September 2011 Archives

Free Speech a Privilege and Not a Right?

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Eugene Volokh at his eponymous conspiracy has this post on an astonishingly broad, and almost certainly unconstitutional, proposal on cyberbullying in New York.  He emphasizes this sentence:

Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege -- a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.
Yeah, right, "refined."  Always cast your proposal as the more sophisticated approach.

Due Process Uber Alles


We were greeted this morning by the welcome news that a CIA-led drone strike in Yemen killed a top al Qaeda operative, the American-born Anwar al-Awlaki.

Never wanting to take "yes" for an answer, the predictable sanctimonious scolds  --  the ACLU, CAIR and the Center for Constitutional Rights  --  are up in arms.  (Are they ever anything but up in arms?).  It was really a matter for  --  guess what  --  due process.   

"The targeted killing program violated both U.S. and international law," ACLU Deputy Legal Director Jameel Jaffer said in a written statement. "As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts."

When asked about this, White House Press Secretary Jay Carney refused to answer questions about the legality of the government targeting and killing an American citizen without a trial.

"I'm not going to address the circumstances of Awlaki's death," he said.

Let me respectfully suggest a different answer:  "We are in a war and the President is the Commander-in-Chief.  His foremost responsibility is to see to the physical safety of the American people.  Courts have neither the portfolio, under the Constitution, nor the competence, under any reasonable understanding of their mission, to direct the battle that has been thrust upon us.  This is not the next matter on the police blotter, and we are not looking for an arraignment date.  We will not be sending al Qaeda subpeonas.  With any luck, we'll be sending them more drones." 

How's that for a broad topic?

Well, the Senate Judiciary Committee is holding a hearing on that topic at 2:30 Eastern next Wednesday.  The witnesses are Justices Scalia and Breyer, who have debated this topic before.  Webcast should be available here.

The Court is hearing arguments the same day, but there are only two cases, so the Justices should be able to make it up the street to the Hart Building without difficulty.
Politifact checks out Gary Johnson's statement, "It costs more money to put a person on death row than it does to lock them up for the rest of their lives because of attorney fees."

They rate the statement "half true" because whether it is or isn't depends on a number of factors that vary from state to state.

News Scan

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Jury Recommends Death Penalty for Transient Killer: KESQ Palm Springs reports on the jury's decision to sentence David John Reid, 51, to death for the hate-crime murder of Ricky Mosley. The sentencing jury noted Reed's criminal history including two earlier allegations of murder which he escaped due to a lack of evidence and a prior conviction of assault with a deadly weapon, his racist tattoos, slurs, and association to an Aryan Brotherhood prison gang. Deputy District Attorney Christopher Ross quoted Reed telling a friend, "You know, murder's the easiest thing to get away with." Judge James S. Hawkins will decide whether to follow the jury's recommendation or sentence Reed to LWOP.

California Prison Inmates on Hunger Strike: On Monday, California's Inmates decided to resume a hunger strike involving   eight prisons and 4,252 inmates over the same issues addressed in July. The protesting prisoners claim that conditions in solitary confinement cells and gang security measures place them at risk. The strike was resumed after prison officials allegedly broke promises made to the inmates.  Prison officials say that review and changes in policy can take up to several months. In the meantime, California Department of Corrections and Rehabilitation announced that leaders of the strike may be placed in solitary confinement and that participants will lose personal items from their cells. AP reports in the San Francisco Chronicle.


Death Penalty Debate Podcast

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The Federalist Society has this podcast of a debate on the death penalty between Bill Otis and Cassandra Stubbs of the ACLU.

According to this ABC piece, it did:  "...the country appears to be revisiting its stance on the death penalty, in light of Troy Davis' execution last week."

Readers of this blog will not be surprised to learn that the story adduces no evidence to support this statement.  It's simply an article of faith in some quarters that Event X or Study Y always "re-ignites questions about capital punishment," or some such thing.  For example, the title of every article I have ever seen on the DPIC site is roughly, "New survey shows declining support for the death penalty."  I have yet to see a single one that says, "New survey shows increasing support for the death penalty," even though DP support has remained stable or shown occasional slight increases over the last seven or eight years.

Still, given all the massively slanted coverage of the Davis case, it's a fair enough question.  Did his execution decrease DP support?

Well, there's a way to find out:  Ask.  While such an enterprise was apparently too much for ABC, it was not too much for the quite reliable pollster Rasmussen.  The topic sentence of his report is, "The execution of Troy Davis last week for murdering a Georgia policeman prompted controversy here and abroad, but it did little to shift opinions on the death penalty."  Specifically, he finds that support had previously been at between 61%-63%, and is now at 60%, a statistically insignificant difference.  And in Rasmussen, as in every other poll I've seen, DP support remains at better than 2-1. 

Cal. Field Poll on DP: 68-27

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The Field Poll shows that opinion among California voters on whether to do away with the death penalty is essentially unchanged over the last decade, presently at 68-27.

A very badly worded question that implies the respondent must choose a single punishment for all first-degree murders shows a plurality choosing life imprisonment over the death penalty, 48-40.  I would say life imprisonment myself, if the choice were really so constrained.  But of course it is not.

On the two questions asked, California voters are nearly identical to Connecticut voters surveyed by the Quinnipiac Poll, noted here.  Quinnipiac went on to ask a third question that reflects much better the actual policy choice:

"Which statement comes closest to your point of view? (A) All persons convicted of murder should get the death penalty. (B) No one convicted of murder should get the death penalty. (C) Whether or not someone convicted of murder gets the death penalty should depend on the circumstances of the case." 

When asked the correct question, 83% said either "all" or "it depends" and only 16% said "no one."  That is the true measure of support.  It is most unfortunate that Field did not ask California voters the correct question.

News Scan

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Cop Killer Executed in Florida: The Associated Press reports Manuel Valle, 61, was executed last night in Florida for killing a police officer Louis Pena during a traffic stop 33 years ago. He was pronounced dead at 7:14pm Wednesday. Valle also shot another officer at the time, who was saved by his bulletproof vest. Valle was the first Florida inmate to be executed with a new mix of lethal drugs. Pena's children, who were 13 and 19 when he was killed, were present for the execution.

Former Death Row Inmate Granted Medical Parole Hearing: Sam Stanton of The Sacramento Bee reports California inmate Willie Curtis Miller, 84, has been granted a medical parole hearing. Miller was sentenced to death in 1968 for the sexual assault and murder of an 8-year-old girl. His sentence was converted to life in prison after the U.S. Supreme Court threw out the death penalty in 1972. Now Miller, who is in failing health, has a chance of getting out of prison under California's new medical parole law. 15 inmates have been released under the law since the state began holding medical parole hearings in May. Sacramento District Attorney Jan Scully is working to prevent Miller from becoming the 16th, calling him a "savage child molester and murderer."

PA High Court Says Mass Murderer Not Competent for Execution: The Associated Press reports the Pennsylvania Supreme Court has ruled that mass killer George Banks is mentally incompetent to be executed. Banks killed 13 people with a semiautomatic rifle in Pennsylvania nearly 30 years ago, including five of his own children. The state Supreme Court issued a unanimous ruling on Banks Wednesday, who has been on death row since 1982. His execution was stayed in 2004 after his mother filed a petition asserting that the execution would violate the U.S. Constitution. In the ruling, the justices cited testimony by medical experts who believe that Banks suffers from severe mental illness and is delusional about his crimes.

ICE Arrests Nearly 3,000 Criminal Immigrants: Tim Mak of Politico reports Immigration and Customs Enforcement announced Wednesday it arrested nearly 3,000 illegal immigrants with criminal records as part of a week-long sweep. The crackdown took place in all 50 states and led to the arrest of 2,901 individuals of which 151 were convicted sex offenders and 42 were gang members, according to ICE. This was the largest raid of its kind and included more than 1,900 ICE officers. The announcement came the same day U.S. District Judge Sharon Blackburn ruled that Alabama could enforce key parts of its immigration law.  

SCOTUS Denies Stay in Valle Case

The Supreme Court's orders are here and here.  No dissents are noted.

An earlier story by Brendan Farrington of AP is here.

Update:  Looks like Manuel Valle had a total of five petitions before the Court.  Two more denials were issued after the original post, here and here.

For the fifth one (actually the first, by docket number), Justice Breyer dissents, as federalist notes in the comments.  The order and dissenting opinion are here.  Breyer repeats the old Lackey claim, that it is cruel to execute someone after so many years on death row.  He includes these comments near the end (emphasis added):

It might be argued that Valle, not the State, is responsible for the long delay. But Valle replies that more than two decades of delay reflect the State's failure to provide the kind of trial and penalty procedures that the law requires. Regardless, one cannot realistically expect a defendant condemned to death to refrain from fighting for his life by seeking to use whatever procedures the law allows.

It might also be argued that it is not so much the State as it is the numerous procedures that the law demands that produce decades of delay. But this kind of an argument does not automatically justify execution in this case. Rather, the argument may point instead to a more basic difficulty, namely the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.

The italicized phrases highlight two of the problems with Justice Breyer's argument.  First, the law does not demand the length of procedures that currently exist.  Quite the contrary, if the lower federal courts were implementing AEDPA the way it was written and intended, the procedures would be far shorter.  Second, very little of postconviction litigation in capital cases has anything to do with identity of the perpetrator.  The Davis case was very much the exception.

I will address the first paragraph in a later post.

Jackie Alexander has this report of the execution for the Gainesville Sun.

News Scan

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California Cold Cases Reopened: Alameda County Police announced Tuesday that convicted murderer Eugene Protsman, 56, currently serving a life sentence for the brutal 1997 murder of a Southern California woman, is now eligible for the death penalty if he is convicted on the latest charges he faces for two Northern California cold cases. Investigators believe Protsman stabbed Alameda residents Manuel Garcia, 59, because he thought he was a police informant, and Diane Ely, 54, during an attempt to steal her car. Protsman became a suspect in the case after he used the name of Ely's fiance as an alias, but it was Sgt. Kevin McNiff's reopening of the case last year and new DNA evidence that allowed authorities to link Protsman to the crimes. AP reports in the SF Chronicle.

New DNA Analysis Technology is Faster and Cheaper: Justin Fenton of the Baltimore Sun reports the Baltimore Police Department is taking part in a program that could significantly speed up DNA analysis time and use less resources. The device will indicate to lab techs which samples are worthy of further analysis and will more quickly distill crime scene samples into categories, such as blood or sweat. The technology is at least a year away from being usable and won't be implemented for cases during the pilot phase, but officials hope it will be cleared for use if successful. The technology uses "microfluidics," an area of emerging research that has been used in academia and the private sector, but not yet in police labs. The type of DNA testing conducted will not be compatible with the FBI's Combined DNA Indexing System database, but experts say technicians could move forward with such comparisons after screening results.  

Cyberbulling to be same as Manslaughter in New York: Bradford Schmidt of Newsmax reports on legislation presented by New York State Sen. Jeffrey Klein that would expand the definition of third-degree stalking to include cyberbullying, which it defines as "causing fear of harm or emotional distress using electronic communications to a person under 21." It would also add to the definition of second-degree manslaughter the crime "Bullycide," or cyberbulling that pushes someone to commit suicide.

Serving Sentences Online

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The famous/notorious satire publication the Onion posted this story:

SACRAMENTO, CA--Faced with a mandate to cut the state's prison population by 30,000, the California Department of Corrections and Rehabilitation announced Monday it would begin allowing prisoners to serve their sentences online. "Inmates are required to log in promptly every morning at 6 a.m.," CDCR secretary Matthew Cate said. "But make no mistake, this is not some online holiday resort prison. Offenders spend at least eight hours a day entering data and can only see visitors in the chat room once a week. The real advantage of the Internet penitentiary is that it streamlines the entire corrections process, allowing a standard five-year sentence to be completed electronically in as little as three weeks." Cate added that while there was still a problem with prison rape, inmates could report an assault or any other issue by clicking on the "Ask the Warden" button.

That's funny enough, but even funnier is that Doug Berman posted it at SL&P, identifying it as from the Onion but not otherwise indicating it was satire, and one of the more excitable and clueless commenters there went ballistic.

There is a principle I call Swift's Law, in honor of the great English satirist Jonathan Swift.  Any time you write satire or use irony, no matter how obvious you think it is, somebody is going to take you literally.

News Scan

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Ohio Governor Commutes Sentence:  Alan Johnson of The Columbus Dispatch reports Ohio Governor John Kasich yesterday commuted the sentence of convicted killer Joseph Murphy from death to life without the possibility of parole.  Murphy was set to be executed in October for the 1987 murder of Ruth Predmore, 72, whom he stabbed to death during a robbery of her home.  Governor Kasich concurred with an 8-0 parole board recommendation that Murphy should not be executed, largely because of his abused and neglected childhood.

