April 2013 Archives

Otis v. Dershowitz:

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Tonight at 9:00 pm Eastern on CNN's Piers Morgan show, our resident masterblogger and former Chief Deputy U.S. Attorney William Otis will debate Harvard Law Professor Alan Dershowitz on whether the death penalty should be available for the Boston Marathon bomber.  Check your local listings.  It should be interesting.

Attorneys General

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In many languages, adjectives following their nouns is the normal order.  It is not the norm in English, though, and the term "attorney general" trips people up as a result.  Bryan Garner has this LawProse Lesson on the subject.

In American English, attorneys general is the correct plural form. The British prefer attorney-generals (the Brits have long hyphenated the phrase).

Generally, a compound noun made up of a noun and a postpositive adjective (one that follows its noun) is pluralized by adding -s to the noun, as with heirs apparent and causes of action. But we add -s at the end of closed compounds, as with all words ending in -ful {spoonfuls, handfuls}.
Marc Thiessen has this column in the WaPo with the above headline.  He notes that nearly three years ago, Mr. Holder declared that legislation altering the Miranda rule was "a new priority" and "big news."  Then nothing happened.

Why are we still operating under the same flawed legal framework for questioning of suspected terrorists that Holder pledged to fix three years ago? Why didn't the Obama administration follow through on Holder's promise to work with Congress to change the law? Why are we once again reading a suspected terrorist his Miranda rights before intelligence officials are done questioning him for national security purposes?
Does Congress have the authority to alter the Miranda rule?  Let's go back to the source:

It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities.  Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted.   Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.  We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.  However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.
Miranda v. Arizona, 384 U.S. 436, 467 (1966).

Who Funds Terrorism?

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You do.

Your tax dollars at work, ladies and gentlemen.  From the Boston Herald.com:

The Tsarnaev family, including the suspected terrorists and their parents, benefited from more than $100,000 in taxpayer-funded assistance -- a bonanza ranging from cash and food stamps to Section 8 housing from 2002 to 2012, the Herald has learned.

"The breadth of the benefits the family was receiving was stunning," said a person with knowledge of documents handed over to a legislative committee today.

I argued in my last post that prosecutors should not rush into a behind-closed-doors deal with Tsarnaev to drop the death penalty in exchange for his information (if any). I now feel more confident than before in my advice, since it would seem that such relevant information as there may be can be easily obtained at the nearby welfare office.

No Quick and Dirty Deals

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Understanding that their client faces the realistic possibility of execution, Dzhokhar Tsarnaev's lawyers, now including death penalty expert Judy Clarke, are reported by NBC News to have hustled into discussions with the government to take capital punishment off the table in exchange for Tsarnaev's cooperation.

I was a federal prosecutor for a long time.  I was also, at one point, a member of White House Counsel's Office concerned, as everyone in the Office is, with national security.  I would not even consider this "deal."

First, it's not at all clear that Mr. Nicey has anything worthwhile to tell us.  The defense story thus far is that he's nothing but the last-minute, teenage tag-along to his older brother, who did such planning as there was.  Whether that's true or not, and I have no idea, there is not a single reason in the public domain to believe that Tsarnaev ever had actionable information, and still less information that hasn't become stale.

Second, so far as is known, we have not come close to exhausting other sources of information  --  his friends, classmates, his brother's wife, his uncles, his computer, his correspondence, credit card statements, school records, Facebook  entries, and a great deal more.  Why give up something of value for information (if there is any) you can very likely get from alternative sources?

Third, with any known or even rumored exigency having passed some time ago, rushing into a deal is hardly essential (and it will get less essential as time goes by). Thus, if a deal were ever to be considered, the time to do it would be when the government is in a stronger position  --  i.e., at the minimum, when the government has finished what is certain to be a powerful case at trial and little Dzhokar has to sit there waiting to see if he gets a death verdict.  That will focus his attention much more directly than the off-in-the-distance threat he sees now.

