February 2013 Archives

News Scan

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NY Cop Killer Given 45 to Life:  Barry Paddock, Oren Yaiv, and Larry McShane of the New York Daily News report that Thursday cop-killer Lamont Pride was sentenced to 45 years to life in prison for the slaying of Officer Peter Figoski in a 2011 armed robbery. Pride, 28, remains unapologetic to the Figoski family. Should Pride seek parole in 45 years, police have vowed to keep keep him behind bars. Continued from this News Scan.

PA State Prison Study Finds 60 Percent Recidivism Rate:  Donald Gilliland of the Patriot-News reports a study of Pennsylvania's state prisons finds six in ten of those released will re-offend within three years. Secretary of Corrections John Wetzel's study, followed released prisoners for over 12 years and found that in the first three years of release six in ten were re-arrested or sent back to prison for new crimes. The findings show younger offenders have the highest recidivism rate, while the most prolific offenders are those convicted for property crimes. It is hoped that the study will aid the Department of Corrections and the Board of Probation and Parole in future efforts at crime reduction.

Manning Enters Plea in WikiLeaks Case: 
Medina Roshan of Reuters reports that U.S. Army Private First Class Bradley Manning pleaded guilty Thursday morning to misusing classified material, but not to the more serious charge of aiding the enemy. Manning, 25, is accused of providing classified documents to the WikiLeaks website. He entered guilty pleas to 10 charges of misusing classified information, which carries a maximum of 20 years in prison. Manning's court marshal is set for June 3.

Piracy and Judges

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From today's decision of the Ninth Circuit in Institute of Cetacean Research v. Sea Shepherd Cons. Soc., No. 12-35266:

You don't need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.
Regular readers of Ninth Circuit opinions will have no difficulty guessing the author.  The self-high-minded folks are anti-whaling activists who disagree with international law on whaling and therefore deem themselves entitled to forcibly enforce their own view of the law.  Surprisingly, they actually prevailed in the district court, leading to the suspicion the judge shares their views on whaling and allowed those views to influence his legal judgment.  But the Ninth Circuit has its own surprise for the district court judge:

The district judge's numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington.
If a judge regularly makes "numerous, serious and obvious errors" in a particular class of cases, and if there is good reason to believe that his strong views against the underlying law are the reason, should he be disqualified from cases of that class?  Would the Ninth Circuit be willing to apply that rule to its own judges?

For more on the definition of "piracy," there are multiple posts over at Volokh Conspiracy.

"You can't fake good"

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I've been saying this for some time about varying IQ scores for murder defendants, but it's good to read of a credentialed expert actually testifying in court in those words.

The IQ test is a performance test, and it depends for its validity on the subject doing his best.  A person who wants to lower his score can do so by intentionally choosing a wrong answer or even by simply slowing down.  On the other hand, aside from cheating, there is no way to intentionally alter one's score upward. 

Tom Hanks can play Forrest Gump.  Forrest Gump could never play Tom Hanks.

How fast can you run a mile?  If you have various times, and there hasn't been any material change in your condition between them, the fastest time is the time in which you can run a mile.  The slower times probably represent occasions when you were not motivated to do your best.

From a variety of IQ scores, therefore, the high scores are more likely than the low scores to represent a person's true intelligence, particularly if the low scores are made in a context where the person has a incentive to malinger.

Today's News Scan links to this story about Pennsylvania torture killer Ricky Smymes.

[Dr. Leigh D.] Hagan and Dr. Bruce Wright, the psychology department chairman at St. Clair Hospital in Mt. Lebanon, told jurors that Smyrnes scored 81 on two IQ scores when he was an 8-year-old. "You can't fake good," Hagan testified.

News Scan

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Two CA Police Officers Slain:  NBC's Lisa Fernandez, Kyle Bonagura and Erika Conner report that sex offender Jeremy Peter Goulet, 35, shot two officers to death Tuesday in Santa Cruz. Goulet allegedly broke into a co-worker's home on February 22 and sexually assaulted her. He was then fired from his job Saturday. During an investigation into the incident, Goulet opened fire and killed two officers. He was killed in a second gun battle with police about a half-hour later. Goulet had been convicted of carrying a firearm without a permit and voyeurism in Oregon in 2008. The deaths of Det. Elizabeth Butler, and Det. Sgt. Loran "Butch" Baker were the first line-of-duty fatalities in the Santa Cruz Police Department's history.

OH High School Shooter Pleads Guilty:  CBS News and the Associated Press report that T.J. Lane, 18, pleaded guilty to multiple counts of aggravated murder Tuesday in Ohio. Armed with a pistol and knife, Lane, 17 at the time, fired 10 times at students in a high school cafeteria on February 27, 2012; 3 were killed and 3 more injured. Lane pleaded guilty in in order for prosecutors to seek life in prison rather than the death penalty. He will be sentenced March, 19.

Shooter Still Wanted in MI Torture Case: Serena Maria Daniels of the Detroit News reports that two torture killers were sentenced in Michigan Tuesday after pleading guilty. On April 29, 2012, Jason Miller and Terrance Dwight Griggs took part in the torture, murder, dismemberment, and burning of Michael Bostick and Kyra Jordan. A third victim was critically injured but escaped the burning vehicle before being killed. Griggs and Miller pleaded guilty to second-degree murder and weapons charges in exchange for testimony against Keith Anthony Williams, 22, the alleged mastermind and shooter. The original charges against the duo included first-degree murder. A judge and a prosecutor in Michigan believe Williams is still at large.

Debate Continues Over PA Killer's Mental Capacity:  Rich Cholodofsky of the Pittsburgh Tribune-Review reports that mental health experts disagree in the case of Pennsylvania torture killer Ricky Smyrnes. His defense argues that he is not eligible for execution under a 2002 U.S. Supreme Court ruling that exempts defendants defined as mentally retarded from the death penalty. The court's definition for mentally retarded defendants are those with an IQ below 70. Smyrnes has scored above and below 70 on various IQ tests throughout his life.  More on Ricky Smyrnes in this News Scan.
Aaron Davis and Peyton Craighill report in the WaPo on a poll showing that Marylanders oppose repeal of the death penalty by 60-36. The poll results are here.

When the poll asked the question most polls have asked, "do you favor or oppose the death penalty for people convicted of murder?" the result was 54-41.  However, when they asked the same people the actual question to be decided, "Which view is closer to your own, that Maryland law should allow for the death penalty or should the death penalty be abolished and replaced with life in prison with no chance of parole?" the result was 60-36.

This confirms, as we have noted several times on this blog, that the traditional poll question wording understates the actual support for the death penalty.  The question could be understood to ask about death for all murders, when the actual question is only whether that penalty should be available for the worst murders.

Fortunately, Maryland has a procedure to put the question on the ballot.  The people of Maryland, unlike the people of Connecticut, can overturn their legislators if they vote contrary to the wishes of the people.

SCOTUS Action

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No criminal law cases were decided by the US Supreme Court this morning.  The Court decided two securities cases.  Transcripts are available of yesterday's arguments in Maryland v. King on DNA testing of arrestees and Peugh v. United States on retroactivity of an upward change in federal sentencing guidelines.  Lawrence Hurley has this report on the King argument for Reuters.

News Scan

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Iowa May Reinstate Death Penalty:  William Petroski of the Press-Citizen reports that 65% of Iowa citizens favor reinstatement of capital punishment in certain cases according to a recent Des Moines Register poll. The poll surveyed 802 adults in the state from February 3-6. The margin of error is 3.5 percentage points. In 1995, the Legislature voted down a bill to allow death sentences 39-11.  Curently, Senate File 167, filed by Republican Sen. Kent Sorenson and 14 other party members, is pending in the Iowa House. The bill would allow the death penalty to be used when a minor is murdered after the criminal commits sexual assault or kidnapping. It has been almost 50 years since the state's last execution. The bill discussed in this News Scan.

FL Killer's Execution Stayed:  Bill Kaczor of the Associated Press reports that an 11th Circuit panel in Florida temporarily stayed the execution of Paul Augustus Howell, 47, set for 6 p.m.today. In his appeal before the court Howell claims that his  trial lawyer had a conflict of interest and failed to discover or present mitigating evidence that may have helped Howell avoid a death sentence. Howell, a drug trafficker, was convicted of killing state highway patrol trooper Jimmy Fulford with a pipe bomb on February 1, 1992.

PA Inmate Kills Prison Guard:  Michael Rubinkam of the Associated Press reports that Correctional Officer Eric Williams, 34, was killed by an inmate Monday at Pennsylvania's Canaan Federal Penitentiary. The unnamed inmate stabbed him multiple times using a homemade weapon. Williams was pronounced dead at a hospital at 11:30 p.m. He was the first federal corrections officer killed on duty in almost five years.

AR Senate Backs Parole Reform:  The Associated Press reports that the Arkansas Senate voted to approve reforms to the state's parole laws Monday. SB 259, passed by a vote of 30-1, will make several offenses ineligible for mandatory parole. These include attempted capital murder, attempted first-degree murder, making a terrorist threat, and aggravated residential burglary and arson.

Supreme Court Hears Challenge to DNA Collection:  The Associated Press reports that the U.S. Supreme Court heard arguments in the case Maryland v. King on Tuesday. The issue is whether or not police can take DNA from arrestees without a warrant. Currently, 28 states and the federal government take samples from people arrested, regardless of proving guilt or innocence. A decision will be made later this year. The case is discussed by CJLF Legal Director Kent Scheidegger here, and in this News Scan.
US Supreme Court case 12-8891 is the petition of Lynne Stewart, the former lawyer who abused the attorney-client privilege to smuggle messages for the "blind sheikh," Omar Ahmad Ali Abdel Rahman.  The Second Circuit opinion is here.

I would place a substantial wager on denial.
Last month, we had this post on the case of Trevino v. Thaler, on the question of when alleged ineffectiveness of state habeas counsel would be deemed sufficient cause for a federal court to consider a claim never made or not properly made to the state courts.  Until last year, the answer was virtually never under the landmark 1991 precedent of Coleman v. Thompson

Martinez v. Ryan made an exception for states, including Arizona, which have rules forbidding ineffectiveness claims to be raised on direct appeal.  The Court described the exception it was creating as narrow.

Trevino was argued yesterday.  The transcript is here.  There is a lot of discussion about variations among states in how an ineffectiveness claim may be raised, how they may be raised in Texas, and what difference any of these variations should make in the federal rule.

There is a corollary to Murphy's Law:  "Once you open a can of worms, the only way to get them back in is to use a larger can."  The Court opened a can of worms in Martinez.  It decided to make an exception to Coleman's straightforward rule based on the workings of a state's review process and is now faced with complex task of deciding how to apply that to every variation that comes down the pike.  They are not looking forward to that.  See p. 13.

I hope their decision is to reseal the can.  Something like this:  "The Martinez exception applies only to its specific limits in that decision, and we are not expanding this exception or making any new ones.  Coleman is still the law everywhere else."

Argument on Innocence and Time Limits

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Last week I previewed the argument in McQuiggin v. Perkins, on whether a claim of actual innocence can overcome the habeas corpus statute of limitations. The argument was held yesterday.  The transcript is here.  Adam Liptak has this story in the NYT.

As noted in the preview, the case is a poor vehicle for resolving the question because Perkins' claim of innocence is weak, to put it mildly.

FISA and Standing

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No criminal law decisions from the US Supreme Court today.  The Court did decide a case on "standing," an issue that comes up occasionally in civil suits against law enforcement practices and in cases of death row "volunteers."  The case is Clapper v. Amnesty International:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court's approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.
The answer is no, 5-4.

News Scan

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CA Parolees Continue Removing Tracking Devices:  Paige St. John of the Los Angeles Times reports, enhanced by this article by Jessica Chasmar of the Washington Times, that thousands of California child molesters, rapists, and other sex offenders have been released under AB 109 have been tampering with or removing their tracking devices. Arrest warrants for such cases went up by 28 percent to about 3,400 in the first year after Realignment. Investigations have found that parole violators in some jurisdictions are set free in less than 24 hours. Continued from this News Scan.

OR 2014 Ballot May Include Death Penalty Repeal Measure:  Jonathan J. Cooper of the Associated Press reports that Oregon's House Judiciary Committee will hear testimony Tuesday for a measure to abolish the state's death penalty. The measure's sponsor, Democratic Rep. Mitch Greenlick, hopes to get it on the 2014 ballot. A similar measure, Proposition 34, was rejected last year in California. The CJLF's statement on the defeat is here.

CA Parole Board Backs Santa Rosa Killer's Release:  Chris Smith of the Press Democrat reports that the California State Parole Board voted Wednesday to release murderer Roger Lee Hill. His parole was denied multiple times in the late 1990s. He was convicted of the Nov. 23, 1980 murder of Ralph Currier, 47, in Santa Rosa. Barring an overturn or amendment from the Governor, Hill could be free in June.

CA Death Penalty Sought for Halloween Killer:  Sarah Burge of the Press-Enterprise reports that alleged killer Marquise D. McGlown will face the death penalty in California if convicted. McGlown, 22, is accused of the rape and murder of Shanae Wesley, 23. Prosecutors say that on Oct. 31, 2012, shortly after meeting through a mutual acquaintance, McGlown stole Wesley's keys. Soon after, he returned to the apartment where she and her 3-year old son were living. He raped and murdered Wesley, then set the apartment on fire in an attempt to cover his tracks. Wesley's son was rescued by neighbors. McGlown has pleaded not guilty and is being held without bail.

CA Gang Member Sentenced to Death:  KESQ News reports that gang member Emilio Manuel Avalos, 35, was sentenced to death Friday in California. Avalos killed Marine Cpl. Henry Lozano, 20, on Dec. 19, 2001. He had also fatally shot Jahi Collins, 17 on Dec. 21, 1994. In addition, Avalos was convicted for the attempted murder of Bobby Wilson, Collins' friend, who was paralyzed after the attack.

