September 2012 Archives

Brown Signs Anti-Juvenile-LWOP Bill

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California Governor Jerry Brown has signed SB 9, a bill that gives murderers who were 16 or 17 years old at the time of the crime a procedure to modify their "life without parole" sentence.  The Sacramento Bee has this story.

Proponents of this bill have misleadingly claimed it is about sentences imposed on "children.'  In fact, under California law no one under 16 can ever be sentenced to life without parole. 

The chaptered bill is here.

USC/LA Times Poll: 38-51 on Prop 34

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As explained in the intro post, this is a first in a series of posts examining errors in the Alarcon and Mitchell (A&M) articles in Loyola LA Law Review on the California death penalty.

I will begin with A&M's use of the case of David Murtishaw, who died of a heart attack 32 years after he was first sentenced to death.  A&M claim that this is an example of the wasteful system.  Actually, this case is an example of courts wrongly overturning valid judgments.  Further, the case illustrates how changes subsequently made would have prevented what happened in that case.

A&M do not even mention what Murtishaw did.  Writers whose goal is to convince readers of an anti-death-penalty position generally omit or soft-pedal the facts of the crime.  Given that the bottom line here is justice, however, the facts are essential, and we should always begin with the crime.

Defendant and his brother-in-law went shooting in the desert.  They came across four USC students shooting a film for a cinema class.  Murtishaw shot them all.  Two died at the scene.  One died two days later.  The fourth survived and testified.  There is no doubt whatever in this case that Murtishaw callously murdered three people.  This is an exemplar of the kind of crime that warrants the death penalty.

News Scan

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Prop. 36 Forum: CJLF President Michael Rushford took part in a KQED Radio forum today in opposition to California Proposition 36. He was joined by Prop 36 proponents San Francisco District Attorney George Gascon, and Stanford Law School lecturer Mike Romano, and fellow opponent Marin County Sheriff Bob Doyle. Prop. 36 would weaken the state's Three Strikes sentencing law by making habitual criminals whose third conviction is for a non-violent, non-serious felony ineligible for a third strike sentence of 25-years-to-life. If passed the measure would eliminate the discretion of the District Attorney and trial judge to determine if a convicted felon with two priors for violent or serious crimes is enough of a threat to public safety to justify the third strike sentence.  The measure would authorize the re-sentencing and the likely release of over 3,000 of CA's 8,800 third strike felons. The link to the audio is here. The current CJLF Advisory which reviews Prop. 36 is here.

Jury Recommends Death for CA Arsonist: The Associated Press headlines report that a jury recommended the death sentence for California arsonist Rickie Lee Fowler Friday. Fowler was convicted of arson and five counts of first-degree murder in August. The fire Fowler set burned more than 91,000 acres and 1,000 buildings over nine days in 2003. Fowler was serving a sentence for burglary when charged, and was sentenced to three 25 to life terms for sodomizing an inmate while awaiting trial for the fire. A judge will decide on the jury sentencing recommendation in an upcoming hearing.

CA Death Row Inmates Have Taken More Than 1000 Lives: Pacovilla Corrections Blog has this  response to claims that justice would be served by passage of Proposition 34, which would abolish the death penalty and make life without parole the sentence for aggravated murder.  The piece notes that the 729 killers on death row were convicted of murdering at least 1279 people. Of those, at least 230 were children, 75 were between the ages of 18-20, and 82 were older than 65. At least 211 of their victims were raped, 319 were robbed, 66 were executed, and 47 were tortured. The total includes 43 law enforcement officers and 7 security guards. 11 of the murderers were sentenced to death for killing fellow inmates. 14 death row inmates in California are responsible for about 300 additional murders they were not sentenced to death for.

Phil. Killer Granted Stay of Execution, New Penalty Phase: Sheila Steffen of CNN headlines reports that condemned  murderer Terrance Williams was granted a stay of execution and new penalty trial by Philadelphia Judge M. Teresa Sarmina Friday. Williams had been convicted of beating his victim to death with a tire iron, and was scheduled to be executed October 3. The killing was considered part of a robbery, but recently claims were made that the victim had sexually abused Williams beginning at six years old. Judge Sarmina found Williams' verdict may have been different had the abuse allegations not been withheld from the trial.

NY Association Fights Against Parole for Cop Killers: Mary Murphy of Pix 11 News reports the families of murderer police officers are forced to relive the pain of losing their loved ones biannually when preparing victim impact statements for the New York Parole Board. The Patrolman's Benevolent Association (PBA) has been working to ensure cop killers do not receive parole. A new link on the PBA's official website titled "Keep Cop Killers in Jail" lists inmates still serving time for murdering an officer who were convicted between 1968 and the present has generated more than 200,000 letters to the NY State Division of Parole.

OH Man Pleads Not Guilty in Triple Murder: The Associated Press reports Curtis Clinton has pleaded not guilty of strangling an Ohio woman and her two children Thursday. Clinton is charged with killing a mother and her 3-year-old and 18-month-old children in their home. Clinton has previously plead guilty to the strangling death of another Ohio woman and served 13 years in prison for involuntary manslaughter. Clinton could face the death penalty if convicted.

Do You Work for the Federal Government?

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For more than five decades, the U.S. government has sponsored the Combined Federal Campaign (CFC)- the world's largest workplace fundraising drive.  Each fall, beginning in September, federal employees - civilian, military and postal - are invited to support eligible national and local charities, including the Criminal Justice Legal Foundation. Almost one million employees pledge about a quarter billion dollars each year.  If you value our Foundation's work, consider including us in your CFC giving.  
An intermediate appellate court in Florida has held that Miller v. Alabama, forbidding automatic life-without-parole sentences for under-18 murderers, is not retroactive to cases on collateral review in that state.  (Hat tip: SL&P)  The case is Geter v. State, No. 3D12-1736, Third District Court of Appeal.

Florida still uses the old Linkletter/Stovall approach to retroactivity, created by the U.S. Supreme Court in the 1960s but abandoned by it in the 1980s in Griffith v. Kentucky and Teague v. Lane.  (See our recent brief in Chaidez v. United States for some of the history and citations.)  States can follow this old approach if they want to under Danforth v. Minnesota.  (They shouldn't, IMHO.)  Those that do not generally follow Teague.  Because Linkletter/Stovall is more favorable to the defendant than Teague for collateral review, this case should be useful even in the latter states.

(For cases that were still on direct review when Miller was decided, the Griffith rule requires retroactive application in all states.)

Must have been an interesting oral argument:  the murderer, now 28, not a lawyer, against the Attorney General, not a deputy.  The facts of the case are after the jump.

News Scan

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Mass. to Appeal Murderer's Sex Reassignment: The Associated Press reports Massachusetts prison officials announced Wednesday the state will appeal U.S. District Judge Mark Wolf's decision to grant convicted murderer Michelle Kosilek's request for sex reassignment surgery. Koselik, named Robert when convicted of murdering his wife in 1990, has been receiving hormone treatment and lives in an all male prison, as a woman. Prison officials argue that allowing the surgery would put Koselik at risk for sexual assaults from other inmates. Many insurance companies consider the surgery elective; transgender inmates are typically treated with hormone treatments and psychotherapy. The state Department of Corrections argues denying the request would not violate Koselik's Eighth Amendment rights as Koselik is already receiving adequate treatment. The surgery would cost taxpayers up to $20,000. 

High-Risk Sex Offender Attacked Victim Twice: Janon Fisher of the US Daily News reports Jonathan Stewart allegedly attacked and raped his victim twice on Saturday in New York according to prosecutors. Stewart, a high-risk level 3 sex offender, chased his victim down after she escaped his first attack and violently raped her again. The victim managed to escape a second time and fled naked; Stewart remained in pursuit until he saw her talking with police. Officers found a shirtless Stewart shortly after. Stewart had been previously convicted of robbing and sexually assaulting two women with a knife in 2004. He was arraigned Sunday.

Daughter, Sister of Murder Victims Opposes Killer's Parole: Larry Welborn of the Orange County Register reports that Lynette Duncan, the daughter/sister of two victims of murderer Brett Thomas, is traveling from the East coast to a correctional facility in San Diego to argue against his parole. Thomas and his accomplice Mark Titch shot Duncan's father to death with a shotgun in front of their home. One of the pellets hit her 18-year-old sister in the heart, killing her.  The pair also shot Duncan's mother, who survived the attack. Five days prior, Thomas and Titch gunned down a drive-in dairy employee during a robbery attempt. The nude body of the their first victim, Laura Anne Stoughton, 20, was found Jan. 21, 1977, on a rocky hill in East Orange, her hands clutching a crucifix. Both men pleaded guilty to taking four lives in California over the course of nine days in 1977 and were sentenced to life in prison. Fortunately for both killers, California did not have death penalty in January of 1977.  It was reinstated by the Legislature, over Governor Jerry Brown's veto, in August of that year, too late to apply to them.  

Judge Arthur Alarcon and his career law clerk, Paula Mitchell, have a follow-up article in Loyola Law Review, titled "Cost of Capital Punishment in California: Will the Voters Choose Reform this November?"  Both the purpose of the article to influence the outcome of an election and the bias of the article are evident from the subtitle.  The initiative is not to reform but to repeal.  Characterizing Proposition 34 as "reform" is odd, to say the least.

While the article bears both names, I suspect from the shrill, partisan tone that it is mostly Mitchell and not much Alarcon.  Even so, Alarcon has lent his name to these articles, so I will refer to them for short as "A&M."  In the bioblurb, Mitchell is once again identified as an adjunct professor at Loyola without mentioning her main job as Alarcon's clerk.  Whether a sitting federal judge and a judicial law clerk should be engaged in the partisan enterprise of producing a campaign document for one side of controversial ballot question is an interesting ethics question, but I will put that to one side for now.

The errors in this article and the previous one are numerous.  In each case, some background is needed to see why they are errors.  I therefore plan a series of posts explaining them one by one.  

Poll: No on 34 Has 10-Point Lead

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The latest Business Roundtable/Pepperdine poll has the "no" vote on California Proposition 34, death penalty repeal, 10% ahead, with 39.6% yes to 49.3% no.  The "no" vote also has an intensity advantage, with nearly 2/3 of the nos being "strongly no," while only 2/5 of the yeses are "strongly yes."

The trend line is also interesting.  The margin for "no" took a big jump after the Aurora, Colorado massacre and had been narrowing since.  This poll shows a 2-point increase in the margin.

