February 2012 Archives

Arizona Joins the Single-Drug Club

The previous two posts discussed the Ninth Circuit's opinions in the Arizona cases.  A separate note is in order regarding Arizona's decision to drop the three-drug protocol and follow Ohio and Washington to the use of the single-drug method.  There is no good reason not to at this point.  The concern that it would take the inmates too long to die has been refuted.  From the Arizona Republic article:

It was the first Arizona execution carried out with a single drug instead of a three-drug cocktail. But result was the same. Execution started at 10:23 and ended at 10:33, roughly the same amount of time that the execution with the three-drug protocol took. Moormann died with a peaceful look on his face.
The focus of litigation for years has been the danger of extreme pain if pancuronium bromide and potassium chloride were injected without insuring the inmate was sufficiently anesthetized.  There is no danger if those drugs are simply eliminated.

States that have not yet switched should do so as soon as their internal procedures will allow.

Arizona's three-drug protocol was upheld in Dickens v. Brewer, 631 F.3d 1139
(CA9 2011), but some changes had been made since.  In Towery v. Brewer, Towery, Moormann, et al. challenged the amended three-drug protocol.  The district court rejected the challenge. On the eve of oral argument, the state discovered its pancuronium bromide, the second drug in the three-drug protocol, had expired.  So Arizona decided to join the one-drug club (with Ohio and Washington), and use pentobarbital only.  Its protocol is drafted to allow the director to make the switch.

The most interesting part of the Ninth Circuit's decision, in my view, is the equal protection discussion beginning on page 19.  The court rejects the notion that strict scrutiny is required.  "A prisoner's right to be free of cruel and unusual punishment, in contrast [to the right to vote in Bush v. Gore], is not affected simply because that prisoner is treated less favorably than another, where one means of execution is no more likely to create a risk of cruel and unusual punishment than the other, and both are constitutionally available."

The court distinguishes the Ohio case.  "The contrast with the litigation surrounding Ohio's lethal injection protocol, invoked by Towery and Moormann in support of their fundamental rights Equal Protection argument, is instructive. In those cases, plaintiffs were able to show an actual pattern of treating prisoners differently in ways that did affect the risk of pain to which they would be subjected, and therefore the risk of being subjected to cruel and unusual punishment....The fundamental rights prong of Equal Protection analysis therefore cannot apply."

I don't think the Ohio plaintiffs actually did show a risk rising to an Eighth Amendment concern.  Simply going to the single-drug protocol eliminates most of the risk of pain that has been litigated over the last several years.

The court goes on to reject the so-called "class of one" argument, which requires that a person be arbitrarily treated differently from all the others with no rational basis for doing so, even in the absence of a suspect classification or a fundamental right.  The practical needs of carrying out an execution, including the varying availability of the various drugs, is a rational basis.

Before rejecting the plaintiffs' arguments, the court did warn Arizona, in strong terms, to stop making changes in its protocol so often and on such short notice.
The Ninth Circuit issued three opinions in Arizona capital cases yesterday: Towery v. Ryan, Moormann v. Schriro, and Towery v. Brewer.

When the US Supreme Court first took up Maples v. Thomas, I was worried that if Maples won lawyers for capital inmates would start routinely shoehorning their garden-variety criticisms of the effectiveness of prior habeas counsel into "abandonment" claims and that some courts might actually buy that.  The first part of that concern has indeed come to pass.  The second hasn't, yet.  In Towery v. Ryan, Towery's prior counsel abandoned on habeas a weak claim that had been rejected by the Arizona Supreme Court.  That is entirely proper.  The US Supreme Court has expressly held in a capital case that winnowing out weak claims to focus on the stronger ones is not only permitted, it is quality advocacy.  The Ninth Circuit does not mention the latter point, but it does hold that leaving out the weak claim is not abandonment, which is sufficient to distinguish MaplesMoormann v. Schriro is similar on the abandonment issue.  Moormann further claimed that he is retarded now, even though he wasn't before.  The Ninth correctly rejects the claim, noting that onset before 18 is a standard condition for a retardation diagnosis, and Arizona is well within its rights to insist on that criterion.

Even though the abandonment claims were rejected, a lot of unnecessary time and resources went into rejecting them.  Congress's strict, and mostly successful, toughening of the successive petition rule is endangered by the creation of new issues to litigate.

I will address the lethal injection claim in the next post.

Moormann was executed 10:23 to 10:33 MST, Michael Kiefer reports for the Arizona Republic.

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Executions in Arizona and Texas Today: Amanda Lee Myers of the Associated Press reports Robert Henry Moormann was executed in Arizona this morning, becoming the first inmate in the state to be executed using a new one-drug method. The execution took place just minutes away from the motel where Moormann killed his 74-year-old adoptive mother. He beat, stabbed, and suffocated her before cutting off her head, legs, and arms. He cut her torso in half and flushed all her fingers down the toilet. He was captured after asking a corrections employee to dispose of what he said were dog bones. The murder prompted Arizona to change its policy on such temporary leaves. In Texas, Michael Graczyk of the Associated Press reports the leader of the fugitive "Texas 7" gang is scheduled to die by lethal injection tonight for killing a police officer on Christmas Eve after organizing the biggest prison break in Texas history. 29-year-old Irving police officer Aubrey Hawkins was shot 11 times and run over with a stolen SUV. At the time of the escape, Rivas was serving 17 life sentences for aggravated kidnapping and aggravated robbery, and another life sentence for burglary. Prosecutors said his criminal record began at age 11, when he molested a 6-year-old relative.

Death Warrant Signed for Florida Serial Killer: Brendan Farrington of the Associated Press reports Florida Governor Rick Scott on Tuesday ordered the execution of serial killer David Alan Gore, scheduled for April 12. Gore was sentenced to death for the rape and murder of a 17-year-old girl in 1983. Gore was on probation at the time, having been released from prison four months earlier after serving time for armed trespassing. Gore and his cousin picked up Lynn Elliott and her 14-year-old friend along the side of a road. Gore pulled his gun on the girls and threatened to kill them before handcuffing them and bringing them to his house. He tied Elliot with rope and handcuffed her friend, then put the girls in separate rooms and raped them. Elliot ran from the house, naked and still bound in rope, and a naked Gore ran after her firing a gun. He caught her and dragged her back towards the house. As she struggled, he threw her to the ground and shot her twice in the head. Investigators found Elliot's body in the trunk of Gore's car in his garage. Her friend was found alive in his attic. He was also given life sentences for raping and dismembering five other women. "He did not care about anybody, he had no remorse, he's admitted it. Should have been gone a long time ago," said Elliott's father.

California State Sen. Proposes Changing Drug Possession to Misdemeanor: Patrick McGreevy of the Los Angeles Times reports California State Senator Mark Leno (D-San Francisco) proposed Monday SB 1506, which would make the possession of certain controlled substances a misdemeanor, with a punishment of no more than one year in county jail. The bill would apply to possession of drugs such cocaine, heroin, and methamphetamine, among others.

Read more here: http://www.miamiherald.com/2012/02/28/2665520/scott-signs-death-warrant-for.html#storylink=cpy

No SCOTUS Crim Action Today

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The US Supreme Court announced only one opinion today, in a civil case.  Still waiting on the very ripe cases of Martinez v. Ryan, on supposedly ineffective counsel on state collateral review, and the Cooper and Frye cases on challenges to effectiveness in earlier plea bargaining when the defendant is subsequently convicted in a fair trial or enters into a fully voluntary and knowing plea bargain.  The oral argument today is a tax case.

Update:  Well, not quite no action.  After the above post was written, the Court posted three orders denying relief to Arizona murderer Robert Moormann.  (See here, here, and here.)  The Ninth Circuit issued three opinions in this case and the Towery case yesterday, which I plan to comment on soon.

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Increasing Number of Inmates With Dementia: Pam Belluck of The New York Times reports dementia in prison is on the rise, and many prisons are unprepared to handle the fast-growing population. While there is no exact count on cognitively impaired inmates, prisoners appear to be more prone to dementia than the general population because they often have more risk factors. New York has established a separate unit for cognitively impaired inmates who are cared for by professional caregivers, which comes with a high price tag. Other states, including Pennsylvania, are giving mental health workers special dementia training. Louisiana and California are taking a less expensive but riskier approach by training fellow prisoners to care for the daily needs of demented inmates.

Riverside and San Diego Counties Releasing Inmates Early: City News Service reports Riverside County Sheriff's officials said they have already had to resort to releasing some low-level offenders early to avoid exceeding maximum capacity in county detention facilities. In the first four months under realignment, Riverside County jails have already reached 95 percent occupancy. Teri Figueroa of North County Times reports San Diego County's jail populations would have been at full capacity by April without local officials employing the tactics of shaving jail sentences and outfitting offenders with GPS bracelets. In May, the department will take the next step in cutting the jail populations by using "alternatives to custody" for lower-level offenders to make room for the more dangerous criminals.

Convicted Sex Offender Caught on Video Violating Parole: Dan Noyes of KGO reports convicted sex offender Scott Herman can be been violating his parole on store surveillance cameras at a Bay Area Walmart. Herman has had half a dozen convictions and parole violations for indecent exposure or annoying/molesting children since 1996.  "In this case, this is a guy who clearly has a problem, cannot control himself and continues to deny, deny, deny," said Chris Weaver, Herman's parole agent. Last year while Christmas shopping at a Dollar Tree in Santa Rosa, a mother caught Herman grabbing himself and leering at her 7-year-old daughter. He only served two and a half months in Sonoma County Jail for this parole violation. Herman had been out of jail for less than two weeks when Weaver tracked Herman through the GPS unit strapped to his ankle and alerted the Walmart store security to train their cameras on Herman, who was in the Valentine's Day aisle. The surveillance video shows Herman following young girls up and down the aisle, thrusting his hips at the girls, hovering over them, and touching his groin area. 

