April 2012 Archives

Second-Hand Weed

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Yehoshua Zarfin, Enav Yefet, Said Abozaid, Wael Nasser, Tamer Mor, and Yoram Finkelstein, Infant with Altered Consciousness after Cannabis Passive Inhalation, Child Abuse & Neglect  Volume:36  Issue:2  Dated:February 2012  Pages:81 to 83.  Abstract after the jump.

News Scan

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After Ruling, More States May Follow Arizona Immigration Law: David Crary of the Associated Press reports lawmakers from throughout the U.S. are preparing to push for tougher immigration laws following signs that the U.S. Supreme Court may uphold key components of Arizona's immigration law, SB 1070. Kansas Secretary of State Kris Kobach said if the Supreme Court upholds key parts of the law, "it will be a huge green light." He added, "All of the other states will have a blueprint they can apply." While the Department of Justice's appeal argues SB 1070 conflicts with federal immigration policy, polls have consistently shown the majority of Americans support similar 'get-tough' immigration bills. A ruling is expected in June.

San Diego Jails Nearing Capacity: Dana Littlefield of the San Diego Union-Tribune reports San Diego Sheriff Bill Gore, in a letter to local law enforcement, stated his department will no longer accept bookings for certain types of misdemeanors as jails are approaching full capacity. Friday, San Diego City Attorney Jan Goldsmith, in an e-mail, said, "shifting the State's responsibility to incarcerate felons to the local level is creating safety risks to our communities," blaming the Legislature and governor for transferring the overcrowding problem to local governments rather than cutting unnecessary spending at the state level. Gore's department has established a unit to handle custody alternatives, including GPS monitoring and home custody, in an attempt to open up some space in local jails.  

New Mexico Fixes Online Sex Offender Registration Mistake: KOAT 7 Albuquerque reports New Mexico Governor Susana Martinez is requiring law enforcement to get all online sex offenders convicted after 2007 registered after closing a loop hole in the law. There are 12 situations in which convicted predators are required to register, but somehow the requirement to register online was placed in the annotations when the law was compiled with other laws from the same year. The oversight was what the governor called a 'dangerous mistake.' Gov. Martinez stated, "We deserve, (and) the public deserves to know that someone in their neighborhood is a convicted sex offender." During the next legislative session, Martinez intends to ensure the error is corrected in every law book.

Bill to Lessen Overcrowding in CA Jails Voted Down: City News Service reports Senate Bill 1441, which would have amended Governor Brown's Public Safety Realignment Act, AB 109, and ease jail overcrowding, was voted down in the Senate Public Safety Committee last week. Senator Bill Emmerson (R-Riverside) introduced SB 1441 to require all convicts sentenced to over 36 months in jail for any one or series of offenses to serve their sentence in prison instead. Before AB 109, anyone who received more than a one year sentence automatically went to prison to serve their sentence. However, AB 109 does not spell out any length of time after which an inmate would be transferred to prison, resulting in some offenders currently serving jail terms in excess of 10 years. By June 2013, 23,000 more inmates must be moved from prisons in accordance with a federal court order. With only 11,000 inmates moved so far, Emmerson points out that AB 109 as it stands puts public safety at risk, as jails will be well over maximum capacity and sheriff's officials are forced to release low-level offenders from custody early.

Padilla Retroactivity Taken Up

In 2010, the US Supreme Court held in Padilla v. Kentucky that a guilty plea could be attacked on the ground that the defense lawyer inadequately advised the defendant about the immigration consequences of the conviction.  That case was decided on collateral review in the state courts, and the state court chose to reject the claim on the merits rather than on retroactivity grounds, so the U.S. Supreme Court did not consider retroactivity.  Today, the Court took up the question of whether that decision will be applied retroactively to overturn other convictions that were already final on appeal when Padilla was decided.  The new case is Chaidez v. United States.  Docket page is here.  SCOTUSblog page is here.

Because this case is a federal prosecution -- not federal habeas review of a state case -- it involves only the rule of Teague v. Lane, 489 U.S. 288 (1989), not the different but often overlapping rule of 28 U.S.C. §2254(d).

The Teague question is an easy one if the Court is faithful to its precedents.  Of course Padilla is a new rule for Teague.  The Court could not hold otherwise without eviscerating Teague.

A Strange GVR in the Ryan Case

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The case of Illinois' crooked, convicted former governor (the one without the hair) took a strange turn today.  The U.S. Supreme Court vacated the Seventh Circuit's decision and remanded for reconsideration in light of Wood v. Milyard.  The orders list is here.

This is strange because Wood has nothing to do with the Seventh Circuit's decision in United States v. Ryan.  "A court is not at liberty, we have cautioned, to bypass, override, or excuse a State's deliberate waiver of a limitations defense," the Supreme Court held in Wood.  Okay, but the Seventh did not do that in Ryan.  Quite the contrary, the Seventh held that the prosecution's waiver took the statute of limitations issue out of the case.  The Court of Appeals then went on to hold that an argument Ryan could have made on appeal but did not, and that was subsequently made successfully by Jeffery Skilling, was not available for a do-over on collateral review, applying well-established law.

What's to reconsider?

Racism and George Zimmerman

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Thomas Sowell reflects on the Trayvon Martin/George Zimmerman case in a piece in National Review Online.  It's short and worth the read, mostly for its reminder of the astonishingly dishonest editing that NBC undertook to attempt to portray Zimmerman as a racist. The edit itself is described here.

Sowell's last three paragraphs particularly drew my attention:

Let us talk sense, like adults. Nothing that is done to George Zimmerman -- justly or unjustly -- will unlynch a single black man who was tortured and killed in the Jim Crow South for a crime he didn't commit.

Letting hoodlums get away with hoodlumism today does not undo a single injustice of the past. It is not even a favor to the hoodlums, for many of whom this is just the first step on a path that leads to the penitentiary, and maybe to the execution chamber.

Winston Churchill said, "If the past sits in judgment on the present, the future will be lost." He wasn't talking about racial issues, but what he said applies especially where race is involved.

The LWOP Mask Slips Big Time

Kent had a post the other day about how an EPA official let on, when he had forgotten the camera was running, that the model for dealing with oil and gas companies was crucifixion. Due process did not appear to be in the mix.  It was more like the invading Roman army snatching the first five villagers and then......the unpleasantness commenced.

Mask-slipping moments are wonderful nuggets of truth, because that's when you find out what the other side really thinks.  Thus I bring you this one from my one-time debate partner, Professor David Dow, one of the country's leading death penalty abolitionists.   Prof. Dow argues that life without parole  --  the sentence the California referendum resolutely promises us will replace the death penalty in that state  --  is as bad or worse than capital punishment, and thus intolerable in a civilized country that has even a slight belief in redemption and forgiveness.

And where exactly does that leave us?

Criminal law's rampant indulgence of slick practice, diversion, soft-core perjury, non-stop whining and concocted portrayal of the miscreant as victim did not come from nowhere.  Today I got a glimpse of where it comes from, although I'm not sure whether what I'm looking at is the starting point or the ending point of a sick culture.

This is the story:  A high school kid in an honors English class copied someone else's homework.  He got caught.  He and his mother had signed an "Academic Honesty Pledge" at the beginning of the school year that declares cheating is grounds for immediate removal from the advanced-level program.  (Think for a moment about what it means that such a pledge was considered necessary to start with).

There are those who think that cheating is serious and might warrant something more punitive than getting transferred from the advanced class to the regular class.  Indeed, a troglodyte might think that cheating could warrant expulsion, a long suspension, an automatic failing grade, or something along those lines.

But the young man's father, a "family lawyer," is suing the school district on the grounds that his son was not afforded  --  you guessed it  --  due process.  The important point, to this paternal excuse for a moral mentor, is not that his kid is a cheater, which no one is disputing.  The important point is, pop alleges, that not everyone gets transferred out for a first offense.  His son is a victim.  Indeed, now the whole family have become victims, because they have received phone messages expressing disapproval of the lawsuit.

Now what do you think is son is going to take away from this experience?

Yikes.  If I had pulled a stunt like this in high school, not only would my parents not have sued the school district; I'd still be grounded.  
Nannette Miranda of ABC7 has this report on the announcement that Gov. Brown has directed the Department of Corrections and Rehabilitation to consider switching to the single-drug method.  See also Thursday's post.
Twenty years after the riots, what is the situation in the City of Angels regarding race, crime, and police-community relations?  Much improved, report Tamara Audi and John Emshwiller in the WSJ.

The Trust Molecule

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Researcher Paul Zak has this essay in the weekend WSJ:

Could a single molecule--one chemical substance--lie at the very center of our moral lives?

Research that I have done over the past decade suggests that a chemical messenger called oxytocin accounts for why some people give freely of themselves and others are coldhearted louts, why some people cheat and steal and others you can trust with your life, why some husbands are more faithful than others, and why women tend to be nicer and more generous than men. In our blood and in the brain, oxytocin appears to be the chemical elixir that creates bonds of trust not just in our intimate relationships but also in our business dealings, in politics and in society at large.

Fascinating stuff.  In criminal law terms, of course, the defense sees every advance in the knowledge of the biology of behavior as a chance to create a new defense.  We are all just driftwood on the ocean of chemistry rather than free agents with free will, and therefore it is wrong to punish.  I suppose a "lack of oxytocin made me do it" defense is around the corner.

That is not a reason to oppose research, of course.  That is a reason to be aware of both the research and its limitations so as to oppose the extrapolation of it to reach unwarranted conclusions.  When all is said and done, all of us except the truly insane still choose to do what we do.

Poll On Arizona Status-Check Law

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The Quinnipiac Poll asked 2,577 registered voters nationwide:

47. As you may know, in 2010 the state of Arizona passed a law that requires police to verify the legal status of someone they have already stopped or arrested if they suspect that the person is in the country illegally. Do you approve or disapprove of Arizona's immigration law?

                Tot    Rep    Dem    Ind    Wht    Blk    Hsp

Approve 68% 92% 46% 72% 74% 55% 47% Disapprove 27 5 47 24 22 37 49 DK/NA 5 3 7 4 4 7 5

Given the vehemence of the attack on this law by leaders of the Democratic Party and the claim that it is anti-Hispanic, the fact that both Democrats and Hispanics are almost evenly split on it is interesting.  Thanks to Eugene Volokh for the tip.
Dudley Sharp has this op-ed in the Atlanta Journal-Constitution, concisely stating the case for the death penalty.  Curiously, the headline writer took the word "death" out of the headline.

News Scan

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Signatures for Three-Strikes Initiative Submitted: Tracey Kaplan of San Jose Mercury News reports signatures for an initiative that would scale back California's Three Strikes Law were turned in to state officials Thursday. The measure would allow only certain criminals to receive a 25 years to life sentence for any felony offense for their third strike. For many offenders, the third strike would be restricted to a serious or violent felony. The initiative would allow current third-strikers to ask the court to re-sentence them under the provisions of the new measure.

Border Patrol Sued by ACLU Over Traffic Stops: Manuel Valdes of the Associated Press reports the ACLU filed a lawsuit against the U.S. Border Patrol on Thursday in an attempt to prohibit agents from making traffic stops until they are trained on what constitutes reasonable suspicion. The suit alleges people are being pulled over and questioned based on the way they look and without reasonable suspicion. The ACLU and Northwest Immigrant Rights Project filed the lawsuit of behalf of three residents of Washington State's Olympic Peninsula who have been stopped by Border Patrol agents. The lawsuit says the traffic stops by agents violate the Fourth Amendment and exceed the agency's legal powers. The suit also asks that agents be required to file paperwork justifying each traffic stop, and to make that information available to a court-appointed special master.

Bill to Amend Provisions of Realignment Fails in Committee: The Victorville Daily Press reports California Senator Sharon Runner's (R-Lancaster) proposed Senate Bill 1435 died on a 4-3 vote in the Senate's Public Safety Committee and will not advance to the floor. The bill would have required defendants convicted of a felony who had three or more prior felony convictions be sentenced to state prison instead of county jail under the new realignment sentencing regulations.

A Mask-Slip Moment

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There are some people in the world, including some people high up in government, who see the world very differently from most of us.  They know that, so they keep masks on most of the time.  Every once in a while, though, the masks slip, and they show us how they really think.  Environmental law, like all laws, should be enforced by people with a basic sense of decency who seek to impose severe punishment only on those who have done serious wrong.  That is particularly true when the enforcement takes the form of criminal prosecution, as environmental law sometimes does.  But at least one person high up in the EPA doesn't think so.  The WSJ has this editorial today:
The California Department of Corrections and Rehabilitation has appealed from the decision of the Marin Superior Court finding its execution protocol regulation was not promulgated in accordance with the Administrative Procedure Act.  The notice is here.