The increase in the lead for "no" came not from an increase in "no" responses (which were actually down a tick) but from a 4% jump in "unsure."  This could be just a statistical glitch.  However, it could be the result of the No on 34 campaign reminding Californians just how bad these murderers are.  That would be consistent with both the loss of intensity in support for the initiative and the movement of "yes" voters into "unsure."

Japan Executions

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Our friends on the other side of the aisle love to say that the United States is the only Western democracy that still has the death penalty.  Any conservative who so limited his survey of other countries on any topic would be swiftly denounced as Eurocentric and racist for excluding the views non-Western cultures and persons of color.  It's okay for the left, though.  They have immunity, you see.

Tsuyoshi Tamura reports for the Asahi Shimbun:

A faith healer who beat six followers to death was hanged on Sept. 27, making her only the fourth woman to be executed in Japan since 1950, the Justice Ministry said.

Sachiko Eto, 65, was one of two convicted murderers put to death, taking to seven the number of executions carried out this year.

Eto's punishment was carried out at the Sendai Branch Detention House in northeastern Japan.

The slayings occurred during "exorcism" rituals in Sukagawa, Fukushima Prefecture, in 1994 and 1995. Two of the victims were male. Eto ordered the fatal beatings, which involved blows with heavy wooden sticks used for Taiko drumming, and took part in them with her followers.

Our opponents like to say that retaining the death penalty puts us in the same category as Iran, etc.  That is preposterous.  If you are going to classify countries by their criminal justice systems, the first-level categorization has to be on fundamental matters of due process of law.  Having or not having the death penalty comes considerably lower on the classification tree.

So having due process of law, not punishing people for their religion or speech, and having the death penalty puts us in the same category as Japan.  Given a choice between being categorized with Japan or, say, Italy, I'd take Japan any day.

Burglary and South Africa Crime Survey

South Africa is a country with a huge crime problem.  Today, the government released its 2012 Victims of Crime Survey.  An interesting question asked the households which crimes they feared most, with multiple responses permitted.  Housebreaking/burglary was first, followed by home robbery, street robbery, and murder.  See also this story on

An persistent error of the soft-on-crime crowd is to underestimate the severity of burglary, classifying it as "only a property crime."  That is because they see things from the criminal's viewpoint.  A criminal who break into a home and steals the television wants property and has not applied violence to any person, so it's a property crime.

From the victim's viewpoint, burglary is crime of psychological violence.  It is an invasion of our inner sanctum.  Some people can't live in their homes any more and have to move.  Replacing the television and fixing the door are trivial in comparison to the psychological injury.

In the previous attempt to amend California's Three Strikes law by initiative, the dummies proposed to take residential burglary off the "serious" felony list.  Big mistake.  I was on a panel at a Three Strikes symposium a while back and Tom Hayden, of all people, denounced what a mistake undervaluing burglary was.  I was pleasantly surprised.

News Scan

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Colo. Shooter to Submit DNA and Palm Print: The Associated Press reports Dark Knight shooter James Holmes was ordered Tuesday to submit a palm print and DNA sample to authorities by Arapahoe County Judge William B. Sylvester in Colorado. The print will be compared with a print found on the inside of the Aurora theater exit door Holmes allegedly entered through before opening fire on movie-goers, killing 12 and wounding 58. The DNA sample will be compared to other evidence collected at the scene.

DNA Links Dead US Prisoner to BC Kidnapping, Killing: Dominique Debucquoy-Dodley of CNN headlines reports that authorities announced Tuesday that Bobby Jack Fowler was linked by DNA evidence to the 1974 kidnapping and murder of a 16-year-old girl in British Columbia.  Fowler had died in 2006 while serving a sentence in an Oregon prison for a violent attack on a woman in 1995. Fowler is suspected of the murders of two teenage girls in Oregon from 1995. He is also a person of interest in a 1992 double homicide in Oregon and in nine of the 18 open cases of missing girls in Canada from 1969-1995.

Newspapers Sue to view PA Execution:  Two Pennsylvania newspapers have filed suit to force state corrections to allow them to view the entire execution of murderer Terrance Williams next week.  Amy Worden of the Philadelphia Inquirer reports that her paper and the Patriot News in Harrisburg have asked a federal judge to keep the curtain open so that reporters can watch the state's first execution in 13 years, arguing that by limiting what witnesses see to only the administration of the the lethal drugs, the state is violating their constitutional rights.  Williams, an habitual criminal, received the death sentence for murdering Amos Norwood in 1984.  Patriot News writer Donald Gilliland reports that a few months earlier, prior to his 18th birthday, Williams murdered 50-year-old Herbert Hamilton.  In both cases Williams was engaged in a sexual relationship with his victims.   

What Do Murderers Say About Deterrence?

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A common argument made by the opponents of the death penalty is that murderers don't think about punishment and therefore can't be deterred.  Has anyone asked the murderers themselves?  Yes, actually, someone has.  Professor Robert Blecker of New York Law School has spent thousands of hours in prisons interviewing convicted murderers.  (In contrast to the dubious statements defendants make to their lawyers during legal proceedings, these interviews are conducted in a context where the inmates have nothing to gain by lying.)  Blecker's research and insights are described in his book, Let the Great Axe Fall.

In March 2010, I participated in a mock trial event in London with Professor Blecker, Professor Paul Cassell, and others.  The full video of that event is here.  Those videos are large and take a long time to download.  I have excerpted Professor Blecker's anecdote on deterrence, complete with the reactions of the wigged English lawyers, into a short video, here.
What punishment do the very worst murderers deserve?  Is life in prison enough?  Sandy Friend, whose 8-year-old son was the victim of a true monster, gives us her perspective here.

Prop 34 Press Conference

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KGET-NBC has this video report on a press conference by Kern County District Attorney Lisa Green and Sheriff Donny Youngblood.

Cleve Foster Executed, Finally

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A follow-up to yesterday's post, Michael Graczyk reports on the execution for AP.

"It's offensive to us the frivolous appeals that were thrown up at the Supreme Court last minute," said Terry Urnosky, whose 22-year-old daughter's death was blamed on Foster and a partner, Sheldon Hale. "One stay after another, just delaying the closure our families sought."
*                              *                            *

"It wasn't the violent death that both Mary and my daughter experienced," her father said. "I feel it was way too easy, but it is what it is."

Foster blamed Pal's slaying on Ward, one of his Army recruits who became a close friend. Prosecutors said evidence showed Foster actively participated in her death, offered no credible explanations, lied and gave contradictory stories about his sexual activities with her.

I'm gonna take the weeks, gonna have a fine vacation
I'm gonna take my problem to the United Nations
Well I called my congressman and he said "Whoa!"
"I'd like to help you son but you're too young to vote"
Sometimes I wonder what I'm a gonna do
But there ain't no cure for the summertime blues
--Eddie Cochran

Cochran's song was ridiculous and funny.  The NAACP is ridiculous and serious, taking its complaint about not letting felons vote to the U.N.  Jamey Keaten has this story for AP.

The way to reduce the number of people who lose their vote for committing felonies is to reduce the number of people who choose to commit felonies.

Stay Denied in Cleve Foster Case

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The US Supreme Court today denied certiorari and a stay of execution in the notorious and long-running Cleve Foster case.  The Court granted a stay a year ago, see prior post, and that stay was terminated March 26 when the Court denied review of a Texas Court of Criminal Appeals decision in case 11-6427 .  Today's case is 12-6373, denying review of a Fifth Circuit decision.  Justices Ginsburg, Sotomayor, and Kagan dissent.

Michael Graczyk has this story for AP.

News Scan

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No on Prop. 34 Editorial: The Orange County Register has this editorial on Proposition 34, which if passed would reduce all death sentences in California to life without parole. About 2% of the state's most heinous criminals are on death row, the special circumstances required for a death penalty include murder in concert with robbery, rape, and torture, to kill a witness. The state has safeguards in place to ensure no inmate who may be innocent is executed. Orange County Sheriff Sandra Hutchens says the death penalty process costs are high because defense attorneys and opponents to capital punishment "have made the process as long and difficult as possible." Opponents are concerned the passing of Prop. 34 may lead to lesser punishments for the most horrific crimes. 

CA Death Row Inmates Would Vote No on Prop. 34: Bob Egelko of the SF Chronicle  reports evidence shows most of the 725 death row inmates in California would vote against Prop. 34 this November. The reason, he says, is that state funded counsel and investigators for habeas corpus are only available for death penalty cases, and by eliminating the death penalty Prop. 34 would eliminate reduce inmate appellate rights by no longer having state funded legal representation for habeas corpus. Actually the difference is not quite that stark.  Life-sentenced inmates sometimes get appointed counsel, but it is discretionary rather than a matter of right.  Voters will decide on the initiative this November.

Yolo County Releasing Inmates Early: Don Frances of the Daily Democrat reports the Monroe Detention Center in Yolo County has been releasing inmates early in response to overcrowding since AB 109 took effect last October. Yolo County Sheriff Ed Prieto said 165 of the 485 beds in the county are occupied by realigned inmates. County jails are becoming a more prison-like environment. Furthermore, before AB 109 inmates sentenced to more than three years went to prison. Inmates can now be sentenced to terms of 18 years in a county jail.

Juvenile Killer Parole Hurts Victim Families:
Elizabeth Chuck of NBC News has this article on the effect on murder victims families that a law giving juvenile killers a chance for parole after serving 25 years in prison.  Members of a support group called the National Organization of Victims of Juvenile Lifers argue that releasing these inmates would have both emotional and legal implications.

Al. Ex-Professor Sentenced to LWOP: Robbie Brown of the New York Times headlines ex-University of Alabama professor Amy Bishop was sentenced to life without parole Monday. Update to this news scan.

Highlander Recidivism

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STV News reports:

A new study has revealed almost a third of Scottish criminals are convicted of another offence within a year.

The Scottish Government has highlighted that reconviction rates within 12 months are at their lowest in 13 years at 30.1%.

Figures released by the government on Tuesday also revealed that almost one quarter of offenders convicted of violent crime reoffended within a year.

While 58.4% of offenders who were given a prison sentence of three months or less had another conviction within one year.

Demanding Release of the Blind Sheik

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Michael Mukasey, former US Attorney General and trial judge at the trial of Omar Abdel Rahman, has this op-ed in the WSJ.

