July 2012 Archives

A Texas Victory for the Good Guys

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Former state Solicitor General Ted Cruz tonight won the Republican nomination for the US Senate from Texas, and thus became the favorite to win the seat in that quite red state.  I have known Ted for years, and can tell our readers that his win is a victory for, among many other worthy causes, holding criminals accountable and keeping our nerve and our wits about us in the fight against crime.

Much will be made of the fact that Ted was backed by the Tea Party.  He was indeed, but I was urging Ted to run for office before the Tea Party existed.  I believe he will be a player, not just in the Senate, but on the national stage.  The story he tells of his father's being held prisoner in one of Castro's jails, and surviving by dreaming of his escape to freedom in the United States  --  which he accomplished  -- is the most powerful story I have ever heard in a campaign stump speech.

UPDATE:  I see from Kent's entry immediately before mine that great minds continue to think alike.

Texas Senate Primary Runoff

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As of 9:14 p.m. CDT, with about half the precincts reporting, Ted Cruz is 10% ahead in the Republican primary runoff for U.S. Senate.  This AP story says he has won the race convincingly.  The winner of the primary is expected to win the general election handily.

Ted has been a friend of ours for a long time.  We worked together on the Medellin cases, going twice to the U.S. Supreme Court.

We expect he will be a strong and knowledgeable advocate for law-abiding people in the U.S. Senate.

Poker Deals

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Online poker players who lost their bankrolls on "Black Friday," when the government shut down the major sites, will be getting part of them back.  Larry Neumeister reports for AP: 

News Scan

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Immigrants Feds Chose Not to Deport Commit Murder, Sex Crimes: Stephen Dinan of The Washington Times reports the House Judiciary Committee said Tuesday that between 2008 and 2011, illegal immigrants who could have been deported but were released by the Obama administration went on to commit 19 murders, 3 attempted murders, and 142 sex crimes. The administration chose not to deport more than 36,000 illegal immigrants arrested for other crimes in that three-year period.

5th Circuit Says Lack of Air Conditioning Violates Eighth Amendment: Brandi Grissom of The Texas Tribune reports the 5th U.S. Circuit Court of Appeals on Monday ruled that allowing an inmate to be "exposed to extreme temperatures can constitute a violation of the Eighth Amendment." The Texas Civil Rights Project sued the Texas Department of Criminal Justice in 2008 over conditions former inmate Eugene Blackmon experienced while in custody at the Garza East Unit in Beeville while serving a three-year sentence. A similar lawsuit last month was filed on behalf of the family of Larry Gene McCollum, who suffered a heat stroke last July as an inmate at the Hutchins State Jail in Dallas and died.

Puerto Rico Increases Prison Sentences: The Associated Press reports the governor of Puerto Rico on Monday signed into law an updated penal code. Puerto Rico has seen a rise in crime for several years, and last year had a record number of homicides. The updated penal code increases prison sentences for homicide, assault, kidnapping, robbery, sexual assault, production of child pornography, and other offenses, as well as establishes fixed sentences. 

Many Wisconsin Hospitals Charging Rape Victims for Evidence Collection: Jessie Van Berkel of Gannett Wisconsin Media reports many hospitals in Wisconsin have forced sexual assault victims to pay for the cost of collecting evidence. Jill Karofsky, executive director of the Wisconsin Department of Justice's Office of Crime Victim Services, says fewer victims will be billed as the state educates hospitals about government funds available to cover most of the cost of sexual assault examinations if a victim doesn't have insurance or doesn't want to use it. Sally Smarzinski, a victim advocate at the Fox Cities Sexual Assault Crisis Center, said the response to sexual assaults should be similar to if your house was broken into. "I would assume the police were going to come in, maybe dust for fingerprints, maybe collect some evidence," Smarzinski said. "Then I got a bill for $1,000 for that investigatory service? ... People would be outraged."

No federal circuit judge has been confirmed this close to an election in 20 years, and yesterday Republicans blocked an attempt to confirm one, reports Todd Ruger at BLT.

"This is not about the individual who has been nominated," Senate Minority Leader Mitch McConnell (R-Ky.) said on the Senate floor in a debate. McConnell instead called the block part of a Senate tradition for "a bipartisan timeout" before the Nov. 6 presidential election.
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The White House decried the block of Bacharach and said nearly one in eleven federal judgeships stands empty, and the judicial vacancy rate has never been this high for this long. "The American people deserve better than this unprecedented partisan obstruction of the President's efforts to ensure a fair and functioning judiciary," White House Counsel Kathryn Ruemmler said in the statement.
The "unprecedented" claim is, of course, nonsense.  Each time the Republicans take the White House, the Democrats raise obstruction to a new level.  It was the Democrats who invented "borking."  It was the Democrats who made confirmation filibusters routine.  (Before the Democrats began filibustering, the Republicans had filibustered a grand total of one judicial nomination in all of American history -- LBJ's ethically challenged CJ nominee who subsequently resigned from the Supreme Court in disgrace.)  When the Democrats get the White House back, the Republicans respond at the same level, at that is where we are today.

Should the Senate stop confirming circuit judge nominees at this point in the election cycle?  That's debatable.  There is no debate that it has, though, no matter who is controlling the Senate or who has the White House.  The "unprecedented" remark is just one more falsehood in the steady stream.
The Rasmussen Poll finds that 67% of Americans support the death penalty generally, with only 25% opposed.  The poll also found that 66% say the Aurora, Colorado shooter should get the death penalty, but the publicly available portion of the story does not give the opposed or undecided numbers.  I would be in the undecided column myself at this point.  Although I very much doubt that his mental defense will be sufficiently compelling to make the death penalty not the appropriate sentence, I would still want to see it before deciding.

CSI: Help Wanted

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The Scientific Working Group for Medicolegal Death Investigation has a draft for public comment of a paper titled Increasing the Supply of Forensic Pathologists in the United States: A Report and Recommendations.  Comments may be made through this page.
On July 18, I noted that Chief Justice Roberts had issued a stay in Maryland v. King, permitting Maryland's process of collecting DNA samples from persons arrested for burglary or violent crimes to continue.

Today, the CJ issued this in-chambers opinion re-issuing his stay.

To begin, there is a reasonable probability this Court will grant certiorari. Maryland's decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland's DNA Collection Act.
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Finally, the decision below subjects Maryland to ongoing irreparable harm. "[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury." ... Collecting DNA from individuals arrested for violent felonies provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population. Crimes for which DNA evidence is implicated tend to be serious, and serious crimes cause serious injuries. That Maryland may not employ a duly enacted statute to help prevent these injuries constitutes irreparable harm.
Update: Adam Liptak has this story in the NYT.
Mass. Governor Deval Patrick didn't like the three strikes law sent to him by the Legislature.  The Legislature didn't like his attempt to water it down, Bob Salsberg of AP reports.

The state Legislature on Monday soundly rejected Gov. Deval Patrick's proposed amendment to a bill barring parole for individuals convicted of three serious violent crimes, leaving the fate of the bill in doubt as the legislative session neared an end.

Patrick's safety valve amendment, filed Saturday, would have provided judges with limited discretion to allow parole for three-time violent felons who have served two-thirds of their maximum prison sentence or after they served 25 years of a life sentence.

The House rejected the amendment on a 132-23 vote after about an hour of debate. The Senate defeated the measure later in the day.

Earlier Monday, the Democratic governor wouldn't say whether he planned to veto the bill if it returned to his desk without the amendment, but he strongly defended his proposed change.

News Scan

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Aurora Shooting Suspect Charged: Nicholas Riccardi and P. Solomon Banda of the Associated Press report James Holmes was charged with 24 counts of murder and 116 counts of attempted murder on Monday. Holmes received two counts for each of the 12 victims killed and two counts for each of the 58 injured. One count included murder with deliberation and another included murder with extreme indifference, which both carry a maximum death penalty sentence and minimum life without parole sentence upon conviction. He was also charged with one count of possession of explosives and one count of a crime of violence. A September 27 hearing date was set to update the status of the case.

Texas Execution Scheduled for Wednesday Stayed: The Associated Press reports the Texas Court of Criminal Appeals on Friday stayed the Wednesday execution of Texas death row inmate Marcus Druery so it could review a petition arguing that he is not mentally competent to be executed. Druery was sentenced to death for the 2002 shooting death and robbery of 20-year-old Skyyler Browne at Druery's family property. A lower court had previously rejected Druery's petition.

Virginia Adds New Backup Lethal Injection Drug: Larry O'Dell of the Associated Press reports the Virginia Department of Corrections on Friday said it has added rocuronium bromide as an alternative to pancuronium bromide in the state's lethal injection cocktail. There is a shortage of pancuronium bromide, which paralyzes the muscles, nationwide.

Risk Assessments Not Sufficient on Their Own: HealthCanal.com reports an international research team led by Dr. Seena Fazel at the University of Oxford found that when identifying those most at risk of committing crime, risk assessment tools had a predictive accuracy similar to chance levels. Dr. Fazel said, "Our review would suggest that risk assessment tools, in their current form, can only be used to roughly classify individuals at the group level, not to safely determine criminal prognosis in an individual case. The extent to which these instruments improve clinical outcomes and reduce repeat offending needs further research."

NY State Senator Proposes Legislation Over Handling of Sexual Predator Teachers: Campbell Brown has this piece in The Wall Street Journal about New York's review system of misconduct by teachers, which is heavily influenced by teachers unions. New York State Senator Stephen Saland has proposed legislation to give school districts in the state, or the chancellor in New York City, final say in the handling of sexual predators, instead of a paid arbitrator chosen by the local teachers union together with the school district. "The union has reached a moment of truth. With responsible legislation on the table, the right course of action is obvious," Brown says.

As Sacramento dawdles, DAs revolt

SF Chrontrarian Debra Saunders has this column with the above title in the Chron:

California's death penalty has been in limbo since 2006 when a federal judge stayed the execution of Michael Morales, who was sentenced to death for the brutal 1981 murder and rape of 17-year-old Terri Winchell. The judge was fearful lest the state's three-drug lethal injection protocol cause Morales undue pain. Since then, a number of states have switched to a one-drug protocol. Why hasn't California? The answer could be that Gov. Jerry Brown and Attorney General Kamala Harris don't want the death penalty to work.

Brown and Harris are personally opposed to the death penalty but, when they campaigned for office in 2010, both pledged to carry out the law. They're not exactly knocking themselves out to do so.

In 2009, Ohio adopted a one-drug protocol for executions. By administering a lethal dose of barbiturates, Ohio made it harder for frivolous appeals to keep the state from enforcing its laws. Several states followed suit, including Washington. Washington is important because the U.S. Court of Appeals for the Ninth Circuit in San Francisco refused to stay a single-drug execution in Washington state in 2010.

The District Attorneys of Los Angeles and San Mateo Counties have filed motions (based on a legal theory laid out by yours truly) to have the Superior Court order the executions with a one-drug protocol in conjunction with the date-setting procedure.
Jonah Goldberg has this op-ed in the Chicago Tribune.  He notes that the conversations in the aftermath have focused on gun control, treatment of the mentally ill, and violent culture.

These are good questions. But you know what debate seems conspicuously absent? Should we execute James Holmes?

