October 2011 Archives

A guilty plea waives most of the rights that go with a trial -- trial by jury, proof beyond a reasonable doubt, privilege against self-incrimination, etc.  So of course for such a grave decision to be valid it must be knowing and voluntary.

What makes a plea involuntary?  Well, the Godfather method of "either your signature or your brains are going to be on that paper" would do it.  But voluntariness has been watered down below that.  The "knowing" part includes a knowledge of what the defendant is pleading to and the sentence (or range of possible sentences) that will follow.  Last year the Court added immigration consequences as well in Padilla v. Kentucky.  This inquiry is wrapped up with the right to effective counsel, as counsel is supposed to explain all this before the defendant pleads.

But is a plea unknowing or involuntary when the defendant knows everything the Court has said he is supposed to know and voluntarily chooses to accept the deal, but unknown to him he could have gotten a better deal earlier under a now-expired offer that his lawyer failed to tell him about?  That was the question argued before the US Supreme Court today in Missouri v. Frye.

The title of this post is a question by Justice Kennedy in oral argument today in Lafler v. Cooper, and it pretty much says it all. 

Cooper's claim is that a better lawyer would have advised him to take an offered plea bargain.  He rejected it, on his lawyer's advice.  He went to trial and was convicted of the crime of which he is very plainly guilty.  He got a sentence appropriate for that crime.

So where's the beef?  Thousands of defendants petition the Supreme Court every year claiming they were denied a fair trial or received an excessive sentence.  Cooper's complaint is that he got a fair trial and an appropriate sentence.

JLWOP Cases Relisted Yet Again

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Well, this is sounding like a broken record.*  The juvenile LWOP for murder cases, Jackson v. Hobbs and Miller v. Alabama, have been relisted yet again, for the conference of this Friday, November 4.

News Scan

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70 Arrested after Arizona Drug Bust: Eric Johnson of Reuters reports authorities in Arizona seized thousands of pounds of narcotics and arrested 70 people believed to be tied to a drug cartel in Mexico. Over the past 17 months local, state and federal officers conducted three raids that led the to the arrests and seizing of drugs. Officials are calling this a "sophisticated network of international drug smuggling in one of the largest such operations conducted in the Southwestern United States."The cartel is believed to handle 65% of drugs illegally transported to the United States. Those arrested will be prosecuted at the state level. Further details will be released at a later press conference.

Prior Attacks Allowed by Michigan Judge: Ed White of the Associated Press reports a Michigan judge ruled in favor of the prosecution and is allowing evidence of other attacks in the murder trial of Elias Abuelazam. Abuelazam is standing trial for the murder of Arnold Minor, whose DNA was detected in Abuelazam's car and luggage. Abuelazam was arrested in August 2010 after trying to flee the country. He was charged with three murders and six attempted murders. The victims were viciously stabbed after Abuelazam had stopped them and asked for directions or help with his car. The assistant prosecutor said there was a pattern of "short, quick, swift" attacks and by allowing evidence of Abuelazam's previous attacks into court it will help rebut a possible insanity defense. The trial is currently set for February 7.

Convicted Killer Solves Cold Case: The Associated Press reports that, before he died in prison last Thursday, convicted killer Russell Smrekar confessed to killing two more people before he died. Smrekar was serving time for the murder of a grocery store clerk and his pregnant wife when he confessed to killing Michael Mansfield, who disappeared in 1975 and Ruth Martin, who disappeared in 1976. Both were supposed to testify against him and Martin's body was never found."Smrekar's confession and details of what happened has brought peace to the family." Lincoln Police said in a news release. Smrekar died of an undisclosed medical condition. 

The Shaken Baby Case

The US Supreme Court has issued its first opinion of the term.  Not surprisingly, it is a summary reversal finding, once again, that the US Court of Appeals for the Ninth Circuit has overstepped its authority to overturn a state criminal judgment.

Cavazos v. Smith, No. 10-1115, involves the second-degree murder conviction of Shirley Ree Smith for the death of her 7-week-old grandson.  The trial was a "battle of the experts," with the prosecution experts testifying little Etzel was shaken to death, and the defense experts testifying he was not.

The jury believed the prosecution experts and convicted Mrs. Smith of second-degree murder.  The state trial judge and appellate court upheld the verdict.  The federal district court concluded it had no authority to interfere.

The Ninth Circuit has granted relief to Mrs. Smith twice before and had the case sent back by the Supreme Court, only to grant relief again.  This time the high court has had enough.

Occupation Notes

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In New York, Mother Nature has stepped where Mayor Bloomberg lacks the backbone.  Alex Kline reports in New York Magazine:

News Scan

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Death Penalty Upheld 3rd Time For Cop-Killer: Sandra Chereb of AP reports of the Nevada Supreme Court's decision on Thursday to uphold the death penalty for convicted murderer Edward Wilson, 52, who pleaded guilty to the 1979 killing of undercover Reno police officer James D. Hoff.  The officer's body was found under a pile of rocks in a ditch. He had been stabbed repeatedly. Ever since a three-judge panel sentenced Wilson to death he has been fighting the sentence.  Wilson is currently the longest serving inmate on Nevada's death row. His latest petition on habeas corpus challenged the aggravating circumstances used to qualify him for the death penalty. Nevada's highest court rejected the argument in a 6-0 ruling.

DNA Evidence Links Murder to Crime:  Lucas County Common Pleas Court Judge Gene Zmuda sentenced Robert Bowman, 75, to life on Friday for the 1967 murder, kidnapping and sexual assault of 14-year-old Eileen Adams. Adams disappeared on her way home from her Toledo school, and a year later her body was found in a field bound in a braided, brown rug. Her hands were tied in front of her and a cord was wrapped around her neck and attached to her bound ankles. A nail had been driven into the back of her skull. In the early 1980s detectives first tried to link him to the slaying but failed to gather enough evidence to bring charges.  Five years ago a cold case squad reopened the investigation which uncovered new DNA evidence linking Bowman to the killing.  Police arrested him near Palm Springs, CA, in 2008. John Seewer reports in SF Chronicle.
DA Seeks Death Penalty For Double Murder Case:
A Pennsylvania prosecutor  is seeking the death penalty for Colin Abbott, 40, who allegedly murdered his wealthy father and stepmother and tried to cover up the crime by telling relatives the couple died in a fatal auto-crash. Concerned relatives could not confirm the crash and contacted state police. Police found remains and speculate the victims where shot and burned with the remains scattered on Abbott's small farm  AP reports.  

Officer's killer is put to death

Michelle Mondo reports for the Houston Chroncle:

Singing to God, praising Yahweh and even asking Jesus to torment District Attorney Susan Reed so "she, too, finds the Lord," convicted cop killer Frank Garcia was loud just before his execution Thursday -- but he was not repentant.

His last statement began before all the witnesses were in the death chamber, and at no point during a rambling 10-minute speech did he apologize for or even mention the 2001 fatal shooting of San Antonio Police Officer Hector Garza, which landed Garcia on death row.
*                                  *                               *
Laura Andersen, who said she has become good friends with Garza's widow, said Garcia's last words weren't what she expected.

"I've always seen him to be more stoic," she said. When asked about Garcia not showing any remorse she said, "It only confirmed that the state made the right decision."

On Thursday afternoon, the Texas Court of Criminal Appeals denied a request for a stay of execution and last-minute appeal, issuing a two-page order just after 11 a.m. that stated Garcia's lawyers didn't meet the burden of proof in showing that he meets criteria for mental retardation.

A dissent by three judges stated that because a case before the U.S. Supreme Court could affect the Texas appeals process, the court should have granted a stay until the high court makes its ruling.

The CCA dissent says,

Since granting review in Martinez, the Supreme Court has stayed the execution of several condemned Texas inmates who argued, as does the applicant today, that the ineffectiveness of initial state habeas counsel with respect to an issue that may be raised for the first time only in a post-conviction application for writ of habeas corpus proceeding ought to justify allowing the inmate to raise that issue for the first time in a subsequent writ application.
However, later that day, the U.S. Supreme Court denied certiorari and a stay.  No dissent is noted.  Maybe that's a good sign for the Martinez case.

A funny way of saying it

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A mostly off-topic note on the oddities of language about people and statistics.


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Paul Owen reports in the Guardian (London):

The Scottish government today lost an appeal to the UK supreme court in a case over human rights that could undermine the convictions of criminals questioned without a lawyer.

A ruling found such questioning was aimed at making it more likely that suspects in Scotland might "incriminate" themselves while being quizzed by police.

The defeat for Scottish ministers - which had been feared for months - has prompted concerns that it could lead to widespread appeals and some criminals walking free from jail.

The Scottish justice minister, Kenny MacAskill, said that in response, with Holyrood's support, he would be making "swift legislative changes to protect the victims of crime and safeguard communities".

Today's supreme court judgment states: "The ECHR [European Convention on Human Rights] requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed."

News Scan

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Texas Cop Killer Scheduled to be Executed Today: The Associated Press reports that Frank Garcia, 39, is scheduled to be executed in Huntsville, Texas at 6pm local time today for the murder of a police officer. San Antonio police Sgt. Hector Garza was shot in the head four times by Garcia as he responded to a domestic violence call. Garcia said he aimed for Garza's head because he knew police officers wore bullet-proof vests. Garcia also turned the gun on his wife and shot her three times in the head and face. The San Antonio Police Officers Association will send at least 50 representatives from the department on chartered buses to Huntsville in time for the execution tonight.

Judge Extends Order Halting College's Drug Testing of Students: Jim Salter of The Associated Press reports a federal judge extended a temporary restraining order halting a Missouri college's drug testing of students. Linn State Technical College calls for the drug testing of all first-year students and some returning students. Last month the ACLU filed suit challenging the constitutionality of the drug testing, and Tuesday U.S. District Judge Nanette Laughrey, who granted a temporary restraining order in September, extended the order through November 8. The suit claims the program violates the Fourth Amendment right of students against unlawful search and seizure. Jason Williamson, an attorney for the ACLU, said the extension was made to allow Linn State time to decide how to proceed, and doesn't think Laughrey is likely to change her mind.

Man Whose Murder Conviction Was Overturned Then Reinstated Dies During Appeal: The Associated Press reports Ronald Taylor, 53, who was awaiting a new appeal trial after his overturned murder conviction was reinstated, died of cancer Tuesday at his home in Connecticut. Taylor and co-defendant George Gould were convicted of shooting a grocery store owner to death in 1993, and were sentenced to 80 years in prison. Taylor and Gould were released in April 2010 when a state Superior Court judge ruled them victims of "manifest justice" and declared them "actually innocent" after a key witness recanted her trial testimony. In July, the state Supreme Court reinstated the murder convictions, saying Gould and Taylor hadn't proven their innocence and ordered a new appeal trial for the men. Gould was ordered back to prison in August, but Taylor was allowed to remain free while fighting cancer. Taylor's attorney, Peter Tsimbidaros, says his death doesn't make the case moot. "It's such a unique case and the facts are so extraordinary that Ron's case should continue," he said. The new appeal trial is scheduled to begin in January. 

Fed Up in Oakland

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A couple weeks ago in this post, I asked rhetorically, regarding the occupy [whatever] movement, even one agrees with some of their aims, "why does anyone think extended occupation of public spaces is an effective way to achieve anything?"

Somebody who agrees with the protesters to a much greater degree than I do is the leftist mayor of Oakland, Jean Quan.  Yet apparently she and other city officials have had it with the encampment outside city hall.  Matthai Kuruvila, Justin Berton, and Demian Bulwa report for the SF Chron:
Last week, Bill had a post on the book by the late William Stuntz titled "The Collapse of the American Judicial System."  The book had been reviewed by Justice Stevens.

Today, Paul Cassell has a review of the book in the WSJ.  From Cassell's review, the book may be better than one would infer from its unfortunate title.

Perhaps aware that "collapse" in the book's title requires justification, Mr. Stuntz begins by reviewing some statistics. As he shows, in the 1950s, 1960s and early 1970s, amid the largest crime wave in American history, the U.S. prison population declined. Imprisonment rates plummeted to some of the lowest ever seen in the modern Western world. High-crime neighborhoods, as Mr. Stuntz puts it, were "abandoned to their fate."
*                         *                      *
Mr. Stuntz readily acknowledges what many legal scholars do not: America's current lock-'em-up philosophy has dramatically helped to reduce urban crime.... Even so, Mr. Stuntz counts these declines as a pyrrhic victory, given that violence per capita in the U.S. today remains significantly higher than in 1950.
Well, that's refreshing.  When anyone writes on criminal sentencing today, the first thing I want to know is whether he is aware of what an unmitigated disaster the soft sentencing policies of the 1960s and early 1970s were.

News Scan

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Serial Killer Faces Death Penalty: The Orange County DA's request for the extradition of ex-con and serial killer, Andrew Urdiales was granted as he was moved to California for his new trial, this time facing the death penalty. The OC district attorney's office requested the extradition after Governor Pat Quinn abolished the death penalty in Illinois where Urdiales was to be tried as reported here. Urdiales is scheduled for an arraignment Dec. 1 at the Central Justice Center in Santa Ana. L.A. Times writer, Robert J. Lopez reports.

Death Penalty Trial Gets Started: Jutta Biggerstaff reports in the Hi-Desert Star (Yucca Valley, north of Palm Springs, Cal.) of the special requirements potential jurors will face in the capital murder trial of Sherhaun K. Brown. The jury selection will begin Nov. 9 from a pool of 600 people who are "time qualified" as well as "death qualified" meaning a lot of time off work and at least some consideration for choosing the death penalty. Brown is charged with breaking into the home of Kristy Vert, 54, stabbing her to death and raping and slashing the throat of Vert's daughter-in-law, who lived at the home with her two children. Brown has several prior convictions including burglary, possession of a controlled substance, DUI, and vandalism, all crimes that qualify him as a "low risk" offender in some states.