Are senior Obama administration officials considering transferring to Egypt a poisonously influential Islamist cleric serving a life term in federal prison for trying to unleash a war of urban terrorism in the United States? That's the impression several officials have given over the past three months, apparently out of fear that if the cleric dies in U.S. custody, American outposts in the Middle East could be overrun by vengeful mobs.

Omar Abdel Rahman, the so-called Blind Sheik, is one of the world's leading theologians of terrorism. Abdel Rahman, who has diabetes and is in his mid-70s, is confined at the U.S. Bureau of Prisons medical facility in Butner, N.C. He served as spiritual adviser to El Sayid Nosair (in connection with the 1990 assassination in Manhattan of Meir Kahane, a right-wing Israeli politician) and to the band of terrorists who carried out the 1993 bombing of the World Trade Center that killed six and wounded numerous others (an operation undertaken in part to free Nosair from jail).

Abdel Rahman was convicted in 1995 of participating in a seditious conspiracy that included the Kahane murder, the 1993 WTC bombing, and a plot to blow up other landmarks in New York and to assassinate Egyptian President Hosni Mubarak when he visited the United Nations. I presided over the trial as a U.S. district judge; upon his conviction, I sentenced Abdel Rahman to life in prison.

Why life in prison?  Why is this man still alive to be the subject of a release demand?  Because Congress inexcusably stalled until 1994, after the crime, to enact the post-Furman/Gregg federal death penalty law.

The SCOTUS "Appeal Docket"

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There are two ways a case from a lower court can reach the US Supreme Court:  appeal or writ of certiorari.  The difference is not just technical.  On the certiorari docket, the high court can take the case or leave it, and it leaves ~99% of them.  Denial of certiorari leaves the case in the same posture as if the petition had never been filed.  The lower court decision stands, but only as a precedent of the lower court.  The Supreme Court's order denying certiorari has no precedential weight.

For a very few cases, Congress has provided for initial decision by a special three-judge district court with a right of appeal to the US Supreme Court.  They have to take it.  Most of these cases have to do with the subject nearest and dearest to the hearts of Congressmen -- elections.  Of these, the only ones relevant to the topic of this blog are the voter ID cases, voting fraud being a crime.  Prisoner release orders due to overcrowding also fall in this select group of cases.

Today the Supreme Court issued a decision reminding us that even though they have to take the "appeal" cases, they don't have to hold oral argument.  They summarily decided a reapportionment case, Tennant v. Jefferson County.  This will be the last decision of the October 2011 Term, I expect.

Voter ID cases are working their way up.  (See NLJ article yesterday.) They could be decided summarily as well.  California can also appeal the three-judge panel's refusal to modify the prisoner release order, see Brown v. Plata, but it remains to be seen if it will.

Field Poll on Prop 34: 42-45

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The Field Poll shows the "no" vote on Proposition 34, the California death penalty repeal initiative, narrowly ahead.  Release is here.

Sovereign Immunity and Prison Guards

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Generally, the United States has sovereign immunity from civil lawsuits.  Congress has made exceptions, most notably in the Federal Tort Claims Act.  In Millbrook v. United States, No. 11-10362, a federal prisoner claims he was sexually assaulted by prison guards. The Third Circuit held:

Millbrook contends that the defendant is liable under the FTCA for the alleged assault on March 5, 2010. Under 28 U.S.C. § 2680(h), the United States is generally not liable for intentional torts of its employees except for certain intentional torts committed by investigative or law enforcement officers. See 28 U.S.C. § 2680. We have limited claims that arise under § 2680(h) to cases in which an intentional tort is committed by a law enforcement or investigative officer while executing a search, seizing evidence, or making arrests for violations of federal law. Pooler, 787 F.2d at 872. Defendant argued that because the alleged assault did not arise out of conduct during an arrest, search, or seizure, Millbrook's tort claim is not cognizable.

The Third Circuit agreed that the defendant (the government) was correct.  "Thus, we agree with the District Court that while the alleged conduct is troubling, Millbrook has not shown that he is entitled to relief under the FTCA."  (He can sue the guards, but Uncle Sam has a vastly deeper pocket.)

The Supreme Court granted certiorari today.  The Court stated the Question Presented in its order: "Whether 28 U.S.C. §§1346(b) and 2680(h) waive the sovereign immunity of the United States for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to 'execute searches, to seize evidence, or to make arrests for violations of Federal law.' "

If the QP sounds a little odd, it's an odd statute:

Warrantless Blood Draws in DUI Cases

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The US Supreme Court has taken up the case of Missouri v. McNeely, No. 11-1425.  A Missouri Highway Patrol officer stopped McNeely for speeding.  McNeely appeared to be intoxicated and refused the breathalyzer test.  The officer took him to a hospital for a blood test without consent or a warrant.  The Missouri Supreme Court held that this violated the Fourth Amendment.

The Question Presented, as framed by counsel for Missouri, is "Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream."

News Scan

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Some CA Juvenile Killers May Get Parole: Paige St John of the Los Angeles Times reports California's S.B. 9 would allow juveniles convicted of murder, excluding those guilty of killing an officer or torture, to be considered for parole after serving 25 years in prison. CA has 309 juvenile offenders currently serving sentences of life without parole. The US Supreme Court abolished the death penalty for minors in 2005 and mandatory life sentences without parole for minors tried as adults in July of this year, but California law already complied with both of those decisions. The only juveniles sentenced to life without parole in California are 16- and 17-year-olds whom the trial judge determined deserved that sentence on an individual basis.  Gov. Jerry Brown will decide on the bill by the end of the month.

Ex-Professor Pleads Guilty to University Shooting: The Associated Press reports two witnesses testified Monday in the case of ex-University of Alabama professor Amy Bishop. Bishop pleaded guilty to the 2010 shooting rampage that took the lives of three university professors and wounded three others, avoiding the death penalty. Bishop allegedly continued to try to shoot her the way out of the university but her gun jammed. Bishop could also face trial in Massachusetts for the 1986 death of her brother, which was originally ruled an accidental shooting. Bishop claims the gun went off while she was cleaning it, killing her brother. Prosecutors will decide whether to charge her pending Bishop's sentence in the 2010 shootings.

AL Judge Sentences Sheriff Killer to Death: Annie Hubbell of WSFA News reports Alabama Judge Jacob Walker has overturned the jury's recommendation and sentenced Gregory Lance Henderson to death Thursday. Henderson was convicted of running over a sheriff's deputy in 2009 during a routine traffic stop. Henderson will be executed by lethal injection.

Armed Murderer Escapes Miss. Prison: Reuters headlines convicted killer Michael Dowda escaped while on maintenance work detail from Mississippi State Penitentiary Saturday. Dowda had broken into a safe house on the prison grounds and took two handguns and a white truck before fleeing. Dowda was convicted of murder in 1998 and is serving a life sentence. He is considered armed and dangerous.

NC Double-Killer Escapes from Prison: The Associated Press reports convicted double-murderer James Ladd escaped from Tillery Correctional Center in North Carolina Sunday. Officers located the tractor Ladd was operating at the minimum security prison abandoned. Ladd, who was convicted of shooting two men to death in 1981, is serving three consecutive life sentences for murder and armed robbery. He has not been found.

Col. Inmate Kills One, Injures One: The Associated Press reports an inmate at the Arkansas Valley Correctional Facility in southeast Colorado killed a female kitchen staffer and wounded another Monday. The state prison had been put on lock down following the incident.

SCOTUS Releasing Orders Lists Earlier

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The US Supreme Court press office issued this press release today:

Beginning with October Term 2012, the regularly scheduled Order Lists of the Supreme Court of the United States will be released by the Court at 9:30 a.m. rather than at 10 a.m. as had been the previous practice. On days when the Court is in session, the change will provide members of the Supreme Court Bar, the public, and the media an opportunity to review Order Lists before the Court sits at 10 a.m.

Regularly scheduled Order Lists are typically issued on each Monday that the Court sits. On occasion, regularly scheduled Order Lists are issued on days that the Court is not sitting.  The issuance of such a list is announced in advance. Miscellaneous orders may be issued in individual cases at any time. Scheduled Order Lists will continue to be posted on the Court's Website ( immediately following their release by the Court. Miscellaneous orders will continue to be posted on the Website the day of issuance or the next day in the instance of some emergency applications.

The change in practice will go into effect on Tuesday, September 25, 2012.

Today is the "long conference," when the Court considers a big stack of petitions seeking review of lower court decisions, built up over the summer.  Look for a short list of cases taken up tomorrow and a long list of cases turned down next Monday.  The Cert Pool has the conference list here.

The Guardian (London) has this video of the Reginald Clemons hearing in St. Louis. At 2:56 in the video, there is this:

Q: Did you rape both girls or only one girl?
A: Under the advice of counsel, I plead the Fifth.
What else does anyone need to know?  There are three possible answers to this simple question:  one, both, or neither.  An innocent man would have answered "neither," and the answer would not incriminate him.  Clemons's assertion that the answer would tend to incriminate him means that the answer is either "both" or "one," and therefore he is guilty.  Q.E.D.

The trial judge advises Clemons that he will take this inference into account.  Good for him.

We used to allow juries to make these kinds of inferences in criminal trials in California and some other states until Griffin v. California, 380 U.S. 609 (1965), a 5-1-2 decision with the opinion written by Justice Douglas.  Justice Harlan reluctantly concurred because, and only because, he felt bound by precedent.  Justices Stewart and White dissented.  Whether Griffin should be overruled or not, it should not be extended.  In a last-ditch effort to overturn an affirmed conviction and sentence, the defendant should not be allowed to hide behind any privileges.  He should be required to put all his cards face-up on the table, and any attempt to hide anything should be considered for all its logical implications.

Saunders on Prop 34

SF Chrontrarian Debra Saunders has this column on the death penalty repeal initiative, largely an interview with Mark Klaas.  She notes the plea bargain effect that we have mentioned here before.

Regarding Richard Allen Davis, on death row for murdering Polly Klaas, here is an update on his status.  His death sentence was affirmed on direct appeal in 2009.  His state habeas petition has been briefed and is awaiting decision.  That decision will be followed by federal habeas, but with the decision in Walker v. Martin and Cullen v. Pinholster, the federal courts will not need to review nearly as much as they used to in capital cases.  Justice is entirely achievable in this case, assuming California's voters do the right thing in November.