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Federal Inmates to be Allowed MP3 Players: Kevin Johnson of USA Today reports the U.S. Bureau of Prisons is unveiling a project that will allow many federal inmates to carry MP3 players with personalized music lists. The devices will be sold in prison commissaries, and the list of songs inmates can choose from will be monitored to exclude "explicit" tracks. Bureau spokeswoman Traci Billingsley says, "The MP3 program is intended to help inmates deal with issues such as idleness, stress and boredom associated with incarceration." Iowa Senator Chuck Grassley says it is "difficult to see how all of the necessary safeguards can be put into place to stop prisoners from using MP3 players as bargaining chips or other malicious devices." The music program is currently being tested at a women's unit in West Virginia and is expected to expand to the rest of the federal prison system this year.

Arizona Death Row Inmate Denied Clemency: Amanda Lee Meyers of the Associated Press reports Arizona's clemency board on Friday rejected Robert Henry Moormann's request to recommend that Governor Jan Brewer reduce his sentence to life in prison or delay his execution scheduled for this Wednesday. Moormann was serving nine years to life in prison in 1984 for kidnapping an 8-year-old girl when the state granted him a three-day "compassionate furlough" to visit his 74-year-old adoptive mother. Moormann beat, stabbed, and suffocated her before dismembering her body. He then went around to various businesses, asking to dispose of spoiled meat and animal guts, before throwing most of her remains in trash bins and sewers in Florence, AZ. A federal judge on Thursday also declined to delay Moormann's execution and that of another death row inmate, Robert Charles Towery. Towery is scheduled to be executed March 8. Their attorney's had argued that the state's new execution protocol violates the inmates' constitutional protections against cruel and unusual punishment.

California Senator Proposes Changes to State's Death Penalty Law:
Tom Roebuck of Patch reports California State Senator Joel Anderson (R) has introduced two measures to address the lengthy death penalty process in the state. Senate Bill 1514 would remove the automatic appeal to the State Supreme Court for offenders sentenced to death. Senate Constitutional Amendment 20 would amend the California Constitution so that appeals of death penalty cases to go courts of appeal instead of the California Supreme Court.   

Monday at SCOTUS

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The US Supreme Court issued no opinions and took up no new cases today.  The orders list is here.  The Court turned down the Larry Swearingen capital case from Texas.  Howard Roden has this article in the Courier, the local paper for Montgomery County, Texas, on the ongoing forensic science disputes in that case.  It is not surprising that the Court would pass on the thorny question of a freestanding claim of actual innocence in federal habeas corpus, a question it has ducked multiple times, when the facts are being actively litigated in state court.  Indeed, I would be astonished if they took it.  Even so, it was on SCOTUSblog's Petitions to Watch list.

The Court is hearing argument in Wood v. Milyard, a habeas statute of limitations case.  A prior post on this case is here.  A curious aspect of this case is the Court's rewrite of the Questions Presented:

1) Does an appellate court have the authority to raise sua sponte a 28 U.S.C. §2244(d) statute of limitations defense? 2) Does the state's declaration before the district court that it "will not challenge, but [is] not conceding, the timeliness of Wood's habeas petition," amount to a deliberate waiver of any statute of limitations defense the state may have had?
[Revised after argument] "Deliberate waiver" is a high bar.  Congress provided that high standard for the exhaustion requirement, but usually the state's mere failure to raise a procedural defense is sufficient to forfeit it.  The argument discusses "deliberate waiver" as the standard needed before the court cannot raise the defense sua sponte, as opposed to when a party no longer has a right to claim the defense.  The transcript is here.

SCOTUS Practice note:  The petitioner's original QP above the Court's rewrite is an exemplar of how not to write the QP.

News Scan

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California Requiring Judges to Report Sexual Orientation: Daniel Halper of The Weekly Standard reports the Administrative Office of the Courts announced in an internal memo sent to all California judges and justices it is requiring them to report their gender identification and sexual orientation, to make sure there is adequate diversity on the judicial bench. Romunda Price of the AOC wrote in an internal memo, "Providing complete and accurate aggregate demographic data is crucial to garnering continuing legislative support for securing critically needed judgeships."

Nebraska Death Row Inmate Granted Stay: Margery A. Beck of the Associated Press reports the Nebraska Supreme Court on Thursday put on hold the scheduled March 6 execution of Michael Ryan, who was sentenced to death for two 1985 cult-related slayings. Ryan was granted a stay of execution while a district court considers his request to have his sentence commuted to life in prison. Over a three day period in 1985, James Thimm was beaten, sexually abused, shot, stomped, and partially skinned while he was still alive. His fingertips had also been shot off on one hand. Ryan was also convicted of beating to death a 5-year-old boy who was the son of a cult member. A spokeswoman for the Nebraska Attorney General's office said they will review all their options.

New Human Bones Found in Search of Serial Killers' Victims:
Nanette Asimov of the San Francisco Chronicle reports investigators said Thursday they found new human bones in Calaveras County in the search for victims of the so-called Speed Freak Killers Wesley Shermantine and Loren Herzog. San Joaquin County sheriff's investigators had not identified the remains yet, but confirmed they were human. So far, investigators have identified the remains of two victims and found among 1,000 bone fragments. 

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Convicted Murderer Sends Federal Judge Threatening Letter: San Diego News 10 reports a convicted murderer, Eric Anthony Lopez, was found guilty of sending a threatening letter to U.S. District Court Judge Irma Gonzalez. In the letter, Lopez threatened to 'bring death' and 'eliminate' her by introducing her to "Your Grim Reaper 'Old Bacill(u)s Anthracis,' aka Anthrax." Lopez faces a maximum sentence of ten years in prison on the threat conviction. Sentencing is set for May 14.

California Can Force Felony Arrestees to Submit DNA: Paul Elias of the San Francisco Chronicle reports the 9th U.S. Circuit Court of Appeals says California can continue to force all adults arrested for felonies to submit DNA samples. The court said the interests of law enforcement outweigh any privacy concerns raised. The state's DNA database contains more than 1.5 million profiles. The court's decision is here.

Death Sentence Repeal Bill Moving Forward in Connecticut Legislature: JC Reindl of The Day reports a bill that would repeal the death penalty in Connecticut has passed 23-15 in the General Assembly's Judiciary Committee. The wording of the bill only applies to future crimes, replacing execution with life imprisonment without parole. State Rep. Ernest Hewett said passing the bill would result in lawsuits, delaying current death row inmates from facing the death penalty any time soon. State Rep. Steven Mikutel said, "the life of a cold-blooded killer seems to be more valued by these advocates than the innocent murdered, and that is morally wrong." A 2011 Quinnipiac University poll found that 67 percent of registered voters in Connecticut favor the death penalty. Mikutel says legislators should adhere to the wishes of the state's residents over interest groups.

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South Dakota Legislature Approves Limiting Appeals for Condemned Inmates: Tess Fitzgerald of the Associated Press reports the South Dakota House has approved a bill already passed in the state Senate aimed at preventing death row inmates from filing repeated appeals to delay their executions. Under the legislation, in most cases condemned inmates who lost their first appeal could only file one additional appeal.

UK Court Approves Use of Facebook to Serve Legal Claims: Raphael Satter of the Associated Press reports a High Court judge in England approved the use of Facebook for serving legal claims in a case involving two investment managers who have accused a brokerage firm of overcharging them. Justice Nigel Teare, during a pretrial hearing, permitted lawyers in the commercial dispute to serve the suit against the defendant via Facebook. A spokeswoman for the Judicial Office for England and Wales said it was the first time anyone have been served through the popular social networking site "as far as we're aware."

Caller Dies While Police Prepare for Occupy March: Henry K. Lee of the San Francisco Chronicle reports Berkeley police did not dispatch an officer to a man's house after he called to report a trespasser who later beat him to death because they were keeping officers on standby for an Occupy Oakland march headed towards UC Berkeley. 13 minutes after Peter Cukor called police to report a suspicious person hanging around his property, his wife called 911 to report the assault. After walking to a nearby fire station for help, where firefighters were out on a call, Cukor returned home and was allegedly bludgeoned with a knee-high ceramic pot by 23-year-old
Daniel Jordan DeWitt. One of the officers who responded after the 911 call had seen Cukor's initial nonemergency call on his police-cruiser computer while he was about two miles away. He had volunteered to respond two to three minutes before the 911 call, but a dispatcher had reminded the officer that police officials had decided to only respond to high-priority calls that night because of the Occupy Oakland march. In a statement Tuesday, police Lt. Andrew Greenwood confirmed "only criminal, in-progress emergency calls were to be dispatched, due to the reduction in officers available to handle calls for service" as a result of the march. Greenwood said Cukor's first call was logged as a suspicious-person report and was "queued for dispatch." Those types of calls are usually quickly given to an officer, and if handled promptly, sources say an officer probably would have arrived within 10 minutes.

Open Season on Californians' Cars

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Gov. Jerry Brown's prison "realignment" program has effectively declared open season on the cars of law-abiding Californians.  The criminals know very well that offenses classified as "non-violent, non-serious, non-sex" will draw minimal jail time, if any, making them effectively decriminalized, at least for the first offense.

The latest example comes from Redding, at the north end of California's Central Valley.  Colin Lygren reports for KHSL:

A Redding man is back behind bars after being arrested twice in one day, for two separate crimes. Officers arrested Nolan Telles early yesterday morning for burglarizing a truck behind the Oxford Suites on Hilltop Drive. He was taken to jail and quickly released.

Police say Telles then stole a car from the parking lot of the YMCA on Court Street.

Stolen Valor Act Argument Transcript

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The transcript of oral argument in United States v. Alvarez is now available here.  Both sides received some intense questioning from some of the same Justices.