Interestingly, the notice also indicates "under the Governor's direction, the California Department of Corrections and Rehabilitation will also begin the process of considering alternative regulatory protocols, including a one-drug protocol, for carrying out the death penalty."

Update:  Maura Dolan has this story in the LA Times.

News Scan

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Execution on Track in Texas Tonight: Michael Graczyk of the Associated Press reports Beunka Adams today will become the fifth person executed in Texas this year. A federal district judge granted a reprieve earlier this week, but the 5th U.S. Circuit Court of Appeals reinstated the death warrant Wednesday after the Texas attorney general's office appealed the ruling. The U.S. Supreme Court today refused to halt the execution and review his case. In 2002, Adams and Richard Cobb robbed a convenience store and took one male customer and two females clerks with them to a remote area. Kenneth Vandever and one woman were forced into the trunk while Adams raped the other woman. Then all three victims were forced to kneel as they were shot. Vandever was killed. The women were kicked and shot again before Adams and Cobb fled, believing the women were dead. Both survived, and one ran to a house to get help. Evidence also tied Adams and Cobb to a string of robberies that happened around the same time.  Update: The updated version of the AP story (same link) indicates the execution was completed, and Adams was pronounced dead at 6:25 CDT.

Stay Granted to Louisiana Double-Murderer: Bill Lodge of The Advocate (LA) reports a federal judge on Wednesday granted a stay for the May 9 execution of Todd Kelvin Wessinger in Louisiana for killing two restaurant workers in 1995. U.S. District Judge James J. Brady granted the stay while he reviews claims made by Wessinger's attorneys that he suffered childhood seizures and physical and emotional abuse, developed substance addictions, and was traumatized by the deaths of his children. His appellate attorneys also allege that his trial attorney should not have called a doctor to the trial witness stand without first reviewing the doctor's report about his interviews with Wessinger. Brady did not say when he would announce his decision.

Illinois Senate Passes Constitutional Amendment for Victim's Rights: Dave McKinney of the Chicago Sun-Times reports a measure known as Marsy's Law, named after a California murder victim, passed out of the Illinois Senate 55-1. The measure would guarantee victims of violent crimes and families of murder victims or minors, among other things, the right to be informed about court proceedings, to make victim-impact statements during sentencing, to get "timely" notification when prosecutors are seeking a plea deal, and to have their safety considered at bail hearings. Illinois' Constitution currently contains victims-rights language, but there is no means by which victims or their families can enforce those rights by seeking relief from the courts. The measure now moves to the House. If successful, Illinois would become the fourth state with such language in its Constitution.

Single-Drug Method

As noted in today's News Scan, a Kentucky state court judge has ordered that state to consider the single-drug method.  The Arizona execution, also noted in the News Scan, is the third in that state using this method.

When that method was first proposed, some experts were concerned that it might take the inmate a long time to die.  That concern has proven unfounded.  The AP story on the Kemp execution notes, "The one-drug execution took seven minutes, and Kemp's time of death was 10:08 a.m."

Last week, as noted in this post, CJLF filed a petition for writ of mandate to force California's Department of Corrections and Rehabilitation to issue a single-drug protocol for the execution of Michael Morales, who has now evaded justice for 29 years, 6 of them after completion of all reviews of his sentence.  Morales has been allowed more time on the lethal injection issue alone than the D.C. Sniper got for the entire review of his case.

Update:  AP reports that Thomas Kemp shook during the execution, and his lawyer was "very disturbed by that."

We have known all along that involuntary movements were a possible side-effect of the one-drug method and that some witnesses might find that disturbing.  That was the precise purpose of the pancuronium bromide in the three-drug method.  However, the risk of pancuronium outweighs the benefit, which is why states are dropping it.

Shaking does not necessarily mean pain or even consciousness.  A person receiving a big dose of pentobarbital is not going to be in extreme pain, and that is all that matters.  Murderers are not entitled to the most peaceful, painless death possible.  Anyone executed with a single dose of barbiturate will feel less pain in his death than most of us are going to suffer when we die, and that is enough to end the matter.

Martinez v. Ryan and 60(b)(6)

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In a published opinion in Adams v. Thaler, No. 12-70010, noted here, the Fifth Circuit held that the Supreme Court decision in Martinez v. Ryan, allowing ineffective assistance of state collateral counsel to be considered "cause" for default in certain limited circumstances, is not a sufficient basis to grant relief from a previous denial of a habeas petition under FRCP 60(b)(6).

See also prior posts on Martinez here and here.

Update:  The Supreme Court's denial of a stay in this matter is here.  No dissent is noted.  Denial of a stay and certiorari in the case from state court is here.

Notice there is no denial of certiorari in the federal habeas case.  Does that mean Adams hasn't filed a certiorari petition yet but only a stay request?  After Adams is executed, will there be a claim that the case is moot and the precedential value of the USCA5 opinion is wiped out by the Munsingwear rule?  Stay tuned.

News Scan

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Execution Carried Out in Arizona Wednesday Morning: Michael Kiefer of The Arizona Republic reports Thomas Kemp was executed by lethal injection this morning in Arizona for robing and killing a man in 1992.  Kemp, an ex-con, and a former prisonmate who had escaped from an honor farm in California, seized 25-year-old college student Hector Juarez, who was out getting a late-night snack. The men made Juarez withdraw money from an ATM, stripped him naked, then shot him twice in the head and dumped his body near the Silverbell Mine. Kemp and his co-conspirator then carjacked a couple and forced them to drive to Colorado, where Kemp sexually assaulted the man. The couple was able to escape and later contact police. At his sentencing, Kemp told the court that Juarez was "beneath my contempt" because he was not an American citizen, and, "If more of them wound up dead, the rest of them would soon learn to stay in Mexico, where they belong." His last words were, "I regret nothing."

Connecticut Death Penalty Repeal Signed Into Law: The Associated Press reports Connecticut Governor Dannel P. Malloy on Wednesday signed a new law that ends the state's death penalty for future crimes, effective immediately. The bill was signed the same day a new Quinnipiac University Poll showed 62 percent of Connecticut registered voters are still in favor of the death penalty for those convicted of murder. The poll also showed 47 percent of voters disapprove of Malloy's handling of the issue, and 51 percent disapprove of the legislature's handling of the issue.

Judge Says Kentucky Must Consider One-Drug Protocol: Brett Barrouquere of the Associated Press reports Franklin Circuit Judge Phillip Shepherd in Kentucky on Wednesday directed the state to consider using one drug instead of three to execution inmates by lethal injection now that other states have been successful using a single drug method. Shepherd halted all executions in Kentucky 20 months ago over inmates' challenges to whether the state's lethal injection rules prohibited the use of a single drug and if there were adequate protections against executing the mentally ill. Kentucky has 90 days to consider the changes. Shepherd said the challenge by inmates will be allowed to go to trial if the state stays with the three-drug method.

U.S. Supreme Court Hears Arizona Immigration Law: Mark Sherman of the Associated Press reports the U.S. Supreme Court on Wednesday heard arguments for Arizona's immigration law signed by Governor Jan Brewer two years ago. Justices suggested they would allow the state to enforce part of the law that requires police officers to check the immigration status of those they suspect are in the country illegally. Justices reacted skeptically to the argument by the Obama administration that that the state exceeded its authority when it created the law. Chief Justice John Roberts said the state simply wants to notify federal authorities that they have someone in their custody who may be in the country illegally. "It seems to me that the federal government just doesn't want to know who's here illegally and who's not," Roberts said. A decision in the case is expected in late June.

Maryland Court Blocks Police Collection of DNA at Arrest: Yvonne Wenger of The Baltimore Sun reports the Court of Appeals in Maryland ruled 5-2 that the state law which allows the collection of DNA evidence from arrestees violated the rights of
Alonzo Jay King Jr.  King was arrested months after the law was adopted for assault and his DNA was later used to convict him of a six-year-old rape case. The court said collecting Kings DNA at arrest violated protections against unreasonable searches without a warrant. The state can still collect DNA after convictions, and law enforcement agencies can still use DNA samples to verify the person they arrested is the correct suspect. Since the law took effect in January 2009, the state has collected nearly 16,000 DNA samples, and used that evidence to gain 58 convictions that include 34 burglaries and 8 rapes. "The concept is simple: When we increase the library of DNA samples in our state, we solve more crimes," Maryland Governor Martin O'Malley said in a statement. "We take more criminals off the streets more quickly and put them in jail for a longer period of time so that they cannot murder, rape or harm other citizens among us."

The Costs of Leniency: Theodore Dalrymple has this piece in City Journal highlighting the laxity of the British criminal justice system, using the case of Gordon Thompson as an example. Thompson was recently sentenced to 11 and a half years for arson, in which he set fire to a family-owned furniture store that quickly spread to nearby houses during the London riots last summer. Thompson claims he was upset about the recent break up of his marriage, but it turns out Thompson had 20 previous convictions. Dalrymple questions what Thompson was doing at liberty, and says the cause of the riots in London was because of the laxity in such cases.

Grandma Fires Back at Robbery Suspects: CBS Atlanta and the Associated Press report a Georgia grandmother thwarted a robbery attempt by two armed suspects by getting into a shootout with them. Two men attempted to rob Lulu Campbell outside of her car Saturday morning. When one of the men fired at her and missed, Campbell fired back and struck him in the chest. Campbell owns convenience stores and gas stations and is always armed. "I thought that the only way to protect myself was to run him down," she said. "Otherwise, he would have gotten away." Police say Brenton Lance Spencer has been hospitalized and charged with aggravated assault and attempted armed robbery. Dantre Shivers, the other suspect, remains at large. 

SCOTUS Notes for 4/25/12

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No action out of SCOTUS this morning directly on criminal law.  The one opinion released today was a tax case.  I expect the stay of execution for Beunka Adams will reach the high court later today, with a petition by Adams if now that the Fifth Circuit has lifted lifts the stay and by the state if it does not.  See this story by Annette Falconer of KLTV.

The hot news is, of course, the Arizona immigration law argument, a civil case with criminal law implications.  Lyle Denniston at SCOTUSblog has this early report, indicating we may a get a relatively narrow opinion.

"Now That's Justice for Trayvon"

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I have not posted about the George Zimmerman/Trayvon Martin case for one simple reason:  I don't know what happened.  It could be that Zimmerman set upon and murdered an unarmed teenage boy out of racial hate.  It could be that Martin set upon Zimmerman and the latter acted instinctively out of self-defense, as he claims.  I don't know and neither does anyone else in the general public.  Having at one time been a prosecutor, however, my general experience is that defendants do not get charged with murder for whimsical reasons.

One thing I am sure of is that the case has become worse than the proverbial political football.  It has become a racial javelin with a poison tip.  First, it has been used subtly to sell the notion that blacks routinely are victims of violent, bigoted whites.  That is simply not true.  The incidence of black-on-white violence vastly outstrips the incidence of white-on-black violence.  But the more important point is that criminal violence is criminal violence no matter who is what race.  Every victim of such violence should be taken seriously regardless of race.  A system that indulges excuse-making as readily as ours does is not taking victims seriously.  

Second and relatedly, the case has been used to stoke and manipulate White Guilt about the historically execrable treatment of blacks in order to abet the reigning, Al Sharptonesque culture of grievance and entitlement.  It may very well be the case, for example, that Zimmerman should have been arrested earlier, but the real reason he was arrested was that it became a gross violation of political correctness not to. 

Do we really want to go where a justice system driven by racial politics leads us?


Brady Violations in Context

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It's scarcely news at this point that the prosecution is required to turn over exculpatory evidence to the defense.  It's also scarcely news that the Department of Justice has found very serious failures in that regard by the prosecutors in the Ted Stevens corruption trial.  Indeed, the Attorney General found the violations so serious as to warrant dropping the case altogether.