Death penalty opponents are fairly mercenary about when to express their outrage. When questions of guilt can be muddied in the media; when the facts are old and hard to look up; when the witnesses are dead; when statistics can be deployed to buttress the charge of institutional racism: These are just a few of the times when opponents loudly insist the death penalty must go.

But when the murderer is white or racist or his crimes so incomprehensibly ugly, the anti-death-penalty crowd stays silent. It's the smart play. If your long-term goal is to abolish the death penalty, you want to pick your cases carefully.

But the simple fact is, if the death penalty is always wrong, it's wrong in the politically inconvenient cases too.

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I say, let us give Holmes a fair trial. If convicted, execute him swiftly. If you disagree, explain why this man deserves to live.

Harpoon Political Correctness

George Will has a column in the Washington Post designed to illustrate that federal criminal law is out of control.  The column makes a good case, but I think it's a slightly different case from the one Will believes it is.  Although the abusive prosecution Will describes could not have come about unless the federal government had indeed become a power-drunk leviathan, the culprit at the bottom of it is the infusion of ideology into criminal law and, in particular, the infusion of Political Correctness.

The case is about Nancy Black, a marine biologist.  One of her crew members whistled at a humpback whale to entice it to come closer to the boat.  Now this might be considered, if you're sufficiently enraptured by Save the Whales lore, as the "crime" or "harassing a marine mammal," and it drew the attention of NOAA.  The story of what has happened to Ms. Black after that is too convoluted to recount here  --  read the column  --  but suffice it to say that her home was raided and her colleagues have been told by DOJ not to talk to her, lest they too wind up on the wrong end of an indictment.

Will views this as confirmation of Harvey Silvergate's thesis that

...the mad proliferation of federal criminal laws -- which often are too vague to give fair notice of what behavior is proscribed or prescribed -- means that "our normal daily activities expose us to potential prosecution at the whim of a government official."  Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.

There is a lesson here, but it's not precisely the one Will and Silvergate draw.  The lesson is less about the size and scope of government per se than about what happens when a particular brand of ideology supplants law.

News Scan

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President's Immigration Policy Slammed by Border Agents:  In a press conference yesterday Senator Jeff Sessions introduced the leaders of two groups representing 24,000 U.S. Border Patrol, ICE agents and support personnel who reported that the President's policy, announced earlier this year, which limits the deportation of younger illegals, is jeopardizing public safety.  A story by Mytheos Holl of The Blaze, which includes video of the press conference, quotes Chris Crane, President of the National Immigration and Customs Enforcement Council saying that under the President's Dream Act, illegals, including those arrested for felonies, who claim to have a GED or be enrolled in high school are barred from deportation by the Justice Department with no questions asked.  "There is no burden for the alien to prove anything," he said. 

Gun Carrying Customer Stops Knife Assault:  A man who began randomly stabbing people at a Salt Lake City department store Thursday evening was disarmed and arrested after an unnamed customer pulled a gun and threatened to shoot.  ABC 4 News reports that the assailant had just purchased the knife at Smith's Market Place when he yelled "you killed my people" and began stabbing anyone near him.  Two people were seriously injured with knife wounds to the stomach, head and arms, before witnesses said a man produced a pistol and told the attacker to drop the knife or he would shoot him.  A responding police Lieutenant said "This was a volatile situation that could have gotten worse."  

Gun Purchases Way Up in CA:  H.K. Lee of the San Francisco Chronicle reports on an estimate by the CA Dept. of Justice that in 2012 Californians will buy a near-record 725,000 guns.  If the prediction bears out, this will be roughly twice the number of guns purchased in the golden state five years ago.  Lee suggests a possible reason for this spike is the drumbeat to tighten restrictions on gun ownership.  A Mountain View gun store owner may have a better take, noting that while official reports show that crime was down last year, his customers have a hard time believing it, when robberies and home invasion have become  an everyday possibility.  "The police aren't going to save you.  They're there to clean up the mess and make a report after the fact," he said.   Could it be that the public has been paying attention to the impact on Governor Brown's Realignment?   

Video Visitation

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The WaPo has this editorial on the DC Jail's switch to video visitation.  The DOC's brochure notes the advantage for the visitors that they will not have to wait in long lines or undergo intensive searches.  The obvious advantage not noted in the brochure, the FAQ, or the WaPo editorial is that you can't smuggle drugs or weapons over a video link.  The WaPo isn't happy with the end of in-person visits:

Ultimately, the option of in-person visitation should be restored, at least as an alternative to video visits as it is in states like Virginia. In the meantime, the D.C. jail owes the public an explanation for heaping an even greater burden on those who already suffer enough.
The assumption that people in jail uniformly "already suffer enough" is a curious one.  A good many people sentenced to jail deserved to be sentenced to prison but got plea bargains because the system is just too overloaded to give them what they deserve.  Not all, of course, but many.  Sure, in person is better than video, but given the magnitude of the smuggling problem, video is arguably better overall.

News Scan

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9th Circuit to Reconsider Decision on CA DNA Law: California Attorney General Kamala Harris has said collecting DNA from arrestees has solved thousands of crimes.

Butte County Struggles With Early Releases:  Katy Sweeny of the Chico Enterprise-Record reports Butte County Undersheriff Kory Honea said Wednesday the county's jail has had to release more inmates to reduce crowding and make space for high-risk offenders since realignment took effect. "It's been difficult, no doubt about that," Honea said. "Every day has been a challenge to make sure we're not exceeding the cap on the jail and making sure those who are the most dangerous are in jail." Lt. Jennifer Gonzales said criminals know what charges will keep them out of prison and now jail, so they are more likely to risk committing the offense.

Oklahoma Triple-Murderer Makes Another Attempt to Stop Execution: Tim Talley of the Associated Press reports Oklahoma death row inmate Michael Hooper's lawyer filed a motion on Tuesday seeking an emergency hearing to stay Hooper's August 14 execution. Hooper was sentenced to death for the 1993 killings of his 23-year-old ex-girlfriend and her two children, ages 5 and 3. Each victim was shot twice in the head and buried in a shallow grave in a field. Attorney Jim Drummond wants a federal judge to require the state to have a backup dose of pentobarbital available in case the original dose is not successful. Pentobarbital is the first drug administered as part of the state's three-drug lethal injection procedure. Earlier this month, Drummond filed a lawsuit against the state on behalf of Hooper after officials said they only had one dose of pentobarbital left. Oklahoma has since obtained 20 more doses. This most recent complaint also questions whether those new doses were manufactured for human or veterinary use, and whether the state's execution procedure is constitutional since other states have begun using a single fast-acting barbiturates. As of Wednesday afternoon, no emergency hearing had been set.

News Scan

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Gary Haugen Has His Day in Court: Helen Jung of the Oregonian reports Senior Judge Timothy Alexander said on Tuesday Oregon Governor John Kitzhaber's reprieve of Gary Haugen's execution may not be valid based on previous state Supreme Court decisions. Haugen had waived his appeals and volunteered for execution. State Assistant Attorney General Tim Sylwester argued that Haugen does not need to accept the reprieve for it to be valid. Haugen's attorney argued that in past cases before the state's Supreme Court, it adopted an 1833 U.S. Supreme Court interpretation that suggests inmates have to agree to pardons or similar acts for them to be valid. Sylwester said he could not point to any other decisions showing that the Oregon Supreme Court had taken a different view.

38,000 CA Felons Realigned So Far: Dan Walters of the Sacramento Bee reports an initial study by the Chief of Probation Officers of California shows that a total of 38,000 felons have been shifted from state to local control in California under realignment so far; 23,000 to post-release community supervision rather than parole, and 15,000 into local jails and probation rather than to state prison.

CA DA and Victim's Sister Speak Out Against Death Penalty Repeal: In the Daily Democrat today is an opinion piece by Jeff Reisig, the Yolo County district attorney, and Guadalupe Diaz, the sister of murdered Yolo County Deputy Sheriff Jose "Tony" Diaz. On June 15, 2008, Marco Topete, a gang member who had been convicted of multiple felonies, murdered Deputy Diaz after a high speed chase that ended with Topete abandoning his car on foot and leaving his infant child in the vehicle. Officer Diaz stopped pursuing Topete to stay with the infant, when Topete then shot Diaz 17 times in the back. Reisig and Diaz remind the public that currently on California's death row are 235 rapists/sexual assault murderers, 225 child murderers, 90 torture murderers, and 43 cop killers.

Read more here: http://blogs.sacbee.com/capitolalertlatest/2012/07/realignment-has-shifted-38000-felons-to-local-control.html#storylink=cpy
Read more here: http://blogs.sacbee.com/capitolalertlatest/2012/07/realignment-has-shifted-38000-felons-to-local-control.html#storylink=cpy"

Drugs, the Victimless Crime

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...or so we are told.  Unfortunately, the "what you put into your own body" theme we hear in defense of drug use has some complications that tend to get kept out of sight. Here's one.

News Scan

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Justice Department Investigates Pennsylvania Voter ID Law: Leigh Ann Caldwell of CBS News reports the Justice Department on Monday asked Pennsylvania to hand over the state's voter registration list that includes voter history and race of registered voters and the state's current driver's license and ID list. The Justice Department also wants documents that support the state's assessment that 758,000 registered voters lack proper identification, and Pennsylvania Governor Tom Corbett's statement in March 2012 that "99 percent of Pennsylvania's eligible voters already have acceptable photo ID." On Wednesday, Scott Kraus of The Morning Call reports a coalition of voting rights groups, led by the ACLU, will argue in Commonwealth Court that the state's voter ID law will disenfranchise a significant number of legitimate voters. They are seeking an injunction preventing Pennsylvania from enforcing the law.

Massachusetts Legislature Passes Three-Strikes Bill: Kimberly Ashton, Chris Helms, and Theresa Knapp of Patch report the Massachusetts Legislature last week passed "Melissa's Law," which eliminates parole for offenders convicted three times of one of 40 violent crimes. As reported in the News Scan, the bill was passed in the House 139-14 last Wednesday. The state Senate passed the bill 31-7 last Thursday. The law is named after Melissa Gosule, a 27-year-old schoolteacher who in 1999 was raped and murdered by a repeat violent offender who had 27 previous convictions. The movement started after her death was brought back into the spotlight in 2010 after a police officer in the state was murdered by a repeat felon. The bill has gone to Massachusetts Governor Deval Patrick's desk, and he has until July 31 to act on it.

Jerry Brown Signs Bill Clarifying Felonies for Elected Officials: Patrick McGreevy of the Los Angeles Times reports California Governor Jerry Brown said on Monday that he signed legislation that bans people from running for elective office in the state if they have been convicted of a felony that involved a violation of the public trust. A law already exists to prohibit those convicted of certain felonies from holding elective office, and the new law extends that to people convicted of accepting  bribes or committing voter fraud or perjruy. The law takes effect January 1, and applies to those charged and convicted after Jan. 1, 2013,

The title of this post is from today's National Journal.  The Journal's story recounts that Sen. Dianne Feinstein (D-CA) does not believe the President is personally behind the leaks, but that someone high in White House councils is.

This is serious business.  If, as some Republicans have suggested, the White House is leaking national security information to portray President Obama as shrewd and tough on terror  --  thus to assist in the campaign  --  it would be dangerous and contemptible, not to mention felonious.  One need only recall the outrage at the leaking of Valerie Plame's identity as a CIA operative (actually, a CIA desk jockey) to understand how big a story this is.  Although the leaker, Richard Armitage, was not charged in the Plame affair, Vice President Cheney's chief-of-staff, Scooter Libby, was.  Libby was convicted of lying to the grand jury and sentenced to prison (President Bush commuted the prison time, as recommended by an obscure ex-prosecutor).

