August 2012 Archives

One of the most effective speakers at the just-concluded Republican National Convention was former Congressman Artur Davis (formerly D - Ala).  His previous convention speech was in 2008, when he nominated Barack Obama for the presidency.  This year, he asked forgiveness for his error and wowed the audience.  Nothing like that convert zeal.

So do the Democrats have a convert for their convention?  Yes, they do, and stunningly it is Governor Lincoln Chafee (nominally I - RI).  Ted Nesi has this story for WPRI.

Governor Chafee is presently involved in litigation with the Obama Administration, in which Chafee is trying to help murderer Jason Pleau get off with less than he deserves.  Pleau is being prosecuted by the feds, who intend to seek the death penalty.  The basis of Chafee's objection is not that Pleau's crime should not be considered federal (which I have previously noted would be a defensible position), but merely that Chafee disagrees with the policy decision of Congress to permit the sentence of death in cases such as this and the decision of DoJ to seek that penalty in this particular case.  The plea of Deborah Smith, the victim's sister, fell on deaf ears.

Chafee lost the battle in the First Circuit (post here), and the case is presently pending in the Supreme Court as Chafee v. United States, No. 12-223.

Chafee probably won't mention Jason Pleau or Deborah Smith in his speech.  The campaign probably won't explain why it invited a murderer-friendly obstructor of justice.

News Scan

| No Comments
50-Page Limit for CA Successive Habeas Petitions: Scott Graham of The Recorder reports on the California Supreme Court's ruling Thursday, that all successive capital habeas corpus petitions be limited to 50-pages, spelling out which claims are new, which have been previously raised and rejected, which could have been raised, and which claims a federal court deemed unexhausted. A violation of the page limit may result in financial sanctions, State Bar discipline, or both. There will continue to be no limits on initial habeas petitions. The court found the second state habeas petition filed in In re Reno was an abusive writ, according to Justice Kathryn Mickle Werdegar for a unanimous court. The 2004 writ was 519 pages long and raised 143 claims, many of which had been raised and rejected in Reno's first petition.

CA Death Row Inmate Attacks 2 Prison Guards: Jason Kandel of NBC Los Angeles News reports San Quentin death row inmate Timothy McGhee allegedly attacked two prison guards with a shank when returning to his cell after a shower Thursday. The guards suffered slash wounds to their head, neck, and arms. McGhee was a former gang leader in LA called Toonerville which had about 200 members. He was previously one of the United States Marshals Service's Top 15 Most Wanted Fugitives, and was arrested in 2003 following a three year international manhunt. In 2009, McGhee was convicted and sentenced to death for killing three people from 1997 and 2001, and attempting to kill one other.  Terri Thornton, a spokeswoman with the California Department of Corrections and Rehabilitation said the motive for the attack is unknown.

LA County Utilizes Inmate Screening Software: Jason Song of the Los Angeles Times reports Los Angeles county will begin using a computer software to help the Sheriff's Department decide which jail inmates to let out early. The program, dubbed Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS, places inmates on a 10-point scale to determine their likelihood to reoffend. It considers data compiled from a 137-question survey completed by each inmate. The questions address inmate personalities, emotions, anger management, family history, drug use, and gang activity. The program has already classified 45% of about 3,400 surveyed inmates as low-risk and eligible for electronic monitoring.  Convicts determined to be low-risk would be subject to three additional reviews prior to release. Sheriffs' officials must prove to the Board of Supervisors that the software will not create any new threats to public safety before it can be fully deployed.

Death Sentence for Penn. Torture Killer:
The Associated Press reports on a Pennsylvania jury that recommended the death penalty for murderer Melvin Knight, Thursday. Knight pleaded guilty to participating in the kidnap and torture killing of a mentally disabled woman in 2010. Knight and his accomplices bound the victim in his apartment with Christmas lights, cut off her hair, and sexually assaulted and tortured her for two days.  They then forced her to drink a mixture of human waste, bleach, and prescriptions. When she did not die, Knight stabbed the victim, then choked her with the lights. Knight and an accomplice Ricky Smyres wrapped the victim in plastic and dumped her body in a trash can. Another accomplice, Smyres then-girlfriend, Angela Marinucci, was sentenced to life in prison. Amber Meidinger, who has a child with Knight, was also a participant and is awaiting trial and a possible death sentence. Smyres, who did not enter a plea, will be tried in October.
The US Supreme Court has once again granted certiorari in a couple of cases in a midsummer orders list, a departure from usual practice.

The criminal case taken up is Descamps v. United States, No. 11-9540.  The Ninth Circuit's unpublished opinion in the case is here.  The case has to do with sentence enhancements for prior convictions, in this case a California commercial burglary.

The Ninth Circuit opinion rejected two arguments.  One was an Apprendi-based argument that priors such as this one must be found by the jury.  The Supreme Court rejected that argument in Almendarez-Torres v. United States, 523 U.S. 224 (1998), but that precedent is considered by many to be a ripe target for overruling.

The second argument is that California's definition of "burglary" is too broad to qualify as "burglary" for the purpose of the federal sentencing statute.  This is a chronic problem in recidivist sentencing when priors come from other jurisdictions with different definitions.

The order granting certiorari limits the case to one of the questions presented.  From Lyle Denniston's post at SCOTUSblog, that appears to be the burglary-definition question.

Update:  The Questions Presented, as framed by the petitioner, are now available here.  Question 1, which the Court agreed to take up, is:

Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011), (En Banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it.
Question 2, which the Court turned down, was the Almendarez-Torres question. The fact that there are not four votes to take up that question, even while the Court takes up a case presenting it on another issue, indicates that Almendarez-Torres is not as ripe for overruling as many have thought.

Burying the Courts in Paper

| 2 Comments
Part of the strategy against the death penalty is to bury the courts in reams of paper containing every conceivable claim, most of which are bull manure.  Today the Justices of the California Supreme Court said unanimously that they are mad as hell and not going to take it any more.  Well, not exactly in those words, but close.  "[I]t is the considered opinion of the court that we face an emergency situation in which the time and effort required to read and evaluate wholly meritless and abusive exhaustion petitions threatens to undermine the proper functioning of this court."  (In re Reno, S124660.)

Wait, don't the ABA Guidelines require that "Post-conviction counsel should seek to litigate all issues, whether or not previously presented, that are arguably meritorious under the standards applicable to high quality capital defense representation, including challenges to any overly restrictive procedural rules"?  Yes, but California's high court told the ABA it doesn't much care what they think, citing the U.S. Supreme Court opinion in Bobby v. Van Hook.  "Habeas corpus counsel, like appellate counsel, 'performs properly and competently when he or she exercises discretion and presents only the strongest claims instead of every conceivable claim.' "  The inner quote is from In re Robbins, which in turn relies on the U.S. Supreme Court opinions in Jones v. Barnes and Smith v. Murray.  See CJLF Brief, p. 9.

The court made some changes in the way all habeas petitions after the first will be handled.  The petitioner is strictly limited to 50 pages unless permission is granted to exceed that limit.  (Look for permission to be asked in every case.)  The reason(s) why the claim is not defaulted must be specified in the initial pleading; no waiting for later in the process.  Defense counsel are on notice that sanctions may be imposed for filing frivolous or abusive petitions.

A big part of the problem here is that capital appellate and habeas representation has become the domain of anti-death-penalty crusaders who do not want the system to work.  Recruitment of noncrusaders has been hampered by the admonitions from the ABA et al. that these massive briefs, the writing of which consumes one's whole practice for years, are ethically required.  Now that the court has clarified that they are ethically forbidden, perhaps we can broaden the pool.

The problems in California's death penalty are fixable.  If the Legislature won't act, many of the needed changes can be made judicially.  Today's decision is a step in the right direction.

Update (rev) (8/31):  Scott Graham has this article for The Recorder on law.com.  Reports of this important case are curiously absent from California's general-interest newspapers.

News Scan

| No Comments
Fresno's Overcrowded Jail to Open Another Floor: Kurtis Alexander of the Fresno Bee reports Fresno County Jail will open another floor of the jail as a result of jail overcrowding Saturday. The floor will add another 423 beds for inmates, reducing the number of early releases in response to the rise in Fresno's crime rates. County officials will also begin electronically monitoring all pretrial inmates next week. The remaining closed floor of the jail is expected to open as soon as December, funding permitting.

TX Voter ID Law Rejected: CBS News and the Associated Press headline report that in the case of Texas v. Holder a three-judge federal court panel struck down the Texas Voter ID Law Thursday. Under the law, TX voters would have been required to present a photo ID to cast a ballot this November. The panel ruled the law would burden the poor in the state, particularly racial minorities. Another 3-judge panel in the same federal court is expected to rule on the South Carolina Voter ID Law before the November election.

9th Circuit Cites Batson Error to Overturn Murder Conviction: Steve Eder of the Wall Street Journal reports the U.S. Court of Appeals for the Ninth Circuit reversed a trial court in the case of CA Death Row inmate Hector Ayala Wednesday. Ayala was convicted and sentenced to death for murdering three people during the commission of an auto shop robbery, although he maintains his innocence. During the 1989 trial, Ayala's attorneys claim that the prosecution dismissed jurors based on their race. The judge in the case heard the prosecutors reasons for striking the jurors but did not reveal them to Ayala or his attorneys. In a divided  opinion authored by Judge Steven Reinhardt, the court ordered that Ayala be released unless he is retried. The prosecution is expected to file an appeal.

IN Sex Offender Registry Violates Ex-Offender Due Process: Maureen Hayden of CNHI News reports a 3-judge federal appeals court panel ruled Indiana's publicly accessible sex offender registry was unconstitutional and violated ex-offender due process rights by not allowing for corrections of mistaken information. The database contains the addresses, pictures, and other personal information of sexual and violent criminals living in the state. The Indiana Department of Corrections allows sexual or violent criminals to challenge registry errors while incarcerated, but not after being released. State legislators are being urged to find a way to correct inaccuracies in the registry.

Crime, Punishment, and Chimpanzees

| 1 Comment
Humans value justice for its own sake.  There is a lot of research showing that people will punish wrongdoers even when they get no personal benefit from doing so, and up to a point even when it costs them to do so.  In this and other aspects of social life, humans are unique among primates.  New research with chimps confirms this.  Monte Morin reports in the LA Times:

Despite being one of the closest living relatives to humans, chimps lack the urge to punish thieves who are caught red-handed, unless they themselves are the victims, according to a study published Tuesday in the Proceedings of the National Academy of Sciences.

In a series of experiments involving 13 furry subjects with names like Frodo, Natascha and Ulla, the animals showed no interest in intervening when they observed a fellow chimpanzee purloining grapes and food pellets from a third chimp.

It was only when a chimp had their own treats stolen that they they got angry and took action - in this case, by opening a trapdoor on the miscreant.

News Scan

| No Comments
Mumbai Attacker's Death Sentence Upheld: Pratap Patnaik of Bloomberg News reports a two-judge India Supreme Court panel upheld the death penalty for gunman Mohammed Ajmal Kasab. In the 2008 Mumbai terrorist attacks on India's financial capital, 166 people were killed by attackers armed with assault rifles and grenades during an assault lasting over 60 hours. Kasab was the only attacker caught alive. Kasab can seek a top court review of the case or appeal for presidential clemency.

NY Child Killer Sentenced 40 Years to Life: Colleen Long of the Huffington Post headlines Levi Aron was sentenced to 40 years to life Wednesday. Aron had pleaded guilty to kidnapping, killing, and dismembering an 8-year-old boy who approached him for directions in Brooklyn. The boy lost his way home from a religious day camp. Aron bound, drugged and suffocated the child after he saw missing person fliers and panicked. Aron then dismembered the boy. His feet were in Aron's freezer, and his body, legs severed from his torso, was found in bags inside a red suitcase in the trash a mile from Aron's apartment.

NY to Increase Use of TV Prison Visits: Oren Yaniv of the Daily News reports NY will be quadrupling its closed-circuit TV prison visit program in the fall. Family visitations under this program consist of inmates talking with family members via a large screen, and can be allowed more often than physical visits. The program is currently being implemented in Albion women's prison, and will be expanding to numerous male-only prisons across the state. NY corrections officials also intend to continue in person visits.


A Ninth Circuit Post-Pinholster Case

| 1 Comment
In 1988, 12-year-old Cassie Holden was murdered by Jonathan Gentry.  Gentry was sentenced to death.  Trial and two rounds of state court review were completed in 1999.  Then the case took 10 years in federal district court on habeas corpus, about as long as the state trial, direct appeal, and collateral review put together.  This was followed by three years on appeal.

The Ninth Circuit decided the appeal today in Gentry v. Sinclair, No. 09-99021.  The most interesting part of the opinion is the application of Cullen v. Pinholster.  That is the case where the Supreme Court finally clarified what should have been clear since AEDPA was enacted 15 years earlier.  Whether a state court decision is reasonable must be decided on the record before the state court.  A decision cannot be rendered unreasonable by information never presented to the decider. 

The Gentry decision holds that Gentry's ineffective assistance claim was reasonably decided on the merits by the state court, even though the claim in federal court is not exactly the same as the one presented to the state court.  "The district court [had] held that the mental health claim was not factually developed and was thus unexhausted."

Proper application of Pinholster would greatly reduce the need for discovery and evidentiary hearings in federal court.  A "claim" should be understood as the legal basis for overturning a judgment.  Ineffective assistance of counsel is one "claim," at least as to each phase of the trial, regardless of how many failings of counsel are alleged in support of that claim.  If the ineffective assistance claim is made in the state court and reasonably rejected on the record before that court, that is the end of that claim.  See CJLF's brief in Bell v. Kelly.

News Scan

| No Comments
Death Penalty for Killer of Fellow Prisoner: Justin Lewis of KATV reports that Charles Moorman received a death sentence in Arkansas Monday. Moorman was convicted of stabbing a fellow inmate to death in the prison laundry room in 2010. Moorman was serving five consecutive life sentences without parole for five previous murders he admitted to. Prosecuting attorney Kyle Hunter said considering Moorman's criminal past and the current incident, the death penalty was appropriate.