It is principally, although not solely, this failure that motivated Senator Lisa Murkowski to introduce the "Fairness in Disclosure of Evidence Act of 2012."  I have not read the entire bill and so will not comment on it.  My sole aim here is to highlight a single, quite revealing paragraph in DOJ's response:

The discovery failures in the Stevens case were not typical and must be considered in their proper context. Over the past 10 years, the Department has filed over 800,000 cases involving more than one million defendants. In the same time period, only one-third of one percent (.33 percent) of these cases warranted inquiries and investigations of professional misconduct by the Department's Office of Professional Responsibility. Less than three-hundredths of one percent (.03 percent) related to alleged discovery violations, and just a fraction of these resulted in actual findings of misconduct. Department regulations require DOJ attorneys to report any judicial finding of misconduct to OPR, and OPR conducts computer searches to identify court opinions that reach such findings in order to confirm that it examines any judicial findings of misconduct, reported or not. In addition, defense attorneys are not reticent to raise allegations of discovery failures when they do occur.

It's easy to focus on one outlandish case, or a few outlandish cases, and paint the whole operation as in need of top-to-bottom reform  --  easy but misleading.  There is too much slipshod and sleazy practice in federal criminal law, of that I have no doubt.  Reforms are past due.  But we should not deceive ourselves about where the bulk of the game-playing, truth-devouring problems arise.  Whatever heartburn one legitimately may have about an increasingly politicized or even (very occasionally) reckless DOJ, it's not the prosecution that's the main culprit in hiding the ball. 
I was an Assistant U.S. Attorney in the district where the "twentieth hijacker," Zacarias Moussaoui, was convicted of conspiracy to commit mass murder.  I was also a longtime friend of Barbara Olson, wife of former Solicitor General Ted Olson, who was murdered by Moussaoui's confederates in the plane they flew into the Pentagon.  I take terrorism as seriously as anyone.  In my view, the death penalty is too good for these people.

This does not mean, however, that any measure we adopt to prevent terrorism gets an automatic green light.  If we are to have a constitutional government exercising enumerated powers over a free people, there are limits.  Would that TSA recognized some.

Today I saw a widely reported story about a four year-old girl who ran past the security line to hug goodbye to her grandmother.  For this she was taken to a "secure area" and subjected to an intrusive search (although not, so far as has been reported, a strip search).  

That by itself is troublesome enough, but what caught my eye was an add-on farther down the page:

Last week, the Huffington Post wrote about a 10-year-old diabetic boy who received a pat-down after his insulin pump triggered the alarm. Jacob Wisnik was wearing a new pump that was placed over his groin. According to his mother, Eva, he was not permitted to reposition or move the pump before the pat-down.

Somehow, even to my suspicious prosecutor's eye, a ten year-old with an insulin pump he needs (but assuredly doesn't want) just doesn't seem like much of a hijacking threat. TSA of course knows this.  Searching a kid like that is gratuitous, abusive and humiliating, and is done solely because government apparatchiks know they can get away with it.  But just to make this last point unmistakable, the TSA spokesman said this:

"[The agency]  is reviewing the passenger's screening experience to determine whether procedures were appropriately applied. We regret the family's perception of the experience was not positive and always strive to screen passengers respectfully while ensuring the safety of all travelers."

And that is why I titled this post, "How Normal People Learn to Hate the Government."
The most cherished belief of Politically Correct types when it comes to crime is that poverty is the root cause of crime.  If we only spent more money on government antipoverty programs instead of nasty things like enforcing the criminal law, crime rates would plunge.  The fact that we tried that during the Great Society and crime rates soared instead was explained away.

The problem with studying such things, of course, is that there are many factors that go into crime rates, and untangling them is difficult to impossible.

The best studies tend to be longitudinal studies that follow a group of people over a long time.  These studies cost a lot of money and take a long time, obviously, but they overcome some of the difficulties with snapshot surveys taken at one point in time.

The Christchurch Health and Development Study by Otago University in New Zealand has this press release today.

"But contrary to popular belief being brought up in a poor family in this study does not mean increased rates of crime or mental health problems in adulthood," adds Professor Fergusson.

The contextual impact of factors relating to the individual, as well as the family and social environment, were adjusted to distinguish these from the direct impact of low family income.

When this was done it found that poverty and other family factors are not associated with increased rates of crime in adulthood, or mental health problems or related outcomes; but the reasons are not yet clear.

The study therefore suggests caution with regard to claims that reducing childhood poverty will also have a significant and direct effect on crime and other psychosocial outcomes in New Zealand.

The technical article is Sheree J. Gibb, David M. Fergusson, and L. John Horwood, Childhood family income and life outcomes in adulthood: Findings from a 30-year longitudinal study in New Zealand, Social Science and Medicine (in press).  Abstract follows the jump.

The Supreme Court approved and forwarded to Congress amendments to the Federal Rules of Criminal Procedure.  The order is here.

Missing from the Court's version of the rules are amendments to Rules 5(d) and 58(b) approved by the Judicial Conference regarding consular notification for arrested aliens to comply with the Vienna Convention.  See the Judicial Conference's page with links to the committee report and proposed rules.

The consular notification issue is presently before Congress in S. 1194 (Leahy).  It is quite understandable that the Court did not wish to act through the rulemaking process while the issue is under active consideration in Congress.

News Scan

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'Occupy' Trial to Include Twitter Evidence: Tamer El-Ghobashy of the Wall Street Journal reports Occupy Wall Street protester Malcolm Harris' Twitter activity will be allowed as evidence in his trial. Harris was arrested along with hundreds of other protesters during a march on the Brooklyn Bridge in October. Criminal Court Justice Matthew Sciarrino Jr. said, "Harris accepted Twitter's terms of use, which clearly state that his postings are public and can be used by the company 'for any purpose it may have.'" Prosecutors say messages posted on Twitter will help prove protesters were aware of police orders that they violated during the march.

California Death Penalty Ban Measure Qualifies For November Ballot: Eric Bradley of the Contra Costa Times reports the SAFE Act, the initiative to replace California's death penalty with life in prison without the possibility of parole, will be on the November ballot. In a September 2011 Field Poll of registered California voters, 68% of voters supported keeping the death penalty. Advocates of the measure on Monday could not say where the redirected funds to send $100 million to police agencies to help solve more rape and homicide cases would come from.

Man Beaten by Mob as "Justice for Trayvon":
The WKRG News Staff reports Matthew Owens from Mobile, Alabama was beaten by a mob on the front porch of his home after giving some kids playing basketball out in the street a hard time on Saturday night. The kids reportedly left, and a group of adults returned wielding pipes, paint cans, chairs, and brass knuckles. Ashley Parker, Owens' sister, who witnessed the horrific event, said 20 people, all African American, attacked her brother. Owens' family insists one of the attackers said, "Now that's justice for Trayvon" after the attack. A neighbor also said they heard a member of the mob make the same comment. Mobile Mayor Sam Jones said, "Police will certainly explore a racial motive if the evidence supports it...If people think we are going to tolerate that to bring attention to some national event, they are surely mistaken." 

SCOTUS Relists

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Over at SCOTUSblog, John Elwood has his summary of cases "relisted" by the US Supreme Court.  (That is, the cases are scheduled for a conference to decide if the high court will take them, but the decision is put off to a later conference.)

Montgomery v. Robinson is a capital habeas case in which the Sixth Circuit en banc held, 11-5, that the state court reasonably applied the Brady v. Maryland rule.  Given the makeup of the Sixth Circuit, a claim on which the petitioner gets only five votes would not seem to be a strong one.

Garcia v. California, 11-8371, is unusual in that the Court seems to be taking a hard look at a capital case from California on direct appeal.  Offhand, I can't recall a single case in the modern era where the US Supreme Court took such a case on the defendant's petition.  Generally, the Ninth Circuit could be counted on to overturn death sentences 100% of the time when it is warranted and ~95% of the time when it is not warranted, so the only needed SCOTUS supervision is overturning wrong grants by the Ninth Circuit.  The issue on certiorari this time, according to Elwood's post, is a victim-impact videotape claimed to be "unfairly prejudicial."  In capital-defense-speak, "unfairly prejudicial" means "effective," violating the capital defendant's constitutional right to ineffective opposition of prosecutor.  I certainly hope the Court is not even considering going down the disastrous road of Booth v. Maryland again.  Of all the things that need fixing in American criminal justice, effective victim-impact evidence should be at the bottom of the list.  If they wanted to overrule Lockett v. Ohio and bring back Booth at the same time, thus curtailing the emotional appeals on both sides, that would be different.  But bringing back the extremely skewed situation we had with Lockett + Booth should not even be on the table.

Elwood thinks Brown v. Bobby is on hold for Johnson v. Williams, 11-465, formerly Cavazos v. Williams.  That case has to do with the application of AEDPA to a case where the defendant's state appeal has closely related state and federal claims and there is no separate discussion of the federal aspect of the claim.
The US Supreme Court today decided in Wood v. Milyard that the Court of Appeals for the Tenth Circuit abused its discretion in raising on its own a statute of limitations defense that the state knew about but declined to raise.  No big surprise.  The opinion is by Justice Ginsburg, 7-2-0.

Justices Thomas and Scalia concur in the judgment but not the opinion on grounds more favorable to habeas petitioners generally.  They would hold that the state forfeits its statute of limitations defense in a habeas case by not raising it, and the court has no discretion to raise it on its own. An earlier case gave such discretion to the District Court, but they would decline to extend a precedent they regard as erroneous to the Court of Appeals.

World Peace Throws an Elbow

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Kent posted today about the decline of the culture.  As if on cue, we now hear that longtime NBA thug Ron Artest knocked an opposing player silly with an elbow to the head.

One might wonder why Artest is still in the league, having been suspended 12 times before for similar misconduct.  His most notorious episode was in 2004, when he was suspended 86 games for going into the stands to coldcock a fan.  He had eight episodes before then and three thereafter, most recently just last year.

Perhaps the reason this fellow is still in the league is that he showed his "redemption" by  --  ready now?  --  changing his name to "World Peace."  (Actually, the change was to "Metta World Peace," although no one seems to know what the "Metta" is for).

As Kent noted, what it has come to in this culture is that repeated, flagrant and even violent misbehavior is excused on the basis of little or no reason beyond the lack of backbone to do something effective to stop it.  Those of us who litigated criminal cases saw (and see) this every day.  There is simply no record of thuggishness so convincing that it can't be muzzed over with the latest quasi-perjury about the woe-begotten defendant's "syndrome" or "medical disorder." 

As I noted a couple of weeks ago, sometimes redemption is real.  Most of the time it's a bunch of baloney, as any honest person who has had to listen to a sentencing hearing knows.  But for however that may be as a general matter, if your defendant has just changed his name to "World Peace," wear a helmet.

News Scan

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CA Death Penalty Measures Defeated in Committee: East County Magazine reports Senator Joel Anderson's (R-Alpine) two death penalty related measures were defeated in the Senate Public Safety Committee in Sacramento last week. The first, SB 1514, would have eliminated the automatic appeal process of each death penalty case in California. The second, Senate Constitutional Amendment 20, would have required that any appeals of death penalty cases would go to the State Court of Appeal rather than the California Supreme Court.

CA Prison Overhaul Said to Save State $1.5 Billion Annually: Don Thompson of the Associated Press reports California prison officials released a prison reorganization plan Monday which calls for stopping a $4 billion prison construction program and bringing all inmates held out of state back into California. The plan comes in the wake of a declining state prison population and in the hopes of cutting billions in spending while complying with inmate health care court orders. However, prison officials have acknowledged that the June 2013 deadline for reducing California's prison population will not be met. The corrections department will ask federal judges to allow the state to house an additional 6,000 inmates, which exceeds the judicial panel's inmate limit. California has leeway to negotiate the final inmate count, though it will have to demonstrate why the population cap set is wrong. If the court rejects the higher population, prison officials will keep housing the inmates in private out of state prisons, continuing to cost California $318 million a year. The CDCR's press release is here.

Death Penalty Repeal Carries Political Risk for Connecticut Governor:
Shannon Young of the Associated Press reports Connecticut's Governor
Dannel P. Malloy says he will sign the repeal of Connecticut's death penalty into law despite a lack of public support. Tom C. Foley, the Republican candidate who ran against Malloy in the 2010 gubernatorial election, pointed to recent Quinnipiac University polls which suggest majority support for the death penalty in Connecticut. "Anytime you implement policies that a large majority of people don't support, your chances of being re-elected will diminish," he said. Foley also pointed out a possible public backlash if the 11 inmates currently on death row that are not affected by the repeal use it as a new means for appeal, and criticized Malloy for putting his own convictions against the death penalty above those of a majority of polled Connecticut residents who are still in favor of capital punishment. "I'm representing the people who agree with me," Malloy said.

