorado Department of Corrections in obtaining wild horses to patrol remote areas along the border, but is looking to expand the program to find horses closer to the border.  The horses are rounded up by the Bureau of Land Management and brought to the minimum-security facility, where inmates worked one-on-one with them for 120 days. 

Convicted Serial Killer Seeks New Trial:  Jen Steer of (OH) reports attorneys for convicted Ohio serial killer Anthony Sowell filed a motion for a new trial on Friday, alleging jury misconduct.  While speaking to the media last week, the jury foreperson said Sowell "played to the camera" and the jury during trial, and even winked at her once.  Sowell's defense team says this incident and other news stories indicate the foreperson developed a bias against Sowell.

Every now and again, a single line from a news story serves as both a wake-up call and a window of revelation.  I just read such a line in the story about the sentencing of Anthony Sowell.


Acting on the jury's recommendation, an Ohio judge sentenced Sowell to death for kidnapping and murdering 11 women over a two year period starting in 2007.  The defendant's apparent reason for kidnapping the women was to rape them; their corpses were found nude from the waist down.  The story continues (emphasis added):

Sowell, 51, never looked at victims' relatives as they spoke during the sentencing hearing. He also ignored the judge when asked if he wanted to speak....Sowell's defense team, John Parker and Rufus Sims, rested without calling witnesses and instead focused on sparing his life with sympathetic testimony about his troubled childhood, his Marine Corps service, and good behavior while serving 15 years for attempted rape.

In academic debates, we hear various, frequently abstract reasons for ending capital punishment.  Here, by contrast, we have a specific case and a specific killer.  What we get are no witnesses, combined with the notion that a serial rapist-killer should be spared because  --  all together now  --  he refrained from slugging the prison guards while serving his prior 15 year sentence for attempted rape.

Do these people even hear themselves?

News Scan

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Wisconsin Teen Targeted Whites:  Less than a week after the local police chief told reporters that the outbreak of beatings and robberies during the August 4 opening of the Wisconsin State Fair were not racially motivated, a 16 year-old black teen arrested for a robbery during the melee told police that he targeted whites, according to this AP story.  Eyewitnesses and victims told reporters that at around 7PM random attacks began inside the fairgrounds which escalated after the fair's 11:00 PM closing into reportedly hundreds of blacks roaming in groups outside the fairgrounds randomly attacking whites.  Details of the crime spree were reported by Don Walker, Mike Johnson and Breann Schossow last week in the Milwaukee Journal Sentinel.  

Riots in England Put Focus on Juvenile Justice:  Kent's post earlier today noted the toughening attitudes toward juvenile justice in England in the wake of the riots.  Also, a profile of offenders in the Daily Mail conflicts with the popular impression that all the rioters were the poor, underprivileged offspring of the working class.  "Poverty, social exclusion, poor education - these are just some of the theories put forward to explain the recent rioting. Yet shockingly, among those in the dock accused of looting are a millionaire's grammar school daughter, a ballet student and an organic chef. A law student, university graduate, a musician and an opera steward also said to have taken part."

Blather Unbound

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"Why do they hate us?"

You might remember this was the universal cry of a segment of the Left who could not understand  --  or pretended not to understand  --  that the reason for the 9-11 attacks was doctrinaire Jihad against the West and, in particular, the United States.  In the minds of those Sixties holdovers who still pine for Ho Chi Minh and Che Guevara, no crime in or against the United States cannot be excused (or "explained," as they sometimes like to put it when they feel the need for slightly better PR) by recourse to listing the multitudinous sins our country has committed against............well, against the Grievance Group du Jour.  Hence, the slogan, "why do they hate us," implying, without having to argue directly, that we brought it all on ourselves.

Same deal in England, which shares a similar overload of liberal guilt and concomitant paralyzing masochism in the face of crime.  This was on full display in the opening stages of the recent riots there.  The tepid police response only fueled the rioters' gleeful rampage, as I argued here.

It didn't take long for the British contingent of the Why Do They Hate Us crowd to chime in.  It's not that they condone the rioting, exactly  --  oh no, not that!  --  as that they see it as providing a moment for seeking "mutual respect."

And no, I am not making that up.  It's not a time to put these hoodlums in the slammer for smashing a store window and making off with an iPod or a plasma TV.  Nope, it's time for the store owner, and the rest of us, to do some introspection about being racists.

Paisley Dodds and Jill Lawless report for AP from London:

It wasn't long ago that David Cameron launched what became known as his "Hug a Hoodie" campaign -- an initiative born of a public outcry over Britain's ill-behaved youths, and one that ended in ridicule when hooded youths mocked the then opposition leader during a photo opportunity.

Now as prime minister, Cameron is opting for tough love in the wake of Britain's riots.

He has declared anyone convicted in the unrest will be jailed, and he's even warned rioters that they may be kicked out of state-subsidized housing. "We will track you down, we will find you, we will charge you, we will punish you," he said.

Some critics say the hardline stance falls short.

Among them are law-enforcement officials and youth workers who claim Britain has taken too soft an approach to juvenile offenders. Too many receive cautions, which they ignore. Others have been given Anti-Social Behavior Orders, an invention of the previous Labour government which have been derided as largely ineffective, even being used as a badge of honor by delinquent youths. The ones who have ended up in juvenile detention centers often have access to luxuries like PlayStations or computer games.

It's good to hear that sense is making a comeback across the pond, but why does it take a riot?

A Teleforum Debate on the Death Penalty

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Monday at 1 pm Eastern Time.  Call in number is 1-888-752-3232.  Some people just can't stop talking, and I confess I'm one of them.

DEATH PENALTY DEBATE: Next Monday (Aug. 15th) at 1:00 pm EDT, the Criminal Law Practice Group will be hosting a Teleforum Debate on the death penalty between Prof. William Otis of the Georgetown Law Center and Cassandra Stubbs on the ACLU Capital Punishment Project. There will be an opportunity for questions from the call-in audience. No registration is required. If you would like to hear this debate, just dial 1-888-752-3232 at that time to be patched in.


About a month ago, Attorney General Eric Holder issued this memo directing US Attorneys to abandon a litigating position they had used successfully in a number of courts.  The position tossed overboard was that sentencing judges should refuse to give retroactive effect to a more lenient crack cocaine sentencing statute passed in the last Congress.  The AG's change of position was undertaken ostensibly in the name of compassion.  "Fairness," you see, needed uniformly to be "restored" to federal crack penalties.  The Department's previous position against retroactive application had been, even if correct as a matter of law, so, you know, heartless.

The Department's bottomless pit of compassion for crack dealers seems to have run dry, however, for the family of a federal law enforcement officer cut down in the line of duty.  Border Agent Brian A. Terry was murdered last December with a gun illegally obtained by one Jamie Avila. Terry's family has moved under the federal Crime Victims Act to intervene in the case against Avila.  

Motions of this type are routinely supported by the US Attorney's Office.  But not this time.  It seems, or so US Attorney Dennis Burke says, that the family does not meet the specific statutory definition of a "victim."   This is so, the government says,

because the family was not "directly or proximately harmed" by the illegal purchase of the murder weapon, it does not meet the definition of "crime victim" in the Avila case. Burke claims the victim of the Avila's gun purchases, "is not any particular person, but society in general."