Defense lawyers ceaselessly complain that plea bargaining is rigged in favor of the government.  Now is the time to give them their answer:   In this high stakes showdown, give no deals to this devil and let a jury do what the Framers designed it to do.

How Good is the Neuroscience?

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One of the most pervasive and enduring problems with all of the fancy fMRI studies that are done are the very small sample sizes used.  It's not unusual to have 20, 15 or even 8 subjects in a study.  Despite these severely underpowered studies, claims abound that neuroscience has shown X to be true with hardly a word mentioned about the significant limitations inherent in these studies. 

The use of small samples is finally getting some attention.  The May issue of Nature Reviews Neuroscience has the article Power failure: why small sample size undermines the reliability of neuroscience.  The abstract:

A study with low statistical power has a reduced chance of detecting a true effect, but it is less well appreciated that low power also reduces the likelihood that a statistically significant result reflects a true effect. Here, we show that the average statistical power of studies in the neurosciences is very low. The consequences of this include overestimates of effect size and low reproducibility of results. There are also ethical dimensions to this problem, as unreliable research is inefficient and wasteful. Improving reproducibility in neuroscience is a key priority and requires attention to well-established but often ignored methodological principles.

It's about time. 

Psychotherapy for Sex Offenders

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R. Karl Hanson, one of the preeminent scholars in the field of the treatment of sex offenders, has a short review article in the April issue of Evidence-Based Mental Health, which abstracts the latest Cochrane review of the literature.   What does the Cochrane review say?  Here's the conclusion:

Currently RCT evidence does not support that psychological interventions reduce the risk of sexual offending.  High-quality RCTs with minimal bias and long-term follow-up in the community are required to identify interventions that can reduce sexual reoffending rates.

And Dr. Hanson's commentary:

The current review is likely to have little impact on practice.  Although their search was thorough and their analysis competent, there was not enough evidence to make strong conclusions.  Furthermore, the majority of the available RCTs did not examine sexual recidivism, but only intermediate outcomes (such as social anxiety), which may or may not be valid risk indicators.

So the data isn't all that great and we shouldn't throw the baby out with the bathwater.  That's fine, but what the Cochrane review said was that current evidence does not support the notion that psychological interventions reduce sexual reoffending.   We can believe in our heart of hearts that it should - and maybe it does and those studies just haven't been done yet - but as scientists we need to accurately report what the data shows.  Dr. Hanson was accurate in his commentary but all too often what scientists want to be true clouds what the data actually shows. 

Let the Jury Decide

Should Dzhokhar Tsarnaev get the death penalty?  Some believe his crimes so grotesque that only capital punishment will suffice.  Others oppose the death penalty in all circumstances.  Still others would consider it, but have doubts, and think there might be mitigating circumstances that have not yet appeared, perhaps related to Dzhokhar's youth, or to the influence that may have been exerted by this older brother.

This is why we have juries.  The correct answer in this case is for the Justice Department aggressively to seek the death penalty, and allow the defense fully to give its answer.  Then let the jury decide.

This case has enormous significance to a county in a war with Jihadist terrorism. It has numbing moral stakes that were thrust before our unwilling eyes in the gruesome pictures we saw two weeks ago.  Such a case should not be resolved by a backroom plea bargain.  Seldom in our history has there been better reason to use what the Founders gave us  --  a public trial before a jury.

Spell it all out, every awful thing Dzhokhar did, and everything that might counsel mercy.  Dzhokhar Tsarnaev is an American citizen and deserves an open, public judgment.  More importantly, so do we.

I make the case in my op-ed published this morning in Forbes.

Florida Timely Justice Act of 2013

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The Florida Legislature has passed the Timely Justice Act of 2013 to speed up the execution of capital judgments in that state.  AP has this story.  For all the hyperventilating from the anti side, the changes are quite modest.  Probably the most important reform is require the Secretary of Corrections to issue death warrants, rather than placing that function exclusively with the Governor personally, and to place some time limits on that process.  The reform is long overdue.