13 Years in County Jail

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Andy Furillo reports in the Sacramento Bee on the latest absurdity from Jerry Brown's "realignment" program.

Two men convicted of transporting 35 kilos of cocaine up Interstate 5 were each sentenced Friday to 13 years in "county jail prison," a new Sacramento record for the longest local term under the state's new realignment law.

Superior Court Judge Lawrence G. Brown said the sentences he handed down to David Ciarelli and Richard Wisneski "seems to flesh out and stretch out the contours of correctional realignment."

Brown said he had "no discretion" under the law but to sentence the two Los Angeles County men to county jail rather than state prison.

*                           *                           *
"Realignment is enabling the department to comply (with the federal court orders) and reduce overcrowding," [California Department of Corrections and Rehabilitation spokeswoman Terry] Thornton said. "It makes for a far more efficient prison system."
Sure, I could make my work more efficient, too, if I could just dump a big part of it on someone without the resources to do it properly.  But that would not make it the right thing to do.

America's Crisis of Character

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The root cause of crime is irresponsibility.  Every society has some irresponsible people, but some societies have a lot more than others.  The cause of widespread increase in irresponsibility is culture rot.

Peggy Noonan has this article in the WSJ with the above title.

I've long thought that public dissatisfaction is about more than the economy, that it's also about our culture, or rather the flat, brute, highly sexualized thing we call our culture.

Now I'd go a step beyond that. I think more and more people are worried about the American character--who we are and what kind of adults we are raising.

Every story that has broken through the past few weeks has been about who we are as a people. And they are all disturbing.
Why is our culture spiraling downward?  Any attempt to identify one factor as the sole cause would be simplistic and naive.  A big part of the problem, in my view, is that too few people of sense choose the occupations that have the greatest influence in shaping the next generation.  Teachers who believe in standards of behavior, striving for excellence, and rejecting weak excuses find themselves an embattled minority.  The spectrum of viewpoints among journalists is substantially skewed from that of the general population.  The same is true in the entertainment industry.

If young people grow up in an environment where the values that constitute character are regularly sneered at, a downward spiraling culture is the natural result.

So, young people of sense, consider teaching, journalism, and other future-shaping professions as your career.  The culture you save may be your own.

The Middle Way on Drugs

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Mark Kleiman, Jonathan Caulkins, and Angela Hawken have this op-ed in the WSJ:

"For every complex problem," H.L. Mencken wrote, "there is an answer that is clear, simple and wrong."

That is especially true of drug abuse and addiction. Indeed, the problem is so complex that it has produced not just one clear, simple, wrong solution but two: the "drug war" (prohibition plus massive, undifferentiated enforcement) and proposals for wholesale drug legalization.

Fortunately, these two bad ideas are not our only choices. We could instead take advantage of proven new approaches that can make us safer while greatly reducing the number of Americans behind bars for drug offenses.
Following their neighbor to the north [see this post], Nebraska has refused to turn over its thiopental (the drug used for lethal injections) to the FDA.  Margery Beck reports for AP:

Nebraska will not surrender its supply of a controversial execution drug to the Food and Drug Administration because it believes the court order requiring it to do so is flawed, the state Attorney General's office indicated in a letter to the federal agency Friday.

James Smith, an assistant attorney general, suggested in the letter to the FDA that the agency should appeal U.S. District Judge Richard Leon's ruling on the drug, sodium thiopental. Leon ruled last month that the FDA was wrong to allow the drug into the country and he ordered the agency to immediately notify state correctional departments with foreign-manufactured stores of the drug, including Nebraska's, that its use is prohibited by law and that it must be surrendered.

"Other than the court's erroneous order, we are unaware of any evidence or reasons why the Department of Correctional Services should be required to return any thiopental in its possession," wrote Smith wrote, who also asked for contact information for the FDA's attorney and Justice Department officials who might be involved in deciding whether to appeal the ruling.

Nebraska Attorney General Jon Bruning issued a statement Friday saying that Nebraska's supply of sodium thiopental was purchased from a different supplier than the one cited in the case over which Leon presided, and that Nebraska's drug "was approved for importation by the U.S. DEA, FDA and Customs."

The FDA letter is here.  AG Bruning's response is here.

News Scan

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First Racial Justice Act Case Decided: The Associated Press reports Superior Court Judge Greg Weeks, in the first decision under North Carolina's Racial Justice Act, commuted the death sentence of Marcus Robinson to life in prison because he found race played a "persistent, pervasive and distorting role" in jury selection. Weeks said prosecutors intentionally discriminated against Robinson, who was convicted of murdering a 17-year-old boy in 1991. After giving Robinson and his co-defendant a ride from a convenience store, the victim was forced to drive to a field and was shot with a sawed-off shotgun. Prosecutors said they were planning on challenging Weeks' decision. Robinson's is the first of more than 150 pending cases to get an evidentiary hearing before a judge under the new law.

Sentence of Georgia Death Row Inmate Commuted to LWOP: A News Release by Steve Hayes, Director of Public Affairs for the Georgia State Board of Pardons and Paroles, reports clemency was granted to condemned inmate Daniel Greene. His sentence was commuted to life in prison without parole. Greene was sentenced to death in 1992 for stabbing a man to death during a convenience store robbery. Greene had been scheduled for execution Thursday, and a stay had been issued Tuesday. The clemency order is here

Los Angeles Police Union Sues Over New Unlicensed Driver Policy: The Associated Press reports the Los Angeles police officers' union has filed a lawsuit against the city and police chief over a new policy that would allow some unlicensed drivers to keep their cars instead of having them impounded for 30 days. The suit, filed by the Police Protective League Wednesday in Superior Court, asks the court to block Chief Charlie Beck's new order. The union says the policy violates state law and could leave officers open to lawsuits if an unlicensed driver who was allowed to keep their car later hurts or kills someone.

CA Death Row Inmate Confesses to Another Murder: The Associated Press reports Royal Clark Jr., who is on California's death row for strangling a 14-year-old girl in 1995, has pleaded guilty to the strangulation of a 15-year-old girl in 1989. Charges were filed against Clark in December after a DNA hit was made.  
The US Court of Appeals for the Third Circuit has lifted the stay of execution of Delaware murderer Shannon Johnson.  The Federal Public Defender had obtained the stay over Johnson's objection, claiming he is incompetent.  Opinion is here.  Thanks to Delaware AG's office for the opinion.

"The fact that Johnson himself has joined in the State's motion speaks volumes about this case."

Update:   The District Court entered a second stay, and the Court of Appeals lifted it again.  Text follows the jump.

Update 2:  The Supreme Court denied a stay Friday morning.  No dissent is noted.

Update 3:  UPI story on the completed execution is here.
The Criminal Justice Legal Foundation today filed a petition for writ of mandate on behalf of Bradley Winchell, the brother of Terri Winchell, to order the California Department of Corrections and Rehabilitation to take the steps necessary to restart executions in California.  Michael Angelo Morales murdered Terri Winchell in 1981 and was sentenced to death in 1983.  The 23 years of appeals and habeas review were bad enough, but the execution of Morales has been delayed another 6 years, and counting, by litigation over lethal injection and CDCR's failure to take the steps necessary to end it.

This suit is the first of its type to invoke the standing given to victims by Proposition 9 of 2008, the Victims' Bill of Rights Act of 2008: Marsy's Law.  Former California Governors George Deukmejian and Pete Wilson are co-counsel on the petition.

In the federal litigation initiated by Morales, the federal court has ruled three times that California could proceed with executions if it simply replaced its three-drug method with a single-drug method.  Although Ohio, Washington, and Arizona have successfully adopted this method, CDCR stubbornly refuses to do, leaving in force an injunction against Morales's execution that it could have lifted six years ago.

CDCR has further allowed litigation under the Administrative Procedure Act to block executions, despite California Supreme Court precedent to the contrary and despite the existence of multiple available exceptions to that Act.

The action was announced this morning at a press conference at CJLF's office.  The press release is here.

News Scan

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CA Bill Requiring Qualifying Inmates to Pay for Imprisonment Fails: Torey Van Oot of the Sacramento Bee reports SB 1124, which would require the courts to order those who could afford to pay for part of their stay in state prison or county jail to do so, failed today by a 2-3 vote in the California Senate Public Safety Committee. Sen. Ron Calderon (D) suggested creating a report outlining how often the option to force repayment is exercised, and also suggested looking into a pilot program.

Agreement Made on Timetable to Reconsider Haugen's Death Sentence: Peter Wong of the Statesman Journal reports the timetable for Gary Haugen's request for the death penalty to be reinstated in his case was agreed upon in an open court proceeding today. Haugen has been in prison since 1981 for the murder of his girlfriend's mother, receiving a second sentence in 2004 for the murder of a fellow inmate. Haugen is seeking to reinstate the warrant Judge Joseph Guimond signed on Nov 21, 2011, prior to retiring. The Oregon Supreme Court upheld the warrant for his execution in a 4-3 decision. Haugen had been scheduled to die by lethal injection on Dec. 6, 2011, until Gov. John Kitzhaber announced  on Nov. 22, 2011, he was issuing a reprieve to Haugen and imposing a moratorium on all executions until the end of his term on Jan. 12, 2015. The hearing is set for June 11, 2012, at 9:30 a.m. in Marion County Circuit Court after written arguments are submitted by Haugen's lawyers and by the state. In a statement in court Wednesday, Haugen called it "an unsolicited reprieve."

Kansas Pulls Inmates From County Jail After Four Escape: John Hanna of the Associated Press reports the Kansas inmates who were being held at the Ottawa County Jail have been moved back to a state facility after four inmates escaped Wednesday morning. Two still remain missing. The inmates armed themselves with homemade knives and were able to open the cell doors after overpowering guards after complaining about a broken water line in the holding area. Three of the inmates had medium-security status based on evaluations done when they entered the prison system. Records show the three also had numerous disciplinary issues while behind bars. 

John Milburn and Bill Draper report for AP:

Four inmates escaped early Wednesday from a Kansas jail where they were transferred because of overcrowding at a state prison, and three of the men -- including a convicted murderer -- remained on the loose by late afternoon.
*                                *                              *

Lawmakers are considering providing more funding and beds in state prisons. Gov. Sam Brownback has proposed using revenue from state-owned casinos to reopen a prison facility that was closed because of budget restraints in 2009. The Republican also wants to expand contracts with county jails.

The Corrections Department would rather purchase the St. Francis Boys' Home near the prison in Ellsworth to provide 95 additional beds.

"We'd better get that done because, apparently, farming them out doesn't work," Senate Majority Leader Jay Emler, a Republican whose district includes the prison, said, adding that he's concerned that budget cuts have gone too far.

Ohio Restarts Executions

AP reports:

Ohio on Wednesday executed a man for fatally stabbing the 15-year-old son of his former employers during a 1985 farmhouse burglary, marking the state's first execution in six months.

Forty-nine-year-old Mark Wiles died by lethal injection at 10:42 a.m., ending an unofficial moratorium on the death penalty that occurred while the state and a federal judge wrangled over Ohio's lethal injection procedures. It was the 47th execution since Ohio resumed putting inmates to death in 1999.

*                       *                        *

"Finally, the state of Ohio should not be in the business of killing its citizens," Wiles concluded, reading a statement that the warden held over his head. "May God bless us all that fall short."

Wiles' stomach rose and fell several times and his head moved slightly, then his mouth fell open and he lay still for several minutes before he was pronounced dead.

John Craig, a cousin of Wiles' victim Mark Klima and a witness of the execution, appeared briefly before reporters to respond to Wiles' last words.

"It's my opinion that Mark Wiles gave up his citizenship to Ohio when he murdered my cousin and became an inmate, more or less a condemned man," Craig said.

*                       *                        *

Before the execution, [prisons director Gary] Mohr said he was "absolutely confident" in the state's ability to carry out the procedure properly.

"We have more documentation on this than anything in my 38 years that I've been in this business," Mohr said. "It's the most documented execution in the United States of America."

The insanity defense is generally the last refuge of the scoundrel, but every once in a great while there is a real claim of NGBI.  Jack Nicas reports in the WSJ on the case of the berserk pilot.

This might even be a case of a genuine claim of temporary insanity, even more rare.
South Dakota has an attorney general with backbone.  He is fighting back against the attempts to strangle the death penalty with bogus litigation insufficiently resisted by the agencies that are the respondents.  Peter Harriman has this story for the Argus Leader.

