January 2012 Archives

News Scan

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Georgia to Execute Killer of 3-Year-Old Girl and Mother: The Associated Press reports Nicholas Cody Tate, 31, is scheduled to be executed at 7 p.m. local time in Georgia today. In 2001, Tate and two of his younger brothers purchased ammunition, duct tape, and knives at a sporting goods store before going to the home of Chrissie Williams, where they believed she had a stash of drugs and cash. Tate's brother tried to strangle Williams' 3-year-old daughter, Katelyn, with a telephone cord before using Tate's knife to slit her throat. Tate put a seat cushion over Williams' head, killing her with one shot. The brothers fled to Mississippi, where they kidnapped a 23-year-old woman from a gas station. After releasing her, they kept her car and headed toward Oklahoma before calling their parents and negotiating their surrender to police. Tate was sentenced to death in 2005. His brothers were sentenced to life in prison. In 2009 he said he wanted to waive all future appeals. Update:  The execution has been postponed, Greg Bluestein reports for AP.

CA Supreme Court Rules on Self-Representation for Mentally Disturbed Defendants: Bob Egelko of the San Francisco Chronicle reports the California Supreme Court ruled "gray-area defendants" (those competent to stand trial but who lack the mental health or capacity to represent themselves) can be denied self-representation and be required to accept a lawyer. The ruling upheld the convictions for Andrew D. Johnson, who in June 2007 committed a brutal sexual assault on a bartender, and later that day hit a man at a sandwich shop in the head with a metal chair. A judge withdrew his permission for Johnson to act as his own lawyer, and he was represented by an attorney despite his rejections. The state Supreme Court said "the trial court acted within its discretion in revoking defendant's self-representation status." The opinion is here.

News Scan

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Appeals Court Upholds Stolen Valor Act: Ivan Moreno of the Associated Press reports the 10th U.S. Circuit Court of Appeals ruled Friday that the Stolen Valor Act is constitutional. The ruling reverses a district court's decision that the Stolen Valor Act violates the First Amendment, saying the U.S. government had not presented any compelling reason to restrict that specific type of speech. That case out of Colorado involves Rick Strandlof, who founded a veterans group and said he had received the Purple Heart and Silver Star. He was charged with violating the law in 2009 and his case was later dismissed by a federal judge. The opinion from the 10th U.S. Circuit Court of Appeals is here. The U.S. Supreme Court will take up the issue in February in the case of United States v. Alvarez, after the 9th U.S. Circuit Court of Appeals struck down the law. CJLF's brief with the Legion of Valor for that case is here

NY Bar Association Proposes Removing Some Felonies From Public Records: Russ Buettner of The New York Times reports the New York Bar Association's proposal to create a way to remove some nonviolent felony convictions, under certain conditions, from a person's public record was approved Friday by the association's House of Delegates. The change would allow misdemeanor convictions and a single nonviolent felony conviction under certain circumstances to be sealed with the approval of a judge. An offender would have to wait five years after a misdemeanor conviction or eight years after a felony conviction, without committing any crimes during the waiting period, before the record could be sealed. Sealed records would become public again if an offender committed another crime.

First Trial Under Racial Justice Act: Paul Woolverton of The Fayetteville Observer reports the first hearing in North Carolina under the Racial Justice Act began today for Marcus Reymond Robinson, who was sentenced to death for robbing and killing a 17-year-old boy in 1991. Robinson's Racial Justice Act claim says prosecutors dismissed half of the black jurors and only 15 percent of the non-black jurors. The victim's stepmother said the court system wasn't racist, but Robinson was. He is black, and his victim is white. She said a witness testified at the trial that Robinson said he was going to "kill a whitey."

Factors in Death Sentencing

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In this week's NCJRS Weekly Accessions List, we find a study that appears to be good news, at least from the abstract (emphasis added):

In the Poisson models for the full sample, several criminal-career variables were significantly associated with subsequent death sentences. These variables included an early onset of antisocial behavior as measured by juvenile arrests and prior rape, robbery, and molestation offending. In both models, which focused on separate instant offenses and the violent and property offenses, prior prison sentences predicted subsequent death sentences. These findings suggest that violent, recidivistic offenders who are routinely incarcerated throughout their life course might be sentenced to death for a capital offense. This pattern is consistent with the behavioral continuity that is a cardinal feature of criminal careers research. The number of murdered victims significantly predicted death sentences, which supports prior research that found multiple homicide victims was the strongest predictor of receiving a death sentence. An offender's race had no predictive effect on death sentences in the current sample; however, the coupling of criminal career information and race-dyad effects is an important issue for future research.

The study is Monic P. Behnken, Jonathan W. Caudill, Mark T. Berg, Chad R. Trulson, Matt DeLisi, Marked for Death: An Empirical Criminal Careers Analysis of Death Sentences in a Sample of Convicted Male Homicide Offenders, Journal of Criminal Justice Volume:39 Issue:6 Dated:November/December 2011 Pages:471 to 478.

So murderers are sentenced to death or not depending on how many people they kill and what crimes they have committed before, not depending on their race.  That is exactly how it should be.  That last part has to be hedged, of course, to allow for the possibility of a strained race-based argument in the future.

Junk Science

Christina Hoff Sommers has this op-ed at the Washington Post on a study by the Centers for Disease Control that is completely off the wall.

How many people are raped each year?  That is a difficult question to answer.  The FBI's Uniform Crime Report tells us that 84,767 rapes were reported to law enforcement in 2010, but of course not all rapes are reported.  Not even a majority.  The National Crime Victimization Survey, which calls up a sample of people Gallup-style and asks them, estimates more than twice as many -- 188,380.  But now the CDC claims there are nearly seven times that many rapes and seventy times that many incidents of sexual violence.

How do they figure?  According to Sommers, "It found them by defining sexual violence in impossibly elastic ways and then letting the surveyors, rather than subjects, determine what counted as an assault."  How bad does it get?

Abolitionism Runs Aground


A few days ago, I put up an entry about a previously convicted killer serving LWOP who knifed to death a prison guard.  The next day, the story was picked up by Sentencing Law and Policy, a popular legal blog.  SL&P, although center-left in its orientation, noted that a case of that sort makes it very problematic categorically to oppose the death penalty.

The story generated (so far) 68 comments, which is a very large number by the standards of that blog.  A dozen abolitionists chimed in.  I repeatedly asked them the following question:

"What punishment, short of the death penalty, do you suggest for this case that is (1) consistent with the Eighth Amendment, (2) likely to deter LWOP inmates from murder, and (3) proportionate to the offense?"

I first posed the question five days ago.  Most readers of C&C will not be surprised to learn that, through all 68 comments, not a single abolitionist has answered it. 

The reason is not that hard to figure out.  They don't have an answer. 

So in what condition does that leave abolitionism today?  

News Scan

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Tougher CA Parole-Revoking Rules Struck Down: Bob Egelko of the San Francisco Chronicle reports a federal judge Thursday ruled that all of California's Proposition 9 provisions for parole revocation were invalid. Proposition 9, passed in 2008, did not guarantee parolees the right to present evidence at the hearings, allowed parole agents to testify about incriminating statements by witnesses who were not in court, required the state to provide lawyers only for parolees who appeared unable to defend themselves, and required the parole board to give more consideration to "the safety of victims and the public" than to the costs and burdens of imprisonment when deciding whether to revoke parole. The ruling does not affect other sections of Proposition 9, which requires prisoners serving life terms to wait up to 15 years between parole hearings and expands the rights of crime victims and their families for taking part in parole proceedings. State prison officials are reviewing the ruling.

Medical Care for Aging Inmates Puts Strain on Prisons: The Associated Press reports elderly inmates are an increasing population in U.S. prisons. Officials are grappling with how to balance cost factors and public safety while meeting the expensive needs of aging inmates at a time when state budgets are tight. Prison officials have to address questions like whether to install handicap toilets and grab bars in some cells, how to accommodate wheelchairs, or how to manage inmates with dementia. Some states have turned to medical parole, hospice programs, and assisted living facilities. Inmates' health tends to decline more rapidly than the traditional U.S. population due to long-term substance abuse and poor health maintenance. "You can't just generalize about these prisoners," said Texas State Rep. Jerry Madden, chairman of the House Corrections Committee. "Some are still extremely dangerous, some may not be.... Some you wouldn't want in the same assisted living facility with your parents or grandparents."

Komisarjevsky Formally Sentenced to Death in Connecticut Home Invasion Murders: The Associated Press reports Joshua Komisarjevsky was formally sentenced to death in Connecticut today. Komisarjevsky denied having any part in the three killings he was convicted of. Dr. William Petit, who survived the attack, called the loss of his wife and two daughters "a personal holocaust." Komisarjevsky will join his accomplice on death row. Both men were on parole at the time of the deadly home invasion crime. The 2007 attack sparked tougher state laws for repeat offenders and home invasions, and led to the defeat of a bill to abolish the death penalty in Connecticut.

Executions Stayed in Ohio and Texas: Christine Lee of NBC 5 Dallas-Forth Worth and the Associated Press report Donald Newbury, one of the "Texas 7," has won a stay in his execution scheduled for February 1 for killing a police officer after escaping from a Texas prison in 2000. U.S. Supreme Court Justice Antonin Scalia granted the stay Thursday after Newbury's attorneys argued it should be granted while the U.S. Supreme Court considers a case out of Arizona that questions death row inmates' entitlement to better legal assistance during their initial appeals. In Ohio, the Associated Press reports a federal judge on Wednesday delayed the execution of Michael Webb, who was scheduled to be executed February 22 for the 1990 arson death of his 3-year-old son. U.S. District Judge Gregory Frost's one-page ruling addressed challenges to Ohio's lethal injection procedures and a debate over whether executions should be halted due to minor variations to the policies. Frost delayed the execution of Charles Lorraine earlier this month, saying the state deviated from its execution policies. Ohio has filed a motion with the U.S. Supreme Court to overturn that ruling. Ohio Attorney General Mike DeWine says minor variations in the execution policy are not the same thing as an unconstitutional system, and even Frost has said the rulings are not a commentary on the constitutionality of the state's execution procedures.

