FL Convicted Killer Faces Death Penalty, Again: Larry Hannan of the Florida Times-Union reports that DeShawn Leon Green faces a death sentence for the March 2009 murder of a man and attempted murder of a woman with an AR15 assault rifle he called baby.  Green is already serving a life sentence for an August 2009 murder, and faces another trial for a murder in April of 2009. 

TX Girlfriend Killer Scheduled for Execution: Reuters has this article discussing the execution of Donnie Lee Roberts set for Wednesday in Texas. Roberts was convicted of shooting his girlfriend to death in their home in 2003. He confessed to killing her because she would not give him money. Roberts had also confessed to killing a man in Louisiana in 1992 for which he did not stand trial.   Update:  here. 

Matthai Kuruvila reports in the SF Chron:

People who've e-mailed Oakland Police Chief Howard Jordan over the past year about Occupy Oakland probably didn't get much of a response.

The "dog days" are usually in August, but Halloween was dog day in the US Supreme Court, as the high court heard two Florida cases on the use of drug-sniffing dogs.  Transcripts are now available in Florida v. Jardines and Florida v. Harris.  Orin Kerr gives his assessment at VC.

Based on the arguments, my guess is that the state will win one and lose one. The Court will probably agree that the Fourth Amendment was violated in Jardines, in which the officer brought the dog to the front door and the dog sniffed for drugs. On the other hand, the Court will probably rule that the Fourth Amendment was not violated in Harris because the training the dog received was sufficient.

In recent years, when cases have focused on the core Fourth Amendment question -- what the police can and cannot do -- the defense side has had their share of wins.  Sometimes I agree with the defense myself.  These cases fall in the substantive category.  When the case focuses on the distinct question of whether evidence should be excluded from the criminal trial, however, the high court has steadily taken one notch after another out of the exclusionary rule.  There are no cases of the latter type on the docket for this term yet.

...South Dakota, that is, the state's second this month.  

A South Dakota inmate was executed Tuesday night for the 1990 rape and murder of a 9-year-old girl who disappeared after leaving her home to buy sugar at a nearby store so she could make lemonade.

Becky's mother, Tina Curl, has been steadfast in her wish to watch Moeller die, even raising funds to cover the expenses to make the 1,400-mile trip from her home in New York state to Sioux Falls for the execution.

"He watched my daughter take her last breath. I want to watch him take his last breath," Curl told The Associated Press in August. "I'm doing this for her and for me."

Not exactly three amigos, but AP reports:

Three former California governors are urging voters to reject a ballot proposal next week that would abolish the state's death penalty.

Democrat Gray Davis and Republicans Pete Wilson and George Deukmejian joined murder victims' families in Los Angeles Tuesday to warn that Proposition 34 would erase history and potentially free imprisoned killers.

There are more than 700 inmates on California's death row.

Davis calls the proposal on the Nov. 6 ballot a "horrible injustice" that would reopen old wounds for victims' families.

The report notes the other side's argument:

The American Civil Liberties Union and other supporters say $4 billion has been spent since 1978 housing condemned inmates and on lengthy court appeals. They say that money could be used to investigate unsolved murder and rape cases.

But why are the appeals lengthy?  The cost of all appeals after the first is an unnecessary cost, at least to the extent they do not involve actual doubts of guilt, as they nearly always do not.  The cost of incarceration during those unnecessary appeals is an unnecessary cost.

And who opposed the bills that would have fixed this?  You guessed it:  the ACLU.

Update:  Video of the event is available in the No on 34 site's video gallery.  A longer version of the AP story by Michael Blood is here.

Earlier today, Kent explained why California's vote on Prop 34 will reverberate outside the state's borders.  I want to expand on that very briefly.

CA Death Sentence Overturned: The Associated Press reports the death sentence for Douglas Stankewitz was overturned 2-1 by a 9th Circuit U.S. Court of Appeals three judge panel. Stankewitz was convicted of murdering a woman in Fresno in 1978 and is California's longest serving death row inmate. According to Judge Raymond C. Fisher, Stankewitz may not have been sentenced to death had the jury known about the abuse he endured as a child in his home and his drug use before murdering his victim. Judge O'Scannlain dissented.  He believes the record is insufficient to conclude that there is a reasonable probability the result would have been different, and he would remand for an evidentiary hearing. The decision is here.

CA Felon Charged With Triple Murder: The Associated Press reports convicted felon Jade Douglas Harris was charged with a triple homicide in Los Angeles Monday. Harris went to a family business Wednesday in response to an ad about a car for sale. He allegedly shot two employees to death, and shot the mother of the business's owners in the face.  She survived. Harris then had the owner's sister-in-law and her 13-year-old son drive them to the home where the car was located. Harris threatened the boy, and his mother jumped in and pushed Harris. He fatally shot her.  He also shot the boy in the arm. He was charged with three counts of homicide, two counts of attempted murder, three counts of kidnapping for carjacking, three carjacking counts, two kidnapping counts, and one count of possessing a firearm as a felon. He was also charged with the special circumstances of murder while lying in wait, killing a witness to a crime, and murder in the commission of both a kidnapping and carjacking. Harris was previously convicted of robbery, attempted robbery and carrying a concealed weapon. Prosecutors will decide whether to pursue the death penalty in the case.

CA Couple Go On Crime Spree After Jail Escape: Malaika Fraley of the Contra Costa Times reports Darnell and Tania Washington have been charged with the October 5 murder of a retired teacher in Contra Costa County, east of San Francisco. The Washingtons' crime spree began after Tania helped her husband escape from San Bernardino County Jail, in Southern California, on August 28. He was awaiting trial on charges of robbery, and has been previously convicted of carjacking and robbery in Los Angeles. Darnell shot and wounded a Los Angeles County Sheriff's deputy five days later and avoided being captured. The couple fled to the San Francisco Bay area, where they drove a stolen truck and stole a hacksaw from a Kmart, fighting off two employees who tried to stop them. The charges allege Darnell then entered the home of his victim with a knife and shotgun, and fatally stabbed her. The couple then fled to Washington State, led police on a high-speed chase in the victim's car, and rammed a police vehicle. Darnell was extradited on Sunday, and Tania's extradition is pending. Darnell will go to court for plea entry on November 8.

CA Prison Recidivism Down Second Year: Don Thompson of the Associated Press reports California prison parolee recidivism has dropped for the second year in a row, 4 percent in the last two years. A study which was released Monday claims that the Correctional Offender Management Profiling for Alternative Sanctions program seems to be working. The program evaluates the risk a convicted felon has of committing a new crimes and helps prison officials provide extra supervision and rehabilitation for those inmates who need it prior to release. About 74,000, or 64 percent, of the 116,000 inmates placed on parole in the state reoffended despite the program.

CA Prison on Medical Lockdown, Chickenpox: CBS San Francisco reports an outbreak of chickenpox at California's San Quentin Prison prompted a medical lockdown. All programs and visits were cancelled last weekend. Prison medical staff is still working to determine how many inmates became infected. Officials have not stated when the prison will be resume normal operations.

Lately I have been blogging a lot on Proposition 34, so I thought I would put up a quick note on why this is not just a California issue.  Supporters of justice elsewhere in the country should also be very concerned.

This is the Battle of the Bulge.  Nationwide, we had been making progress toward an effective death penalty over the years.  We won in the Supreme Court with Teague v. Lane, McCleskey v. Zant, and Coleman v. Thompson.  We won in Congress with the enactment of AEDPA.  Then we went back to the court to implement that act with a series of decisions from Felker v. Turpin to Williams v. Taylor to Cullen v. Pinholster.

The other side has had success with a counteroffensive, though.  First they created delay and expense, and then they convinced a few legislatures that the delay and expense made the death penalty not worth having.

California is different, though.  The death penalty law is a popular initiative, and only another vote of the people can overturn it.  This is the first time in recent years that the people of any state have voted on the issue directly.  It is symbolically important nationwide, both as a direct vote and because of the size of the state.

The opponents' national strategy is to try to localize the death penalty to the South before killing it off completely.  Even if you live in a state where the death penalty is safe from legislative abolition, it is important that this isolation strategy fail.  If the bulk of the country does not have the death penalty, then federal barriers will be erected to make its enforcement impossible in the states that retain it.

As with the World War II Battle of the Bulge, I believe this is the fight that will halt the counteroffensive as resume the drive to victory.  That is why this fight is critically important, not just for California but for the cause of justice nationwide.

Ah, the strange world of political polling.

On Friday, the USC Dornsife/LA Times Poll showed the race for Proposition 34 (California's death penalty repeal initiative) to be quite close, as noted in this post.  The change was so dramatic from the previous LAT poll that the Times headline said support for the initiative "surges."  It wasn't that dramatic a change from the polls as a whole, though, as the Field Poll was similarly close, and the Business Roundtable/Pepperdine Poll showed just a 5% lead for the "no" side.

Well, the final installment of the Business Roundtable/Pepperdine Poll is out today, and it actually shows not a surge but a small drop in support for Proposition 34.  The trend line is here.  The lead for the "no" side has widened just a hair since October 11, and it now stands at 41.3% yes to 47.9% no.  The "margin of error" is 3%.  (That is actually just the 95% confidence interval on sampling.  It doesn't consider other sources of error such as methodology issues.)  The "unsure" vote comes in at 10.8%, and historically the voters remaining undecided this late tend to vote no on ballot measures. (See this post.)

Tweets Forecast Hurricane Sandy Looting Wave: Paul Joseph Watson of Info Wars reports the New York National Guard will place 1,175 troops in Long Island in response to mass amounts of tweets asking others to join Twitter users in looting once hurricane Sandy hits. Similar looting waves also took place after hurricanes Katrina and Irene. Widespread looting is anticipated to take place during Sandy.

CA Man Charged in Triple Murder: The Daily Mail Reporter headlines Grigoriy Bukhantsov was formally charged with three counts of first-degree murder in the killings of his brother's wife and two young children Friday in Sacramento. Bukhantsov's sister-in-law and her 2-year-old son were found with stab wounds to the neck and torso. The three-year-old daughter was stabbed in the chest. Bukhantsov's family had a retraining order against him due to his repeated threats to kill them. Bukhantsov has not yet entered a plea. According to Sacramento County Assistant Chief Deputy District Attorney Stephen Grippi, it could be months before prosecution decides whether it will seek the death penalty. The next hearing is set for Nov. 26.

SD Killer Set to be Executed: Steve Young of the Argus Leader reports Donald Eugene Moeller is set to be executed in South Dakota Tuesday at about 10:00 p.m. Moeller was convicted of the 1990 rape and torture murder of a 9-year-old girl. Moeller had a criminal history though his teenage and adult years of theft and sexual assaults at knife-point.

Media to Take IL Prison Tours: The Associated Press reports Illinois' Department of Corrections stated media tours of state prisons are in the works. Media including the Associated Press have been repeatedly denied prison tour requests in the past. Gov. Pat Quinn is attempting to close down two more prisons despite prisons with a capacity of 33,700 housing 49,300 inmates.

Anyone teaching a course in study methodology need a pristine example of sampling bias?  Just look at the op-ed by former correctional officer Marshall Thompson, noted in the prior post on the weekend Prop 34 op-eds.

"I helped put four men to death at San Quentin. I've known hundreds of others on death row. Not a single one of them thought he'd get caught."

Well, of course not.  By definition, the ones on death row are the ones who were not deterred.  The potential killers who were deterred did not commit the crimes and are not on death row.  They are not in prison at all, unless for some other crime.

Isn't that perfectly obvious?  Will anyone fall for such a patently invalid argument?  Sadly, yes.  Logic isn't taught much in schools any more.

Nobody on our side, that I know of, has ever claimed that deterrence is 100% effective.  (Such a claim would be preposterous on its face.)  For anecdotal evidence that the deterrent effect of the death penalty does save lives, see the video clip of Robert Blecker's testimony in the London mock trial event, linked in this post.  For econometric studies, see the deterrence page of our web site.

The FBI has released its Uniform Crime Reports statistics for 2011.  As expected from the preliminary data, this report shows crime rates down.  The National Crime Victimization Survey shows an increase in the same period.  Some possible reasons for the divergence of the two crime measures were discussed in the prior post.

The Los Angeles Daily News has pro and con op-eds on Prop 34.  Former state finance director Michael Genest (who, unlike Alarcon and Mitchell, actually has expertise in government finance) writes:

Having served for 30 years in various fiscal and budget-related jobs, I am familiar with how ballot initiatives affect the state budget, including their effects on taxpayers and on funding for public services. Based on my review of the ballot language and the corresponding "study" put forward by its proponents, I believe the claims that Proposition 34 will save money for taxpayers and schools are exaggerated, misleading and irrelevant.

James Ardaiz has this op-ed in the Sunday LA Times on Proposition 34.  Ardaiz was the prosecutor in a notorious case that disproves the notion that a murderer is incapacitated by a life sentence.  From within prison, Clarence Ray Allen arranged for the murder of witnesses to his first murder.  The first brief I ever wrote in a capital case was in the case of Allen's triggerman, Billy Ray Hamilton.  Seems like ages ago.

Allen was executed in 2006.  What punishment would we impose in a case such as this if we did not have the death penalty?  Additional life sentences?  That would be no punishment at all.

If Californians need any more reasons to vote No, the corresponding "Yes" op-ed is written by America's foremost contrarian indicator, former President Jimmy Carter.  (Mr. Carter may have been right about something at some time, but I can't remember offhand what or when.)  He repeats the usual factually wrong arguments refuted here and elsewhere many times.  Without a hint of shame, he begins, "The process for administering the death penalty in the United States is broken beyond repair...."  Of all the factors that have contributed to the malfunction of the present system, the judges appointed to the federal courts by Mr. Carter are factor number one.

An Administration in power, in the midst on an election, is taken by surprise by a terrorist attack overseas.  The Administration would like to take credit for substantially degrading the capacities of terrorists to kill Americans, but the attack leaves four Americans dead, including the United States ambassador, whose corpse is paraded through the streets, shown in gruesome detail on YouTube.

Oral argument in Chaidez v. United States, on the retroactivity of Padilla v. Kentucky, had been scheduled for tomorrow.  However, the argument has been reset for an unusual Thursday session due to the impending landfall of Hurricane Sandy.

The Court's press release is here.  CJLF's brief in the case is here.

AP reports:

California's corrections secretary is resigning next month after overseeing a historic shift in the state's criminal justice system that is sending thousands of lower-level criminals to county jails instead of state prisons.

Matthew Cate announced Friday that he will become executive director of the California State Association of Counties. The organization represents the 58 counties before the state and federal governments.