In February last year, a group of murderers from Arizona, California, and Tennessee filed suit against the FDA claiming that agency was acting improperly in allowing imports of thiopental for use in lethal injection. 

Last month, Federal District Judge Richard Leon in D.C. issued a remarkable opinion, complete with exclamation points, accepting the murderers' arguments.  In addition to granting declaratory relief and enjoining the FDA from allowing further imports, the accompanying order says this:

1. immediately notify any and all state correctional departments which it has
reason to believe are still in possession of any foreign manufactured thiopental that the use of such drug is prohibited by law and that, that thiopental must be returned immediately to the FDA; ...

How is this wrong?  Let me count the ways.

First, the gnarled syntax is a crime against the English language.

News Scan

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Stay of Execution Granted to Georgia Inmate: Bill Rankin of the Atlanta Journal-Constitution reports the Georgia Board of Pardons and Parole on Tuesday granted a stay of execution to Daniel Greene, who was scheduled to be executed Thursday for killing 19-year-old Bernard Walker in 1991. The board said the stay will not exceed 90 days, and that the purpose of the stay is "to allow for additional time to examine the substance of claims offered by Greene's representatives at today's clemency appointment and any additional information that becomes available."

Execution of Delaware Killer Delayed: The Associated Press reports U.S. Chief District Judge Gregory Sleet on Wednesday halted the Delaware execution of Shannon Johnson, saying he needed more time and information before deciding whether the state court was right in concluding that Johnson was mentally competent. Johnson was sentenced to death for the 2006 shooting death of a 25-year-old man after Johnson found him sitting in a car with his ex-girlfriend. Johnson also later shot his former girlfriend, but she survived. Prosecutors immediately began preparing an appeal of Sleet's ruling. Johnson was scheduled to be executed Friday. He has waived his right to future appeals.

USCA9 Upholds Arizona Voter ID Law

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Gonzalez v. Arizona, No. 08-17094, decided today by USCA9:

Proposition 200 requires prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote, see Ariz. Rev. Stat. § 16-166(F) (the "registration provision"), and requires registered voters to show identification to cast a ballot at the polls, see Ariz. Rev. Stat. § 16-579(A) (the "polling place provision"). This appeal raises the questions whether Proposition 200 violates § 2 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments to the Constitution, or is void as inconsistent with the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. §§ 1973gg et seq. We uphold Proposition 200's requirement that voters show identification at the polling place, but conclude that the NVRA supersedes Proposition 200's registration provision as that provision is applied to applicants using the National Mail Voter Registration Form (the "Federal Form") to register to vote in federal elections.

News Scan

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SCOTUS Hears Arguments for Fair Sentencing Act Retroactivity: Lyle Denniston of SCOTUSblog reports U.S. Supreme Court Justices Tuesday debated whether the Fair Sentencing Act, passed in 2010 to reduce the severity of sentencing for crack cocaine versus powder cocaine crimes, should be applied to those who committed crimes involving crack cocaine before the law went into effect.

California Prisons to Block Use of Unauthorized Phones: Jack Dolan of the Los Angeles Times reports a deal was made with Global Tel Link to disable the use of contraband cell devices at California prisons. Global Tel Link also owns the pay phones inmates are allowed to use, and will pay to install the new technology. Each prison will get its own cell tower that can be controlled by prison officials. There will be a list of approved phones that can send and receive signals, and any other devices will be rendered useless. Prison officials say a one-day test of a similar system at a single California prison last year intercepted more than 4,000 attempts to make calls, send text messages, or access the Internet. CDCR's press release is here.

Victim's Aunt Speaks Out About Execution of Nephew's Killer: Virginia Klima, the aunt of Mark Klima, who was killed by Mark Wiles more than 25 years ago, has this piece in the Plain Dealer (OH). Wiles is scheduled to be executed in Ohio Wednesday. "There are always two sides to every story. Unfortunately, if you murder the one person who can tell the story, we only hear one side," she writes. Wiles, who had previously been employed by the victim's family, bludgeoned their son to death in their living room because he caught Wiles robbing their home, and Wiles knew Mark would be able to identify him.

First Convictions Under Broadened Federal Hate-Crimes Law: Bill Estep of the Lexington Herald-Leader reports according to U.S. Attorney Kerry B. Harvey, the convictions of two Kentucky women are the first in the U.S. under parts of the federal law covering crimes of violence motivated by a person's actual or perceived sexual orientation. The two women pleaded guilty to one charge of kidnapping and one charge of aiding others in causing bodily injury to the victim because he is gay. According to Harvey's office, in 2009, the law was broadened by Congress to include crimes  of violence motivated by a person's actual or perceived race, color, national origin, religion, sexual orientation, gender, gender identity, or disability. Sentencing for the two women will be in August.

Oklahoma Board Denies Clemency to Condemned Inmate: 
Tim Talley of the Associated Press reports the Oklahoma Pardon and Parole Board on Monday voted 4-1 to reject death row inmate Michael Bascum Selsor's bid for clemency. Selsor is scheduled to be executed by lethal injection May 1 for killing a convenience store clerk during a robbery in 1975. Prosecutors said the victim suffered eight bullet wounds.   

Read morehttp://www.bellinghamheral/2012/04/17/2484349/kentucky-convicted-under.html#storylink=c

Read more here: http://www.bellinghamherald.com/2012/04/17/2484349/kentucky-women-convicted-under.html#storylink=cpy

Hiring Criminals

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Say you have an opening in your accounting department.  Wouldn't you like to know if an applicant is a convicted embezzler?  The government just might want to prevent you from learning that, under the banner of "disparate impact."  The WSJ has this editorial:

The Obama Administration's favorite antidiscrimination tool is "disparate impact," which relies on statistics to allege racial prejudice, regardless of intent. The Justice Department is using it to lean on banks to lend to more minorities, and now we hear the Equal Employment Opportunity Commission wants to use it to wield more power over business hiring.

Several sources tell us the Commission is working on policy guidance that would significantly limit companies' use of credit and criminal histories in hiring under Title VII of the 1964 Civil Rights Act. A Commission spokeswoman declined to comment by email, "citing Agency practice barring public discussion of any policy that may or may not be in development."

Employment of people with criminal histories is an important issue in rehabilitation, and we don't want to choke off opportunity entirely.  After all, if the person really does want to go straight, employment is a big part of that effort.  Even so, for some jobs we do not anyone with certain kinds of histories.  We don't want embezzlers in accounting.  We don't want child molesters in day care.

Can the present Administration be trusted to give employers the necessary leeway?  I see no reason to be confident of that.
The Supreme Court today decided Filarsky v. Delia:

Section 1983 provides a cause of action against state actors who violate an individual's rights under federal law. 42 U. S. C. §1983. At common law, those who carried out the work of government enjoyed various protections from liability when doing so, in order to allow them to serve the government without undue fear of personal exposure. Our decisions have looked to these common law protections in affording either absolute or qualified immunity to individuals sued under §1983. The question in this case is whether an individual hired by the government to do its work is prohibited from seeking such immunity, solely be- cause he works for the government on something other than a permanent or full-time basis.

As you might guess from the phrasing of the question, the answer is no.  The temporary or part-time government actor gets the same immunity, the Court held unanimously.  Filarsky arises out of civil litigation, but its rationale would extend to an attorney who acts as a prosecutor on a less-than-full-time basis.
AP reports from Norway:

A citizen judge in the trial of confessed mass killer Anders Behring Breivik was dismissed Tuesday for saying online that the anti-Muslim extremist deserves the death penalty for killing 77 people in a bomb-and-shooting massacre.

Lawyers on all sides requested that lay judge Thomas Indreboe be dismissed for his comments online the day after the July 22 attacks.

It's not clear from the story whether he was removed for prejudging the case or for favoring the death penalty.  The former would be valid.

News Scan

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Trial for Norway Mass Murderer Begins Monday: The Daily Mail (UK) reports the trial for 33-year-old Anders Behring Breivik, who admits killing 77 people in Norway last summer, began Monday. He pleaded not guilty to terror and murder charges, and said he was acting in self-defense. Breivik also said he did not recognize the authority of the court. A 200-seat courtroom was built specifically for the trial, where thick glass partitions separate victims and their families from Breivik.

CA Bill Would Require Qualifying Inmates to Pay for Imprisonment: The Paper reports California Senator Anthony Cannella (R-Ceres) has introduced a bill to require a court to order an offender to pay all or a portion of the costs of imprisonment in a state prison or county jail if they are able. The court would be required to order the defendant, before a hearing on the matter, to file a statement setting forth their assets, liability, and income. The latest version of the bill, SB 1124, is here. It will be heard in front of the Senate Public Safety Committee on Tuesday.

Tennessee Appeals Court Upholds New Execution Procedures: Jamie Satterfield of the Knoxville News Sentinel reports the Tennessee Court of Appeals last week affirmed the decision by Davidson County Chancellor Claudia Bonnyman that upheld a new state Department of Correction procedure under the state's three-drug lethal injection process. After an inmate is given a single dose of sodium thiopental, the warden will check to ensure the inmate is unconscious before the executioner is instructed to continue with the next two drugs. The decision is likely be appealed to the Tennessee Supreme Court by current death row inmates. The court's opinion is here.

Overwhelming Support for Voter ID

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Rasmussen Poll reports that American voters overwhelmingly support a requirement to show ID for voting, with 73% rejecting the argument that the requirement is discriminatory.  A stub of their report is here.  Unfortunately, the full report is behind the paywall.

In the April 3 D.C. election, a man walked into a precinct, asked if they had an Eric Holder (being careful not to actually say or sign that he was Holder), and was nearly given Holder's ballot.  WaPo story here.  Project Veritas video here.

Standing Ground

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The term "stand-your-ground" law comes from one particular aspect of the self-defense laws passed in a number of states.  This aspect overrules case law in those states saying that a person attacked in a public place must retreat rather than respond with deadly force if possible.

Some states, however, don't need a "stand your ground" statute because their courts never made a "duty to retreat" rule by caselaw in the first place.  Bob Egelko has this story in the SF Chron noting that California is one such state.  Overall, though, California law is not particularly friendly to people using deadly force against the initial aggressor.  Of the three briefs that CJLF has filed in support of defendants over the years, two of them have been in California cases where the initial victim was charged with murder for using supposedly excessive force against the initial aggressor.

Both Egelko and Curt Anderson for AP note additional advantages for the defendant in the Florida law, aside from the "stand your ground" aspect.

Anderson says, "The U.S. Supreme Court has never weighed in on the constitutionality of such laws, and none has been struck down by a lower court."  Well, of course not.  People can, should, and do debate the wisdom of such laws, but what serious argument could be made that they are unconstitutional?  It has apparently become part of our modern legal mentality that we assume every important question must be a constitutional question, and a federal one at that.

Bill Cosby weighs in with an interesting interview at CNN.
The US Supreme Court's Monday orders list is here.  They took one copyright case.  The only argument today is a labor case.  Tomorrow two federal sentencing cases are being argued.  
The Los Angeles Times has this article headlined "Fight against death penalty gains momentum in states."  The article is riddled with problems.

First, and most personally, the article quotes me out of context, and very badly so.  It quotes a statement I made, "That's not the way a democracy is supposed to work," without telling the reader what "that" refers to. "That" was the action of the Connecticut Legislature passing a repeal bill when the vast majority of the people of that state oppose repeal.  The way the quote follows another quote about the substantive decision on the repeal v. reform question makes it sound like I am saying that decision is not a proper subject for the democratic process, which would be absurd.

There are other errors and significant omissions in the article.  The article cites "a comprehensive 2011 study [on costs] by Loyola Law School."  Loyola has not done a study.  There is an article by federal judge Arthur Alarcon and his career law clerk, Paula Mitchell (mostly by Mitchell and not much by Alarcon, I suspect).  Mitchell happens to be an adjunct professor at Loyola, meaning she teaches a course or two on the side, but that does not transform the article into a Loyola Law School study.  Whether this study is "comprehensive" or deeply flawed is a matter of opinion.

The article cites cost studies by opponents of the death penalty, but it does not mention other studies or criticisms of the studies it does cite.  The issue is nowhere near so clear-cut.

The article very prominently features one mother of a murder victim who is opposed to the death penalty.  It does not mention others who very much support it.

