December 2011 Archives

Ideology Ratings

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This report by Jeffrey Jones of Gallup is only marginally on-topic, but ideology and politics are intertwined with criminal justice policy.  The report also implicates the limitations of models and labels.

News Scan

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Fort Dix Conspiracy Convictions Upheld:  UPI reports that the Third Circuit upheld the convictions of five Muslims who had conspired to attack military bases in Pennsylvania, Delaware, and particularly Fort Dix, New Jersey.  The unanimous decision , authored by Circuit Judge Marjorie Rendell, rejected the defendant's claim that evidence gathered during the government's 16-month investigation, with tools authorized by the Patriot Act, was obtained in violation of their constitutional rights. 

Racial Bias in DC Student Suspensions?:  A Washington Post story by Donna St. George suggests that a disparity in the number of black DC area students suspended from school compared to white students, may be the result of racial bias.  The story reports that the disparity in DC and some other school districts across the country has sparked a joint effort by the Justice and Education departments to identify reforms.  Experts say that while a disproportionate number of black students come from impoverished, single parent homes, which can effect disciplinary patterns, this does not fully explain the suspension disparity.  These experts suggest that unconscious bias and an unequal access to better teachers may influence who gets suspended.  While it is was not mentioned in the Post story, it should be noted that most teachers in the DC school district are black.  

The fault, dear Brutus...

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Peter Kuitenbrouwer reports for the National Post (Canada):

Police in Chatham-Kent, Ont., announced Wednesday that, of 1,986 people arrested so far this year, 203 were Aries, whereas just 139 were Sagittarius.
*                              *                            *
Criminologists and astrologists dismissed the list -- released by the police on an otherwise slow day for both crime and news -- as not comprehensive enough to portray any patterns of crime. Then again, so did the police department.
*                              *                            *
Const. Pearce, who produced the data, concedes, "Next year the list could be completely different unless we arrest the same people."
Actually, given what we know about recidivism, the latter possibility is substantial.

News Scan

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Law Enforcement Fatalities Up 13% in 2011: Greg Bluestein of the Associated Press reports 173 law enforcement officers died in the line of duty in the U.S. in 2011, up from 153 the year before. The National Law Enforcement Officers Memorial Fund reported 68 officers were killed by gunfire in 2011, marking the first time in 14 years that firearm fatalities were higher than traffic-related deaths. Craig Floyd, the chairman for the National Law Enforcement Officers Memorial Fund, blames the rise on budget cuts to public safety departments, which he says have put officers at risk. "Our officers are facing a more brazen cold-blooded element and fighting a war on terror, and we're giving them less training and less equipment they need to do their jobs safely," he said. The preliminary 2011 report from the National Law Enforcement Officers Memorial Fund is here.

First Benchmark for California Prison Population Reduction:
Tuesday was the first benchmark date for California to reduce its prison population by approximately 33,000 inmates. As of December 14, the state's 33 prisons were at 169.2 percent of design capacity. Under the prisoner reduction order, California's inmate population must be at no more than 167 percent of design capacity by December 27, 2011. The press release from the California Department of Corrections and Rehabilitation is here. The CDCR has until January 10, 2012 to file the updated population report.

News Laws to Ring in the New Year: Valerie Richardson of The Washington Times reports the National Conference of State Legislatures issued on Monday its annual list of laws set to take effect in 2012. The press release from the NCSL is here
In capital cases, it has been common practice for years to intentionally bog down the system by briefing every conceivable issue, with a few inconceivable ones tossed in for good measure.  This disease seems to be spreading to noncapital cases as well.  Judge Aldisert of USCA3 lets appellate defense counsel have it with both barrels in United States v. Bansal, No. 06-1370, a drug-trafficking case.  (Hat tip, Orin Kerr at VC.)

D'oh, Never Mind

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Christopher Wanjek of Vitals (MSNBC) recalls the top five science journal retractions of 2011.  Two of them are crime-related.

News Scan

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Jessica's Law Applied to Animal Abuser: Cynthia Hubert of The Sacramento Bee reports a Sacramento judge Friday sentenced a man convicted of animal abuse to state prison and order him to register as a sex offender in what may represent the first time that Jessica's Law has been applied to a case involving sexual abuse of an animal. Judge Thadd Blizzard said Robert DeShield's conduct represents "a serious threat to society," and said the crime DeShields committed was "inherently sexual in nature." Shadow, the Chihuahua mix, suffered abuse that includes strangulation and penetration with a foreign object, and sustained severe injuries that required surgery. DeShield's defense lawyer says she will appeal.  

California Could Lose 1,500 Inmate Firefighters: to help clear brush, cut fire lines, and stop infernos from spreading. Fire officials say the prisoners can be as much as half the manpower assigned to large fires. Realignment will keep thousands of low-level offenders out of state prisons and in county jails, where many could be released early due to scarce space. If fully implemented, the reduction would cut the inmate firefighting ranks by nearly 40%. State corrections and fire officials are working on a training program for county inmates, but it would cost $46 per inmate per day. State Senator Doug La Malfa (R-Richvale) questions whether there will even be enough eligible inmates in county jails to volunteer for fire crews. State officials said nonviolent offenders would continue to receive two days off their sentences for each day spent in a fire camp.   

California Ends Towing of Unlicensed Drivers:
Elliot Spagat of the Associated Press reports starting January 1, 2012, police officers in California can no longer impound vehicles from DUI checkpoints when the driver's only offense is driving without a valid driver's license. Thousands of cars are toward each year under these circumstances, which have been increasingly undermined the last few years by activists who look for checkpoints as they are being set up and send blast text messages to warn people to take an alternative route, or wave signs several blocks away. Supporters of the new law say the checkpoints are used to drive out illegal immigrants, who often have to surrender their vehicles to towing companies because they can't afford the fees.

Executions in California Remain in Limbo:
Howard Mintz of the San Jose Mercury News reports on the status of executions in California after a judge ruled the state failed to adequately create a new lethal injection protocol. California nears its sixth year without an execution, as the judge's ruling represents the third of its type in that time. The ruling can be appealed, or the state has to again come up with new execution procedures. Kent
Scheidegger, legal director for the Criminal Justice Legal Foundation, urges Matthew Cate, chief of the California Department of Corrections and Rehabilitation, to adopt the single-drug method used by other states to move executions forward. Scheidegger said state officials can cite "operational needs" to end run the administrative process and avoid further delays. "There is no excuse for holding up justice any longer," he said. CJLF's press release in response to the most recent ruling is here.

What Went Right?: Charles Lane of The Washington Post has this editorial about the plunging crime rate in the United States, a trend he says is as positive as it is unappreciated. Lane says what is most striking about the decline in crime is how little we know about its specific causes.

News Scan

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Judge Rules Arizona Did Not Violate Rights During Executions: Michael Kiefer of The Arizona Republic reports U.S. District Court Judge Neil Wake ruled Wednesday that the Arizona Department of Corrections did not violate prisoners' constitutional rights, even if the DOC varied from its court-approved protocol for lethal injection executions. By ruling in favor of the state, Judge Wake denied an injunction requiring the DOC to conform to its established protocol. "This ruling puts to rest yet another of the specious legal barricades that capital-punishment opponents have thrown up in the past few decades to challenge the death penalty," Arizona Attorney General Tom Horne said. The Federal Public Defender's Office brought the suit on behalf of five death row inmates and one who has already been executed and said it will appeal the ruling.

PA High Court Rules on Burden of Proof of Mental Disability in Death Penalty Cases: Mark Scolforo of the Associated Press reports the Pennsylvania Supreme Court ruled Wednesday in most instances, juries will have to make the decision when a defendant in a death penalty case wants to argue they are mentally disabled and thus ineligible for execution. The burden of proof will be put on defendants under a "preponderance of the evidence standard." The high court said placing the burden on prosecutors gives defendants less incentive to cooperate. The court said jurors should rule on the issue before deciding if aggravating factors outweigh mitigating factors, and jurors will have to unanimously agree that the defendant qualifies to avoid execution. In the ruling, the state Supreme Court upheld the death penalty for Abraham Sanchez Jr., who had challenged the timing and use of the jury in adjudicating his claim of death penalty ineligibility under Atkins v. Virginia. Sanchez's lawyer said he would appeal to the U.S. Supreme Court. The court's decision is here.