President Obama's appointee, Eric Holder, cannot reasonably be counted upon to investigate this matter.  This is not because of any personal shortcomings on Mr. Holder's part.  It's because he has a fat conflict of interest:  His ability to stay in his job depends on the President's re-election.

The damage caused by the leaks is potentially quite serious, as explained after the break.  With the Democratic chairwoman of the Senate Intelligence Committee now saying that the leaks come from the White House, the time has come for the appointment of an independent special counsel.

The Mask Slips Again

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What's the most awful thing about the Aurora mass murders?  Choose one:

(a)  Twelve innocent people, including a six year-old girl, got wiped out.
(b)  The whole nation got a jolt about what some people are capable of.
(c)  We're about to be reminded of how much mindless delay the system tolerates.
(d)  The episode was poorly timed for purposes of proponents of Prop 34.

Yup, you got it, it's (d).

Sometimes you have to see abolitionists to believe them, which is one reason I tune in to Sentencing Law and Policy, where a bunch of them hang out in the comments section.  I thus bring you this gem from someone who identifies himself as a California capital defense counsel, but otherwise (understandably) refuses to give his name:

Dear Mass Murderers:

Proposition 34 is coming up on the ballot in California this November. It looks like it has a reasonable chance of passing, and that we will succeed in removing the barbaric death penalty from California. Could you guys hold off in carrying out anymore grizzly mass murders? We don't need to galvanize the other side.

Thank you.

Is that beautiful or what?  It can't be entirely a joke; not even a total creep would joke about Aurora.  No, it's what these people actually think (but mostly keep under wraps):  That the problem with the latest grisly mass murder is not that it's a grisly mass murder, but that its timing is strategically inapt for what had been the plan to hoodwink California voters into abolishing the only penalty that fits the crime!  Drat!

Ummmmm, well, maybe we do have some money, after all.  But we socked it away to spend on trees.

Here's the story.  The first paragraph recounts:

California's park system secretly stashed away $54 million even though it was cutting services and threatening to close parks, officials announced Friday, and the department's director resigned as the hidden surplus was revealed.

Here's a radical idea:  Go ahead and cut the services and use the park slush fund to keep some thugs in the slammer for their full sentences.

News Scan

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First Single Drug Execution in Georgia Today: Rhonda Cook of the Atlanta Journal-Constitution reports Warren Hill is scheduled to be executed in Georgia Monday. He will be the first inmate put to death in Georgia using a single drug, pentobarbital. Hill was sentenced to death for using a nail-studded board to beat to death a fellow inmate in 1990. At the time, he was incarcerated for murdering his 18-year-old girlfriend. Update:  The Georgia Supreme Court has granted a stay.  Bill Rankin at AJ-C reports the stay is based on an Administrative Procedure Act claim.

Oregon Death Row Inmate Back in Court Tuesday to Fight Reprieve: Peter Wong of the Statesman Journal reports an Oregon judge will hear arguments Tuesday in twice-convicted murderer Gary Haugen's civil suit against Oregon Governor John Kitzhaber, who issued a reprieve blocking Haugen's death warrant in November. Haugen had waived his appeals. Kitzhaber said he would not allow any executions to be carried out as long as he was governor.

Aurora Shooting Suspect Makes First Court Appearance: Nicholas Riccardi and P. Solomon Banda of the Associated Press report 24-year-old James Holmes, who is accused of going on a deadly shooting rampage at a Colorado movie theater on Friday, made his first appearance in court on Monday. The shooting left 12 people dead and another 58 injured. Holmes, who is being held in isolation at the jail, did not speak at the hearing. Authorities have said that he is refusing to cooperate. Prosecutor Carol Chambers said after the hearing that a decision to pursue the death penalty will be made in consultation with victims' families. Holmes is expected to be officially charged next Monday.

10th Year of Amber Alert Program in CA: Bill Lindelof of The Sacramento Bee reports July 31 of this year will mark the tenth year since the Amber Alert program was implemented statewide in California. According to the California Highway patrol, 234 abducted children have been safely recovered since the statewide adoption of the program.

Read more here: http://blogs.sacbee.com/crime/archives/2012/07/californias-amber-alert-program-a-decade-old.html#storylink=cpy

The NCAA has announced sanctions on Penn State that are unprecedented in their harshness:  fining the school $60 million, banning it from bowl games for four years, and vacating all its wins from 1998 to 2012.  The Wall Street Journal has the story.

No one believes more strongly than I in punishment for wretched behavior, and the behavior of Penn State's assistant football coach Jerry Sandusky was as wretched as it gets, save only for murder.  But for the wrongly decided Kennedy v. Louisiana, he would and should be eligible for the death penalty.

That said, today's NCAA action seems all wrong to me, for several reasons.  First, it does nothing to punish the main actor, Sandusky, who's in jail and will almost certainly remain there for the rest of his life.  Second, it diffuses Sandusky's responsibility by spreading the blame to the football program.  But the program  --  and, indeed, football  --  had only a quite indirect connection to the crime.  Indeed, I have not seen any evidence, or even a suggestion, that a single Penn State football player so much as knew what Sandusky was up to.  Yet it is the players and, more broadly, Penn State students and alumni, who will be hurt most by today's action.

The argument is that those above Sandusky, in particular Coach Paterno and the University's then-President, should have exercised what the NCAA calls "institutional control."  Assuming arguendo the legitimacy of that gossamer concept as applied in this extremely unusual context (sex crimes by an assistant coach), it is still unpersuasive.  Paterno is dead, and the University President got fired months ago. Who's left to take the brunt of this? 

Punishment is all to the good when directed at those responsible, but punishing those who aren't deflects our focus on the real culprit and dilutes the moral authority to punish at all.   

Aurora, Acceptance, and Action

The massacre in Aurora, like other such incidents, seems to bring about an unquenchable desire to talk. It's particularly bad among media characters and politicians.  Almost all the talk is rote, platitudinous blather, and I wish it would stop.

We don't need talk.  We need two other things.  The first is acceptance.  Some really bad things happen in life, and often there is nothing to be done about them.  Every now and again, some evil and/or sick person takes it into his head to slaughter his fellow creatures.  In a free society (and even, I strongly suspect, in an authoritarian one), such things are impossible to avoid completely.  Acceptance of tragedy is not lassitude or indifference.  It's adulthood.

The second thing needed is action.  We know who did it and the scope of what he did.  The justice system should make a thorough inquiry into his background and thinking to ascertain, in particular, whether at the time of the shooting he knew right from wrong and had the capacity to conform his behavior to the requirements of law. Said inquiry only needs to take months, not years.  If it is determined that he was sane in the legal sense  --  as I say, a question that can be resolved relatively quickly  --  he should be executed forthwith.  What the country needs is not interminable process for the sake of process, nor delay for the sake of delay.  What it needs is a justice system that delivers justice.

Let's get moving.

News Scan

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Pennsylvania Death Warrant Signed, Then Stayed, for Killer of Police Officer: TribLIVE reports hours after Pennsylvania Governor Tom Corbett signed a death warrant for Michael Travaglia, he was granted a temporary stay for the September 13 execution so his new federal public defenders could prepare another federal appeal. Travaglia was sentenced to death for killing a 21-year-old rookie police officer in 1980. Travaglia and co-defendant John Lesko also killed three other people prior to killing the officer during an eight-day killing spree. Death warrants for Travaglia have been signed by previous governors in 1985 and 1990.

Ohio Death Penalty Panel Looks at Racial Bias: Andrew Welsh-Huggins of the Associated Press reports an Ohio Supreme Court committee reviewing the state's capital punishment law approved three recommendations on Thursday. The task force of prosecutors, defense attorneys, judges, and death penalty experts convened by Ohio Supreme Court Chief Justice Maureen O'Connor is looking at a variety of issues including how the law affects minorities, the role of clemency, and whether death sentences in the state are proportional.

All CA Inmates to be Removed from Private Prison in Oklahoma: Andrew Knittle of NewsOK reports California prisoners held at the North Fork Correctional Facility in western Oklahoma are expected to be returned to the state by the end of 2013. The prison, which houses all California inmates, has a capacity of more than 2,000. Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation, says the state is going to stop sending inmates to out-of-state prisons, and all out-of-state prisoners will be returned to California by the end of the 2016 fiscal year. Thornton said this will save the state roughly $320 million a year.

Overcriminalization, the Job Killer: Henry Juszkiewicz, CEO of Gibson Guitar Corp., has this piece in The Wall Street Journal about a proposed bill in the House of Representatives, called the Retailers and Entertainers Lacey Implementation and Enforcement Fairness (Relief) Act, that could help citizens from accidentally violating the Lacey Act. Gibson was raided last August under the Lacey Act. Juszkiewicz calls this "overreach of government authority" a burden on growing businesses that demonstrates the trend of regulating business activities through criminal law by punishing minor errors with criminal charges. Juszkiewicz  writes, "... the justice system has strayed from its constitutional purpose: stopping the real bad guys from bringing harm." He says policy makers have to "stop criminalizing capitalism."

PBS Newshour's Rundown blog has this post on the switch to a single drug protocol in Texas and Georgia.

News Scan

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Massachusetts House Passes Three-Strikes Bill: Dan Ring of The Republican reports the Massachusetts House of Representatives on Wednesday voted 139-14 to approve a habitual offender initiative that includes 40 crimes. The bill eliminates parole for three-time convicted violent offenders, reduces mandatory minimum sentences for 16 drug violations, and reduces the size of a "school zone" for possessing an illegal drug with intent to distribute. For a crime to qualify as a "strike," felons would have had to be sentenced to at least three years in state prison for that offense. The bill now goes to the state Senate.

Second Judge Rejects Wisconsin Voter ID Law: Patrick Marley of the Journal Sentinel reports a second judge on Tuesday ruled Wisconsin's voter ID law unconstitutional. Dane County Circuit Judge David Flanagan had issued a temporary injunction blocking the law in March, and made that injunction permanent in his decision Tuesday. Dane County Judge Richard Niess also permanently blocked the law in March. The state Supreme Court declined to take up the cases earlier this year, but is expected to eventually do so. Meanwhile in the state of Washington, residents will soon be able to register to vote via Facebook. CNN has this story.

New Jersey Law Mandates Drug Treatment Instead of Prison: NJToday.net reports New Jersey Governor Chris Christie signed into law a bill that will impose mandatory sentencing to New Jersey's drug court program instead of prison for some nonviolent offenders. The mandatory drug court for nonviolent offenders will be phased in over a 5-year period. Participation in the drug court program is currently voluntary. Defendants will undergo an assessment to determine whether they are drug dependent and would benefit from the program and treatment.

Racial Profiling Trial Begins for Arpaio: Jacques Billeaud of the Associated Press reports on Thursday, the trial in which Arizona Sheriff Joe Arpaio and his department are accused of racially profiling Hispanics during patrols began in a federal court in Phoenix. The group of Latinos who filed the civil lawsuit against Arpaio and his department are not seeking monetary damages, but a declaration that Arpaio's office partakes in racial profiling and an order to require the department to make changes. The Department of Justice lawsuit against Arpaio's office includes many of the same racial profiling allegations, but goes further in its accusations. The trial date has not yet been set in that case, but a DOJ lawyer for the agency's civil rights case watched the trial Thursday.