The Legislature has completely caved on the Florida Supreme Court's holding that the Court has the exclusive power to regulate collateral review procedure under the constitutional provision authorizing the Court to make rules of procedure.  The Court declared the Legislature's reform of collateral review procedures unconstitutional on this theory, and this bill meekly repeals the reform.  What Florida needs is a constitutional amendment clarifying that the Court's rule-making power is supplemental and subordinate to the Legislature's retained authority to regulate procedure by statute.

Libertarians Need to Find that Rock Again

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I recently posted that libertarians, after a shrewd recourse to silence in the immediate aftermath of the terrorist murders in Boston, have started blasting the very police methods that made possible the relatively quick capture of the surviving killer.

As if on cue, former Rep. Ron Paul now tells us that the police manhunt "should frighten us as much or more than the attack itself."

That's it, Mr. Paul.  Conducting what I'm perfectly willing to call a dragnet to catch two Jihadists who blew apart an eight year-old boy and two adults, and disfigured many other people  --  and who for all that was known at the time had left similar mutilation bombs elsewhere in the city  --  is as bad or worse than the bombing itself.

What is the matter with this guy?  It is one thing to be troubled, even very troubled, by the increasing surveillance, loss of privacy, wobbly intelligence, and ominous government-everywhere encroachments we see building up around us.  It is another to have no sense about what is needed when confronted with the imminent threat that the night will become even more of a hellish war zone than the day.  If Mr. Paul's careless, victims-go-to-hell rhetoric is any indication, libertarians might think about staying under that rock a bit longer.

News Scan

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CA Suspect Sought for Fatally Stabbing Child:  Doug Stanglin of USA Today reports that a man described as muscular and 6-foot-tall is being sought by police in Northern California for the stabbing murder of eight-year-old Leila Fowler, 8, in her Valley Springs home on Saturday. The suspect fled after he was seen by Leila's 12-year-old brother.  Calaveras County Sheriff's have intensified security around schools, following a fruitless house-to-house search of the rural community.  The sheriff's report they have gathered DNA evidence as well as finger prints and warn people to be on the alert for a "muscular, white or Latino male, 6 feet tall, with long, graying hear, wearing a black shirt and blue pants."

CA Bill Allowing Non-Citizens to Serve as Jurors Moves Forward: 
Judy Lin of the Associated Press reports that on Thursday the California Assembly passed AB1401, which would allow legal non-citizen residents of the state to serve on juries. The bill was introduced by Bob Wieckowski, D-Fremont, who says he hopes the bill will create larger juror pools. The bill passed on a nearly party line vote 45-25, and is called "misguided and premature" by critics.  Assemblywoman Diane Harkey, R-Dana Point, argued that there is no shortage of jurors making the bill unnecessary.

N.C. Will Require Pimps Trafficking Minors to Register as Sex Offenders:  Ben Brown of the Port City Daily News reports that Senate Bill 122 was signed into law last Wednesday by North Carolina Governor Pat McCrory.  As of December 1,  pimps convicted for selling minors into prostitution will be required to register as sex offenders. The bill sends a particularly strong message to those who have made North Carolina one of the top ten human trafficking states in the country.
Mike Rogers, Chairman of the House Intelligence Committee, has some questions for Eric Holder about how it came to pass that a Magistrate Judge, with an Assistant US Attorney in tow (or was it the other way around?) manages to show up in Dzhokhar Tsarnaev's hospital room to make sure he lawyers up, and thus clams up, in the middle of what had been a productive FBI interrogation about Dzhokhar's imminent terrorist plans  --  plans that we now know included a trip to Times Square to continue the fun.

