March 2013 Archives

An Odd Setting for Moral Preening

This post is devoted to venting.  Be forewarned.

I have previously blogged, here and here, for example, about the ethics of criminal defense. I have not in those posts taken the view, and I do not believe, that criminal defense lawyers are bad human beings.  Some are, to the exact contrary, heroic, like those who showed up prosecutor Mike Nifong as a liberal fascist thug.  But, because the decided majority of defendants are factually guilty, there does seem to me to be an inherent  tension between the ultimate aim of defense work (to spring the client) and telling the  unvarnished truth (which is almost always going to have the opposite effect).  Not everyone thinks this tension is a problem.  I respectfully dissent.

What got to me today was this story about Mr. Nicey, a/k/a Aaron Schaffhausen, who took revenge on his ex-wife by slicing-and-dicing their three daughters, ages 11, 8 and 5.  Just to put a special touch on it, after doing the deed, he called his ex and said, "You can come home now because I killed the kids."  To make sure she'd have a vivid picture to remember when she got there, he arranged a colorful murder scene:  He slit each girl's throat from ear to ear.

Texas DA and Wife Murdered

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Less than two weeks after Colorado's chief of corrections was murdered, another law enforcement official has been gunned down.  Tanya Eiserer and Tasha Tsiaperas report for the Dallas Morning News:

Kaufman County's district attorney and his wife were found slain Saturday, raising fears that their deaths may be part of a plot that included the killing of one of the county's assistant district attorneys in January.

Kaufman Police Chief Chris Aulbaugh and other officials confirmed that Mike McLelland and his wife, Cynthia Woodward McLelland, had been shot at their home near Forney.

Their deaths followed the Jan. 31 slaying of Assistant District Attorney Mark Hasse.

"It is a shock," Aulbaugh said late Saturday. "It was a shock with Mark Hasse, and now you can just imagine the double shock. ... Until we know what happened, I really can't confirm that it's related, but you always have to assume until it's proven otherwise."

Good News for Legal Education

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It's not exactly a secret that legal education is dominated by liberals in general and, as regards criminal law in particular, by those sympathetic to the defense.  My alma mater, Stanford, runs a Supreme Court Litigation Clinic that, in criminal cases, uniformly sides with the bad guy.  I don't know whether to be proud or embarrassed to say that the Clinic has been remarkably successful.  

There has been encouraging news of late, however, as diversity  --  diversity of ideas, that is  --  seems to be getting a foothold.  Were that not the case, I doubt I would have been invited to become an adjunct professor at Georgetown.

But there is better news still.  Stanford, along with other well-known law schools such as Columbia and NYU, have now made it possible for veterans to attend "without paying a dime in tuition," so reports this WSJ story carried by Fox News.

Reaching out to veterans carries multiple advantages for law schools. There are public relations and marketing benefits to helping cover the cost of enrollment for veterans at a time when concerns about rising tuition are running high. The payments can also help schools recruit high-quality students they otherwise might have lost to public competitors without too much damage to the bottom line.

Congratulations to my alma mater for getting it right.  For once.

Leave No Crook Behind

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It's a staple in the anti-incarceration movement that the money we spend on prison would be better spent on education.  If we had better education, we'd have less crime, so we are ceaselessly told.

The people pushing this line are almost always the same ones pushing the new lingo that we should have "evidence-based" this and "evidence-based" that. Conspicuously absent from their advocacy, however, is any of the much vaunted "evidence" that prison isn't working, or that education is.  Maybe it would be a good idea to take a look.

As I have noted, the evidence is that prison works.  It works quite well  --  a big success story our adversaries prefer to sweep under the rug.  I guess it's an "inconvenient truth," to coin a phrase.

And what is the evidence about how our education dollars are working?  

Is There a Child Abuse Epidemic?

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The BBC has an interesting article detailing an epidemic of child abuse in the United States.  One wonders whether child abuse is more likely to be reported in the US compared to other countries.  Obviously the horror stories get a lot of attention, but those stories are just downright abhorrent and the BBC story should give us all pause. 

Child Abuse.PNG

Improper Police Identification Procedures

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For years, the defense has been complaining about improperly suggestive police lineups.  Generally, these complaints have about the same gravity as other defense criticisms of the police  --  that is, apart from their merit (usually none), they're designed to do something, anything, to change the subject away from the client's behavior when he knocked over the gas station, raped the 12 year-old, or what have you.

Still, there are instances when these criticisms are on the money, and I found one today.  It was signaled by this entry from the Montgomery County, Maryland, Police Department:

The MCP Officer walked into the room to view the lineup volunteers. At that moment, the Officer realized that auto-correct had changed the word "PERP" to "PEEP" throughout his entire burglary report.

You can see following the break just how bad it was.

The NYT on the Dog Sniff Case

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There is one constant in journalism, as constant as the North Star always being north -- the main editorial page of the New York Times will always muck it up.  Today they have this editorial on the dog sniff case, Florida v. Jardines.

The Supreme Court correctly ruled this week that using a drug-sniffing police dog on a suspect's property without a warrant violates the Fourth Amendment's protection against unreasonable searches. The ruling was not surprising; the split among the justices was.
Why are they surprised?  Because they commit the rookie error of labeling the justices "liberal" or "conservative" and expecting them to vote in accordance with those one-dimensional labels every time:

The majority included conservative Justices Antonin Scalia and Clarence Thomas and three of the court's more liberal members (Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan). The four dissenting justices were: Samuel Alito Jr., Anthony Kennedy and Chief Justice John Roberts Jr., all on the conservative side; and Stephen Breyer, a moderate liberal.
Everyone with a modicum of sense and any experience at all watching the Supreme Court knows its not that simple.  I explained it in this post on Jardines.

A newspaper that has the conceit to consider itself the nation's premier paper should be able and willing to hire some more sophisticated thinkers for its editorial page.

The Tucson Shooter

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AP has this story on the Tucson shooter:

Almost everyone who crossed paths with Jared Loughner in the year before he shot former Rep. Gabrielle Giffords described a man who was becoming more unhinged and delusional by the day.
This points to a pretty decent rule of thumb on who is sufficiently out of touch with reality to qualify as not guilty by reason of insanity.  If you need an expert to tell he's crazy, he isn't.

News Scan

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CO Theater Shooter Seeks to Avoid Death Penalty:  Dan Elliott and P. Solomon Banda of the Associated Press report that Dark Knight shooter James Holmes is seeking to plead guilty to avoid the possibility of a death sentence. He would be sentenced to life without parole. Prosecutors will probably be taking the victims families and the survivors of the attack into consideration as they decide whether or not to accept the plea. Arapahoe County DA George Brauchler is expected to announce his decision Monday. Continued from this News Scan.

Armed Vigilantes Take Over Mexican Town: Bertha Ramos of the Associated Press reports an armed vigilante force of more than 1,500 members has taken control of a town in Mexico. Members have been spotted with assault rifles and have obtained high-powered rifles. The takeover was in response to the killing on Monday of one of their leaders, Guadalupe Quinones Carbajal, 28. The group has arrested 12 local police officers and the town's director of public security. The officers have been turned over to state prosecutions of allegations of being members of organized crime. The group has set up road blocks Wednesday and several members had opened fire on a car of Mexican tourists Tuesday. Official policy towards vigilante groups have been largely tolerant as they admit they are unable to enforce public safety in many areas.

MT DNA Law Signed:  The Associated Press reports that Montana Gov. Steve Bullock signed SB213 into law Wednesday. The bill will require out-of-state sex offenders residing in MT to enter a sample of their DNA into the state's DNA database. The legislation passed unanimously in both chambers.

CO Murder Suspect Turns Himself In: 
Alan Gathright of ABC News reports that alleged killer Edwin Ernesto Rivera Gracias, 28, surrendered to FBI agents in El Salvador Wednesday. He was returned to Colorado as a suspect in the murder of Richard Limon. He was on the FBI's "Ten Most Wanted Fugitives" list with a $100,000 reward for his arrest. Gracias was one of four who plotted to kill Limon, 69. Limon's wife, her daughter, 19, and Moya's boyfriend, have already been convicted for their parts in the killing. Gracias allegedly stabbed Limon nine times on August 16, 2011 after a failed attempt to suffocate him with duct tape. He is scheduled to appear in court Thursday by video link.

Mass. Finds Sex Offender Addresses at Day Care Centers:  Steve LeBlanc and Bob Salsberg of the Associated Press have this story on a  report, released Wednesday by Massachusetts state Auditor Suzanne Bump, found 119 cases where registered sex offenders shared an address with a licensed childcare facility. The report found the Department of Early Education and Care did not run background checks on certain licensed childcare providers. Currently, no state laws are in place requiring officials to make sure such checks are carried out. In response, the Department launched an investigation and identified the cases.

The Commish on Stop and Frisk

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Mary Kissel of the WSJ has this video interview with NYPD commissioner Ray Kelly on the stop and frisk policies of the NYPD.  These policies are part of the reason New York has seen a dramatic plunge in its murder rate and in crime generally, so naturally they are under attack in the courts.

Against the charge of racism made with statistics, Kelly notes what I call the Fallacy of the Irrelevant Denominator.  Comparing the racial statistics of stops to the general population, it would seem that the police are unfairly targeting minorities.  The reality, though, is that the racial statistics are proportional to the perpetrators of violent crime, the correct basis of comparison.

Kelly also explains that the "activists" challenging the policies do not speak for all people of their particular racial groups.  Minorities are disproportionately the victims of crime, and many support the policies.

It's the Culture, a Third Angle

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As Kent and Bill have pointed out, Juan Williams' suggestion that factors other than racism and access to guns are worth considering when talking about crime and race.  Indeed, and it's with annoyance and amusement that I've listened to the attacks on Dr. Ben Carson who has frankly and strongly talked about the need for more personal responsibility in our culture.  Many people find that kind of talk lacking in modern sophistication because it, after all, has nothing to do with social science, government funding, or externalized blame.   

But I'm reminded of the moral principles instilled in me by the Jesuits during my days at Canisius High School.  Those Three Principals of Living in a Moral Universe:  [1] actions have consequences; [2] choices matter, and [3] privileges entail responsibility have served me well and should be taught to every child.  They are straightforward, very much old-fashion, and utterly lacking in progressive speak. 

They are also the truth. 

It's the Culture, Another Angle

Kent posted a piece recounting Juan Williams' honest assessment of the black hip-hop, violence-prone subculture that lurks, mostly unmentioned, behind the problem of what is called "gun violence."  The reason it's mostly unmentioned is that the ever-present charge of racism lies at the ready.  Few want to be on the receiving end.

But the truth needs to be faced, or the problem of violent crime cannot effectively be addressed.  The truth is not, principally, that racism drives blacks to higher violent crime rates.  Racism still exists, and it's still poisonous, but it's the internal culture of differing minorities, not their victimization by bigoted whites, that tells the tale.

Asians were (and to some extent still are) also victimized by white racism, but have a very different representation among the criminal population, to wit, little to none. When you try to research the racial breakdown of inmates, as I just did, it's hard even to find a category for Asians (it's all whites, blacks and Hispanics).

Why is that?

It's The Culture

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Juan Williams has this op-ed in the WSJ, titled Race and the Gun Debate.  I often disagree with Williams, but he is an independent thinker, and he has the courage to call attention to the elephant in the living room, the huge problem that everyone knows about but is afraid to mention.

The debate over gun control too often seems a matter of abstractions about the meaning of the Constitution and the permissible capacities of ammunition magazines. Why is so little time spent on a question of more immediate concern--namely, why are so many young black people using guns to kill their neighbors?
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News Scan

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CA AB109ers Eligible for Death Penalty:  Keith Carls of KCOY News reports the some of the eight killers charged with the March 17 murder of Anthony Ibarra in Santa Maria were released prison under Realignment. Ibarra's murder is believed to be gang related. Santa Maria Police Chief Ralph Martin says his department is seeing a rise in burglaries, robberies and assaults since AB 109 was implemented. In this article, also by Keith Carls, six of the suspects are charged with the special allegations of lying in wait, kidnapping, torture, and committing murder for a street gang and eligible for the death penalty.

CO Death Penalty Repeal Rejected:  Kurtis Lee and Lynn Bartels of the Denver Post report HB 1264, seeking to repeal Colorado's death penalty, was rejected by a House committee on Tuesday, 6-4. The rejection of the bill came a week after Gov. John Hickenlooper voiced that he may veto it if it arrived on his desk. Sponsors of the bill say the governor's statement swayed legislators that initially may have supported it away from passing the bill. Two Democrats voted against the measure with their Republican counterparts. Representatives voting against the measure cited the interest of their districts and the will of the people. Gov. Hickenlooper similarly expressed that a "significant majority" still support the death penalty. Continued from this News Scan.

CA Argues for Control of Prison Mental Health System:  Don Thompson of the Associated Press reports U.S. District Judge Lawrence Karlton will hear arguments Wednesday from California's lawyers that the state's prisoner mental health system complies with U.S. Constitutional standards. Arguments from inmates' attorneys will also be heard. California has invested over $1 billion in mental health care for prisoners. In addition to criticism from state psychiatrists, court-appointed experts have called the state's provisions for mentally and physically impaired inmates substandard. Judge Karlton will issue his decision by early April. Continued from this News Scan.