Now that's ironic.  First he oversees the state government program dumping the problem on the counties, and now he will be the spokesman for the counties saying to the state, "Hey, you dumped the problem on us and didn't give us the resources to deal with it."  That's standard operating procedure for the California Legislature, BTW.

Is Cate's departure good news?  Only if Brown appoints someone better.  I'm not holding my breath.

CA Jail Overcrowding, Short Sentences Leads to Ankle Monitor Removal: A KGET 17 Special Report headlines in Kern County some offenders being monitored by ankle bracelets are cutting them off knowing there will be little if any repercussion as a result of AB 109. The maximum sentence for removing an ankle monitor since realignment began is six months in a county jail; prior it was one year in state prison. The Kern County Sheriff's Department said the county jail is so overcrowded most sentenced serve 25 - 30 percent of their sentence. About 20 percent transferred from state prison under AB 109 about 20 percent are repeat offenders that have violated their probation two or more times. Some criminals say they would do it again because sentences are so short.

MS Senator to Introduce Sex Offender Tracking Plan: Joe Barnes of WLBT 3 reports Mississippi Senator Will Longwitz will introduce a plan in January that would place GPS trackers on the most serious sex offenders in the state. In the U.S., 16 other states have already implemented similar plans. Some sex offenders in the state have either registered their address at a shelter or are homeless. The GPS would set off an alarm any time a high-risk sexual criminal goes near schools, their victim's neighborhood, etc. By this week, 181 of the state's 7,380 registered sex offenders were non-compliant.

Sex Offenders Using Stolen Identities: Faith Abubey of WFMY News 2 reports 16% of the sex offenders in the nation are using stolen identities to avoid police detection; about 92,000 of the 570,000 registered sexual criminals nationwide according to researchers. A study funded by the Department of Justice found one in six sex offenders are using fake birthdays, addresses, and using stolen social security numbers.

Results of the latest USC Dornsife/Los Angeles Times Poll show the race for Prop 34 tightening.  When asked the straightforward question, "no" remains ahead, 42-45.  This poll then has the unusual feature of asking the same respondent about the same proposition after first reading the ballot language (which includes a hotly disputed financial assertion).  This is different from the "split sample" method, where half the sample is asked each of two different questions.  In this poll, a few people change their minds on the requestioning, putting the "yes" slightly ahead but less than a majority, 45-42 in the total sample but a razor thin 44-43 among likely voters.

Methodological questions aside, the history of polling on California initiatives is that measures with affirmative support this low this late rarely pass, whether the "yes" is ahead of or behind the "no."  Late-deciding voters tend to break toward "no," as noted in a prior post.

The cause of justice is still ahead, for now, but the financial advantage and favorable press of the friends of murderers remain cause for concern.

BTW, for those wondering what happened to the every-other-Thursday Business Roundtable/Pepperdine poll, they have broken from their usual pattern and will release their final poll next Tuesday.

Liberals generally do a lot of huffing and puffing about the disabilities that attend a felony conviction.  One of the disabilities that most concerns them is felon disenfranchisement.  In fact, however, the great majority of felons either never lose their voting rights or automatically get them restored upon completion of their sentence.  That's the case in three-quarters of the states.  In the remainder, restoration is generally possible, but may require a waiting period and/or an application to the governor.

Felons traditionally vote Democratic, says Christopher Uggen, a University of Minnesota sociologist, who co-authored a 2006 book, "Locked Out: Felony Disenfranchisement and American Democracy."

That is because felons come disproportionately from groups that align with Democrats, such as minorities, the poor and urban residents. In this group, Uggen says, "you aren't going to find too many Mitt Romney supporters."

The possibility that political preference is linked to attitude and behavior rather than merely demographics is not discussed in the article, which is nonetheless worth the read.

Hat tip to Sentencing Law and Policy.

In Ninth Circuit today refused to order restitution for victims of child pornography, finding an insufficient causal connection between the defendant's conduct, possession and transporting kiddie porn, and the injury to the victims.  Today's decision is Amy & Vicky v. USDC, No. 12-73414.  The prior decision on the perpetrator's appeal is United States v. Kennedy, 643 F.3d 1251 (2011).

In today's case, Paul Cassell, representing the victims, asked the Ninth Circuit to reconsider its prior decision based on a contrary decision by the Fifth Circuit on October 1.  The three-judge panel cannot do that, and the request will have to go to the Court of Appeals en banc or the Supreme Court.

TX Inmate Executed: The Associated Press reports that Texas executed convicted killer Bobby Lee Hines Wednesday, the state's 11th execution this year. On October 20, 1991, while on probation for burglary, Hines stabbed his victim 18 times and strangled her.  A neighbor heard screaming in the apartment complex and called police, though they were unable to identify the source. In the morning, the landlord, Hines' brother, was convinced by residents to open the victim's door, where she was found brutally murdered. His brother suspected Hines of the killing and he was arrested that morning. Hines had the victim's blood on his clothing and had several of her things with him. The Texas Court of Criminal Appeals rejected Hines' appeal last week. The opinion is here.

CO Killer to Be Tried As Adult: Clayton Sandell and Christina Ng of ABC News report 17-year-old Austin Reed Sigg was told during his first court appearance Thursday, that he will be tried as an adult.  Sigg will be charged with two counts of first-degree murder, two counts of criminal attempt, and one count of second-degree kidnapping. Because he is under 18, he will not face the death penalty and Colorado law prohibits him to be sentenced to mandatory life without parole. He was arrested after confessing to his mother that he killed 10-year-old Jessica Ridgeway. Sigg is being held without bail and his charges are expected to be formally read Tuesday. Continued from this news scan.

Judge Delays Setting CA Execution Date: Michelle Durand of the Daily Journal reports that on Wednesday a San Mateo County Superior Court Judge delayed the request by the San Mateo County district attorney to set an execution date for Robert Green Fairbank until after the Nov. 6 election. If Proposition 34 passes, California will no longer have the death penalty. Fairbank pleaded no contest and was sentenced to death for the 1985 attempted sexual assault and murder of a woman in San Francisco.  He stabbed the victim multiple times with a knife, screwdriver, and barbeque fork before lighting her on fire. The hearing was rescheduled for Nov. 16.

CA To Regain Some Prison Healthcare Control: Paige St. John of the Los Angeles Times reports operations of California's prison healthcare system is expected to be turned completely back over to the state in about two years, according to court-appointed overseer J. Clark Kelso. Negotiations are taking place as to how determine the quality of inmate care once control is transferred back to the state. On Friday, Kelso will restore some administrative functions to the state including staffing and equipping new facilities and ensuring inmates are going to hospitals, clinics, and doctor's visits. .

PA Death Row Inmate Seeks to Reopen Case: Mark Scolforo of the Associated Press reports lawyers for Pennsylvania death-row inmate Hubert Lester Michael Jr. asked a federal judge to reopen his case Wednesday despite Michael's repeated indecision about whether to appeal. Michael pleaded guilty to murdering a 16-year-old girl in 1993. The girl had posted an ad to sell a chair to which Michael responded. He later picked her up while hitchhiking, then bound, raped, and killed her. Michael was not charged with the rape due to a lack of evidence. He is set to be executed Nov. 8.

Detroit has its share of problems.  It has a bulging murder rate.  There is no death penalty (there or elsewhere in Michigan).  Its former mayor, Kwame Kilpatrick, is now on trial for corruption in placing city contracts.  Former City Council bigwig Monica Conyers, wife of Ranking Member John Conyers of the House Judiciary Committee, is in federal prison for taking bribes.  

Two spunky women have taken on the League of Women Voters, originally a women's suffrage organization but now a shill for left-wing causes.  Phyllis Loya is the mother of slain police officer Larry Lasater.  Debra Saunders is a conservative columnist in the epicenter of American leftism.  Saunders has this column today in the SF Chron, with the above title.

The League of Women Voters boasts that it presents "unbiased nonpartisan information about elections, the voting process and issues." Phyllis Loya always assumed that meant the league believed in presenting both sides of issues to its members, but recently she discovered she was wrong.

In 2005, Alexander Hamilton, 18, and Andrew Moffett, 17, robbed a Wells Fargo branch in a Pittsburg Raley's supermarket. Loya's son, Larry Lasater, then 35, was the cop who had the bad luck to find them after they crashed a stolen getaway car. As Lasater chased the suspects, Hamilton fired four shots that killed Lasater.

In 2007, a jury convicted Hamilton of first-degree murder and robbery and sentenced him to death. (Moffett was sentenced to life without parole.) Upon sentencing, Hamilton proclaimed, "I got the death penalty. I ain't got no problem with that." He also told a judge he didn't see any point in listening to Loya or Lasater's widow, Jo Ann, as they testified about the pain he had caused.

It seems Hamilton has something in common with the Piedmont League of Women Voters - the league also doesn't want to hear what Loya has to say.

Loya recently came across a press release for a Piedmont League Oct. 24 event on Proposition 34, the ballot measure to end California's death penalty. The league invited only a supporter of the measure to speak. So Loya got in touch with the group and asked if she could present an opposing viewpoint. The answer was no.

A project at UC Berkeley called the California Wrongful Convictions Project has a press release, not on its website as of this writing, claiming that California leads the country in wrongful convictions.

Given that California has by far the largest population, half again as large as number two Texas, the state "leads the nation" on just about any social statistic one cares to measure if the measurement is in raw numbers and not per capita.

On the specific question at issue in this release, the first question we should ask is whether these "wrongful convictions" or "exonerations" represent convictions of crimes that the defendant actually did not commit.  As with the notorious, discredited death row exoneration list, there is no requirement of actual innocence to get on the list.  Here are the criteria, from the Project's website:

To be included in the study, a case must (1) originate in a California state or federal court, (2) result in a conviction, (3) be reversed, overturned of dismissed on all counts by trial court, appellate court, or a federal court after January 1, 1989, (4) result in either full acquittal or dismissal on remand.

Innocence is not required.  Proof of innocence is not required.  Evidence of innocence is not required.  All that is required is that the proof of guilt remaining available and admissible at the time of retrial is not sufficient to convince a jury of guilt beyond a reasonable doubt.  Either a prosecutor decides the remaining evidence is insufficient and dismisses the case, or a jury decides the evidence is insufficient and returns an acquittal.

Our system is intentionally skewed in the defendant's favor, knowing full well that sometimes charges against guilty people will be dismissed, and sometimes guilty people who go to trial will be acquitted.  Exhibit A:  O.J. Simpson.  When such a result occurs on a retrial, that does not mean that the first conviction was "wrongful" in the sense of convicting an innocent person.  That is sometimes the case, but very often not.  See, e.g., the Timothy Hennis case.

Update:  The California District Attorneys' Association has issued a press release in response.  It is copied after the jump.

OH Execution Gurney Capable of Holding Overweight Inmate: The Associated Press reports Southern Ohio Correctional Facility Warden Donald Morgan said the execution table in the prison is capable of holding 480-pound death row inmate Ronald Post. A 420-pound prison employee was placed on the table, and 540 pounds of weights at another time, to test the weight capacity of the execution gurney. In September, Post filed to have his execution delayed, arguing his weight could cause serious problems for executioners and the table may not be able to hold him. Continued from this news scan.

CO Killer Identified, Arrested: The Associated Press headlines 17-year-old Austin Reed Sigg was arrested for the murder of Jessica Ridgeway in Colorado Tuesday night. Denver police arrested Sigg at his home, one mile from where Ridgeway lived, after receiving a phone tip. Sigg's mother told the Associated Press Wednesday that he turned himself in. He will be charged with Ridgeway's murder and the attempted abduction of a 22-year-old. Continued from this news scan.

GA Mass Murderer Pleads Guilty Mid-Trial: The Associated Press reports mass murderer Richard Ringold accepted a plea bargain in the 2009 shooting deaths of three adults and a girl in Georgia. The guilty plea was accepted moments before a survivor of the attack was to testify. She was only 7-years-old at the time of the rampage. Ringold plead guilty to avoid the death sentence, accepting life without parole.

NY Sex Offender Claims Memory Loss During Rapes: Janon Fisher of the New York Daily Times reports high-risk sex offender Jonathan Stewart told police he cannot remember raping his victim twice last month due to an alcohol-laced energy drink induced amnesia. Stewart alleges he drank five alcoholic energy drinks, vodka, and smoked marijuana prior to the attack. Stewart says he was going to jump off the Brooklyn Bridge and remembers nothing of the attack, only waking up. Continued from this news scan.

The strange last-minute maneuvering in the execution of Florida mass murderer John Ferguson is becoming a little more clear, but only a little, as documents become available.

As noted in my prior posts (here and here) and in Bill's, the state courts considered and rejected Ferguson's claim that he is too crazy to execute, a federal district judge granted a stay, the Eleventh Circuit lifted it, and the Supreme Court declined to intervene.

Then (according to the state's later application to the Supreme Court), Ferguson's lawyers went back to the same district judge.  In a phone hearing, the judge denied a stay but granted a certificate of appealability.  The same panel that had vacated the district court's stay as an abuse of discretion now granted its own, based on the issuance of the COA and its reading of the circuit rules.

If that is a correct reading of the rules, the rules need work.

The U.S. Supreme Court denied the State's request to lift the stay.

One of the issues in the COA is:

B. Whether the Florida Supreme Court's affirmance of the state trial court was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viz, that (a) the petitioner has a documented history of paranoid schizophrenia; (b) he is not malingering, and (c) he has a fixed grandiose delusion that he is the "Prince of God."

But none of those facts, individually or cumulatively, establishes a Ford claim.  One can have paranoid schizophrenia and a grandiose delusion and still have a rational understanding of why he is being executed.

Oh, God, not again.

From the standpoint of victims of crime, there is no question that a United States Senate with a Republican majority will be far better than our present Democrat-majority Senate.  In particular, a Judiciary Committee chaired by Chuck Grassley would be a vast improvement for victims of crime and the law-abiding public over the present committee chaired by Patrick Leahy.

Yet the majority that once seemed within reach has grown another step more distant today, as a Republican candidate in a tight race has made an astonishingly stupid comment about rape and pregnancy.  This time it is Richard Mourdock in Indiana.  Aaron Blake and Chris Cillizza have this post at the WaPo with Mourdock's statement and sort-of-apology.

It is better for rape victims, along with all victims, if Mourdock wins the race, but he is not helping himself or them with a boneheaded comment and an insufficient retraction/apology.

