March 2012 Archives

News Scan

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Arkansas Considers Barring Sex Offenders From Internet Access: Andy Davis of the Arkansas Democrat-Gazette reports the Arkansas Board of Parole is considering whether to adopt a policy which would initially bar all paroled sex offenders from using the internet. Parolees could request permission to access the internet for a specific purpose, such as use in the workplace. The board currently prohibits internet access for certain paroled sex offenders on a case-by-case basis. Kim Knoll, an assistant area manager with the Department of Community Correction, said "parole officers have found that offenders are frequently using the Internet to download child pornography and communicate with children." At issue is whether the policy would infringe upon their First Amendment rights. The board is set to vote Thursday.

New Police Video Released in Florida Shooting Case:
Curt Anderson of AP Legal Affairs reports a newly released video from the Sanford Police Department, taken a half-hour after George Zimmerman shot and killed 17-year old Trayvon Martin last month, has some legal experts agreeing that while grainy and far from conclusive, the video does raise questions about Zimmerman's story of self-defense. But Zimmerman's attorney says it does "support his client's story in some respects."  Martin's autopsy report has not yet been released, in which the angle of the bullet wound is significant to corroborate or contradict Zimmerman's account of the confrontation.  Also, Matt Sedensky of AP has this article on the misleading use of photos to shape public opinion of the case, such as the picture of Martin several years younger.

Recent Case Sheds Light on Criminal Immigrants:
Garance Burke of the Associated Press reports the recent San Francisco case of a Vietnamese ex-con accused of killing five people has brought back into debate Supreme Court rulings that have allowed thousands of criminal immigrants to be released into U.S. communities when their home countries will not take them back. Two Supreme Court rulings found that immigrants should be released after 180 days unless they are likely to be deported soon, and established that immigrants ordered to be deported for having committed a broad range of criminal offenses cannot be locked up in detention awaiting deportation indefinitely. In cases of an immigrant posing a terrorist threat or considered highly dangerous, such as sex offenders, there are provisions allowing them to be in detention longer. Texas Rep. Lamar Smith (R) is sponsoring a bill challenging the high court's rulings by proposing to expand the pool of immigrants who can be detained for more than six months, or even indefinitely, if they cannot be deported. ICE statistics show 1,612 immigrants with criminal records were released by April of last year, 3,882 released in 2010, and 3,847 in 2009.

Holy traffic stops, Batman!

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The guy pulled over by police while dressed as the Caped Crusader has given us all a good laugh, but it turns out he really is a hero, in his way.  Michael Rosenwald reports in the WaPo.

Non-non-non nonsense

Gov. Brown's "realignment" program for California prisoners assured us that the prisoners pushed down to local jails from state prison would be only the "non-serious, non-violent, non-sex" offenders.  "Serious" refers to a specific list of felonies in Penal Code §1192.7.  It's an unfortunate term, given that any crime properly classified as a felony is serious.

But there is a problem, as Sally Morris reports for the Trinity Journal [from a mountainous county way up north]:

"[W]hether we agree with AB 109 or not, I am responsible for supervising some very serious folks released into our community," [Trinity County Chief Probation Officer Terry] Lee said, adding "the non, non, non is not what we are seeing. There are some very serious offenders we are now supervising."

He explained that the classification is only based on the last crime that resulted in prison time and doesn't account for prior convictions. Lee said most of those returned to Trinity County were convicted of transportation or possession of illegal drugs, burglaries and driving under the influence with injuries caused, but most also have very serious priors. One currently under review by the county for possible rejection was convicted of an attempted murder for hire.

Nothing to worry about, folks.  No serious offenders.  Just the occasional hit man.

Who are "the people"?

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Some provisions of the Constitution confer rights on "citizens." These include the suffrage amendments and the two "privileges and immunities" clauses.  Others confer rights on "the people," and the Second Amendment right to bear arms is among them.  So can a state law deny legal, permanent resident aliens the right to own a handgun?  No, says the federal district court in Massachusetts in Fletcher v. Haas, No. 11-10644 (Mar. 30, 2012).  They are included in "the people."  Thanks to Eugene Volokh for the link.

Cooper/Frye SCOTUScast

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The Federalist Society has this podcast on last week's Supreme Court decisions in Missouri v. Frye and Lafler v. Cooper by CJLF's Legal Director Kent Scheidegger.

Copying and Theft

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The entertainment industry, in its fight against illegal copying, likes to use words describing common law crimes, such as "piracy" and "theft."  Prof. Stuart Green of Rutgers has this op-ed in the NYT opposing this "rhetorical strategy."  Not that he is in favor of illegal downloading, of course.  His point is that the crimes are different, and we should use different terms.

Illegal downloading is, of course, a real problem. People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. And if others want to enjoy those creative works, it's reasonable to make them pay for the privilege. But framing illegal downloading as a form of stealing doesn't, and probably never will, work. We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation.

This is not merely a question of nomenclature. The label we apply to criminal acts matters crucially in terms of how we conceive of and stigmatize them. What we choose to call a given type of crime ultimately determines how it's formulated and classified and, perhaps most important, how it will be punished. Treating different forms of property deprivation as different crimes may seem untidy, but that is the nature of criminal law.

News Scan

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Victim Notification Law Signed by Idaho Governor: KMVT News (ID) reports Idaho Governor C.L. "Butch" Otter signed into law House Bill 595, which requires those convicted of felonies and misdemeanors to pay $10 to fund VINE (Victim Information Notification Everyday), which notifies victims of their offender's incarceration and court status. Once a victim or other interested person registers in the VINE system, they will be automatically notified when the offender they registered against is released from custody or is scheduled to appear in court by telephone or email. VINE has been managed in the state for almost three years from grants, which expire in 2012. The new law creates sustainable funding for the program. 

3 Executions in Japan, First Since 2010: Minoru Matsutani of the Japan Times reports three inmates were hanged in Japan Thursday, the country's first executions since July 2010. Yasutoshi Matsuda, 44, was convicted of robbing and killing two women in 2001. Tomoyuki Furusawa, 46, was convicted of murdering his 12-year-old stepson and his wife's parents in 2002. Yasuaki Uwabe, 48, was convicted of running over seven people with a car, killing two, and slashing seven other people with a knife, killing three, in 1999. "The right to punish criminals rests on Japanese nationals, and a government poll shows the majority of Japanese support the death sentence," Justice Minister Toshio Ogawa said at a news conference.

SCOTUS Denies Stay to Baby Killer

The orders are here and here.  Michael Graczyk had has this story earlier for AP.  (The same link now points to an updated story.)

Jesse Joe Hernandez already was a convicted child sex offender when he was arrested for the horrendous beating in 2001. Karlos Borjas [age 10 months] had a skull fracture amid bruises to his head, thigh and abdomen when he was taken off life support after a week in a Dallas hospital. His 4-year-old sister also was attacked but survived with swelling and bruises on her forehead, eyes and behind her ears.

"I just remember all the bruises and tubing," recalled Howard Blackmon, a former assistant Dallas County district attorney who prosecuted Hernandez for capital murder. "He beat the little boy senseless and beat the sister, too."

*                                  *                                *

[Hernandez's lawyers'] appeal to delay the punishment argued that trial lawyers for Hernandez should have pursued evidence that the boy "likely would have lived had he not been prematurely removed from life support" because he had toxic levels of the barbiturate pentobarbital when life-assisting machines were turned off, according to Hernandez's attorneys. Ironically, it's the same drug Texas prison officials now use in the execution process.

Something like, "Even though I beat a 10-month-old baby to death, the doctors might have been able to save him, so it's not my fault."  Yeah, that would have gone over real well with the jury.

Update:  Graczyk reports the execution has been completed.
Will James of the Wall Street Journal reported today that the organizations that administer the SAT and ACT college entrance exams are implementing security measures to prevent impersonators from taking the test on behalf of students.  Among these will be a requirement that all students planning to take the tests sign up in advance and upload or mail a photo of themselves which will be printed on a ticket, which will be checked against a student's photo ID on the day of the test.  When, one might ask, is the Justice Department going to seek an injunction to block this requirement which blatantly discriminates against every poor and minority high school student in America who lacks a photo ID?  We know a photo ID requirement is discrimination because Eric Holder told us so.  In December, after the Justice Department blocked a South Carolina law that required voters to show a photo ID, Attorney General Eric Holder said it is discriminatory because black voters in South Carolina are 20 percent more likely than white voters to lack a driver's license or state photo ID card.  Earlier this month the Justice Department blocked a similar law in Texas.  "Even using the data most favorable to the state, Hispanics disproportionately lack either a driver's license or a personal identification card," Thomas Perez, head of the Justice Department's civil rights division.  Does anyone other than me wonder which political party receives the votes of illegal aliens, felons, cartoon characters and the dead folks that voter ID laws would exclude?  

News Scan

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Bill Introduced to Set Uniform National Standard for Evidence Production in Federal Courts: John R. Emshwiller and Gary Fields of the Wall Street Journal report Senator Lisa Murkowski (R - Alaska) this month introduced a bill in the Senate to set a single national standard for prosecutors in federal criminal cases to share evidence with defendants that points toward possible innocence. There are currently a variety of policies and practices across the 94 federal judicial districts in the nation regarding how much "exculpatory" material must be turned over to defendants. Murkowski says the aim is to "provide for a level of uniformity" and "make sure constitutional rights are fully protected." The introduction of the bill coincides with the release of a report that criticizes the Justice Department's handling of evidence in the 2008 trial of Senator Ted Stevens on charges related to financial disclosures. The Senate Judiciary Committee is scheduled to hold a hearing on the report on Wednesday. The national standard would be more defendant-friendly than what currently exists in many jurisdictions, and a Justice Departments spokeswoman said officials have "significant concerns about the impact of the bill on victims, witnesses and the criminal law enforcement process."

States Ask Supreme Court to Overturn Arizona Immigration Law:
Bob Egelko of the San Francisco Chronicle reports California Attorney General Kamala Harris and officials from ten other states have joined together to ask the U.S. Supreme Court to overturn Arizona's immigration law, which is scheduled to be heard on April 25. The officials say the law surpasses state authority, would interfere with a uniform national approach to immigration, and would drive illegal immigrants in Arizona into other states. The brief said, "Arizona is impermissibly attempting to chart its own course in the identification, apprehension and detention of undocumented immigrants for purposes of expelling them from the state." The states argue that since Arizona can't force the federal government to deport anyone, its law would redirect illegal immigrants to other states.

Homeowner Charged for Shooting Burglar: of the Chicago Tribune report 80-year-old Homer "Tank" Wright of Chicago was charged with unlawful use of a weapon after shooting a burglar in the leg. According to police, the suspect broke through some plywood over a bathroom window to steal liquor from Wright's bar. "It's wrong," said Wright after being released from jail. "Unjust that I can't protect me." Wright said the bar he owns had been broken into several times, and he and his wife had started sleeping at the property to protect it. At a news conference held by neighbors to call on prosecutors to drop the charges, Darryl Smith asked, "If a man can't defend himself from harm, what can he do?" "If he hadn't defended himself, we would be here for a different reason -- because an intruder came in and killed him," Smith said.

Mississippi Executes Second Murderer Last Week: Robbie Ward of Reuters reports William "Jerry" J. Mitchell was executed in Mississippi last Thursday, the second execution in the state that week. In 1995, Mitchell sexually assaulted and brutally murdered a convenience store clerk. Her body was found under a bridge. Court records show she had been beaten, strangled, sexually assaulted, crushed by a car, and mutilated. At the time of the murder, Mitchell was on parole for a previous murder conviction. He was pronounced dead at 6:20 p.m. local time Thursday.

Standing More Ground

David Kopel has this post at the Volokh Conspiracy making the same point I made yesterday.

Eventually, a grand jury will issue a report based on its investigation. In the meantime, there are two competing narratives. In one narrative, Zimmerman followed Martin, attacked him, and then murdered him. Let's call this the "M narrative." In Zimmerman's account, he followed Martin, caught up with him, and then left; while he was leaving, Martin attacked him, knocked him to the ground, and began slamming his head into the pavement. Let's call this the "Z narrative."

I am not making any judgment about which narrative is more plausible. The grand jury will do that. For now, it should be noted that neither the M narrative or the Z narrative has anything to do with a duty to retreat. The retreat issue would only be relevant if Martin were the aggressor, and Z had the opportunity to escape from Martin in complete safety. Then, and only then, would different state standards about retreat be relevant....

The core Florida law on deadly force in self-defense leads to clear results. If M is true, then Zimmerman's firing of the gun was a criminal homicide. If Z is true, the act was lawful self-defense. The results would be the same in every other state.

Prisoners, Work, and Markets

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Professor Stephanos Bibas has been guest-blogging at SL&P about his new book.  The main theme is how punishment has changed since the old days, and not all of the changes are good.  In today's post, he focuses on prisoners working.