CA Death Row Inmate Suicide Under Investigation:
Mary Slosson of the Chicago Tribune reports San Quentin death row inmate Kenneth Friedman died in an apparent suicide Sunday. CDCR Spokesman Sam Robinson said Friedman did not have a cell mate, but declined to state how he was found. Friedman was convicted of the abductions and strangulation of two men from their place of work in 2004. No definitive pronouncement as to Friedman's cause of death can be made until the prison receives the coroner's review.

Speed Freak Killer Further Aids Investigators: Fox News headlines Speed Freak Killer Wesley Shermantine was let out of San Quentin Sunday to help investigators locate victims. Bounty hunter Leonard Padilla believes Shermantine is being offered a reward by the FBI per body. Shermantine had previously provided investigators maps which had led to three locations and 10 bodies being found. Padilla believes the area Shermantine and investigators went Sunday contain 4 more wells with victims. According to Shermantine, he and his accomplices killed 72. If more remains are identified from Sunday, Shermantine will be let out of death row again.

21 Detroit Serial Rapists Identified:
Abigail Pesta of the Daily Beast reports the logging and testing of 11,303 forgotten   rape kits, led by Detroit prosecutor Kym Worthy, has identified 21 serial rapists from the first 153 which have been tested. Another 38 DNA matches were also identified in CODIS. The rape kits were stumbled upon in 2009. The logging of the kits has proven challenging due to a lack of an accompanying police report. Each kit must not only be tested, but logged. A $1M federal grant will cover testing for about 1,600 of the rape kits found.

4 Soldiers in Anarchist Militia Group Suspected of Double-Murder:
Fox News, with the contribution of the Associated Press, has this article about four army soldiers who shot and killed a former-soldier and his girlfriend in the woods last December. The soldiers' motive was to protect their plot to overthrow the U.S. government and assassinate the president. The four were part of an anarchy militia group called Forever Enduring Always Ready, consisting of current and former U.S. military members. F.E.A.R.'s founder and leader invested $87,000 for weaponry and bomb components for attacks. According to prosecutor Isabel Pauley, the group was fully capable and taking action. Authorities still do not know how many members there are. The four face multiple felony charges including felony murder, using a firearm while committing a felony, aggravated assault, and criminal gang activity. One of the soldiers pleaded guilty Monday to manslaughter, illegal gang activity, and other charges. The hearing for the other three is set for Thursday.

Dope

| No Comments
Associated Press reports:

Teens who routinely smoke marijuana risk a long-term drop in their IQ, a new study suggests.

The researchers didn't find the same IQ dip for people who became frequent users of pot after 18. Although experts said the new findings are not definitive, they do fit in with earlier signs that the drug is especially harmful to the developing brain.

"Parents should understand that their adolescents are particularly vulnerable,'" said lead researcher Madeline Meier of Duke University.

Study participants from New Zealand were tested for IQ at age 13, likely before any significant marijuana use, and again at age 38. The mental decline between those two ages was seen only in those who started regularly smoking pot before age 18.

Richie Poulton, a study co-author and professor at the University of Otago in New Zealand, said the message of the research is to stay away from marijuana until adulthood if possible. "For some it's a legal issue," he said, "but for me it's a health issue."

*                           *                          *
Those deemed dependent in three or more surveys had a drop averaging 8 points. For a person of average intelligence, an 8-point drop would mean ranking higher than only 29 percent of the population rather than 50 percent, the researchers said.
The study abstract is after the jump.  The U. Otago press release is here.

Our Friend Ted Cruz Speaks Tonight

| No Comments
Kent and I noted the recent victory of former Texas Solicitor General Ted Cruz in the runoff to be the Republican candidate for the Senate from the Lone Star state.  Ted is a serious thinker  --  relatively rare for a politician  --  and a friend of those who are serious about holding criminals accountable.  Those who have not heard him before will have the chance when he addresses the Republican National Convention tonight at approximately 9:30 EDT.

Social Impact Bonds

| No Comments
Now here is an interesting idea.  The Big Apple government has this press release.

Mayor Michael R. Bloomberg, Deputy Mayor for Health and Human Services Linda I. Gibbs and Correction Commissioner Dora B. Schriro today announced that the City will award a contract for the nation's first Social Impact Bond, an innovative way to fund promising new programs at no cost to taxpayers. As part of the Young Men's Initiative, this investment will support a new evidence-based program for young adults on Rikers Island. The program - the Adolescent Behavioral Learning Experience (ABLE) - focuses on personal responsibility education, training and counseling, with the goal of reducing the likelihood of reincarceration. In this new model, private investors fund the intervention through a nonprofit contractor and the government pays the contractor only if the program meets its goals. Goldman Sachs will provide financing, Bloomberg Philanthropies will provide grant support for the effort and MDRC, a leading non-profit, will oversee project implementation.
*                                   *                                 *
An independent evaluation, conducted by the Vera Institute of Justice, will assess the rates of reincarceration and determine the program's effectiveness over time. If the program does not meet its targets for reducing reincarceration, the City pays nothing. For Goldman Sachs to break even on its original investment, the program will need to reduce reincarceration by 10%.
I am deeply skeptical of the claims of "evidence-based" rehabilitation practices, because I know how easy it is for interested parties to produce "evidence" that is complete hogwash.  I also know how the amount of scrutiny that any research receives is strongly influenced by its Political Correctness quotient:  intense and hostile for research with conservative implications and vastly more lax for research with liberal implications.  But if Goldman Sachs' own money is on the line, they will surely examine the evidence of program effectiveness meticulously, and PC quotient be damned.
One flaw I see here is having the Vera Institute do the results evaluation.  That organization has a strong ideological interest in seeing rehabilitation programs declared "effective." A less interested evaluator would have been a better choice.
As bad as insanity defenses usually are, the "too drunk to form intent" excuse belongs in a lower pit of judicial hell.  For noncapital cases, at least, some states have abolished this defense altogether, and one such statute was upheld (with a little help from yours truly) in Montana v. Egelhoff, 518 U.S. 37 (1996).  Experts who testify for this defense seem to misunderstand how rudimentary the mental states of intent and premeditation really are.  Some of them seem to think these are very high cognitive levels, such that only philosophers can commit first-degree murder.  If a squirrel buries a nut, he does it on purpose and not by accident.  That is intent.  He intends to dig it up later and eat it.  That is premeditation.  How impaired does a homo sapiens have to be before his cognitive ability falls below the capacity to form such rudimentary thoughts?  A human who is too drunk, stoned, or whatever to form intent is probably passed out on the floor and unable to commit the actus reus.

In mental defense cases, the defendant's mind is part of the crime scene.*  The prosecution has to be able to inspect it, i.e., conduct its own mental examination.  In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court said that use of a psychological examination ordered by the court in a case where the defendant was not raising a mental defense violates the Fifth Amendment privilege against self-incrimination.  Then in Buchanan v. Kentucky, 483 U.S. 402 (1987), the Court said the prosecution could conduct and use such an examination when the defendant does raise a mental defense.

Where the mental defense is not the affirmative defense of "not guilty by reason of insanity" but instead the "too intoxicated to form intent" [or premeditation] defense, does the case come under Smith or Buchanan?  Seems pretty obvious to me that Buchanan governs.  The distinction between an affirmative defense and negating an element of the offense is irrelevant here.  The defendant is claiming that an abnormality in his brain negates his guilt in a case where the objective circumstances would otherwise establish it, and the need for examination of his "crime scene" mind is the same in either case.  Whether that abnormality is the result of permanent disease or temporary substance-induced buzz makes no difference.

The Kansas Supreme Court didn't see it that way Friday in State v. Cheever, No. 99,988. 
Police in many cities are accused of racial discrimination in making traffic stops.  The issue is a difficult one to study empirically.  The simplistic comparison of stop rates with population is obviously wrong, because we know that violation rates are not uniform.  The obvious wrongness does not stop professional offense-takers from making the comparison, of course.

The title of this post is the title of an article in Police Quarterly.  The researchers compared stop rates in daytime with those at night, when it is more difficult for an officer to see the race of the driver before making the stop.  The result:  no difference.

Citation and abstract follow the jump.

News Scan

| No Comments
Riverside Jail Releases To Reach All-Time High: Kate McGunty of iSun Investigative Blog reports Riverside County has released a record-setting 4,000 inmates from jail early under realignment. The current record-high is 6,001 released in 2007. Riverside is on schedule to beat that record this year. The U.S. Ninth Circuit Court of Appeals had imposed an Aug. 17 deadline to reduce state prison overcrowding. As a result, jails are now facing overcrowding. The Fresno County jail has seen a 30% jail population increase, and is now facing a class-action lawsuit as a result for poor medical care.

Realignment to Reduce Inmate Firefighters:
Kerana Todorov of the Napa Valley Register reports the number of volunteer inmate firefighters housed in CDCR fire camps is expected to dwindle. The 3,900 CalFire inmate firefighters currently working in these fire camps were convicted of non-violent, nonviolent, and non-sexual offenses. Under realignment, this class of felons will be sentenced to county jail, home detention or treatment programs.  Calfire Chief Tim Streblow of the Sonoma-Lake-Napa unit explains the future of this important source for firefighting will be undetermined until more realignment data becomes available. Napa Valley County Board of Supervisors Chairman Keith Caldwell says one possibility is housing county jail inmates at fire camps with counties paying $46.19 per day per inmate, although it would cost counties less ($8 - $10 per day) for electronic monitoring or home detention.

CA Death Sentence Reversed, Conviction Upheld: Howard Mintz of Mercury News reports the CA Supreme Court unanimously reversed the death sentence in the 1987 case of Santa Clara double murderer Miguel Bacigalupo Monday. Bacigalupo was convicted of killing two brothers who owned a jewelry store during a heist. The court found the prosecution failed to turn over key evidence that a Columbian drug cartel ordered the kill, which may have resulted in a jury recommendation of life without parole. Bacigalupo's conviction was left intact, but the court ordered a new penalty phase. Bacigalupo has a separate appeal pending in the CA Supreme Court challenging his conviction. The opinion is here.

Sex Offenders Are Not Loners

| 2 Comments
According to a new study, sex offenders who kill are not the typical loners many consider them to be.  Rather, they are quite deft at social interactions.

One of the largest studies of sexual killers ever undertaken in Canada has turned up some surprising findings about how socially normal they may actually appear.

Contrary to previous research, B.C. criminologist Eric Beauregard says his study's larger sample size shows sexually motivated killers aren't generally loners.

"Many of these guys were looking to have social activities with people and they were good at interacting with people," said Beauregard, who teaches at Simon Fraser University in Burnaby, B.C.

Beauregard says a significant number of sexual killers developed the social skills necessary to get close to their victims.

"So it's important to consider the fact that some of these guys are actually good with people and instead of using a blitz approach to get their victims, they can actually use a ruse or a con," he said.

The study, which was conducted with Melissa Martineau of the RCMP, looked at 350 solved and unsolved cases of sexual homicide dating back 62 years from across Canada, with the aim of helping police investigators investigating similar crimes.


Diffusion of Responsibility on Steroids

| 7 Comments
One of the more annoying things about the gun control debate is the phrase, "gun violence."  The phrase is used by gun control advocates to imply that the problem is the gun, not the person doing the shooting.  They might just as well call it "finger violence," since the finger to pull the trigger is needed just as much as the gun. Oddly, I have yet to hear anyone complain about "finger violence."

The displacement of responsibility onto something  --  anything  --  else is one of the favorite tactics of criminal defense.  After all, if the gun did it  --  or the brain lesion, or the botched Head Start program 30 years ago, or that one Twinkie too many  --  then it would be unfair to send the defendant to the slammer.

Overlawyered has an example of an attempt, fortunately unsuccessful, to blame a barroom fight on what I guess should be called "beer bottle violence":

A Texas appeals court has affirmed the dismissal of a lawsuit seeking to hold Anheuser-Busch liable for an assault suffered by a bar patron. The suit alleged that the long-neck design of the bottle made it too attractive for assailants seeking a weapon; the court agreed with the brewer that the plaintiff had failed to make out a sufficient case to avoid summary judgment. 

You really do have to be creative to think of this stuff.


Maybe Professor Kingsfield was on to something.  Karen Sloan reports in NLJ:

Few law students look back fondly on taking the Law School Admission Test, but those who spend a lot of time studying for it may see benefits beyond higher scores.

Researchers at the University of California, Berkeley Department of Psychology and U.C.'s Helen Wills Neuroscience Institute have found that intensive LSAT study alters the brain, reinforcing circuits and helping bridge the gap between its right and left hemispheres.

"The fact that performance on the LSAT can be improved with practice is not new," said graduate student Allyson Mackey, the lead researcher. "What we were interested in is whether and how the brain changes as a result of LSAT preparation -- which we think is, fundamentally, reasoning training. We wanted to show that the ability to reason is malleable in adults."

Eureka

| 1 Comment
"Eureka," according to Wikipedia, "is an interjection used to celebrate a discovery, a transliteration of a word attributed to Archimedes," meaning "I have found (it)."  The word sits atop the California State Seal, a legacy of the Gold Rush.  A city by that name sits on the north coast, about 100 miles south of the Oregon boundary.  What are they finding in Eureka today?  What persons of sense have known was coming.  Kaci Poor reports for the Times-Standard:

With local petty crime arrests soaring past last year's average, Eureka Police Chief Murl Harpham points to the state's public safety realignment plan.

"Property crime is up 10 percent, larceny is up 32 percent and car theft is up 102 percent," he said. "These numbers are just skyrocketing. We are getting hit hard."

Overall, Harpham said, arrests are up 20 percent from last year.

"We have arrested 536 more people this year than last year, and are averaging about 500 arrests a month," Harpham said. "Those numbers are a big increase."

News Scan

| 1 Comment
Father of Victim Opposes Killer's Name Change: Victoria Warren of Fox 7 News reports the father of murdered 10-year-old victim filed a petition Thursday fighting the attempt of convicted killer Charles Jaynes to change his name. Jaynes is attempting to change his name to Manasseh-Invictus Auric Thutmose V for allegedly religious purposes as a newly practicing Wiccan. Jaynes was found guilty of kidnapping, raping, abusing, and dumping the body of 10-year old Jeff Curley in 1997. The victim's father, Robert Curley, argues the name change would be a public safety threat. Jaynes could be anywhere and nobody would know he was the man convicted of second-degree murder.