In my crabbed old age, I have become suspicious of organizations claiming to promote charity.   It's not that this charity or that doesn't do good work.  Most of them do, I guess.  It's that I've seen one story too many in which a "charity" was just a front for crime.  We've all seen articles about "charities" that collected funds for some noble cause that turned out to be fake, or about "charities" that spent two percent of the funds collected for the ostensible beneficiaries and the rest on the people running the "charity."

The "charity" most recently in the news was The Second Mile, founded by Jerry Sandusky as a means, it is now clear, of bringing in and "auditioning" boys for rape. The hilarious, in a very sick way, stated purpose of The Second Mile was to give otherwise unattainable "opportunities" to "at risk youth,"  a phrase which often (and especially in the hands of the defense bar) means switchblade-wielding juvenile delinquents, but this time was right on the mark, since, as long as Sandusky was around, the kids really were at risk.  The Second Mile might at some point have done good things  --  for example, for girls, in whom Sandusky apparently had no interest  --  but it has recently had to dissolve, for obvious reasons.

Not doing anything to resuscitate my opinion of charities was this recent squib from the Wall Street Journal titled "Life Imitates the Onion," concerning a Muslim "charity" dedicated to attacking "stereotypes."  I repeat the WSJ's one-sentence entry without comment, none being needed:

"A Quebec activist who fought the stereotyping of Muslims was charged with supporting terrorism on Friday after an RCMP investigation linked her to an alleged scheme to smuggle weapons to Hezbollah in Lebanon."--National Post (Canada), July 13

Collecting DNA From Arrestees

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Chief Justice Roberts has issued a stay in the case of Maryland v. King, involving the collection of DNA samples from persons arrested but not yet convicted of burglary or crimes of violence.  After Alonzo King was arrested for assault (for which he was eventually convicted), a DNA sample was taken, and it produced a "cold hit" on an unsolved rape.  From that hit, he was indicted and a search warrant issued, producing another sample which also matched.  He was convicted of first-degree rape and sentence to life in prison.  The Maryland high court decided 5-2 that the statute violates the Fourth Amendment as applied in this case (to an arrestee rather than a convict), that the DNA evidence is "fruit of the poisonous tree" and must be suppressed, and the rape conviction must be reversed.  Curiously, neither the majority nor the dissent discusses the good faith exception either for statutes or warrants, both of which would seem to apply here.

AP has this story.

SCOTUS Denies Hearn Stay

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The US Supreme Court has denied certiorari and a stay of execution in two petitions by Texas murderer Yokamon Hearn.  The orders are here and here.  No dissent is noted.

USCA5 summarizes the crime in their opinion of January 30 this year:  "Hearn and three accomplices abducted Joseph Franklin Meziere from a self-service car wash in March 1998. They took Meziere's car and drove him to a remote location where Hearn killed Meziere by shooting him several times in the head at close range."

Hearn's lawyers claim he is retarded and therefore ineligible for execution under Atkins v. Virginia, but they have a small problem.  Hearn's various IQ tests have come in at 74, 82, 88, and 93.  The threshold for retardation is 70.

The margin of error of the test is (theoretically at least) 5, so a person with a score of 74 has a very small chance of having an actual IQ of 70 or below, but a 74 score alone establishes a strong probability that he is not retarded.  The range of scores in this case illustrate that the testing and scoring actually have a considerably broader range of error than the theoretical 5.  One source of error on a performance test such as this is that a person can score low simply by not trying hard.  High scores do not suffer from that problem.  You can fake low, but you can't fake high.

The Texas CCA rejected Hearn's lawyers' creative attempts to get around this clear indication he is not retarded.  Then they run to federal court seeking habeas relief.  Their argument that the state court's decision is "unreasonable," the standard set by Congress before the habeas court can interfere, is frivolous.

AP has this story, noting that Hearn has not challenged the state's switch to the one-drug method.

Update:  Corrie MacLaggan of Reuters has this story, quoting a TexDCJ spokesman saying that the single-drug execution "was carried out without incident."

News Scan

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Execution Date Set for SD Man Who Raped, Killed 9-Year-Old Girl: The Associated Press reports a judge has set an execution date for South Dakota death row inmate Donald Moeller for sometime between October 28 and November 3. The exact date and time will be determined by prison officials.  "Moeller was convicted in 1997 for the rape and killing of Becky O'Connell.  'It's been long and drawn out and uncalled for, and now he says he's ready?' the girl's mother, Tina Curl, said. 'Huh. Why didn't he say he was ready 22 years ago?'"

CA Gov Signs Bill to Let Death Row Inmate Help in Victim Search: The Associated Press reports the governor's office announced Tuesday that California Governor Jerry Brown signed Assembly Bill 2357, giving the secretary of the California Department of Corrections and Rehabilitation the authority to allow death row inmates to be taken off death row to help investigators search for the remains of victims. The bill was created to be applicable specifically to the case of serial killer Wesley Shermantine. The provisions in the bill are valid until January 1.

Trial Begins Over Nebraska's New Sex Offender Laws: Lori Pilger of the Lincoln Journal Star reports on Monday, the trial began over changes to Nebraska's sex offender laws passed by lawmakers in 2009. Some three dozen sex offenders who would be affected by the changes had sued the state, saying the new laws were unconstitutional and violated their First Amendment rights. Under the new laws, sex offenders would have to disclose to law enforcement online names they use and websites where they've posted comments. They would also have to consent to searches of their computers and software. Sex offenders would also be banned from using social networking sites, instant messaging services, or visiting chat rooms that can be accessed by minors. The trial is expected to last two weeks.

Read more here: http://www.sacbee.com/2012/07/17/4637473/calif-bill-lets-death-row-inmate.html#storylink=cpy

Hill Case Goes to SCOTUS

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Ariane de Vogue has this story at ABC on the Warren Lee Hill retardation case and Hill's petition to the US Supreme Court. As noted in yesterday's News Scan, Georgia is switching to the single-drug method and rescheduled the execution for Monday.
The State has asked the North Carolina Supreme Court to review the decision in State v. Robinson, the case involving the badly misnamed (and now substantially amended) Racial Justice Act.  The petition for writ of certiorari in case 411A94-5 is here.

Privacy of Hotel Registry Info

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Can a city require hotels to keep registry info and make it available to police at any time?  That was the question before the Ninth Circuit in Patel v. City of Los Angeles, 08-56567:

News Scan

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Georgia Switches to Single Drug Execution: Rhonda Cook and Bill Rankin of the Atlanta Journal Constitution report on Tuesday, Georgia's Corrections Commissioner Brian Owens said the state will switch to using a single lethal injection drug, pentobarbital, instead of three for executions. Owens rescheduled Wednesday's execution of Warren Hill until Monday. "The department has been using pentobarbital in its execution process and based upon the experience of other states and competent medical testimony the drug has proven to be effective," said a statement released by the state's Department of Corrections.

Illinois Governor Signs 3 Crime Victim Bills: Michelle Manchir of the Chicago Tribune reports Illinois Governor Pat Quinn has signed three new laws that will increase assistance from the state to victims of crime and their families. Law enforcement officials will be required to provide a copy of victims rights to a victim of any crime within 48 hours of their first contact. These rights must also be posted outside all criminal courtrooms in the state. The bills also streamline contributions to a state fund that provides assistance to crime victims, and increases the maximum awards for services such as funeral or burials.

CA Bill to Remove Criminals from Classrooms Dies: Larry Sand, a retired teacher and current president of the California Teachers Empowerment Network, has this piece in City Journal about California Senate Bill 1530, which failed to pass out of the Assembly Education Committee. The California Teachers Association strongly opposed the bill, which would have added language allowing school boards to suspend an employee for "serious or egregious unprofessional conduct." The Los Angeles Unified School District asked for changes to be made to existing law to speed up the process of removing certain teachers after the arrest earlier this year of longtime elementary school teacher Mark Berndt, who was arrested on 23 counts of committing lewd acts on children between the ages of seven and ten. The bill would have streamlined the process by curtailing the number of steps required in the process of firing a criminal teacher. "In a state where pedophiles aren't allowed to live near a school, these legislators don't seem to have a problem with them teaching in one," Sand writes.
The Chief Justice of California didn't exactly say that today, but she came pretty close.

People v. Riccardi, S056842, is a capital case in which a juror was excused for cause, ultimately found improper under the Witherspoon-Witt rule.  Is this reversible per se?  The unanimous opinion of the Court by Chief Justice Cantil-Sakauye reluctantly concludes that this result is required by the U.S. Supreme Court's splintered opinion in Gray v. Mississippi, 481 U.S. 648 (1987).

But then the Chief Justice writes a separate petition for certiorari concurring opinion.  It's not terribly unusual in Cal. Supreme for the author of the opinion of the court to write a separate concurrence joined by less than a majority of the court, but this one is joined by a (bare) majority.  She notes Gray's lack of a majority opinion, limiting language in a subsequent case, and dubious policy basis in cases where the defendant ultimately receives a fair trial with an impartial jury.
William Petroski reports for the Des Moines Register:

Gov. Terry Branstad on Monday used his constitutional power of executive clemency to keep 38 inmates in prison who were convicted of killing people while they were juveniles.

His decision, made in consultation with the Iowa attorney general's office and families of crime victims, follows a recent decision by the U.S. Supreme Court. The high court, in a 5-4 ruling in an Alabama case, concluded that laws giving life sentences without possible parole to teens convicted of murder violate the Eighth Amendment's prohibition on cruel and unusual punishment.

In response, Branstad signed orders on Monday to commute the sentences of each of the 38 inmates to life behind bars with the possibility of parole only after a minimum of 60 years in prison. None of the inmates will be eligible for release until they are well into their 70s, he said.

There is more than a little irony in using the commutation power to keep murderers in prison longer, but it is not unprecedented.  In 1972, most states did not have life-without-parole as an alternative to the death penalty.  When the Supreme Court threw out all existing death sentences in Furman v. Georgia, the Governor of Tennessee commuted death sentences in that state to 99 years, ensuring in practice that the murderers would never get out.  The Supreme Court upheld this move in Rose v. Hodges, 423 U.S. 19 (1975).

Romney's Death Penalty Bill

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Steve LeBlanc of AP has this story reexamining the death penalty bill that Mitt Romney tried to get through the Massachusetts Legislature back in 2005.  It was a daunting task to try to get a bill through the legislature of that very left-wing state, and the opponents were on a roll with their stories of death row inmates being "exonerated," a few of which were true but many not.

So Romney tried to get through a bill that was very narrow in defining the "worst of the worst" and with safeguards designed to reserve the penalty for cases of no doubt whatever of guilt.  Why does any of this matter now?  LeBlanc writes,

Romney's handling of the death penalty issue opened a window into the type of management style he could bring to the White House if elected. He hand-picked a commission and outlined his goals in broad terms. Then he turned the panel's recommendations into a bill that ultimately failed to get through the Legislature. But his decision to fight an uphill battle on an issue that had begun to lose its urgency also showed Romney wasn't afraid of a political fight.
Although the economy is the main focus of the election, the next President will need to deal with issues involving criminal justice.  Victims of crime and the law-abiding public have a strong interest in who that President is.  There will be nominations to the federal courts, including the Supreme Court, and battles for confirmation.  There will be issues involving federal criminal law.  There will be issues regarding federal courts' often-erroneous interference in state criminal cases.  A President whose heart is on the right side and who isn't afraid of a political fight is a change worth hoping for.

