June 2012 Archives

Although Eric Holder, head of the US Department of Justice, has been cited for contempt of Congress, he will not be prosecuted by the US Department of Justice, reports Mike Scarcella at BLT.

We were on the edge of our seats in suspense over that one.

Brian Stelter at the NYT has this story on the initial misreporting of the health care decision on both CNN and Fox News Channel.  On Fox, the error was corrected "a moment later," but CNN continued to report the wrong result for six minutes.

The source of the error was that reporters jumped to the result from the fact that a majority rejected the Commerce Clause as a basis for the individual mandate, which everyone expected to be the main battle.  (James Taranto has this column at the WSJ on Justice Ginsburg's "bitter concurrence" on this point.)  They didn't wait for the decision on the alternative theory that the mandate is a tax.

This isn't the first time major news media have gotten it wrong.  It isn't even the first time this week.  As Bill and I noted Monday, the AP report on the juvenile LWOP case, Miller v. Alabama, was seriously wrong.  Even worse, because everyone was focused on the Arizona case, it didn't get corrected with near the speed of Thursday's faux pas.  Late in the day, I was still seeing the wrong report on major newspaper web sites.

SF Mayor Considering Implementing Stop-and-Frisk Policy: The Associated Press reports San Francisco Mayor Ed Lee told the San Francisco Chronicle's Editorial Board on Wednesday that he is considering implementing a stop-and-frisk policy so police officers can get guns off the streets. The policy has been used in other major cities including New York and Philadelphia. Critics say the policy leads to racial profiling. "This is under consideration as a way to make sure that we keep homicides and some of these other violent crime(s) down," Lee said. "I think we have to get to the guns. I know we have to find a different way to get to these weapons, and I'm very willing to consider what other cities are doing."

British Court Blocks Serial Sex Offender's Extradition to U.S.: The Associated Press reports two judges from Britain's High Court on Thursday blocked a U.S. government bid to extradite sex offender Shawn Sullivan to Minnesota because U.S. authorities would not guarantee that Sullivan would not be placed in the state's civil commitment program. The judges said the program, which allows for the indefinite detention for sex offender treatment of those deemed sexually dangerous or sexually psychopathic, would be a "flagrant denial" of his human rights. Sullivan is accused of raping a 14-year-old girl and sexually molesting two 11-year-old girls in the 1990s in Minnesota. A dual U.S.-Irish citizen, he escaped to Ireland as prosecutors were preparing to file charges, and while there was convicted of sexual assaulting two 12-year-old girls. Authorities found him in London two years ago.

Arkansas Judge Keeps Death Penalty Consideration for Cop Killer: Keith Inman of The Jonesboro Sun reports Circuit Judge Brent Davis in Arkansas said the state's Supreme Court June 22 ruling "doesn't prevent the state from proceeding with a death penalty case." "It does not prevent the court from imposing the punishment," he said. Davis said the ruling only negates the procedure for carrying out the punishment. The means Jerry D. Lard could still face a death sentence when his trial begins July 16 for the shooting death of a police officer. He is also charged with attempted capital murder for wounding another officer. At the time of the shooting, Lard was wanted on a rape warrant.

CA Bill Would Require Double Registration for Realigned Offenders: Erika Aguilar of Southern California Public Radio reports the California Senate Public Safety Committee on Tuesday considered a bill sponsored by Assemblyman Mike Gatto (D-Los Angeles) that would require offenders released from state prison on post-release community supervision to report and register with their city's local police department in addition to the county probation department. Gatto, joined by Glendale Police Chief Ron De Pompa, said local police are getting incorrect and incomplete information from the state's corrections agency and Los Angeles County probation. Pompa said personal information the Glendale Police Department is getting on released felons has a 70 percent error rate. The most recent version of the bill is here.

Plans Approved to Build Psychiatric Ward for Norwegian Mass Killer: The Associated Press reports Norway's Health Directorate on Wednesday approved plans to build a psychiatric ward inside Oslo's Ila Prison, specially designed for confessed mass killer Anders Behring Breivik. If found criminally insane, he will likely remain inside the prison where he has been held since he killed 77 people in a bomb and shooting massacre last July. His mental state was the key issue at his trial, since his guilt is not in question. The court is scheduled to rule on the matter August 24.

London Unveils "Facewatch" App: The Associated Press reports Scotland Yard says it has loaded nearly 5,000 pictures of wanted suspects onto its "Facewatch" smartphone application. London residents can enter their postal code and they are shown pictures of wanted people taken in their neighborhood. Users can identify suspects by flipping through the pictures or sending in the name of the suspect if known.

Andrea Peyser has this story, with the above headline, in the New York Post.

From Sing Sing to San Quentin, they're laughing at us. And still, punishment abolitionists (including a good number of university professors) are pushing for more prisoners' rights and an even cushier time in the can.

Wardens say they're nice to the worst offenders because it keeps them quiet and makes prison life easier. Which explains why many cons prefer being inside.

As expected, North Carolina Governor Bev Perdue has vetoed the bill to repair the badly misnamed Racial Justice Act, the law that allows murderers to escape justice with statistics that don't actually prove anything.  Craig Jarvis and John Frank have this story in the Charlotte Observer.  A veto override hangs by a thread.

House Votes Holder in Contempt: Stephen Dinan of The Washington Times reports the House on Thursday voted 255-67 to hold Attorney General Eric Holder in contempt of Congress in the investigation of the "Fast and Furious" gun-walking operation. It is the first time an attorney general has been held in contempt by a chamber of Congress.

Judge Rejects Fed's Request to Block Florida Voter Purge: The Associated Press reports U.S. District Judge Robert Hinkle on Wednesday rejected a lawsuit from the Department of Justice filed earlier this month to block Florida's purging of ineligible voters from the state's voter rolls. Hinkle said federal voting laws do not cover voters who should never have been allowed to vote in the first place. Ron Labasky, the legal adviser for the association that represents county election supervisors, sent a memo to supervisors late Wednesday, telling them that they can now remove a person from the voting rolls if they have "sufficient documentation" that someone is not a U.S. citizen. Labasky said the ruling resolves whether counties can continue with the purge while multiple lawsuits associated with the purge still exist.

Chicago Latest City to De-Criminalize Marijuana Possession: Kristen Mack of the Chicago Tribune reports the Chicago City Council voted Wednesday to issues tickets for someone caught with 15 grams or less of marijuana instead of arresting them. Currently, those convicted of marijuana possession face a misdemeanor charge and a punishment of up to six months in jail and a $1,500 fine. More than 18,000 people were arrested in Chicago last year for marijuana possession. Police officers will still arrest people caught smoking marijuana or in possession of it on park or school grounds, anyone under 17 caught with marijuana, or anyone believed to have been trying to sell marijuana. The new policy goes into effect August 4.

CA Meets Second Prison Population Reduction Benchmark: The California Department of Corrections and Rehabilitation reports it has reached the second population benchmark under the prisoner reduction order. As of June 27, 2012, the inmate population in California's 33 prisons was to be at no more than 155 percent of design capacity, or 124,000 inmates. CDCR Secretary Matthew Cate said they had already reached that number in mid-April.

The Supreme Court's decision in the Stolen Valor Act case, United States v. Alvarez is here.

This is a profoundly disappointing decision.  Government prohibits speech and other forms of expression which are false or even have a potential to mislead under circumstances much less compelling than those in this case.  In the Gay Olympics case, for example, the Court upheld a prohibition on the use of a historical word to describe an athletic event because it might dilute the trademark given by Congress to one organization.  In trademark law, Congress prohibits selling cheap imitations of expensive items even if the buyer is very well aware it is not the famous brand, and the only deception is of the people who see the buyer and think the item is the expensive one.  Justice Alito notes in the dissent, "Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country's top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags."

The Court has needlessly stretched the First Amendment out of shape to create a constitutional right to lie.  Our core constitutional rights are debased, not enhanced, by stretching them out of shape to extend far beyond their proper scope. This is a sad day for America's genuine heroes, and it is a sad day for the Constitution.

As a matter of Constitutional law, it seems to me that the dissents in Miller had the better of the argument.  But for those worried that Miller is nothing more than the continuation of the slow chipping away of both capital punishment and LWOP, with Justice Kennedy providing the key vote (see Roper and Kennedy v. Louisiana), let me try to provide some cheering up.  Miller is different in one very important way.

Nearly as suddenly, violent crime began to ebb across the country. The reasons for the drop-off are vigorously debated, with many liberals denying any link to incarceration rates. But William G. Otis, a top Justice Department official under the first President George Bush who is an adjunct law professor at Georgetown University in Washington, said there was little doubt in his mind that one reason for the decline was that "the people who have been committing these crimes are now in jail."

Still, he expressed satisfaction with Monday's ruling because it reduced reliance on mandatory sentencing and gave discretion back to judges who may still decide to put someone away for life.

"It's a mistake for the system to carve out classes," he said. "You should look at each case individually." 

Just so that I won't be misunderstood, my "satisfaction" with the opinion in Miller lay in its rejection of a blanket rule barring LWOP and its embrace of a case-by-case approach, not in its Constitutional holding that a penalty in force in 29 states is cruel and "unusual."

I take further heart that the case-by-case approach was set forth by Justice Kagan, giving credence to her confirmation hearing testimony that she would not adopt the one-size-fits-all rule for death penalty cases used by Justice Marshall, for whom she clerked.

Arizona Executes Inmate for 1986 Murder: Bob Ortega and Michael Kiefer of The Arizona Republic report Samuel Lopez was executed by lethal injection in Arizona this morning for sexually assaulting and stabbing a woman to death in 1986. Estefana Holmes, a grandmother and seamstress, was stabbed more than 23 times and her throat was slashed with her own kitchen knives. For the first time, the state's Department of Corrections allowed witnesses to watch the executioners insert the intravenous catheters that deliver the single drug pentobarbital, via close-circuit TV. More than a dozen of Holmes' family members spoke at the Board of Executive Clemency hearing on Friday in favor of Lopez's execution. "We are not here to seek vengeance nor to avenge, but to seek justice for our family. This execution today will not bring our beloved Tefo back, but hopefully will bring closure," Holmes' brother said after the execution.

Prison Lawsuits Over Air-Conditioning, Food: Manny Fernandez of The New York Times reports a wrongful-death lawsuit was filed in federal court in Texas on Tuesday on behalf of the family of former prison inmate Larry Gene McCollum, who died last summer due to hyperthermia. The 345-poud McCollum, who also had hypertension, had a seizure and fell from his bunk bed while at the Hutchins State Jail outside Dallas. In 2008, former South Texas inmate Eugene Blackmon filed a lawsuit claiming the hot conditions inside his dormitory caused him to have headaches, blurred vision, and nausea. Blackmon was in prison during the summer of 2008 for a parole violation on a stolen-goods charge. The lawsuit claims 54 inmates were exposed to conditions in which the heat index topped 126 degrees for 10 days indoors. The lawsuit was denied by a lower court, and is waiting on a ruling by the Fifth U.S. Circuit Court of Appeals. John Marzulli of New York Daily News reports ex-Rikers Island inmate Michael Isolda is suing the city of New York for $80 million. Isolda previously underwent gastric bypass surgery, and says he needed more time than was allowed to chew and swallow food. Isolda claims the rushed eating caused him to vomit after every meal and eventually caused his stomach to become separated from his intestine. As a note, the article contains some unsightly photos of Isolda.