1974 Killing of 13-Year-Old Girl Linked to Serial Killer: Greg Bluestein and Jeff Martin of the Associated Press report the 1974 Georgia slaying of 13-year-old Ima Jean Sanders has been linked to Paul John Knowles, a serial killer blamed for murdering at least 18 people. The Georgia Bureau of Investigation said agents were "reasonably confident" that Sanders was killed 37 years ago by Knowles. The break in the case came in January after a Texas investigator realized data from Sanders' murder was not entered into a database that matches unidentified remains with missing persons cases. Sanders' mom, who lives in Texas, submitted DNA, and this week investigators said it matched the skeletal remains found in a wooded area in the central part of Georgia. Investigators also tracked down a 1975 letter located in the state archives written by a former U.S. attorney who summarized Knowles' confessions.  

T.S.A. is "Security Theater": Charles Mann of Vanity Fair has this story about his airport meeting with Bruce Schneier, one of the top security experts in the U.S. and a relentless critic of the Transportation Security Agency. The U.S. has spent more than $1.1 trillion on homeland security since 9/11. According to the article, it's a lot of inconvenience for little benefit at a staggering cost directed against a threat that is quite modest. "Focusing on specific threats like shoe bombs or snow-globe bombs simply induces the bad guys to do something else. You end up spending a lot on the screening and you haven't reduced the total threat," says Schneier. If the T.S.A. focuses on shoes or snow-globe, terrorists will just put their explosives elsewhere. Schneier also talks about how even if airports became fool-proof, it would just divert terrorists to other places like shopping malls. "You spend billions of dollars on the airports and force the terrorists to spend an extra $30 on gas to drive to a hotel or casino and attack it," he says. Mann describes how he created a fake boarding pass by downloading an image of a boarding pass from the Delta website, copied and pasted the letters with Photoshop, and printed it with a laser printer - the T.S.A. agent waved him through without a word.

Federal Judge Halts Key Parts of South Carolina Immigration Law:
Meg Kinnard of the Associated Press reports U.S. District Judge Richard Gergel ruled Thursday to block several provisions of South Carolina's immigration law from taking effect January 1st. Key provisions of the law that were blocked include requiring law enforcement officers to check the immigration status of people they pull over if officers suspect the person is in the county illegally, and sections that make it a state crime to not carry immigration paperwork or for illegal immigrants to transport or house themselves. The state had requested that the law proceed as scheduled and that all court hearings on the case be suspended until the U.S. Supreme Court rules on Arizona's immigration law. A federal appeals court on Thursday also denied requests by Georgia and Alabama to delay action on legal challenges to their state immigration laws pending the U.S. Supreme Court decision.  

News Scan

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EU Restricts Sale of Execution Drugs: Greg Bluestein of the Associated Press reports the European Commission said Tuesday it would strengthen export controls on the sale of sodium thiopental and other drugs that could be used for executions. The move by the EU could force some state officials to consider other alternatives, which is a complicated process sure to lead to legal challenges. Many states, including Ohio and Texas, have already switched to the alternative sedative pentobarbital. It is unknown how the restrictions will impact death penalty states in the U.S., but it is unlikely to choke off supply. Several states have reported enough supply to keep scheduling executions, and it will be difficult for regulators to guarantee that vendors won't still try to sell the drugs to death penalty states.     

Authorities Dismantle "Extensive" Drug Cell in Arizona:
Amanda Lee Myers of the Associated Press reports federal and state authorities in Arizona announced Tuesday they dismantled an "extensive" drug trafficking cell tied to the Sinaloa cartel after a 15-month-long investigation. Authorities arrested some 200 people, and seized more than 1,200 pounds of drugs and $7.8 million in cash. The 43 search warrants also led to the seizure of 44 guns. Authorities said that although the Sinaloa cartel almost immediately regenerates after one of its cells have been taken down, the investigation struck a significant blow.
"Arresting a drug dealer is one thing but if we can actually follow that backwards and take out the head of the snake of this organization, we exact a lot of pain on those cartels and those folks putting their distribution networks in Arizona," Tempe police Commander Kim Hale said. Doug Coleman, acting special agent in charge of the DEA in Arizona, said the Sinaloa cartel is the "biggest and baddest of the drug cartels." "The Sinaloa cartel is a transnational, multimillion industry that has tentacles in every state in the U.S. and throughout the world," he said. Coleman also said he expects further arrests in the case as the investigation continues. 

News Scan

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Death Sentence of Woman Who Killed Her 4 Sons Upheld: Maura Dolan of the Los Angeles Times reports the California Supreme Court Monday upheld the death sentence of Susan Dianne Eubanks on automatic appeal. Eubanks was convicted of murdering her four sons - ages 14, 7, 6, and 4 - in 1997. She shot each boy in the head. The decision is here.

ICE Agents to Replace Arpaio's Staff: The Associated Press reports the Department of Homeland Security said in a letter Monday to U.S. Senator for Arizona Jon Kyl that the agency will use 50 immigration agents to screen jail inmates in Maricopa County after it revoked Sheriff Joe Arpaio's authority to access its systems. The agents will replace county officers who were specially trained and have the authority to perform the task in Arpaio's lockups. DHS Secretary Janet Napolitano revoked that authority last week after the release of the Justice Department's investigative report. "As was done previously, all individuals booked into the Maricopa County jail will be screened to determine if they are removable from the United States," the statement said. Arpaio had 91 officers who had been doing the work. He has until January 4 to decide whether he wants to seek a settlement or allow the federal government to sue. 

Federal Appeals Court Overturns Cop Killer's Death Sentence: Bob Johnson of the Associated Press reports the 11th U.S. Circuit Court of Appeals on Monday overturned the death sentence of Billy Joe Magwood in Alabama for the 1979 shooting death of a county sheriff. The circuit judges said that at the time of the murder, killing a law enforcement officer was not a death penalty offense, and the sentence was retroactively applied to his case. The decision is here. On Monday the Alabama Attorney General's office had not decided if it will appeal the ruling to the U.S. Supreme Court. If the ruling stands, Magwood's sentence will become life in prison without the possibility of parole.

Justice Department Probes Another Law Enforcement Agency: Susan Haigh of the Associated Press reports investigators from the U.S Justice Department said the East Haven, Connecticut police department engaged in a pattern of discrimination against Latino residents. The Justice Department's civil rights division examined traffic stops from 2009 and 2010 and found a "failure to remedy a history of discrimination and a deliberate indifference to the rights of minorities." The Justice Department will reach out to the East Haven police department, town officials, and the community to work on reforms in the coming weeks. The Government can seek relief from federal courts if the police department or town officials do not cooperate.

Technology Helps Probation Dept. Recover Stolen Vehicles: Cathy Locke of The Sacramento Bee reports the Sacramento County Probation Department announced it has recovered 100 stolen vehicles since April 2010, when two department vehicles were equipped with Automated License Plate Reader technology. Cameras mounted on the patrol cars automatically scan and cross-match license plates against a statewide list of stolen vehicles. Officials said more than 3,000 license plates can be analyzed an hour while probation officers are doing routine caseload supervision in the community. The Sacramento area is ranked sixth in the nation as a "hot spot" for stolen cars. The Sacramento County Probation Department is the only probation agency in California using the Automated License Plate Reader system.

Stolen Valor Act Argument

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In his general orders of 1782, General George Washington authorized several military decorations to recognize "unusual gallantry" and other outstanding achievements.  He further provided, "Should any who are not entitled to the honors, have the insolence to assume the badges of them, they shall be severely punished."