Judge Rules Oregon Death Row Inmate Competent to Waive Appeals:  An Oregon circuit judge today ruled that death row inmate Gary Haugen is competent to assist his lawyers and understand the consequences of his request to be executed, reports Jonathan J. Cooper of the AP.  Haugen has sought to waive his appeals and be executed, but death penalty opponents have continued to file legal motions to block the execution.  Some have said they will go so far as to appeal to the governor for clemency.  The judge today did not go so far as to formally rule Haugen is competent to be executed and did not issue a death warrant, but relied on a psychologist's report stating that Haugen understood waiving his appeals would end his life.

Mens Rea

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And now, for something completely different, the term mens rea appears in the first paragraph of a front-page story in a newspaper not specifically for lawyers.

Gary Fields and John Emshwiller have this story in the WSJ on watering down of the criminal intent requirements in federal criminal laws.  Their lead horror story is a Native Alaskan trapper charged with a crime for selling sea otters.  The sale would have been perfectly legal if the buyer were another Native Alaskan but, unknown to the seller, he was not.

Declining mens rea requirements are compounded by overfederalization and overcriminalization.

The criminal law draws its moral force from a societal consensus on the wrongness of the conduct.  Expanding criminal law beyond inherently wrong acts such as robbery and murder into regulatory matters needs to be done carefully.  As the story illustrates, Congress has been astonishingly sloppy at times.

F. James Sensenbrenner, a Wisconsin Republican and chairman of the House crime subcommittee, said he wants to clean up the definition of criminal intent as part of a broader revamp of the criminal-justice system. There are crimes scattered among 42 of the 51 titles of the federal code, with varying standards of criminal intent. Still others are set by court decisions.

"How the definition of mens rea is applied is going to be one of the more difficult areas to figure out a way to fix," he said.

The Short List from the Long Conference

Well, this is disappointing.  The US Supreme Court met for its "long conference" yesterday.  That is the private conference of the Justices where they consider the petitions for certiorari (asking the Court to take up a case) that built up over the summer while they were off in Austria or Lake Tahoe or anywhere but Washington.  (The Clerk went to Lubbock, a curious choice.)

The day after the conference, the Court issues a short list of orders with the cases it has decided to take up, along with some administrative matters in pending cases.  Today's order is here.  The much longer list of cases not taken will be issued at the formal beginning of the term, the first Monday in October.

There appears to be a grand total of one criminal or habeas case, and it is a quirky statute of limitations case.  In Wood v. Milyard (U.S. No. 10-9995, USCA10 No. 09-1348), the District Court raised a statute of limitations issue sua sponte.  "[T]he Respondents provided a cryptic response to the timeliness question. They first incorporated an argument from their pre-answer response about the statute of limitations expiring before Wood filed his habeas petition, and then stated that they were 'not challenging, but do not concede, the timeliness of [Wood's] [habeas] petition.' "  Huh?  The District Court dismissed some claims as unexhausted and others as meritless, but the Court of Appeals affirmed on statute of limitations.

Why this oddball case is certworthy is less than clear, especially in a case where the defendant is clearly guilty, he got a sentence that is definitely no more than he deserved and arguably less, and the underlying procedural claims are meritless.

So, of the numerous more certworthy cases on the conference list, which did they turn down, which did they vacate and remand, and which did they "relist" for reconsideration at a later conference?  Check back here Monday.

In how many habeas cases will we see an order of "granted, vacated, and remanded for reconsideration in light of" Richter, Pinholster, or both?  How many for Walker v. Martin?  A fair number, I expect.
Ken Jost of Congressional Quarterly has this post at his Jost on Justice blog, with the above title. Jost is definitely not one to shade his assessments in favor of the law enforcement side of things.  He tends to lean the other way.

Occupational Safety for Violent Criminals

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The always provocative Lester Jackson has this article on prosecuting people for defending themselves.  He begins with an interesting analogy to the 1970 Occupational Safety and Health Act and an assertion that the "elite anti-victim mentality" seems to lead some people to believe that criminals deserve a safe workplace in their chosen occupation.

I won't comment on the specific cases he discusses, but it certainly is true that the right of self-defense is too narrowly construed in many jurisdictions, and too many people are prosecuted for actions that should be legal or even praiseworthy.  Here CJLF sometimes splits from our usual allies on the prosecution side of the aisle.  We have filed only three briefs supporting defendants since I have been legal director, and two of them were in allegedly excessive use of force cases.

Also preposterous are civil suits by burglars against property owners for injuries suffered while attempting a felony.  Back when we had more sense, criminal entry onto the property was an absolute defense to such a suit.  Now the insurance company settles.

An English Abolitionist Looks at Troy Davis

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Although I cannot agree with CNN's geographer that England (together with France and Germany) constitutes the entire world, the English are our forebearers and largely gave us our law.

This weekend, an astute English writer  --  and a death penalty abolitionist, no less  --  took an unvarnished look at the Troy Davis protest crowd.  What he saw was not pretty:

There are few subjects that provoke as much smug condescension and shallow anti-Americanism as the death penalty in the United States. And the "debate" over the execution in Georgia last Wednesday of Troy Davis, 42, convicted of the 1989 murder of Mark MacPhail, an off-duty police officer, marked a new low.

The sheer emotionalism and partisanship of much of the coverage of the case in Britain was an embarrassment. On virtually no other subject could you find facts presented so selectively, conclusions so sweeping and reasoning so simplistic.

He decided to present some of the facts selectively swept under the rug:

Unfortunately, little about the Davis case fits this [the protesters'] picture. A jury of seven blacks and five whites found that Davis, who had a street name of "Rah", standing for "Rough As Hell", had been pistol-whipping a homeless man in a Burger King car park and had shot MacPhail dead when he intervened.

Again and again, courts confirmed the Davis conviction as being on legally solid ground. Lynchings [the word used by the protesters] were carried out by racist mobs rushing to judgement, dragging their quarry out to string them up from a tree. To describe a two-decade legal process that twice went to the highest court in the land as a "lynching" is to try to strip the word of all meaning.

With very, very few exceptions, I have yet to read in the American press anything remotely as honest at this British piece.

Hat tip to TarlsQtr.

The effort is underway to portray the execution of cop killer Troy Davis as a worldwide outrage.  We can hardly be surprised that the usual abolitionist outlets are lathered up, but might have hoped that allegedly mainstream networks like CNN would do some fact-checking before joining the party.

Oh well.

Here's the CNN headline:  World shocked by U.S. execution of Troy Davis

There's only one thing wrong with the CNN story, that being that it says absolutely nothing about "the world."  It notes that an EU official learned "with deep regret" of the execution, and that there were protests in England, France and Germany.

That's it. Three countries.  I had not previously been aware that the "world" consisted of three countries, or of all Europe for that matter.  Some of us thought the "world" consisted of other places including Africa, the Mideast, the Subcontinent, the Orient and North America -- every one of which, unlike Europe, has and uses the death penalty, and some of which use it much more frequently than we do. 

 Maybe I should send CNN a globe.

P.S.  There are actually 196 countries in the world, and the four largest of them  --  China, India, the United States and Indonesia  --  all use the death penalty.

CNN Program on Death Penalty

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I will be on CNN shortly discussing the death penalty.  I expect I may need to refute the prevailing spin on the Troy Davis case.  So for the convenience of the viewers I will repost a couple of links here.

Excerpt of US District Court decision, with links to full text.

Article by Charles Lane on the Washington Post site.

Update:  Turned out the links weren't necessary.  Because of the time of this program (6:15 a.m. Saturday morning Left Coast time, yawn), no studio was available here, and I had to go on via Skype from home.  So my opponent, Richard Dieter, had the aesthetic advantage, being in studio in Washington.  I think I prevailed on substance.

I couldn't find video on the CNN site, but I will post a link later if they put it up.

Job Training for Inmates


In the age of cutbacks to the criminal justice system, one thing we should preserve  --  yea, expand  --  is, we are told, job training for inmates.  In principle, this makes perfect sense.  If inmates don't have job skills, you don't have to be a genius to figure out what they're going to do to get money once they're released. 

But what, exactly, is the government's version of "job training?"  This would seem to be a central question, but I seldom see it asked.  A recent Wall Street Journal piece took a look.  The job training it surveyed was not specifically designed for inmates, but it's reasonable to assume that what inmates get won't be any better (when is it ever?).

What the WSJ found was that "job training" imparts, not so much marketable skills, as a combination of freebies for politicians, bad work habits for trainees, and outright nonsense.  For example:

...the Job Training Partnership Act, JTPA , spent lavishly--to expand an Indiana circus museum, teach Washington taxi drivers to smile, provide foreign junkets for state and local politicians, and bankroll business relocations. According to the Labor Department's inspector general, young trainees were twice as likely to rely on food stamps after JTPA involvement than before since the "training" often included instructions on applying for an array of government benefits.****

[The recent] stimulus package expanded federally funded summer jobs. And so young men and women used puppets to greet aquarium visitors in Boston. Teens in Washington, D.C.'s Green Summer Jobs Corps maintained "school-yard butterfly habitats." And summer workers in Florida, the Orlando Sentinel reported, "practiced firm handshakes to ensure that employers quickly understand their serious intent to work."

The article is depressing but revealing.  It's a primer on what to bear in mind the next time you're lectured about the virtues of "job training."

Under what circumstances does a challenge to the reliability of an eyewitness identification become a federal constitutional issue rather than a question of state evidence law?  The Supreme Court's identification cases of the 1960s and 1970s involved allegations that the police had tainted the identification.  They used improper, unnecessarily suggestive techniques, or they excluded defense counsel from a lineup.  What if the police had nothing to do with the circumstances alleged to have made the identification unreliable?

In Perry v. New Hampshire, the defendant wants the Supreme Court to scrutinize identifications for reliability under the Due Process Clause of the Fourteenth Amendment even when the identification was spontaneous by the witness.  The case will be argued November 2.

CJLF's amicus brief in this case was mailed in today.  We contend that this matter is and should remain a question of state evidence law, not federal constitutional law.  As Justice Stewart said in Spencer v. Texas, the Constitution does not give the Justices "a roving commission to impose upon the criminal courts of [the states their] own notions of enlightened policy...." 

Reliability of identification is an important issue, to be sure, but not everything important is a federal constitutional issue to be decided by the US Supreme Court.  Some issues about reliability remain disputed among experts.  Better to advance this aspect of law through rule-making and legislative processes than through constitutional case law.

The brief was written primarily by CJLF attorney Christine Dowling.

Oh, and if it makes everyone feel better, Perry is stone-cold guilty without the challenged identification.  He was caught loot-handed by a police officer at the scene and identified by another, unchallenged witness as well.

News Scan

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Sexual Predator Demands Release: The Iowa Supreme Court ruled Friday in the Story County case of Harold Johnson, a convicted violent sexual predator currently serving in the state's violent sexual offender program. Johnson argued that his rights were violated because his February 2009 hearing was not within 60 days of when it was ordered as required by Iowa's state law. The hearing was to determine if Johnson was still at risk to commit sexually violent offenses. The supreme court ruled there is no provision for a sexual predator to be released if the deadline is missed. AP has this report. 

Arizona Man Sentenced to Death for Murder of Family: The AP reports a Maricopa County jury yesterday sentenced former businessman William Craig Miller to death for the murder of five members of a family, including two children. Miller shot two former employees-turned-police-informants to prevent them from testifying against him in an arson case, then shot three of their family members, ages 18, 15, and 10. Miller's defense attorney told the jury Miller suffered from bipolar disorder.

Texas Ends Final Meal Tradition: In response to complaints from a prominent Texas state senator, Texas has put an end to its special final meals for condemned inmates, reports the AP. The controversy began when Lawrence Brewer, executed on Wednesday for the dragging death of James Byrd Jr. in Jasper, Texas, asked for two chicken fried steaks, a triple-meat bacon cheeseburger, fried okra, a pound of barbecue, three fajitas, a meat lovers' pizza, a pint of ice cream, and a slab of peanut butter fudge with crushed peanuts. Brewer didn't eat any of it. Condemned inmates will now receive the same meal served to other offenders on the unit.

Blinked Testimony Allowed: WLMT News 5 reports a Cincinnati judge agreed to allow testimony from a now-deceased man who identified a murder suspect by blinking his eyes. Prosecutors say they videotaped paralyzed victim David Chandler from his hospital bed, where he indicated by blinking that Ricardo Woods shot him. "I find from the totality of the circumstances based on Ohio law and the facts as I found them that the identification is reliable and there is not a substantial likelihood of misidentification," said the judge.

Below the Gutter


I think I've related the old joke about why scientists doing behavioral experiments with animals are considering switching from rats to lawyers:  There are some things a rat won't do.

The joke came to mind when I saw this article.  Readers may judge for themselves whether a rat would do it.