Well my goodness.  So forgiving toward crack dealers, but so tough with an Agent's widow (who doesn't want to push any drugs but just have a chance to speak).

Gads, a suspicious person might detect something odd going on here.  Something like, say, politics.


Some Headlines Leave You Speechless

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There's just not a whole lot you can say about this one from MSNBC:

Agency:  Casey Anthony Failed to Protect Caylee

Well, uh, I guess so.

The story, for anyone who cares to read it, is here.

A Survivor's Story

Jennifer Hopper, survivor of the notorious South Park attack in Seattle in 2009, has this story in the Stranger, titled "I Would Like You to Know My Name."  For background on the crime, see this story by Jennifer Sullivan in the Seattle Times a few months after the crime and this story July 1 this year by Levi Pulkkinen in the Seattle Post-Intelligencer on the verdict.  Thanks to "notablogger" for the tip.

News Scan

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Is DNA Testing of Arrestees Unconstitutional?   Laws in 25 states which allow DNA testing of people arrested for felonies prior to conviction are under attack by defendant's rights and privacy advocates as reported by Ashby Jones in today's WSJ.  While laws which require DNA testing of convicted felons have withstood legal challenges so far, in recent weeks conflicting rulings have been announced regarding testing after an arrest.  Last week a California appellate court ruled that such testing violates the 4th Amendment.  In late July the U.S. Court of Appeals for the Third Circuit held that a similar federal law did not.  Although the ACLU and other defendant's rights groups are quick to champion DNA testing when it helps overturn a conviction or delay an execution, they are criticizing testing following an arrest as an unwarranted invasion of privacy.  

Witness Killed During Florida Gang Trial:  Kelli Kennedy of the AP reports a South Florida gang trial turned deadly earlier this week when police discovered the bloodied body of a witness in a parking lot on the day he was supposed to testify against Futo Charles, the alleged leader of the Palm Beach County's "Top 6" gang.  Top 6 began as a small group of Haitian teens in the mid-1990s, but has grown to an estimated 400-450 members and is now the most violent gang in the county's history.  Charles, whom authorities first noticed in 1996, was arrested during a 2008 sting using RICO charges.  After this week's shooting, a judge ordered jurors to be partially sequestered and escorted by armed guards to and from the courthouse.

Texas Executes Gang Killer: 
Texas executed convicted murderer Martin Robles last night, reports Cody Stark of The Huntsville Item (TX) (see also yesterday's News Scan post). Robles is the ninth death row inmate to be executed in Texas this year.

Arizona Appeals Immigration Ruling to Supreme Court:  David G. Savage reports in the Los Angeles Times that Arizona Governor Jan Brewer has appealed to the U.S. Supreme Court in an effort to revive the state's controversial illegal immigration law, SB 1070, which would allow police to check the immigration status of people lawfully stopped and suspected of being in the country illegally.  The law was put on hold after rulings from a federal judge in Phoenix and the 9th Circuit.  Former Solicitor General Paul Clement, on behalf of Arizona, is arguing to the high court that states have a general police power that will allow them to enforce the law within the state, and that the "disproportionate impact" of illegal immigration on Arizona justifies extra enforcement measures.

Former Inmate Caught Breaking into Prison:
  Authorities caught a 48-year-old parolee sneaking into a California prison yesterday, reports Paul Janes at (Sacramento).  Marvin Ussrey claimed he was reminiscing, but authorities believe he may have entered the prison grounds to drop off contraband.

Punishing Threats

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In People v. Lowery, S179422, decided today, the California Supreme Court considered the criminal punishment of threats post Virginia v. Black.  In doing so, it split from a recent Ninth Circuit decision, United States v. Bagdasarian.

28 Years for Crooked Judge

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Michael Rubinkam reports for AP:

A longtime northeastern Pennsylvania judge was ordered to spend nearly three decades in prison for his role in a massive juvenile justice bribery scandal that prompted the state's high court to toss thousands of convictions.

Former Luzerne County Judge Mark Ciavarella Jr. was sentenced Thursday to 28 years in federal prison for taking $1 million in bribes from the builder of a pair of juvenile detention centers in a case that became known as "kids for cash."

Ciavarella is 61, so he will likely never see the outside of the prison wall again.  Good.

The Welfare State Riots, Part II

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Theodore Dalrymple has this post at City Journal, on the same theme as Bill's post.

The riots are the apotheosis of the welfare state and popular culture in their British form. A population thinks (because it has often been told so by intellectuals and the political class) that it is entitled to a high standard of consumption, irrespective of its personal efforts; and therefore it regards the fact that it does not receive that high standard, by comparison with the rest of society, as a sign of injustice. It believes itself deprived (because it has often been told so by intellectuals and the political class), even though each member of it has received an education costing $80,000, toward which neither he nor--quite likely--any member of his family has made much of a contribution; indeed, he may well have lived his entire life at others' expense, such that every mouthful of food he has ever eaten, every shirt he has ever worn, every television he has ever watched, has been provided by others. Even if he were to recognize this, he would not be grateful, for dependency does not promote gratitude. On the contrary, he would simply feel that the subventions were not sufficient to allow him to live as he would have liked.

News Scan

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Gang Member to be Executed in Texas: Michael Graczyk of the AP reports Texas death row inmate Martin Robles, 33, is set to be executed on Wednesday evening for a double slaying nine years ago in Corpus Christi. Before he was sentenced to death, Robles had been arrested more than a dozen times as a juvenile and was convicted of murder at the age of 17. Only a year after being released from his six-year sentence for the previous crime, Robles and a companion broke into the home of a rival gang member before dawn and shot to death two 19-year-old victims from no more than two and a half feet away.

Jury Recommends Death for Ohio Serial Killer: Michael Scott of The Cleveland Plain Dealer (OH) reports the jury recommended a sentence of death for convicted serial killer Anthony Sowell. Cuyahoga County Judge Dick Ambrose will sentence Sowell on Friday, and may accept the jury's recommendation or reduce the sentence to life in prison.

Budget Issues in Minnesota May Jeopardize Public Safety: In light the state's new budget, Minnesota counties will now have to pay a quarter of the costs for every sexual predator sent to the Minnesota Sex Offender Program, up from 10 percent. Lawmakers supporting the move say an increased financial responsibility might force prosecutors, who decide whether to seek court-ordered treatment for the offenders, to be more careful in selecting whom to send to the program. County prosecutors said they don't plan to ease up on sex offender commitment cases, despite the increased cost. "I'd hate to put a psychopath back out on the street and then justify how we did it because of monetary reasons, I'd probably have to go the other way and say, `No, we're going to have to spend the money,'" said Crow Wing County Attorney Don Ryan. Martiga Lohn of the AP has this story.

Studies Show ...

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Although not directly on topic, this WSJ article by Gautam Naik describes the problem of medical studies published in prestigious journals that are later found to be wrong, sometimes incompetent, and occasionally fraudulent.

If this problem is so widespread in the medical field, where studies are relatively objective and usually unpolitical, how much greater is the problem in social sciences, including studies about crime?  Social science is generally softer, and methods that would be unacceptably unreliable for medicine are routinely used in social science.  Quasi-experiments are accepted where true experiments are impossible.  Would the FDA ever approve a drug with only quasi-experimental data to support its safety and effectiveness?  The article notes that a study not being double-blind is "a situation many investigators consider tantamount to fraud" in the medical field, but it is routine in social science.