Justice Kennedy does not buy the argument that lies are completely unprotected except for "breathing space" limitations.  However, he seems inclined to uphold the act on narrower grounds, if he can find some.

The defense side argument that medal frauds harm no one appears to be a nonstarter.  Justice Sotomayor notes the outrage of legitimate medal winners.  Justice Breyer notes that the Court upheld protection of the Olympic Committee's monopoly on the word Olympics, a matter of considerably lesser moment, and says, "All right. So I'm just saying in my mind there is real harm, and there is real harm and yet I can think of instances where we do want to protect false information."

The most important exchange may be this one:

6-3 Decisions in Criminal Cases

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Here is an interesting little tidbit for SCOTUS-watchers.  The high court decided four criminal or crime-related cases this week.  In all four, six Justices joined the majority opinion in full, ruling for the law enforcement side, and three Justices dissented all or in part.  However, the lineup varied.  Of the four Justices mostly dissenting in these cases, we see different ones joining the majority in individual cases.

In all four cases, Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito are in the majority.  In all four, Justice Ginsburg dissents, at least in part.  Then the vote varies:

Howes v. Fields:  Justice Kagan joins the majority on the Miranda merits question.  (The decision was unanimous on the AEDPA deference question.)

Kawashima v. Holder:  Justice Sotomayor joins the majority on the interpretation of Congress's badly written definition of "aggravated felony" for deportation purposes.

Wetzel v. Lambert:  Justice Sotomayor joins the majority on deference to the state court holding supported by more than one independent ground.

Messerschmidt v. Millender:  Justice Breyer joins the majority in full on a search warrant shielding officers from civil liability for a search.  (Justice Kagan concurred in part and dissented in part.)

These are all relatively minor cases, as Supreme Court precedents go.  The fact that they are all 6-3 or better is encouraging, though.  Nothing is hanging by a one-vote thread.

Search Warrants and Civil Liability

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The US Supreme Court decided three cases today, one of which is a crime-related civil suit, Messerschmidt v. Millender.  This decision confirms that getting a search warrant provides a police officer with strong protection against civil liability if the search is later deemed unreasonable.  The protection is not absolute.  The Court has "recognized an exception allowing suit when 'it is obvious that no reasonably competent officer would have concluded that a warrant should issue.' ... Our precedents make clear, however, that the threshold for establishing this exception is a high one, and it should be."  The decision is 6-1-2.  Opinion of the Court by Chief Justice Roberts with Justice Kagan concurring in part and dissenting in part and Justices Sotomayor and Ginsburg dissenting.

§2254(d) and Multi-Element Claims

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A further note on Wetzel v. Lambert, decided today by the US Supreme Court and noted earlier in this post.  The most controversial and bitterly resisted part of the Antiterrorism and Effective Death Penalty Act of 1996 is the prohibition against granting habeas relief on a claim denied on the merits in state court "unless the adjudication of the claim-- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States...."

How does this apply to precedents where the petitioner must establish more than one element -- clear more than one hurdle, you might say -- to prevail?  Two of the most common claims of this type are ineffective assistance of counsel and nondisclosure of exculpatory evidence.

Strickland v. Washington expressly authorizes courts to stop when they have decided the defendant cannot clear one of the two hurdles.  In Wiggins v. Smith, 539 U.S. 510 (2003), the state court did just that.  It decided that counsel had performed adequately and so did not go on to analyze prejudice.  The Supreme Court decided that the performance analysis was unreasonable and then proceeded to an independent analysis of the prejudice prong, as there was no state court decision on this point.

Last term in Harrington v. Richter, the Court dealt with a summary dismissal of an ineffectiveness claim, with no statement of reasons.  The Court held that federal habeas relief could not be granted unless rejection of the claim would be unreasonable on both prongs.  It is odd that the unexplained decision in Richter received what amounts to greater deference than the explained decision in Wiggins.  The defense bar rails against Richter, but I still think Wiggins was wrongly decided.

And what if the state court expressly rejects the claim on more than one element?  The decision stands if it is reasonable on either element.  Under the Brady disclosure rule, the prosecution must disclose information that is both exculpatory and material.  If defendant cannot clear either hurdle, he has no claim.  A decision correct on one ground is correct, even if it is erroneous on the other.  Similarly, a decision that is reasonable on one ground is reasonable, regardless of what is says on the other.  The burden of retrying the defendant "should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA."  (Emphasis in original.)

I think this follows pretty clearly from Richter, but it's good to have it explicitly stated.  Thanks to Hashim Mooppan for raising this point.

What's the Excuse This Time?

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Michigan does not have the death penalty.  Time to get one.

I admit that it might be tiresome for me to continue posting about particular cases that cry out for capital punishment.  But I do it for a reason:  Our opponents are relentless in their campaign.  They have a barrel full reasons to end the death penalty.  It costs too much (because they drive up its costs).  It takes too long (because they spend years filing frivolous motions).  It provides no closure (as if there could ever be closure).  It won't bring back the victim (but incarceration will?).  LWOP will do as well (even though it doesn't).  We're executing the innocent (actual proof optional).

If you don't have a case, at least you can have persistence.  Abolitionists do, in spades, and we had best match them.  The race does not necessarily go to those with strength.  In public policy especially, it goes to those with stamina.

News Scan

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Jail Violence Increases in Fresno County: "Our inmates have more violent histories," Fresno County Sheriff Margaret Mims said. "Before, they would have moved on to prison. Now they're staying here." Mims also said jail inmates, especially offenders awaiting sentencing, know there's a lesser chance of going to prison now, so they have a more reckless mindset. Assistant Sheriff Tom Gattie said the jail population now has more gang involvement and criminal sophistication. "Our inmates have more violent histories," Mims said. "Before, they would have moved on to prison. Now they're staying here."

Occupy Movement Takes Up Prison Reform: Chip Johnson of the San Francisco Chronicle says a new branch of the Occupy movement calling for prison reform, Occupy 4 Prisons, misses the point of incarceration - a valid form of punishment in any society, he says. Johnson reminds readers that some inmates have forfeited their freedom due to their crimes and for some, there is no acceptable re-entry plan. His article is here. John Wildermuth of the San Francisco Chronicle reports as many as 700 Occupy demonstrators gathered outside San Quentin State Prison Monday to call for prison reform. It was one of about 15 protests taking place at prisons that day.

Suspect Says He Was Visited by an Angel and Demon Before Murdering Man: Greg Bluestein of the Associated Press reports
Hemy Neuman, charged with murdering a man who had just dropped his 2-year-old off at preschool, says he was visited by a demon who sounded like Barry White and an angel who looked like Olivia Newton-John before shooting and killing Russell Sneiderman. Newman claims the angel told him to kill Sneiderman and raise his two children as his own.

Reamore here: http://www.fresnobee.com/2012/02/19/2729036/fresno-county-jail-clashes-blamed.html#storylink=cpy

Read more here: http://www.fresnobee.com/2012/02/19/2729036/fresno-county-jail-clashes-blamed.html#storylink=cpy

Read more here: http://www.fresnobee.com/2012/02/19/2729036/fresno-county-jail-clashes-blamed.html#storylink=cpy

Prison Inmates and Miranda

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Speaking of AEDPA and circuits divisible by three, today's US Supreme Court's decision in Howes v. Fields begins:

The United States Court of Appeals for the Sixth Circuit held that our precedents clearly establish that a prisoner is in custody within the meaning of Miranda v. Arizona, 384 U. S. 436 (1966), if the prisoner is taken aside and questioned about events that occurred outside the prison walls. Our decisions, however, do not clearly establish such a rule, and therefore the Court of Appeals erred in holding that this rule provides a permissible basis for federal habeas relief under the relevant provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1).

Once upon a time, the argument that Mathis v. United States, 391 U. S. 1 (1968), establishes such a rule would have been a strong one.  It is a typical Hugo Black opinion, short and sweeping, strongly implying that any kind of custody triggers the Miranda requirements.  But then Illinois v. Perkins, 496 U. S. 292 (1990) declined to apply the custody requirement that literally.  In its 2010 decision in Maryland v. Shatzer, the Court held that time spent in the general prison population may constitute a "break in custody" for the purpose of the Edwards "don't ask again" rule, a result inconsistent with the straightforward application of Mathis.

Today the Court held, unanimously, that the rule applied by the Sixth Circuit is not clearly established by the Supreme Court's precedents, reinstating the conviction of a prisoner questioned within prison.  The Court could have stopped there, but six Justices went on to hold that Miranda was inapplicable in the circumstances of this interrogation.  Justice Ginsburg, joined by Justices Breyer and Sotomayor, dissented from this holding.  "Were the case here on direct review, I would vote to hold that Miranda precludes the State's introduction of Fields's confession as evidence against him."

But of course it is not on direct review, so is the split part of the opinion binding precedent or nonbinding dictum?  It is precedent, in my opinion.  AEDPA says that a federal court cannot grant relief if the state court decision on the merits is unreasonable.  It does not say that a federal court cannot deny relief on the ground that the claim is without merit, i.e., that the state court is not just reasonable, but right.  The Supreme Court's decision of the merits without regard to AEDPA is therefore an alternative holding, not dictum, and binding on all other courts.

In most cases in the lower federal courts, the more efficient way to dispose of a case is to find the state court's decision reasonable and stop.  But the Supreme Court's job is to establish clear precedents for other courts to follow, not just to efficiently decide the specific case before it.  With either course permitted by law, the preferred course for the Supreme Court may be different than for the lower federal courts.

Brady and AEDPA

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Under the rule of Brady v. Maryland, 373 U. S. 83 (1963), the prosecution is required to disclose material exculpatory information in its possession to the defense.  In many cases, though, the question of what is "material" is very much a matter opinion. In the Antiterrorism and Effective Death Penalty Act of 1996, Congress limited the power of the lower federal courts to overturn state judgments on habeas corpus to correcting clearly wrong state-court decisions.  (The Supreme Court can still review them de novo on writ of certiorari.)