DNA Evidence Led Police To Rapist: Ralph Skundrick has been charged with the June 2002 rape of a Cranberry Township, Penn. woman who woke up to find a man standing over her inside her apartment. Before raping her, the man threatened to kill her and her child if she reported the incident. Police collected DNA evidence from the scene but yielded no matches, until March of 2010 when a Pennsylvania State Police laboratory contacted Cranberry police after identifying Skundrich, a convicted offender, as a suspect. Further DNA samples were taken from the suspect who was in jail for unrelated charges. Skundrich's criminal history dates back to 1987 and he currently awaits trial on assault charges in Allegheny County and on drug charges in Westmoreland County. WTAE Pittsburgh reports.

Realignment Leaves Serious Criminals in Counties:  Governor Jerry Brown's promise that his inmate realignment plan would only require that felons with a "low risk" for violence be kept in California counties rather than sent to state prison is not being kept, according to this story by Sacramento Bee reporter Brad Branan.  The County's Assistant Chief Probation Officer  said that the majority of felons left in the community have prior convictions for serious and violent crimes.  Under the plan, if a criminal's most recent offense is not a serious or violent crime, then he cannot be sent to prison, even if he has prior convictions for such crimes.  One example is a felon convicted of grand theft with a prior conviction for armed robbery.  While the District Attorney and Sheriff are insisting that funds for the realignment plan be spent for more jail space to house the most serious criminals, the ACLU insists that the funds be spent on rehabilitation programs.    

Leahy and Sanders Endorse Deterrence

Vermont Senators Patrick Leahy and Bernie Sanders have endorsed the concept that greater penalties for crime have a deterrent effect.  Senator Leahy's press release says (emphasis added):

"Vermonters take pride in the natural products our state produces, and I have been alarmed by the growing number of individuals and businesses claiming to sell Vermont maple syrup when they are in fact selling an inferior product that is not maple syrup at all," said Leahy.  "This is fraud, plain and simple, and it undermines a key part of Vermont's economy.  I know that hardworking syrup producers in Maine, New York and other states have been similarly hurt by this crime.  Our bill will deter this criminal conduct."

A recurring issue in debates over sentencing policy is whether greater penalties deter.  It is a basic principle of human behavior that when you increase the cost of doing something, there is some decrease in the number of people who choose to do it.  (The demand is elastic, in econospeak.)  In most areas of policy, the only dispute is over how large the effect is, not whether there is such an effect.  In criminal sentencing, though, some people will assert there is no deterrent effect at all.  It's good to know Senator Leahy doesn't buy that nonsense.

Oh, and I'm all in favor of punishing people who fraudulently mislabel food.  But why should mislabeling syrup be a greater offense than mislabeling any other food?  I can't think of a good reason.

News Scan

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Florida Welfare Drug Test Law Blocked:  A new Florida law that requires drug testing of welfare recipients has been blocked by a federal judge who believes that a Fourth Amendment challenge to the testing is likely to succeed according to this AP story. Judge Mary Scriven issued a temporary injunction Monday, which will remain in place while she hears a lawsuit brought by a 35-year-old Navy veteran who was denied welfare benefits when he refused to take the drug test.  "Drug testing welfare recipients is just a common-sense way to ensure that welfare dollars are used to help children and get parents back to work," said a spokesperson for Governor Rick Scott.  Twelve years ago Michigan passed a similar law which was challenged and eventually overturned by a Sixth Circuit ruling in Marchwinski v. Howard

Texas Murderer Seeks Execution Delay:  Henry Watkins Skinner, sentenced to death for the 1993 beating, strangulation and stabbing murders of his girlfriend and her two sons, has asked a federal court to delay his November 9 execution until a Texas court rules on his third request for DNA testing of items related to the killings.  AP writer Betsy Blaney reports that prosecutors oppose the delay arguing that Skinner's claim does not meet the standards required by law to support the testing.  Skinner was arrested three hours after the murderer, hiding in a closet a few blocks away.  He had the blood of two of the victims on his clothes and had left a trail of blood from the murder scene to his hiding place.  

Rand Retracts Pot-Crime Study

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A couple of weeks ago, we noted that Rand Corp. had removed a controversial study from its website for reevaluation.  The study purported to show that crime went up after marijuana dispensaries were closed.

Following the reevaluation, Rand has now formally retracted the study.  John Hoeffel has this story in the LAT.

Researchers with the Santa Monica-based think tank used crime data compiled by a firm that collects information from about 1,200 law enforcement agencies, including the Los Angeles County Sheriff's Department, but not the LAPD.

"They made mistakes," said Debra Knopman, a Rand vice president and director of the infrastructure, safety and environment division. "What we're wrestling with is how the mistakes went undetected."

The extraordinary lapse has the esteemed institution closely examining how it reviews its research. The discredited report went through an internal and an external peer review.

No Stay in Swiss Bank Subpoena Case

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The U.S. Supreme Court this morning denied a stay pending certiorari to a person resisting a grand jury subpoena for records regarding his Swiss bank accounts.  The case raises issues regarding the Fifth Amendment Self-Incrimination Clause, the required records doctrine, and the Bank Secrecy Act of 1970.  The investigatee, identified only as M.H.,  is represented by Erwin Chemerinsky.  The introductory portion of the Ninth Circuit opinion follows the jump.

Judicial Power as a Campaign Issue

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Adam Liptak and Michael Shear have this article in the NYT about the federal judiciary as an issue in the presidential campaign.

Denunciation of judicial overreach is, of course, a grand tradition in the Grand Old Party.*  The party's very first successful presidential candidate made attack on a Supreme Court decision a major theme of his campaign.  Denouncing that decision was controversial at the time, but nearly everyone today agrees he was correct.

Liptak and Shear report:

Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a "rogue" court that is "consistently radical."

Math + Summation = Reversal + Retrial

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A Massachusetts prosecutor gets his case back to do over again for trying to do amateur probability analysis in his closing argument.  Joe Palazzolo has this post at WSJ Law Blog.  Kyle Chesney has this story for State House News Service.  We can't link directly to the opinion due to Massachusetts' quirky opinion system.  The case is Commonwealth v. Ferreira, SJC-10902.  It is under "Slip Opinions" on this page for the time being.  Later, you will need to search the archives for it.

News Scan

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Shootings Soar in New York: Brad Hamilton of the New York Post reports New York is seeing a 154 percent surge in the number of people shot in New York from 22 to 56 compared to the same week last year. Shootings have gone up 28 percent just within the past month. Police in the area attribute the increase in shootings to Occupy Wall Street protesters. Instead of fighting crime on the streets the special task forces are on Wall Street. When the protesters march, as many as 3,000 police are dispatched to keep the peace. Arrests in the area have plummeted 19 percent this year.

Increase Violence Against Police:  MYFOXNY.com reports an increase in the number of officers killed. Nationwide that number has already jumped 17 percent. The FBI released statistics recently showing that 56 officers were murdered in the line of duty last year compared to 48 the previous year. 15 of those officers killed were ambushed, 14 others died as they were making arrests, and one during transportation of a prisoner. All but one officer was killed with a gun, his attacker used a vehicle. Of the officer deaths, 22 happened in the south, which saw the highest increase. Along with the increase in officer murders there was also an increase in accidental deaths. 72 officers were killed in accidents, which is a 50 percent increase compared to the previous year. Last year 53,000 officers were assaulted.

5 Tons of Pot Seized in Indianapolis:  Mary Beth Schneider of the Indy Star reports authorities began an investigation back in March that started with money falling out of a hidden compartment in a truck and led to the largest drug bust in Indiana history. Police seized 5 tons of marijuana and $4.3 million dollars. Police are confident they have halted a drug distribution operation that most likely will affect a Mexican drug cartel, which authorities believe was the originator of the marijuana and the ultimate destination of the cash. Four men have been charged with conspiring to possess with intent to distribute more than 1,000 kilograms of marijuana.

Let the Great Axe Fall

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Professor Robert Blecker of New York Law School has a Kindle book with the above title on Amazon.  According to Amazon's reviewer (who is obviously a death penalty opponent), the first half is Blecker's argument for capital punishment.  The second half recounts his experiences interviewing convicted criminals in Lorton Central Prison.

A Celebration of Justice Clarence Thomas

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The Left is furious with Clarence Thomas for his temerity in refusing to be chained on its plantation.  Kent has noted and responded to this fury here, here and here.  My friend Professor John Yoo of Berkeley, a former Thomas clerk, notes Justice Thomas's signal contributions to the law in his WSJ piece this weekend.

Justice Thomas has not always cast votes favorable to my view of criminal law, as, for example, in the disastrous case of Apprendi and some of its progeny.  But as a man of insight and principle, and as a friend to the Constitution as written rather than as re-rigged on the fly to suit the personal tastes of judges, he is nothing short of heroic.  As Prof. Yoo notes:

Justice Thomas's two decades on the bench show the simple power of ideas over the pettiness of our politics. Media and academic elites have spent the last 20 years trying to marginalize him by drawing a portrait of a man stung by his confirmation, angry at his rejection by the civil rights community, and a blind follower of fellow conservatives. But Justice Thomas has broken through this partisan fog to convince the court to adopt many of his positions, and to become a beacon to the grass-roots movement to restrain government spending and reduce the size of the welfare state.

Justice Thomas now celebrates his twentieth year on the Court.  Thanks to my former boss, President George H. W. Bush, for appointing him, and thanks and gratitude to Justice Thomas for his uncompromising defense of the Constitution.

Prof. Doug Berman put up an entry today on Sentencing Law and Policy about the last book published by the late Harvard Law Prof. William Stuntz.   The book is titled, "The Collapse of American Criminal Justice."   Its thesis, not too surprisingly given the title, is that our criminal justice system has fallen into utter failure.

Prof. Berman's entry notes that the Stuntz book was reviewed by former Justice John Paul Stevens.  The review is favorable, and likewise laments the putatively rampant shortcomings of the system, even while noting that Justice Stevens would refrain from using the word, "collapse."


The whole thing  --  all of it  --  is preposterous.  Over the time this alleged disaster is supposed to have happened (roughly the last 20 years), the crime rate has fallen off a cliff.  The property crime rate is down by 43%; the violent crime rate by 47%, and the murder rate by slightly more than 50%.  The raw figures are here, and you can do the math yourself.  If you look at the numbers, you'll see that the murder rate is lower now than it has been at any time in almost 50 years.

Perhaps the most stunning figure, however, is this:  The number of serious crimes annually 20 years ago was 14,872,900. The number last year was 10,329,135. That is a drop of 4,543,765.  Four and a half million fewer crime victims.

That is not a "collapse" or anything remotely similar.  It is, to the contrary, an astonishing success story. I am not aware of a similarly successful domestic program of comparable size and scope, ever.

I will readily concede that the system looks "broken" to two categories of observers: (1) academics who never saw a criminal for whom an excuse could not be manufactured, and who thus lament their incarceration; and (2) the criminals themselves, now thankfully keeping each other company rather than the rest of us.

Confirmation Nastiness, Part II


Kent noted that confirmation nastiness has spread outside Washington, DC.  But it certainly had its origin there.  The origin, specifically, was the Ted Kennedy-led, gutter-level attack on Robert Bork.

Twenty four years ago tomorrow, Bork was voted down simply because he was a conservative.  He was, however, superbly qualified for the Court.  He was a law professor at Yale, a  former Solicitor General, and a judge on the US Court of Appeals for the DC Circuit.  It was to prove to be a preview of the even more appalling "high tech lynching" of Clarence Thomas  --  although, quite fortunately, that one failed.

The New York Times, of all things, has an op-ed spelling out, in straightforward terms, just how ruthless and unprincipled the attack on Bork was.  If a Republican wins the Presidency next year, and there is a Supreme Court vacany during his term, the scandalous nature of the attack on Bork is, I fear, something we will all have to remember  --  and be prepared to fight.

What Happens When We Don't Use the DP?

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They do it again.  Hence this local Washington, DC story.  It seems that last night, one Vitaly Davydov beat to death his roommate in a mental facility.  As the story notes:

You may also recognize Davydov's name. He was convicted of beating his psychiatrist, Doctor Wayne Fenton, to death in Rockville five years ago.

Now if he was "convicted," what that means is that he was not insane; you can't convict insane people, because a murder conviction requires criminal mens rea and the capacity to understand what you were doing.

I also thought the final paragraph of the story was noteworthy:

Davydov is now charged with first and second degree murder. Police are still trying to establish a motive.

Let me see if I can suggest a motive:  He's big and strong and 24 years old, likes killing, and has figured out that society isn't all that serious about doing anything to stop him.



On September 1, Bill and I had a little discussion in the comments to this post about extradition of Moammar Gadhafi.  I thought the issue would be moot "if he is already room temperature when the Libyans finish with him...."  Well, I was way off on the temperature.

News Scan

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Massachusetts Judge Orders New Trial for Serial Killer: On Thursday, Chief U.S. District Judge Mark Wolf threw out the death sentence, ordering a new trial for the serial killer Gary Sampson, on the grounds that he was denied his constitutional right to have his sentence decided by an impartial jury. Wolf had already investigated previous jury biases as reported here, but found that one of the jurors proved to have a "high risk" of sentencing Sampson based on her life experiences she never disclosed. Mike Rizzo the father of one of Sampson's victims told reporters: "I wish I could say I was surprised. I'm not surprised, I'm extremely disappointed and phenomenally outraged at the fact that one man with the ego the size of Judge Wolf's tried to overturn the good work done by so many people in coming to the right decision many years ago." AP has this story in the Washington Post.

Prison Realignment Reduces Jail-time: Andy Furillo reports in the Sacramento Bee of Judge Ben Davidian's decision to give long-time criminal Herbert Hale Sr. a 2.5 year county-jail term instead of the usual 21 years in prison, making him the first Sacramento inmate affected by the state's new realignment plan that went into effect Oct. 1. Hale was arrested by police in January for the purchase and transportation of 10-bindles of black-tar heroin outside McClatchy Park. California's prison reduction has caused far more "low-level" offenders, like Hail, to be sentenced to county jails that are not adequate for long-term lockups, hence the short term despite their criminal histories.