TX Student Arming Neighborhoods to Reduce Crime: CBS News reports that graduate student Kyle Coplen, founder of the Armed Citizens Project, is giving single-shot shotguns to qualified residents in major crime areas in Texas. Coplen wants to see what effect the presence of more guns will have on crime rates in mid to high crime level neighborhoods. The group is looking to see if there is a causal link between rates of gun ownership and crime.

CA Robber Charged in TN Double-Homicide Cold Case:  Fox News reports that Patrick Lamonte Streater has been charged with the 1996 murders of two 18 year old women in Tennessee. Streater, 37, allegedly fatally stabbed Melissa Chilton and Tiffany Campbell over 100 times. Recent evidence points to Streater as the killer. Streater is currently serving a 12 year sentence in California for a 2002 series of violent robberies in Sacramento involving elderly women.

CO Ridgeway Killer Facing Additional Charges:  P. Solomon Banda of the Associated Press reports that alleged Jessica Ridgeway Killer, Austin Sigg, is facing three additional sexual exploitation charges. Sigg is also charged with murder, sexual assault, kidnapping, and robbery. More on Sigg and his crimes in this News Scan.


The US Supreme Court has taken up the cases of Burt v. Titlow from Michigan and Kansas v. Cheever.  In the both cases, the prosecution asked the high court to review a decision by a lower  court favoring the defendant.

Titlow is a federal habeas case involving issues of ineffective assistance in plea bargaining, a follow-up to last year's Lafler v. Cooper and Missouri v. Frye cases.  As with most federal habeas cases, there is also an AEDPA issue.

Cheever involves a claim of inability to form the mental state for murder due to drug use and the state's rebuttal of that claim with a court-ordered mental examination.
...yes, that Conrad Black, of Black v. United States, the follow-up case to Skilling, in which the Supreme Court upheld, with important judicially imposed modifications, the Honest Services Statute, 18 USC 1346.

As you might expect, Mr. Black (or Lord Black) is none too happy with the criminal justice system in the United States.  What he and, to be honest, many others find so troubling is the extent of prosecutorial discretion, which he views as broad bordering on dictatorial. He made the case in his National Review article last year.

In today's debate, a teleforum sponsored by the Federalist Society, Mr. Black and I were joined by Prof. Ellen Podgor, an expert in white collar prosecutions who teaches at Stetson University College of Law.  Prof. Podgor seemed largely, although not in every respect, to agree with Mr. Black.

The entire debate will at some point be available on the Federalist Society's website.  For now, I can only post my opening statement, trying to carry the flag for the prosecution point of view.  In the era of the Holder Justice Department, this has its share of problems, but I gave it a go.
Sara Jean Green of the Seattle Times reports that King County Superior Court Chief Criminal Judge Ronald Kessler removed the death penalty from the case of alleged cop-killer Christopher Monfort in Washington on Friday.

Monfort is accused of fatally shooting Officer Timothy Brenton and wounding Officer Britt Sweeney on October 31, 2009. The officers were parked in their patrol car when Monfort allegedly pulled up alongside them, shooting into their vehicle. Nine days prior, Monfort allegedly blasted four police vehicles with incendiary bombs; one was rigged to explode upon the arrival of responding officers. Monfort was nonfatally shot and apprehended outside his apartment on November 6, 2009 by detectives during a confrontation. He allegedly tried to shoot and kill Seattle Police Sgt. Gary Nelson. Police found a manifesto against police brutality, explosives, and guns in his home. Monfort's lawyers told the court this month that the insanity defense would be pursued.

Judge Kessler ruled that a 'flawed and minimalist' investigation was carried out by King County Prosecutor Dan Satterberg. Kessler said Satterburg left out mitigating factors which could have meant Monfort would face life in prison rather than the death penalty. Satterburg made the decision to pursue the death penalty without waiting for Monfort's defense to submit any mitigating evidence for him to consider. However, the case could continue as a capital case to not delay the trial.

In a statement released later Friday, Satterberg's office said, "We believe today's decision is wrong and we will appeal it to the Washington State Supreme Court."

"State law calls for the prosecutor to consider any evidence of mitigation prior to making a death penalty decision," the statement read. "In this case, the defense refused to provide any information to the prosecution.  The prosecution gave the defense team ten months to provide mitigation information, which is nine months longer than state law requires.  In the absence of any information from the defense, the prosecution considered all available mitigating information and decided it was not sufficient to merit leniency."


News Scan

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MT Upholds Death Penalty:  The Billings Gazette reports that Montana's House Judiciary committee rejected HB 370, a proposal to ban the death penalty on Friday. Backers are expected to seek debate on the House floor. Another bill trying to end the state's death penalty failed in the same committee two years ago.

MD Death Penalty Repeal Faces Senate Vote:  Michael Dresser and Erin Cox of the Baltimore Sun reports that Maryland Gov. Martin O'Malley's SB 150 to repeal the state's death penalty has passed 6-5 in the Senate Judicial Proceedings committee. The state carried out its last execution in 2005. It currently has five convicted murderers on death row. According to a recent poll, MD voters favor the death penalty. Of those surveyed, 48 percent oppose repeal, while 42 percent are in favor. The bill is expected to pass when it is brought to the Senate floor next week.

GA Executes Double-Killer, Without a Prescription:  Rhonda Cook of The Atlanta Journal-Constitution reports that convicted killer Andrew Cook was executed in Georgia on Thursday, after his appeal that he needed a doctor's prescription to be executed, was rejected by the U.S. Supreme Court. He was pronounced dead at 11:22 p.m. The story is further discussed in this News Scan.

TX Executes Man Who Burned Ex-Girlfriend:  Michael Graczyk of the Associated Press reports that Carl Blue was executed Thursday in Texas after the Supreme Court rejected his last appeal. Blue, 48, set his ex-girlfriend, Carmen Richards-Sanders, on fire after throwing gasoline on her at her apartment in September, 1994. He also burned a man, Larence Williams, who was with her at the apartment. Williams survived the attack and later testified. Blue's execution is the first in TX this year.

CA Continues Moving Prisoners Out of High-Security Units:  Paige St. John of the Los Angeles Times reports that California prison officials are moving more prisoners out of secure housing units. The state began a trial program that allows prisoners to leave the units after four years. Spokeswoman Terry Thornton said the Department of Corrections and Rehabilitation has reviewed 144 high-security inmates allegedly associated with prison gangs. Of those, 78 were released into the general prison system, and 52 were placed in the trial program. Seven of the inmates have been retained over concerns for their safety. An additional 10 have agreed to provide gang activity information to investigators.

CA Killer Put on Death Row For Second Inmate Murder:  Jennie Rodriguez-Moore of the Record reports that John Joseph Lydon, convicted of killing two inmates while serving a sentence for a robbery/murder, has been sentenced to death. Lydon joins approximately 725 other inmates on death row in California where no executions have been carried out since 2006. Continued from this News Scan.
Conor Friedersdorf has this post at The Atlantic, with the above title, on Justice Thomas's recent talk at Harvard, with video of his full appearance.

See also this post from 2006.

Drew Peterson Sentenced

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AP has this story on the sentencing of Drew Peterson for killing his third wife. He got 38 years -- to age 97 -- which should be sufficient.

One ground for appeal will be Illinois' revised hearsay law:

The hearsay -- any information reported by a witness not based on the witness' direct knowledge -- included a friend testifying that Savio [the victim in this case] told her Peterson once put a knife to her throat and warned her, "I could kill you and make it look like an accident."
This is one case where the Supreme Court's revamp of the Confrontation Clause may help the prosecution.  It would have been easier to argue that this hearsay is unreliable and not within any recognized exception under the old Ohio v. Roberts doctrine.  Arguing that it is "testimonial" under the current Crawford v. Washington rule is a tougher argument.

And of course there is always the ineffective assistance claim.  Defense counsel called a witness who ended up hurting his case.

A turning point at the trial came when the defense called a divorce attorney who said he spoke to [wife #4] Stacy Peterson before she vanished. Rather than blunting her credibility, the witness stressed to jurors that Stacy Peterson seemed to truly believe her husband killed Savio.

This is a case where the ineffectiveness claim can be resolved on direct appeal.

Earlier Thursday, Judge Edward Burmila denied a defense request to grant Drew Peterson a retrial. Peterson's current attorneys contended his former lead attorney, Joel Brodsky, botched the initial trial and had been the one to decide to call Smith to the stand. Brodsky stepped down from the defense team in November, as his quarrel with Peterson's current lawyers worsened.

News Scan

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GA Court Stays Another Execution:  Rhonda Cook of the Atlanta Journal-Constitution reports that the Georgia Court of Appeals issued a stay in the execution of Andrew Cook on Wednesday, while it considers Cook's claim that a doctor's prescription is needed for the prison pharmacy to allocate the lethal injection drug pentobarbital. Cook was sentenced to death for fatally shooting two college students chosen at random in 1995. If the court lifts the stay by Feb. 28, Cook could be executed within weeks. This story is further discussed in this News Scan.

FL Bill Would Make Gang Membership an Aggravating Circumstance:  Walter C. Jones of the Morris News Service reports that Florida Rep. Barry Fleming introduced a bill Wednesday that would add gang membership as an aggravating circumstance in death penalty cases. He hopes the bill will bring attention to the growing problem of gang violence. According to Fleming, as much as 90% of crime is gang related.

Japan Executes 3 Killers:  The Associated Press reports that three murderers were hung Thursday in Japan. The executions are the first under Japan's new administration, which took office last December. Al Jazeera News reports that the executed were Kaoru Kobayashi, 44, Masahiro Kanagawa, 29, and Keiki Muto, 62.  Kobayashi kidnapped, sexually assaulted, and killed a 7-year-old girl in 2004. He sent a photograph of the victim's body to her mother. The girl was found dumped in a gutter.  Kanagawa killed one and wounded seven in a knife attack in Tokyo in 2008. He murdered another man the same year.  Muto robbed and strangled a bar owner in 2002. Polls show that the majority of the Japanese public support the death sentence despite criticism by the European Union and human rights groups.
On Monday, the Supreme Court hears arguments in McQuiggin v. Perkins, No. 12-126, on the question of whether a claim of actual innocence allows an exception to the federal habeas statute of limitations.

At SCOTUSblog, Jordan Steiker has an argument preview on the case.  Steiker is a hard-core anti-death-penalty true believer, so you have to take everything he says with a grain of salt.  (Perkins is not a capital case, but capital punishment always looms in the background of habeas cases.)

The ABA and Law School Accreditation

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James Huffman, dean emeritus at Lewis & Clark Law School, has an op-ed in the WSJ titled Perverse Incentives of the Lawyers Guild.  It has nothing to do with crime, but it is a good example of why the American Bar Association, a private organization unaccountable to the public, should be given no standing whatever in the exercise of government power, an issue that comes up frequently in right-to-counsel cases.
The majority believes that Casey Anthony killed her two year-old daughter and got away with it.  The case that the majority is correct seems overwhelming.  This is so if, for no other reason, because Ms. Anthony probably set a world record for lying.  Lying is hardly atypical of criminal defendants, but (1) to recall the obvious, the reason they lie is that they're evading the truth, i.e., that they're guilty as sin; and (2) if Ms. Anthony ever told the truth during the entire course of the investigation, I can't remember it.

He lawyer, one Jose Baez, helped the trial along to its disastrous conclusion by employing a typical defense tactic, to wit, bring up a whole bunch of irrelevant and incendiary things to get the jury to think about anything other than the client's behavior. The one I recall offhand is his having accused Ms. Anthony's father of childhood molestation, a charge for which he adduced not a whit of evidence.

As you might imagine, Mr. Baez charged a fat fee.  Well, better luck next time.

This is not exactly justice, but it's as close as we're going to get. 

George Will on Solitary

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George Will has this column on solitary confinement and "supermax" prisons.  His focus is entirely on the psychological effects on the inmate.  Will barely mentions the problem that extreme levels of security are needed for certain extremely dangerous inmates who still manage to commit acts of violence at lesser levels.

The Court Gets It Wrong in Evans v. Michigan

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With all respect, I think both the majority and the dissent got it wrong in Evans v. Michigan, although the dissent gets much more right than the Court's opinion.

The defendant, Lamar Evans, was in the middle of a jury trial for arson when his lawyer argued to the judge, erroneously, that the state had to prove that he burned down a "dwelling," and had introduced no such proof. The judge agreed, and granted a directed verdict of acquittal. The question before the Supreme Court was whether, under the Double Jeopardy Clause, Evans could be retried after the erroneous acquittal. By a vote of 8-1, with Justice Alito as the sole dissenter, the Court held that he could not.

Justice Sotomayor, writing for the Court, held that the Double Jeopardy Clause prohibits retrial following a court-decreed acquittal, even if the acquittal is "based upon an egregiously erroneous foundation." The Court noted that several of its precedents had applied this rule in cases closely resembling Evans's. The Court declined to extend to instances in which an acquittal has been granted a rule it developed for mistrials brought about at the defendant's instigation. In such instances, the Court has allowed retrials because the defendant himself sought a pre-verdict termination of the proceedings, thus effectively waiving his right to the one-fair-shot-only rule that lies at the heart of Double Jeopardy protection. 

No such rationale applies, the Court held, to acquittals, which are fact-related, substantive terminations of jeopardy favorable to the accused.  Actual acquittals have, historically, enjoyed the highest degree of protection under the Double Jeopardy Clause. While it may be true that the defendant gets a windfall by persuading the judge that the government failed to prove a non-existent element, that problem can be dealt with if the states were to adopt rules that disallow mid-trial acquittals, encourage judges to withhold judgment until after the jury's verdict, or provide for mandatory continuances or expedited mid-trial appeals by the state.

Justice Alito dissented, contending that Double Jeopardy "is not triggered by a judge's erroneous pre-verdict ruling that creates an 'element' out of thin air and then holds that the element is not satisfied."  