Some federal courts chafe at this restriction, and correcting their overreaching continues to occupy an undue portion of the Supreme Court's docket.  Today, the Court once again summarily overturned a decision of a circuit divisible by three for failure to observe this limitation.

In Wetzel v. Lambert, the Pennsylvania Supreme Court unanimously decided that an ambiguous notation on a police activity sheet regarding a suspect's identification of a "co-defendant" was not material.  Not only was the notation ambiguous, but its use as impeachment would have been cumulative to other substantial impeachment.  This is the typical close Brady question on which reasonable people can and do differ.

The Federal District Court held that the Pennsylvania Supreme Court decision was reasonable and denied habeas relief.  The Third Circuit held that one of the state court's grounds, the  cumulative nature of the impeachment, was unreasonable and simply ignored the other ground, the ambiguous nature of the notation.  "The failure of the Third Circuit even to address the 'ambiguous' nature of the notations, and the 'speculat[ive]' nature of Lambert's reading of them, is especially surprising, given that this was the basis of the District Court ruling."

Today, the US Supreme Court reversed 6-3 and sent the case back.  The scope of the reversal is limited, though.  The Court does not hold that either basis of the Pennsylvania Supreme Court ruling is reasonable, but only that the Third Circuit must address them both.

Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prosecution.  That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA.
Justice Breyer dissents, joined by Justices Ginsburg and Kagan.

Update:  A later post on the multi-element aspect of this decision is here.
No.  Cheryl W. Thompson has this story in the WaPo.

But an examination of District homicides found that the department's closure rate is a statistical mishmash that makes things seem much better than they are. The District had 108 homicides last year, police records show. A 94 percent closure rate would mean that detectives solved 102 of them. But only 62 were solved as of year's end, for a true closure rate of 57 percent, according to records reviewed by The Post.

D.C. police achieved the high closure rate last year by including about 40 cases from other years that were closed in 2011.

Similar problems arise in many contexts when we insist on shoehorning things into a single calendar year that don't really fit in one year.  That is one of the things that make income tax law so complex, for example.

If homicide rates were steady, the ones unsolved this year and solved later might roughly balance out those committed in prior years and solved in this one.  But homicide rates have generally declined in most cities, including D.C., so the pool of unsolved cases from prior years is proportionately larger than the unsolved cases from the year just ended.

In the end, there is no way to come up with a single "closure rate" number for a single year.  Reality is messier than that.

Hawaii Prison Murder, Part II


Kent's post about the two previously convicted killers who knifed to death (with 140 stab wounds) a fellow inmate recalls one of the strongest arguments against abolition of the death penalty:  If you don't execute a cold-blooded, violent killer after his first go-round, he'll be there to do it again.  The frequency with which these second-chance murders get committed never seems to get a story in the New York Times, but failure to cover reality does not make it less real.

Not three weeks ago, I wrote about a similar episode.  The point of my post was to show how potent this argument is in death penalty debates.  I noted that, in such a debate on Sentencng Law and Policy, a dozen abolitionists chimed in, and every one of them refused even to discuss this scenario.

Abolitionists ceaselessly contend that, because the death penalty is a human institution, there is an inescapable risk that, at some point, we are going to execute an innocent person.  This is one of the things they say that's actually true (if remote).  It is thus more than fair, and very valuable, to force them to confront the fact that the failure to use the death penalty has produced, not just the possiblility, but the demonstrated fact, of sacrificing the lives of the innocent, and has done so again and again.

Should the Government Stop "Sting" Operations?


The defense bar and "civil rights" groups have been complaining for years about the government's use of "sting" operations.  Typically such operations are used to catch drug pushers; the pusher thinks he's selling to your garden variety addict, who instead turns out to be a DEA or FBI undercover agent.

The characteristic objection to sting operations is that the govenrnment shouldn't be using stealth and deceit.  Often the objections are bound up with more general complaints about the fact that drugs are illegal at all.  One often hears as well the criticism that stings are entrapment.

In an ideal world,  I too would have heartburn about the government's using deceit.  But an ideal world doesn't contain the sorts of people I spent years dealing with in the US Attorney's Office.

In particular, it doesn't contain folks like this, who, very fortunately, was arrested today as a result of a sting.  Perhaps those up in arms about operations like this will reconsider, although I concede that this is more likely to happen if they had been planning a trip to the Capitol Visitor Center.

Hawaii Prison Murder

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How does a state with no death penalty punish a life-sentenced murderer who commits another murder within prison?  That has always been a strong argument for the death penalty.  The U.S. Supreme Court, for a time, even held this situation out as a possible exception to its ban on mandatory death sentences.

Hawaii may have inadvertently stumbled on to an answer.  You put your gangster thugs in a privately operated prison in a state that does have the death penalty.  Jim Dooley has this story for the Hawaii Reporter.

News Scan

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Decision on Utah's Immigration Law Delayed: Josh Loftin of ABC News reports U.S. District Judge Clark Waddoups said Friday he will decide in a few days whether to rule on the constitutionality of Utah's immigration enforcement law or keep the temporary injunction issued 8 months ago in place until after courts rule on a similar law in Arizona. Utah's version would allow police to check the citizenship of anyone they arrest in cases involving a felony or class-A misdemeanor. Utah Assistant Attorney General Barry Laurence argues Utah's law simply reflects existing federal law, but U.S. Justice Department attorney Josh Wilkenfeld argues that the law is attempting to trump federal law.

16 Offenders Pardoned by Barbour Were Rejected by the Mississippi Parole Board: The Associated Press reports Haley Barbour issued full pardons in his final days as governor for 16 inmates whose requests for pardons were rejected by the Mississippi Parole Board. State Rep. Cecil Brown of Jackson (D) requested the Joint Legislative Committee on Performance Evaluation and Expenditure Review (PEER) examine Barbour's pardons. The 16 offenders had been convicted of crimes ranging from methamphetamine possession to murder. Furthermore, 13 of the 16 cases received unanimous votes from the Parole Board rejecting the inmates' requests for pardons. A change is being sought in the state to limit gubernatorial pardon power to require that governors follow Parole Board recommendations. Rep. David Baria (D) also wants to ban governors from issuing pardons during their last 90 days in office.

DNA Samples From Felony Suspects Lead to 132 Arrests in Ohio: Jessica Heffner from Springfield News-Sun reports a new program requiring DNA samples from anyone arrested for a felony in Ohio has led to 132 arrests in cold cases including rapes, murders, robberies, and burglaries. Since Senate Bill 77 went into effect July 1, 2011, the lab has processed 63 percent more DNA samples, and connected those samples to an average of 127 cases per month. With over 10 million samples in CODIS, many more arrests are expected to follow. Furthermore, proposed Ohio Senate Bill 268 would allow DNA to be collected from those charged with a felony but not arrested. This includes those summoned to court. The bill would also allow the retroactive collection of DNA from people arrested for a felony prior to July 1, 2011. That bill was passed unanimously by the Ohio Senate, and is now in the state House of Representatives.

State Appeals Court Rules NY Parole Procedure Unconstitutional:
Joseph Ax of Reuters reports a state appeals court ruled unanimously Tuesday that New York's parole procedure is invalid and violates state and constitutional law. The procedure allows a unilateral overruling of the hearing officer's decision by a single member of the state parole board in cases in which the parolee was convicted of homicide, sex crimes, or kidnapping. The five-judge panel held that the parole procedure is in conflict with the purpose of the underlying state statute. The court said the legislature intended for hearing officers to have the final say on the amount of time between a parole violation and possible re-release. The state attorney general's office said it had not yet reviewed the decision. 

Missing-Person Inquiries Stem From Excavation of Serial Killers' Burial Sites:
Emmett Berg from Reuters reports that after five days of excavation, nearly 1,000 human bone fragments have been recovered in the first of five burial sites identified by Wesley Shermantine, one of the so-called Speed Freak Killers. A telephone hot-line was set up by investigators assigned to the case, which has led to roughly 65 queries about missing persons who callers fear may have been victims of Shermantine and Loren Herzog. Deputy Les Garcia, a spokesman for the San Joaquin County Sheriff, said there was no way of knowing yet how many victims might be found at the sites. 

SCOTUS Today and Next Week

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Today is conference day at the US Supreme Court.  The Court released a short orders list regarding amici curiae participating in argument next week.  (USSG yes, Michigan no.)  A longer orders list of the cases taken up and passed on will be issued Tuesday.  Wetzel v. Lambert, a capital case from Pennsylvania, is on the conference list for the eleventh time, which probably means a summary reversal opinion is being drafted, but the Court is having a hard time with it.  There are no other criminal or habeas cases for this conference on SCOTUSblog's Petitions to Watch list, although there are some civil rights cases on excessive force and publications in prison.  Update: Yesterday SCOTUSblog updated the list to include Warner v. Ocampo, a Washington case in which the State claims that our favorite circuit has once again exceeded the limits of AEDPA, this time on a Confrontation Clause issue.

The Cert Pool has the full conference list here.  There are 11 capital habeas cases where the inmate is the certiorari petitioner and the lower court is a federal court of appeals.  These are generally the cases where all the normal reviews have been completed and execution is a realistic possibility in the coming months.

Monday is a federal holiday, Washington's Birthday.  No, it is not "Presidents' Day."*

Tuesday, as noted above, the orders list will be released.  Opinions in cases decided summarily may be announced also.  Two civil cases are set for argument.

Wednesday, Washington's real birthday, features arguments in two criminal cases.  United States v. Alvarez is the Stolen Valor Act case.  CJLF's press release is here.  Our brief on behalf of the Legion of Valor as well as CJLF is here.

Also up Wednesday is Blueford v. Arkansas, dealing with the Double Jeopardy Clause, partial verdicts, and lesser-included offenses.