Lawsuit Claims Alabama Counties Keep Blacks Off Juries: The Equal Justice Initiative filed a federal lawsuit Wednesday alleging that Houston and Henry counties in south east Alabama create obstacles to exclude blacks from some juries. The lawsuit claims that in a series of cases between 2006-2010 where the death penalty was imposed, blacks only made 5% of the jurors in the two counties that contain 29% and 23% respectively.

Ex-Con Sentenced For Life for Xmas-Slaying
: Cook County Judge James B. Linn sentenced Lee Cration to life imprisonment for shooting retired state employee and civil rights activist Ralph Elliott while on parole for a 1985 murder conviction. As Judge Linn handed down the sentence for Cration he stated parolee as a danger and a menace and telling him, "This court has no mercy for you. You will never have an opportunity to hurt an honest person again." Lauren Fitzpatrick has this story.

Texas Wife Finally Faces Charges For Husband's Death: Mary-Ann Rivera, 76, finally faces charges for the 1970 murder of her husband which she allegedly doused with hot grease. Rivera was a fugitive for more than four decades having fled from Texas to Lake Park, Georgia on a bail of $10,000 with her children.Though many of her Georgia friends question the arrest after all of this time, especially with her old age and poor health, spokeswoman for the Harris County District Attorney's Office, Donna Hawkins stated: "The defendant was charged with committing a rather brutal murder of her husband. Although she was able to elude authorities for over 40 years, she ultimately must face judgment in a court of law for the murder of her husband." CBS News has this story.

The Record

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Here is an interesting tidbit for SCOTUS-watchers, stumbled upon while looking for something else.

Wetzel v. Lambert is a habeas case on conference for next Friday.  The docket is here.  The docket entry for Sep 26 is an otherwise routine entry with a twist:

Sep 26 2011 Record received from the United States Court of Appeals for the Third Circuit (one DVD).
One DVD?  Usually they list how many boxes.  See, e.g., the Oct 4 entry on the same docket.

I didn't recall seeing that before, so I searched the docket for "DVD."  Sure enough, the docket search turned up no other references to lower court records being received as DVDs.  Ditto for CDs.  Progress comes slowly, but it comes.  (Speaking of technology and the high court, today's SCOTUSblog discussion is on televising arguments.)

Oh, and let's hope the Court grants Pennsylvania's petition.  The Third needs spanking here.

Schools Not Prisons!....Oh....Wait.......

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One of the favorite slogans of the "Incarceration Nation" crowd is, "Schools Not Prisons!"  This is shorthand for the argument, such as it is, that the money we spend on prisons would be better spent on schools.

There are at least two tacit assumptions going on here.  The first is that we're not getting all that much for the money we spend on imprisonment.  The second is that we'd get a good  return, or at least a better one, by putting the money into education.

Both assumptions are, not merely wrong, but demonstrably preposterous.  I have shown previously that the money we invest in imprisonment has reduced serious crime  -- murder, rape, robbery and so  on  --  by more than one million episodes a year.  I am not aware of any domestic program, ever, that has had such dramatic and beneficial results.

And what's the return on the much larger amount of money we have spent on education?  While billions upon billions have been poured into schools and  teachers, and education spending per pupil has doubled over the last forty years, the improvement in educational attainment has been  --  ready now?  --  zip.

That's  zip, as  in zero.  The charts tell the tale (courtesy of John Hinderaker at Powerline).  This is something to remember next time someone from Occupy Wall Street, or whatever, starts chanting "Schools Not Prisons."

Christopher Thomas Johnson Executed

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Christopher Thomas Johnson, a killer discussed here, was executed tonight in Alabama.

His crime was that, in order to get revenge on his wife and to avoid having to pay child support, he killed his six month-old son by beating and suffocating him.  The evidence showed that he struck the child not fewer than 85 times.

The sheer evil of something like this is beyond my capacity to describe.  I notice that the crowd that was raising the roof about Troy Davis  --  to make the case that the death penalty should never be imposed  -- is notably quiet tonight.  I  would like to ascribe this  to an embryonic sense of decency, but more likely it's just because they're shrewd enough to shut up. 

Do You Ever Wonder...

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...what it would be like to have real leadership from the President on issues in criminal law.?

Once upon a time, we knew.

The text of the Constitution explicitly contemplates capital punishment, and the Eighth Amendment was not understood by its authors as banning it.  Instead, the purpose of the Eighth Amendment was to ban particularly vile ways of imposing it, or other punishments, such as disembowling and burning at the stake.

Q:  So why have we developed a jurisprudence in which the Supreme Court views itself as empowered to ban capital punishment in one class of cases or another, or, indeed, to ban it altogether, see Furman v. Georgia?

A:  Because the Court, in disregard of the limited and strictly judicial function assigned to it by the Constitution, has decided that it should become the arbiter of when there is a "national consensus" against capital punishment, or against various applications of it.

One can scarcely imagine a job for which the Court is less suited either by its capabilities or  --  and more importantly  --  its Constitutional role.  Has it dawned on anyone that the discernment of a national consensus on questions of criminal punishment is quintessentially a job for the elected branches? 

Well yes, it has.  It has dawned on the brilliant Richard Epstein.  His article, well worth the time to read  it all, says, inter alia, this:


A most unfortunate line of Supreme Court cases, which first held that this decision on the use of the death penalty was unconstitutional, set the Court on the wrong path. In his recent musings, Justice Stevens' argument against the death penalty boils down to his judgment that the possibility of error in death cases is enough to tip the case in favor of its abolition.

In this instance, it is hard to see how this particular observation, whether true or false, is anything other than a straight political judgment unmoored from the text or purpose of the Constitution. There are in fact many individual cases in which I have been deeply troubled by the application of the death penalty. In some cases, it strikes me as a clear violation of the right to due process for the state to refuse to use DNA evidence to resolve uncertainty over the identification of the proper offender. But it is a stretch to say that procedural concerns in some cases should lead to a constitutional ban on the death penalty in all, especially since (as against the federal government) both the prohibition against cruel and unusual punishments and the guarantees of due process are both found in the Bill of Rights.

Taken as a whole, what is so troublesome about Justice Stevens' general views is the unmistakable sense that he has erased the line between what he thinks of as politically unwise and constitutionally required...

Confirmation Nastiness

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Kirk Makin has this story on "unexpected turbulence" at a confirmation hearing for a Supreme Court nominee.

No, not our Supreme Court.  Makin is the justice reporter for the Globe and Mail of Canada.

MPs addressed the lack of transparency in the appointment process, the high cost of litigation, and the toughly worded accusations that Judge Moldaver has made in the past about inadequate lawyers cheapening the Charter of Rights with runaway trials and hopeless legal motions.

Judge Moldaver insisted that he is no "Charter-basher." He said that he supports restrained lawyers who help their clients resolve their cases in the speediest and least-damaging way.

Every needless Charter motion ties up courtrooms and frequently bleeds away precious legal aid funds, he said.

Sounds like a good nominee to me.  The other charge against Moldaver is that he doesn't speak French.

News Scan

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Alabama Set to Execute Man for Murder of Infant Son: Kelli Dugan of Reuters reports Christopher Thomas Johnson, 39, is scheduled to die by lethal injection at 6 p.m. local time at the Holman Correctional Facility in Atmore, Alabama for the 2005 murder of his 6-month-old son. Suffocation and head trauma were cited as the causes of death of Johnson's son, and the forensic pathologist who performed the autopsy testified at trial that the infant suffered at least 85 separate injuries. Johnson represented himself at trial and plead guilty. He was sentenced to death in February 2007. Johnson's stay on death row could possibly be one of the shortest on record in the U.S., says one law professor. Johnson will be the sixth inmate executed this year in Alabama, and the 38th nationwide.  See also prior post here.

Record Number of Illegal Immigrants Deported: The Associated Press reports
U.S. Immigration and Customs Enforcement said it deported almost 400,000 people, the largest number in the agency's history, in the fiscal year that ended in September. ICE Director John Morton said about 55% of those deported had misdemeanor or felony convictions. Of the 396,906 people deported, more than 1,000 were convicted of homicide; 5,800 were sexual offenders; and about 80,000 were convicted of drug related crimes or of driving under the influence.

Death Warrant Issued for Idaho Killer: Sven Berg of the Idaho Falls Post Register reports Bonneville County Judge Jon Shindurling issued a death warrant for Paul Ezra Rhoades in Idaho yesterday for murdering two women in 1987. Rhoades also received two life sentences for the second-degree murder of a convenience store clerk around the same time. Rhoades has filed a lawsuit against the state, saying that Idaho's method of lethal injection amounts to cruel and unusual punishment. The state has asked that the court throw out the lawsuit. Rhoades' execution is scheduled for November 18. It would be the first execution in Idaho since 1994, and the second since 1957. 

Any plans for the weekend?

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The end of the world, previously set for May 21, has been rescheduled for tomorrow.  Justin Berton has this story in the SF Chron.  Prior post is here.

X-rays and warrant scope

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Sheri Qualters reports for the NLJ:

A nonconsensual X-ray of an arrestee's entire abdomen based on a search warrant for an anal cavity search is constitutional, the U.S. Court of Appeals for the 1st Circuit has ruled.

On Oct. 18, a unanimous panel, in Spencer v. Roche, affirmed summary judgment rulings in favor of government and hospital defendants....

In 2008, Shane Spencer sued two Worcester, Mass., police officers, the city and Saint Vincent Hospital, where the X-rays were taken following his July 2005 arrest for driving with a suspended driver's license. According to the 1st Circuit briefs, police obtained a search warrant based on an informant's tip that Spencer had placed crack cocaine in his anal cavity.

News Scan

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Employ an Felon, Get a Tax Break:  San Francisco would join Philadelphia as a city providing a tax break to private businesses who hire felons under a proposal introduced by County Supervisor Ross Mirkarimi.  The objective is to lower a company's payroll tax burden by up to $10,000 for each felon hired.  Supporters believe that the incentive will encourage employers to hire some of the thousands of felons who will be diverted from state prison under Governor Jerry Brown's inmate realignment program, which began this month.  A similar incentive was enacted in Philadelphia in 2007, but the accompanying red tape resulted in no business choosing to participate until the process was streamlined last year.  About a dozen companies have signed up since then.  Rachel Gordon of the SF Chronicle has the story.

Murder Solved After 34 Years:  A DNA match has helped Ithica police solved the 1977 murder of 75-year-old Ruth VanHouten.  The Ithica Journal reports that 63-year-old David Grimes, has been identified as the man who broke into VanHouten's home and smothered her to death with a pillow.  Grimes has at least four prior convictions for residential burglary, robbery and assault, and is currently in prison serving a 50 year sentence.   

Florida Clerk Shoots Robber:  A 22-year-old woman, who managed her grandfather's Naples, Florida convenience store, shot and fatally injured a robber on Tuesday.  An AP story by Mitch Stacy reports that after going behind the counter and attempting to open the cash register at Del's 24 Hour Food Store, Daniel Hernandez picked up a stroller carrying Elizabeth Easterly's 1-year-old daughter and headed for the door.  Easterly grabbed a gun, jumped over the counter and shot Hernandez in the knee.  Hernandez died later from the wound.   

Why We Have the Death Penalty

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Reader federalist sent me this story about a death sentence about to be carried out and the crime for which it was imposed.  It's a story about how one man obtained revenge on his wife.  You can read the details by clicking on the link.

One paragraph in particular struck me:

"Thursday I will be granted closure finally," Dana Johnson told NorthEscambia.com in an exclusive interview. "Although I normally do not agree with capital punishment, I will not lose any sleep over this particular execution.  Whether it is right or wrong I  feel that a weight will be lifted from my soul on Thursday, and finally I will feel relief."

The idea that a sentence of imprisonment, no matter what its length, would be adequate justice for this calculated crime, undertaken against an uncomprehending person for sheer hate, is beyond preposterous.

A picture of the murder victim follows the break.


Polling the Protesters

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Former Clinton pollster Douglas Schoen has a warning for Democrats about embracing the occupiers:

Our research shows clearly that the movement doesn't represent unemployed America and is not ideologically diverse. Rather, it comprises an unrepresentative segment of the electorate that believes in radical redistribution of wealth, civil disobedience and, in some instances, violence. Half (52%) have participated in a political movement before, virtually all (98%) say they would support civil disobedience to achieve their goals, and nearly one-third (31%) would support violence to advance their agenda.

News Scan

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New Website Created in Response to California Prison Realignment: California Republicans have launched a new website, California Crime Watch, in defense of public safety due to the realignment of California prisons that began earlier this month. The website explains what realignment is, what kind of criminals qualify for early release, responds to claims by the Governor, and provides alternative solutions to realignment. Check in with the website to follow the latest news stories and updates on realignment, and be sure to watch the video on the homepage.

Thieves Take Advantage of Occupy Wall Street Protests: Larry Celona, Laura Italiano, Rebecca Harshbarger, Frank Rosario, and Jamie Schram of the New York Post report Occupy Wall Street protesters said yesterday that some demonstrators have proven to be crooks, robbing fellow demonstrators and taking expensive cameras, phones, laptops, and even cash and food. A volunteer from Fort Lauderdale says, "stealing is our biggest problem at the moment." The previous night, as much as $2,500 in donated money that was to be used for the entire kitchen budget for the day was stolen. Yesterday some volunteers scuffled with a main who was calling out to collect donations, but then was pocketing the cash people gave him.

Fresno County Jail Begins Early Release of Prisoners:
Kurtis Alexander of The Fresno Bee reports Fresno County Jail began releasing its least dangerous inmates this past weekend after reaching capacity. After adding 432 beds, police say there was as much as a 27% drop in crime in the city of Fresno as more criminals were kept off the street. Last month Fresno County Jail averaged 50 early releases a day, a number many believe will greatly increase as the state's prison realignment will send more prisoners to county jails instead of state prison. While the Sheriff's Office plans to use state funding to open another floor of the county jail next spring, the extra space is not expected to keep up with the pace of criminals coming in.
The two cases challenging life-without-parole sentences for juvenile murderers, previously noted here, will apparently be relisted yet again.  They were on the conference list for last Friday but conspicuously absent from Monday's orders list, meaning no action was taken.  The two cases have been considered by the US Supreme Court in four conferences now, beginning last May.