News Scan

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Juvenile Attempted Murderer Could Serve 40 Years:  Jessica Anderson of the Baltimore Sun reports that Colorado high school student Robert W. Gladden Jr., pleaded guilty Tuesday to the attempted murder of Daniel Borowy, 17.  Gladden, 15, expressed his desire to kill himself after using his father's shotgun to shoot Borowy, a special needs student. As part of Gladden's plea deal, prosecutors dropped 27 other charges against him. Gladden faces a possibility of 40 years in prison at sentencing next week.

AZ Lawmakers Get Tough on Sex Offenders: 
David Goins of Arkansas Matters reports that the Arkansas House unanimously passed SB150 Tuesday, allowing parole boards to deny parole eligibility to lower level sex offenders. Previously  Arizona sex offenders not convicted of rape, or 1st or 2nd degree sexual assault, were eligible for early release. SB150 passed the Senate last week. Gov. Beebe is expected to sign the bill into law this week.

Supreme Court to Rule on DNA Collection: 
Rebecca Forand of the South Jersey Times reports that the U.S. Supreme Court will hear the case of Maryland v. King, involving a defense challenge to a 2011 New Jersey law which allows DNA testing of those arrested for violent crimes. If the high court finds in the defendant's favor, the new precedent will bar testing in New Jersey and at least 25 other states until a suspect is convicted. More on the case, Maryland v. King and its implications can be found on our blog here, and in an article here.

OK Killer Will Face the Death Penalty:  Tim Talley of the Associated Press reports that prosecutors will seek the death penalty for Oklahoma City killer Denny Edward Phillips, who is charged with the murders of Casey Mark Barrientos, and three others, including two pregnant women. Phillips ex-girlfriend alleges that he and another man, David Allen Tyner, decided to kill Barrientos and anyone they found with him because of a payoff dispute over his drug dealing. Phillips faces six counts of murder.  All the victims were stabbed, shot and set on fire. The preliminary hearing began last week and will continue on Feb. 26.  

High Court Denies Killer's Appeal: 
John Ingold of The Denver Post reports that U.S. Supreme Court judges Tuesday denied to hear an a death sentence appeal from Colorado's longest-serving death-row inmate. Nathan Dunlap, convicted of killing four people at an Aurora, Colorado Chuck E. Cheese, will now wait to have his execution date set. Dunlap killed three teenagers and one adult on the night of December 14, 1993 after being fired from his job at the restaurant.

Property Crimes Rise With Realignment: 
Grant Scott-Goforth of The Willits News reports that Humboldt County, California is experiencing a substantial rise in property crimes. Vehicle thefts and burglaries in the county are all up dramatically since 2011. Law enforcement officials attribute the dramatic increase to AB 109.

Warren Lee Hill Escapes Death Penalty: 
The New York Daily News reports that Warren Lee Hill, set to be executed yesterday, has been granted a stay of execution by the U.S. Court of Appeals for the Eleventh Circuit. Continued from this News Scan.

Teague, Kagan, and Sotomayor

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From reading the opinions in Chaidez v. United States this morning one thing becomes very clear.  Justice Kagan understands the rule of Teague v. Lane.  Justice Sotomayor does not.  It's not just that she misapplies it in a close case.  She genuinely fails to understand what it is about.

Once upon a time, judges pretended that they did not make law but merely discovered what the law had always been.  Once we got past that conceit, judges had to grapple with the question of when changes made through case law would apply retroactively.  Initially, the Warren Court came up with a subjective, hard-to-predict approach that sounded more like legislating than adjudication.  That was the Linkletter-Stovall rule.  Justice Harlan went along at first but later proposed a more categorical approach.  All new rules of procedure would apply to cases on direct review, but not on habeas corpus to cases where the judgment has already become final on appeal.  The Supreme Court adopted the first half in Griffith v. Kentucky in 1987 and the second half in Teague v. Lane in 1989.

When is a rule "new"?  The Supreme Court adopted an expansive definition.  A rule is new if it was not dictated by precedent existing at the time the judgment became final.  A rule can be a logical extension of existing principles and precedents and still be "new" for Teague.  This is the part Justice Sotomayor apparently doesn't get.

SCOTUS Decides Four Criminal Cases

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Lots of criminal law action from the high court this morning:

Chaidez v. United States held that the Supreme Court's extension of ineffective assistance claims to cover misadvice or nonadvice about immigration consequences of conviction in Padilla v. Kentucky was indeed a "new rule" and hence not retroactive on habeas corpus to overturn final convictions.  CJLF filed an amicus brief in this case.

Evans v. Michigan held that a directed verdict of acquittal bars retrial under the Double Jeopardy Clause, even if the directed verdict is based on an error of law.

Johnson v. Williams held that when a state court rejects the defendant's state-law arguments and does not expressly mention a federal claim, the court is rebuttably presumed to have rejected the federal claim on the merits for the purpose of the federal habeas "deference" rule, 28 U.S.C. §2254(d).  In this case the presumption was not rebutted because the state court of appeal applied a state supreme court decision that did consider the federal implications.

Henderson v. United States held that, for the purpose of the "plain error" rule allowing a party to raise on appeal a plain error he did not raise in the trial court, "plain" is determined at the time of the appeal, not the time of the trial.  A trial court decision contrary to a later Supreme Court decision can thus be a "plain error."

News Scan

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FL Sex Offender May Face Death:  The Orlando Sentinel reports that the Florida State Attorney's Office will seek the death penalty for Joseph Edward Jordan if convicted. Jordan, 42, allegedly murdered his roommate, Keith Cope, 50, in June 2009. Jordan bound Cope to bedposts with rope and duct tape. Jordan then took the contents of his wallet and stole his car. Cope had a stroke and was found unconscious by his girlfriend days later. The resulting circulatory damage led to his death. Jordan has an extensive criminal history including drug dealing, grand theft, burglary, false imprisonment of an underage girl, and failing to register as a sex offender.

GA Murderers Fighting Single-Drug Executions:  David Beasley of Reuters reports that two-time convicted killer Warren Lee Hill will be executed Today at 7:00 p.m. in Georgia, from this News Scan. Hill's execution was delayed last summer due to legal wrangling over Georgia's switch from the three-drug lethal injection cocktail to a single-drug protocol. Discussed by Kent Scheidegger here. His attorneys seek to overturn the death sentence, claiming he is mentally retarded. Frederic J. Frommer of the Associated Press reports that Georgia death row inmates Hill, Allen Cook and Marcus Wellons, discussed here, are trying to stop their executions by invoking federal drug laws. They argue that without a doctor's prescription, executing them Georgia would violate the Controlled Substances Act. Continued from this News Scan. The Death Penalty Information Center reports that Cook is set to be executed Thursday.
 
CA Governor Upholds Most Parole Releases:  David Siders of the Sacramento Bee reports that California Gov. Jerry Brown upheld about 80 percent of parole board decisions to release prisoners in 2012. Currently Gov. Brown is deciding whether or not to allow former Manson follower Bruce Davis to be paroled. Brown's decision will come by early March. Continued from this News Scan.

RI Thrill Killer Granted Parole:  The San Francisco Chronicle reports that the Rhode Island Parole Board affirmed Monday that thrill killer Alfred A. Brissette Jr. will be paroled once a release plan is set. Brissette pleaded no contest in 2004 to the 1999 killing of Jeanette Descoteaux. He was sentenced to 35 years in prison. The Rhode Island Brotherhood of Correctional Officers, a police union, says it is disgusted by the decision. Continued from this News Scan.

CA Cop Killer Will Face Death Penalty: Ryan Chalk of the San Jose Mercury News reports that alleged cop killer Henry Albert Smith Jr. will face execution according to Solano County prosecutors. Smith is accused of fatally shooting Vallejo police officer Jim Capoot while fleeing the scene of a bank robbery on Nov. 17, 2011. A jury trial date will be set in court on May 10.

NV Law Enforcement Opposes Shift of Parole Responsibility:  Andrew Doughman of the Las Vegas Sun reports that Nevada Gov. Brian Sandoval has proposed to shift state parole responsibilities from the Department of Public Safety to the state Department of Corrections. The proposal is planned to save money. However, Nevada law enforcement officers oppose the move. They fear giving a small group oversight over parole and incarceration functions will undermine interdepartmental controls, create needless bureaucracy and decrease the pay of newly hired officers.

Detention Incident to a Search

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The second Fourth Amendment case decided today involves the scope of detention of a person incident to the execution of a search warrant.  Over 30 years ago, the Supreme Court decided in Michigan v. Summers that the police can detain people on the premises or in the immediate vicinity when they execute a search warrant. Today's decision in Bailey v. United States, No. 11-770, involves people observed leaving the premises as the police prepare to execute the warrant and detained several blocks away.

The Supreme Court decided 6-3 that the reasons justifying the Summers rule do not apply to this context, at least not strongly enough to warrant an exception to the usual rules that the police need probable cause to arrest someone or reasonable individualized suspicion to briefly detain them.  The possibility that a person will attack the officers or interfere with the search is obviously greatly attenuated when he has left the premises.  (He could return, of course, and then the police could detain him.)  The third interest of preventing flight was not deemed strong enough to justify extension of the Summers rule.

Justice Kennedy wrote the majority opinion.  Justice Scalia wrote a concurrence emphasizing that Summers is a categorical rule, not one based on weighing the costs and benefits in the individual case.  Justice Breyer wrote the dissent, arguing that the distance from the premises in this case was not materially different from Summers.

Why is the Court willing to be more categorical in this case than in the dog sniff case decided today?  That case involves the question of whether there is probable cause for a search or seizure, the inherently vague standard that is actually in the Constitution.  The Justices are reluctant to impose rigid rules that will inevitably forbid some searches and seizures that actually are supported by probable cause, particularly when the result is the draconian remedy of exclusion of valid, probative evidence.  They are more willing to risk that result when the particular search or seizure at issue is not itself supported by probable cause but rather comes within a court-created exception such as being incident to another search or seizure.  Arizona v. Gant was such a case, and Bailey is another.

Sniffing Out Probable Cause

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The US Supreme Court today unanimously reversed the Florida Supreme Court's attempt to subject routine dog sniffs to a battery of rigid tests.

It is good to see the current Supreme Court unanimous in its acceptance of the Rehnquist Court's reform of probable cause, without a single Justice wanting to go back to the old Warren Court approach.

Justice Kagan wrote the opinion.

All we have required [for probable cause] is the kind of "fair probability" on which "reasonable and prudent [people,] not legal technicians, act." [Ill. v. Gates, 462 U.S.] at 238, 231 (internal quotation marks omitted).

In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. See, e.g., Pringle, 540 U. S., at 371; Gates, 462 U. S., at 232; Brinegar v. United States, 338 U. S. 160, 176 (1949). We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. In Gates, for example, we abandoned our old test for assessing the reliability of informants' tips because it had devolved into a "complex superstructure of evidentiary and analytical rules," any one of which, if not complied with, would derail a finding of probable cause. 462 U. S., at 235. We lamented the development of a list of "inflexible, independent requirements applicable in every case." Id., at 230, n. 6. Probable cause, we emphasized, is "a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even use- fully, reduced to a neat set of legal rules." Id., at 232.

Ed Koch Is Still Right

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Ed Koch, once the charismatic mayor of New York City, recently died.  In 1985, he wrote an essay in the liberal magazine The New Republic arguing in favor of the death penalty, and taking on the major opposing arguments.

Thanks to Prof. Doug Berman at Sentencing Law & Policy for reminding us of Koch's work, which rings as true today as it did a generation ago.  A reprint of Koch's piece is here.

Delicta Graviora

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Priests who abuse children commit a grave offense.  So, too, do church officials who fail to take steps to insure they cannot abuse more children.  We have known about that for some time.

Victoria Kim and Ashley Powers have this story in the LA Times about yet another grave offense:  the unconscionable delays in the Vatican in proceedings to remove these molestors from the priesthood altogether.
A:  Children suffer and lives get ruined.

That is the only fair conclusion from this AP story.  It's about a father and scouting official who, after he was caught molesting a scout, was kicked out of the troop but not reported to the cops, on the theory that the problem was a manifestation of "mental illness," not a crime.

Not having to worry about the criminal justice system, but deprived of his inventory of scouts, what did he do?

He started in on his own children, a daughter 12 and a boy 7.  Both suffered from this for years, and both of course left home as soon as they could.  But the damage was done. The daughter attempted suicide at 23, and the son, previously a happy, promising student, got in constant fights and became a desperate alcoholic.  He now lives in a village in Africa.

I am not one to jump on the Boy Scouts or the Catholic Church for the abuse scandals in each.  That is largely old news.  The lesson we need to learn for contemporary purposes is this:  When someone starts the lecture that we should turn away from the "punitive approach" of prosecution and jail and instead apply the "humane approach" of therapy and counseling  --  someone like a defense lawyer, for example  --  remember this story, and remember that victims, not criminals, are first in line for humane treatment.  And, if a point be made of it, for justice.

Just Tell the Truth and Quit Whining

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It has become a drumbeat narrative among our adversaries that defendants plead guilty, not because they are guilty, but because of either the "draconian" sentences that await them after trial, or as a result of some sneaky side deal they never mentioned at the time they pled, but are happy to claim years later in the habeas petition.*

I've always had one answer to this:  Tell the truth.  If you're not guilty, say so.  Go to trial and show up the prosecutor for the conniving S.O.B. you say he is.  He bears the burden, and has to convince all 12 beyond a reasonable doubt.  

Of course, the main reason to tell the truth is not to show up anyone.  It's that telling the truth is a virtue and a moral good unto itself.  But if an extrinsic justification were needed, it's that no even arguably decent criminal justice system can survive without the ability to demand, and get, the truth.  So tell the truth and quit whining.

I mention this by way of introducing a convoluted but utterly fascinating NYT story today about how much misery can start with just one lie.  And the lie was not about a murder case, but a speeding ticket.