Opinions in argued cases may be issued Wednesday.  Martinez v. Ryan, on counsel in state habeas proceedings, is very ripe.  The Cooper and Frye cases on effective assistance and plea bargaining are also possibilities.

Underpants Bomber Gets LWOP

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Umar Farouk Abdulmutallab, the fellow who attempted to blow up an airliner flying into Detroit on Christmas day 2009, was sentenced to LWOP in federal court today.

There is much to be said about this case, from the Administration's bungling of the initial interrogation to its related changing and incoherent policies about inviting terrorists to clam up giving Miranda warnings to terror suspects.

For the moment, I just want to highlight two gems from today's story

In his court statement Thursday, according to NBC station WDIV of Detroit, Abdulmutallab praised Allah and ranted that his life and the life of Muslims has changed. He said al-Qaida leader Osama bin Laden and other terrorists the government says were killed are alive.

He called his sentencing hearing a day of victory and claimed U.S. attorneys on his case intentionally misquoted him and mishandled his case "to achieve their Hebrew goals." He said the Jews need to be "ripped out of Palestine ... the capital of the Muslim world."

Wow.  This makes me really happy that we have an effective policy to contain the world's leading terror state, Iran.  That is.........uh.............well..........never mind.

Anyway, Abdulmutallab's appointed legal assistant chimed in as well:

Anthony Chambers, an attorney appointed to assist Abdulmutallab, had urged Edmunds to declare that a mandatory life sentence is unconstitutional, claiming it is a cruel punishment in a case where no one but Abdulmutallab was physically hurt. His groin was badly burned.

As if our hero would have gotten anything other than LWOP anyway.

David Fahrenthold has this story in the WaPo on Mitt Romney as "severely conservative" governor of Massachusetts.  (That was an unfortunate choice of words that I suspect Romney regrets.)  Regarding Romney's attempt to reinstate the death penalty in Massachusetts, Fahrenthold says:

Romney worked especially hard on that last promise -- and, in the process, provided the case study of his measured, technocratic approach.

Romney didn't propose the most conservative kind of capital-punishment statute. Instead, he proposed a law so compromised that people wondered whether it would ever even be used.

Romney's bill would have allowed the death penalty only for a narrow range of especially horrific crimes. And it would have required a whole new standard of proof that went beyond the usual "beyond a reasonable doubt." Death sentences could be given only when there was "no doubt" at all.

I had a different take on it, which I told Fahrenthold on the phone.  Politics is the art of the possible.  Romney was fighting an uphill battle in a very liberal state, and he proposed the law he thought he had a shot of getting through.  Any death penalty law at all is very conservative in Massachusetts.  His proposal would not have been conservative in Texas, but that is like comparing jalapenos and cranberries.

My comment didn't make the cut.  Why is "left as an exercise for the reader," as my old physics textbooks said.

News Scan

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Over 1,000 Old Detroit Rape Kits to be Tested: Corey Williams from the San Francisco Chronicle reports that more than 1,000 rape kits going back to the 1980s found in a Detroit police property storage facility are being reviewed by State police, Detroit police, the Wayne County prosecutor's office, and researchers at Michigan State University to determine which could lead to arrests. DNA testing will be conducted in an outside lab. DNA found in the kits that do not belong to victims will be loaded into the FBI's Combined DNA Index System (CODIS) to search for matches that could lead to arrests.

California Privacy Laws Keep Police From Knowing Names of Released Offenders: Kate McGinty from The Desert Sun reports current state privacy laws were overlooked by California lawmakers when they enacted the state's realignment legislation. State privacy laws prevent probation agents, who will now monitor most offenders after they are released from prison, from giving out the names of those back in the community to local police. Sheriff Stan Sniff Jr. said his department has relied on crime pattern analysts to help fill in the lack of information. "When they inflicted this AB 109 on us, they did not think it through," Sniff said.

First Racial Justice Act Case Comes to a Close: Ashby Jones from the Wall Street Journal reports Cumberland County Judge Gregory A. Weeks heard closing arguments Wednesday as to whether race played an improper role in the death penalty conviction of Marcus Raymond Robinson in the first case tried under North Carolina's Racial Justice Act. Robinson was convicted in 1994 of murdering a 17 year-old white male during a robbery. Under the state's Racial Justice Act, enacted in 2009, there is no requirement that a defendant prove bias took place in his case specifically. An inmate only needs to prove, with statistics, that race was a significant factor in the prosecutors' and jurors' decisions concerning the death penalty "in the county, the prosecutorial district, the judicial district, or the State at the time the death sentence was sought or imposed." Judge Weeks' decision is expected to come in the next few weeks.

ACLU Hiring Realignment "Watchdogs": The San Diego and Imperial Counties chapter of the ACLU in California has hired a watchdog to "keep an eye" on how the changes realignment have brought are being implemented, and to oversee criminal justice and drug policies. The story by Teri Figueroa of North County Times is here.  

How Distrust Gets Created

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One of the most infuriating things about the Complacency about Crime Smart on Crime crowd is that they build on their own untrustworthiness while in power to argue, once out of power, that those in power cannot be trusted!  It's as cynical and corrosive a strategy as one can imagine, but it works, and they have become masters at pulling it off.

Case in point:  Fast and Furious.  As John Hinderaker writes:

Congressman Darrell Issa delivered one of the more devastating letters I have ever read to Attorney General Eric Holder. Issa's letter, which you can read here, documents the Department of Justice's efforts to obstruct Congress's investigation of the Fast and Furious scandal. It is impossible to read Issa's letter without concluding that Holder has deliberately obstructed the investigation through a combination of lies, foot-dragging, hiding witnesses, and so on.

Although the Department's shell game on Fast and Furious is a major story in and of itself (not to mention the underlying scandal of furnishing guns to violent drug gangs), that's not my primary point.  The main thing to remember is that, once the current group at DOJ gets ousted, it won't take them a New York minute to wind up at a hundred different ACLU symposia to speak with furrowed brow about, "Can We Trust DOJ?" or "Who's Watching The People Watching Us?" or some such thing.  In other words, the very people who brought law enforcement into disrepute will, without missing a beat, use their own failings to undermine the efforts of their successors to restore the hard-won confidence they squandered.

News Scan

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New York City Spree Killer Gets Additional 25 Years: The Associated Press reports Maksim Gelman will get an additional 25 years added to his 200 year sentence in prison for a stabbing and carjacking killing spree which claimed four lives. After an argument with his mother over using her car, Gelman proceeded to kill his stepfather, a woman who Gelman was reportedly obsessed with, the woman's mother, and a pedestrian Gelman ran over. The additional sentence is for slashing a Manhattan subway passenger, who survived and helped knock Gelman down before police arrested him.

Missouri Lawmaker Seeks Death Penalty Audit: The Associated Press reports Missouri State Senator Joe Keaveny filed a bill seeking an audit on death penalty costs within the state. The audit would compare the costs of the death penalty to that of life in prison without parole. According to Keaveny, the goal is to determine the cost of the death penalty and not to analyze the effectiveness of capital punishment as a deterrent to crime. This would be the first such audit in Missouri.

South Carolina Considers Death Penalty in Home Invasion Cases:
Sean Maginnis from WMBF News reports South Carolina state lawmakers are considering a bill that would add home invaders responsible for a murder to be eligible for the death penalty. Currently, criminals convicted of burglary, armed robbery, or kidnapping charges combined with murder are eligible for a death sentence. The bill would have a minimal impact on statutes already in place, but could provide prosecutors an additional tool for pursuing sentences. It would also potentially increase the length of home invasion crime penalties. Several versions of the bill are currently being considered.

Fugitive Calls Sheriff for Help After Running Out of Gas: The Associated Press reports Richard Vincent, 59, wanted in Georgia for violating parole on a murder and escape conviction, called the local sheriff's office for roadside assistance when he ran out of gas in Wyoming. The state troopers that were sent out took Vincent into custody when they realized he had an outstanding felony warrant. He is now being held for Georgia authorities pending extradition. 

Read more here: http://www.bnd.com/2012/02/15/2059015/mo-lawmaker-wants-audit-for-using.html#storylink=cpy
Deborah Kammerer, 29, was raped and murdered in 1980.  The killer then dragged her into Tampa Bay.  It didn't need to happen.  Robert Waterhouse had previously been convicted of murdering a 77-year-old woman in Long Island during a burglary.  He was paroled after only 8 years.

Waterhouse has been sentenced to death twice for his second murder.  Mitch Stacy has this story for AP.

The US Supreme Court this morning denied a stay of execution.  No dissents are noted.

Update:  The execution was held up for two hours while SCOTUS considered and denied a second petition.  Again, no dissents are noted.  Mitch Stacy has this post-execution story for AP.

News Scan

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Female Travelers Targeted by TSA Workers: Paul Joseph Watson of Infowars.com reports an investigation by CBS 11 News found that female passengers are being targeted by TSA workers who are using body scanners to sexually harass women. One woman in Texas was forced to go through the body scanner three times after a female TSA screener asked her if she played tennis because she had a "cute" figure. The woman could hear the screener talking on her microphone to male TSA agents. After the third time she was forced to go through the body scanner, the men tried to say that the image was blurry, but the screener ended the ordeal and let the woman go. The investigation prompted New York Senator Charles Schumer to introduce legislation that would mandate every airport in the country to have a TSA-provided "passenger advocate" on duty at all times to respond to complaints. Critics say this position will likely just be filled by TSA workers, who have already proven they are not suitable candidates for the job. 

Death Row Inmates Challenge FDA: Tom Schoenberg of Bloomberg reports 21 death row inmates asked U.S. District Judge Richard Leon Thursday to order the Food and Drug Administration to block the future importation of sodium thiopental, a drug administered in executions in some states, and remove the supplies already in the possession of state governments. The inmates claim the FDA violated the law by allowing state departments of corrections to import the drug. The Justice Department urged Leon to dismiss the case, arguing the FDA's enforcement decisions cannot be challenged in court. Leon did not say when he would decide the case.