Arkansas Supreme Court and the Separation of Powers: Roy Ockert has this piece in Arkansas News regarding the Arkansas Supreme Court's ruling Friday that declared the state's execution method unconstitutional. The decision came in a lawsuit filed by 10 condemned inmates against the Arkansas Department of Correction that challenged a 2009 law in which the Legislature gave the state's Department of Correction discretion in determining how to carry out lethal injections. The law was passed in an attempt to correct issues cited in a previous lawsuit regarding the state's lethal injection process. The Arkansas Supreme Court said the move violated the constitutional doctrine of separation of powers. Associate Justice Karen R. Baker pointed out in his dissent that the "separation of powers" argument had been rejected in similar death penalty challenges in Texas, Delaware, Idaho and Florida. Those states had assigned the relevant administrative agency the responsibility for determining the execution procedures. "The Supreme Court justices need to figure out how to carry out the responsibilities of the judicial branch and administer justice to these men," Ockert says.

Brazil Inmates Get Sentences Reduced by Reading Books: Reuters reports a new program in Brazil prisons called "Redemption through Reading" will shorten inmates' sentences by four days for every book they read. Inmates in four federal prisons will be able to read up to 12 books to cut a maximum of 48 days off their sentence each year. They will have up to four weeks to read each book, and afterwards must write an essay. A panel will decide which inmates are allowed to participate in the program.

"Shame" Punishments in the Spotlight: Lynn DeBruin of the Associated Press reports unconventional sentences meant to shame defendants appear to be on the rise in the U.S. The most recent example is out of Utah, where a 13-year-old girl went to court for cutting a 3-year-old girl's hair. She was ordered to serve 30 days in detention and perform 276 hours of community service, which a judge said he would reduce by 150 hours if the teen's mother cut off her ponytail in court. In Utah, state law gives judges discretion to come up with sanctions for youth that will positively change their behavior. Jonathan Turley, a professor at George Washington University, says shame sentences also occur in adult courts, where judges act like "little Caesars." Turley said he has not seen any evidence that shame sentences have more impact than conventional ones.

CA Parolee Sentenced to Death for Killing Police Officer: Richard Winton of the Los Angeles Times reports a judge on Monday sentenced Earl Ellis Green to death for the execution-style shooting death of Riverside Police Officer and Iraq War veteran Ryan Bonaminio. A jury recommended the death penalty for Green earlier this month for the 2010 slaying. Bonaminio was chasing Green when he slipped. Green bludgeoned Bonaminio with a metal pipe, and then took the officer's handgun and fired at the back of his head from about a foot away. Bonaminio's mother told the court that Green "cowardly and brutally took my son's life without cause and with hate. I will never forget and will never forgive."

Michael Hinkelman reports at philly.com:

THE ANNUAL COST of violent crime in Philadelphia averages more than $472 per person, or a total of $736 million in 2010 alone. That's just one eye-popping conclusion of a new study examining costs associated with violent crime.

*                                    *                                    *

In the case of Philadelphia, the costs are staggering. The report's authors concluded that the direct, annual costs of violent crime in Philadelphia in 2010 came to $736 million. When intangible costs associated with violent crime are factored in -- such as the pain and suffering of surviving victims -- the tab for violent crime here topped out at $3.7 billion a year.

Interestingly, the study is sponsored by the Center for American Progress, a left-wing outfit.  I'll have to look at in more detail.

Supreme Court Ruling on Arizona Immigration Law to Impact Other States: Pamela Constable of The Washington Post reports the U.S. Supreme Court ruled this morning to allow the provision of Arizona's immigration law that requires police to check the immigration status of anyone they encounter while performing their duties. The court struck down other parts of the law that they say conflict with federal law, such as making it a crime for illegal immigrants to seek out jobs. Federal districts courts have blocked similar laws in Georgia, Indiana, Utah, and South Carolina, which may now need to be changed to apply the high court's ruling. In Alabama, federal courts upheld a law allowing police to check the legal status of immigrants. The ruling bans other aspects of proposed state laws, such as Alabama's provision which makes it a crime to be in the state illegally, and Indiana's proposed warrantless arrests of illegal immigrants. Cecilia Wong, a spokesman for the American Civil Liberties Union in San Francisco, said the ACLU will go to court "immediately" to challenge Arizona and other similar state laws.

Santa Cruz County to Outsource Inmate Medical Services: Jason Hoppin of the Santa Cruz Sentinel reports the Santa Cruz County Board of Supervisors voted last Wednesday to approve the outsourcing of medical services in county jails. Several board members said the move was essential to the county's efforts to handle more inmates, many of which are having to be released under monitoring. "It is a challenge that was thrown upon us," Santa Cruz County Sheriff-Coroner Phil Wowak said. "... I don't have the ability to provide that system given the budget constraints that I have."

Federal Bureau of Prisons Sued: Justin Moyer of The Washington Post reports a class-action lawsuit has been filed in federal court in Colorado against the Federal Bureau of Prisons. The lawsuit alleges inmates with mental illnesses are being denied adequate services, including medication, and improperly held at the U.S. Penitentiary Administrative Maximum Facility (ADX) in Florence, Colorado. Regulations prohibit inmates with serious mental illnesses from being held there, but the lawsuit alleges prisoners end up there due to an inadequate screening process.

The Federalist Society asked me to write one paragraph for press distribution about today's decision in Miller v. Alabama.  As I explained in that short statement, perhaps the most surprising thing about the opinion is the inability of so much of the press to understand what it holds.  Reports of the demise of juvenile LWOP are incorrect (and, if I don't miss my guess, the result of considerable wishful thinking from the usual suspects, and others, in the liberal media).  I noted:

By a 5-4 vote, the Supreme Court held that states cannot mandate life without parole (LWOP) for juveniles convicted of murder. Although initial press coverage -- for example, from the AP, the Wall Street Journal, and CBS radio -- stated that the Court had ruled out LWOP for juvenile killers, that is incorrect. The Court held no more than that LWOP cannot automatically be imposed, and that sentencing in such cases must henceforth allow introduction of mitigating evidence particular to each defendant. In other words, the Court today did to juvenile LWOP what it did in the Woodson case in 1976 to capital punishment for adults: It held that rules automatically imposing the harshest penalty are inconsistent with the Eighth Amendment. It is thus worth remembering that, in the 36 years since Woodson, and in the era of discretionary death penalty sentencing, there have been 1298 executions in the United States. Thus, reports of the end of juvenile LWOP as a result of today's ruling are at best premature, and almost certainly wrong.  

A few more quick thoughts on the scope of today's decision in Miller v. Alabama.

Many states are already in compliance.  For example, California Penal Code § 190.5(b) provides that the sentence for a juvenile convicted of first-degree murder with special circumstances (our odd term for capital murder) is LWOP or 25-to-life "at the discretion of the court."  In my opinion, this complies with today's decision.

All new U.S. Supreme Court decisions are retroactive to cases pending on direct appeal, as Miller was.  They can be retroactive to cases on state collateral review, as Jackson was.  States can choose to follow the Teague rule or not.  (Danforth v. Minnesota.)

New rules that make a defendant categorically ineligible for a punishment (Atkins, Graham) apply retroactively on federal habeas corpus.  New rules of procedure do not unless they are "watershed" rules, and the Supreme Court has not found a single new rule to be "watershed" since it set up this framework in 1989.

In addition, Congress has provided that a claim rejected on the merits in state court cannot be overturned on federal habeas if it was reasonable under Supreme Court precedent existing at the time.  (28 U.S.C. §2254(d))

So, for cases that were already final on appeal before today, I think there is a strong case for resisting retroactive application.

Regrettably, it appears that the Court has imported its entire, deeply flawed, "individualized sentencing" regime from capital punishment into JLWOP.  Juveniles facing LWOP now have a federal constitutional right a la Lockett to bring in everything including the kitchen sink and then file federal habeas petitions to second-guess the trial judge on the details of the proceeding.

One more reason for the next Congress to remove sentencing-phase claims from federal habeas altogether.

The initial report from AP this morning said that the Supreme Court had banned life-without-parole for juveniles convicted of murder.  That is wrong.  The Court actually held in Miller v. Alabama that a mandatory sentencing statute for JLWOP is unconstitutional.  In other words, the Court is continuing on the track of applying to life-without-parole for juveniles the same kinds of limitations it has long applied to the death penalty for adults.  First they banned the penalty for crimes less than murder.  Today, they require that the sentencer have discretion to impose it or not.

"Sandusky Guilty in Sex Abuse Case"

AP reports that the President of Uruguay has proposed that the government itself sell marijuana, as a monopoly.

As a purely personal opinion (CJLF has taken no position on the legalization issue), I think that government monopoly may be the least bad of the alternatives.

The Sandusky jury is sequestered.  (See AP story here.)  That's a good thing, because Sandusky's own lawyer is out blabbing in public about what a hard case it was for the defense, Mark Scolforo and Genaro Armas report, also for AP.  "Amendola says he'll 'probably die of a heart attack' if his client beats all the charges. He calls it 'a daunting, daunting case' and likens it to climbing Mount Everest."

Are you absolutely certain the sequestration will keep that from the jury, Mr. Amendola?  You'd better hope it does.

One of my least favorite expressions in the legal lexicon is "zealous advocacy."  A zealot is a fanatic who will stop at nothing to advance a cause.  That is not what most folks on the defense side really mean when they speak of zealous advocacy.

A few do, though.  A while back in California we had a paralegal in a capital defense agency who forged jurors' names on affidavits.

Today Mike Scarcella reports at BLT:

A federal judge today found a longtime criminal defense lawyer in Washington guilty for his lead role in a scheme to fabricate evidence, a win for prosecutors in a closely watched case that raised concern in the defense bar.

The lawyer, Charles Daum, claimed the client orchestrated the scheme himself.

Senior U.S. District Judge Gladys Kessler, who presided over a month-long bench trial, didn't buy the argument. The plot, she said, was far too complex for the cooperators to have dreamed up and executed on their own. Kessler called the scheme "nefarious," saying the allegations struck at the heart of the criminal justice system.

Here's the bad news:

The Arkansas Supreme Court struck down the state's execution law Friday, calling it unconstitutional.  In a split decision, the high court sided with 10 death-row inmates who argued that, under Arkansas' constitution, only the Legislature can set execution policy. Legislators in 2009 voted to give that authority to the Department of Correction.

It wasn't immediately clear what the court's ruling will mean for the 40 men on death row in Arkansas. There aren't any pending executions, and the state hasn't put anyone to death since 2005.