Sure, defense counsel in a capital case has to push the envelope.  It might be proper to seek information about whether the officer charged with inserting the needle has hand tremors or bad eyesight.  But the inquiry here mocks  --  how shall I put this?  --  the evolving standards of decency that mark the progress of a maturing society.  Well, maybe not so much.  It mocks any decency at all.

We have also seen recent efforts by the bar to ban comfort dogs used to help terrified child rape victims when they testify, and to pooh-pooh the sexual sadism that went on in the Petit murders by saying (almost certainly falsely) that Mr. Nicey didn't really sodomize the 11 year-old victim before he burned her to death, he "claimed only to have 'ejaculated upon' the girl,

This kind of stuff is what some call "acting in the highest traditions of the profession."


Circuit Judge Pamela Rymer

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Judge Pamela Rymer of the US Court of Appeals for the Ninth Circuit died Wednesday of cancer.  She served 22 years on the court.  She will be greatly missed.  The Ninth Circuit's press release is here.  AP story is here.

No crim. in debate (well, hardly any)

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A transcript of last night's debate is here.  No actual criminal law issues came up.  A tangentially related issue was illegal immigration, on which Rick Perry came off as the liberal.
In this NYT op-ed, Dahlia Lithwich and Lisa McElroy are all upset that the US Supreme Court just issued a simple denial in the Troy Davis case, with no explanation.  Unexplained denials are, of course, standard operating procedure at the discretionary review stage, not just at SCOTUS but also in most state high courts.

As for an opinion of the Court, I do not believe I have ever seen an opinion explaining the reasons for a denial.  Individual justices sometimes write opinions explaining their votes for or against taking a case up.  These can be found on the Court's website in the Opinions Relating to Orders section.

Should one or more of the Justices have made a statement in this case?  What should they have said?  Something like this maybe:

The level of concern that Davis might be innocent was sufficient for us to take the extraordinary step of transferring last year's original habeas petition to the District Court for hearing.  Judge Moore conducted a thorough hearing, wrote a detailed decision, and found that Davis's claims are "smoke and mirrors."  Upon review of the record, I believe that assessment is not only supported by the record but is clearly correct.  There is no reason for further delay in the execution of this judgment.

Would that make Mss. Lithwick and McElroy feel better?  Somehow I doubt it.

[BTW, what is the plural of Ms.?  I just guessed.]

A NYT Writer Has His Say


John Schwartz of the New York Times called me yesterday to get my take on the Troy Davis execution (which was then still several hours away).  His article appears in the Times today.

The quotations he attributes to me are correct but not complete.  I do not attribute this to any ill will or bias on his part.  Writers have word limits, and it's simply not possible to get in everything an interviewee says.  I want to take this opportunity, however, to add to what appears in the article.

The portion in which I am quoted is this:

William Otis, a former federal prosecutor and special White House counsel under President George W. Bush, said "there has to be finality for any system that's going to work," but added: "To say that there has to be finality is not to say that things should be rushed. The primary duty of courts is to get it right."

A problem for Mr. Davis's defenders, he said, is that judges tend to look at recantations, especially from witnesses who are in prison, "with a flinty eye."

Mr. Otis added: "The question is not whether you can avoid errors. The only realistic question in an adult mind is which set of errors you're going to accept. You have to be mature and honest about it, and understand there is the risk of executing an innocent person."

It is certainly true that the primary duty of courts is to get it right, and that a rush to judgment must be avoided.  But no such thing happened in the Davis case.  Appellate courts looked at it a dozen times over the course of two decades.  To my knowledge, not a single judge or Justice took the view that the evidence, then or now, showed that Davis was innocent. 

A WaPo Writer Gets It Right

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Charles Lane at the PostPartisan Blog:

Troy Davis' execution is nothing to celebrate. The only satisfaction it offers, if any, is the grim kind that comes from knowing a killer got his just deserts.

Of course, to opponents of the death penalty, every execution is an outrage. Davis' supporters say this one is worse: the deliberate state killing of a man despite evidence that he is innocent.

If they're right, Georgia and all of America should be ashamed.

But they're wrong: Troy Davis is guilty.

HLN and AJ-C Get It Right

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As noted earlier today, I was on HLN's Special Report with Vinnie Politan about an hour ago.  I have been sharply (and justifiably) critical of much of the press coverage of the Troy Davis execution, but here I want to offer kudos to HLN and to Atlanta Journal-Constitution reporter Rhonda Cook.  Along with all the usual stuff, they pointed out the extraordinary hearing in this case and the judge's finding that the claim we hear over and over about how many witnesses recanted just isn't true.  Well done.

At the beginning of the opinion segment we had an audio problem causing an echo, in case you're wondering why I paused between phrases.

News Scan

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FBI/LAPD Gang Task Force Combat Gang Violence: A joint task force of the FBI and the Los Angeles Police Department's criminal gang homicide unit have solved 32 homicides and made 168 arrests over the summer, reports Andrew Blankstein in the Los Angeles Times. The three-month operation "Save Our Streets" sought to quell gang violence and clear the backlog of unsolved gang killings in South Los Angeles. The federal assistance came as a great relief to the city police department, as budget cuts have recently required the department to limit overtime and accordingly, the number of hours dedicated to investigations.

California Tax Payers Won't be Paying for Transgender Inmate's Sex Change: Jack Dolan of the Los Angeles Times reports Lyralisa Stevens, a transgender California inmate, lost her legal bid for a sex change operation funded by the state. On Wednesday the 1st District Court of Appeal in San Francisco denied her request for surgery after a two-year legal battle. Stevens, who was born male but lives as a female, has been receiving hormone treatments from the state, which cost about $1,000 a year per recipient. Stevens wants her male genitalia removed so corrections authorities would be compelled to move her to a woman's lockup, an operation that would cost between $15,000 to $50,000. Her attorney is considering an appeal to the state Supreme Court.

Alabama Execution Scheduled for Later Today: Peggy Gargis of Reuters reports Derrick O'Neal Mason, 37, is set to be put to death by lethal injection today at 6pm local time at Holman Correctional Facility in Atmore, Alabama. Mason was convicted murdering 25-year-old Angela Cagle during an attempted robbery of a convenience store. According to authorities, Mason forced her to strip naked before shooting her twice in the face at close range. Earlier this month, the judge who sentenced Mason asked Alabama Governor Robert Bentley to spare Mason's life, writing in a letter that had he tried the case as a more experienced jurist, he would have sentenced Mason to life without parole. Governor Bentley said yesterday he would not intervene to halt the execution.

Jaycee Dugard Sues Feds: Brooke Donald of the AP reports Jaycee Dugard filed a lawsuit against the federal government today for failing to monitor convicted sex offender Phillip Garrido while he was on federal parole. The complaint alleges that federal parole officers were aware Garrido was dangerous and that their negligent supervision left Garrido to be free to kidnap Dugard.
"Had federal parole authorities demonstrated a modicum of vigilance ... Jaycee and her daughters would not have been forced to endure a virtual lifetime of physical and mental abuse," Jaycee's lawyers said.

HLN Program on Death Penalty

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CJLF's Legal Director Kent Scheidegger is scheduled to be on HLN from 5:10 to 5:30 Eastern today discussing the death penalty in the wake of the Davis execution.

As always with television news, schedules are subject to change from breaking news, etc.

When I Was There, It Was Just Potato Chips


Remember how we're so strapped for cash that we have to release prisoners before their sentences are up? 

Remember that?

Not to worry.  We still have dough for the really important things.

At one point in my career, I was a political appointee at DOJ with a big, fancy office.  But back then, we just had potato chips.

While Ann Coulter lays out the evidence, Dahlia Lithwick of Slate, who never saw a killer without an excuse, insists that the Troy Davis execution means the death penalty is done for in the United States.

Ms. Lithwick is a relentless campaigner against capital punishment who, like most such campaigners, begins from the assumption that racism and sleazy prosecutors, among a zillion other things, make capital punishment a moral stain.  She has decided the public will now agree with her because, inter alia, "many" people believe Davis was innocent, and the morally impervious quest for "finality" of judgment, having now been exposed, will give way to the more compelling desire to be certain we have the right guy.  Since we can never really be certain  --  or at least not often enough  --  death penalty support will wither.

Ms. Lithwick's piece is so stuffed with fraud that it would take me all day to deconstruct it, and I don't have all day.  So I'll just do her first paragraph.


The Facts You Won't Hear About Troy Davis


Ann Coulter is a controversial figure to be sure, but her article telling the truth about Troy Davis and the strength of the evidence against him is very much worth the read  --  for its own merit, and as an illustration of how much the mainstream media has kept under wraps about this case.  We've heard again and again about the Pope, Bob Barr and the ever fatuous Jimmy Carter, but precious little about what actually happened.  Ms. Coulter fills us in.  I give one sample below, but her entire piece is worth the read:

It's nearly impossible to receive a death sentence these days - unless you do something completely crazy like shoot a cop in full view of dozens of witnesses in a Burger King parking lot, only a few hours after shooting at a passing car while exiting a party.

That's what Troy Davis did in August 1989. Davis is the media's current baby seal of death row.

After a two-week trial with 34 witnesses for the state and six witnesses for the defense, the jury of seven blacks and five whites took less than two hours to convict Davis of Officer Mark MacPhail's murder, as well as various other crimes. Two days later, the jury sentenced Davis to death.

Davis Execution Delayed, But Carried Out

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The US Supreme Court did not issue a stay in the Troy Davis case, but Georgia officials delayed the execution anyway while the high court considered the latest last-ditch petition.  They denied it without dissent.  The order is here.

Since Judge Moore's decision a year ago, excerpted here, finding that Davis's claims were "smoke and mirrors," the case has been to the Supreme Court twice.  On neither occasion was there any dissent from the Court's decision not to take the case.

Clearly, all nine of the Justices find Judge Moore's findings and decision credible.  The Davis PR machine managed to whip up a froth of outrage anyway.  In much of the coverage of the case, Davis's spin is reported as the facts and Judge Moore's careful, thorough decision is discounted or misrepresented.

How many times in the last few days have you heard it reported as fact that seven witnesses recanted?  But it's not a fact.  The judge found that two of the statements are not recantations at all.  Another two were only affidavits obtained by Davis's lawyers, followed by their refusal to call the witness to testify.  Given how easy it is to pressure someone to sign something, that highly suspicious refusal is close to an admission that the affidavit is not the witness's real statement.

Large numbers of people have a grossly distorted view of the facts of this case, and that is not good.

Troy Davis Executed by Georgia

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Troy Davis was executed tonight by the state of Georgia for his role 22 years ago in the murder of a police officer, Mark MacPhail, while MacPhail was coming to the aid of a homeless man.

Georgia held off on the execution for several hours while the Supreme Court considered a last-minute appeal.  It was not legally required to do so; unlike its action in several other recent cases, the Court did not enter a stay.  Given that, Georgia could have executed Davis on schedule, but declined.

The case was controversial because Davis maintained his innocence and seven of the nine eyewitnesses recanted their testimony years after the fact [Update:  It was actually fewer than that, as Kent correctly notes in the next blog entry].  The case was also unusual because the Supreme Court ordered a hearing to assess Davis's claim that insufficient relible evidence supported his conviction.  The United States District Judge who convened the hearing refused relief in a lengthy opinion, and the Supreme Court declined to issue a writ of certiorari to review his order.  There were no dissents.

There were also no dissents from tonight's order denying a stay of execution.

I take satisfaction that justice has been done.  But satisfaction is not happiness. There's no happiness to be found in this case, not one little bit. 

The Whole Constitution Pledge

Some folks calling themselves "Constitutional Progressives" have come up with this Whole Constitution Pledge.  Some of it is perfectly fine, including the punch line, "I pledge to support the whole Constitution."  I do support the whole Constitution, but do the people who wrote the pledge?

Other parts of the pledge are more problematic.  Some parts are jousting with enemies who are either imaginary or harmless.  Some parts are logically impossible.

So let's look at the pledge, bit by bit.

News Scan

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Maryland Court: Death Penalty Standards Constitutional: The Maryland Court of Appeals (the state's highest court) rejected a claim by death row inmate Jody Lee Miles that the Sixth Amendment requires every juror in a capital case to find beyond a reasonable doubt that the aggravating circumstances of the crime outweigh the mitigating circumstances. Miles had argued that his death sentence became illegal after the Supreme Court's 2007 decision in Cunningham v. California addressing California's determinate sentencing law. The court found that Maryland's standard satisfied constitutional restrictions, and that any modification of the standard should be left to the legislature. Miles, one of five men on Maryland's death row, was sentenced to death for the 1997 robbery and murder of theater manager Edward Atkinson. WBAL Baltimore reportsThe decision reaffirms the Maryland high court's 2003 decision in Oken v. State, which CJLF helped win.

Connecticut Creates Criminal Justice Information System: Connecticut Governor Dannel P. Malloy announced yesterday the state has signed a $14.2 contract to create a Criminal Justice Information System, which will allow sharing of information among nearly a dozen criminal justice agencies in the state. After the 2007 deadly home invasion of the Petit household in Cheshire, police, prosecutors, and parole officials told lawmakers the state needed a computer network that allows agencies to track offenders through the system. The Hartford Courant reports.