News Scan

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Florida Allowed Access to Fed Database for Voter Purge: Charles Babington of the Associated Press reports the Department of Homeland Security has agreed to let the state of Florida have access to the federal SAVE (Systematic Alien Verification for Entitlements) database, a list of resident noncitizens maintained by the department. The decision could affect other states such as Colorado that have asked for similar access to the database. Florida has agreed to only challenge voters if the state provides a "unique identifier," such as an "alien number," which are usually assigned to foreigners living in the U.S. with visas or other permits such as green cards.

San Francisco Doing Realignment "Right": Demian Bulwa of the San Francisco Chronicle reports San Francisco is not facing jail overcrowding issues because of efforts made before realignment was enacted to find alternatives to incarceration. San Francisco has even proposed its jails now take custody of inmates two months before their prison discharge date to help them obtain "the things they are going to need to be successful," said acting Sheriff Vicki Hennessy. Barry Krisberg, a criminologist at UC Berkeley's law school, said San Francisco is "showing how to make realignment work... San Francisco is doing what people who conceptualized realignment envisioned - a fundamental shift in the way California handles nonviolent, nonserious offenders." An analysis of the "nonviolent, nonserious" ex-prison inmates now supervised by probation officers instead of parole agents in San Francisco found, as of the end of June, that the average convict had eight previous felonies, and over half previously had a violent, sexual, or weapons-related offense. "The population is high-risk with high needs," said Wendy Still, the adult probation chief. John Loftus, a San Francisco police commander, said burglaries increased 16 percent and auto boosting more than 12 percent in the first half of 2012.

Warren Hill Denied Clemency

The Eleventh Circuit summarized the facts of the Warren Hill case:

In 1990, while Hill was serving a life sentence for the murder of his girlfriend, he murdered another person in prison. Using a nail-studded board, Hill bludgeoned a fellow inmate to death in his bed. As his victim slept, "Hill removed a two-by-six board that served as a sink leg in the prison bathroom and forcefully beat the victim numerous times with the board about the head and chest as onlooking prisoners pleaded with him to stop." Hill III, 587 S.E.2d at 618. Hill "mocked the victim as he beat him." Id. Even locked up in jail for one murder, Hill continued to kill.

Hill's advocates now claim he is mentally retarded.  But a funny thing happened on the way to his trial 21 years ago.  Again from the USCA11 opinion:

Although Georgia already prohibited executing mentally retarded defendants at the time of Hill's trial, direct appeal, and initial state habeas petition, Hill did not claim he was mentally retarded until five years after his 1991 trial. In 1996, Hill amended his state habeas petition to allege mental retardation for the first time, and he later claimed that Georgia's reasonable doubt standard of proof in O.C.G.A. §17-7-131 violated the Eighth Amendment.

Mental retardation is, of course, a matter of degree rather than a clean yes/no question.  The yes/no line drawn by Atkins is artificial, subjective, and fuzzy, so it is possible to disagree in any case close to the line.  The Georgia statute hailed as a great advance by the Politically Correct types when it was enacted is now being assailed by them because it placed the burden of proof to qualify for this categorical exclusion on the defendant, beyond a reasonable doubt.  Even without the categorical exclusion, of course, the defendant can always argue any degree of impairment as a circumstance in mitigation.

Today, the Georgia Board of Pardons and Paroles issued a short press release saying they denied clemency.  As usual, they did not state why.  That is a regrettable practice.  It would go a long way toward improving public confidence in the system if they said something like, "On our independent review of the evidence, we do not believe Hill is retarded by any standard."

Oh, BTW, the correct term is "retarded," not "disabled."  The term "disabled" embraces a wide variety of mental conditions, and we are only talking about one here.  You could say "developmentally disabled," but the word "disabled" alone doesn't do the job.

News Scan

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FBI Says No Evidence Zimmerman is a Racist: Jeff Weiner and Rene Stutzman of the Orland Sentinel report records released Thursday by the FBI show after federal civil-rights investigators interviewed dozens of people who know George Zimmerman, no one said he was a racist or had ever shown racial bias. The police detective who interviewed Zimmerman on the night of the shooting, Chris Serino, said Zimmerman has a "little hero complex" but is not a racist. The FBI became involved in the case after the Department of Justice launched a civil-rights investigation into the shooting of Trayvon Martin. Zimmerman has been charged with second-degree murder, but says he shot Trayvon in self-defense.

Spike in Burglaries in Kern County: KGET 17 News reports there has been a spike in break-ins and burglaries in Kern County, and Sheriff's deputies say it is expected to get worse. The county's probation department says the increase may be related to the number of inmates being released from jail early.
"We have conversations with people we arrest who say now is the time to commit crime because the sentencing is not significant," said Lt. Laura Lopez, Kern County Sheriff's Department. "That is a problem. Folks don't see the penalties being that significant. And, I don't have a quick fix for that," said Lt. Lopez. "There is no room in the jail to hold everybody. They're holding the most serious offenders. The ones that are actually serving time do very little time in jail," said David Kuge, Chief Probation Officer. "If they take their full sentence here, they know they're only going to serve several months and get out. Three or four months in custody is very little time as far as they're concerned," Kuge explained. Residential burglaries for the first six month of 2012, compared to the first six months of 2011, are up 32 percent in Kern County. Burglaries at businesses have increase 8 percent. In the city of Bakersfield, burglaries have gone up 12 percent.

Massachusetts Court Rules on Indigent Defendants: Denise Lavoie of the Associated Press reports the Massachusetts Supreme Judicial Court, in a series of rulings on Friday, tightened rules regarding when defendants are eligible for court-appointed lawyers. The court ruled that the burden of proof is on the defendant to prove indigence. The court also ruled that retirement fund accounts may be considered when determining whether a defendant is indigent, as well as the disposable net monthly income of a defendant's spouse or significant other or the defendant's parents if they live at the same residence and significantly contribute to household expenses.

The California Supreme Court today decided People v. Bailey, S187020:

We granted review to determine whether, after finding insufficient evidence to support a conviction for escape from state prison, an appellate court may reduce the conviction to attempt to escape, notwithstanding the trial court‟s failure to instruct the jury on attempt. In this case, the Court of Appeal refused to modify the conviction to attempt to escape on the ground that attempt to escape is not a lesser included offense of escape and the trial court did not instruct the jury on attempt to escape. Because attempt to escape is not a lesser included offense of escape -- attempt to escape contains a specific intent element not present in escape -- we affirm the judgment of the Court of Appeal.

In a concurring opinion, Justice Werdegar criticizes the language in the standard jury instruction, CALCRIM 2760, that an escape can be completed even if the inmate doesn't make it outside the boundary of the institution.

News Scan

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Oklahoma Acquires 20 Additional Doses of Lethal Injection Drug: Megan Rolland of NewsOK reports Oklahoma has acquired 20 additional doses of pentobarbital, the first drug administered as part of the state's three-drug lethal injection process. The state previously had one dose remaining. As reported in yesterdays News Scan, an attorney for Oklahoma death row inmate Michael Hooper had filed a lawsuit to halt Hooper's August 14 execution because there was no backup if the dose of pentobarbital failed.

2 Iowa Juvenile LWOP Cases to be Resentenced: Trish Mehaffey of The Gazette reports the Iowa Court of Appeals on Wednesday overturned the life sentences of two inmates convicted of first-degree murder at age 17, after the U.S. Supreme Court's ruling last month on mandatory juvenile life without parole sentences. Christine Lockheart and Thomas Bennett will now face resentencing. The District Court will be able to consider mitigating factors in determining sentencing. Lockheart was convicted of stabbing to death a retired bus driver in 1985. Bennett was convicted of shooting a disabled man to death during a robbery in 1998.

Chicago Police Will Only Detain Illegal Immigrants for Serious Crimes: Fran Spielman of the Chicago Sun-Times reports Chicago Major Rahm Emanuel and U.S. Rep. Luis Gutierrez (D-Chicago) on Tuesday unveiled the new so-called "Welcome City" ordinance, which prohibits police from detaining illegal immigrants unless they have been convicted of a serious crime or are wanted on a criminal warrant. "If you're an immigrant and you have no criminal background, I don't want that to be prohibitive from you contacting the police," Emanuel said. "I can't be advocating for the community to work with the Police Department if people are [so] worried about their immigration status that they don't report a crime," he added. Gutierrez said that with illegal immigrants less suspicious of police, it will be tougher on the gangs contributing to Chicago's spike in homicides.

How Long Is Life Minus One Year?

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In United States v. Cassesse, Judge Newman of USCA2 ponders

the almost metaphysical issue of how, if at all, a lifetime term of supervised release, imposed for a supervised release violation, should be reduced by the number of months of a prison term imposed for that violation, a subtraction we are willing to assume is required by the literal terms of the provisions governing supervised release.
He ultimately ducks the math test by deciding that Congress did not intend the statute to apply literally to this situation.

An alternate mathematical solution (with the same result) is to understand a life term as a term of infinite years.  There is no limit in terms of time.  Custody, or supervision, is limited only by the overriding principle that we don't keep dead bodies in prison or supervise them.  Infinity minus one year is infinity, but the overriding principle still applies.  QED

Thanks to How Appealing for the link.
Last year at this time, we were feeling good about the term just completed.  We had racked up major victories settling long-standing and important problems with decisions such as Harrington v. Richter and Cullen v. Pinholster.

This year, about all we can say is, "Well, it could have been worse."  A summary of the criminal and related cases for the term is available here.

Last July, I noted that the right to counsel would be a major theme, with five cases involving defendants complaining about their lawyers.  The defendants were the prevailing parties in four of the five, but in none of the five did the prevailing side get the prize it wanted.

News Scan

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Ohio Governor Commutes Admitted Killer's Death Sentence: Kim Palmer of Reuters reports Ohio Governor John Kasich on Tuesday commuted the death sentence of John Jeffrey Eley to life in prison without the possibility of parole. Eley was convicted for shooting a man to death during a 1986 robbery. He confessed to the killing and was sentenced to death in 1987. He was scheduled to be executed July 26. The Ohio Parole Board voted not to grant clemency for Eley. It is the third time the governor has commuted a death sentence in a little over a year.

Brazil Implements Another Program to Reduce Sentences: The Associated Press reports a program at a prison in Brazil's southeastern Minas Gerais allows inmates to reduce their sentences in exchange for riding stationary bikes, which are hooked up to a battery that generates power to light street lamps in the town at night. For every three eight-hour days of pedaling, participants in the voluntary program get one day taken off their sentences. See our previous post here about federal inmates in Brazil getting reduced sentences through a reading program.