On top of that, you have the Political Correctness quotient.  Sources of fraud or at least fudging in the medical arena include the monetary interests of drug manufacturers and the reputational interests of researchers, but the people in charge of reviewing the study for publication typically have no interest in the outcome.  With studies on politically controversial topics, however, the massive PC bias of academia means that studies with Politically Correct bottom lines will get less scrutiny than those with Politically Incorrect bottom lines.

What "studies show" is not necessarily so.

Self-Defense and Riots

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The WSJ's "Notable and Quotable" feature quotes Blogger Brian Micklethwait writing at, Aug. 9:

One of the more depressing things about these [London] riots is the way that the only thing that the Police can think of to say to us non-looters and non-arsonists is: "Don't join in" and "Let us handle it." If the bad guys start to torch your house, let them get on with it. If they attack your next door neighbour, don't join in on his side. Run away. Let the barbarians occupy and trash whatever territory they pick on and steal or destroy whatever property they want to.

There was a fascinating impromptu TV interview with some young citizens of Clapham last night, not "experts," just regular citizens, one of whom stated the opposite policy. Law abiding persons should get out of their houses, he said, en masse, and be ready to defend them.

The trouble with "letting the Police do their job" is that in the precise spot in which you happen to live, or used to live, their job probably won't start, if it ever does start, for about a week. In the meantime, letting the Police do their job means letting the damn looters and arsonists do their job, without anyone laying a finger on them, laying a finger on them being illegal. This is a doomed policy. If most people are compelled by law to be only neutral bystanders in a war between themselves and barbarism, barbarism wins. The right to, at the very least, forceful self defence must now be insisted upon.

Deadline for Review of Gabrion

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Following up on the prior posts here and here, AP reports from Grand Rapids, Michigan:

Federal prosecutors in Grand Rapids have until Sept. 16 to decide whether to appeal a decision that overturned a rare death sentence.

An appeals court set the deadline Tuesday, about a week after one of its three-judge panels threw out the death penalty for Marvin Gabrion.

In 2002, Gabrion was convicted of drowning a woman in a national forest. The jury sentenced him to death, an option in federal court.

But the appeals court says the sentencing phase needs to start over. In a 2-1 decision, the court said defense lawyers should have been able to argue that Gabrion would not have faced a death sentence if the case had been prosecuted in state court.

The government's options include asking the full appeals court to look at the case.

Technically, the options are to (1) petition for rehearing by the panel; (2) petition for rehearing en banc (the last sentence above); or (3) petition for a writ of certiorari from the Supreme Court.  Option (1) is essentially useless, as none of the three judges on this panel will change position.  Skipping (2) for (3) is permissible, but SCOTUS takes a dim view of it, and I don't expect it.  Go for (2).

In the upper echelons of the present Administration, there will probably be a tussle between anti-death-penalty ideologues supporting "none of the above" (letting the decision stand), and political operatives who know that would be politically disadvantageous and will support option (2).  (Career prosecutors and people who care about justice would also support (2), but there are few, if any, in the upper echelons.)  I expect the political operatives to win.

The politics of Britain's riots

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WaPo columnist E.J. Dionne has this post on how the leader of the British Labor Party is tiptoeing around the question of the causes of the riots, trying to avoid any implication of any sympathy with the rioters.  In contrast to a predictable commentary by a left-leaning academic,

But [Ed] Miliband has always thought it important for Labor to cultivate tough-on-crime credentials. And he is acutely aware of the losses Labor suffered in the last election among white working-class voters, who are likely to take a dim view of the urban violence.
In America, the tough-on-crime stance has taken a political beating of late, despite its success as a major factor in bringing down our previously sky-high crime rates.  In Britain, though, it appears the left is still wary of being tarred with the soft-on-crime brush.

Will the situation turn around here?  Yes, I think it might, but at a horrific cost.  In California, when Jerry Brown's scheme to force release of prisoners by dumping them on financially strapped counties has its predictable result, there will be backlash.  People who have been seduced by claims that we can safely release the hordes of people who are supposedly in prison merely for possession of one joint will realize they have been lied to and that the people released were actually far more dangerous than represented.  The realization will come too late for those raped, robbed, or murdered, but it will come.

The Welfare State Riots

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Kent recently noted the rioting in England, viewing it as "simply a case of lawless people seeing a chance to grab free stuff and go on a rampage of destruction."

I agree with that, except for the "simply" part.  I think there's more going on.

I have argued (for example, here and here) that there is a relationship between the welfare state and crime.  It's not exactly that the former directly breeds the latter; it's that both take root in the same false and corrosive theory of human nature.  The theory is that the individual is not responsible for his conduct, he being little more than a repository of social forces. Instead, the state is responsible, it being, if not the cause, at least the indifferent midwife of those forces.  Far from being responsible, the individual is entitled.  When he doesn't get what he's entitled to  --  a decently comfortable life without a great deal of effort or work  --  he is further entitled to a sense of grievance.

For its part, the state, bearing guilt for having failed fully to satisfy the entitled status of its citizens, can be only so forceful with them when, acting on that grievance  --  expressed as delinquent boredom  --  they misbehave.  The job of the authorities is kind of to restore order, but more than that, to understand the "social context."  (Sophisticated commentators have obligingly contextualized the riots to death).

If, in the course of the rioters' misbehavior, they grab free stuff, well, it's the stuff that was owed them anyway.

But suppose...just's not really about the stuff.  Consider the possibility that the great menace of the welfare state is not that it has failed in delivering its "stuff" (it hasn't), but that it has succeeded all too well in delivering its values.     

Defending Child Rape with Religion


Q:  When is a pervert not a pervert?

A:  When he says God made him do it.

That about sums it up for the defense in the notorious, and now happily over with, trial of Warren Jeffs.  Jeffs, 55, was the head of a sect (implausibly) claiming to be an offshoot of the Mormon Church.  Part of the religious "duty" incumbent on Mr. Jeffs, as church leader, was to "marry" what he referred to as "child brides."

In the language of normal people, what that means is that he picked out little girls to rape.  Today, he got a life sentence plus 20 years for raping two of them, one aged 15 and the other 12.  The story is here.

I'm going to stay far away from making any general comments about religion.  I will say that, like anything else, it can be abused and distorted.  We see this all the time in the death penalty debate, where religious hucksters like Sister Prejean cloak themselves in sanctimony to look down upon the Less Enlightened of us  --  admittedly a big majority  -- who support capital punishment.  Hey Sister, where's that ever-popular-with-liberals separation of church and state when you need it?

The distortion of religion in the Jeffs case is too blatant to need discussion, but it's not too blatant for the defense to claim that the indictment was religious "persecution:"

Jeffs claimed his religious rights were being violated. Representing himself after burning through seven high-powered attorneys, he routinely interrupted the proceedings and chose to stand silently in front of jurors for nearly half an hour during his closing arguments. He called just one defense witness, a church elder who read from Mormon scripture.

For the second time today, I have occasion to give thanks that I made my living as a thoroughly secular prosecutor.   