TN Bill Would Let DNA Stand for Suspect's Name:  Adam Tamburin of the Tennessean reports Tennessee prosecutors are hoping to pass a bill which would allow the use of a DNA profile to stop the eight year statute of limitations  for rapes from applying when law enforcement has identified a suspect through DNA but have not been able to make an arrest. In cases of aggravated rape, the state's current statute of limitations may be extended to 15 years. This process helped convict Robert Jason Burdick of a rape committed 14 years prior. In 2012, the state Supreme Court had upheld his conviction. The bill, sponsored by state Sen. Mark Green, would make the Court's ruling official state law.

TX Denies Murderer's Conviction Reversal:  The Associated Press reports the Texas Court of Criminal Appeals reinstated the capital murder conviction of Cynthia Hudson Wednesday. Hudson, 50, was convicted of killing her son Samuel, 13, whom she starved, bound with plastic ties, and beat with wooden handles and a bat over the course of several days. She is serving a life sentence.

Inmate Operates Second Drug Ring in IN Prison:  The Associated Press reports inmate Wesley "FeFe" Hammond, 42, was arrested Tuesday for running a drug ring from a second Indiana state prison while incarcerated. Using an illegally obtained cellphone, Hammond ran the methamphetamine and cocaine ring out of his prison cell, a federal offense. Hammond is charged with operating a drug ring from the Indiana State Prison. He was serving a life without parole sentence at the time for committing the same offense in the Newcastle Correctional Facility.  He was one of 15 suspects arrested.

Smacking Some Sense Into Toobin?

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Have you ever wanted to smack some sense into Jeffrey Toobin, as his blather is passed off as "expertise"?  I have.  (See, e.g., this post.)  I wouldn't actually do it of course.  Battery is a crime, and we are anti-crime here.  But the "expert" got a whack from a piece of lighting equipment, video available here, and then said, "I'm thinking more clearly now."  One can only hope.
In my last post, I argued that incarceration has been effective over the last generation in helping reduce crime, and thus in making America a safer and more peaceful place.  The present attack on "incarceration nation," I asserted, is the product largely of wishful thinking about how successful the alternatives to incarceration would be.  This was easy to demonstrate:  The crime rate in the Sixties and Seventies era of supposed "rehabilitation" skyrocketed, while in the last 20 years of sharply increased incarceration, it has plummeted, as these figures illustrate.

There is, however, another argument prominent on the anti-incarceration side  --  that prison costs too much.  The argument is that, with our national budget massively in the red, with over $16 trillion of debt already on the ledger and getting deeper in the hole every day, one effective way to save would be to trim prison spending.  The way to do this would be, of course, to release inmates, or just refuse to send them to prison to start with (or both).

Time for a fact check.  How much of the national budget actually goes to building and maintaining prisons?

See for yourself:

The US Supreme Court decided one law-enforcement related civil case today.  In Millbrook v. United States, No. 11-10362, the high court held that a suit by a federal prisoner against the government for an alleged sexual assault by correctional officers can go forward under the Federal Tort Claims Act.  It comes within an exception to an exception to the FTCA's exception to sovereign immunity, if you pick your way through the statutes.

Justice Thomas wrote the opinion for a unanimous court.  The case was argued a little over a month ago, making this one of the more rapid decisions.
Probably the single most frequently heard phrase in the debate about crime and punishment these days is "incarceration nation."  The phrase is used to undergird the idea that the United States over-incarcerates its population.  This tendency, it is said, is expensive, inhumane, inconsistent with our tradition of liberty, and out of touch with the rest of the Western world, which has much lower rates of imprisonment.

Usually left unmentioned, or barely mentioned, in the de-incarceration campaign is the fact that prison works.  As has frequently been documented on this blog, crime rates are now half or less of what they were a generation ago, when the incarceration rate started a steep climb.  We now have the lowest incidence of crime since the 50's and early 60's.

There is an ongoing dispute about how much of the spectacular drop in crime is due to imprisonment.  The eminent criminologist, the late James Q. Wilson, thought it's a quarter or more.  But even if that's an overestimate (and there are no neutral data indicating it is), it is still the case that, by any measure, we have had tens of thousands if not millions fewer crimes over the last few years  --  and thus tens of thousands or millions fewer crime victims  --  because we have imprisoned the people who would otherwise have been out victimizing them.  The crime tables here show that we have almost four million fewer serious crimes per year now than we had 20 years ago.

If Wilson is right, increased imprisonment is the cause of almost a million fewer serious crimes each year.  Even if he's only half right, it produced a half million fewer serious crimes annually.  Over five years, that's two and a half million fewer serious crimes.  This cannot be called anything other than an astonishing success.

So why do so many people, including not a few intelligent people, want to leave it in the dust? 

About Those "Studies"

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Academia, think tanks and "public interest groups" are forever producing "studies" about criminal law issues.  The "studies" almost always have one thing in common: They favor the defendant.  Whether it's imprisonment, rehabilitation, police work, prosecution practices, brain imaging or what have you, the "findings" inevitably are that we're being too tough.  Instead of being tough, we should be "smart."

Being "smart" always-and-ever turns out to mean that we should stop doing what we know succeeded over the last 25 years (more prison and more police, as Steven Levitt has found) and renew doing what we know failed in the 25 years before that (rehabilitation and the medical model of criminology).

So what's up with these "studies?"

There's a clue today in a column written by my friend, Professor Nelson Lund of George Mason Law School.  He quotes the wily but brilliant social scientist-turned-Senator, Patrick Moynihan:

"Social science is rarely dispassionate, and social scientists are frequently caught up in the politics which their work necessarily involves . . . [T]he pronounced 'liberal' orientation of sociology, psychology, political science, and similar fields is well established."

This is a really good thing to remember the next time one of our adversaries starts going on and on about the latest agenda-driven "study."  Much of the time, it's just PR impersonating scholarship.

News Scan

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NorCal Forum on Realignment:  Sean Longoria of the Record Searchlight reports  that a forum was held Monday in Redding to discuss prison realignment. It was hosted by social service leaders and law enforcement officers. Both Redding and Shasta County have experienced simultaneous increases in property crimes and dwindling jail space. Redding Police Chief Rob Paoletti expressed frustration with Realignment. His department makes 22 arrests daily. Many of those arrested are repeat offenders released under AB109. One man was arrested and released, almost three dozen times, in only eight months. Shasta County Sheriff Tom Bosenko added that the number of inmates serving long-term jail sentences has increased from about 10 percent to 35 percent.

AZ Killer Sentenced to Death:  Jim Seckler of the Mojave Daily News reports that killer Darrell Bryant Ketchner, 55, was sentenced to death by jurors Monday in Arizona. Ketchner had been convicted of the July 4, 2009 stabbing murder of 18-year-old Ariel Allison.  He was also found guilty of the attempted murder of her mother, Jennifer Allison, and three counts of assault. Ketchner stabbed Jennifer, his ex-girlfriend, inside her home then shot her with her own gun on the driveway as she attempted to flee. Ariel, found in her mother's bedroom, was fatally stabbed eight times in her head, her back, and front. He will be formally sentenced at a hearing on April 29. According to this article by the Associated Press, Ketchner and Allison had three children together. He had been arrested for domestic violence six months prior.

Safety Concerns Increase for Prison Workers:  The Associated Press reports that safety concerns for correctional officers are growing. Corrections administrators, prison guards, and wardens have been targeted by released convicts. The increased influence of prison gangs and communication among members both on the streets and in prison is endangering corrections professionals. The murder of Colorado prisons chief Tom Clements on March 19 is mentioned in this News Scan.

CA Inmate Lawsuit Given Go-Ahead:  Bob Egelko of the San Francisco Chronicle reports that the class-action lawsuit on behalf of 1,000 Secure Housing Unit inmates in Pelican Bay State Prison was approved by Chief U.S. District Judge Claudia Wilken Thursday. The inmates claim the state is violating their constitutional rights by withholding opportunities to get out of solitary confinement. The state denies these claims. The suit seeks to limit SHU confinement to a 10 year maximum and requirements for better conditions and regular reviews. Discussed further in this News Scan.

CT Supreme Court to Consider Death Row Lawsuit:  The Associated Press reports the Connecticut Supreme Court will hear argument on whether the state's repeal of the death penalty in cases after April 24, 2012 is in violation of the rights of the state's 11 inmates already on death row. The lawsuit was brought by Eduardo Santiago, sentenced to death for the murder of a West Hartford man. The case will be heard sometime after April 15.

Iowa House Approves Expanded DNA Collection:  The Associated Press reports the Iowa House approved a measure 79-18 Monday to expand DNA collection to offenders charged with aggravated misdemeanors. Currently, samples are taken only from sex offenders and convicted felons. The bill will now go to the state Senate. Continued from this News Scan.

The Prop 8 Argument

Marcia Coyle has this post at BLT on the Proposition 8 argument.  The transcript is here. CJLF takes no position on the underlying gay marriage issue.  My main concern here is the claim that the proponents of an initiative have no standing to defend it in court, so an initiative can be effectively nullified merely by finding one judge to strike it down if the executive authority of the state fails to defend it.

We just might be proponents of an initiative our governor doesn't like in the near future, so this is a serious concern.

More on Dog Sniffs

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This may be the Year of the Snake in China, but it's the Term of the Dog in the US Supreme Court.  Last month, the high court decided unanimously in Florida v. Harris that a trained dog's alert is probable cause for possession of drugs without the strict requirements laid down by the Florida Supreme Court.  See prior post here.

Today, the other shoe dropped in another Florida case, Florida v. Jardines.  From the syllabus:

Police took a drug-sniffing dog to Jardines' front porch, where the dog gave a positive alert for narcotics.  Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court's decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

Held: The investigation of Jardines' home was a "search" within the meaning of the Fourth Amendment.

The opinion was written by Justice Scalia and joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Alito dissented, joined by Chief Justice Roberts, and Justices Kennedy and Breyer.  This division does not follow the simplistic "liberal/conservative" lineup, but it is not particularly surprising in a Fourth Amendment case where the question is the substantive reach of the constitutional protection as distinguished from the scope of the exclusionary remedy.  This is the kind of case where we sometimes see Scalia and Thomas showing their libertarian streak and Breyer siding with the government.

In the opinions we see some interesting discussion about the Fourth Amendment and property versus privacy and the special status of the home.
Anyone who has practiced criminal law knows that lying in court is epidemic.  Almost all of it comes from the defense, either the defendant directly or his associates.  This should hardly be a surprise:  Since almost all defendants are factually guilty, their telling the unvarnished truth is the quick route to jail.  Can't have that!

This is not to say that lying by prosecution witnesses is unheard of.  Just recently, Chief Judge Alex Kozinski of the Ninth Circuit wrote a scalding opinion in Mike v. Ryan about a police officer who testified, without any corroboration and seemingly falsely, that the defendant had confessed to him.  This is not the only episode of police lying, and such lying is unacceptable under all circumstances (as of course is the vastly more common defense lying).  The system can't and won't produce justice on a diet of perjury.

A different angle on this was highlighted today is this WSJ article, "The Economic Truth About Lying."  It turns out that the moral costs of perjury are closely matched by its economic costs.  The author, Matthew Lifflander, talks mostly about the costs of lying in civil suits.  But criminal cases take quite a bite, too.  Medicare fraud, insurance fraud and fake disability claims against all levels of government are three prominent examples.

Lifflander echoes a suggestion I made for years when I was a federal prosecutor: That lying should not be tolerated as part of the boys-will-be-boys cheating we have come to expect from losing litigants (among whom criminal defendants are near the top of the list).  The way to stop tolerating it is to start prosecuting it.  When word gets around the local defense bar that your client has a really good chance of going to jail for an additional stint for perjury, the court will get  --  guess what!  --  less perjury.

Useful Republican Idiots

I have not been shy about criticizing Eric Holder, Patrick Leahy, John Conyers and other Democrats for their feckless and often perverse views on crime and punishment.  I'm happy  --  I guess  --  to be able to spread the blame to the other side of the aisle.  First there was the "Right on Crime" movement.  Now comes "Conservatives Concerned About the Death Penalty" an organization that, like other abolitionist groups, (justifiably) shows reluctance to speak its true name, preferring merely to be "concerned" or to want a "dialogue" or the other of the slippery words you hear used so often.  Often, that is, when the group speaking wants no death penalty, ever, no matter what, but also wants to advertise itself as just having an open mind.

Sen. Rand Paul, the new hero of libertarianism, had this to say:

"Even in the United States where we have the best due process probably in the world, we have probably executed people wrongfully for the death penalty, then found out through DNA testing many people on death row are there inaccurately. And even Republicans have pulled back their beliefs some on death penalty."

Sen. Paul, who otherwise prides himself on being outspoken and uncompromising, leaves himself some wiggle room here, but you get the idea.

CJLF is non-partisan, but I personally am a Republican.  Still, I have to tip my hat to the Democrats.  They seem to have many fewer grandstanding useful idiots than my party does.