Soros Gives $500,000 to Three-Strikes Initiative:
Nicholas Riccardi of the Los Angeles Times reports billionaire George Soros, a longtime supporter of liberal causes and non-California resident, donated $500,000 on January 30 to help finance a potential ballot measure that would weaken the three-strikes law in California. That same day, one of the measure's co-authors, Stanford law professor David Mills, gave $250,000 to the campaign. Mills is currently the largest contributor to the effort, with a contribution total that is is now $603,000.

Putting Condemned Murderers to Sleep

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Not permanently, unfortunately.  KCBS (SF) has this story, headlined "California Taxpayers Fund Sleep Treatment For Death Row Inmates."

SAN QUENTIN (CBS 5) -- One out of every four Californians has no medical insurance. But $2 billion in taxpayer money is being spent each year to provide medical care to California's prisoners.

Take the case of San Quentin prison. The state built a brand new $136 million hospital at the prison for some of the state's worst offenders. But why were some inmates, including those on death row, being sent to outside hospitals for sleep studies?

See also the comment from "Frustrated RN" below the story.

Today we have more shenanigans from the U.S. Justice Department to delay and obstruct the "fast track" for federal review of state death penalty cases.

For background on the fast track law and the regulations, see this post and this post.

The comment period on the proposed regulations ended June 1, 2011.  Given that most of the adverse comments were either (1) completely irrelevant spam attacking the death penalty generally, or (2) requests for USDoJ to impose additional requirements for qualification beyond those specified by Congress, the comments should have been quickly rejected and the regulations promptly finalized.  Congress expressly and unequivocally forbade the imposition of additional requirements in 28 U.S.C. §2265(a)(3):  "There are no requirements for certification or for application of this chapter other than those expressly stated in this chapter."  How clear can you get?

Today, USDoJ published this notice, requesting further comment on three proposed changes.  Two of the proposals are patently illegal.  Proposed Change 3 is to resurrect a requirement of timeliness in appointments, precisely the judicial rewriting of the prior statute that §2265(a)(3) was enacted to abrogate.  Proposed Change 5 would sunset certifications after 5 years, requiring states to start over.  Congress provided that Chapter 154 shall apply if the state has adopted the qualifying mechanism and the AG so certifies.  The adoption is a single event, and from that point on the chapter shall apply.  What part of "shall" do you not understand?

The other proposed changes are also invalid, in my view.  I will get into them in more detail when I prepare CJLF's comments on these proposals.

Ideally, Congress should put a line in an appropriate bill saying the December 2008 regulations are effective immediately and all subsequent notices are void.

Justice Breyer Robbed

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AP reports:

Justice Stephen Breyer was robbed last week by a machete-wielding intruder at his vacation home in the West Indies, a Supreme Court spokeswoman said Monday.

The 73-year-old Breyer, wife Joanna and guests were confronted by the robber around 9 p.m. EST Thursday in the home Breyer owns on the Caribbean island of Nevis, spokeswoman Kathy Arberg said. The intruder took about $1,000 in cash and no one was hurt, Arberg said.

News Scan

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Serial Killer Leads Officials to Hundreds of Human Bone Fragments: Sam Stanton of The Sacramento Bee reports authorities discovered 300 human bone fragments on the fourth consecutive day of searching for possible victims of two California serial killers. The search for victims of Loren Herzog and Wesley Shermantine, the so-called "Speed Freak Killers" believed to have killed over a dozen people in the 1980s and 1990s, is expected to continue today. On Thursday, a skull was found in Calaveras County that was identified as that of Cyndi Vanderheiden, who disappeared in 1998. Another skull was found at a different burial site in Calaveras County Friday that is believed to be that of Chevelle "Chevy" Wheeler, a 16-year-old who disappeared in 1985. Shermantine has supposedly indicated that there may be up to a dozen victims at the site. He recently provided a map to Stockton Record reporter Scott Smith that authorities have been using to locate burial sites. Herzog killed himself last month, and Shermantine, who is on death row, now says that all the killings were all done by Herzog.

New Statute on Maryland's Death Penalty Tested: Andrea F. Siegel of The Baltimore Sun reports the sentencing of Lee Edward Stephens this week will be the first time under Maryland's new death penalty law that prosecutors must establish whether the DNA evidence "links the defendant to the act of murder." Stephens was convicted last week of first-degree murder for fatally stabbing a correctional officer. Stephens was in prison, serving a sentence of life plus 15 years for murdering a man outside of a nightclub in 1997, when he and another inmate ambushed the correctional officer. In 2009, Maryland limited the death penalty to first-degree murder cases in which there is biological or DNA evidence, a video recording of the crime, or a videotaped confession. Stephens must decide whether he wants to be sentenced by the jury that convicted him or the presiding judge, who will have to decide if the evidence that the victim's blood was on the defendant's clothes is conclusive enough to consider the death penalty.

Emotional Abuse and Penis Pumps

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Should a history of childhood abuse and emotional problems lead to a reduction in a prison sentence for a white collar crime?  What if the crime is defrauding taxpayers over penis pumps?  Yes, according to defense counsel.    

Rebels Without a Clue -- Follow-Up

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Last October, I noted in this post on the occupy movement, "I actually agree with a few of the protestors' positions....   But why does anyone think extended occupation of public spaces is an effective way to achieve anything?"

Today the USA Today editorial page, which I don't often agree with, has this:

When the "Occupy" movement was launched last year, it garnered considerable attention and enthusiasm. Labor unions, in particular, were amazed at how Occupy managed to put Wall Street institutions on the defensive, something the liberals had been trying to do for years.

But with the recent clearing of encampments in Washington, D.C.-- one of the last cities in which they still existed -- a movement that came in with a bang appears to be going out with a whimper. Future political operatives might view it as a case study in how not to organize a lasting movement.

News Scan

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Mississippi Supreme Court Hears Challenge to Pardons: Emily Wagster Pettus of the Associated Press reports the Mississippi Supreme Court heard more than three hours of oral arguments Thursday regarding the validity of pardons Haley Barbour gave during his final days as governor. If the state's high court declares the pardons invalid, the pardons could be sent back to a lower court, where a circuit judge could hold a trial to determine whether the pardons met the 30-day notification requirements set forth in the Mississippi Constitution. Lawyers defending the pardons say the constitution does not give the power to anybody to review the power granted to the governor to pardon, and that this case is really about the separation of powers under the Mississippi Constitution. Chief Justice Bill Waller Jr. did not say when the court would make its decision.

Mississippi Executes Double-Murderer: The Associated Press reports Edwin Hart Turner was executed by lethal injection Wednesday night at the Mississippi State Penitentiary for killing two men during a 1995 robbery spree. Relatives of the two victims watched the execution. One of the victim's older brothers read a family statement afterward. "I don't think we will ever have complete closure because a void will always exist in our hearts. At least we will have some consolation in knowing that the person who committed this cowardly and senseless act is finally gone," he said.

Handwriting Analysis

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In Pettus v. United States, decided by the D.C. Court of Appeals yesterday, "The principal issue on appeal is whether the trial judge erroneously admitted the expert opinion of an FBI forensic document examiner that a piece of handwriting left on the body of the murder victim had been written by appellant."

The answer is no.  Handwriting analysis remains admissible in D.C., and appellant's attempt to spin an NRC report into a rejection of such evidence fell flat.  "The Report is more nuanced than that."

The D.C. Court of Appeals is the high court of the state-like judicial system set up by Congress for local matters, not to be confused with the U.S. Court of Appeals for the D.C. Circuit.  Curiously, this court has decided to stick with the old Frye test rather than go with the Daubert test applicable in federal courts.  See n. 4.  A number of actual state courts have done so, but it seems a little strange in a court that really is a federal court, whatever its form.  The case is Pettus v. United States, not Pettus v. District of Columbia.

Zoe Tillman has this post at BLT.  The facts of the case are after the jump.

The Ohio Situation

An unexplained order out of the US Supreme Court has the anti-death-penalty side crowing in Ohio, but their crowing may be short-lived.

Ohio pioneered the switch to the single-drug method of execution back in 2009.  By taking exactly the step that everyone attacking the three-drug method had been touting as the alternative, Ohio was able to carry out justice while it remained stalled in other states.  Beginning with Kenneth Biros in December 2009, 14 murderers met their well-deserved fate in a span of two years.

Then the complaint was raised of deviations from the protocol.  Well, there are different kinds of deviations, some important and some trivial.  In every activity governed by detailed rules, there are some deviations from the rules.  When was the last time you saw a football game with zero penalties?  How many issues of a major newspaper have zero typos, zero grammatical errors, and zero factual mistakes?  How many trials have zero valid objections?  Applied to their own profession, judges know very well that minor deviations are inevitable and not cause for alarm, even when the subject matter of the proceeding as a whole is grave.

In the course of this litigation, the court recognized that some aspects of the protocol are "core" matters -- preparing the drugs, preparing for the injection, having "systemic redundancies" to reduce or eliminate the possibility of human error, and controlling who is involved in the process.  What about "non-core" matters?  Ohio represented that only the Director could approve any deviations.  They probably shouldn't have, but is that the proper concern of the federal court at all?  If the matter is "non-core," if a deviation does not expose the inmate to cruel punishment, then a lack of complete uniformity does not rise to an equal protection violation.