Defense Bar v. Cuddly Dog


From time to time, I have offered gentle reminders to our friends in the defense bar about what I view as missteps in defense work.  But this time, they've gone too far.

Yes, I know they have a half-way plausible argument to make  --  indeed, more plausible than a lot of stuff you hear from criminal defense  --  but this case reminded me once more why I was happy to take a scruffy salary as a prosecutor instead of going for the big bucks trying to make somebody's "dream team." 

News Scan

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Security Flaw Could Let Prisons Get Hacked: Gerry Smith of The Huffington Post reports that at the DefCon hackers conference in Las Vegas this weekend, researchers showed a security flaw they found that could allow prisoners to escape if hackers breached a prison's computer system. The researchers said they have not simulated an attack to test the security flaw, but believe it is possible to launch a cyber prison break due in large part to prison guards not taking basic cyber security measures. For example, researchers touring a U.S. prison found a guard checking his email on a computer in the control room that communicates with the system that operates the doors. According to researchers, if that guard had clicked on a malicious link or attachment, a prison break could be triggered. The researchers said they briefed the federal government on their findings and received permission to give the presentation at the conference, but a spokesman for the Federal Bureau of Prisons said he was not aware of the researchers' findings.

LAPD Reviews 230 Cases For Connection To Grim Sleeper: Andrew Blankstein of the Los Angeles Times reports Los Angeles Police Department detectives have expanded the number of missing persons cases and unsolved killings they are reviewing in search for more victims of the Grim Sleeper serial killer. The LAPD is now reviewing 230 cases dating back to the mid-1970s. The Grim Sleeper suspect Lonnie David Franklin Jr., has been charged in 10 killings and one count of attempted murder.

Once Exonerated Man Ordered Back To Prison: Dave Collins of The Associated Press reports George Gould was ordered back to prison yesterday, a month after the Connecticut Supreme Court reinstated murder convictions against him and Ronald Taylor. Taylor has terminal colon cancer and was allowed to remain out on bail while both men await a new appeal trial. Gould and Taylor were convicted of murder for the 1993 fatal shooting of a grocery shop owner in New Haven. In April 2010, after 16 years in prison, both men were freed after Superior Court Judge Stanley Fuger ruled they were victims of "manifest injustice'' and declared them "actually innocent" after a key prosecution witness recanted her trial testimony. Prosecutors appealed to the state Supreme Court, which unanimously decided last month that Gould and Taylor hadn't proven their innocence and ordered a new habeas corpus hearing for them. Taylor and Gould's lawyers say they are considering whether to appeal the state Supreme Court decision to the federal courts.

Unfriending Prison Inmates

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Don Thompson reports for AP:

Facebook has agreed to work with law enforcement agencies nationwide to remove accounts set up by inmates or posted on their behalf, in part because prisoners are using the social networking site to stalk victims and direct criminal activity, California prison officials said Monday.

It's the latest effort to combat a problem that has grown with the advent of smart phones and social networking sites.

Last year a convicted child molester used a cell phone smuggled into prison to search his victim's Facebook and MySpace web pages, the Department of Corrections and Rehabilitation said in announcing the agreement with Facebook. The inmate then sent sketches to the 17-year-old victim's home.

Warrants for Cell Phone Location

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If police have a warrant to arrest someone, can they get a warrant for the cell phone provider to disclose the location of his cell phone?  Orin Kerr has this post at VC.  A federal magistrate judge said no, but Orin thinks the answer is yes.  He reasons by analogy to Steagald v. United States, 451 U.S. 204 (1981), regarding a search warrant to enter the home of a third person, where the person named in the warrant was believed to be.

Looting in London

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Anthony Faiola reports in the WaPo:

Lawless looting and raging fires engulfed swaths of London on Monday as the wave of civil unrest that has gripped this sprawling capital escalated sharply, including riots in a neighborhood not far from that of the athletes' village and shiny stadiums built for the 2012 Olympic Games.
Some people, including the infamous former mayor "Red Ken" Livingstone, predictably tried to make political hay from the riots.  However, others, including, the Home Secretary, see this as simply a case of lawless people seeing a chance to grab free stuff and go on a rampage of destruction.

News Scan

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Ohio Serial Killer Talks at Sentencing:  The Plain Dealer (OH) staff reports convicted Ohio serial killer Anthony Sowell gave an unsworn statement today during the penalty phase of his murder trial, apologizing to the victims' families and stating that "this is not typical of me."  ("This" apparently referring to the murders of 11 women and the stashing of their bodies in his house.)

LA County May Pull Its Own Handoff of Inmates:  While strategizing on how to handle the hundreds of state inmates expected to be transferred to Los Angeles County supervision by the end of the year, officials are considering whether to transfer some of those inmates to "community correctional facilities" across the state.  Such a strategy would undermine one of the supporting arguments for California's inmate diversion plan - to keep offenders closer to home to assist in their rehabilitation.  County officials maintain that it would be used as a last resort, but a team of sheriff's officials recently took a trip to a town in the San Joaquin valley (more than 100 miles from LA) to look at a potential lockup.  Robert of the Los Angeles Times has this story.

SCOTUS November Calendar

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The Supreme Court's argument calendar for the November session (which actually begins Oct. 31) is here.

Monday, October 31Lafler v. Cooper, No. 10-209 and Missouri v. Frye, No. 10-444.  Both cases involve claims of ineffective assistance in plea bargaining.  Cooper went to trial, while Frye accepted a later, less favorable plea bargain.  CJLF filed a single amicus brief for both cases, here.

Wednesday, November 2:

Perry v. New Hampshire, No. 10-8974, on the extent to which allegedly unreliable identifications raise a federal constitutional question.

Gonzalez v. Thaler, No. 10-895, on timing questions relating to AEDPA's statute of limitations for federal habeas cases.

Monday, November 7Kawashima v. Holder, No. 10-577, on tax fraud and deportation.*

Tuesday, November 8:

United States v. Jones, No. 10-1259, on tracking suspects' cars with GPS.

Smith v. Cain, No. 10-8145, another Brady case from Nawlins.

Also, on the last day, the Court hears the slaughterhouse cases, which I thought had been decided some time back.

* Kawashima is an immigration case rather than a criminal case.  However, defense lawyers have always needed to understand the immigration consequences of convictions, and since Padilla prosecutors should be aware as well.  A consequence nobody knows about could result in getting the case back.

Thompson Fallout on Miranda

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The Supreme Court's decision the term before last in Berghuis v. Thompkins has caused the Second Circuit to reverse itself and admit an uncoerced statement over a Miranda/Edwards objection.

Basil Katz has this report for Reuters.  CJLF's brief in Thompkins is here.

Auctioning the Unabomber's Stuff

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I'm not sure why anyone pays good money for the Unabomber's stuff.  Anyway, the auction proceeds were applied to the unsatisfiable restitution order, and checks for $225,000 were mailed to victims of his crimes.  Sam Stanton has this report for the Sacramento Bee.

Thou shalt not tweet

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Bob Egelko reports in the SF Chron:

Jurors in California will soon be reminded not to conduct online research during the trial, and to resist the temptation to tweet their friends about how boring the testimony is or how guilty the defendant looks.