Empire State Building Shooter Killed By Police: David Ariosto of CNN reports a former Empire State Building worker, Jeffrey Johnson, was killed by officers during a shoot out with NY police Friday. Johnson killed one coworker and wounded at least 8 in the course of the shooting. Some of the injured are believed to have been hit by ricocheting bullets, though none of the injuries are reported to be life-threatening. Johnson was a designer of women's accessories at Hazan Imports and was laid off last year. The Empire State Building has resumed full operations.

DNA Test Can Predict Suspect Hair and Eye Color
: Paul Rincon of BBC News reports a forensic test has been developed which can predict a suspect's hair and eye color from crime scene DNA.  The test can be done with smaller samples than for DNA profiling. The test is called the Hirisplex system, and predicts traits such as eye and hair color, called phenotypes, from information in the DNA, and includes the 24 best eye and hair DNA markers. It is hoped to help authorities identify completely unknown suspects. The findings are in the Journal of Forensic Science International in Genetics, and were outlined at the sixth European Academy of Forensic Science conference in the Hague.

Courtroom Shut Down Due to Bug-Ridden Witness:
CBS Detroit reports the courtroom of Judge Cylenthia Miller in Detroit's 36th District Court was evacuated after a man with insects -- likely bedbugs, cockroaches, or fleas - crawling on him showed up to serve as a witness. Pest control has been called to spray. The courtroom has not yet reopened.   

News Scan

| No Comments
Texas Inmate Granted Stay of Execution: The Associated Press reports less than one hour before being executed in Texas, the U.S. Supreme Court granted John Balentine his third stay of execution Wednesday. He had previously won reprieves from the U.S. Supreme Court last year and the U.S. Court of Appeals for the Fifth Circuit in 2009. Balentine successfully argued his trial lawyer failed to present mitigating evidence that could have gotten him life in prison, such as emotional issues and a troubled childhood. Previous news scan here.  See also this post.

Three-Strikes Change On November Ballot:
Andy Furillo of the Sacramento Bee reports Proposition 36 seeks to change California's Three-Strikes law. The law grants judges the ability to impose a life sentence in any case where an offender has committed any third felony, as long as the two previous convictions were "serious" or "violent," terms which refers to specific lists of felonies in California law. It originally passed in 1994 with a 72% for and 28% against vote. Prop 36 would change the law by limiting it to criminals whose third felonies are serious or violent, with some exceptions. If Prop 36 passes, an estimated 3,000 of 8,873 3rd-strike inmates will be able to apply for re-sentencing hearings as of June 30. Sacramento County District Attorney Jan Scully opposes the change. Prop 36 will be on the November ballot.

Parole Denied 7th Time for Lennon's Shooter: The Associated Press reports Mark David Chapman was denied parole for the 7th time by a 3-member NY parole board. Chapman was convicted of 2nd-degree murder in the 1980 shooting of ex-Beatle John Lennon outside Lennon's apartment building, in front of his wife, Yoko Ono, and other witnesses. Chapman considered killing Johnny Carson or Elizabeth Taylor, but chose Lennon because he was more accessible. He believed by killing Lennon he would acquire his fame, and was sentenced to 20 years in prison after pleading guilty. Ono believes Chapman is a danger to her, her family, and himself and asked that he remain in prison. Chapman can file again for parole in 2014.

An Overview of last Term's Criminal Law Cases

| 2 Comments
Last June brought an end to one of the less appetizing SCOTUS Terms as far as criminal (and other) cases are concerned, but Lance Rogers of the BNA's Criminal Law Reporter does a nice job summarizing them, with commentary  from Jeff Fisher of Stanford's Supreme Court Litigation Clinic, Laurie Levenson of Loyola, Bruce Green of Fordham, our own Kent Scheidegger, and yours truly, trying but not fully succeeding to be philosophical about it all.

Attorney-Client Privilege

| 3 Comments
Folks on the criminal defense side of the aisle demand absolute sanctity for the interaction between defense lawyers and defendants.  The reality, though, is that some abuse the privilege.  Henry K. Lee reports in the SF Chron:

An attorney was arrested for allegedly smuggling drugs to an inmate at the San Mateo County Jail in Redwood City, authorities said Wednesday.

Erika Jordening, 43, of Pacifica passed an unspecified drug in pill form to Aaron Rauls, 43, at the Maguire Correctional Facility on Bradford Street on Tuesday, said San Mateo County sheriff's Lt. Larry Schumaker.

The alleged transaction occurred during a confidential attorney-client meeting, Schumaker said.
The special privilege that attorneys get to visit prisoners confidentially demands special accountability when the privilege is abused.  If the allegations are true, Jordening should be permanently disbarred and permanently banned from visiting any correctional facility.  Let her make her living driving a cab.

Indiana Study Refutes Sentencing Myth

| No Comments
Maureen Hayden reports for CNHI from Indianapolis:

A closer look at low-level offenders in Indiana prisons reveal few of them are first-time criminals. A yet-to-be released study of state prison inmates convicted of class D felonies - the lowest felony level in Indiana - shows they had an average of five prior criminal convictions.

The study also shows that of those first-time offenders who did go to prison on a class D felony conviction, nearly 80 percent of them did so for committing a violent crime such as battery or domestic violence.

The study upends the premise that drove the sentencing reform effort that failed in the last legislative session: That is, that prosecutors and judges were crowding state prisons with low-risk, first-time offenders.

"It shows we aren't sending beginners to prison," said David Powell, executive director of the Indiana Prosecuting Attorneys Council.
DAs and judges around the country have known this the whole time.  A sentence to state prison requires a felony offense, and it generally requires both that the DA ask for a prison sentence and that the judge determine that such a sentence is appropriate.  Mandatory minimums of state prison sentences are not common in state sentencing laws.  Yet the soft-on-crime crowd has been curiously successful in creating a false public impression that we are packing off large numbers of people to state prison for minor offenses such as possessing marijuana for personal use.  A large part of this success has been due to the fact that much of the funding for studies comes from lavishly endowed foundations that have been captured by the left wing, spending the money on causes that would have horrified their founders.
Cully Stimson has this article at the Heritage Foundation.

Abstract: For almost a decade, activists have asserted that, through the mechanism of the Eighth Amendment's prohibition on "cruel and unusual punishments," international law either forbids or constrains states from exposing the roughest juvenile criminals to the toughest sentences. Relying in part on those arguments, the Supreme Court of the United States has diminished sentencing options, for adult and juvenile offenders alike, at every turn. However, in Miller v. Alabama, foreign and international law are conspicuous only for their absence. This may signal a welcome shift in the Court's jurisprudence. Activists will no doubt continue to cite foreign and international sources in making their cases against domestic sentencing practices, but Miller at least suggests that the Court has grown wary of such arguments.

Henry K. Lee reports in the SF Chronicle:

A state prison inmate already serving a life term for murder has been sentenced again to life after admitting he killed a man and a woman just 12 days apart in Alameda nearly 16 years ago.

Eugene Albert Protsman, 57, was sentenced Monday by Alameda County Superior Court Judge Carrie Panetta after he pleaded no contest to the first-degree murders of Manuel Garcia, 59, and Diane Ely, 54, authorities said.

Panetta sentenced Protsman - who also admitted to the special circumstance of committing multiple murders - to life in prison without the possibility of parole, a sentence identical to one he is serving for killing a woman with a hammer in San Diego County.
The story doesn't say why the DA agreed to a sentence that is effectively no punishment at all.  Perhaps it was the excessive expense and needlessly long delays in carrying out capital punishment in California.  A 57-year-old man sentenced to death is unlikely to be executed before he dies of natural causes in California.  In Virginia, where 6 years from sentence to execution is normal, Protsman could have been punished for the additional murders.

Crackpots on the Bench

| No Comments
It seems that C&C has noticed that crackpots, dullards and head cases are much in the news, ranging from Rep. Akin to the Minnesota legislature to Eric Holder's policy to affirmatively seek out schizophrenics and morons for positions in the Department of Justice (as long as they're "qualified," and no, I'm not making that up either).

Courtesy of longtime reader notablogger, I bring you the most recent addition, that being Texas state Judge Tom Head.  Judge Head believes that if President Obama is re-elected, there is going to be rioting in the streets, and we'll be lucky if it stops at that.  As CNN reports:

Obama, Head said, will "try to give the sovereignty of the United States away to the United Nations. What do you think the public's going to do when that happens? We are talking civil unrest, civil disobedience, possibly, possibly civil war ... I'm not talking just talking riots here and there. I'm talking Lexington, Concord, take up arms, get rid of the dictator. OK, what do you think he is going to do when that happens? He is going to call in the U.N. troops, personnel carriers, tanks and whatever."

I'm no fan of President Obama.  His appointments and attempted appointments to the bench and the Justice Department have ranged from acceptable to disappointing to disastrous.  Crime related legislation he has backed, in particular the Crack Dealers Bonanza Act Fair Sentencing Act, has been inconsistent with robust law enforcement. None of this is to mention that the country is bankrupt and no one can get a job.  But, with all respect to Judge Head, I don't think we're going to have to be fending off the UN. 

Making Yourself Out To Be the Victim

| No Comments
It's old news at this point that one of the favorite strategies of criminal defense is to turn the client into the victim, thus to justify/excuse/mitigate whatever he's been up to. And "whatever he's been up to" can range from shoplifting to murder. It doesn't matter.  What matters is that some history of "abuse" or some newly-minted "syndrome" be discovered/exaggerated/fabricated in order to show that the client wasn't responsible.  It was the drugs/alcohol/stepfather/absent stepfather/brain lesions/gang affiliation/Twinkie consumption that was really to blame.

What brought this to mind was today's Associated Press piece, carried in a Huffington Post (no less) story, of a Minnesota state legislator, Kerry Gauthier, who was unfortunate enough to be caught in a highway rest stop having oral sex with a teenage boy.  It seems that this is not a crime, since the age of consent in Minnesota is 16, and the boy was 17.  Nonetheless, it was a source of embarrassment, so Mr. Gauthier needed to come up with something.  The something had to be a Gauthier-as-victim tale, since the more plausible Gauthier-as-sex-predator tale seemed less, uh, appealing for the re-election campaign.

Thus, as the story recounts,

Gauthier...told the AP that an overdose of muscle relaxants he took last week that led to his hospitalization was a suicide attempt. He'd earlier issued a statement saying he has been in recovery from chemical dependency for 30 years with one relapse.

When one version of the I'm-a-victim story ("I'm recovering from drugs") isn't working, you need to step it up ("I was suicidal").  Maybe Mr. Gauthier could get a job with the public defender.

Realignment

| No Comments
The latest in CJLF's series of press releases on the damage caused by the California realignment law is now available on our web site.

Previous releases in the series are available on our press release page.

Skateboarders For Law Enforcement

| No Comments
Max Taves reports in the WSJ:

SCOTTS VALLEY, Calif.--Skateboarders often thumb their noses at the rules. At the local skate park here, some teens defy park guidelines by skateboarding without a helmet or safety pads.

But there was one rule many liked to see enforced: that Scotts Valley Skate Park be used for "skateboards, in-line skates and roller skates only."

So last December, when hordes of younger boys atop kick scooters--those two-wheeled aluminum planks driven by handlebars--invaded the venue, they invoked that rule to a tee. Police were called in and at least 50 scofflaw scooterers were kicked out in one day.

Funny how people's positions on the regulation/libertarian scale can flip in the blink of an eye.  Hollywood glitterati are infamous for supporting all manner of environmental regulation until the government starts interfering with their property rights, at which point they start sounding exactly like the PLF folks.

Readers might think that the title of this piece is written in jest, or to poke fun at some of DOJ's more bizarre decisions.

Wrongo.  What I'm about to describe is Obama Administration official hiring policy. The greater likelihood is that my characterization of it, while unfortunately 100% true, is going to get criticized for "insensitivity," the cardinal sin of Political Correctness.

This is the story, and I'm not making this up.  The Department of Justice has instituted a policy to give preferential (that is, non-competitive) hiring to, among others, persons with "severe intellectual disability," "psychiatric disability," and (just to make sure we don't leave anyone out) "other current severe...intellectual or mental conditions."

If I'm not mistaken, this comes at exactly the time when the same liberals who tend to support this sort of affirmative-action-after-a-nuclear-war theory of hiring are complaining loudest about poor judgment, Brady violations, thoughtless overreach, botched prosecutorial discretion, and misdirected enforcement priorities at DOJ.

I'm waiting for Eric Holder's explanation of how we are going to improve this situation by going out of our way to hire schizophrenics and imbeciles. Somehow, I think I'll be waiting a long time.

Speaking of Crackpots

| No Comments
James Taranto has this column in the WSJ exploring the origins of Rep. Todd Akin's bizarre statement about rape and pregnancy.  "Where did he come up with such a nutty idea? Leave it to this column to answer the rhetorical question everyone is asking."

Poker and the Feds

| No Comments
Does running a poker room in New York violate the federal Illegal Gambling Business Act, 18 U.S.C. §1955?  Judge Jack Weinstein says no, in this opinion with an extensive analysis of the skill v. chance aspect of poker.  (Thanks to Orin Kerr for the link.)

The federal statute defines an "illegal gambling business" as "a gambling business which--(i) is a violation of the law of the State ... in which it is conducted" and other elements not disputed in this case.  New York, unlike some other states, does not define gambling based on whether skill or chance predominates.  It only requires that "the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein."  Poker (specifically Texas hold 'em) is clearly gambling under New York law.
Good news from the Lone Star State.  Judge Kevin Fine, who wouldn't let a minor matter like higher court precedent on point get in the way of declaring the death penalty unconstitutional (see posts here and here), has resigned from the bench.  Brian Rogers has this story in the Houston Chronicle.