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U.S. Supreme Court Upholds Stay of Oklahoma Execution: The Associated Press reports the U.S. Supreme Court on Friday upheld the stay of execution for Oklahoma killer Garry Allen, who was scheduled to be executed yesterday. A federal court ordered the stay Wednesday, and an appeals court approved the ruling Thursday. Oklahoma's attorney general then referred the case to the U.S. Supreme Court. Allen was shot in the head by police responding to the crime scene after he fatally shot 24-year-old Gail Titsworth in 1986. His attorney's argue he had a history of mental illness and the gunshot injury caused more impairment.

LAPD Makes Changes to Transgender Policies: CBS Los Angeles reports on the LAPD announcement that by the end of the month, arrested transgender men and women will be housed in a separate section of the Los Angeles Police Department's downtown Metropolitan Detention Center. The separate section will hold as many as 24 people. LAPD jail division commander Capt. Dave Lindsay also said the section's transgender detainees will have access to male or female clothes and medical care, including hormone treatments. Officers are also no longer allowed to pat down a transgendered person to determine their gender. Instead, Police Chief Charlie Beck said officers will have to rely on the person's clothing, language, or demeanor.

DNA Matches Lead to Arrests in Two Murders: The Associated Press reports DNA has linked an Indiana inmate to the rape and killing of a 19-year-old mother in Arkansas in 2000. Authorities plan to extradite Anthony Johnson to Arkansas, where he is expected to be charged with capital murder, rape, and kidnapping. The young mother had been raped, tortured, and strangled with a ligature. An initial match in a DNA database linked the slaying to 44-year-old Johnson, and officials in Indiana collected more DNA samples from him in prison. He was serving time for domestic battery, burglary, and intimidation in the beating of his girlfriend in Indiana. In Arizona, the Associated Press reports 45-year-old Raymond Rivera will be extradited from California to Arizona to face a first-degree murder charge in the 1998 killing of 62-year-old Habib Raies. The victim was found bleeding to death from a single gunshot wound to the chest in Phoenix. The case went cold, but was reopened in 2009 when DNA evidence taken from a water bottle and bite marks on Raies was tested. Last month Rivera was arrested in the Los Angeles area on a felony burglary charge. His DNA was taken, and was matched to the DNA taken from the Raies case.      

Martin/Zimmerman Affidavit

Associated Press has posted a copy of the investigators' affidavit in the Martin/Zimmerman case here.

The affidavit says Martin "was on his way back to the townhouse where he was living when he was profiled by George Zimmerman."  It does not explain what it means by "profiled," a word that has become loaded in recent years.

The affidavit says Zimmerman continued to follow Martin after being told not to by the dispatcher and that Zimmerman confronted Martin, contrary to Zimmerman's version of being attacked from behind while walking back to his vehicle.

On the critical issue of the voice calling for help on the 911 calls, the affidavit says, "Trayvon Martin's mother has reviewed the 911 calls and identified the voice crying for help as Trayvon Martin's voice."  Well, that's disappointing.  I was hoping for something more scientific.  Both sets of parents claim it is their own son's voice.  Shouldn't the investigation have included an expert analysis?

Murderer/rapist of six executed

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David Alan Gore was executed this evening in Florida.  Story here.  Altogether, he raped and murdered six women and girls.  The Supreme Court orders denying stays, certiorari, and original habeas are here and here. Brendan Farrington of AP had this preexecution story:

David Alan Gore was set to be executed Thursday nearly 29 years after murdering 17-year-old Lynn Elliott, whose attempted escape ended a string of rapes and murders that shook the quiet coastal town of Vero Beach.

In all, Gore killed four teenage girls and two women. Elliott's murder is the only one for which he's condemned. He was scheduled to die by lethal injection at 6 p.m. Thursday at Florida State Prison. It's a day Elliott's parents have been waiting for - they say living for - and one many think should have come years ago considering there is no doubt he committed the crimes and he has shown no remorse for the killings.

"For us it's been a nightmare, because I just turned 81. I was beginning to think that I might die before he went," said Carl Elliott, the girl's father.

Jeanne Elliott almost did die. About two years ago she was in a coma, and doctors told her son to begin making funeral arrangements. She suddenly began recovering, and she said she believes it was because of her wish to see Gore die first.

So what did take so long?

Birther Suit

The birther suit has reached SCOTUS as Keys v. Obama, No. 11-1225.

I would offer to bet a beer that certiorari will be denied, but maybe there's something in the Unlawful Internet Gambling Enforcement Act of 2006 about that, so I won't.

News Scan

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Multiple-Murderer Set for Execution in Florida: The Associated Press reports David Alan Gore is scheduled to be executed in Florida Thursday for the murder of 17-year-old Lynn Elliott. Gore killed four teenage girls and two women en total, but Elliott's murder is the only one he received a death sentence for. In 1983, Gore and his cousin took Elliot and her friend to Gore's parents house. They were tied up, and Gore raped them. When Elliott tried to escape, Gore chased her down and shot her twice in the head as he tried to drag her back to the house. The other girl was rescued by police. Gore admitted to killing three other girls and two women after he was arrested. He led authorities to the bodies of four of the victims, and was sentenced to life in prison for the murders. "For us it's been a nightmare, because I just turned 81. I was beginning to think that I might die before he went," said Elliott's father.

Stay of Execution for Oklahoma Killer: The Associated Press reports a federal judge in Oklahoma City has issued a stay of execution for Garry Allen, who was scheduled to be executed Thursday for killing a woman in 1986, with whom he had two children. She had broken off the relationship three days before the murder and sought a protective order. Allen shot her four times while she was picking up their sons at daycare. He resisted arrest when police arrived, and was shot in the head, losing an eye. The governor's office said Allen's execution was stayed to give him "adequate opportunity to litigate claims regarding competency." Attorney General Scott Pruitt's office filed an appeal of the stay with the 10th U.S. Circuit Court of Appeals Wednesday, arguing Allen has been found sane by the courts. His attorney's have said his head injury caused mental impairments. "Now they are trying to say he is not competent, but he did this," said Adrian Titsworth, the victim's son. "The gunshot wound was after the fact."

Connecticut House Approves Death Penalty Repeal:
Douglas Stanglin of USA Today reports after 10 hours of debate, the Connecticut House approved and sent to the governor a bill to abolish the death penalty in the state. The bill passed the Democratic-controlled House mostly along party lines, 86-62.

Louisiana Bill Would Give Twice-Convicted Felons Earlier Chance at Parole: Ed Anderson of The Times-Picayune reports Louisiana's Committee on the Administration of Criminal Justice sent to the House floor on a unanimous vote legislation that would allow second-time felons a chance to apply for parole after serving one-third of their sentence. Currently in the state, second-time felons have to serve half of their sentence before they are eligible to seek parole. The bill would not apply to felons sentenced for crimes of violence or sex-related offenses. The bill is expected to be debated on the House floor next week.

Yesterday, in a bizarre ritual, Charles Manson came up for parole again.  To no one's surprise, he was turned down again.  The exercise highlights the travesty of justice that occurred the last time the death penalty was abolished in California.

In 1971, Manson received a thoroughly deserved sentence of death. The next year, the California Supreme Court misconstrued the state's constitution to prohibit the death penalty -- despite the fact that the state's original constitutional convention had expressly decided the precise question the other way and the relevant language had been carried over unchanged in subsequent revisions. (People v. Anderson, 6 Cal.3d 628 (1972).) A few months later, the U.S. Supreme Court struck down all remaining capital sentencing laws in the country -- despite the fact it had carefully considered and rejected essentially the same claim the year before in a California case. (Furman v. Georgia, 408 U.S. 238 (1972); McGautha v. California, 402 U.S. 183 (1971).)

Manson's sentence was changed to life in prison, and at the time life with possibility of parole was the only legal alternative. The spectacle of these periodic hearings serves only to highlight the travesty of justice, and it would be a travesty with or without the hearings.

Manson is allowed to live out his natural life. He is able to network with his fan base on his smuggled cell phone. This simply is not sufficient punishment for the horrific crimes he committed.

California's death row today holds some killers whose evilness is in the same league with Manson. There is Richard Ramirez, the Night Stalker, convicted of 13 murders, 5 attempts, and 11 sexual assaults. There is David Carpenter, the Trailside Killer, convicted of nine murders in two separate trials.

The question before the people of California this November is whether we will commit the same travesty of justice in these cases and many others as the courts committed in the Manson case.

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Condemned Inmates Challenge Idaho's New Execution Protocol: Rebecca Boone of the Associated Press reports four inmates on Idaho's death row filed a lawsuit against the state in Boise's U.S. District Court late last week regarding the Idaho's new execution procedures adopted earlier this year, asking a judge to halt all executions until they are changed again. The inmates claim the new execution protocol would allow unqualified professionals to carry out procedures, creates a risk of extreme pain, and gives too much power to prison officials.

As Murders Rise in Chicago, Focus is on Gangs: Frank Main of the Chicago Sun-Times reports Chicago Mayor Rahm Emanuel is calling for anti-gang legislation as murders rose 60 percent in the city for the first three months of 2012 compared to the same time last year. A bill passed by the House and now pending in the Senate would allow racketeering prosecutions of those directly or indirectly involved in gang activity through violent crimes, gun and drug crimes, or collection of illegal debts. A conviction would carry a fine of up to $250,000 and 10 to 30 years in prison.

Charles Manson Denied Parole for 12th Time: Linda Deutsch of the Associated Press reports California mass murderer Charles Manson was denied parole Tuesday for the 12th time. Manson and three female cult followers were convicted of slaying five people in 1969. Manson was also convicted of two other unrelated murders. The last parole hearing he attended was in 1997. Manson has been cited twice for having smuggled cell phones, and was cited for having a homemade weapon in his cell in October. He was originally sentenced to death, but his penalty was changed when the death penalty was temporarily outlawed in 1972.

Connecticut House Debates Death Penalty Repeal: The Associated Press reports the Connecticut House Tuesday began debating the death penalty repeal bill passed in the state Senate last week. The bill abolishes the death penalty in the state and replaces it with life imprisonment without the possibility of parole. Offenders convicted under the new law would face prison conditions similar to those currently experienced by condemned inmates. Connecticut Governor Dannel P. Malloy has said he will support the bill.

Zimmerman to be charged

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Sari Horwitz reports in the WaPo:

Florida special prosecutor Angela Corey plans to announce as early as Wednesday afternoon that she is charging neighborhood watch volunteer George Zimmerman in the shooting of Trayvon Martin, according to a law enforcement official close to the investigation.

It was not immediately clear what charge Zimmerman will face.

Update:  Zimmerman has been arrested and charged with second-degree murder, Gary Fineout and Brendan Farrington report for AP.

26 Years in County Jail?

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Cris Ornelas reports for KERO TV 23 (ABC) in Bakersfield, California:

Police in Taft say a career criminal is demonstrating what's wrong with the new state law that keeps non-violent offenders out of state prison. The suspect is facing new charges that could have him spending 26 years in county jail.

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New Examination Finds Norwegian Mass Killer Not Criminally Insane: Bjoern H. Amland of the Associated Press reports a new psychiatric assessment of Anders Behring Breivik, who confessed to killing 77 people in a bomb and shooting rampage in Norway last summer, found that he is not criminally insane. An earlier assessment found Breivik was psychotic during and after the attacks and diagnosed him as a paranoid schizophrenic. The new conclusion could prompt prosecutors to seek a prison sentence instead of a commitment to psychiatric care for Breivik. Both psychiatric assessments will be taken into account during the trial, and his lawyer Geir Lippestad said Breivik's testimony will be crucial "when the judges decide whether he is insane or not." The trial starts Monday and is scheduled to last 10 weeks.

Increase in Officer Deaths Prompts Change from FBI: Michael S. Schmidt and Joseph Goldstein of The New York Times report the number of officers killed in the line of duty has increased by 76% over the last four years, and a series of killings in early 2011 prompted Attorney General Eric Holder to ask federal authorities to work with local police departments in search of solutions to the problem. The FBI paid for a study done by John Jay College that found in many of the cases, officers were trying to stop or arrest a suspect who had been previously arrested for a violent crime. Officials said that prompted the FBI to change what information was provided to local police departments. Starting this year, when police officers call a car's license plate into the FBI's database, they will be told whether the vehicle's owner has a violent history. The number of police fatalities has dropped during the first three months of this year.