News Scan

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200 Inmates Fight in AZ Prison: The Associated Press reports about 200 inmates were involved in a fight in the Santa Rita Unit yard of the Arizona State Prison Complex at Tucson Thursday evening. Ten inmates were taken to hospitals, and one prison staff member was non fatally injured. Prison guards and personnel regained used no force in gaining control in the unit within a half an hour. The Arizona state prison will be locked down for several days.

Ill. Man Convicted of Shooting His Family:
Michael Tarm of the Associated Press reports Christopher Vaughn was found guilty Friday in Illinois of shooting his wife and three young children in 2007. Prosecution argues Vaughn saw his family as obstacles in the way of his new dream life subsisting in the wilderness in Canada. Vaughn was convicted of getting his family together with the promise of a road trip to a water park, only to shoot his wife and his 11- and 12-year-old daughters and his 8-year-old son. His wife was shot up through her head from under the chin; each child was shot in the head and chest. Vaughn is scheduled for sentencing Nov. 26, and faces a maximum sentence of life in prison.

Prosecutor Says Penn. Death Row Inmate's Plea a Lie: Joseph Slobodzian of the Philly Inquirer reports prosecutor Andrea Foulkes, who put Terrance Williams on death row, says that Williams' co-defendant's claim that Williams killed his victim in a sexual rage in response to alleged abuse is a lie. Williams was convicted of beating his victim to death with a tire iron. His co-defendant had testified the victim was killed in a robbery. However, Williams testified he was not present at the murder, and that his co-defendant and another man killed the victim. Attorneys for Williams filed a request with the Pennsylvania Board of Parole to reconsider the rejection of clemency. Williams is scheduled to be executed Oct. 3. Update to this news scan.

Pitts. High-rise Hostage Situation Suspect Surrendered: Joe Mandak of the Associated Press headlines armed suspect Klein Michael Thaxton in the Friday downtown Pittsburgh high-rise hostage situation has surrendered to police. Thaxton has a military background and is said to be suicidal. According to Police Chief Nate Harper, Thaxton was cooperative and made no demands, though he posted Facebook updates after taking the hostage. The Facebook page has been taken down. No one was injured, including the hostage.

GA Police Called on the Burger King in McDonald's: CBS Atlanta headlines reports that a Georgia McDonald's manager called police on the Burger King. Or rather, a man dressed as the Burger King. The man was allegedly handed out free hamburgers to customers and took pictures with several children in McDonald's before getting into his car, removing the mask, and leaving. He told police he was collecting money for charity, though the manager told police he collected no such money.

Reginald Clemons, DNA, and Taking the Fifth

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Chris King has this story in the St. Louis American on a hearing in the controversial Reginald Clemons case.  The murder in this case was committed in 1991.  New DNA testing with more advanced techniques is consistent with guilt, although less than conclusive.

The new DNA profiles conform to the state's case that Robin Kerry and Julie Kerry endured a group rape on the bridge. DNA with female characteristics extracted from the condom matches DNA with female characteristics extracted from Gray's boxers and pants, according to Stacey Bolinger, DNA analyst for the Missouri Highway Patrol. And according to Kim Gorman, DNA analyst for Paternity Testing Corp. in Columbia, this female DNA is 99.99 percent ("and really many more 9s than that") more likely to be a daughter of the Kerry girls' parents than a random person, according to comparisons to the parents' DNA profiles.

The DNA on both [codefendant Marlin] Gray's shorts and pants was subjected to a process that separates out sperm cells, enabling a separation of male DNA profiles. The male DNA on his shorts contains a mixture of at least two individuals, Bolinger said, and neither Gray nor Clemons could be eliminated from a possible match, based on a comparison to their DNA profiles. She said the male DNA on Gray's pants contains a mixture of at least three individuals, and Gray, Clemons and their codefendant Antonio Richardson could not be eliminated from a possible match.

And then there is this:

On Wednesday, Clemons refused to answer 29 questions from the state on grounds his answer could incriminate him. Initially, he pled the 5th Amendment 32 times, but after Judge Michael Manners encouraged him to meet with counsel to rethink his decision, Clemons answered three of those questions.

Regardless of whether such refusal to answer can be considered as legal evidence (and personally I don't think we need to extend Griffin v. California, 380 U.S. 609 (1965) to habeas proceedings), we can certainly consider it in public policy debates.  If Reginald Clemons were an innocent man wrongly convicted, he would be eager to tell the whole truth.


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Erik Eckholm reports in the NYT:

Samuel Mullet Sr., the domineering leader of a renegade Amish sect, and 15 of his followers were convicted on Thursday in Cleveland of federal conspiracy and hate crimes for a series of bizarre beard- and hair-cutting attacks last fall that spread fear through the Amish of eastern Ohio.
A TV report from WKYC is here.

These assaults are certainly crimes, and given the religious significance of the beards the injury to the victims goes well beyond any physical injury, but why is this a federal case?

Person-on-person crime is generally a state-law matter.  The feds necessarily get involved when there is state action in violation of the Fourteenth Amendment.  Criminal organizations that operate in multiple states and across international boundaries also warrant federal involvement, but there is none of that here.

Conspiracies to violate civil rights were made a federal crime in the Ku Klux Klan Act during Reconstruction.  The law was certainly necessary at that time, and it was necessary in the 1960s in some places where state and local governments dismally failed to provide the equal protection of the laws that the Fourteenth Amendment requires.

But in 2012 Ohio?  Against Amish defendants?  Do the Amish have local officials so cowed as to make local prosecution an inadequate remedy, as the Klan did in the Deep South 50 years ago?  Of course not.

Whether application of these laws in this case is constitutional or not, as a matter of policy it should have been left to the locals.

Texas Execution With Single Drug

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Sextuple murderer Robert Wayne Harris was executed in Texas yesterday.  See AP story here; prior post here.

How did Texas's single-drug method, adopted in July, work?  Michael Graczyk reports in the AP story, "He snored briefly as the lethal dose of pentobarbital began, then all breathing stopped."

California's three-drug method remains mired in litigation because of the risk of extreme pain when the second and third drugs are injected, if the first has not been administered properly.  The single-drug method carries a risk of snoring.

Get off your duff, Jerry.

The Problem with Libertarianism

One of the principal themes in the debate about drug legalization stems from libertarian thinking:  That it's up to the individual, not the state, to determine what a person puts into his own body.  Drugs, from this point of view, are a "victimless crime."

Only they aren't.  

In the real world, there are simply too many people who are too immature, uniformed, addiction-prone (or addicted) or just too clueless to allow legalized drug sales.   There is a legitimate debate going on about whether marijuana is sufficiently dangerous to remain criminalized  --  although it's "criminalized" mostly just in theory (visit any college campus)  --  but the broad-brush "victimless crime" theory of drugs rests on a blinkered view of the enormous amount of damage and misery drugs cause.

I'll freely concede that, for reducing drug harms, a better culture is to be preferred to law enforcement.  But until we get a better culture, it is, in my view, indecent to relax the present legal prohibitions on the recreational use of dangerous drugs, knowing how many people they will damage or kill.

Retardation Nonsense

In the 2002 case of Atkins v. Virginia, the US Supreme Court drew a "bright line" and said persons with mental retardation cannot be executed under any circumstances.  Unfortunately, the line separating "mildly retarded" from "borderline intellectual functioning" is fuzzy and actually somewhat arbitrary.

Along with the fuzziness, there have been efforts to expand the definition of retardation to include people who would not be diagnosed as retarded under any preexisting clinical definitions.

In 2000, Robert Wayne Harris was working at the Mi-T-Fine Car Wash in Irving, Texas, when he masturbated in front of a female customer.  They fired him, of course.  The following Monday he returned with a gun, robbed the car wash, and shot six people, killing five of them.  Months earlier, he had abducted and killed another woman.  He was sentenced to death.

Harris's lawyers now claim he is retarded, but his pre-18 IQ tests are above 70, the cutoff for retardation.  The only test below 70 is the one given in preparation for his trial, when he had a powerful incentive to malinger.

Harris claims his scores should be adjusted for the "Flynn effect," which is an adjustment claimed by capital defense bar and their favorite crackpot to be needed to adjust for the fact that average IQ scores in the population have gradually risen over time.  The Texas Court of Criminal Appeals held that this is "an unexamined scientific concept that does not provide a reliable basis for concluding that an appellant had significant[ly] subaverage general intellectual functioning." Neal v. State, 256 S.W. 3d 254, 273 (Tex. Crim. App. 2008).  [Plain English:  a complete crock.]

News Scan

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13 Injured in CA Prison Riot: The CNN Wire Staff headlines 13 inmates were hospitalized after a 10-minute New Folsom Prison riot Wednesday morning. The riot took place in a maximum-security inmate exercise yard. The Department of Corrections said no officers were injured. According to a California State Prison-Sacramento spokesman, about 60-70 inmates were involved, with eight of the 13 stabbed by inmate-made weapons and one inmate shot in the hip by a correctional officer.

TX To Execute Multiple Killer: Michael Graczyk of the Associated Press reports Robert Wayne Harris is scheduled to be executed by lethal injection in Texas Thursday evening. Harris confessed to killing five car wash employees in 2000. He was fired from there a week earlier for exposing himself to a female customer. A sixth employee was non fatally shot. Harris was convicted of two of the five murders. Harris also led police to the remains of a woman he kidnapped and killed months before. Harris served eight years for burglary and other offenses prior to the killings, where he was a troublesome inmate who was primarily in administrative segregation.

Prosecution Seeks Dark Knight Shooter's Notebook and 10 New Counts: The Crimesider Staff of CBS News reports that Colorado prosecutors in the case of Theater Killer James Holmes' are likely to argue Thursday for possession of a notebook he sent to a university psychiatrist that reportedly describes attack plans. On Wednesday, prosecution filed notice wanting to add 10 counts to and amend 17 other of Holmes' charges.

CA Parolee Sexually Assaults Girl One Day After Release: Ken Carlson of the Modesto Bee reports registered sex offender Kevin Michael Long sexually assaulted a 15-year-old Modesto girl Tuesday. Long was released from Corcoran State Prison one day earlier and paroled to Modesto.  After making a sexual remark to the girl, one homeless man on the bus confronted him. Immediately following the confrontation, Long lunged at the girl and was wrestled to the ground and detained by the man and three others. A witness hopped off the bus and alerted Modesto police to the assault. Long had been convicted of assault with intent to rape in 1996, and has been convicted of burglary, drug violations, and making terrorizing threats. Long is in jail facing charges of lewd acts with a minor, sexual battery, and violating his parole.