No so good news in the Pacific Northwest.  The primary election for Washington Supreme Court was a photo finish, but the people will now have a choice in the general election between a dyed-in-the-wool "true believer" defense zealot, Sheryl Gordon McCloud, or the return of the crackpot heckler they bounced last time, Richard Sanders.  See prior posts here, here, and here.  The bitter irony is that those who seek justice in the State of Washington are going to have to hold their noses and support The Heckler.

Which jurisdictions have the worst judges?  It appears to me that it's a close competition between those jurisdictions on the polar opposite ends of the selection method scale.  Appointment with life tenure gets us judges such as Stephen Reinhardt of the Ninth Circuit, who slip in when one party has a political lock and are then fixed for life.  States with purely electoral systems get crackpots such as Fine and Sanders.

The least-bad medium (if not necessarily happy) is appointment followed by yes/no retention elections, such as California has for appellate judges.  The people have only bounced appellate judges here once, but that was exactly when we should have, and the knowledge that one might be challenged induces a bit more caution and a bit less arrogance than we see on the federal bench.

News Scan

| No Comments
Penn. Sexual Predator Guilty of 170 Counts: Bill Reed of the Philadelphia Inquirer reports Pennsylvania Judge Diane E. Gibbons found tattoo artist Walter Meyerle guilty of 170 counts of sex crimes against 15 different children including rape, involuntary deviate sexual intercourse, unlawful contact with minors, aggravated indecent assault, sexual assault, statutory sexual assault and dozens of misdemeanors. Meyerle was also found guilty of the possession of child pornography, and attempting to escape prison. Meyerle gained access to many of  the children, ages 4 to 17, through their parents, who either invited him into their homes or allowed the children to stay with him. After a 90-day sexual predator evaluation, mandatory under Megan's Law, Meyerle faces a life sentence according to Assistant District Attorney Jennifer Schorn. 

Female Mugger Rescued from Male Victim: Douglas Stanglin of USA Today reports two men came to what they thought was the rescue in a NJ mugging Monday, restraining the man and defending the woman. However, the good Samaritans found out too late the woman who got away was the assailant, not the victim. She stole $400 in cash and a $500 gold chain.

Texas Inmates Served Pet Food: Rheana Murray of New York Daily News reports inmates at a Texas prison were served pet food rather than beef fajitas sometime between 2006 and 2007. The Federal Bureau of Prisons was accidentally sold the pet food by John Soules Foods, who admittedly failed to re-label the boxes after the beef was improperly freezing. Though no illnesses were reported, the food company is settling the case for $392,000.

Casey Anthony Off Probation Friday:  Mike Schneider reports for Associated Press that Casey Anthony will no longer be on probation after Friday, but the Department of Corrections is not disclosing her present location or the time of her actual release. Anthony had been acquitted in 2011 of killing her 2-year-old daughter Caylee Anthony, but was convicted of check fraud in 2010 and ordered to serve probation for one year. She will be free to leave Florida at any time.

Modifying the Plata Order

| No Comments
In Brown v. Plata, the California prisoner reduction case decided last year by the Supreme Court, the opinion said:

As the State makes further progress, the three-judge court should evaluate whether its order remains appropriate. If significant progress is made toward remedying the underlying constitutional violations, that progress may demonstrate that further population reductions are not necessary or are less urgent than previously believed. Were the State to make this showing, the three-judge court in the exercise of its discretion could consider whether it is appropriate to extend or modify this timeline.

Experience with the three-judge court's order may also lead the State to suggest other modifications. The three-judge court should give any such requests serious consideration. The three-judge court should also formulate its orders to allow the State and its officials the authority necessary to address contingencies that may arise during the remedial process.

These observations reflect the fact that the three-judge court's order, like all continuing equitable decrees, must remain open to appropriate modification.
So now, at last, the State is moving for a modification of the order.  Bob Egelko has this story in the SF Chron.  "Donald Specter, a lawyer for inmates who sued the prisons over their medical care in 2001, said the filing shows that California 'never intended to comply with the Supreme Court's order.' "

Talk about a sore winner.  Specter has gotten substantially what he wanted.  The ruse of the prison conditions suit has produced a major and disastrous change in California sentencing law, with large numbers of criminals who should be locked up being put on the street.  The price of this change is being paid and will continue to be paid in the blood of innocent people.  Now the State wants to reduce the population reduction by a mere 18% of the total, with at least some reduction in the resulting carnage, and Specter is huffing about noncompliance with the Supreme Court decision. 

Well, asking for a modification is compliance with what the high court said.  The reduction being asked is little and late, but at least it is something.

More on Penn. Voter ID

| No Comments
Last week, we noted that a Pennsylvania trial judge upheld that state's voter ID law.  The trial judge's position could be decisive, as the Pennsylvania Supreme Court is down to six active judges, and a 3-3 split means the lower court's decision stands.

Jan Murphy has this story for the Patriot-News in Harrisburg.

More Martinez v. Ryan Damage Control

| 3 Comments
On July 6, I noted the decision of the Fifth Circuit in Ibarra v. Thaler that the Supreme Court's decision in Martinez v. Ryan, described in the opinion itself as narrow, simply does not change anything in Texas.  Texas does not have the kind of rule that Arizona does, categorically precluding any ineffective assistance claims on direct appeal, which the Supreme Court said is what triggers Martinez's narrow exception to the general Coleman v. Thompson rule.

Last Friday, a panel of the Fifth Circuit invoked Ibarra in denying relief to a murderer scheduled for execution tomorrow, John Lezell Balentine.  Today, the full court denied rehearing en banc.  Here is the lineup:

Voting for en banc rehearing were: Judge James L. Dennis, Judge Leslie H. Southwick, Judge James E. Graves, and Judge Stephen A. Higginson. Voting against en banc rehearing were: Chief Judge Edith H. Jones, Judge Carolyn D. King; Judge E. Grady Jolly, Judge W. Eugene Davis, Judge Jerry E. Smith, Judge Carl E. Stewart, Judge Edith B. Clement, Judge Edward C. Prado, Judge Priscilla R. Owen, Judge Jennifer W. Elrod, Judge Catharina Haynes.
Next stop SCOTUS.

The facts of the case, according to the AG's media advisory, are:

In the early morning hours of January 21, 1998, Balentine armed himself with a .32 automatic pistol and walked several miles to the home he used to share with Misty Caylor. Once inside the home, Balentine shot and killed three teenagers--Misty Caylor's 17-year-old brother, Mark Caylor, Jr. and two 15-year-old boys, Kai Geyer and Steven Brady Watson. Each victim was shot in the head while asleep. Balentine was later arrested in Houston, where he confessed to murdering the three teens. Balentine told authorities that he knew Mark Caylor, Jr., but did not know the identity of the other two boys whom he shot and killed.
Michael Graczyk has this story for AP.

Update (8/22):  The Supreme Court has granted a stay pending its consideration of the petition for certiorari.

News Scan

| No Comments
TX Inmate Set For Execution: The Associated Press reports that John Balentine's clemency petition was rejected 7-0 by the Texas Board of Pardons and Parole Monday, following the denial of his appeal Friday by a 3-judge-panel of the 5th U.S. Circuit Court of Appeals. Balentine was convicted of the fatal 1998 shootings of 3 minors, one 17 and two 15 years old, as they slept because of a feud between he and the 17-year-old victim. Balentine is set to be executed by lethal injection Wednesday evening.

DOJ Denies Dugard Misconduct Claim: Demian Bulwa of SF Gate reports that the Justice Department filed argument in U.S. District Court which denies that DOJ attorneys were guilty of misconduct claimed by Jaycee Dugard.  In a federal lawsuit, Dugard  claims that DOJ attorneys told a U.S. Parole Commissioner she could not testify in court as Dugard's sole expert witness. The DOJ argues that the Commissioner is a direct witness, who had released Garrido from prison once in 1993, during the time Dugard was held in the Garridos' backyard compound.  Getty claimed she never agreed to be an expert witness. Dugard's attorneys filed a counter claim noting that Getty had sent them an e-mail saying she agreed to being paid $300/hour to testify as an 'expert consultant.'

Convicted Arsonist Faces Death Penalty: Lori Fowler of the Daily Bulletin reports that San Bernardino prosecutors asked the jury Monday to impose the death penalty in the case of the Old Fire arsonist Rickie Lee Fowler, convicted of five counts of first-degree murder and two counts of arson. Five residents died of heart attacks resulting from the evacuation and destruction from the 2003 fire. Fowler has a criminal history including burglary, robbery, beating his pregnant ex-girlfriend and raping another ex, whose child he threatened to rape, and harassment of fellow inmates and guards while in custody.  Fowler was convicted "of repeatedly raping and torturing his cellmate at West Valley Detention Center" in 2009. Fowler's attorney has waived his opening statement until Aug. 29. 

News Scan

| No Comments
Many N.C. Gun Crime Inmates to be Released: Michael Biesecker of the Associated Press reports that the 2009 conviction of Terrell McCullum of North Carolina for being a felon in possession of a firearm was overturned Thursday by Senior U.S. District Judge James Fox. While under federal law, it is illegal for anyone who has been convicted of a felony to possess a gun, the court found that the N.C. definition of who is a felon includes offenses which not serious enough to meet the federal felony standard.  The Department of Justice has taken the position that the NC defendants whose priors fall into that category should be released.

CA Files for Higher Inmate Population Cap: Julie Small of KPCC reports the California Department of Corrections and Rehabilitation filed papers Friday to raise the cap of inmates which can be incarcerated in CA prisons by 7,000, arguing it can adequately provide a constitutional level of health care for 117,000 inmates, rather than the 110,000 the U.S. Supreme court ordered. A decision may not be released until next year.

The Biggest Risk Factor

| No Comments
A sad story from the City of Brotherly Love:

A police officer was shot to death blocks from his precinct house just after he finished his shift early Saturday in what authorities suspect was a street robbery. Police announced rewards totaling $30,000 to help them make an arrest.


Officer Moses Walker Jr., 40, was shot several times around 6 a.m. about four blocks from his station in north Philadelphia, police said. He wasn't wearing a uniform. The 19-year-veteran, who was unmarried and had no children, was pronounced dead at a hospital in a city where on average nearly one person has been slain every day this year.


And these words of wisdom:


"When we catch this guy, I guarantee you he's not going to be an upstanding citizen with a license to carry," [Lt.] Evers said. "He's going to be a bad guy with a long record with an illegal gun."


Hugo Bedau, RIP

| No Comments
Professor Hugo Bedau, a leader of the abolitionist movement, died last week at his home in Norwood, Massachusetts.  He was 85.  He spent most of his career as the anchor of the Department of Philosophy at Tufts University.  The New York Times has this extensive obituary, which contains the following, "'He articulated the case against the death penalty as well as anyone ever has,' Paul G. Cassell, a law professor, former federal judge and noted proponent of the death penalty, said..."

Hugo Bedau, a worthy and passionate adversary, RIP.

Murder in America

| 4 Comments
The Wall Street Journal has published a useful statistical breakdown of murder in America for the  decade 2000 - 2010.  Among the many interesting facts shown is that, while non-Hispanic whites outnumber blacks in the country by slightly less than 5 to 1, black murderers outnumber white murderers by about 7 to 5 (among the population of murderers whose race is known).  I point this out not to disparage blacks, but to rebut the constant, and constantly absurd, charge that the disproportionately large number of blacks on death row, and as prisoners serving sentences for homicide, is a result of an endemically racist criminal justice system. 

Baloney.  It's a result of the fact that blacks commit a grossly disproportionate number of murders.  

SB9 Hall of Shame

| No Comments
After the jump are the names of the 41 members of the California Assembly who voted in favor of SB 9, i.e., for the murderers.

News Scan

| No Comments
NC Attorney General Praises Arrest DNA Samples: The Island Gazette reports on a gathering in Chicago hosted by DNA Saves, where North Carolina Attorney General Roy Cooper told legislators that collecting data via a cheek swab upon arrest, as more than half of the states in the U.S. now do, prevents crime, exonerates the innocent, serves victims, and builds safer communities. N.C. began collecting DNA samples upon arrest from felons after legislative approval in 2011, and more crimes are being considered. The N.C. DNA database consists of 225,000 profiles, and is responsible for solving over 2,100 cases since 1994. Since samples began being collected from arrestees, the database has identified more suspects in the last year than in the previous 11 years combined. If the offender is not convicted or the case gets dismissed, the sample is removed from the database. The U.S. Supreme Court will be assessing the constitutionality of the practice later this year.

Death Penalty Upheld for Inmate who Murdered Correctional Officer: Mary Wisniewski of Reuters headlines reports that the South Dakota Supreme Court has upheld the death penalty for Eric Robert, who murdered a state correctional officer with intent during an attempted escape.  Robert plead guilty and waived his right to a jury trial for his sentence.  An accomplice, fellow inmate Rodney Berget, also plead guilty and received a death sentence.  As part of the escape plan, the two inmates hit officer Ronald Johnson in the head with a lead pipe with such force it fractured his skull and exposed part of his brain.  They then wrapped Johnson's head with plastic wrap.  Robert, dressed in the officer's uniform, assaulted another guard before being caught. At the time of the murder Robert was serving an 80-year sentence for kidnapping a young woman.  The court's decision is here.


Voter ID Developments

| 1 Comment
Are voter ID laws a dastardly racist plot to keep minorities from voting?  The Obama Administration thinks so and has filed suit to stop the Texas law.  See Fox/AP story here.

But what do the people think?  The Washington Post Poll asked, "In your view, should voters in the United States be required to show official, government-issued photo identification -- such as a driver’s license -- when they cast ballots on Election Day, or shouldn't they have to do this?"  Results:

All voters:   74-23
White:        78-19
Non-white:  67-31
Black:        65-33
Hispanic:    64-35

When two-thirds of the people supposedly disadvantaged by a law think it's a good idea, you have to wonder.

Meanwhile, in Pennsylvania, the ACLU tried to get around an inconvenient US Supreme Court precedent upholding voter ID by claiming that state's law violates the Pennsylvania Constitution.  Commonwealth Court Judge Robert Simpson didn't buy it. The WSJ has this editorial.  The ACLU will appeal, of course.
Senate Bill 9, which would effectively abolish life without parole for anyone who commits his murder a day short of his 18th birthday, passed the California Assembly today.  This article in the Sacramento Bee describes the bill as allowing "some offenders to petition for a resentencing hearing if they were minors when they committed a murder that landed them in prison with no chance of parole."  In reality, though, the criteria are so open-ended that only a small number of categorically excluded murderers will not be able to qualify.