Executions Halted in Arkansas:  A divided ruling by the Arkansas Supreme Court announced today that the state's constitution requires that the Legislature proscribe the lethal injection protocol for condemned murderers, invalidating a 2009 law that had given the Department of Corrections the discretion to determine which drugs to use for executions.  The law had been adopted to provide the Department of Corrections with the flexibility to choose a different drug for use in executions to avoid delays caused by legal challenges to an existing drug in the protocol. AP writer Jeannie Nuss reports that the case involved a lawsuit by ten death row inmates claiming that the legislature was required to specify the drugs.  See also Bill Otis's post on this story.

Pelosi: Holder Contempt about "Voter Suppression":   Jake Sherman of Politico reports that In a press conference yesterday, former House Speaker Nancy Pelosi said the vote by the Oversight and Government Reform Committee to hold AG Eric Holder in contempt of Congress, was an effort by Republicans "...going after Eric Holder because he is supporting measures to overturn these voter suppression initiatives in the states."   Congresswoman Pelosi was referring to the Attorney General's suits to block state voter identification laws and to prevent Florida from removing illegal aliens from voter rolls.  The contempt vote was taken after the Attorney General repeatedly refused to turn over documents related to an 18 month investigation of Fast and Furious, an operation authorized by the Justice Department which allowed known gun runners to purchase firearms in the U.S. for Mexican drug cartels.  In 2010, Border Patrol Agent Brian Terry was shot and killed by drug smugglers using some of those firearms.   A story from Fox News quotes South Carolina Congressman Trey Gowdy,  who called the claim "mind-numbingly stupid." 

Some years back, Nicole Richie was in a TV show (which I never watched*) called The Simple Life.  Two spoiled rich girls do the Green Acres bit and go live in the country.  So on the 2003 Billboard Music Awards, she said, "Why do they even call it The Simple Life? Have you ever tried to get cow @#*& out of a Prada purse? It's not so $%*&ing simple."

The question of whether it violates the First Amendment for the FCC to punish the broadcaster for this made its way for the second time to the Supreme Court.

What's the answer?  It's not so $%*&ing simple. 

So the Court ducked the First Amendment question and decided on the due process ground that the broadcasters had not received sufficient notice of the standards to be applied.

The American Bar Association President has sent a letter to Senate leaders asking for confirmation of nominees to the federal courts of appeals to continue.  A story and a link to the letter are available on the ABA's website.

I made a quick check of the ABA's news release archives and did not find similar concerns expressed in 2008.  If anyone knows of a similar letter in that year, please let us know in the comments.

Solitary Confinement Hearing on Capitol Hill: Erica Goode of The New York Times reports the Senate Subcommittee on the Constitution, Civil Rights, and Human Rights on Tuesday held a hearing to review the use of solitary confinement in U.S. prisons - the first time the issue has been taken up by lawmakers on Capitol Hill.

New State Law Requires Sex Offenders to List Status on Social Media Sites: Michael Martinez of CNN reports a new Louisiana state law effective August 1 requires sex offenders and child predators to state their criminal status on social networking pages like Facebook. The law states that sex offenders and child predators must include in their profile for the sites an indication that they are a sex offender or child predator, the crime for which they were convicted, the jurisdiction of conviction, a description of their physical characteristics, and their residential address. Violators could face time in prison without parole and a fine.

Prosecutors Ask for Psychiatric Care Instead of Prison for Norwegian Mass Killer: The Associated Press reports prosecutors on Thursday requested that confessed mass killer Anders Behring Breivik be sent to a mental institution instead of prison for killing 77 people in a gun and shooting rampage in Norway last year. The court is expected to issue its ruling next month.

Changes to Racial Justice Act Head to Governor: The Associated Press reports the North Carolina Legislature gave final approval Wednesday to a bill that would make changes to the state's 2009 Racial Justice Act. Statistics alone will no longer be enough to prove race was a significant factor in a death penalty case. The time period in which statistics can be used to prove bias will be capped to 12 years around the murder case, and statistics can only be used for the county and prosecutorial district where the crime occurred. When the bill reaches her desk, Governor Beverly Perdue will have ten days to decide whether to veto the bill or sign it into law.

Inmates Rewarded for Beating New Locks: The Associated Press reports jail officials in Atlanta are challenging inmates to defeat the new locks being tested on doors in one cell block, and are offering free food as a reward. Hundreds of locks at the Fulton County Jail can be jammed, which allows inmates to get access to each other. Fulton County's chief jailer, Col. Mark Adger, said they are choosing experienced lock beaters to try and get past the new locks.

7 California Cities in Top 10 for 2011 Vehicle Thefts: PR Newswire reports information from the National Insurance Crime Bureau shows seven California cities are in the top ten for vehicle thefts across the country in 2011. Fresno, Modesto, and Bakersfield-Delano were ranked first, second, and third for the second year in a row. Under California's new Realignment law, car thieves will not be sentenced to prison.

The US Supreme Court today decided the Fair Sentencing Act Case, Dorsey v. United States.  From the syllabus:  "Held: The Fair Sentencing Act's new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders."

Also, in Southern Union Co. v. United States, the Court confirmed that the Apprendi rule applies to fines.  There is right to trial by jury for any fact that increases the maximum fine.

No decisions in the Stolen Valor Act case or the juvenile LWOP cases.  Still waiting.

What passed for Jerry Sandusky's defense included the testimony of his wife, who maintained that she never saw anything amiss.

She did not seem to find it odd that her husband was acting emotional, lavishing gifts and doting on a child "like his girlfriend," as the grown-up accuser testified. (He noted that Mrs. Sandusky was "kind of cold," treating the fatherless boys like they were "Jerry's kids.")

Mrs. Sandusky seemed to wilt a bit and steel herself as she was shown pictures of the fresh-faced boys who grew up into messed-up men, taken at the age when the abuse allegedly happened -- handsome kids whose blue-collar working moms were thrilled to have the famous Jerry Sandusky take the boys on outings and overnights. As Dottie talked, her husband looked away from her, toward the pictures of the boys, for prolonged stretches.

Sounding a little acidic, as though she were describing a romantic rival, she said of one boy: "He was a charmer. He knew what to say and when to say it."

Execution in Mississippi Today: Emily Le Coz of Reuters reports Gary Carl Simmons Jr. is scheduled to be executed by lethal injection in Mississippi at 6 p.m. local time Wednesday. Simmons was convicted of kidnapping, rape, and capital murder in 1997 and sentenced to death. In 1996, Jeffery Wolfe and his girlfriend drove to Mississippi to collect on a drug debt. After his accomplice shot Wolfe, Simmons hog-tied and locked Wolfe's girlfriend in a footlocker. He later took her out to rape her and said "that her life depended on how well she performed sexually," according to court documents. After he put the woman back in the foot locker, Simmons, a grocery store butcher, dismembered and gutted Wolfe's body in the bathtub using knives from his work. Simmons and his accomplice then scattered Wolfe's remains in an alligator-infested bayou behind Simmon's property. Wolfe's girlfriend was able to escape and ran to a neighbor's house to call police. Update:  WAPT has this story on the completed execution.


House Committee Votes to Place Holder in Contempt: Jordy Yager of The Hill reports the House Oversight and Government Reform Committee voted along party lines on Wednesday to place Attorney General Eric Holder in contempt of Congress for failing to comply with a subpoena in the case of the gun-walking operation "Fast and Furious." After the committee's vote, it was announced that the full House will vote on the contempt measure next week.

Texas Inmate Receives Fourth Execution Date: The Fort Worth Star-Telegram reports a September 25 execution date has been set for Texas death row inmate Cleve Foster, who was granted three stays of execution in 2011. Foster was convicted in 2004 of the rape and fatal shooting of 30-year-old Nyanuer "Mary" Pal, whose body was found by workers in a ditch in west Fort Worth in 2002.

CA Serial Killer Brought to NY to Face Murder Charges: Jennifer Peltz of the Associated Press reports convicted serial killer and California death row inmate Rodney Alcala was brought to New York Wednesday to face charges for killing two women in the 1970s. Alcala is accused of strangling a flight attendant to death with a stocking in her Manhattan apartment in 1971, and killing the daughter of a former Hollywood nightclub owner, who disappeared from Manhattan the year before her body was found in the woods on a suburban estate in 1978. In 2010, Alcala was convicted of strangling four women and a 12-year-old girl in Southern California in the 1970s and was sentenced to death. He has been incarcerated since his 1979 arrest in one of the California killings. Before that, Alcala had also served about four and a half years total in prison on convictions of furnishing marijuana to a minor and kidnapping and trying to kill an 8-year-old girl. He represented himself in his 2010 California trial. It is unclear whether he will have a lawyer or represent himself in New York.

Arizona Inmate Wants Execution Delayed Until New Governor: Amanda Lee Myers of the Associated Press reports attorneys for Arizona death row inmate Samuel Villegas Lopez, who is scheduled for execution next week, wants the execution delayed until Arizona has a new governor. In their filing in the Arizona Supreme Court, his attorneys argue that Governor Jan Brewer unconstitutionally appointed a new, stacked state clemency board, and that Lopez can't receive a fair hearing. His clemency hearing is scheduled for Friday.

A:  Keep him off the stand.  Which was almost certainly the prudent, if woebegotten, decision today from Jerry Sandusky's lawyer, as recounted here.

Chris Cuomo, Gerry Wagschall, Joseph Rhee, and Lauren Effron have this story at ABC Nightline:

Most people imagine prison life for convicted murderers as being harsh, brutal, and isolated, a real-life "Shawshank Redemption."

So when convicted killer Danny Robbie Hembree Jr., 50, wrote a letter in January to the Gaston Gazette in North Carolina, gloating about his comfortable life on death row, it got plenty of attention.

"Is the public aware that I am a gentleman of leisure, watching color TV in the A.C., reading, taking naps at will, eating three, well-balanced, hot meals a day," Hembree wrote.

Critics say too often, at prisons across the country, convicted killers pass the time playing dominos and basketball, use well-stocked commissaries selling snacks and sodas, and enjoy state-of-the-art gyms, or time in the arts and crafts room.

Most prominent of the critics is our friend Professor Robert Blecker, who is featured in tonight's Nightline episode.  The episode will air at 11:35 p.m. on the coasts and varying times elsewhere.

See also Blecker's ebook, Let the Great Axe Fall on Amazon.

Much has been made of the 40th anniversary of the Watergate break-in just a few days ago.  The Washington Post ran a big story about it.  I wonder how big the story will be about this gem, just in from the Wall Street Journal:

The White House intervened in a dispute between Attorney General Eric Holder and Rep. Darrell Issa Wednesday morning by asserting executive privilege for documents sought by Mr. Issa related to the "Fast and Furious" gun-trafficking probe.

In a letter to Mr. Issa, Deputy Attorney General James Cole said the president had asserted the privilege to block the documents from being released but held out the possibility of negotiating an agreement.

Well, my goodness.  Now one might think that, if these documents are actually covered by executive privilege, that would have been discovered, and the privilege asserted, months ago.  Today's sudden developments might give rise, in a suspicious mind, to the thought that the agenda here is to stall any public access to the documents until after, say, ummmm, November 6.