What's going on here?  Often when a case is relisted multiple times, a summary reversal is in the offing.  The Court has decided to reverse the lower court without taking merits briefing or holding oral argument, and the multiple conferences are needed to approve the per curiam opinion ("by the Court," with no Justice identified as the individual author).

But that cannot be happening here.  Summary reversals are for cases where the lower court is clearly wrong based on established law.  (Ninth and Sixth Circuit habeas cases evading Congress's mandates in the Antiterrorism and Effective Death Penalty Act are particularly fertile sources of summary reversals.)  In these cases, though, the relevant Supreme Court precedents are Roper v. Simmons, expressly limited to capital punishment, and Graham v. Florida, expressly limited to nonhomicides.  By no stretch of the imagination could the state court decisions be said to be clearly wrong on established law.

The question before the Court is a simple yes or no.  Take the cases up or leave the judgments undisturbed.  Why does that require five conferences?  Stayed tuned.

Update:  A possible reason for the multiple relists (suggested by Cully Stimson at Heritage Foundation) is that there is an opinion dissenting from denial of certiorari (or possible "respecting" denial), joined by more than one Justice, and they are working out the language.  Checking the cases from last term where certiorari was denied with a dissenting or "respecting" opinion, I see that multiple relists were common in these cases, so this is a good hypothesis.

Crime Threatens to Bring Down the Presidency

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No, it's not Solyndra.  It's not Fast and Furious.

We all know that one of President Obama's strong suits is his ability to talk to the people.  Kinda the "Great Communicator," Part II.

Only now it's all under threat.  Will our President survive?  Read the shocking story.

A New Reason for the Drop in Crime

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Reader mjs alerts me to a Slate article pointing to the reason crime has continued to decrease even as the recession and its aftermath linger. 

Now it's a little odd that anyone would feel the need to "explain" a new cause for the continuation of a trend  that's been underway for 20 years or so.  But when you see what the explantion is, and who's pushing it, the oddness vanishes.

The theory is that crime has continued to decline because Barack Obama got elected, and the cheerleaders  for this theory are  --  you guessed it  --  a bunch of academics who were swooning for exactly that!

Yes, the article does begin with a mumbled admission that the reasons for the generation-long drop in crime are already fairly well understood.  It even admits, albeit quickly and quietly, that increased incarceration and more aggressive policing are in the mix.  But the real reason, you see, is that Obama's election has "given the government more legitimacy."

Let's accept this conclusion arguendo, notwithstanding the fact that the government beforehand was perfectly "legitimate" under any comprehensible standard, whether or not you would have preferred Kerry to win the 2004 election. 

The new argument is baloney anyway, because its tacit premise is absurd.  The premise is that the folks otherwise inclined to knock over the gas station or belt granny with a tire iron to get her purse are first assessing their "faith in governmental and social institutions," as opposed to, say, their desire for more moola.

You have to wonder whether the people pushing this theory have spent even ten minutes in a criminal courtroom.  If they had, they might understand that the real reason people commit crime is to get money without working for it, and the real reason they refrain is when they think "governmental and social institutions"  --  namely jail  --  will be waiting for them if they get caught.

Gallup announced this poll today, showing Americans favoring legalization of marijuana 50-46.  The 95% confidence interval for sampling error of the poll is +-4%, so we can't say if that's a majority or a plurality, but it is the first time that the ayes have exceeded the nays.

If I had written the release, though, I probably wouldn't have used the term "record high."

(CJLF has not taken a position on this issue.)

News Scan

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Slaying Suspect Freed Early Despite Violent Past: Judy Ausuebel of the AP reports David "Joey" Pedersen, walked out of a prison in Oregon early for "good behavior" despite his lengthy rap sheet that includes beating a guard with a hot iron, threatening to kill a federal judge, and robbery and assault. While behind bars for 14 years he committed 68 incidents which landed him in solitary confinement. While in solitary confinement he earned time off for good behavior and Pedersen was released three months early. Several months after his release, he and his girlfriend are now suspected of killing his father and stepmother,  killing and stealing the car of a teenager, and killing another person in California before being caught. 

Social Media to Help Solve Cold Cases: FOX10TV reports the Okaloosa County Sheriffs Office is trying a new approach to solving cold cases. They are hoping for the help of the public through the use of social media outlets such as Twitter, Facebook, and YouTube. The Sheriffs Office will post videos detailing the case with video from the scene as well as interviews with investigators on YouTube and profile the crimes on their Facebook and Twitter. "We are definitely a more visual society," said Okaloosa County Sheriff Larry Ashley. "And being so, people want to see crime and crime movies, and crime novels have always generated an interest - a peak interest - in our society. And I think this is just another way to advertise that this is what happened - this horrible thing - and we need your help in solving it."  

Early Release For Convicted Killer: The AP reports the Texas Board of Pardons and Paroles has released a woman convicted of murder in 2002 after only serving 9 of her 60 years behind bars. Sadie Proffitt set her apartment on fire to make her husbands natural death look like an accident to collect the insurance money, but the fire spread to an upstairs apartment killing four people. The board released her under medically recommended intense supervision. Officials would not state the nature of her illness or the reason they released her only that Proffitt has a serious medical condition and isn't expected to live a year. The prosecutor was skeptical of the release, so she sent an investigator to where Proffitt is living. Proffitt told the investigator that her illness is not life-threatening. Yenne, the prosecutor, stated "the board made a mistake in this case and owes the public some answers" Yenne plans on lobbying lawmakers for a change in the medical parole program. 

The Stolen Valor Act

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Bugler, sound charge!

Today the US Supreme Court agreed to take up the constitutionality of the Stolen Valor Act in United States v. Alvarez, No. 11-210.  Prior post, with links to earlier posts, is here.  Today's orders list is here.

Update:  Robert Barnes has this story in the WaPo.  Eugene Volokh has this post at the eponymous conspiracy.
Around the country, and even in the Ninth Circuit, the lethal injection litigation has ended in affirmance of the procedure and resumption of executions in state after state.  So it is nearly inevitable that this will happen in California, probably within the next year.

Given the length of this unnecessary moratorium, a dozen cases have piled up with all usual reviews completed, Howard Mintz reports in the San Jose Mercury-News.  That is almost as many as the total executions from the restoration to date.

Once the injection challenge is resolved, how quickly could these executions be carried out?  Career obstructionist Michael Lawrence is quoted saying he does not see how the system could function.  But the proper functioning of the system, in terms of determining whether these sentences will be executed, has already been completed. 

Lawrence appears to be assuming that there must be a flurry of last-minute litigation for every execution.  Why?  How many of the dirty dozen even claim that they did not commit the offense?  One, as far as I know, and that one has already been thoroughly investigated.  Absent such a claim, attempts at further litigation after a full round of both state and federal review should be summarily dismissed.  And, of course, the government should not be funding the lawyers who file them.

What would be the effect on the public mind of seeing a series of executions over several months in early 2012?  As I told Mintz, it would undercut one argument being made against the death penalty: that it is all futile because we are not carrying out the executions anyway.  Mintz follows that quote with one from Judge Alarcon that it would not solve the problem of the huge death row and long delays.  True, but that wasn't my point.  The answers to that problem are (1) for the Legislature to get off its behind and pass the reforms we have proposed multiple times over the years; and (2) to implement the federal fast track that Congress enacted 15 years ago.

By All Means, Parole Them


The "Incarceration Nation" movement continues to insist we have too many people behind bars.  And, indeed, we have quite a lot  --  about 2.34 million.  What "Incarceraton Nation" won't say so loudly is that imprisonment massively reduces crime, from murder to burglary and everything in between.  The statistics over twenty years are stunning, as I set forth here.  During the age of burgeoning imprisonment (roughly the last 20 years), crime in this country has dropped by between 40 and 50 percent.  That makes it probably the most successful social program of all time.

When criminals are released, they don't disappear.  They do something, and Incarceration Nation is a mite quiet about that too.  The reason is that the recidivism rate is two-thirds.  In other words, most people released from jail don't go straight.  Instead, they go straight back to crime.

Today's news brings a jarring illustration.  It seems that two very ill-tempered women McDonald's customers jumped over the counter and  started a fight with the cashier.  For obvious  reasons, they shouldn't have done that  --  and for one not so obvious reason:  The cashier, a  man, was on parole from a manslaughter conviction, and proceeded to beat the women senseless with a metal pipe.

The Incarceration Nation crowd beats the drum for a "second chance."  Let me suggest that it would be prudent to pause for a moment to ask, a second chance to do what?

Confusing 2254(d) with retroactivity

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At SCOTUSblog, Rory Little has this argument recap of Greene v. Fisher.  Similar to my assessment of the same argument, Little notes that "most of the hostile questioning of [defense counsel] ... came from Justices whom [he] likely hoped would be sympathetic," and that does not bode well for the defense.

However, Little is bothered by more than the likelihood his side will lose the case.  He thinks the Justices do not understand Greene's arguments.  I think that Little is the one who does not understand.  Specifically, I think he fundamentally misunderstands the nature of 28 U.S.C. §2254(d), the landmark limitation on federal-court challenges to state criminal judgments enacted in 1996.

News Scan

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35 Md. Gang Members Indicted: Sarah Brumfield of AP reports on the indictment of 35 members of the notorious Bloods gang in Baltimore.  The Maryland offshoot of the California-based gang was run by prison inmate Andre Roach from his cell.  Among the crimes Roach allegedly orchestrated were drug trafficking, home-invasion robberies, witness intimidation, a jail break, several shootings and a murder.  For over two years investigators have been working on a probe called "Cardinal Sin" that recorded phone calls, developed confidential sources, intercepted letters discussing gang business etc. U.S. Attorney Rod Rosenstein said, "These gangs are a danger not only in themselves, but because they influence others and they create other violence including retaliatory violence." 

DSK and the SoL

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Dominique "Teflon" Strauss-Kahn has escaped another prosecution.  Pierre-Antoine Souchard and Angela Charlton have this story for AP.

This incident in question 8 years ago, as described by Tristane Banon, was attempted rape.  The statute of limitations is 10 years.  "The Paris prosecutor's office said -- without offering details -- that Strauss-Kahn admitted during questioning to actions that qualify for the lesser charge of sexual assault." But that charge has a 3 year statute, which has run.

So they can't charge him with any more than he admitted to, no matter what the victim says?  Apparently they are not going to.

The consolation, I suppose, is that admitting to sexual assault means his political career is over, even in France.

Update:  Now DSK's lawyers deny even the lesser sexual assault.  AP story here.

Second Petit Killer Convicted


As reported in the News Scan, a Connecticut jury has convicted the second killer in the Petit murder case, a man named Joshua Komisarjevsky.  Komisarjevsky and  another man, Steven Hayes, had a good 'ole time on July 22 and 23, 2007, as  they raped  and murdered three members of Dr. William Petit's family, those being his wife and only daughters, 17 year-old Hayley and 11 year-old Micheala.

The jury will deliberate handing down the death penalty, which a separate jury imposed on Hayes.

A couple of paragraphs of the story caught my attention (emphasis added):

A man was convicted Thursday of murdering a woman and her two daughters in a gruesome 2007 home invasion in which family members were tied up, molested, doused in gas and left to die in a fire. He now faces a possible death sentence.

Joshua Komisarjevsky, whose accomplice is already on Connecticut's death row, stood and faced the jury as they declared him guilty of all 17 charges he faced, including capital felony killing, kidnapping and sexual assault. After the verdict was read he sat back in his chair, rocked slightly back and forth and glanced briefly at the jury. He yawned as he was led out of the courtroom.

And then there was this:

Jeremiah Donovan, Komisarjevsky's attorney, said his client admitted to molesting Michaela and assaulting her father, but he never intended to kill anyone.

Hey, look, he only molested her, and he didn't intend to kill anyone when he bound all the victims, doused them with gasoline, and set the house on fire.

I have a feeling the moralizing and chest-thumping by abolitionists is about to go quiet for a while. 

A Tale of Two Riots

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At City Journal, an LAPD officer reflects on "what London can learn from Los Angeles--and vice versa."

Pass the Jobs Bill, or I'll Shoot this Puppy

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OK, that's not exactly what Vice President Biden said today, but it's not that far off either.  What he actually said, in campaigning for the proposed American Jobs  Act, was that Flint, Michigan needs the federal money the Act would provide in order to hire more policemen, and thus depress what has been a rising murder rate.  The story is here.

It's true that Flint has been laying off police officers, and that its murder rate has  gone up.  I'm also willing to assume, since the evidence nationwide supports it, that hiring more police depresses violent (and other) crime.

But the broader, underlying idea  --  that the recession and associated decrease in local revenue and spending has contributed to the murder rate  --  is baloney.  Instead, to the "bafflement" of inter alia the New York Times, the murder rate, and the crime rate generally, has continued to decline, and decline significantly, during the recession.  Kent and I (here and here) have discussed the main reason for this fact, and it's not all that hard to figure out.  Crime has gone down because the imprisonment of the people who commit it has gone up.  This has been true for a generation, in good times and bad.

I am thus pleased to be able to tell our Vice President that, while we might not need the jobs bill, it would be quite helpful if we kept our nerve and our wits and refused to give in to the anguished cries  of "incarceration nation."  

Hate Speech Up North

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From north of the border comes a reminder that freedom of speech is broader in the United States than nearly anywhere else, even our English common-law brethren.  Kirk Makin reports in the Globe and Mail:

In a highly charged case, the Supreme Court [of Canada] interjected repeatedly as it grappled with how to protect minorities from expressions of hate without damaging free speech - a decision that could have far-reaching implications for hate laws across the country.
*                            *                          *
The case revolves around a 43-year-old, anti-gay proselytizer, William Whatcott, who distributed thousands of flyers in Saskatoon harshly criticizing gays and including information about homosexuality in school curricula.