California already complies with Miller v. Alabama.  There is no mandatory LWOP for juveniles.  In all cases, the judge has discretion to impose life with parole rather than life without parole for a juvenile convicted of first-degree murder with special circumstances.  The following passage from the story indicates the kind of dishonest arguments made for this bill:

Nearly one of every two California youth convicted of murder did not actually kill the victim but were lookouts or were participating in another felony, such as robbery, when the homicide took place, according to Yee.
Note it says "convicted of murder" not "sentenced to life without parole."  The former is irrelevant and the latter would be false.  But a lot of people don't get the distinction.

The bill now goes back to the Senate, where its passage is nearly certain, and then to Gov. Brown, who rarely misses an opportunity to go softer on thugs.

110-life = LWOP for Graham

| 1 Comment
For a juvenile convicted of multiple grave offenses but not a (successful) homicide, a sentence of 110 years to life is a de facto life-without-parole sentence for the purpose of applying Graham v. Florida, the California Supreme Court decided today in People v. Caballero, No. S190647.

Actually, that was the easy part.  Now what exactly should the courts do about it?

Cal. Supreme's answer:  punt it to the trial court.

Under Graham‟s nonhomicide ruling, the sentencing court must consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison "based on demonstrated maturity and rehabilitation." ... Because every case will be different, we will not provide trial courts with a precise time frame for setting these future parole hearings in a nonhomicide case. However, the sentence must not violate the defendant‟s Eighth Amendment rights and must provide him or her a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" under Graham‟s mandate.
In my view, this approach provides way too much latitude for the trial judge, inevitably resulting in a situation where a defendant's sentence depends as much on which judge he gets as it does on what he did.  We are forgetting history and repeating it.
Maryland has filed its certiorari petition, asking the US Supreme Court to review the decision of Maryland's high court striking down DNA testing of persons who have been arrested, not convicted, for burglary or violent crimes.  Chief Justice Roberts previously issued a stay of that ruling, discussed here and here.

The case is Maryland v. King, No. 12-207.

When Has A Suspect "Lawyered Up"?

| 3 Comments
The US Court of Appeals for the Ninth Circuit (quasi en banc) today decided Sessoms v. Runnels, No. 08-17790, on the continuing conundrum of when a suspect has requested the presence of a lawyer during interrogation with sufficient clarity to invoke the Edwards "don't ask again" rule.

The California Court of Appeal applied the rule of Davis v. United States, 512 U.S. 452, 459 (1994) that an ambiguous statement that might be an invocation permits the police to ask for clarification.  The federal district judge thought that was reasonable.  So did a 2-1 majority of the initial panel.  Today, the 11-judge panel (as close as the 9th generally gets to en banc) split 6-5 for the defendant. 

The majority said it was unreasonable to apply Davis, a case where the suspect made the ambiguous statement after initially making a waiver, to a situation where the suspect makes the ambiguous statement before making any waiver.  Judge Murguia writes for the dissenters, "In fact, the Supreme Court has recently confirmed that Davis's reasoning applies equally in the pre-waiver context.  Berghuis, 130 S. Ct. at 2260...."

Definitely certworthy.

Update:  Denny Walsh has this story in the Sacramento Bee.

News Scan

| No Comments
D.C. Man Charged In Chick-fil-A Fueled Shooting: Eric Tucker of the Associated Press reports that on Wednesday Floyd Lee Corkins went into the lobby of the Family Research Council, a D.C.-based conservative lobbying group and opened fire on a security guard.  The lobbying group had recently defended Chick-fil-A president Dan Cathy in opposing gay marriage.  Corkins fired on a security guard, shooting him in the left arm, after proclaiming he didn't like the guard's politics. Corkins entered the lobby with a backpack full of 15 Chick-fil-A sandwiches, ammunition, and a gun.  The wounded guard was able to help get the gun away from Corkins and restrain him. He now faces charges of assault with intent to kill and transporting firearms across state lines.

"Non violent" CA Offender Arrested for Shooting Oregon Police: Canda Fuqua of the Corvallis Gazette-Times reports that California parolee Demicio Cardenas Jr. is suspected of shooting two Oregon law enforcement officers. Cardenas had been in and out of the CA prison system 3 times since 2003 for car theft, and was convicted of misdemeanor spousal abuse in 2007. He was released from prison Aug. 2010 and absconded his parole Feb. 2011. Saturday, Oregon officers were in pursuit of Cardenas, who had stolen a vehicle in Salem. At the end of the chase, Cardenas lost control of the car and fled into heavy brush on foot. Officers set up a perimeter and tracked him down with a police dog. Cardenas and the officers exchanged gunfire and two officers were hit. One officer was treated and released for a single gunshot wound, and the other is conscious and in stable condition with multiple gunshot wounds. Cardenas was shot multiple times though his condition has not been released.

NY Probation Offices Become Resource Hubs: Dean Meminger of NY1 News headlines reports that NYC, which has about 27,000 people on probation, has turned three probation offices, in Manhattan, Queens, and most recently Brooklyn, into Probation Resource Hubs, with four more in the works. These hubs are equipped with computers to aid in job searches and other opportunities and a TV providing information on education surrounded by brightly colored walls and inspirational artwork. Four more probation office transformations are in the works.
The Business Roundtable/Pepperdine biweekly survey of California initiatives is out. Current survey is here.  Trend is here.  Today's release is the third in the series.

Proposition 34, the death penalty repeal initiative, started out close to even.  The second survey, shortly after the Aurora, Colorado massacre, noted here and here, showed it 20% behind.  We expected some rebound after the initial shock of Aurora wore off.  The survey released today shows a 14% gap -- 52.2% no versus 38.2% yes.  Interestingly, the "unsure" segment is increasing as time goes on.

The usual trend in California initiatives is that people drift toward "no" as the election approaches.  Initiatives that do not have a solid majority up front are generally toast.

Just How Big Is the Marijuana Crop?

| 1 Comment
Michael Montgomery at California Watch has this story on a new book by Jonathan Caulkins of Carnegie Mellon, Angela Hawken of Pepperdine, Beau Kilmer of RAND, and Mark Kleiman of UCLA, titled Marijuana Legalization: What Everyone Needs to Know.

Montgomery focuses on the authors' challenge to the reported size of the marijuana crop as calculated by Jon Gettman, a former director of the National Organization for the Reform of Marijuana Laws.  A large crop is claimed by legalization advocates to bolster the argument that legalizing and taxing marijuana would be a big revenue booster for government.  Also at issue is the degree to which legalization would defund drug traffickers.

Gettman, now at High Times, fires back that the authors are "woefully ignorant about marijuana consumption amounts or practices" because they are not tokers.

Sounds like an interesting book.  I look forward to reading it.

Pro and Con Op-Eds on Prop 34

| 3 Comments
The San Francisco Chronicle has pro and con op-eds on Proposition 34, the death penalty repeal initiative.

The No article is written by San Mateo DA Steve Wagstaffe and Marc Klaas, the father of the victim in one of California's most notorious cases.  Among other points, they note the hypocrisy of claiming high costs as a reason to get rid of the death penalty when the same people are the ones who have needlessly driven up the costs.

The Yes article is written by defeated ex-DA Gil Garcetti, who is getting much media attention by joining up with the ACLU et al.  He asserts, "California's death penalty is broken beyond repair, hideously expensive, and inevitably carries the risk of executing an innocent person."

In reality, we have known for years how to fix the death penalty, and the needed fixes would save money, not cost money.  The needed reforms have never made it out of committee because Garcetti's new allies in the criminals' lobby have always succeeded in having them killed there.

As for innocence, the proponents' ballot arguments cite two cases:  a Texas case and a noncapital case, both of which are irrelevant.  Out of nearly a thousand California capital cases, they can't cite a single one where a person convicted and sentenced to death in this state is known to be actually innocent.  Zero out of nearly a thousand.  What does that tell you?

News Scan

| No Comments
PA Judge Supports Voter I.D. Law: Dan Burns of Reuters reports Pennsylvania Commonwealth Judge Robert Simpson  rejected an effort by the NAACP and the League of Women Voters of Pennsylvania to block the PA voter I.D. law Wednesday, supporting the argument that the law is needed to prevent fraud and non-citizen voting. The civil rights groups argued the law would promote discrimination against minority voters and be a hurdle to those without an acceptable form of identification. PA is one of 11 states to pass voter I.D. laws since 2010. Civil rights groups are expected to appeal. 

Too Much Evidence Causes Dropped Drug Charges: Ryan J. Foley of the Associated Press reports the Iowa case against fugitive doctor Armando Angulo has been dropped by the U.S. Attorney because the huge volume of evidence is too expensive to maintain.  Angulo was indicted in 2007 for illegally approving thousands of pain and diet pills, and other controlled substance prescriptions via internet pharmacies without ever examining, communicating with, or verifying his patients. The 9 year investigation has collected more than 2TB of data and 400,000 documents. Angulo's prescriptions cost Medicaid over $6.5M over 6 years and led to many addictions. However, Angulo fled to his home country of Panama in 2004, which refuses to extradite him. Angulo is still wanted in Florida on separate charges including Medicaid fraud and narcotics.

Fort Hood Shooting Suspect Cannot Plead Guilty: Kari Huus of NBC News headlines reports that Maj. Nidal Hasan, who is charged with the November 2009 Fort Hood spree sought a guilty plea today on 13 counts of murder.  The military judge presiding over the case rejected the plea noting that the government is pursuing the death penalty.  Hasan claimed that his Muslim faith required him to plead guilty.  Under military law, no one who faces the death penalty may plead guilty. The trial had been scheduled to begin Monday, but was delayed for the fifth time because Hasan refused to shave his beard to comply with military law due to his faith. The hearing Wednesday began with yet another contempt charge and a $1000 fine for Hasan for appearing to court unshaven.

Stay Denied for Oklahoma Child-Killer

| 1 Comment
The US Supreme Court today denied a stay and a writ of certiorari for Michael Hooper, who murdered Cindy Jarman and her two children, five-year-old Tonya and three-year-old Timmy, in 1993.  The facts of the case, from the initial appeal to the Oklahoma Court of Criminal Appeals (947 P.2d 1090), follow the jump.

Hooper's latest gambit was to attack the lack of backup dose of pentobarbital, the recently acquired stocks of pentobarbital, and Oklahoma's continued use of the three-drug method after other states have gone to one drug.  The Tenth Circuit rejected these claims last Friday.

Update:  Tim Talley of AP has this story on the victims' family.

Update 2:  Talley has this post-execution story for AP.

News Scan

| No Comments
Undocumented Mexican Inmates in MS Prison Riot: The Associated Press reports as many as 300 undocumented Mexican inmates, convicted of crimes in the U.S., rioted at the privately-run Adams County Correctional Facility in Mississippi on May 20, killing one guard, injuring 20 others, and causing an estimated $1.3M in damages. The riot is said to have started over disrespectful guards, as well as poor food and medical care. The leaders of the riot demanded from the warden a list of grievances. Until met, rioting inmates were told to disobey the prison staff and to destroy the prison if anyone tried to stop them. The inmates also picked up and hurled tear gas canisters back at guards, looted, and took hostages. An FBI affidavit was filed in the U.S. District Court in Jackson charging one inmate with rioting.

5 GA Prisoners Charged in Inmate Killing: David Ibata of the Atlanta Journal-Constitution, with contribution from the Associated Press, reports five inmates at the Georgia Diagnostic and Classification Prison in Jackson threw a fellow inmate, Laderick Cornellius Chappel, from the second story of a prison dormitory Thursday night at 11pm, right before lock up. Chappel died from the fall Friday morning. The five inmates, armed with shanks, had robbed Chappel of food he bought from the prison store.  When Cappel confronted the inmates they threw him off the second floor. The five inmates have been charged with murder and armed robbery.

DE Death Penalty Affirmed: Esteban Parra of the News Journal reports the Delaware Supreme Court affirmed the conviction and death sentence of Derrick Powell in fatally shooting Georgetown police officer Chad Spicer, 29, who left behind a fiancee and young daughter. On September 1, 2009, Powell, with two others, left a McDonald's after gunshots were reported. Officer Spicer, accompanied by Cpl. Shawn Brittingham, pursued Powell in their vehicle. After both cars crashed, Powell shot Spicer in an attempt to escape. Brittingham was wounded by a bullet fragment. One of the men in the car with Powell got out of the vehicle and helped the officers, while the other fled and was arrested 3 days later. Both men testified against Powell in court. Supported by a 7-5 jury vote, Superior Court Judge T. Henley Graves gave Powell the death sentence on May 20, 2010.

Brown and Harris Mute on DP Repeal

| No Comments
Bob Egelko reports at the SF Chron political blog that neither the Governor nor the Attorney General of California will take a stand on the initiative to repeal the death penalty.

[A] reporter put in a call Monday to [AG Kamala] Harris' press office, where spokeswoman Lynda Gledhill said there were no plans for the attorney general to take a position on the initiative. She didn't give a reason.

As for the state's other high-profile death penalty opponent, forget it. Gov. Jerry Brown's office says he won't take a position on any November ballot measure except his own Prop. 30, which would raise income taxes on the richest Californians and increase sales taxes to avoid deep cuts in state programs.

I suppose that is good news as far as it goes.  I never expected either to come out opposed, so neutral is the best we could have expected.

Meanwhile, less publicly, the Governor continues to sabotage the death penalty by failure to use the authority he has to terminate the lethal injection litigation and resume executions.  His corrections department resists in court the efforts of victims and district attorneys to force these changes, and the Attorney General represents the department in these efforts.
Kyle Hightower reports for AP:

The attorney for the man who shot and killed Florida teenager Trayvon Martin said Monday he'll seek to get the case dismissed using a traditional self-defense argument and not the state's "stand your ground" statute.