Chairman Rogers' letter reads, in part:

I would like more information as to who determined that the proceedings [in a hospital involving the magistrate judge who Mirandized Rogers] would occur at that time and place while [FBI] questioning was still ongoing. I have received information suggesting that the Magistrate Judge may have appeared sua sponte to conduct the proceeding in a way that may have not been fully coordinated with the intelligence needs of the FBI. My understanding is that the normal practice places the duty to take the defendant to court (and accordingly discretion as to timing consistent with the rules) on law enforcement, and not the court.

Cause of Death

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The questions presented in Burrage v. United States, No. 12-7515, are now up on the Supreme Court website. The issues accepted by the Court are:

1. Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement.

2. Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed "contributed to," death by "mixed drug intoxication," but was not the sole cause of death of [the] person.
The question they didn't want to hear was:

3. Whether an officer can testify that the defendant is a "known" heroin dealer because the officer couched it as necessary to explain why he put the defendant's picture in a photo lineup.

Pure Bragging

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The University of Chicago Law School has for many years been one of the nation's leaders, and is known to be more open to conservatives (or at least less hostile to them) than the other top schools.  It holds its reunion this weekend.

Saturday afternoon, the Class of 1983 will host a "Distinguished Alumni Panel Discussion."  Among the speakers will be the one-time star student of then-Professor Antonin Scalia.  This speaker was, among other things, the first female Chairman of the Party of the Right while an undergraduate at Yale.  While at Chicago, she was a co-founder of the Federalist Society, which has grown to become probably the country's leading source of conservative and libertarian legal thinking.

In 2009, she was awarded the Bradley Prize in a ceremony at the Kennedy Center (among other recipients have been George F. Will and Charles Krauthammer).  By that time, she had already served as Justice Scalia's first clerk at the Supreme Court; Associate Deputy Attorney General under President Reagan; Associate White House Counsel under President George H. W. Bush; and General Counsel of the Department of Energy under President George W. Bush.

Possibly her most problematic choice came 20 years ago this October, when she married a warmed-over Assistant US Attorney for the Eastern District of Virginia.  But warmed-over or not, I'll be a proud member of the audience when my wife, the spectacularly brilliant and courageous Lee Liberman Otis, gives her talk to her fellow Chicago alums.


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The US Supreme Court took up a federal criminal case from Iowa.  Here is the Eighth Circuit's summary of its decision:

113602P.pdf 08/06/2012 United States v. Marcus Burrage U.S. Court of Appeals Case No: 11-3602 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Benton, Author, with Bye and Beam, Circuit Judges]
Criminal case - Criminal law. District court did not err in rejecting defendant's proximate cause instructions as this court has held that a showing of proximate cause is not required in a prosecution under 21 U.S.C. Sec. 841(b)(1) for distributing heroin resulting in death; use of "contributing cause" language was appropriate under this court's case law; prosecutor's cross-examination of defendant and his closing comments as to whether the voice on a tape sounded like defendant were not improper; evidence was sufficient to support defendant's conviction; even if a police officer's testimony regarding defendant's status as a drug dealer was hearsay, its admission was harmless in light of the other evidence in the case.

The Supreme Court limited its review to "questions 1 and 2 presented by the petition."  These are apparently the causation issues, not the evidence issues.

The Court dumped Boyer v. Louisiana, a speedy trial case.  As is normal for dismissals "as improvidently granted," the opinion of the Court is a one-liner.  Justice Alito, joined by Justices Scalia and Thomas, explains why they concur in the dumping.  Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, dissents.

The cross-petitions in the Phillips case, previously noted in this post, have been denied without comment, after six relists.  Wonder what went on behind the scenes.
The title of this post suggests more antagonism toward libertarianism than I feel or it deserves.  I do think, though, that libertarians need to ask themselves some questions in light of the Boston Marathon bombing and the capture of the surviving suspect.

The authorities caught him because of the widespread use of surveillance cameras, cell phone tracking, a massive police presence, and thermal imaging of private property.  Every one of those things has been harshly criticized by libertarians as choking off freedom and paving the way to Big Brother Government.