"I'd do it all over again," Says Texas Death Row Inmate: Texas death row inmate Lawrence Brewer says he is ready to accept his punishment as he is scheduled to die Wednesday for the brutal 1998 murder of James Byrd Jr.  Byrd was walking alongside a country road in East Texas when Brewer and two other men offered him a ride. Instead they beat Byrd, chained his ankles to the back of their pick-up truck, and dragged him for more than two miles until he slammed into a culvert and was beheaded. Brewer continues to assert his innocence, claiming one of the other men sliced Byrd's throat - a theory entirely unsupported by the evidence. When asked about the night of the murder, Brewer says, "As far as any regrets, no, I have no regrets. No, I'd do it all over again, to tell you the truth." Doug Miller of KHOU 11 News (Houston)  reports

Governor Brown Defends His "Bold Move": Don Thompson of the AP reports California Governor Jerry Brown defended his public safety realignment plan today before a conference of hundreds of law enforcement and local government officials. Many county officials are worried they don't have the financial resources to handle the tens of thousands of inmates that will be shifted from state to local custody beginning October 1. Today Brown promised to do "whatever it takes" to guarantee the money through a constitutional amendment, saying he hopes to place a measure before California voters in the November 2012 election.

The other execution scheduled for today

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Now here is an unfortunate bit of timing.  With all the media attention focused on the Troy Davis case, there will likely be little coverage of the execution of Lawrence Brewer.  NPR does have this story:

A white supremacist gang member was headed to the death chamber Wednesday for the infamous dragging death 13 years ago of James Byrd Jr., a black man from Jasper in East Texas.

Byrd, 49, was chained to the back of a pickup truck and pulled whip-like to his death along a bumpy asphalt road in one of the most grisly hate crime murders in recent Texas history.

Appeals to the courts for inmate Lawrence Russell Brewer, 44, were exhausted and no last-day attempts to save his life were filed.

During the 2000 presidential campaign, this case was the subject of what is probably the most dishonest television commercial in the TV-era history of such campaigns.   The NAACP ran footage of a chain dragging behind a pickup while castigating George Bush over a Texas hate-crime law.  The implication was that Bush was soft on crimes such as this.  The truth is exactly the opposite.  The NAACP is the one that is soft on crimes such as this.  Texas gave the two main killers a punishment greater than the maximum the NAACP supports, and one of these sentences will be carried out today.

The execution is a counterexample to one of the persistent myths the opposition constantly pushes:  that our society is less willing to impose this punishment in black-victim cases.  We have refuted that time and again.  See my Engage article and my testimony at the London event.  But concrete examples sometimes do more to sway public opinion than studies or papers.  That is why I find it regrettable that this execution will be lost in the Davis hubbub.  Well, there's one more coming down the pipeline.

Update:  Justice has been served.  AP story here.

CNN has this story:

For the Georgia prosecutor who put Troy Davis on trial in 1991 for killing a cop and won a conviction, there were two cases being fought.

"There is the legal case, the case in court, and the public relations case," Spencer Lawton, the former Chatham County prosecutor, said. "We have consistently won the case as it has been presented in court. We have consistently lost the case as it has been presented in the public realm, on TV and elsewhere."

Testing the Limits of Prosecutorial Discretion

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The following is a guest post by Andrea Vitalich:

As a person who has been proud to serve the public as a prosecutor for over 15 years, I have long believed that the most critical decision a prosecutor makes in any case is the charging decision.  In making this critical decision, a prosecutor must try to accurately describe the scope of the defendant's conduct, to charge the case in a manner that will result in a punishment that is proportionate and just, and to avoid overreaching.  In other words, a prosecutor should always serve justice.  If a prosecutor does not serve justice, and makes a charging decision that is unjustly lenient or unreasonably harsh, that prosecutor will serve only to shake the public's confidence in a system of which many are already distrustful.
That said, it is sometimes the case that the only just decision is not to charge a crime at all.
These principles were brought into sharp focus when I read this story about the prosecution of several Italian scientists, who are charged with manslaughter.  Their "crime," according to the prosecutor, was the failure to issue a sufficiently urgent warning about the possibility of an earthquake following a period of seismic activity in a region where -- six months later -- a serious quake killed over 300 people.

While the deaths of these innocent people is unquestionably a tragedy, what theory of criminal liability supports the charge of manslaughter in these circumstances?  Was the scientists' conduct (or, in this case, the lack thereof) criminally negligent?  Certainly, if the scientists had known with any degree of certainty what would occur in six months' time, they would have shouted urgent warnings from every rooftop.  I'm no scientist, but even I understand that predicting an earthquake is about as exact a science as predicting the stock market these days.
What overarching purpose does this prosecution serve?  Certainly not deterrence, unless the conduct to be deterred is the issuance of any information whatsoever by any Italian scientists in the future.  Not retribution, because the scientists did not cause the deaths, even in the most Rube Goldbergian view of the universe.
Perhaps if the Italian prosecutor had asked him- or herself what I believe is the most crucial question, this prosecution would have never begun.
That question is:  Will this charge serve justice?

Have They No Sense of Decency?

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The beginning of the end for Senator Joe McCarthy was when a gutsy lawyer, Joseph Welch, who had had enough of McCarthy's bullying, famously asked, "Have you no sense of decency?"  (Often mistakenly quoted as, "Have you no shame?").

I had the same reaction when I read this story appearing today in the New York Times concerning the defense tactics in the murder trial for the second killer in the Petit rape/murder case in Connecticut.  When reader federalist sent me the story, his one word for it was, "disgusting."

I see no way to disagree with that.  If this is what the defense bar has come to, things are at a lower ebb than I had believed.

You would think that Dr. Petit has gone through enough.  You would think wrong.  I simply do not understand how the leader of the defense team, Jeremiah Donovan, or any human being with even minimal empathy for his fellow creatures, could launch this kind of defense.

Mr. Donovan, have you so sense of decency? 

Another Stay in Foster

The US Supreme Court continues to play "red light, green light" with the execution of Texas murderer Cleve Foster.  Today's stay order is here.

For background, see prior posts:

Tim Madigan of the Fort Worth Star Telegram has this pre-stay story.
The Sixth Circuit today held that Michigan's parole scheme does not create a constitutionally protected liberty interest cognizable on federal habeas review:

[I]n determining whether Michigan's parole system creates a liberty interest, we must determine whether Petitioner had "a legitimate claim of entitlement to" parole, rather than "an abstract need or desire for it."

News Scan

Idaho Inmates Settle Prison Lawsuit: Rebecca Boone of the Associated Press reports a potential class-action lawsuit against Nashville-based Corrections Corporation of America over allegations of violence at the Idaho Correctional Center has been settled in federal court. The inmates, represented by the ACLU, sued last year on behalf of everyone incarcerated at the state prison. CCA is the largest private prison company in the nation. In the agreement, CCA doesn't acknowledge the allegations but agrees to make sweeping changes. The ACLU and CCA prepared a joint statement in which both sides agreed they would rather work towards improving future conditions at the prison than try to litigate allegations of past problems. Federal oversight of the settlement will last for two years.

Surviving Victim Testifies in Connecticut Home Invasion Trial: Dr. William Petit Jr. testified today in the triple murder case against Joshua Komisarjevsky, accused of killing Petit's wife and two daughters in a brutal 2007 home invasion. Petit also testified during the trial of Steven Hayes, who was convicted of 16 counts and sentenced to death last year for the crimes. One of Komisarjevsky's defense attorneys conceded yesterday during his opening statement that his client planned the break-in, targeted the Petit home, and beat Petit with a baseball bat after entering the home, but claimed "he never intended to kill anyone." Randall Beach has this report in the New Haven Register. 

Pilot Program for California Parolees Tested in Sacramento: Karen Massie of News 10/KXTV Sacramento reports about 100 parolees in Sacramento are taking part in Project Hope, a pilot program that hopes to reduce recidivism rates among parolees. According to California Department of Corrections and Rehabilitation researcher Brenda Grealish, parolees call in to their parole officer every day instead of once a month. Parolees are called in at random and have to report that day, where they undergo a drug test. "If they test dirty, we send them to jail immediately," Grealish said. Parolees face seven to ten days in county jail for the violation instead of four months in state prison. According to Grealish, preliminary results show the constant fear of going to jail is working. Sacramento Sheriff Chief Deputy Jamie Lewis says he worries about increasing the county's burden. State officials say the program will save the state money by focusing on parolees who can't stay drug-free and away from crime.

The Troy Davis Case

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The Troy Davis controversy continues, as the Georgia Board of Pardons and Paroles denied clemency.

The most important document in this case is the opinion of the US District Court following the transfer from the Supreme Court and the evidentiary hearing.  To make this more accessible to the public, I have created an excerpt with links to the full opinion.

News Scan

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FBI: Violent Crime Down:  The FBI announced today that violent crime dropped six percent last year, making 2010 the fourth year in a row violent crime has declined.  Property crime was also down for the eighth year in a row, dropping 2.7 percent.  Criminologists attribute the lower crime rates to an aging population, better policing, and continued high rates of imprisonment.  Criminal justice research professor John Eck of the University of Cincinnati adds that an important factor is improved policing practices that focus on high-crime locations in which "you are denying the criminal the ability to attack targets.  Virtually every large city is doing something."  Pete Yost of the AP has this story.

11th Circuit Tosses Lenient Sentence for Convicted Terrorist:  The AP reports the 11th Circuit today vacated the sentence of convicted terrorist plotter Jose Padilla, finding that his 17-year sentence was far too lenient in light of his extensive criminal history and future dangerousness due to his al-Qaeda training.  Padilla and two other co-defendants were convicted in 2007 of several terrorism-related charges.  He was held as an enemy combatant for more than three years without being charged, a fact that the sentencing judge considered when reducing Padilla's sentence by 12 years.  "Although some downward variance is allowed in this circumstance, the district court abused its discretion," said the ruling written by the 11th Circuit Chief Judge Joel F. Dubina.

The Aroma Gets Stronger


I wrote here about the potential scandal involving President Obama, the green energy company Solyndra, and Solyndra's biggest investor, George Kaiser.  Notwithstanding the FBI's apparently extensive interest in the company and its principals, I said I didn't know whether a crime had been committed.  I still don't, and the President and his aides are entitled to the presumption of innocence at this stage.

The presumption of innocence does not mean, however, that this matter cannot be viewed through the lens of common sense and experience.  Thus I found this AP story somewhat disquieting.  Its title is, Obama admin reworked Solyndra loan to favor donor.  It begins:

The Obama administration restructured a half-billion dollar federal loan to a troubled solar energy company in such a way that private investors -- including a fundraiser for President Barack Obama -- moved ahead of taxpayers for repayment in case of a default, government records show....[T]he implosion of the company and revelations that the administration hurried Office of Management and Budget officials to finish their review of the loan in time for the September 2009 groundbreaking has become an embarrassment for Obama...

Embarrassment is one thing, but this in particular is what caught my eye:

Under terms of the February loan restructuring, two private investors -- Argonaut Ventures I LLC and Madrone Partners LP -- stand to be repaid before the U.S. government if the solar company is liquidated. The two firms gave the company a total of $69 million in emergency loans. The loans are the only portion of their investments that have repayment priority above the U.S. government.

Argonaut is an investment vehicle of the George Kaiser Family Foundation of Tulsa, Okla. The foundation is headed by billionaire George Kaiser, a major Obama campaign contributor and a frequent visitor to the White House. Kaiser raised between $50,000 and $100,000 for Obama's 2008 campaign, federal election records show. Kaiser has made at least 16 visits to the president's aides since 2009, according to White House visitor logs.

Stay tuned.


Hackers, Fakers, and Computers

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The Obama Administration's expansive ideas about "unauthorized access" to computers took a hit in the US Senate today.  Orin Kerr had this op-ed in the WSJ Wednesday. The Computer Fraud and Abuse Act was supposed to punish "hacking," i.e., defeating a computer's security system to get access to a place in cyberspace you weren't authorized to access.  "But the Justice Department believes that it applies incredibly broadly to include 'terms of use' violations and breaches of workplace computer-use policies," according to Kerr.

The political odd couple of Charles Grassley and Al Franken got an amendment through the Judiciary Committee to put the kabosh on that, Kashmir Hill notes at Forbes.