Florida Hit With Another Lawsuit Over Voter Purge: Newsmax reports Florida was hit with another lawsuit Tuesday over Governor Rick Scott's effort to purge the state's voter rolls of non-citizens. The lawsuit was filed in federal court in Miami by a coalition of voting rights organizations on behalf of various plaintiffs that include the Florida Immigrant Coalition, the National Congress for Puerto Rican Rights, and a local chapter of the Service Employees International Union. The lawsuit names Florida Secretary of State Ken Detzner as the defendant. It accuses Florida of violating Section 2 of the Voting Rights Act because a large number of those targeted in the purge of non-citizen voters are Hispanics.

Chicago Event Offers $100 for Turning in Guns: CBS Chicago reports the Chicago Police Department is partnering with 20 churches on Saturday for a gun turn-in event called, "Don't Kill a Dream, Save a Life." Anyone who turns in a real gun will receive a $100 gift card, and replicas and BB guns are worth $10. "No questions asked," said First Deputy Supt. Alfonza Wysinger. "Just show up at the church, and hand over the weapons to the CPD officer that will be there, and get your $100 gift card."

Dead Dog Receives Virginia Voter Registration Forms: Aaron Martin of WSLS 10 (VA) reports Tim Morris of Bedford County, Virgina received a document asking his dog, Mozart, to register to vote. It is addressed to Mo, the family's nickname for the dog, who would have been eligible to vote for the first time in 2012 if he was a human. "He would have been 19 years old this year and he passed away two years ago," Morris said. "I still have no earthly idea how they got his information." The forms were sent by the non-profit Voter Participation Center, not the State Board of Elections, which says that since the Voter Participation Center is a private organization, they can't stop the group from sending out voter registration forms.

From the University of Oregon:

EUGENE, Ore. -- (June 18, 2012) -- Religions are thought to serve as bulwarks against unethical behaviors. However, when it comes to predicting criminal behavior, the specific religious beliefs one holds is the determining factor, says a University of Oregon psychologist.

The study, appearing in the Public Library of Science journal PLoS ONE, found that criminal activity is lower in societies where people's religious beliefs contain a strong punitive component than in places where religious beliefs are more benevolent. A country where many more people believe in heaven than in hell, for example, is likely to have a much higher crime rate than one where these beliefs are about equal. The finding surfaced from a comprehensive analysis of 26 years of data involving 143,197 people in 67 countries.

Update:  As commenter d.n.nola points out, the U.O. press release originally had an error.  It has been corrected on the U.O. site, and we have also made the correction here.

Kevin Begos reports for AP:

The defense in Jerry Sandusky's child sexual abuse trial is suggesting that a personality disorder explains some of the charges the former Penn State assistant football coach, but one expert says that may be a stretch.

*                        *                        *

Sandusky's lawyers, who began presenting their defense Monday, plan to raise the disorder issue to suggest that his extensive correspondence with one of the alleged victims wasn't necessarily "grooming" boys to molest them but instead might be trying to "satisfy the needs of a psyche" with the disorder.

"The jury should not be misled into believing these statements and actions are likely grooming when they are just as likely or more likely histrionic in origin," wrote defense attorney Karl Rominger in the June 11 filing.

But Dr. Glen Gabbard, clinical professor of psychiatry at the Baylor College of Medicine in Houston, said histrionic personality disorder could in no way be seen as a reason or explanation for the abuse of children.

"That diagnosis, if he has it, would be completely irrelevant to anything having to do with criminal responsibility for acts of pedophilia," said Gabbard, an expert on personality disorders.

If I understand this correctly, the lawyers are not planning to use the "disorder" in the sense of diminishing criminal responsibility for the act.  That would be complete garbage, as Gabbard says.  They are claiming he didn't commit the act, and they are using the "disorder" to explain certain behavior that the jury might consider to be corroborating evidence.  That is still a stretch.  Of course, given the number of witnesses and the likelihood of a de facto life sentence upon conviction, stretches are probably all they have.

Meanwhile, back at the APA, histrionic personality disorder is being removed from the main text of the forthcoming edition of the "bible," the DSM-V, and relegated to the appendix of stuff for further study.

Andrew Becker and G.W. Schulz have this story at California Watch on the use of drones to patrol the border.  It seems they aren't very cost-effective, at least the way they have been used to date, according to a DHS IG report.

One problem is that drones are high-maintenance.  "Touted for their technological advances and airborne omniscience, the drones require on average an hour of maintenance for every hour in the air, the report states."  Yikes!  Even my 1966 MGB didn't require that much maintenance.

Drones certainly have potential, if used properly and if well designed for the task, but those are big ifs.

Condemned Inmate Says in Letter His Death Will Bring Justice: Kristi Eaton of the Associated Press reports, in his first public comments since his October sentencing, South Dakota death row inmate Eric Robert said in a letter that the South Dakota Supreme Court owes it to him and his victim's family to let his execution proceed in a timely manner. He said it's the only way his victim's family can get justice. Robert pleaded guilty to killing a prison guard in April, 2011. He had been serving an 80-year sentence for a kidnapping conviction. "Victims of non-capital offenses receive their justice when the perpetrator is placed in custody. Victims in capital cases receive their justice when the perpetrator is executed. Give the Ron Johnson family their justice, they have been forced to wait too long," he said.

U.S. Will Seek Death Penalty Against Rhode Island Inmate: The Associated Press reports federal authorities announced Monday their intention to seek the death penalty against Jason Pleau if he is convicted of the shooting death of a gas station manager outside of a bank in 2010. Pleau had been in the middle of a legal tug-of-war between Rhode Island's governor and federal prosecutors. Rhode Island Governor Lincoln Chafee had been fighting to prevent Pleau from being tried in federal court, where he could face the death penalty. Rhode Island, where Pleau is serving an 18-year sentence for a probation violation in another case, does not have capital punishment. The Justice Department was ordered by a U.S. District Court judge earlier this month to say whether or not it intended to seek the death penalty in this case.

Execution Date Set for Oklahoma Inmate: Rachel Petersen of McAlester News-Capital reports an execution date has been set for August 14 for Oklahoma death row inmate Michael Edward Hooper. In 1993, Hooper killed his 23-year-old ex-girlfriend and her two children - Tanya, age 5, and Timmy, age 3. "Hooper shot each victim in the head twice and buried their bodies in a shallow grave in a secluded field," said Oklahoma Attorney General Scott Pruitt. "The victims had been missing for several days before being discovered."

For those trying to figure out what the law is after today's decision in Williams v. Illinois, here are a couple of points to keep in mind:

"When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. . . .' " Marks v. United States, 430 U.S. 188, 193 (1977).

"This test is more easily stated than applied to the various opinions supporting the result in Baldasar."  Nichols v. United States, 511 U.S. 738, 745 (1994).

And it will be more easily stated than applied to the opinions in Williams.

Parts II and III of Justice Alito's plurality opinion are actively opposed by a majority of the Court, so relying on them to get evidence in is risky, to put it mildly.  Let's focus on Part IV.  For the proposition that the report in this case is not "testimonial," the plurality says the report was not testimonial because it was not focused on a particular suspect, while Justice Thomas's concurrence says it is not testimonial because it lacked the formality associated with such things as depositions, affidavits, or certificates of fact.

Which of these is the narrower grounds?  I have no idea.

In the Nichols case noted above, the high court threw up its hands and decided the issue from scratch.  No other court can do that.  If there is a Supreme Court precedent, they have to follow it.  But what is the precedent?

The headline argument these days for ending the death penalty and cutting back on prison sentences is that we simply don't have the money anymore.  I shall bypass the strong temptation to digress about how the same liberals who never saw an entitlement program they didn't want to expand or a welfare handout they weren't in love with have now discovered the virtues of frugality.  Instead, I will point out that saving on prison costs will produce human costs that, at one time, considerably troubled our liberal friends, and ought now to trouble us all.

After serving more than a year behind bars in New Jersey for assaulting a former girlfriend, David Goodell was transferred in 2010 to a sprawling halfway house in Newark. One night, Mr. Goodell escaped, but no one in authority paid much notice. He headed straight for the suburbs, for another young woman who had spurned him, and he killed her, the police said.

The state sent Rafael Miranda, incarcerated on drug and weapons charges, to a similar halfway house, and he also escaped. He was finally arrested in 2010 after four months at large, when, prosecutors said, he shot a man dead on a Newark sidewalk -- just three miles from his halfway house.

The Supreme Court today decided the expert testimony Confrontation Clause case, Williams v. Illinois, No. 10-8505.  Unfortunately, there is no majority opinion.  It is 4-1-4 for affirmance.  The Court also granted certiorari in a case from the D.C.Circuit, Smith v. United States, No. 11-8976.  The Court of Appeals opinion, known as United States v. Moore, 05-3050, is here.  It's a long opinion with many issues.  Apparently the issue granted cert. has to do with withdrawal from a conspiracy.

Still waiting on the Stolen Valor Act case and the juvenile murderers' cases.  Maybe Thursday.

In order to have a sensible debate (or any debate), we have to have language.  In order to have language, words have to have communally accepted meaning.  

I previously noted that Jerry Sandusky's lawyer had moved to put on evidence about "histrionic personality disorder," a supposed form of mental illness in which the "victim" has  an overwhelming desire to be noticed, and often behaves inappropriately to get attention.

At NLJ, Tony Mauro reviews Reading Law: The Interpretation of Legal Texts, the second book by Justice Scalia and Bryan Garner.

Overall, the 567-page book is an extended plea for judges to hew to the text of statutes and the Constitution in making their decisions and to ignore extraneous factors such as legislative history, the workability of the statute, and the presumed purpose of legislation - though it says that the tongue-twisting "purposivist" approach is sometimes relevant. "We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation" about the drafters' intentions and the law's anticipated consequences.

*                               *                              *

In the preface, Scalia and Garner address that point. "If pure textualism were actually a technique for achieving ideological ends, your authors would be counted extraordinarily inept at it." Describing himself as a "confessed law-and-order social conservative," Scalia said textualism has led him to seemingly liberal positions on criminal sentencing, confronting witnesses, punitive damages and the constitutionality of bans on burning the American flag. For his part, Garner said he is pro-choice and supports same-sex marriage, but "finds nothing in the text of the Constitution that mandates these policies."

AP reports:

An inmate is too mentally ill to be executed for the killings of his wife and brother-in-law, a judge ruled Friday in a decision that comes just a week after the governor issued a reprieve hours before the man was set to die.

"Abdul Awkal presently lacks the capacity to form a rational understanding as to the reason the state intends to execute him," Cuyahoga County Judge Stuart Friedman said. "Abdul Awkal may not be executed unless and until he has been restored to competency."

See prior post.

AP reports:

A JetBlue Airways pilot who left the cockpit and ran through the cabin, screaming about religion and terrorists, is mentally competent to stand trial, a federal judge ruled Friday.