Mark O'Mara, who is defending George Zimmerman against a second-degree murder charge in the fatal February shooting, said the traditional self-defense approach is appropriate because the facts suggest his client couldn't retreat from a beating Martin was giving him.

Zimmerman's attorneys had said last week that they would use Florida's "stand your ground" law, which allows people to use deadly force -- rather than retreat -- if they believe their lives are in danger.

"The facts don't seem to support a 'stand your ground' defense," O'Mara said.
I've been saying for some time I didn't think this was "stand your ground" case.

News Scan

| 1 Comment
Southern California County Sees High Re-offending Rate: Ann M. Simmons of the LA Times reports that of the approximately 300 non-violent and non-serious post-release supervised parolees of the L.A. County Sheriff's Department in Lancaster, CA, about 200 have been re-arrested since October. Lancaster deputies are working with several parolee compliance teams, and since last October have conducted 315 compliance checks and 68 address verifications, which resulted in 182 arrests and the seizure of 13 firearms, according to a written statement by Lancaster Deputy Michael Rust, who also states many of the offenders had been arrested multiple times for new crimes or charges. A recent report by the Sheriff's Department showed Lancaster's violent crimes have gone up 16% in the first six months of 2012 compared to the same period last year and homicides have doubled from 4 to 8.

Criminal Immigrants Free to Re-offend: William La Jeunesse of Fox News reports there are thousands of criminal immigrants currently in the U.S. who have remained in the country due to their home counties refusing to take them back, free to re-offend. Under a 2001 U.S. Supreme Court ruling, U.S. immigration officials are only permitted to hold anyone convicted of a crime who is in the country illegally for six months after being incarcerated, even in cases of murder. When a home country refuses to take the criminal alien back, the U.S. must release them. Rep. Ted Poe, R-Texas, taking the lead to change this law, became aware of the issue after instances of particularly horrific crimes were committed by immigrants who were not deported. Poe is trying to pass a law which would withhold visas for countries which do not take back their criminal immigrants.

NY Unveils Crime-Fighting App: CBS New York headlines New York State Senator Eric Adams announced the smart phone application Brooklyn Quality of Life which will allow anyone with an iPhone, Android, or tablet to report crime and dangerous conditions. The app will allow the sending of photos, audio, and video to retired detectives which staff the application. Information will then be forwarded to the police in an attempt to maintain user anonymity.

An Error Not To Be Repeated

| 3 Comments
Linda Deutsch reports for AP:

Gregory Powell, who was convicted of killing a Los Angeles police officer during an infamous kidnapping that inspired the true crime book and movie "The Onion Field," has died in prison at age 79, authorities said Monday.
*                     *                    *
Powell and Smith were originally sentenced to die, but the penalties were reduced to life in prison when the California Supreme Court overturned the state's death penalty. The punishment has since been reinstated, but didn't apply retroactively.

The crimes were documented in 1973's "The Onion Field" and the 1979 film of the same name, both written by Joseph Wambaugh, a former Los Angeles police officer.

"I guess this is the end of the story," Wambaugh said. "They are all gone now. Maybe I'll feel more at peace when I drive by the intersection of Carlos and Gower."

Los Angeles city officials last week dedicated the Hollywood corner as "Ian Campbell Square," named for the officer who died.

It is a travesty that Powell was allowed to live out his natural life rather than receive the punishment he was sentenced to and so richly deserved.  Let's not make the same mistake again, Californians.
Demian Bulwa has this story in the SF Chron on a tragic case of mental illness:

In the 4 1/2 years that Candy and Al Dewitt spent trying to save their son, only to see him cycle in and out of psychiatric hospitals with schizophrenia, they came to a stark conclusion: Someone needed to impose the treatment he refused.

They told doctors, friends and peers in support groups of their fear - that, left alone, 23-year-old Daniel would fall prey to the paranoid thoughts in his head.

The morning of Feb. 19 offered a respite. They took their daughter's son to the Oakland hills with a hat, whip and boots for an Indiana Jones-themed photo shoot. Then reality yanked back.

"The worst thing you'd ever have expected could happen," Candy said, "finally happened."

If one actually wanted to undo the Big Apple's success in reducing crime, how would they go about it?  Heather MacDonald writes in the City Journal:

New York's previously unimaginable status as America's safest big city is now in jeopardy thanks to a rising campaign against its proactive style of policing. In 1994 the New York Police Department, led then by Commissioner William Bratton, embraced the revolutionary concept that the police could actually prevent crime, not just respond to it after the fact.

The department began analyzing victim reports daily to target resources to where crime patterns were emerging. Top brass held commanders accountable for the safety of their precincts. And officers were expected to intervene when they observed someone acting suspiciously--maybe asking the person a few questions, perhaps frisking him if legally justified. In so doing, they sent the message in violence-plagued areas that law and order was still in effect.

Such proactive stops (or "stop-and-frisks") have averted countless crimes. But a chorus of critics, led by the New York Times, charges that the NYPD's policy is racist because the majority of those stopped are black and Hispanic. Every declared Democratic candidate for mayor in 2013 has vowed to eliminate stop-and-frisks or significantly reduce them. A federal judge overseeing a class-action lawsuit against the NYPD has already announced her conviction that the department's stop practices are unconstitutional, the prelude to putting the department under judicial control.

Back in the days when we were allowed to instruct juries with presumptions, we told them that people are presumed to intend the natural consequences of their voluntary acts.  Do the ACLU and left-wing politicians actually intend to increase crime?  That is certainly the consequence of the policies they promote.


In the California initiative process, proponents and opponents have wide latitude in the arguments they make in the voter pamphlet.  If they go too far over over the top, though, judicial intervention is available.

Yesterday, Sacramento Superior Court Judge Timothy Frawley issued a tentative ruling on a challenge to the ballot arguments in favor of Proposition 34 to repeal the death penalty:

The Court agrees with Petitioners that the challenged statements regarding the "redirection" of "savings" are false and misleading in that they imply the $100 million in appropriations are being funded from "savings" generated through elimination of the death penalty. The $100 million are appropriations from the General Fund that are unrelated to any "savings" that may (or may not) be achieved by Proposition 34.
At a hearing today, Judge Frawley confirmed the tentative ruling.

The judge labeled other arguments "hyperbole," which in practice means they are not so far over the top as to warrant judicial intervention.

I've been fighting the pervasively dishonest anti-death-penalty movement for over a quarter century now.  I've caught them in lies many times.  This is the first time we have had an actual court judgment to that effect, though.

News Scan

| No Comments
$40M NY Policing System Revealed: Rocco Parascandola and Tina Moore of New York Daily News report the NYPD and Microsoft designed Domain Awareness System, which inputs data from crime reports, a network of cameras, radiation detectors, and license plate readers was unveiled Wednesday. NYPD Commissioner Raymond Kelly explains NYPD investigators will now have at their fingertips comprehensive information about incidents, events, and individuals, and access to information via live video feeds.

Trayvon Martin Murder Photo Accidentally Distributed: The Smoking Gun headlines Florida prosecutor Angela Corey's office accidentally included a confidential picture of a face down postmortem Trayvon Martin and copies of George Zimmerman's college records to a variety of media outlets with supplemental discovery records Friday. A Corey aide e-mailed reporters, stating the photo which depicts the killing of Trayvon Martin was confidential.

CA Building Nation's Largest Inmate Health Care Facility:
The News Review reports the fast-tracked $900M California Health Care Facility just outside of Stockton, which spans 144-acres and will house 1700 inmates, is halfway built. The facility will house inmates too sick to live in regular housing and will be able to provide 24-hour nursing in an effort to improve the inadequate CA prison medical system to provide for prisoners which are receiving longer prison sentences and develop chronic illnesses and diseases during incarceration. The federal government is overseeing the state's project spending.  

ABA Journal Blawg 100 Nominations

| No Comments
The ABA Journal is accepting nominations for its annual list of the top 100 law blogs.  Recommend your favorite blog at this page.

News Scan

| No Comments
Sacramento Sees Recent Crime Rise: Kim Minugh and Phillip Reese of the Sacramento Bee report new law enforcement statistics show Sacramento is seeing an increase in crime over the last six months, specifically violent crimes, property crimes, car thefts, assaults, and rape. Homicide is the only crime without a significant increase, while assault and rape have shown the biggest spike. Sacramento had seen a significant drop in crime from 2006-2011; 40% in violent crime and 30% in property crime. However, in the first 6 months of 2012, Sacramento reported a 7% increase in both violent and property crimes. "Deputy Jason Ramos, spokesman for the Sheriff's Department, said a few factors could be contributing to the six-month spike, including the state's realignment plan moving state offenders to the county level, which has put more pressure on local resources."

Read more here: http://www.sacbee.com/2012/08/09/4708245/sacramento-city-county-see-crime.html#storylink=cpy"


Rate of CA Realignment Declining: Paige St. John of the Los Angeles Times reports the number of low-level offenders being realigned from prisons to jails is decreasing. A recent census from the CDCR shows 134,152 inmates within the CA prison system were realigned as of July, and 26,600 total. However, since implementing AB 109, the rate of reducing the state prison population went from 4,000 per month in October to about 1,000 in July. The California Board of State and Community Corrections (BSCC) found, in a report by the CPOC, that there are about 15,000 new inmates in local jails which would have gone to prison, not account for the change in the CA prison population. The BSCC is awaiting a similar study by CA sheriffs.

Jury Recommends Death Penalty for FL Rapist, Murderer: Rene Stutzman of the Orlando Sentinel reports the jury in the case of William Roger Davis, convicted of kidnapping, raping, and killing a 19-year-old girl from her work at a FL car lot, recommended Wednesday Davis receive the death penalty. The previous News Scan mention can be found here.

Read more here: http://www.sacbee.com/2012/08/09/4708245/sacramento-city-county-see-crime.html#storylink=cpy


Read more here: http://www.sacbee.com/2012/08/09/4708245/sacramento-city-county-see-crime.html#storylink=cpy



Read more here: http://www.sacbee.com/2012/08/09/4708245/sacramento-city-county-see-crime.html#storylink=cpy"

Read more here: http://www.sacbee.com/2012/08/09/4708245/sacramento-city-county-see-crime.html#storylink=cpy"

Obama Circuit Court Nominees

| No Comments
Have Republicans really obstructed President Obama's nominees to the federal courts of appeals to an unprecedented degree, as we so often hear?

No, says a study from the Democrat-leaning Brookings Institution.  The confirmation rate for Obama nominees is about the same as in prior administrations.  The percentage of Democrat-nominee circuit judges in total is up from 39% at the start of the Administration to 49%.

Todd Ruger has this post at BLT.

News Scan

| 1 Comment
No Stop-and-Frisk In SF: Heather Knight of the San Francisco Chronicle reports San Francisco Mayor Ed Lee will not be implementing NY's stop-and-frisk policy in SF, but, rather, will focus on targeted police enforcement, crime-tracking software, and will rely on the pledge from ministers to increase their involvement to combat the city's gun problem. The SF Board of Supervisors, community groups, and church leaders protested stop-and-frisks, arguing it would promote racial profiling. The Police Chief has indicated that his Department will have a zero-tolerance for probation and parole violations, as well as gang activity.

Dugard Attorneys File Lawsuit Against U.S. DOJ Lawyers:
The Associated Press reports attorneys in the case of Jaycee Dugard filed a lawsuit Monday which alleges U.S. Department of Justice attorneys tampered with their expert witness.  Dugard claims that DOJ attorneys convinced chair of the U.S. Parole Commission Carol Getty not to serve as an expert witness because she served on the commission part of the time in question. Dugard's attorneys say there is no supporting evidence. Also, the court papers allege that the U.S. Parole Commission, whose agents failed to report Phillip Garrido's marijuana use, could have decided to revoke his parole prior to the couple's abducting and holding Dugard captive. The hearing is set for Sept. 10, 2012.

SCOTUS Denies Stay in Cook

| No Comments
The US Supreme Court has denied a stay of execution to Arizona double murderer/torturer Daniel Wayne Cook.  No dissent is noted.

Update:  AP reports the execution has been completed.

A summary of the facts of the case by Judge Callahan of the Ninth Circuit follows the jump.

SCOTUS Denies Wilson Stay

| No Comments
The US Supreme Court has denied a stay in the Marvin Wilson case.  Wilson's dubious claim of retardation and the misleading coverage of that claim are discussed in my previous post.  No dissent or recusal is noted in the Supreme Court's order.  Lack of any noted recusal means all nine justices participated, but lack of a noted dissent does not necessarily mean the decision to deny was unanimous.

Update:  Wilson was pronounced dead at 6:26 p.m. CDT.

The facts of the crime, as stated by the Texas Court of Criminal Appeals on direct appeal, follow the jump.

Science and Young Offenders

| No Comments
The spinning of developmental science to support going soft on young offenders continues.  Mike Ward has this story in the Austin Statesman on a report at the National Conference of State Legislatures citing studies by the notoriously left-leaning MacArthur Foundation.

The science simply does not support the proposed rules of law for which it is usually cited:  blanket rules exempting young offenders from particular punishments, with chronological age alone trumping all other considerations.  As summarized in CJLF's brief in Graham v. Florida, the science actually identifies two different groups of young offenders, a larger group likely to desist from crime as they mature and a smaller, hard-core group likely to remain criminals for the rest of their lives.

If we really want to go where science points us in juvenile justice policy, we should focus on identifying that hard core group and locking them away for the maximum their offenses warrant, for our own protection as well as basic justice.

News Scan

| No Comments
Two Realignment Inmates Escape from Sonoma Jail: Mary Callahan of the Press Democrat has this article on the escape of two realignment inmates from the Sonoma County jail on Wednesday. Three inmates, who were the laundry crew on that night, had previously identified a vulnerable portion in the jail's fence and, after a month of planning, attempted to escape when their supervisor turned her back. While climbing over the non-electrified fence, one of the inmates, Serefino Uriel Gonzalez-Reyes, was pulled off the fence and subdued by a correctional officer; the other two, Rene Solorio Leon and Julie Adrian Martinez-Bautista, escaped. Jail officials are reconsidering security needs to handle realignment inmates, including modifications to toughen barriers around the jail. The search for Leon and Martinez-Bautista continues.