South of the border, this would be an easy case.  Whatcott's intolerant flyers are not threats.  They are further from that line than Barry Black's cross-burning at a rally, which was held to be protected speech in Virginia v. Black.  [Burning a cross as a specifically targeted threat -- on the neighbor's lawn -- is not protected, the Court held in the companion case.]

News Scan

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Florida Lawmaker Proposes Firing Squad Option for Executions: Toluse Olorunnipa of The Miami Herald reports Florida Rep. Brad Drake, a Republican from the town of Eucheeanna, has introduced a bill that would let death row inmates choose between a firing squad or the electric chair. House Bill 325 would give condemned inmates 30 days after the Supreme Court affirms their executions to opt for a firing squad. If the inmate does not choose a firing squad, he would be electrocuted. Drake's bill was drafted in response to recent controversy regarding Florida's new lethal injection process. Drake says he is tired of all the talk about how to properly execute someone, and hopes his bill will start a new conversation about the death penalty. 

Detectives Hope DNA Will Help Identify 8 Unknown Victims of Notorious Serial Killer: Steve Mills and Ryan Haggerty of The Chicago Tribune report a team of investigators and scientists are using advances in DNA technology to compare skeletal remains of 8 unidentified victims of serial killer John Wayne Gacy, who was executed in 1994. Most of Gacy's 33 victims were identified using dental records and X-rays, which was considered state of the art in the 1970s. Seven of the unidentified victims were found in a crawl space beneath Gacy's house, and the eighth was found buried in his yard. The process will be a difficult scientific endeavor, since DNA from skeletal remains this old can be degraded and fragile. The effort began earlier this year as part of a broader review of Cook County's sheriff's department's cold cases.

New Approach to Releasing Prisoners in One California County: Tracey Kaplan of San Jose Mercury News reports Santa Clara County is taking a controversial approach on how to supervise "low risk" felons after they leave prison as the state shifts responsibility for released felons from state parole agents to county probation officers. In order to prove that the Governor's inmate realignment can reduce the "revolving door" of justice, the county plans to use the majority of its $15.1 million in state funding for rehabilitation programs rather than time in jail. For example, instead of jailing parolees with dirty drug tests, the county will try alternatives like cognitive behavioral counseling and residential treatment. Santa Clara County is also sending in teams of law enforcement professionals to conduct pre-release interviews with inmates and offering housing and job training. Critics warn that this type of approach jeopardizes public safety by putting more felons on the streets sooner. Another concern is that while a parolee's most recent offense must be nonviolent to qualify for county supervision, many still have violent criminal histories.

Second Petit Murderer Convicted:  A Connecticut jury has convicted Joshua Komisarjevsky of the 2007 murders of Jennifer Hawke-Petit and the sexual assault and murder of her two teen-aged daughters.  The same jury will decide if he should receive life in prison without the possibility of parole or the death penalty for the gruesome killings.  Komisarjevsky's accomplice, Steven Hayes was convicted and sentenced to death for raping and strangling the mother and participating the murder of the two daughters last year.   Both habitual criminals were in community rehabilitation when they planned and carried out the home invasion murderers.  Komisarievsky admitted knocking the husband and father unconscious with a baseball bat and throwing him in the basement, and molesting the youngest daughter, but blamed Hayes for the murders.  AP writer John Christoffersen has the rest of the story.


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The causes of crime is a very difficult subject to study, so we should always skeptical when a study comes out showing something new.  Methodology should be probed and results confirmed by other studies before we make policy decisions based on any study.  But something unusual has happened with regard to RAND's surprising result that neighborhood crime went up when marijuana dispensaries were closed.  AP reports:

A nonprofit think tank has removed a study from its website that said crime increased near medical marijuana dispensaries in Los Angeles after they were closed.

Warren Robak, a spokesman for Santa Monica-based Rand Corp., says the organization is reviewing the study released last month and has removed it from circulation.

The Los Angeles city attorney's office had said the report's findings were deeply flawed and demanded a retraction.

The study, first reported by the Los Angeles Times, looked at crime reports in the 10 days before and after Los Angeles officials shuttered the pot clinics last summer after a new ordinance went into effect. The analysis showed crime increased about 60 percent within three blocks of a closed dispensary compared with those that remained open.

RAND is a far better source of studies on crime than agenda-driven outfits such as the Sentencing Project.  If there are problems with the study, it is to their credit that they have withdrawn it for revision.  Upon review, it may very well come to the same conclusion.  But this incident sounds one more note of caution about pouncing on what "studies show."

Three Certainties


We all know the two certainties:  1. Death   2. Taxes.

But the list needs expanding:  1. Death  2. Taxes   3. Iran will get away with it.

The Administration is mumbling that "all options are on the table," but I doubt there's  a single person out there dull enough to believe it.

Even Code Pink isn't denying that a foreign government's plotting murder on American soil is an act of war.  At the minimum it's a crime.  Generally it's regarded as good practice to put people who plan violent crimes in the slammer.  Anyone think that's going to happen here?  Anyone think that the Administration will even ask the Iranians to hand over the plotters?  Much less force them to?

Righto.  We all know what the "consequences" of this episode are going to be.  Harken unto the words of Secretary Clinton:

We are actively engaged in a very concerted diplomatic outreach to many capitals, to the U.N. in New York, to not only to explain what happened so we can try to pre-empt any efforts by Iran to be successful in what would be their denial and their efforts to try to deflect responsibility but so that we also enlist more countries in working together against what is becoming a clearer and clearer threat."

Now that will really shake up the mullahs.

Astute reader federalist has noted that it's hard to figure out good options  for dealing with Iran.  Just so.  Maybe this is why we pay our Commander-in-Chief $400,000 a year. 

The Sentencing Guidelines and the Rule of Law


Yesterday, I had the opportunity to testify before the Crime and Terrorism Subcommittee of the House Judiciary Committee.  The subject was  "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker."

The central issue, as I see it, is whether we are going to continue to have luck-of-the-draw sentencing in federal court, or whether we are ready to restore the worthy goals of the Sentencing Reform Act of 1984 as Congress wrote it.  That would mean a return to mandatory, rather than advisory, guidelines.

My written testimony is here, (you have to scroll down a couple of inches to where it starts).  It largely tracks two articles I wrote for the Federal Sentencing Reporter and for Engage magazine, a publication of the Federalist Society.  The five-minute summary I gave orally yesterday follows the break.

More and more people have come to realize that what we are doing now isn't working, and invites random, and sometimes discriminatory, sentencing.  Change of some sort is coming.  In my view, the looming battle will involve whether we restore the law-oriented system we had, or whether the criminal defense bar and its allies in Congress and on the Sentencing Commission will succeed in creating a half-baked system of "presumptive" guidelines.  This will be advertised as more forceful than advisory guidelines but not as "rigid" as the mandatory version.  What it will really be  --  and what it's intended to be  --  is the advisory guidelines pig wearing lipstick. 

What a great gift idea!

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For the true early-bird Christmas shoppers, Jimmy Kimmel Live has this shopping suggestion.  Quantities are limited though, so only the true early birds will catch the worms.

Argument in Strip-Search Case

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Adam Liptak has this story in the NYT on the oral argument in the jail strip search case:

The Supreme Court considered on Wednesday whether the Constitution places limits on strip-searches of people entering jails, and quickly confronted two separate line-drawing problems, both involving the task of balancing dignity against security.
One concerned who may be searched. The other asked how intrusive the search may be.

The various approaches to the two issues proposed by the lawyers in the case seemed to leave the justices unsatisfied and sometimes exasperated.

See also the AP story linked in yesterday's News Scan.

Gallup and Rasmussen Close on DP

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I noted previously that a Rasmussen poll  taken shortly after the Troy Davis execution showed no statistically significant drop in support for the death penalty, finding that 60% approved.  Today, Gallup came out with its survey, showing a nearly identical 61% approval.  That is, however, a small drop from last year's poll, which showed 64% approval.  It is also the smallest number since the Furman case, which for practical purposes temporarily abolished the death penalty in 1972.  (Unlike DPIC, C&C declines to spin either news or numbers.  A drop is a drop).

That said, Gallup  finds that two-thirds of the public believes the death penalty is imposed either the right amount or not often enough, with the latter view considerably outweighing the former.  The specific numbers are:  Not enough  --  40%; about right  --  27%; and too often  --  25%.  And at 61%, the death penalty continues to have the highest approval of any contentious issue in public life.

Amici in Oral Argument at SCOTUS

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The written rule for an amicus curiae appearing in oral argument at the US Supreme Court is that leave of the court is required.  The unwritten rule is that getting that leave depends on who is asking:

US Solicitor General:   Almost always.
States: Usually.
Everybody else: Once in a blue moon.

Notice I said almost always for the SG.  Lyle Denniston at SCOTUSblog has this post on a rare rebuff for the SG in a police liability case, Rehberg v. Paulk, No. 10-788, to be argued November 1.

News Scan

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South Dakota Weighs Execution Change: John Hult from AL Media reports on how the supply shortage of lethal injection drugs has caused South Dakota to consider a one-drug lethal injection protocol.  On September 23, the DEA advised South Dakota, among other states, against using foreign-produced sodium thiopental due to concerns about its importation. As a result, several states switched to the substitute chemical pentobarbital for the three drug protocol. Lundbeck, the Danish company that makes pentobarbital, ceased sales to states that utilize lethal injection in August. Kent Scheidegger noted that most states bought up large supplies of pentobarbital before Lundbeck's decision to restrict sales and aren't in danger of shortages in the near future. South Dakota's shortage makes it the first state to have to delay executions due to this restriction.

Supreme Court Reviews Strip Searches In Jail: The Supreme Court heard arguments Wednesday in Florence v. Board of Chosen Freeholders of Burlington County, involving a challenge to strip searches in jails and whether jailers should required to  meet some new standard before such searches are allowed. The issue has been raised in the case of Albert Florence, who was arrested on a warrant for an unpaid traffic fine and strip-searched in two county jails. The current standard, which is supported by state corrections officials and the Obama administration, allows close searches for anyone entering the general jail population. Florence's Attorney argued that prisoners with minor charges can be asked to disrobe and shower while being watched at a distance, but they should not have to submit to a more thorough search absent suspicion that they are hiding something. Mark Sherman reports for AP.  

1983 Cold Case Heats Up With DNA Evidence:  Oklahoma District Attorney Mike Fields has filed first-degree murder charges against known felon, Lester Blackbear in connection to a 1983 cold case that the former DA dismissed for being too weak. A DNA match has implicated Blackbear in the rape and beating death of Ola Kirk in her Geary home. Coincidentally, the felon was arrested by U.S. Marshalls in Pheonix, Arizona, after he failed to register as a sex offender when he moved.  He was scheduled to be released Wednesday.  He will now remain in jail for his trial. Fields hasn't decided if he will purse life imprisonment or a death sentence. Adrianna Iwasinski reports in Oklahoma Own.

Iran, an Act of War

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C&C has featured numerous entries about whether terrorist attacks on the United States are more aptly answered by our legal system or by, to simplify it quite a bit, drones.

Yesterday, a very important player in the legal system, Eric Holder, announced the discovery of a plot by operatives of the government of Iran to commit a murder (the assassination of the Saudi Arabian ambassador) on American soil.  He said that "Iran will be held accountable."

That is almost certainly false, since, after all, it's never once been true. Time will tell, and I hope I'm wrong.  There are many things to be said about the Iranian plot, but for now I want only to repeat what my friend John Hinderaker has observed:

The plot evidently was discovered at a very early stage. One wonders: How? Through intercepts of phone conversations or emails? Eric Holder, widely believed to be a dead man walking in Washington as a result of Fast and Furious, was front and center at today's news conference. Holder was a prominent critic of essentially everything the Bush administration did to discover and combat terrorist plots. It would be interesting to know whether the intelligence triumph that Holder celebrated today was yet another example of the wisdom of the Bush administration policies that Obama, Holder and their ilk endlessly demagogued before they found [them] expedient to adopt.

Not that I'm complaining.  Demagoguery or not, I'm happy that there is at least a modicum of seriousness in the Administration's approach to keepiing the country safe, however late and reluctant in coming, and whatever its source.


Federal Criminalization Run Amok

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There is much talk these days about how "overcriminalization" is unnecessarily driving up costs and putting people in prison  --  often federal prison  --  who don't need to be there.

There is something to this, and good people like former Attorney General Ed Messe have expressed their concern.  At the same time, I suspect that some of the "overcriminalization" push reflects heartburn about any criminalization at all.  Isn't the more serious problem criminals, not ciminalization?

For however that may be, the overciminalization side got a boost today when the Chairman of the Senate Judiciary Committee provided what is likely to become Exhibit A:  He wants to make it a federal felony to mislabel products as containing maple syrup.  And no, I am not making this up.

Greene v. Fisher

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The transcript of argument in Greene v. Fisher is here.  The involves a question of timing under AEDPA, 28 U.S.C. §2254(d).  A federal court cannot grant habeas relief on a claim rejected by a state court unless the state court's decision was contrary to or an unreasonable application of Supreme Court precedent.

But Supreme Court precedent as of what date?  The most natural way to read the statute is that the relevant date is the date of the state court decision.  What if the state court decides the case, the Supreme Court changes the law, and the time to petition the Supreme Court for review expires sometime later?

The Teague v. Lane rule on retroactivity is based on the date the conviction became final on direct appeal.  If Teague were the issue, the new rule would apply on federal habeas in a case with the above timeline.  But §2254(d) is not Teague, even though the two rules point to the same result in many cases.