The vast majority of mental defenses claims in criminal cases are bogus, and such defenses are deservedly known as the last refuge of the scoundrel.  In this case, though, I don't see any explanation but psychosis for the pilot's behavior.  He certainly didn't gain anything by it.

Obama to Stop Deporting Some Illegal Immigrants: Alicia A. Caldwell and Jim Kuhnhenn of the Associated Press report the Obama Administration announced, effectively immediately, illegal immigrants who came to the U.S. before age 16 and are younger than 30 will be immune from deportation if they have been in the country for at least five consecutive years, have no criminal history, graduated from a U.S. high school or earned a GED, or served in the military. They can also apply for a work permit that can be renewed without limits.

South Dakota Inmate Defends Right to be Executed: Kristi Eaton of the Associated Press reports Eric Robert, sentenced to death after pleading guilty to killing a prison guard in South Dakota, says the state Supreme Court's decision to stay his scheduled February execution to allow for a mandatory review denies him his constitutional, due process right to be executed. "If this process will take up to (two) years as reported, Robert proposes we seek to answer the main underlying issue in this case: does a death row inmate have a constitutional right to die on time as ordered?" Robert's lawyer said in an email. In briefs to be filed by next week, Robert will ask the South Dakota Supreme Court to let his execution proceed, and propose legislative changes to prevent a similar situation in future cases.

ACLU Releases New Report on Aging Prisoners: John Rudolf of The Huffington Post reports the ACLU published a new report Wednesday that says there are nearly 125,000 inmates aged 55 or older currently incarcerated in the U.S., a more than 1,300 percent increase since the early 1980s. The report also says more than $16 billion is spent by states and the federal government to incarcerate elderly prisoners annually, and blames this increase on "harsh" sentencing laws. According to the report, prisoners aged 50 and older cost around $68,000 a year to incarcerate compared to $34,000 for younger prisoners. Not surprisingly, the ACLU suggests releasing elderly inmates from prison to save on costs.

If the defense claims that the prosecutor is challenging jurors on the basis of race, and the prosecutor asserts race-neutral reasons, who decides if the prosecutor is telling the truth?  The trial judge does.  The appellate court's review of that decision is deferential -- "substantial evidence."  On federal habeas, review is "doubly deferential."  Habeas is denied if the state appellate court's deferential review of the trial court is at least reasonable.

Briggs v. Grounds, No. 10-16683, decided by the Ninth Circuit today, is a good example.  The opinion is by Judge Tallman, joined by Judge Graber.  Judge Berzon dissents.  All three were appointed by President Clinton, for those who like to keep track.

The case is also an example of how a rule that sounds good in theory can produce a lot of unproductive litigation.  Here are the facts of the case, from the opinion:

Arkansas Supreme Court Hears Lethal Injection Case: The Associated Press reports lawyers for some death row inmates in Arkansas argued before the state's Supreme Court on Thursday that the amended state execution law should be struck down. Attorney Josh Lee said condemned inmates should be granted the same protections as animals in a euthanasia law, and said condemned inmates need to be ensured a quick and painless death. The case before the state's highest court comes from a lawsuit filed by death row inmate Jack Harold in 2010, challenging the power the Department of Correction Director has to choose which drugs go into the three-drug mixture used for lethal injection. Nine other death row inmates have joined the lawsuit since then. The court could issue an opinion in the next few weeks.

LA County Sends 41% Fewer to Prison Since Realignment: Rina Palta of 89.3 KPCC radio reports numbers compiled by the Center on Juvenile and Criminal Justice show Los Angeles County is sending 41 percent fewer criminals to prison now than it did before realignment. 18 counties in California are now sending over 50 percent less criminals to prison. The biggest drops found in criminals going to prison have been for drug offenders (down 60 percent), property offenders (down 60 percent), and parole violators (down 47 percent). 

Berkeley Council Approves Vote on Banning Sidewalk Sitting: CBS San Francisco reports the Berkeley City Council voted Wednesday in favor of putting a measure on the November ballot that would prohibit sitting on sidewalks in commercial areas from 7 a.m. to 10 p.m. Berkeley currently has an ordinance in place prohibiting people from lying on sidewalks during the daytime, and the measure would amend the city code to include the ban on sitting. The city attorney will now draft a ballot measure and bring it back to the City Council next month to be formally placed on the ballot.

Texas Now Has Largest State Prison System: The Associated Press reports since California has reduced its prison population under realignment, Texas now has the country's largest state prison system with about 154,000 inmates. California's prison population has dropped by about 25,000 since realignment went into effect last fall. Jeffrey Callison, the California Department of Corrections and Rehabilitation press secretary, noted that the nature of the inmate population is changing as prisons now have a higher concentration of violent, serious, and sexual offenders.

As highlighted by Doug Berman at Sentencing Law and Policy healthcare costs for aging prisoners is a significant expense for penal institutions.   Estimates suggest that healthcare costs alone for inmates above the age of 55 range from $11,000 to $40,000 per annum. These costs will surely rise in the coming years as the population of inmates ages and additional healthcare treatments become available. 

Many death penalty abolitionists suggest that the right comprise over punishment for those convicted of the most serious of crimes is life without the possibility of parole.  An article by Professor Russell Covey again highlighted by the always prodigious Professor Berman makes this proposal yet again by floating the idea of changing LWOP terminology to a "Death in Prison" sentence. 

But what healthcare should be provided to inmates who are sentenced to die in prison? In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that the Eighth Amendment prohibits the deliberate indifference of prison officials to an inmate's medical needs.  As the Court noted:

These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," In re Kemmler, supra, the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.  Id. at 103.

But what are those "elementary principles" that establish the government's obligation?  The Court cites the evolving standards of decency doctrine provided by Trop v. Dulles, 356 U.S. 86 (1958) and the wanton inflection of pain set forth in Gregg v. Georgia. 428 U.S. 153 (1976), weighing more heavily the latter in establishing the deliberate indifference standard (see, Gamble at 114).

If that's so, then what care beyond palliative care is constitutionally required for prison inmates?  No doubt there is a rich case law on the topic and it is likely that evolving standards of decency mandate care beyond mere administration of analgesics. But for those inmates sentenced to "death in prison" might expensive medical care for cancer, diabetes, or other serious medical conditions be limited without running afoul of Gamble?  Wanton inflection of pain surely can be avoided through proper palliative care.  What are society's evolving standards of decency on the topic is much less clear, but if being sentenced to death means that one's life is forfeit, then perhaps what citizens may demand of the healthcare system can be quite different than that of a condemned inmate.

The WaPo has this editorial on leaks, crime, and special prosecutors.  They note that when the political polarity was reversed Nancy Pelosi, Hillary Clinton, and the WaPo itself said DoJ could not do the investigation and a special prosecutor was needed. "We came to regret that view as special counsel Patrick Fitzgerald pursued a lengthy, costly and ultimately counterproductive investigation...."

The editorial also says leaks should not be criminalized.  Well, some leaks should.  As I noted in this post, the leaks in question here easily qualify as crimes, and rightly so.  The question is not whether Americans or people who have helped America will die as a result, but only how many.

Back in World War II, the connection between security breaches and loss of life was brought home with the succinct slogan "loose lips sink ships."  Perhaps the Obama White House should put that on the wallpaper of every computer in the building.

The editorial concludes:

Did top presidential aides respond to reporters' inquiries by describing situation room meetings and other secret deliberations in an attempt to buff their boss's image? That wouldn't surprise us. If Mr. Obama's opponents believe it to be true and they're convinced that U.S. interests were harmed, they are free to make that case to the public, as they are doing. But the attempt to criminalize such leaks is misguided and will do more harm than good. Elevating the investigation from the appointed prosecutors to an independent counsel would only compound the damage.

I mostly agree with that, except the part about "criminalize such leaks."  The leaks are already criminal.

Changes Made to Racial Justice Act: Wade Rawlins of Reuters reports the North Carolina House on Tuesday approved 72-47 a bill that would make changes to the state's 2009 Racial Justice Act. Under the new legislation, statistical evidence alone wouldn't be enough to prove racial discrimination in jury selection, and the use of statistical evidence of racial bias in jury selection would be limited to the area where the defendant was tried. The final approval was expected in the House on Wednesday before going to the state Senate for passage.

Arizona Execution Scheduled: The Associated Press reports the Arizona Supreme Court on Tuesday approved the execution of Daniel Wayne Cook, scheduled for August 8. Cook was sentenced to death for killing two co-workers, 26-year-old Carlos Cruz-Ramos and 16-year-old Kevin Swaney, in 1987. Cook and his roommate and co-worker, John Matzke, got drunk and high on methamphetamine before stealing $97 from Cruz-Ramos, who had just moved in with them. Then they gagged him, tied him to a chair, and over six hours cut him with a knife, sodomized him, burned him  with cigarettes, and beat him with fists, a metal pipe, and a wooden stick. After both men tried to unsuccessfully strangle Cruz-Ramos, Matzke stood on a pipe over his throat until he died. When Swaney showed up about two hours later, he was tied naked to a chair, gagged, and sodomized by Cook. When the men failed to strangle the boy with a sheet, Cook strangled him by hand and put his body in the closet on top of Cruz-Ramos. According to court records, Swaney's heart was still beating when he was left for dead. Cook would be the fifth inmate executed in Arizona this year.

Justice Dept. Sues Florida Over Voter Roll Purging: Kim Geiger of the Los Angeles Times reports the Department of Justice is suing Florida over its efforts to purge the state's voter rolls of noncitizens illegally registered to vote. The complaint alleges the state violated Section 8 of the National Voter Registration Act of 1993 with the procedures its using for voter verification and conducting the purge within 90 days of a federal election.

SF Uses Puppies, Stipends to Address Panhandling: Heather Knight of the San Francisco Chronicle reports starting August 1, the city of San Francisco will begin a program to address the city's panhandling program called Wonderful Opportunities for Occupants and Fidos, or Woof. Panhandlers living in supportive housing must pledge to stop panhandling in exchange for a weekly stipend and a puppy. Participants will also receive training sessions, check-ins, and any dog food, toys, leashes, and veterinary care they need in hopes of making the dogs provided by the city's Animal Care and Control more adoptable. 

Yahoo News carries this story about the continuing drop in violent crime.  It seems that such crime is now at levels not seen "since before the days of color TV."

The US Supreme Court has denied a stay and certiorari for Mississippi murderer Jan Michael Brawner.  Earlier, Holbrook Mohr had this story for AP on the crime and the Mississippi Supreme Court's denial of a stay.

Brawner was sentenced to death for the April 25, 2001, shooting deaths of his daughter, Paige, his ex-wife, Barbara Craft, and her parents, Carl and Jane Craft. Brawner killed them in their in Tate County home, stole about $300 and used his former mother-in-law's wedding ring to propose to his girlfriend the same day, according to court records.

*                                *                               *

He shot the former mother-in-law first, then his ex-wife. His daughter, Paige, watched the killings, court records said.

"After Brawner determined that Paige would be able to identify him, and in his words, he 'was just bent on killing,' he went back into the bedroom and shot his daughter twice, killing her," court records said.