RI Senate Panel Endorses Tougher Good-Time Credits Legislation:
David Klepperof the Associated Press reports the Rhode Island Senate Judiciary Committee voted to endorse legislation written by Attorney General Peter Kilmartin that would make offenders of certain crimes ineligible from earning "good-time" credits. The measure was prompted by last year's release of Michael Woodmansee, who shaved 12 years off his 40 year sentence after being convicted of killing a 5-year-old boy and keeping his bones in his bedroom. The boy's family said no one should have to suffer like they did when they learned Woodmansee was being released early due to good behavior. "We're only talking about the worst of the worst here. Child molesters. Murderers. Rapists. They just shouldn't be allowed to get out early," said John Foreman V. The director of the state's Department of Corrections says prison bills will be higher if more prisoners are serving their entire sentence. "Of course it would be additional costs," said Senator Glenford Shibley (R-Coventry). "But some things are worth the cost."  

So Long Governor Perdue

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Six weeks ago, North Carolina Governor Beverly Perdue vetoed a bill that in substance would have repealed the state's Killers' Bonanza Law, a/k/a Racial Justice Act.  The Act, rammed through by a partisan vote when the Democrats held the state legislature, allows murderers sentenced to death to challenge their sentences based on statistical evidence that blacks had been more frequently subject to capital punishment than whites in roughly similar circumstances.  The Act notably did not require the defendant to show that a single actor in his own case  --  prosecutor, judge or jury  --  bore any racial animus whatever.  In other words, the Act enabled a killer retroactively to nullify his death sentence in the name of "racial justice," without ever having to produce one iota of actual evidence that he had been prejudiced by any racial injustice.

One of the numerous absudities of the Act was that it was available to whites, notwithstanding that no one has been able to find any evidence that whites suffered from racial discrimination in North Carolina.  But the absurdity was needed lest the bill be patently unconstitutional.  So now we have the spectacle of North Carolina white killers  --  along with the rest of them  --  parading to court to claim some unrecognizable mutant of "racial discrimination."

Fast forward to today's report in Politico that Gov. Perdue, with approval ratings in the low 30's and lagging far behind her likely Republican opponent, has decided to bail out and not seek re-election.  Good riddance.

Hating on the Ninth Circuit

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Joe Palazzolo has this post at WSJ Law Blog, titled, "Hating on the Ninth Circuit: Funny But a Little Depressing."  The topic is criticism of the Notorious Ninth by presidential candidates, the candidates' proposals, and some reaction from judges.

Some of the statements by candidates are indeed off the wall.  Newt Gingrich's idea about issuing subpoenas to judges to appear before Congress is typical Newt half-baked.  Chief Judge Kozinski says, "They don't need a subpoena. All they need to do is ask."

Two other judges comment without being named.  This comment is all too typical:

Other Ninth Circuit judges told Law Blog they were amused by all the attention the court was getting, but they said the animosity toward judges reflected a deep misunderstanding of how the federal courts operate, which they attributed to a lack of civics education.
Ah, yes.  Once again, it is the ignorant Great Unwashed who fail to understand that the judges of the Ninth Circuit are simply doing their jobs and showing "loyalty to the Constitution" when they hand down all these controversial rulings.  However, given the number of unanimous reversals of the Ninth by the Supreme Court, as we have noted many times on this blog, the lack of understanding may well be at the Ninth itself.

"And what about abolishing the court altogether?" the post asks.  The appeals do, indeed, have to go somewhere.  A "nuclear option" would be to abolish the Ninth, ousting its judges Thomas Jefferson style, and creating one or two new courts with newly appointed judges to take the appeals instead.  That would be an extreme measure, to be avoided except as a last resort. 

Electing presidents who want to fix the Ninth and put some priority on the appointments is a far better method, albeit much slower.  President Bush, disappointingly, did not put a high enough priority on the problem.  A vacancy was left unfilled for years, and some of the appointments that were made were ill-advised.  President Obama, of course, does not want to fix the Ninth.  Let's hope for change -- that the next president does better.

Stay Denied in Cold Case Murder

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The US Supreme Court has denied a stay of execution to Rodrigo Hernandez, convicted of the murder of Susan Verstegen of San Antonio, Texas.  Eva Ruth Moravec has this story for the San Antonio Express-News.

The case had gone cold until Hernandez was DNA-tested after another assault.  His DNA also matched a sample from the 1991 murder of Muriel Stoepker, 77, in Grand Rapids, Michigan.

UpdateLast words -- "This stuff stings, man almighty."  (We now pause to break out the violins.)  The AP reports it as "This stuff stinks, man."

HD Teletestimony, Cheap

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On this video, Walter Mossberg of the WSJ reviews a Skype-based device called telyHD.  With one of these and a big-screen TV on each end, people can have video chats in high definition with a full-room view, rather than the small, low-res, tightly focused video chats that have been typical.  Mossberg's written review is here, but it may be limited to WSJ subscribers.

Mossberg emphasizes home use, but it seems to me this device would be useful for televised testimony in cases where such testimony is permissible.  A witness could testify from another country or a hospital bed in a more realistic way at less cost than with earlier technology.  The device costs $250, and the calls cost nothing.

Personally, I think minor witnesses, at least, should be allowed to testify this way simply to save money and reduce inconvenience to the witness.  If the defendant demands personal testimony by the lab tech under Melendez-Diaz just to gum up the works, there could be a telyHD in the lab building.  Instead of wasting all day at the courthouse, the tech could work until it was time to testify, do his 15 minutes testifying about the lab test that actually involves no real controversy, and then get back to work.  Whether two-way television satisfies the Confrontation Clause remains controversial, of course, but I think the Supreme Court will eventually come around to the conclusion it does (over Justice Scalia's vigorous dissent, if he's still there).  See 535 U.S. 1159-1169.

News Scan

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Execution Today in Texas: Michael Graczyk of the Associated Press reports Rodrigo Hernandez is scheduled to be executed by lethal injection in Texas today for the the abduction, rape, and strangulation of a 38-year-old woman in San Antonio in 1994. Hernandez attacked her at a storage area behind a supermarket and dumped her body in a garbage barrel behind a church. The murder went unsolved for eight years until he had to submit a DNA sample as a requirement for parole in Michigan, where he was serving a sentence for using a bottle to severely beat a man. His DNA sample went into a national database, which linked Hernandez to the Texas murder. Two years ago, DNA evidence also linked him to the 1991 slaying of a 77-year-old homeless woman in Michigan. He was not tried for her death. It would be the first execution in Texas this year.

Juvenile Sex Offenders Must Report for 25 Years: Bob Egelko of the San Francisco Chronicle reports the U.S. Ninth Circuit Court of Appeals Wednesday upheld that juveniles convicted of serious sex crimes in federal court can be required to register as sex offenders for at least 25 years. The Ninth Circuit said a registration law passed by Congress in 2006 that removed sex offenders aged 14 and over from the confidentiality protections of federal juvenile justice law is constitutionally sound. The ruling upheld registration requirements for three Montana juveniles subjected to federal prosecution because they committed forcible sex crimes between ages 14 and 17 on Indian reservations. The opinion is here.

Supreme Court GPS Tracking Case Confounds the Press:
Tom Goldstein, writing for SCOTUSblog, explains how he thinks the press got Monday's U.S. Supreme Court decision regarding GPS tracking in United States v. Jones wrong. He says the Court's only holding is that the installation of a GPS monitoring device is a search, which is a different question from whether it requires a warrant and whether it requires probable cause. The Court did not decide whether the short-term monitoring of a GPS device is a search requiring a warrant. Goldstein says in general, the coverage of Jones is bad and misleading, with none of the pieces correctly characterizing the ruling and its limits. He says the early press coverage focused on the warrant question because the public knows what that means. 

News Scan

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Death Row Inmate Writes Taunting Letter to Public: Diane Turbyfill of the Gaston Gazette reports North Carolina death row inmate Danny Robbie Hembree Jr. wrote a letter to the newspaper, challenging Gaston County to put him to death. Hembree is on death row for suffocating to death a 17-year-old girl in 2009, and has two other murder charges pending. Hembree asked if the public was aware that the chances of his execution taking place in the next 20 years, if ever, are slim. "Is the public aware that I am a gentleman of leisure, watching color TV in the a/c, reading, taking naps at will, eating three well-balanced meals a day?" he asked. A link to the handwritten letter is included in the article.

Only in Utah: Jennifer Dobner of the Associated Press reports the Utah Supreme Court on Tuesday rejected an appeal from death row inmate Von Lester Taylor, who claims the jury selection process in the penalty phase of his trial unfairly favored Mormons. Taylor was sentenced to death for killing 72-year-old Beth Potts and her 49-year-old daughter, Kaye Tiede, during a break-in in 1990. Police said Taylor repeatedly shot the two woman, then shot Tiede's husband before kidnapping two of his daughters and setting the cabin on fire. The two daughters were rescued by law enforcement. Tiede's husband survived, despite being shot point-blank in the head and doused with gasoline when the cabin was set on fire.

Some CA Judges Want More Say in New Sentencing Rules:
Tracey Kaplan of San Jose Mercury News reports some California Superior Court judges are wanting to keep track of certain felons for a longer period of time than the new realignment plan calls for. Under realignment, judges can order defendants to serve their whole sentence behind bars, in which case they will have no supervision upon release, or split the sentence set by law between jail time and mandatory supervision. Some judges are now seeking the option to tack on a period of supervision to offenders sentenced to the full term in county jail.

Oklahoma and New Jersey Introduce Legislation to Reduce Prison Costs: Michael McNutt of The Oklahoman reports Oklahoma House Bill 3052 would reduce the sentences for certain second-time marijuana possession offenders and allow violent offenders to start earning credits toward reducing their prison term after serving 85 percent of their sentence. MaryAnn Spoto of The Star Ledger (NJ) reports a package of bills were introduced by state Senators in New Jersey that would
require the state Parole Board to release inmates when they reach their parole eligibility date unless they had committed a serious infraction while in prison or had not participated in rehabilitation programs, give judges and prosecutors more discretion on who could be tried in a drug court, repeal the ban on convicted felons working in places where alcohol is sold, and prohibit employers from automatically disqualifying convicted felons from jobs.   

Technocorrection Over Incarceration?

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Those instinctively opposed to incarceration as a punishment are increasingly drawn to technocorrections as a sentencing alternative.  Professor Doug Berman is a fan of technocorrections as a way to scale back on imprisonment per se, not to mention its significant costs.  Accordingly, Prof. Berman occasionally publishes a post about the virtues of technocorrections on his always interesting blog, Sentencing Law and Policy.  This is one example.