Prisons must change from dens of idleness and crime to places of public accountability, mandatory work, and sustained reform. First and foremost, prisons must force all able-bodied prisoners to work. Governments could abolish restrictions on trade in prison-made goods and prevailing-wage requirements, relying on competitive bidding to raise wages. While medium- and maximum-security inmates would have to work in prison for security reasons, minimum-security inmates could transition back to the outside by working outside of prison, as many already do in halfway houses. Inmates might even be able to prove themselves to employers and so have jobs waiting for them upon release.
On this point, I mostly agree with Bibas.  Of all the reforms we can make within prison, actual employment for every prisoner should be at the top of the list.

Politically, though, is it possible to "abolish restrictions on trade in prison-made goods"?  No.  Organized labor remains a politically potent opponent.  Just picture the news story of a factory closing, laying off its workers, and laying the blame on competition from prison-made goods.

The answer, in my view, is to identify segments of the market where substantially all of the competing goods are imported.  In today's global economy, there are plenty of such segments.  Prison-made goods should be unrestricted in commerce where the competition is substantially all imported, and the prisoners need not be paid wages comparable to outside workers, or even minimum wage.

As an affirmative incentive to work, allow prisoners to purchase an upgrade to their accommodations with a portion of their earnings.  If you were in prison, how many hours would you work to have an individual prison cell, or even a small, enclosed room, rather than sharing a cell with Spike?  As many hours as it took, probably.
Juan Williams has this op-ed in the WSJ, with the above subtitle:

The shooting death of Trayvon Martin in Florida has sparked national outrage, with civil rights leaders from San Francisco to Baltimore leading protests calling for a new investigation and the arrest of the shooter.

But what about all the other young black murder victims? Nationally, nearly half of all murder victims are black. And the overwhelming majority of those black people are killed by other black people. Where is the march for them?

See also the crime chapter of Williams' book, Enough: The Phony Leaders, Dead-End Movements, and Culture of Failure That Are Undermining Black America--and What We Can Do About It.
The US Supreme Court decided Setser v. United States today, holding that a federal court has discretion to order that a new federal sentence run consecutively to an anticipated state sentence revoking probation for an earlier state conviction.

The case has an interesting SCOTUS practice twist.  The government declined to defend the lower court's judgment, contending that concurrent-vs.-consecutive was the Bureau of Prison's decision, not the judge's.  The Court appointed an amicus to argue in support of the judgment below, Evan Young of Baker and Botts.

Normally, the appointed amicus in this situation gets a complementary footnote and a unanimous reversal.  This time he actually won.  That's probably happened before, but I don't recall when.

The FDA and Thiopental

Federal District Judge Richard Leon ruled in favor of the murderers today in their challenge to the FDA allowing importation of thiopental for lethal injection.  Michael Kiefer has this story for the Arizona Republic.  The story quotes the opinion:

In the final analysis, the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle. How utterly disappointing!
Use of an exclamation point in a judicial opinion, by itself, should raise a presumption of reversibility.  On top of that, the opinion is callously indifferent to the delay and denial of justice caused by the lethal injection litigation.

An accompanying order directs the FDA to inform states that use of the imported drug is illegal.  The absence of any discussion or legal authority in the opinion about use and the fact that the agencies impacted by this order are not parties and have not been heard don't seem to bother Judge Leon.

Hopefully this order will be swiftly stayed.

News Scan

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Death Sentence Overturned Because 3 Murders Not Especially Heinous: The Associated Press reports the Arizona Supreme Court on Tuesday threw out the death sentences of James Granvil Wallace, who killed his girlfriend and her two children in 1984, ruling that the murders don't meet the legal requirement for being heinous or depraved because "the State has not established beyond a reasonable doubt that Wallace inflicted gratuitous violence on the two victims." Wallace had waited behind the front door for each of his victims to return home separately. When his girlfriend's 16-year-old daughter arrived home first, Wallace attacked her from behind, slamming a baseball bat into her head at least ten times with so much force that the bat broke. Still alive, Wallace dragged her into the bathroom and rammed the broken bat into her neck, down her chest cavity, and out her back. When the 12-year-old boy arrived home shortly after, Wallace bludgeoned him about ten times with an 18-inch pipe wrench, crushing his skull. When Wallace's girlfriend arrived home a couple of hours later, he used the same pipe wrench to kill her, hitting her in the head four or five times. His two death sentences for killing his girlfriend's children were vacated, and the court imposed two sentences of life in prison on top of the life sentence Wallace is already serving for killing his girlfriend. The court's opinion is here.

Suspect in Murder of 5 Should Have Been Deported in 2006: Kevin Fagan, Henry K. Lee, and Justin Berton of the San Francisco Chronicle report the suspect in last week's killing of five people in San Francisco should have been deported back to Vietnam in 2006. After serving eight years in prison for robbery and assault, Binh Thai Luc was taken into custody by federal agents and a judge ordered him deported. Since Vietnamese authorities did not provide the appropriate travel documents, Luc had to be released under the terms of a U.S. Supreme Court ruling in which undocumented immigrants must be released after six months if their country of origin will not allow their return. Police Chief Greg Suhr said the victims - a couple in their 60s, their adult daughter and son, and their son's girlfriend - were bludgeoned and attacked with an "edged weapon." Luc is being held on suspicion of five counts of homicide and one count of use of a deadly weapon.

Sacramento Police Warn of Increase in Aggressive Robberies: KCRA reports there has been an increase in aggressive, strong-armed robberies across both the city and county of Sacramento. "These are dangerous crimes (with a) lot of violence potential," said Captain James Maccoun, of the Sacramento Police Department. In the city, these types of robberies are up 75 percent compared to last year. "These are stick-ups with guns -- multiple suspects," said Maccoun. The incidents are mostly taking place in liquor and convenience stores.

Washington State Weighs Prison Overcrowding, Budget Shortfalls: Jennifer Sullivan of The Seattle Times reports the Washington state Department of Corrections says some prisons are facing extreme overcrowding issues after the recent closures of three prisons in the state, as well as a spike in incoming inmates. At one prison, officials announced all single-inmate cells will now house two inmates to give the prison system new beds. The state had planned to open a new prison by 2016, but due to the state's $1 billion budget shortfall, the opening has been pushed back until at least 2018. Reopening closed facilities is not an option because the costs would be too high. The Department of Corrections has already reduced spending through layoffs, prison closures, program reductions, and administrative costs, including the elimination of community-corrections positions after two recent state laws decreased the number of offenders the agency supervises. Department of Corrections officials say since the cuts have changed who gets incarcerated, the typical inmate in the state now is more mentally ill, more violent, more likely to belong to a street gang, more likely to be a sex offender, and highly drug addicted.

Glasses Latest in Criminal Defendant Strategic Attire: Kieth L. Alexander of The Washington Post reports non-prescription "hipster" or "personality" glasses are becoming popular courtroom attire for criminal defendants. "This goes beyond shirts and ties," says Richard Waites, chief executive of a jury consulting firm. "Jurors expect to see defendants wearing those." "If you're wearing glasses, you don't look like what people might expect a criminal to look like," said Chicago-based jury consultant Trent Kelso. Some defense attorneys, though, think it makes their clients look more guilty and suggests they are trying to hide.

Stand Your Ground, Cont.

The campaign to exploit the shooting of Trayvon Martin to attack a robust right of self-defense continues.  Eugene Robinson has this column in the WaPo, beginning:

The "Stand Your Ground" laws in Florida and other states should all be repealed. At best, they are redundant. At worst, as in the Trayvon Martin killing, they are nothing but a license to kill.
But of course it's not true, as Robinson comes pretty close to admitting further down the page:

The consensus view, which I've heard expressed by supporters of Stand Your Ground, is that police were wrong to extend the law's self-defense immunity to Zimmerman so quickly without a more thorough investigation -- and that, given what we have learned about Zimmerman's pursuit of Martin, the law does not seem to apply.
The consensus happens to be right for once.  If the facts are as the initial media blitz led us to believe, it's a case of murder, and the Florida law provides no defense.  On the other hand, if the facts are as Zimmerman reported and one witness partially corroborates (see report by Rene Stutzman in the Orlando Sentinel), then it would be self-defense even without the Florida law.  Duty to retreat is irrelevant if you are on the ground with the attacker on top of you, as Zimmerman claims.

Speaking of Etch-a-Sketch

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David Nakamura and Debbi Wilgoren have this story in the WaPo about President Obama being overheard telling the President of Russia to wait for his second term for a deal on missiles. 

"On all these issues, but particularly missile defense, this, this can be solved but it's important for him to give me space," Obama can be heard telling Medvedev, apparently referring to incoming Russian president -- and outgoing prime minister -- Vladi­mir Putin.

"Yeah, I understand," Medvedev replies, according to an account relayed by an ABC News producer, who said she viewed a recording of the discussion made by a Russian camera crew. "I understand your message about space. Space for you ..."

"This is my last election," Obama interjects. "After my election I have more flexibility."

In context, this appears to mean flexibility to make a deal much more favorable to the Russians than he can make now without endangering his reelection.

Makes you wonder what other changes are in store for a more "flexible" second term.  How about Supreme Court nominations?  Mr. Obama has taken some heat from lefties who think his two appointments so far are not radical enough.  Would he nominate someone who refuses to follow Gregg v. Georgia and votes to overturn every single capital sentence, as Brennan and Marshall did?  Or perhaps go farther and declare life-without-parole unconstitutional?

Let's hope we don't find out.

(Safety tip:  Firearms, microphones, and naked babies should be handled as if loaded at all times.)

I take it back.  The health care argument today wasn't entirely off-topic.

One of the issues discussed was whether failure to buy insurance had any legal consequence other than payment of a tax penalty.  On page 45 of the transcript, Justice Sotomayor wants to know if nonpurchase would be a violation of probation.

When a defendant is put on probation after conviction of a criminal offense, a common condition is a requirement to obey all laws.  The condition allows probation to be revoked and the offender sent to prison or jail for just about any violation.  Not buying insurance?  Well, driving a car without insurance is a violation, but you have the choice not to drive.  Could not buying health insurance be a violation of the law for this purpose?  We'll see if this comes up again tomorrow.

The Penry Retrials

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Brian Rogers has this article in the Houston Chronicle looking at how Harris County, Texas has handled the cases where death sentences were overturned for "Penry error."

In the 1976 case of Jurek v. Texas, the U.S. Supreme Court looked at the Texas system of deciding the penalty based on the jury's answer to three specific questions and decided it was valid.  In the 1989 case of Penry v. Lynaugh, the Court changed its mind and said, in effect, a fourth question needs to be asked.  It then had the audacity to deny it was creating a new rule that wouldn't be retroactive to completed cases.

So lots of cases with "flawed" jury instructions -- the ones that were perfectly okay in 1976 but unconstitutional in 1989 -- had to be resentenced.  The Texas Legislature didn't really fix the problem for a couple more years, so "flawed" cases piled up until 1991.

In Houston, three have been allowed life sentences and three have been resentenced to death.

"We look at it again, from start to finish, and decide if it is still a death penalty case," said Jim Leitner, the district attorney's first assistant. "We really have to look at who is the worst of the worst."

The office has to balance the time and energy of redoing an old case against finite resources, which may mean a death row inmate can get a deal by pleading guilty to stacked life sentences.

"Even though a jury once decided this is a death penalty case," Leitner said. "We look at what evidence we still have, access to witnesses, strength of the case and the willingness of the person to plead to something that will keep them out of commission forever."

News Scan

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1 of 2 Women on Federal Death Row Removed: Ryan J. Foley of the Associated Press reports U.S. District Judge Mark Bennett on Friday threw out the death sentence of Angela Johnson, one of two women on federal death row. Johnson was sentenced to death on four counts after she and her boyfriend killed five people execution-style, including two children, and buried them in shallow graves in 1993. The bodies were found in 2000. Johnson was the first woman sentenced to death in the federal system since 1976. Bennett said her defense lawyers were "alarmingly dysfunctional," and failed to present evidence about her troubled mental state. The ruling doesn't throw out her convictions. The U.S. Attorney General's office has 60 days to decide whether to appeal or continue seeking the death penalty again Johnson.

Supreme Court Won't Hear Appeal on Hormone Therapy for Inmates: The Associated Press reports the U.S. Supreme Court will not hear an appeal from Wisconsin state officials to reinstate a Wisconsin law banning hormone treatments for transgender inmates. The 2005 law was blocked by a federal judge weeks after its passage, and last year the 7th U.S. Circuit Court of Appeals ruled the law violates the Eighth Amendment because it denies medical treatment. The law was passed after an inmate receiving hormone therapy filed a lawsuit, trying to force the prison to pay for his sex change.

Changes to Missouri DNA Laws Proposed:
The Associated Press reports Missouri State Seantor Will Kraus (R) has proposed legislation that would require crime labs to throw away a suspect's DNA sample within four months if a prosecutor decides to not file charges. A DNA sample would be required from anyone registering as a sex offender, as well as from out-of-state offenders who are transferred to Missouri prisons to serve their sentences. SB 789 has been endorsed by the Senate Judiciary Committee, and could be debated in the Senate in the coming weeks.