He shot and killed Carl Craft when he got home from work and stole his wallet and the ring.

Paige was three years old.

Further info is in the Mississippi DoC media kit.

Update:  Done.  See AP story.

Jerry Sandusky, formerly the assistant head football coach at Penn State, is on trial for molesting ten boys over the course of fifteen years.  I don't know why he chose to go to trial rather than accept a plea bargain.  When you've got ten victim/witnesses against you, all of whom must reveal grossly intimate details of something each of them must have wanted to keep out of sight, the idea that you can convince the jury that all of them are lying is asymptotic to zero.  My guess is that either no bargain was offered, or that it included a life sentence, making Sandusky feel like he had nothing to lose by trying.

Sandusky's defense attorneys are asking the court to let them present evidence that he has histrionic personality disorder.

According to the Cleveland Clinic, people with the disorder suffer from poor self-esteem and resort to dramatics to gain approval.

"They have an overwhelming desire to be noticed, and often behave dramatically or inappropriately to get attention," according to the clinic's website.

Execution Scheduled for Man Who Killed Daughter, Ex-Wife, In-Laws: Holbrook Mohr of the Associated Press reports Jan Michael Brawner is scheduled to be executed by lethal injection in Mississippi at 6 p.m. local time for killing his 3-year-old daughter, his ex-wife, and her parents in their home. Brawner, who admitted to the killings, went to his former in-laws' house after learning his ex-wife was planning on stopping him from seeing their daughter. His daughter watched as he shot his former mother-in-law and then his ex-wife. According to court records, after Brawner realized that his daughter could identify him, in his own words, he "was just bent on killing." He shot his daughter twice, killing her. He shot and killed his former father-in-law when he got home from work, and then stole about $300 and his former mother-in-law's wedding ring, which he used to propose to his girlfriend later the same day.

NY Bill Would Deny Spousal Killers Control of Burial: Michael Gormley of the Associated Press reports under legislation agreed to by New York Governor Andrew Cuomo and legislative leaders on Monday, those accused of murdering their wives or husbands will no longer have control over their spouses' burials. Under current state law, regardless of the manner of death, the surviving spouse has primary control over the deceased spouse's funeral arrangements. Relatives of Constance Shepard helped push for the change. Shepherd's husband had slashed her throat and then refused to release her body, eventually having his attorney bury her remains near his favorite fishing spot, hundreds of miles away from her home. The bill is part of a package that would make repeated misdemeanor arrests in domestic violence cases a felony. The law will also give judges the power to set higher bail in domestic violence cases based on "risk factors," such as the suspect owning a gun. A statewide fatality review team will be created to find new ways to prevent intimate partner homicides. The package is expected to pass in the Senate and Assembly before the end of the Legislature's regular session June 21.

Judge Kozinski described the crime in his opinion last year affirming denial of federal habeas relief.

With fifteen strokes of his knife, Richard Leavitt slashed and stabbed Danette Elg to death in her bedroom. Then, as Ms. Elg lay dying on top of her punctured waterbed, Leavitt hacked out her womanhood--just as his ex-wife had seen him do to "play[ ] with the female sexual organs of a deer." State v. Leavitt (Leavitt I), 775 P.2d 599, 602 (Idaho 1989). We decide whether Leavitt's lawyer rendered ineffective assistance of counsel while trying to have him acquitted of the death penalty.

The crime was in 1984.  Leavitt's first death sentence was reversed on appeal, and he was resentenced to death in 1990.  That sentence was affirmed on appeal in 1991.  Localnews8.com, an Idaho television station, has this timeline.  The execution was completed at 10:25 MDT this morning, the Spokesman-Review reports.

Most of the time from 1991 to the present has been taken up in federal habeas proceedings relating only to sentence.  It is time to recognize that these proceedings are doing more harm than good and get rid of them.  Execution of a person who is, in fact, guilty of murder and legally eligible for the death penalty is never an injustice of a magnitude that justifies the resources we are spending on these reviews.  The delay in the execution of well-deserved death sentences, such as this one, is an injustice of far greater magnitude.

Federal habeas for state prisoners should be limited to issues relevant to the determination of guilt and legal eligibility for punishment.  Once we know the petitioner is guilty and the punishment was within the range of discretion of the sentencer, all other issues should be left for final determination by the state courts.

The leaks of classified information regarding the methods of America's antiterrorism efforts have been much in the news lately.  Two US Attorneys have been appointed to conduct a criminal investigation.  (See AP story by Pete Yost.)  So what's the crime?  Here is, in part, 18 U.S.C. § 793:

(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with ... information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it ...

Shall be fined under this title or imprisoned not more than ten years, or both.

Beyond doubt, telling Iran (via the New York Times) how we used malware to disrupt their attempts to acquire a nuclear weapon will enable them to reduce their exposure to such attacks.  Hence, it will hasten the day when they can acquire nukes to threaten us or our allies directly or hand them over to terrorists to attack us.

President Obama says it is "offensive" to think than anyone in his White House would do such a thing just to make him look tough and boost his reelection chances.  It is indeed offensive.  It is also the most likely explanation consistent with the presently known facts.  The New York Times quotes "members [note the plural] of the president's national security team who were in the [situation] room." Is the NYT lying that it got sensitive information from people high enough up to have been in the situation room?  Not likely.  We know that this administration is chock full of hard-core leftists.  We know that ever since the 60s the American left has had a strong element of contempt for national security and the military.  It is entirely plausible that highly placed persons in the administration are the sources of the leaks.

If the leakers are, in fact, close associates of the President, will they do the time?  Very doubtful.

The initiative to modify California's three strikes law has qualified for the November ballot, the Secretary of State has announced.  (This was widely expected.)

The Senate today invoked cloture on the nomination of Andrew Hurwitz to the Ninth Circuit.  Todd Ruger has this post at BLT.  Hurwitz has the support of Arizona Senator Jon Kyl, whose opinion I have great respect for.

President Obama nominated Deputy SG Srikanth Srinivasan to the D.C. Circuit.  Chelsea Phipps has this post at WSJ Law Blog.  Srinivasan is supported by his former bosses Sandra Day O'Connor and J. Harvie Wilkinson.

"I just think the world of him," said Judge J. Harvie Wilkinson."I just think he has a superb judicial temperament. He's moderate in his inclinations. I think that he would win respect from many different quarters for the way that he approaches cases."

President Obama also renominated Caitlin Halligan, whose nomination was blocked by a filibuster in the previous Congress.

Do psychologists ever face professional discipline for their testimony in court cases?  Yes, it does actually happen.  The decision of the California Court of Appeal, Third District in Randy Rand v. Board of Psychology, C064475, is here, modified here.

The testimony was in a child custody matter, not a criminal case, but it's good to know the board is not completely asleep at the switch.

The US Supreme Court today took up a double jeopardy case, Evans v. Michigan, No. 11-1327, for argument and decision next term.  This case arises on direct appeal, so there are no AEDPA issues.  The Michigan Supreme Court opinion is here.  The first paragraph is:

This case presents the question whether the Double Jeopardy Clauses of the state and federal constitutions bar defendant's retrial. Defendant was accused of burning a vacant house and charged on that basis with burning other real property in violation of MCL 750.73. There is no dispute that the trial court wrongly added an extraneous element to the statute under which defendant was charged. Specifically, the trial court ruled that the prosecution was required to present proof that the burned house was not a dwelling, which is not a required element of MCL 750.73. As a result of the trial court's erroneous addition of this extraneous element to the charged offense, it granted defendant's motion for a directed verdict and entered an order of acquittal, dismissing the case. We hold that when a trial court grants a defendant's motion for a directed verdict on the basis of an error of law that did not resolve any factual element of the charged offense, the trial court's ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred. Accordingly, because the trial court's actions did not constitute an acquittal for the purposes of double jeopardy, we affirm the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.

Contempt Vote Against Holder Scheduled: Sharyl Attkisson of CBS News reports Rep. Darrell Issa (R, CA) announced Monday the House Oversight Committee will vote Wednesday, June 20, on whether to hold Attorney General Eric Holder in contempt of Congress. The contempt action stems from Holder's failure to hand over documents subpoenaed on October 12, 2011 related to the Fast and Furious "gunwalking" investigation. Issa says the contempt process can be stopped at any time by the Justice Department turning over the subpoenaed documents. A full House vote will likely be scheduled in the matter if the House Oversight Committee approves the contempt citation.

FBI Says Reported Crime Down: Pete Yost of the Associated Press reports the number of reported violent crimes across the U.S. fell 4 percent in comparison to 2010. The FBI also said the number of reported property crimes went down 0.8 percent. This is the fifth straight year of declines for violent crimes and ninth straight year of declines for property crimes, according to preliminary FBI data. The decline in crime was more significant in the first half of 2011 than the second half of the year. The FBI gathered information from 14,009 law enforcement agencies around the country.

9th Circuit Rules in Favor of News Groups for Execution Viewing: Jessie L. Bonner of the Associated Press reports the 9th U.S. Circuit Court of Appeals on Friday ruled that witnesses, including reporters, should be allowed full viewing access to Idaho's upcoming execution. The decision came a day after the court heard arguments in a lawsuit from the Associated Press and 16 other news organizations seeking to change Idaho's protocol, which prevents witness from viewing executions until after catheters have been inserted into the veins of the inmate.

Florida Sued Over Voter Roll Purge: Gary Fineout of the Associated Press reports a Hispanic civic organization and two naturalized citizens filed a lawsuit on Friday, asking a federal court to stop Florida from continuing its purge of ineligible voters from the state's voter rolls. On May 31, the U.S. Department of Justice sent a letter to Florida saying the purge violates federal law. Last week, the state said it disagreed with federal authorities.

Kent's post about High Supervision brought to mind one I wrote three weeks ago about the things a career criminal can get done on Enhanced Probation.  The whole idea would be laughable, if it were funny.

Don't worry folks.  It's okay that we are putting known criminals back on the street.  It's safe because we will keep them under "supervision."

A breaking, horrifying story out of Sacramento is the murder in their own homes of a couple who were spiritual leaders in the Hmong immigrant community, "Xai Vang Yang and his wife, Lia Vang Yang, believed to be in their late 50s, but possibly older."  Andy Furillo and Jacqueline Sahlberg have this story in the Sacramento Bee.  In the 10:59 a.m. update, the shooter has been identified.

Police said they were gunned down by Xue Lor, 26, a gang member and parolee under high supervision. Lor was killed by another person in the house after he had gunned down the Yangs and Cha.

Lyle Denniston at SCOTUSblog has this post noting the Supreme Court's denial of certiorari in seven Guantanamo detainee cases.  "One dissenting judge on [the Court of Appeals for the D.C. Circuit] has protested that the result is that there is very little left of the Supreme Court's historic ruling in Boumediene v. Bush, decided four years ago tomorrow and giving Guantanamo prisoners a legal right to challenge their continued captivity."

Lyle seems to think that's a bad thing.