I have two problems with technocorrections.  One is that it fails to provide the punishing (and therefore deterrent) value of a prison sentence; it was my experience as an AUSA that prison is the only thing defendants really pay attention to.

The second problem with technocorrections is that they are easily defeated, sometimes with disastrous results.  From Fox News:

A convicted Californian sex offender, who cut an electronic tracking device from his leg and assaulted four women in 2010, was Tuesday sentenced to 195 years in prison, the San Diego Union-Tribune reported.

A San Diego jury last month found 34-year-old Leonard Scroggins guilty of seven felonies -- including committing a forcible lewd act on a child, attempted kidnapping, robbery and assault with a deadly weapon.

The jury found that Scroggins, who already had a rape conviction, cut a GPS tracking bracelet off his ankle on May 17, 2010 and drove to the San Diego area, where he tried to rob a teenage girl and kidnap a woman a day later.

A day after that, the transient from California's Napa County stole a woman's purse and then used a knife in an attempt to kidnap a 13-year-old girl.

A Genuine Scandal


Today, we were treated to the astonishing sight of the Chief of the Criminal Division for the U.S. Attorney's Office invoking the Fifth Amendment and refusing to give any substantive testimony concerning his or DOJ's role in Operation Fast and Furious.  The story is here.

I scarcely know where to begin.  On a personal level, having spent much of my career as a division chief in (a different) U.S. Attorney's Office, I am mortified and appalled.  A refusal by a federal officer in that position to cooperate with Congress, much less to do so on grounds of possible self-incrimination, is just staggering.

My other initial thought is that, although the Criminal Chief occupies a powerful position, the notion that he is at the root of Fast and Furious is absurd.  This simply must stretch farther up the chain.  The US Attorney has already resigned, but it doesn't stop there either.  Having been both a career attorney and a political appointee in the Justice Department, I can tell you that this goes way up the chain.

The Attorney General has already admitted to misleading Congress, albeit, he says, inadvertently.  We will just have to see where this leads.  One thing is for sure, though:  The defense bar will have a field day with this, not to mention a bunch of new clients.   

MSNBC Outdoes Itself

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Off topic but irresistable:  Right now (8:30 p.m. EST, January 24), MSNBC has up a headlined story titled, "Mortgage deal offers little homeowner relief."

Seven inches below on the computer screen, it has the following story, also in headlines, "Deal could help many troubled homeowers."

See for yourself (but you'll need to be quick because these stories change all the time). 

When the mainstream media takes opposite postions at the same time on the same page, you can see why there is room for, ummmm, doubt.

News Scan

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Making the Case for an All-Crimes DNA Database: Cyrus R. Vance Jr., the Manhattan district attorney, has this opinion piece about authorizing the collection of DNA following convictions for all crimes, including some presently excluded misdemeanors in New York state. Since New York's state DNA databank opened in 1996, the bank's DNA samples have been linked to more than 3,500 sexual assaults, 860 murders, 1,100 robberies, and 3,400 burglaries. Vance says the current restrictions mean the DA's office can't use DNA technology in more than half of their cases. He points out that while a DNA match is not proof positive of guilt, DNA technology is more reliable than eyewitness accounts, testimony, and confessions, and is truly colorblind.

California Counties Change Bail Policies: Marisa Lagos of the San Francisco Chronicle reports that as a result of prison realignment, some counties in California are being forced to change their policies regarding pretrial detainees and are having judges keep those awaiting trial in jail based not solely on whether they can afford bail, but on their risk to pubic safety. Pretrial risk assessments conducted by law enforcement authorities to gauge a person's likelihood of committing another crime if they are released are used to help judges decide whether a person should stay in jail while awaiting trial. If they waive their right to a speedy trial, which most offenders do, they could be free for months or sometimes more than a year while waiting for their trial to begin. CJLF's Michael Rushford said, "Risk assessments are guesses. You are guessing someone won't do something, and when you make a mistake, people get hurt. You will have people in morgues that are the result of those guesses."

Justices, the SOTU, and Party

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Adam Liptak has this story in the NYT on Supreme Court Justices' attendance at the State of the Union address.  He includes a research nugget.  It's always interesting when a researcher is surprised by his results.

Preventable Murder, Part Eight Zillion


As I noted last week, the failure to impose the death penalty on violent and dangerous killers gives them the opportunity to do it again.  Every now and again they do; indeed, there are more than 100 instances of killing by inmates previously convicted of murder (there may be many more than that; I lost track years ago).  If abolitionists view these murders as even regrettable, much less as a serious moral problem, I have yet to hear about it.

Reader federalist alerts me to three more preventable murders that were committed recently in Florida.  These were not because of a prior failure to impose capital punishment, but they stem from the same clueless Give Peace A Chance "thinking" that oozes from the abolitionist mind.

The story is that when twice-convicted felon Kelser Dufrene, an immigrant from Haiti, was released from his most recent prison sentence (his first arrest was at age 14), he was supposed to be deported.  But it never happened because, even though ICE authorities had him in custody, they let him loose under an Obama administration edict that no one could be deported to Haiti in light of the damage and chaos in that country wrought by the earthquake two years ago.  Instead, ICE released him to prey upon the legal residents of Miami, which he promptly did by killing three of them, including a 15 year-old girl.

The story is here, and the moral of the story is that as long as the criminal justice system allows gushing sentiment to replace hard thinking about what's going to happen next, this sort of travesty is certain to repeat itself. 

News Scan

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South Dakota AG Wants to Limit Death Penalty Appeals: Steve Young of The Argus Leader (SD) reports South Dakota Attorney General Marty Jackley has introduced Senate Bill 42, which would put stricter limitations on the appeals process for inmates sentenced to death in the state. The bill would create a two-year statute of limitations for bringing a writ of habeas corpus and claims of ineffective counsel, allow judges to decide whether a habeas corpus claim requires the appointment of counsel, and create provisions to prevent repetitive claims of ineffective counsel. The bill was passed out of the state Senate Judiciary Committee 5-1 Thursday, and will now go to the full state Senate.

The Cost of Saving Money: Mandy Feder, managing editor for the Record-Bee, has this opinion piece about the costs of California's prison realignment program, designed to ease state prison overcrowding and save the state money. She discusses the negative impact the shift has on rural counties, where services are already scarce. Feder also presents a scary bit of information, saying that approximately 90 percent of inmates being sent to counties are testing out of their current facilities as "high-risk" offenders.

Montana Judge Says Federal Law Trumps State's Medical Marijuana Law:
Matt Volz of the Associated Press reports U.S. District Judge Donald Molloy on Friday dismissed a lawsuit filed on behalf of more than two dozen medical marijuana providers in Montana that were raided by federal agents last year. Molloy wrote that even if they are following state law, the providers can be prosecuted under the federal Controlled Substances Act, citing a 2005 U.S. Supreme Court decision that said the Constitution's supremacy clause applies to medical marijuana cases. The attorney representing the medical marijuana providers said a decision on whether to appeal had not yet been made.

Qualified Immunity and Entry of a Home

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The Notorious Ninth gets another unanimous summary reversal today in Ryburn v. Huff.  The case involves police entry into a home under circumstances they believed to be exigent and qualified immunity in a subsequent civil suit.

(My summaries of this morning's cases are necessarily brief.  I may expand on them later today.  Further discussion in the comments is welcome, as always.)

SORNA Retroactivity

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The Sex Offender Registration and Notification Act (SORNA) expressly gives the Attorney General authority to specify its applicability to offenders convicted before enactment.  So does the act apply to pre-enactment offenders by its own force, without AG action?  Not surprisingly, the US Supreme Court answered that question no in Reynolds v. United States.  It sent the case back to the Third Circuit to decide if the AG had validly specified such application.

GPS Tracking

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If police attach a GPS tracking device to someone's car and use it to track his movements over a substantial period of time, it that a "search" within the meaning of the Fourth Amendment?  Yes, said all 9 Justices of the Supreme Court today in United States v. Jones.  The Court split 5-4 on the rationale, though.  Justice Scalia for the majority (with Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor) looked to the word "effects" in the Fourth Amendment and the trespass-based approach used before Katz v. United States in 1967.  Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, reaches the same result with the "reasonable expectation of privacy" rationale that the Court has used, for the most part, since Katz.

We're Just As Safe with LWOP. Honest.


One of the rallying cries of abolitionism is that life without parole will keep us just as safe as the death penalty.

There are so many things wrong with this assurance it's difficult to know where to start.  For one thing, today's life without parole can become tomorrow's parole board hearing; if the death penalty can be changed, so can its promised successor.  In addition, the whole rationale of abolitionism tells you that the stout promise of LWOP isn't really sincere.  A polestar of abolitionism is that even the worst people can change, and that the death penalty forecloses all hope of redemption and a return to civil society.  But of course so does LWOP. 

But even that is not the main driving force.  At the core of abolitionist thinking is a moral irresolution that will never abide life without parole.  No sooner will the the ink be dry on the statute ending the death penalty than the push will be on to banish LWOP as simply the death penalty in slow motion, and thus even more cruel and backward. 

Of course the main thing wrong with the promise that LWOP will keep us as safe as the death penalty is simply that it's false.

Nothing to see here, move along

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No criminal law action from the US Supreme Court today.  The Court issued one per curiam opinion and one stay order, both in redistricting cases.  Lyle Denniston covers them at SCOTUSblog here and here.

News Scan

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CA Woman Who Killed 2 Sons and Husband Gets Death Penalty: Terri Vermeulen Keith of City News Service reports Manling Tsang Williams, convicted in 2010 of killing her 3- and 7-year-old sons and her husband while they were asleep, was sentenced to death in Pomona Superior Court Wednesday. After putting on gloves and smothering her two sons with a pillow in their bunk beds, prosecutors alleged that Williams checked the MySpace page of her lover, went out with friends, and then returned home and attacked her husband with a sword, inflicting more than 90 wounds on him. Prosecutors said she killed her family because her lover indicated he was going to break up with her because she was married with children. Before handing down the death sentence, Pomona Superior Court Judge Robert Martinez also rejected a motion for a new trial.