Oklahoma Death Row Inmate Sues State Over Three-Drug Execution: Sean Murphy of the Associated Press reports Oklahoma death row inmate Michael Hooper on Tuesday asked a federal court to halt his execution scheduled for next month because the state has only one dose left of pentobarbital, the first drug used in the state's three-drug lethal injection process. An attorney for Hooper said if the drug fails to render him unconscious, the state has no backup plan. "It's never not worked," said Oklahoma prisons spokesman Jerry Massie. Hooper is scheduled to be executed August 14 for the 1993 killings of his 23-year-old ex-girlfriend, and her two children, ages 5 and 3. He shot each victim twice in the head, and buried their bodies in a shallow grave in a field. "The (Oklahoma Department of Corrections) protocol is outmoded and, compared to the one-drug protocol now employed by four other states in over 20 executions, creates a risk of cruel and unusual punishment which is now unacceptable," Hooper's attorney Jim Drummond wrote in the motion.

Australian Press Considers California Death Penalty Repeal Debate: The Australian Broadcasting Company reports on one of the upcoming decisions Californians will be making at the polls this November - whether or not to abolish the state's death penalty. Sandy Friend, whose 8-year-old son Michael Lyons was sexually assaulted and murdered by California death row inmate Robert Rhodes, says, "They're not just normal criminals. These are very, very evil, sadistic criminals and I feel that the only punishment that is anything of justice for a family like mine and my community is death." Kent Scheidegger, CJLF's legal director, says death penalty opponents are pushing the measure now because of the state's budget crisis, even though the costs of the death penalty are a small fraction of the entire state budget.

CA Supreme Court Clarifies Scope of Restitution: Bob Egelko of the San Francisco Chronicle reports the California Supreme Court ruled unanimously on Monday that under the state's restitution law, the victim of a property crime is entitled to an amount of restitution that will allow them to restore the item to its previous condition. The court said that if the property damaged by a crime can be repaired, the criminal who damaged it must pay the cost, instead of the victim having to find a replacement at a comparable price. The decision came in the case of Leroy Stanley, who in 2009 pounded on a pickup owned by Patricia Short-Lyster while it was parked outside her home, severely denting it and making a rear door inoperable. Stanley appealed the $2,800 repair bill he was ordered to pay, saying the amount of restitution he is ordered to pay should be limited to the value of the property. 

Crime and Heat Waves

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Harry Enten has this article at the Guardian (London) summarizing the research on crime and temperature.
Sheri Qualters has this article in the NLJ (free reg. required):

The U.S. Court of Appeals for the First Circuit has rejected the claims of two researchers seeking to quash subpoenas issued to Boston College by the U.S. government on behalf of British authorities. The United Kingdom wants interview materials of a former Irish Republican Army member as part of its investigation of a kidnapping and murder.

News Scan

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Idaho Updates Execution Policy: The Associated Press reports Idaho state officials and news organizations filed an agreement with Boise's U.S. District Court on Monday on a new policy that will allow witnesses to view the entire execution procedure. Although journalists were allowed for the first time to view the entire procedure at the June 12 execution of Richard Albert Leavitt, the state and news organizations had to agree on the wording of a permanent execution access rule in order for the lawsuit filed by the news organizations to formally come to an end.

San Quentin Prison Spokesman Answers Questions About Scott Peterson: FoxNews.com reports a list of questions about death row inmate Scott Peterson was recently submitted to San Quentin prison by Fox News Channel San Francisco bureau correspondent Claudia Cowan and producer Mike Lundin. The answers were provided by prison spokesman Samuel Robinson. He said Peterson is allowed 5 hours of outdoor recreational activities daily. Since his arrival at San Quentin, Peterson has not had a job assignment and has not taken any classes.

Chicago Mayor Defends Strategy as Homicides Spike: Don Babwin of the Associated Press reports Chicago Mayor Rahm Emanuel and Police Superintendent Garry McCarthy defended their new gang-fighting strategy Monday as Chicago homicides are up nearly 38 percent so far this year from last year. Instead of large, specialized units dropping into crime-ridden areas for a short amount of time, beat officers are now staying in specific areas on the streets. Emanuel also announced on Monday a plan for the city to spend $4 million to board up or tear down vacant buildings where gangs hide out, deal and store drugs, and hide guns.

CA Man Awaiting Sentencing Escaped from Medium-Security Placement: Cathy Kelly of the Santa Cruz Sentinel reports that on Friday, Richard Norman Sasse escaped from the medium-security Rountree Detention Center in Santa Cruz County. Sasse has not yet been sentenced for allegedly robbing a woman last year. Sheriff's Sgt. Steve Carney said Sasse should be considered dangerous. He was placed in Rountree in December, after completing an assessment by jail staff that looks at an inmate's criminal history. Sasse would not qualify as a non-serious, non-violent, or non-sexual offender under realignment, and overcrowding in the county's jail caused by realignment may have influence his placement. Carney said Sasse would "potentially not" have been placed at Rountree if it were not for the stress on the overcrowded maximum-security county jail. "Back in the old days, they would have been able to manage population at County Jail and not have to use Rountree as an extra place to put people," he said.

San Diego DA Responds to Realignment: Dana Littlefield of the San Diego Union-Tribune reports in San Diego County, one offender supervised by local probation since being release from prison has been arrested on a murder charge, and five others on attempted murder charges. "I think it's cause for concern,"  said District Attorney Bonnie Dumanis. As of last week, Dumanis said about 1,300 cases had been sentenced under realignment in San Diego County, where defendants will serve their sentence in jail rather than prison. "I've been pretty consistent in saying that I don't think this was a well-thought-out plan," she said. "The issue is Sacramento has put us in jeopardy, and we're doing our best to keep the public safe." The San Diego Association of Governments analyzed crime statistics from the last three months of 2011, which were the first three months realignment was in effect, and compared them to the same time period in 2010. The results showed a 6 percent uptick in property crimes. 

LA County Looks to House Inmates in Central Valley Jails: report the Los Angeles County Sheriff's Department is in discussions with two Kern County cities to use their jails to house up to 1,000 low-level offenders due to concerns of overcrowding. The Sheriff's Department is also considering talks with two other Central Valley cities. Since realignment went into effect, more than 5,000 inmates who would previously have been housed in state prisons have been shifted to Los Angeles County. Assistant Sheriff Cecil W. Rhambo Jr. said the department is also considering using electronic monitoring for some defendants accused of drug crimes and prostitution rather than jail detention, and releasing more women with electronic monitoring systems. Last year, sheriff's officials told The Times that the idea of sending inmates to a facility outside the county would only occur under extreme circumstances. According to the Sheriff's Department spokesman Steve Whitmore, the county's early release policy already calls for nonviolent offenders to serve 20% of their jail terms. Whitemore added that documented gang members will serve their full sentences. Rhambo said other violent offenders serve 75% of their jail terms.

Texas Joins the Single-Drug Club

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We have received info that Texas will switch to a pentobarbital-only method for its next execution, Yokamon Hearn on July 18.

So now we have Ohio, Washington, Arizona, Idaho, Missouri, Texas, and soon Kentucky.

Update: Nomaan Merchant has this article for AP.  The shortage of pancuronium bromide was the principal reason for the switch.

Foie Gras Federalism

Now that it's illegal to serve foie gras in a California restaurant (leaving only 49 ways to love your liver), the Presidio Social Club is claiming to be exempt.  It is located on a former Army post in San Francisco which is now a federal park.  The restaurant's act of defiance is scheduled for Bastille Day.

How do you say "good luck with that" in French?

Paolo Lucchesi has this post at Inside Scoop SF on the SF Chron website.

Texas v. Holder

The Voter ID case of Texas v. Holder, No. 12-cv-0128, goes to trial today in the U.S. District Court in D.C.  Rachel Weiner has this story at the WaPo.

This is one of those rare kinds of cases that Congress still requires to be tried before a panel of three judges, rather than a single judge as most cases are.  Three-judge trial courts for important cases were the norm under the original Judiciary Act of 1789, but the requirement has shrunk over the years to only a handful of cases.  Not surprisingly, the cases most personally important to members of Congress are a large part of the remaining few.

The other important consequence of that classification is that the appeal goes straight to the Supreme Court, bypassing the Court of Appeals.  (See 28 U.S.C. §1253.)  It is an appeal in the technical sense, not a petition for writ of certiorari, meaning the high court must take it.

The notion that a simple requirement to show ID is a Republican plot to disenfranchise qualified voters who will reliably vote for the Democrats strikes me as odd.  If that were the purpose, it would be singularly ineffective.  The IDs are free and easy to get.  The same union political machine that rounds up the party-line-voting sheep on election day can round them up a couple months earlier to go down to DMV and get the IDs.  It's only a problem if they are not, in fact, qualified to vote, and that should be a problem.

Update:  Mike Scarcella has this post on the arguments at BLT.

News Scan

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Counties Vary in Approach to Realignment: Vauhini Vara of The Wall Street Journal reports that as counties have begun experimenting with how to manage the inmate shift from the state prison under realignment, local residents in Kern, Merced, and San Joaquin counties have protested the early releases of criminals from overcrowded jails. Kern County Sheriff Donny Youngblood says he understands the outcry. "It's a put-'em-in-custody kind of county--we don't have a lot of sympathy for people who commit crimes," he said. Barry Krisberg, a criminal-justice expert at the University of California, Berkeley, refers to realignment as "...'justice by geography,' depending on where you get arrested." Kern County has nearly doubled the amount of inmates supervised on electronic monitoring and other out-of-custody programs since October. Local Bakersfield bicycle shop owner Jesse Frederick said he is sympathetic to the sheriff's dilemma, but worries, "It can be like the Wild West out there if we're not careful."

Four Inmates Have Racial Justice Act Hearing: Allen Reed of the Associated Press reports lawyers were already testing the boundaries of the reworked Racial Justice Act days after the North Carolina legislature overrode the Governor's veto of the scaled back law. Four death row inmates - two black men, one American Indian woman, and one European man - convicted of first degree murder in Cumberland County are seeking to have their sentences reviewed. Friday's hearing was held before Superior Court Judge Greg Weeks, the only judge who has reduced a death sentence to life in prison without the possibility of parole under the original Racial Justice Act. Nearly all of the state's death row inmates applied for a reduced sentenced under the 2009 law. The revised law provides a clear framework for future convictions, but currently at issue is whether the appeals made by inmates before the law was changed will be applied under the original law or under the new version. Judge Weeks set an October 1 date for the evidentiary hearing.

New Jersey Lawmaker Wants to Expand State's "Megan's Law" to Internet: Matt Friedman of the Statehouse Bureau reports that New Jersey State Senator Christopher "Kip" Bateman (R, Somerset) submitted a bill Monday to require sex offenders to list on social networking websites the crime they were convicted of, their address, where the crime took place, a description of their physical appearance, and a link to their entry on the state's official sex offender registry. The bill is based on a similar law recently enacted in Louisiana. "In many ways, sex offenders can use the Internet as a venue and a means to plot and begin to carry out their crimes against vulnerable and unsuspecting victims," Bateman said in a statement. "This legislation supplements Megan's Law to assist law enforcement agencies in stepping up their increasingly successful efforts targeting and fighting Internet sex crimes." Offenders would face up to 18 months in prison and as much as a $10,000 fine for violating the law.
Toby Helm and Jamie Doward have this story with the above headline in the Guardian (London):

Tougher prison sentences reduce crime, particularly burglary, according to ground-breaking research.

The study, by academics at Birmingham University, also found that during periods when police detect more offences, crime tends to fall overall, suggesting that levels of police activity - and therefore of staffing - have a direct impact on criminal activity.