News Scan

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Professor-Murderer Attends Tulane Law School: Bruce Nolan of the The Times-Picayune reports on convicted murderer Bruce Reilly's notoriety at Tulane Law School after his classmates learned about his criminal record on the legal blog Above the Law. In 1993, Reilly, then 20, was arrested for the stabbing death and robbery of Charles A. Russell, a 58-year-old English professor at Community College of Rhode Island.  Reilly pleaded no contest to second-degree murder and robbery, and served 12 years in prison. He took up jailhouse lawyering, and came out of prison wanting to improve the criminal justice system and reduce inmate abuse. He was admitted to Tulane Law School this year with a scholarship from the NAACP Legal Defense Fund and a Dean's Merit Scholarship. There is no guarantee that the admitted murderer will be allowed to practice law in Louisiana. Though felons aren't automatically excluded, every applicant for the bar exam "bears the burden of proving his or her good moral character and fitness to practice law by clear and convincing evidence," according to state Supreme Court guidelines.

Life With Parole = Around 20 Years in California: Bob Egelko of the SF Chronicle reports a recent study by the Stanford Criminal Justice Center at the university's law school found that California inmates serving life with the possibility of parole spend an average of 20 years in prison. The study also found that the state parole board is less likely to approve release at an inmate's first hearing than at later hearings, and is less than half as likely to grant parole when a victim's relatives attend the hearing. The parole board currently has authority to grant early release to inmates convicted of premeditated first-degree murder (without a special circumstance) and second-degree murder, but starting in 2019 will also consider release for third-strikers. The study says the board now approves release in 18 percent of the hearings, three times the rate in 2007.

Prosecutor Cleared of Misconduct:  Sheri Qualters reports in the NLJ, "A three-judge panel in the District of Massachusetts has declined to impose disciplinary sanctions on Boston federal prosecutor Jeffrey Auerhahn for judicial findings that Auerhahn's withholding of exculpatory evidence prompted the release of purported mobsters from prison.   In a Sept. 15 order in In the Matter of Auerhahn, a majority of the panel concluded that the allegations of professional misconduct were not proven by clear and convincing evidence."

Constitution Day

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Tomorrow is the 224th anniversary of the day the Federal Convention's proposed constitution was signed in Philadelphia.  AP story here.

But of course the document signed that day was not the supreme law of the land.  It was only a proposal.  It only became the supreme law after it was ratified by the people through the democratic process.

When was that?  By its terms, it became the governing document of a union of the ratifying states when the ninth state ratified, June 21, 1788.  But the nine did not include the big dogs of Virginia and New York, and everyone knew a union would not succeed without them.  So July 26, 1788 is when we had a Constitution as a practical matter.  North Carolina reluctantly ratified the next year.  Rhode Island grumbled in on May 29, 1790, over two years after its initial referendum went down 237-2708.

Deep Dissent

From Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, USCA9 No. 06-55750, decided today:

Chief Judge KOZINSKI, with whom Judge BEA joins, in deep dissent:

This is folly.

For years, the city of Redondo Beach has had a serious problem with day laborers--sometimes as many as seventy-five--crowding sidewalks and street-corners, soliciting work from passing motorists. See Appendix 1. As might be expected when large groups of men gather at a single location, they litter, vandalize, urinate, block the sidewalk, harass females and damage property. Cars and trucks stop to negotiate employment and load up laborers, disrupting traffic.

Residents and businesses need not suffer these harms and indignities day in and day out for years on end. It is to secure the safety, beauty, tranquility and orderliness of neighborhoods that municipal governments are instituted among men. Nothing in the First Amendment prevents government from ensuring that sidewalks are reserved for walking rather than loitering; streets are used as thoroughfares rather than open-air hiring halls; and bushes serve as adornment rather than latrines. See Appendix 2. The majority is demonstrably, egregiously, recklessly wrong. If I could dissent twice, I would.

Texas Execution Stayed

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The US Supreme Court yesterday stayed the execution of Texas murderer Duane Buck while it considers his petition to review the decision of the Fifth Circuit Court of Appeals.  At the same time, the Court denied Buck's habeas corpus petition filed directly in the Supreme Court.  (It hasn't granted one of those in decades.  See this post.)

The case involves an unfortunate statement by an expert witness regarding race and dangerousness.  The odd thing about this case is that it was the defense witness who said that, and he first said it in response to a question from the defense lawyer.  An excerpt from the Fifth Circuit opinion follows the break.

Solyndra and That Familiar Aroma


A few days ago, Kent noted that President Obama's favorite "green energy" company, an outfit called Solyndra, went belly up after gobbling down half a billion or so in government-backed loans, a/k/a your tax dollars. 

Now going bankrupt is not exactly news in this Administation, nor is it ordinarily a topic for C&C.  On the other hand, it's not every bankrupt company that has the FBI carting out its documents, or visiting the homes of its executives and investors to cart out theirs. 

The most curious thing about all this is the combination of (1) Mr. Obama's preternatural enthusiasm for this company, including a well-publicized personal visit, and (2) the fact that its main investor, George Kaiser, was a billionaire bundler for Obama's 2008 campaign.  It would be impolite, and not really accurate, to say that a "bundler" is a bag man.  It's fair, however, to say that he's a fat cat who recruits other fat cats.

The news today is that White House e-mails have come out showing dozens of contacts with the Department of Energy pushing for hasty approval of the Solyndra loans.  The responsible official at Energy says he "can't recall" the identity of the White House officials who met with him.  For his part, Mr. Kaiser has no comment.

Is there a crime here?  I don't know, not yet.  But there's one heck of an aroma

News Scan

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Sex Offenders Banned From Libraries: Mike Donila of the Knoxville News Sentinel (TN) reports Knox County Mayor Tim Burchett has banned sex offenders from county libraries. A state law that took effect July 1 gives public library directors authority to "reasonably restrict the access of any person listed on the sexual offender registry." Those on the Tennessee Sex Offender Registry can still use the system's online services and have a proxy check out and return materials on their behalf, but face misdemeanor trespassing charges if caught in the facilities.

Texas Execution Scheduled for Later Today: Karen Brooks of Reuters reports Duane Buck, 48, is scheduled to be put to death by lethal injection after 6pm local time today in Texas. Buck was convicted of killing his ex-girlfriend and another man in front of the woman's children. Buck later told police she "deserved what she got." Buck's case has been controversial because he was one of nine inmates identified by then-Texas Attorney General John Cornyn who were sent to death row after sentencing hearings that included a psychologist's testimony that black men were more likely to re-offend if let out of prison. Several of the inmates received new hearings and were given the death penalty again. Buck did not receive a new hearing based partly on the fact that the psychologist had been called by the defense, not the prosecution. 

Woman Given $1.2 million for Wrongful Conviction Shoplifted $32.50 from Grocery Store:
The Associated Press reports Betty Tyson was arrested for stealing scissors and a utility knife worth $32.50 from a grocery store in the New York suburb of Greece. Tyson was awarded a $1.2 million compensation for being wrongfully imprisoned for 25 years. Her murder conviction was overturned in 1998 after a judge ruled that the police had withheld exculpatory evidence. Tyson is the second person whose murder conviction was thrown out to be arrested in Greece this summer; Frank Sterling, who spent 18 years in prison for a 1988 murder he didn't commit, was arrested in July after he was accused of fondling an 11-year-old acquaintance.

Violent Crime Surges in Bay Area Cities: Some of the Bay Area's largest cities have experienced a jump in violent crime, reports Bobby White in The Wall Street Journal. In San Jose and Richmond, the number of homicides this year through July rose 73% and 75%, respectively, as compared with the same period a year earlier. Local law enforcement officials say this year's surge appears to be linked to increased gang activity and budget cutbacks in police. Greg Ridgeway of the research nonprofit Rand Corp. says the violent crime rise in cities like Oakland and San Jose following budget cuts is in line with a national trend. In a report last year, Ridgeway found that if a city increased spending on police by 1%, it would typically result in a 1% decrease in its homicide rate. Oakland laid of 10% of its police force last year. 

Convicted Sex Offender Regrets Decision to Help ACLU:  Roni Reino reports in Foster's Daily Democrat (NH) that registered sex offender Richard Jennings now says he regrets his decision to join with the ACLU in overturning a Dover, New Hampshire ordinance prohibiting sex offenders from living within 2,500 feet of schools and day care centers. Jennings says he was angry after being charged twice with violating the ordinance, and allowed his lawyer to give his information to the ACLU to help strike it down. When a district court judge declared the residency restriction unconstitutional, Jennings says he was surprised Dover did not have a back-up plan and believes he has helped leave children "vulnerable." "All they wanted was a check in their win column," Jennings said of the ACLU. "That is all they want. They don't think about the repercussions." 

Some Good News at Last

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The Casey Anthony case was a world of bad news.  The principal bad news was, of course, that, in the opinion of the great majority of observers, Little Miss Innocent got away with murder. 

That cannot be undone, but at least she'll have to pay a bit of a price for her copious lying.  Criminal defendants lie all the time, as anyone familiar with the system knows, but Ms. Anthony might have set a new record.  If the truth ever came out of her mouth, I missed it.

Ms. Anthony's having to pay up is the good news.  The bad news is that she can get it all back with her first photo shoot for Penthouse, or whatever she's going to do to get money.  Somehow, though, I don't think it will be in the babysitting business.

[See also this post from Sept. 5. -- KS]

News Scan

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New Illinois Law Limits Benefits For Criminals: Illinois Governor Pat Quinn recently signed two new bills that seek to limit employee benefits to workers who commit crimes. Senate Bill 1147 prohibits employees from receiving workers' compensation benefits for injuries sustained while committing a forcible felony, aggravated DUI or reckless homicide. House Bill  3591 prohibits all new hires to the Chicago Transit Authority, Metra and Pace from collecting pension benefits if they are convicted of a felony related to their duties. BLR Human Resource Network reports.

Chicago Releases Crime Stats For The First Time: In an attempt to debunk Chicago's notorious reputation for withholding information, Chicago Mayor Rahm Emanuel's administration will publish millions of crime statistics dating from 2001 in an online searchable database. Brett Goldstein, the city's chief data officer and former police officer, said the recent release is part of "a whole new era of openness and transparency." The data will be updated daily, and will benefit academics and journalists by cutting down on time-consuming and costly requests for records. It also increases the potential for long term studies and crime prevention techniques. Chicago's efforts appear to be unprecedented among law enforcement groups nationwide. Sophia Tareen from AP has this story.

Court Rejects Appeal by Wife Convicted of Murder: Paul Elias of AP reports on the 9th U.S. Circuit Court of Appeals decision on Tuesday to reverse its previous ruling in favor of Kristin Rossum, a former toxicologist convicted of poisoning her husband in a notorious San Diego murder case. The Ninth Circuit 's previous ruling granted a special hearing to determine whether her trial lawyer's performance was so bad that she was entitled to a new trial. The Court's ruling yesterday said it was bound by the Supreme Court decision limiting federal review of state court decisions. Rossum was convicted of murder in 2002 and sentenced to life in prison.

"Mr. Inmate"?:  Tom Whitehead reports in The Guardian (UK) that guidelines released by the UK's Ministry of Justice says prison guards should use the formal address "Mister" when speaking to prisoners with learning disabilities, as well as use the prisoner's name at the beginning of each sentence. A spokesperson for the Ministry said the guidelines do not impose a general order to call all inmates "Mister," but instead apply only to prisoners who self-report as having learning difficulties, a category which may include inmates with dyslexia. Steve Bostock, national vice-chairman of the Prison Officers Association, called the guidelines "unnecessary" and said "there are more important things to be worrying about than calling someone Mister."

Woods Executed by Texas


Stephen Michael Woods was executed by Texas this evening for his involvement in two gruesome murders ten years ago.  His victims were Ronald Whitehead, 21, and Bethena Brosz, 19.

As the news story recounts:

Brosz and Whitehead, were found by golfers May 2, 2001, along a golf course road near The Colony, a North Dallas suburb midway between Dallas and Denton. Whitehead was shot six times in the head. Brosz was shot twice in the head and once in the knee. Both had their throats cut. Brosz was alive when she was found but died the following day.

Witnesses testified at Woods' 2002 trial that he lured Whitehead to the isolated road on the pretense of a drug deal and killed him because he knew about another killing involving Woods two months earlier in California. Prosecutors said Brosz merely was at the wrong place at the wrong time and was killed because she was a witness to Whitehead's death.

"Compassion" Takes Its Final Step


...its final step being that murdering a helpless person gets no prison time whatever.

You might think I'm exaggerating.  I wish I were.  A Canadian court concluded that, because we are obliged to "grieve for the mother"  --  who remains quite alive for party time  --  she gets no jail, not a day, for offing her kid.  Those onerous demands of motherhood, dontcha know.

Here's the story.  This was not an abortion, nor is this blog about abortion.  It also was not, for aught the story reveals, an instance of post-partum depression, even assuming that being depressed is an excuse for killing a person who can't fight back.  It was that she didn't want her son, so she killed him.  The sentence, if you want to call it that, was three years' probation.

This is the true, hideous face of what our adversaries call "compassion."

Hat tip to federalist. 

Defending American Justice

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In March of last year, three yankee doodles went to London to defend America's death penalty from charges of "perverting the cause of justice."  They were Paul Cassell, Robert Blecker, and some other guy.