These concerns are not without merit.  There are a number of areas where libertarians are sounding a worthy alarm.  The proliferation of strict liability (generally regulatory) crimes and the infiltration into prosecutorial decisions of the blob-like urge-to-control should worry all of us.

But allowing little children to be blown apart in the street is too high a price to pay for what seems often to be more attitude than sobriety in looking at what we face.  We did not ask for this war.  It was thrust upon us.  If we are to win, we need to learn some lessons about how the fight must be waged.

In Reason Magazine, a libertarian publication, the authors agree that we need to learn something, but their syllabus for the course is considerably different from mine. And one suspects there's a reason they laid low until more than a week after the bombing.
Up to now, I have not heard anyone ask how, exactly, a magistrate judge and an Assistant US Attorney happened to wind up in the Boston bomber's hospital room to conduct an initial appearance hearing, and to do so before the pre-Miranda interrogation was anything close to competed.

Paul Mirengoff at Powerline is the first to show some curiosity:

[A]re judges supposed to read suspects their Miranda rights while they are in police custody? I wouldn't have thought so, and not just because I haven't seen it done on TV. As Bill Otis reminds us, Miranda restricts the government's ability to use evidence collected absent the warning. But it's the government's call as to whether it wants to run the risk of having evidence excluded in order to obtain potentially valuable evidence from a suspect. 


I can't help but that suspect that it was the Obama administration that decided Tsarnaev should receive the Miranda warning. After all, wasn't it the prosecutor who brought the judge to Tsarnaev's hospital room in the first place? And isn't it almost certain that the local prosecutor, an assistant U.S. attorney, acted on instructions from the highest level of the Justice Department? Line prosecutors don't make decisions about how to treat terrorists in high profile cases when there is time to consult the DOJ.

Bingo.    As Paul concludes:

The end of the FBI's ability to obtain information from Tsarnaev is only the latest consequence of the left's exaltation of undue process over considerations of national security and public safety. For congressional lawmakers who are demanding an explanation for the handling of the Tsarnaev interrogat[ion], there it is.


The WSJ's Saturday Essay this week is by U. Penn. Professor Adrian Raine on neuroscience and crime.  This is not (and not intended to be) a balanced look at the research with its limitations and criticisms.  Raine is an advocate.

Take the case of Donta Page, who in 1999 robbed a young woman in Denver named Peyton Tuthill, then raped her, slit her throat and killed her by plunging a kitchen knife into her chest. Mr. Page was found guilty of first-degree murder and was a prime candidate for the death penalty.

Working as an expert witness for Mr. Page's defense counsel, I brought him to a lab to assess his brain functioning. Scans revealed a distinct lack of activation in the ventral prefrontal cortex--the brain region that helps to regulate our emotions and control our impulses.

In testifying, I argued for a deep-rooted biosocial explanation for Mr. Page's violence. As his files documented, as a child he suffered from poor nutrition, severe parental neglect, sustained physical and sexual abuse, early head injuries, learning disabilities, poor cognitive functioning and lead exposure. He also had a family history of mental illness. By the age of 18, Mr. Page had been referred for psychological treatment 19 times, but he had never once received treatment. A three-judge panel ultimately decided not to have him executed, accepting our argument that a mix of biological and social factors mitigated Mr. Page's responsibility.

Raine apparently considers this to be a correct result.  It is not, IMHO, unless Page's condition actually rendered him lacking in free will, which I very much doubt.

A more profound understanding of the early biological causes of violence can help us take a more empathetic, understanding and merciful approach toward both the victims of violence and the prisoners themselves. It would be a step forward in a process that should express the highest values of our civilization.
In this passage we see the danger.  Some people slip much too easily from explaining to excusing.  A scientific test that merely shows some factor correlated with a propensity to commit acts of violence should not be regarded as mitigating.  As long as a person has the choice to commit the crime or not, he should be held fully responsible for the choice.  Letting murderers and rapists off easy on weak excuses is most definitely not "the highest values of our civilization."  It is a step on the downward spiral.