Philadelphia Trains Officers to Tweet:
Elizabeth Fiedler of WHYY reports the Philadelphia Police Department is training around 15 police officers across the city and of various ranks to use Twitter to help police better protect and build a stronger rapport with residents. Karima Zedan, director of communications for the Philadelphia Police Department, says officers tweeting while on the beat will allow police to communicate about safety and crime with those in individual neighborhoods.  
A few scattered notes from the last few days on the continuing controversies in the Martin/Zimmerman case.

The special prosecutor has decided not to take the case to the grand jury.  AP story is here.  What does that mean?  Not much.  The grand jury was once considered a key protection, and for federal cases it is enshrined in the Fifth Amendment, but the institution is largely obsolete and most states have made it optional.  California's law was upheld by the US Supreme Court way back in 1884, and the grand jury indictment clause remains one of the few provisions of the Bill of Rights not "incorporated" and applied to the states.  The AP story indicates that the decision to pass on the grand jury rules out a first-degree murder charge in Florida, but this case was highly unlikely to be first-degree murder anyway.

William McGurn in the WSJ asks "What Would Atticus Do?" in light of the recent 50th anniversary of the film version of To Kill A Mockingbird and the showing of the film at the White House.  The parallels are not as obvious as some think, McGurn says.

NBC News has fired the producer who made the infamously distorting edit of the Zimmerman phone tape.  Erik Wemple at the WaPo's media blog discusses whether it was error or intentional distortion.  He notes, "Effort would be required to contrive a more injurious abridgement of the tape, at least as far as Zimmerman's interests are concerned. The prima facie outrageousness of the editing, in fact, convinced a vocal group that NBC had acted deliberately -- that it was out to tar Zimmerman."  Even so, Wemple says, "I am not pitching a tent in the 'deliberate' camp. I've seen too many errors over the years, and I know how simple carelessness can come off as a conspiracy."

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Health Care Lawsuits to Rise Against California Counties: Marisa Lagos of the San Francisco Chronicle reports the same nonprofit Prison Law Office that successfully sued California over inmate health care in state prisons has filed a similar suit against Fresno County, and may also take action against Riverside County, over alleged inadequacies over health care for inmates as counties begin to house thousands of offenders diverted from prisons through realignment. The Prison Law Office warns there may be more suits to come. "It's not that these jails were doing well before; it's just worse with realignment," said Don Specter, Prison Law Office director. "In some ways, counties are worse than state prisons ... and certainly the harm on prisoners who stay there longer is going to be greater." San Francisco Probation Chief Wendy Still says she understands the state wants savings, "but don't just move the risk and liabilities to the county level," she said.

Alabama Supreme Court Halts Execution: Eric Velasco of The Birmingham News reports the Alabama Supreme Court on Monday halted the execution of Cary Dale Grayson, which was scheduled for Thursday. In 1994, Grayson and three others picked up hitchhiker Vicki Lynn DeBlieux, who they beat, murdered, and threw off a cliff. Grayson and two of the boys returned to the scene later, where they mutilated DeBlieux's body, stabbing her more than 180 times. They kept a severed finger as a souvenir, which they showed off to others. The 11th U.S. Circuit Court of Appeals last month halted the execution of Tommy Arthur scheduled for March 29 after his lawyers challenged a change in the drugs used in Alabama's lethal injection process. The Alabama Supreme Court issued a stay for Grayson pending further order of the court.

Wisconsin Governor Signs Handful of Criminal Justice Bills: Gitte Laasby of the Journal Sentinel reports Wisconsin Governor Scott Walker signed seven criminal justice bills into law Monday morning. Among them was Senate Bill 173, which will give police, prosecutors, and judges faster access to electronic juvenile records. Mallory O'Brien of Milwaukee's Homicide Review Commission said, "That information has to be shared. If they don't know that they're on supervision in the first place, they're never going to be sharing the information. It just kind of closes a loop that was kind of wide open with no accountability." Walker also signed Assembly Bill 397, also known as Caylee's law, related to penalties for failing to report the death of a child or to report a missing child, moving the corpse of a child, and hiding a corpse to collect public benefits.

Florida Governor Signs Bil Inspired by Caylee Anthony's Death: The Associated Press reports Florida Governor Rick Scott on Friday signed into law legislation inspired by the death of Caylee Anthony. The law increases the maximum penalty for knowingly making a false statement to police about a missing child from a year in jail to five years in prison. Caylee's mother, Casey Anthony, was convicted on four counts of lying to investigators and her four-year maximum sentence was completed by the time she was acquitted of murdering her daughter. If the law had been in effect at the time, she would have gotten up to 20 years in prison.
Last October, in its first decision of the term, the US Supreme Court reversed a decision granting a writ of habeas corpus to Shirley Ree Smith, who had been convicted of the murder her infant grandson.  It was the exemplar of a hard case that threatened to make bad law.  Subsequent developments in the science of shaken baby syndrome cast doubt on the coroner's conclusion regarding cause of death.

Yet the Ninth Circuit's application of Jackson v. Virginia to overturn the conviction was "plainly wrong."  The jury resolved the conflicting evidence in favor of guilt, unanimously and beyond a reasonable doubt, and the state courts properly deferred to the factfinder's decision.

To see the "bad law" potential of this case, see another case reversed by the Supreme Court a few years ago, also from the Ninth Circuit, also based on Jackson v. Virginia.  Troy Brown was guilty as sin of a horrible rape of a little girl.  The case was not capital murder only because she survived, no thanks to Brown.  The Ninth completely botched it.  The unanimous opinion of the Supreme Court is here.  CJLF brief is here.

The criminal justice system does have a safety valve for unusual cases where a properly conducted trial may have reached an unjust result.  That "safety valve" power is vested in the executive branch, not the judiciary.  It is executive clemency.

On Friday, Gov. Brown commuted Ms. Smith's sentence.  David Siders has this post at the SacBee.  Curiously, I couldn't find the commutation statement on the Gov's websiteUpdate:  Still not on the Gov's site, but I found it here.

When Redemption Is Real

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The title of this post is the title of a piece in NRO about Chuck Colson, one-time Nixon hatchet man.  Colson went to prison for his part in the Watergate scandal, and is probably best known now for starting Prison Fellowship, a group that purports to help rehabilitate inmates through Bible study.

I say "purports" because claimed rehabilitation is so often a sham.  Thus, as the article notes, the concept of redemption:

has been debased in our Tilt-a-Whirl media culture that can't distinguish between notoriety and fame. In contemporary America, redemption begins sometime between the first check-in into rehab and the first cable-TV interview, and reaches completion when everyone gets distracted by someone else's attention-grabbing disgrace.

What the article reminds us of, however, is that not every inmate is Lindsay Lohan, and not every claim of redemption is fraudulent.  

Colson left government after Nixon's reelection, feeling exhausted and empty. As the furor over Watergate grew, he visited a friend one night, a successful businessman who had converted to Christianity. The friend read a passage from C. S. Lewis: "Pride always means enmity -- it is enmity. And not only enmity between man and man, but enmity to God." Later, Colson sat in his car outside the house weeping alone in the darkness, not tears of sadness nor of joy, but "of relief."

When he realized that the exigencies of his legal defense were inconsistent with the forthrightness entailed by his new faith, he pleaded guilty and became Prisoner 23226 at Maxwell Federal Prison Camp in Alabama.

Today, Good Friday, might be the time to recall that, although claims of redemption are often hogwash and should be treated as such, "often" is not "always."

Judge Robert Beezer

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Senior Judge Robert Beezer of the Ninth Circuit died Friday of lung cancer at the age of 83.  He was appointed to the court by President Reagan in 1984 and was for many years a voice of reason in a place where reason was in short supply.  Douglas Martin has this story in the NYT.

DOJ's Response to Judge Smith

Blog of the Legal Times has AG Holder's response to Judge Jerry Smith's question on whether the Administration still believes in judicial review.  As directed, it is three pages (well, 2 1/3), single spaced.  As expected, it is filled with well-established and mostly uncontroversial stuff about judicial review, deference, yada, yada, yada.

Then there is the last sentence:  "The President's remarks were fully consistent with the principles described herein."

I've already said in a previous post and a comment that I think the president's original statement was preposterous but also that Judge Smith was out of line.  I won't comment any further.  Cut loose in the comments, if you like.

The Foreign Corrupt Practices Act

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Former AG Michael Mukasey and James Dunlop have an article in Engage, Can Someone Please Turn on the Lights? Bringing Transparency to the Foreign Corrupt Practices Act:

Passed in 1977, the Foreign Corrupt Practices Act ("FCPA") set out to achieve a laudable goal: to prevent U.S. companies and persons, when conducting business abroad, from corrupting the governments and people they meet....  Unfortunately, that unobjectionable vision has virtually disappeared in a miasma of aggressive prosecutions by the Justice Department--with $2.95 billion in penalties collected since 2009.

Connecticut Gives Up on Justice

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The Connecticut Senate today voted to give up on justice rather than fix its obstructed system for reviewing capital sentences.  The state has had only one execution in the post-Furman era, a "volunteer."  The Senate was considered the key vote.

My report to the Connecticut General Assembly last year, Mend It, Don't End It, is here.

The people of Connecticut oppose repeal 62-31, according to the Quinnipiac Poll, but the opinions of the great unwashed apparently don't matter to a majority of the Senate.

The repeal is prospective only, so the well-deserved sentences of those presently on death row in Connecticut can, in theory, be carried out.  The murderers will surely make an equal protection challenge, which should be rejected, but we'll see.

Minnesota Voter ID on Ballot

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In Minnesota, the legislature put the question of requiring voters to show ID on the November ballot.  Rachel E. Stassen-Berger has this story at the Star-Tribune.

I expect that the deceased vote will be 100% against this proposal.

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Serial Killer's Letters Move Forward Execution: Brendan Farrington of the Associated Press reports serial killer David Alan Gore is set to be executed sooner than he expected. Over 5 years, Gore exchanged 200 pages of graphic letters with Las Vegas man Tony Ciaglia, who writes to numerous serial killers, relishing in the details of his murders. In the letters, Gore brags about raping and murdering four teenagers and two women, likening the urge to kill to sexual arousal and describing the murders of two 14-year-old girls as "a perfect experience." His letters were published by author Pete Earley in his book "Serial Killer Whisperer." Scripps Treasure Coast Newspapers columnist Russ Lemmon also published a column discussing the case and the letters. On the same day, the editorial board brought the letters to the attention of Florida Gov. Rick Scott (R), who signed the death warrant despite the 40 other men who have been on death row longer than Gore. Gore is set for execution April 12.

Steele Argues Trayvon Martin Exploited: Shelby Steele of the Wall Street Journal writes there are two tragedies which took place in the case of Trayvon Martin; first, an unarmed teenager committing no crime was shot dead, and second, since the 1960s, the black American identity has shifted from common humanity to historical victimization. Steele argues this shift in identity was the worst mistake black Americans could have made. He describes a generation of ambulance-chasing, stating the greatest power current black leaders have "lies in the manipulation of white guilt" through poetic truth. According to Steele, the tragedy in the death of Martin is not the possibility of white racism, particularly since his shooter, George Zimmerman, was Hispanic. The tragedy lies in the desire many black leaders have in combination with the media to exploit tragedies and further their agendas.

Access to Drugs Could Put Executions on Hold:
Kimberly Leonard of iWatch News reports a federal judge ruled to block the import of sodium thiopental. An alternative for the lethal injection is pentobarbital, though it is expected that its supplies may become limited. With manufacturers selling pentobarbital directly to health care facilities and the drug having a shelf-life of about 18 months, the stockpiles states bought prior to distribution limitations may expire before use. While the FDA has not approved pentobarbital for use in executions or as anesthesia, Ed Elder, director at Lenor Zeeh Pharmaceutical Experiment Station at the University of Wisconsin-Madison, said the use of drugs in executions may fall outside of FDA oversight, a position the FDA has taken in the past. Mike Rushford of the CJLF said the important thing is not which drugs states use specifically, but to simplify the process so arguments against lethal injections have little ground left to stand on. Rushford said concerns regarding lethal injections are "claims by people who wouldn't want to execute any murderer under any circumstances by any means." Whether states will be able to maintain access to lethal injections and continue executions remains to be seen.