*I'm putting aside for purposes of this post the fact that these claims of false self-incrimination are almost always fictitious.

How Sentencing Gets Dumbed Down

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The main reason to keep the death penalty is that it's the only fitting punishment for some grotesque crimes. Another reason is illustrated by this story from the AP.  It's about a woman, now 38, who, at 16, lured a man she didn't know to an abandoned house, where he was knifed to death in order to get his wallet.  

The woman, Barbara Hernandez, is  -- one would think from the story's woozy opening paragraphs  --  Joan of Arc's first cousin.  This is how the article (and it's presented as an article, not an op-ed) begins:

More than 21 years after she went to prison, Barbara Hernandez enters the cinderblock visitation chamber at the Women's Huron Valley Correctional Facility in the turquoise blouse with applique flowers she keeps for special occasions. Her makeup is carefully applied but cannot hide the age lines that spread, thin but unmistakable, from the corners of her eyes.

"Thank you for coming," the 38-year-old inmate says softly. Her eyes, chestnut and brooding, are offset by a gentle smile. She holds out a hand in welcome.  

Are we getting the picture?

And in that moment it is up to the visitor to begin weighing the choice the gesture offers: Is this the hand of a criminal who lured a man she'd never met to a brutal death and must be locked away forever? Or does it belong to a long-ago girl, who left home in rural Michigan at 14 only to end up in an abandoned house outside Detroit with a boyfriend who pimped her, and who now deserves a second chance?

Anyone wanna take a crack at that toughie?  Yikes.  And, yes, this is what passes for journalism.

This sort of story needs to be understood less for its propaganda value as an NACDL adjunct, and more  as a tactic and an illustration of a broader, and very worrisome, Movement:  The Movement to dumb down sentencing across the board. Among its main tools are carefully molded sentiment, manipulation, and concealment. After the break, I describe specifically how it works.



Christopher Droner: Rotten But Not Forgotten

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The title of this post is taken from today's entry by my friend Paul Mirengoff, writing on Powerline.  I can't say it better than he does, so I repeat his post verbatim:

Dozens of protesters rallied outside the Los Angeles Police Department headquarters yesterday in a show of support for Christopher Dorner and his claims of racism on the part of the LAPD.  Among the signs the protesters carried were:

"If you're not enraged, you're not paying attention."

"Why couldn't we hear his side?"

"Clear his name! Christopher Dorner"

Support for the deranged killer wasn't limited to the protesters. According to the Los Angeles Times, "as the protesters stood Saturday, drivers passing by honked, waved and gave thumbs up."

Dorner was hardly unique in blaming his race for his misfortune; there's an entire industry devoted to this. What was unique about Dorner's claim of racism was its self-refuting nature. Through his deranged and murderous conduct, Dorner confirmed in spectacular fashion that he did not belong on LAPD. If yesterday's protesters want to stick up for a victim of racism, they should find a better poster-child.

But Dorner's deranged and murderous conduct is precisely what provides his appeal to some people. Marc Lamont Hill spoke the truth for once when he said that Dorner is "like a real-life superhero to many people."

It's often said that a common sense of right and wrong is one of the prerequisites for a nation. The pro-Dorner movement offers a hint that the U.S. one day will no longer satisfy what I had always assumed was a "gimme" criterion.

UPDATE: Some protestors express unhappiness with the fact that Dorner wasn't captured, but instead (apparently) shot himself after the police caused the cabin he holed up in to catch fire. It would be interesting to know how many more law enforcement officers needed to die at Dorner's hands before these protesters would be satisfied. On second thought, I don't really want to know. 

Questions About Prosecutorial Discretion

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The Aaron Swartz case has raised a firestorm of criticism about the use of prosecutorial discretion.  The gist of most of it has been that prosecutors routinely use "draconian" sentencing (have you ever heard of any other kind?) to extort guilty pleas from innocent people  --  or, if not innocent exactly, mostly innocent.  These "overzealous" prosecutors (have you ever heard of any other kind of that, either?) do this sort of thing in order (1) to tack another scalp to their office wall, or (2) get a good press release.

The reality, as anyone who actually practices criminal law knows, is pretty much the opposite.  Most of the hydraulic pressure in prosecutors' offices is to handle the crush of cases as quickly and cheaply as possible.  What this means is that the prosecutor more often than not gives away readily provable charges in order to get the defendant to agree to plead to a fraction of what he actually did.  Then there's the lenient sentencing recommendation on top of that.

Today, I ran across a particularly noteworthy instance of prosecutorial discretion.  It's about the former mayor of San Diego who swindled her late husband's charity foundation for over $2 million to finance her nearly decade-long gambling spree of a billion dollars. And yes, that's "billion," with a "b."

What was the response of the flesh-eating US Attorney's Office?  It was this:  No prosecution, and a quasi-love note that begins, "Maureen O'Connor was a selfless public official who contributed much to the well-being of San Diego..."

Yes, there were very significant mitigating circumstances.  This is not someone you'd throw the book at.  But my point is not whether this handling of the case was prudent (I have my doubts).  The point is that what you typically hear about prosecutorial discretion is only one side of a very, very different story.
As noted in yesterday's post, the Texas Attorney General filed a writ of mandamus under the Crime Victims' Rights Act to get a federal district judge to decide a long-delayed successive habeas petition in a capital case.  The statute requires the Court of Appeals to decide within 72 hours.  Given that deadline falls during the weekend, it would be pushed back to the next business day, which is Tuesday.

Today, the district judge decided the case, mooting the petition.  The opinion is here.  Ladd is not retarded.  Petition denied.

In footnote 1, the judge notes defensively, "The court acknowledges the Director's complaint about the court's delay in deciding this case. However, because of the court's caseload, the undersigned judge must often choose between thoroughness and timeliness. In order to be thorough and careful, the court may, on occasion, set aside complex matters for an extended period due to the weight of the court's caseload."

The caseload excuse doesn't cut it.  A case where justice is being delayed for the very worst kind of murder is priority one.  All or nearly all of the other cases are lower priority.

Nonetheless, I know there is a caseload issue in federal district courts.  So here is a case management tip for federal judges.  If you have too much to do, stop doing things Congress and the Supreme Court have told you that you shouldn't be doing.  Like misusing habeas to retry state criminal cases.  Your job is only make sure there hasn't been a major malfunction of the state court system, not to pick at specks and not to overturn any result you would have decided differently had it been your case in the first instance.  It isn't.

Cullen v. Pinholster merely confirmed what should have been obvious on the face of the statute.  You apply §2254(d) at the threshold on the state court record.  Did the state court resolve the petitioner's claim on the merits?  If so, did it completely botch it, rendering a decision so obviously wrong that it is beyond serious dispute.  If so, it won't take much time to decide.  A decision that wrong practically screams off the page.  If not, deny that claim. 

If all claims are denied this way, procedurally defaulted, or just plain garbage (not exclusive categories, BTW), deny the petition.  Even in capital cases, state-prisoner habeas petitions needing discovery and evidentiary hearings should be the exception, not the rule.  Most should be denied on the pleadings within months, not years, of filing.

News Scan

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PA Convicted Killer May Face Death Penalty:  Ashlie Hardaway of WTAE reports Ricky Smyrnes, 26, was found guilty Thursday of first-degree murder in Pennsylvania. Smyrnes and five accomplices brutally tortured and killed Jennifer Daugherty, a 30-year old mentally disabled woman. Smyrnes will face either a lifetime prison sentence or be executed. Continued from this News Scan.

TN Killer Asks Federal Court For Mercy:  Jamie Satterfield of the Knoxville News Sentinel reports Christa Gail Pike has petitioned a federal court to stay her execution in Tennessee. Pike was 18 when she and two others murdered 19-year-old Colleen Slemmer in 1995. Along with Tadaryl Shipp, 17, and another friend, Pike lured Slemmer to an unobserved area at a university. Slemmer was bludgeoned, and attacked with a box cutter and meat cleaver. Pike saved a piece of her skull as a trophy. Shipp is serving life in prison. The other accomplice divulged crucial information and is on probation.

Former Governor of NY Denied Immunity:  The Wall Street Journal reports  the 2nd U.S. Circuit Court of Appeals in Manhattan denied Gov. George Pataki and his colleagues in their bid for immunity from a lawsuit. The former governor is being sued over allegations that prisoner transfers to psychiatric facilities done without hearings were unconstitutional. Part of the involuntary process involved invasive tests on prisoners' arousal patterns. In November 2006, the program was discontinued when a state court ruled that the proceedings were wrongfully done.

OR Police Allowed To Review Phone Video Without Warrant:  Dan Tilkin of KATU News reports  the Gresham Police Department in Oregon has declared phone seizure without a warrant is legal under certain circumstances. The statement comes after Carrie Medina was recording a man resisting arrest, and denied a Gresham transit officer access to the recorded evidence on her phone. The officer removed the phone from her possession to review the evidence. Gresham PD Spokesman Lt. Claudio Grandjean said that in such cases where recorded evidence can be deleted so quickly, an officer does not need a warrant.

$24M Mental Health Center for Prisoners Opens in CA:  KCRA reports a $24 million mental health treatment facility has opened in Vacaville, California. The state Department of Corrections and Rehabilitation invested over $1.3 billion since 2009 for CA inmate mental health. Corrections Secretary Jeffrey Beard hopes the center will prompt federal oversight of the state's correctional system to end.

MI Democrats Seek to Remove Assault Weapons:  Joe Newby of The Examiner reports Democrats in Missouri have introduced a bill that would give owners of assault weapons 90 days to turn them in, disable them, or remove them from the state. Under H.B. 545 failure to comply with the regulations would result in a Class C felony, carrying a potential sentence of up to seven years in prison. The bill is not expected to pass, but is seen as a test of public opinion for future gun control bills.

Hiring Ex-Convicts

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James Bovard has this op-ed in the Wall Street Journal:

Should it be a federal crime for businesses to refuse to hire ex-convicts? Yes, according to the Equal Employment Opportunity Commission, which recently released 20,000 convoluted words of regulatory "guidance" to direct businesses to hire more felons and other ex-offenders.
This is the ultimate perversion of civil rights law.  Nearly a half century ago, America finally reached agreement that people should be judged on the content of their character and not the color of their skin.  Now that monumental act is being twisted into an opposite purpose.  People should be exempt from judgment on their character in the name of civil rights.

But there are, in many cases, good reasons not to hire people with criminal records for particular jobs.  In some cases, exclusion is even required by law.  What then?

The biggest bombshell in the new guidelines is that businesses complying with state or local laws that require employee background checks can still be targeted for EEOC lawsuits. This is a key issue in a case the EEOC commenced in 2010 against G4S Secure Solutions after the company refused to hire a twice-convicted Pennsylvania thief as a security guard.

G4S provides guards for nuclear power plants, chemical plants, government buildings and other sensitive sites, and it is prohibited by state law from hiring people with felony convictions as security officers. But, as G4S counsel Julie Payne testified before the U.S. Commission on Civil Rights this past December, the EEOC insists "that state and local laws are pre-empted by Title VII" and is pressuring the company "to defend the use of background checks in every hiring decision we have made over a period of decades."

Of course the actual civil rights law preempts state law, but any contention that the civil rights law requires a company to hire a thief as a security guard is ludicrous.

Dorner ID Confirmed

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Tami Abdollah and Haven Daley report for AP:

Officials said Thursday that the burned remains found in a California mountain cabin have been positively identified as fugitive former police officer Christopher Dorner.

Jodi Miller, a spokeswoman for the San Bernardino County sheriff-coroner, said the identification was made through Dorner's dental records.

Miller did not give a cause of death.

Much has already been said about the utterly revolting phenomenon of people lionizing this multiple murderer.  I don't have much to add.  It is one more indication of the downward spiral of our society.

News Scan

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MD Looks at Death Penalty:  The Baltimore Sun's Timothy B. Wheeler reports Maryland Gov. Martin O'Malley is co-sponsoring a bill to repeal the state's death penalty although polls show that state voters favor capital punishment at 48 to 42%  Opposing the move are state police officials, Baltimore County State Attorney Scott D. Shellenberger, and relatives of victims.

TX Manhunt for Schizophrenic Sex Offender:  CBS News reports that a manhunt for Alberto Morales is underway in Texas. Monday night, after detectives transporting Morales stopped at a Dallas Wal Mart,  he managed to stab one of the detectives and escape.  He was being transported from Miami to Nevada where he had been convicted of aggravated sexual assault.  Morales also had a 2003 conviction for attacking two women in Miami. After his escape, he was placed on TX's "10 Most Wanted" list, with a $10,000 reward for information leading to his capture.

PA Juvenile Killer Sentenced to Life Without Parole: 
Dana DiFilippo of Philly News reports that Judge Linda A. Carpenter sentenced Radames Sanabria of Philadelphia to life without parole Wednesday. Sanabria was 17 in 2010 when he fatally shot Jerome Carlyle Jr., 14.   At the time of the murder, he was on probation for assault and wanted on a bench warrant. In its June ruling in Miller v. Alabama the U.S. Supreme Court held that state laws requiring mandatory LWOP for juveniles convicted of aggravated murder were unconstitutional.  The ruling was presumed to allow discretionary sentencing but the high court may have to revisit the issue to make this clear. 

San Diego Crime Spiked in 2012:  Fox News reports San Diego, CA experienced a 6.9 percent increase in crime in 2012 from 2011. Police Chief William Lansdowne attributes this to the downsizing of the SDPD and AB 109's mandated movement of inmates to the county jail. The number of murders, rapes, aggravated assaults and thefts have all risen sharply from the previous year. As an approximate 2,100 former state inmates have been realigned, the county is experiencing a 24 percent recidivism rate.
Opponents of reform of the process for reviewing capital cases often claim that long, intensive reviews are needed to prevent injustice in these cases.  Putting aside whether that is generally true and whether the delay itself causes injustice, there are undeniably some judges who simply sit on cases, sometimes for years.