Gov. Jerry Brown signed legislation Friday requiring trial judges to tell jurors that existing bans on conducting their own research about the case, or talking to outsiders about it, applies to electronic and wireless communication. Violations by jury members will be punishable by up to six months in jail for criminal contempt.

AB141 by Assemblyman Felipe Fuentes, D-Los Angeles, effective next year, was prompted by numerous reports around the country of jurors' using cell phones and other devices to sidestep judges' warnings against outside research or contacts.

Thanks to Doug Berman for linking to this wonderfully revealing article published in  The title is, "How Many Medical Marijuana Patients Are Fakers?  Does It Matter?"

The opening "Does It Matter?" line gives you a tip-off about the revelation to follow.  And this excerpt from early in the piece pretty much spells it out:  

University of California at Santa Cruz sociologist Craig Reinarman et al....found that "relief of pain, spasms, headache, and anxiety, as well as to improve sleep and relaxation, were the most common reasons patients cited for using medical marijuana."

So now it's official: "medical" marijuana is used in order to relieve anxiety and improve relaxation.

Ummm, I think we just got told that medical marijuana is used to get stoned.

Imagine that!  And here I thought all these years that it was only those DEA types in overly tight underwear who were telling us that "medical" marijuana was just a front for people who wanted to spend the day zapped. 

Well now we know.  Medical need, schmedical need.  Ladies and gentlemen, you can forget all that stuff about how thousands and thousands are desperate for relief from intractable pain.  It's party time!  Anybody got the munchies yet?

Holier Than Thou, You Punk

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Those seeking to abolish the death penalty hold a minority position in this country, and it is  --  as publicly debated issues go  --  not much of a minority.  The Gallup poll puts public support for abolitionism at 30% or slightly less; in California, the Field poll finds abolitionism even less popular, attracting a bit less than 25% support.

This does not stop abolitionists from claiming The Greater Wisdom, and doing so in indignant if not outraged terms.  I have debated this subject many times and in many fora, and it's surprising how often otherwise thoughtful and civil people are willing to attack the retentionist position with words like barbaric, racist and ignorant:  "If only the unwashed masses knew what we experts know."  It's also surprising, to me at least, how often otherwise insistently secular people are willing to use religion to bully their way to the supposed moral high ground.

I thus had a strong deja vu feeling when I read a piece in today's Wall Street Journal noting the contempt, if not venom, that has surfaced in the vocabulary of progressivism.  The article is about the recent debate on raising the debt ceiling, which is hardly the subject of this blog.  But if you substitute the word "retentionist" for "conservative," and "abolitionist" for "progressive," the piece is a dead ringer description of the snarling, holier-than-thou attitude of an increasing number of death penalty opponents.

Given their thoroughly outmanned position, one might think modesty to be a more becoming attitude than belligerence.  Would that they thought so too.     

News Scan

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California Mom Accused of Murder By Breastfeeding: Jesse McKinley of the New York Times reports Maggie Jean Wortmon, 26, was arraigned this week in a Northern California court on charges of second-degree murder, after prosecutors claimed she killed her infant son by breast-feeding him shortly after ingesting large amounts of methamphetamine.  Ben McLaughlin, a deputy district attorney in Humbolt County, acknowledged that it could be challenge to convince a jury that Wortmon had the requisite intent for murder, but said, "I think that her conduct is, or was, so intentionally reckless that it rises to the level of implied malice.  And I think that a mother who is breast-feeding using the quantity of methamphetamine she did, I think that rises to a second-degree murder charge."

California Bill Seeks to Combat Bullying: Jens Erik Gould has this story in Time magazine on a bill some lawmakers are pushing through the California legislature to combat school bullying. Dubbed "Seth's Law" in honor of a 13-year-old boy who committed suicide after he was bullied for being gay, the bill would require all public schools to put procedures in place to address incidents of bullying and to explicitly state their policies on discrimination. The bill  would also allow state officials to randomly check schools to make sure they're implementing anti-bullying policies.

Death Penalty Revival in the UK?: Rebecca Cafe of BBC News reports an internet campaign has reignited the debate on whether the UK should seek reintroduction of the death penalty. The Restore Justice campaign is calling for reintroduction of the death penalty for murderers of children and police officers, citing opinion polls that suggest 60% of the population would like it reintroduced in those circumstances. Paul Staines, who is spearheading the campaign, needs 100,000 people to support his e-petition to prompt a possible parliamentary debate on the issue. Parliament last debated the issue in 1998, rejecting it by 158 votes. "Politicians are complaining that there's a disconnect and that the public aren't engaged with them - maybe if they represented the views and the will of the voters, there wouldn't be such a big disconnect," he said.  See also the op-ed noted in Kent's post earlier today.
Timothy Stanley of Royal Holloway College has this article in the London Telegraph:

Britain is talking seriously about the death penalty for the first time in over a decade. It was last discussed in Parliament when the Human Rights Act was passed in 1998, and now blogger Paul Staines (of Guido Fawkes fame) is petitioning for another House of Commons debate in 2011. We can expect anti-death penalty campaigners to point to America as an example of why it should stay banned. The usual images will be invoked of pot-bellied, racist, white judges sentencing innocent saints to death by chainsaw in some Alabama charnel house. Accepting the many obvious injustices in the US legal system, there is an instinctive British snobbery towards Americans that renders any comparison between our two countries unflattering. Amnesty International, Liberty and the New Statesman will probably ask, "Why would we endorse a system of retribution practiced by those knuckle-dragging, Bible bashing, toothless crazies over in Texas?" Well, here's one good reason: it works.

CJLF's collection of abstracts on deterrence is here.

News Scan

Victim's Family Shocked By Overturned Death Sentenced:  Ken Kolker reports on (MI) that the family of murder victim Rachel Timmerman are shocked and outraged over yesterday's decision by the Sixth Circuit to overturn the death sentence of murderer Marvin Gabrion (see yesterday's post here).  "I believe Mr. Gabrion should be put to death because of what he did to my daughter, Rachel," said Tim Timmerman.  "He put her in handcuffs and chains, he chained cement blocks to her. He wrapped her entire head in duct tape. He put her on a boat and drug her out into the middle of Oxford Lake and then he threw her in."

Pain and Suffering Awarded to Child Murderer:
  A German court last week awarded $4,290 in damages for pain and suffering to a convicted child murderer, reports the AP.  A deputy police chief interrogated Magnus Gaefgen, 36, during a frantic search for 11-year-old Jakob von Metzler.  Metzler was later found dead and Gaefgen was convicted of his murder in 2003. The Frankfurt court ruled he deserved compensation for pain and suffering caused by the officer's threat of violence during the interrogation.

Virginia County Sues DHS:  Prince William County, Virginia announced today it has filed a "long-anticipated lawsuit" against the Department of Homeland Security demanding the release of records pertaining to the criminal illegal aliens the County has detained and transferred to DHS since 2008.  The lawsuit, the second of its kind the county has filed against DHS in the past six months, comes in light of a fatal car crash caused by Carlos Martinelly Montano, a convicted illegal alien whom had been convicted of a DUI, identified as an illegal alien, and handed to DHS for deportation.  "It is frustrating that we as a local government must resort to suing the Federal Government to get information which the public has a right to know, and which is vital to our law enforcement efforts. I am disappointed in the lack of cooperation and transparency from DHS and I am frustrated with dismissive attitude of Congress, which has failed to compel DHS to turn over this information," said Prince William Board of County Supervisors Chairman Corey Stewart.  Keith Walker has this report in InsideNova (VA).