The LA Times has an editorial today on Proposition 34, the California death penalty repeal initiative.  As is typical of the political left, they attempt to portray those who disagree with them as ignorant and basing their positions on emotion rather than reason.  (Remember "bitterly clinging to guns and religion"?)  I posted this comment:

This editorial is, to use VP Biden's word, pure malarky.  It asserts without support that the murderers on death row are more likely to die of old age than be executed.  Nonsense.  Although the appeal process is long, the cases are coming down the pipeline.  As The Recorder reported earlier this week, California is likely to see a resumption of executions in substantial numbers once the lethal injection litigation is resolved, just as happened in Arizona.

The editorial refers to a "respected" study on costs.  Respected by whom?  This study is badly flawed, exaggerates the costs of the death penalty, and ignores important offsetting costs of life without parole, including the escalating costs of medical care for aging life prisoners.

The editorial scoffs at the idea that life-sentenced murderers will ever be released.  It ignores the fact that the never-parole promise has already been broken with respect to the 17-year-old murderers.  Even though some were sentenced to life-without-parole, promising the families they would never have to worry about release, the Legislature passed and Gov. Brown signed a bill to recall those sentences and modify them.  Once the death penalty is off the table, the assault on life-without-parole begins.

Far from "visceral notions of revenge," it is the No on 34 position that is based on common sense.

Remember bell bottom jeans and love beads?  Many here won't.  Kent and I do.  So does John Errol Ferguson, a spree killer who did it because he enjoyed it.  He killed at least eight people in 1977 and 1978.  No sane person doubts his guilt.

First, let us remember what this man did.  In 1977, he gained entry to a home posing as a power company employee.  He bound eight people and shot them while they were helpless, killing six of them.  The next years, he murdered a 17-year-old couple after raping the girl.  Details from the Eleventh Circuit's opinion follow the jump.

As reported in today's News Scan, the Eleventh Circuit vacated the stay entered by the federal district judge.  The U.S. Supreme Court denied three stay application here, here, and here.

CJ Roberts is recused, probably because Ferguson is represented by his old law firm.  No dissents are noted.

The execution was scheduled for 6:00 p.m. EDT, but that time has passed.  There are no press reports as of this writing on completion of the execution.  AP has this story.  David Ovalle has this story in the Miami Herald:

Michael Worley, Belinda's brother and only surviving relative, told The Miami Herald this month that he is upset over years of delays.

"Outrageous is the fact that for 34 years, our tax dollars have been keeping Ferguson alive. Free food, medical care and the ability to communicate with his loved ones and lawyers," he said. "My sister was brutally killed at the age of 17. Her murder shattered our entire family. Life was never the same."

Update:  See follow-up post here.

FL Inmate Stay of Execution Overturned: Michael Peltier of Reuters reports a federal appeals court ended the stay of  execution of John Errol Ferguson Monday. The court determined that the stay issued earlier by U.S. District Court Judge Daniel T.K. Hurley was an abuse of discretion.  The opinion is here. Ferguson's lawyers are now seeking an emergency stay from the U.S. Supreme Court. Ferguson is set to be executed Tuesday at 6:00 p.m. Continued from this news scan.

Prop 34 Ads Make An Appearance: Howard Mintz of Mercury News reports campaigns both in support and opposing Prop 34 released ads this week. Maura Dolan has this article in the LA Times.  Prop 34 advocates argue eliminating the death penalty would save the state money. The supporters ad focuses on the case of Franky Carillo who was deemed innocent after serving 20 years for murder. However, opponents point out Carillo was not a death row inmate and that there are no innocent people on death row. They remind voters that only the most heinous killers are on California's death row. There will be a public event in San Jose Tuesday in which Santa Clara County District Attorney Jeff Rosen, San Mateo County District Attorney Steve Wagstaffe, and Marc Klaas, father of Polly Klaas, will speak against repealing the death penalty.

RI Child Killer Will Have Absentee Vote: Abbey Niezgoda of ABC 6 reports convicted child killer Michael Woodmansee will be voting in the upcoming election after all. The Rhode Island Board of Elections gave Cranston Board of Canvassers Chairman Joseph DeLorenzo an ultimatum Monday: sign off on Woodmansee's ballot or be criminally charged for dereliction of duty. DeLorenzo resigned that day as he was unwilling to let a convicted killer who may be insane vote. Another member of the board resigned last week. Two new board members were appointed with the understanding they would sign off on Woodmansee's ballot, which will be certified Tuesday. Continued from this news scan.

Inmate Assault Escalates to Brawl, NY Prison Locked Down: The Associated Press reports the Five Points Correctional Facility in New York was locked down Sunday night after an inmate assault escalated and two prison guards were injured.  The New York Department of Corrections and Community Supervision says the prison will be locked down a total of five days.

CO Unidentified Killer's DNA Matches Attempted Abductor: Cindy Adams of the Examiner headlines DNA which was recovered in the case of murdered 10-year-old Jessica Ridgeway matches the DNA of a man who attacked a 22-year-old in May. The suspect is described as a 5'6" to 5'8" white male with a medium build. Investigators reportedly found a clump of blonde hair believed to belong to Ridgeway and receipts from a local store where garbage bags were purchased.  Ridgeway's dismembered body was found in a garbage bag in a park. Footage from the store's surveillance is being checked in hopes of identifying who made the purchase. 

The Ninth Circuit decided an interesting case today of a card counter versus a casino, Tsao v. Desert Palace, No. 09-16233.

The case does not (and does not need to) resolve whether counting cards in blackjack is a crime.  A casino can, however, declare a person persona non grata, after which that person's entry into the casino is a trespass.  [I got thrown out of a casino on that ground once myself, many years ago.]  The case actually involves the options available to casino security guards, who are not police officers but do have a kind of citation authority, along with citizen's arrest.  It's complicated.  Anyhow, the Ninth resolves the federal questions in favor of the casino and remands to district court to decide if it still wants to exercise pendent jurisdiction over the state-law claims.

FL Inmate Granted Stay of Execution: Debra Cassins Weiss of the ABA Journal reports that John Errol Ferguson was granted a stay of execution Saturday in Florida by U.S. District Judge Daniel T.K. Hurley. In an emergency motion, Ferguson's lawyers told the court that he believes he is a prince of God and cannot be killed. A hearing will determine whether Ferguson is competent to be executed. Judge Hurley will hear arguments Friday. This news scan continues from this post.

FL Jail Officials May Create Inmate Tattoo Database: WKMG Local 6 headlines Florida jail officials may create an inmate tattoo database in hopes of aiding investigators in locating unidentified suspects. Capt. W.F. McClelland said the database is in the early stages of planning. Jail officials and county attorneys are deciding on issues in order to set the policy. The issues include such considerations as whether the database would include all or only visible tattoos, and photographs or written descriptions of the tattoos. Two jail lieutenants will be moving forward with the policy once the decisions are made.

No Set Data Standards in CA to Discern Realignment Effects: Heather Tirado Giligan of the Sacramento Bee reports after one year of realignment there is no direct answer as to whether AB 109 has been effective or not. Opponents blame realignment for the surge in crime in many counties; jails are overcrowded and many may be released into counties early. However, police data appears to be showing mixed information. While some cities like Stockton have homicides increasing, Sacramento's murder rate is down 18.5 percent. Oakland's rape and robbery rape are both up by about 20 percent, though in Los Angeles violent crime is said to be down 7 percent. At this point there is no set method for counties to report specific data or standard for what data is to be reported.

The News-Tribune in Tacoma, Washington has one of the most perceptive editorials on a judicial race I have seen in a long time, aptly titled "Our tortured pick for state Supreme Court: Sanders."  In the primary for Washington Supreme Court, the voters had a choice between the good, the bad, and the OMG.  In the general election, it's down to the latter two.

Not that we don't like Richard Sanders and Sheryl Gordon McCloud. Each is highly intelligent and devoted to the law. It comes down to the role of the judiciary. Either McCloud or Sanders would bring a settled ideological agenda to the cases that reach the high court.

Sanders is a doctrinaire libertarian. McCloud is what used to be called a flaming liberal. Passionate political beliefs keep the fires of democracy burning, but good court decisions aren't born in furnaces. Sanders and McCloud both appear likely to equate their personal philosophies with constitutional dictates.

Used to be?

This is a matter of degree and temperament. Every judge brings a personal approach to the law, but sometimes the law is bigger than the judge. We don't think Sanders gets this.

Unfortunately, we have precisely the same concerns about McCloud.

Scott Graham has this article, with the above headline, in The Recorder, a San Francisco legal newspaper available on law.com.

Graham notes that Arizona had a decade-long hiatus in executions, as the Ring v. Arizona problem and execution protocol challenges were worked out.  "But executions resumed in Arizona in 2010 and are now moving at a rapid clip: The state has executed 10 men in the past two years, more than any state other than Texas."  The same could happen in California.

Kent Scheidegger of the Criminal Justice Legal Foundation, a victim rights organization, agrees the Ninth Circuit has become less of an obstacle. The number of inmates who've exhausted their habeas claims since 2006 ­-- 14 -- is more than the entire number executed since California re-established capital punishment in 1977, he points out. "There's nothing but this execution protocol holding them up," Scheidegger says.

There are a total of 15 that have completed federal habeas, but one has an Atkins claim pending on state habeas, so 14 are being held up by the protocol litigation.  See this post.

"Your honor, my genes made me do it."

That is the headline above this op-ed in the WSJ by Judith Edersheim, Bruce Price, and Jordan Smoller.  "Drs. Edersheim and Price are co-directors of the Center for Law, Brain and Behavior at Massachusetts General Hospital and Harvard Medical School. Dr. Smoller is on the center's scientific faculty."

Experts at the University of Utah, led by psychologist Lisa Aspinwall, conducted an experiment using a hypothetical defendant. It suggested that if a judge is presented with testimony that the defendant's violent or criminal behavior is in part caused by a genetic predisposition to aggression or criminality--and if he is told that research shows that the brains of psychopaths look different from those of nonpsychopaths--the judge is likely to impose a lighter sentence. The study has generated widespread attention. It implies that judges may be more lenient if they are persuaded that a person didn't have free will because he was, in effect, born to be bad, and his brain and genes "made him do it."

*                                    *                                 *

In the hypothetical presented in the Science paper, a make-believe scientific expert testified that psychopathy has a neurobiologic cause--a gene variation (low monoamine oxidase, or MAO-A, activity), atypical brain functioning (in the amygdala) and other neurodevelopmental factors. While this argument is now becoming common in real criminal cases throughout the country, it represents an unfounded exercise in biologic and neurological determinism.

In other words, just because the testimony is junk science doesn't mean it won't get less time for the defendant.

In the debate over California's death penalty repeal initiative, Proposition 34, the Yes side has a lot more money than the No side, much of it from out of state.  The Yes side has enough to run TV ads.  As is characteristic of the anti-death-penalty movement, the ad tells a misleading half truth.

The ad begins with a young actor playing then-16-year-old Franky Carrillo being arrested.  It then asserts he was wrongly convicted of murder.

The ad leaves out an essential fact.  Carrillo was never in danger of the death penalty.  At no time in modern history* has California allowed that penalty for anyone under 18 at the time of the offense.

Why do the proponents of Proposition 34 keep talking about irrelevant cases, either noncapital or non-California?  With the number of death sentences in California in the modern era approaching 1000, why don't they talk about a relevant case, where a person sentenced to death in this state is now known to be innocent?

Because they don't have any.  What does that tell us?  California prosecutors and juries have been very selective in the cases in which they seek and impose the death penalty.

* See, e.g., People v. Ellis, 206 Cal. 353, 356 (1929), citing a 1921 statute.

Update:  Howard Mintz has this story in the San Jose Mercury News.  Video of the Yes ad and the No ad (the latter only on the Internet, not television, unfortunately) are at the bottom of the story.

...looks like this: 

Italian Scientists Convicted over Earthquake Warning 

L'AQUILA, Italy (Reuters) - An Italian court convicted six scientists and a government official of manslaughter on Monday and sentenced them to six years in prison for failing to give adequate warning of a deadly earthquake which destroyed the central city of L'Aquila and killed more than 300 people in 2009.

Wait a minute, you might have thought upon seeing the heading.  That's dog bites man, not news.

What is different in the complex immigration case of Garfias-Rodriguez v. Holder, decided en banc by the Ninth Circuit Friday, is that CJ Kozinski's individual opinion is actually captioned that way.

Joe Palazzolo has this post at WSJ Law Blog.

In the Saturday WSJ, Richard Garnett of Notre Dame Law School reviews John Jenkins' hatchet-job biography of the late Chief Justice Rehnquist.  The paragraph most pertinent to the topic of this blog is:

The author's discussion of Rehnquist's death-penalty jurisprudence is typical. Mr. Jenkins takes for granted the correctness of the court's sweeping decision in a 1972 case to hold the death penalty unconstitutional. Although he is willing to concede that "there was more to Rehnquist's philosophy than mere blood lust," Mr. Jenkins dismisses Rehnquist's principled dissent from that decision, and his subsequent vote with the majority in 1976 to reinstate the death penalty, as "his excuse to add giddy-up to the system."

The book is titled The Partisan, but the title may be a more accurate description of the author than the subject.  "It is a tediously partisan, relentlessly tendentious and superficial expansion of a similarly flawed New York Times Magazine profile published more than 25 years ago."

Jenkins' use of the term "blood lust" is sufficient to demonstrate that his perspective is fatally tainted by his views, so as to make the book not worth reading.  It is quite possible to write a biography of someone the author strongly disagrees with and remain objective, but this term indicates either an inability or an unwillingness to understand the other side's viewpoint.  I'll save my $28.99 (plus heavy California sales tax) and pass on this book.

[The above block quote is from the on-line version.  The print version has an error in the date of Gregg v. Georgia.]

Coming soon to a DSM near you?

Shirley Wang reports in the WSJ that the forthcoming edition of the Diagnostic and Statistical Manual of Mental Disorders, the DSM-V, may include the above disorder, "a condition characterized by children who are constantly irritable and can be explosive. This differs from bipolar disorder, which is characterized by periods of depression and 'manic' episodes--extreme swings of happiness or irritability."

Part of the concern is that kids are being diagnosed with bipolar disorder when they don't have it and given drugs that don't do any good.  Trimming back on the rampantly overdiagnosed bipolar disorder would be a good thing overall.  The problem, as all of us involved in criminal law know from long experience, is that any new diagnosis that is plausibly related to misbehavior will be seized upon as an excuse, misdiagnosed in people who do not have it for the purpose of evading deserved punishment for voluntary acts.