Washington Considers Changes to Parole, Probation Policies:
Jonathan Kaminsky of the Associated Press reports Washington lawmakers are considering a proposed remaking of the state's parole and probation practices, based on a pilot project in the state that focused on "swift and certain" punishment for parole violators. Under the pilot project, parolees would be put in jail for no more than three days for every minor parole violation. Parolees could spend up to 30 days in jail for more serious offenses. House Republicans have sought to exclude murderers, sex offenders, and others convicted of serious crimes from the program. "To put them under relaxed supervision has an impact under public safety," says Rep. Gary Alexander, R-Olympia. "They could re-offend and that would be very devastating." The system is modeled on a program founded in Hawaii eight years ago which has been replicated in localities in over a dozen states. If initiated, Washington's program would be the first statewide program of its kind in the country, and would include both those on parole and probation. The U.S. Department of Justice will start pilot projects in four cities across the country soon. The history of the bill is here.   

Read more here:

Doing It Old-School

The big news at SCOTUS today is, of course, the health care arguments.  These cases are off-topic for the blog, so we haven't mentioned them here, but I was amused by this story in the NYT by Michael Shear, who obviously does not usually cover Supreme Court arguments.

No Twitter messages will be allowed. No one in the room will be permitted to make a telephone call. There will be no BlackBerrys or laptops or iPads to blog with.
*                            *                          *
Rarely has so much in-the-moment attention been focused on arguments before the Supreme Court, which stubbornly sticks to traditions that predate the communications revolution. "NO electronics devices," a court memorandum says. "Note taking only material is allowed in the Courtroom (i.e., pen & pad)."

As all SCOTUS-watchers know, this is standard procedure.  Personally, I find it rather refreshing that there remains at least one Twitter-free zone.  Sometimes immediacy matters (e.g., when you are having a heart attack), and sometimes it doesn't.  Does it matter if you learn about the oral argument an hour after it concludes rather than as it is going on?  Not in the least.

Monday SCOTUS Orders

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The US Supreme Court's Monday orders list is here.  Not surprisingly, there are multiple remands for reconsideration in light of the recent ugly triology of ineffective assistance cases.  Among them is the infamous Donald Middlebrooks case from Tennessee, a case that has been dragging on longer than Dickens' fictional Jarndyce v. Jarndyce.  On the brighter side, certiorari was denied in several capital cases, including Daniel Cook from Arizona, Cleve Foster from Texas, and the federal case of Joseph Duncan.

The Court granted certiorari in a second Florida dog-sniff case, Florida v. Harris, No. 11-817.  This one involves a sniff at the exterior of a car.  The Florida Supreme Court opinion is hereFlorida v. Jardines, No. 11-564, involves a sniff of a "grow house" and was granted January 6.

Lafler, Part IV: No Harm, No Foul?

One of our readers is highly-regarded, veteran prosecutor in a big city.  I asked how much of an impact she thought Lafler would have in practice.  Her answer:  Not much:

[Y]ou'd be surprised at how few convictions get undone under our [present] Lafler-esque "system." The fact that defendants don't come back to court in droves to claim that their attorneys were ineffective in plea bargaining is, I think, a consequence of basic free market forces. I'll try to explain.

Most defendants are guilty as hell and realize they have the proverbial snowball's chance if they go to trial. Therefore, most defendants want to mitigate their damages in the form of plea bargains rather than going to trial. (My husband's criminal defense practice is based on this premise, as he almost never goes to trial and sees his role as the damage controller, kind of like an insurance adjuster.) 

If lots of cases got challenged and thrown out later on grounds of ineffective assistance, the net result on the "market" would be that prosecutors would change their behavior accordingly by not offering very many plea bargains. Therefore, due to these market forces, the vast majority of defendants do not challenge their convictions unless 1) their attorney really was ineffective, or 2) there is some other problem they are seeking to avoid (e.g., immigration consequences or a three-strikes life sentence). It is also worth noting that in my office, our policy is to charge conservatively at the outset, and to add charges and/or enhancements or amend charges if the case is going to trial. Accordingly, barring unforeseen circumstances, the most favorable plea offer will always be the first offer. All the defense attorneys know this, which keeps our "market" relatively stable as well. 

News Scan

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Los Angeles Police to Ignore Impound Law: William Lajeunesse of Fox News reports the Los Angeles Police Department will begin ignoring the California impound law by no longer impounding the vehicles of unlicensed drivers for 30 days. Most unlicensed motorists in Los Angeles are illegal immigrants with low-income jobs, and the LAPD defends the decision by saying the law is unfair since it limits the ability of illegal immigrants to get to their jobs, and paying the fine to get their car back is a hardship. Following this change, an unlicensed driver will not have their car impounded if they can provide some form of identification, proof of insurance, and vehicle registration. Opponents argue unlicensed drivers are among the most dangerous on the road, supported by a 2011 AAA study titled "Unlicensed to Kill," which found unlicensed drivers are five times more likely to be involved in a fatal crash and flee the scene than licensed drivers. The LAPD said officers will begin implementation within weeks.

Inmate Charged With Killing Cellmate Now Faces Death Penalty: Denny Walsh of the Sacramento Bee reports federal prisoner Samuel Stone, 32, faces the death penalty following charges of brutally murdering his cellmate in 2003 while housed in a segregation unit at the U.S. Penitentiary in Atwater, California. At the time Stone was serving a life sentence for two murders in 1999.  The government's notice that it will seek the death penalty says Stone "poses a continuing danger" to inmates, prison guards, and other officials "at correctional institutions where he is or will be incarcerated." Duh.  

Lafler, Part III: The March of Proceduralism

Q:  What is the most important thing a constitutional system of criminal adjudication is supposed to produce?

A:  Just and reliable outcomes, exonerating the innocent and punishing the guilty as the law prescribes.

Q:  Is that what Lafler will encourage?

A:  Do you wanna buy this bridge?

It's one thing for the Court to understand and accept the reality of modern-day plea bargaining. It's another to put that reality ahead of the constitutionally-designated method for ascertaining guilt and punishment, but that's what the Court has done. We are not dealing here with the usual circumstances that, over the last fifty years, have called for the Court's intervention  --  a defendant who, because of some procedural deficiency, has been unjustly or illegally convicted and punished. Here, we have a defendant who received exactly what the Framers intended -- a trial. The punishment he got after that trial is not claimed to be illegal or even unfair (as unfairness is conventionally understood, i.e., excessive or disproportionate). It is claimed merely to be more than he would have been able to extract from a system so overstuffed and so starved of resources that a watered down plea deal was the best it could do.

Lafler is so nonchalantly cynical as to amount to a burlesque of the trend of the last fifty years, in which the concern  --  dare I say obsession  -- with criminal procedure has overtaken the more serious, and preferable, concern with just outcomes. Procedure is now driving the train, and Lafler will only make it more so. 

Lafler, Part II

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Erica Goode of the NYT has a balanced article in today's paper surveying what some practicing attorneys and academics are thinking about the probable impact of Lafler and Frye. Toward the end, Ms. Goode recounts one particularly sourpuss assessment:

The implication of the decisions is that defendants should be rewarded with the lesser sentences afforded by plea bargains simply because "the squeezed economics of the system demand that almost all cases be processed by watered-down negotiation rather than by trial," said William G. Otis, a former Appellate Division chief at the United States attorney's office in the Eastern District of Virginia.

"That view of the system is perverse," Mr. Otis said, "a virtual tip of the hat to cynicism sailing under the flag of practicality."

Kent is particularly apt at analyzing the legal particulars of cases.  In my Golden Years (I would really like to strangle whoever invented that phrase), I like to look at the aesthetics as well,  That's what I was doing in the passage Ms. Goode quoted.  Not to put too fine a point on it, the aesthetics stink.

SF Sheriff Suspended

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Rachel Gordon and John Coté report in the SF Chron:

San Francisco Mayor Ed Lee swore in an interim sheriff Wednesday afternoon after he suspended Sheriff Ross Mirkarimi from office and charged him with official misconduct.

View the charging documents (PDF)

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Mirkarimi, 50, was sentenced Monday to three years probation for the false imprisonment of his wife, a misdemeanor charge to which he pleaded guilty last week in a plea bargain. He was accused of inflicting a bruise on his wife's arm when he grabbed her during a New Year's Eve argument in front of their 2-year-old son. At the time, Mirkarimi was a member of the Board of Supervisors.
In case you are wondering why one local government has a mayor and a sheriff, SF is a consolidated "city and county," the only one in California (so far).

Publication Bias

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This post by Brian Vastag at the WaPo's health blog, The Checkup, does not relate directly to crime.  What it does discuss, among other things, is "publication bias."  Studies on one side of an issue may be more likely to be published than studies on another side, so just counting published studies may not be valid to get a feel for the state of the research.  There is a financial incentive to publish studies showing that new, patented, expensive drugs are effective and more so than the old off-patent drugs.  Nobody has much incentive to publish studies going the other way.  "Instead, the negative studies were buried on the FDA website, where only a specialist with a background in statistics could understand what they meant."

Is there a "publication bias" in criminal law?  The kind of financial interest this post notes for drugs is not present.  I suspect that Political Correctness has an effect, though, on what gets published in academic journals.

Lafler, Part I

An anonymous commenter on Sentencing Law & Policy succinctly states why Lafler is a disaster:

Lafler is potentially revolutionary in that the State is now entirely at the mercy of defense counsel when it offers a plea.

Prior to Lafler, a competent prosecutor could try a clean case and present sufficiently solid evidence that any minor mistake by the trial judge would be a harmless error. Equally, by presenting an overwhelming case at trial, the prosecutor could try to make a solid case that any incompetence by trial counsel would not be [later seen as] prejudicial.

Under Lafler, however, [the same] overwhelming case which defeats a trial ineffectiveness [claim] now helps prove that counsel was incompetent in advising his client to go to trial [in the first place]. I think most prosecutors could have lived with ineffectiveness limited to failure to advise -- that [is something] a prosecutor can cure on the record prior to a plea expiring.  But including misdavising is open season for attorneys opting to fall on the sword for their client which is not as infrequent as the Kennedy opinion assumes.

If I were back in the US Attorney's Office, I would think long and hard before I offered a defendant a plea bargain, ever.

News Scan

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NJ Bill Introduced to Collect DNA Samples for Minor Crimes: Charles Hack of The New Jersey Journal reports New Jersey Senator Nicholas Sacco (D-North Bergen) introduced legislation this week to collect DNA samples from those convicted of disorderly persons offenses. He said the goal of the bill is to reduce the number of unsolved crimes. New Jersey's current state DNA law requires DNA samples from anyone convicted of a first- to fourth-degree crime. Disorderly persons offenses include shoplifting goods under $200, criminal mischief, defiant trespass, simple assault, disorderly conduct, and prostitution. The bill has been referred to the Senate Law and Public Safety Committee.

Oklahoma Citizens to Vote on Removing Governor from Nonviolent Parole Process: The Edmund Sun (OK) reports the Oklahoma Senate on Monday approved Senate Joint Resolution 25, which will put on the November ballot an option for voters to take the governor out of the parole and pardon process for nonviolent offenses. The resolution only had to be approved by both chambers of the legislature, and does not have to be considered or approved by the governor, to go on the ballot. SJR 25 would amend the state Constitution and give the board total power to decide parole requests for nonviolent offenders. The governor would still review parole requests for violent crimes. "No other governor in the country is involved in their state's pardon and parole process for nonviolent offenses," said Oklahoma Senator Josh Brecheen, one of the author's of the resolution. "We're the last state in America to task our governor with this responsibility."

Connecticut Legislative Committee Approves Death Penalty Repeal: Ken Dixon of Greenwich Time reports Connecticut's Judiciary Committee on Wednesday approved a bill that would repeal the state's death penalty and replace it with life in prison without the possibility of parole. Although the bill only applies to future crimes, many predict that if passed, those currently on death row would have grounds for appeal. The bill now goes to the Senate. 

The Stand-Your-Ground Law

There is presently a lot of discussion over the shooting of Trayvon Martin by George Zimmerman in Sanford, Florida on February 26.  CNN has this story.  Perhaps the most sensible comment is the one by, of all people, Jeffrey Toobin.

"Clearly, the question at the heart of the case is whether Zimmerman reasonably felt threatened," Toobin said. "On this issue, the evidence currently seems murky."

Never wanting to waste a good crisis, though, some people are using this controversy to attack "stand your ground" laws.  These laws say that if you are unlawfully attacked, you can resist.  You are not required to retreat from a place where you have a right to be.

These laws do not give a person a right to be the aggressor and certainly not to be a vigilante, which is the charge being made against Zimmerman.