Federal Official Pleads the Fifth on Fast and Furious: William La Jeunesse of Fox News reports the chief of the Criminal Division of the U.S. Attorney's Office in Arizona informed the House Oversight Committee Thursday through his attorney that he will use the Fifth Amendment protection and not testify before Congress regarding Operation Fast and Furious. Patrick J. Cunningham's lawyer says the Department of Justice is making him the fall guy. Cunningham says he is a victim of a conflict between two branches of government, and will not be compelled to make a statement that could later be used to indict him on criminal charges. This is the first big rift in the government's united defense of itself in the gun-running scandal.

Gang Members Arrested After Bragging About Murders on Social Media Sites: Aman Ali of Reuters reports 43 feuding gang members were arrested in New York Thursday in connection with three murders and a series of shootouts that led to the wounding of several others after bragging about the shootings on Facebook, Twitter, and YouTube. The gang members were indicted on charges including murder, assault, reckless endangerment, robbery, and weapon possession. Potential sentences range from a year to life in prison. "By linking their postings and boastings to active cases and other crimes, these officers were able to build their case," New York Police Commissioner Raymond Kelly said.

FBI Shuts MegaUpload.com

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Devlin Barrett reports in the WSJ:

The Federal Bureau of Investigation shut down Thursday one of the world's most popular file-sharing websites, MegaUpload.com, and announced the arrest of four of the people behind it in a global crackdown against the suspected online pirates.

The FBI's move pushed the raging piracy debate to new territory: the role of online 'lockers' where users around the world store and share material, often times pirated movies and music. The raid came a day after Washington lawmakers were besieged by complaints about legislation designed to crack down on offshore file-sharing services. Internet sites like Wikipedia and Google Inc. protested the legislation as censorship.

A copy of the indictment is linked to the story.

Author of the Constitution

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Off topic but interesting -- it's always good to see a snarky commentator brought down.

News Scan

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Washington Post Wins Access to Chandra Levy Jury Questionnaires: Zoe Tillman, writing for the blog of Legal Times, reports the District of Columbia Court of Appeals ruled Thursday morning The Washington Post and other media outlets were wrongly denied access to jury questionnaires from the Chandra Levy murder trial. The three-judge panel wrote that the public's right to access criminal trials covers jury selection. The appellate judges found that the trial judge, Superior Court Judge Gerald Fisher, made a mistake in promising the jury that the questionnaires would be kept out of the public eye.

Killer Gets 200 Years for 2-day Rampage: The Associated Press reports Maksim Gelman, who admitted to killing four people and wounding four others in a 2-day crime spree in New York City last winter, was sentenced to 200 years in prison on Wednesday. He got the maximum sentence for each of the 13 counts he was convicted of, with some of the sentences running consecutively. In a rambling statement, Gelman blamed his victims, said he wasn't the bad guy, and blamed the U.S. Drug Enforcement Agency for supposedly following him.

Triple-Murderer Denied New Trial: Josh Kovner and Alaine Griffin of The Hartford Courant report Joshua Komisarjevsky, convicted of killing three people and setting their house on fire in 2007, had his motions for a new trial and acquittal denied Wednesday. Superior Court Judge Jon C. Blue ruled that there was no outside influence that affected Komisarjevsky getting a fair trial. Blue is scheduled to impose the jury's sentence of death on January 27.

Camping in the Park

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The House Oversight and Government Reform Committee will hear from District of Columbia officials and the National Park Service next Tuesday during a subcommittee hearing titled "McPherson Square: Who Made the Decision to Allow Indefinite Camping in the Park?"
Full announcement is here.

News Scan

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Delaware Gov. Commutes Killer's Death Sentence: Randall Chase of the Associated Press reports Delaware Governor Jack Markell accepted a recommendation from the state Board of Pardons to commute Robert Gattis' death sentence to life in prison without parole. Gattis was scheduled to be executed by lethal injection Friday for the murder of a 27-year-old woman, who prosecutors argued he shot in a jealous rage after years of physically abusing her. Gattis' attorneys argued the courts never properly weighed the accounts of physical and sexual abuse Gattis claims to have suffered as a child.

Oversight of California's Prison Medical System to End: Don Thompson of the Associated Press reports U.S. District Court Judge Thelton Henderson on Tuesday ordered California officials to prepare for the end of a six-year, court-ordered oversight of the medical system in the state's prisons. Nearly six years ago a receiver was appointed to run California's prison medical system. Under the receivership, the state doubled the amount of money it spent on inmate health care over five years. Henderson ordered the appointed receiver, state officials, and attorneys representing inmates to report by April 30 when the receivership should end and if it should continue some oversight role.

Victim's Father Speaks Out About Reported Serial Killer Suicide: Scott Smith of The Record reports the father of Cyndi Vanderheiden, one of the victims of Loren Herzog and Wesley Shermantine, said he would have killed Herzog himself if he had the chance. Cyndi disappeared in 1999, and her body has never been found. John Vanderheiden said he is prepared to make the four-hour drive to Susanville to get concrete proof that Herzog is dead. "I just want to make sure it is Loren Herzog and that will be some relief," he said. The Lassen County District Attorney's Office, the California Department of Corrections and Rehabilitation, and the state's Office of the Inspector General are all investigating the apparent suicide. Vanderheiden said he hopes that now with Herzog gone and Shermantine on death row, someone will feel safe enough to reveal where the remains of his daughter are buried. He called Herzog a coward and said, "if he was going to kill himself, why didn't he tell us where the bodies were?" "Then we could bury her," he said. Scott Smith has more details about the apparent hanging here
The US Supreme Court decided the decidedly odd procedural default case of Maples v. Thomas this morning.  "The sole question this Court has taken up is whether, on the extraordinary facts of Maples' case, there is 'cause' to excuse his procedural default."  As noted in my post of July 13, the essential facts are:

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

On "the extraordinary facts," it is not too surprising that the Court answered the question "yes."  See my post after the oral argument.  As predicted, the resulting precedent is narrow, at least for the time being.  One aspect of the opinion that I find particularly disappointing is what it does and does not say regarding who is to blame for the mess.

First, and most importantly, is the narrowness of the opinion.  The Court does not back off from Coleman v. Thompson.  Attorney error in habeas is not "cause" for default, even something as basic as blowing an appeal deadline.  "We do not disturb that general rule."  Abandonment is distinguished from error.  Look for petitioners' briefs to push an ever-expanding definition of abandonment from this point onward.  Hopefully, the courts won't go for it and not much damage will be caused.

News Scan

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Executions Scheduled in Nebraska and Oklahoma: Joe Duggan of the Omaha World Herald reports the Nebraska Supreme Court has set a March 6, 2012 execution date for cult leader Michael Ryan. Ryan ordered one of his followers to undergo torture that included sodomy, the shooting of his fingertips, and partial skinning by a knife, and was convicted of his first-degree murder. He was also convicted of second-degree murder in the killing of a 5-year-old boy who was the son of a cult member. The last execution in Nebraska was in 1997 by electric chair. Ryan would be the first inmate executed in Nebraska by lethal injection. Rachel Petersen of McAlester News (OK) reports the Oklahoma Court of Criminal Appeals set February 16, 2012 as the execution date for Garry Thomas Allen, who murdered his wife in 1986.

CA Serial Killer Found Dead:
Mike TeSelle of KCRA (Sacramento) reports triple-murderer Loren Herzog was pronounced dead from an apparent suicide. He had been living in a trailer outside the front gate of the High Desert State Prison in Susanville, CA since his release in September 2010. Herzog was originally sentenced to 78 years to life in prison, but pleaded down to voluntary manslaughter after his conviction was overturned on appeal when it was ruled that his statements were illegally coerced. Herzog served 11 years in prison. His co-defendant, Wesley Shermantine, is currently on death row in California. A news release from the Lassen County Sheriff said "an official determination related to the cause of death won't be made until after the investigation and an autopsy are completed."

What CA Prison Realignment Has Wrought So Far:
Brik McDill, a senior supervising psychologist at the California Correctional Institution in Tehachapi, has this opinion piece in the Bakersfield Californian about the effects so far of Governor Brown's inmate realignment law (AB109), which went into effect last October. He says at this point there are many foreseeable problems and few solutions.

Jerry Brown Proposes Cutting $1 Billion From Prisons: Marisa Lagos of the San Francisco Chronicle reports California Gov. Jerry Brown wants to cut state prison funding for the first time in nearly a decade by $1.1 billion next fiscal year. Referring to the general fund spending on the California Department of Corrections and Rehabilitation, Brown said Friday, "we're knocking it down, and we'll knock it down further." State Assemblyman Jim Nielsen (R), a former parole board chairman, predicts the savings will not last in the long-run, and says any savings for taxpayers would be eliminated by counties having to ultimately raise local taxes to fully pay for realignment.

Rhode Island Bill Would Reinstate Death Penalty: The Associated Press reports Rhode Island Senator John Tassoni (D) and two other state senators have introduced a bill to reinstate the death penalty in Rhode Island. He says the legislation was motivated by Rhode Island Gov. Lincoln Chafee's decision last year to keep a man accused of murder in state custody, when he could have faced the death penalty in federal court. The death penalty would be authorized in the state for those convicted of first-degree murder with one of seven listed aggravating circumstances. The text of the bill is here.

Disproportionate to What?

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In last night's Republican presidential debate, transcript here, Juan Williams asked Ron Paul a question about race and drug offenses.  Paul chose to go off the rails and talk about the death penalty, demonstrating once again that he is both erratic and misinformed.

"Yes. Definitely. There is a disparity. It's not that it is my opinion, it is very clear. Blacks and minorities who are involved with drugs, are arrested disproportionately. They are tried and imprisoned disproportionately. They suffer the consequence of the death penalty disproportionately. Rich white people don't get the death penalty very often."

Disproportionate to what?  The graph on this page shows the racial composition of murderers in America (in cases where the race of the perpetrator is known) and the racial composition of death row.  White murderers make up a significantly larger proportion of death row than they do of murderers in general.

Paul gets his "disproportionate" number, apparently, by committing the common Fallacy of the Irrelevant Denominator.  The percentage on the right pair of bars would be "disproportionate" if compared to the racial composition of the general population.  But that is irrelevant.  Death row is not for the general population; death row is for murderers.  It's discouraging I even have to say that, given how simple and obvious it is, but we see this same fallacy over and over.

Rich people rarely get the death penalty because rich people rarely commit capital murder.  It does happen, though.  Thomas Capano got the death penalty.  Robert Marshall got the death penalty.  Scott Peterson wasn't rich, but he did get the lawyer to the stars; he is on death row.  If O.J. Simpson had been white, he would certainly be in a California prison for his double murder and probably on death row.