News Scan

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Federal Court Considers Lethal Injection FDA Case: The U.S. Court of Appeals for the District of Columbia Circuit court heard argument in Cook v. FDA today. Michael Doyle of McClatchy Newspapers had this pre-argument article. In the lawsuit, death-row inmates from multiple states argue that the FDA's importing of lethal-injection drug sodium thiopental for executions is not part of the approved uses of the drug. The lawsuit was initially filed by torture killer Daniel Wayne Cook of Arizona, who sexually assaulted and murdered two men. Cook was executed last August. At one time, 35 states nationwide and the federal government, had the anesthetic drug included as part of a three-drug protocol to carry out the death penalty. Since 2009, several states stopped using the drug, and began using a single-drug protocol, when domestic manufacturing ceased. California is still considering switching to single-drug executions. Discussed by CJLF Legal Director Kent Scheidegger here.  Mike Scarcella has this post at BLT on the argument.  "[District Judge] Leon ordered the three states to return unused thiopental. The states, however, were not a part of the litigation in the trial court. In court today, [Circuit Judge] Sentelle questioned whether Leon had the authority to force the states to return their supplies of the drug."

GA Prison Gang Violence Becomes More Deadly:  Rhonda Cook of the Atlanta Journal-Constitution reports gang-related violence is on the rise in the Georgia prison system. In less than 11 months, 12 inmates and a guard were fatally stabbed in state prisons. The numbers represent a violent upward trend from nine deaths last year, seven inmate homicides in 2010 and 2011, and four in 2009. According to the Georgia Bureau of Investigation, seven of the deaths last year were related to prison gang activity. Lax security in GA prisons is cited as part of the problem. Also, cell phones being smuggled into prisons are helping gangs coordinate assaults. So far, three homicides have occurred in 2013.

Federal Judge Rules Against Mental Evaluation of WY Death Row Inmate:  The Associated Press reports that U.S. District Judge Alan B. Johnson of Cheyenne ruled against a request from Wyoming to examine Dale Wayne Eaton's mental status. The lawyer for the state argued what is relevant to the case is Eaton's mental health at the time of the state court trial, not a current evaluation. Eaton, 59, is disputing his death sentence for the 1988 rape and murder of Lisa Marie Kimmell, 18, of Montana. Eaton's legal team had argued his trial lawyer failed to note his mental issues. A federal appeal is the only thing in the way of his lethal injection. A multi-week hearing on the evidence is set for July.

West Virginia Delegate Wants to Reinstate Death Penalty:  David Gutman of the Associated Press reports that Del. John Overington has introduced a bill to reinstate West Virginia's death penalty, his 27th consecutive attempt. Overington cites West Virginia as the only state in its region without the death penalty, aside from Maryland, as an enticement for dangerous criminals. He points out that if his state had the death penalty, convicted killer Ron Williams would not have been able to take more lives. Williams escaped after four years of incarceration. He killed a police officer in 1975 and another person in 1981. The state's last execution was carried out in 1959, and the death penalty was abolished in 1965.

Study on Halfway Houses

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In the 1960s, America made a terrible mistake.  We believed too easily in experts who supposedly had the answers for corrections.  They knew how to "fix" criminals who were, after all, sick and not evil.  When the fixes were actually subjected to scientific scrutiny to determine which of them worked, the stunning answer was that none of them did.  In the meantime, lax sentencing contributed to the horrific rise in crime, a rise that was brought back down only after we got tough.

Fast-forward 50 years, and those who do not remember this history are working to condemn the nation to repeat it, over the vehement objection of those who do remember.  One of the programs touted to rehabilitate criminals so we won't need to lock so many up is halfway houses.  Or maybe not.  Sam Dolnick has this story in the NYT:

The federal government and states across the country have spent billions of dollars in recent years on sprawling, privately run halfway houses, which are supposed to save money and rehabilitate inmates more effectively than prisons do.

But now, a groundbreaking study by officials in Pennsylvania is casting serious doubt on the halfway-house model, concluding that inmates who spent time in these facilities were more likely to return to crime than inmates who were released directly to the street.

The findings startled the administration of Gov. Tom Corbett, which responded last month by drastically overhauling state contracts with the companies that run the 38 private halfway houses in Pennsylvania. The system costs more than $110 million annually.

Pennsylvania's corrections secretary, John E. Wetzel, who oversaw the study, called the system "an abject failure."
Thanks to Michael Santella for the link.
Dana Nichols has this article on realignment in Calaveras County, California (locale of Mark Twain's first published piece of fiction).

The agencies charged with enforcing laws and supervising criminal offenders in Calaveras County aren't getting along with each other and are bungling key tasks required under California's 2011 criminal justice realignment, according to a county grand jury report.

Along with shifting a lot of incarcerated felons from state prison to county jail, the realignment bill also shifted the supervision of a lot of released felons from the state parole system to county probation offices.  Over the years, probation officers have developed a different culture from parole officers.  I'm sure this is due in large part to the differences in the criminal populations they have supervised.  The people supervised by probation officers in the past were, by definition, those that the judge thought were suitable for probation, largely based on the judge's assessment of their potential for rehabilitation.  Those who ended up being supervised by parole officers tended to be the hardened criminals.  Probation officers therefore tended to develop more of a rehabilitation viewpoint, while parole officers tended toward a viewpoint that their job was to protect the public from this still-dangerous criminal.

Sometimes Dead Men Do Tell Tales

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Jack Leonard reports in the LA Times:

Opening a new frontier for solving cold cases, California prosecutors are hunting for DNA from killers, rapists and other prison inmates who died before authorities obtained their genetic profiles.

Prosecutors from Sacramento, Los Angeles and Orange counties are sifting through old court exhibits and examining long-since forgotten crime-scene evidence in search of blood, saliva and other material that can be tested for DNA. Once obtained, the DNA is compared with the genetic profiles from unsolved cases that have DNA from unidentified perpetrators.
Of course, there is no case to prosecute where the perp is dead.  However, knowing that the case is solved and the perp is indeed dead is a great service to the victim or the victim's family.

The ACLU isn't quite as exercised about the privacy rights of dead people.  Even so, they are warning about getting samples from exhumations or medical samples.

News Scan

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Suspect in CO Prison Chief's Death Killed in TX Shootout:  CBS News reports that Colorado parolee Evan Spencer Ebel, 28, was pronounced dead Friday morning after shootout with Texas police. Ebel was suspected of killing Colorado Department of Corrections Chief Tom Clements on Tuesday. He was also suspected of killing a pizza deliveryman, Nathan Leon, 27, on Sunday. Officers had attempted to pull Ebel over. He then opened fire, seriously wounding a police officer. Ebel led officers on a high-speed chase that ended when he crashed into a semi. A firefight ended only when Ebel was shot in the head. A member of the Brotherhood of Aryan Alliance prison gang, he was convicted of various other crimes since 2003, including assault on a prison guard. Investigators are looking into the possibility that Clement was killed on a hit ordered by Ebel's gang.

New Orleans Judge Says Felons Have the Right to Bear Arms:  Claire Galofaro of the Times-Picayune reports Orleans Parish Criminal District Court Judge Darryl Derbigny ruled Louisiana's state law forbidding certain felons from possessing firearms to be incompatible with the state's constitution. The ruling follows an amendment defining the right to bear arms as fundamental for its citizens, on par with freedom of speech and religion. Public defender Jill Pasquarella defended Derbigny, saying it was irrational to ban felons from guns when convicted of non-firearms related crimes. The state Supreme Court will review the statute.

Riverside Crime Rising Under Realignment: 
Alicia Robinson of the Press-Enterprise reports crime is on the rise in Riverside, California as overcrowded jails resulting from AB 109 are forcing early releases and decreased consequences. Riverside County's inmate population grew 22 percent more than had been projected in the first year under Realignment. Rising crime rates in the city over the last year are reversing a 10 year downward trend. Out of 921 parolees searched by police from January 2012 through February 2013, 207 were found violating parole. Of those, 48 were under community supervision. 402 arrests were made over the 14 month period, most of which were for suspicion of felonies. Continued from this News Scan.

The Suprising Truth About Coroners

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Who decides whether a deceased person was the victim of foul play or an accident?  If you're like most people you might assume that a physician would be that person.  More specifically, you might reasonably assume that a pathologist - a physician with expertise in autopsy - would be that person.  You might even assume the person to be a forensic pathologist - a person whose sub-specialty is all about making medical determinations regarding the cause of death when important legal issues might be in play.

Sadly, you're probably wrong.  In many jurisdictions the person who makes these decisions - the coroner - is not a physician and may not even have a graduate education.  And rather than being appointed based on their education and training, many are elected.

The potential problems are obvious and the solutions are worth seriously considering.

Indicting a Groundhog

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The Founding Fathers considered the grand jury to be an important protection, writing it into the Fifth Amendment.  Today, though, it is widely said that the prosecutor can get the grand jury to indict a ham sandwich, if he wants to.

This post by Jason Samenow at the WaPo comes close:

As severe cold grips the eastern U.S. on March 21, Punxsutawney Phil's forecast for an early spring is best described as an epic failure.  The prosecuting attorney of Butler County, Ohio, Michael Gmoser, wants the groundhog to pay for his flawed prediction, with his life.

Gmoser filed an indictment against Phil....
*                                       *                                      *
The indictment comes just three days after satirically wrote the groundhog had been beheaded for his inaccurate prediction.

Post script

To close the interview, Gmoser confided he was just having "a little fun" with the indictment.

He did what from where?

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Tony Rizzo reports for the Kansas City Star:

Eric Lee Bederson made his initial appearance Tuesday in U.S. District Court in Kansas City, where he faces six counts of distribution of child pornography.

Bederson, 35, has been in prison since June 2000, according to California Department of Corrections records.

*                                  *                                  *
California inmates are not given Internet access, but some have used smuggled cellphones to access the Web, officials said.

News Scan

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Death Penalty Recommended for Craigslist Killer:  Kim Palmer of Reuters reports that an Ohio jury recommended death for "Craigslist Killer" Richard Beasley on Wednesday. Beasley, 53, was found guilty of the murders of three men, and the attempted murder of a fourth. The jury deliberated for less than three hours before presenting their recommendation. Judge Lynne Callahan set a sentencing date for March 26. Continued from this News Scan.

CO Gov. Hints at Veto on Death Penalty Repeal: 
Kurtis Lee and Lynn Bartels of the Denver Post report that Gov. John Hickenlooper may veto HB 1264 aimed at repealing the death penalty in Colorado. Representatives indicate that Hickenlooper expressed conflicting feelings on the death penalty at a caucus luncheon Tuesday. The governor wants more public input on the issue. A vote on the bipartisan measure was postponed following nine hours of testimony from both sides.

Mounting Problems Lead Pentagon to Consider Gitmo Overhaul: 
Michael Isikoff of NBC News reports that the Pentagon is considering a $150 million overhaul of the Guantanamo Bay prison in Cuba. The plans include a new dining hall, hospital and barracks. The proposal comes in response to a recommendation from Guantanamo's top general in response to escalating problems. The buildings are falling into disrepair as more and more detainees have joined hunger strikes in protest.

Almost Two Thirds of Hate Crimes Go Unreported, Study Finds:
  Pete Yost of the Associated Press reports that a study by the Justice Department's Bureau of Justice Statistics found nearly two thirds of all hate crimes nationally are not reported to police. From 2003-2006, 46 percent of hate crimes were reported to law enforcement, 84 percent of which were violent in nature. From 2007-2011, only 25 percent of hate crimes were reported to police; violent offenses increased to 92 percent. Victims and those conducting the study cited feelings of futility, a lack of confidence in police, and fear of reprisal from hate groups as reasons for not reporting.

Maybe Civilian Trials Are Better After All

The Ft. Hood massacre took place about three and a half years ago, on November 5, 2009.  From that day to this, no one has doubted the identity of the shooter, Maj. Nidal Hasan.  Nor has anyone doubted that he acted intentionally.  

Apparently seeing the virtues of martyrdom, or at least of 79 virgins or whatever the going rate is these days, Maj. Hasan has tried to plead guilty.

Sorry, no dice.  If you did it, and you want to admit (or proclaim) it, the Army, which is handling the prosecution, won't allow it, so says this article.   Indeed, the poor guy seems to be blocked from pleading guilty to anything.

What kind of nonsense is this?  Yes, we want to be sure before we execute  --  sure we have the right guy, and sure that the ultimate punishment is warranted in all the circumstances.  But we already know we have the right guy, and the circumstances will be thoroughly examined at the penalty phase in any event.  There is no such thing as a mandatory death penalty in American law.

So what gives?  What gives is that our country has become so tentative, so defensive, so morally obtuse and frankly so silly that we have litigated to the hilt whether Maj. Hasan can keep his beard, but are flatly unwilling to accept his legal admission that he killed 13 people, an admission the entire planet knows is true. This is going on four years after the event, mind you, in which any mental problems (other than hate) the good Major might have could have been thoroughly examined.


The Ethics of Criminal Defense

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The case of disgraced defense lawyer Charles Daum was the subject of my post here. There was a follow-up post, which has inspired 30 comments as of this writing.  That must be something like a record for the blog.

As it happens, the numerous comments have morphed into a decently high quality debate about the ethics of criminal defense work.   The main participants are jaymacke (an Ohio public defender) and decencyevolves on one side, and federalist and yours truly on the other.

The entry is now a few days old, but the debate has become more focused, and thus more informative, as it has developed.  I invite readers interested in this subject to take a look at  the comment thread.

Bank Robbery, Then and Now

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Bank robbery is a serious crime, especially when done at gunpoint.  This is why governments in the Western world uniformly make it a felony.