I noted yesterday that the vaunted "public safety exception" to Miranda's warning requirements went down the drain when a federal magistrate judge told the surviving Boston bomber, in his hospital room, that he had the right to remain silent.  This was before the interrogation team had finished its questioning, and as he was beginning to provide important information.  He immediately stopped talking, so now we'll never know what else he might have been willing to divulge.

One of our readers has taken me to task for ignoring Fed. R. Crim. P. 5(d)(1).  I explained that the Rule creates a right not to make a statement specifically during the initial appearance, not a general right to silence.

Apparently I am not the only one who was taken aback at how carelessly the interrogation was halted by the magistrate judge (possibly with DOJ's acquiescence, although this is unclear).  Rudy Giuliani, a former Deputy Attorney General, and a man thought to know something about dealing with terror attacks, shares my consternation.  This report carries the story:

Former New York Mayor Rudy Giuliani said it was "ridiculous" that a judge stopped the questioning while the 19-year-old was talking to FBI agents.

And House Intelligence Committee Chairman Mike Rogers called the decision to intervene a "God-awful policy."

Lawmakers are demanding to know why Tsarnaev, who has confessed to being involved in the planting of two bombs near the Boston Marathon finish line, was read his Miranda rights in the middle of his interrogation.

"That's just mind-boggling," Giuliani said in an interview with Fox News' Greta Van Susteren.

"This guy is kind of telling you about how he's coming to New York and do a bombing, a judge walks in and we cut off the questioning?" Giuliani said. "What are we, crazy?"

Great question.  And how much did the higher-up's at DOJ know about this? 
Ben Tinsley of the Jacksonville (Texas) Daily Progress has this thoughtful column with the above subtitle.

Under Construction

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We are doing some upgrades to the blog.  There may be a few glitches along the way.

The Wonderful Tsarnaev Family

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How many times have we seen, behind some young hoodlum, a dysfunctional or fragmented family, or none at all?  The Tsarnaev boys go well beyond what one would describe as "hoodlums," but it would appear that their parenting had more than a few problems.  They were not, so it seems, problems of the standard sort; it wasn't abuse or bad treatment.  It was the opposite:  Mom and pop saw nothing to correct in the little darlings.

Not surprisingly, then, nothing got corrected.

None of this is to dilute either son's responsibility.  Both were adults, neither had any known mental or emotional problems, and each seemed to be able to negotiate the world successfully.  But see-no-evil parenting turns out to be the road to, well, seeing no evil.  Unfortunately, a lot of evil was being missed.

Hat tip to notablogger for sending me this Slate article

Great News for Criminal Defense

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A little over a year ago, I wrote about a devastating blow to criminal defense.  The cruelties of the capitalist ruling class had taken down one of the few remaining avenues for defendants to explain why they are forced to act as they do.

I'm delighted to say that this depredation has been remedied.  Criminal defense will once again be able to rely on something beyond "urban survival syndrome" and certain, shall we say, unfortunate interactions with government witnesses.

Or, to put it more directly, the core of mental state defenses has returned.

News Scan

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FL Man Sentenced to Death:  The San Francisco Chronicle reports that a judge sentenced  Victor Guzman, 40, to death in Florida Thursday. Guzman was convicted last year of the December 2000 fatal stabbing of an 80-year-old woman. The victim was found naked in her home with 58 stab wounds. In 2004, Guzman's DNA was matched to a sample taken from the scene. His DNA also linked him to the 2002 rape of a 12-year-old girl.