On General Washington's 280th birthday, the Supreme Court will hear argument on whether a modern version of the latter provision is constitutional in United States v. Alvarez, No. 11-210.

Our brief for the Legion of Valor and CJLF is here.

News Scan

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Arizona Sheriff Targeted By Justice Department:  An editorial from Investor's Business Daily says Arizona Sheriff Joe Arpaio is being targeted by the Justice Department in a report accusing the sheriff of violating federal law and the Constitution in his department's handling of Hispanics. Assistant Attorney General Thomas E. Perez, head of the department's Civil Rights Division, said a three-year civil investigation found that the sheriff and his deputies engaged in unconstitutional conduct and violations of federal law that jeopardized Arpaio's "commitment to fair and effective" law enforcement. The name Thomas Perez may sound familiar, as he was heavily involved in the decision to drop the voter intimidation case against members of the New Black Panther Party. Nine months before the DOJ first informed Apaio of its investigation, Immigration and Customs Enforcement (ICE) conducted its own investigation of Apaio's office and procedures and did not find anything inappropriate or illegal. The story is here.

Violent Crime Decreasing, FBI reports: Nedra Pickler of the Associated Press reports the Federal Bureau of Investigation released its Preliminary Semiannual Uniform Crime Report Monday for January to June, 2011. As a whole, law enforcement agencies throughout the U.S. reported a decrease of 6.4% in the number of violent crimes when compared with figures reported for the same time period in 2010. The number of property crimes from January to June of 2011 decreased 3.7% in the U.S. when compared with data from the same time period in 2010. The preliminary report is here. However, the National Law Enforcement Officers Memorial Fund reported this summer that for the first half of 2011, the number of law enforcement fatalities increased 14% from the same time period in 2010, with a 33% increase in the number of officers killed by gunfire. 40 officers were killed by gunfire in the first half of 2011, the highest number in two decades.

U.S. Supreme Court Schedules 3 Days of Arguments on New Federal Health Care Law:
Jesse J. Holland of the Associated Press reports the U.S. Supreme Court announced Monday that it will hear arguments for three days in March over the Patient Protection and Affordable Care Act, Obama's health care overhaul. Arguments are scheduled for March 26th, 27th, and 28th, with nothing else on the court calendar for that week. The justices will be hearing more than five hours of arguments.

Study Says Brain Scan Isn't Crime Predictor: Maria Cheng of the Associated Press reports the Royal Society, the world's oldest scientific academy, examined how neuroscience is being used in some court cases, and says criminal behavior can't be blamed on how someone's brain is wired, at least not yet. "Having a psychotic brain is not a general defense against a criminal charge, said Nicholas Mackintosh, emeritus professor of experimental psychology at the University of Cambridge, and who led the group that produced the report. "There's no such thing as a gene for violence," he said. The Royal Society concluded it's too soon for the law to be swayed by scientists' understanding of the brain. The scientists said that while some criminals like psychopaths have unique brain structures, these differences are not enough to release them from being legally responsible for their crimes. The report is here.

Newt and Judges

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Newt Gingrich has been raising a lot of hackles lately with his statements about judges and the separation of powers.  In typical Gingrich fashion, he begins with a genuine problem, throws in some real history, and then proceeds to run off the rails.

Joe Palazzolo at WSJ Law Blog has this post, with some excerpts from the last Republican debate.

The basic complaint about "activist judges" is quite valid.  Federal judges generally, and the Supreme Court in particular, have often misused the power of judicial review to strike down statutes they disagree with as a matter of policy, even though neither the text nor the history of the Constitution justifies the decision.  For example, the notion that the Constitution forbids the people of the states from deciding, on a uniform statewide basis, what factors will be considered mitigating in capital cases is utterly unjustifiable as a matter of constitutional law, whatever one thinks of the policy.

It is true that the elected branches are often too deferential to the judiciary.  It is true that Jefferson, Jackson, Lincoln, and FDR had major disputes with the Supreme Court.  Within constitutional limits, the President and Congress should give more attention to reining in overreaching courts.

Booze, Teens, and Crime

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The second thing we should do is kill all the headline writers.

Here we go again.  Christine Hsu has this story in Medical Daily.

While alcohol has frequently been linked to criminal activity among adults, a new study finds that there is a strong association between childhood drinking and criminal activity.

Researchers at the University of Miami found that the relationship between drinking and criminal activity is not just limited to perpetrating a crime, but also to criminal victimization, for both males and females.
Note that the article is careful to say "association" and "relationship," not that the booze necessarily caused the increase, which a correlational study cannot tell us.  Headlines are generally not written by the reporters who write the stories, and this important distinction was completely missed by the headline writer.  "Underage Drinking Boosts Criminal Activity: Researchers."

Whoever wrote the headline should have to stay after school and write 100 times on the blackboard:

Correlation does not prove causation.
Correlation does not prove causation.
Correlation does not prove causation.
Correlation does not prove causation.
Correlation does not prove causation.

News Scan

Judge Issues Tentative Ruling on California's New Execution Protocol: Paul Elias of the Associated Press reports Marin County Superior Judge Faye D'Opal ruled Thursday that California prison officials failed to properly adopt the state's new lethal injection execution procedures. D'Opal tentatively ruled the California Department of Corrections and Rehabilitation failed to comply with the Administration Procedures Act on numerous grounds. Attorneys for the CDCR will have the chance to argue before the judge at a hearing Friday, when she will decide whether to finalize her decision. Prison officials drafted these new regulations in response to a federal lawsuit filed by condemned inmate Michael Morales in 2006 that said California's lethal injection procedure amounted to cruel and unusual punishment. Last year condemned inmate Mitchell Sims filed a lawsuit challenging the new regulations, on which D'Opal ruled yesterday are not adequate. If the ruling stands, prison officials can appeal the decision, or will have to again revise their lethal injection procedures and submit them for public comment. D'Opal's tentative ruling is here, pages 4-12.

States Seek to Delay Action on Immigration Laws: Kate Brumback of the Associated Press reports the U.S. Supreme Court's decision to rule on Arizona's controversial immigration law has caused other states to call for delayed legal action on their immigration laws pending the high court's decision. On Thursday Alabama and Georgia asked to delay court hearings set for early next year before the 11 U.S. Circuit Court of Appeals. South Carolina Attorney General Alan Wilson requested that the state's law go in to effect as scheduled on January 1, after opponents asked a federal judge to delay the law until challenges by the federal government are resolved. Utah's AG's office said it does not plan to seek a delay. Indiana Attorney General Greg Zoeller said he is still considering whether or not to seek a stay in the state's case. "It's a welcomed development that the U.S. Supreme Court has agreed to hear the Arizona case to provide the only real guidance coming out of Washington on the issue of immigration," Zoeller said.

Ohio Sets Two Execution Dates: The Associated Press reports the Ohio Supreme Court has set execution dates for Ronald Phillips and Dennis McGuire. Phillips is set to be put to death November 14, 2013 for murdering his girlfriend's 3-year-old daughter. McGuire is scheduled to be executed on January 16, 2014 for raping and stabbing to death a pregnant woman. 

The Stolen Valor Act

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Last week, we filed on behalf of the Legion of Valor of the United States and the Criminal Justice Legal Foundation an amicus brief in the Stolen Valor Act case before the Supreme Court, United States v. Alvarez, No. 11-210.  There are six other amicus briefs on our side as well, all available at the ABA's case page.

Our brief begins with an argument that the Act should be understood as prohibiting only intentional lies about military medals.  That position is in keeping with our view on the importance of a mens rea element in criminal statutes, and it also strengthens the statute against constitutional attack.

In the second part, we discuss the harm done by the fakers.  This part is relatively short to avoid excessive overlap with other briefs in the case.  We also include a short discussion of viewpoint neutrality, distinguishing R.A.V. v. St. Paul.