This isn't the first time Ron Paul has demonstrated his ignorance on the death penalty.  CJLF's press release from last August is here.

Felons and Voting

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The issue of felons voting came up in the Republican presidential debate last night. (Transcript here.)   As often happens, there are actually two issues.  What is the best answer to the question, and who should decide which answer is best?

Rick Santorum took offense at an ad run by a Romney-oriented super PAC that criticized his vote on felon voting.  By using a graphic of a prisoner, he says, the ad falsely implies he voted to let currently incarcerated felons vote, when his actual position is that voting rights should be restored upon completion of all of the sentence, including probation and parole time.  He also criticized Romney for not trying to change Massachusetts law while he was governor, which allows parolees to vote.

Romney's response to the latter point is one that he has been required to make, correctly, several times in the course of the campaign.  Politics is the art of the possible, and only so much was possible in Massachusetts.  Changing that law was not possible.  Democrats had 85% of the legislature, and they know very well that criminals are more likely to vote for them than for Republicans.  Romney also said that his position on the underlying issue was that violent felons should not have their vote restored even after completing their sentence.

Perry got in a comment that this issue should not be decided in Washington.  It is a state-law question.  He is correct.  The original Constitution left voting eligibility entirely to the states.  Amendments have forbidden discrimination on the basis of "race, color, or previous condition of servitude" or sex.  The voting age was lowered to 18 by another amendment.  That's it.  Everything else is state law.  And no, "disparate impact" does not transform a disqualification based purely on an individual's choice to commit a crime into racial discrimination.  So if a state wants to let murderers vote while on parole or even while still in the joint, that is wrong but their choice.  If a state wants to restore voting rights selectively based on the nature the crime and the extent of demonstrated rehabilitation, that is their choice also (and the correct one, IMHO).


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No opinions out of the US Supreme Court this morning, summary or otherwise.  The orders list is here.  Regrettably, the Court declined to correct the Third Circuit a second time in the Kindler case, Justice Kagan recused.

News Scan

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Brighton Beach Killer Claims He Killed Six More: Rebecca Harshbarger of The New York Post reports Maksim Gelman, known as the Brighton Beach butcher, was convicted of killing four people during a murder spree last February and now says he had killed six other people before being caught. Gelman states he ran over two of the victims with his car to make sure he had no witnesses to identify him. He also killed two more people while conducting drug business. Gelman pleaded guilty to four counts of murder on the Brooklyn to Manhattan murder spree. In regards as to why he killed more than just his step dad as he intended, he said while the police were looking for him he wanted to kill at least three or four more people to settle scores. He will be sentenced in a Brooklyn Court on Wednesday.

Murder Case To Go On Without Body: Cy Ryan of The Las Vegas Sun reports The Nevada Supreme Court has ruled that the trial of man convicted of murder can go on despite not being able to find the body. Michael Mills is scheduled to go on trial on a murder count despite that the body of 62-year old David Christensen has never been uncovered. The Supreme Court stated that Mills confessed that he allowed Christensen to stay the night at his apartment and then beat him on the head until he died.  Mills wrapped the body in a towel and disposed of it in a trash container. The Court also stated that detectives found two large human blood stains in Mills' apartment. The Court held that evidence needed only to be "slight" or "marginal" without producing a body for the prosecution to proceed.  The trial is currently scheduled for June.

Supreme Court Urged to Look At Ohio's Death Penalty: The Associated Press reports Ohio's governor and attorney general are asking The U.S. Supreme Court to rule whether or not the states protocol for carrying out the death penalty is constitutional. The state wants the high court to reverse a federal appeals court decision to delay the Wednesday execution of Charles Lorraine. Lorraine argued that Ohio broke its promise to adhere to strict guidelines for execution. The state said the slight deviations from the procedure in no way violated the inmates rights. The change in the protocol involved which official announces the start and finish times of an injection. "Attorney General Mike DeWine and I agree that Ohio's administration of capital punishment is constitutional and we have asked the Supreme Court of the United States to affirm that," the governor said in the statement.

Prosecuting the Sheriff

Well, this is awkward.  Rachel Gordon and John Coté report in the SF Chron:

As San Francisco Sheriff Ross Mirkarimi fights three criminal charges stemming from accusations that he physically abused his wife, he also is battling for his political future.

District Attorney George Gascón on Friday charged Mirkarimi with domestic violence battery of his wife, child endangerment and dissuading a witness in connection with an incident that prosecutors believe happened on New Year's Eve.

"No one is above the law," Gascón said. "Whether this was the elected sheriff or any other San Francisco resident, this type of behavior is inexcusable, criminal and will be prosecuted."

Terry Collins reports for AP: "Gascon said the basis for the child endangerment charge was that the couple's son saw the alleged incident occur. Gascon declined to explain the allegation that Mirkarimi influenced a witness."

That allegation needs to be explained.  The battery apparently resulted in only a bruise, and Mirkarimi's wife says the charges are "completely wrong."  But who is the witness and what is the dissuading?  A cover-up after the fact, deliberate and not in the heat of the moment, could be more serious than the original transgression, as so often happens in politics.

Tebow Notes

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Michael Medved has this op-ed in the WSJ, titled The Secrets of Tebow Hatred.  "The NFL is generously stocked with forgiven felons, including millionaire wife beaters and dog killers. So how did a clean-living quarterback with deep commitments to charitable service and miraculous last-minute victories become the most controversial player in the league?"

Yesterday, Fran Tarkenton had this op-ed in the same paper.

Before every game, no matter what team I was on at the time, the coach would always ask the most devout player to say a prayer....  No one ever asked to win the game, probably for fear that God would punish us for asking. After this moment of devotion, the team would all shout in unison, "Now let's go kill those S.O.B.'s!"

Excessive entanglement of church and football notwithstanding, it's so refreshing to see a good role model in sports that I will root for Tebow and the Broncs, particularly given that they are the underdogs.

Cavazos v. Williams QP

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The questions the State of California asked the Supreme Court to review in Cavazos v. Williams were:

1. Whether a habeas petitioner's claim has been "adjudicated on the merits" for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.

2. Whether, under § 2254, a federal habeas court (a) may grant relief on the ground that the petitioner had a Sixth Amendment right to retain a biased juror on the panel and (b) may reject a state court's finding of juror bias because it disagrees with the finding and the reasons stated for it, even where the finding was rationally supported by evidence in the state-court record.
The Court accepted Question 1 and turned down Question 2.

The Ninth Circuit opinion, by our favorite circuit judge, is here.

News Scan

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Georgia Judge Schedules Execution: The Associated Press reports a Paulding County judge in Georgia has scheduled the execution of Nicholas Cody Tate. He will be put to death between January 31 and February 7, with state officials determining the date of the execution. Tate pleaded guilty in 2005 for the 2001 murder of a 26-year-old woman and her daughter. Authorities said the woman had been shot in the head and was bound to the bed with handcuffs, her daughter found naked on the floor of another room with her throat slit.

Court Orders New Psychiatric Review of Norwegian Mass Killer: Nils Myklebost of the Associated Press reports a Norwegian court Friday ordered a new psychiatric evaluation of confessed mass killer Anders Behring Breivik after an earlier report found him legally insane and suggested he should be given psychiatric care instead of being sent to prison. That conclusion drew heavy criticism by those who questioned how someone suffering from such grave mental illness could have carried out such a well-planned attack.

Study Shows Swedish Girls Increasingly Violent:
United Press International reports numbers released by Sweden's National Council for Crime Prevention show the number of Swedish teen girls involved in violence has more than doubled in the last decade, and that demographic is increasingly turning to crime. One-third of assault victims ages 15-17 in 2010 were reported to be female, up from one-fourth in 2008. The number of girls ages 15-20 accused of assault increased 118.5 percent, from 428 in 2000 to 935 in 2010.

Read more here: http://www.sunherald.com/2012/01/12/3683365/ga-judge-sets-execution-for-2001.html#storylink=cpy

SCOTUS Conference

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Today is conference day at the US Supreme Court.  This time last year, the Court decided to grant certiorari in one case.  The announcement was made in the following Tuesday's orders list, and the case was argued at the beginning of this term. The Court normally only announces a grant the day of the conference if it wanted to hurry things up to hear argument this term.  If no list is released today, as is likely, it is a good bet that any cases granted are for next term.  Update:  I should have listened to Yogi Berra and not made predictions, especially about the future.  The Court released an orders list granting certiorari in Cavazos v. Williams, No. 11-465 and two civil cases. [End of update.]

SCOTUSblog's Petitions to Watch list is here.  Pennsylvania has two capital habeas cases on the list, Wetzel v. Lambert and Wetzel v. Kindler.

The Cert Pool has the full conference list here.  Cases where a criminal defendant is the petitioner, and is proceeding in forma pauperis, are not considered for SCOTUSblog's list.  Those where the Court has asked the state to file a brief in opposition bear watching.  Among these is Ramirez v. California, No. 11-7424.  In that case, the California Court of Appeal rejected a claim that a sentence of life with possibility of parole for a 15-year-old involved in a double felony-murder violates the Eighth Amendment.

Other capital cases on the docket include the perennial Nunley and Taylor cases from Missouri.

News Scan

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Mayor in CA Blames Realignment for Surge in Local Violent Crime: Jon Baird of CBS Local (Los Angeles) reports the mayor of La Puente in California said Thursday the state realignment plan is responsible for a sharp jump in crimes in the city. La Puente Mayor John Solis says sexual assaults are up about 300 percent, and assaults with guns and knives up nearly 150 percent citywide since realignment took effect in October. The city is spending $50,000 to increase its police force and will set up a task force to deal with the crime surge.  

Judge Halts Release of Some Pardoned by Barbour: Emily Wagster Pettus of the Associated Press reports Circuit Judge Tomie Green in Mississippi issued an injunction late Wednesday at the request of state Attorney General Jim Hood, blocking the release of 21 inmates pardoned or given medical release by outgoing Governor Haley Barbour. Hood said he believes Barbour may have violated the state constitution by pardoning some inmates who had failed to give sufficient public notice about their intentions to seek a pardon.