OH Executes Double-Killer: KTVL News 10 headlines Donald Palmer was executed by lethal injection in Ohio Thursday. Palmer had shot two strangers to death on a rural road while scouting out the home of his ex-wife's ex-boyfriend 23 years ago. WTRF News reports Palmer was pronounced dead at 10:35 a.m.

FL Man Uses Girlfriend's Dog As Weapon:
Huffington Post Crime has this article on Michael Wayne Jones who smashed the windshield of his girlfriend's car when she tried to drive away following an argument. Jones then pulled her small dog out of the car and began swinging it around. When his girlfriend tried to stop him, he repeatedly beat her with the dog. Jones began to choke her, then fled on bike, dragging the dog after him. Jones was apprehended by police. Neither Jones' girlfriend nor the dog was seriously injured.

New DP Poll Asking Question the Worst Way

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As we have noted here many times, polls on the death penalty vary dramatically depending on how you ask the question.  (See here and here.)  The generic question Gallup has been asking since the 30s has generally shown about 2/3 of the people in favor of the death penalty for the last couple decades.  The worst way to ask the question, among those commonly used by pollsters, is to force the respondent to choose one penalty for all murders, or perhaps all first-degree murders, and offer the choice of death or life in prison.  That question has generally produced a roughly even split.

If that were actually the question, I would say life in prison myself, as strong an advocate of the death penalty as I am.  But of course it is not.  The actual public policy question is what penalty to impose on the worst murderers.

Public Policy Institute of California has a poll out asking the question the worst way: "Which of the following statements do you agree with more? The penalty for first-degree murder should be the death penalty; or the penalty for first degree murder should be life imprisonment with absolutely no possibility of parole."  Note "the penalty," definite article and singular noun.  Death for worst and life for the rest is not offered as an option.

They get 42% for death and 50% for LWOP among likely voters.  That's a bit of a shift from the usual.  They count 8% for "don't know."  I wonder how many actually said, "That's not the question, dummy."

The Case of the Chocolate Gag Gifts

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Over two years ago, a sharply divided US Supreme Court sent back for further litigation the capital sentence of Marcus Wellons for the murder and rape of a 15-year-old girl.  There is no dispute whatever that Wellons committed the acts in question.

The reason that 5 of the 9 justices thought further litigation of this matter was needed was some chocolate gag gifts at the end of the trial.  After two plus years of litigation, the Eleventh Circuit yesterday confirmed that, although there remains some confusion about the details, the gifts were insignificant in the total picture of the trial and no reason to disturb the sentence.  Opinion is here.  Excerpt follows the jump.  Atlanta Journal-Constitution story is here.

News Scan

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Zimmerman's DNA Found on Gun: The Associated Press reports the gun used in the alleged self-defense killing of Trayvon Martin had traces of George Zimmerman's DNA on the grip and holster Wednesday. Martin's DNA was not on the grip of the gun, and no determination could be made in regards to the holster. Zimmerman admits to shooting Martin, but claims it was self-defense. Zimmerman said Martin got on top of him, slammed his head into the ground and smothering his nose and mouth. Zimmerman then grabbed the gun in the holster on his waist before Martin could get to it and shot him once in the chest. Zimmerman is charged with second-degree murder.

Death Row Inmate Requests Reconsideration for Clemency:
Karen Langley of the Post-Gazette Harrisburg Bureau reports Terrance Williams attorneys filed a request Monday to have the Pennsylvania Board of Pardons reconsider their rejection of clemency. Williams' attorneys claim a Philadelphia Deputy DA dishonestly answered a Board member's question about an allegation that prosecutors persuaded Williams' co-defendant to testify against him in exchange for parole. The prosecutor, Thomas Dolgenos, said the claim is ridiculous.  "What I told the board yesterday, that is absolutely true."   Williams is scheduled to be executed Oct. 3 but the next hearing regarding reconsideration is not until Dec. 12.  Williams has asked the court to expedite a decision to his request. Update to this news scan.

WI DOJ Seeks to Expand DNA Database: WEAU News headlines the Wisconsin Department of Justice wants to expand DNA collection to include not only anyone convicted of a felony, but also anyone arrested for a felony or convicted of a misdemeanor.

News Scan

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CA Gov. Says Early Inmate Release Not Safe for Public: During the Sept. 29, 2011 press conference on public safety realignment, California Gov. Jerry Brown stated realignment  "is a viable plan that...will not only ensure public safety but will fix a prison system that has been profoundly dysfunctional for decades." However, Paige St. John of the Los Angeles Times reports Brown's lawyers filed papers Monday stating a plan to further release inmates to meet CA's prison population cap of 137.5% imposed by the U.S. Supreme Court by June 2013 would be "a terrible idea that jeopardizes public safety." California's lawyers stated the potential dangerousness of the inmates in prison since realignment has increased. Brown's Corrections Department argues it can provide adequate healthcare to the 119,000 inmates in prison.

OH Inmate May Be Too Overweight for Execution: The Associated Press reports Ronald Post, scheduled to be executed in Ohio Jan. 16, filed Friday to have his execution delayed as his at least 480 lbs weight could lead to severe problems for executioners and serious physical and psychological pain for Post. Post was convicted of shooting and killing a hotel clerk in 1983. In Ohio, executions are carried out via a lethal single-drug injection of pentobarbital through the arm. Some of the complications and problems with Post's execution include vein access and the worry the execution gurney may not be able to hold him. The inserting of IVs into Post's arms has proven difficult for medical personnel in the past.  Post was denied gastric bypass surgery and his knee and back problems have made losing weight a challenge.  He has also been encouraged not to walk for fear of falling. A prison exercise bike had broken under his weight while at the Mansfield Correctional Institution. His severe depression also causes him unable to control his food intake.

Clemency Denied for Penn. Death Row Inmate:
Vignesh Ramachandran of NBC News reports the Pennsylvania Board of Pardons denied clemency for death row inmate Terrance "Terry" Williams Monday. The board voted 3-2 in favor of clemency, but without a unanimous vote a nonbinding recommendation to the governor to change his death sentence to life without parole could not be made. Williams was convicted of killing his victim, an alleged sexual abuser of his, with a tire iron in Philadelphia in 1984. Williams had also been serving a life sentence for killing another alleged abuser of his the year before. Williams is set to be executed Oct. 3.


Remember how death row "exonerees," sometimes mere hours from execution, have made the rounds on the abolitionist circuit, and sometimes before law school audiences and Congressional committees, to alert us to how dangerous the death penalty is?  That once an innocent prisoner is killed, there's no going back?

One such "exoneree" is a fellow named Joseph Green Brown.  As the AP story recounts:

After his release [when his 1974 conviction was overturned because of false testimony from a government witness], Brown took the name Shabaka and frequently spoke out against the injustice and finality of the death penalty, including to a U.S. House Judiciary subcommittee in 1993.

Richard Blumenthal, now a U.S. senator from Connecticut, represented Brown on appeal as a volunteer attorney for the NAACP Legal Defense Fund. He was in private practice at the time.

Blumenthal said in 1987 that the Brown case changed his view of the death penalty "because it provided such a dramatic illustration of how the system could be fallible and cause the death of an innocent person."

Sen. Blumenthal was right:  A fallible system can indeed cause the death of an innocent person.  But not in the way Blumenthal (who has been unavailable for comment) would have us believe.

News Scan

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Private Jobs Going to Prisoners: Elizabeth Prann of Fox News reports that American Apparel and American Power Source, which makes military uniforms in Alabama, will be losing their government contract and cutting many jobs in October. The positions of making military clothing will be going to Federal Prison Industries, also called UNICOR. The uniforms will also come with a 15% increase in price. FPI argues that the prisoners that work for them are 24% less likely to reoffend and 14% more likely to find log-term employment upon release.

Taxpayers to Fund Killer's Sex Change and Attorney Fees: Fox News reports that U.S. District Court Chief Judge Mark Wolf has ruled that convicted killer Michelle Lynne Kosilek, born as Robert Kosilek, will have both his sex change and legal fees covered by taxpayer dollars. Wolf ruled in favor of Kosilek's claim that his 8th Amendment right against cruel and unusual punishment was violated, making him eligible to have not only his sex change covered but awarded his attorney's fees. Kosilek's lawyers will submit their bill to the court Thursday. The Mass. Department of Corrections has until Oct. 9 to appeal the decision.

En banc Review of California's DNA Law:  A February 23 decision by a divided Ninth Circuit panel upholding California's law allowing DNA testing of arrestees is being reviewed by an 11 judge en banc panel of the court.  AP writer Paul Elias reports that the panel will hear oral argument from the ACLU Wednesday claiming that the testing of arrestees is an unconstitutional invasion of privacy and that the cold cases solved through DNA matches resulting from testing arrestees comes at the expense of civil liberties.  The California Supreme Court has already agreed to review a state Appellate Court ruling which voided the law for violating the Fourth Amendment.   Last April the Maryland Court of Appeals held that Maryland's DNA collection law was unconstitutional.  A petition for certiorari seeking review of that decision is pending in the U.S. Supreme Court.  (See prior post.)

Constitution Day and Justice Thomas

Today is the 225th anniversary of the signing of the proposed Constitution of the United States in Philadelphia.  (It didn't actually become the Constitution until ratified, of course.) Robert Barnes has this article in the WaPo on Justice Thomas's appearance at Yale Law School yesterday.

The headline above the article (probably written by an editor, not Barnes) reads, "Thomas concedes that 'we the people' didn't include blacks."

Concedes? As I have said here before, the second thing we should do is kill all the headline writers.  Where does that word "concedes" come from?

The word "concedes" implies that one is admitting a point that weighs against one's own argument or yielding on a point previously disputed.

I suspect the headline writer thinks that the fact that the original Constitution was a compromise that permitted slavery is somehow a point against the jurisprudence of original understanding, which Justice Thomas supports.  It is not.  Politics is the art of the possible, and the original Constitution necessarily had to include many compromises in order to achieve ratification.  This was one of them, and it took a Civil War and three amendments to fix it, several generations later.  But it was fixed by amendment and not by judicial activism, the latter being part of the problem rather than part of the solution.

There is no concession here.