Overall, the law tends to be too restrictive of the right of self-defense, not too lax.  If the other guy is the aggressor, you should be allowed to use as much force as you need to defend yourself, and if he is hurt or killed, that's what he gets for attacking you in the first place.  The same is true of anyone who breaks into your home.  The possibility that someone may be home and shoot a burglar dead is an occupational hazard of burglary.  To avoid that hazard, don't break into homes.  Easy enough.

Government cannot provide us with sufficient protection.  In California, especially, our government is in the process of putting criminals on the street who should be in prison because it cannot afford the inflated price of our prisons.  If government is not going to protect us from them, the least it can do is allow us to protect ourselves.
Well that was quick.

The U.S. Supreme Court decided Martinez v. Ryan yesterday.  See post here.  A Texas murderer, Jesse Joe Hernandez, wants to invoke it in a successive petition in Texas state court, claiming his first collateral review lawyer was ineffective.  Brandi Grissom has this story in the Texas Tribune.

No dice says Texas CCA.  Doesn't meet the statutory criteria for a successive petition.  A concurring opinion agrees that this is correct given Texas CCA's past interpretation of the statute but asks the Legislature to amend it.

Martinez is based on the U.S. Supreme Court's assessment of the equities.  It is not constitutional law binding on states.  State courts need not follow it for state proceedings.  Where state statutes are contrary, they cannot.

Georgia Sentencing Laws

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Bill Rankin of the Atlanta Journal-Constitution has this story on a bill to make changes in Georgia sentencing law.  He describes the changes as "sweeping," but in comparison to California's disastrous "realignment" program they seem rather modest.

The bill would adjust some dollar thresholds for felony theft upwards.  Inflation tends to make formerly petty thefts grand if the thresholds aren't adjusted periodically, and this is a very old problem.  See William Blackstone, Commentaries on the Laws of England, vol. 4, pp. 238-239 (1st ed. 1769).

Several offenses are to be graduated more finely into degrees, including drug offenses by weight of the drug, different types of burglaries, and even different types of forgeries.  The drug-weight changes will be phased in so as not to overload the crime lab.

News Scan

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Execution in Mississippi Yesterday: Jesse Bass of Hattiesburg American reports Larry Matthew Puckett, 35, was executed by lethal injection Tuesday at the Mississippi State Penitentiary. Puckett was convicted of the 1995 murder and sexual battery of Rhonda Hatten Griffis, his former boss' wife and mother of two. She was found by her husband in a large pool of blood in their living room, bleeding with several gashes on her head, back, chest, and neck. She had several defensive wounds on her hands, arms, and elbows. "Today we witnessed the result of a choice made by Matt Puckett," said Nancy Hatten, the victim's mother, following the execution. "If he had chosen to live as a law-abiding citizen rather than choosing to murder our daughter - our only child - who was a wife and mother, we would not be here today."

ACLU Releases Report on Realignment: Tracey Kaplan of San Jose Mercury News reports the ACLU of Northern California released a new report Tuesday reviewing the implementation of realignment. The report was especially critical of the amount of inmates kept in jail while awaiting trial, increased spending on jails, and the lack of state involvement in helping counties successfully implement realignment. Many sheriff's criticized the report, saying the ACLU doesn't have a realistic grasp on the situation. "I'm already letting out the best of the worst,'' said Sheriff Adam Christianson of Stanislaus County.

Supreme Court Ruling Prompts Petition in Texas: Brandi Grissom of The Texas Tribune reports Brad Levenson, director of the Texas Office of Capital Writs, filed a petition with the Texas Court of Criminal Appeals on Tuesday afternoon on behalf of condemned inmate Jesse Joe Hernandez, arguing that his March 28 execution should be stayed, in part, because of the U.S. Supreme Court's ruling Tuesday in the Martinez v. Ryan case. Hernandez killed a 10-month-old boy in Dallas in 2001. Levenson argues Hernandez's trial lawyers and initial appeals lawyers were ineffective for failing to investigate further why the child died. Levenson said although the ruling applies to federal court,  the same principle ought to apply for state courts. "We're saying the state courts should also take a look at these claims for the same reason the Supreme Court would take a look at them," he said.

Arizona Supreme Court Approves Two Executions: The Associated Press reports the Arizona Supreme Court on Tuesday approved the upcoming executions of Thomas Arnold Kemp, 63, and Samuel Villegas Lopez, 49. Kemp is scheduled to be executed on April 26, and Lopez is scheduled to be executed May 16. Kemp was sentenced to death for the 1992 kidnapping and murder of a 25-year-old man. Kemp and his accomplice held the victim at gunpoint and used his debit card to withdraw $200 before taking him into a desert area, where they forced him to undress and shot him twice in the head. The two men then kidnapped a married couple and made them drive to Colorado, where Kemp raped the man. The couple later escaped. During his sentencing trial, Kemp said his victim was "beneath my contempt." "I spit on the law and all those who serve it," he said. Lopez was sentenced to death for robbing, raping, and stabbing to death a 59-year-old woman in her apartment in 1986. She was found half-naked with three major stab wounds to her head, one on her face, and 23 in her left breast and upper chest. She had been blindfolded and gagged with her own clothing, and her throat was slit. Semen on her body was matched to Lopez's after he was arrested for a different rape less than a week later.

Occupy Protesters' Tweets Used Against Them: Tamer El-Ghobashy of the Wall Street Journal reports Manhattan prosecutors are using social media such as Twitter, one of the Occupy movement's principal organizing tools, to prosecute hundreds of Occupy protesters on lower-level charges like disorderly conduct. Twitter's published policy says it doesn't release users' private information "except as lawfully required by appropriate legal process such as subpoena, court order, or other valid legal process." While the subpoenas may be legal, protesters say they are an attack on free speech. "The lesson is, if you're speaking publicly and leaving a record as to who you are, that's information the government can legally access," said Orin Kerr, a professor of law at George Washington University.

Failure of Consideration

Say you offer to buy my car for $10,000.  After consulting with my expert, I reject the offer.  Turns out my expert gave me bad advice.  The next week, I want to go through with the deal.  In the meantime, though, I have wrecked the car.  Would it be fair to make you pay me $10,000 for the now-wrecked car?

Of course not.  The thing you offered $10,000 for no longer exists, at least not in a form worth anywhere near $10,000.

A prosecutor offers a plea bargain to avoid the expense and uncertainty of trial.  Once the trial happens, there is no way the prosecution can receive the consideration it offered.  Restoration of a pre-trial offer after the trial has occurred is therefore never a fair remedy unless the underlying problem was somehow the fault of the prosecution.

The Supreme Court didn't see it that way today in Lafler v. Cooper.  A companion case, Missouri v. Frye deals with a similar situation with earlier and later pre-trial offers.

This is shaping up as one of the worst Supreme Court terms in a long time.

How can states protect themselves?  At a minimum, in the Cooper situation the defense lawyer should be personally liable for the cost of the trial.  If the defense was the public defender's office, the cost of prosecution should be transferred from the public defender's budget to the district attorney's budget.

Update:  From Justice Scalia's dissent in Cooper:

I am less saddened by the outcome of this case than I am by what it says about this Court's attitude toward criminal justice. The Court today embraces the sporting-chance theory of criminal law, in which the State functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated. I do not subscribe to that theory. No one should, least of all the Justices of the Supreme Court.

Martinez is narrow, for now

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The rule of Coleman v. Thompson, 501 U.S. 722 (1991) has for 21 years protected state judgments from a never-ending spiral of ineffective assistance claims. Without the Coleman rule, there would be no end to attacks on a judgment because every new attack could claim the alleged ineffectiveness of the prior lawyer as cause for not having raised the issue in the previous attack. In capital cases, such a never-ending spiral means an indefinite delay, and hence denial, of justice.

The opinion of the Court in Martinez v. Ryan assures us that it "qualifies Coleman by recognizing a narrow exception...." (Slip op. at 6, emphasis added.) Yes, it does, for now. Justice Scalia warns in dissent that the narrowness will not last.

The exception is: "Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." What are "initial-review collateral proceedings"? On page 5, the Court defines them as "collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial." Okay, is that "first occasion" as a matter of rules or "first occasion" as a practical reality? The Court tells us at several points that it means first occasion as a matter of rules.

News Scan

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Chicago Police Address Gang Violence: CBS Chicago reports after a particularly violent weekend, Chicago Police Superintendent Garry McCarthy says they are revising their gang strategy and building gang intelligence. He said the information needs to be better relayed to beat officers so they can anticipate retaliatory gang shootings. "We can, and must, do more," McCarthy said Monday. Last weekend in Chicago there were 37 shootings, 46 victims, and 9 murders, including that of a 6-year-old girl. McCarthy says almost all of the incidents from the weekend were gang related.

California Inmates Petition the United Nations: Gillian Flaccus of the Associated Press reports an attorney representing hundreds of inmates held in solitary confinement in California prisons because of their gang ties said he will petition the United Nations to stop the practice and launch an investigation into the living conditions and medical care of the inmates. According to data from the California Department of Corrections and Rehabilitation, about 2,300 of the 4,200 inmates assigned to segregated housing units in the state are kept there because they are gang members or gang associates. Jeffrey Callison, a department spokesman, said the petition is unnecessary because prison officials have already proposed changes to make it easier and quicker for inmates with gang ties to earn their way out of isolation that could go into effect by the end of the year, depending on a review process that includes public input. But Peter Schey, executive director of the Center for Human Rights and Constitutional Law, says the proposed changes do not go far enough. "It's our position that they need to abolish this policy," he said.

Assemblywoman Drafts Bill After Woman Ordered to Pay Her Rapist:
Jim Sanders of The Sacramento Bee reports California Assemblywoman Toni Adkins (D-San Diego) crafted AB 1522 after a Carlsbad woman was ordered to pay her husband $1,000 a month in spousal support and pay his $47,000 in family court legal fees even though he was convicted of raping her and sentenced to six years in prison. AB 1522 would bar a spouse convicted of a specified violent sexual felony against the other spouse from collecting spousal support, attorney fees, insurance benefits, or other payments from the victim. State law currently has a similar exception to spousal payments in cases of attempted murder or solicitation for murder. The proposed bill is scheduled to be heard today by the Assembly Judiciary Committee.

Supreme Court Hears Juvenile LWOP Arguments: Mark Sherman of the Associated Press reports the U.S. Supreme Court Tuesday debated whether juveniles convicted of murder should be sentenced to life in prison with no chance of parole. The justices are looking at two cases of juveniles sentenced to life in prison. In Alabama, 14-year-old Evan Miller beat a man and set his house on fire. In Arkansas, 14-year-old Kuntrell Jackson was involved in an attempted robbery in which another boy shot and killed a store clerk. Of the 2,300 inmates sentenced to life in prison as juveniles, only 79 are in prison for crimes that took place when they were 14 or younger. Alabama Solicitor General John Neiman Jr. said the court should respect the decisions of the states that allow juveniles to be tried and punished as adults. A decision in the cases is expected by early summer. 

Read more here:

Read more here:
The US Supreme Court decided Martinez v. Ryan today, holding that ineffective assistance of counsel in state collateral review can be "cause" for default of a claim of ineffective assistance of trial counsel, potentially allowing that claim to be litigated in federal court.

The opinion claims this is a narrow exception, but it could potentially undo much of the promise of speeding up federal review of state capital cases that we thought would follow from last term's decisions in Walker v. Martin and Cullen v. Pinholster.  As we know, there is no limit whatever to capital habeas attorneys' attacks on every prior attorney in the case.  We can expect to see in every federal habeas petition a claim that some attack on trial counsel was left out by the state collateral counsel, and that omission is alleged to be ineffective assistance.  That issue will have to be litigated in the federal court, rather than the dismissal at the threshold on the state court record that should be the norm.

Update:  On a second reading, it appears the decision is narrower than I originally thought.  See my follow-up post, Martinez is narrow, for now.

We should also not forget the bullet dodged in this case.  The petitioner's Question Presented was: "Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first postconviction counsel specifically with respect to his ineffective-assistance-of-trial counsel claim."

The answer was no under Pennsylvania v. Finley, and it remains no today.

Canadian Common Sense

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Charles Adler of Sun News Network calls for restoration of the death penalty up north in this video.

News Scan

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San Bernardino County To Release More Inmates Early: The San Bernardino County Sheriff's Department announced Friday the early release of 126 parole violators from jail to supervised programs. The county's jail system has been at full capacity since December 2011, when 150 parole violators were released before their sentences were completed. 465 inmates of various commitment types were released early to avoid overcrowding between January 1 and March 1 of 2012.

New York DNA Expansion Bill Signed Into Law: WBNG News reports New York Governor Andrew M. Cuomo signed into law Monday the state's all-crimes DNA databank expansion legislation. Manhattan District Attorney Cyrus R. Vance, Jr., said, "DNA collection is one of the most important tools we have to solve crime, prevent crime, and exonerate the innocent. Through the expanded DNA databank, this non-invasive, $30 test will produce leads in thousands of previously unsolved crimes and bring closure to crime victims and their families."