For federal courts, Congress has provided that victims of crime have "The right to proceedings free from unreasonable delay."  18 U.S.C. §3771(a)(7).  Congress amended the statute in 2006 in the Adam Walsh Act to include habeas corpus proceedings as well as federal criminal prosecutions.  §3771(b)(2).

The statute further provides that when the victim or the government on behalf of the victim makes a motion for relief, "The district court shall take up and decide [the motion] forthwith."  §3771(d)(3) (emphasis added).

Robert Ladd murdered Vicki Ann Garner in Tyler, Texas over 16 years ago.  His standard appeal, state habeas, and federal habeas reviews were completed 10 years ago.  He has been allowed a second federal habeas review to hear a claim that he is retarded and thus exempted from the death penalty by Atkins v. Virginia, which established a retroactive new rule.  Okay, the statute on successive petitions permits that.  See 28 U.S.C. §2244(b)(2)(A).

But the evidentiary hearing and post-hearing briefing were completed over seven years ago, and U.S. District Judge Richard Schell has been sitting on the case ever since.  In June of last year, the state made a motion to rule on the petition, and Judge Schell has been sitting on that for over seven months.

When courts issue writs of mandamus to executive officers, they wax eloquent about the need for government officials to respect and obey the law.  Nobody is above the law, etc., etc.  But too often it is the judges who simply ignore laws they don't like.  Clearly, the right of the victim to proceedings free from unreasonable delay has been violated here.  By no stretch of the imagination is seven months "forthwith."

The state and the victim's sister have filed a petition for writ of mandamus in the Fifth Circuit. Let us hope respect for the law reaches a higher level there.

Dihydrogen Monoxide

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The dreaded substance dihydrogen monoxide is in the news again.
The current issue of Engage has this exchange on SORNA between John Malcolm (pro) and Andrew Harris and Jill Levenson (con).

Cameras at SCOTUS

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Justice David Souter famously said that cameras would come into Supreme Court arguments only if they rolled over his dead body.  When he retired four years ago, camera advocates were heartened by the different position advanced by his designated successor.  However, Sam Baker reports in The Hill:

Supreme Court Justice Sonia Sotomayor said she no longer supports bringing cameras into the courtroom, a reversal from comments she made during her confirmation hearings.

Sotomayor told a crowd in New York that allowing television cameras to capture the court's oral arguments would do more harm than good, according to a report in New York magazine.

And in the referenced article, we read her explanation:

"There's no other public official who is required by the nature of their work to completely explain to the public the basis of their decision," she said, when asked about the hotly debated issue by moderator Thane Rosenbaum. "Every Supreme Court decision is rendered with a majority opinion that goes carefully through the analysis of the case and why the end result was reached. Everyone fully explains their views. Looking at oral argument is not going to give you that explanation. Oral argument is the forum in which the judge plays devil's advocate with lawyers."

Oral argument already gets more attention, relative to the other parts of the process, than it deserves, and televising would exacerbate that problem.  The problem that some advocates would play to the cameras rather than the court is one I have discussed on this blog before.  My suggested compromise is in this post, discussing Justice Kagan's second thoughts on the question.

Update:  Tony Mauro has this article at NLJ (free registration required):  "It has happened again. Yet another justice who spoke favorably as a nominee about allowing cameras in the Supreme Court has gone native and now thinks it's a bad idea."

News Scan

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CA Inmate Killer May Face Death Penalty:  Jennie Rodriguez-Moore of The Record reports that convicted killer John Joseph Lydon, 39, may face the death penalty for his second in-prison murder. Lydon strangled and bludgeoned cellmate and convicted child molester John Guy Alexander to death in 2010. He was already serving consecutive sentences for a robbery turned fatal, and killing another child molester cellmate in 2004. He was convicted of first-degree murder on Jan. 29. The penalty phase of the trial started Wednesday.

FL Jury Recommends Death Penalty in Double Homicide Case: Elaine Silvestrini of The Tampa Tribune reports that on Tuesday, a jury recommended the death penalty for Khalid Ali Pasha, convicted of the 2002 murder of his wife and stepdaughter. Pasha, 69, was found guilty after a re-trial last month of bludgeoning and stabbing the pair to death. In 2010 the Florida Supreme Court overturned Ali Pasha's 2007 conviction because the trial judge did not allow him to represent himself.  In the re trial he was allowed to act as his own attorney. The prosecutor sought the death penalty for the cruel manner of the killings. At the time of the murders Pascha was on parole for armed robbery.

Changes to CA Three Strikes Law Bring Consequences:  Tracy Kaplan of the Contra Costa Times reports that due to California's Proposition 36, inmates previously sentenced to life terms are being released with little supervision or services.  Under the new law about 3,000 inmates are eligible to petition for early release. But with both Prop. 36 and the Governor's Realignment there are no provisions for monitoring these repeat offenders upon release. About 38 percent of those eligible were being treated for mental issues in prison.  Upon release they will have no mental health resources.

CA Governor Rejects Murderer's Parole Bid:  Brian Charles of the Daily Bulletin reports that California Governor Jerry Brown has overturned a state parole board decision to release Robert Butler. Butler was convicted of killing high school coach Robert Jones and student Ronald McClendon in 1985.  Jones, a known sexual predator, had been living with Butler on and off for two years when Butler shot and killed him and McClendon at their apartment. The decision is being praised by the victim's families.

NY Cop-Killer Escapes First Degree Murder Charges:  Oren Yaniv and Corky Siemaszko of the New York Daily News report that cop-killer Lamont Pride, 28, has escaped a first-degree murder conviction in the killing of NYPD officer Peter Figoski. He was convicted Monday of second-degree murder, burglary and aggravated manslaughter, which carries a 25 to life sentence. Pride will be formally sentenced on February 28.  While he could someday become eligible for parole, NYPD officers vowed to attend any parole hearing to encourage a decision keeping him behind bars.

Crime and What Works

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The parents of Hadiya Pendleton, murdered at the age of 15, were present as President Obama delivered his State of Union speech last night.  Would Hadiya's tragic murder have been prevented by any of the measures Mr. Obama proposed?  Probably not.

Would a ban on assault weapons have prevented this crime?  No, the killer probably used a revolver.  Would background checks have helped?  Probably not, despite what the expert interviewed in the preceding link says.  Extending background checks to gun shows or even to private sales by law-abiding individuals won't stop criminals from getting them through black-market sales or just stealing them.  (I am not against background checks.  I just don't think they will have a large effect on crime rates.)

So what does work?  Mostly measures that are opposed by the same people calling for these ineffective measures.  First, locking criminals up works.  Jason Meisner of the ChiTrib reports:

The reputed gang member accused of gunning down 15-year-old Hadiya Pendleton last month was on the street even though he had been arrested three times in connection with break-ins and trespassing while on probation for a weapons conviction in recent months, the Tribune has learned.

In two of those arrests, including one just 2 1/2 months ago, Cook County probation officials failed to notify prosecutors or the judge that Michael Ward had been arrested on the new misdemeanor charges and allegedly violated his probation.

The head of the county's probation department acknowledged Monday that his office fell short in its responsibilities and vowed to find out what went wrong.

If they hadn't "fallen short" in locking up this criminal, Hadiya would be alive.

Another measure that works is the proactive policing of the kind New York City uses over the vehement opposition of the Politically Correct.  Holman Jenkins has this column in the WSJ:

There's a new Gallup poll out showing which states are the most and least religious. The full list is here.

This got me to thinking.  Throughout the country, 33 states have the death penalty and 17 don't (although no state without the death penalty has removed it by a vote of the people, and such a vote in California last year retained capital punishment). That's about two-thirds of the states with and one-third without.

Among the ten least religious states (counting DC as a state), however, seven have no death penalty (Vermont, DC, Rhode Island, Massachusetts, Maine, Connecticut and Alaska).  Among the ten most religious states, all have it.

I am not going to comment on the relationship between having religious faith and believing in capital punishment; I leave that to more sophisticated minds.  What drew my attention to this new report was something else entirely, to wit, its rendition in Yahoo News, which contains the following account:  "As expected, the South dominated the 'most religious' list, while the 12 least religious states were located in New England."

This just shows how anachronistic my education has become.  When I was in first grade, there were only 6 states in New England.  Perhaps the others got added from the list of the 57 states candidate Obama visited.

UPDATE:  I particularly want to thank Alaska for moving into New England.  Up until today, it had been too far away to visit.

News Scan

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Illegal GPS Removal Rate Spikes Under Realignment:  KCRA 3's Mike Luery reports California is seeing increasingly high numbers of parolees removing or disabling their GPS tracking devices. The increase directly follows CA's Realignment. Discussed in this News Scan. In the 15 months after AB109 took effect,  482 criminals have cut off their tracking devices, a 118 percent increase over the 221 violations over the previous 15 months. Under Realignment, instead of a crime, this is a parole violation which may result in a few days of county jail time. CA Senator Ted Lieu has introduced a bill that would send violating felons back to prison.

Oakland Takes Steps to Combat Rising Homicide Rate:  Oakland North's Samantha Masunaga and Ashley Griffin report that in response to the city's rising homicide rate, six law enforcement experts will be brought in to deal with the situation. Last year Oakland had over 130 homicides. Continued from this News Scan. Caitlin Esch of KQED News reports that many of Oakland's homicides go unsolved because of uncooperative witnesses who refuse to get involved for fear of retaliation. Out of all homicides only 69.4% of the city's murders resulted in an arrest in 2012.

Ex-Cop May Face Death Penalty When Captured:  Jonathan Lloyd of NBC News reports ex-cop Christopher Dorner killed one officer and wounded another in a shootout with police Tuesday. The San Bernardino County Sheriff's Department said Dorner has been located and is isolated in a cabin. Officers were engaged, and two were hit by gunfire. They were airlifted to a hospital where one died. The LA Times reports Dorner will face charges of murder and attempted murder from prosecutors in Riverside County. Due to several special circumstances related to the murders, he will be eligible for the death penalty.  Update:  The cabin burned to the ground Tuesday, and Dorner is probably the body found in it, although final identification has not been made as of Wednesday morning.  LA Times story here.

Cost of Inmate Lawsuits

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Today's Claude Rains Award for Mock Shock goes to California Governor Jerry Brown.  Don Thompson reports for AP:

Gov. Jerry Brown has begun aggressively challenging federal court oversight of California's prison system by highlighting what he says is a costly conflict of interest: The private law firms representing inmates and the judges' own hand-picked authorities benefit financially by keeping the cases alive.

How much are they making?

A tally by The Associated Press, compiled from three state agencies, shows California taxpayers have spent $182 million for inmates' attorneys and court-appointed authorities over the past 15 years. The payments cover a dozen lawsuits filed over the treatment of state prisoners, parolees and incarcerated juveniles, some of which have been settled.

The total exceeds $200 million when the state's own legal costs are added.
Whoda thunk it?  Well, just about everybody who knows what's going on.

News Scan

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$1 Million Reward Offered for Dorner:  CNN's Matt Smith reports Los Angeles city officials are offering $1 million for information leading to the capture of Christopher Dorner. Police are trying to convince the ex-cop to give himself up. It is feared he may have crossed into Nevada or Mexico. On Saturday, the Los Angeles Police Chief said the LAPD will review Dorner's 2009 proceedings and claims against his department.

IN Killer May Face Death Penalty:  The San Francisco Chronicle reports a jury recommended last Friday that Kevin Isom, 47, be sentenced to death. On Tuesday, February 5, a jury convicted Isom for the August 2007 murders of his wife and two stepchildren. The sentence will be handed down March 8.

LA Inmates Set to Plead Guilty:  Holbrook Mohr of the Associated Press reports two Louisiana convicts are expected to plead guilty to a four-state crime spree. The two felons, Darian "Drake" Pierce and Ricky Wedgeworth, escaped from a Baton Rouge compound after stealing a prison van. The duo carried out a series of violent crimes while on the run for 10 days in March 2011. They allegedly abducted, beat, and strangled David Cupps, 53, for his rental car. Cupps' body was found dumped in an Alabama hotel. The spree ended with their capture in Memphis, Tennessee. The two are charged with kidnapping resulting in death, carjacking, conspiracy and transportation of a stolen vehicle. Update: Jack Elliott Jr. of the Associated Press reports Pierce and Wedgeworth pleaded guilty Monday.

CA Loses Money to Inmate Lawsuits:  The Associated Press reports California Governor Jerry Brown is clashing with federal courts over control of the state's prison system. Gov. Brown has been calling for an end to frivolous and expensive lawsuits that have been forcing billions of dollars from the state budget into medical and mental healthcare for inmates. Over $200 million in legal costs alone has been spent on inmate lawsuits over the past 15 years.

OH May Overhaul Plea System:  United Press International reports that the case of Kareem "Little Red" Gilbert may lead to an overhaul of Ohio's plea deal system. A jury convicted Gilbert of the October 2008 fatal shooting of Brian Austin. The witness to the killing, Vernon Davis, fled the scene. Gilbert's father allegedly hunted down and killed Davis days later. Gilbert agreed to testify against his father in trade for pleading guilty to manslaughter and an 18 year prison sentence. He reneged on the plea agreement during the trial, telling the jury his father did not kill Davis. Prosecutors asked the judge to reinstate the previous charges, including murder. Gilbert then pleaded guilty to murder, and received a sentence of 18 years to life. Gilbert's attorney appealed the decision to reinstate the previous charges. An Ohio Supreme Court panel affirmed the appeal 2-1, reversing the murder charge. Prosecutors have 30 days to appeal for a harsher sentence.