The Proceeds of Crime Act

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Paul Bibby reports for the Sydney Morning Herald:

The NSW* Supreme Court has frozen assets relating to the sale of a revealing book by former Guantanamo Bay detainee David Hicks as Commonwealth prosecutors attempt to seize all proceeds from the sale of the book.

The Commonwealth claims that money from the sale of Mr Hicks's book, Guantanamo, My Journey, which is about his six-year ordeal in the notorious prison, are the proceeds of crime.

About 30,000 copies of the book, published by Random House, have been sold since it went on sale last year.

In response to an application from the Commonwealth Director of Public Prosecutions, Justice Peter Garling issued a restraining order in relation to two assets connected to the sale of the book - a trust fund called the Misha Family Trust and a company called Lakeside Pty Ltd.

Under section 20 of the Proceeds of Crime Act, a restraining order can be imposed if "there are reasonable grounds to suspect that a person has committed an indictable offence ... and that the person has derived literary proceeds in relation to the offence".

* New South Wales, the most populous state in Australia.

Mitigation Backfire

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Capital habeas lawyers regularly denigrate trial counsel for not introducing some item of marginally mitigating evidence or other.  But more is not always better.  Sometimes the evidence can backfire.  Thomas Sheeran of AP reports from Cleveland:

Marine veteran Nolan Coleman testified Wednesday at the sentencing phase of the trial of 51-year-old Anthony Sowell (SOH'-wehl). The jury must decide whether to recommend death or life in prison without parole for Sowell, who killed 11 women.

Coleman testified to highlight Sowell's military service for jurors when they decide whether to spare his life. Coleman testified that a boot camp promotion like Sowell's would mean he was a top recruit.

But under cross-examination, Coleman said Marine training would include how to kill or immobilize with the hands, including pressure points and choking. Most of Sowell's victims were strangled.

If trial counsel had not put Coleman on the stand, habeas counsel would have claimed ineffective assistance for not introducing mitigating evidence.  Now that they did put him on and it backfired, you can bet your bottom dollar that (if Sowell is sentenced to death) they will claim ineffective assistance for opening the door to the backfire evidence.

News Scan

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Cigarette Butt Key to 1989 Cold Case Murder:  Natalie Sherman of the Boston Herald reports a single cigarette butt may help solve a Boston cold case, after a crime scene sample matched a DNA sample of a current Massachusetts inmate.  Police discovered 87-year-old Zahia Salem dead on her couch in 1989 with broken ribs and bruising indicating sexual assault.  The case went unsolved until a DNA sample collected in May from convicted rapist Charles Brook Jr. matched the remains of a cigarette butt found at the scene.  Brook has denied killing Salem, but admitted that he met her at a thrift store and helped her back to her home.  The case against Brook is part of an effort by Boston police to solve the more than 1,200 cold case murders dating back to the 1960s.   

Sixth Circuit Overturns Michigan Death Sentence:  Tresa Baldas of the Detroit Free Press reports the Sixth Circuit Court of Appeals today overturned the death sentence of the only person on federal death row from Michigan.  Marvin Gabrion was convicted and sentenced to death in federal court for the murder of Rachel Timmerman, whom was found bound and weighted with cinder blocks in a lake in a national forest (hence the federal jurisdiction), and her infant daughter.  Gabrion killed Timmerman while awaiting trial for raping her.  The Sixth Circuit majority (Judges Merritt and Moore) found that the trial judge should have allowed Gabrion's defense counsel to point out that Michigan had abolished the death penalty in 1846, and thus, had Gabrion been tried in Michigan state court, a death sentence would not have been available.  The Court said such an argument was "'mitigating' because [it] could conceivably make a juror question 'the appropriateness in the case of imposing a sentence of death.'" Chief Judge Batchelder, dissenting, cites a contrary Fourth Circuit decision from 2003.

Transportation Authority Forced to Rehire Addicts, Convicts:   The Massachusetts Bay Transportation Authority has been forced by arbitrators to rehire seven drivers and other key employers after they were fired for offenses such as drug use and assault.  Among the rehired employees is a trolley operator who tested positive for cocaine, admitted to an addiction, and was caught dozing behind the controls, after an arbitrator determined the drug test violated her right to privacy.  A bus driver fired over his 1987 conviction for child rape was also given his job back when an arbitrator ruled the MBTA knew about his record when he was initially hired, before a 2004 rule change banning workers with sex convictions.  Richard Weir has this story in the Boston Herald. 

California Lawmaker Pushes for Change After Jaycee Dugard Case:  Don Thompson of the AP reports California Republican Senator Ted Gaines announced today he will introduce legislation intended to circumvent a 2008 California Supreme Court case ruling that the state parole board cannot deny a prisoner's release based solely on the circumstances of the original crime.  Gaines says that since that ruling, the board has granted parole to more than 1,300 inmates serving life terms.

Kindler, Again

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The Kindler case, previously noted here, is featured as SCOTUSblog's petition of the week.  In phrasing the issue, SCOTUSblog's writer appears to take the habeas petitioner's and Court of Appeals' view of a disputed question.  As phrased by the State, the question presented is:

Where a state supreme court explicitly holds that escape constitutes a forfeiture of appellate rights and that recapture provides no basis for reinstatement, and a defendant shortly thereafter breaks out of prison, escapes to a foreign country, and remains a fugitive there for years, is the state's fugitive forfeiture rule "inadequate" on the ground that it allegedly "broke from" past decisions?
Keep an eye on this one for "relists."  If it gets relisted more than once, I'd bet on summary reversal.

The Ever-Reliable Psychiatrist

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We all recall the Jaycee Dugard case, in which a previously convicted, but paroled, child sexual abuser kidnapped an 11 year-old girl and kept her chained in a backyard shack where he raped her for the next 18 years.

The rapist's name is Phillip Garrido, and the question is why he was ever out on parole to begin with.  Here's the answer, from an AP report:

The report says Garrido should not have been freed from prison in 1988, where he was serving a 50-year federal sentence and a five-years-to-life Nevada state sentence for a previous kidnapping and rape. [El Dorado District Attorney Vern] Pierson said the parole system relied too heavily on psychiatric advice in determining Garrido's suitability for parole.

"The failure and inadequacies of the psychiatric profession were highlighted by Phillip Garrido and his manipulation of them to his advantage," Pierson wrote.

After Garrido nabbed Dugard in 1991, Pierson said federal and state parole agents failed to investigate his history of sexual crimes and instead relied on reports from psychiatrists. This led to agents missing numerous warning signs over dozens of visits, allowing Garrido to continue holding Dugard and seeking other victims.

It would be unfair, oversold and incorrect to say that the practice of psychiatry is the midwife of crime.  But when time and again we see leniency granted on the basis, not of the criminal's demonstrated conduct in the outside world, but on gushing psychiatric reports about his supposed wonderfulness in the controlled environment of prison, you can see why I'm tempted.

P.S.  This is something to be borne in mind as we assess those soothing assurances that the thousands of criminals to be released under Plata will all be, dontcha know, harmless. 