The Guardian posted a truncated video of the event on its web site.  After surmounting various human and technical obstacles, we are finally able to bring you the full video here.

News Scan

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Conviction of MLK Jr. Adviser Considered After Death: Larry O'Dell of The Associated Press reports the lawyer for Reverend James L. Bevel has petitioned the Virgina Supreme Court to quash Bevel's incest conviction because he died while the appeal was pending. Bevel, a former adviser to Martin Luther King, Jr., had served several months of his 15-year sentence and was appealing his conviction when he died in December 2008. His attorney, Bonnie Hoffman, is seeking an abatement based on the theory that a conviction is not final until the appeals process is complete. "An appeal is a fundamental step in the process," Hoffman said. "When it's terminated by death, the conviction should be abated." Bevel's case is unique because of the 2009 testimony of the victim, Bevel's daughter, in which she stated the conviction had given her closure. A county judge rejected Bevel's bid for abatement after hearing the emotional testimony, and the Virgina Court of Appeals affirmed. An attorney for the state says the Virginia Supreme Court should affirm, arguing that convictions are presumed to be valid.

Army Won't Seek Death Penalty for Soldier's Murder: The Associated Press reports Army Spc. Neftaly Platero, 33, won't face the death penalty for the shooting deaths of fellow soldiers and roommates Pfc. Gebrah Noonan, 26, and Spc. John Carillo Jr., 20, when he stands trial by court martial beginning in February. Platero instead faces a maximum sentence of life in prison without parole for two counts of premeditated murder and one count of attempted murder. Noonan's father says he feels prosecution has been stripped of a valuable bargaining chip with the death penalty off the table.

Female Inmates With Children Set to be Released Early: Jack Dolan of the Los Angeles Times reports prison officials will begin releasing female inmates who have children to serve the remainder of their sentences at home. As early as next week, mothers who were convicted of non-serious, non-sexual crimes and have two years or less remaining on their sentences could start going home with GPS-enabled ankle bracelets. More than 4,000 of the state's roughly 9,500 female inmates could be eligible. Sen. Carol Liu (D) originally wrote the bill to single out female inmates with children, but because of a constitutional ban against gender-based discrimination, the phrase "primary caregiver" was added to the bill. Administrators says the policy could be extended to male inmates in the near future. According to a 2010 memo from Liu's office, keeping kids with their parents instead of in foster care will hopefully "reduce the likelihood that inmates' children will embark on a life of crime." Harriet Solarno of Sacramento-based Crime Victims United says in many cases the children might be better off in foster care. "If they were such great mothers to begin with, they never would have committed the heinous crime that got them sent to state prison," said Salarno. Los Angeles County District Attorney Steve Cooley says, "if properly supported, with the proper amount of supervision, it's not a bad idea." But Cooley also added he doesn't have a whole lot of confidence in state prison officials.

Embezzling the War Chest

Tamara Audi, John Emshwiller, and Janet Hook report in the WSJ:

LOS ANGELES--The reach of an alleged fraud scheme widened Tuesday as more California Democrats said their war chests had been raided by a prominent campaign treasurer, with thefts allegedly totaling hundreds of thousands of dollars.

Burbank-based Kinde Durkee, a 58-year-old veteran campaign treasurer who managed money for scores of Democratic campaigns and causes--from Sen. Dianne Feinstein to a group called Democrats of the Desert, was arrested last week and charged with fraud.

According to a federal criminal complaint, Ms. Durkee admitted to using campaign funds to pay for an array of expenses including mortgage payments, cosmetics and the nursing-home care of her mother. According to the complaint, Ms. Durkee "misappropriated money from her clients' bank accounts and filed false disclosure reports to hide the misappropriations."

Cosmetics?  That's a lot of lipstick.

Stay Denied in Texas Capital Case

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The US Supreme Court this morning denied a stay of execution and the petition for certiorari in the case of Texas murderer Steven M. Woods.  The order is here.  No dissent is noted.  The facts and history of the case are here.

Tim Madigan has this story in the Fort Worth Star-Telegram:

Just after sunrise on a spring morning a decade ago, a passer-by spotted the bodies of Ronald Whitehead, 21, and Bethena Brosz, 19, lying near a Denton County golf course. Both had had their throats slashed and been shot repeatedly.
                  *                                *                            *
"Following the murder, Woods almost immediately began bragging about committing the murder," [Denton County prosecutor Michael] Moore said. "He was wearing one of Ron's baseball caps as a trophy and started talking to people about trying to get out of town, where he was going, bragging about it all along the way."
                   *                                *                            *
"In the days and weeks leading up to the murder, Woods started talking about wanting to kill someone to make himself famous," Moore said. "Woods did not like Ron. Witnesses overhead him planning to kill Ron."

Brosz was killed, according to trial testimony, "so there wouldn't be a witness around to testify against them," Moore said.

While Whitehead was dead at the scene, Brosz survived for several hours.

"We watched her suffer for a day and a half before she died," Sheila Brosz said. "She spoke of wanting to be an organ donor, and her request was granted. Seven organs were harvested, and five lives were saved."

Slippin' and Slidin' Becomes Shakin' and Jivin'


You really have to love the New York Times editorial page.

Yesterday, the Times editorialized against what it views as the promiscuous use of life without parole.  It notes that:

...use of the sentence has gone far beyond death penalty cases, even as violent crime rates have declined....In the last decade in Georgia, one of the few states with good data on the sentence, about 60 percent of offenders sentenced to life without parole were convicted of murder. The other 40 percent were convicted of kidnapping, armed robbery, sex crimes, drug crimes and other crimes including shoplifting.

The editorial ends with this:

A fair-minded society should revisit life sentences and decide whether an offender deserves to remain in prison or be released on parole. And a fair-minded society should not sentence anyone to life without parole except as an alternative to the death penalty.

Can you spot the razzle-dazzle?


Iran to Pardon Hikers

Lally Weymouth reports in the WaPo:

Iranian President Mahmoud Ahmadinejad says he intends to release two Americans who have been jailed on charges of espionage for two years and grant them a "unilateral pardon."
*                               *                            *
The Americans, Shane Bauer and Josh Fattal, both 29, were arrested along with another American while they were hiking along the Iran-Iraq border two years ago. In August, they were sentenced to eight years in prison.
That is good news, of course, but personally I find it difficult to muster much sympathy for people who go hiking on the border of a country run by fanatics or go yachting in pirate-infested waters.  There are lots and lots of other places in the world to have your recreation, folks.

The New, Tough Head Bobby

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Justin Davenport and Peter Dominiczak report in the London Evening Standard on the new Commissioner for Scotland Yard, Bernard Hogan-Howe.

In his first public appearance at New Scotland Yard, Mr Hogan-Howe said he wanted to tell the people of London that "the idea is to make the criminals fear the police".

The Commissioner - the third Met chief in six years - is expected to move quickly to shake up the Yard and bring in zero-tolerance policies which proved so successful on Merseyside [his prior post].

These included the widespread use of metal-detecting arches to combat the carrying of weapons, and a tough approach to people caught with guns and knives.

We've all seen a lot of American television crime dramas where a high-ranking police official gets personally involved in catching the crook in an individual case, and we shake our heads and say, "Yeah, right."  Well...

[Mr.] Hogan-Howe chased and caught two suspected bike thieves weeks before being given the top job at the Met.

The Commissioner, 53, who was appointed yesterday, chased the alleged teenage thieves to a housing estate* and "relieved them of the bike".
*English-American translation:  housing estate = housing project.

Fatherhood and Testosterone

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It has been postulated in many circles that intact families are great prophylactics against crime.  A very interesting new study is out about the relationship between testosterone and fatherhood.  In a nutshell, the study examined a large sample of men before and after they had kids and found that fatherhood is associated with a decline in testosterone levels.  Additionally, in those father who regularly undertook 3 hours or more of daily childcare showed even further declines in testosterone.  An interesting note about this study is that it was longitudinal, so it wasn't just that those men with lower testosterone levels were more likely to become fathers or engage in childcare, the subjects in the study actually saw their levels drop.

If I had to hazard a guess the typical media spin will be something along the lines that becoming a father makes you half a man.  But here's another way to look at it: Kids need a father so much that Nature has wired them to stick around and raise them.  That is, the evolutionary benefit would be that fathers participate in raising offspring, rather than running off to produce more offspring.   It also implies strongly that the feminists are wrong - that this sort of evolutionary response to fatherhood really speaks to fathers being a necessary, in fact, essential, component in child rearing.   Essential enough to provide a survival benefit.  Proof that kids need dads - the need is so strong that fathers' physiologic response is built to promote dad's participation.   It also really says something about divorce - that by removing a father from the presence of his kids, he may lose the inclination towards raising them - and naturally move back into "mating mode."    The kids doubly lose out when dad leaves.  He's gone and he's less inclined.

Of course this is just a single study, but it's a powerful one.  

News Scan

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The Postpartum Defense in Today's Courtrooms:  Carol J. Williams and Shari Roan of the LA Times have this piece about the postpartum defense in today's courtrooms, where jurors and judges are possibly more educated about the condition as a result of national media attention.  In the defense's early years, courts tended to convict the women of murder and hand down long sentences, but Professor Jonathan Turley of George Washington University claims that "the law has caught up with the science that this is a legitimate criminal defense."  Professor Melissa Murray of UC Berkeley says she has found 18 cases in which women charged with murdering their children asserted a defense of temporary insanity due to postpartum psychosis, and about half were acquitted and committed to mental institutions.  The issue has reemerged in light of murder charges recently brought against an Orange County woman for the death of her seven-month-old son, who fell or was thrown to his death from the fourth floor of a parking garage. 

Convicted Murderer Maintains Innocence, Despite DNA Confirmation:  Pennsylvania inmate Scott Oliver continues to maintain his innocence in the 1989 rape and murder of 11-year-old Melissa Jaroschak despite recent DNA tests confirming that hairs found on the girl's body matched Oliver.  The Innocence Project requested new DNA tests in Oliver's case last year, but withdrew Oliver's appeal and ended its involvement after the tests confirmed Oliver's guilt in July.  In an order filed today, Oliver claims he did not wish to withdraw his appeal and that he is entitled to a hearing to show his innocence.  A judge appointed another attorney to take over the case.  Sarah Cassi of The Express Times (Lehigh Valley) has this story.

More Slippin' and Slidin'


The ever-reliable New York Times editorial page today lashes the audience at last week's Republican debate for applauding when Brian Williams tendentiously asked Rick Perry whether, among the 234 executions that have occurred on his watch, Perry had misgivings about whether any of the condemned might have beem innocent.  Perry said he did not.  The applause registered the audience's approval that a state might be so bold as to actually enforce capital punishment, which of course is the law, and quite a popular one.

The Times is aghast.  What a bunch of wahoos! 

The Washington Post has this editorial, with the above headline:

ON THE 10TH anniversary of al-Qaeda's attack on New York and Washington, the conventional wisdom seems to be evolving from "We will be hit again" to "Osama bin Laden won by provoking us into a decade of overreaction."

The feeling is understandable but incorrect, and it would be dangerous if it took hold. Yes, the nation made big mistakes over the past decade. When has America ever geared up without excess and error? But the attacks on the World Trade Center and the Pentagon alerted Americans to genuine dangers that only a relative few had noticed. We have lived safely for the decade since not because we misread those dangers but because we responded to them in a manner in which, on balance, Americans can take pride.

I don't agree with everything in the editorial, but on the whole the WaPo gets it right.

Things to Remember, Things to Forget


Things to remember, a non-exhaustive list:

"Let's roll;" Todd Beamer, Tom Burnett, Mark Bingham and Jeremy Glick; "Whether we bring our enemies to justice or bring justice to our enemies, justice will be done.," (George W. Bush, September 20, 2001); Navy SEALS, (May 1, 2011); unknown CIA interrogators who obtained essential intelligence at great cost, risk and calumny; and lots and lots of drones.


Things to forget, a non-exhaustive list:

"Why do they hate us;" anything that is or resembles a "peace quilt;" multicultural sensitivity and other forms of warmed over contempt for the West; "reconciliation," roughly meaning "surrender;" all "cycle of violence" blather; aging peaceniks; and "Give Peace a Chance."

Fed. DNA Backlog Cleared

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Speaking of DNA, USDoJ's IG reports:

Our review determined that as of September 2010, the FBI Laboratory's Federal DNA Database Unit had effectively eliminated its backlog of convicted offender, arrestee, and detainee DNA samples. We determined that the FBI reduced this backlog from over 312,000 samples in December 2009 to a workload of approximately 14,000 samples in May 2011. As part of the unit's backlog reduction efforts, from January 2010 through May 2011, the unit uploaded almost 500,000 profiles into CODIS. The FBI currently has the capacity to analyze 60,000 profiles per month, and as of September 2010, the unit was able to begin processing accepted DNA samples within 30 days of receipt. Our audit revealed that the FBI achieved these results by implementing a backlog reduction strategy, hiring additional personnel and contractors, using high throughput robotics, implementing Expert System software for a semi-automated review of DNA profiles after completion of analysis, and reconfiguring laboratory space for more efficient processing. The FBI has achieved a significant accomplishment in reducing the convicted offender, arrestee, and detainee DNA backlog to a manageable monthly workload.