Self-Deception

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Daniel Levitin has a review in this weekend's WSJ of psychologists Mahzarin Banaji and Anthony Greenwald book, Blindspot: Hidden Biases Of Good People.  The book relies heavily on the very controversial Implicit Association Test.  The test purports to measure unconscious and inherent bias while subjects complete simple tasks.  It's claim to fame has been to show that most people are racist whether they realize it or not and make decisions based on those biases.  Levitin is skeptical:

So the authors appear disingenuous when they try to construct a case around such speech acts. They claim that we all lie when we endorse the truth of a statement such as "ducks lay eggs." Why is this a lie? Ms. Banaji and Mr. Greenwald say that the statement "is actually false for a substantial majority of the world's ducks. [B]ecause fewer female . . . ducklings survive the hatching process, more than half the world's ducks are non-egg-laying males. Second, among female ducks, many are too young to be egg layers. Without doubt, egg-laying ducks are a distinct minority."

Really? For their critique to be correct, you'd have to believe that the sentence "ducks lay eggs" is identical in meaning to the sentence "the majority of ducks on the planet, regardless of age or sex, are capable of laying eggs." Pragmatics again! What we really mean by a sentence such as "ducks lay eggs" is: "Ducks are an egg-laying species, as opposed to giving live birth."

And how good is the IAT test? 

There is far from a consensus about the IAT--a meta-analysis, you might say, is overdue. It turns out that the authors themselves published one in 2009, reviewing 184 independent samples and nearly 15,000 experimental subjects. The result: The IAT was very weakly correlated with other measures, failing to account for more than 93% of the data. Interestingly, Ms. Banaji and Mr. Greenwald don't report this in their book. Perhaps a blind spot?


The Cultural Sickness Unto Death

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The story surrounding multiple killer, now fugitive, Christopher Dorner is starting to open a window on just how deeply this culture is in trouble.

I noted here that Dorner is an ardent left-winger, as he makes more than clear in his Facebook "manifesto."  I also noted that it would be grossly unfair, indeed the worst kind of sleaze, for conservatives to try to make hay from Dorner's enthusiasm for the left, even though liberals immediately sought to make hay out of Jared Loughner's (non-existent) enthusiasm for the right.

I then noted that, unbelievably, a sort of grass roots support has grown up for Dorner, cheering him for taking on the capitalist, racist, imperialist, etc. machine.

Today's story is almost surreal.  The mainstream press that remains yet unable to discover the inconvenient political content of Dorner's "manifesto" has discovered something else about it:  That it should inspire in the rest of us a humble, hand-wringing introspection about How Rotten Our Police Actually Are.  

No, I'm not making this up.  We are to be chastened by the ravings of a multiple murderer.

Chicago and the Need for Mandatory Minimums

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I noted in an earlier post that, after Chicago murders spiked to more than 500 in 2012, the police chief has now recommended stricter gun control, including a mandatory minimum sentence of three years for anyone carrying an illegal gun.  This has sparked renewed interest in the subject of mandatory minimums generally.

As I noted, it seems to me perfectly appropriate for the legislature to deem some crimes, by their nature, so serious that in no event should the sentence fall below a set floor.  Which crimes, and what the floor should be, are legitimate subjects for debate, but the idea that the most representative branch of the government  --  the legislature  --  should be altogether cut out of establishing baseline floors for sentencing strikes me as indefensible.

To those who say that judges should have 100% control over sentencing, I would respond that there is recent evidence, from Chicago itself, that such overweening faith in judges is not always, uh, justified.  Yes, that, and there was the other problem too.

How Sick Can Hatred of the Cops Get?

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Sicker than you think.

True Crime, More or Less

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Truman Capote pioneered the "true crime" genre of books with In Cold Blood in 1966.  Kevin Helliker has this story in the WSJ detailing how the book was not quite as true as claimed.  Capote's main problem is the obvious one that his primary source painted an unduly flattering picture of himself.

But we shouldn't be too hard on Capote.  That was a long time ago, and standards were different.  As in the development of any new field, the pioneers make some big mistakes along the way, and those who come after have the benefit of learning from them.

BTW, the perps were hanged in 1965 for a 1959 crime.  Is it possible to carry out justice in that time frame in the modern era?  Yes, the D.C. Sniper was executed in Virginia less than six years after sentence.

Chicago had more than 500 murders last year.  The police chief believes that gun control is a big part of the answer, and has proposed a three-year mandatory minimum sentence for those convicted of illegal possession of a gun.

This has led to renewed interest in the Windy City about mandatory minimum sentencing generally.  Some, including me, believe that the legislature has every right to decide that, for a given crime, there is a floor below which the court should not be able to go no matter what the mitigating circumstances.  This seems no more than the logical counterpart to the notion that the legislature should be able to impose a ceiling on the sentence for a given crime, because, no matter how bad the offender may be, the act made criminal simply cannot, in fairness, warrant more than X amount of jail time.  If we can accept a legislative judgment about what sentence is necessarily too harsh, given the nature of the offense  --  and almost everyone would agree we can  -- we can accept its judgment about what sentence is necessarily too lenient.

Others think that mandatory sentencing laws unwisely tie the judge's hands.  In their view, only the judge has the flesh-and-blood defendant before him, and thus he alone  --  not the legislature  --  is able to tailor the sentence to the requirements of justice.

The battle will be joined when I discuss this topic with Prof. Doug Berman of the Ohio State University on Chicago's public radio station.  The program is called "Morning Shift," and Doug and I will be on Monday at 9:15 a.m. Central Time.  The show airs on WBEZ, 91.5.

News Scan

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Manhunt for Cop-Shooter Continues: The L.A. Times reports that Christopher Dorner, suspected of killing three people and injuring two, was still on the loose Friday. Various cities mentioned by Dorner in his Facebook manifesto have been placed on alert as the search for the ex-cop expands. Cities in California, Utah, Florida and elsewhere have been alerted as potential targets. Federal, state and local authorities in California and Nevada have intensified their search after Dorner's torched vehicle was found near the Big Bear, CA resort area.

Convicted Killer To Be Released in OR: Nicole Doll of Fox News reports that convicted killer, Scott William Cox, will be released from Deer Ridge Correctional Institution in two weeks. Cox, 49, has served approximately 20 of his 25 year sentence. Found guilty, after pleading no contest, to the 1990 murder of Reena Ann Brunson and the subsequent 1991 murder of Victoria Rhone.  He escaped aggravated murder charges when a judge ruled his confessions invalid. A long-range truck driver, Cox has been suspected in up to 20 unsolved murders throughout the country. On February 22 he will be transferred to a Yamhill County jail, living there as a boarder, where he will be able to come and go at his leisure. Police are highly concerned at his return to the county where he was first arrested for murder, and say they will monitor the high-risk offender closely.

Parolee Suspected in OK Quadruple Homicide:
Tulsa World's Cary Aspinwall reports Cedric Dwayne Poore was arrested for violating parole and is suspected in the January 7 murder of four women. Poore, a convicted felon, was found guilty of a misdemeanor parole violation in early October. The warrant for his arrest, delayed by paperwork, revisions, and approvals, arrived in Oklahoma City on December 11, but wasn't returned to Tulsa until two weeks later. Poore and his brother James, also a suspect in the shooting, are being held without bail in the Tulsa Jail.

FL Anti-Death Penalty Bill Off The Table for 2013: Rick Stone of WLRN reports that a bill aimed at abolishing Florida's death penalty has been rejected for the 2013 legislative session. The House Criminal Justice subcommittee denied the bill on Thursday. Sponsor, State Rep. Michelle Rehwinkel Vasilinda, says she will reintroduce it in 2014, as she has every year since 2011. In response, House Criminal Justice subcommittee chairman Matt Gaetz hopes to find ways to shorten death penalty delays. Florida's death penalty is widely cited as an effective deterrent with popular support. State prisons have seen a decline in recidivism, hailing the combined effect of capital punishment, with emphasis on the education, job training and drug rehab programs provided. Prison admissions have dropped by 21 percent over the last 4 years.

Of Madmen, Mass Killers, and Politics

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Charles Cooke of NRO observes today:

Bill Clinton didn't just blame Timothy McVeigh's actions on Rush Limbaugh and others at the time, but came back 15 years later for a another shot at the apple, libeling the Tea Party in the process. In 2010, both Dana Milbank and the Daily Kos went so far as to write pieces about a shooting that never happened, blaming the attempt on Glenn Beck. Piers Morgan happily asked Gabby Giffords's husband whether he had received an apology from Sarah Palin, and was astonished when the answer was "no."

The attempt to blame conservatives and/or Second Amendment advocates for mass murder by deranged people has an unfortunately long history.  That's the bad part.  The good part is people of normal intelligence don't buy it.  The even better part, in a sick sort of way, is that it can be turned on its purveryors.

A Death Row "Volunteer" in California?

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In capital litigation parlance, a "volunteer" is an inmate sentenced to death who drops his appeals and accepts his punishment.

Yesterday, the California Supreme Court decided the direct appeal in the case of Corey Williams, S093756.  The opinion notes that Williams chose to represent himself in the penalty phase and put on no mitigating evidence.  The opinion does not mention that nearly ten years ago Williams asked the court to fire his attorney and drop his appeal, and the court refused.

The California Supreme Court has interpreted (incorrectly, IMHO) the "automatic appeal" statute to preclude abandoning an appeal in a capital case.  That raises constitutional issues on the scope of the judicial power, cf. Comer v. Schriro, 480 F.3d 960 (CA9 2007), but to date they are sticking with it.

The court also requires the involuntary appellant to accept appointed counsel and permits counsel to argue against the client's stated goal, raising a thorny professional ethics issue the court has not addressed.

But all of this ends with the conclusion of the direct appeal.  Certainly a mentally competent inmate can "volunteer" at that point if he chooses to do so.  Has Williams changed his mind in the interim?  I don't know.  If not, can the existing injunctions against use of California's present protocol be applied in the case of someone who does not want them applied?  An interesting question.

How Drugs Help Improve Family Life

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They improve it by making sure you kiss your mom!  Only with drugs, there's always a twist.

Louisiana's Single-Drug Switch

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AP reports on the case of Christopher Sepulvado:

Sepulvado was convicted of first-degree murder for the 1992 killing of [6-year-old] Wesley Mercer [his stepson] at his Mansfield [Louisiana] home.

Court records say Sepulvado repeatedly hit the young boy on the head with a screwdriver handle and then immersed him in a bathtub filled with scalding water that burned 60 percent of his body. The boy had come home from school with soiled pants.

U.S. District Judge James Brady has stayed Sepulvado's execution because of fears he might suffer pain.

No, the state is not going to beat him over the head and scald him with hot water.  They plan to give him a single overdose of barbiturate.  But the judge thinks the state has to provide details to litigate this.  The single-drug method simply does not present the danger of extreme pain that was at issue in the litigation over the three-drug method.  Litigating it should not be the "new normal."

At this time it is not clear if the state will appeal or just provide the information and set a new date.  I'm not sure how dates are set in Louisiana, so the latter course might be the better one.

News Scan

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CA Ex-Cop Turned Serial Shooter Sought in Manhunt:  The Los Angeles Times reports that a manhunt for ex Los Angeles police officer and murder suspect, Christopher Dorner,  has spread throughout California, and into Nevada and Arizona. CBS News reports that Dorner, 33, is wanted as a suspect for murdering Monica Quan, 28 and fiance Keith Lawrence, 27 last Sunday, allegedly as an act of revenge against Quan's father. The elder Quan represented Dorner in a case which resulted leading to his dismissal from the LAPD in 2008. Dorner issued a Facebook manifesto of his deadly intentions. He is also being sought for Wednesday night's attack on two patrol officers, which left one dead and another critically injured. Later, Dorner exchanged gunfire with two other police officers. The LAPD is taking measures to protect others mentioned in Donner's manifesto. The Los Angeles Times reports his truck was found burning in the Big Bear area of San Bernardino County around 1 p.m.

Bill Would Help Fund Counties Struggling With Realignment:  Jasmine Viel of FOX News reports Sen. Anthony Canella has introduced SB 144, the Realignment Reinvestment Act, responding to pressure put on county police departments due to AB 109. The influx of state criminals has burdened counties with increased costs they are not able to afford. Monterey County Sheriff Scott Miller expressed his approval at the move, which will allocate funds to specific counties based on the number of convicts realigned. The goal is to give county jails the resources needed to keep potential repeat offenders from being released early.

MI Looks at Expanding DNA Database: Brody O'Connell of Up North Live reports that a Michigan Senate committee is considering bills expanding DNA collection to include anyone arrested on suspicion of a felony. The bills were put forward by the Senate Judiciary Committee on Tuesday.

Texas Appellate Court Favors Death Sentence:  The Dallas Morning News' Valerie Wigglesworth reports that the Texas Court of Criminal Appeals rejected Raul Cortez's second appeal of his death sentence. In 2007, Cortez was linked to four March 2004 execution-style murders during a burglary. He was convicted of the murder of one of the four victims, and sentenced to death in 2009.

News Scan

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GA Execution Dates Set After Drug Switch Approved:  Russ Bynum of the Associated Press reports that after numerous delays, Georgia officials have set execution dates for Warren Lee Hill, 52, and Andrew Allen Cook, 38. The scheduled executions come a day after the state Supreme Court ruled in favor of the use of a new drug for execution. While serving a life term for the 1985 murder of Myra Wright, Hill bludgeoned inmate Joseph Handspike to death with a nail-studded board. Cook earned his death sentence for the 1995 killings of Mercer University students, Grant Patrick Hendrickson and Michele Lee Cartagena, who were shot in a car in an act of random violence. Hill will face lethal-injection on Feb. 19, and Cook will be executed on Feb. 21.

Violent Crime Up in Sacramento After Realignment:
  The Sacramento Bee reports that the Sacramento area is experiencing a surge in violent crime. Last year, reports of murders, robberies, rapes and thefts increased, ending a trend of declining criminal activity. In the city of Sacramento, violent crime rose 5 percent. In the county sheriff's jurisdiction, it rose 12 percent. Folsom, Roseville, and Rancho Cordova all saw violent crime increase by at least 15 percent. West Sacramento experienced the sharpest increase, with property crime up by 30 percent, and violent crime up by 32 percent. The statistics represent a disruption of the long-term crime drop seen across the Sacramento region and the nation. The surge in crime follows the passage of AB 109 in 2011.