Manson Family Suspected of Committing 12 Unsolved Murders: Samantha Tata and Robert Kovacik of NBC Los Angeles report that LAPD has opened investigations into 12 unsolved murders similar to those committed by Charles Manson and his followers. LAPD detectives are working to gain access to hours of audio recordings from about four decades ago between former Manson Family member and convicted killer Charles Watson and his lawyer. Smith believes the recordings will help detectives solve the cold cases. Watson, of course, opposes access to the content of the tapes. A Texas Bankruptcy Trustee has custody of the tapes until the LAPD can take possession. Watson is currently serving a life sentence in California's Mule Creek State Prison.

RI City Board Will Not Approve Child Killer's Absentee Vote: Abbey Niezgoda of ABC 6 reports that convicted child killer Michael Woodmansee has asked for an absentee vote from the mental hospital he checked in to upon being released from prison 12 years early. Woodmansee had confessed to sexually assaulting and murdering a 5-year-old boy in 1983.
Paul Davis of the Providence Journal has this update reporting that Cranston Board of Canvassers Chairman said Friday he will not approve Woodmansee's request.

Bay Area Officers Considering Unmanned Drones: Stephanie Chuang of NBC Bay Area reports Bay Area law enforcement agencies are considering replacing helicopters with drones in an attempt to cut costs.  Alameda County Sheriff Greg Ahern tested an Unmanned Aerial System a year ago and is now considering getting the first UAS in California. The drone weighs only four pounds and has a wingspan of four-feet. The birds-eye view the drone would provide, particularly in hostile situations, information unattainable by tactical officers on the ground without endangering their lives. Though drone manufacturers have considered offering police models armed with tasers, rubber bullets, and tear gas, Ahern opposes that option.  

3 Views From CA On Closure and the Death Penalty: Lisa Aliferis of KQED has this article discussing three views on whether the death penalty provides closure. First, Marc Klaas, father of 12-year-old Polly Klaas who was kidnapped and murdered by Richard Allen Davis, opposes repealing the death sentence and argues that the death penalty is the only fair punishment for the most heinous killers. Klaas said he has talked with families of victims who have found closure from seeing the killer of their loved ones executed. Former Warden of San Quentin Jeanne Woodford disagrees saying the desire to have the person who murdered a family member dead is a natural reaction but does not provide closure. Lastly, Gayle Orr, whose 19-year-old daughter was stabbed and killed, supports Prop 34 and argues forgiveness, not execution, is the path to closure.

There are three official presidential debates, but the candidates appeared on the same platform last night at the Alfred E. Smith Memorial Foundation Dinner.  CSPAN has the video.  The dinner is a fundraiser for a Catholic charity named for the four-time governor of New York and 1928 presidential candidate.

Bonnie Dumanis, District Attorney of San Diego County, held a press conference yesterday to urge a no vote on Proposition 34.  Angelique Lizarde has this video report for KFMB (CBS 8).  Dana Littlefield has this story for the San Diego Union-Tribune.

Opponents of the death penalty regularly claim that a life sentence prevents a killer from killing again just as effectively as an executed death sentence.  But it doesn't.

Bill Lindelof reports for the Sacramento Bee:

The death of an inmate at New Folsom prison is being investigated as a homicide.

The 51-year-old inmate was found unresponsive in his cell a little after 9 p.m. Wednesday during a prisoner count. His name has not been released.

The inmate has been in prison since Dec. 10, 2001, serving a 25-year-to-life sentence from Contra Costa County for assault with intent to commit a sex act. Cause of death was not released.

His 46-year-old cellmate has been identified as a suspect in his death and is being housed in a segregation unit pending the investigation, according to a prison press release. The suspected killer has been in state prison since Nov. 9, 1986, serving a 17-year-to-life sentence from Alameda County for second-degree murder.

In this case, the prior could not have been a death sentence, as that sentence is not available for second-degree murder.  That is why we divided murder into degrees in the first place.  The case illustrates, though, that life-sentenced murderers can and do kill again.

Is the controversial National Academy of Sciences report "Strengthening Forensic Science in the United States: A Path Forward," a "learned treatise" that the defense can use to cross-examine the prosecution's fingerprint expert under FRE 803(18)?

No, said the D.C. Court of Appeals in Gee v. United States.

A jury found appellant Rashaun Gee guilty of first-degree burglary while armed (knife), assault with intent to kill while armed, aggravated assault while armed, malicious disfigurement while armed, and attempted first-degree sexual abuse while armed, all in connection with an attack on victim Rachel Moretta.

The evidence included his fingerprints on the kitchen window (where he entered) and a T-shirt with his skin cells on the collar and blood stains from the victim, both matched by DNA.  The trial court rejected the defense's attempt to discredit fingerprint matching with the NAS report, and the Court of Appeals affirmed.

Zoe Tillman has this report at BLT.

The U.S. Supreme Court has granted a stay to Anthony Haynes, sentenced to death for killing Houston Police Sgt. Kent Kincaid in 1998.  Alan Turner has this story in the Houston Chronicle.

The Supreme Court's order is here.  Justices Scalia and Alito dissent.  The Fifth Circuit opinion is here.  The case raises issues related to last term's decision in Martinez v. Ryan.

Oakland City Council Candidate Robbed After Crime Prevention Meeting: Henry Lee of the SF Gate reports Oakland City Council Candidate Dan Kalb was robbed at gunpoint after attending a neighborhood crime prevention council meeting. Kalb had just gotten out of his car and was grabbing things out of his car when he felt something lightly poke his ribs. He turned around and saw the robber with a gun pointed at him who demanded Kalb's iPhone. Kalb immediately went home and called the police after the assailant told him to run. This occurred on the same day the Oakland Police Chief reported that crime in the city has increased by 20% compared to last year.  The SF Chronicle story is here .

Overcrowded Merced Jails Stop Accepting Parole Violators: Victor Patton of the Merced Sun-Star reports on a Merced County Sheriff's Department announcement Wednesday that the county's jails will no longer book some parole violators due to overcrowding due to AB 109, Governor Brown's realignment law. According to a sheriff's spokesperson, only parolees who get new criminal charges, active warrants, serious parole violations, and sex offenders will serve time in the jails. All other parole violators will remain at home or on the streets. Though the implementation will be case-by-case, many local law enforcement leaders are very concerned.

The U.S. Supreme Court has denied a stay to Florida mass murderer John Errol Ferguson.  The Miami Herald had this story yesterday on the Florida Supreme Court's denial of relief and described Ferguson's crimes:

Ferguson was convicted of the July 1977 murders of six Carol City residents during a home-invasion robbery. At the time, it was the worst mass murder in Miami-Dade history.

Ferguson, now 64, also was convicted separately of murdering two teenagers, Belinda Worley, a 17-year-old Hialeah High School senior, and Brian Glenfeldt, 17, in January 1978.

The two teens had gone out for ice cream, and Ferguson pretended to be a police officer when he stopped them. He shot Glenfeldt to death and raped and murdered Worley, and stole her class ring.

The Florida Supreme Court's corrected opinion of October 8 denying Ferguson's third state collateral review petition is here.  Among the claims denied is the notorious Lackey claim that it is unconstitutional to carry out a judgment that the defendant has succeeded in delaying so long.  Justice Breyer and retired Justice Stevens have been favorably disposed to that claim in the past, but the Court has never accepted it.

The Florida Supreme Court's affirmance yesterday of the trial court's finding that Ferguson is sane enough to be executed is here.  The state high court found that Panetti v. Quarterman does not require reconsideration of its standard for competency in Provenzano v. State, which is based on Justice Powell's concurring opinion in Ford v. Wainwright.

Justice Breyer dissents and would grant the stay.  From the docket, it appears that this petition challenges the first Florida Supreme Court decision above.  I suspect that the Lackey claim is the basis of Justice Breyer's dissent, though there is no opinion explaining the basis.  Chief Justice Roberts is recused.

Off topic but interesting.  Jimmy Kimmel's crew went out on Hollywood Boulevard to ask people, "Who won the presidential debate last night?"  The video is here.

The unusual aspect of this poll is that it was conducted the afternoon before the debate.

LA DA Steve Cooley has this press release:

LOS ANGELES - District Attorney Steve Cooley announced today the arrest of Assessor John Noguez, his chief appraiser and Arizona tax consultant Ramin Salari on charges they engaged in an elaborate and complex conspiracy to slash property values and save millions in property taxes to help Salari's clients.

The Bureau of Justice Statistics released its annual survey of crime victimization, and the news is not good.  Violent crime (excluding homicide) is up 17% from 2010 to 2011, and property crime is up 11%.

These numbers are obtained from surveying a representative sample of people, as is done in public opinion polls, about crimes committed against them personally.  That is why it does not include homicide.  It provides a cross-check on the FBI's numbers of crimes reported to police, which suffers the defect of not including unreported crimes.  The BJS press release is here.

Page 7 of the report notes that the FBI's numbers did not increase much in the same period.  "Because the NCVS and UCR measure an overlapping, but not identical, set of offenses and use different methodologies, congruity between the estimates is not expected."  "Looking just at NCVS victimizations that were reported to police, the change in the number of overall violent and property crimes from 2010 to 2011 was not statistically significant."  Is crime up while people are reporting it less?  The percent reported in Table 8 shows some changes in reporting rates for all crimes, with the overall reporting rate down 4% for violent crime and 6% for property crime.  The reporting rate for rape shows a dramatic drop.  The drop is a matter of concern, but it does not account for the variance between the two crime measures by itself.

The good news is that violent crime remains 72% below the levels of 1993, when tough policies began to take hold.  Whether the 2011 increase is the result of the growth of soft policies (mislabeled "smart" by the people who have forgotten history and are trying to condemn us to repeat it) remains to be seen.

Update:  AP has this story on the report.  The story quotes James Alan Fox noting that the NCVS counts non-aggravated assaults that don't show up in the FBI numbers.  That is true.  See the third paragraph of the original post.  Looking at Table 2 of the report, we see that "violent crime" went up 17%, while "serious violent crime," a closer match to the FBI's violent crime index, went up 9%.  The difference in crimes included in the two indexes is a partial explanation, but probably not a complete one.

Does any word in all of law cause as much trouble as "presumed"?

When a defendant in California (and many other states) pleads both not guilty and not guilty by reason of insanity, the sanity issue is held for a second phase, which will happen only if the defendant is found guilty in the first phase.  (Lawyers say the issue is "bifurcated," but that gets Dirty Harry riled up.)

So how to explain this to the regular folks on the jury?  Like this?

The way this works is in the first trial, we decide whether or not Mr. Mills is guilty of murder.... During that process, Mr. Mills is presumed or you have to accept that he is sane.  That he is legally sane for the purposes of reaching that first verdict.  If Mr. Mills is convicted of any crime, then we have a second trial, and the burden shifts to the defense to show by a preponderance of the evidence that Mr. Mills was legally insane at the time the crime was committed.

We will find out if this is okay tomorrow when the California Supreme Court announces its decision in People v. Mills, S191934.  The briefs are here.

Update:  The answer is:

We conclude that although defendant establishes no due process violation, the instruction was erroneous under state law. The question of a defendant's sanity is entirely irrelevant at the guilt phase of a bifurcated trial under section 1026. Therefore, no instruction on the subject should be given. However, the error was harmless in this case.

TX Inmate Sentenced to Death, Breaks Into Fit of Rage: Dianna Hunt of the Star Telegram reports that Steven Lawayne Nelson was sentenced to death in Texas Tuesday for the 2011 murder of a pastor. Minutes after the jury handed down the death penalty for Nelson, he broke out in a fit of rage in his holding cell and broke a fire sprinkler flooding the courtroom with water infused with a fire retardant. Nelson could be heard screaming from his cell as bystanders were evacuated. Court personnel secured all boxes of evidence before any could be damaged. He has repeatedly flooded cells, fought with jailers and caused mayhem while in prison. Continued from this news scan.

Observer to Oversee LA Sheriffs in Jail Reforms: Jason Song of the Los Angeles Times reports the Los Angeles County Board of Supervisors voted Tuesday to hire an independent observer to oversee jail reforms to ensure deputies are not using excessive force to control inmates. The board will require monthly progress reports. The board's Chief Executive William Fujioka will meet with sheriff's officials to discuss staffing needs to ensure the pattern of inmate abuse is stopped.

CA Lawyer Argues Against Prop 34: The Morgan Hill Times has this opinion from attorney Jeff Nunez who argues against Proposition 34. Nunez states there are some crimes for which no punishment is appropriate besides death. The death penalty is not solely to deter crime or a punishment which should be weighed in terms of money. The death sentence is meant to serve justice for victims like Polly Klaas and her family.

Sunday I participated in a forum in Santa Rosa on Propositions 34 and 36.  I presented the opposition to 34, and Marc Klaas presented the opposition to 36.  Guy Rovner has this article in the Press Democrat.

My opponent, Lawrence Marshall, made an incredibly smarmy pitch, quoted at the end of the article:

"They are us, they're our children," he said, referring to murderers. "We are a community."

This did not sit well with Phyllis Loya, mother of a murdered police officer.  (See yesterday's post.)

Lawrence Marshall calls the death row killers "our children" They are not my children, Mr. Marshall. My son was murdered while serving as a police officer by one of the 43 cop killers on death row. Marshall's reliance on the reliability of a life without possible parole sentence is misplaced. One only has to look at the recently signed legislation SB9 which allows killers who are sentenced to life without possibility of parole for murders committed when they were 16 or 17 to now have multiple chances to have their sentence lowered after serving fifteen years. Life without possibility of parole (lwop) is only that for as long as the state legislature says it is. The ACLU and their brethen have an agenda: abolish the death penalty, then lwop, then long sentences, three strikes. Look at how prison realignment has worked..it hasn't. How many violent crimes have to occur? How many communities have to be ravaged by crime? Voters, I urge you to vote No on 34. Visit waitingforjustice.net to preserve the death penalty and protect California.

If you like that comment as much as I did, go to the story and officially "like" it.

As noted in the News Scan today, South Dakota carried out its first execution using the single-drug pentobarbital method that is rapidly becoming the new standard.  The crime is described in yesterday's News Scan.  KELO has this report:

[AP's Dave] Kolpack says as the Pentobarbital was administered, Robert appeared to clear his throat before making some heavy gasps.  A short time later, he could be heard snoring for about 30 seconds.

John Hult with the Argus Leader says Robert opened his eyes after three or four deep breaths, but there was no movement after that.  The warden called in the coroner's assistant at 10:15 p.m.  She checked for a pulse on Robert's wrist, neck and two places on his chest.  She examined him for six or seven minutes.  She left at one point to confer with the warden before returning to the chamber and checking for a pulse again.  Minnehaha County Coroner Kenneth Snell came in to check for a pulse and Robert was pronounced dead within one minute, at 10:24 p.m.  His body was taken away from the Penitentiary at 10:52 p.m.