Convicted Murderer in Connecticut Home Invasion Case Seeks New Trial:
Dave Collins of the Associated Press reports lawyers for Joshua Komisarjevsky, sentenced to death in Connecticut last month, are asking for a new trial. Komisarjevsky's lawyers say the trial should have been moved out of the New Haven area in order to have a fair and impartial jury. His lawyers also say their client was denied his right to probable cause hearings when the state amended the charges against him, and denied his right to confront a "powerful" witness. Komisarjevsky was convicted of the 2007 murders of a woman and her two daughters, in which he raped and strangled the mother and sexually assaulted one of the daughters before tying them to their beds, dousing them with gasoline, and setting the house on fire.

Woman Calls Police After Drug Dealer Sells Her Sugar: The Smoking Gun reports Suzanne Basham of Missouri called police to report that she had paid $40 for crack cocaine that turned out to be sugar. Basham asked the police to arrest her dealer for theft and secure a refund for her. At the address where Basham said she purchased the crack cocaine, the residents denied selling drugs and declined to let investigators inside. Basham was cited for possession of drug paraphernalia after cops discovered she was in possession of a crack pipe.

Dept. of Labor Offers $20 Million in Grants for Ex-Cons Seeking Work: The Associated Press reports the U.S. Department of Labor is offering over $20 million in grant funds to organizations that provide employment services and support to former prisoners. The Department of Labor expects to award 17 grants of approximately $1.21 million each, targeting nonprofits in high-poverty, high-crime communities. The news release from the DOL is here.

In 1965, the great Judge Henry Friendly warned against the Warren Court's drive toward The Bill of Rights as a Code of Criminal Procedure in an article with that title, 53 Cal. L. Rev. 929.  "[I]n applying the Bill of Rights to the states, the Supreme Court should not regard these declarations of fundamental principles as if they were a detailed code of criminal procedure, allowing no room whatever for reasonable difference of judgment or play in the joints." 

Friendly's main point was that state legislatures and other rule-making authorities should be allowed to make the judgment calls outside the few, simple rules actually in the Bill of Rights.  The Court did not listen, and today there are few questions of criminal procedure where the defense lawyer cannot "make a federal case out of it."  Indeed, there are seminars telling lawyers to do just that, so that they can get a second bite at the apple in federal habeas if the state court rejects the claim.

How about evidence? Certainly the Bill of Rights does have some evidentiary provisions, including the privilege against self-incrimination, the right to confront adverse witnesses, and compulsory process for defense witnesses.  But how about the bulk of the evidence code, the underlying purpose of which is simply to have trials decided on reliable evidence subject to adversarial testing.  Should the Supreme Court declare a general constitutional right to be tried on only reliable evidence and thereby make itself the overseer of this area of law for the entire nation?

The Court looked at that prospect in Perry v. New Hampshire, and today it beat a hasty retreat.

A Devastating Blow to Criminal Defense


While Kent continues to provide serious coverage of serious legal stories, I feel I must alert our readers to a story from the business world that spells the end for one of the most fabled criminal defense theories of modern times.

Some here are old enough to remember that in November 1978, former police officer and San Francisco City Council member Dan White shot and killed  Mayor George Moscone and openly gay Councilman Harvey Milk.  White was charged with premeditated murder, but his lawyers miraculously convinced the jury to convict him only of manslaughter.  The theory that brought about this result became an instant icon, of sorts, with the defense bar, and was even noted by Justice Scalia years later in the oral argument in United States v. Gonzalez-Lopez (concerning the right to counsel).

Today, alas, the foundation of the theory passed into history.  The Wall Street Journal has the woeful story




    News Scan

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    Maine Makes Database of Probationers Public: Heather Steeves of Bangor Daily News (ME) reports a new database created for the Maine Department of Corrections allows people to search for those on probation in the state. The department said the goal is to reduce the workload for corrections staff who handle information requests by allowing victims to track their abusers. The Department of Corrections lists the locations of probationers only by the city where their regional office is located. The database is updated daily.

    Upcoming Executions in Arizona and Pennsylvania: Michael Kiefer of The Republic (AZ) reports the Arizona Supreme Court Tuesday approved execution dates for Robert Moormann and Robert Towery. Moormann will be executed February 29, and Towery will be executed March 8. Towery strangled a man to death in 1991 during a robbery of the victim's home. Moormann killed his adoptive mother during a "compassionate furlough" from prison in 1984, where he was already serving time for kidnapping. He cut her body into pieces and dumped them in garbage cans around the city of Florence, AZ. Warren Howeler of the Morning Times (PA) reports Pennsylvania Governor Tom Corbett Monday signed the execution warrant for Dustin Ford Briggs, who is scheduled to be executed March 8. Briggs was convicted for the 2004 shooting deaths of two sheriff's deputies.

    Homicide No Longer a Top Cause of Death: Mike Stobbe of the Associated Press reports homicide has been dropped from the list of the nation's top 15 causes of death for the first time in 45 years. It is unclear whether it means homicide was off the list 46 years ago, or if the list has only been around for 45 years. The report from the National Center for Health Statistics is here. Update: This article by David Brown in the WaPo clarifies that homicide entered the top 15 in 1965.

    Ohio Judge Halts Upcoming Execution: Andrew Welsh-Huggins of the Associated Press reports U.S. District Court Judge Gregory Frost Wednesday delayed the January 18 execution of Charles Lorraine in Ohio. Lorraine stabbed a 77-year-old man five times with a butcher's knife and stabbed his 80-year-old wife nine times before burglarizing their home in 1986. Frost said the state diverted from its execution policies when it failed to document the drugs used in its last execution in November and failed to review the medical chart of the inmate before the execution. Ohio is appealing the judge's order.


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    The US Supreme Court has decided Perry v. New Hampshire, described in prior posts here and here.  The 8-1 opinion by Justice Ginsburg appears from the syllabus to be in accord with CJLF's brief.  Justice Sotomayor dissents alone.  I'll have some more observations shortly.  Follow-up post is here.

    Rats and Occupation

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    Well, if neither rain nor sleet nor pepper spray nor common sense is enough to convince the occupiers that long-term occupation of public places is a bad idea, maybe this will do it.  Annie Gowen writes in the WaPo's Post Now Blog:

    The rat population around the two Occupy D.C. camps at McPherson Square and Freedom Plaza has "exploded"since protesters began their vigil in October, according to Mohammad N. Akhter, the director of the District's Department of Health.

    Akhter said in an interview Monday that city health inspectors have seen rats running openly through both camps and spotted numerous new burrows and nests underneath hay-stuffed pallets occupiers are using for beds. Both campsites had working kitchens for weeks until last week, but protesters at McPherson Square voluntarily closed down theirs after health inspectors pointed out unsanitary conditions during an informal monitoring visit.

    Not Expanding Constitutional Torts

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    In 1971, the Supreme Court created a constitutional tort remedy against federal agents who violate constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389.  Subsequent cases created qualified immunity for actions where the legality of the agent's actions were fairly debatable at the time.

    How about federal prisons operated by private contractors?  No need to expand Bivens, the Court said today in Minneci v. Pollard, No. 10-1104.  Just sue the privately employed guards in a state tort action like you would any other employee of a private business who violates your rights. 

    For one thing, the potential existence of an adequate "alternative, existing process" differs dramatically in the two sets of cases. Prisoners ordinarily cannot bring state law tort actions against employees of the Federal Government....  But prisoners ordinarily can bring state-law tort actions against employees of a private firm.
    The discussion makes clear that the Court is going to be very reluctant to expand Bivens into any new territory.  Bivens won't be expanded if there is another remedy, and maybe not even then.

    Justices Scalia and Thomas concur.  They go further and say that "Bivens and its two follow-on cases" should be limited "to the precise circumstances that they involved."  Justice Ginsburg dissents alone.

    Another Ugly Nawlins Case

    The Big Easy is really good at partying, but apparently not so good at disclosing exculpatory information to the defendant, as required by Brady v. Maryland, 373 U. S. 83 (1963). Last term, we had Connick v. Thompson, a civil case about failure to disclose a crime lab report.  Today we have Smith v. Cain, about failure to disclose prior inconsistent statements by the only witness who identified the defendant at trial.

    This is about as pure a Brady claim as they come.  As CJ Roberts explains, the jury might have believed the witness's trial statements rather than the prior statements, but "might" is not the test.

    The State and the dissent advance various reasons why the jury might have discounted Boatner's undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that he could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner's contradictory declarations the jury would have believed. The State also contends that Boatner's statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State's argument offers a reason that the jury could have disbelieved Boatner's undisclosed statements, but gives us no confidence that it would have done so.
    This case is a straightforward application of settled law to particular facts that makes little new law.  Why did the Supreme Court take it up?  Wouldn't Smith have been granted relief on federal habeas from the state court's unreasonable rejection of his claim?  Isn't that why Congress adopted the compromise standard of 28 U.S.C. §2254(d), rather than getting rid of federal habeas for state prisoners altogether?

    Or does the Supreme Court lack confidence that the Fifth Circuit will grant habeas relief where the 2254(d) standard requires it (i.e., clearly wrong state court decisions), just as it lacks confidence that the circuits divisible by 3 will observe that standard and refrain from second-guessing state courts on close questions, as Congress has required?

    The politics of federal judicial appointments, unfortunately, results in the states that need the most federal scrutiny receiving the least and vice versa.  The voters who choose the governor who appoints the state judges, or who elect the state judges directly, also choose the senators who have large influence over the appointments of the federal district and circuit judges in their states.  Less home-state-senator influence over the circuit appointments, at least, would help balance things out.  The political realities being what they are, though, I am not hopeful that can be done.

    News Scan

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    CA Supreme Court Overturns Death Sentence: Bob Egelko of the San Francisco Chronicle reports the California Supreme Court Monday issued its second death sentence reversal in two months after upholding 46 consecutive death sentences over two years. The court upheld the conviction for Kevin Pearson, but unanimously overturned his death sentence and granted him a new sentencing trial. Monday's ruling found improper dismissal of a juror when Superior Court Judge Tomson Ong granted a prosecution request to remove a juror from the panel because she wrote in her questionnaire that she wasn't sure how she felt about capital punishment. The court's decision said that the juror's views on the death penalty would not have prevented or substantially impaired the performance of her duties as a juror, and the improper removal denied Pearson an impartial jury. The court's opinion is here.