Louisiana Lawmakers Seek to Rewrite Sex Offender Social Networking Ban: The Associated Press reports a bid seeking to rewrite a state law to ban certain sex offenders from social networking sites, such as Facebook, began moving through the Louisiana Legislature on Wednesday. The existing law is argued to violate a convicted sex offender's free speech protections and was declared unconstitutional by a federal judge. The bill is sought by Gov. Bobby Jindal and sponsored by Rep. Ledricka Thierry, and will more narrowly define what specific sites are banned in hopes that it could withstand a court challenge. Thierry's bill would ban anyone convicted of a sex offense against a minor or of video voyeurism from websites whose primary purpose is "facilitating social interaction with other users of the website and which allows users to create web pages or profiles about themselves that are available to the public or other users." The bill is heading to the full House for debate.


KSM Trial, Finally

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Peter Finn reports in the WaPo:

A senior Pentagon official on Wednesday authorized a new trial for Khalid Sheik Mohammed and four others accused of orchestrating the Sept. 11, 2001, attacks, a step that restarts the most momentous terrorism case likely to be held at Guantanamo Bay, Cuba.

The suspects were first charged in a military commission in 2008, but the case was suspended when the Obama administration came into office and later moved to have them tried in federal court in New York.

That effort collapsed in the face of congressional and local opposition. In April 2011, Attorney General Eric H. Holder Jr. announced that he was reluctantly sending the case back to the military.

In World War II, U-boat saboteur Richard Quirin was arrested June 20, 1942, the Supreme Court decided his case July 31, 1942, and he was executed August 8, 1942.

Where is FDR when we need him?

News Scan

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Connecticut Senate to Vote on Death Penalty Repeal: Shannon Young of the Associated Press reports the Connecticut Senate will vote Wednesday on a bill to abolish the death penalty in the state. The legislation will only affect future cases, and the sentences of the 11 inmates currently on Connecticut's death row will remain intact. But opponents predict death row inmates will use the repeal as the basis for numerous legal appeals. A Quinnipiac University poll last month showed 62 percent of Connecticut residents do not support the repeal.

Justice Department Threatens to Sue Arizona Sheriff: Sari Horwitz of The Washington Post reports the Justice Department threatened to sue Maricopa County Sheriff Joe Arpaio Tuesday when negotiations fell through in the case where Justice officials have accused Arpaio of discriminating against Hispanics. Arpaio refused to agree to one of the Justice Department's requirements, an independent monitor to oversee changes in his department. Thomas E. Perez, assistant attorney general for civil rights, said they hope to resolve the issues, "but we will not hesitate to take appropriate legal action if the [Maricopa County Sheriff's Office] chooses a different course of action." This is one of 17 probes the Justice Department's Civil Rights Division is conducting of sheriff and police departments, which is the most in its 54-year history.

Appeals Court Hears Case in Surrendering of Rhode Island Murderer: Laura Crimaldi of the Associated Press reports a five-judge panel of the 1st U.S. Circuit Court of Appeals on Wednesday heard arguments in the case of Jason Pleau, who Rhode Island Governor Lincoln Chafee is refusing to surrender to federal authorities because he could face the death penalty if prosecuted in federal court. Rhode Island does not have the death penalty. Pleau is accused of fatally shooting a gas station manager outside of a bank in 2010 and making off with a bank deposit bag with more than $12,000 inside. Pleau is serving an 18-year-sentence in state prison for a probation violation in another case.

Ohio Execution Reboot

Until last November, Ohio had been one of the most successful states in terms of finally carrying out justice in capital cases after many years of delay.  They were first to adopt the single-drug method now spreading across the country.  However, executions have been on hold recently.  AP has this story:

Ohio's first execution in six months can proceed, a federal judge ruled Wednesday, saying it appears the state is serious about following its own lethal injection procedures.

The decision by U.S. District Judge Gregory Frost ends an unofficial moratorium dating to November, when members of the Ohio execution team deviated from the official injection procedures when putting a Cleveland man to death.

The changes were minor -- failing to properly check a box on a medical form, for example -- but they angered Frost, who had previously criticized the state for failing to follow its rules.

The judge's decision followed a seven-day trial over the state's lethal injection process last month.

The ruling paves the way for the April 18 execution of Mark Wiles for stabbing a 15-year-old boy to death during a farmhouse burglary.


For the record, the Flag Protection Act of 1989 passed the House by a vote of 380-38 and the Senate by a vote of 91-9.  The Supreme Court declared it unconstitutional in United States v. Eichmann, 496 U.S. 310 (1990).

"Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," President Obama said.  Whatever else may be said on this topic, "unprecedented" is preposterous.

Is Marbury v. Madison Still the Law?

This is not about criminal law, but it is central to the question some of us thought had been resolved in 1803:  Does the judicial branch or the executive branch have the final say over the constitutionality of statutes?  President Obama, a former lecturer in Constitutional Law at the prestigious University of Chicago Law School  --  and now perpetually on the campaign trail  --  said the other day that it would be "unprecedented" for the courts to nullify the Affordable Care Act. 

Today, a Fifth Circuit panel directed an attorney for the government to state within 48 hours whether the President is serious about this nonsense.

My goodness.  Where is Ron Ziegler when we need to render some Presidential statements "inoperative?"

News Scan

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Arizona Legislature Passes Online Harassment Bill: Alyssa Newcomb of ABC News reports a new bill passed by Arizona lawmakers, House Bill 2549, would make it a class one misdemeanor for anyone to "terrify, intimidate, threaten, harass, annoy or offend" others through electronic and digital devices. One of the sponsors of the bill, State Rep. Steve Farley, says the intention of the bill is to protect victims of stalking and bullying, not to limit free speech. "It doesn't mean that the person is instantly going to be fined or put away," Farley told ABCNews.com. "But if the judge determines it relates to other circumstances in the case then they can use this as another tool to make that decision." Before being sent to Arizona Governor Jan Brewer, the bill is awaiting one final vote on a minor "technical change."

Los Angeles County Supervision of Ex-Cons Off to a Rough Start: Jason Song of the Los Angeles Times reports the shift of about 6,000 released prisoners now being supervised by local officials under realignment has gotten off to a rough start in Los Angeles County. Many offenders are not showing up for counseling appointments and some care centers are not being reimbursed. About a quarter of the probationers have been arrested for new crimes in the six months since realignment went into effect. That number could continue to climb, especially since about 10% of released convicts have gone missing or are not attending meetings.

Sheriff Introduces Chess Program at Chicago Jail: Don Babwin of the Associated Press reports Cook County Sheriff Tom Dart has launched a chess program at the county jail in Chicago. Dart says he hopes inmates can apply what they learn from the game about patience and problem-solving to their own lives. "We see it day-in and day-out that people want instant gratification and that often individuals do not think before they act," Dart said Monday. "Thoughtless actions will hurt you while playing chess and hurt you more on the street." 100 inmates are currently participating, and Dart's office said ultimately about 150 inmates are to take part.

Q&A on Martin/Zimmerman Case

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The WSJ Law Blog has this interesting Q&A session on the Martin/Zimmerman case.

James Taranto weighs in here on reflexive support for Zimmerman, lynch-mob mentality, and dishonest editing.

News Scan

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More Than 3,100 Illegal Immigrants Arrested: The Associated Press reports federal officials said Monday more than 3,100 illegal immigrants convicted of serious crimes or considered fugitives or threats to national security were arrested in a six-day nationwide sweep that was described as the largest of its kind. U.S. Immigration and Customs Enforcement officials said every state was included in the sweep, which involved more than 1,900 of the agency's officers and agents. More than 1,000 of those arrested have multiple criminal convictions, including murder, manslaughter, drug trafficking, and sexual crimes against minors in some cases. An estimated 50 gang members and 149 convicted sex offenders were arrested in the sweep.

Two More Victims of Speed Freak Killers Identified: Justin Berton of the San Francisco Chronicle reports police said Friday they had identified the remains of two teenage victims of the Speed Freak Killers, whose skeletal remains had been excavated from a compacted well where 1,000 bone fragments have been collected by investigators in recent weeks. The victims identified were Kimberly Billy, who was 19 when she went missing in 1984, and Joann Hobson, who was 16 when she disappeared in 1985. "They finally get the closure they need," said Rob Dick, a private investigator who has worked with victims' families during the three-decade investigation. "These families have been dying for answers." Sheriff Steve Moore said Friday the bones of a third victim were also found, but could not be identified.

Execution Date Set for Georgia Inmate: Bill Rankin of the Atlanta Journal Constitution reports Daniel Greene has been scheduled for execution April 19 in Georgia for the 1991 murder of 19-year-old Bernard Walker. Walker was trying to help a store clerk after Greene forced her to give him money from the cash register before taking her to the back room and stabbing her. The store clerk survived, but Greene stabbed Walker in the heart, and he died in the parking lot. After killing Walker, Greene drove to home of a couple who he had previously worked for and stabbed them multiple times. The couple survived. Green then drove to another convenience store where he pulled a knife on the store attendant. After she gave Green money from the cash register, he stabbed her in the back of the shoulder before fleeing. Greene later confessed to the crimes in a videotaped interview, saying he needed the money for crack cocaine.

CA Bill Proposed to Prohibit Medically Unnecessary Procedures for Inmates: Turnto23.com reports from Bakersfield that California Senator Michael J. Rubio (D - Shafter) announced his proposed legislation, SB 1079, which would establish state law prohibiting medically unnecessary procedures and services for inmates, was passed out of the Senate Health Committee Wednesday afternoon. The bill would prevent taxpayer money from being used to pay for treatments including sex changes, infertility treatments, breast enlargements, and weight reduction surgery for inmates. The most recent version of the bill, which now goes to the Senate Committee on Public Safety, is here.

Trayvon Martin Case Puts Worst Media Tendencies on Display: Dylan Stableford of The Cutline/Yahoo! News reports how the Trayvon Martin case out of Florida has exposed the worst media tendencies, which include selective editing, fake photos, rushed judgments, and invoking anger for ratings and page views. Stableford points to three recent examples from the Daily Caller, the "Today" show, and CBS News.

Charges Dropped Against Man Who Shot Intruder: Lauren Fitzpatrick of the Chicago Sun-Times reports prosecutors on Monday dropped weapons charges against Homer Wright, 81, who had shot in the ankle a man who had broken into his bar to steal alcohol. Anthony Robinson, 19, was charged with burglary and is being held on bail. Court records show Robinson has been arrested at least 13 times since 2009, primarily for theft, burglary, and minor drug offenses, and that he skipped multiple hearings. See previous post here.  

Other SCOTUS Action Today

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Rehburg v. Paulk, also decided today, involves suing a witness (in this case, a DA investigator) for his testimony under the civil rights law, 42 U.S.C. §1983.  Precedent establishes that witnesses at trial have absolute immunity from such suits.  Today, the Court held 9-0 that the same rule applies to grand jury witnesses.  No surprise.

The Court dropped a harmless error case, Vasquez v. U.S.  No explanation is given, as usual. Tejinder Singh has this post at SCOTUSblog.

The Court accepted for review yet another case on what is an "aggravated felony" for purpose of deportation, Moncrieffe v. Holder, No. 11-702.

Strip Searches in Jail

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The US Supreme Court today upheld the practice of strip-searching everyone who is arrested and placed in a jail's general population, even when the offense is minor.  The 5-4 decision in Florence v. Board of Chosen Freeholders of County of Burlington is here.  The majority opinion by Justice Kennedy acknowledges the indignity but finds no practical alternative.  Jail officials know very little about a person at the time of arrest, and seriousness of the charge has little relation to the probability of possessing contraband.  Given the potentially extreme consequences of allowing contraband, especially weapons, into a jail, it is regrettably necessary.  "Correctional officers have had to confront arrestees concealing knives, scissors, razor blades, glass shards, and other prohibited items on their person, including in their body cavities."

Justice Alito's concurring opinion notes:

It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.
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The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee's detention has been reviewed by a judicial officer. The lead opinion explicitly reserves judgment on that question. See ante, at 18-19. In light of that limitation, I join the opinion of the Court in full.

Capital Punishment in Thailand

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The Bangkok Post has this article as part of a series on capital punishment.  The procedure for trial, appeal, and clemency is remarkably similar to our own.  (I don't claim to know how it actually works in practice.)  They have adopted lethal injection as the method of execution, unlike Japan which still uses hanging.

Opponents of capital punishment regularly harp on how it has been abandoned by Europe, but they rarely mention Asia.  Such an emphasis would be condemned as eurocentric or even racist if advanced in support of a Politically Incorrect position, but because it is advanced for a Politically Correct position it is okay.

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