Video of the statement of Lynette Johnson, the widow of correctional officer Ron Johnson, is also on the KELO site.

Eric Robert was already in prison for a de facto life sentence, so an additional term of imprisonment for the murder of Officer Johnson would have been no sentence at all.

SD First Use of Single-Drug Execution: The Associated Press reports that Eric Robert was executed Monday night by lethal injection. Robert was pronounced dead at 10:24 p.m. He was the first inmate executed with the single-drug lethal injection method in South Dakota. Continued from this news scan.

CA Senator Says Realignment Disregards Public Safety: The Sierra Sun Times has this statement from California Senator Tom Berryhill who argues realignment has shifted responsibility for some dangerous criminals to local counties and disregards public safety. Senator Berryhill outlines the crimes committed so called low-risk offenders which have occurred as a direct result  of AB 109 including rape, stabbings, attempted murder, robberies, playground stalking, and attacks on police officers. One particularly hard hit community noted by Senator Berryhill is Fresno. In Fresno County, the jail is too full to hold anyone on a parole violation including sex offenders, who violate parole by hanging around parks or schools.  Until a child is molested or hurt these offenders cannot be put in jail.

Yesterday the California Supreme Court decided a trio of cases trying to make sense out of last term's splintered U.S. Supreme Court decision in Williams v. Illinois.  That case and yesterday's trio involve testimony of a forensic expert relying on lab work done by someone else, and the someone else does not testify and cannot be cross-examined.  In Williams, the high court split 4-1-4, with the plurality and Justice Thomas agreeing there was no violation but for different reasons.

The California decisions are People v. Lopez, S177046, People v. Dungo, S176886, and People v. Rutterschmidt, S176213.

When the high court is split, a precedent is established according to the narrower of the rules set out in opinions concurring in the result.  This is the Marks rule.  However, when neither is identifiably narrower than the other, but rather they come to the same conclusion by entirely different paths, that rule is not particularly useful.

Justice Chin, in his concurring opinion in Dungo, sets out an approach I think is correct.  A precedent is set by the outcome of the case on the basis of its material facts.  If the case now before the court meets the criteria that resulted in the precedent being decided the way it was, then the precedent controls.  In this case, if the evidence has both the qualities that caused the Williams plurality to find it admissible and the qualities that caused Justice Thomas to find it admissible, then it is admissible under the Williams precedent.  Justice Liu, in his dissent in the Lopez case, does not agree with this approach.

Here is a curious result from SurveyUSA on the Colorado marijuana decriminalization proposal, Amendment 64:

Amendment 64, which led by 11 points 5 weeks ago, leads by 5 points today. 48% vote Yes, 43% vote No. There has been an 18-point erosion in support among women, who 5 weeks ago favored Amendment 64 by 10 points, but who today oppose the Amendment by 8 points. There has been 14-points of erosion among those with a 4-year college degree, who 5 weeks ago favored the Amendment by 9 points, and now oppose it by 5 points. A similar but smaller shift occurred among upper-income voters.

The results still show a double-digit lead among men.  Curious that such a dramatic shift would occur among women and not men.

The survey also shows a slight shift in the presidential race.  Obama was ahead by a nose, and now Romney is ahead by a nose.  This change is well within sampling error, though.

SD Set to Execute Inmate: Amber Hunt of the Associated Press reports that Eric Robert is set to be executed in South Dakota Monday night at 10:00 p.m.  It will be the first execution in SD in five years. Robert pleaded guilty to murdering a prison guard during an attempted escape in 2011. At the time Robert was serving an 80 year sentence for kidnapping. The guard was killed after Robert and an accomplice hit him with a pipe and covered his mouth with plastic wrap. Robert then put on his uniform and attempted to escape with his accomplice in a box on a pushcart. When suspicious guards approached them, Robert attacked one of them and was eventually subdued when more guards arrived. Robert says his only regret is that he did not kill more guards and successfully escape. Robert has never appealed his sentence, and SD Gov. Dennis Daugaard will not intervene to stop the execution.

Realignment Has Negative Impacts in CA: Scott Thomas Anderson of Gold Country News Service reports on a study by the Public Policy Institute of California on the effect of AB 109 (realignment) on counties. The study found that 17 counties were operating under court ordered capacity limits and that 93 percent of all county jails were already at full capacity before realignment. As a result jails are being forced to release various types of inmates who are awaiting trial, based on a threat index that considers a criminal's most recent offense. A Roseville police spokesperson said that these so called nonviolent offenders are still dangerous. Local jails are housing hardened criminals who used to be sent to prison, and this changed the environment in many jails. California Police Chiefs Association President Scott Seaman reported that police chiefs all over California are concerned about the impact of AB 109. Both the state Police Chiefs Association and the California District Attorneys Association oppose realignment.

Oakland's Violent Crime Wave Taking Toll on Officers: Dawn Edwards of the Examiner reports that the recent violent crime wave is becoming a major challenge for the Oakland Police Department. Officers are under pressure due to a dramatic increase in crime, which includes 11 murders in October so far and a record-setting 3,000 demands for service a day.

20 CA Prison Employees Fired for Phone Smuggling to Inmates: Jack Dolan of the Los Angeles Times reports that the Office of the Inspector General (OIG) has investigated 419 rule violations by prison employees in the first six months of 2012.  Among these are 54 allegations of smuggling cellphones to inmates, which has resulted in the firing or resignation of twenty employees.  Among the remaining thirty-four, allegations against thirteen have been dropped while the rest remain under investigation.  Most of the reported cellphone smuggling has been motivated by money or romances between inmates and employees.  Corrections officials claim that new cellphone towers capable of blocking reception to any unapproved phone will be in place by 2015.

Sandy Friend has this op-ed in the Sacramento Bee:

Michael Lyons was my 8-year-old angel of a son. He was sweet, loved his family and had a smile that would melt a glacier. When I think of that smile, it eases my heart for only so long because I will grieve over his loss for the rest of my life.

Michael died an unimaginable death. He endured 70 purposeful, nonlethal stab wounds to his little body. He was sodomized viciously. After more than 10 hours of torture, Michael's throat was slit, his body dumped into a river.

Every night I pray that no mother should be forced to experience my lifetime of anguish since Michael was murdered. Though I had to hear the grisly description again of how a vicious repeat offender tortured and murdered my son in court, I was relieved that justice was served when a jury found Michael's killer guilty and sentenced him to death.

While the emotional wounds never heal, there are better days than others.
But my healing has been ripped apart by the prospect that Michael's killer won't see justice if Proposition 34 passes this November, which would repeal California's voter-imposed system of capital punishment.

It is beyond insulting that liberal special interest groups, including the ACLU, believe my son's killer deserves leniency and compassion. Proponents of Proposition 34, including The Bee's editorial board, patronize victims' families by telling us they have empathy for our suffering while hiding behind specious claims to justify giving the most vicious criminals a lifetime of health care and housing, benefits that too many middle-class families cannot afford.

*                         *                           *

When you vote on Proposition 34 this November, ask yourself what you would want if it was your child who was brutally raped, tortured and murdered. Please stand up for victims and reserve the death penalty for California's worst killers.

In Miller v. Alabama, the U.S. Supreme Court held that laws prescribing a mandatory sentence of life without parole for murders committed when the perpetrator was under 18 are not permitted.  The judge must be able to exercise discretion.

The first thing that should have been obvious is that the case makes no change in the states where the LWOP sentence is discretionary and not mandatory.  In footnote 10, the opinion lists California Penal Code §109.5(b) as an example of a discretionary statute.  Clear as crystal, right?

Never underestimate the ability of result-oriented judges to misconstrue the clearest of holdings.  People v. Moffett, A133032A, involved the sentence of an armed robber just barely short of the threshold of 18.  He was a major participant in the robbery and threatened victims with death at gunpoint.  His accomplice murdered Police Officer Larry Lasater, for which he was sentenced to death.  The trial judge was well aware she had discretion, considered all the circumstances of the case, and decided life without parole was the appropriate sentence.  The Court of Appeal reversed, based not on the actual holding of Miller but on some of Justice Kagan's overly expansive language and its perception of the "spirit" of the decision.

The Attorney General should seek California Supreme Court review of this decision, and that court should emphatically reverse.

Bob Egelko has this story in the San Francisco Chronicle.  Officer Lassiter's mother has a comment to the story under the name "mom257."

The U.S. Supreme Court's Monday orders list is here.  No criminal cases were taken up for decision.  They took one voting case from Arizona.

Arizona's certiorari petition in a capital habeas case, Ryan v. James, No. 12-11, was not acted upon and will likely be relisted for a future conference.  SCOTUSblog case page is here.

Four petitions by the murderers in capital cases were denied.  The Cert Pool has the conference list here.

The Yes on 34 campaign has this press release:

Statement by Natasha Minsker, Campaign Manager, YES on 34 Campaign
"Every poll that asks voters about Proposition 34 using the actual language of the initiative, including the most recent Field Poll and a USC Dornsife/Los Angeles Times poll, shows that the Proposition 34 race is too close to call with large segments of undecided voters.... 

*                            *                          *

When asked about the actual initiative, the Los Angeles Times poll reveals that voters are tied. Those who favor Proposition 34 are at 44% and those who oppose it are at 46%, with 10% undecided and a margin of error of +/- 2.0 percentage points."

Really?  By "too close to call" does she mean "within the margin of error"?  If so, that is not correct.  The Business Roundtable / Pepperdine Poll gives the respondent the ballot language and has "no" ahead of "yes" by greater than the margin of error.  This biweekly poll has been run 7 times, and 6 times including the most recent it has had this result.

The statement could be defended as not literally false by saying that "too close to call" means we are still a month out, some people saying no might change their minds, or it is remotely conceivable that all of the undecideds might break for "yes."  If that is the intended meaning, it is true but merely knocking down a straw man.  Nobody thought the conclusion was certain at this point.

CT Death Row Inmate Seeks Execution: The Wire Report of CT Post News reports Connecticut death row inmate Steven Hayes intends to waive his appeals and be executed. Hayes along with his accomplice were convicted of the brutal home invasion attack on the Petit family in 2007, which included the rape and murder of Jennifer Hawke Petit, and the murders of her two daughters Hayley, 17, and Michaela, 11.  The husband and father was beaten and thrown in the basement and barely escaped with his life after the murderers set fire to his home.  Both Hayes and his accomplice were convicted and sentenced to death. Hayes has repeatedly tried to kill himself. He currently claims that the prison staff is torturing him and subjecting him to cruel and usual punishment. Although Hayes previously told one of his attorneys that he would not oppose appeals of his sentence, he now says that following automatic review in the Connecticut Supreme Court, he plans to forgo appeals and habeas in order to expedite his execution. He said that he would formally announce his intentions this week. .

FL Execution Delayed 2 Days: David Ovalle of the Miami Herald reports that the scheduled October 16 execution of Florida death row inmate John Errol Ferguson will be delayed for two days to allow his attorneys more time to file appeals. Ferguson was convicted of murdering six residents during a home invasion robbery in 1977.  He was separately convicted of killing two teenagers in 1978. The young couple had gone out for ice cream when Ferguson, pretending to be a cop, stopped them. Ferguson shot the young man in the head, and raped and murdered the girl, stealing her class ring. Ferguson's attorneys argue he is severely mentally ill and not competent for execution. Bradford Circuit Judge David Glant will rule on the appeal Friday.

First Street Gang Designated Transnational Criminal Organization: The Los Angeles Times reports that the street gang Mara Salvatrucha MS-13 was designated by the Federal Government Thursday as a transnational criminal organization.  U.S. Treasury Department is now able to freeze financial assets from the gang and its members. Also, financial institutions are prohibited from transacting with any gang members. The gang is estimated to have 30,000 members in 40 U.S. States and in the District of Columbia. MS-13 is an El Salvadorian street gang, with much of the money generated by the gang funneled to leadership in El Salvador.   

In this video, Kermit Alexander, whose family was murdered in L.A. by Tiequon Cox, makes the case against Proposition 34, the California death penalty repeal initiative.  A description of the facts and case history of that case and the other 14 cases with all normal appeals final is available here.

Daniel Akst has this post at the WSJ Ideas Market Blog.

Is there a way to predict who is more likely to lie, cheat, steal or be a louse generally? Try assessing guilt proneness.

That's the message of a new paper by a trio of social scientists reporting on research in this arena. It turns out that some people are considerably more prone to guilt than others, and their behavior is constrained by this predisposition to feel bad if they do something wrong--even when nobody else knows about the wrongdoing.

The paper is Taya Cohen, A.T. Panter, and Nazli Turan, Guilt Proneness and Moral Character, in the October 2012 issue of Current Directions in Psychological Science.

Pop quiz:  How long ago was it that Maj. Nidal Hasan gunned down 13 people at Ft. Hood, Texas?

The No on 34 campaign has this press release on the new polls on Proposition 34, the California death penalty repeal initiative, previously noted here and here.  They point out something I hadn't noticed in the Pepperdine poll.  Prop 34 has the highest "no" percentage of any of the 11 measures on the statewide ballot.

Politicos generally say that California voters tend to swing toward "no" late in the election period.  I went back to the previous general election and found Field Poll data from late September and late October on three contentious ballot measures and compared the "no" tallies in those polls with the actual final ballot tally. (Please pardon the inelegant formatting.)

Proposition -> "No" late Sept -> "No" late Oct -> "No" final

19, marijuana -> 42 -> 49 -> 53.5
23, greenhouse gas -> 45 -> 48 -> 61.6
25, state budget -> 30 -> 31 -> 44.9

The conventional wisdom seems to generally hold here.  On the marijuana initiative, the voters still undecided in late October broke evenly at the end, but on that one the "no" increased substantially during October.  For the other two, about 2/3 of the voters remaining undecided in the last poll voted no.

No Supervision for Many High Risk Criminals Under Realignment: The Baldwin Park Patch has this article by City News Service which reports there are high-risk parolees from state prisons and more offenders coming out of county jails who are not being placed under supervision according to Los Angeles County Chief Probation Officer Jerry Powers. Powers stated about 59 percent of the 9,750 parolees realigned over the past year in California are at high-risk of re offending and only 1 percent are considered low-risk. 12 percent of those released are homeless or transient. Powers adds that more than 90 percent of offenders being released from county jails are not placed under supervision. These convicts are being released after serving straight custodial sentences.