    DNA Links Florida Man to Murder 20 Years Ago: WFTV Channel 9 (FL) reports David Hedrick was arrested in connection to a homicide two decades ago after taking a DNA test for failing to pay his taxes in Florida, a felony offense. In Florida if someone is convicted of a felony, a DNA sample is taken and run through a database. Deputies said Hedrick's DNA matched blood samples taken from the 1991 crime scene where 50-year-old Betty Foster was stabbed 25 times in the neck and chest. 

    Last Inmates Leave 150-Year-Old Nevada Prison:
    The Associated Press reports the last of the inmates were transferred from Nevada State Prison Monday. Established in 1862, Nevada State Prison houses Nevada's execution chamber and license plate factory. It was the site of the nation's first execution in a gas chamber in 1924. The historic prison has numerous structural problems. In some units, faulty plumbing forced guards to leave cell doors open so inmates could use toilets down the hall. Officials estimated it would have cost $30 million to bring the prison up to code. 

    Realignment for Juveniles: Nannette Miranda of abc30/KFSN-TV reports that under California Governor Jerry Brown's latest budget proposal, the responsibility for managing youth offenders would be transferred from the state's youth prisons to local jurisdictions. The Division of Juvenile Justice currently houses approximately 1,100 offenders. Just 15 years ago, it housed approximately 10,000 juvenile offenders. Brown's budget proposes stopping the intake of new juvenile offenders January 1, 2013, and proposes giving counties $10 million in 2011-2012 to plan for the transition.

    Appealability and Time Limits on Habeas

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    Today in Gonzalez v. Thaler, No. 10-895, the Supreme Court took up some Slack and solved a Riddle on a couple of points of habeas corpus procedure.

    In the post-AEDPA procedure for appeal, the petitioner cannot appeal a denial of relief unless he gets a judge to issue a certificate of appealability, which is supposed to identify the issues on which "the applicant has made a substantial showing of a constitutional right."  In Slack v. McDaniel, 529 U.S. 473 (2000), the Court held that when the denial is on procedural grounds, the petitioner must show both a debatable claim on the merits and that the procedural ruling may be wrong.

    What if a judge grants a COA but doesn't specify the substantive claim that meets the statutory requirement, and nobody objects?  That would block the appeal only if the specification requirement is jurisdictional.  The Court today held 8-1 that it is not.  (Opinion by Justice Sotomayor; dissent by Justice Scalia.)  I don't have a problem with that.  The State needs to make timely objection to errors, just as the defendant does, or else it defaults the claim.  Exceptions to the "speak now or forever hold your peace" rule are and should be rare.

    On a second point, the statute of limitations clock for federal habeas begins, in most cases, on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."  If the judgment is affirmed in the state's intermediate appellate court, and the defendant does not seek discretionary review from the state high court, does the federal clock start when the state clock runs out or when the intermediate appellate court issues its mandate? 

    Answer (without dissent): when the state clock runs out.  The Eighth Circuit's contrary decision in Riddle v. Kemna, 523 F.3d 850 (2008) (en banc) is wrong.  The "conclusion" prong is for defendants who take it all the way to SCOTUS, where the usual conclusion is denial of certiorari, and the "expiration" prong is for those who do not.  In the latter case, "final" is the time limit on whatever review procedure the defendant did not seek.

    The more difficult problem not squarely presented in today's case is how to handle COA problems when someone does object.
    Off-topic but interesting, Adam Liptak has this story in the NYT about an Eighth Circuit decision saying a discrimination suit against U. Iowa College of Law must go to trial.

    News Scan

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    Mississippi Governor Pardons Two Murderers: CNN reports that on his last weekend in office, outgoing Mississippi Governor Haley Barbour pardoned two convicted murderers. David Gatlin and Joseph Ozment were both serving life sentences and received full pardons. Ozment was convicted of murder and conspiracy, and armed robbery in a separate case. Gatlin was convicted of murder, aggravated assault, and burglary of a residence. He shot his estranged wife in the head while their baby was in her lap. The family of Gatlin's victim had just received a letter the day before Gatlin was released saying that he had been denied parole.

    "Avoid the Ghetto" App: Jameson Berkow of Financial Post reports a new Microsoft Corp. smartphone software invention that accounts for safety, weather, and terrain conditions when giving walking directions has been dubbed the "avoid the ghetto" option because "unsafe neighborhoods" are among the conditions accounted for. This new feature could carry some legal implications, said CNET's Chris Matyszczyk. "What if someone using a route from this system does get mugged, shot, assaulted, or robbed? Would they feel entitled to sue Microsoft because the route was supposed to be 'ghetto-free?"

    Definition of Victim Doesn't Include Next of Kin: Bob Egelko of the San Francisco Chronicle reports the California law that allows crime victims or witnesses to ask the state for a buffer zone requiring a parolee who served time for a violent crime to live at least 35 miles away does not apply to next of kin, said the Second District Court of Appeal in Los Angeles in a 2-1 ruling Friday. When Terrance David was paroled in 2010, the sister of a woman he killed asked the California Department of Corrections and Rehabilitation to invoke the law to prevent David from moving in with his mother 26 miles away from where she lived. The state appeals court overturned the restriction because the law refers only to a "victim or witness," and does not mention next of kin. The court's opinion is here.

    SCOTUS Passes on an AEDPA Case

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    The US Supreme Court today declined to take up the case of Cash v. Maxwell, No. 10-1548, a noncapital case where the Ninth Circuit granted relief to a murder convict whose claim had been found without merit by the California state courts.  The case arises out of the L.A. jailhouse informant scandal of the 1980s, and I suspect that taint was enough to convince the swing votes to take a pass.

    Notorious informant and liar Sydney Storch was one of many witnesses against Bobby Joe Maxwell.  When Maxwell filed a state habeas petition, the California Supreme Court sent the case to the trial court for an evidentiary hearing.  Justice Scalia relates, "After conducting an evidentiary hearing that extended over the course of two years and included the testimony of more than 30 witnesses and the introduction of over 50 exhibits, the Superior Court issued a 34-page opinion concluding that Storch had not lied [this time] and denying the habeas petition."  Ultimately, the Ninth Circuit found that conclusion unreasonable and granted relief.

    Today, the Supreme Court decided not to take up the case, with Justices Scalia and Alito dissenting and Justice Sotomayor writing an opinion supporting that decision.  She agrees with the Ninth Circuit on the merits and also notes that the case is "fact-bound," not the kind of case the Supreme Court usually takes up.

    Justice Scalia notes, in frank terms, the resistance of some federal judges to the mandate of Congress to stop second-guessing state courts on close questions.  In his view, the necessity of enforcing this mandate overrides the Court's usual aversion to fact-bound cases.

    It is a regrettable reality that some federal judges like to second-guess state courts. The only way this Court can ensure observance of Congress's abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit. [Citing 8 cases.]

    If the 113th Congress is fully in the control of forces friendly to the law-abiding public, we should reconsider the limits on habeas corpus.  The "Friendly filter" of a colorable claim of actual innocence is a possibility to consider.

    Wetzel v. Lambert is relisted again for Friday, BTW.  The Kindler case is back on the same conference.  Previous decision is here.

    Dog Sniffs

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    What's wrong with this picture?

    The police get a "crime stoppers" tip that a house is a marijuana grow house.  They go out with a drug detection dog and lead the dog up to the front porch, a place anyone can go without an invitation.  The dog alerts.  The officer prepares an affidavit, the magistrate issues a search warrant, and the police conduct the search.

    There is nothing wrong with this picture.  This is solid police work.  In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court held that a dog sniff during an otherwise lawful traffic stop does not violate the Fourth Amendment.  The dog alerts only if he detects contraband.  Unlike the thermal imager at issue in Kyllo v. United States, 533 U. S. 27 (2001), the dog does not convey any information about private but lawful activities.  (The dog himself may know that you are eating pizza with anchovies, but he can't tell anyone.)

    The fact that the police are on the publicly accessible porch of a house rather than outside a lawfully stopped car does not change the essential elements on which Caballes is based.  They are lawfully at the lookin' post (or sniffin' post), and they are not using any device that would tell them private information about lawful activities.

    Well, the Florida Supreme Court didn't see it that way in Jardines v. State, SC08-2101.  Today, the US Supreme Court took up the case as Florida v. Jardines, No. 11-564.  The case will probably be argued in April and decided in June.

    The State of Florida is ably represented by our friend and SCOTUS veteran Carolyn Snurkowski.

    Defining Rape

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    Jerry Markon reports in the WaPo:

    The Obama administration on Friday announced a significant expansion of the FBI's definition of rape, which will now cover several forms of sexual assault and include male rape.

    Justice Department officials said that the revision would make reporting of the crime more accurate and would provide a better understanding of its effects on victims.

    Since 1929, rape has been defined as "the carnal knowledge of a female, forcibly and against her will." That definition, which included only men having sex with women without their consent, excluded other forms of sexual assault, such as oral penetration and rape of men.

    The change is valid, IMHO, but there is one downside of changing a definition in statistical surveys that we need to be aware of.  Broadening the definition of a category of crime will cause an increase in the number of crimes reported in the category, even though there has been no actual increase in crimes committed.  Studies done on the data by researchers who are unaware of the change and fail to account for it can potentially mislead us.

    News Scan

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    Obama Admin Eases Deportation Rules: Stephen Dinan of The Washington Times reports the Obama administration Friday proposed new rules that would make it easier for illegal immigrants applying for legal status to stay in the U.S. if they have a spouse or parent living here legally, and would be subject to "hardship" if separated. Department of Homeland Security officials said the goal is to reduce the time that illegal immigrants are separated from their families while awaiting a decision on their application for visas. Under a 1996 law, illegal immigrants are barred from coming back to the U.S. for three to ten years, depending on how long they were in the country illegally. In the fiscal year 2011, U.S. Citizenship and Immigration Services received 23,000 hardship waiver applications and approved about 17,000 of them.     

    First Conviction in U.S. for Organ Transplant Tourism:
    International Medical Travel Journal reports New York resident Rabbi Levy Izhak Rosenbaum pleaded guilty to illegally buying kidneys from live Israeli donors, which were transplanted into three New Jersey residents, becoming the first person in the U.S. to be convicted of selling and trafficking human organs. Rosenbaum's sentencing is set for February 2, 2012.