NY Cop-Killer Impregnates Prison Officer: 
The New York Times reports convicted cop-killer Ronell Wilson impregnated correctional officer Nancy Gonzalez in a federal jail in Brooklyn. Wilson, convicted of the 2003 murders of two undercover detectives, faces a possible death sentence pending a judge's ruling on an appellate decision. During the time of the trial, he told another inmate that he wanted a child to pass on his legacy. Gonzalez, 29, who has had at least one other romantic relationship with an inmate in addition to Wilson, was arraigned Tuesday in a federal court on charges of sexual abuse of a person in custody. If convicted she faces a maximum sentence of 15 years in prison.

Flash Mobs Turned Violent Wreak Havoc in NYC:
  CBS New York reports that violent mobs of teenagers are becoming increasingly problematic in New York City. Neighborhoods and businesses are growing frustrated as large groups of teenagers, sometimes upwards of 40, converge out of nowhere. The flash mobs conduct acts of vandalism and theft on convenience stores and newsstands. They disperse as quickly as they appear, usually before police are able to respond, often injuring people in the process. One newsstand reports that in one of four attacks over the past few weeks, an employee was sent to the hospital due to injuries. Some newsstands have taken to shutting down afternoons, as it is no longer cost effective to risk losing thousands of dollars as a result of flash mob activity.

IL Prison Attack Leaves 3 Staff Members Injured: 
David Mercer of the Associated Press reports three prison staff members were injured in a prison assault Tuesday in Illinois. Union officials say it is part of a recent trend of violence amongst the state's incarcerated. The violent assault, involving 10 to 15 inmates, began when an inmate lured a guard into the prison chapel. A wave of convicts then attacked him. Another guard and a chaplain were also injured in an attempt to intervene. Increased security concerns have arisen in the Illinois prison system, due to Gov. Pat Quinn's decision to close several prisons around the state. These policies have left the prisons approximately 16,000 inmates over capacity, and prompted protests from prison union members.

A Jersey Lesson in Voter Fraud

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Thomas Fleming, former president of the Society of American Historians, has this op-ed in the WSJ:

My grandmother Mary Dolan died in 1940. But she voted Democratic for the next 10 years.
*                               *                               *
I have to laugh when I hear current-day Democrats not only lobbying against voter-identification laws but campaigning to make voting even easier than it already is. More laughable is the idea of dressing up the matter as a civil-rights issue.
*                               *                               *

Later I became a historian of this nation's early years--and I can assure President Obama that no founding father would tolerate the idea of unidentified voters. These men understood the possibility and the reality of political corruption. They knew it might erupt at any time within a city or state.

The president's party--which is still my party--has inspired countless Americans by looking out for the less fortunate. No doubt that instinct motivated Mr. Obama in his years as a community organizer in Chicago. Such caring can still be a force, but that force, and the Democratic Party, will be constantly soiled and corrupted if the right and the privilege to vote becomes an easily manipulated joke.

DOJ Goes Stark Raving Mad

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Regular readers know that I'm no fan of wimpy sentencing, and that I've had it with the every-excuse-in-the-book style of defense lawyering.  But there are limits.  DOJ went well beyond them when it sought a life sentence for an Amish bishop convicted of conspiracy to forcibly cut beards.

No, that is not a typo, and I didn't get this out of the Onion.  The story is here, in the Cleveland Plain Dealer.

Bishop Samuel Mullett is not Mr. Nicey, according to the government's sentencing memo.  The story reports that, in addition to leading the beard-cutting conspiracy for which he was convicted, prosecutors "characterized Mullet as an iron-fisted bishop who exerted total control over his flock: He censored his followers' mail, had sex with married women under the guise of marital counseling, endorsed bizarre punishments such as confinement in chicken coops and spankings, and laughed at the attacks, which were driven by a crusade to punish those who spurned his teachings."

Those are bad things, and if they are true, they are properly taken into account in federal sentencing, see   18 U.S.C. 3577 (authorizing the court to take account of all relevant information about the accused).

But life?  Is this guy Ted Kaczynski?  Zacarias Moussaoui ?  Not exactly.  How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy?

They might just be smoking weed, but I suspect something else, less groovy and more ominous, is at work. 

News Scan

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Bakersfield Crime Surges After Realignment: Bakersfield Now News reports the Bakersfield Police Department saw overall crime spike in almost all crimes in the city in 2012. The 2012 overall crime rate for Bakersfield was 556 reported crimes per 10,000 citizens, compared to 475 in 2011. Crime had been dropping over the past five years.  In the first full year after the implementation of Realignment, homicides increased to 34 from 18 in 2011. Of the 2012 murders, 15 were gang related.  Crime increases in 2012 included rape by 43.6 percent, robbery by 23.4 percent, larceny by 17.4 percent, burglary by 15.6 percent, and auto theft by 35.7 percent. The only exception was the 9.5 percent decrease in assaults. Assembly Bill 109 has transferred dangerous criminals to overcrowded county jails, leaving many on probation due to lack of space.  According to the Kern County District Attorney's Office, crime for the entire County increased by 15 percent compared to 2011. Kern County District Attorney Lisa Green blames the rise in crime on Governor Jerry Brown's Realignment.

PA Death Sentence Sought Torture Killing: WTAE Pittsburgh reports that alleged killer Ricky Smyrnes, 26, is facing the death penalty for the February 2010 murder of mentally disabled Jennifer Daugherty, 30.  Monday, a judge rejected a defense attorney's claim that his client cannot face execution due to mental problems and a low IQ.  Last year, one accomplice,  Melvin Knight, pleaded guilty to the murder and received a death sentence.  Amber Meidinger, testified that Knight stabbed Daugherty and then, with Smyrnes' assistance, choked her to death with a strand of Christmas lights. Another accomplice, Angela Marinucci, is serving a life term for her role in killing Daugherty. Crime details are in this News Scan. Two others in the apartment, Peggy Sue Miller, 30, and Robert Masters Jr., 39, are accused of failing to stop the killing. They will stand trial but will not face the death penalty. Smymes' trial is expected to last approximately four weeks.

TX Execution Date Set for Killer: KWTX Waco reports that an execution date of May 7 has been set for convicted killer Carroll Joe Parr, 35. Parr was sentenced to death on May 26, 2004 for the Jan. 2003 fatal shooting of Joel Dominguez, 18. Another teen, Mario Chavez, 18 at the time was also shot, but survived. Parr and Earl Whiteside demanded the two teenagers' wallets, shooting them after they told their assailants they had no more money. The shootings happened outside of a North Waco convenience store, during an apparent drug deal. Whiteside pleaded guilty for his role in the shootings in March 2004.

Parole Hearing Set for MA Child Killer: Fox News Boston's Bob Ward reports that the Massachusetts Parole Board has set March 19 as the hearing date for Charles Jaynes. He was convicted in 1998 on second-degree murder and kidnapping charges. A year earlier Jaynes and Salvatore Sicari were convicted of abducting Jeffrey Curley, 10, near his home. The boy resisted Jaynes' sexual advances and was suffocated to death with a gasoline soaked rag.  After Curley died, his body was taken to an apartment and sodomized. The body was found at the bottom of a Maine river stuffed in a container. Sicari was convicted of first-degree murder and is currently serving a life sentence with no possibility of parole. The case nearly resulted in a reinstatement of the death penalty by the state legislature, but the bill failed to pass by a single vote. This will be Jaynes' first chance for parole.

Racist GA Killer's Insanity Plea Rejected:
Erica Ritz of the Blaze reports that Nkosi Thandiwe was sentenced Thursday to life without parole in Georgia. Thandiwe avoided the death penalty by admitting to a shooting spree in July 2011 which resulted in the death of Brittany Watts, 26.  He also shot bystanders Lauren Garcia and Tiffany Ferenczy, both 24. Garcia was left paralyzed. At trial Thankdiwe blamed his crimes on the University of West Georgia for teaching him about European colonialism and slavery. He asserted that he intended to make white people "answer for slavery." All three victims were white. Thandiwe's lawyers tried to broker a plea of not guilty by reason of insanity. Fulton County Assistant District Attorney Linda Dunikoski compared Thandiwe's racist ideology to ideas held by the Ku Klux Klan, and refuted the suggestion that "race disorder" was a mental illness.

CA Inmate Attacks Correctional Officers in Prison: The California Department of Corrections and Rehabilitation reports that prison inmate Tavis Ray Thompson, 36, attacked a correctional sergeant Saturday. Thompson slipped off his cuffs while in the shower and assaulted the sergeant using a sharpened piece of aluminum attached to a cardboard handle. In addition to inflicting several wounds on the sergeant, Thompson injured the two other officers who subdued him. Thompson is serving a 55-years-to-life sentence for multiple crimes including assault with a deadly weapon, aggravated battery by a prisoner, assault with a firearm and various other assault charges.

Why LWOP Is Not Enough, Again

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Wow.  Colleen Long has this story for AP.  How many ways is this wrong?

NEW YORK (AP) -- Federal prosecutors say a bureau of prisons guard is pregnant after an affair with a man convicted in one of New York's most notorious police killings.

Nancy Gonzalez was arrested Tuesday at her home. She is charged with unlawful sexual abuse of an inmate while working at the Metropolitan Detention Center.

Authorities say the prisoner is Ronell Wilson.

Bank Robberies Down

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Jack Nicas reports in the WSJ:

Bank holdups have been nearly cut in half over the past decade--to 5.1 robberies per 100 U.S. banks in 2011. Though the nationwide crime rate is dropping, the decline in bank robberies far exceeds the decline in other crimes, according to Federal Bureau of Investigation data. Preliminary 2012 figures released last week show the lowest tally in decades: 3,870 bank robberies, down from more than 5,000 a year earlier.

Bank-security experts and former FBI agents attribute the decline to stepped-up security and tougher sentencing for bank robbers. Many also say that more recently, sophisticated criminals are recognizing bank robbery as a high-risk, low-reward crime and are migrating online.

Fifty Years of Failure

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Psychiatrist E. Fuller Torrey has an op-ed in the WSJ regarding federal funding of mental health treatment.  He notes:
 

It has now become politically correct to claim that this federal program failed because not enough centers were funded and not enough money was spent. In fact, it failed because it did not provide care for the sickest patients released from the state hospitals. When President Ronald Reagan finally block-granted federal CMHC funds to the states in 1981, he was not killing the program. He was disposing of the corpse.

Meantime, during the years CMHCs were funded, Medicaid and Medicare were created and modifications were made to the Supplemental Security Income and Social Security Disability Insurance programs. None of these programs was originally intended to become a major federal support for the mentally ill, but all now fill that role. The federal takeover of the mental-illness treatment system was complete.

Fifty years later, we can see the results of "the open warmth of community concern and capability." Approximately half of the mentally ill individuals discharged from state mental hospitals, many of whom had family support, sought outpatient treatment and have done well. The other half, many of whom lack family support and suffer from the most severe illnesses such as schizophrenia and bipolar disorder, have done poorly.

According to multiple studies summarized by the Treatment Advocacy Center, these untreated mentally ill are responsible for 10% of all homicides (and a higher percentage of the mass killings), constitute 20% of jail and prison inmates and at least 30% of the homeless. Severely mentally ill individuals now inundate hospital emergency rooms and have colonized libraries, parks, train stations and other public spaces. The quality of the lives of these individuals mocks the lofty intentions of the founders of the CMHC program.

News Scan

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WA Prosecution Will Seek Emergency Review of Anti-Death Penalty Ruling: John de Leon of the Seattle Times reports that the King County Prosecuting Attorney's Office will ask for an emergency Appellate Court review of a January 31st ruling by Judge Jeffery Ramsdell barring the death penalty as an option for two alleged killers.  Michelle Anderson and Joseph McEnroe. are charged with the murders of six people including two young children. Judge Ramsdell ruled the prosecution will not be allowed to seek the death penalty in the case due to what he considered to be improper protocol in their decision process. The ruling has been fiercely criticized by the Seattle Times' readership and by the prosecution. No specific date has been set for the appeal, but the prosecution has said their argument will be filed shortly. Continued from this post from Kent Scheidegger.

Southern CA Police Chiefs Blame AB109 for Crime Spike: Brian Day of the San Gabriel Valley Tribune reports that southern California police chiefs are experiencing increases in the arrests of suspects who have been released to counties under Realignment.  Implemented in October 2011, Assembly Bill 109 has allowed thousands of convicts classified as non-serious, non-violent and non-sexual offenders to be placed into county jails rather than state prisons. In Glendale alone, approximately 40 percent of convicts released under AB 109 go on to commit new offenses. Glendale Police Chief Ronald De Pompa has called the policy dangerous, noting that it has made crime more difficult to control. The new law sentences parole violators to six months in county jail rather than the previous one year in prison. They are then eligible for release after serving half of the sentence. Law enforcement officials stress that the already strained county system will not be able to supervise the offenders with proper effectiveness and warn that the result will be rising crime rates statewide over the next five to 10 years.

Orange County to Resume Death Penalty Trials: Larry Welborn of the Orange County Register reports that Orange County has ten death penalty trials scheduled in 2013, after holding no capital trials in 2012.  A homicide prosecutor credited the dry spell to defense efforts postponing trials until Californians voted on Proposition 34, which would have abolished the death penalty. After voters rejected the measure the delays ended.  In addition to abolishing future death sentences, Proposition 34 would have converted the death sentences of the county's 61 death row inmates to life without parole.  The first sentencing trial will be held for Jason Balcom who was convicted last year of the brutal 1988 murder of housewife Malinda Gibbons, 22. 