Thanks to Mike Scarcella at BLT for the link.

Lying and Magnets

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Can lying be controlled by applying a magnetic field to the brain?  Sounds too good to be true, and I will remain skeptical, but a couple of Estonian researchers claim some results in this area.  Abstract and citation are after the jump.

We all know what a major advance DNA was, providing definitive answers in many cases.  When the neuropsych folks come up with a lie detector that truly works, it will be a revolution that dwarfs DNA in its scope.  When any wrongly accused innocent person can prove his innocence simply by taking the test, one of our greatest concerns will vanish.  And juries will know that, whether they are formally permitted to consider it or not.

News Scan

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Ohio Judge Seeks to Improve Death Penalty Procedures: Andrew Welsh-Huggins of the AP reports Ohio Supreme Court Chief Justice Maureen O' Conner announced Thursday that the court has convened a committee consisting of judges, prosecutors, defense lawyers, lawmakers and academic experts to review Ohio's capital punishment procedures. O'Connor emphasized that the review is not to debate whether Ohio should have capital punishment, but whether the the current system is administered fairly, efficiently, and in the most "judicious manner possible."

Death Penalty Possible for Accused Nevada Murderer: A panel of prosecutors in Clark County, Nevada is considering whether to seek a death sentence in the case against Javier Righetti, 19, who is suspected in the recent abduction, rape, and murder of a high school sophomore. The county coroner said 15-year-old victim Alyssa Otremba was stabbed more than 40 times and burned beyond recognition. Righetti also admitted to another sexual attack and robbery, which police said are being investigated. Righetti's attorney, Deputy Tim O' Brien, said review by a death penalty was "not unexpected" in this case. Ken Ritter of the AP has this story.

Executed Ax-Murderer Loses Federal Appeal: The AP reports a federal appeals court on Wednesday rejected a challenge to Delaware's execution lethal injection procedure filed by ax-murderer Robert Jackson III shortly before his July 29th execution. The appeals court issued its ruling despite Jackson's execution, saying the appeal affects other Delaware death row inmates.

Robbery Suspect Leaves Wallet: CBS Pittsburgh reports robbery suspect Walter Gunter, 37, made his case easier for Pittsburgh investigators after he allegedly robbed a 7-Eleven, then left behind his wallet containing his prison and state identification cards. The store is located just a block away from the city's police headquarters.

Timing Is Everything


On Thursday morning, liberal Washington Post columnist E.J. Dionne published a column titled, "Time to Leave 9/11 Behind."  In it he said, among other things:

After we honor the 10th anniversary of the attacks of Sept. 11, 2001, we need to leave the day behind. As a nation we have looked back for too long****If we continue to place 9/11 at the center of our national consciousness, we will keep making the same mistakes. Our nation's future depended on far more than the outcome of a vaguely defined "war on terrorism," and still does. Al-Qaeda is a dangerous enemy. But our country and the world were never threatened by the caliphate of its mad fantasies...

On Thursday evening, about 12 hours later, that same Washington Post carried a story titled, "Possible al-Qaeda Plot Against D.C., N.Y."   The story starts:

U.S. officials are investigating a possible al-Qaeda plot to detonate a vehicle-borne bomb in Washington or New York City around Sunday's 10th anniversary of the Sept. 11 terrorist attacks.

A handful of individuals may have entered the United States in recent days as part of the plot, which officials said originated from the tribal areas of Pakistan along the Afghan border. One of them may be a U.S. citizen.

Numerous officials familiar with the information cautioned Thursday night that while the threat is specific and worrisome, it is based on raw intelligence that is unconfirmed....Yet the mere prospect of an attack to coincide with such a sacred anniversary sparked jitters in New York and Washington, where President Obama was briefed Thursday morning and updated throughout the day, even as he prepared to address a joint session of Congress.

Mr. Dionne never had much good to say about the war on terror to start with. Still, his attempt to brush it off scant hours before his own newspaper published an account of a possible new attack so ominous that the President of the United States was updated about it throughout the day marks as, ummm, noteworthy Dionne's argument that we should henceforth yawn our way through it all.  Under the circumstances as they developed on Thursday night, his Thursday morning invitation to complacency has to be viewed as giving new definition to the phrase, "masterpiece of bad timing."   


Florida Execution

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Looks like executions will resume in the State of Florida.  Thanks to commenter "federalist" for the link to the Eleventh Circuit decision rejecting Manuel Valle's bogus attack on the clemency process.  Earlier, our News Scan noted that court's rejection of his lethal injection claim.  The last execution listed on the Florida DoC's execution list was February 2010.

Update:  Patricia Mazzei has this story in the Miami Herald.

The Nanny State in a Blue Uniform

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We need vigilant and active police.  I'll take them any day over the latest ACLU lawsuit.  But some things can be taken too far, and this is one of them.

It seems that police in the bustling metropolis of Elizabethton, Tennessee (population 14,176), have threatened a mother, Mrs. Teresa Tryon, with child neglect charges because she allows her ten year-old daughter to ride her bike to school.  The police note that the kid's route takes her along a "very busy road," and that a child was "struck and killed while riding a bike on the same street several years ago," prompting them to take extra safety precautions.

Fair enough.  The mother says he daughter is fine on a bike, but the police concern is legitimate.  So for "extra safety precautions," how 'bout this: "Hey Mrs. Tryon, the street your daughter takes to school is really busy, and there was a fatal accident there a few years ago.  You might want to reconsider whether it's safe for her to be biking there, or whether an alternate route would be better."

But threatening child neglect charges???  Give it a rest, gentlemen.  Child neglect is what Casey Anthony does for warm-ups.  The idea that it's "child neglect" for a mother to draw a different conclusion from the police about whether her daughter can be safe on a bike, even on a busy street, is absurd.  Stalin himself would have a hard time coming up with that one.

I don't know if there's any actual crime in Elizabethton.  Evidently not, given police priorities there.  But on the off chance that there might be some, maybe the police could attend to that.


News Scan

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Missouri College Launches School-Wide Drug Testing:  Alan Scher Zagier of the AP reports Linn State Technical College, a two-year school in central Missouri, this week enacted school-wide, mandatory drug testing of its students.  Linn State college leaders say drug screening is necessary to maintain safety at the school, where students participate in dangerous coursework such as aircraft maintenance, nuclear technology, and heavy engine repair.  Attorney for the school Kent Brown acknowledges that the school's program is unique in its scope, but that local employers have overwhelmingly supported the drug screening, which students can expect upon their entry to the workforce. 

Arkansas Court Hears Argument About Juvenile LWOP:  The Arkansas Supreme Court heard argument today in a case challenging a sentence of life without parole for juveniles convicted of murder, reports John Lyon of Arkansas News.  Lemuel Session Whiteside was convicted of capital murder for his participation at the age of 16 in a deadly robbery in Little Rock.  His attorney argued to the court that Whiteside's sentence of LWOP is unconstitutional under the U.S. Supreme Court decision Graham v. Florida because Whiteside was not the actual triggerman in the murder. 

Retrospective Competency Hearing for California Death Row Inmate:  A Lake County, California judge heard testimony yesterday during a retrospective competency hearing for California death row inmate Gerald Frank Stanley.  In 1980, Stanley shot to death his fourth wife, while out on parole for killing his second wife.  A jury convicted him in 1983.  A separate jury was then asked to consider whether Stanley was competent during the penalty phase of his 1983 trial.  The jury determined that he was and Stanley was sentenced to death.  Over a decade later, a federal judge overturned the competency verdict because one of the jurors had failed to disclose she was a victim of violent crime.  Stanley has maintained he understood the nature of all the court proceedings and objected to his federal defenders filing a motion questioning the jury's competency verdict.  During his testimony yesterday from San Quentin, Stanley told the judge he "deserved the death penalty."  Jeremy Walsh of the Lake County Record-Bee (CA) has this story.  

65,000 Phone Calls Excessive?:  The AP reports Dutch prosecutors have charged a woman with stalking after she allegedly called her ex-boyfriend 65,000 times in the past year.  That's an average of 178 calls per day.  The woman claims the number of calls wasn't excessive.

Solar search warrants

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Last week it was big news (at least here in NorCal), that Solyndra had filed for bankruptcy.  This is a solar energy firm touted as an example of "green jobs," visited by President Obama, and funded with a half-gigabuck of your money.  We didn't mention it here at C&C because it isn't a criminal matter.

Or maybe it is.  Today AP reports, "Agents executed multiple search warrants at the company's headquarters in Fremont as part of an investigation with the Department of Energy's Office of Inspector General, according to FBI spokesman Peter Lee. Lee said he could not provide details about the investigation."

What's up?  Was there fraud involved?  Dunno.  Stay tuned.

Brian Williams' Death Penalty Question

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NBC News anchor Brian Williams demonstrated last night that he lives in a bubble, out of touch with the views of most Americans, particularly on the subject of the death penalty.

Williams wanted to ask Rick Perry is he ever lost sleep worrying that one of the people executed in Texas might be innocent.  That would be a decent enough question, but Williams blew it by working in the number of inmates executed during Perry's tenure.  As we have explained before, that much-ballyhooed "record" is merely the result of Perry being the longest-serving governor of the largest state that actually carries out its executions regularly.  The percentage of murderers sentenced to death in Texas is about average for the death penalty states.

Why did Williams throw in that number?  I suspect that within the bubble of people that he normally associates with, that number is considered an indication of something wrong.  But it is not considered an indication of something wrong by most Americans.  Polls consistently show high, steady support for capital punishment.  Even a majority of Democrats support it.  (Gallup, 11/8/2010). Needless to say, the mostly Republican audience last night was overwhelmingly in favor, and so applause broke out at Williams' mention of the number.

Q: Why Is Criminal Procedure Such a Mess?

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A:  Because there's too much of it and it's too complex.

The purpose of criminal procedure is to allow the tribunal to discover the truth about the defendant's charged conduct.  In the huge majority of cases, the basic question is simple:  Did he do it or not? 

Of course it's not quite that simple.  The court's factual determination has to offer the accused essential fair play.  Thus, as everyone agrees, he needs to be apprised of the charges against him, be given the opportunity to select an unbiased jury and confront and cross-examine his accuser, and be allowed to call witnesses in his defense.  He has the right to a lawyer and to obtain exculpatory information in the government's possession.  He has the right to a public trial.  He can't be forced to testify against himself (even though he's virtually always the person who knows the most about the crime).  His guilt must be determined beyond a reasonable doubt.  If he probably did it, that's not good enough.  If there's an erroneous acquittal, tough luck for the government.

That is not an inconsiderable list, and it's not a complete one either  --  I'm sure I've missed more than a few things.  But you get the point.  The basics of fair play are not that hard to figure out or put down on a piece of paper.

So why is my book of the Federal Rules of Criminal Procedure two inches thick with over 1000 pages of fine print?  Why does it take months or (more commonly) years to litigate a felony indictment?  Why have the burdens of litigation come to the point that ninety percent of cases are disposed of by the dumbed-down charges that find their way into plea bargains?

Principally because, in the quest for unerring justice, we have devised a system so larded with complexity that it's increasingly incapable of delivering basic justice. 

Execution Date for Troy Davis

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The Atlanta Post reports, "A Chatham County judge on Tuesday signed a death warrant for Troy Anthony Davis, who was convicted of killing a Savannah police officer in 1989.  The warrant sets the execution between Sept. 21 and Sept. 28. The state Department of Corrections will set the actual date. Davis has been on death row for 19 years."

Davis's claim of actual innocence resulted in a highly unusual order from the US Supreme Court, describe in this post, sending the case to a District Court to determine that claim.  Upon full hearing, the District Court found an inconvenient truth: "Mr. Davis is not innocent."  Well, inconvenient for Davis and his supporters.

With that out of the way, higher courts declined further review of a case that had already run the full gamut of reviews and then some.  This post from March describes the later action.

Remembering 9/11


We are approaching the tenth anniversary of the 9/11 atrocity.  There's going to be a deluge of commentary on it, almost all of which I plan to avoid, on the theory that just about everything that's sensible to say has already been said, and that the torrent of non-sensble things, including a great deal of pure mush  --  and not a little national self-flagellation  -- is best left ignored.