Well, they used to make it a felony.  Cyprus brings us the new normal (click on picture to enlarge):

Featured image

OK, it's not really the new normal.  Not yet.  But the cartoon was irresistible.  

Hat tip to John Hinderaker at Powerline.

News Scan

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CA Gov. Examining Realignment's Impact:  David Siders of the Sacramento Bee reports that Gov. Jerry Brown is looking into the impact of AB 109. The California governor admits the program has no clearly defined goals for its success. Republican lawmakers blame AB 109 for increasing crime rates in CA since implementation. Multiple bills are in the works by primarily Republicans, and some Democrats, aimed at curbing these effects. Bills discussed here by Bill Otis. The first of these bills, AB 2, was voted down along party lines last week. Continued in this News Scan.

Chicago Cop Who Committed Suicide Suffered from PTSD: 
CBS reports that Ryan Healy, a Chicago police officer who took his own life, suffered from PTSD. Telling his family he was overwhelmed by the violence, death, and negative impact on children he saw on the job, he reported feeling increasingly hopeless before shooting himself. The Chicago Police Department is one of many that have recognized the problem of PTSD among officers. Although systems are in place to help those who ask for it, those in the law enforcement subculture often find it hard to admit needing help. More on Chicago's rising crime problem in this News Scan.

TX Police Chief Has New Strategy to Fight Crime: 
Susan Schrock of the Star-Telegram reports that new Arlington Police Chief Will Johnston laid out a crime reduction strategy on Tuesday. The plan which Johnston calls "Focus on Five" will refocus geographic policing areas, utilize a multi-year approach on some crime issues, and involve the community both in person and on the Internet. The strategy comes following an overall drop in the city's crime rate coupled with a slight rise in violent crimes.

PA House Passes Victim Advocacy Parole Legislation: 
Tony Romeo of CBS reports that Pennsylvania's House has passed House Bill 492, granting victims of crimes, or their representatives, the right to testify before the state Board of Probation and Parole. Mike Vereb (R-Montgomery County) is sponsoring the bill. The legislation came in response to the parole of Rafael Robb, a professor convicted of manslaughter in his wife's death. The subsequent outcry caused his parole to be revoked. The bill is expected to pass the Senate, and reach the governor this spring.

Colorado Corrections Chief Murdered

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The nightmare scenario for all involved in fighting violent crime is that one of those criminals may come after you personally or your family.  Front-line police officers are at the greatest danger, of course, and killing a police officer in the line of duty is, quite rightly, a capital offense in many states.

But others further removed from the front lines are not immune.  Kirk Mitchell, Jeremy P. Meyer and Jordan Steffen report for the Denver Post:

The executive director of the Colorado Department of Corrections, Tom Clements, was shot and killed as he opened the door to his Monument home Tuesday night.

Clements' distraught wife, Lisa, told a 911 dispatcher that the gunman rang the doorbell and then shot her husband in the chest, according to a dispatcher's recording. She told the dispatcher she was not sure if the gunman was in the house.

Deputies received the 911 call at 8:42 p.m.

Authorities arrived at the home minutes later. They found Clements and his wife inside the home on a set of stairs.

Medical crews started performing CPR on Clements while deputies worked to secure the area and search for a suspect. Clements died at the home.

No SCOTUS Crim Action, Again

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Seems like yesterday I was posting that the US Supreme Court had decided two civil cases and was hearing argument in two others, with no criminal law action.  Actually, it was yesterday.  Today is not Groundhog Day, though; it's the vernal equinox.

Over at SCOTUSblog, John Elwood has his relist watch post on Monday's orders list, which does include some criminal law action.  He notes, "the Court denied cert. without comment in Wolfenbarger v. Foster, 12-420, passing up Michigan's invitation to revisit Wiggins v. Smith in light of Harrington v. Richter.  The Court did, however, GVR in Ryan v. James, 12-11, in light of Johnson v. Williams, after taking a couple of weeks to mull it over."

In addition to the cases John notes, the Court has relisted for March 29 the cross petitions in the California capital case of Richard Louis Arnold Phillips, Nos. 12-544 and 12-5890.  The Question Presented in the state's petition (by our friend Eric Christoffersen) is, "Whether the Ninth Circuit conflicted with the 'reasonable likelihood' materiality standards of Napue v. Illinois and Brady v. Maryland by substituting a standard based on 'any conceivable, speculative possibility' of a different result."  This is the second relist.  Is a summary reversal being drafted?  The author of the Ninth Circuit opinion is identified by name in the petition.  Take a wild guess.
One of the reasons I was so grateful when Kent invited me to become a contributor on this blog is that CJLF is an organization with which anyone who cares about justice for criminals and safety for ordinary people would be delighted to be affiliated.  Of late, Kent and CJLF's staff have done a super job of publishing story after story of the predictable (and predicted) disastrous results of California's prison "realignment."  "Realignment," readers will recall, is the deliberately opaque word used to denote the legalized jailbreak California's liberal-dominated government gleefully undertook in the aftermath of Plata.

It didn't take long for the chickens to come home to roost.  Crime is breaking out all over the place.  This was the certain result of "realignment," recidivism rates being, as they are, in the stratosphere.   Republicans in California's legislature have acted to try to salvage the situation before any more harm gets done.  As this AP story recounts: 

Republican lawmakers proposed a package of bills on Tuesday intended to counter what they see as a growing threat to public safety from sending some inmates to county jails instead of state prisons. The 13 bills seek to counter the effects of prison realignment in 2011 by improving supervision of parolees and increase penalties for sex offenders and those who illegally possess or sell firearms.The measures also would send more convicts back to prison to ease the burden on local jails while protecting counties from lawsuits.

This part of the article should get people's attention:

The proposals have the backing of Diana Munoz, mother of Brandy Arreola, 21, of Stockton, who was permanently injured last year by her boyfriend, Raoul Leyva, a parole violator who had been released early from jail because of overcrowding.

Leyva, 34, was convicted last month of attempted voluntary manslaughter and injuring a spouse, with enhancements for causing brain injury and paralysis.

"If realignment didn't exist ... my daughter would be living her life normally," Munoz said as her daughter sat in a wheelchair by her side. "The state is responsible for what's happened to her. They should never have let him out." 

We shall soon see whether the Democrats who control the state legislature have anything to say to Ms. Munoz and her daughter beyond, "Gosh, we sure have a lot of compassion for you, but......ummm.....would you please get lost?"

News Scan

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TX Bill Would Require DNA Evidence for Death Penalty:  Chris Tomlinson of the Associated Press reports that Texas Attorney General Greg Abbot and Sen. Rodney Ellis (D) introduced SB 1292 Tuesday. The bill would require the testing of all biological evidence for DNA prior to a prosecutor being able to seek the death penalty. They argue the legislation would protect innocents while, at the same time, removing prolonged appeals in the face of definitive evidence.

CA County Sued After AB 109 Overcrowds Jails:  The Associated Press reports that  inmates' rights advocates are suing Riverside County over jail conditions due to Realignment. The lawsuits cite overcrowding, poor medical care, and inadequate mental health resources for inmates. Don Specter, director of the Prison Law Office says realignment has exacerbated problems by putting too much burden on the counties. The City News Service reports that Riverside County Sheriff Stan Sniff is making a proposal to the Board of Supervisors Tuesday for approval of a Secured Electronic Confinement Program. The plan would release about 100 inmates from county jail to ease overcrowding. Those released would be fitted with GPS tracking devices and require weekly checks for compliance. Additionally, they would have to abide by 46 terms and conditions, making the program more stringent than regular GPS monitoring.

KS Recidivism Costs Prompt Look at Probation:  
Tony Rizzo of the Kansas City Star reports on a proposal introduced to reform parole methods in Kansas. The proposal would implement a series of "graduated sanctions" of increasing severity based on repeat violations. Law enforcement officials fear it would reward bad behavior and keep dangerous criminals on the streets. The rate of probation and parole violators being re-arrested has increased 25 percent from 2009, according to KS Secretary of Corrections Ray Roberts. With costs averaging $24,000 per inmate annually, the growing recidivism rates are increasing the burden on the state's tax payers. The bill has passed the House and awaits the Senate's vote.

CA Sex Offender's Confession to Therapist Doesn't Count as Evidence: 
Maura Dolan of the Los Angeles Times reports that the California Supreme Court unanimously ruled that confessions by sex offenders to a therapist cannot be used as evidence for commission to a mental institution. In the case of sex offender and state parolee Ramiro Gonzales, a psychotherapist testified that he should remain in a state mental facility indefinitely. Her statement that Gonzales admitted  raping 16 children was not admissible as evidence. The decision cited that the original trial judge erroneously ordered the therapist to testify what was discussed in the state-mandated therapy sessions. Despite the ruling, Gonzales will remain incarcerated.

CA Crime Rises in Porterville After Realignment: 
Denise Madrid of the Porterville Recorder reports that crime rates for 2012 have risen sharply in Porterville under AB 109. From 2011 to 2012, robberies increased from 58 to 70, and burglaries rose from 518 to 594. Homicides and rapes showed slight increases. Porterville Police Chief Chuck McMillan believes the increase comes as a direct result of Realignment. He says his department is re-arresting criminals released early under AB 109 for the same type of crimes they committed before.

No SCOTUS Crim Action

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The US Supreme Court released two opinions today, neither on criminal law.  One was a copyright case, and the other was on federal v. state jurisdiction in class actions.  Today's oral arguments are also civil cases.  As noted earlier this month, in a sense no news is good news.

The copyright case, Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697, has a juicy piece of fruit on dictum versus holding on page 27:

Most importantly, the statement is pure dictum. It is dictum contained in a rebuttal to a counterargument. And it is unnecessary dictum even in that respect. Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?

Ms. Rehab Gets More Rehab

If Lindsay Lohan didn't exist as an emblem of the unseriousness of criminal law in California, I'd have to invent her.  I mean, willy-nilly releasing criminals under what is, with intentional obscurity, called "realignment," is one thing, but Ms. Rehab is something else.

This is the latest:

Lindsay Lohan agreed to spend 90 days in a "locked in" drug rehab facility as part of a plea deal to settle criminal charges against her Monday.

The actress entered pleas of no contest on two misdemeanor charges relating to a traffic accident last summer, and she did not challenge the finding that she violated her shoplifting probation with those convictions.

This story is so chock full of goodies about the surreal nature of Hollywood justice that it should get some kind of award.  Here's one tidbit: 

She's spent 250 days in five rehab facilities since January 2007, including one long court-ordered stint after a failed drug test.

The actress has appeared in court at least 20 times before four Los Angeles judges who have now found her in violation of probation six times and sentenced her to a total of nine months in jail.

Lohan has spent about two weeks behind bars in six trips to the Los Angeles County jail, served 35 days under house arrest and worked about 67 days of community service at the county morgue.

More goodies follow the break.

Next Monday, the D.C. Circuit will hear argument in Cook v. FDA, No. 12-5176.  In that case (formerly Beaty v. FDA), the District Court held that the FDA had acted illegally in allowing importation of sodium thiopental for executions.  The court went on to order the FDA to inform the states that use of their existing stocks of thiopental is illegal and to take steps to recover it.  In issuing the latter part of the injunction, the court was untroubled by the fact that not a single word of the briefing or the court's opinion provided a legal basis for the order.  It was also untroubled by the facts that the states with a powerful interest involved were not parties to the action, the plaintiffs had not taken any steps to make them parties, and the plaintiffs had not shown any reason for an exception to the general rule against adjudicating the rights of nonparties in their absence.

In the Court of Appeals, CJLF appeared as amicus pointing out these problems.  The nonparty problem is the subject of Federal Rule of Civil Procedure 19.  The plaintiffs largely ignored the brief, just dropping one footnote about the general rule of not considering issues raised only by amici.  That rule has exceptions that the plaintiffs simply ignored.  Some issues must be considered whether a party raises them or not.  Subject matter jurisdiction is one, and Rule 19 is another.

Today the court issued the following order:

It is ORDERED, on the court's own motion, that the parties be prepared to address at oral argument on March 25, 2013, (1) the standing of the appellees to bring this case, with particular reference to the requirement of redressability; and the (2) Federal Rule of Civil Procedure 19 and remedial issues raised in the brief of the amicus curiae Criminal Justice Legal Foundation.
A prior post with links to multiple earlier posts on this case is here.  CJLF's summary of argument and a link to the full brief are in this post.

News Scan

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TX Prisons Block Illegal Cellphone Use by Inmates:  The Associated Press reports that Texas is beginning to test equipment in its state prison system aimed at blocking illegally smuggled cellphones used by inmates. In addition to blocking calls, the managed access systems diverts text messages, emails and log-in attempts. The two prisons in which the system is being tested are considered to have the highest incidents of cellphone smuggling. Illegal inmate cellular use is a widespread problem. The last two years saw the capture of 1,368 cellphones found in inmate possession. Criminals have utilized cellphones to coordinate gang activities and harassment. Continued from News Scans here and here.