News Scan

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Supreme Court Lets Ohio Stay of Execution Stand: Andrew Welsh-Huggins of the Associated Press reports the U.S Supreme Court on Wednesday denied Ohio's appeal of decisions from a federal court and the 6th U.S. Circuit Court of Appeals in the case of condemned inmate Charles Lorraine that said the state strayed too far from its execution policies. Lorraine stabbed a 77-year-old man five times with a butchers knife and stabbed his 80-year-old bedridden wife nine times before burglarizing their home in 1986. The office of Ohio Attorney General Mike DeWine argued to the high court that minor deviations in policy don't mean that the system is unconstitutional. In fact, Ohio's execution procedures have never been ruled unconstitutional. Without any Supreme Court action, DeWine had said Ohio is in danger of having numerous executions delayed on a case-by-case basis.

Victim Speaks Out About Mississippi Pardons Hearing: Jewell Hillery of WLBT (MS) reports the day before the Mississippi Supreme Court is set to take up the case of whether the pardons granted by outgoing Governor Haley Barbour were constitutional, one of the victims of a man who was pardoned says he is optimistic the pardons will be reversed. In 1993, David Gatlin shot Randy Walker in the head and killed his friend Tammy. Gatlin is one of the more than 200 convicted criminals pardoned by Barbour. He hopes state lawmakers will consider creating new pardon legislation that would forbid Governors from granting pardons during their last three months in office, and would require hearings before pardons are granted. "We never had a say in any of this, no victim has ever has ever gotten a say," said Walker.

More Murderers Paroled Under Jerry Brown: Jim Sanders of The Sacramento Bee reports an annual report to the Legislature released Tuesday shows California Governor Jerry Brown let stand 331 of 405 decisions to parole convicted killers by the state Board of Parole Hearings last year, which is roughly 82 percent. By comparison, Republican Gov. Arnold Schwarzenegger permitted the release of about 27 percent of paroled killers, and Democratic Gov. Gray Davis only permitted the release of about 2 percent. 

Death Penalty Poll Up North

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Among the countries whose legal system is based on English law, only the United States and a few Caribbean countries retain the death penalty.  Opponents are fond of saying that the other countries have rejected the death penalty.  Yet when you ask the people instead of the governments of those other countries, you get a very different picture.  A poll by the Toronto Star and Angus Reid indicates that opinion north of the border is not much different from ours. Richard Brennan has this story in the Star.  Angus Reid's summary is here and full report is here.

As with U.S. polls, responses vary greatly with the wording of the question.  The most straightforward question asks the actual legislative issue:  "As you may know, Canada eliminated the death penalty for murder in July 1976. All things considered, would you support or oppose reinstating the death penalty for murder in Canada?"  The ayes swamp the nays, a bit under 2-to-1:  61% yes, 34% no, 5% not sure.

On a somewhat more general question, 8% say the death penalty is "always appropriate," 63% say sometimes, 23% say never, and 5% are not sure.  The question does not specify that it is asking about punishment for murder, but presumably nearly all respondents would understand that.  Comparing this question with the previous one, it appears that about 11% of people who think the death penalty is sometimes appropriate nonetheless oppose reinstatement, probably persuaded by practical arguments of cost or the possibility of executing an innocent person.

On the badly worded question that implies a single punishment choice for all murders, half of Canadians choose life in prison, as do about half of the people of the United States.  "All things considered, which of these two approaches would you prefer as a punishment for convicted murderers in Canada?"  LWOP: 50%; death 38%; not sure 12%.  (See my prior criticisms of this question here and here.) 

Another Reason to Reject International Law

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A number of entries on C&C have questioned the growing influence of international law in Supreme Court jurisprudence.  This influence has been particularly noteworthy in the Court's criminal law decisions  --  ones where outcomes favoring the criminal have been supported by reference to international law (as opposed, say, to the law adopted by the various states).  See, e.g., Roper v. SimmonsGraham v. Florida; Atkins v. Virginia.  The Court usually disclaims that it finds international law controlling  --  while recurring to it again and again.  This is not exactly a non-denial denial, but it has its similarities.

A New York Times article by Adam Liptak illustrates more vividly than I could one of the best reasons the Supreme Court  --  the ultimate guardian of our Constitution  --  should reject, rather than embrace, international law:  The law of other nations increasingly and explicitly turns its back on our founding document.  Our Constitution, we are told, is too parsimonious with individual rights and entitlements  (e.g., education and health care); too hidebound; too old-fashioned and too  --  well, just too darn nasty.  Must be that pesky American exceptionalism.

One very conspicuous omission from the article is any reference to the death penalty.  This is odd, because international law is a distressingly familiar referent in the Court's decisions limiting capital punishment.  On the other hand, Mr. Liptak might be onto something the Court seems (or perhaps wants) to miss:  That while European law disfavors the death penalty, the majority of the world's people, and its four largest nations (none of them European) all have, and use, capital punishment.

News Scan

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Washington Considers Collecting DNA Upon Arrest: Gene Johnson of the Associated Press reports Washington state's Legislature is considering requiring people to give DNA samples when they are arrested for serious crimes, instead of waiting until there is a conviction. Under bills in the Washington Legislature, DNA would be collected from people arrested for almost all felonies or for violating a domestic violence protection order. The State Patrol crime lab could test the DNA and enter the profile created in a nationwide database once a judicial officer declares the arrest supported by probable cause. If a person is not charged or exonerated, they could petition to have their sample and profile destroyed by the crime lab. The crime lab could run a check on the profile first before destroying it.   

Arizona Inmates Sue Over Execution Protocol: Amanda Lee Meyers of the Associated Press reports three inmates on Arizona's death row filed a lawsuit in federal court in Arizona Monday against the governor, the state corrections director, and those who conduct executions. The inmates claim the state's new execution protocol violates their constitutional rights, and seek to have two of their upcoming executions delayed. The inmates suing are Robert Henry Moormann, Robert Charles Towery, and Pete Rogovich. Moormann is scheduled to be executed February 26 for killing and dismembering his adoptive mother while on a "compassionate" furlough from prison. Towery is scheduled to be executed March 8 for killing a man while robbing his home. Rogovich, whose executed has not be scheduled, was sentenced to death for a crime spree in which he robbed two business and killed four people.

Cop Killer Formally Sentenced to Death: Sam Cohen of FOX40 News reports Marco Topete was formally sentenced to death by a Yolo County judge Tuesday for killing a Yolo County sheriff's deputy in 2008. The judge also denied the defense's motion seeking a new trial. See previous posts about this case here and here.

Shootings by Sheriff's Deputies Already Surpass Previous Year's High: Kim Minugh of The Sacramento Bee reports Monday was the sixth time this year a Sacramento County sheriff's deputy has fired their gun during a confrontation with a suspect. With six officer-involved shootings just thirty-seven days into 2012, the Sheriff's Department has surpassed the total for 2011 - five - and has matched its average yearly total. Sheriff Scott Jones said he is most concerned that the spike in incidents suggests that "the streets and our community are becoming increasingly hostile and dangerous places for my officers to work."    

Time to Reconsider

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In Roper v. Simmons, decided seven years ago, the Supreme Court held that the death penalty could never be imposed on a person under 18 years of age. 

In doing so, it was in some ways merely ratifying the status quo:  The number of juveniles sentenced to death in this country over the last generation was miniscule.  Juries were and are more than aware of the reasons the law treats younger offenders more leniently than older ones.  What the (bare) majority missed  --  or more correctly, ducked  --  is the fact that a one-size-fits-all rule for juveniles is no better than a one-size-fits-all rule for anyone else.  Foreclosing any historically accepted punishment before one knows the facts of the case to which it is proposed to be applied is irrational.  If law means anything, it means judging each case in light of the circumstances it presents. 

Will the Court reconsider Roper?  Probably not.  Should it?

A Missouri teenager who admitted stabbing, strangling and slitting the throat of a young neighbor girl wrote in her journal on the night of the killing that it was an "ahmazing" and "pretty enjoyable" experience -- then headed off to church with a laugh....

"I just f------ killed someone. I strangled them and slit their throat and stabbed them now they're dead. I don't know how to feel atm. It was ahmazing. As soon as you get over the "ohmygawd I can't do this" feeling, it's pretty enjoyable. I'm kinda nervous and shaky though right now. Kay, I gotta go to church now...lol."

The whole appalling story is here.  The victim was a nine year-old, Elizabeth Olten, whose mistake was living nearby.

News Scan

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Second Death Sentence in South Dakota Prison Guard Killing: The Associated Press reports Rodney Berget was sentenced to death Monday in South Dakota for killing prison guard Ronald "R.J." Johnson during a failed escape attempt. His accomplice, Eric Robert, was also sentenced to death in October for the killing. Berget is currently serving life sentences for attempted murder and kidnapping, and prosecutors said he had tried to escape several times before. Prosecutors said Berget and Robert bashed Johnson's head with a pipe and covered his mouth with plastic wrap. Robert then put on the guard's uniform and Berget hid inside a large box that Robert carted with him toward the prison gate before both inmates were apprehended. South Dakota Attorney General Marty Jackley said Berget's execution should take place in six to eight months. Robert's execution is scheduled for May.    

Norway Mass Killer Says He Deserves Medal of Honor:
Bjoern H. Amland of the Associated Press reports Anders Behring Breivik, who confessed to a bombing and mass shooting that killed 77 people in Norway last July, told a court Monday he deserves a medal of honor and demanded to be set free. This was his last scheduled detention hearing before the trial begins in April. Breivik will remain in custody until then. He faces up to 21 years in prison for terror charges. If he is found criminally insane, he will be sent to psychiatric care. His defense lawyer suggested Breivik's comments on Monday were a preview for what's to come in the trial.

Judge Temporarily Blocks Mississippi Execution:
The Associated Press reports a federal judge on Monday temporarily blocked the execution of Edwin Hart Turner in Mississippi. Turner was scheduled to be executed Wednesday for killing two men during a gas station robbery spree in 1995. His attorney's asked for the order, arguing that Turner was prevented from getting medical tests that could prove he is mentally ill - a diagnosis they hope will sway the U.S. Supreme Court to block Turner's execution and the execution of others with mental illnesses. Turner's lawyers also want the tests done so the information could be included as part of a clemency petition to Mississippi Governor Phil Bryant. U.S. District Judge Carlton Reeves in Jackson blocked the execution until February 20. Turner's lawyers can seek a longer stay in the meantime. 