Boumediene was wrongly decided.  Congress unambiguously repealed the jurisdiction of federal courts to hear habeas petitions by the detainees.  The "privilege of the writ of habeas corpus" guaranteed in the Constitution is a privilege belonging to our own population, not alien enemies with no connection to this country, and the Court had to run roughshod over history to find otherwise.  See CJLF's brief.  The treatment of alien enemies by the United States is a matter for executive and legislative decision-makers and for international diplomacy.  The judicial branch has no legitimate role unless and to the extent that Congress decides to provide it with one.  The Court should overrule Boumediene, but if it will not then letting it fade into the background is the second best alternative.

Parker v. Matthews, No. 11-845, was decided today by the US Supreme Court.  This is a summary reversal, meaning the the Sixth Circuit's error is so plain that the high court did not see any need to take full briefing or hear oral argument.

In this habeas case, the United States Court of Appeals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales. The court's decision is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: "using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12). We therefore grant the petition for certiorari and reverse.

The case of Howes v. Fields, 11-1011, was also sent back to the Sixth for a do-over in light of Parker.

The recurring inability or unwillingness of federal courts to observe the legal limits on their authority suggests that further limitations on federal habeas corpus for state prisoners are needed.  One possibility is the "Friendly filter" of requiring a substantial claim of actual innocence.  As this case illustrates, that needs to be "got the wrong guy" innocence, not mental defenses.

Update:  Near the end of the opinion, Parker has some useful language on the continuing error of federal courts of appeals using their own precedents to overturn the decisions of state supreme courts which have no obligation to follow those precedents.

C&C has received the following letter from Ali Aziz. His brother and sister were murdered by Abdul Hamin Awkal, and he requests assistance, writing letters:

Dear All,

I am urgently in need for your help concerning the brutal murder of my beloved brother and sister which took place on January 7, 1992 at the County Courthouse in Cleveland, Ohio. Details of this gruesome and heinous crime can easily be found on the internet once you google the name Awkal (murder). [Editor's note:  See links below the letter.]

It has been 21 years of aggravation, stress, and constant agony until an execution date was finally set for Abdul Awkal on June 6, 2012. Unfortunately, this criminal since day one has been feigning insanity and mental illness, by malingering and manipulating psychiatrists. His defense attorney, David Singleton, who is a big opponent of the death penalty, used his connections to rally support for this criminal and so far he has succeeded by using facebook, youtube, and having high profile individuals such as the William Robinson (President of the American Bar Association) and executive director of NAMI (National Alliance on Mental Illness) to write articles against executing a man with mental illness. In addition, David Singleton sought the help of a forensic psychiatrist, who is an outspoken opponent of the death penalty, by the name of Dr. Pablo Stewart, who stated that this criminal is incompetent to be executed due to severe mental illness.

The unfortunate part is that no one is mentioning the victims or their families or anything related to justice for the victims. The focus is saving this criminal's life, yet he robbed two individuals in their twenties of their lives and stated in a Fox Interview from 1998 that he would repeat the murders "a million times." He has shown absolutley no remorse. He is not insane, he is a liar and a manipulator and above all a big malingerer.

CA Supreme Court Clarifies Residential Burglary: Bob Egelko of the San Francisco Chronicle reports the California Supreme Court ruled unanimously on Thursday that in the case of residential burglaries, "Something that is outside must go inside for an entry to occur," Justice Goodwin Liu said. The ruling came in the case of Christopher Magness, who was arrested in July 2010 after using a remote control to open a garage door. The homeowner heard the door opening, found Magness standing outside, chased him down, and called sheriff's deputies, who arrested Magness. Deputies found the garage remote control on the driveway, which Magness had taken from the owner's car. Magness was charged with burglary, but Liu wrote that even though Magness may have intended to break into the home, "he did not commit burglary because he did not enter the residence. Nothing penetrated the outer boundary," which means he can only be convicted of attempted burglary. Magness also has a previous felony conviction that falls under the state's three-strikes law. His lawyer said that by charging the more serious crime only if there is a physical entry, "you're giving perpetrators pause to think about what they're doing."  The case is Magness v. Superior Court, S194928.

Officer-Involved Shootings Trending Upwards Nationwide: Chip Johnson of the San Francisco Chronicle reports that the recent increase in officer-involved shootings in the Bay Area (five since May 6) are part of a national trend. Craig W. Floyd, executive director of the National Law Enforcement Officers Memorial in Washington, D.C., said the number of officers slain in the U.S. has risen by 75 percent since 2008. Johnson makes the point that while police officers face criticism and allegations over these incidences, it's police officers who have increasingly become the targets of violence as symbols of authority. "The cops across America I speak to every day say there is a more brazen, desperate criminal they are dealing with," Floyd said. "A lot of people who assault police officers are career criminals who've been in jail and don't want to go back. Oftentimes they don't think twice about assaulting the officer who comes to make the arrest, and we're seeing more and more of it."

CA Parolees Released From Supervision At Alarming Rate: Jason Song and Andrew Blankstein of the Los Angeles Times report about 8,500 parolees were released from supervision in April, compared to about 1,300 in March. "Taking away parolee status, from a law enforcement perspective, removes a valuable tool that officers use to ensure compliance with the law," Long Beach Police Chief Jim McDonnell said. "We will no longer have the ability to violate their parole based on criminal behavior but rather we will have to arrest and prosecute them on a new charge, which is resource-intensive and time-consuming." Under Realignment, some parolees can be discharged from supervision in as little as six months, whereas before they had to wait at least a year. Some law enforcement officials fear the reduction of services and assistance for offenders will make recidivism more likely.

Why Three-Strikes is Worth the Cost: Brik McDill, in an opinion piece for The Bakersfield Californian, discusses the criticism of the cost of California's three-strikes law, but says many cost analyses neglect to consider the incalculable costs of the direct and indirect damage caused by career-criminals. McDill reminds the reader that a criminal has typically committed numerous unapprehended crimes by the time of his first arrest, and is often given numerous second chances before incarceration, so to be sentenced for a third-strike is no small feat. He says the costs of not incarcerating a third-striker are greater when we factor in the front- and back-end costs of crime, in addition to the costs to the victims and those entities directly and indirectly affected by one criminal. "In the broader view, $47,000 per year to incarcerate the career criminal might be the better deal, at least until we've found what reliably works in terms of criminal rehabilitation," McDill says.

Arizona Public Defenders Withdraw Execution Petition: The Associated Press reports the Federal Public Defender's Office in Phoenix withdrew its petition to the 9th U.S. Circuit Court of Appeals on Thursday over Arizona's execution procedure. Dale Baich said his office wanted to clarify whether lawyers would be included as witnesses allowed to see the IV process before withdrawing the petition. Arizona's new policy will begin with the June 27 execution of Samuel Villegas Lopez. Baich says he is on the witness list as Lopez's counsel.

Dahlia Lithwick has this funny piece claiming that everything can be explained by classifying people as one of two Muppet types:  Chaos Muppets or Order Muppets.  I don't agree with everything in it, especially her classification of Supreme Court Justices, but it's worth reading. 

Heather MacDonald has this article in the City Journal, subtitled "Reforming marijuana laws is one thing; demonizing the NYPD is another."

New York governor Andrew Cuomo has introduced a bill into the state legislature that drastically reduces the penalty for the public possession of small amounts of marijuana. The law represents Cuomo's entry into an escalating controversy over the New York Police Department's stop-and-frisk practices: anti-cop advocates charge that racially biased stop-and-frisks are producing racially biased marijuana arrests. Neither charge is true, and Cuomo's failure to say so has done the city a disservice. Nevertheless, Cuomo's bill is a change the city can live with, one that may even produce public-safety benefits. Predictably, however, the NYPD's opponents have already made clear that the proposed marijuana law will have no effect on their crusade to decimate proactive policing once and for all.

Witnesses Can Watch IV Process for Arizona Executions: The Associated Press reports Arizona Corrections Director Charles Ryan announced on Wednesday that execution witnesses will now be able to watch the catheter insertion in the lethal injection process by closed-circuit television, beginning with an upcoming execution schedule for June 27. In the past, Ryan has not allowed anyone to view this part of the process. It is unclear whether lawyers will also be allowed to view the IV process. Ryan's announcement came after the Federal Public Defender's Office in Phoenix filed a petition with the 9th U.S. Circuit Court of Appeals Wednesday morning challenging a district court's ruling denying motions to allow reporters and attorneys from witnessing the insertion of the IV lines.

9th Circuit Hears Appeal by News Groups Over Idaho Executions: The Associated Press reports the 9th U.S. Circuit Court of Appeals on Thursday heard arguments in a lawsuit filed by the Associated Press and 16 other news organizations seeking to strike the part of Idaho's regulations that prevents witnesses from viewing executions until after catheters have been inserted into the inmate. The three-judge panel asked Idaho prosecutors to inquire whether the prison warden would allow full viewing access in next week's execution of Richard Leavitt.

Justice Department Must Say Whether RI Inmate Faces Death Penalty or Not: The Associated Press reports U.S. District Judge William Smith on Wednesday ordered the Justice Department to say by Tuesday whether or not it will seek the death penalty against Jason Pleau. Pleau is accused of killing a man outside of a bank in 2010. Rhode Island Governor Lincoln Chafee had refused to surrender Pleau to federal authorities because he believed they wanted to try him so that the death penalty would be a possibility. Rhode Island does not have the death penalty. An appeals court ruled Pleau could stand trial in federal court.

Robbery Suspect Using Sleepwalking as Defense: Greg Smith of The Bulletin reports Winston A. Riley of Connecticut says he was sleepwalking when he allegedly flashed a large knife and tried to grab a woman's purse in a casino parking garage elevator.His lawyer says Riley had been napping in his car that morning, and was actually woken up by the woman in the elevator and ran away in confusion and fright. His lawyer says his is going to prepare a medical defense, relying on Riley's history of sleepwalking.

The San Francisco Bay View (subtitled National Black Newspaper) has three op-eds on the death penalty repeal initiative.  The authors are Kevin Cooper, Donald Ray Young, and Correll Thomas, all of whom are murderers residing on the Big Q's death row.

Two of the three are opposed to the initiative.

I am somewhat ambivalent about posting this link.  I'm not particularly interested in helping murderers get their opinions out.  Still, our readers might find this interesting.

I am not as surprised as many will be that some denizens of death row oppose repeal.  I have received letters from inmates who want their appellate lawyers to take the "liberty or death" position, attacking only the guilt verdict and making no case against the penalty.  The lawyers ignore them, despite the fact that the rules of legal ethics make very clear that a mentally competent client is entitled to set the goals of representation.

The two opposed also make a point that I have made a few times.  The death-sentenced murderer actually has a better chance of attacking his guilt verdict than an LWOP-sentenced murderer because of all the resources he is provided on habeas corpus.

Here is an entry from the It Could Have Been Worse file.  (In this case, vastly worse.) Joanna Molloy reports for the NY Daily News:

Bill Clinton confirmed Tuesday night for the first time longtime speculation that he offered then-Gov. Mario Cuomo a spot on the U.S. Supreme Court.