CA Seeks to Regain Control of Prison System:  Sam Stanton and Denny Walsh of the Sacramento Bee report California is seeking to regain control of its prison system after 18 years of federal oversight. In 1995, a federal court said California's 'substandard' prison mental health care played a key role in the state's high rate of inmate suicides. Citing reforms and increased funding for inmate mental health, Gov. Jerry Brown claims the state has solved its problems. Since 1999, 437 inmates have committed suicide in a state prison. An annual report from national suicide expert and special master's team member Dr. Raymond F. Patterson cited the state's prison inmate suicide rate at 23.72 per 100,000 in 2012. The national average was 16 per 100,000 last year. The state will make its case in court March 27.

CA Spree Robber Was Released Under Realignment:
Brian Maxey of KMPH Fox 26 reports that gang member and registered sex offender Willie Murphy was arrested Saturday after a two-month armed robbery spree in Fresno. Murphy robbed six different businesses while acting like a regular customer. He would reveal a gun upon approaching the register and rob the location. Sontaya Rose of ABC News reports that Murphy was released on post-release community supervision under AB109. He was able to avoid parole and GPS tracking by committing the so-called non-serious, nonviolent, nonsexual felony of attacking a corrections officer.

AZ Attorney General Will Appeal Overturned Conviction:  Greg Botelho and Deanna Hackney of CNN report that Arizona Attorney General Tom Horne will appeal the overturned conviction and death sentence of Debra Milke. She was convicted by jury on October 12, 1990 of murder, conspiracy to commit murder, child abuse and kidnapping, shortly after the execution-style death of her young son. Milke was sentenced to death months later. The conviction was overturned Thursday by Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals. Discussed in this post by Kent Scheidegger.

Trial Date Set for Killers of Officer:  Michael Doyle of the Sun-Star reports that inmates Joseph Cabrera Sablan and James Ninete Leon Guerrero will face trails for killing federal correctional officer Jose Rivera at the U.S. Penitentiary Atwater in California on July 23, 2003. Sablan and Guerrero were both federal inmates from Guam serving life sentences. Continued from this blog entry.

Rapists as Victims

Two high school football players were convicted over the weekend of raping a 16 year-old girl.  They were tried as juveniles, and thus, under Ohio law, cannot be held beyond their 21st birthdays.

It is far from unheard of for the media to gush over defendants as supposed victims of an uncaring/racist/class-ridden state, not to mention evidence-hiding (or evidence-manufacturing) prosecutors. This time, though, they overdid it, resulting in a good bit of howling from usual media allies.

CNN, in particular, got panned.  As reported by Yahoo News, some of CNN's coverage of the verdict and sentencing was as follows:

"I've never experienced anything like it," CNN correspondent Poppy Harlow said live outside the juvenile court in Steubenville. "It was incredibly emotional--incredibly difficult even for an outsider like me to watch what happened as these two young men that had such promising futures, star football players, very good students, literally watched as they believe their life fell apart."


[Candy] Crowley then discussed the case with CNN legal contributor Paul Callan.

"You know, Paul, a 16 year old now just sobbing in court, regardless of what big football players they are, still sound like 16 year olds," Crowley said. "The thing is, when you listen to it and you realize that they could stay until they're 21, they are going to get credit for time served. What's the lasting effect, though, on two young men being found guilty in juvenile court of rape, essentially?"

Enough is enough, so some of the response was:

"One way to report on the outcome of a rape trial is to discuss the legal ramifications of the decision or the effect the proceedings may have on the life of the victim," Gawker's Mallory Ortberg wrote. "Another angle reporters can take is to publicly worry about the 'promising future' of the convicted rapists, now less promising as a direct result of their choice to rape someone. Reporters at CNN today chose the latter technique."

One might hope that sobbing over criminals will draw liberals' rebuke in more than just rape cases, with their Politically Correct undertow.   We shall see.

The Right to Appointed Counsel

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For those defendants who cannot hire counsel at all (in contrast to the previous post), today is the golden anniversary of Gideon v. Wainwright, the decision that extended the federal constitutional right to appointed counsel to all felony cases, state as well as federal.  As important as that decision was, and I don't mean to denigrate it, from some of the effusive praise heaped upon it one might think that 50 years and a day ago nobody had the right to appointed counsel.  Before Gideon, many states provided counsel to all indigent defendants as a matter of state law, see, e.g., B. Witkin, Cal. Criminal Procedure §137 (1st ed. 1963), and the federal constitutional right was governed by the "fluid," and ultimately unworkable, standard of Betts v. BradyGideon was a large and important step, but the right to appointed counsel did not suddenly appear out of nowhere 50 years ago.
The U.S. Supreme Court today took up a criminal case involving forfeiture and the money that well-heeled defendants need to pay their retained counsel.  The case is Kaley v. United States, No. 12-464.  It is an important issue in white-collar crime cases, although it rarely comes up in the violent crime cases that we mostly discuss on this blog.  The question presented is:

Whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.
I noted here the case of prominent Washington, DC defense attorney Charles Daum, who recently received a 63-month prison sentence for faking evidence and suborning perjury.  I have looked a bit more into the case.  The reaction of members of the defense bar is revealing.

One would think the bar's reaction would be something like (this is my script):

We are appalled that a colleague would involve himself in a fraud on the court.  Public respect for the integrity of the criminal justice system cannot survive if any of its practitioners, prosecutors or defenders, engages in conduct of this sort.  It is a stain on the legal profession.  As members of an honorable calling, criminal defense, we unequivocally condemn it.

Is that what the reaction actually was?  Not exactly.  As reported in the Washington Post's Reporter's Notebook, the reaction of the mainstream bar was this (emphasis added):

[Some] lawyers read the indictment as a warning to aggressive defense lawyers. Betty M. Ballester, head of the Superior Court Trial Lawyers Association, said defense lawyers worry that prosecutors are "targeting high-profile attorneys and investigators."

But lawyers seem most troubled that unsatisfied clients might make charges against them in exchange for the government's favor. Gladys Weatherspoon...thinks White and Robertson [Daum's drug dealing clients] framed Daum for that reason. "Every defense attorney is one client away from being Mr. Daum," she said.

And there you have it.  The problem here is not that a defense lawyer was engaged in breathtaking dishonesty.  The problem is that thuggish prosecutors are "targeting"  --  obviously in order to intimidate  --  blameless, but "high-profile," defense lawyers. Either that or that defense lawyers are being set up by their clients to have something to offer those same rapacious prosecutors.

No wonder Daum refused to speak a word of regret at sentencing.  Why should he? His defense colleagues see nothing he should regret.  The only thing the public should be worried about are the prosecutors  --  the ones who decline to be bullied into giving a free pass to this sort of behavior.

The main reason is simply that they are Illegal (under the law of war) enemy combatants. They should be treated as such, which means, among other things, detaining them at Gitmo for the duration of hostilities and forcing them to provide intelligence.  At some point convenient to our interests, they should be tried in a military tribunal for war crimes (the targeting of civilians being principal among them).  
Another reason is provided by this atrocious story.  The idea that our government would trade an absurdly short prison sentence for cooperation it should have coerced is just beyond belief.

Well, no, it's not beyond belief, but it should be.

Manufactured Evidence, Defense Style

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Probably the most frequently alleged misconduct on the part of prosecutors is withholding exculpatory evidence in violation of Brady.  This sort of stuff makes headlines for two reasons.  First, it's a rare but grievous violation of the prosecutor's ethical duty and public trust, and has the potential to bring about the conviction of the innocent  --  a gross injustice by any measure.  Second, it can help paint a seriously misleading, broad-brush picture of prosecutor-as-thug.  We all know there are people out there with this agenda.

Getting fewer headlines are instances of defense cheating.  Kent reported on one last June.  I want to follow up.

Calling a defense lawyer's crime "truly unconscionable," a federal judge in Washington today sentenced a longtime Washington attorney to more than five years in prison for his role in a scheme to manufacture evidence to dupe jurors in a drug trial.

The defense lawyer, Charles Daum, who had practiced law in the District of Columbia for three decades, will serve 63 months behind bars for a plot that included staged photographs and perjured testimony.

Daum's lawyer, David Schertler, insisted that Daum was "remorseful," but apparently not remorseful enough to say so, as he refused to speak at his sentencing.

Mr. Schertler, however,was at no loss for words, quickly changing the subject from his crooked client to  --  guess what?  Right you are!

Schertler presented Daum as an honest man, a good person, who made a mistake. Schertler dedicated part of his time in court today assessing unethical police officers and prosecutors and the public perception that neither is regularly held accountable for lapses in judgment. "When was the last time you saw a prosecutor prosecuted?" Schertler asked at one point. "It doesn't happen."

That's it!  The thing to do when your client is caught staging photos and suborning perjury is......blame the prosecutor!!

Do these people even hear themselves?

When Monitoring Bracelets Fail

From Syracuse comes a horrific story involving suspect David J. Renz,a man who had previously been convicted of possession of child pornography and was apparently released back into the community with what has become the ubiquitous electronic monitoring bracelet.  That safeguard did nothing for Lori Bresnahan and her 10 year-old daughter: 

Authorities say they have a suspect in custody in the death of a woman who was attacked in front of a 10-year-old girl who was with her during a carjacking and kidnapping Thursday night at Great Northern Mall in Clay.

Police say the suspect kidnapped the victims, raped the girl, and stabbed the woman [to death]. Police say there is no indication he knew the victims.

New York State Police Captain Mark Lincoln spoke to reporters at a news conference Friday morning at State Police barracks in North Syracuse


A spokesperson at Executive Assistant U.S. Attorney John Duncan's office tells CNY Central that Renz removed a monitoring bracelet that he was required to wear prior to the attack. Renz was previously charged possessing child porn and was released from custody in January.


According to court papers, Renz was previously charged for possessing more than 100 gigabytes worth of child porn on an encrypted hard drive that contained more than 500 videos and more than 3,000 images.

New York has no death penalty, but apparently prison is worse than death.  

Prof. Cecilia Klingele of Wisconsin Law School responded to my critical assessment of her SSRN piece (an assessment I discussed in my earlier entry) with this comment on Sentencing Law and Policy:

A small clarification. The paper does not suggest that community supervision (or any lesser sentence) should replace prison in cases where it is warranted for just punishment or public safety. The paper discusses the proper (and improper) use of community supervision in typical cases involving people whose crimes are minor, whose culpability is low, and/or whose threat to public safety is minimal; and for those who have served their sentences and are transitioning back to their communities. When community supervision is used, of course it should be thoughtful, well-resourced, and carefully executed. My point is that it is often used in ways and for people who would be better punished in differently, be it through jail time, fines, or unconditional discharge. If anything in the paper misleads on that point (or any other), I welcome suggestions for revision and clarification.

My response to her follows the break.  I hope this will turn out to be an extended discussion, because the actual plans and agenda of the "incarceration nation" critics  --  if those plans are implemented  --  are vitally important to any fair assessment of whether the rest of us should support or oppose them.  As readers will see, I continue to have considerable doubts.

News Scan

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CA Attempted Murder Suspect Was Free Under Realignment:  Doug Saunders of the San Bernardino Sun reports that Richard Holquin, 46, has been arrested on suspicion of attempted murder. Holquin, out on probation under AB109, is suspected of shooting two men in Yucaipa after they failed to pay him owed money. He is being held at the San Bernardino Central Detention Center.

CA Jury Recommends Death for Cellmate Killer: 
Lewis Griswold of the Fresno Bee reports that a California jury has recommended the death penalty for Robert Galvan, 37. Galvan was convicted of brutally murdering his cellmate. He strangled him with electrical cord, slit his throat, and smashed his head against a concrete bed. Galvan says he killed his cellmate for calling him stupid. Galvan was serving four consecutive life terms for multiple assaults, kidnapping, and robbery at the time of the murder. He will be sentenced May 15.

CA Police Suspect They Are Being Targeted By Gun Thieves:
  Demian Bulwa of the San Francisco Chronicle reports that a surge in gun thefts from Bay Area cops has officers on high alert. Increases in home and car burglaries against officers are becoming an increasing problem for law enforcement. Ron Cottingham, president of the Peace Officers Research Association of California, says cops are prime targets for criminals and gang members because their homes and vehicles are sources for firearms.

CA Jury Recommends Death for Murderer, Rapist: 
Vik Jolly and Larry Welborn of the Orange County Register reports that a jury recommended the death penalty Wednesday for convicted rapist and murderer Waymon Livingston. Livingston, 29, carried out the crimes over a two-year period. He raped and murdered Melissa Ann Gonzalez in 2007. He had also raped three women besides Gonzalez, and assaulted another woman. DNA linked Livingston to the rapes and the murder. He will be sentenced April 26.

FL Man Pleads Guilty in Plot to Murder NY Judge, Prosecutor: 
Mosi Secret of the New York Times reports that Dejvid Mirkovic of Florida pleaded guilty to a murder for hire plot targeting a judge and prosecutor in New York. Mirkovic, 38, arranged to pay federal agents masquerading as hit men $40,000 to decapitate a judge and prosecutor in an act of revenge. The intended victims were targeted for their roles in convicting Mirkovic's business associate, Joseph Romano, of fraud. Romano received a 15-year sentence and will go to trial in May for his part in the plan.

NE Lawmaker Makes 37th Attempt Against Death Penalty:  Kevin O'Hanlon of the Lincoln Star Journal reports that Nebraska Sen. Ernie Chambers of Omaha has introduced LB542, his 37th attempt to overturn the state's death penalty.  The bill would replace the death penalty with life in prison without the possibility of parole. Chambers has introduced similar bills every year from 1973 to 2008.