Too Crazy for Habeas?

In a criminal trial, the State is the moving party, and it cannot proceed against the defendant if he is too far gone mentally to assist his attorney.  The Tucson shooter is the best-known example.

Habeas corpus is not a criminal trial.  The state has already won its judgment.  The prisoner is the moving party.  Can a prisoner file a habeas petition, get a stay of his punishment, and then suspend the proceedings indefinitely on the ground he is too crazy to assist his habeas attorney?  Of course he can't be executed while presently insane, but halting the habeas proceeding could mean he can't be executed until years after he regains his sanity.

This morning the Supreme Court decided to take up two cases on this issue, one from Arizona and one from Ohio, for argument and decision in the term beginning next October.  The orders list is here.  In Ryan v. Gonzales, No. 10-930, the Question Presented is: "Does 18 U.S.C. § 3599(a)(2) which provides that an indigent capital state inmate pursuing federal habeas relief 'shall be entitled to the appointment of one or more attorneys' entitle a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?"  The correct answer is "of course not."  Entitlement to appointment and an indefinite stay are different issues, but this is a capital case from the Ninth Circuit, so regular readers of this blog will not have any difficulty guessing which way it went.

The other case is Tibbals v. Carter, No. 11-218, from the 6th Circuit (a.k.a. the 9th upside down).  The split panel decision is here.  Opinion by Judge Martin, joined by Judge Cole.  Judge Rogers dissents.
In 1996, Congress was fed up with federal courts -- particularly the Ninth Circuit -- overturning state decisions in capital cases based on dubious legal reasoning.  The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) reduced the rate at which capital judgments were overturned, but it seemed to have the least effect in the state where it was most needed -- California.  The Ninth seems to go especially far out of its way to evade AEDPA in California capital cases.  I'm not sure why.  Maybe it is because the most murderer-friendly judges in the circuit tend to live in California and feel particularly disturbed when justice is carried out here.

The Supreme Court has been reversing the Ninth piecemeal on this for years, but last year it cracked down hard on two of the most common methods of AEDPA evasion.  In Walker v. Martin, it disapproved the Ninth's practice of declaring nearly all of California's procedural default rules "inadequate" so that it could overturn sentences on the basis of claims not properly presented in state court.  In Cullen v. Pinholster, it disapproved the practice of taking additional evidence never presented to the state court to decide if the state court's decision is "reasonable."

The Ninth has not flipped a California death sentence under AEDPA since.

Today, though, the Ninth overturned a very old case not subject to AEDPA, illustrating why Congress was right to pass that law and the Supreme Court was right to crack down on evasions of it.  In Phillips v. Ornoski, Judges Reinhardt and B. Fletcher stretch to overturn a death sentence in a fraud-robbery-murder scheme from 1977.  Judge Kleinfeld notes in dissent that the majority's conclusion is contrary to that of every other court that has considered this case:  the state trial court, the California Supreme Court, and the federal district court.

Not the present-day California Supreme Court, take note.  The claim at issue here was rejected in 1985 by the Rose Bird California Supreme Court.  See People v. Phillips, 41 Cal.3d 29, 48-49.  There was no dissent on this point.  That's right, even Rosie herself didn't buy the claim that Reinhardt and Fletcher accept today.

Will the U.S. Supreme Court review this decision?  That would be tough.  The pre-AEDPA cases are as rare as condors now, and the fact that they are few and vanishing is a pretty good argument against certiorari.

News Scan

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Oklahoma Execution Carried Out: Katie Fretland of the Associated Press reports Timothy Stemple was put to death by lethal injection Thursday at a state prison in Oklahoma. Stemple and his accomplice were convicted of beating his wife repeatedly with a plastic-covered baseball bat, then running her over with a pickup truck along a Tulsa highway in 1996, in an attempt to collect insurance money. Oklahoma's Department of Corrections said last month the state has only four doses of the lethal injection drug pentobarbital left. Stemple's is the first of three scheduled executions in Oklahoma over the next two months.

Anti-Illegal Immigration Bill Passed in Mississippi House:
Fox News Latino reports Mississippi House members passed 70-47 an anti-illegal immigration bill that would require an arrest to be made before requesting documentation proving legal status. Failure to provide proof of citizenship after an arrest could then result in deportation. After not passing once before, controversial provisions were removed which include an officer's ability to ask about a person's immigration status in a traffic stop, the possibility for officers to arrest a person for not carrying identification, requiring schools to count undocumented immigrant students, and the ability for municipal utilities to refuse power, water, sewer, and other services to illegal immigrants. House Judiciary B Committee Chairman Andy Gibson said he tried to craft a bill that would survive court challenges. The bill now goes to the Senate.

The Senate Majority

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Will federal courts in the years ahead move in the direction of giving more weight to rights of victims of crime and the law-abiding public, or will they care more about the criminals?  The primary determinant of that, of course, is the presidential election, but the Senate races matter, too.

Having a majority does not matter quite as much in the Senate as it does in the House, and since the Democrats established the precedent of routinely filibustering nominees it does not matter as much in judicial nominations as it did before.  It still matters a lot, though.

Getting Senators to vote no on an objectionable nominee takes less than getting them to filibuster.  With a Republican majority, we will get more judges through who care about law and order if a Republican is president, and we will block more who don't if a Democrat is president.

It also matters a great deal who chairs the Judiciary Committee.  Will it be Patrick Leahy or Chuck Grassley?  Huge difference.

Kimberly Strassel has this column in the WSJ on how Republican control of the Senate in the next Congress, once considered a strong bet, is endangered by efforts of the hard core to knock off Republican moderates in the primaries.  The "success" of such efforts in 2010 is why Harry Reid is still a senator and Joe Biden's seat remains in Democratic hands.

News Scan

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Oklahoma Man Who Killed Wife Set for Execution Today: Steve Olafson of Reuters reports Timothy Shaun Stemple, 46, is scheduled to be executed at 6 p.m. local time in Oklahoma today for murdering his wife in 1996 to collect almost $1 million in life insurance benefits. Trisha Stemple, 30, was beaten with a baseball bat before being run over with a pickup truck and left on the side of a road beside her car. One of her tires was punctured with a drill to make the crime look like a random carjacking. Stemple was having an extramarital affair at the time and enlisted his girlfriend's 16-year-old cousin to be his accomplice, who testified against him in exchange for a life prison term. Stemple will be the second man executed in Oklahoma this year.

Bringing Criminals Face-To-Face With Victims Doesn't Affect Recidivism:
Eleanor Bell of the Australian Broadcasting Company reports the New South Wales Bureau of Crime Statistics says a program that brings youth offenders face-to-face with victims of crime makes no difference in the rate at which they re-offend. The bureau looked at almost 1,000 youth referred to a Youth Justice Conference and compared them to the same number of youth dealt with by that state's Children's Court. The bureau found that young offenders made to confront their victims reoffend at the same rate as those that go through the Court. The bureau's Dr. Don Weatherburn says there still are community benefits to this type of program. "It works in the sense that it makes the victims of crimes or victims who participate in these processes much more satisfied, less angry about the offence," he said. "But it doesn't work to reduce juvenile reoffending, because it doesn't really address the causes of juvenile offending."

Blago Goes to Prison: The Associated Press reports former Illinois Governor Rod Blagojevich has entered a federal prison in Colorado this morning to begin his 14-year sentence for multiple corruption convictions. Blagojevich, 55, is the second former Illinois Governor to go to prison for corruption. "I'm leaving with a heavy heart, a clear conscience and I have high, high hopes for the future," said Blagojevich.

NY Legislature Agrees on DNA Bill: Mirela Iverac of WYNC News reports New York state lawmakers reached an agreement late Wednesday on a bill to expand the state's DNA database to collect samples from all offenders convicted of a felony and most misdemeanors. According to Governor Andrew Cuomo, this will make New York the first "all crimes DNA" state in the nation. Only those convicted of marijuana possession will not have to provide a DNA sample, as long as they have not previously been convicted of another misdemeanor or felony. The bill allows defendants in certain criminal cases to obtain DNA testing prior to trial to demonstrate innocence, and allows certain convicted criminal defendants to have access to the database.

Court Rules Herzog Placement Valid:
Jordan Guinn of The Stockton Record reports California's 3rd Appellate District Court ruled Loren Herzog was rightfully paroled to the state-issued trailer in a fenced-in compound outside High Desert Prison, where he committed suicide earlier this year. The decision reversed a previous ruling from a Lassen County trial court that ruled Herzog's placement in the county was not in the best interest of the public and that the California Department of Corrections and Rehabilitation had illegally paroled him there. The CDCR had appealed that decision. According to the court ruling, "It was only after the Department determined that his prospective placement in San Joaquin County would locate Herzog within 35 miles of victims and witnesses that it exercised its discretion to find a more suitable placement." Even though Herzog died during the appeals process, a ruling was made on the topic because the court said the issue of a parolee being unwanted in multiple counties is likely to be a reoccurring issue.   

Deal on Judges

Todd Ruger reports at BLT, "After months of backlog and partisan recrimination, Senate leaders reached an agreement to move forward with judicial nominees this afternoon that assures 12 federal district court judge picks and two circuit court selections will get confirmation votes before the summer."  There are 17 nominees total.

"The two appellate judges in the deal are Stephanie Thacker in the 4th Circuit and Jacqueline Nguyen in the 9th Circuit."  "The circuit judicial nominees who did not make the deal include Andrew Hurwitz of the 9th Circuit; Paul Watford, also of the 9th Circuit; and Patty Shwartz of the 3rd Circuit."

News Scan

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Oregon Inmate Seeks New Death Warrant: Helen Jung of The Oregonian reports a lawyer for condemned inmate Gary Haugen says a Marion County circuit judge should issue a new death warrant for Haugen, after Governor John Kitzhaber announced in November that he would not allow any executions to proceed while he is governor. Haugen was sentenced to death in 2003 for killing a fellow inmate at Oregon State Penitentiary, where he was serving a life sentence for the 1981 murder of his ex-girlfriend's mother. Haugen was scheduled to be executed in December. Haugen's lawyer cites several reasons why the reprieve is not valid. Haugen says the decision leaves him in limbo, where he cannot be executed nor receive a commutation of his sentence, and amounts to cruel and unusual punishment.

DNA Match Leads to Arrest in 1974 Slaying of Teen Girl: Harry Harris of the Oakland Tribune reports a DNA match led to the arrest of Curtis J. Tucker for the 1974 murder and sexual molestation of a 13-year-old girl in Oakland. The girl was found by her mother, beaten to death in the bathroom of their apartment. DNA from a semen stain on the girl's shirt was matched to Tucker, whose DNA was in the nationwide database from a 1978 arrest for rape in Washington. Tucker also served time in prison for a 1972 felony burglary conviction in Oakland, where he posed as a deliveryman, broke into a woman's apartment, and tried to sexually assault her. This case is believed to be the oldest cold case investigated by Oakland police.

Woman Raped at Occupy New Haven: NBC Connecticut reports a female member of the Occupy New Haven movement was raped in a tent at the Occupy camp. Police charged England Gamble with first-degree sexual assault and first-degree unlawful restraint. Gamble was convicted of first-degree sexual assault in 1991. The state sex offender registry said he did not register his address after being released from prison in 1996. 

CA Bill to Create Banned Persons List for Sporting Events: Demian Bulwa of the San Francisco Chronicle reports Mike Gatto (D-Los Angeles) has introduced a bill that would ban people convicted of serious or violent felonies at major league sporting events from such events for up to five years. Those caught attending a game while banned would be guilty of a misdemeanor, punishable by up to a year in jail and a fine of up to $10,000. The Department of Justice would also publish and maintain an online database of those banned from sporting events, which would include their criminal history. Sports teams would be asked to contribute money to fund the online list of banned fans, and to pay those who provide information that leads to the arrest of violent spectators. The text of the bill is here.

Turning Murderers Into Victims: Lester Jackson has this piece in American Thinker about some Supreme Court Justices' tendencies to sympathize with murderers more so than victims. Dr. Jackson notes in an email that the headline was the editor's choice, not his.     

Lafler, Part I

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An anonymous commenter on Sentencing Law & Policy succinctly states why Lafler is a disaster:

Lafler is potentially revolutionary in that the State is now entirely at the mercy of defense counsel when it offers a plea.

Prior to Laffler, a competent prosecutor could try a clean case and present sufficiently solid evidence that any minor mistake by the trial judge would be a harmless error. Equally, by presenting an overwhelming case at trial, the prosecutor could try to make a solid case that any incompetence by trial counsel would not be prejudicial.

Under Laffler, however, that overwhelming case which defeats at trial ineffectiveness now helps prove that counsel was incompetent in advising his client to go to trial. I think most prosecutors could have lived with ineffectiveness limited to failure to advise -- that a prosecutor can cure on the record prior to a plea expiring, but including misdavising is open season for attorneys opting to fall on the sword for their client which is not as infrequent as the Kennedy opinion assumes.