The point the former President was trying to make was how dedicated Cuomo was to New York.  The point he actually made is how lucky America is that Clinton didn't completely screw up his Supreme Court nominations.

The debate whether to legalize marijuana rages on.  CJLF takes no position on the question; my own view is that, as a matter of on-the-ground reality, possession of personal use amounts of pot is already de facto legal or quasi-legal in many areas of the country, and that making pot de jure legal will send the wrong message about its hazards and, more broadly, about the hazards of drug use.

The British Lung Foundation carried out a survey of 1,000 adults and found a third wrongly believed cannabis did not harm health.

And 88% incorrectly thought tobacco cigarettes were more harmful than cannabis ones - when the risk of lung cancer is actually 20 times higher.

The BLF said the lack of awareness was "alarming"....

A new report from the BLF says there are established scientific links between smoking cannabis and tuberculosis, acute bronchitis and lung cancer.

Jon Swaine, Washington correspondent of the London Telegraph, has this story:

Eric Holder, who heads Mr Obama's justice department, is said to have become "incensed" after being accused by David Axelrod of complaining publicly about political interference in his office.

"That's bull****," Mr Holder said in a confrontation after a cabinet meeting, according to author Daniel Klaidman. He writes: "The two men stood chest to chest. It was like a school yard fight".

The relatively mild-mannered Mr Axelrod is said to have told the attorney general: "Don't ever, ever accuse me of trying to interfere with the operations of the Justice Department", a taboo in US politics.

In 'Kill or Capture: The War on Terror and the Soul of the Obama Presidency', Klaidman discloses the struggles within Mr Obama's White House as it mounted its controversial campaign against al-Qaeda.

He writes that Mr Holder and Mr Axelrod were separated by Valerie Jarrett, a White House adviser and confidante to Mr Obama. Ms Jarrett "pushed her way between the two men, her sense of decorum disturbed, ordering them to 'take it out of the hallway'," says Klaidman.

Ohio Governor Issues 2-Week Reprieve for Condemned Inmate: Andrew Welsh-Huggins of the Associated Press reports Ohio Governor John Kasich granted a temporary reprieve on Tuesday night for Abdul Awkal, who was scheduled to be executed within 18 hours when the governor made his announcement. Kasich granted the two-week reprieve to allow for a hearing on Awkal's mental competency. Awkal was sentenced to death for killing his estranged wife and brother-in-law at a Cleveland courthouse.   

Federal Judge Rejects Media Groups' Idaho Execution Access Lawsuit: Jessie L. Bonner of the Associated Press reports a federal judge on Tuesday rejected a lawsuit filed by the Associated Press and 16 other news groups last month over a policy in Idaho that prevents witnesses from viewing the entire lethal injection process. "The claim was brought very late, and if granted, it would undoubtedly change the execution protocol and could disrupt the scheduled execution," U.S. District Judge Edward J. Lodge said. "The public has an interest in viewing the whole execution process, but it also has an interest in seeing the judgment enforced without disruption." The attorney for the news organizations said they will appeal to the 9th U.S. Circuit Court of Appeals.

Jury Recommends Death for CA Cop Killer: The Associated Press reports a jury on Tuesday recommended the death penalty for Earl Ellis Green, who was convicted of first-degree murder last month for killing a Riverside police officer.  Officer Ryan Bonaminio pulled Green over in response to a hit-and-run report. In 2010, Bonaminio chased Green on foot down a darkened park path, where Green beat him with a metal bar and shot Bonaminio with his own service weapon after he slipped and fell. 27-year-old Bonaminio was a Riverside native and a war veteran, having served with the Army in Iraq. Green was also found guilty of vehicle theft with a previous conviction for vehicle theft and of being a felon in possession of a firearm. He is scheduled to be sentenced on June 25.

NYC Mayor Supports Decriminalization of Marijuana: Thomas Kaplan of The New York Times reports New York City Mayor Michael Bloomberg on Monday endorsed a proposal to decriminalize the open possession of small amounts of marijuana. The proposal is an effort by New York Governor Andrew Cuomo to cut down on the number of people arrested because of police stops, specifically due to the police department's stop-and-frisk practices. Bloomberg and police officials agree that the practice has made the city safer, but it has been criticized as racially biased. Under Cuomo's proposal, the possession of 25 grams or less of marijuana in public view would be downgraded from a misdemeanor to a violation. The maximum fine for first-time drug offenders would be $100. 

Another Case Challenges Provision of Connecticut Death Penalty Repeal: Brian Burnell of New England Cable News reports Connecticut's Supreme Court on Monday overturned the death sentence of Eduardo Santiago and ordered him a new penalty phase trial for his conviction in the killing of a man in exchange for a broken snowmobile. The state's recent death penalty repeal is prospective in that it keeps the death sentences intact for those sentenced before the repeal, but bans any future death sentences. Burnell questions how that is going to work in this situation. If Santiago gets another death sentence from the new penalty phase trial, "Doesn't that mean he's being sentenced to death in a state that doesn't have capital punishment anymore?  Sounds like another avenue of appeal," Burnell said.  

The District Attorney's office is not for sale, not even in America's largest county, where media campaigning is more of a necessity than elsewhere.

On Sunday, Christina Villacorte reported in the L.A. Daily News that "City Attorney Carmen Trutanich ... ha[d] more than twice as much money as his closest rivals, Deputy District Attorneys Alan Jackson and Jackie Lacey."  That was evident to anyone watching L.A. television Monday night.

This morning, with all precincts reporting, the county election office shows Lacey first, Jackson second, and Trutanich third, meaning a runoff between Lacey and Jackson.  Jackson's margin over Trutanich is only 1.3%, but that is likely enough to preclude any change in result through a recount.

FWIW, Trutanich was endorsed by Gov. Jerry Brown, and Lacey was endorsed by outgoing DA Steve Cooley.

Execution in Mississippi Set for Tuesday: The Associated Press reports Henry "Curtis" Jackson Jr. is scheduled to be executed by lethal injection in Mississippi on Tuesday for the 1990 killings of two of his nieces and two of his nephews, ages 2 to 5. He also stabbed his adult sister five times and left another niece so severely injured that she became a paraplegic. Court records say Jackson had gone to his mother's home to take money from her safe. Update:  The Jackson Clarion-Ledger has this story on the completed execution.

Oklahoma AG Seeks Execution Date for Inmate: Chris Casteel of NewsOK reports Oklahoma Attorney General Scott Pruitt asked the Oklahoma Court of Criminal Appeals to set an execution date for Michael Edward Hooper after the U.S. Supreme Court declined to hear an appeal of his death sentence for the 1993 killing of his ex-girlfriend and her two children, ages 5 and 3. Pruitt asked for an execution date in 60 days, or as soon as the court deems fit.

There are several doctrines related to criminal law in which the decision turns not on a federal court's opinion on a point of law as such but rather how clearly that point was established at the time someone else had to make a "judgment call."  Among these are the retroactivity rule of Teague v. Lane, the qualified immunity rule for civil suits against law enforcement officers, and the so-called deference rule for federal habeas review of points decided on the merits in state court, 28 U.S.C. §2254(d).

Do you need Supreme Court precedent to establish a rule with sufficient clarity, or will on-point circuit precedent do?  For §2254(d) there is no doubt.  Congress explicitly said Supreme Court precedent.  For the other two judge-made rules, however, the issue remains unresolved.

In Reichle v. Howards, the Supreme Court today decided one subsidiary question.  Howards claimed that an arrest by Secret Service agents was actionable, despite probable cause, because it was in retaliation for his exercise of First Amendment rights.  He had on-point precedent of the Tenth Circuit (the circuit the case was in) for that proposition.  Easy case, right?

A quick note on today's US Supreme Court action.  The Court decided a Fourth Amendment qualified immunity case, Reichle v. Howards, in favor of the Secret Service agents.  It also took up a Fourth Amendment exclusionary rule case on detention incident to a search warrant, Bailey v. United States.

Much of the difficulty conservatives have in presenting their side of the criminal law debate lies in what the popular press elects to cover, and what it elects to ignore. When there is an exoneration from a conviction and sentence (an actual exoneration, that is) we often get a front page story.  But when, for twenty years, the crime rate has been in free fall  -- with, and in significant part because of, increased incarceration  --  there might be an occasional raised eyebrow in the press, but only to note that incarceration is oh, so inhumane  -- and, besides, golly, we can't really know the reasons for so much less crime, except maybe sunspots.

10 California Inmates Held in Isolation Sue State: Bob Egelko of the San Francisco Chronicle reports 10 inmates held in isolation at California's Pelican Bay State Prison sued the state Thursday. The proposed class action on behalf of the unit's 1,000 inmates seeks court orders limiting stays in the isolation unit to 10 years, requiring regular review, and barring what is described in the suit as sensory and environmental deprivation.

Prison to Hire Friends for Norwegian Mass Killer: The AFP reports if mass murderer Ander's Breivik is sentenced to the high security prison in Norway, the government will pay people to socialize with him, because he cannot have normal contact with others inside the prison, and it is illegal to hold people in complete isolation in Norway. Ila prison director Knut Bjarkeid said Breivik could be allowed to do things like playing sports with the guards or playing chess with someone the prison hires. "We are planning a professional community around him, with employees and hired personnel," Bjarkeid said. In July 2011, Breivik bombed a government building, killing eight people, before going on a shooting rampage at a summer camp, killing 69 people, most of them teenagers.

CA Bill Would Extend Medical Release to County Jails: Patrick McGreevy of the Los Angeles Times reports the California Senate on Wednesday approved a bill that would allow county jails to release terminally ill and medically incapacitated inmates before they have served their full sentence. Sheriffs could release prisoners determined by a doctor to have six months or less to live and are deemed not a threat to society. A county sheriff could also grant medical probation to physically incapacitated inmates. The most recent version of the bill, SB 1462, is here. 

Justice Department Tells Florida to Stop Non-Citizen Voter Purge: Marc Caputo of The Miami Herald reports the Justice Department, in a letter sent late Thursday night, ordered Florida's elections division to stop its effort to find and purge noncitizen voters from the state's voter rolls. T. Christian Herren Jr., the Justice Department's lead civil rights lawyer, says Florida's effort violates the 1965 Voting Rights Act and the 1993 National Voter Registration Act. So far the state has flagged about 2,700 noncitizen voters, and is asking counties to contact those voters by mail. Those who haven't responded by a certain time after being contacted could be stricken from the rolls. The state has until next Wednesdays to reply to the Justice Department with its planned course of action.   

CA Senator Calls for Repeal of Realignment: California Senator Tom Berryhill (R, Modesto), who represents the 14th Senate District, has this opinion piece, where he calls on the majority party in California to put communities first and repeal the state's realignment law. He writes, "...our communities are prey to the violent felons they have released early because they refuse to prioritize public safety." He says realignment should really be called "the early release of violent criminals into our neighborhoods for political expediency's sake."