    CA Supreme Court Mulls Expanding Window for Clergy Abuse Claims: Lisa Leff of the Associated Press reports the California Supreme Court Thursday heard arguments for a case that could allow adults who only recently connected their psychological problems to the abuse they suffered as children to seek damages. The case involves six brothers in their 40s and 50s who alleged they were molested by an Oakland priest in the 1970s, but didn't link it to their chronic distress until 2006. Irwin Zalkin, the brothers' lawyer, urged the court to resist the temptation to deny his clients because of concerns that it would "open the floodgates" to more clergy abuse lawsuits. The state Supreme Court has 90 days to issue its ruling.

    City of Chowchilla to File Legal Challenge Against Prison Conversion: Joshua Emerson Smith of the Merced Sun-Star reports the California city of Chowchilla said Thursday it plans to file a petition for writ of mandate in Madera Superior Court challenging the state prison system's notice of exemption to CEQA in the California Department of Corrections and Rehabilitation's attempt to convert the Valley State Prison for Women into a men's prison. The city hopes the legal action will force prison officials to conduct a formal study under the California Environmental Quality Act of the conversion's impact on the city and county. In December, prison officials stated they would not conduct a study of the conversion under CEQA because the conversion would "simply reorganize inmates" and "not affect the physical environment." Locals fear that the families of male inmates will relocate to the area at a higher rate, overwhelming the city's limited resources.     

    Rmore here: http://www.mercedsunstar.com/2012/01/05/2180047/city-of-chowchilla-to-take-legal.html#storylink=cpy

    Read more here: http://www.mercedsunstar.com/2012/01/05/2180047/city-of-chowchilla-to-take-legal.html#storylink=cpy

    Read more here: http://www.mercedsunstar.com/2012/01/05/2180047/city-of-chowchilla-to-take-legal.html#storylink=cpy

    Read more here: http://www.mercedsunstar.com/2012/01/05/2180047/city-of-chowchilla-to-take-legal.html#storylink=cpy

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    All the Process that was Due

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    One reason it's so hard to get a death sentence carried out is that the system has come to value process over substantive justice.  Cases drag on for years despite the fact that, far more often than not, no rational person seriously believes there is any chance the defendant is factually innocent, or that his crime does not deserve the most severe legal punishment.

    Every defendant deserves due process, obviously; but no defendant is due year after year of niggling appeals, and that's what we have now.

    I thus report, courtesy of my friend John Hinderaker at Powerline, three recent instances in which substantive justice got served right quick. Where government cannot or will not protect its citizens, they will protect themselves  --  a proposition few would doubt.  And when our legal system comes to understand that the death penalty is a form of societal self-protection, as well as a just punishment for sadistic murder, the balance between procedure and substance will shift.

    The story is here.  

    Study on Truth-in-Sentencing

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    Some years back, "truth in sentencing" laws were passed in many jurisdictions to ensure that criminals or a defined subset of criminals actually served all or most of the prison time they were sentenced to.  These laws were and remain controversial.  A new report from Arizona supports the crime-reducing impact of that state's TIS law and of such laws in general.  The full report is over 500 pages and will take some time to digest. The Maricopa County* Attorney has this press release.  Bearing in mind that press releases about studies must always be taken with a grain of salt, here is the first paragraph:

    Arizona has prevented more than a million crimes since 1994 by incarcerating its most dangerous criminals, according to a major research study released today. Titled Prisoners in Arizona: Truth-in-Sentencing, Time Served and Recidivism, the study concludes that Arizona's Truth-in-Sentencing (TIS) laws, which ensure that convicted criminals serve at least 85% of their sentence, led to a 17.7% drop in reported crime over a fifteen year period after TIS laws were enacted in 1994.

    *Phoenix and vicinity, with over half the population of the state.

    Resuming Justice in North Carolina?

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    Wednesday, the North Carolina Senate voted to override Gov. Perdue's veto of the bill to partially fix the badly misnamed Racial Justice Act.  The purpose of the act is to allow murderers to use flimsy statistics-based claims of racial disparity to defeat justice, without any showing that race had anything to do with their own cases.  The statute is so badly drafted that virtually every inmate on death row in the state, regardless of race, can file -- and now has filed -- a claim under the act.  For more on the racial statistics game, see my Engage article and my London mock trial testimony.

    The situation is confused in the NC House right now.  Evidently the votes are lining up very close to the needed 3/5 threshold.  One seat is vacant, and while the Governor is obligated to replace the departed Republican member with the Republican committee's choice, she is stalling the actual appointment.  Craig Jarvis and John Frank have this story in the Charlotte Observer.

    Update: The House has adjourned until February without overriding the veto.

    News Scan

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    First Execution of 2012: The first execution of the new year is scheduled for 6pm tonight in Oklahoma. Gary Welch is on death row for stabbing a man to death in 1994. He has refused to apologize for the slaying. "Gary Welch had a 15-year history of violent crimes that included multiple assaults on women and police officers, burglary, stabbings and carrying concealed weapons before his conviction for murder...  My thoughts are with Robert Hardcastle's family and what they have endured for the past 17 years," Oklahoma Attorney General Scott Pruitt said. The article from Newson6.com and Wire Reports is here. Update: The execution was carried out as scheduled.  Cary Aspinwall has this story in the Tulsa World.

    Arpaio Asks Justice Department for Facts: Jacques Billeaud of the Associated Press reports Joe Arpaio has agreed to take part in discussions with federal officials about ways to correct the alleged civil rights violations in his sheriff's office. Arpaio said first the U.S. Justice Department needs to provide his office with facts to back up its allegations. One of the lawyers representing the sheriff's office, Joseph Popolizio, said in a letter to Justice Department officials that Arpaio was prepared to go to court if federal authorities did not provide the  information to back up their claims. Arpaio's lawyers want the Justice Department to announce whether it will provide the information by January 18.

    NY Governor Urges Mandatory DNA Samples: BREITBART reports New York Governor Andrew Cuomo said Wednesday he will propose a bill requiring the collection of DNA samples from any one convicted of a felony or misdemeanor. Cuomo said numerous crimes currently excluded from mandatory DNA collection "are often precursors to violent offenses."

    Texas Judge Removed From Death Penalty Case: The Associated Press reports District Judge Teresa Hawthorne Tuesday was removed from presiding over a death penalty case after ruling the Texas law allowing executions was unconstitutional. Administrative Judge John Ovard sided with Dallas County prosecutors and removed Hawthorne from the capital murder case of Roderick Harris, who is accused of fatally shooting two men during a robbery and then getting into a shootout with police. Last month Hawthorn ruled that the Texas death penalty was unconstitutional because it allowed prosecutors to arbitrarily seek the death penalty. According to the court transcript, Hawthorne acknowledged that all of the state's appeals courts have "consistently rejected" the reasons she provided for her ruling.    

    Read more here: http://www.star-telegram.com/2012/01/03/3632227/judge-off-case-after-ruling-executions.html#storylink=cpy

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    News Scan

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    Kentucky Releases 1,000 Inmates: Josh Kegley of the Herald-Leader (KY) reports nearly 1,000 state prisoners were granted early release Tuesday in Kentucky as part of a state penal code overhaul that became law in June. House Bill 463 is intended to save $40 million a year in Department of Corrections costs, reinvesting a large chunk of those savings in community supervision and counseling programs. The prisoners released Tuesday will be monitored on parole or probation for the last six months of their sentences. Other changes made under HB 463 are that police may no longer arrest people charged with misdemeanor drug crimes, and instead issue a citation to appear in court. Other misdemeanors such as receiving stolen property, theft under $500, and first- and second-degree criminal trespass are also no longer subject to arrest. Another change made by HB 463 is "bail credit," a provision that knocks $100 off of a person's bond for every day they spend in jail.

    911 Operator Tells Woman It's Okay to Shoot Intruder:
    Kevin Dolak and Ryan Owens of Good Morning America report an Oklahoma woman shot and killed a man trying to break in to her home while she was on the phone with 911. 18-year-old Sarah McKinley was home alone with her 3-month-old son on New Year's Even when two men began trying to break into her home. She grabbed her pistol and shotgun, and asked the 911 dispatcher, "is it okay to shoot him if he comes in this door?" The dispatcher told her, "I can't tell you that you can do that but you do what you have to do to protect your baby." When one of the men kicked in her door and came after her with a knife, McKinley shot and killed him. Police are calling the shooting justified. "You're allowed to shoot an unauthorized person that is in your home. The law provides you the remedy, and sanctions the use of deadly force," said Detective Dan Huff of the Blanchard, OK police.

    California Meets First Inmate Target: Don Thompson of the Associated Press reports prison officials said Tuesday California has met the first inmate population target set by the courts. The state was ordered to reduce the population in state prisons by about 10,000 inmates, to 133,000 inmates, by December 27, 2011. As of last week's court-imposed deadline, the population of the 33 adult prisons was 132,887. Jeffrey Callison, spokesman for the California Department of Corrections and Rehabilitation, said the state plans to file its formal legal declaration with the federal courts later this week.

    Three Strikes in Massachusetts:
    An editorial from The Boston Globe discusses the possible unintended consequences of a "three-strikes" law  being considered by state lawmakers in Massachusetts. The law would deny parole or any sentence reduction to felons convicted three times of any of almost 60 serious felonies, and would increase the amount of time habitual offenders would have to serve before being eligible for parole. In the version that has passed the state Senate, the bill also contains reforms intended to balance out the anticipated increase in the prison population by shrinking drug-free school zones and reducing mandatory minimum sentences for drug possession, with a retroactive effect. Still, the overall effect on the number of Massachusetts prisoners in unclear, and Prisoners' Legal Services estimates that if enacted, the bill would impose up to $125 million a year in extra corrections costs.

    News Scan

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    Lost Transcript Gets Convicted Killer New Trial: Christina Boyle of New York Daily News reports Randy Chaviano, a convicted killer in Florida, will get a new trial because a court stenographer lost the transcript from his murder trial. Stenographer Terlesa Cowart ran out of paper during the criminal trial, so there is no hard copy of the proceedings. She erased the stenography machine's memory disc after transferring the court records to her computer, but a computer virus later wiped everything out. When Chaviano appealed his conviction, lawyers began searching for the transcripts and found that only found one key pretrial hearing and the closing arguments existed. The decision is here.

    2011 Year-End Report on the Federal Judiciary: Lyle Denniston, reporting for SCOTUSblog, has this post about Chief Justice John G. Roberts, Jr.'s year-end report released Saturday. Roberts primarily addressed the question, "Where do federal judges look for guidance in resolving ethics issues?" The report is here.


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