Things You Don't Need To Worry About

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As Kent has noted, CJLF takes no position on DOMA.  Although some readers might be quite concerned, in one way or the other, about how the DOMA case will turn out, there are other issues involving sex that, I am happy to report, probably will not pose immediate problems on the legal front, or any others  --  unless you and your significant other are planning a trip to the moon.

Filing late

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The US Supreme Court issued a short orders list after its conference this morning.  All of the orders involve pending cases.  The orders list of cases taken up or not will be announced Monday.  None of the cases on today's list are criminal.

An interesting order for SCOTUS inside-baseball fans was issued in United States v. Windsor, the Defense of Marriage Act case.  Two former Attorneys General were granted leave to file an amicus brief out of time.  Rule 37.3(a) sounds absolute regarding time for an amicus brief.  "Motions to extend the time for filing an amicus curiae brief will not be entertained."  Lyle Denniston at SCOTUSblog reports, "The former chiefs of the Justice Department needed permission to have their brief accepted by the Court because, they said, their lawyer had misunderstood the filing deadline, and their document thus was filed late."  So evidently the Court distinguishes between a motion to extend and a motion to file late due to an error.

Deadlines comes in two types: jurisdictional and nonjurisdictional.  In a civil case (including habeas), the deadline to file a certiorari petition is jurisdictional.  Motions to order the clerk to file late certiorari petitions are made occasionally and denied 100.00000% of the time.

CJLF takes no position on DOMA.  We are just watching the show.  How many amicus briefs are there in this case?  Too many for me to bother to count.  The docket is here.

News Scan

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Four Illegal Aliens Rearrested:  Stephen Dinan of the Washington Times reports that U.S. Immigration and Customs Enforcement have rearrested four of the most dangerous illegal aliens released from federal custody due to budget cuts. The aliens were part of an overall  2,228 with felony convictions the agency has released due to the federal budget sequester.  While the government had originally reported that less than 700 non-violent alien criminals were released, they were apparently wrong on both counts.

MD Death Penalty Abolition Moves Forward:  The Associated Press reports Maryland's House of Delegates rejected approximately 20 amendments to the repeal of the state's death penalty. Among the rejected amendments were provisions to retain the death penalty for acts of terrorism, mass murderers, kidnappers who kill their victims and criminals who kill police or firefighters in the line of duty. Gov. Martin O'Malley may sign the bill into law as early as Friday. Continued from this News Scan.

NY Spree Shooter Killed After Standoff with Police:  Aaron Katersky and Colleen Curry of ABC News report that spree shooter Kurt Myers was shot and killed by police in upstate New York. Myers, 64, is believed to have killed four people and wounded two in multiple random attacks carried out Wednesday morning. After shooting at police, he holed up in an abandoned building around 11 a.m. He was shot and killed after a nearly 20 hour standoff. The motive for Myers attacks remains unknown.

The "Incarceration Nation" Shell Game

Hat tip to Doug Berman at Sentencing Law & Policy for pulling the curtain back on the actual agenda of the "incarceration nation" crowd.  This is the group, generally flourishing in academia, the media and (of course) the defense bar, that has been telling us for years that prison is vastly overused in this country, and that we would be just as safe, not to mention more frugal and more humane, to use community supervision instead.  In order to sell this idea, these folks have assured us that community supervision would consist of stringent and carefully monitored oversight of offenders.

OK.  That was then.  This is now.  I'll quote the operational part from the SSRN abstract of a paper written by Prof. Cecelia Klingele of the University of Wisconsin Law School:

To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways.

First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense. Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.

Got it.   "Community supervision" was just a head fake. 

I have said for a long time that the end-incarceration crowd was an exercise in deception -- that it was just a mask for the end-punishment crowd. I very much appreciate Prof. Klingele's coming out of the closet to vindicate my assessment.

News Scan

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CA Sex Offender Bill Failed:  Mike Luery of KCRA 3 reports that AB 2, which would have sent sex offenders back to state prison for violating parole, failed 4-2 on a party line vote Tuesday. Republican Assembly Public Safety Committee Vice Chair Melissa Melendez and Marie Waldron were outvoted by Democrat Assembly members Chair Tom Ammiano, Reginald Jones-Sawyer, Holly Mitchell, Bill Quirk and Nancy Skinner. The vote can be seen in this clip; the relevant part begins at 22 min. Continued from this News Scan.

OH Craigslist Killer Found Guilty: Barry Neild of The Guardian reports Richard Beasley was found guilty, Tuesday, of the aggravated kidnapping, robbery, and murders of David Pauley, Ralph Geiger, and Timothy Kern. He was also found guilty of the attempted murder of Scott Davis. The crimes, carried out in 2011, were perpetrated when Beasley, conspiring with high school student Brogan Rafferty, 16, posted fake job ads on the Craigslist website luring his victims with promises of farm work. Rafferty is serving a life sentence without possibility of parole. Beasley may face the death penalty.

CO Judge Enters Not Guilty Plea for Theater Shooter Holmes:  Jack Healy of the New York Times reports Judge William B. Sylvester entered a not guilty plea Tuesday on behalf of Dark Knight shooter James Eagen Holmes, 25. The judge's ruling came after the defense lawyers said they were not prepared to enter a plea, and did not know when they would be. Prosecutors plan to announce their decision on whether to seek the death penalty at a hearing on April 1. The four week trial is set for August. Continued from News Scans here, here, and here. Discussed by CJLF Legal Director Kent Scheidegger here and here.

FL Looks at Death Penalty Changes:  James L. Rosica of the Associated Press reports that the Florida Senate's Criminal Justice Committee is considering SB 148, a bill that would require a unanimous jury vote for the state's death penalty. Of the 33 states that use the death penalty, it is the only state besides Alabama that does not require a unanimous vote from the jury. Additionally, it would require unanimous agreement from a jury over aggravating circumstances.  What the story does not mention is that there are two very different kinds of "unanimous jury" laws for capital cases.  Some require the jury to be unanimous either way, and some allow a single juror to veto the decision of the other eleven.

AZ Murderer Suspected in Slaying of Prison Guard:  Dave Janoski of the Citizens Voice reports that Arizona convicted murderer Jessie Con-ui, 36, may receive the death penalty for the killing of corrections officer Eric Williams, 34. Con-ui had been scheduled for release from federal prison in September, where he has been serving time for a drug charge. He is now being held at a high-security prison after being suspected of killing Williams with a homemade knife on Feb. 25.

DE Lawmakers Seek to End Death Penalty:  Randall Chase of the Associated Press reports that Sen. Karen Peterson is sponsoring SB 19 in an effort to abolish the death penalty in Delaware. As of Tuesday, Gov. Jack Markell says he remains open to arguments from both sides of the issue and is uncertain where he stands.

WA Prepares Extradition of Suspect from OR:  Doug Esser of the Associated Press reports that Washington state authorities are preparing for the return of suspected murderer Michael Boysen, 26, from Oregon. Boyson, released from prison on Friday, is suspected of killing his grandparents upon his return home. He was arrested in Oregon after a daylong standoff at a motel. He is being held without bail on a warrant from the state Department of Corrections.

OK Executes Killer:  The Associated Press reports that Oklahoma triple murderer and rapist Steven Ray Thacker was executed Tuesday. Continued from this News Scan.
The U.S. Supreme Court occasionally issues summary reversals of lower court decisions.  That is, it sometimes reverses just on the certiorari petition, without new briefing on the merits or oral argument.  These reversals are particularly common in Ninth and Sixth Circuit habeas cases, where those courts repeatedly do exactly what Congress told them not to do.

Much more rare is a summary affirmance, but a case about to be filed may call for it.

Charlie Savage has this story in the NYT:

News Scan

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CA Bill to Return Sex Offenders to Prison Dies:  Paige St. John of the Los Angeles Times reports Assembly Democrats killed a bill, Tuesday, that would have sent sex offenders who violate parole back to state prison instead of county jail. The bill, sponsored by Assemblyman Mike Morrell (R-Rancho Cucamonga), was shot down on a 2-4 party line vote in a public safety committee. At least six such bills are still pending. More on one of the bills in this News Scan.

NY Cannibal Cop Found Guilty:  Benjamin Weiser of the New York Times reports that officer Gilberto Valle, 28, was convicted Tuesday, of plotting to kidnap, torture, kill and eat women. Valle had been discussing his fetishes on voraphilic internet sites, eventually crossing the line between fantasy and reality. Valle planned the crimes along with three others. He researched potential victims using a law enforcement database, and conducted surveillance. He faces a potential life sentence for one count of kidnapping conspiracy.

OK Rapist, Killer Set To Be Executed:  The Associated Press reports that the state of Oklahoma is set to execute murderer Steven Ray Thacker, Tuesday, at the OK State Penitentiary. In December 1999, Thacker raped and murdered Laci Dawn Hill, 25, of Tulsa.  On January 1, 2000, he killed Forrest Reed Boyd, 24, in Mississipi. The following day he killed Ray Patterson, 52, in Tennessee. Thacker waived his right to a hearing and does not plan to stop his execution.

AR Attorney General Seeks Lift on Stay of Execution for Six:  Jeannie Nuss and Andrew DeMillo of the Associated Press report that Arkansas Attorney General Dustin McDaniel has requested the state Supreme Court to lift stays of execution for six inmates on death row. Don Davis, Stacey Johnson, Jack Jones, Jason McGehee, Bruce Ward, and Marcel Williams were granted stays after the court held the state's previous lethal injection law was unconstitutional. The request for lifting the stays comes after last month's enactment of a new lethal injection law, Act 139. Lawyers for the inmates are expected to oppose the request.

Sample Size

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In the social sciences, one of the most important prerequisites for a meaningful study is adequate sample size.  Steve Rennie reports for the Canadian Press, "The federal government had to scrap a planned study into the criminal activities of young francophones in English-speaking Canada -- and anglophone youths in Quebec -- when they couldn't find enough kids from those groups who broke the law, new documents show."

C'mon kids, you're screwing up our study!  Get out there and commit more crimes!

Social Networking Weirdness

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"To err is human; to really foul things up requires a computer."

I received an email today from LinkedIn, a social networking site that is sort of a professional, upscale version of Facebook.  The email said, "Greg Coleman is celebrating 6 years at Yetter & Warden," and it invited me to congratulate him.

If it were only true.  If I only could.  Alas.

News Scan

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San Jose Property Crime Surges:  Robert Salonga and Mark Gomez of the Mercury News reports that San Jose, California experienced nearly a 30 percent increase in property crimes in 2012 from 2011. Last year, the city recorded 28, 463 property crimes, its highest incidence since 1995. This crime increase parallels statewide trends. San Jose Mayor Chuck Reed plans to combat the disturbing statistics by hiring as many as 100 police officers by the end of the year.

MD House Approves Repeal of Death Penalty: 
David Hill of the Washington Times reports that on Friday the Maryland House Judiciary Committee approved a bill to repeal the death penalty 14-8. The bill now goes to the House floor where it could pass this week. Having already passed the Senate, the bill's passage into law is almost certain. Continued from this News Scan.

CA Proposal to Send Parole Violators Back to Prison: 
Paige St. John of the Los Angeles Times reports that state assembly members Susan Eggman (D-Stockton), and Ken Cooley (D-Rancho Cordova) are sponsoring a proposal to give judges the option of sentencing parole violators to state prison. The bill would respond to California's rising crime rates in the wake of AB109. It is hoped the bill will reign in violent parole violators in a state where the prison population has been reduced by about 14,000 inmates.

Oakland Implements New Strategy to Fight Crime:  Norimitsu Onishi of the New York Times reports that the city of Oakland, California will divide its current two police districts into five in an effort to strengthen crime fighting. The smaller districts will each be headed by a captain who will be accountable for reducing crime. The captain will report to the police chief at regularly scheduled meetings. It is hoped that the local captains will be able build a report with community leaders, especially in minority neighborhoods which have traditionally had uneasy relations with the city's police. Redistricting is one of several planned steps aimed at reducing crime in the troubled city. More on Oakland's battle with crime in this News Scan.

FL Bill Would Streamline Death Row Appeal Process:  Melissa E. Holsman of Treasure Coast Palm News reports that Florida state Sen. Joe Negron has introduced "The Timely Justice Act of 2013." The bill's aim is to speed up litigation by removing duplicate and baseless appeals. It would still allow inmates the opportunity to appeal a death sentence. The bill comes after research found post-conviction appeals drain the FL tax system of approximately $1 million for each inmate, keeping murderers on death row for an average of 14 years, before execution.
Todd Ruger has this article in the NLJ (registration required) on sequestration cuts to the judicial branch, including federal defenders.

Money for federal defender organizations would be reduced by $53 million, which "could compromise the integrity of the defender function," [AOUSC Director Thomas] Hogan wrote. Allocations for defender salaries would be reduced by 4 percent, non-salary funds by 25 percent and training funds by 50 percent. Payment of Criminal Justice Act panel attorney vouchers could be deferred for almost three weeks at the end of the fiscal year.
Well, the first thing to cut is representation not authorized by law at all.  The second thing to cut is representation authorized only by Joe Biden's drafting error.