News Scan

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Fire Camp Bill Vetoed by CA Gov.: Jim Schultz of the Record Searchlight reports that CA Gov. Jerry Brown vetoed SB 1098 Thursday. The measure would have required state corrections to provide Dept. of Forestry fire camps with more detailed information about the prison inmates they supervise.  The Governor said that inmate information is already provided.  The bill's author, senator Doug LaMalfa disagrees, saying that what the state currently provides, the inmate's name and most recent conviction, is inadequate.   The bill was introduced in response to firefighter's concerns about the criminal histories of inmates sent to the fire camps.

NC Prosecutors to Seek Death Penalty:
The Associated Press reports prosecutors announced they will be seeking the death penalty against Andrew Bernard Adams, if convicted. Adams allegedly bludgeoned a woman to death with a hammer and buried her in a shallow grave in his yard in 2007. Near his home, police found clothing and pillow cases with the victim's blood on them in a cooler. Adams had just gotten off parole that month, having served nearly 30 years for seven confessed rapes and attempted rapes.

OK Multiple Killer Avoids Death Sentence:
The Associated Press reports Joshua Durcho avoided the death penalty by pleading guilty to strangling his ex-girlfriend and her four children to death in Oklahoma Friday. Durcho was sentenced to life in prison without parole. Beyond signs of ligature strangulation on all of the victims, autopsies showed Durcho sexually abused the two seven-year-old daughters. 

Ex-Cop Convicted in Cold Case: The Associated Press reports Jack McCullough, who waived his right to a jury, was convicted Friday by bench trial of the 1957 abduction, kidnapping, and murder of a 7-year-old Illinois girl in one of the oldest unsolved murders in the US. The five-month search for the girl. that caught the eye of then-President Dwight Eisenhower and FBI Director J. Edgar Hoover, ended when her decomposed body was found in a forest 120 miles away from where she was abducted. She had been stabbed in the throat and chest. McCullough was identified by the victim's friend as the last one seen with the girl, provided a false alibi, and fellow inmates testified they overheard him talk about strangling the victim. McCullough had enlisted in the military, worked as a Washington police officer, and was a retirement home security guard when arrested in 2011.

A Novel Use for the Police

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What have we come to when the police must be dispatched to safeguard the home and family of a person who has made an unpopular (in some quarters) movie?

I don't know, and I probably don't want to know, but that's the story today from ABC News:

As outrage over the anti-Muslim film "Innocence of Muslims" spreads across the Middle East, police were sent to the California home of Nakoula Basseley Nakoula, the film's producer, who according to authorities is frightened for his life.

We are often told that, when we use increased surveillance, interrogation and security, the terrorists "have won."  This is so much nonsense.  Terrorists win when they succeed in killing Americans, as they did again this week in Libya.  We win when we stop them.

When we are unsure of our determination and ability to stop them, however, what we get is what we have now:  Some understandably terrified producer of a snarky and (apparently) offensive film about the Prophet Mohammed in fear for his life, and having to seek the protection of the police.

Question:  Why is a drone better than a courtroom? 

Answer:  A drone doesn't take ten years and counting to work.  

Live Chat on Prop 34

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The Sacramento Bee had a live chat on Proposition 34 earlier today.  The archive is available here.  The comments were moderated, so there is a lag between the time a person typed a comment and the time it appeared, if it appeared at all.

Among the most active commenters were yours truly and an anonymous "Guest."

News Scan

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TX Double Killer Gets Death Penalty: Kim Smith of the Arizona Daily Star reports Michael Carlson received the death penalty in Texas Wednesday for murdering two people in 2009. Carlson was convicted of shooting the couple he was staying with to death, throwing their bodies into trash pits on the property, then burning them. Carlson has a violent criminal history and was on parole at the time of the murders. Carlson does not agree with his defense's portrayal of him as a victim, but rather considers himself a manipulator. Carlson admitted in a TV interview to the killings, then also falsely confessed to eight other gruesome killings, which police determined never happened. Carlson also confessed to the 2003 shooting to death of his sister in Tucson.

Cameras Installed to Watch MD Police Cameras: Ari Ashe of WTOP News reports in Maryland, cameras are being installed to watch speed and red-light cameras in response to many of the cameras being damaged this year. Under Maryland law, speed cameras cannot be used for anything but pictures of speeding.

The biweekly poll on California ballot propositions by Business Roundtable and Pepperdine University is out.  The most recent results are here.  Trend line is here.  In the last two weeks, the No gained a point, the Yes gained 2 points, and the Unsure lost 3 points, yielding 50.5% No and 42.5% Yes with only 7% Unsure. 

The small "unsure" in this poll is in sharp contrast with the SurveyUSA poll noted yesterday, showing a whopping 23% undecided.  The "margin of error" you always see quoted in polls is only statistical sampling error.  Methodological differences produce additional variation.

Poll: DP Repeal Losing 30-46

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A poll by CBS5 (SF) and SurveyUSA shows Proposition 34, the California death penalty repeal initiative losing by 30-46.

On Proposition 34, which would repeal the death penalty: 30% were certain to vote Yes, 46% were certain to vote No, and 23% were not certain how they would vote. The poll data showed whites, a majority of pro-life voters, and a majority of voters in Greater Los Angeles and the Central Valley opposed the repeal; only the Bay Area and liberals supported the repeal.

The full results show a No vote greater than the Yes vote in every demographic and political affiliation category, although the margin is very thin with black voters and Democrats.  The large "undecided" factor here is also a concern, as the initiative proponents have a bigger campaign budget.
Would repeal of the death penalty really save truckloads of money and redirect it to local law enforcement, as the Prop 34 proponents claim?

The League of California Cities (almost all of which are financially strapped) apparently does not think so.  The League opposes Proposition 34.

News Scan

CA Prop 34 Radio Debate: KQED Radio's Michael Krasney hosted a live debate on whether CA should end the death penalty with Proposition 34. Debating was Death Penalty Focus Executive Director Jeanne Woodford and Criminal Justice Legal Foundation Legal Director Kent Scheidegger. The full audio is here.

Detroit Homicide Rates Rising: Huff Post Detroit headlines the murder rate in Detroit has increased by 5.2 percent since the beginning of the year, compared to last year. In a press release, the Detroit Police Department states there had been 263 homicides up to Sunday, with 250 in 2011.

FBI Begins Implementing Facial Recognition Program: Radell Smith of the Examiner reports the FBI launched a facial recognition program called the Next Generation Identification Program (NGI). Image identification was previously done through the FBI's Forensic, Audio, Video, and Image Analysis Unit (FAVIAU). The new $1B program will compare criminal images from a database to those of individuals being tracked in surveillance footage. NGI will be used in, but not limited to, cases of unknown child abductors or to locate suspects in large crowds. Only national criminal FBI database mug shots will be scanned by NGI. The FBI expects the program to be implemented nationwide by 2014.

9th Guantanamo Bay Detainee Dies:
The Associated Press reports Guantanamo Bay, Cuba detainee Adnan Farhan Abdul Latif died Saturday. He was the ninth detainee to die since GITMO opened. In 2010, a federal district court judge had ordered Latif freed, but he remained detained until the ruling was overturned by the U.S. Court of Appeals last year. Latif was one of the first to be detained after GITMO opened in January 2002. Latif was in disciplinary lockup for such acts as a hunger strike, throwing bodily fluids on guards, and his own blood on his volunteer lawyer in 2009. Latif was found Saturday in his cell, unresponsive. The military has performed an autopsy, but the findings have not been released.

News Scan

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Fresno's Ninth Murder by Realignment Offender:  Another criminal the State of California designates as "non violent" under Governor Brown's Realignment law (AB109) has committed murder.  KSEE 24 News reports that yesterday, 26-year-old Michael Crockell, a repeat felon on the street on PRCS (post-release community supervision) stabbed a Fresno woman to death, stabbed her roommate multiple times and stabbed a responding police officer.  Watch the video to hear Sheriff Dyer's take on Realignment. 

Colorado Supreme Court Upholds Ward Churchill's Firing:  The former University of Colorado professor who proclaimed that the workers killed in the World Trade Center on 9/11 were technocrats like Nazi Adolf Eichmann, has lost his legal bid for reinstatement as reported by Anthony Cotton at the Denver Post.  Churchill who was head of the school's Ethnic Studies Department had built his entire career on lies, including that he was an American Indian, which was detailed in this earlier Denver Post article.  He was fired in 2007 after academics came forward with accusations of plagiarism and fraud in his writing and research.  Churchill has promised to appeal the Colorado court's opinion to the U.S. Supreme Court.

LA Judge Will Not Order One-Drug Execution Method.  Linda Deutsch reports for AP that LA Superior Court Judge Larry Fidler denied the DAs request to order the California Department of Corrections and Rehabilitation to execute Mitchell Sims and Tiequon Cox with a single-drug method.  The ruling is on jurisdictional grounds.  No word is immediately available whether the DA will seek review of this order or proceed with a different procedural vehicle.

SCOTUS TV: On Second Thought

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Debra Cassens Weiss reports for ABA Journal:

At her U.S. Supreme Court confirmation hearing, Elena Kagan said she thought it "would be a terrific thing" to have cameras at oral arguments.

During an appearance at the University of Michigan Law School on Friday, Justice Kagan said she is having second thoughts, report and a press release.

"I have a few worries, including that people might play to the camera. Sometimes you see that when you watch congressional hearings," Kagan said. Another worry, she said, is that a clip will be used out of context.
I stand by my suggestion for minimizing the chance of people trying to make the video bite on the evening news while still providing valuable video of the full argument.  Have the arguments recorded by a single camera under the control of the court.  Embargo the recording until Saturday morning, and then play it on CSPAN.  After that, it's public record.

With the video embargoed until after the news cycle has moved on, the "play to the camera" problem that Justice Kagan notes (correctly, in my view) would be minimized.

Subsequent use of clips out of context would still be a problem, but no solution is perfect.
In the wake of the 9/11 attacks, military commissions were set up to deliver swift justice to the profoundly evil perpetrators of the attacks.  Some delays were inevitable, but few thought we would still be waiting for justice 11 years later.

The first priority upon capture of al-Qaeda honchos, of course, was extraction of crucial intelligence.  Through severe but nontorturous methods such as waterboarding, we obtained the information to prevent further attacks and eventually kill the head honcho, Osama bin Laden.  There were further delays from legal challenges, and Congress had to act more than once with legislation on detainees and commissions.

Then in 2009, we were hit with a huge and completely unnecessary delay.  The incoming Obama Administration came up with its disastrous scheme to drop the commissions and try the detainees in civilian court in New York.  Congress pushed back, to its credit, and we were back to the commissions.