In Part III, we take head-on the argument that the "crush video" case, United States v. Stevens, subjects all speech to strict scrutiny, even bald-faced lies, unless it can be shoehorned into one of the specific historical categories listed in that decision.  This may turn out to be the crux of the case.

The last part is addressed to Chief Judge Kozinski's colorful opinion about how horrible it would be if the government banned every sort of personal, trivial lie.  Of course it would, but the problem there is not one of excessive intrusion on speech but of excessive intrusion into private matters, whether they be speech or conduct.  If some sort of government interest requirement is necessary for a statute banning an outright lie, okay.  It doesn't matter for this case what the threshold is, because this statute would pass any test that might be used.  The panel majority in this case conceded that the statute serves a compelling government interest, the highest standard, and another panel of the Ninth Circuit so held in a later case upholding another subdivision of the same statute.

Eleven Score Years Ago

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The First Congress, fulfilling an agreement made to secure ratification, proposed twelve amendments to the Constitution on September 25, 1789.  (See here and here.)  Ten of them (originally numbered III to XII) were ratified 220 years ago today.  These ten are known as the Bill of Rights.

The Bill of Rights was not, of course, intended to be a "detailed code of criminal procedure," as Judge Friendly noted the Supreme Court had made it by 1970.  There is nothing in it about letting the murderer go free because the constable blunders.  It most certainly does not forbid a police officer to ask an arrestee if he wants to talk about a crime merely because he has previously asked for a lawyer for an unrelated crime.

So today let us raise a glass to the real Bill of Rights and renew our resolve to scrape the barnacles from the hull.

Death Sentencing Rates, 2011

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The Death Penalty Information Center is out with its usual annual report on the death report.  As is standard for DPIC, it contains some useful information along with heaping doses of spin and with any facts that might point in a direction contrary to their agenda omitted. 

Last year at this time, I noted:

The number of death sentences imposed in the U.S. has been dropping for the last 11 years.  Those interested in spinning can claim a single cause consistent with their viewpoint, e.g., (1) the American people are turning away from the death penalty; or (2) sentences are down because murder is down because the death penalty is working.  Reality is a bit messier, as it usually is.
That remains true.  As noted in last year's post, the drop in the murder rate accounts for a substantial portion of the long-term drop in executions.  That effect predominated in the early years of the decline, while other factors, more difficult to determine, have predominated in more recent years.

News Scan

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Blago Seeks Drug Rehab: Nomaan Merchant of the Associated Press reports Judge James Zagel on Tuesday agreed to recommend Rod Blagojevich be placed in a drug abuse program when he begins his prison sentence, at his attorney's request. No details were given about why Blagojevich would be eligible. The request could be a legal move - prisoners in the federal residential drug abuse program usually live separately from other inmates, work fewer hours, and are eligible for up to a year in reduced prison time. Federal prison officials have the final say on approving an inmate for the program. Zagel also agreed to recommend Blagojevich for the low-security Englewood prison in Littleton, Colorado.

New York Revisits Time Limits on Victim Lawsuits: Michael Virtanen of the Associated Press reports in response to the recent sex-abuse scandals in college sports programs, New York state lawmakers are revisiting lifting time limits on victim lawsuits. Assemblywoman Margaret Markey (D) is the chief sponsor of a bill that would extend the time limit for civil suits and some additional felony prosecutions to five years after the victim turns 23, and includes a one-year window for victims to file previously time-barred claims. On Wednesday Governor Andrew Cuomo said he plans to introduce legislation that would require high school and college coaches to report possible child sex abuse to police. The governor's office says college employees currently are not required to report suspected child abuse to authorities, and public school coaches are currently not mandatory reporters like teachers are. The chairman of the Senate Codes Committee, Stephen Saland (R), says the committee is developing a package of bills addressing required reporting of abuse and expanding the statue of limitations on the criminal side that he hopes to introduce in the next few weeks.

Revolving Door for Medical Parolee:  The Associated Press reports Peter Post is back on medical parole after committing lewd acts days after his initial release in November. Post was returned to a secure medical facility for exposing himself and committing a sex act in front of female nurses a week after he was awarded medical parole in California and sent to a long-term care facility. Corrections department spokeswoman Terry Thornton said parole officials decided Post still meets the criteria for medical parole. He was sent back to the private facility last week.

Special Task Force Recommends Changes to Missouri's Parole and Probation System: Chris Blank of the Associated Press reports a Missouri House committee examined recommended changes to the state's parole and probation system made by a special task force. The
Missouri Working Group on Sentencing and Corrections says the changes could save the state millions of dollars and reduce the prison population while improving public safety and holding offenders accountable. The group made six policy recommendations. State Supreme Court Judge William Ray Price, who served on the working group, said, "It's not a question about being soft on crime or hard on crime. It's a question of being smart on crime to get the best results for our people at the lowest expense."

...And a Canary Killed My Uncle

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A fairly famous author named Michael Peterson got convicted of killing his wife by belting her over the head, probably with a hammer.

Today, the fellow who has to be the leading candidate for Advocate of the Year got Mr. Peterson a new trial.  He did this in part by arguing that the state had botched the investigation, pointing to the fact that the agent who led the state's investigative team was fired for having mishandled evidence in about three dozen other cases.

The main argument for the defendant, however, was that experts had finally found the much-fabled "real killer."  I won't keep you in suspense any longer.

And no, I am not making this up.


Models Behaving Badly

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"All models are wrong, but some are useful," goes a saying attributed to George Box.  "Models Behaving Badly" is the title of a book by Emanuel Derman, who was originally trained as a physicist but has also worked on Wall Street.  Burton Malkiel, author of "A Random Walk Down Wall Street," has this review in the WSJ.

Derman contrasts mathematical models about human behavior with models about physics.  They are fundamentally different.

In short, beware of physics envy. When we make models involving human beings, Mr. Derman notes, "we are trying to force the ugly stepsister's foot into Cinderella's pretty glass slipper. It doesn't fit without cutting off some of the essential parts." As the collapse of the subprime collateralized debt market in 2008 made clear, it is a terrible mistake to put too much faith in models purporting to value financial instruments.
Models about crime and justice are, of course, models about human behavior.  They therefore fall into the same category as the financial models that Derman cautions us not to place too much faith in.

News Scan

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Sacramento Sheriff to Ask for Jail Expansion Funds: Brad Branan of The Sacramento Bee reports Sacramento County Sheriff Scott Jones said he will ask the Board of Supervisors next month to approve an application to the state for $100 million to expand the Rio Cosumnes Correctional Center. Jones said the county would need the additional space regardless of the shift of state offenders to counties. The county would have to pay $10 million in matching funds and another $10 million in operational costs. Jones said he is working to identify funding for the county match. The expanded jail would add 384 beds, mental health and medical treatment, and other features. Apparently Sacramento isn't the only county applying for state funding to expand jail bed space. The Tulare County Board of Supervisors has authorized Sheriff Bill Wittman to apply for a $60 million state grant to fund construction of a new 200-bed jail that could eventually expand into 350-bed facility. The Kern County Supervisors gave Kern County Sheriff Donny Youngblood the go-ahead to apply for $100 million in state funding to build a new 790-bed facility.

Harris Announces New eCrime Unit: The Associated Press reports California Attorney General Kamala Harris announced Tuesday the creation of the state's new eCrime Unit, which will investigate and prosecute identity theft, child exploitation, piracy, and other crimes involving technology. The unit, which began operating in August, consists of 20 attorneys and investigators. Harris said the unit will work with law enforcement agencies across the state because most cybercrimes cover a wide rang which often creates uncertainty over which jurisdiction should handle the investigation.

North Carolina Governor Vetoes Gutting of Racial Justice Act: Gary D. Robertson of the Associated Press reports North Carolina Governor Beverly Perdue vetoed a bill Wednesday that would have essentially repealed the state's Racial Justice Act, which Perdue signed into law in 2009. Prosecutors who pushed the repeal say the act is in effect halting capital punishment because the court is clogged with new appeals. Nearly all of the 158 inmates on North Carolina's death row, both black and white, have filed papers seeking relief under the Racial Justice Act. State lawmakers have until January 8 to consider an override of Perdue's veto.