Is This Protected by Heller and McDonald?

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OK, it's only slightly related to criminal law, but, by God, how I miss college life.

Felon Voting Podcast

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The Federalist Society's teleforum on felon voting from last August is now available as podcast here.  Participants are Nancy Abudu of the ACLU and Hans von Spakovsky of the Heritage Foundation.  Roger Clegg of the Center for Equal Opportunity moderates.

17-year-old Murderers

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A person who commits murder at the age of 17 years, 364 days is exempt from the death penalty, regardless of how horrible the crime or how many people he kills.

Should that one day further exempt the murderer from a true life-without-parole sentence, holding out the possibility of parole regardless of the crime?  Should the 17-year-old get a double discount for murder compared to the 18-year-old?  Some people think so.  California State Senator Leland Yee is trying again.  He has put cosmetic changes on his bill, SB9, but it still amounts to a possibility of parole.

Crime Victims Action Alliance has this update, with links to contact Assembly members.

Note: California already exempts under-16s, so people who say this bill is about "children" are using an ambiguous term in an intentionally deceptive way.  [Try standing in front of a class of high school juniors and saying, "Good morning, children."  See what kind of reaction you get.]

April SCOTUS Argument Calendar

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The calendar for April arguments in the US Supreme Court is available here.  There are no state criminal cases or state-prisoner habeas cases on the docket.  Should we be grateful for "salutary neglect"?

On Tuesday, April 17, the Court hears argument on the retroactivity of the rollback of the crack v. powder cocaine sentencing ratio.  There are a number of prior posts on this blog on the subject, including

Obama Signs Reagan Version of Crack Sentencing

The Crack Ratio

Crack Retroactivity and Plata

Crack Sentencing

The big case in terms of press coverage will be the Arizona immigration case on Wednesday, April 25.

News Scan

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Loughner Still Not Competent to Stand Trial: Michael Kiefer of The Arizona Republic reports U.S. District Judge Larry Burns wrote in a court order Thursday that a psychologist says Jared Loughner is still not mentally competent to stand trial. Diagnosed as a schizophrenic, Loughner has been confined to the federal prison hospital in Missouri since March, where he will likely remain for four more months. Loughner's principal psychologist said she believes he has made progress and can eventually be restored to competence. Burns ordered a hearing take place Monday in San Diego to discuss the matter with the defense attorneys and federal prosecutors. Loughner, 23, is charged with 49 felonies stemming from the January 8, 2011 shooting rampage in Tuscon, where six people were killed and thirteen others wounded.

CA Supreme Court Overturns Death Sentence for Man Who Burned Woman Over $100: Maura Dolan of the Los Angeles Times reports the California Supreme Court Thursday voted unanimously to overturn the death sentence for Gary Galen Brents, ruling that Orange County Superior Court Judge John J. Ryan failed to properly instruct the jury. Brents was convicted of the 1995 murder of Kelly Gordon. Gordon had agreed to sell $100 worth of methamphetamine for Brents. When he went to collect and she didn't have the drugs or money, Brents tried to suffocate Gordon, and choked her. He then put her in the trunk of a car, drove to a remote location, poured gasoline on her and the outside of the car, and lit the gasoline on fire. Trapped in the trunk, Gordon burned to death. The Orange County district attorney's office is reviewing the ruling. The opinion is here.

30 Bales of Marijuana Found Floating in Pacific Ocean: Robert J. Lopez of the Los Angeles Times reports 30 bales of marijuana, estimated to be worth about $500,000 on the street, were found floating in the waters off Marina Del Rey, CA. The bales were spotted by a boater Wednesday and recovered by the Los Angeles County Sheriff's Department with the help of lifeguards. The bales were turned over to the U.S. Customs and Border Protection Agency.

A Sentence "Increase" in Cambodia

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Sopheng Cheang reports for AP:

A U.N.-backed tribunal's Supreme Court lengthened the sentence for the Khmer Rouge's chief jailer to life imprisonment on Friday because of his "shocking and heinous" crimes against the Cambodian people.

The surprise ruling increased a lower court's 19-year sentence for Kaing Guek Eav, known as Duch. Prosecutors had appealed the sentence as too lenient, and outraged survivors had feared the man who oversaw the torture and killing of thousands could one day walk free.

The latter possibility was actually quite remote, given that "Duch" is 69 years old and highly unlikely to survive 19 years in prison.  Even so, I suppose the sentence increase is useful as a symbol.

The sentence remains inadequate, though.  Due to the U.N.'s involvement, the tribunal is incapable of imposing the death penalty, the only punishment that comes close to sufficient for this man's unspeakable crimes.

The world's worst criminals can be adequately punished, as Saddam Hussein was, only when the Europeans, the U.N., and the International Criminal Court are kept out of the decision.  That is regrettable, but that is the way it is.

News Scan

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After 44 Arrests and No Convictions, Man Now Faces 32 Years: Nathan Gorenstein from the Philadelphia Inquirer reports John Gassew, 25, who avoided any sort of a conviction in state courts despite having been arrested 44 times, will now serve at least 32 years in federal prison. The primary reason for the previous lack of convictions is that victims failed to appear in court to testify. In the first of two robberies he was convicted for, Gassew held up a 7-Eleven and beat a store clerk with a .45-caliber semiautomatic pistol. Gassew then proceeded to drive a stolen truck into a tree, drawing police attention, and fled the scene, leaving his gun behind in the vehicle. After two days of jury deliberation, Gassew was found guilty of two counts of robbery and two counts of violating the Hobbs Act by carrying a firearm during the commission of a violent crime. Federal prosecutors have used the Hobbs Act to charge robbers who hit gas stations, convenience stores, and other businesses that can be shown to be involved in interstate commerce. He will be formally sentenced in May.

Mississippi Supreme Court to Take Pardons Case: The Associated Press reports the Mississippi Supreme Court said Wednesday it will take up the legal challenge to the pardons issued by outgoing Governor Haley Barbour. State Attorney General Jim Hood wants to invalidate dozens of the 198 pardons Barbour handed out. Hood says only about two dozen of those pardoned followed the Mississippi Constitution's requirement to publish notice about their reprieve in their local newspapers for 30 days. Ten of the people who received full pardons were still incarcerated when they received the reprieves. "It's a core question of separation of powers between the branches of government. It's an important question that the Supreme Court has to answer," said Matt Steffey, a constitutional law professor at Mississippi College. The state Supreme Court set a hearing for February 9.

Teacher Charged With 23 Counts of Lewd Conduct in Classroom Keeps Benefits: Howard Blume of the Los Angeles Times reports former elementary school teacher Mark Berndt, who is charged with 23 counts of lewd conduct in his classroom including spoon-feeding his semen to blind-folded children, will retain his life-time health benefits from his school district in addition to his pension because he technically resigned and was never officially fired. Vivian Ekchian, chief human resources officer for L.A. Unified, says the district is looking at its options for trying to rescind those benefits if Berndt is convicted. His retirement benefits are not at issue, because "a teacher will receive their pension regardless of the reason for their termination" said Michelle Mussuto, a spokeswoman for CalSTRS.

Oregon Death Penalty Poll

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A poll by Oregon Public Broadcasting and DHM Research shows little change in public support -- still overwhelmingly in favor.  Kristian Foden-Vencil has this story at OPB News.  "The poll found that 57 percent favor the death penalty for some crimes; 39 percent oppose it. Four percent say they don't know."  The story does not give the exact wording of the question, which we know from other polls matters a lot.  DHM's website does not mention the poll at all.

News Scan

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New York Gov. Proposes More Flexible Probation Sentencing Laws: Reuters reports New York Governor Andrew Cuomo, as part of the state budget proposal, wants to make New York's probation sentencing laws more flexible. For most felony convictions, the sentence would be three to five years, instead of the current mandatory sentence of five years. For Class A and unclassified misdemeanors, the probation sentence would be two to three years, instead of the current mandatory three years. Cuomo's budget also includes the measure to expand the state's criminal DNA database, and a measure that would allow criminal courts to order the forfeiture of the money earned in the commission of a crime. Under current state law, those convicted of misdemeanors can keep the money they gain from their crimes, and prosecutors must sue those convicted of felonies to take back any criminal profits.

CA Assembly Passes Three-Strikes Reform:
Jim Sanders of The Sacramento Bee reports the California Assembly Tuesday passed AB 327, which would alter California's existing three-strikes law, by a vote of 41-33. The legislation would provide that an offender be sentenced to a 25 year to life prison term for a third strike only if the third strike is for a violent or serious felony, with some exclusions for certain previous crimes.The bill would only become effective if approved by voters at the November 2014 statewide general election. The bill now goes to the state Senate.

New CrimePush App Available on iTunes Today: Anushay Hossain, a Forbes Woman contributor, reports the CrimePush App, which allows smartphone users to quickly and discreetly report crimes, is available on iTunes today. Users can take a photo, record video and audio, and provide the location of the crime and a text description of the incident. Users can also report the crimes anonymously.
SF Chrontrarian Debra Saunders has this column on the further degeneration of Occupy Oakland:

Occupy Oakland protesters broke into City Hall on Saturday, sprayed graffiti, toppled a historic model of City Hall and children's artwork, stole and then burned an American flag, sprayed graffiti and otherwise trashed the people's building. Police arrested about 400 people. Mayor Jean Quan likened the activists' behavior to "a tantrum," as she complained Occupy activists have been treating the city "like a playground."
Well, well, even a stopped clock is right twice a day.  Welcome to reality, Mayor Quan.  Hope your visit is longer this time, before you return to the flower-child alternate reality where you permanently reside.

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