If I were back in the US Attorney's Office, I would think long and hard before I ever again offered a plea bargain.


News Scan

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Judge Rules Wisconsin Voter ID Law Unconstitutional: Patrick Marley of the Journal Sentinel (WI) reports Dane County Circuit Judge Richard Niess on Monday ruled Wisconsin's voter ID law violates the state constitution. Last Tuesday, another Dane County Judge, David Flanagan, halted the law for the upcoming April presidential primary and local elections. Wisconsin Attorney General J.B. Van Hollen said he will appeal the decision. There are currently four lawsuits pending against the state's voter ID law, which was approved by Governor Scott Walker in May. Photo IDs were required to vote in the state for the first time in February.

California Proposes Changes to Prison Gang Policies:
Don Thompson of the Associated Press reports California prison officials on Friday released a draft of new regulations for dealing with prison gangs, especially policies that keep some gang members in isolation for years. Instead of renouncing their gang membership, gang members could earn more privileges and get out of the isolation units sooner if they stop engaging in gang activities and participate in rehabilitation and anger management programs. Terry Thornton, a spokeswoman for the Department of Corrections and Rehabilitation, said instead of focusing on separating and suppressing gang members, the new system would focus on trying to change the behavior of gang members through rewards and punishment. Gang associates would no longer be automatically sent to the security housing units, and many could continue to live in the general prison population.

Missouri Advances Changes to Parole and Probation: Wes Duplantier of the Associated Press reports the Missouri House and Senate last week both passed plans to overhaul the state's parole and probation systems. For every month they go without a violation, non-violent parolees or probationers would be given an additional 30 days of credit toward their sentence. Some felons who violate parole or probation for the first time would be given 120-day "shock" jail sentences instead of being returned to prison longer. The plans may not end up saving the state as much money as originally thought because of differences in the policy suggestions by a working group and the actual legislation passed by lawmakers.    

Solyndra and Other Forms of Cluelessness

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Solyndra pushed its way into the news primarily as an example of how the "enlightened" push for "green energy" could prove to be a taxpayer-financed disaster, not to mention a brewing scandal, as it turned out that millions were being shoveled into what was widely known to be a failing project, but one that was near and dear the the heart of one of Mr. Obama's billionaire campaign bundlers.  Someone must have forgotten that when the government picks business winners and losers, political considerations are never far behind  --  and, thus, neither is the smell, and often the fact, of corruption.

The story is here, but I bring it up mainly for its wonderful first paragraph:

Perhaps the greatest example of cluelessness in the pages of the New York Times was their bafflement a few years ago over the fact that the prison population was still rising even though the crime rate was falling, apparently unable to discern a possible link between the two. ("Crime Keeps on Falling, But Prisons Keep on Filling" was the impossible-to-lampoon, Onion-worthy headline.) Or as one wit put it: we started lowering the crime rate when we finally acknowledged that the "root cause" of crime is criminals, and treated them accordingly.


Swift Military Justice?

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Ernesto Londoño reports in the WaPo:

KABUL -- Afghan officials expressed dismay and rage Monday as villagers quietly buried 16 civilians, including nine children, allegedly shot by a rogue U.S. soldier in southern Afghanistan the day before.

Some members of the Afghan parliament cast doubt on the U.S. account that a lone gunman was responsible for the killings and questioned whether the staff sergeant taken into custody would be held accountable for the worst atrocity by a U.S. soldier in the decade-long war.

*                       *                      *

To deflate anger over the killings, U.S. officials will need to act swiftly and sternly, said Davood Moradian, an assistant professor of political science at the American University of Afghanistan.

The Afghans doubt the swiftness and certainty of American military justice.  Well, can you really blame them?  I worked on a military justice case in the Supreme Court once:  Loving v. United States, 517 U.S. 748 (1996).  The judgment in that case still has not been carried out, 16 years after the Supreme Court affirmed it.

Update:  AP reports, "Defense Secretary Leon Panetta says the death penalty is a consideration as the military moves to investigate and possibly put on trial a U.S. soldier suspected of gunning down 16 Afghans."

Shooting "At" a Vehicle

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People v. Manzo, S191400, California Supreme Court, March 8:

Penal Code section 246 (section 246) makes it unlawful for any person to maliciously and willfully discharge a firearm at an occupied motor vehicle. In this case, defendant was convicted of violating section 246 by standing outside his truck and shooting Jose Valadez, a passenger. Defendant argues that because the gun had crossed the threshold of the truck at the time of the shooting, the gun was not "discharged 'at' the vehicle" but was instead discharged "within" the vehicle. According to defendant, "[w]hat matters under section 246 is what the shooting is 'at,' a determination that depends on the location of the discharge (the tip of the gun), not the location of the shooter." The Court of Appeal decided this was a reasonable construction of section 246 and invoked the rule of lenity to reverse defendant's conviction for shooting at an occupied vehicle.

Although we agree that the statutory text alone is susceptible of more than one interpretation, including an interpretation favoring defendant, reliable extrinsic aids to statutory construction convince us that the Legislature intended section 246 to apply to a person standing outside an occupied motor vehicle and shooting into it, even if the gun has crossed the plane of the vehicle. Because we can discern the Legislature's intent in enacting section 246, there is no need to invoke the rule of lenity as "a tie-breaking principle" in this case. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1102, fn. 30.) We therefore reverse the judgment of the Court of Appeal insofar as it reversed defendant's section 246 conviction and the accompanying true findings on the firearm and great bodily injury allegations.

News Scan

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DOJ Rejects Texas Voter ID Law:  Julian Aguilar of The Texas Tribune reports the U.S. Department of Justice has rejected Texas' application for preclearance of its voter ID law. A Justice Department spokeswoman said, "The department's letter states that Texas did not meet its burden under Section 5 of the Voting Rights Act of showing that the law will not have a discriminatory effect on minority voters, and therefore the department objects to the Texas voter identification law." The bill requires voters to present a state-issued photo ID before casting a ballot. Texas Attorney General Greg Abbott filed suit against the Justice Department to have the state's voter ID law implemented immediately. The Justice Department has until April 9 of this year to respond to the state's lawsuit, which Abbott says his office will drop if preclearance is granted.

Text-Messaging Woman Gets 5-Years for Vehicular Manslaughter: Andy Furillo of the Sacramento Bee reports Sequoia Monay Jones, 22, was sentenced today to five years in state prison for text-messaging while driving, which resulted in the death of Robert Wilson, 64, who was knocked off his motorcycle by Jones and then hit by another car. Jones also admitted to fleeing the scene. Deputy District Attorney Tan Thinh said he is not aware of any other case in Sacramento County in which text messaging had been implicated in a fatal traffic wreck. It is likely that this will not be the only case in which text-messaging results in a fatal collision.

Decrease of Illegal Immigrants, Increase in Other Crimes:
The New York Times reports the number of illegal immigrants crossing into Arizona and other border states has declined. In 2005, 1.1 million migrants were apprehended, in comparison to about 340,000 in 2011. Furthermore, the number of migrant smugglers' drop houses being found in Arizona have decreased dramatically. However, there has been an almost quadruple increase in the number of assaults federal officers face from illegal migrants, from being hit by rocks to shootings. In 2008, there were about 117 assaults on officers, while in 2011 the number soared to nearly 500.

California Prisons Still Face High Demand for Medical Care Despite Realignment: Julie Small of KPCC News reports despite realignment lowering the California prison population, most of the convicts in need of medical care are older and still serving sentences for having committed violent, serious, or sexual felonies. For example, California State Prison Solano in Vacaville is home to 1,500 inmates over the age of 50. Solano Prison also has about 3,000 total inmate patients with chronic diseases. Federal Receiver Clark Kelso, appointed to oversee medical care in California prisons, predicts half of the inmates in state prisons will suffer from chronic diseases or serious mental disorders within the next decade. With the aging of inmates in prison for life, as well as second- and third-strikers, comes the progression of diseases and disorders, a need for more expensive treatments, and an increase in demand for medical care.

Reamore here:

Rejecting Mitigation

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Here's one for the "more interesting for who said it than what was said" file:

In a concurring opinion in a federal sentencing case:  "It appears to me that aside from cooperation with the government there are no other mitigating factors in the case of a foreign enemy terrorist, Ressam or any other."

And who is this right-wing, redneck, pro-government judge who categorically rejects all but one form of mitigating evidence for an entire class of cases?

What About the Kids Who Behave?

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School discipline and criminal punishment have some things in common.  Indeed, failure to teach children to behave at a young age is one of the true "root causes" of crime.

Another thing the two have in common is the political left's obsession with "disparity" and its willingness to assume that any difference in statistics is the result of racial discrimination.  Jason Riley has this column in the WSJ on a new study and the Education Secretary's predictable reaction.

The reaction to studies like this reveals disturbing sensibilities on the left when it comes to education in general and black education in particular. The data were compiled by the Education Department's civil rights office, which probably thinks that it's doing black people a favor by highlighting these racial disparities and pressuring schools to reduce black suspension rates. No thought, it seems, was given to whether this course of action helps or harms those black kids who are in school to learn and not act up.

Foundation Drift

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Over at the Volokh Conspiracy, there is much discussion about the struggle for control of the Cato Institute, originally named the Charles Koch Foundation.  The Koch brothers are seeking to enforce a shareholder agreement that effectively gives the existing shareholders continued control when one dies (which happened).

The commentary at VC is almost uniformly against the Koch brothers and for the present Cato management.  Personally, I would like to see Cato devote its resources more to economic libertarianism and spend less (or nothing) duplicating the ACLU's work of enabling terrorism and helping murderers go free when constables blunder.  I don't know if that would be the result of the Koch brothers prevailing, but I hope so.

The underlying problem of foundation drift (mostly ignored in the VC commentary) is discussed in this op-ed in the WSJ by Adam Meyerson, president of the Philanthropy Roundtable.  Meyerson doesn't mention Cato, but he discusses the disastrous drift of the Ford, Pew, and MacArthur organizations.

When Not to Bring a Prosecution...

| 2 Comments when Gloria Allred wants you to bring it.

Never one to pass up a chance at publicity of whatever quality, Ms. Allred has suggested that Rush Limbaugh face criminal prosecution for publicly calling a Georgetown law student a "slut."  This was because the student testified before Congress in a manner inconsistent with Mr. Limbaugh's views about the (required) provision of contraceptives.

Limbaugh apologized for his crude and insulting remark, as well he should have.  Indeed, there's a rumor about that radio talk show hosts, and other human beings, should think about what they say before they say it.  But the idea that a person should be prosecuted for being unbearably crude is, well, crazy, not to mention dangerous.

Ms. Allred points to a statute providing that anyone who "speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity" is guilty of a misdemeanor of the first degree.  The statute sounds to me like something out of the 18th Century, and embodies a paternalistic attitude toward women that, in any other context, would make Ms. Allred's head explode.  But, to cut to the chase, it is probably the most obviously unconstitutional statute I have ever read.  The statute, and Ms. Allred's desire to use it, are so out to lunch that they make liberal McCarthyite campus speech codes look good.

News Scan

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California Awards $602 Million to Counties for Jail Projects: The Associated Press reports the Corrections Standards Authority in California on Thursday awarded $602 million to counties to help pay for jail construction and expansion projects, as counties are now responsible for housing tens of thousands of felons under realignment that previously would have gone to state prison. Los Angeles, Riverside, and Orange counties received the most money at $100 million each. 

9th Circuit Critical of Arizona Inmates Wearing Pink Underwear:  Jacques Billeaud of the Associated Press reports the 9th U.S. Circuit Court of Appeals questioned the legal justification of Maricopa County Sheriff Joe Arpaio's policy of having inmates wear pink undergarments. A lawsuit against Arpaio's office was brought by the estate of Eric Vogel, who shouted that he was being raped as a group of officers in Arpaio's jail stripped and dressed him in prison clothing, including pink underwear, after Vogel refused to change out of his street clothes after being arrested. The Court ruled 2-1 to reverse the 2010 jury verdict in favor of Arpaio's office and ordered a new trial. In its majority decision, the Court said, "Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification." Arpaio said he plans to ask a larger panel of the appeals court to reconsider the case. The Court's opinion is here.

Mississippi Supreme Court Upholds Barbour Pardons: Holbrook Mohr of the Associated Press reports the Mississippi Supreme Court on Thursday upheld the nearly 200 pardons issued by outgoing Mississippi Governor Haley Barbour. Ten offenders were incarcerated when their pardons were issued, including four convicted killers and a man serving life for armed robbery who all worked as inmate trusties at the Governor's Mansion. The Court ruled 6-3 that it was solely up to the governor to decide whether the 30-day notification requirement was met, and that it couldn't overturn the pardons because of the separation of powers of the branches of government. Attorney General Jim Hood said he will pursue an initiative to amend the Constitution "to make it very clear that the judicial branch is responsible for enforcing the 30-day notification period in the future." 