ACLU, Holder Cry Foul Over States' Voting Policies: Ed Pilkington of The Guardian (UK) reports the ACLU has brought a federal lawsuit against Wisconsin Governor Scott Walker and other state officials regarding a new state law requiring voters to carry photo ID before they can cast their ballot. The ACLU claims thousands of poor, black, and elderly people, even students and the disabled, could be disenfranchised under the law. One complaint is that poor people may not be able to afford the gas to get to the appropriate office to obtain an ID or driver's license. The article presents the case of 20-year-old Justin Luft, who made two trips to get a driver's license, but was told on both occasions that he could not obtain one because he doesn't have a social security card. Gary Scharrer reports U.S. Attorney General Eric Holder on Tuesday spoke at the Lyndon Baines Johnson Library in Austin, where he criticized Texas' redistricting and voter ID laws. Holder said his department will "argue vigorously" that the proposed map violates Section 5 of the Voting Rights Act. Texas and other southern states with a history of discrimination against minorities are required to get approval before making any changes affecting elections. The new state law that would require voters to show a Texas driver's license or DPS-issued photo ID card before casting a ballot was not approved by the Justice Department. Last week the U.S. Supreme Court put a hold on Texas redistricting maps pending a hearing next month. States that already have photo ID requirements on the statute books are: Alabama, Georgia, Indiana, Kansas, Mississippi, South Carolina, Tennessee and Texas. On the opposite end, the mayor of New Haven, Connecticut John DeStefano plans to ask the state Legislature to allow illegal immigrations who live in New Haven to be able to vote in municipal elections. They would still be unable to vote in state or federal elections. DeStefano says illegal immigrants should be able to vote because they pay taxes indirectly through rent and send their kids to New Haven schools. NBC Connecticut has the story here.

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DNA to Help Police Identify Suspect's Eye Color: New Scientist Magazine reports scientists at Erasmus University Medical Centre in the Netherlands have developed IrisPlex, which can predict from a sample of DNA whether a person has blue or brown eyes with 94 percent accuracy. The UK could use IrisPlex immediately, while the Dutch Ministry of Security and Justice is expected to approve the kit in the coming weeks. According to Manfred Kayser, one of the developers of IrisPlex, it is the first validated tool to help police identify suspects by predicting a visible trait. This could be especially helpful in cases where DNA has been recovered from a crime scene but police can't find a match in a DNA database. However, IrisPlex is not accurate enough to secure convictions in court.  

Blagojevich to Report to Prison March 15: The Associated Press reports U.S. District Judge James Zagel agreed Tuesday to allow ousted Illinois Governor Rod Blagojevich to report to prison March 15. He had previously been ordered to begin serving his 14-year sentence on February 16. Blagojevich's attorneys asked for the extension so he could help his family move into a new home.  

Eleventh Body Found Along New York Beach Area: The Associated Press reports police announced Tuesday that they believe they have discovered the skeletal remains of Shannan Gilbert. Her disappearance last year sparked the investigation that led to the eventual discovery of ten homicide victims near a beach on Long Island. The remains were found about a quarter mile from where authorities found Gilbert's pants, shoes, pocketbook with ID, and other personal items last week. While police now believe a lone serial killer is responsible for the deaths of the ten bodies discovered, Suffolk County Police Commissioner Richard Dormer reiterated Tuesday that police believe Gilbert likely drowned. Five of the ten victims have been identified. Gilbert's mom said, "I have no reaction until I get a positive ID from the medical examiner."

Overcriminalization and Mens Rea

The Wall Street Journal continues its coverage on the problems of overcriminalization and overfederalization.  Gary Fields and John Emshwiller have this article today, focusing on the mens rea problem, the state of mind required before a forbidden act is considered a crime.  They highlight the plight of Lawrence Lewis, who received a criminal conviction for diverting a backed-up sewage system to a drain he believed, mistakenly, led to the city's sewage treatment system.

The mens rea problem is also discussed in CJLF's recent brief in the Stolen Valor Act case.  We urge the Court, among other things, to interpret the statute as applying only to knowing falsehoods, and we quote the classic opinion by Justice Jackson:

"Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.9 As the state codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation." Morissette v. United States, 342 U. S. 246, 251-252 (1952).

Footnote 9 quotes Justice Holmes, "Even a dog distinguishes between being stumbled over and being kicked."

The mens rea element is important for two reasons.  The first, as the article notes, is to avoid punishing and stigmatizing as criminals people such as Mr. Lewis who simply made a mistake.  The second, and also important, is to avoid diluting the moral force of the criminal law.  The stigma that rightly attaches to being a criminal needs to be reserved for people who make a choice to do evil.  If it is not so reserved, it is in danger of losing that force.

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Supreme Court to Hear Arizona Immigration Law: Mark Sherman of the Associated Press reports the U.S. Supreme Court agreed to rule on Arizona's controversial immigration crackdown law. The justices will review a federal appeals court ruling that blocked several provisions of the Arizona law. The Obama Administration challenged the Arizona law, arguing that regulating immigration is the job of the federal government, not states. The state of Arizona says the federal government isn't doing enough to address illegal immigration and border states are suffering. Arizona Governor Jan Brewer said, "This case is not just about Arizona. It's about every state grappling with the costs of illegal immigration." The arguments will most likely take place in late April.

Calling the Question on the Death Penalty in Oregon: The Oregonian editorial board has this piece about Oregon Governor John Kitzhaber's invitation for a debate and then reform regarding the state's death penalty. But what if voters are fine with the law the way it is? In 2002 an effort to put a measure on the state's ballot that would replace the death penalty with life imprisonment was abandoned after a poll suggested it had little chance of success. The editorial board says those who have praised Kitzhaber's actions should consider the implications of an elected official declaring he finds something in the constitution "immoral" and that he simply can't abide it. What if the issue was abortion or gay marriage? Then what would they think about a chief executive overriding a law voters put into the state constitution? The board says that even if Oregonians do decide to abandon the death penalty, it is their law and they are the ones who must make that decision.

The Supreme Court's Monday orders list is here.  No criminal cases were taken for full briefing and argument.  As noted here, there was summary reversal in one often-relisted habeas case, Hardy v. CrossWetzel v. Lambert and Cash v. Maxwell are still missing in action, but I wouldn't be surprised to see summary reversals in those two in January.

In a somewhat crime-related case, the Supreme Court took up the controversial Arizona immigration law in Arizona v. United States, No. 11-182.

It's shaping up to be one of the thinnest terms for criminal law I can remember over the last 25 years.  For the upcoming January argument calendar, there are five days of argument with 10 cases, and zero criminal/habeas cases.

Another summary, unanimous AEDPA reversal

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Once again, the US Supreme Court has summarily and unanimously reversed a federal court of appeals for failure to observe the command of Congress that federal habeas is only to correct clearly wrong state court decisions, not to substitute the federal court's judgment for the state court's on close questions.  The case is Hardy v. Cross, No. 11-74.

Does it violate the Confrontation Clause of the Sixth Amendment when a witness testifies at a defendant's first trial, with cross-examination, but disappears before the retrial, and the prior testimony is read at the second trial?  Generally not, as long as the prosecution made a good faith effort to locate the witness.  See Ohio v. Roberts, 448 U.S. 56, 75 (1980) (overruled on other grounds in Crawford v. Washington, 541 U.S. 36 (2004).)

Comparing the efforts made in this case with those deemed sufficient in Roberts, it seems quite clear that they were more than sufficient.  The state courts so held.  The Seventh Circuit held that this decision was not only wrong but unreasonable, the AEDPA standard for overturning the state court judgment in this manner.  That decision was itself unreasonable, so clearly so that the high court did not even need to take merits briefing and hear argument.