Yet the process drags on.  Khalid Sheikh Mohammad is still alive, despite the lack of any question that he committed the crime or that the crime warrants death.  He has been detained so long and already spilled so much that it is highly unlikely he has any useful information left to disclose.

Military commissions are under the control of the commander-in-chief.  Does he put any priority on carrying out justice in these cases?  Not that I can see.

Eric Holder once said of these cases that "failure is not an option."  The Administration has already failed.  Excessive and unnecessary delay of justice is failure.

News Scan

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New Device Matches Fingerprints Immediately:  The Associated Press reports that a new device about the size of a cellphone is helping police in Arizona quickly match fingerprints with the state's databank in order to identify suspects.  Four AZ cities are using the Morpho/Trak devices on a free pilot program.  If purchased, they would cost over $1,700 apiece, but officers seemed to believe they're worth it.  "I absolutely love it.  It's another tool in our toolbox," a veteran Mesa patrol officer told reporters.  The story details several incidents where the Morpho/Trak helped police quickly identify and arrest suspects.

Use of Force Incidents Bad PR for LAPD:  Recent video of LAPD officers hitting a handcuffed suspect, slamming a woman to the ground and an incident where a woman in the back of a police car died may undermine hard-won efforts to improve community relations.  AP writer Christina Hoag reports that while community groups have generally praised the Department's effort to reduce use of force complaints and improve communication, the recent incidents worry the President of the Los Angeles Police Commission who cautioned that it's too early to tell of a trend toward overaggressive tactics is developing.   

DNA: Still Guilty, After All These Years

Jennifer Emily reports for the Dallas Morning News:

DNA testing confirms that death row inmate Bobby Lee Hines is guilty of the murder of Michelle Wendy Haupt two decades ago, the Dallas County District Attorney's office said Thursday.

Hines' execution was delayed in May at the request of the DA's office so testing could be performed.

Hines murdered Haupt at her Carrollton apartment in 1991. The DNA tested was found on Haupt's nails.

Arnold's Buddy Commutation Stands

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A lot of us in California had great hope for change when the Governator blew into office, but he slid downhill and ended on an especially ignominious note.  He granted a commutation to the son of a former Speaker of the Assembly, just because the ex-Speaker was his buddy.  The son had already received leniency in the form of a manslaughter conviction for an act that was probably murder.

The victim's parents filed suit to attack the commutation.  Today, the SacBee reports, Sacramento Judge Lloyd Connelly denied relief.

From the bench, Connelly said that even though he found the commutation of Esteban Núñez "distasteful," "repugnant," and "outside the normal realm...of fundamental justice," he said that the executive authority of the governor gives the office the right to make such decisions.

"It's a discretionary right," Connelly said of the governor's power to commute sentences. He added that the people, through the state constitution, have given the governor the right "to make decisions outside the normal criminal justice process."

That is completely correct.  As repugnant as the result is in this case, this is a fundamental separation of powers matter.

Jump-Starting California's Death Penalty

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

With California voters readying to consider whether to retain the death penalty, two prominent district attorneys, including San Mateo County's, are mounting a rebel legal campaign to kick-start executions in San Quentin's long-dormant death chamber.

Los Angeles District Attorney Steve Cooley has been heading the charge, moving in recent months to sidestep legal obstacles that have put executions on hold for nearly seven years and secure execution dates for condemned killers Mitchell Sims and Tiequon Cox.

Forcibly Shaving the Defendant

The military has had a strict anti-beard policy for a long time.  Major Nidal Hasan surely knew that when he signed up, and he apparently had no religious objection to compliance prior to the day in 2009 when he killed 13 people and wounded 32 others in Fort Hood, Texas.  He claims he does now.  Tough.  The NYT reports:

A military judge Thursday ordered officials to forcibly shave Maj. Nidal Hasan, the Army psychiatrist charged in the shooting rampage at the Fort Hood base here in 2009, a move that probably will delay the start of his trial for weeks as his defense lawyers appeal the ruling.

A few months ago, Hasan's assertion that he grew a beard out of devotion to his Muslim faith seemed a side issue as pretrial hearings were held at a military court on the base. But as a hearing Thursday made clear, the beard - and what Army officials can do about it - has become a complex legal issue that has suspended Hasan's trial indefinitely for the second time in the span of a few weeks.

Indiana Prisoner Study Released

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The study on "low-level offenders" by the Center for Criminal Justice Research at Indiana University's Public Policy Institute was released yesterday in a presentation to a legislative commission.  See prior post of August 23.

Maureen Hayden reports for CNHI:

A study of low-level offenders in Indiana prisons show most are repeat offenders with multiple past convictions and failed attempts at community-based supervision programs.
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"The results of this are very surprising to me," said State Sen. Greg Taylor, an Indianapolis Democrat who sits on the legislative Criminal Code Evaluation Commission. "It seems prosecutors don't want to send people to the DOC (the Department of Correction) as we might assume."

Findings from the study, conducted by the Center for Criminal Justice Research at Indiana University's Public Policy Institute, were presented to commission members Thursday. The study and its findings are significant. Prosecutors had been blamed for derailing sentencing reform legislation in 2011 that was aimed at cutting state prison costs. The legislation would have diverted low-level offenders out of the state prisons and back into community-based treatment or supervision programs.

Advocates of the plan argued that low-level offenders, especially those accused of theft and drug crimes, are taking up space that should be used for more serious offenders. But prosecutors said the study shows that the class D felons who are behind bars are there for a reason: Because alternatives to prison have failed.

What is disturbing to me is that Senator Taylor is surprised.  The steady drumbeat of propaganda that our prosecutors and judges are packing people off to prison who don't actually need to go there is being believed by people who should know better.  Most reports to that effect are by organizations with an agenda, and they should be received with great skepticism.

Unfortunately, the full report is not on CCJR's website as of this writing.  I will post a link when it is.

Update:  The authors have graciously provided a copy of the full study: IndianaOffenderStudy120905.pdf
The Sixth Circuit today upheld a trial judge's decision to exclude the defendant's fMRI lie detection evidence in United States v. Semrau, No. 11-5396.

Due to the recognized lack of real world testing, this same laboratory/real world distinction applies to the other facet of the third factor, the existence and maintenance of standards, as well as the fourth factor, general acceptance. There was simply no formal research presented at the Daubert hearing demonstrating how the brain might respond to fMRI lie detection testing examining potential deception about real world, long-term conduct occurring several years before testing in which the subject faces extremely dire consequences (such as a prison sentence) if his answers are not believed. See Fed. R. Evid. 702(c) (requiring expert testimony to be the "product of reliable principles and methods").

ABA Journal Blawg 100 Nominations

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Tomorrow is the due date for nominations for the ABA Journal's "annual list of the 100 best legal blogs."  These kinds of internet surveys don't actually mean much, but they're fun, so nominate your favorite law blog here.
Crime has not been much of an issue in the U.S. presidential race.  It is in South Korea, though.  Jaeyeon Woo has this post at the WSJ's Korea Real Time blog.
Don Babwin reports for AP:

JOLIET, Ill. (AP) -- Drew Peterson, the former Illinois police officer who gained notoriety after his much-younger wife vanished in 2007, was convicted Thursday of murdering a previous wife in a case centered on secondhand hearsay statements from both women.

Peterson, 58, sat stoically looking straight ahead and did not react as the judge announced jurors had found him guilty of first-degree murder in the death of his third wife, Kathleen Savio. Her relatives gasped, then hugged each other as they cried quietly.

Illinois has no death penalty, and Peterson now faces a maximum 60-year prison term when sentenced Nov. 26.

The trial was the first of its kind in Illinois history, with prosecutors building their case largely on hearsay thanks to a new law, dubbed "Drew's Law," tailored to Peterson's case. That hearsay, prosecutors had said, would let his third and fourth wives "speak from their graves" through family and friends to convict Peterson.

Hearsay is any information reported by a witness that is not based on the witness' direct knowledge. Defense attorneys said its use at the trial would be central to their appeal.

Savio's family members were emotional as they left the courtroom. Her sister, Susan Dorman, threw herself into the arms of her husband, Mitch Dorman.

"Finally, finally, finally. ... We finally got that murdering bastard," Savio's brother-in-law, Mitch Dorman, said.

This is one area where the Supreme Court's rewrite of Confrontation Clause jurisprudence in Crawford v. Washington may actually work to the benefit of the prosecution.  It's hard to see the statements in question being "testimonial" within the meaning of Crawford.  If a statement is not "testimonial," its admissibility becomes just a matter of state evidence law.

Brains, Politics, and Bad Neuroscience

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Blogger Neuroskeptic has this book review in the New Statesman on Naomi Wolf's autobiography of her vagina.  Here's an except:

Threats, admiration and reassurances all influence our stress levels, and stress can affect the function of the vagina. But the same could be said for any other organ: stress also affects the heart, the stomach, and even the penis. 
What's more, the study Wolf linked to in support of her idea that "a stressful environment can negatively affect vaginal tissue itself" was in rats.

News Scan

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Jurors in Drew Peterson Trial Begin Deliberations: The Associated Press reports that jurors in the case of Drew Peterson began deliberations Wednesday in Illinois. Peterson pleaded not guilty to two counts of first-degree murder in the death of his third wife in 2004. Her death was initially considered an accident, with no physical evidence collected, until Peterson's fourth wife disappeared in 2007. The case is the first in Ill. without any physical evidence.

Mother of Kidnapped, Murdered Girl Will Attend Execution: The Associated Press reports Tina Curl has raised enough money to attend the execution of her daughter's killer, Donald Moeller, in South Dakota. Moeller was convicted of kidnapping, raping, stabbing, and slashing the throat of Curl's 9-year-old daughter in 1990. The execution is set to take place between Oct. 28 and Nov. 3. Prison officials will decide the exact date and time.

TX Juvenile Rapist Up for Parole: Andrea Watkins and Damali Keith of My Fox Houston News report convicted juvenile rapist Venancio Medellin had a parole hearing Tuesday morning. Medellin confessed to raping a 14-year-old girl when he was 14 and watching 5 others rape, rob, beat and strangle the girl and her 16-year-old best friend to death in a gang initiation in 1993. Among the murderers was his older brother, the infamous Jose Ernesto Medellin, who was executed in 2008.  Medellin has become eligible for parole after serving 19 years of his 40-year sentence for aggravated sexual assault of a child. The father of the 14-year-old victim testified before the Texas Parole Board asking for Medellin to remain in prison. Three of the murderers were executed and two others who were juveniles are serving a life sentence. The parole board will announce their decision when ready.