Chowchilla Prison Begins Housing Male Inmates: Marc Benjamin of the Fresno Bee reports 100 male inmates moved from prisons on Thursday across California to the Valley State Prison in Chowchilla which formerly housed only female inmates. The male inmates are classified as lower-security level 2 inmates. Female inmates will gradually be transferred to the Central California Women's Facility, the California Institution for Women in Southern California, and a women-only prison in Folsom. The Chowchilla Prison is expected to become a male inmate only facility by early 2013.

W. VA Recidivism Costs State At Minimum $168M: The Associated Press reports recidivism in West Virginia has cost the state a minimum of $168 million from 2007 to 2011 according to Council of State Governments Justice Center researchers. The costs come from 2,506 parole revocations, 2,389 probation revocations, and 591 community corrections revocations.

As Bill notes, Jonathan Green was executed after the U.S. Supreme Court denied a stay of execution.  See also my prior post.  Actually, there were three stay applications, which brings up an interesting little quirk of Supreme Court procedure and history.

Kent noted here that the Fifth Circuit lifted the stay of execution granted by the district court, and that the Supreme Court refused to hear Green's case.

Asked by the warden if he had a statement from the death chamber gurney, Green shook his head and replied, "No."

But seconds later he changed his mind, saying: "I'm an innocent man. I never killed anyone. Y'all are killing an innocent man."

He then looked down and said his left arm, where one of the needles carrying the lethal drug was inserted, and said, "It's hurting me bad." But almost immediately he began snoring loudly. The sounds stopped after about six breaths.

Green was condemned for the abduction, rape and strangling of 12 year-old Christina Neal, whose body was found at his home in 2000 about a month after she was reported missing.

...that, at any rate, is the cry of the pro-pot lobby.  It didn't work in California two years ago, when Prop 19 went down by seven percentage points, 53.5% to 46.5%. Three more states have pot referendums on the ballot this year, however, and at least one of them, Colorado, is thought at this time likely to adopt it.

The biweekly Business Roundtable / Pepperdine poll is out.  It shows the No vote on Prop. 34 leading but by a smaller margin than the CBS 5 / Survey USA poll noted yesterday.  Totals are yes 42.9% to no 48.1%.  Report is here.  Trend line is here.

Why the difference in the polls?  Well, there are differences in methodology.  Pepperdine's innovative methodology is explained in their release announcing the series last July.  There are also differences in question wording.  Survey USA asked respondents if they were certain to vote yes, certain to vote no, or not certain, thus pushing the "leaners" into the uncertain category.  Pepperdine allows leaning as a response and includes the leaners in the yes/no total.

There is a substantial enthusiasm gap.  On the No side, 2/3 of those saying no in the Pepperdine survey say strongly no.  On the Yes side, a majority are "somewhat" or "leaning" to yes.  The enthusiasm gap combined with the question wording probably accounts for most of the difference in the two polls.

CBS 5 (San Francisco) reports:

On Proposition 34, which would repeal the death penalty, 32% were certain to vote Yes, 48% were certain to vote No, unchanged from a month ago. Whites, a majority of pro-life voters, and a majority of voters in Greater Los Angeles area and the Central Valley opposed the repeal. Only the Bay Area and liberals supported the repeal.

The full results are here.  The "no" responses exceed the "yes" in all age, ethnic, education, and income groups.  The statement in the story that the Bay Area supports repeal is not correct.  The Bay Area result is 38-42.

We continue our series on the errors in two articles on the death penalty costs by Judge Arthur Alarcon and his law clerk, Paula Mitchell (mostly the latter, I suspect).  See the intro, part 1, and a post on Mitchell's partisan letter to the editor.

How often do you read in the news that a murderer has pleaded guilty and accepted a life sentence in order to avoid the death penalty?  It seems like it happens every week.  In any event, it is certainly not a rare occurrence.  How often does that happen in states that do not have the death penalty?  Prosecutors in those states tell me anecdotally that it is rare there.

If a murder case ends in a plea bargain, the cost of trial is zero.  The cost of appeals and habeas corpus will probably be zero, as the murderer will generally not want to overturn the favorable deal and risk a more severe sentence.  If he does challenge the bargain, the cost will typically be much less than a challenge to a full trial, as the grounds of challenge are sharply restricted.

Any reasonable, good faith estimate of the net cost of the death penalty would therefore necessarily include an offset for the savings resulting from these plea bargains.  How much offset do Alarcon and Mitchell chalk up for this factor?

Zero.

SF Area Murder Suspects Arrested in Seattle:  KCBS reports that the King County Sheriff has arrested two suspects driving the car of Susie Ko.  The 55-year-old retired school teacher and mother of four was stabbed to death in her home in Hercules, in the East San Francisco Bay Area.  The male suspect escaped from jail in San Bernardino County, east of Los Angeles, where he was being held in connection with the shooting of an LA County Sheriff's deputy.

OH Death Row Inmate Will Plead for Clemency Third Time: Associated Press Legal Affairs Writer Andrew Welsh-Huggins reports Ohio death row inmate Brett Hartman sought clemency from the state Parole Board for the third time Wednesday. Hartman was convicted of murdering a woman in 1997. The victim was beaten, strangled, stabbed 138 times, had her throat slit and her hands cut off. Both of Hartman's previous requests for clemency were unanimously denied. The Board is set to rule on Oct. 18.

TX Murderer, Assaults Officers: Jim Douglas and Matt Goodman of WFAA News report that Steven Lawayne Nelson may receive a death sentence following his conviction last Monday of murdering a pastor in Texas. In March of 2011, Nelson forced the pastor and his secretary to tie each other up. He then suffocated the pastor and broke the secretary's jaw.  He then stole credit cards from both victims and the fled in pastor's a car. Nelson's prior record includes a conviction at age 14 for the unauthorized use of a motor vehicle, trespassing, and burglary. Nelson is also suspected of strangling a fellow inmate, and has been charged with assaulting a jailer in 2011. 

While the Supreme Court mulls whether habeas proceedings can go forward while the petitioner is mentally incompetent (see posts yesterday and the day before), there is no doubt that the a murderer cannot be executed if he is so far gone mentally that he does not know what is happening.  That rule goes back centuries.  But who decides and by what standard?

Jonathan Green murdered Christina Neal, age 12, in the course of committing or attempting a sexual assault 12 years ago.  A Texas state court decided that Green has sufficient understanding to be executed.  The state asked the Texas Court of Criminal Appeals to review the decision.  That court granted a stay of execution and eventually affirmed the decision.  Two days before the execution, a federal district judge granted a stay.  The next day, yesterday, the Fifth Circuit reversed.

The district court ruled that the state proceeding violated due process by failing to allow Petitioner to call forth fact witnesses who would testify as to his medical records, and by failing to apply the proper constitutional standards, all in contravention of Panetti v. Quarterman. We find no basis in Panetti or elsewhere for the district court's holding that a competency hearing at which Petitioner testified and both Petitioner and Respondent introduced expert testimony, including medical records stipulated as accurate, violates the due process clause. We also find no basis for concluding that the state court's decision that Petitioner was competent to be executed was contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court. Finally, we find that Petitioner has failed to present clear and convincing evidence to rebut the presumption in favor of upholding the state court's competency finding. Accordingly, we vacate the district court's stay of execution and remand with instructions to dismiss the petition.

Update:  The opinion is now available on the USCA5 website.

Update 2:  The Supreme Court denied a stay.  No dissent is noted.  Michael Graczyk has this report for AP.

Tomorrow in Moncrieffe v. Holder, No. 11-702, the U.S. Supreme Court will wade once again into the problems of what is an "aggravated felony" for deportation purposes and how we deal with the problem of crimes being defined differently in different jurisdictions.  The Question Presented is here.

Expect nearly zero press coverage of this case, as all the attention will be on the U.T. affirmative action case.

Update, Wednesday morning:  The transcript is here.

The transcripts are available for the arguments in Tibbals v. Carter and Ryan v. Gonzales, noted in this post yesterday.  The issue is when a federal habeas court can put the proceedings on hold while the prisoner is mentally incompetent.  In contrast to the Johnson v. Williams argument, noted in this post last week, in Tibbals it seemed like the lawyer for Ohio wanted to bunt while the justices wanted her to swing for the fences.

Carter's lawyer wanted open-ended discretion for the district judge, but Justice Alito noted the basic problem that AEDPA was intended to address:

Do you think that is consistent with AEDPA; that Congress, knowing, in particular, that a lot of district judges and a lot of court of appeals judges don't like the death penalty and will go to some length to prevent the imposition of that sentence, that we're just going to leave that all to the discretion of every individual district judge?

Bullseye.  Judges have generally been vested with a lot of discretion, but many of them have abused it to delay or prevent altogether the enforcement of a law they disagree with.  When discretion is abused, it needs to be curtailed.

Lyle Denniston at SCOTUSblog, although he's not happy about it, suggests that the "Justices reaching for some limits," likely a majority, are coming to a set of rules like this:

if there is a claim of incompetency, there should never be an indefinite stay of the proceedings to see if the inmate might regain competence; there should never be a stay when the issues before the judge are based solely on the already-made record in state court; and, in any case in which there might be new evidence that the inmate could supply if competent, the stay should be somewhere between six and nine months, and not ever more than a year.

Victims Groups Speak Out on Realignment:  Fox 11 news in Los Angeles has this story on a press conference by victims groups on the steps of the California Capitol yesterday.  The subject was AB109, Governor Brown's so called Public Safety Realignment Law which shifts responsibility for most inmates released from state prison to counties and restricts most property and drug felons and parole violators from being sentenced to prison.  For more on this subject, visit our Realignment web page. 

Sandusky Sentenced to 30 Years: Ian Simpson and Dave Warner of Reuters report Judge John Cleland sentenced Former Pennsylvania State University football coach Jerry Sandusky to 30 to 60 years in prison. Sandusky was convicted on 45 counts of child molestation of 10 boys over the course of 15 years. He has been returned to a local jail until he is taken to prison. He will be at least 98 before he is eligible for parole. This is a continuation from Bill Otis' post that can be read here.

WA Inmate Gets Third Strike for Attempted Murder: Eric Stevick of Herald Net News reports inmate Daniel Jay Perez was convicted Monday of attempted second-degree murder and second-degree assault of a fellow inmate in a Washington prison. Perez crept up behind an inmate in the laundry room of a special offenders unit and attempted to strangle him by wrapping cloth around his neck. The inmate lost consciousness and Perez returned to his cell. This was Perez's third strike and he faces a sentence of life without parole under the state's law. Perez was already serving a 30-year sentence for killing his cell mate in 2006. He was originally convicted of vehicular homicide, vehicular assault, and theft and sentenced to 14 months in prison. Perez will be sentenced Nov. 8.

MO Murderer Freed, Victim's Families Not Told: The Associated Press reports that Missouri officials granted parole to a convicted murderer without notifying the families of the victims.  James Gant was convicted of executing a 16-year-old girl and wounding two others in 1977 during a drug deal. The victim's 22-year-old boyfriend was meeting with Gant to purchase a small amount of marijuana. Gant had been ordered by his uncle to kill the girl's boyfriend and leave no witnesses; the boyfriend and the victim's 19-year-old best friend survived but the girlfriend was killed. Gant was sentenced to 200 years in prison. He served 34 years before being eligible for parole. The families of the victims were not notified of Gant's parole hearing nor of his release last year. The outraged families had hoped Gant would never be released from prison.

Passing Prop 34 Abandons Murder Victims: McGregor Scott, former Shasta County district attorney and U.S. Attorney for the Eastern District of California, has this opinion in the Reporter arguing repealing California's death penalty would be abandoning the victims of these most heinous killers. Scott is the co chairman of the No on Proposition 34 campaign. He is supported in opposition to Prop 34 by virtually all California law enforcement organizations and district attorneys.

I went to law school in California in the 70's.  It's an incredibly beautiful and varied place.  All the more shame, then, that it's become the epicenter of the death spiral of the welfare state.  When tax money gets spent  --  and spent and spent  --  for the exotic schemes of Government Without Limit, the core functions government is supposed to do get left at the side of the road.  This is why California can "afford" to spend zillions on high speed rail between  --  get this  --  Fresno and Corcoran, while it's unable to get or keep felons off the street.  Thus, as Victor Davis Hanson writes:

California has built the nation's largest prison system, but there is no room left in either state or county facilities for an increasing number of dangerous felons. The same day last week that I emptied my wallet for gas, my 15-hp ag irrigation pump simply quit during the night. Nocturnal copper-wire thieves had come into the vineyard and yanked out the electrical conduit. That's the third theft of pump wire I've had this year -- and it costs $1,500 each time to repair the damage. I'm told that Mexican national gangs go down to Los Angeles with their stolen copper to sell it to mobile recyclers. No one calls the sheriff any more. Instead, we swap stories about protective wire cages, spikes, cameras, lights, and booby traps.

There were three capital cases from the Ninth Circuit on today's Supreme Court orders list.  The Notorious Ninth had upheld the death sentence in all three, and the Supreme Court denied certiorari in all three.  The Payton case from California was noted in the previous post.  There were also the cases of Robert Ybarra from Nevada and Edward Schad from Arizona.

Schad's case had been decided by the Supreme Court once already, on direct appeal back in 1991.  When the case reached the Ninth Circuit, his lawyers probably thought they had won the death penalty lottery.  With Judges Reinhardt and Schroeder on the panel, they were sure to get a penalty reversal.  Initially, they did indeed reverse, but the Supreme Court vacated the decision and sent it back for reconsideration in light of Cullen v. Pinholster.  On remand, Schad did not even get a vote from Reinhardt.  Imagine that.

AEDPA is finally having its intended effect of reducing erroneous reversals by the Ninth.  It has not yet speeded the process, but that is coming.

There are now 15 murderers on California's death row who have completed all the normal appeals, i.e. through denial of certiorari on the federal habeas petition.  A description of the cases is here.  The U.S. Supreme Court today declined to take up the case of William Charles Payton.  Twice before, the Ninth Circuit had overturned Payton's death sentence only to have those rulings vacated by the high court.  The third time was the charm.

One of the 15 has an Atkins retardation claim pending.  (Prosecutors tell me its meritless.)  The other 14, more than the total number California has executed from the restoration of capital punishment to the present, are being held up solely by the lethal injection litigation.

We could start setting dates tomorrow if Jerry Brown and his prison chief, Matthew Cate, would get off their duffs and do their jobs.  The single-drug method is well established, and the federal court has ruled twice that California can proceed with it.  The Legislature has granted CDCR a special authority to adopt temporary regulations, without jumping through the Administrative Procedure Act hoops, simply by declaring an "operational need."