The findings are likely to be seized on by critics of the government's plans for reducing the number of police officers as part of spending cuts.

The research, carried out for Civitas, an independent thinktank, used local sentencing data released by the Ministry of Justice under freedom of information requests to track the effectiveness of penal policy and policing on recorded crime across the 43 forces in England and Wales between 1993 and 2008.

The researchers concluded that prison was particularly effective in reducing property crime when targeted at serious and repeat offenders. They concluded that an increase of just one month in the average sentence length for burglaries - from 15.4 to 16.4 months - would reduce burglaries in the following year by 4,800, out of an annual total of 962,700.

The full report will be published is available at civitas.org.uk Monday.

Honor Roll

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The News Scan reported several days ago that the North Carolina legislature voted to override Governor Perdue's veto of much needed reform to the state's Racial Justice Act.  The Act in its original version allowed killers sentenced to death to have their sentences reduced based on statistical evidence of past racial discrimination, even absent specific evidence of discrimination affecting the killer's individual case.

The logic of this always struck me as having the same appeal as allowing the court to convict Defendant X because the last hundred defendants were guilty  --  there must be something in the "system" that results in only guilty defendants being brought to trial.  The fact that there is no specific evidence of Defendant X's guilt is to be disregarded because, ya know, North Carolina has a long and disturbing history of guilty defendants.

Reforming this "logic" in the original Racial Justice Act required a revised edition, and getting the revised edition put on the books required overriding Ms. Perdue's veto of the reforming legislation.  That in turn required five courageous Democrats to turn away from the race-baiting drumbeat and intimidation tactics used against them and support the override.  The five state representatives are:

Rep. William D. Brisson, Bladen County
Rep. James W. Crawford Jr., Granville County
Rep. Dewey L. Hill, Brunswick County
Rep. Bill Owens, Camden County
Rep. Timothy L. Spear, Washington County

Anyone looking for modern profiles in courage now knows where to find them.

ere: http://www.newsobserver.com/2012/06/30/2171071/racial-justice-act-supporters.html#storylink=cpy

California Spending Priorities

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California's government is so broke that it cannot afford to correctly perform the most basic domestic purpose of government -- protecting people from crime.  The "realignment" program is a disaster, as we have documented in monthly press releases.

But $68 billion for the high-speed rail boondoggle?  Oh, yeah, we can afford that, said the state Senate today, the Sacramento Bee reports.  Four Democrats broke ranks, leaving the boondoggle with the bare minimum 21 votes to pass.
The rule of Martinez v. Ryan, allowing ineffective assistance of collateral-review counsel as "cause" for not raising IAC of the trial lawyer in the first state collateral review, only applies in states that have a rule against ever raising IAC on direct appeal.  In all other states, Coleman v. Thompson is still the law, and Martinez v. Ryan changes nothing.  I noted this limitation in this post the day Martinez came down.  Today the Fifth Circuit agreed, albeit in a divided decision, in Ibarra v. Thaler, No. 11-70031. 

In short, Texas procedures do not mandate that ineffectiveness claims be heard in the first instance in habeas proceedings, and they do not by law deprive Texas defendants of counsel-and court-driven guidance in pursuing ineffectiveness claims.

Accordingly, Ibarra is not entitled to the benefit of Martinez for his ineffectiveness claims, as Texas procedures entitled him to review through counselled motions for new trial and direct appeal.

See also, Dansby v. Norris, 8th Cir., June 21, 2012:

Martinez does not apply here, because Arkansas does not bar a defendant from raising claims of ineffective assistance of trial counsel on direct appeal. Arkansas law permitted Dansby to raise a claim of ineffective assistance in a motion for new trial and on direct appeal. [Citations.]

The Supreme Court in Martinez was clear that its "narrow exception" to Coleman was limited to the situation in which the State barred the defendant from raising a claim of ineffective assistance on direct appeal. 132 S. Ct. at 1316. The Court was not silent about a possible extension of Martinez to a State that does not impose such a bar. The Court did not expressly reserve judgment, as it sometimes does when a question is debatable. The Court was explicit about the finite scope of its decision: "The rule of Coleman governs in all but the limited circumstances recognized here." Id. at 1320.
Thanks to Ed Marshall for the tip.

News Scan

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California Prisoner Charged With 1986 Vermont Murder: The Associated Press reports California state prisoner David Allan Morrison is being charged with first-degree murder in the 1986 strangling of a Vermont woman. Sarah Hunter disappeared in September 1986, and her body was found two months later. DNA tests linked hair strands found in Morrison's car to the victim. Vermont State Police Lt. Tim Oliver said Morrison was a suspect immediately after Hunter's death, but at the time investigators didn't have the evidence needed to charge him. Morrison left Vermont in early 1988, and was arrested later that year on charges of attempted murder, sexual assault, and kidnapping in Chula Vista, Calfornia, which he eventually pleaded guilty to. His abandoned car was also seized by police in 1988. Hair found in the car was matched to Hunter.

CA Bill Would Temporarily Release Death Row Inmate to Help in Search for Victims: The Associated Press reports a bill passed unanimously by the California Senate and Assembly would take effect immediately if signed by Governor Jerry Brown to allow California serial killer Wesley Shermantine to be temporarily taken off death row to help investigators search for the remains of more victims.  The bill authorizes the Secretary of the Department of Corrections and Rehabilitation to remove an inmate "for the purpose of permitting the inmate to participate in or assist with the gathering of evidence relating to crimes." This provision will be valid until January 1, 2013. The most current version of the bill is here.

CA Man Mistakenly Discharged from Parole Faces Murder Charge: Atascadero State Hospital and eventually made his way to Santa Cruz, where prosecutors say he brutally stabbed a shop owner to death on a busy sidewalk.

LA Grand Jury Releases Realignment Report: Christina Villacorte of Los Angeles Daily News reports the Los Angeles County Civil Grand Jury said realignment could diminish probation officers' ability to adequately supervise probationers and cause county jail overcrowding. "The caseload for the current deputy probation officers has increased dramatically for each deputy probation officer to monitor and supervise adequately," the civil grand jury wrote. The civil grand jury also noted, "The number of N3s (sent to) L.A. County from October 2011 through mid-March 2012 is well above the projected numbers by the Los Angeles County Sheriff's Department." The Los Angeles County Sheriff's Department expected to receive 7,000 to 8,000 non-violent, non-serious, and non-sexual offenders during the first year of realignment. However, the county admitted almost 5,000 of those offenders in just the first four months of realignment.

CA Senate Approves "Anti-Arizona" Immigration Bill: The Associated Press reports that under a bill approved by the California state Senate, lower-level offenders will no longer be detained on immigration holds, and officers would only refer those convicted of serious felonies to immigration officials. The bill passed along party lines 21-13 Thursday, and now goes to the Assembly. The most recent version of the bill is here.

"Highless" Marijuana

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Maayan Lubell reports for Reuters:

Israeli researchers have developed a medicinal marijuana that can ease the symptoms of some ailments without making patients "high".

Cannabis has more than 60 constituents called cannabinoids. THC is perhaps the best known of those, less so for its medical benefits and more for its psychoactive properties that give people a "high" feeling.

But cannabis also contains Cannabidiol, or CBD, a substance that some researchers say has anti-inflammatory benefits. Unlike THC, it hardly binds to the brain's receptors and can therefore work without getting patients stoned.

If the new strain really does have the medical benefits without the high, this would be the perfect solution for those who actually do want medical marijuana for medical reasons.  The feds should be able to reclassify the new strain, state-law-authorized medical marijuana dispensaries could sell it without fear of federal prosecution, and all would be well, right?

Except for one thing.  The people who are using the whole "medical" marijuana movement as a scam to legalize a recreational drug would be frustrated.

Jury Nullification

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Kevin Fagan reports in the SF Chron:

William Lynch never disputed that he had punched a retired Catholic priest in an old folks home in Los Gatos. He said the cleric raped him nearly four decades ago, that he had simply snapped when he demanded an admission of guilt. He didn't expect a jury to overlook the letter of the law and let him go.

But Thursday, in a verdict that drew gasps of astonishment in a San Jose courtroom, the jury said the 44-year-old Lynch was not guilty of felony assault and elder abuse in the 2010 attack on Jerold Lindner, 67.

The panel considered a lesser count of misdemeanor assault - one of the jurors said afterward that several felt compelled to find Lynch guilty of something - but even on that charge, it deadlocked 8-4 for conviction.

Scott Peterson's Appeal

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AP reports:

Scott Peterson on Thursday filed the automatic appeal of his 2004 death sentence to the California Supreme Court, maintaining as he always has that he had nothing to do with the murders of his wife Laci and unborn son Connor.

Peterson's attorney, noted death penalty lawyer Cliff Gardner, filed the 423-page document eight years after a San Mateo County jury found the former fertilizer salesman guilty of suffocating a Laci and dumping her in the San Francisco Bay on Christmas Eve 2002.

Actually, what Peterson's lawyer filed was the appellant's opening brief.  The "appeal" is automatic, and nothing needs to be, or is, filed.  (In all other cases, an appeal is commenced by filing a "notice of appeal.")  The case is S132449.  The docket and other info can be retrieved by pressing the Case Information button on the California Supreme Court's website and entering that number.  The actual date of the judgment is March 16, 2005.

So why did it take so long to file the opening brief?

First, there was a four-year delay in appointing counsel.  California's Judicial Council has needlessly restricted the pool of attorneys by imposing an unnecessarily restrictive definition of who is deemed "qualified."  On top of that, capital defense bar culture tells defense lawyers that they must file massive documents briefing every conceivable point.  (U.S. Supreme Court precedent is flatly contrary, see Jones v. Barnes, 477 U.S. 527, 536 (1986), but hey, when you're on a crusade, you can't let a minor matter like U.S. Supreme Court precedent squarely on point stand in the way.)  Few people want to do that, and California lets lawyers take appointments for noncapital felony appeals (a comfortable practice for which there is a surplus of lawyers) while declining to take capital ones.

Second, California's rules and its Supreme Court allow lawyers way too much time and too many pages to file the brief.  The defense side likes to point to the massive records in California capital cases.  The rule provides that the brief be filed in 210 days plus 15 days for each 1000 pages of record over 10,000.  The record in this case was indeed very large, but 44% of it was jury questionnaires, and the questionnaires filled out by venire members who neither served nor were challenged are irrelevant.  Then despite the long time granted by the rule, counsel asked for and received nine extensions of time to file.  Why does the California Supreme Court just roll over and give counsel so many extensions of time?  Because it doesn't have enough alternatives to crack down, for the reasons noted in the previous point.

So that is why we have seven years from trial court judgment (and automatic appeal) to the appellant's opening brief -- problems that are completely fixable at no additional cost if California's Legislature, Judicial Council, and Supreme Court only had the backbone to do so.

The Twinkie Defense instantly became, and remains, the landmark for phony, junk science razzle-dazzle enlisted to attempt to hoodwink the jury.  It attained its Mt. Rushmore status because, to the astonishment of almost everyone, it worked in one of the most notorious cases of the 1970's, the trial of Dan White for killing openly gay San Francisco Supervisor Harvey Milk.  It was presented to the jury by a psychiatrist, Dr. Martin Blinder.