Student Molested by Counselor Can Sue School: Bob Egelko of the San Francisco Chronicle reports the California Supreme Court ruled Thursday a high school student molested by his counselor can sue the school for negligence in hiring and supervising the counselor. The difference in the present case from the Court's 1989 ruling that shielded schools from lawsuits over sexual abuse by their employees is the plaintiff in this case claimed school officials knew, or should have known, that the counselor had a record of sexual misconduct with minors before she was hired. The high court reinstated the student's lawsuit Thursday after a state appeals court ordered the suit against the school district be dismissed in 2010.

Study Says CA Can Move Maximum-Security Inmates: Don Thompson of the Associated Press reports an 18-month University of California study commissioned by the California Department of Corrections and Rehabilitation says the state can safely house some maximum-security inmates in lower-level prisons. As realignment progresses, the state is predicted to have extra space in medium- and minimum-security prisons as maximum-security prisons remain overcrowded.

News Scan

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Court Rules Okay to Search Cell Phones Without Warrant: Jay Gormley of CBS Dallas/Fort Worth reports the 7th U.S. Court of Appeals affirmed a ruling from a district court in Indiana that it is legal for police to search cell phones without a warrant. Judge Richard Posner said searching the cell phone of a suspect was a matter of urgency, and in the time required to obtain a warrant. important and time-sensitive material could be deleted via a remote device. The court's opinion is here.  

Lawsuit Alleges Arizona Prisons Lack Adequate Inmate Health Care: The Associated Press reports a lawsuit filed Tuesday alleges Arizona state prisons are not providing adequate medical and mental health care to prisoners. The suit says prisoners face dangerous delays in treatment, and are sometimes denied treatment. Corrections officials are accused of having deliberate indifference toward prisoners and having failed to correct problems after they were made aware of them.  The 14 prisoners who filed the lawsuit argue that Arizona's prisons have violated their Eighth Amendment protection against cruel and unusual punishment, and want prisons better staffed with health care workers.  

Realignment Prompts Lawsuit for Felon Voting Rights:  The Associated Press reports that the League of Women Voters and two other prisoner's rights groups have sued California elections officials on Wednesday, claiming that tens of thousands of felons being shifted to county jails and community supervision under the state's new realignment law should be eligible to vote.  The lawsuit was filed in the 1st District Court of Appeal in San Francisco.  See previous post here, with a link to the CJLF press release.  The ACLU of Northern California press release is here.

California's Constitution provides, on the subject of felon voting, "The Legislature shall ... provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for conviction of a felony."

Crystal clear, right?  Felons lose their right to vote when they are sentenced to imprisonment (but not probation), and they get it back when they have completed both the incarceration term and any subsequent parole period, right?

Well, never underestimate the ability of lawyers to tie the language in knots.  As a result of Gov. Jerry Brown's realignment program, lower level felons will do their time in county jail.  But obviously they are still "imprisoned ... for conviction of a felony," so that doesn't change the voting qualification.

Not according to the ACLU and the League of Women Voters.  They have sued the Secretary of State (a Democrat, for those who like to keep track of that) for opining that people in jail are "imprisoned."  Honestly, I'm not making this up.

CJLF's press release is here.

Arizona Execution

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Mark Jones was a kind and generous man, says Mesa attorney Jan Buescher in  this video by News 12 (NBC) in Phoenix.  He regularly funded scholarships to put people through law and medical school, including Ms. Buescher.

On September 4, 1991, Mr. Jones answered his door and saw Robert Towery, a man who worked on his car, who said his own car had broken down and he needed to use the phone.  Jones let him in.  In fact, Towery had planned to rob and kill Jones, which he proceeded to do.  He injected Jones with battery acid and strangled him.

It took over 20 years, but justice for this crime was finally carried out this morning.  Michael Kiefer has this story for the Arizona Republic.

Ms. Buescher says in the video she planned to be there.  She says it is the least she can do for Mr. Jones.
Yesterday, the US Supreme Court denied a stay of execution to Texas murderer Keith Thurmond, and Thurmond was executed.  No dissent is noted.  (Order here.  Docket here.)  Allan Turner has this story in the Houston Chronicle.

The high court's decision to let this execution proceed bodes well for the State of Arizona's position in the pending case on ineffective assistance of counsel on state collateral review, Martinez v. Ryan.  That case was argued on the second day of the term in October and remains undecided.  Martinez, like Thurmond, claims that the supposedly ineffective assistance of his state collateral review lawyer should furnish "cause" to let him raise in federal habeas corpus claims that he defaulted in state proceedings.

Supreme Court precedent is squarely to the contrary.  The constitutional right to counsel ends at direct appeal.  Ineffective assistance is not "cause" for default where there is no constitutional right to counsel at all.  CJLF's brief in Martinez is here.  The Fifth Circuit's opinion in Thurmond is here.

If the Court were going to overrule that precedent in Martinez would it have let the execution of Thurmond proceed?  I don't think so.

Speaking of Arizona, the Court also denied a stay in the Towery case, noted here and here.  No dissents.  The Arizona Republic has this pre-execution story.

Rape and the ACCA

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Does rape involving a minor who cannot consent but does not involve overt acts of violence qualify as "violent felony" under the Armed Career Criminal Act? According to the 11th Circuit the answer is "no" decided last month in US v. Owens, Docket No. 07-00124-CR-S, slip op. (11th Cir. February 27, 2012).  Citing the Supreme Court's holding in Johnson v. United States, ___ U.S. ___, 130 S. Ct. 1265 (2010), the court held:

For this court to uphold Owens's sentence, we would have to conclude that Ivory's holding--that Alabama's second degree rape statute "inherently poses a serious potential risk of physical injury to another" and consequently "qualifies as a crime of violence under § 4B1.2(a)(2)"--comports with the Johnson Court's definition of "violent felony" under the ACCA. We would be intellectually dishonest if we decided that in the affirmative. As the Court stated in Johnson, a crime must have as an element the use of physical force against the person of another and that physical force in the context of the ACCA means violent force. Johnson, 130 S. 1271.

News Scan

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Execution in Texas Today: Michael Graczyk of the Associated Press reports Keith Thurmond is scheduled to be executed by lethal injection in Texas tonight for the 2001 shooting deaths of his estranged wife and her boyfriend. Evidence showed Thurmond had shot his wife seven times. Her boyfriend was shot in the head twice, and was also beaten in the head with the gun. At the trial, Thurmond's son with his wife, who was 8-years-old at the time of the murders, testified that he saw his father shoot his mother repeatedly in the yard behind her boyfriend's mobile home. Thurmond's execution will be the third in Texas this year.

Norwegian Mass Killer Indicted: Bjoern H. Amland of the Associated Press reports Anders Behring Breivik was indicted on Wednesday on murder and terror charges for the slaying of 77 people in a bomb and shooting rampage in Norway on July 22, 2011. Prosecutors will seek a sentence of involuntary commitment to psychiatric care instead of imprisonment unless new information about his mental health is presented. The trial is set to start in April.

Colorado Serial Killer Linked to 4 More Murders: Kirk Mitchell of The Denver Post reports DNA and circumstantial evidence have linked a now-deceased Colorado serial killer to four unsolved murders from 1979 to 1988. Vincent Groves died in prison in 1996 while serving a life sentence for killing a 19-year-old woman and a 20 year sentence for the second-degree murder of a 25-year-old woman. He had previously been convicted of second-degree murder in 1982 for the death of a 17-year-old girl, but was released on mandatory parole in 1987. After Denver police obtained Groves' DNA from an earlier murder, crime analysts linked Groves to the murders of a 25-year-old woman, a 23-year-old woman, and a 20-year-old woman, who were all strangled in 1979. A cold-case detective said strong circumstantial evidence also linked Groves to the 1988 murder of a 25-year-old woman. Denver District Attorney Mitch Morrissey says Groves may have committed as many as 20 murders altogether.

Execution in Pennsylvania Postponed: Kristy Westbrook of the Morning Times (PA) reports the execution of
Dustin Ford Briggs, 34, scheduled for tomorrow in Pennsylvania has been postponed. Briggs was sentenced to death in 2004 for killing two county sheriff's deputies. The execution was stayed by a federal court pending disposition of Briggs' anticipated petition for writ of habeas corpus or until further order from the court. The last execution in Pennsylvania was in 1999. 

California's Juvenile LWOPs

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Even before Roper v. Simmons, California provided by statute that murderers under 18 at the time of the crime could not be sentenced to death.  So what do you do with a 17-year-old who commits a crime that would warrant death if committed by an adult?  Sentence to life-without-parole, obviously.

California further provides discretion to the judge for the 16s and 17s who commit first-degree murder with special circumstances.  The penalty is never mandatory.  Everyone in prison with an LWOP sentence under these circumstances has that sentence because the judge determined it fit the crime.

There is a drive underway to extend a possibility of parole to every under-18 murderer regardless of the circumstances of the crime.  Chris Megerian reports in the LA Times on a report by the notorious Human Rights Watch.

The report claims that half of California's juv-LWOPers did not personally commit the murder.  I seriously doubt that.  I certainly wouldn't take HRWs word for it.

Update:  It's even worse than I thought.  Under the heading "Troubling Facts About California Law and Practice" (page 3), the report says, "Nearly half of the youth sentenced to life without parole did not actually commit the murder." (Page 4.)  The authority cited for that statement is page 36 of HRW's 2008 report on the same subject. 

However, page 36 of the 2008 report does not say that.  The only statistic on that page is this:  "Respondents reported that in 56 percent of cases in which there was an adult codefendant, the adult received a lower sentence than the juvenile."  That figure, even if accurate, says nothing about the percentage of juvenile LWOP cases in which the juvenile did not personally commit the murder.

But wait, it gets even worse than that.  Who are the "respondents"?  If you were doing a study on crime, who are least reliable people you could possibly ask?  The criminals themselves, of course.  So who did HRW ask?  You guessed it.  A footnote says, "This data is based on survey data, which may be inaccurate due to the memory, perception, or self-perceived self interest of the respondents."

This is how completely fallacious claims become something that "everyone knows."  An interest group does an agenda-driven study with bad methodology and dubious sources.  They produce a report.  The qualifier is dropped into an inconspicuous footnote.  Another report cites the first report for something it doesn't really say and omits the qualifier.  Then a major newspaper reports what the study says uncritically without any checking at all.

Voila!  We now have an established fact that our Legislature can rely on to let murderers out of prison.

News Scan

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Iowa Senate Approves Expanding DNA Samples for Criminals: Rod Boshart of The Quad-City Times reports the Iowa Senate on Monday passed a bill that would require the collection of DNA samples from people convicted of most aggravated misdemeanors, which would be kept in a state database. Currently, Iowa law only requires DNA samples for felony convictions. The bill now goes to the Iowa House for consideration. Senators on Monday also unanimously voted to pass a bill that would extend the time survivors of child sexual abuse have to bring a civil cause of action from one year to ten years after reaching age 18. That bill, which also now goes to the House, also changes Iowa's discovery rule for victims of sexual abuse and extends the criminal statute of limitations in cases of sexual abuse involving a minor.

Execution Date Set for Oklahoma Murderer: Robert Garrison of News On 6 (OK) reports the Oklahoma Court of Criminal Appeals on Friday set an execution date for Michael Bascum Selsor, 57, for May 1, 2012. Selsor was convicted of killing a man during the robbery of a Tulsa convenience store in 1975. According to a report, the victim was shot six times. Selsor was sentenced to death in 1976, but his sentence was changed to life imprisonment after the U.S. Supreme Court struck down the state's death penalty later that year. His conviction was overturned in 1996 and he was retried in 1998, when he was again sentenced to death.

DHS to Track Illegal Immigrants: The Associated Press reports the Department of Homeland Security will soon present to Congress its final plan for a biometric data system to track when immigrants leave the United States. "We have to recognize that we do have this problem," Rep. Candice Miller (R-Michigan) said. "The truth is, in the 40 percentile of all the illegal (immigrants) are in this country on expired visas. They came in right through the front door." Some estimate that as many as half of the roughly 11 million illegal immigrants in the U.S. have overstayed visas. It is especially difficult to find illegal immigrants with overstayed visas who haven't committed a crime and came to the U.S. before biometric data was collected and records were computerized in 2004. 

Game Wardens Can Stop Cars Without Warrant: Bob Egelko of the San Francisco Chronicle reports the U.S. Supreme Court denied review of a California Supreme Court ruling from June that gave game wardens authority to stop and question motorists leaving hunting or fishing grounds and check on what they've bagged without a warrant or evidence of lawbreaking. State Supreme Court Justice Tani Cantil-Sakauye said since a warden would be acting for the purpose of conservation and not criminal law enforcement, a search warrant or probable cause of wrongdoing is not required.