Brown promised in his gubernatorial campaign he would enforce the death penalty.  Get off your duff and keep your promise, Mr. Brown.

The Supreme Court opinion in Payton's case from last round is here.  I have copied the facts of the crime from that opinion after the jump.

I have given a hard time to defense lawyers for some of their antics in the name of, supposedly, defending the Constitution, when what they're actually defending is the dreadful and not infrequently dangerous criminal they have adopted as their client.  It seems to me that attempting to return to the street a person you know or ought to know is just as likely to do it again  --  or worse  --  carries some moral problems that cannot be swept under the rug simply by the rote incantation that everybody deserves a lawyer and that's how the system works.  The "system" didn't fall out of the sky.  We made it, and we can change it.  Having a law license is not an exemption from the moral requirements of adult life.

When the state seeks to prosecute someone for a crime, mental incompetence of the defendant halts the proceedings until he is restored to competence.  We saw that most recently in the Tucson shooting case.

What happens when the criminal case is over, the defendant files a habeas corpus petition, and then his lawyer claims he is mentally incompetent.  Should the proceeding screech to a halt?  Of course a mentally incompetent inmate cannot be executed, but couldn't the review of his case proceed so that the execution can be carried out whenever he is restored to competence, rather than starting from square one at that point?

At trial, the theory is that the defendant needs to assist his counsel.  He knows, for example, where he really was at the time of the crime.  In habeas, though, the petitioner typically has much less involvement, and the claim of the need for him to personally assist is weaker.  Further, the petitioner is now the moving party.  A claim that the state cannot proceed against you while you are incompetent is stronger than a claim that you can proceed against the state and then put the proceedings on ice.

Tomorrow, the U.S. Supreme Court will hear oral argument in Tibbals v. Carter and Ryan v. Gonzales on these issues.  Lyle Denniston has this preview at SCOTUSblog.

From Business Wire:

Former California Department of Finance Director Mike Genest released the following statement today, questioning the arguments about cost savings in Proposition 34. Genest is an expert on state government, especially fiscal matters, having served for 30 years in various fiscal and budget-related jobs, including serving as the Director of Finance for the State of California from 2005-2009.

The full memo is here.

In a post last Friday about the Florida Supreme Court election, I noted why appointment with yes/no retention elections is a better method of judicial selection and tenure than life tenure.

At the diagonally opposite corner of the contiguous 48 we see why selecting justices in regular election campaigns is a bad idea.  Friends of justice will have to mark their ballots while holding their noses.  See prior post.

Steve Miletich has this article in the Seattle Times.  "In 2010, McCloud says, Sanders inflamed racial tensions when he said certain minority groups are disproportionally represented in prison because they commit more crimes."

It is true beyond dispute that the crime rate is higher among black Americans, particularly, than among whites, and that is the primary reason why the prison demographics differ from the general population.  We can argue about the underlying reasons for this fact, but no rational person can dispute the fact.  How ironic that Sanders' biggest problem comes from one of the more sensible things he has said.

[Sanders] also stood up at a meeting of the Federalist Society in Washington, D.C., in 2008 and shouted "Tyrant! You are a tyrant!" at then-Attorney General Michael Mukasey after Mukasey defended the Bush administration's counterterrorism policies.

"Those are not examples of professionalism, they are not examples of objectivity, they are not examples of fairness," McCloud said.

That is quite true, and that is one of the reasons for the nose-holding.  Based on what I have heard from Washington prosecutors, though, the chances of victims of crime and the law-abiding public getting objectivity and fairness from McCloud are roughly those of a snowball in Mount St. Helens during an eruption.

San Bernardino DA Speaks Out on Prop. 34: The San Bernardino Sun News has this article in which San Bernardino County District Attorney Michael Ramos states his clear opposition to Proposition 34, the SAFE California Act, arguing it is not 'safe' at all. Ramos notes that joining him in opposition are California sheriffs, police chiefs, prosecutors, leaders in communities, and victims of crimes and their families. He writes that among the roughly 700 murderers on the state's death row 135 were convicted of sexual assault murders, 135 of murder and child molestation, 126 torture killings, and 41 police officer murders. Ramos blames supporters of Prop 34 for the 'frivolous delays' in the death penalty in this state and urges Californians to vote no on Prop 34 this November.

3 NY Officer Killers Up For Parole, Victims Brother Testifies: Joe Kemp of the New York Daily News reports the brother of an NYPD Police Officer killed on the job in 1988 testified in front of the state parole board asking parole be denied Friday. The officer was in a marked squad car in front of the house of a witness in a drug case in 1988 when he was shot five times in the head. The four hit men hired to kill the officer and were convicted and sentenced to life in prison. Three of them are up for parole in November.

5 Inmates Injured in CA Prison Fight: The Associated Press reports a fight broke out involving more than 100 inmates at the Ironwood State Prison in California Saturday according to the CDCR. Five inmates were injured.

Bob Egelko has this story in the San Francisco Chronicle on California's death penalty repeal initiative.  What's wrong with the story?  The hardest part of writing this post was deciding where to begin.

Let's start with the description of the federal lethal injection litigation.  "Since the injunction [in 2006], state officials have appealed every order by federal and state judges...."  The implication is that the state has been fighting hard to carry out the death penalty, and inherent delays have prevented it.  There is just one problem.

The statement that the state has appealed every order of federal judges is a patent falsehood.

Judge Fogel's "conditional denial" of a preliminary injunction was appealed by Morales, not the state.  When it ripened into a grant, the state did not appeal.  In 2010, after the Supreme Court had decided Baze v. Rees and after the CDCR had promulgated the protocol as a regulation under the Administrative Procedure Act, murderer Albert Greenwood Brown intervened and got an injunction that permitted the state to proceed only by modifying its protocol to a single drug.  That order was appealed by Brown, not the state.  On remand from the Ninth Circuit, Judge Fogel issued an unconditional stay, and the state did not appeal.  On December 10, 2010, Judge Fogel denied the state's motion to dismiss, and the state did not appeal.  On January 19, 2011, murderers Mitchell Sims and Stevie Fields intervened and got a stay, and the state did not appeal.  Three weeks later, the Ninth Circuit rejected a challenge to Arizona's substantially equal three-drug protocol, and the state did nothing.

How many orders by federal judges has the state actually appealed in this matter?  Zero.  I have uploaded the docket.  Read it for yourself.  There are two notices of appeal, both by inmates.  Although this is not the most important point in the story, it is the one with the clearest and most objective true and false.  The statement is just flat false, and it is very easy to check.

Maxine Bernstein has this story in the Oregonian:

A slide shown to the Governor's Public Safety Commission this summer categorized one quarter of the offenders who were sent to Oregon prisons in 2011 as "low risk."

That's fairly typical of the claims we hear all the time from the soft-on-crime crowd, trying to convince us we are wasting money and committing injustice by locking up people who neither need nor deserve to be locked up.  But it didn't sound credible to Clackamas County DA John Foote, and he poked beneath the surface to see how this classification was done.  He got the list and asked his fellow DAs check them out.

The list compiled was chilling: 57 committed a homicide or tried to kill someone; 78 assaulted someone, many in cases of domestic violence; 53 had committed robberies. Two were on death row, and 21 faced life sentences.

The offenders had been deemed low-risk based on a new actuarial tool Oregon adopted this month that's being used to determine an offender's likelihood of committing a new crime. Called the Public Safety Checklist, it considers an inmate's age, gender and adult criminal history in Oregon.  [Emphasis added.]

Wow.  A risk classification instrument that takes no account whatever of crimes committed in other jurisdictions or as a juvenile!

Craig Prins, executive director of Oregon's Criminal Justice Commission, helped create the new risk assessment. He acknowledged it doesn't consider an offender's out-of-state, federal or juvenile convictions. He called it simply one "piece of information" that can assist sentencing decisions.

I used to be general counsel for a company subject to FDA food labeling requirements.  If we had mislabeled our product the way Prins mislabels "low-risk" offenders, our entire inventory would have been confiscated, and we would have been shut down.

This is a serious matter.  Misclassifying criminals so that they are released when they should be locked up can kill innocent people.  Policy makers and the people must not accept the representations of "low risk" at face value.  They must be challenged and examined, and frauds like this one must be exposed.

Three cheers for DA Foote.

The ongoing problem in judicial tenure is striking a balance between judicial independence and judicial responsibility.  We want judges to be independent enough to render decisions based on the law and not politics.  But if they are too independent, they tend to drift toward rendering decisions based on their personal preferences rather than the law.  That is the problem with life tenure for judges with the power of judicial review of statutes.  The Antifederalist writer "Brutus" nailed it way back in 1788:

In short, they are independent of the people, of the legislature, and of every power under heaven.  Men placed in this position will generally soon feel themselves independent of heaven itself.

Hamilton's response is one of the weakest and least convincing passages of the Federalist, and history has proven Brutus right.

There is no perfect solution to this problem, but the one that comes closest to optimum, in my view, is for judges to stand for a yes/no retention election at some long interval.  Experience shows that it is extremely difficult to remove a judge in such an election, but the safety valve is there when it is truly needed.

In Florida, the Republican Party's executive board has voted to oppose three justices of the Florida Supreme Court for retention.  Their announcement cites the capital case of Joe Elton Nixon.  Nixon carjacked Jeanne Bicker, forced her into the trunk of her MG, drove her to a remote area, tied her to a tree with jumper cables, and set her on fire, burning her to death.  The Florida Supreme Court's reversal was indeed an awful decision.  CJLF's amicus brief in the U.S. Supreme Court is here.  The high court reversed in a unanimous decision by Justice Ginsburg.  See Florida v. Nixon, 543 U.S. 175 (2004).

I do not know enough about these three justices' entire records to know if they should be retained, but they are making the usual invalid argument that any campaign against retention is an attack on "judicial independence." That is essentially an argument against having retention elections at all.  Michael Peltier has this story for ThomsonReuters.

California's experience proves the contrary.  Three justices were deservedly denied retention by the people in 1986.  The court was vastly improved afterward.  We very rarely see its decisions reversed by the U.S. Supreme Court.  When the high court resolves conflicts between the California Supreme Court and the Ninth Circuit, the answer is nearly always that the California Supreme Court was right.

Let the Florida justices defend their records on the merits.  Judges should reverse criminal judgments, even in horrible cases, when the law requires them to do so.  They should not, however, bend over backward to find an excuse to let murderers off the hook.  When they do, the people should show them the door.

The U.S. Supreme Court granted certiorari today in the case of Boyer v. Louisiana, No. 11-9953.  The Question Presented, as framed by counsel for Boyer, is:

Whether a state's failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, should be weighed against the state for speedy trial purposes?

That wording may be somewhat misleading, as it seems to imply that defendant was unrepresented for five years.  The State says he was never without counsel.

The state appellate court opinion is here.

Parole Recommended for CA Double-Murderer, Manson Follower: NBC News headlines the California Parole Board recommended convicted double-murderer Bruce Davis, associate of Charles Manson, for parole Thursday. This was Davis' 27th parole hearing. Davis was convicted of killing two men with Manson in 1969 and was sentenced to two life terms. Davis was not involved with the infamous Tate murders. The recommendation came despite opposition from Los Angeles County Deputy District Attorney Patrick Sequeira. Governor Brown will either approve, deny, or modify the recommendation. SF Chronicle columnist Debra Saunders has this post on the issue.

NY Sets More Strict Rules for Prison Visits: The Associated Press reports the New York Department of Corrections has set tougher inmate visitation rules for the more than 54,000 inmates in the NY prison system. The rules include the 6-month suspension of visitations for an inmate caught with drugs, and indefinite suspension if the visitor commits any violation which would terminate a current visit. The rules are effective this week at all 60 NY prisons.

SC Inmate Punches Attorney in Court, Upset with Sentence: PIX11 News has this video of handcuffed South Carolina inmate Lamarcus Williamson punching his lawyer in the face Wednesday after being sentenced to 15-years in prison for assault, robbery, and drug charges. Bailiffs were able to subdue Williamson and pull him off his lawyer. He will serve an additional six months for the attack.

The new issue of the Klaas Kids Foundation newsletter is here.  On page 7 is an article by former California Governor George Deukmejian opposing Proposition 34.

Under the Apprendi rule, a finding of fact that increases the maximum punishment a defendant may receive must be found by a jury, unless the defendant waives jury trial, and must be proved beyond a reasonable doubt.

How about a fact that increases the minimum punishment a defendant must receive?  The Supreme Court previously said no, but today it took up the case of Alleyne v. United States, No. 11-9935, to reconsider.  In its unpublished memorandum in this case, the Fourth Circuit held:

The latest cause celebre of the anti-death-penalty crowd is Philadelphia murderer Terrance Williams.  His legal/PR machine is claiming that he was molested as a teenager by the man he killed, Amos Norwood.  There is much wailing and gnashing of teeth over the jury not being told that.

Well, we have sworn testimony that Williams did not know Norwood at all -- the testimony of none other than Terrance Williams.  That is the version that Williams himself chose to tell the jury.  I have uploaded an excerpt of the transcript here.  Read it for yourself.

Q.  And after you knew that the man who agreed to give you a ride, I presume you didn't know Mr. Norwood.  Is that also correct?
A.  No, I didn't know him.
Q.  Had you ever met him before?
A.  No.
Q.  Did you know anything about him?
A.  No.
Q.  So you didn't have any reason to be angry with him or want to wish him any harm; did you?
A.  No.

How on earth can anybody claim that his trial was unfair because the jury did not learn of something (making the generous and doubtful assumption that his present claim is true) when the person now squawking knew it the whole time, testified, and chose to lie about it?  By what twisted notion of "fairness" can anyone buy the argument that this is unfair?  It just staggers the imagination.

Why the big effort for this particular murderer?  I think the other side is horrified by the prospect of the execution of a nonvolunteer in Pennsylvania, a large non-southern state, just as they were with the execution of Robert Alton Harris in California in 1992.  Their strategy is to try to isolate the death penalty to a limited number of rural and southern states before pushing again for national abolition.  Actual enforcement in states such as California and Pennsylvania is toxic to their strategy.

Mass. Man Pleads to Killing His Family, Gets LWOP: The Associated Press headlines Thomas Mortimer IV pleaded guilty to killing his wife, mother-in-law, and two young children in Massachusetts in 2010. The killings occurred during an argument over a bounced check Mortimer sent to the IRS. Mortimer stabbed his wife more than a dozen times and broke her nose with a frying pan. His mother-in-law was found dead near the door apparently attempting to flee the scene. Mortimer also killed his two-year-old daughter and four-year-old son; slitting their throats.  Mortimer fled leaving behind a written confession. He was caught the next day. Mortimer pleaded guilty to aggravated first-degree murder and was sentenced to life without parole.