But some defense ploys are just too much, even for Dr. Blinder.  Today's story reports that Dr. Blinder openly scoffs at the "defense" undertaken (fortunately to no effect) by a fellow convicted for being a serial groper of teenage girls.  The defense was that the groper acted as he did because of too much caffeine.  Dr. Blinder reportedly says that "he has never heard of caffeine induced groping."

"When someone gets depressed and abandons his diet, eats junk food, and if you are already on a downward spiral, I can tell you that eating junk food is not therapeutic," Blinder said. "If you ever read the label on a Twinkie, only two of the ingredients sound like food products."

But caffeine is made out of coffee beans, all natural and free of artificial ingredients, he said.

"We have no evidence that coffee is harmful. In fact, there is some evidence that drinking it in one's old age can assist in some Alzheimer's cases," Blinder said.

Blinder admitted that if someone is trying to quit coffee cold turkey that some withdrawal symptoms have taken affect in the form of cravings, headaches and restlessness. "But going out and molesting women is not one of those symptoms," says Blinder.

When "defenses" have come to the point that the inventor of the Mitigating Twinkie scorns them, well, all I can say is that we've come a long way, all in the wrong direction.

Blogger Neuroskeptic has the scoop.  When I worked at Yale, a senior NIH statistician admitted that few people understood the statistics used in modern neuroscience research - including most of the researchers themselves. 

My suspicion is that much of the sloppiness that goes on in these studies is not noticed simply because so few people can decipher the complexity of the statistics used.  And along with complexity we also have "flexibility" as Neuroskeptic points out.   
The Jerry Sandusky case is an abomination and a tragedy, not something to joke about.  It's therefore discomfiting that the defense team keeps going and going in ways you can't make up (or at least normal people can't make up).

Thus I bring you this belly laugh from the defense, stated with the usual blustering indignation after a visit to Sandusky in the slammer:

Sandusky, 68, is under observation at the Centre County jail, where he is being kept away from other inmates pending a psychological review that will help determine the next step toward his sentencing in about three months.

''He's defiant and wants the truth to be told. He wants people to know that he's not guilty,'' said defense lawyer Karl Rominger, who visited his incarcerated client Monday.

That's it!  He "wants the truth to be told."  Mr. Rominger neglected to remind us, however, that his client had an ideal opportunity to tell the truth, and with the whole country listening:  He could have taken the stand.  And who declined to call him to the stand?  Why, the same lawyer who now blusters that he "wants the truth to be told."

I understand that counsel probably had good reason not to call Sandusky, i.e., he's not merely a liar but such an obvious liar that he would have convicted himself out of his own mouth about three minutes into cross examination.  Still, does the obligation to defend one's client extend to holding a post-trial press conference to make a fool of yourself?

The NYT, Massively Deconstructed

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The New York Times had a predictable, gushing editorial in praise of the SCOTUS decision in Miller v. Alabama, and suggesting that the door is open to counsel-assisted re-sentencings for about 2000 youthful murderers.

The editorial is such a botch that it brought the critical attention of Prof. Doug Berman, a left/center expert in sentencing.  Prof. Berman deconstructs the Times with much clarity but little mercy.  Prof. Berman's assessment begins thusly:

There are so many assertions in this editorial that are flat-out wrong or deeply misguided, I am not sure where to start. To begin, as my post headline and introduction highlights, this editorial seems to assume that all long-ago sentenced juve murderers will get the benefit of the new procedural rule of Miller. But, as I stressed in my very first Miller aftermath post here, states can (and will?) argue that Miller is inapplicable to final juve LWOP sentences imposed long ago because it is a new rule of criminal procedure that should not apply retroactively under Teague.

It continues:

This editorial also seems misguided when it asserts that mandatory LWOP sentenced defendants "can't initiate a review if they cannot afford a lawyer." These defendant surely can (and should) initiate a habeas petition pro se; a lawyer is not absolutely necessary here (or ever) to bring a habeas petition. Though it is surely true that a high-quality lawyer will likely be better able to develop a stronger habeas claim (and make stronger points at any full resentencing), it is certainly not true that review cannot be initiated without a lawyer.

This editorial also seems misguided when it suggests that the mandatory LWOP sentenced defendants who have already "been in prison 21 years" or longer now must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." In fact, even if these long-serving LWOPers get the benefit of Miller's new rule, they still can be constitutionally resentenced to LWOP and thus can still be sentenced to die in prison as long as that decision is made individually by a judge or jury bases on the specific case facts.

The whole blog is worth the read, and reminds us how utterly out-to-lunch the NYT can be when it gets on its high horse, which is most of the time.  I would remind readers that Prof. Berman is no friend of harsh sentencing, and has (correctly) been quoted as an expert more than once by the self-same NYT.

This early preview from an article forthcoming in the journal Science has the details:

The most startling thing about the latest scandal to hit social psychology isn't the alleged violation of scientific ethics itself, scientists say, or the fact that it happened in the Netherlands, the home of fallen research star and serial fraudster Diederik Stapel, whose case shook the field to its core less than a year ago. Instead, what fascinates them most is how the new case, which led to the resignation of psychologist Dirk Smeesters of Erasmus University Rotterdam and the requested retraction of two of his papers by his school, came to light: through an unpublished statistical method to detect data fraud.

The technique was developed by Uri Simonsohn, a social psychologist at the Wharton School of the University of Pennsylvania, who tells Science that he has also notified a U.S. university of a psychology paper his method flagged.

That paper's main author, too, has been investigated and has resigned, he says. As Science went to press, Simonsohn said he planned to reveal details about his method, and both cases, as early as this week.

If it proves valid, Simonsohn's technique might find other possible cases of misconduct lurking in the vast body of scientific literature. "There's a lot of interest in this," says Brian Nosek of the University of Virginia in Charlottesville, who recently launched an examination of replicability in social psychology findings (Science, 30 March, p. 1558).

The method may help the field of psychological science clean up its act and restore its credibility, he adds--but it may also turn colleagues into adversaries and destroy careers. The field will need ample debate on how to use it, Nosek says, much the way physicists had to grapple with the advent of nuclear physics. "This is psychology's atomic bomb," he says.

Simonsohn already created a stir last year with a paper in Psychological Science showing that it's "unacceptably easy" to prove almost anything using common ways to massage data and suggesting that a large proportion of papers in the field may be false positives. He first contacted Smeesters on 29 August 2011 about a paper on the psychological effects of color, published earlier that year. The two corresponded for months, and Smeesters sent Simonsohn the underlying data file on 30 November. Smeesters also informed a university official about the exchange. Simonsohn says he was then contacted by the university.

News Scan

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Sex Offender Strikes Again: The Associated Press reports an Oregon man on parole for trying to infect children with HIV attacked a 10-year-old boy at a Wendy's over the weekend. Police say Adam Lee Brown pulled the victim into a bathroom, attempted to sexually assault him, and stabbed him several times. Brown, who is HIV-positive, was convicted in 1993 of three counts of first-degree sodomy, each with a child. He pleaded no contest to reduced charges. The initial charges included attempted murder because of his HIV status. Brown spent 11 years in prison, earning time off of his 15-year sentence.

Georgia Schedules Execution for Double Murderer: Bill Rankin of The Atlanta Journal-Constitution reports a death warrant for Georgia death row inmate Warren Hill was signed Monday. He is scheduled to be put to death by lethal injection on July 18. Hill was serving a life sentence for killing his girlfriend when he bludgeoned to death a fellow inmate with a nail-studded board in 1990.

New Mexico DNA Law a Success: Jeri Clausing of the Associated Press reports New Mexico Governor Susana Martinez says last year's expansion of the state's DNA testing law is helping to put more criminals behind bars. Katie's Law, named after Katie Sepich, was originally passed in 2006 and required DNA samples from suspects arrested for violent felonies. Last year the law was revised to extend the testing requirement to all felonies. Sepich was a student at New Mexico State University when she was raped and murdered in 2003. Her killer was identified through DNA evidence after he was convicted of another crime. Martinez says the law has led to a 92 percent increase in matching suspects to crimes.

Twitter Must Hand Over Protester's Tweets: Tiffany Kary of Bloomberg News reports New York State Supreme Court Judge Matthew A. Sciarrino ruled Twitter Inc. must turn over information about Occupy Wall Street protester Malcom Harris' tweets. The ruling denied the company's request to quash a subpoena from Manhattan District Attorney Cyrus Vance, Jr. Twitter must turn over tweets posted by Harris from September 15 to December 30, 2011. Harris was arrested with about 700 other protesters on the Brooklyn Bridge on October 1.

The number of people asking the US Supreme Court to take up their cases has been on a very slight declining trend over the last six years.  The blue bars are petitions for which the filing fee has been paid.  The red bars are petitions "in forma pauperis," asking for a fee waiver due to indigence.  These petitions are mostly criminal defendants and prison inmates.

Click on the graph for a larger version.

News Scan

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North Carolina Legislature Overrides Racial Justice Act Veto: Jake Seaton of NBC17.com reports the North Carolina state Legislature on Monday voted in favor of overriding Governor Perdue's veto of changes to the Racial Justice Act. The new law limits how statistics can be used by death penalty defendants trying to prove racial bias was a factor in their case. "The House override vote was 72-48 - exactly [the required] 60 percent majority."

Death Row Inmate Reveals Failed Oyster Suicide Plan: Christina Ng of ABC reports Connecticut death row inmate Steven Hayes revealed in a recent interview his failed plan to commit suicide by eating a dozen oysters. He is deathly allergic to oysters. Hayes, who was sentenced to death for the 2007 home invasion murders of a woman and her two daughters, said he wrote a series of letters in which he bragged about killing 17 other women, hoping that the letters would be intercepted and turned over to law enforcement authorities. Hayes hoped that once authorities believed he was a serial killer, they would offer him pizza, soda, and a dozen oysters with hot sauce in exchange for information on the killings. "I planned to eat them and have them find me dead in my cell the next morning," Hayes said. Hayes has attempted suicide several times before, but says he will not give up his appeal because he promised his lawyer he wouldn't do that.

LAPD Embraces "Predictive Policing": Greg Risling of the Associated Press reports a new "predictive policing" program being used by the Los Angeles Police Department and police in Santa Cruz uses the same model for predicting aftershocks after an earthquake to determine where to send police officers to intercept crimes in progress and deter would-be criminals. The program has been implemented in five LAPD divisions that cover roughly 1.3 million people. There are plans to implement the program citywide by next summer.

Jerry Brown Shifts More Crimes: Don Thompson of the Associated Press reports California Governor Jerry Brown last week signed legislation that shifts ten crimes back to state prisons that had been shifted to county jails under realignment. The new law also shifts additional crimes to county jails, including possession of certain dangerous items such as certain explosives, various knives, and weapons like guns or swords hidden in other objects. Check fraud and defrauding the state's food stamp program are also now punishable by stays in jail instead of prison. Senator Doug La Malfa said he was "mystified about how this is going to help public safety in California." Another new law will allow sheriffs to release inmates up to 30 days early, up from five days, to comply with jail population caps. Inmates can also be released on electronic monitoring immediately instead of having to first serve at least 30 days in jail for a misdemeanor or 60 days for a felony. Assemblyman Jim Nielsen (R, Gerber) said the changes mean "more un-rehabilitated criminals on the streets, serving only a tiny fraction of their sentences in jail."

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