Section 2254(d) is not a rule of retroactivity.  It is not a "standard of review" in the sense of a higher court reviewing the decision of a lower court.  It is, as the Court noted in Harrington v. Richter, a "bar to relitigation."  In the nature of res judicata and collateral estoppel, it is a bar to litigating an issue over again in another court that one has already litigated and lost elsewhere.  It is not an absolute bar; it has exceptions.  The exceptions involve the state court completely messing it up.  The relevant date, therefore, is the date of the state court decision.

Overall, it appears the argument went well for the State.  Defense counsel was pummeled with questions from the Justices who tend to lean to the defense side, and that is not a good sign for him.
The heading above is the topic of a hearing in the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security.  Witnesses include US Sentencing Commission Chair Patti Saris and our own Bill Otis.

Update:  Video of the hearing is now available.  Same link.

News Scan

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Death Warrant Signed for Florida Killer: Brendan Farrington of The Associated Press reports Florida Governor Rick Scott signed the death warrant Monday for Oba Chandler, who is scheduled to be executed November 15. Chandler was convicted in 1994 of murdering a woman and her two daughters 22 years ago. According to authorities Chandler stripped the females from the waist down, bound them with duct tape and rope, and tied concrete blocks to ropes around their necks before throwing them into Tampa Bay. Seven months ago Chandler declined to be interviewed for potential clemency, a standard procedure in death penalty cases. Chandler will receive a lethal injection. His death warrant is the second signed by Governor Scott since he took office in January.

Brown Vetoes Bill to Limit Police Searches of Cell Phones: Bob Egelko of The San Francisco Chronicle reports California Governor Jerry Brown has vetoed a bill by Senator Mark Leno, D-San Francisco, that would have required police to obtain a search warrant before looking through the contents of cell phones that are seized from people they arrest. The bill would have largely overturned a ruling by the state Supreme Court in January that allowed police to examine the cell phones of people they arrest without a warrant. In his veto message, the Governor said "the courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections." Leno called Brown's statement illogical and countered, "the Legislature and the executive branch have got every right to revisit a decision by the court... We make the laws, they interpret." Legislative rules prohibit the bill from being introduced for at least another year.

Some UK Prisons Ditch Uniforms to Build Self Esteem: Lucy Buckland of The Daily Mail (UK) reports inmates in privately run prisons in the UK are being allowed to wear their own clothes to improve their self esteem. The policy was introduced by G4S, a private security firms that runs five prisons in England and Wales. A representative of G4S says prisons are a balance between punishment and rehabilitation, and denied the move was to save money. Critics argue that getting rid of uniforms will lead to new or designer clothes becoming a valuable currency in the prisons, used to pay for contraband like drugs and alcohol. Prisoners will be allowed to wear a uniform they prefer. The Ministry of Justice says the policy will not be introduced into publicly-run prisons.


Orders List

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The US Supreme Court this morning released the orders list from last Friday's conference.  Only two cases were taken.  The criminal case is Blueford v. Arkansas, No. 10-1320, dealing with the double jeopardy implications when a jury deadlocks while considering various degrees of the charged offense.  Petitioner claims the jury announced it had acquitted on the greater offense.  The State's Brief in Opposition says there was no verdict to that effect but only "an informal exchange between [the] foreperson and the trial judge...."

The Court turned down two high-profile cases.  One is Wetzel v. Abu-Jamal, No. 11-49.  The Third Circuit stretched to overturn Abu-Jamal's death sentence, adopting an expansive interpretation of Mills v. Maryland, 486 U. S. 367 (1988).  The Supreme Court itself took a limited view of Mills in Smith v. Spisak, 130 S. Ct. 676 (2010) and sent the Abu-Jamal case back to the Third for reconsideration.  The decision after remand is here.

I think the Third is wrong, and on top of that the Supreme Court has such a dim view of Mills at this point that they might even be persuaded to overrule it altogether.  So why did they turn the case down?  I suspect that after the Troy Davis circus they just don't want another high-profile capital case at this point.

The other high-profile denial is Ryan v. Doody, No. 11-175, the Phoenix Buddhist Temple massacre case.  The case is not capital because Doody was a bit under 18 at the time of this horrific crime, illustrating the problem with sharp age cut-offs. This case was also a do-over, sent back to reconsider the Miranda issue after Florida v. Powell, 130 S. Ct. 1195 (2010).  The decision on remand is here.  Judge Tallman wrote a 38-page dissent.  Justice Alito dissented from denial of certiorari, apparently without an opinion.  So Doody gets a new trial without the confession.  If he walks, that will probably be the worst injustice ever perpetrated under the Miranda rule.

The two juvenile LWOP cases, noted here, have apparently been relisted again.

Where It Leads


The big drive to save money is on.  I'm all for it  --  as long as we're saving it in the right places.  That would be, for example, bloated nanny state entitlements, which we have known for years we can't afford and shouldn't be handing out anyway.  (The lesson my parents taught was that you make your own way and pay your own bills. And yes, I know, I'm an anachronism).

Still, there's broad agreement, I would hope, that we'd cut back on a lot before we'd cut back on the first obligation of government, that being to secure the physical safety of the citizens and prosecute those who jeopardize it.

So much for that, at least in Topeka, Kansas.  Want to belt your wife around?  Have at it.

The cynicism of liberals is just astounding.  For how many decades have they told us we could, and should, spend without limit?  Now they say they've discovered frugality  --  only it's a frugality aimed at programs they never liked to begin with, like the police and prosecutors.  The actual cause of our impending bankruptcy  --  entitlement addiction  --  will go unaddressed while women get beaten up.

This is where it leads.  And this is only a preview. 


A Century of Direct Democracy

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Today is the 100th anniversary of direct democracy in California.  Laurel Rosenhall has this post at the SacBee's political blog.  Among the first initiatives was women's suffrage, nine years before the Nineteenth Amendment.

The initiative process certainly has its drawbacks, but overall the voters' judgment has been better than the Legislature's, and initiatives have done far more good than harm.  This is especially true in the criminal justice area.

"Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time."  -- Winston Churchill

In California we carry that a step further.  Direct democracy is the worst form of democracy except for the other one.

And Yet More Evolving Lawyers


Kent was crass enough to point out that those all ready to condemn George Bush (and Cheney, Rumsfeld, Wolfowitz, Jay Bybee, John Yoo, etc., et al) as war criminals seem to have lost their voices now that President Obama not only captures and intrerrogates al Qaeda operatives, but kills them on the spot.  And no due process!  Even though they're American citizens!!!

Now comes Steve Hayward from Powerline to be even more crass.  Steve starts off with, "Gosh, who knew that John Yoo had gone back to work for the Obama Justice Department's Office of Legal Counsel, writing memos under the nom de plumes "David Barron" and "Martin Lederman." 

It gets nastier from there.

Barack Obama demagogued this issue to a fare-thee-well in his campaign.  But if you're waiting for an apology, you'll be waiting a long time. 

Stinking up Wall Street

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Hannah Roberts of the London Daily Mail has this story.  The full headline is "Stinking up Wall Street: Protesters accused of living in filth as shocking pictures show one demonstrator defecating on a POLICE CAR."

When Lawyers Evolve

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"Where you stand depends on where you sit," the old political saying goes.  Carrie Severino has this post at Bench Memos, with the above title, on lawyers who were once harshly critical of the Bush Administration's assertions of legality on the treatment of our enemies but are now writing internal Administration memos supporting the legality of even more drastic action.  She notes that Glenn Greenwald at Slate is notably less enthusiastic about David Barron and Marty Lederman than he used to be, to put it mildly.

News Scan

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N.C. State Can Continue to Set Execution Standards: Sam Favate of the Wall Street Journal reports the North Carolina Supreme Court has decided to continue to have ten elected officials,  ranging from the lieutenant governor to the attorney general, set the execution protocol for the states death row inmates without meeting publicly. The court stated that the Council of State has the authority to set the execution standards. The inmates argue the the council failed to follow state statutes when members signed off on new execution procedures in February 2007 and failed to hear from those representing the inmates.The Supreme Court stated that "the council wasn't under any obligation to follow the law's procedures for new policies in this case." The revised protocol approved in February 2007 called for a more restrictive role for doctors in executions and details the equipment and drugs to be used in executions and the personnel qualified or required to attend or participate.

Assault Weapons Found in Home of Cartel Leader: Richard Serrano of the LA Times reports 100 assault rifles purchased under ATF's Fast and Furious were transported from Phoenix, AZ to what is believed to be the "hub" for gun traffickers in El Paso, TX. Forty of those high powered assault weapons were found in the home of a top Sinaloa cartel enforcer, Jose Antonio Torres Marrufoin in Ciudad Juarez, Mexico. The cartel was terrozing Mexico with some of the worst violence that city has seen. Marrufoin has been indicted in El Paso, TX, however he cannot be located. "We have seized the most important cache of weapons in the history of Ciudad Juarez," Chihuahua state Gov. Cesar Duarte said at the time. In fall 2009 the Fast and Furious program allowed illegal buyers to walk away with weapons hoping that agents in Phoenix could track the weapons and arrest cartel leaders. 

Weekend Death Penalty Stories

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There are a number of interesting stories on the death penalty in newspapers today.

From Oregon, Alan Gustafson has this story in the Statesman Journal on the execution of "volunteer" Gary Haugen, scheduled for December 6 and the controversy in that state.

From Pennsylvania, Mike Scolforo of AP has this story, headlined "Justices turn spotlight on lawyers' role in Pa.'s undeclared moratorium on the death penalty."  Three cheers for Chief Justice Castille, who is finally focusing on the intentional obstruction campaign of the capital defense bar.

From Ohio, the Newark Advocate has this op-ed by Byran Dahlke, headlined, "Civilized society demands the death penalty."

Take the Kids Inside and Lock the Door

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Plata's legalized jailbreak has begun.

We have been assured, as we always are with these things, that only "nonviolent, nonserious and nonsexual offen[ders] will be released back to the county probation system."  Kent made quick work of that one.  And that's not counting the eye-opening story described in the first paragraph of this  entry.

Time to get a Rottweiler.

They Got the Right Result, Anyway

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The New York Times carries this story about the apparently months-long wrangling inside the Administration about whether the United States could legally kill top al Qaeda  operative Anwar al-Awlaki.  Mr. al-Awlaki was up to his eyeballs in various grisly terror plots against this country, from the underpants bomber to the Ft. Hood massacre.

My thinking is, as usual, more simplistic than the Administration's:  We're at war; he's the enemy.  The idea that the Bill of Rights requires us to seek an arraignment date for a Jihadist mastermind planning more mass murder from his hideout in Yemen is passing strange.

Well, whatever.  This is what OLC does now, it seems.  As I  say, at least they got the right result. 

Rebels Without a Clue

After a long period of forebearance, police finally made arrests in the Sacramento version of the Occupy movement, Cynthia Hubert, Darrell Smith and Cathy Locke report in the SacBee.

Historically, protests have been for some particular goal.  Thoreau refused to pay his taxes to protest the Mexican War.  The famous protest at the Lincoln Memorial where Martin Luther King delivered his "I have a dream" speech was to call for passage of the Civil Rights Act.

What do the Occupy protesters demand?  Their demands are not just diffuse, as has widely been reported, they are contradictory.  Some demand jobs.  Others demand expansion of job-killing regulations.  An earlier version of the story linked above quoted one person demanding both.

I actually agree with a few of the protestors' positions.  (Given the breadth of views, it would be hard not to.)  But why does anyone think extended occupation of public spaces is an effective way to achieve anything?  The most effective protests in our history were the focused and disciplined protests of the civil rights movement of the early 60s.  These protests are the diametric opposite.  People speak of the protests as an expression of anger.  The longer it goes on, the more anger is going to be flowing in the opposite direction.

Thank You

This will mark my final post as a C&C blog author, as I have accepted a position in a local District Attorney's office and will soon enter the trial court world to prosecute misdemeanors.  Before I go, I would like to thank all of our C&C readers - your contributions to the blog have made my experience here even more enjoyable.

But this is not a final farewell.  Kent has offered to let me continue blogging here as a guest blogger, and I look forward to returning in this new role.

Thank you again.


News Scan

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Parole Denied For Women Who Cooked Husband: Gosia Wozniacka of the AP reports that Omaima Nelson, a California woman serving a life sentence for the killing, chopping, and cooking of her husband during Thanksgiving 1991, was denied her second bid for parole Wednesday. Nelson argued that she should be paroled because she was a changed person, claiming to be sorry and claiming that she killed in self-defense. Due to her long criminal history, lack of responsibility, and failure to complete educational and vocational programs, the two-person panel of the state Board of Parole found that Nelson continued to be a danger to society. Parole commissioners said Nelson will not be eligible to seek parole again for 15 years -- the maximum period she can be held without another hearing.

Judge Allows Alleged Murderer's Road-trip
: Gene Johnson of AP reports that in an oral ruling Monday, Washington Judge Micheal Moynihan decided to allow accused murderer Peggy Sue Thomas to take a two-week, five-state road trip so she can attend her half-sister's memorial service, receive dental care, and attend to a few other chores. Thomas is charged with killing a man in 2003.  Despite protests from Island County Prosecutor Greg Banks, Thomas is free on $500,000 bail, and had her arraignment delayed a week to Oct. 31 to accommodate the trip. While Thomas will be on a GPS monitoring device, there will be various non-signal points along the trip that might not immediately report if she flees the country. Banks stated: "That's the first time I've ever seen anything like that. We're sure hoping she comes back."

Alabama Immigration Law Leaves Police Uncertain: After a meeting on Thursday with the Department of Homeland Security, Mobile Police Chief Micheal T. Williams announced there are too many gray areas to begin enforcement of the Alabama's new Immigration law, which continues to be disputed by the U.S. Justice and Department and civil rights groups. The law expressly prohibits profiling but states that an officer can make an arrest when "reasonable suspicion exists that the person is an alien who is unlawfully present in the United States." Police are also prohibited from raiding job sites where illegal immigrants might be working and must consult the federal government when determining if someone is illegal or not. Due to the confusion, John Jenkins, the state's Deputy Director of Homeland Security, told the group of 50 officers from across Mobile and Baldwin counties to consult with their city attorneys for clarification. David Ferrara of the Press-Register reports.  
AP reports another strange story from the Texas-New Mexico borderland:

JLWOP Murder Cases Relisted

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John Elwood's relist watch notes two cases of 14-year-olds sentenced to life without parole for murder:  Miller v. Alabama, 10-9646, and Jackson v. Hobbs, 10-9647.