Q: How Do You Lose $1.2 Billion?


A:  You don't.  You steal it.  A billion-plus bucks just doesn't get up and walk out of the room.

Former Governor and Senator Jon Corzine of New Jersey is distinguished in many ways.  He's a close pal and political ally of President Obama.  He's the fellow who signed the death penalty repealer in his state, holding forth with one of the most sanctimonious declarations that can be written in English (I'm not sure about French).  He made a  huge fortune as an investment banker before he entered politics.

More recently, he's the tall, bearded guy in the $4000 suit you saw on TV telling a House committee that, as head of the now-bellyup MF Global, he seems to have presided over the "disappearance" of over a billion dollars of depositor funds.  One source of the problem might have been MF Global's fatuous investments in  --  get this  --  Euopean debt.  But that's not Mr. Corzine's main problem.

As the New York Times reports:

Making bad bets on European sovereign debt -- like making bad bets on United States mortgage-backed securities -- isn't a crime, but improperly transferring segregated customer assets is a potential criminal violation of the securities laws and a relatively straightforward one at that. (The United States attorney's office in Manhattan is in the early stages of investigating the removal of customer assets from MF Global.)

I spoke this week to several people involved in the MF Global investigation. No one has reached any firm conclusions about how the assets were transferred, but possible innocent explanations have dwindled to almost none. And James B. Kobak Jr., a lawyer for the MF Global trustee, said in court on Friday that there were "suspicious" trades made from customer accounts. If that's the case, there may have been a deliberate and concerted effort to override MF Global's internal controls to gain access to segregated customer assets, and if that can be proved, those responsible should be prosecuted and, if convicted, go to jail.

I've been out of the US Attorney's Office for a dozen years, but as a, ummmmm, citizen concerned about our country's runaway spending and debt, I'd volunteer to go back in for a dollar a year to work on this one.  No thief makes a more inviting target than one who's spent years advertising what a high-minded  humanist he is. 



Free Speech for Me but not for Thee

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The loony fringe caucus in Congress wants to amend the First Amendment to exclude "for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests" as well as ban any expenditures regarding elections by such entities.  Eugene Volokh at the eponymous blog has this post noting that this would effectively ban newspaper editorials on election issues. This blog, being funded by a nonprofit, could apparently still opine.

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Georgia DA Seeks Death Penalty for Murderer of Law School Student: Amy Leigh Womack and Joe Kovac Jr. report in the Macon Telegraph that Bibb County (GA) District Attorney Greg Winters announced his intention to seek the death penalty for Mercer University law graduate Steven McDaniel, 26, if he is convicted for the June dismemberment killing of his classmate, 27-year-old Lauren Giddings. Her dismembered torso was found wrapped in plastic bags and stuffed in a trash can beside her apartment in downtown Macon. McDaniel was her next-door neighbor. Billy Giddings, Lauren's father, wonders if the prospect of the death penalty will put pressure on McDaniel to cooperate with authorities and provide information about where the rest of Lauren's remains are. 

World's First Clinic for Stalkers Opens in London: The Press Association (UK) reports the world's first clinic aimed at treating stalkers opened in London Thursday. "If we can treat stalkers, then we can save lives," said Dr. Frank Farnham, a consultant psychiatrist and one of the founders of the clinic. Dr. Farnham said the service will initially deal with referrals from courts for the assessment of stalkers, and if further treatment is needed, an 18-month course would be provided as a less expensive and more effective option for courts than a prison sentence for stalking-related offenses. 

CDCR to Convert Women's Prison to House Low-Level Male Inmates: The California Department of Corrections and Rehabilitation announced today its decision to convert the Valley State Prison for Women (VSPW) in Chowchilla to a facility that will house low- to medium-security adult male inmates. The CDCR says the conversion will help to reduce inmate overcrowding among the adult male population and avoid staff layoffs at the institution. The conversion is expected to be completed by July 2013.

Connecticut Man Given Death Penalty for Deadly Home Invasion: John Christoffersen of the Associated Press reports after five days of deliberations, a jury condemned Joshua Komisarjevsky to death Friday for killing a woman and her two daughters in their home. Komisarjevsky will join his accomplice Steven Hayes on Connecticut's death row. Komisarjevsky and Hayes were both on parole at the time of the murders. The 2007 attack has drawn comparisons to the crime described in "In Cold Blood," and sparked tougher state laws for repeat offenders and home invasion crimes. 

Don't Cry for Julian Assange

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This op-ed in today's WSJ, with the above title, is one of those articles that is more important for who says it than for any originality in what is said.

Floyd Abrams is widely regarded as a First Amendment hero among folks who favor a broad interpretation of that enactment.  So does he think Julian Assange is a hero?  Not at all.  He finds "much to deplore."

None of this means that if WikiLeaks or Mr. Assange were brought to trial in this country that they would have no basis for claiming First Amendment protection. They would and should. Whatever the legal result, it would not absolve Mr. Assange of conduct that has put many people at great risk, or indeed, may already have cost some of them their lives.

"When delicate information is at stake, great prudence is demanded so that the information doesn't fall into the wrong hands and so that people are not hurt," the German newspaper Die Welt commented upon WikiLeaks' bulk release of unredacted State Department cables. That such self-evident language seems alien to Julian Assange and to WikiLeaks says it all.

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Appeals Court Orders Reconsideration of Inmate's Death Sentence: The Associated Press reports the 9th U.S. Circuit Court of Appeals Wednesday ordered the reconsideration of California inmate Jesse Gonzales' death sentence. Gonzales was sentenced to death in 1981 for the 1979 shooting death of a Los Angeles County Sheriff's deputy. The divided three-judge panel sends the case back to state court to review whether psychological reports which were not disclosed by prosecutors about a jailhouse informant, who testified during the guilt and penalty phases of Gonzales' trial, could have helped sway the jury against a death sentence. The opinion is here.

Thou Shalt Not Tweet:
Jeannie Nuss of the Associated Press reports the Arkansas Supreme Court on Thursday threw out a death row inmate's murder conviction and sent the case back to a lower court for a new trial. Attorneys for Erickson Dimas-Martinez, who was convicted for the shooting death of 17-year-old boy, appealed his 2010 murder conviction because a juror continued to tweet during the trial after being given specific instruction by the judge not to do so. Dimas-Martinez's lawyers also complained that another juror slept during court proceedings. An assistant attorney general argued before the state Supreme Court that the juror's tweets were about his feelings and not specifics about the trial. The opinion is here.

FBI to Change Definition of "Rape": Rheana Murray of New York Daily News reports the FBI's definition of "rape" will be updated for the first time since 1929. According to the FBI's website, the proposed new definition is "penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." The definition currently in use is: "Carnal knowledge of a female forcibly and against her will." An agency panel voted on Tuesday to change the definition, and the new definition is still awaiting approval by FBI director Robert Mueller.

Cigarette Butt Leads to Arrest in 31-Year-Old Murder Case: Reuters reports DNA from a cigarette butt has led to an arrest in a 31-year-old Maine murder case. In 1980, 20-year-old Rita St. Pierre's partially nude body was found near a road. Her body had been bludgeoned and run over by a vehicle. Jay Mercier was identified as a person of interest, but during the initial investigation police did not find enough evidence to arrest him. A police detective collected one of Mercier's cigarette butts after police had questioned him outside his house last year. The DNA from the cigarette butt matched sperm found found on St. Pierre's body. The DNA match enabled police to obtain a warrant to swab Mercier's mouth for more DNA and other tests. On Monday Mercier, who was arrested in September and denied bail, entered a plea of not guilty to murder in state court in Somerset County, Maine.