TX DA Will Seek Death Penalty: Jennifer Emily of the Dallas Morning News has this article on how Dallas County District Attorney Craig Watkins will be seeking the death penalty for Franklin Davis for the rape and murder of a 16-year-old girl. Davis was facing charges on four counts of sexual assault, when he allegedly abducted the 16-year-old victim from school and murdered her to prevent her testimony. The girl's body was found, shot and strangled. Davis was charged in the murder Wednesday. 

2 Arrested in Border Patrol Death: E. Eduardo Castillo and Jacques Billeaud of the Associated Press report federal police arrested two men Thursday suspected in the shooting death of a U.S. Border Patrol agent in Arizona according to Mexican law enforcement. No other details have been disclosed at this time. This is an update of this earlier news scan.   

As we have noted many times on this blog, the United States Court of Appeals for the Ninth Circuit has a truly dismal record of reversal in the United States Supreme Court, especially in capital cases.  It is not just, or even primarily, the oft-cited "reversal rate," the ratio of cases reversed over the total taken up by the high court.  It is also the number taken up, even considering the size of the circuit, and the number reversed summarily, unanimously, or both.  When the Supreme Court thinks a decision is so obviously wrong as to not need argument or when not a single member of the diverse nine-member court thinks the court of appeals was right, that is a rebuke.  When it happens frequently, it indicates a real problem.

A big part of the real problem has been the recurrent failure of the Ninth Circuit to reconsider and correct errors in favor of the murderer by its three-judge panels.  Federal courts of appeals generally hear cases in three-judge panels, and cases are occasionally reheard by the full court (or, in the Ninth Circuit, an 11-judge panel), which may be done to resolve a split of opinion on a point of law between panels, settle a particularly important question, or to correct a particularly out-of-bounds decision.  The criteria for "rehearing en banc," as this procedure is known, are very similar to the criteria the Supreme Court uses in deciding whether to take a case up.

Yesterday, the Ninth granted rehearing en banc in the Arizona capital case of Detrich v. Ryan, No. 08-99001. 

Joseph Slobodzian reports for the Philadelphia Inquirer:

The Pennsylvania Supreme Court has refused a prosecution plea to reinstate today's execution of condemned Philadelphia killer Terrance Williams.

At about 3:45 p.m., the court in a one-sentence order denied the District Attorney's emergency motion and ordered court personnel to draft a schedule for filing legal briefs and, perhaps, an oral argument.

The state's high court decision let stand last Friday's ruling by Common Pleas Court Judge M. Teresa Sarmina that the 1986 trial prosecutor made Williams' death sentence more likely by withholding information that Williams was sexually molested by his victim.

In one sense, this case is similar to another notorious Pennsylvania case, Rompilla v. Beard.  In that case, the U.S. Supreme Court said that the lawyer was ineffective for not discovering information about Rompilla's troubled childhood.  But Rompilla himself knew all about that and chose not to tell his lawyer.  Prosecutors have a duty to disclose exculpatory information, but in this case Williams himself knew much more about the relevant facts than the prosecutors.  The District Attorney's statement on the trial judge's ruling says:

But how in the world could the prosecutor have "suppressed" information that was in the defendant's own head?  If the defendant was really involved with Mr. Norwood, who would know better than the defendant?  Only one other person could have known the truth - and he is dead, because Terrance Williams tied up his hands and feet, gagged him with a sock, beat him to death with a tire iron, burned his body beyond recognition, and then took his car to go on a gambling spree in Atlantic City with the victim's credit cards.

In her entire 45-minute ruling, the judge never once mentioned that fact.  She never once mentioned that Terrance Williams himself has never testified that he was abused.  In fact, at his trial he took the stand and swore under oath that Mr. Norwood and he were total strangers, and that he had nothing to do with the murder.

Kirk Makin reports for the Globe and Mail:

Prime Minister Stephen Harper has strengthened his imprint on the Supreme Court of Canada bench, naming a centrist judge from Quebec - Mr. Justice Richard Wagner - as his fifth appointment to the nine-judge bench since the Tories came to power in 2006.

*                                 *                                *

With his fifth Supreme Court appointment, Mr. Harper is well on the way to refashioning the very bench that will ultimately rule on the legitimacy of several controversial aspects of his criminal-law reform package.

UT Inmate Pleads Guilty in Guard's Death: Shannon Dininny of the Associated Press reports Utah inmate Curtis Allgier plead guilty to killing a prison guard in 2007, agreeing to a sentence of life without parole. Allgier, a neo Nazi, took the plea to avoid the death penalty. Allgier admitted to shooting the guard to death with his own gun while being escorted to a doctor's appointment. Allgier's extensive criminal history includes disarming a police officer, aggravated escape, robbery, possessing a firearm while on parole, attempted murder, forgery, burglary, and theft dating back to 2000. Allgier is scheduled to be sentenced on Dec. 5.

Oakland Homicides Spike, 5 Dead: Henry Lee of the San Francisco Chronicle reports over the course of 18 hours on Tuesday, five men were shot and killed in Oakland, California. Two of the victims were killed by the same shooter. Police have not disclosed any motives nor made any arrests.

Mass. Appeals Judge's Sex Change Decision: The Associated Press reports Massachusetts filed an appeal Tuesday of U.S. District Judge Mark Wolf's decision to grant convicted murderer Michelle Koselik's request for a sex change. The sex reassignment surgery would be paid for by tax payers. Continued from this news scan.

CA Quad-Killer Denied Parole: Larry Welborn of the Orange County Register reports the California State Parole Board denied Brett Matthew Paul Thomas' bid for parole Tuesday. The parole hearing was held at the R. J. Donovan Correctional Facility in San Diego. The daughter and sister of two of the victims traveled to the hearing from the East Coast to oppose the convicted quadruple murderer's parole. Thomas will be up for parole again in 2014. The original news scan is here.

Man Denies Murder in TV Interview, Confesses to Police: Tyler Rudick of Culture Map Houston reports that Mark Augustin Castellano confessed to murdering his girlfriend and dumping her body two days after telling TV psychologist Dr. Phil he did not kill her. Castellano confessed on Sunday to grabbing his girlfriend by the throat during a verbal dispute, breaking her neck, and finally dumping her body in an oil field in Texas. Castellano has been charged with murder.

If you are arguing for a convicted murderer in the US Supreme Court, and Justice Breyer asks you "so what's the problem?" your client should not make travel plans.

Yesterday, I posted on the case of Johnson v. Williams.  Today's argument transcript is here.

Judge Reinhardt's opinion for the Ninth Circuit sees this case as one where the defendant made two distinct arguments, one on state law and the other on the Sixth Amendment, and the state court addressed one and ignored the other.  My post saw the case as one where the governing state precedent gives the state statute an interpretation that the state supreme court believes is consistent with the Sixth Amendment, although some federal courts of appeals disagree, so that a resolution of the state-law question necessarily incorporates a resolution of the federal question.

From the transcript, it appears that Justices Kennedy, Ginsburg, Sotomayor, and Kagan see it my way.  If the opinion comes out this way, and it looks pretty hard to form a majority without any of them, the state will win this case but on narrower grounds than it sought.  Chief Justice Roberts seems to want to accept the premise of Reinhardt's opinion and then reverse, but it does not look like he has a majority for that.  Maybe not even a second.  Justice Breyer thinks the state court did specifically address the federal question, so this case was never a good vehicle to explore the issue at all.

On the merits, a number of the justices have problems with the state court's resolution, but they denied certiorari on the merits, so that should not be at issue.

Update:  SCOTUSblog has two very different posts on the argument.  Lyle Denniston has a sarcastic post criticizing DAG Stephanie Brenan for continuing to press the broader rule when the Court seemed disposed to rule in her favor on narrower grounds.  Tom Goldstein opines that Brenan was right to "swing for the fences" to promote the state's interests in preserving its judgments in other cases, not just winning this case.  Adam Liptak has this article in the NYT about this argument and the argument in the Ark. flooding case (cubits anyone?), but he does not mention the point I thought was key -- a majority of the justices seem to think the state court did address the federal question, although perhaps indirectly.

Univision had this story by Gerardo Reyes and Santiago Wills last Sunday (text in English, video in Spanish).

On January 30, 2010, a commando of at least 20 hit men parked themselves outside a birthday party of high school and college students in Villas de Salvarcar, Ciudad Juarez. Near midnight, the assassins, later identified as hired guns for the Mexican cartel La Linea, broke into a one-story house and opened fire on a gathering of nearly 60 teenagers. Outside, lookouts gunned down a screaming neighbor and several students who had managed to escape. Fourteen young men and women were killed, and 12 more were wounded before the hit men finally fled.

Indirectly, the United States government played a role in the massacre by supplying some of the firearms used by the cartel murderers. Three of the high caliber weapons fired that night in Villas de Salvarcar were linked to a gun tracing operation run by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), according to a Mexican army document obtained exclusively by Univision News.

John Malcolm has this commentary today at National Review Online.

The No on 34 campaign has this press release on the funding of the proponents.  The imbalance in funding is due in large part to out-of-state donors writing big checks for the yes campaign.

The CEO of Netflix is one of them.  I would cancel my Netflix subscription, if I had one.

The US Supreme Court meets Friday in a conference to decide which cases to take up for full consideration.  The Cert Pool has the conference list here.

Interestingly, there are three petitions in capital habeas cases from the Ninth Circuit, and they are all prisoners' petitions, seeking review of denials of habeas by the Ninth:  Schad v. Ryan (Arizona), 12-5534, Ybarra v. Baker (Nevada), 11-10652, and Payton v. Cullen (California), 12-5121.

It's taken a long time, but perhaps the Ninth really is getting the message.

During the Warren Court era, Judge Henry Friendly noted, the US Supreme Court expanded the Bill of Rights into a detailed code of criminal procedure, to which a new chapter is added every year.  Not surprisingly, the same issue in a criminal trial may be the subject of a constitutional claim and a provision of the actual code of criminal procedure enacted by the legislature.  Does a state court have to separately address the federal constitutional question when it believes its state law covers the ground?

That is the question in the first criminal case to be heard in the US Supreme Court this term, Johnson v. Williams, to be argued Wednesday.  The case relates to dismissing jurors who are unwilling to deliberate.  That issue is governed by section 1089 of California Penal Code, and of course it also has overtones of the Sixth Amendment right to jury trial.

The California Supreme Court established the rules for dismissing a juror in these circumstances in People v. Cleveland, 25 Cal.4th 466 (2001).  That case contains no separate Sixth Amendment analysis, but it relies on cases that discuss the Sixth Amendment aspects of the problem.  The court considers the views of some of the federal courts of appeals, notes it is not bound by them, and sets a somewhat different standard.  There can be little doubt, taking the opinion as a whole, that the California Supreme Court believes that the Cleveland standard is compatible with the Sixth Amendment, even though some of the lower federal courts might disagree.  The Cleveland standard is not contrary to or an unreasonable application of any Supreme Court precedents, which is the standard set by Congress for a lower federal court to overturn a state judgment on the merits.

In the present case, the California Court of Appeal applied Cleveland and affirmed the conviction.  Does the court also have to say "and we also reject the Sixth Amendment claim" before the "deference" standard of 28 U.S.C. §2254(d) applies on federal habeas?  Judge Reinhardt of the Ninth Circuit, in his never ending quest to evade the strictures of that section, said the lack of such a statement authorized the Ninth Circuit to review the Sixth Amendment claim de novo.

We thought we had settled this in Early v. Packer, 537 U.S. 3, 8 (2002).  We will see what kind of reception the Ninth Circuit's opinion gets in oral argument tomorrow.

Update:  After-argument post is here.

Border Patrol Agent Killed in AZ: Fox News headlines that two U.S. Border Patrol agents were shot in Arizona Tuesday; one was killed. Three agents were on patrol on horseback in a remote area known to be a major corridor for drug smuggling about 8 miles from the border to Mexico. The shooting occurred at about 1:50 a.m. when the agents went to investigate an alarm from one of the sensors along the border. One of the agents was killed.  The other airlifted out with non-fatal injuries, and the third officer was not harmed. The FBI and the Chocise County Sheriff's Office are searching for the killer.

CA Gov. Vetoes Open Media Access to Pelican Bay: The Los Angeles Times reports CA Gov. Jerry Brown vetoed AB 1270 that would open media access to the inmates of Pelican Bay State Prison on Sunday. The prison offers media tours which offer access to the warden, staff briefings, the prison yard, and access to preselected inmates chosen by corrections officers.

In the September 25 Los Angeles Daily Journal, Paula Mitchell, the anti-death-penalty crusading law clerk to Ninth Circuit Judge Arthur Alarcon, has a remarkable letter to the editor.  The LADJ is not available online to nonsubscribers, but I have uploaded a scan of the letter here.  (Pretty sure that's "fair use.")

The letter has two parts, one responding to a Sept. 14 article about Judge Alarcon's and Ms. Mitchell's follow-up law review article, and the second responding to a Sept. 17 op-ed by James Bozajian opposing Proposition 34.

In the first two paragraphs, Ms. Mitchell takes umbrage at the implication that she (a federal law clerk) is engaged in a partisan effort arguing on one side of the initiative controversy.  In the remainder of the letter, she makes a partisan argument on one side of the initiative controversy.

Today is the first Monday in October, the official opening of the US Supreme Court's term.  The court issued an orders list from last Monday's "long conference."  As expected, no new cases are taken up for decision.  The certiorari petitions granted from the long conference were announced last week.  (See here and here.)  There are a few cases sent back for reconsideration in light of precedents set last term. 

There is an odd case of a litigant who sues the court and the justices themselves.  Justice Kagan, as the only justice not recused, renders the decision that the court lacks a quorum and ditches the case.  (Not one of your more difficult decisions.)

Pennsylvania did not succeed in getting review of the decision of their state supreme court that George Banks, whose death sentence was reinstated by the US Supreme Court in 2004, is presently too crazy to execute.  No. 11-952.  CJLF brief in the prior case is here.

Serial murderer Alfredo Prieto, sentenced to death in both California and Virginia, did not get review of the affirmance of his direct appeal in Virginia.  No. 11-10967.

The court turned down the habeas case of Gitmo detainee Abdul-Rahman Suleiman, No. 12-137.  DC Circuit opinion is here: "The only issue we need examine then is whether the district court erred in concluding that Suleiman was part of the Taliban."  Nope.

As "federalist" notes in the comments, the court has evidently relisted the Balentine case, No. 12-5906, previously noted in this post.