In Miller, according to the Court of Criminal Appeals:

The evidence presented at trial established that in July 2003, then 14-year-old Evan Miller and his 16-year-old codefendant, Colby Smith, robbed and savagely beat Miller's neighbor, Cole Cannon. After beating Cannon to the point that he could not get off the floor, Miller set Cannon's trailer on fire. Cannon's body was later discovered by firefighters, who were called to extinguish the fire.
The facts of Jackson are not described in the majority opinion.  The dissent paints Jackson as a relatively minor accomplice in a robbery-murder.  A concurring justice laments that fact that the state has no mechanism for considering mitigating circumstances and calls on the General Assembly to create one.

No Witness, No Case

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Q:  What's even better than a suppression motion?

A:  Offing the government's star witness.  That way, you don't have to worry about an appeal.

The feds have indicted a prominent New Jersey defense lawyer, Paul Bergrin, for murdering a government witness in a case he was defending, a fellow named Kemo McCray.  I have no personal knowledge of the case, and the judgment about Bergrin's guilt vel non will, obviously, have to await a jury's consideration.  But New York magazine has a fascinating article about it.  For example, these two paragraphs:

" 'No witness, no case'--that was Paul's motto," said one attorney [who knew him]. "There was this guy with a tattoo of the scales of justice on his back. Below the scales was the quote, 'No witness, no case--Paul Bergrin.' When your customers are all criminals, what's better advertising than a prison tattoo?"

Everyone had his Paul Bergrin ­story--how he started off with one client, then switched to another defendant in the same case, got the second guy to flip against the first, and kept the money from both. There were tales of how Bergrin planned to open a $30 million gambling casino in the Costa Rican cloud forest. And of course, there was the whorehouse deal. Bergrin had taken control of one of Manhattan's ritziest escort services and started bringing a steady stream of cops, lawyers, and even a prison official to the brothel's Worth Street headquarters, where the samples were free.

The trial wll be fascinatng to follow, if the government can persuade anyone to testify.


This MSNBC report indicates that the Obama administration has decided to enforce federal law instead of ignoring it.  Specifically, instead of waffling in the face of California's so-called "Compassionate Use Act," the feds have discovered that the Constitution contains something called the "Supremacy Clause" and now aim to enforce it.  Thus, as the article recounts:

Federal prosecutors have launched a crackdown on pot dispensaries in California, warning the stores that they must shut down in 45 days or face criminal charges and confiscation of their property even if they are operating legally under the state's 15-year-old medical marijuana law.

In an escalation of the ongoing conflict between the U.S. government and the nation's burgeoning medical marijuana industry, California's four U.S. attorneys sent letters Wednesday and Thursday notifying at least 16 pot shops or their landlords that they are violating federal drug laws, even though medical marijuana is legal in California. The attorneys are scheduled to announce their coordinated crackdown at a Friday news conference.

If this is true, congratulations are due Attorney General Holder.  This action will not sit well with a significant portion of the President's base, but Mr. Holder has apparently decided to enforce the law notwithstanding.  Good for him.

As ever, CJLF takes no position in the legalization debate.  But the way to change democratically enacted law, about drugs or anything else, is not to flout it.  It's to use the ample lawful means available to persuade a majority of the electorate that change is warranted.

Clarity is a Virtue

The Neuroskeptic blog has a great post about the controversy surrounding the practice of "Le Packing" that is used with autistic children.  Not only is this practice complete bunk, but it is child abuse.  Alas, there is a great movement afoot to resurrect psychoanalytic thought by wedding it to neuroscience.  Not all psychoanalytic thought is worthless, but a whole lot of it is.  One way to tell whether someone is trying to pull the wool over your eyes is the use of jargon.  Social scientists love to use jargon when they're hiding the fact that they don't really have anything useful to say after all.

Case in point:

During the first months of life, an infant will actively practice his or her archaic reflexes. Of these, the grasping, which will progressively disappear as voluntary prehension emerges around the age of 4-5 months, is of great interest. The facilitation and/or anaclitic relationships between this reflex and adhesive identification are even more interesting to study together because, for instance, in an autistic child, the first model will integrate under the form of pathological adhesive identification.
In such an example, a strategy for thinking about these two phenomena and making them compatible is using a third term (e.g., Peircean logic, in which adhesive identification is an icon of grasping). If we refer to this important principle from this great American semiotician, the icon is part of the logical representation scheme from the most elementary, the icon, to the most evolved, the symbol, passing by the intermediate, the index...

News Scan

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Judge Declines to Hold CIA in Contempt Over Detainee Videos:  Larry Neumeister of the AP reports a federal judge today declined to hold the CIA in contempt for destroying videotapes of September 11 detainee interrogations.  After the ACLU requested the videotapes under the Freedom of Information Act, the CIA acknowledged that it had destroyed 92 videotapes in 2005.  U.S. District Judge Alvin Hellerstein ruled the CIA had since remedied the problem by implementing new procedures and that a contempt order would serve no beneficial purpose.

They "Ain't What They Used to Be":  In a rare appearance before the Senate Judiciary Committee, Supreme Court Justice Antonin Scalia told the members that over-federalization of routine drug cases has led to a surplus of federal judges and diminished the prestige that once characterized the federal judiciary.  "Federal judges ain't what they used to be," Scalia said.  Joined by fellow Justice Stephen Breyer, Scalia also reiterated his opposition to televising oral arguments in the Supreme Court.  The AP has this story.

Military Commissions to Be More Transparent:  New chief military prosecutor Army Brig. Gen. Mark Martins says the next round of military commissions for war crimes will be more transparent and fair to defendants, reports Ben Fox of the AP.  The Obama administration has already adopted changes limiting the use of evidence obtained through coercion or torture, and Martins says other procedural changes are on their way.  Gitmo is set to be the site of two upcoming significant cases; one against Abd al-Nashiri, who is accused of planning the deadly 2000 attack on the USS Cole, and the other against Khalid Sheik Mohammed, the self-proclaimed mastermind of September 11.

Florida Lawmaker Seeks to Repeal Ban on Dwarf Tossing in Bars:  Florida state Representative Ritch Workman this week introduced a bill that would repeal a state law prohibiting activities "involving exploitation endangering the health, safety, and welfare of any person with dwarfism."  The previous law was passed in 1989, but at least one plaintiff has sought to repeal the law for employment reasons.  Mary Bell Wilson of NBC Miami reports.

A New Low Blow Against Justice Thomas

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Kent discussed here the efforts to attack Justice Clarence Thomas.  It's hard to decide whether the attacks are more unprincipled or more hypocritical.*  For its humor value if nothing else, it's worth remembering that they were led by, among others, that renowned authority on ethics, Rep. Anthony "Have you seen my latest crotch shot?" Wiener.

My friend Ed Whelan deconstructs the latest in high-tech lynchings here.  One item Ed points out that made me laugh out loud is that the letter demanding Thomas's prosecution for his supposed ethical wrongdoing is signed by the ranking member of the House Judiciary Committee  --  a gentleman whose wife is currently serving a 37 month sentence in federal prison for taking bribes while serving on the Detroit City Council.

Ed' article is short and worth the read. 

* I decline to launch the shopworn if ubiquitous charge that they're racist.  Although it's  true that a prominent conservative black man is the special target of liberal seething, I don't think it's directly because of race.  I think it's because of the general intolerance a segment of the Left bears towards dissent by anyone from its pious claim to The Only Received Wisdom.

The federal system's deplorable single-juror veto rule for capital sentencing has let another murderer off too easy.  (The crime was noted in yesterday's News Scan.)  Larry Lujan was a drug dealer in San Antonio, Texas.  He required others dealing drugs in his "territory" to pay a "tax."  When 16-year-old Dana Grauke did not, Lujan kidnapped him out of his home and drove him over 500 miles to Anthony, New Mexico (on I-10, just over the state line).  There he sliced Grauke's throat with a meat cleaver, nearly decapitating him.  For more details on the crime, see yesterday's story.

Lujan got off with life yesterday, not because the jury agreed that sentence was appropriate but because the jury could not agree after deliberating "several hours."  Ashley Meeks has this story on the nonverdict in the Las Cruces Sun-News.

The story doesn't say what the vote was, but in some cases a single juror has imposed his view of the correct sentence over the opposition of the other 11 through this asinine rule.

There are two correct ways of handling the unanimity issue.  In California, the jury must be unanimous one way or the other.  If they are truly deadlocked, it is a mistrial, just like on the guilt verdict, and the penalty phase is retried.  In Florida, a less-than-unanimous jury can make a recommendation, and the judge makes the final decision.

Congress really needs to fix this.  Pick the California method or the Florida method, but get rid of the single-juror veto.

Let no good deed go unpunished

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Steve Vladeck has this Martinez v. Ryan argument recap at SCOTUSblog.  Vladek has the same impression I did that counsel for Martinez will not get a rule as broad as he was asking for.  He asks whether the Court might create a narrower rule.

At bottom, there seemed to be virtually no support among the Justices for any general rule supporting the right of defendants to counsel in collateral post-conviction proceedings for all claims that they were unable to raise at trial.*  Whether there might be five votes for a narrower rule requiring effective assistance of post-conviction counsel because of the fortuities of Arizona state law -- which mandates both the appointment of collateral post-conviction counsel and the funneling of ineffective assistance of trial counsel claims into those collateral proceedings -- remains to be seen.
* I think he means "raise on appeal" or "raise on the trial record."

The alternative rule would be a strange one.  It would be perverse to saddle Arizona with litigating in federal court the effectiveness of the lawyers it chose to provide to indigent prisoners.  The state has no obligation to provide counsel for these collateral proceedings.  Faced with the added burden, it could just scrap the state-law right to counsel and make appointment discretionary, as it is for federal prisoners.  (See 18 U.S.C. §3006A(a)(2)(B).)

If the added burden comes from Arizona's rule that it will not consider ineffective assistance claims on direct appeal, the state could easily scrap that rule as well.  The practical reality is that it is almost never possible to actually make a meritorious case of ineffective assistance on the trial record.  Scrapping the rule would just make extra work for the court of appeals judges to say so in every case where it is raised.

SCOTUSblog Forum on Maples

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SCOTUSblog's new forum is operational, with its heavily moderated, use-your-real-name comments.  Today's topic is Maples v. Thomas, but the actual questions range into habeas more generally.

It's good to see another legal blog where one can discuss serious issues without putting up with the juvenile twits who have nothing substantive to add, sling insults and profanity, and call everyone who disagrees with them a Nazi.

News Scan

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Jury Deliberates Death Penalty For Federal Case: Ashley Meeds of Las Cruces Sun-News reports that a New Mexico federal jury is expected to decide this morning whether to give the death sentence to violent gang member, Larry Lujan, 32, who was convicted of the 2005 kidnapping and murder of Dana "Joe" Grauke. Assistant U.S. Attorney Mark A. Saltman states: "Some crimes are so cruel, so heinous, and show such an utter disrespect for human life that they deserve the ultimate punishment." Saltman refered to Lujan's kidnapping of the teen, forcing him to perform oral sex on him, then cutting his throat so deep  with a meat cleaver, it nearly beheaded him, and dumping his body in a canal afterward. The trial took place in federal court because the murderer drove Grauke's body over state lines.

Gang Member Convicted for Killing Deputy: Hudson Sangree of the Sacramento Bee reports on a Yolo County juror's decision to convict gang member Marco Antonio Topete, 32, of first-degree murder with the special circumstances of lying in wait, murder to avoid arrest, murder by a gang member and murder of a peace officer. The prosecution argued the "killing of the Deputy was a premeditated murder intended to let Topete - a violent parolee with two felony strikes against him - get away." Topete faces the death penalty when his sentencing trial begins October 12.

Muslim Lawsuit Sparks Pork Ban in Ohio Prisons: In 2009 Ohio prison officials responded to a lawsuit by Muslim inmates by removing all pork products from prison menus, according to this story by AP writer Andrew Welsh-Huggins.  Ironically, the inmate's lawsuit had nothing to do with pork products, but instead claimed that the state is restraining Muslim inmates' religious freedoms by not providing meals prepared according to Islamic law, known as halal, while at the same time supplying Jewish prisoners with kosher meals. The lawsuit continues, while the Ohio worries a new menu could hurt them financially given the current budget situation. The trial is expected to take place in January. 


Nonserious felonies?

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Don Thompson reports for AP:

Gov. Jerry Brown and others who supported the dramatic shift in California's sentencing law that took effect this week have said it will send only those convicted of nonviolent or non-serious crimes to county jails instead of state prison, a change designed to save the state money and reduce inmate crowding.

Yet a review by The Associated Press of crimes that qualify for local sentences shows at least two dozen offenses shifting to local control that can be considered serious or violent.

Among them: Involuntary manslaughter, vehicular manslaughter while intoxicated, killing or injuring a police officer while resisting arrest, participating in a lynching, possession of weapons of mass destruction, possessing explosives, threatening a witness or juror, and using arson or explosives to terrorize a health facility or church. Assault, battery, statutory rape and sexual exploitation by doctors or psychotherapists are also covered by the prison realignment law and carry sentences that will be served in a county jail instead of state prison.

"These crimes include a variety of offenses that would strike many civilians as far from trivial," Public Policy Institute of California researcher Dean Misczynski wrote in a recent analysis of the new law.

Maples and Martinez Arguments

Transcripts are available for the oral arguments in Maples v. Thomas and Martinez v. Ryan.