Ohio Murderer Heads Back to Death Row 13 Years After Original Sentence: Kim Palmer of Reuters reports an Ohio jury Wednesday recommended the death penalty for convicted murderer Rayshawn Johnson after deliberating for a little over one day. Johnson was convicted and sentenced to death in 1998 for the robbing and beating to death his neighbor with a baseball bat. He appealed his conviction, claiming his attorneys failed to adequately investigate his childhood and violated his right to effective assistance of counsel during the penalty phase of his trial, and was granted a new penalty phase trial three years ago. Johnson will be re-sentenced December 21, at which point a judge can accept or reject the jury's recommendation. 

Holder Says "Fast and Furious" Guns Will be Used in Crimes "For Years to Come":
Fox News reports Attorney General Eric Holder suggested Thursday in testimony on Capitol Hill that weapons lost during the failed "Fast and Furious" operation will continue to show up in crimes in the U.S. and Mexico "for years to come." Holder said such a program "must never happen again," and that, "...we must move forward and recommit ourselves to our shared public safety obligations." Holder used the occasion to incite Congress to support giving the Justice Department - specifically the Bureau of Alcohol, Tobacco, Firearms - broader legals tools to track firearms purchases.

Should a City Pay Employers to Hire Felons?: Joshua Sabatini of The Examiner reports the San Francisco Board of Supervisors Tuesday voted 6-5 against legislation that would offer a $10,000 tax break to companies for each ex-felon they hired. "It is a slap in the face to the tens of thousands of law-abiding San Franciscans that are waking up every day looking for work and can't find work," said Supervisor Mark Farrell. Watch this Fox News clip with a familiar face.
A popular feature on newspaper websites is a "fact checker" page, which purports to check the statements of public figures against the facts.  These features have been controversial, as they are frequently alleged to have a political bias or to get the facts wrong themselves.

The Oregonian and PolitiFact have this page on a statement by Clatsop County, Oregon DA Joshua Marquis that opponents of the death penalty are "in a minority of about 25 percent."  They rate that statement as "half true."  See also this post by Ryan Kost.  How do the assertions of fact justifying this rating stand up to scrutiny?

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No Death Penalty for Mumia:  Kathy Matheson of the Associated Press reports Philadelphia District Attorney Seth Williams announced Wednesday his decision to call off the 30-year battle to put former Black Panther Mumia Abu-Jamal to death for the killing of a police officer. Williams said continuing to seek the death penalty would open the case up to "an unknowable number of years" of appeals. "While Abu-Jamal will no longer be facing the death penalty, he will remain behind bars for the rest of his life, and that is where he belongs," he said. Abu-Jamal was convicted of fatally shooting police officer Daniel Faulkner in December 1981, and was sentenced to death the following year. His conviction was upheld through years of legal appeals, but a federal appeals court ordered a new sentencing hearing after ruling that the jury instructions were potentially misleading. When the U.S. Supreme Court declined to review the case in October, prosecutors were forced to decide if they wanted to pursue the death penalty again with a new sentencing hearing or take a life sentence. Faulkner's widow said the judges who overturned Abu-Jamal's death sentence are "dishonest cowards" who oppose the death penalty. She said she is "heartened that he will be taken from the protective cloister he has been living in all these years and begin living among his own kind -- the thugs and common criminals that infest our prisons."

U.S. Supreme Court Considers Whether Lab Analysts Should Testify at Trial:
Robert Barnes of The Washington Post reports the Supreme Court Tuesday again considered whether the people who conduct forensic tests for law enforcement must be available for questioning at trial. The Supreme Court has long been divided over what rights criminal defendants have to confront those testifying against them. Since 2004, the court has decided a string of cases interpreting the Sixth Amendment's confrontation clause in favor of criminal defendant's. On Tuesday the court considered the case of convicted rapist Sandy Williams of Chicago in Williams v. Illinois. In 2000, police recovered DNA evidence from a woman who was raped and sent it to Cellmark Diagnostic Laboratory. The company later returned the samples along with a male DNA profile it had developed from the evidence. Police had taken a DNA sample from Williams after his arrest for another crime.  After Williams' DNA was found to match the sample taken from the crime scene, the victim picked Williams from a lineup.  At trial the state forensic analyst  testified about how law enforcement made the match, but because the Cellmark report was not introduced as evidence, the judge said that the state did not have to produce an analyst from Cellmark to testify about how it performed the tests.  Williams appealed his conviction claiming that the judge's ruling was unconstitutional.

Blagojevich Sentenced to 14 Years for Corruption: Michael Tarm and Don Babwin of the Associated Press report former Illinois Governor Rod Blagojevich was sentenced to 14 years in prison Wednesday for trying to sell an appointment to the Senate seat vacated by President Barack Obama. Blagojevich is the fourth former Illinois governor to be sentenced to prison in the last four decades. The twice-elected Blagojevich was initially elected in 2002 after running on a platform of cleaning up Illinois politics in the midst of federal investigations that ultimately led to the conviction of his predecessor, George Ryan. The sentence came after two trials, in which jurors at his retrial found him guilty on 17 of 20 counts, and nearly three years to the day of his arrest.

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California Supreme Court Tosses Out Convictions for Two Condemned Inmates: Paul Elias of The Associated Press reports that the California Supreme Court Monday tossed out the murder convictions and death sentences of two gang members. Cleamon "Big Evil" Johnson and Michael "Fat Rat" Allen were convicted in 1997 of murdering two rival gang members. Johnson led the 89 Family Bloods gang in the 1980s and 1990s. Authorities believe the gang was responsible for more than 60 slayings on their turf in South-Central Los Angeles. During deliberations, two jurors told the presiding judge about concerns that a fellow juror had already made up his mind while evidence was still being presented. The judge interviewed the entire jury, and removed the juror from the trial for prejudging the case and relying on evidence not presented during the trial. The replaced juror had reportedly told the other jurors that a witness who testified that he wasn't at work at the time of the killing because a Hispanic co-worker had punched his time card for him was lying. The juror was quoted as saying, "That's a lie. I know Hispanics, they never cheat on time cards, so this witness was at work, end of discussion." A unanimous Supreme Court said that comment did not amount to relying on outside evidence. Santa Clara University law school professor Gerald Uelmen said most reversals keep the conviction in place while only overturning the death sentence, but that the improper dismissal of a juror is a "structural error" that requires automatic reversal. To reinstate the convictions and death penalties for Johnson and Allen, Los Angeles prosecutors will have to seek a new trial. The office said it was reviewing the ruling. The opinion is here.

Serial Killer Denied Parole:
Jean Merl of the Los Angeles Times reports Juan Corona was again denied parole Monday. Corona, now 77, is not eligible for another parole hearing for five years.

South Korea to Introduce Prison Guard Robot: 
The Los Angeles Times reports South Korea will launch its prison guard robots project in a jail in the city of Pohang for a month-long trial starting in March. The 5-foot-tall, four-wheeled prison guard robot will conduct night patrols of the hallways of penal institutions, scanning cells with sensors that can assess suspicious activity, even the mental states of prisoners. The team of "friendly robots" were designed to not just guard prisoners but also to keep an eye on their well-being. One professor associated with the project said, "The robots are not terminators. Their job is not cracking down on violent prisoners. They are helpers." Designers are making last minute changes to make the robot guards look more "humane and friendly."

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California Serial Killer Up For Parole: Don Thompson of The Associated Press reports Juan Corona, who was once the nation's worst known serial killer, is making his seventh bid for parole Monday from Corcoran State Prison. In the 1970's Corona murdered and mutilated the bodies of 25 farm workers and buried them in orchards in Yuba City, near Sacramento. None of the victims relatives are expected to be at the hearing. Sutter County District Attorney Carl Adams said it's a sad testament to Corona's crimes since he targeted people who had few relatives. Corona was sentenced to 25 concurrent life sentences in 1982. He was not eligible for the death penalty because California's capital punishment law had been ruled unconstitutional at the time.