AL Requires Prison Visitors Fingerprint Scans: Marty Roney of USA Today reports visitors at Alabama prisons are required to submit fingerprint scans as of August. Alabama is the first state in the country to impose a prison visitor fingerprint requirement policy. The fingerprints are used strictly for visitor identification verification, and are not stored in a database or shared with other enforcement agencies at any level.

TX Prisons Will Block Smuggled Cell Phones: Mike Ward of Statesman News reports TX will begin blocking calls from smuggled cell phones at two prisons later this year. The system will resemble the CA system of managed-access, and will intercept all outgoing calls and put through only previously approved calls. All other calls will be stopped.

Justice delayed=denied

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One way that a crusading anti-death-penalty lawyer can "win" his case is to drag it out so long the client dies in prison.  Last February, the Ninth Circuit affirmed the denial of habeas relief to Nevada murderer Robert Farmer:

Farmer committed a series of terrible, random crimes in Nevada in the early 1980s. In January 1982, Farmer killed Thomas Kane, a man whose car Farmer had stolen. Then, Farmer robbed and killed a Nevada taxidriver named Greg Gelunas. Farmer fled to Florida, where he was arrested and extradited to Nevada.
Today, however, the Ninth Circuit issued this order:

Counsel for Farmer has advised us that Farmer died in prison on April 24, 2012, while a [petition for rehearing en banc] he filed remained pending before this court. Because Farmer did not have the opportunity to exhaust the entire appellate process, including the possible pursuance of a petition for writ of certiorari in the Supreme Court, we order as follows:

1) Our opinion published at 666 F.3d 1228 is hereby vacated; 2) the petition for rehearing and rehearing en banc is denied as moot; and 3) this appeal is dismissed as moot.
Sacramento Bee columnist Marcos Breton has this piece today:

If you're going to argue against the death penalty, then argue against the death penalty....

But to argue against the death penalty by stating it's too expensive for California is intellectually dishonest and disrespectful to the victims of the state's most heinous criminals.

Yet that is what proponents of Proposition 34 are doing. The November ballot initiative seeks to repeal California's death penalty law and allow death row inmates to be resentenced to life without parole.

The same people pushing for Proposition 34 - the American Civil Liberties Union, among others - are the ones primarily responsible for California spending too much on death row prisoners in the first place.

Legal delays caused by the ACLU and others are a big reason why California has executed only 13 people since 1978 at a cost of $4 billion.

And yes, those numbers are obscene - just as it's obscene that California has 729 death row inmates.

But Proposition 34 will fail as an argument about money because 68 percent of Californians support the death penalty, according to a 2011 Field Poll.

But a money argument? Who in California believes it anymore when ballot initiatives claim big savings being one "yes" vote away?

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It's not extremely expensive to house serial killers and child rapists until they die? This is not to mention the horrific stories of people victimized by death row inmates - stories that will be detailed in future columns.

In truth, executions could be sped up if not for the efforts of Proposition 34 proponents.

It would be nice if some of them argued the courage of their convictions before Election Day.


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Scott Graham has this article in The Recorder (SF legal newspaper) on opinions dissenting from denial of rehearing en banc, with emphasis on the Ninth Circuit.  These opinions are also known by the shorthand term of "dissental," from "dissent" and "denial."

These opinions are often de facto certiorari petitions, thinly veiled requests for the Supreme Court to take the case up and reverse it.  They can be quite effective.  When Ninth Circuit judges Kozinski, O'Scannlain, Bea, or Callahan writes one, the Supreme Court grants certiorari 40% of the time, compared to an overall grant rate of about 1%.

The number of such opinions has declined in the last couple of years.  Judge Kozinski thinks that is proof of their effectiveness.  Judges are moderating their opinions so as not to draw a dissental and increase the chance of certiorari and reversal.

News Scan

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CA Debates Prop 34: Sam Stanton of the Sacramento Bee reports the debate over Proposition 34, which would end the death penalty and resentence death row inmates to life in prison without parole if passed, has increased with the vote approaching. Supporters of Prob 34 argue the death penalty is too expensive. However, opponents to the proposition point out supporters of Prop 34 are responsible for creating the extensive hurdles limiting the carrying out of executions in California. Since 1978, only 13 murderers have been executed. There are currently 729 inmates on death row. The primary reason for this are lawsuits challenging CA's 3-drug protocol. According to Sacramento County District Attorney Jan Scully, adopting the single-drug protocol would fix the state's death penalty system. CJLF Legal Director Kent Scheidegger noted that 13 of the inmates on death row have exhausted all appeals and could be executed immediately. CA voters will consider Prop 34 in November.

CA Death Penalty Defense Lawyers Drive Up Costs: Kevin Fagan of SF Gate reports since Douglas "Chief" Stankewitz was sentenced to death in CA, the first since 1977, 57 other Death Row inmates have died of natural causes before being executed. Stankewitz was convicted of shooting a young black Fresno woman point blank in the head. Proponents for Prop 34 argue re-sentencing Death Row inmates to life in prison without parole would save the state money. Opponents to Prop 34, including Stankewitz, say that the costs accrued by the state's death penalty process can be reduced.  Defense lawyers in capital cases are said to be making "big bucks", driving up costs by filing decades' worth of appeals in each case.

Matching Jurors in Drew Peterson Case: The Associated Press reports the 12 jurors in the case of Drew Peterson have been coordinating their court outfits the past month. The matching attire has included not only color matching, such as all yellow, black, blue or green, but also business suits and sports jerseys. Peterson has pleaded not guilty to charges of murdering his third wife, who was found dead in her bathtub in 2004. Initially, her death was believed to be a suicide, but it was reclassified as a homicide following the disappearance of Peterson's fourth wife in 2007, for which he has not been charged. Closing arguments began Tuesday morning.

Mass. Prison System to Provide Inmate Sex-Change: Kari Huus of NBC News reports that U.S. District Judge Mark Wolf ordered the Massachusetts Department of Corrections Tuesday to provide sex-change surgery for transgender LWOP inmate Michelle Kosilek, born Robert Kosilek.  Kosilek was convicted of murdering his wife in 1990. Kosilek won a initial lawsuit in 2002 which allowed him to undergo hormone treatments and live as a woman in an all-male prison. Kosilek's gender identity disorder has led to his attempted self castration and two suicide attempts.  Kosilek's lawsuit in 2006 resulted in the judge's ruling that, by failing to provide Kosilek with sex-change surgery, the state prison system had violated his 8th Amendment right to adequate treatment for his serious medical need. The Mass. DOC has not stated whether it would appeal the ruling.

Charles Manson Album Released: Alyssa Newcomb of ABC News reports a vinyl album from convicted mass murderer Charles Manson has sold a couple hundred copies at a Hollywood, CA boutique. The album includes never-before-heard tracks of Manson playing guitar and reciting poetry and spoken word lyrics dating back to the 1980s. It is said to have the sound of raw country or old blues. Manson will not make any profit or receive any royalties from album sales.

SCOTUS and Emergency Appeals

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Adam Liptak has this story in the NYT about a talk given by Danny Bickell, the US Supreme Court's emergency appeals clerk, to "a conference of lawyers specializing in federal death penalty work."  Presumably these are defense lawyers, but it appears to be largely the same talk Bickell gives to the prosecutors at AGACL every year.

Sex Offender Recidivism

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From this week's NCJRS accessions list:  Daniel B. Freedman, Determining the Long-Term Risks of Recidivism and Registration Failures Among Sexual Offenders, Federal Probation Volume:76 Issue:1 Dated: June 2012 Pages:14-18:

Recidivism, defined as new convictions in this study, was 28.49 percent. This is within the range of 20 to 40 percent found in many other studies (Hanson and Bussiere, 1998; Hanson and Morton-Bourgon, 2005). The current study found that the sample (191 individuals registered as sexual offenders in North Carolina) were at high risk for recidivism for an extended period; however, the greatest risk is during the first several years of tracking. Age was negatively associated with recidivism, but previous convictions had a positive association with recidivism. Registration failures occurred at a rate of 21.51 percent, which doubled the observations from other research (Duwe and Donnay, 2010); (Levenson et al., 2010). Registration failure increased the likelihood of recidivism by 64 percent. The correlates and predictors of recidivism and registration failures are race (Black and White), age, previous convictions, and offender type (adult victims or child victims). All data came from the North Carolina Department of Corrections, North Carolina Sex Offender Registry, and a county sheriff's department. Bivariate analysis and multivariate statistics were used in the study. Study limitations are noted, and implications are drawn for future research. 2 tables, 1 figure, and 28 references.
Note the definition of recidivism as new convictions within the 9 year period.  While the author considers that to be a "balanced" approach, it significantly understates the actual reoffense rate.  A new conviction requires not only a new offense but getting caught and proof beyond a reasonable doubt.  The actual number of new offenses is higher, but we don't know how much higher.

What does "previous convictions had a positive association with recidivism" mean in plain English?  The more times he's done it before, the more likely he is to do it again.
Now this has to be some kind of record.  Last Friday, I noted that the Democratic National Convention would feature a speech by Rhode Island Governor Lincoln "Stand in the Jailhouse Door" Chafee, who is presently battling the federal government to prevent it from seeking the death penalty for murderer Jason Pleau.

But wait, there's more.  The schedule is here.

Also speaking on the same night is Maryland Governor Marvin O'Malley.  Although Maryland has the death penalty and has cases with all reviews completed, O'Malley is preventing execution of those long-overdue sentences by refusing to promulgate regulations (which the state high court says are needed) for administration of lethal injection.

But wait, there's more.

Also up is Massachusetts Governor Deval Patrick.  A previous governor of Massachusetts, you may recall, made a valiant effort to reinstate capital punishment in that state.  Deval Patrick is a dyed-in-the-wool opponent.  He probably won't mention that tonight.

The festivities will begin with the call to order by DNC Chair Debbie Wasserman Schultz, the most annoying person in America now that Roseann Rosannadanna is no longer with us.
The high-profile backers of Julian Assange's efforts as an accessory to terrorism have already lost 200,000 pounds in forfeited bail money and are set to lose 140,000 more, according to reports in the Daily Mail and the Telegraph.  That comes to about $540,000US.


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