155 Years Ago Today

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In the Supreme Court building, there are many portraits of Justices of the Court throughout its history.  In the Justices' private dining room, though, the portraits are not of Justices but of litigants -- Marbury and Madison.  They were the parties to the case that established that the Supreme Court could declare an Act of Congress void if the Court found it conflicted with the Constitution.

There should be a third litigant's portrait hanging there, in my opinion.  His picture should constantly remind the Justices of the danger of overreach, of striking down a valid act on a fabricated conflict with the Constitution because they think it is better policy to do so, i.e., of judicial activism.  His case was decided 155 years ago today.

And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
*                                 *                              *
Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself nor any of his family were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident.
Both the conclusion and the reasoning are preposterous.  Even if we place ourselves into an antebellum mindset and accept the proposition that a person can be property, still the right to property does not include the right to bring that property into a place where it is banned.  You have no right to take your California-legal medical marijuana into Utah.  If you do, and they confiscate it, you have no right to get it back.  Congress's clear authority to legislate for the territories included the power to abolish slavery in a territory, as the dissent explains.

The Court twisted the Constitution out of shape to achieve a result a majority of its members thought was desirable, contrary to the decision of the elected representatives of the people.  It would not be the last time.  We should be vigilant against such misuse of the judicial authority, and we should not hesitate to denounce it when it occurs, however much we may be criticized for attacking the independence of the judiciary.

A few years after the decision noted above, a presidential candidate made opposition to the decision a major part of his campaign.  He won, fortunately.

The Loughner Decision

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As Kent mentioned yesterday, a divided panel for the Ninth Circuit has upheld the involuntary medication of accused Tucson shooter Jared Loughner. The decision is long and traverses the mess that is our present-day involuntary medication doctrine.  But after my initial reading I'm reminded of this insight:

The issue is not whether psychiatrists should medicate people who are obviously psychotic and dangerous-- you don't need an APA amicus curiae brief for that.  The issue is whether you want to force all prison psychiatrists to be responsible for the "treatment" of every violent person out there, simply because they are "dangerous." 

The APA has always wanted the answer to be yes.  And here, again, they do not understand the consequences of this.  I can thus say, according to the strictest definition of the term, that the APA is completely insane.

There is, of course, much more to it than that - the opinion raises a number of issues related to standard of review, whether an administrative hearing is sufficient or judicial review is necessary, who's interests should form the standard, and whether Sell v. United States, 539 U.S. 166 (2003) eviscerates Washington v. Harper, 494 U.S. 210 (1990) once a defendant is committed for determination and restoration of competency to stand trial. 

I'm still thinking about the case but wanted to highlight two areas with some (very) initial thoughts. 

First, it may be the case that Harper's penological interest standard is more accommodating to the government's interest than the medically appropriate standard offered in Riggins v. Nevada, 504 U.S. 127 (1992), but they are not contrary.  For someone like Loughner, the overwhelming medical and scientific evidence strongly suggests pharmacological treatment is not only appropriate but necessary and vital.  For people with schizophrenia, psychiatric medication is indispensable whether they are dangerous or not.   

Second, Harper's dangerousness criterion is vague but is also necessary.  It is vague because saying someone is dangerous always begs the question of determinacies: for how long and under what conditions will someone be dangerous?  We often do not know the answer to this question but prison officials do need swift ways of handling dangerous and mentally ill inmates.

I hope to have more thoughts in the coming days.  

News Scan

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Connecticut Supreme Court Rules Okay to Force-Feed Inmates: Dave Collins of the Associated Press reports the Connecticut Supreme Court ruled Monday prison inmates in the state who go on hunger strikes can be restrained and force-fed. The unanimous decision came in the case of William Coleman, 51, who stopped eating in protest of his sexual assault conviction and claimed that force-feeding him violated his free speech rights and his 14th Amendment rights. "The Department of Correction has an obligation to ensure the safety and security of the inmates in our custody," a statement from prison officials agreeing with the court's decision said. "This ruling has affirmed our ability to carry out that mission." The court's opinion is here.

Convicted Killer Got Unemployment While in Jail: The Associated Press reports Sheriff's Capt. Mike Parker said Anthony Garcia received more than $30,000 in fraudulent unemployment while in Los Angeles County jail from 2008 to 2010. Garcia was convicted of the 2004 killing of a rival gang member. He has the murder scene tattooed on his chest. Parker said Garcia's father and two girlfriends would get the checks, cash them, and then deposit the money into Garcia's inmate account and the accounts of fellow gang members. Garcia's father and the two girlfriends were arrested Thursday on charges including grand theft. Authorities have no yet decided whether to charge Garcia. 

One of the Largest Methamphetamine Busts in U.S. History: John Coté of the San Francisco Chronicle reports a Palo Alto, CA police investigation into stolen iPads led to one of the largest methamphetamine busts in the country's history. 750 pounds, or 340 kilograms, of methamphetamine with an estimated street value of $34 million was seized by police and federal agents from a San Jose apartment. According to the U.S. Drug Enforcement Administration, the drugs were spotted by Palo Alto investigators who were following up on stolen iPads. The bust "is one of the largest we are aware of," DEA Special Agent Casey Rettig said. Three people were arrested after the raid, and Rettig said "there is definitely the potential for more arrests."

Medicating the Tucson Shooter

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A divided panel of the Ninth Circuit has upheld the involuntary medication of accused Tucson shooter Jared Loughner.  Trial in that case has been delayed because Loughner is mentally incompetent.  The opinion, concurrence, and dissent run 117 pages.  We may have more to say on this case when we have time to read these opinions.

Update:  Jacques Billeaud has this story for AP.
The US Supreme Court unanimously reversed the Ninth Circuit in yet another habeas case this morning.  Justice Kagan wrote the opinion for the Court in Martel v. Clair.

The case involved a last-minute request by petitioner to change attorneys just as the district judge was finishing up his opinion denying the petition.  The Ninth Circuit identified the correct "interest of justice" standard, says the high court, and then proceeded to botch its application.  This is a mixed result, accepting the defense's standard in name but toughening it up in practice.

"Because a trial court's decision on substitution is so fact-specific, it deserves deference; a reviewing court may overturn it only for an abuse of discretion."  It practice, that means this is one more issue that habeas petitioners can regularly litigate on appeal but on which they will very rarely prevail.  One of the factors on appeal is "the adequacy of the district court's inquiry into the defendant's complaint...."  To protect their judgments, government attorneys need to be alert to the need to create a record of this adequacy in the district court.

Another important factor, probably decisive in this case, is "the timeliness of the motion...."  Applying the "interest of justice" standard, the Supreme Court and the district court understood what the Ninth Circuit did not:  "Protecting against an abusive delay is an interest of justice."   Martel v. Clair, 565 U.S. ___ (2012) (slip op. at 12) (emphasis in original).

Expect that line to be quoted a lot.

James Q. Wilson

We at CJLF are saddened to learn that James Q. Wilson, America's foremost thinker on the subject of crime, has died at the age of 80.  His 1975 book Thinking About Crime was a major turning point away from the disastrous folly that had misguided criminal justice policy in the 1960s and 1970s.  The major drop in crime we have seen from the early 1990s to the present is in substantial part the result of the subsequent change in policy.  Along with George Kelling, he was a pioneer in rethinking policing with their famous "Broken Windows" article.  Professor Wilson served on CJLF's Academic Review Board.  He will be greatly missed.

Former Attorney General Edwin Meese has this post at the Heritage Foundation.

Update:  Heather MacDonald has this article at the City Journal.  She notes Wilson's response to LBJ's notorious crime commission report:

News Scan

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Last of 20,000 Extra Beds Removed from California Prisons: Don Thompson of the Associated Press reports California prisons officials announced Friday they have removed the last of almost 20,000 extra beds that had been set up in common areas due to a lack of traditional prison cells to accommodate inmate populations. The state prison population has dropped by nearly 19,000 since realignment took effect in October.

California Bill Introduced to Send Realigned Offenders With Lengthy Sentences to Prison: Jessica E. David of Patch reports California State Senator Bill Emmerson (R-Hemet) has introduced Senate Bill 1441, which would require offenders who receive a sentence of over three years to serve their time in state prison instead of county jail. "Unfortunately, the governor and the majority party passed realignment without adequately weighing the consequences," Emmerson said. "Now our county jails are overcrowded and prisoners are being released early, putting our communities at risk."

Leaving California

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We have known for some time that California's misgovernment has been steadily driving businesses and productive people out of the state, but apparently some animals have had it, too.  Matt Weiser reports for the Sacramento Bee that the state's only gray wolf has left for Oregon.

California DP Repeal Initiative

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As noted in yesterday's News Scan, the anti-death-penalty advocates held press conferences yesterday announcing they had the signatures to put their repeal initiative on the ballot.  This is no surprise, as it was widely known they had the signatures.  Sam Stanton has this article in the Sacramento Bee, an expanded version of the one linked yesterday, including a photo array of the 13 murderers whose usual appeals have been completed.

Kent Scheidegger, legal director for the Criminal Justice Legal Foundation in Sacramento, said settling that issue could help executions resume.

"The opposition makes much of the fact that only 13 death sentences have been carried out, but about that many have reached the end of the pipeline and are now ready to be carried out, blocked only by the unnecessary and pointless lethal injection litigation," he wrote in an email.

Other states have changed procedures and moved forward with executions, but California has not put anyone to death since 2006 because of the legal battle.

Scheidegger added that the cost savings cited by death penalty opponents are inaccurate.

"I hope the voters reject it," he said, noting that the costs of caring for death-penalty inmates for the rest of their lives "escalate dramatically with age."

A Field Poll issued in September found most Californians - 68 percent - still support capital punishment.

more here:
Bob Egelko has this article in the San Francisco Chronicle.  Accompanying an article is an online poll.  Although online polls don't mean much due to the self-selection of respondent, it wouldn't hurt to take a minute to vote "no" on repeal.

Howard Mintz has this article in the San Jose Mercury-News:

"If the death penalty is retained, it is now likely that most sentences will be carried out," said Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation, a leading advocacy group for the death penalty.
The reason for that prediction is the Supreme Court's crackdown on the Ninth Circuit last term in three important decisions:  Walker v. Martin, Harrington v. Richter, and Cullen v. Pinholster.

News Scan

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Execution in Texas Carried Out: Michael Graczyk of the Associated Press reports George Rivas, 41, was pronounced dead at 6:22 p.m. CST yesterday for killing 29-year-old police officer Aubrey Hawkins. Four officers who worked with Hawkins and Toby Shook, the former Dallas County assistant district attorney who prosecuted Rivas, attended the execution on behalf of his family. "Today is about justice for Aubrey Hawkins and Aubrey's fellow police officers," said Shook.

Rapist Tells Victim "Learn to Let Go": Jose Martinez of the New York Post reports Adam Wright, who raped a 12-year-old girl in 2002, told his now-adult victim in court yesterday, "Let go. Learn to let go. Don't hold on to any pain, don't hold on to it," Wright told her as he was given a 47-year prison sentence. Wright had acted as his own attorney during the trial, and twice his victim ran off the witness stand in tears as he cross-examined her. The 2002 rape went unsolved until 2008, when Wright's arrest for carrying an open container of alcohol led to a DNA hit for the attack. Judge Dineen Riviezzo tore into Wright for not showing any remorse for the "particular heartlessness" of his crime. "The defendant raped a 12-year-old stranger, then completely dressed her, leading her to believe, however fleetingly, that her nightmare was over," Riviezzo said. "Then he undressed her and raped her a second time."

Family Holds Funeral for "Speed Freak Killers" Victim: Jordan Guinn of The Stockton Record reports a memorial service is being held today for Chevelle "Chevy" Wheeler, who disappeared from Stockton in 1985 when she was 16-years-old. Her remains were found less than three weeks ago in Calaveras County. "I never thought we'd get her back," said Wheeler's mom.

Signatures Turned in for California Death Penalty Repeal Measure: Sam Stanton of The Sacramento Bee reports those behind the proposed ballot measure to repeal the death penalty in California announced they have collected enough signatures to qualify for the November 2012 ballot. The measure would also convert the sentences of the over 700 inmates currently on death row to life in prison without the possibility of parole. The latest Field Poll, released last September, found that 68 percent of California voters still support the death penalty.

Read more here:

The Perils of Auto-Correct

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AP reports from Gainesville, Georgia:

Authorities say a north Georgia high school went on lockdown thanks to an auto correct error in a text message that was sent by a student to a wrong number.

The Gainesville Times ( ) reports that a student at Lanier Technical College sent a text message that meant to say "Gunna be at West Hall this afternoon" but auto correct changed the first word to "Gunman."

When the text message went to a wrong number Wednesday, the recipient alerted law enforcement and West Hall high school and middle schools were locked down. The lockdown was lifted after authorities traced the message to the student and realized the text was not a threat.

Hall County Sheriff's office spokesman Sgt. Stephen Wilbanks says the student had no intention to do any harm.

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