Jerry Brown Pardoned 128 Convicts in 2012: David Siders of the Sacramento Bee reports in 2012, California Gov. Jerry Brown pardoned 128 convicts, six times more than in 2011, and far more than any governor has granted in years. Comparatively, Gov. Arnold Schwarzenegger made only 16 pardons throughout his entire time in office. Gov. Gray Davis granted no pardons at all. The majority of those pardoned by Brown were convicted of drug offenses or of property crimes. However among some beneficiaries were convicted of manslaughter, assault with a deadly weapon, and statutory rape. In addition to the pardons, 79 of which were announced on Christmas Eve, Brown also commuted the prison sentence of Shirley Ree Smith, convicted of shaking her infant grandson to death in 1997.

Gov. Brown May Release Manson Family Member: CNN's Michael Martinez and Kyung Lah report that California Gov. Jerry Brown is deciding whether or not to grant parole to convicted killer, and former Manson Family member, Bruce Davis, 70. The state parole board sent Brown's office a formal recommendation Friday. The first-degree murders of Gary Hinman and Donald "Shorty" Shea were committed in 1969. Davis has been serving a life sentence since April 21, 1972. Davis' last parole recommendation was reversed by Gov. Arnold Schwarzenegger in 2010. Brown must make his decision on the recommendation by March 3.

India's President Approves Death Penalty for Gang Rapes: The BBC reports India President Pranab Mukherjee approved a new laws Sunday which allows death sentences for cases of rape where the victim later dies or is left in a vegetative state.  . The laws also requires a minimum 20 years to life sentence in cases of gang rape, rape of a minor, rape by a policeman or another person in authority. The new laws also includes stalking, voyeurism, and acid attacks. The decision comes in the wake of the vicious gang rape by six men of a 23-year-old woman riding home on a bus in New Delhi on December 16, 2012. The student died of trauma two weeks after the brutal attack described in this News Scan. Five of the suspects pleaded not guilty in the case. The sixth suspect, 17, will be tried as a juvenile. The amendments to the law are currently active. However, a bill must be submitted by the parliament within six weeks after the new session begins on February 21. The new laws will cease to be valid if the bill is not passed.

Georgia Gets Single-Drug Go-Ahead

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Bill Rankin reports for the Atlanta Journal-Constitution:

The Georgia Supreme Court on Monday rejected an appeal by a condemned inmate who argued the state illegally substituted the drugs used in lethal injections.

The decision has clear the way for the execution of Warren Hill. Last July, the court halted Hill's execution just two hours before he was to be put to death. The justices granted him a stay of execution, saying they needed time to decide whether the Department of Corrections had violated state law when it replaced a three-drug execution cocktail with one drug, pentobarbital.

At issue was whether the switch was subject to the Administrative Procedure Act, which allows 30 days for public comment. The state had not followed that procedure because it said it was not required to do so.

Writing for a unanimous court, Justice Harris Hines agreed with the state's position and lifted Hill's stay of execution.

The opinion is here.

My Kingdom for a DNA Identification

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The science of identifying old remains has advanced considerably in recent years.  University of Leicester researchers confirm that the unearthed bones from the car park are indeed King Richard III, d. 1485., BBC reports. Prior post here.

The Famous "National Conversation"

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The Washington Post has a piece today asking for a respite from the seemingly ubiquitious cry for a "national conversation."  I hardly agree with everything the piece says, but I agree for sure with its principal idea, to wit, that the demand for a "national conversation" about X is never really an entreaty for an exchange of ideas  --  which is what one would ordinarily take "conversation" to mean  --  but a demand for immediate surrender to whatever agenda the "conversation" is supposed to be about.

What makes this relevant here is that the demand for a "national conversation" has cropped up in the last year about two prominent criminal law issues: the death penalty and drug legalization.

When Washington and Colorado passed referenda three months ago legalizing some forms of recreational marijuana, pro-pot organizations far and wide proclaimed that the door had been opened to a "national conversation" about how nifty it is to get stoned the Founders' vision of individual freedom.  Similarly, when Connecticut prospectively abolished the death penalty, it was time for a "national conversation" about how the justice system is suffused with racism, sexism, barbarism and the other ususal suspects (and thus that it's time for national abolition).

The call for a "national conversation" on these things is dishonest in two particularly galling ways.  First, it's not about a "conversation" at all.  It's the opposite: It's a demand that the rest of us shut up and listen to a monologue by the chattering class concerning how rancid the criminal justice system is.  Second, the inevitable tag line to the demand for a "conversation"  --  that it's "long overdue"  -- is an unintended but hilarious burlesque of liberal blathering.  The "conversation"  --  nay, flaming debate  --  about both drug legalization and the death penalty has been going on for decades.  What the chattering class really thinks is "overdue" is heads-bowed surrender to its dictates.

AP reports:

Kentucky is ready to resume executions because a new one- or two-drug lethal injection method that took effect Friday addresses concerns by inmates that the previously used three-drug mixture amounted to cruel and unusual punishment, prosecutors said.

In a notice filed in Franklin Circuit Court, the Kentucky Attorney General's office told Franklin Circuit Judge Phillip Shepherd that the method should cancel out any arguments made by the condemned inmates. Prosecutors want a final ruling from Shepherd that would lift his order that stopped executions in Kentucky.

The revised regulations that went into effect Friday specify that doses of the drug used in the one-drug execution -- 3 grams of sodium thiopental or 5 grams of pentobarbital -- be repeated if the inmate has not died within 10 minutes.
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In a two-drug execution, the warden may authorize continued injections of 60 milligrams of hydromorphone until the inmate dies, if the initial injection is not deadly. The regulations give the state the option of which method to use depending upon the availability of the drugs. Kentucky previously used sodium thiopental, pancuronium bromide and potassium chloride.

Residual Doubt and the Death Penalty

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Should prosecutors consider the strength of the case for guilt when deciding whether to seek the death penalty?  Should juries consider it when deciding whether to impose that sentence?

Most regular folks, when asked this question, would say "of course" and wonder how the question can even be asked.  Execution of an innocent person is the ultimate miscarriage of justice.  The quantum of evidence required for conviction is "beyond a reasonable doubt," but the reality is that evidence is a sliding scale, and there are always degrees of certainty.  Mitt Romney tried to build a higher degree of certainty into law when he pushed for restoration of capital punishment in Massachusetts.  Maryland made a ham-handed attempt at it in its narrowed death penalty law.  In most states, though, it is done informally.

The prime example is LA's Hillside Strangler.  Assuming we are going to have capital punishment at all, the Strangler most certainly deserved it.  Yet the evidence that Angelo Buono was the Strangler was just barely sufficient to convince the jury to convict him.  In the penalty phase, they brought back a life verdict in short order.  (The trial judge emphatically disagreed, but California has no override in that direction.)

In the Randy Guzek case, the Oregon Supreme Court held that residual doubt evidence was constitutionally required in a penalty retrial, but the U.S. Supreme Court unanimously reversed.

But there is a world of difference between "not constitutional required' and "constitutionally forbidden."  If an argument that X is constitutionally required can even be plausibly made, then it should be perfectly obvious that X is not forbidden.  The latitude that the constitution gives elected policy makers is not a narrow strait between Scylla and Charybdis; it is as wide as the English Channel.

Yet, incredibly, a trial judge in Seattle has held that the prosecutor acts improperly in considering the strength of the case for guilt in deciding whether to seek the death penalty, as noted in yesterday's News Scan.  The theory is that it somehow violates the right to equal treatment to consider the strength of evidence of guilt, which is neither an aggravating nor a mitigating circumstance.

Nonsense.  The starting point should be the realization that death is a just sentence for the highest degree of murder.  The question in the penalty phase is whether to let the defendant off with less than he deserves.  Mitigating circumstances are a reason for mercy.  Residual doubt is a reason not to risk a terrible mistake.  Other people who deserve a similar sentence for a similar crime can and do get off with less or get off altogether for a variety of reasons.  Some crimes are never solved.  Some criminals flee the country.  Some die before trial or pending appeal.  Stuff happens.  But the fact that full justice cannot be meted out in all cases is no reason to withhold it where there is no reason within the particular case to do so.

The King County prosecutor intends to appeal, and should.

News Scan

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Trial Judge Throws out Death Sentence: Steve Miletich of the Seattle Times reports that on Thursday in Washington a judge denied a prosecution motion to seek death sentences for Michele Anderson and ex-boyfriend Joseph McEnroe. Anderson and McEnroe have been charged with six counts of aggravated murder each in the brutal slayings of Anderson's parents, 60 and 61, brother and sister-in-law, both 32, her niece, 5, and three-year-old nephew. The victims were shot to death at her parents' Washington home on Christmas Eve 2007. The ruling rejecting the death penalty rests on a 13-page order from Superior Court Judge Jeffrey Ramsdell who asserted that the prosecution should only consider a death sentence if mitigating circumstances, not the strength of evidence, are a factor. The prosecution has described the decision as having blindsided them, and as wrong. They not only cite concerns for justice for the victims, but also the potential impact on other aggravated murder cases. They promised to appeal.

OR Convicts Attempted Car Bomber in Terrorism Plot: Kirk Johnson of The New York Times reports that on Thursday, Mohamed Osman Mohamud, 21, was convicted of attempting to use a weapon of mass destruction in Oregon. In 2010, he was arrested in an F.B.I. sting operation targeting Islamic terrorism. Mohamud attempted to set off what he believed to be a car bomb at a Christmas tree lighting ceremony in downtown Portland. Had the bomb been real, about 25,000 people would have been packed into its blast area. After a day of deliberation, the jury rejected Mohamud's claim of entrapment. Mohamud faces a maximum sentence of life in prison and will be sentenced by Senior Judge Garr M. King on May 14. Continued from this News Scan.

Death Sentence for Rapist, Murderer: CBS News reports that Miami-Dade Circuit Judge William Thomas has sentenced Joel Lebron to death for the first-degree murder of Ana Maria Angel, 18. In April 2002, Lebron, with the aid of four accomplices, kidnapped, gang raped, and fatally shot Angel execution-style. Her boyfriend, 17-year-old  Nelson Portobanco, who was left for dead by the assailants after having his throat slit, survived the assault and contacted police. In a case that Judge Thomas described as having clear and convincing aggravating circumstances, the Judge was visibly upset as he recounted the crime and sentenced Lebron to death, stating that Lebron's actions required "the ultimate penalty." In addition to the death penalty, Lebron was sentenced to six consecutive life terms for armed robbery and kidnapping, attempted first-degree murder, and armed sexual battery. The victim's mother expressed a sense of justice and relief at the Judge's decision. Lebron will be held in Florida State Prison until the date of his execution.

CA Murder Dies on Death Row: Sam Stanton of the Sacramento Bee reports James Leslie Karis Jr., a convicted murderer and rapist was found dead in his cell on San Quentin's death row Thursday.  Karis, 61, was found unresponsive and pronounced dead at 6:40 a.m. An autopsy will be conducted to determine cause of death. Karis was convicted of the rape and murder of Peggy Pennington, 34, and sentenced to death in September 1982. In July 1981, Karis abducted Pennington and another woman, 27, while walking near their workplace. Karis took them to a secluded area, forced them to strip, raped Pennington, then shot both women. The other woman survived the attack and testified against Karis in court.  Karis was given the death sentence twice.  After a federal judge overturned Karis' death sentence in 1998, hee was then tried again in 2007. During the second trial, Karis rebuffed his lawyers' attempts to introduce mitigating evidence and took over his own defense. The second jury also sentenced Karis to death. 

OH Murderer Seeks Clemency: Andrew Welsh-Huggins of the Associated Press reports the lawyers for condemned killer Frederick Treesh asked Ohio's parole board for a recommendation of clemency Thursday. Treesh, 48, and a co-defendant are accused of bank robbery, robbery of businesses, multiple sexual assaults, car theft, and car-jacking in a crime spree that stretched through Indiana, Iowa, Michigan, Minnesota, and Wisconsin. Treesh received the death sentence in Ohio for the murder of Henry Dupree. Two days prior, Treesh and his accomplices murdered another victim at a Michigan video store. The parole board will make their recommendation for or against clemency next week. Ohio Gov. John Kasich has the final say. If denied, Treesh will face execution on March 6.

First Person Language

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Blogger Neuroskeptic offers his thoughts on an editorial by Roger Collier in the Canadian Medical Association Journal about the use of politically correct language in formal writing.  Some excerpts: 

There's a reason Ernest Hemingway didn't call his novel The Person Who Was Male and Advanced in Years and the Sea. He valued economy of language over verbosity, so "Old Man" worked fine to describe his titular character. One can only imagine what Papa Hemingway would think of person-first language.

Of course, the purpose of person-first language -- such as "person with a disability" instead of "disabled person" -- isn't to produce writing that is more concise, clear or lyrical. It's supposed to promote the idea that personhood is not defined by disability or disease.

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"Whatever is negative or taboo, such as disease or illness, we try to avoid talking about it," says Halmari. "It's a fallen world, and we need to talk about unpleasant and sad things."

The structure of person-first language also does a poor job of de-emphasizing disability, notes Halmari. In English, emphasis naturally occurs at the end of sentences. This is why, when asked if there are rules for humour writing, Washington Post columnist Gene Weingarten replied: "Only one. I always try to put the funniest word at the end of the sentence underpants."


As a Gen X'er myself, I'm somewhat accustom to the revised model of describing people with disabilities.  I also sympathize with those who prefer the terminology of "a person with schizophrenia" rather than a "schizophrenic" because it signifies that schizophrenia is not the whole description of that person.  But I also realize that writing that way really does change how we think about people, behavior and responsibility.  People are not criminals but "people with criminal justice histories" and murderers are instead people convicted of murder.  Some may say it is humanizes but it also obfuscates.

I'm reminded of the late comedian George Carlin who once said poor people are not folks with a negative cash-flow position.  No, they're just plain broke.