It's not that I want to be unfeeling about it.  I lost a friend, Barbara Olson (wife of former Solicitor General Ted Olson) on the plane that slammed into the Pentagon.  I had known Barbara for years.  She was an AUSA in DC when I was an AUSA across the Potomac River in Alexandria, Virginia, and we spoke often.  She was a total live wire, dedicated, determined and beautiful.  Not for nothing did she later become a frequent guest on TV shows all over the place, including, more than once, Larry King.  There was no better spokesman for the values that guide C&C.

It would be one thing if the coming remembrances would honor fighters like Barbara and the things she believed in.  It would be one thing if they honored the soldiers who have spent a decade in a just and necessary war to destroy our enemies.

But you know full well that's not what's coming up.


News Scan

New Prosecutors Take Over in Fast and Furious Case: On Tuesday, Rep. Darrell Issa (R-Calif.), who chairs the House Oversight and Government Reform Committee investigating Operation Fast and Furious, announced that it is in the best interest of justice to replace the Federal prosecutors in Arizona due to a conflict of interest. The change comes at the request of the U.S. Attorney's Office in Phoenix, which was deeply involved with the ATF in administering the program. Federal Prosecutors from Los Angeles and San Francisco will now take over the case. Pete Yost of the AP reports

Prosecutor:  Acquittal Likely for Amanda Knox: Prosecutor Manuela Comudi has released a statement saying Amanda Knox, 24, will likely be acquitted due to a judge's rejection of the request for a new review of crucial DNA evidence. Prosecutor Comodi said: "There is an ill wind blowing in this case. The judge and his assistant are clearly against us. I can see both Knox and Sollecito being freed which will be a shame as they are both involved." The key evidence in the case is a 12 inch kitchen knife found at the crime scene. An independent report by forensic experts questions the reliability of the DNA  evidence found. Nick Pisa has this story in the Telegraph.

Stay Lifted for Florida Cop Killer:  The AP reports that the 11th Circuit has turned down Manual Valle's request for a permanent stay of execution to allow his challenge to the state's lethal injection process.   Valle was sentenced to death for the 1978 murder of Coral Gables officer Louis Pena during a traffic stop.  Valle, who was scheduled for execution earlier this week, could receive a new execution date if the court lifts if another temporary stay on a different claim in the case.  The Florida Supreme Court had previously stayed Valle's execution but lifted the stay after rejecting his claim.  See August 23 News Scan.

Standing to Defend Initiatives

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The California Supreme Court today heard oral argument in the same-sex marriage case regarding the standing of initiative backers to defend their initiative when executive officers decline to do so.  This report by Lisa Leff of AP indicates the argument went well for the backers.

"Never in any recorded (case) have proponents been denied the right to advance their interests," Associate Justice Kathryn Werdegar noted during the closely watched arguments. "The present state of California law is we allow liberal intervention."
CJLF takes no position on the underlying controversy.  I do think, though, as a general matter, that the proponents of an initiative should be able to come into court to defend their measure.  The whole point of initiatives is for grass roots people to be able to put a measure on the ballot to challenge the existing power structure.  For the executive to be able to veto a measure de facto by not defending it in court would defeat that purpose.

This issue may very well come up in a criminal law context if our present executive officers refuse to defend tough-on-crime initiatives.  In that event, we will need to step into the breach.

Stolen Valor Act Reaches SCOTUS

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The government has asked the U.S. Supreme Court to review the decision of the Court of Appeals for the Ninth Circuit holding the Stolen Valor Act unconstitutional as violation of freedom of speech.  Prior posts are here, here, and here.

The case is United States v. Alvarez, No. 11-210.  SCOTUSblog's case page is here.

News Scan

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First Hearing Under Racial Justice Act: Paul Woolverton of The Fayetteville Observer (NC) reports Marcus Reymond Robinson is scheduled today to be the first condemned inmate under North Carolina's Racial Justice Act to present evidence of racism in an attempt to convert his sentence to life without parole. Robinson, who is black, was sentenced to death in 1994 for the 1991 killing of a white teenage boy. The Racial Justice Act gives death row inmates in North Carolina the opportunity to claim that their death sentences are the result of racism, and to use statistical trends as proof of racism in the system. All but seven of North Carolina's 158 death row inmates have pending Racial Justice Act claims.

Arizona Prisons Charging Fee to Visit Inmates: Erica Goode reported Monday in the NYT that the State of Arizona has enacted the first of its kind legislation that imposes a one-time $25 fee on visitors to the Arizona Department of Corrections. The fee will only be imposed on those over 18 years of age, and will help address a $150 million maintenance gap for the Arizona Department of Corrections. The Department of Corrections says the fee will serve to keep the facilities safer for visitors and inmates. Prisoner rights groups have the expected reaction -- they have filed lawsuits.

Gold Fever Sweeps the Criminal Underworld: Thomas Watkins of the AP has this so-titled piece about the surge in robberies and burglaries related to gold after the price of the precious metal peaked last month at $1,981 an ounce, an increase of more than $600 from a year earlier. Police in Oakland say dozens of women have had gold necklaces yanked from their necks on the street, and similar stories are emerging from cities nationwide. Earlier this summer, thieves in New Jersey even took off with $400,000 in gold nuggets from a mining museum display. Gold is an easy substance to fence, as jewelry can be melted down, thus destroying the evidence, and sold.

Son of Son of Sam Laws

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In 1977, the New York Legislature passed the first "Son of Sam Law" to prevent a notorious serial killer from cashing in on his own crime with a book deal.  Other states followed.  The Supreme Court eventually struck down the New York law in Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991).  While some states have amended their laws to get around that decision, a more effective method is sometimes just to get a plain old tort judgment against the perpetrator for more than that person will ever have, book deal and all.

An advantage of the plain old tort suit is that it can be used even if a boneheaded jury in the criminal case lets the perpetrator off.  Fred Goldman famously got a whopping civil judgment against O.J. Simpson that scuttled his book deal and reduced him to game of asset hide-and-seek, eventually ending in a robbery that finally put him in the slammer where he belongs.

Can this be applied to the Casey Anthony case?  Unfortunately, Caylee's other next of kin is her father, and God only knows who that is.  Well, maybe Casey does, but she hasn't said.

WSJ Law Blog has this post, and WFTV has this story on claims for reimbursement by agencies that spent large sums investigating Caylee's disappearance as a result of lies by Casey.  Unfortunately, these claims won't be enough to soak up a multimillion dollar book deal, if Casey gets one, and the acquittal will likely preclude application of even the revised Son of Sam laws.

Maybe every guy in Florida who thinks he might be the father should come forward to be DNA tested.  It could be a large group, but the odds are better than the state lottery.  Somebody, anybody, needs to soak up that book deal money.  For Casey Anthony to become a millionaire out of this would be beyond obscene.

The Arizona Immigration Law

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Arizona's controversial immigration law has finally made it to the United States Supreme Court.  The case is Arizona v. United States, No. 11-182.  SCOTUSblog has the petition here.

Note that this is only Arizona's request that the Court take up the case, not a decision by the Court to actually accept it.  However, I think the petition has a much better than average chance of being granted.  (Average being ~1%.)

News Scan

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Jury Considers Death Penalty Even After Repeal: The New Mexico Supreme Court ruled Thursday that a jury may consider a death sentence for an Albuquerque man convicted of the 2006 murder of a Bernalillo County sheriff's deputy, despite the state's subsequent repeal of the death penalty. Micheal Astorga was convicted of killing Deputy James McGrane Jr. nearly a year after the repeal went into effect on July 1, 2009. The repeal applied only to crimes committed after that date. The Supreme Court ruled that Astorga's defense attorney cannot call experts or legislators to testify about the repeal during sentencing, but that the trial judge will be allowed to instruct jurors about it. Russell Contreras of AP reports this story in Santa Fe.

Mother Seeks Death Penalty for her Daughter's Ex: Emma Gritt of (UK) reports Joshua Davies, 16, was sentenced to a minimum of only 14 years in prison for the murder his 15-year-old ex-girlfriend, Rebecca Aylward. Prosecutors say Davies lured the girl into a forest before bludgeoning her to death with a rock and leaving her body face down in the rain. It has been said Davies carried out the acts on the promise of a free breakfast from friends, who did not believe Davies's intentions were serious. Sonia Oatley, Aylward's mother, called for a return of the death penalty: "We will never forgive him for tearing our world apart so brutally and I would welcome the return of capital punishment for the likes of Joshua Davies, who forfeited his human rights when he chose to take my daughter's life."

New California Bill Scrutinizes Sex Offenders: The AP reports a California bill sent to Governor Jerry Brown yesterday will require criminals convicted of sex crimes elsewhere to register as sex offenders if they move to California. Democratic Senator Ellen Corbett says her bill might help track sex offenders such as Phillip Garrido, who was convicted of rape in Nevada and moved to California after his release from prison.

Comment on Comments

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Every once in a while, I think we need to clarify our policies on comments.

SCOTUS Orders List

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The US Supreme Court issued one of its interim summer orders lists this morning.  Nothing interesting on it, just denials of stays in civil and immigration cases (plus one case I'm not sure about), and a bunch of rehearings denied.  "Nothing to see here folks, keep moving."

It's Your "Federal Family"......Honest!


In order to sell its hokum, the defense bar can't use language as an ordinary person would.  Thus, when the client belts granny with a tire iron to get her purse to finance his next hit, this is a "poor choice."  When he organizes the flash mob for a little smash-and-grab at the local jewelry store, this is just "falling in with the wrong crowd."  When he punches the probation officer for asking whether he's really quit doing coke, this is "a momentary indiscretion."

Here's a bit of good news on the international front.  Nicholas Cecil reports in the London Evening Standard:

Britain opposes the death penalty for Colonel Gaddafi, but his fate should be a matter for the Libyan people, Cabinet minister Andrew Mitchell said today.

As the net closes on the dictator, the International Criminal Court is seeking to have him dragged to The Hague to face charges of crimes against humanity.
But rebel leaders want to put the 69-year-old tyrant on trial in Libya first - where he could face execution if found guilty of atrocities in which thousands of his citizens were killed.

In an interview with the Evening Standard, Mr Mitchell, the International Development Secretary, laid out Britain's position on whether Colonel Gaddafi should be executed.

"People will have different views on the issue of the death penalty but it's a matter for the Libyan people and their new government, the National Transitional Council," he said.

News Scan

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Texas Closes First State Prison: Robert Stanton of Hearst Newspapers reports Texas has closed one of its state prisons for the first time. On Wednesday the Texas Legislature agreed to end funding for the Central Unit in Sugar Land. The closing of the Sugar Land facility is expected to save the state about $12.4 million a year.

Decrease In Death Penalty Convictions Tied to Bad Economy: Dan Springer of Fox News has this piece about the decline of death penalty convictions partly due to the bad economy. Death penalty sentences have dropped 60 percent nationwide since 2000. Death penalty cases costs 2-3 times more than a comparable murder case where the state is seeking life in prison without parole. King County (Wash.) Prosecuting Attorney Dan Satterberg says "it is a big deal for county budgets... when a death penalty case comes up cost is a factor that everyone is considering."   Talking about why the costs are so high Satterberg noted that defense attorneys have increasingly used mitigation specialists to conduct lengthy investigations into a defendant's past looking for abuse, mental illness or any other reason that might explain the murderer's behavior.  "They want to drive up the cost.  They want to delay the cases forever, only to turn around and use those arguments why we should get rid of the death penalty,"  Satterberg said. "They're given a blank check," he added.

No "Hot Pursuit" for Tribal Police Off Reservation: In its third time addressing the case, the Washington Supreme Court today reversed its 2010 decision and ruled that tribal police cannot follow drunk drivers off reservation land in "hot pursuit." Justice Mary Fairhurst acknowledged that the ruling could create "the incentive for intoxicated drivers to race for the reservation border," but that such policy problems would be best addressed by legislative tools "such as cross-deputization or mutual aid pacts." The court noted, however, that tribal police could be permitted to effect an arrest outside the reservation under the common law rule "when in fresh pursuit of one who had committed a felony." Levi Pulkkinen of has this story

The Jefferson-Hemings Controversy

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Off topic but interesting.

American Exceptionalism

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Shelby Steele has this article in the WSJ on American exceptionalism and President Obama.

Mr. Obama came of age in a bubble of post-'60s liberalism that conditioned him to be an adversary of American exceptionalism. In this liberalism America's exceptional status in the world follows from a bargain with the devil--an indulgence in militarism, racism, sexism, corporate greed, and environmental disregard as the means to a broad economic, military, and even cultural supremacy in the world. And therefore America's greatness is as much the fruit of evil as of a devotion to freedom.
Steele's piece does not address criminal law, but the exceptionalism divide comes up all the time in criminal law debates.  The defense side says that Europe does things the way they want them done, and they say this with all the confidence of a bridge player who has just led the ace of trumps for the rubber trick.  The rest of us shrug and say, "So what?"  We are independent of Europe, an achievement we celebrate every Fourth of July.  The fact that Europe disagrees with us does not mean we are wrong and they are right.  Indeed, the opposite is more likely true.

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