Defending SORNA

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Charles Stimson and Maya Noronha of Heritage Foundation have this paper regarding compliance with the Sex Offender Registration and Notification Act (SORNA). 

There is a lot of misinformation in the public domain regarding SORNA and its "requirements."[21] Some jurisdictions oppose implementation based on a false understanding of what SORNA contains or requires. Opponents of SORNA and the Adam Walsh Act have perpetuated these myths in order to delay or frustrate implementation.

Confirmation Bias

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Cordelia Fine has this article in the NYT on the tendency of everyone, including scientists, to bias their evaluation of evidence based on whether it confirms or refutes their preexisting beliefs.

[W]e humans quickly develop an irrational loyalty to our beliefs, and work hard to find evidence that supports those opinions and to discredit, discount or avoid information that does not. In a classic psychology experiment, people for and against the death penalty were asked to evaluate the different research designs of two studies of its deterrent effect on crime. One study showed that the death penalty was an effective deterrent; the other showed that it was not. Which of the two research designs the participants deemed the most scientifically valid depended mostly on whether the study supported their views on the death penalty.

In the laboratory, this is labeled confirmation bias; observed in the real world, it's known as pigheadedness.

Speaking of which, there is this article by Ian Dunt in  Discussing a proposal to reinstate the death penalty in Britain, Dunt asserts that it is "staggeringly easy" to refute the argument for deterrence, and it can be done in 30 seconds. 

To anyone familiar with the literature in this area, Dunt's assertions are staggeringly superficial.  He cites old literature and dredges up the moth-eaten controversy over Isaac Ehrlich's work in the 1970s.  Sneering at the whole idea of deterrence, Dunt is apparently completely unaware of the large body of literature from 2000 forward.

The actual deterrence debate remains a complex one.  Dunt's assertion that the question is easy and takes only 30 seconds is a dramatic example of confirmation bias, or, if you prefer, pigheadedness.

Discrimination Needed

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Ryanne Colbert has this article in the Journal of Criminal Psychology titled "Discrimination Needed: The Over-Inclusive Definition of Who is a Sex Offender."  Here is the abstract:

Sex offenders and the laws concerning them represent a highly controversial and emotionally charged issue. Current efforts of legislation in the United States to manage the increasing number of sex offenders being arrested and eventually released back into communities are inadequate to manage such a large population of offenders, and the effects of registration and notification laws are more detrimental than beneficial to the communities they intend to protect. This paper discusses the notion that a significant cause of the problem relates to the overly broad standards that are used to define who is to be charged as a sex offender. The term "sex offender" needs to be reserved for those individuals who best represent the meaning of the term, and the resources available for this issue should be directed towards the effective management of those offenders instead of being spread so thin amongst so many offenders who do not pose a serious threat to society that none of them are sufficiently supervised after release from incarceration. Furthermore, laws and Federal guidelines regarding sex offender legislation needs to be based on empirical research findings instead of uniformed public pressure.
In theory, at least, death row inmates should be able to donate their organs after death the same as anyone else.  Winston Ross of the Eugene, Oregon Register-Guard has this story on some of the problems involved in the request of Christian Longo to donate his organs.

The most immediate problem is the three-drug protocol currently used by all death penalty states except Ohio and Washington.  It ruins the organs.  States should go to the one-drug protocol now that Ohio has blazed the trail, but Oregon hasn't yet, and it won't do so just to accommodate Longo.

The other practical problems involve the lack of facilities to harvest the organs immediately after death, which occurs within a prison.

Richard Dieter of DPIC predictably weighs in with nonsense about difficulty in ensuring the donation is genuinely voluntary.  Of course, we routinely take steps to insure that waivers are voluntary in a variety of contexts in criminal law.  We know how.  Then there is this:

There's also a queasiness factor, especially for the families of victims. To the family members and friends of Longo's victims, the idea that his organs will live on after he finally is put to death is a horrifying one.

"I just think they ought to kill every ounce of him," said Cathy Shukait, a close friend of the relatives of Longo's murdered wife and children. "Every inch of him is bad."
As much as I support the interests of the victim's family in these matters -- and it's been a large part of my career -- I just can't buy that.  Criminality resides in the brain, not the heart or kidney.  If the donation of one of those organs could save an innocent life, it doesn't matter how depraved the brain of the donor was.  A heart is just a pump.  A kidney is just a filter.

Protesting Releases

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When pollsters ask Californians about prisoner releases while describing the prisoners in innocuous terms, such as "low-level, nonviolent offenders," they get positive responses.  See, e.g., this USC/LA Times poll last month, Question 36. 

But the reality is quite different, and when the reality produces its inevitable consequences, people will realize they have been deceived.

Anita Bennett of the Culver City Patch has this story on a protest in LA last Friday.

Chanting "justice for the victims," about two dozen people marched in front of the Ronald Reagan State Building in downtown Los Angeles on Friday, demanding change in the state policy that allows "low-level" parolees to be out in society without supervision. "I'm hoping people realize that this is happening," said Fred Escobar, whose 27-year-old daughter Erica Escobar was killed, allegedly at the hands of an ex-convict who had been released on non-revocable parole status.

On May 3, Erica Escobar and 89-year-old Lucien Bergez were found dead in Bergez's Culver City home. A 31-year-old transient named Zackariah Lehnen was arrested two days later and charged with two counts of murder.

Lehnen is accused of fatally stabbing and beating Bergez and Escobar.  The young woman's father believes that if Lehnen had remained locked up, his daughter would still be alive. "He shouldn't have even been released. He had assault with a deadly weapon. If that's a low-risk criminal, we're pretty much nuts."

In LA Weekly Dennis Romero has earlier posts here and here with more info on the case.

Why, you might ask, am I linking to the Culver City Patch and not the Los Angeles Times for coverage of this protest?  Couldn't find a single word about it in the LAT.

Standing in the Jailhouse Door

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Senator John Chafee of Rhode Island named his son Lincoln, but maybe he should have named him Calhoun, after the South Carolina leader who believed states could nullify federal laws.  George Wallace would have been an even better namesake, but Wallace's infamous stand in the schoolhouse door did not come until a decade after Lincoln Chafee was born.

So now Lincoln Chafee wants to keep a murderer out of the hands of the federal government because that government wants to enforce a law that Chafee happens to disagree with, the law providing for capital punishment for certain federal offenses resulting in death.

Sheri Qualters has this story in the NLJ on oral argument in the First Circuit last Thursday in United States v. Pleau.

In November 2010, Pleau was charged in federal court for the Sept. 20, 2010, murder and robbery of David Main in Woonsocket, R.I, as he was making a deposit at a bank.

The Dec. 14, indictment included three charges: robbery affecting interstate commerce; conspiracy to commit robbery affecting interstate commerce; and possessing, using, carrying, and discharging a firearm in relation to a crime of violence, death resulting.
Now if someone wanted to argue that Congress cannot make this crime a federal offense, that would be a principled position, although contrary to post-1937 Supreme Court precedent.  But that is not Chafee's objection.  He only objects to the death penalty because Rhode Island has chosen not to have it.  But Rhode Island does not get to veto the United States's choice of punishment for federal offenses that happen to occur within the boundaries of Rhode Island.  So the argument involves technical questions on the Interstate Agreement on Detainers Act.