In Cook v. FDA, presently pending in the D.C. Circuit, the Federal Public Defender for Arizona is representing murderers from several states in a suit against the Food and Drug Administration for allowing importation of thiopental.  The cases federal defenders are authorized to take on at public expense are listed in 18 U.S.C. §3006A(a)(1)&(2), and civil suits against the FDA do not come remotely within any of the categories.  It's hard to have much sympathy with an office complaining of budget cuts when that office has been making patently illegal expenditures from its existing budget.

Many years ago, then-Sen. Biden snuck a provision into a drug bill, 21 U.S.C. §848(q)(4), to provide representation in capital cases for both federal defendants and state prisoners on habeas corpus.  A provision for continued representation in such things as successive petitions and executive clemency, which only makes sense for federal defendants, was misdrafted so that it applies to state prisoners as well.  (As a matter of code maintenance, the language was later moved without substantial change to title 18, where it belongs, as 18 U.S.C. §3599.)  Now we have federal taxpayer dollars paying for representation in purely state proceedings that follow the appointment in federal habeas, including representation in state collateral reviews and clemency petitions.  Congress needs to fix this so that the continuing representation provision only applies to federal defendants.

News Scan

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CO Sees Spike in Marijuana Use Among Children:  CBS reports that following Colorado's legalization of recreational marijuana use, a drug testing company is finding a sharp increase in use among minors. Drug testing company Conspire says it is being called to test students for marijuana use in one CO school district weekly now instead of monthly. The drug testing methods have changed as well, requiring lab analysis to determine the level of THC, marijuana's active ingredient, in a user. The potency of the drug in student users has increased since the law passed. Whereas levels were typically found at 50 to 100 nanograms, tests are now showing students with levels as high as 800 nanograms of THC in their system.

Appeals Court Restores Death Penalty for CA Killer:  Bob Egelko of the San Francisco Chronicle reports that a federal appeals court restored the death sentence Thursday for Marvin Walker. It had been overturned in 2011. The Ninth U.S. Circuit Court of Appeals overruled U.S. District Judge Saundra Brown Armstrong's prior ruling that Walker's knee shackle when testifying improperly influenced the jury's decision. The reinstatement of his conviction passed 3-0 and his death sentence was reinstated 2-1. Continued from this News Scan.

CA Sex Offenders Removing GPS, No Fear of Prison:  Mike Luery of KCRA 3 reports sex offenders removing their GPS monitoring devices have no fear of punishment under AB109. According to the California Department of Corrections and Rehabilitation, in the 15 months after Realignment, 2,706 sex offenders removed their GPS tracking devices, compared to 2,346 in the 15 months prior. An anonymous sex offender cites the current consequences, serving 30 days in a county jail, as a risk that sex offenders are willing to take. He notes that jail is often avoided altogether due to overcrowding. Continued from this News Scan.

Death Penalty on the Table for WY Killers:  The Associated Press reports that prosecutors are considering seeking the death penalty for Tanner Vanpelt, 18, and Stephen Hammer, 19, in Wyoming. The two teenagers allegedly stole a pair of handguns from a firearms store. They then fatally shot Ildiko Freitas, and her parents Janos and Hildegard Volgyesi, during a robbery. They stole her SUV and fled the scene. Vanpelt and Hammer are each charged with conspiracy, use of a deadly weapon, premeditated murder, and murder in the course of a robbery.

Federal Prosecutor Seeks Death Penalty for TN Postal Killer:  Adrian Sainz of the Associated Press reports that a federal prosecutor will seek the death penalty for former prison guard Chastain Montgomery, 48. Montgomery is charged with the fatal shootings of federal workers Paula Robinson and Judy Spray in the course of robbing a Tennessee post office with his son in October 2010. No trial date has been set, but a hearing to address Montgomery's mental competency is set for September.

The Felony-Murder Rule

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Under the felony-murder rule, a killing occurring during the commission of specified felonies is murder without the need to show intent to kill.  For the most part, this rule just relieves the prosecution of proving intent in cases where the circumstances indicate an intentional killing, but the only witness other than perpetrator(s) is dead, and eliminating him as a witness is often the motive for the killing.  The rule is especially important in multiple perpetrator cases where each says the other did it.

Genuinely accidental killings in the perpetration of a felony are things you see more often on law school exams than in real life.  Yet we do have such a case today from the California Supreme Court, People v. Wilkins, S190713.

News Scan

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More CA Fugitive Sex Offenders Under Realignment:  Don Thompson of the Associated Press reports that, according to the California Department of Corrections and Rehabilitation, the number of fugitive paroled sex offenders in the state has risen by 15 percent under AB109. More paroled sex offenders are not reporting to their parole officers and disabling or removing their GPS monitoring devices. More on GPS removal in this News Scan. When caught, most offenders are set free again within a matter of days due to jail overcrowding. In an effort to combat these numbers, Sen. Ted Lieu has introduced SB57, which would make disabling the GPS device a felony punishable by up to three years in state prison. Further discussed in this blog entry.

CO Anti-Death Penalty Bill to be Introduced:  Eli Stokols of Fox News reports that a bill seeking to abolish the death penalty will be introduced in the Colorado House on March 15. The bill has four sponsors, two in the House: Reps. Claire Levy, and Jovan Melton; and two in the Senate: Sens. Morgan Carroll, and Lucia Guzman. The bill coincides with an upcoming execution of Nathan Dunlap, covered in this News Scan. Should the bill pass, CO Gov. Hickenlooper will have to choose whether to sign the repeal or Dunlap's execution order.

KS Bill Introduced to Abolish Death Penalty:  Scott Rothschild of Lawrence Journal-World reports that Kansas state Rep. Steven Becker introduced a bill Thursday that would replace the death penalty with life without parole. KS last considered abolishing the death penalty in 2010. The Senate's vote ended deadlocked, 20-20. It was one vote shy of the number needed for the measure to advance. 

DNA Ties Dead Sex Offender to CA Murder:  Larry Altman of the Daily Breeze reports that DNA from a 23-year-old blood sample has helped solve a cold case in California. The sample was taken from sex offender Kevin T. Kemp after he was fatally shot in September 1990 by his victim during an attempted sexual assault. The sample was discovered last April in a refrigerator at a coroner's office. Upon examination, police found that Kemp's DNA matched forensic evidence on the body of murder victim killed three weeks before Kemp died.

DNA Links Freed TX Inmate to Slaying:  The Associated Press reports that Alvin Wiltz has been rearrested and charged with capital murder in Texas, just a day after being released from prison on a drug conviction. DNA evidence linked Wiltz to the 2006 fatal shooting of his alleged accomplice, Jermaine Clemons, in a robbery and utility scam. A homeowner, Oscar Richmond, was also wounded in the attack.

Matthew Hale headed a profoundly racist group called the World Church of the Creator.  He lost a trademark suit with another, older group of the same name.  He had two responses:  (1) change the name of the group to the Creativity Movement, and (2) put out a contract of the life of the judge.

Number 2 got him in trouble.  He was convicted of soliciting a crime of violence and obstructing justice.  The Seventh Circuit affirmed on direct appeal in 2006, 448 F.3d 971.

He's back on collateral review.  Among his claims are, you guessed it, ineffective assistance of counsel.  The Seventh Circuit was unimpressed again.  "Hale's other principal contention is that, before taking over his own defense, he received ineffective assistance of counsel. He complains about almost everything counsel did or did not do." 

Among the failings of counsel was not challenging all the black people off the jury.  Of course there is the minor problem that doing so is unconstitutional, see Georgia v.
McCollum, 505 U.S. 42 (1992), and possibly a criminal offense.  See 18 U.S.C. §243.  In addition, Judge Easterbrook points out that the Creativity Movement hates such a wide variety of people that it would not be possible to challenge them all.

Sheri Qualters has this story at NLJ (registration required).  The case is Hale v. United States, No. 11-3868 (Mar. 5, 2013).
Don Thompson reports for AP:

The number of paroled sex offenders who are fugitives in California is 15 percent higher today than before Gov. Jerry Brown's sweeping law enforcement realignment law took effect 17 months ago, according to figures released Wednesday by the state corrections department.

The increase amounts to 360 more sex offenders whose whereabouts were unknown and who were not reporting to their parole officers last year.

An Associated Press analysis of the Department of Corrections and Rehabilitation data shows that 2,706 paroled sex offenders dropped out of sight in the 15 months since the new law took effect in October 2011, compared to 2,346 in the 15 months before realignment. The numbers were obtained by the AP before their public release.

That's an average of 180 sex offender fugitives each month, up from 156 before realignment.

News Scan

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MD Senate Approves Death Penalty Repeal:  Michael Dresser of the Baltimore Sun reports that the Maryland Senate voted 27-20 in favor of Gov. Martin O'Malley's bill to repeal the death penalty Wednesday. The bill is now sent to the House of Delegates where it is expected to pass. It would then be signed into law by the governor. More on MD's death penalty repeal in this News Scan.

CA Realignment Loophole Allows Criminals to Avoid Supervision:  Beatriz E. Valenzuela of the Daily Bulletin reports that a loophole in Governor Jerry Brown's AB109 is allowing criminals to be released early without supervision. California Penal Code Sec. 1170 means triple offenders convicted of "non-serious" crimes will either serve their full sentence in a county jail or serve a split sentence; half in jail and half on probation. Criminals who serve their sentences solely jail are often released early due to overcrowding. Offenders are being released into communities without supervision.

OH Murderer Executed:  Kim Palmer of Reuters reports that Ohio executed Frederick Treesh on Wednesday. Treesh, 48, was convicted of fatally shooting a security guard and wounding a cashier in a 1994 cross-state crime spree. Treesh was the first inmate to be executed in OH this year. Continued from this News Scan.

Supreme Court Denies AZ Request to Lift Stay:  Michael Kiefer of the Arizona Republic reports that the U.S. Supreme Court on Tuesday denied Arizona's request to lift a stay of execution issued for convicted killed Edward Harold Schad. He has been on death row since 1985. Schad's case is further discussed in this blog post and in this News Scan.

WA Bill Seeks to Abolish Death Penalty:  Rachel La Corte of the Associated Press reports that Democratic Rep. Reuven Carlyle of Seattle is sponsoring HB1504 to end the death penalty in Washington state. Carlyle says he does not believe that the bill will pass this year, but hopes it will strengthen death penalty opposition in the state.

CO Bill Would Require DNA Collection for Misdemeanors:  P. Solomon Banda of the Associated Press reports that HB13-1251 was introduced to Colorado's state House on Tuesday to require DNA samples from those convicted of misdemeanors. Currently, CO only requires samples from convicted felons. The bill's sponsors advocate the importance of using DNA to identify violent criminals before more crimes can be committed. If passed, CO will become the second state with such a law. All 22 district attorneys support the measure. The bill is set for consideration in the House Judiciary Committee.
Attorney General Holder's letter to Rand Paul has been the subject of some commentary.  It is available on Sen. Paul's site, here.

It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.
One need not imagine.  It has happened.  President Washington used military force to put down the Whiskey Rebellion.  President Lincoln used military force to quash a larger rebellion.  President Eisenhower sent the 101st Airborne to deal with Little Rock High School.  Fortunately, they didn't have to shoot anyone in the latter instance, but they might have.

We have not hesitated to criticize Mr. Holder on this blog when he is wrong, but he is right in this instance.  A lawful use of military force, even on American soil, cannot be ruled out in advance, even though the circumstances would have to be extreme and are unlikely to occur in our time.

Update:  The WSJ has this editorial Thursday:

The country needs more Senators who care about liberty, but if Mr. Paul wants to be taken seriously he needs to do more than pull political stunts that fire up impressionable libertarian kids in their college dorms. He needs to know what he's talking about.

Update 2:  The AG has sent Sen. Paul a supplemental letter:

It has come to my attention that you have now asked an additional question: "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" The answer to that question is no.

News Scan

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CA Officer Involved Shootings Increasing:  Sasha Lekach of the Bay City News reports that officer involved shootings in California may be increasing due to AB109. Last Tuesday, two Santa Cruz police officers were fatally shot, discussed here. Since last Thursday, five fatal shootings of suspects by officers have been reported.

MD Death Penalty Debate Continues: 
Alex Jackson of the Capital Gazette reports that the Maryland Senate gave preliminary approval Tuesday to Senate Bill 276, proposed by Gov. Martin O'Malley. If enacted into law, the bill will make MD the 18th state to abolish capital punishment. More than 10 amendments to the bill were rejected by the Senate including allowances for the death penalty to be used both in cases of kidnappings, and for murders of police officers. Voting is expected to take place on Wednesday. More in this News Scan.

CA Prisoner Released Under Realignment Arrested For Assault:   reports that Robert Pena was arrested by Santa Clarita Police on Thursday. Pena is suspected of assaulting a woman as she exited the garage of her condominium. Pena was released in from prison in November 2012 under AB109. He has served time for robbery, assault, and being a convicted felon in possession of a firearm. He pleaded not guilty Monday to assault, burglary, and false imprisonment by violence.

DNA Links Transient to Three CA Killings:  Richard Winton of the Los Angeles Times reports that Samuel Little, 72, pleaded not guilty Monday to three California murders from the 1980s. Little was arrested by U.S. Marshals in Kentucky in September on an unrelated warrant. DNA linked him to the fatal strangling and sexual assaults of Carol Alford, 41, Audrey Nelson, 35, and Guadalupe Apadaca, 46 in Los Angeles. The women were murdered after Little moved to California following charges for two murders and two attempted murders in Florida and Mississippi, for which he was never convicted. In California Little served two years in prison for the separate assaults and false imprisonments of two San Diego women. He was on parole when the Los Angeles area murders are believed to have occurred.