Convicted FL Rapist, Murderer Wants Death Penalty: Kelli Cook of CF News 13 reports William Davis, found guilty of kidnapping a 19 year-old girl from her work and taking her to his home where he raped and killed her, asked the jury Tuesday for the death penalty. Davis stated, ""if you give me life, you are making a mistake." Davis is diagnosed as bipolar, but displayed no signs of insanity during the time of the murder. The judge plans to speak with Davis before a final decision is made.

Zimmerman Case Set For October: CF News 13 headlines the case against George Zimmerman, who is charged with second-degree murder for the shooting and killing of Trayvon Martin, will resume in court on October 3, 2012 at 8:30a.m.

Tucson Shooter Will Not Face Death Penalty:
Tim Gaynor of Reuters reports Jared Loughner, Tucson, AZ shooter who killed 6 and wounded 13, pleaded guilty Tuesday to 19 criminal counts, including 6 counts of murder, attempted murder, and the attempted assassination of Arizona Representative Gabrielle Giffords after District Judge Larry Burns ruled Loughner mentally competent to stand trial. Federal prosecutors have agreed not to seek the death penalty under the plea agreement. Update:  The text of the plea agreement is here.

There is much huffing and puffing about Texas's planned execution of Marvin Wilson.  The AP story begins:

A Texas death row inmate scheduled to die later Tuesday for the killing of a police informant 20 years ago is hoping the U.S. Supreme Court agrees with his attorneys that he's too mentally impaired to qualify for execution.

Marvin Wilson, 54, was found to have a 61 IQ on a 2004 test, putting him below the generally accepted minimum competency standard of 70, his attorneys contend in an appeal before the justices.

You have to get halfway down the story, to a quote from AAG Ed Marshall, before you find any doubt expressed that Wilson is, in fact, retarded.  And how about that 61 IQ test?  Here is an excerpt from the USCA5 opinion:

Five I.Q. scores are reflected in those reports.  The first I.Q. test, the Lorge-Thorndike, was administered by Wilson's school when he was approximately 13 years old.  Wilson's full-scale score on this test was 73.  At age 29, Wilson was given an I.Q. test by the Texas Department of Criminal Justice and scored 75.  In April 2006, when Wilson was 46 and during the post-conviction proceedings, Wilson scored 61 on the WAIS III I.Q. test.  On further testing by the defense, Wilson scored 75 on the Raven Standard Progressive Matrices and 79 on the TONI-II I.Q. tests.  A score of 70 or below supports a finding of mental retardation.
There are five tests, four of which show Wilson is not retarded.  The one outlier is the one that gets prominent mention in the AP story.
Bob Egelko has this story in the SF Chron on the motion of the Los Angeles DA to force the adoption of the single-drug method of executions in place of the three-drug method which has been preliminarily enjoined by a federal district court.  Last winter, I concluded we could not rely on the California Department of Corrections and Rehabilitation to aggressively pursue lifting the stay, outlined an alternative legal strategy, and urged the DAs to pursue it.  Los Angeles picked up the challenge first and filed motions for the trial court to order adoption of a protocol and set execution dates for Mitchell Sims and Tiequon Cox.  San Mateo County has a similar motion pending in the case of Robert Fairbank.

LA DDA Michele Hanisee is quoted in the story.  She smells a rat in the state executive branch.

"In my opinion, the top-down marching orders are to drag things out as slowly as possible," the prosecutor said. When state officials assigned to carry out sentences "refuse to perform their duties," she said, a judge can require them to do so by ordering one-drug executions - an order that federal courts have upheld in other states.
The story also quotes two "experts" on the propriety of a judge ordering the switch:

By law, "the power to implement sentences is delegated to the (state) CDCR," said Robert Weisberg, founder and co-director of the Stanford Criminal Justice Center. "I don't think a judge can choose a type of execution if that particular choice hasn't been ratified by the state."

Allowing a prosecutor and a single judge to override prison officials' choices on execution methods would "turn the structure of state government upside down," said Franklin Zimring of UC Berkeley.
Nonsense.  There is nothing "upside down" about a court ordering an executive officer to take an action if the officer's choice is contrary to the law.  CDCR does have considerable discretion in this matter, but an agency's discretion does not extend to disabling itself from carrying out its duties to execute the law.  There are 13 cases where all reviews of the sentence have been completing and nothing remains but to execute, and CDCR has needlessly allowed itself to be enjoined from carrying out its duty.
Opponents of Proposition 34, the California death penalty repeal ballot measure, have filed suit to remove false and misleading statements in the ballot argument of the proponents.  The press release is here.
The Federalist Society's Criminal Law Practice Group is sponsoring a teleforum on Over-Criminalization and Public Opinion August 9 at 1:00 p.m. EDT.  The speakers are Whit Ayers of North Star Opinion Research and former US DAG George Terwilliger.  The event description follows the jump.

News Scan

| No Comments
FL Prison Escapee Suspect in 4 Killings: Richard Winton of the Los Angeles Times reports Larry D. Hubbard, who escaped from a Florida prison in 1977, is suspected of killing four California women while on the run. Hubbard's DNA was linked to the 4 cases in which he would choke and bind, strangle, and dump women naked in a field. Police had previously collected DNA in the cases, but without more sophisticated technology, were not able to tie the DNA to Hubbard who was arrested by Ontario police on an outstanding Florida escape warrant in May 2007, and died following an attempted suicide after he was returned to Florida

'Speed Freak Killer' Stops Helping Police: Scott Smith of McClatchy Newspapers reports meth-fueled serial killer Wesley Shermantine wrote on Thursday he will no longer be leaving death row to help locate more of his victims. Bounty hunter Leonard Padilla promised Shermantine $33,000 in exchange for information locating his various dump sites of victims, though sending more than $2000 so far in cash and merchandise. Shermantine intends to hold out on all further information until Padilla pays up more of what he promised, namely a new television and candy bars. Stockton Assemblywoman Cathleen Galgiani met with Shermantine Sunday, who told her he would only cooperate with certain agencies, investigators from the Reno Police Department, but not others, including the San Joaquin County Sheriff's Office and FBI agents from Sacramento. Galgiani has asked CDCR Secretary Matt Cate act on an emergency bill she wrote which would empower prison officials to take a guarded Shermantine from the prison to recover more dump sites. Gov. Jerry Brown signed the bill July 17, 2012.

CA Supreme Court Affirms Death Sentence: Maura Dolan of the Los Angeles Times reports the California Supreme Court upheld the death sentence for Enrique Parra Duenas, rejecting his appeal of his conviction of fatally shooting Los Angeles County Sheriff 's Deputy Michael Hoenig in 1997 during an attempted stop while Duenas was on a bicycle.

NY Crime Surge After Drop In Stop-And-Frisk Rate:
Rebecca Harshbarger and David Seifman of the New York Post report major crimes in New York has spiked more than 12% since a drop in the NYPD's stop-and-frisks rate. Between Jan. 1 and Mar. 31, police stopped 203,500 people and recovered 881 guns. However, between Apr. 1 to Jun. 30, stops went down to 13,934 and 732 guns were recovered. During that three months, violent crimes increased by 3081; from 24,751 to 27,832, respectively. The NYCLU has been attempting to dismantle NY policing tactics. NY Mayor Bloomberg stated, "if the NYCLU is allowed to determine policing strategies in our city, many more children will grow up fatherless and many more children will not grow up at all."

NY DNA Databank Expansion: The North County Gazette reports New York State's DNA Database requires anyone convicted of a Penal Law felony or misdemeanor as of Aug. 1 provide a DNA sample via a sample taken from within the cheek with a swab, as well as allowing DNA comparisons before trial and after a guilty plea. This law is not retroactive, and does not apply to first-time misdemeanor offenders found guilty of low-level marijuana possession. New samples will also be compared to the more than 40,000 samples from unsolved cases in the database. The Forensic Investigation Center in Albany will be able to process 10,000 samples each month without creating a backlog.

International Child Porn Network Uncovered:
Denise Lavoie of the Lubbock Avalanche-Journal reports agents of the U.S. Customs and Immigration Enforcement agency's Homeland Security Investigations unit in Boston, led by agent Bruce Foucart, have arrested 43 man over the past 2 years, and identified more than 140 young victims. The network and online chats consist of thousands of child pornography images, some displaying rape, as well as conversation, from sexual, to abduction, murder and cannibalism of babies and toddlers. Information has been sent to Interpol.

AZ Inmate Faces Execution: Michael Kiefer of the Republic reports Daniel Cook will face the death penalty in Arizona on Wednesday. Cook was convicted of torturing, sodomizing, and strangling two co-workers during an alcohol and methamphetamine binge in 1987. His roommate and accomplice, John Matzke, confessed the murders to the police, implicating Cook. Matzke entered a plea deal and received 20 years in prison in exchange providing his testimony against Cook. He was released from prison July 2007. 
AP reports:

A possible plea deal in the deadly shootings that wounded then-U.S. Rep. Gabrielle Giffords would send Jared Lee Loughner to prison for the rest of his life, a person familiar with the case said Saturday.

A court-appointed psychiatrist will testify Tuesday that Loughner is competent to enter a plea in the shooting rampage that killed six people and injured 13, including Giffords, said the person, who was not authorized to discuss the case publicly and spoke on condition of anonymity.

Why would anyone voluntarily accept a sentence to spend the rest of his life in prison?  To avoid the death penalty, of course.  What happens in jurisdictions that don't have the death penalty?  Plea bargains with sentences of life or very long terms drop off sharply.  My 2009 study found, "The average county with the death penalty disposes of 18.9% of murder cases with a plea and a long sentence, compared to 5.0% in counties without the death penalty."

There is something to be said, from the victims' point of view, for a disposition of a sentence of life in prison with no possibility of parole and no appeals.  That disposition is rarely possible in jurisdictions with no death penalty.

With the federal case concluded, will Arizona prosecutors go forward with their case?  That remains to be seen.

The Beginning of Closure

| 1 Comment
It's often said that you don't have to experience something to know much about it.  That might be true in some ways, but it's not true for the crime of murder.  If you've known someone who was murdered, as I have, it's a terrible experience that no measure of sympathy can meet.  When the murder remains unsolved for many years, it's downright awful. 

Now comes news that Jeffrey Sauerbry has been charged with the murder of my friend, Summer Shipp.  Shipp  was last seen conducting surveys in Sauerbry's neighborhood in December 2004. Shipp's remains were discovered three years later along a river in Independence, MO - she had been strangled and her throat had been slashed.  Evidently, Mr. Sauerbry was just convicted of another murder that occurred in 1998.  

This is the beginning of closure. 


No Coaching Required

| No Comments
It's not unusual for criminal defendant to fake mental illness, but this case has a twist.  Michelle Durand reports for the San Mateo Daily Journal:

The former child psychiatrist committed to a state mental hospital rather than tried for allegedly molesting patients after a jury couldn't agree if he was competent perpetuated "a big, elaborate hoax" by using his specific medical knowledge to fool doctors into thinking he had serious dementia, according to a prosecutor.

Prosecutor Melissa McKowan's sharp words came after the defense attorney for William Hamilton Ayres, 80, contested the recent conclusion by Napa State Hospital doctors that his client is mentally fit for trial and asked that he be released on bail until a hearing on that matter.

McKowan's comments also gave insight into the surprising medical report on Ayres' competency that may pave the way for his criminal retrial and was sealed by the court after its receipt last week. Judge Jack Grandsaert further hinted at the report's conclusions by telling attorneys there is less preparation time needed for a competency hearing because the only new issue at play is "malingering" -- the medical term for fabricating or exaggerating symptoms for a secondary motive.
Josh Molina reports for AP:

The Board of Executive Clemency voted 4-0 Friday against Daniel Wayne Cook's requests to have his death sentence reduced to life in prison or to delay his execution.

Cook was convicted of murdering 26-year-old Carlos Cruz-Ramos and 16-year-old Kevin Swaney in Lake Havasu City in 1987. Trial evidence showed Cruz-Ramos was tortured and that both victims were raped.
The Ninth Circuit denied Cook's claims last week, the day after oral argument.  Cook's stay application to SCOTUS is number 12A123.

News Scan

| No Comments
OR Judge Ruled Death Row Inmate Can Reject Reprieve: The Associated Press reports Oregon Senior Judge Timothy Alexander ruled Friday a death row inmate can reject a reprieve; convicted murderer Gary Haugen does not have to accept clemency from Gov. John Kitzhaber. Haugen intends to waive all legal appeals which could delay his execution in protest of a legal system he feels is broken. Kitzhaber spokeswoman Amy Wojcicki said the governor will likely appeal the ruling.

NV Supreme Court Affirms Death Sentence: Sanda Chereb of the Associated Press reports the NV Supreme court unanimously affirmed the death sentence for serial rapist James Biela, who abducted, raped, and strangled a 19-year-old girl in 2008. Chief Justice Michael Cherry said the jury's verdict was not rushed, nor the result of passion or prejudice as Biela claimed.

Realignment Suspected Cause of Tracy Car Theft Increase: Denise Ellen Rizzo of the Tracy Press reports car thefts in Tracy are expected to exceed last year's mark. Michael Mulvihill, supervisor of the felony trial unit for the county prosecutor's office, feels insufficient incarceration due to realignment is the cause, noting some serve only a month or two rather than a few years. Mulvihill hopes AB 109 sees an amendment in the future.

Vermont Man Crushes 7 Police Vehicles with Tractor: Dave Gram of the Associated Press reports Roger Pion rolled over 7 Vermont police vehicles with a large farm tractor out of anger for his recent arrest for resisting arrest and marijuana possession, destroying more than half of the police vehicles in the county and causing an estimated over $250,000 in damages according to Vermont State Police Thursday.

Military Funeral Demonstrations

| 2 Comments
Tuesday, Congress passed H.R. 1627, with the ungainly title of Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012.  Among its provisions is a prohibition against a demonstration within 300 feet of a cemetery within the period 2 hours before and after the funeral of "a member or former member of the Armed Forces" which "disturbs or tends to disturb the peace or good order of such funeral."