News Scan

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New York Law Limits Purchase of Firearms: NY1 News reports New York Governor Andrew Cuomo has signed a new state law that prevents the purchase of firearms by those convicted of domestic violence. The law closes a gap between state and federal statutes by sending the information of people convicted on domestic violence charges to the National Instant Criminal Background Check System, the database that is checked before someone buys a gun. Previously, those convicted of domestic violence in New York state were not added to the database.

Acquitted Man Confesses to Murder: Mike Donoghue of the Burlington Free Press reports Isaac Turnbaugh called Vermont police last month and confessed to the murder that he was acquitted of in 2004. Turnbaugh was acquitted of a first-degree murder charge for the 2002 shooting of a co-worker outside a pizza restaurant. In July Turnbaugh called local police and said he shot Declan Lyons in the head with a rifle and wanted to surrender to authorities. At trial, the defense argued that Turnbaugh repeatedly claimed responsibility for the crime because he was mentally ill, not because of his involvement with the murder. Despite his admission to the crime, state authorities say there is nothing they can do. Attorney General William Sorrell made reference to double jeopardy, and said that after an acquittal, "you can go out on the courthouse steps and confess, and the state can't do anything."

Registered Sex Offender Sues City for Right to Live With Parents: Loretta Kalb of The Sacramento Bee reports Michael Steven Escobar, a registered sex offender on parole for child molestation, is suing the city of Elk Grove, California. Escobar served nearly nine years in prison for the molestation of a child under age 14. Escobar complains that a city ordinance restricting where he is allowed to live violates state and federal constitutions, which leaves him few choices other than homelessness. Elk Grove's city ordinance prohibits a registered sex offender from living within 2,000 feet of schools, day care centers, playgrounds, parks, amusement centers, or youth sports facilities. Elk Grove Councilman Gary Davis says, "our ordinance is intentionally strong, and we take seriously our obligation to protect our community members." Under a temporary court order Escobar is allowed to live in his mother's house less than 1,000 feet from a public park while the case goes forward.

Ten Most Stolen Vehicles in the U.S.: The National Insurance Crime Bureau today released "Hot Wheels," its list of the ten most stolen vehicles in the U.S for 2010. Topping the list are the 1994 Honda Accord, the 1995 Honda Civic, and the 1991 Toyota Camry.
Sometimes it's argued that sexual predator civil commitment proceedings are too broad because they often don't include any assessment of physical limitations of the offender.  An offender may become physically disabled, yet none of the current risk assessment instruments take this factor into account.  A recent case out of Minnesota demonstrates why even physical disability doesn't mean no risk.

The unpublished decision In the Matter of the Civil Commitment of: James Adam Roth, 2011 WL 3241892 (2011) provides the backdrop. James Roth was confined to a wheelchair since the age of three.  Yet as an adult he managed to sexually assault at least four victims.  After eight years in prison, the state moved to have him civilly committed under the state's sexual psychopath statute.  Roth claimed that the district court erred by finding him "highly likely" to engage in harmful sexual conduct of released because he is "physically incapable of physically forcing anyone to do anything"  and because his prior sex crimes relied upon the assistance of others.

The appellate court disagreed:

Appellant's argument is not supported by the record. Neither the experts nor the district court concluded that he is highly likely to engage in acts of harmful sexual conduct based upon other people's conduct. Rather, Dr. Gilbertson testified that appellant has historically shown an ability to manipulate other people to help him commit his sexual crimes. Further, Dr. Henning testified that appellant's physical disability does not lower his risk of reoffense. The Project Pathfinder evaluator who interviewed appellant wrote in his report that,

although appellant's  extreme physical disability limits his mobility and his capacity to engage in any harmful acts ... he has historically demonstrated an ability and willingness to manipulate or use others to commit sexual abuse and numerous other criminal acts. So his disability is clearly not a protective factor, nor does it appear to mitigate the risk of any type of criminal recidivism. 

The district court also found that appellant "did not play a passive role in these sexual assaults." The experts agreed that, in light of appellant's ability to manipulate others to assist in the commission of his crimes, his disability does not minimize his dangerousness to the population or the risk of further offenses. Appellant himself admits in his brief to this court that "[a]ll of the experts agreed Appellant's ability to manipulate people is what makes him dangerous," conceding the role of his own agency in his harmful sexual conduct. After interviewing and testing appellant and considering his history, the experts concluded that appellant is highly likely to reoffend. Their conclusions were not based upon the imputation of anyone else's crimes to appellant. Thus, the record contains clear and convincing evidence that appellant is highly likely to reoffend.

News Scan

DNA Test Requested by Innocence Project Proves Murderer's Guilt:  Northampton County District Attorney John Morganelli says DNA testing confirms that Pennsylvania inmate Scott D. Oliver raped and strangled to death an 11-year-old girl in 1989, reports Riley Yates of The Morning Call (PA).  Oliver was sentenced to life in prison, but maintained his innocence and enlisted the help of the New York-based Innocence Project.  Attorneys last year requested further DNA testing in Oliver's case, which recently showed that his hair was found on the victim's body.  This is the second case in which the Innocence Project successfully petitioned for further DNA testing in Northampton County.  In November 2008, the group sought testing on behalf of Daniel Williams, convicted for kidnapping, raping, and murdering an eight-year-old girl in 1973.  The test showed that sperm in the girl's underwear was consistent with Williams' DNA.

Ted Bundy's DNA to be Added to National Database:  The AP reports the Florida Department of Law Enforcement will add a full DNA profile of serial killer Ted Bundy to the national FBI database, after investigators recently discovered a vial of Bundy's blood taken as evidence in 1978.  Previous forensic samples from Bundy had revealed only a partial profile.  Tim Haeck reports on that detectives in Tacoma are hopeful that having Bundy's DNA sample in the system will lay to rest their oldest cold case murder, the 1961 death of eight-year-old Ann Marie Burr.  Bundy was 14 at the time, and Burr would likely have been his first victim. 

Prosecutors Seek Death Penalty in "Grim Sleeper" Case:  The Los Angeles District Attorney's office announced today that it will seek the death penalty against accused "Grim Sleeper" serial killer Lonnie Franklin Jr.  Franklin has been charged with the murders of ten women in South L.A., with a 13-year gap between slayings.  But after police discovered photographs and identification cards of other women at Franklin's home, investigators now suspect Franklin was involved in the disappearance of eight additional women.  The L.A. Times has this story

The Insanity Defense in Norway

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For all of Norway's laxity in the punishment of murder, it does appear they have a reasonably sensible definition of the insanity defense.  Ian MacDougall reports for AP that it is unlikely Breivik will qualify "because he appears to have been in control of his actions, the head of the panel that will review his psychiatric evaluation told The Associated Press."

The July 22 attacks were so carefully planned and executed that it would be difficult to argue they were the work of a delusional madman, said Dr. Tarjei Rygnestad, who heads the Norwegian Board of Forensic Medicine.

In Norway, an insanity defense requires that a defendant be in a state of psychosis while committing the crime with which he or she is charged. That means the defendant has lost contact with reality to the point that he's no longer in control of his own actions.

The circumstances of the crime should, of course, be central in determining the defendant's mental state.  Too often, though, they are brushed aside, especially by defense psychiatrists.

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