How Not to Word Poll Questions

An outfit called Public Policy Polling has an exemplar of how not to do a poll.  The questions in this North Carolina poll are intentionally loaded to produce an anti-death-penalty result.  Surprise, surprise, surprise, as Carolinian Gomer Pyle used to say, they get the result they wanted.

The Class of '72

Laura Anthony of KGO (ABC, San Fran.) has this story on Dennis Stanworth, one of the killers freed from death row after the temporary judicial abolition of the death penalty in 1972.  As noted in posts here and here, Stanworth subsequently killed his own mother.

In 1966 Stanworth was sentenced to death for the brutal kidnapping, rape and murder of two 15-year-old Pinole teens, Caree Collison and Susan Box. Their family members are still haunted by the crime.

"He had them strip and Caree ran and he yelled at her if you don't come back, I'm going to kill your friend. She came back and he shot her in the head," a family member said.
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Besides Stanworth, the group included Charles Manson and Sirhan Sirhan, who murdered Robert Kennedy in 1968. Manson and Sirhan were not released, but Stanworth and 50 others were eventually set free.

Among them was Robert Massie, who was convicted of murder in 1965 and sentenced to death. In 1978 he was paroled; eight months later, he murdered a San Francisco liquor store owner. In 2001, after the death penalty was reinstated, Massie was executed.

"Even if they're rehabilitated, they've already done something that can't be undone," Parents of Murdered Children spokesperson misty Foster said. "Those people are never coming back, so how do say their life is only worth 20 or 25 years?"

The anti-death-penalty advocate's statement is typically smug and self-superior:

"I think it's hard for the public to grasp this," UC Berkeley Death Penalty Clinic Director Elisabth Semel said. "People who've been convicted of murder have a better rate of success, that is a lower recidivism rate, than individuals who commit other types of crimes."
I am really sick of this "we are soooooo much smarter than the ignorant yokels who favor the death penalty" attitude.  The public grasps it very well.  It is not about numbers.  Given that a murderer deserves death for a particularly heinous murder, any risk at all of recidivism is too much.

Personal Jurisdiction

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As noted this morning, the US Supreme Court took up one civil case for full briefing and argument, Walden v. Fiore, 12-574.  The case is a Bivens action against a DEA agent.  The specific issue before the Court is the jurisdiction of a federal court in Nevada over a Georgia officer for events happening in Georgia.  The only connection to Nevada is the officers' knowledge that the plaintiffs lived there. The plaintiffs were professional gamblers traveling with a large stash of cash.  The Ninth Circuit majority opinion concludes:

Parole and Ex Post Facto

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The California Supreme Court today upheld the retroactive application of parole changes in Proposition 9 of 2008, Marsy's Law.  The decision is In re Vicks, S194129.

The law in this area is largely set by two US Supreme Court decisions, California Dept. of Corrections v. Morales, 514 U.S. 499 (1995) and Garner v. Jones, 529 U.S. 244 (2000).  (CJLF filed an amicus brief in Morales.)

Vicks is a poster boy for the kind of criminal whose release victims should not have to go back and oppose more than once in a great while, if ever.  He committed a string of violent offenses including kidnapping, armed robbery, and gang rape.  He received well-deserved sentences of life with parole and 37+ years, consecutive.  His minimum parole eligibility date was 2010 for 1983 crimes.

California's law of parole was once so criminal-friendly as to require preposterous annual parole hearings, even for multiple murderers.  This has been tightened up since, once by the law at issue in Morales and again in Marsy's Law.  Under the Morales and Garner precedents, a change in parole consideration intervals can apply retroactively if it does not add too much risk that a prisoner will be denied parole at a time when he would otherwise have been granted it.

Marsy's Law sets a presumptive interval of 15 years, but it allows some discretion for setting shorter intervals and for reconsideration upon receipt of new information or a change in circumstances.  The court has to make some pretty generous assumptions about how this discretion will be used to get under the "significant risk" bar.  The facial attack has been rejected, and Marsy's Law has been upheld for now, but we are not out of the woods.

News Scan

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CA Sex Offender Found on Campus, Freed the Next Day:  Corin Hoggard of ABC News reports that convicted sex offender and serial parole violator Michael Anthony Wyatt, 36, was arrested last week at a Buchanan High School in Clovis, California. Wyatt was arrested and taken to jail, then freed early the next day. He was on parole for assault and, over the past nine months, has been arrested and released from the county jail in Fresno 23 times. He is a violent repeat offender whose offenses include sexual battery. Due to AB 109, his parole violations were not considered serious enough to send Wyatt back to prison.

CA Governor Denies Parole for Manson Follower:  The Associated Press reports that California Gov. Jerry Brown overturned a state parole board decision Friday, denying former "Manson Family" member Bruce Davis' parole bid. Davis, 70, has been in prison for 40 years for his role in a 1969 killing spree sanctioned by Charles Manson. Brown cited Davis' refusal to take responsibility for his actions as influential in his decision to deny parole. Continued from this News Scan.

Massive AZ Inmate Fight Leaves 19 Injured: 
The Associated Press reports that 400 inmates were involved in a fight that broke out Sunday morning at a minimum-security unit of Arizona's State Prison Complex, Tucson. The violence, stopped by prison staff, left 17 inmates and two staff members injured.

Sex Offender Impersonating Cop Infiltrates NY Jails:  The Associated Press reports former Rikers Island inmate and registered sex offender, Matthew Matagrano was arraigned on Saturday for impersonating a corrections officer and gaining access to the facility. Matagrano, 36, posed as a corrections officer for at least a week and had access to access to Rikers Island, the Manhattan Detention Complex, and other prison facilities in New York. While inside, he associated with inmates, giving them cigarettes, and stealing a radio from an office. His motivation is unknown.

GA Supreme Court Upholds Death Sentence for Killer:  Chuck Williams of the Ledger-Enquirer reports that on Monday the Georgia Supreme Court unanimously upheld the death sentence for convicted killer Ward Anthony Brockman. Brockman was convicted of murder and attempted armed robbery in the 1990, resulting in the death of gas station manager Billy Lynn. Defense attorneys argued that the original sentence was invalid because the prosecution failed to prove the aggravating circumstances. The court, however, found him to be guilty beyond a reasonable doubt and upheld the original sentence. 

AZ Asks Supreme Court To Lift Execution Stay: 
The Associated Press reports that the state of Arizona is asking the U.S. Supreme Court to allow the execution of killer Edward Harold Schad, 70. The state's Attorney General's Office says the 9th U.S. Circuit Court of Appeals' stay of execution was issued illogically and lacked discretion. Schad, discussed in this post, is convicted of the murder of a man in August 1978. 

The Crime Decline

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Marc Fisher has this article in the WaPo regarding the dramatic decline in crime since the peak of the 1980s and the puzzlement and debate over the reasons.

It has become de rigueur in such discussions to briefly acknowledge that the tough sentencing reforms of the 1980s and 1990s are a substantial part of the reason but then immediately say something to detract from the import of that conclusion:  "Most studies agree that increases in incarceration explain part of the decline in violent crime, though Solberg and many criminologists say the warehousing of young men convicted of nonviolent crimes causes as many social problems as it solves."  But the people quoted in the story who actually live in a cleaned-up area don't seem to think so.

The result [of housing policies] is a very different population, said Joyce Robinson-Paul, a 32-year resident and the advisory neighborhood commissioner for the area. "The new neighbors are very quiet," she said. But "the real crime problem didn't leave until many of the dealers were arrested and went to jail."
In California, where we have elected a Governor and Legislature who cannot remember history and are determined to repeat it, we are seeing the trend in reverse.  In the FBI numbers for first-half 2012 versus first-half 2011 (a clean before-and-after on the realignment that took effect in October 2011), we see crime increases in California while national figures are flat.


Batman in Old York

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Batman's usual venue is, of course, Gotham City.  Gotham is a nickname for New York City.  However, the Caped Crusader recently handed a wanted man over to the police in the West Yorkshire town of Bradford, Russell Jenkins reports for the Times of London.

No SCOTUS Crim Action

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The US Supreme Court held a brief session this morning, announcing one opinion in a civil case and taking up one civil case.  Their next internal conference is March 15, and the next public session is March 18.  There are no criminal cases on the March argument calendar.  Zippo.

In one sense, I suppose, no news is good news.  When the US Supreme Court decides criminal cases, especially those from state courts, it is often engaged in the process of making up new constitutional restrictions that are not really in the Constitution, and the less it does that the better.  On the other hand, we have had substantial success in the last two decades in trimming back errors of old, such as pruning the exclusionary rule or enforcing Congress's 1996 habeas reform against the "massive resistance" of recalcitrant federal judges.  Much remains to be done in these areas, but the Court seems to be inclined to take a breather for now.

End of the World, Part IV

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We previously had these posts on the end of the world:

The first end of the world was May 21, 2011, based on a biblical calculation.

The second end of the world was October 21, 2011, based on a revised biblical calculation.

The third end of the world was December 22, 2012, based on the end of the Mayan calendar.

The fourth end of the world was yesterday.  The WSJ has an editorial today titled World Doesn't End, Obama Hardest Hit.  See the first post linked above for the allusion.

News Scan

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CA Inmates Serving Long Jail Sentences Under Realignment: A summary letter from the California State Sheriffs' Association reports that as of February 25, 2013, there are 1,109 county jail inmates who have been sentenced between 5 to 10 years in 52 counties. These offenders are most commonly sentenced for vehicle theft, commercial burglary, receiving stolen property, identity theft, and drug trafficking. There are also 44 inmates sentenced to more than 10 years in county jail. The longest sentence of 43 years in jail comes from Los Angeles County. A detailed spreadsheet of inmates with long jail sentenced can be viewed here.

CA Bills Introduced to Fix Realignment's MDO Loophole: Beatriz E. Valenzuela of the Contra Costa Times reports California Senator Bill Emmerson and Assemblyman Chris Holden have introduced two bills, Senate Bill 226 and Assembly Bill 1065 respectively, to end a Realignment loophole for mentally disabled offenders. SB 226 would evaluate offenders to both determine where their sentence should be served and what sorts of mental health treatment need to be provided before release eligibility. AB 1065 would mean parolees who have been classified as MDOs would remain under state, not county, supervision. Counties do not have the availability of resources to adequately treat MDOs. The implications of Realignment on MDOs is discussed in this CJLF Press Release, and this News Scan.

PA Jury Recommends Death for Torture Killer: Rich Cholodofsky of the Pittsburgh Tribune-Review reports a jury sentenced torture killing mastermind Ricky Smyrnes to death Thursday in Pennsylvania. Smyrnes and five roommates tortured and killed mentally disabled Jennifer Daugherty over the course of two days in February 2010. Daugherty was stabbed 24 times, three times fatally in the heart. The sexual and physical abuse Smyrnes suffered as a child, and his mental illness, did not justify removing the death penalty from the case. CJLF Legal Director Kent Scheidegger discusses the mental illness claim here. One roommate, Angela Marinucci, was sentenced to life in prison; Melvin Knight, who delivered the fatal stabs to Daugherty's heart, was sentenced to death. Westmoreland County Judge Rita Hathaway will sentence Smyrnes Friday at 1:30 p.m.. Smyrnes' attorney, Terrance Faye, will appeal the verdict. Continued from this News Scan.

CA Death Sentence Likely in Cold Case: The Associated Press reports a jury recommended Thursday that a judge sentence rapist, killer Jason Balcom to death. In 2004, his DNA was matched to the July 1988 rape and murder of pregnant newlywed Malinda Gibbons. He gagged, bound, sodomized, raped, and fatally stabbed her. Balcom has since been convicted of two rapes of woman, one days after killing Gibbons and the other a month later. Case discussed in this News Scan.
Jennie Rodriguez-Moore reports for the Stockton Record:

A 39-year-old man was arraigned Thursday for the rape, murder and robbery of his own grandmother.

Jerome DeAvila, a registered sex offender, was arrested Tuesday following the discovery of his 76-year-old grandmother's body in the backyard of her southeast Stockton home.

The victim, identified as Racheal Russell, was found by a neighbor inside a wheelbarrow after DeAvila's uncle had gone to check on her.
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DeAvila was an AB109 inmate, said Deputy Dave Konecny of the San Joaquin County Sheriff's Office. The law shifted responsibility of "non-violent, non-sexual and non-serious" felony offenders from state prisons to county corrections in October 2011.

Konecny said DeAvila had been placed on a parole hold for his failure to register. The charge is a misdemeanor charge.

He said DeAvila was released on a court cap, a mandate to reduce jail population when it reaches capacity.

Realignment was sold on the misleading representation that it did not apply to violent, sexual, or "serious" felons.  But legislation has indirect effects beyond its direct application.  By shifting prisoner population to jails that were already overcrowded in many counties, realignment caused release of many inmates who should have been in county, including violent sex criminals.

People with sense have known the whole time that realignment would increase crime and that the predictions to the contrary by "experts" were political-correctness-driven hooey.  Mrs. Russell's horrible death is grisly confirmation of that.

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