The bill is a reaction to the bizarre and despicable practice of the Westboro Baptist Church demonstrating at the funerals of service members, claiming that their deaths are God's retribution against America for tolerance of homosexuality.  A common law tort judgment was reversed by the Supreme Court last year in Snyder v. Phelps.  The Court expressly refrained from deciding whether statutory "time, place, and manner" restrictions would be constitutional, however.  (See pp. 10-11 of the slip opinion.)

Will the Supreme Court uphold this law?  (Assuming, of course, the President doesn't veto it.)  Hard to say.  Given the Court's astonishing and appalling creation of a constitutional right to lie about receiving a medal of valor in United States v. Alvarez, nothing is certain.

Update:  The President signed the bill.  It is Public Law 112-154.

More on the DP Repeal Poll

| 2 Comments
Bill noted the new poll from Business Roundtable and Pepperdine University last night.  Pepperdine's press release on the poll is here, with the subhead "Support for Proposition 34 plummets."

"Events of the past two weeks may have shaped some of the changes we see in this week's results. For example, support for Prop 34, which would repeal California's death penalty, fell from 45.5% to 35.9%. While you can't be completely certain, the major decline in support for Prop 34 likely reflects a public response to the tragedy in Aurora, Colorado," said Dr. Michael Shires associate professor at Pepperdine University. "For many Californians, life in prison would not be severe enough for such a terrible crime."
Bingo.  Let's hope the people remember this for the next three months.

What Punishment For This Crime?

| 1 Comment
Ralph Wilbur Baker was murdered Wednesday, AP reports.  He was surely no angel, being incarcerated in the California Substance Abuse Treatment Facility and State Prison in Corcoran. Still, he was deprived of his life without due process of law and probably did not deserve death.

Christopher Bradford, his cellmate, is suspected of the crime.  If he did indeed commit this murder, what punishment should society impose?  We have two choices:

1.  Death.
2.  No punishment at all.

You see, Bradford is already sentenced to life in prison with no possibility of parole.  A second life sentence is therefore no sentence.

If California voters are foolish enough to abolish the death penalty this November, then option 2 will be the only one.

Read more here: http://www.sacbee.com/2012/08/02/4687571/inmate-death-investigated-at-central.html#storylink=cpy

John Conyers, Running Hard

| 1 Comment
Rep. John Conyers of Detroit first won his seat in 1965 and has had clear sailing ever since.  Maybe not this time.  A contested primary will be held next Tuesday in Conyers' newly reconfigured district.  Michigan lost one seat in the last census, and the Republican legislature re-drew the district to include portions of Detroit's suburbs.

Conyers is notable because he is the ranking member of the House Judiciary Committee and was a prime sponsor of the Crack Dealers Bonanza Act Fair Sentencing Act of 2010, which cut the sentences for crack cocaine offenses to make them more nearly equal to those given for powder cocaine.  In June, the Supreme Court held that the FSA is retroactive, even though Congress itself never adopted a retroactivity provision.  

An article in the Wall Street Journal suggests that, notwithstanding the new obstacles to Conyers, he is well positioned to retain the seat.  This is in part because one of his primary challengers, state Sen. Bert Johnson, has had some difficulties of his own:

Mr. Johnson has had to deal with questions about a conviction for armed robbery 20 years ago, for which he served a brief prison sentence. He said the episode is part of a story of redemption. The Detroit Free Press, in an editorial reluctantly endorsing Mr. Conyers, said, "The sheer visuals of tossing Conyers, a civil rights legend, aside for a convicted felon would be close to indefensible."

On the other hand, Rep. Conyers has been dogged by questions about his wife, former Detroit City Council member Monica Conyers, who is serving a prison sentence after pleading guilty in 2009 to a bribery charge.  Conyers says he knows nothing about it.

It's really, really hard to know whom to root for in this race.


Prop 34, We Hardly Knew Ye

| 1 Comment
A California Business Roundtable/Pepperdine University poll taken about two weeks ago showed those opposing Prop 34's repeal of the death penalty ahead by a mere two percent, 47% to 45%.

Along came the Aurora massacre.  Sausage, meet grinder.  The new poll shows the repeal measure being blown out, 55.7% to 35.9%.  This is no surprise.  It has been known for years that support for the death penalty surges when respondents are focused on a specific case, rather than having the question put to them in general, hypothetical and often misleading terms.

Thus, at present, it appears that Prop 34 will meet its fate for exactly the right reason: There are some cases so horrible that preventing the jury from even considering capital punishment is a miscarriage of justice.

The specific results of the poll are:

Strongly Yes16.6%
Somewhat Yes9.4%
Leaning Yes9.9%

Yes35.9%
No55.7%

Leaning No9.7%
Somewhat No8.2%
Strongly No37.8%
Unsure8.3%

[Editor's Note: See also follow-up post here.]

Death Penalty Takes Home the Gold

| 2 Comments
There's an old saying:  "He might be nasty, but at least he's stupid."  That brings to mind today's thought:  Abolitionists might be obtuse, but at least they're wimps.

I couldn't help noticing that, in a world where we are constantly lectured that the death penalty is becoming extinct, the three nations atop the medal standings in the Olympics all have an active death penalty:  the United States (37 medals, 18 gold); China (34 medals, 18 gold); and Japan (19 medals, 2 gold).  Meanwhile, those beacons of enlightenment, Norway, Denmark, and Sweden, have a combined total of 6 medals. 0 gold.

Now what does that tell you? 

Holy overreaction, Batman!

| 1 Comment
Last March, I posted on the guy pulled over by the police while dressed as the Caped Crusader.  He didn't have a valid license plate on the Batmobile.  His secret identity (no longer much of a secret) is Lenny Robinson rather than Bruce Wayne, but he really is a hero, spending his time and money cheering up very sick kids in hospitals.

Now for the bad news.  Josh McGhee reported in the Chicago Sun-Times last week:

An appearance by "Batman" and his Batmobile that was planned for Friday at Lurie Children's Hospital in Chicago has been canceled over concerns it could upset kids and their parents in the wake of last week's mass shooting at a Colorado premiere of the new Batman movie.

The hospital's staff gave it "a lot of thought" and "consulted child psychiatrists" before canceling the appearance because it "could be upsetting to patients and parents," hospital spokeswoman Julie Pesch said.

Laurie Strongin and Allen Goldberg of the Hope for Henry Foundation have this op-ed in the WaPo, calling the decision "a misguided overreaction."

To Henry, Batman symbolized the supremacy of good and the power of hope. Evil, like what we have seen perpetrated in Colorado, did not stand a chance against Batman. Well-meaning but mistaken adults and experts have replaced hope with fear by determining that Batman is inappropriate.

A hospital spokesperson in Chicago told the Chicago Sun-Times that officials had consulted psychologists before canceling Batman's appearance. Maybe they should have spoken to the kids.

News Scan

| No Comments
Holmes' University Psychiatrist Reported Alarming Behavior: Jeremy P. Meyer and Allison Sherry of the Denver Post report psychiatrist Dr. Lynne Fenton, seeing Colorado shooter James Eagan Holmes before the massacre, notified members of the University of Colorado Denver Behavioral Evaluation and Threat Assessment (BETA) team of alarming behavior displayed by Holmes sometime within the first ten days of June, 2012. The BETA team provides faculty, staff, and students a resource when "confronted with people they believe are threatening, disruptive or otherwise problematic," but does not include the campus police. Due to Holmes leaving the University, no further action was taken.

CA Triple-Murderer Gets Death Penalty: Paul T. Rosynsky of the Oakland Tribune reports that after only one day of deliberation, Oakland jurors sentenced David Mills to death for a triple-murder.  In 2005 Mills was supposed to return a gun he borrowed to four friends waiting in a car.  He instead walked up to the vehicle began shooting, killing three of the four.  A woman, though badly injured, survived to identify Mills as the shooter. Mills was a habitual criminal who dropped out of elementary school to sell drugs and previously plead guilty to involuntary manslaughter after the witnesses against him refused to testify.

CA County Awarded Additional $20M to Build Jail: Marga K. Cooley of the Santa Ynez Valley News reports the CA Board of State and Community Corrections awarded Northern Santa Barbara County $20M more to build a new 138,385-square-foot jail to house the increasing number of inmates being transferred to the county due to realignment. The extra $20M, increasing the award to the $80M cap for medium-sized counties, will allow for the jail to have 376 beds rather than 304.

Man Believed to be Dead to Face Death Penalty:
Holbrook Mohr of the Associated Press reports federal prosecutors have charged Thomas Sanders, who was declared dead in 1994,  with killing his girlfriend and her 12-year-old daughter outside of Law Vegas over Labor Day weekend, 2010.  Sanders allegedly stopped in the desert to let his girlfriend shoot his rifle, then shot the woman in front of her daughter.  He drove the horrified 12-year-old girl to a wooded area in Louisiana where she survived multiple gunshot wounds before Sanders finally cut her throat. Sanders was presumed dead seven years after leaving his family in Mississippi.  He remained undetected despite traveling and multiple arrests. Federal prosecutors will seek the death penalty.

Death Penalty Upheld in CA School Shooting: Paul Elias of the Associated Press reports the CA Supreme Court upheld the death sentence for Eric Houston, a high school drop out, convicted of killing a teacher and 3 students, and injuring 10 others in a May 1, 1992 rampage through the halls of the Yuba County high school he had attended. Houston went into the school armed with a 12-gauge shotgun in hand and a sawed-off .22-caliber rifle on his back. After the initial onslaught, he rounded up about 80 students in an upstairs classroom and held them hostage for about 8 hours, releasing several through negotiations, and finally surrendered at 10 p.m.

Fighting Tyranny through Chicken

| 7 Comments
A few days ago, I put up an entry about the (frankly) crazed prosecution of a marine biologist, a case begun, and now in its seventh year, because a member of her crew whistled at a whale.  The point I was making was that the sprawl of criminal law, while justifiably viewed with growing concern by many conservatives and others ordinarily sympathetic to the prosecution point of view, masks an even more pernicious problem  --  replacing law with ideology.  The particular ideology now elbowing law out of the way is Political Correctness.  I thought this was wonderfully illustrated by the unhinged version of environmentalism on display in the whale whistling case, and by the even more unhinged version of seething feminism and race-based bullying on display in the Duke lacrosse scandal of a few years ago.

No sooner was the ink dry on my post than Political Correctness took another step toward tyranny, this time in the Chick-fil-A controversy.  It seems that the owner of Chick-fil-A opposes gay marriage (a position held by President Obama until quite recently).  It's not that Chick-fil-A refuses service to gays, married or otherwise; it's simply that the owner believes, apparently for religious reasons, that same-sex marriage is  wrong.  This is very Politically Incorrect.  

It did not take the PC storm troopers long to launch.  

News Scan

| No Comments

LA DA Asks for Single-Drug Executions: Debra Saunders of the San Francisco Chronicle reports CA Gov. Jerry Brown and Attorney General Kamala Harris do not appear to have any intention of enforcing the death penalty. CA's supply of the three-drug protocol for executions will expire in 2014, and the state will not be able to acquire more. Despite this, CA has yet to switch to the one-drug protocol, which CJLF President Michael Rushford believes is deliberate. With some states moving forward with executions, Los Angeles District Attorney Steve Cooley requested the single-drug executions of CA death row inmates Tiequon Cox and Mitchell Sims, both convicted of multiple murders.

MA Gov. to Sign "Three Strikes" Crime Bill: Michael Levenson of the Boston Globe reports Massachusetts Gov. Deval Patrick will sign a bill which removes the possibility of parole for repeat offenders which in three separate instances have been convicted of violent felonies including murder, rape, and home invasion and served three years in state prison, As a result of the bill, some nonviolent drug offenders will be eligible for parole. Despite limiting judges' flexibility in sentencing repeat offenders, Patrick has stated he will sign the bill.

Shasta County to Increase Offender Accountability: Colin Lygren of KHSL TV reports the Shasta County Board of Supervisors voted Tuesday that it will be sending certain inmates to both Lassen and El Dorado counties. With the jail at capacity in Shasta, offenders have not been forced to go to court and have been remaining on the streets. Officers in the county have been making arrests but some habitual non-violent criminals never appear in court for sentencing. Redding Police Chief Robert Paoletti said there have been 922 people arrested for over 2900 crimes since last October when realignment went into effect. Inmate transfers could begin as early as the third week of August.

ND Man Convicted of Beheading Receives Life in Prison: Dave Kolpack of the Associated Press reports Daniel Wacht was sentenced to life in prison without the possibility of parole on Wednesday in North Dakota.  Wacht was convicted of the shooting and beheading of Kurt Johnson, allegedly to show the white supremwcist gang Aryan Nation that he could run a local group. Wacht was a fugitive from charges in California at the time of the killing.. Johnson's head was found in a crawlspace in Wacht's basement, though his body was never found.

Penalty for the Colorado shooter

| 1 Comment
Among the reasons for the death penalty is retribution -- for some crimes any lesser penalty is insufficient.

Carli Richards, a survivor of the Aurora theater shooting, thinks lethal injection is insufficient for that crime, reports Jill Reilly in the Daily Mail.

A 22-year-old woman who suffered dozens of shotgun wounds when Batman shooter James Holmes opened fire in a cinema has posted a shocking photo of her injuries.

Carli Richards, was shot on her right arm, both of her legs, chest, back and rear by James Holmes, 24, during his shooting rampage at a midnight screening of the Dark Knight Rises.

Today she called for the death penalty for Holmes, saying 'I think death by firing squad would be totally justified ... Just injecting him is painless.'
Debra Saunders of the SF Chronicle has this post on her Token Conservative blog.

Advocates for Proposition 34, the ballot measure to end California's death penalty, came to the Chronicle editorial board Tuesday. Their argument is pretty simple. They say the death penalty is dysfunctional and a poor use of taxpayer dollars. They tried very hard to stay on message, so I asked them, "Are you morally opposed to the death penalty?"

Two of the advocates wouldn't answer the question.

Proposition 34 campaign manager Natasha Minsker would not answer the question. When I asked her for a yes or now answer, she responded, "It's not really my view of the issue."
Huh?  I've debated Minsker on this issue more than once.  She's totally opposed to the death penalty.

Monthly Archives