Jury to Decide Fate of Connecticut Murderer: Brian Vitagliano of CNN reports a jury began deliberating Monday whether to sentence Joshua Komisarjevsky to death or to life in prison. Komisarjevsky was convicted in October on 17 charges including three counts of murder, four counts of kidnapping, and charges of burglary, arson, and assault in connection with the deadly home invasion of the Petit family. Steven Hayes, the first defendant to stand trial in this case, was sentenced to death after being convicted of 16 of the 17 charges. Prosecutors argued that Hayes and Komisarjevsky went into the Petit home, beat and tied up Dr. William Petit, raped and strangled his wife, molested one of their daughters, then set the house on fire before attempting to escape. The two daughters were tied to their beds and died of smoke inhalation. Dr. Petit managed to escape. Prosecutor Michael Dearington described the ordeal as hours of "terror that no person should endure." "How many people do you have to kill before the death penalty is appropriate?" he asked.

Virginia Inmate Appeals Dismissal of Sex Change Lawsuit: Dena Potter of The Associated Press reports Ophelia De'Lonta, a transgender Virginia inmate, has appealed the dismissal of her lawsuit asking the state to pay for her to have a sex change operation, and says the decision should be decided by a jury. U.S. District Judge James Turk tossed out De'Lonta's lawsuit in October, saying that the state was adequately treating her gender identity disorder and that De'Lonta was not being denied medical care, only her preferred treatment -- surgery. In 2004, De'Lonta was awarded the right to hormone treatment and psychotherapy, as well as other allowances like being able to wear some female clothing. Although the hormones have caused her to develop breasts and other feminine features, De'Lonta says the therapy is no longer effective and she can't control the urge to mutilate her genitals and continue her attempts to do so unless she gets the $20,000 surgery.

SCOTUS Takes One Case

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The US Supreme Court took up only one case in its orders list today.  The question involves qualified immunity in a civil suit against Secret Service agents.  Plaintiff Steven Howards confronted Vice President Cheney at a Colorado shopping mall back in 2006.  His confrontation went beyond verbal into very mildly physical, and an agent arrested him when he falsely denied contact.  He claims retaliation in violation of the First Amendment.  The District Court granted the agents qualified immunity, and a divided panel of the Tenth Circuit reversed in part.

The three habeas cases we've been watching are relisted yet again for next week.

Hmmm.  Confronting the Veep.  Arrest.  First Amendment implications.  Qualified immunity.  Why do I get the feeling I've seen this movie before?

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Federal Appeals Court Upholds Oklahoma Death Sentence: The Associated Press reports the 10th U.S. Circuit Court of Appeals Thursday upheld the death sentence for Oklahoma convicted murderer George Ochoa. Ochoa was convicted in the murders of Francisco Morales and Maria Yanez in their Oklahoma City home, where their children were present. The decision is here

Arkansas Supreme Court Speeds Up Review of State's Execution Policy:
Jeannie Nuss of The Associated Press reports the Arkansas Supreme Court agreed on Thursday to speed up a lawsuit that challenges the way the state executes its inmates. The Court granted the state's request to expedite the case, which centers both on what drugs are used to execute inmates and who has the authority to set Arkansas' execution policy. The issue came to the state Supreme Court after a lower court judge ruled part of the lethal injection law unconstitutional.

One of Last Two Victims of Houston Serial Killer Identified: Lise Olsen of the Houston Chronicle reports a team of Harris County forensic scientists have identified one of the last unknown victims of Houston serial killer Dean Corll as Roy Eugene Bunton. Bunton was a teenager when he went missing in 1971. Burton's body was recently exhumed as part of an effort paid for by the National Institute of Justice. He was identified through a combination of DNA and circumstantial evidence. Bunton was one of only two still unidentified victims of Corll, who tortured and kidnapped at least 28 Houston teens before he was killed by one of his accomplices in 1973. Both were found buried in a boathouse that belonged to Corll.

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Serial Killer Gets Death Penalty: Amanda Lee Myers of The Associated Press reports an Arizona jury Wednesday returned a verdict of death for Mark Goudeau, 47, for killing nine people in the Phoenix area. The jury decided that death was the appropriate punishment for each of the nine murder counts. Goudeau had also been found guilty of 58 other charges, including kidnapping and rape. He was nicknamed the Baseline Killer, named after Baseline Road in Phoenix where many of the attacks happened. Teresa Washington, the sister of one of Goudeau's victims, 39-year-old Tina Washington, sobbed, "He's not going to die the way my sister died." When one juror was asked by the press what she would say if she could say one thing to Goudeau, she said it would be: "How could you?"

Finnish Triple Murderer Caught After Escaping Prison for Sixth Time: The Associated Press reports Finnish police say they have caught Nikita Fouganthine, a triple murderer who walked out of a low-security prison last week a month before he was scheduled to be released. This was the sixth time Fouganthine has escaped custody. Fouganthine was convicted of murdering a father, mother, and son in Sweden in 1988 and was transferred to his native Finland to serve out his life sentence. Even though he had already escaped several times, in 2009 officials said he had changed his ways and commuted his sentenced. After being released, Fouganthine was returned to prison again for violating his parole. Detective Chief Inspector Tero Murman says Fouganthine will serve the rest of his sentence in a prison with more security.

One of the Largest Marijuana Busts in U.S. History:
Elliot Spagat of The Associated Press reports a marijuana bust Tuesday netted nearly 32 tons of marijuana - nearly 17 tons at a warehouse in the San Diego area, about 11 tons inside a truck in the Los Angeles area, and 4 tons in Mexico. According to the U.S. Drug Enforcement Administration, it ranks as the second-largest marijuana bust in U.S. history if the drugs found on the Mexican side of the tunnel are counted, and the third-largest without including the stash from Mexico. The underground passage linking warehouses on either side of the border was equipped with a hydraulic lift, electric rail carts, carpeted floors, and a wooden staircase. More than 70 cross-border tunnels have been found since October 2008.

30 Tons of Trash Left Behind at Occupy LA Encampment: 
The Los Angeles Times reports sanitation officials said Wednesday they expect to haul away 30 tons of debris left behind from the Occupy LA encampment at City Hall. Workers have already removed 25 tons of left-behind belongings, all of it heading from the City Hall park straight to a landfill. Crews in hazmat suits have raked up everything from nail polish and jars of peanut butter to electric razors and mattresses. Onlooker Ramir Delgado said, "This looks like pure anarchy, in a Hollywood way." Donna Spurgeon, who also stopped to snap some photos, said the aftermath looked like a "little war zone, a little ghetto."

Obama Gets One Right


The Constitution vests in Congress alone the power to declare war, and makes the President alone the commander-in-chief.  If it accords any war-making decisions  to the judicial branch, this fact has been well hidden for two hundred years or so.

Thus I congratulate the administration's attorneys for correctly concluding that (1) American citizens who have taken up arms against the country may be targeted in a time of war, and (2) the targeting decision belongs to the President, not the judiciary.  The Associated Press has the story.

Candidate Obama, speaking with equal measures of gusto and gleeful irresponsibility, demagogued this and similar points to a fare-thee-well.  I am grateful, and relieved, that President Obama has come to his senses.

This does not mean that Obama or any other President unfailingly is going to get these decisions right  --  but neither are the courts, and the President has both superior capabilities, and the Constitutional portfolio, to make the call.

ABAJ Blawg 100

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The ABA Journal is out with its 5th annual list of the best 100 law blogs.  C&C is once again on the list.

You can vote for your favorite blog here through December 30.  (Registration required.)

Methamphetamine and Psychosis

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It is well known in mental health circles that stimulant drugs are linked with bad behavior and mental problems when abused.  Now comes a new study published in the American Journal of Psychiatry linking methamphetamine abuse with schizophrenia.  The study, Methamphetamine Use and Schizophrenia: A Population-Based Cohort Study in California is notable for its sample size: over 42,000 people were examined. 

The study confirmed the suspicions that many researchers had long suspected:  abuse of methamphetamine is associated with severe mental illness.  The study also confirmed a growing literature finding a link between marijuana and psychosis.

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