In the Maples argument, both attorneys took a lot of flak, and the argument bogged down in the peculiar facts of the case.  There were a lot of "I don't know" type responses.  The reason for the sparse record on these questions is that Maples's claim morphed on its journey to the Supreme Court, so a lot of questions about whether he was "abandoned" by his attorneys did not get answered in the District Court.  Hard to predict how the case will come out.  A remand for more fact-finding is a possibility.  But I expect it will set a relatively narrow precedent.

In Martinez, I think it is more clear that counsel for petitioner will not get the rule he wants.  He argues for a broad extension of the Douglas v. California right to counsel on the first appeal to cover claims on collateral review that could not have been brought earlier.  The corollary is that when counsel is constitutionally required, ineffectiveness of that counsel is cause for a procedural default of a claim, allowing it to be raised in federal habeas.

At page 17, Justice Kennedy asks, "Can I leave this argument with the judgment that you have offered me no limiting principle on how many proceedings there must be ... before there's an end to the argument that previous counsel were inadequate?"  Not a good sign for the defense side.

Earlier, at page 11, Justice Sotomayor asks about "a huge reliance interest that has developed since Finley and its progeny...."  See CJLF Brief at 20.

[Some of Justice Ginsburg's questions, as transcribed, don't make sense.  I suspect she was speaking softly and the stenographer had trouble understanding her.]

I expect the Finley rule, that there is no right to counsel in collateral review, will survive.

In a pre-argument post at SL&P Doug Berman noted, "The Maples case seems likely to generate the most media attention, in large part because it is a capital case.  But I think the Martinez case in the most important and potentially the most consequential of this trio."  The first statement was correct.  I think the second is also.

End of the Long Road for Van Hook?

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The thrice-reversed panel of the U.S. Court of Appeals for the Sixth Circuit has finally given up finding excuses to reverse the death sentence of Ohio murderer Robert Van Hook.  The Supreme Court described the crime in its reversal two years ago:

On February 18, 1985, Van Hook went to a Cincinnati bar that catered to homosexual men, hoping to find someone to rob. He approached David Self, and after the two spent several hours drinking together they left for Self's apartment. There Van Hook "lured Self into a vulnerable position" and attacked him, first strangling him until he was unconscious, then killing him with a kitchen knife and mutilating his body. State v. Van Hook, 39 Ohio St. 3d 256, 256-257, 530 N. E. 2d 883, 884 (1988). Before fleeing with Self's valuables, Van Hook attempted to cover his tracks, stuffing the knife and other items into the body and smearing fingerprints he had left behind. Six weeks later, police found him in Florida, where he confessed.
The Ohio courts finished with this case, affirming the conviction and sentence, 19 years ago.  It has been in the federal courts ever since.  The District Court rejected Van Hook's claims.  The Sixth Circuit panel reversed and was then reversed itself three times, twice by the en banc Sixth Circuit and once by the Supreme Court.  Today the panel finally rejected the remaining claims and upheld the judgment. 

This is why we needed the Antiterrorism and Effective Death Penalty Act of 1996.  If this case had been subject to the act, and if the act had been properly applied, this case could have been resolved in a fraction of the time.  Of course, that second "if" is a big one.  Resistance to AEDPA by federal judges has largely frustrated its goals, but we are making progress.

Jonathan Adler has this post at VC.

News Scan

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New Evidence Contradicts AG Eric Holder's Statements: Sharyl Attkisson of CBS News reports new documents show Attorney General Eric Holder was briefed on the controversial Fast and Furious operation as early as July 2010. This directly contradicts a statement Holder made to Congress in May 2011, when he said he had heard about the operation for the first time just a few weeks prior. Internal Justice Department documents obtained by CBS News show Holder began frequently receiving memos regarding Fast and Furious at least ten months before the May hearing. The documents came from the head of the National Drug Intelligence Center and Assistant Attorney General Lanny Breuer. The Justice Department told CBS News that Holder misunderstood the question from the Congressional committee - he did know about Fast and Furious, just not the details. Ever since an ATF agent blew the whistle on the operation the Justice Department has tried to publicly distance itself, but the new evidence proves high level officials knew about it.

Utah Study Shows Convictions for Child Homicides Similar to Adult Homicides: Aaron Falk of The Salt Lake Tribune reports a new study by doctors at the University of Utah's Department of Pediatrics shows that in Utah suspects of child homicides are now convicted at similar rates as those of adult homicides. Experts attribute the finding to new laws, improved forensics, and a shift in cultural attitudes. The article cites examples of improved forensics in proving a shaken-baby case, and the creation of the state's child abuse homicide law.

Wednesday's Execution for Georgia Inmate Delayed: Retuers reports Georgia death row inmate Marcus Ray Johnson, scheduled for execution tomorrow, has been granted a stay. Doughterty County Superior Court Chief Judge W.E. Lockette delayed the execution and set a February hearing to evaluation Johnson's request for further DNA testing. Johnson was convicted of the 1994 rape and murder of a woman Johnson met at a bar, then mutilated and stabbed 41 times with a small knife before leaving her body lying across the front seat of her car. Johnson admitted to police that he "hit [the victim] hard," but claimed "I didn't kill her intentionally if I did kill her."

Utah Supreme Court Debates Right of Defendant to Decide Evidence: Emiley Morgan of Deseret News (UT) reports the Utah Supreme Court heard argument today about whether a capital defendant has the right to decide against putting on mitigating evidence during the sentencing phase of trial - or whether that decision rests with the defendant's attorney. The issue is presented in the case of Floyd Maestas, who was sentenced to death in 2008 for the stomping death of a 75-year-old woman. Maestas waived his right to present mitigating evidence during the sentencing phase, saying he didn't want any information publicized that could embarrass his family. Maestas's defense attorney argued today that the decision to waive that right is a strategic decision that should have been made by his attorneys.  

Voting "Barriers"

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Karen Sloan reports for NLJ:  "A wave of election laws will make it more difficult for 5 million qualified voters to cast ballots in 2012, according to the Brennan Center for Justice at New York University School of Law."  Well, the assertion that all those voters are qualified is doubtful, and a reduction in turnout isn't necessarily a bad thing.

Two of the most controversial laws are ID requirements (intended to prevent the crime of voting fraud) and felon disenfranchisement, a collateral consequence of committing a crime.

Gallup has a survey out today showing that, over the last three years, and now, more people think the Supreme Court is too liberal than say it's too conservative.  Specifically, while a  plurality of 42% say the Court is "about right," 31% say it leans too far to the left, while only 20% say it leans too far to the right.

One aspect of the poll that caught my eye was the finding about trust and confidence in the judicial branch, which, as the poll's question points out, is headed by the Supreme Court.  The percentage saying they have trust and confidence is 63%  --  vastly better than President Obama or Congress  --  but the lowest figure since 1976.  That year, perhaps coincidentally (and perhaps not), was the year the Court effectively re-instated the death penalty.  Confidence increased in each of the next 23 years, reaching its  peak (80%) in 1999, which was, perhaps also coincidentally, the peak year for executions (98)..

David Ingram has this post, with the above title, at BLT.

She is right, to that extent, of course.  While the elder Justices all appear to be healthy enough, Father Time eventually comes for us all, and the President elected next November could have multiple appointments.  That would have important implications for criminal law.

NLJ and Maples

Some good news and bad news re the Maples case and the National Law Journal's Supreme Court Insider newsletter.

The good news is that NLJ has named Alabama SG John Neiman, who will argue the case tomorrow, as its appellate lawyer of the week.

The bad news is that the article is behind NLJ's very steep paywall, so I can't link to it.

Recognition for Circus Abatement

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About a year ago, the notorious Judge Charlie Baird in Austin, Texas was proceeding with a patently illegal "court of inquiry" on the Willingham matter.  As explained in this post, the proceeding was illegal on at least three grounds.  The most important of these was that the Texas Legislature had enacted legislation specifically to prevent judge-shopping in these matters.  The law required Baird, if he thought a court of inquiry was warranted, to refer the case to the presiding judge for assignment.  Yet Baird and the Innocence Project were charging ahead anyway.  When you are on an anti-death-penalty crusade, you see, compliance with the law is optional, as is honesty.

Baird and the Innocence Project probably expected that no one would oppose them.  The DA no longer had a tangible interest in the case, as the judgment was carried out long ago.  They could present half-truths to their hand-picked favorite judge, who would then pronounce Willingham innocent and wrongly executed despite all the nonforensic evidence confirming guilt.

Well, they were wrong, as also explained in the prior post. 

Now, Janet Jacobs reports in the Corsicana Daily Sun, "Lowell Thompson, Navarro County District Attorney, was honored by his peers at the Texas District and County Attorneys Association conference last week in Corpus Christi with the Lone Star Award for his work on the Willingham case."  Congratulations on a recognition well earned.

Graffiti Hypocrisy

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Heather MacDonald writes in the City Journal:

Well, what do you know--graffiti vandals get spitting mad when someone defaces their work. Too bad they lack the moral intelligence to apply that experience to their mutilation of other people's work.

The 2011 Ig Nobel Prizes

The 2011 Ig Nobel prizes were awarded last Thursday.  Most relevant to this blog was the Peace Prize, awarded to "Arturas Zuokas, the mayor of Vilnius, LITHUANIA, for demonstrating that the problem of illegally parked luxury cars can be solved by running them over with an armored tank."

News Scan

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Dead Man Appeals Conviction: Jennifer Sullivan of The Seattle Times reports convicted murderer Christopher Harrison Devlin is appealing his case from beyond the grave and at the expense of state taxpayers. The 57-year-old truck driver was convicted and sentenced to life in prison for killing a man that was supposed to testify against him regarding an assault charge. A few days after being sentenced Devlin committed suicide in his cell. Now his sister, who is appointed trustee of the estate, is continuing with the appeal and wants the taxpayers to pay for it. The Washington Association of Prosecuting Attorneys wrote, "There is no constitutional right or statutory authority for the use of public funds to underwrite the estate's moot appeal." The state Court of Appeals is considering whether or not a deceased convict can be represented by a third party and if the state will pay for it.

Rape Charges Added for Man Accused of 1957 Murder: Matthew Walberg of the Chicago Tribune reports a Seattle man charged with kidnapping and murdering a 7-year-old girl in 1957 has been indicted for the rape of a teenage girl. Jack McCullough is accused of abducting Maria Ridulph near her home, then dumping her partially-clothed body in a rural Illinois county. McCullough fled the state shortly after Maria's body was discovered and was arrested in connection with that case in June. During the investigation, Illinois investigators learned McCullough allegedly raped a 14-year-old girl. A source familiar with the case said the alleged incidents occurred shortly after Maria was killed.

Connecticut Death Row Appeals Moving Slowly: Dave Collins and Pat Eaton-Robb of the AP have this piece on the current state of Connecticut's capital appeals, noting that of the state's 10 death row inmates, three have been awaiting execution for more than 20 years and two others for at least 12. None of the executions is likely to occur soon, as all the death row appeals have yet to proceed to the federal review stage. Superior Court Judge Carl Schuman issued rare criticism from the bench this summer when he denied the latest appeal of convicted cop killer Richard Reynolds, saying the "lethargic movement of this case is contrary to society's need for finality of convictions." Some believe Connecticut lawmakers will make another push to abolish capital punishment in the state, but have delayed doing so until the conclusion of the second Petit murder trial.

Knox Acquitted: Elizabetta Povoledo has this update to the notorious Amanda Knox case, after an appellate court jury of eight Italians, which included two judges, overturned Knox's homicide conviction after more than 11 hours of deliberation.
The US Supreme Court opened its annual term today.  The only criminal case on the docket is confined to a narrow issue.  The orders list has only a little of interest, but there are two unusual items.

When the Supreme Court has declined to review a case, a petition to rehear that decision is usually a "Hail Mary" pass with near-zero chance of success. Today the Court asked two States to respond to such petitions, though.  The New Hampshire petition has to do with the identification issue presently before the Court in Perry v. New Hampshire.  The Florida petition comes in an exceptionally notorious case, yet it involves an everyday issue of how lab work is done in the modern era.

All murder is heinous, but if there is one kind of single-victim homicide that cries out for the death penalty above all others, it is the predatory kidnap, rape, and murder of a little girl.  Joseph Smith is such a predator.  This is the kind of case that makes some people who generally oppose capital punishment inclined to make an exception, and it tends to make hard-core opponents quiet, preferring a different case to express their opposition.

Want a million more serious crimes each year?  Two thousand more murders?  Five thousand more rapes?  Last week, the New York Times told us how to get them.

On Thursday, the Times published this editorial decrying mandatory minimum sentences and the dramatic increase in the prison population they have helped bring about.  Perhaps the key assertion in urging repeal of these laws was the claim that they "have helped fill prisons without increasing public safety."

That claim is false.  Because of what it is enlisted to help bring about, it is also astoundingly dangerous.

Twenty years ago in 1991, near the dawn of "incarceration nation," there were 14,872,900 serious, non-drug crimes in the United States. Last year there were 10,329,135 -- a crime decrease of about 4,543,760.  The numbers, taken from the Bureau of Justice Statistics, depict  --  contrary to the Times  --  a huge and unprecedented improvement in public safety.

Levitt and Spelman, in a Universtiy of Chicago analysis, concurred in by James Q. Wilson of UCLA, have found that "one-quarter or more" of the decrease in the number of crimes is because more people are being imprisoned and for longer.

One-quarter of 4,543,760 is 1,135,940.  In other words, we have a staggering 1,135,940 fewer serious, non-drug crimes per year now than 20 years ago because of mandatory minimums and other statutes increasing incarceration.

If we go back to the bad old days of yesteryear when we bought phony promises of rehabilitation and were less inclined toward imprisonment, this is what the numbers tell us we can expect each year:  More than 2,400 more murder victims, 5,400 more forcible rape victims, 78,000 aggravated assault victims, and hundreds of thousands more victims of robbery, burglary and auto theft.

The toll is staggering. 

The New York Times and the chorus of others who want to reverse the gains we have made through imprisonment should tell us, and loudly, how much of this blood curdling increase in crime victimization they are willing to accept. 

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