KY Killers Will Have DNA Evidence Tested With New Methods:  Andrew Wolfson of the Courier-Journal reports that a unanimous Kentucky Supreme Court decision on Thursday set precedent allowing convicted murderers access to DNA testing results that was not available at the time of their trials.  Garr Keith Hardin and Jeffrey D. Clark were convicted in 1995 for the 1992 murder of Rhonda Sue Warford. As a result of the court's decision they will be given access to new DNA tests of hairs found clasped in the victims hands that were not available when they were first tried. Kentucky had required post conviction DNA tests only for death penalty cases.

IN Man Charged With 1977 Murder:  Fox News and the Associated Press report that Michael V. Ackerman was arrested Wednesday in Indiana for the January 17, 1977 murder of his then-girlfriend's 18-month-old son. The cause of death was originally listed as multiple injuries/undetermined. The child's sister, who was 3-years-old at the time of the murder, led to the reopening of the case. In February, she told authorities that she had been present during the killing. Ackerman is charged with second-degree murder and could face 15 to 25 years or life in prison.

All By Themselves? Part II

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I wondered the other day about how the Boston Marathon bombers financed themselves when neither held much of (or any) job and their parents had no discernible excess of cash.  It struck me as possible that they were being financed by others, either here or abroad, who do not wish our country well.  If so, that would mean a wider plot than we are currently being led to believe.

I appear, for the moment, to have been overly suspicious.  The greater likelihood now is that there was no sinister or even very unusual source for their money.  The source is as mundane as it is depressing.

The source, that is, is us.  Subtitle:  The More You Hear About the Welfare State, the Worse It Gets.

Incarceration and Drug Offenses

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Prof. John Pfaff has an interesting post up over at PrawfsBlawg that highlights the common misconception that the incarceration rates in the United States are largely due to drug offenses.  As he discusses:

Two things jump out on this graph. First, after a rapid rise the percent of drug offenders peaks at 21.8%, in 1990. Second, from 1990 forward the fraction steadily declines, with only a few upticks here and there, to 18.4% in 2008; by 2009, it was down to 17.8%. In other words, in 1990, nearly 80% of all prisoners were non-drug offenders, and by 2009 that percent had risen to more than 84%. And almost all of these other inmates are serving time for violent or property offenses.
Adding in the federal system, which is much more drug-focused--about half of all federal prisoners are serving time for drug crimes--does not change numbers or trends much: 24.1% in 1990, 22.1% in 2009. This is unsurprising: despite the extensive (in fact, quite excessive) attention it receives from legal academics, the federal system held only 13.5% of all prisoners in 2011, and until the 2000s it wasn't even the largest prison system in the country, lagging behind California.

Since this data is presumably derived from publicly available sources, one wonders why it has taken so long for the message to get out. 

Eyewitness Testimony in Oregon

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The Federalist Society's State Court Docket Watch has this article by Daniel Re on the Oregon Supreme Court's decision last November rewriting the rules on eyewitness testimony.

More on Recess Appointments

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The Obama Administration has filed its certiorari petition in the recess appointments case, previously discussed in this post.  Lyle Denniston has this post at SCOTUSblog.

The case arises from President Obama's unprecedented assertion of the authority to make "recess appointments" when he decides the Senate is actually in recess, even though the Senate itself conducts "pro forma" sessions so as not to be in recess.

The petition assails the Court of Appeals decision on its overbroad holding but curiously omits any significant defense of the President's remarkable assertion at the root of the case.  The three subheads of Reasons for Granting the Petition are:

A. The President's Recess-appointment Authority Is Not Confined to Inter-session Recesses
B. The President May Fill a Vacancy That Exists During a Recess of the Senate, Even If the Vacancy Did Not First Arise During That Recess
C. The Court of Appeals' Decision Would Have Serious and Far-reaching Consequences

All of those things could be true and yet the judgment below, even if not the opinion in its entirety, would still be obviously correct.

As discussed in my previous post, I think this is one of those rare circumstances where a summary affirmance is in order.

A Surviving Victim's Story

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(Updated) Texas murderer/kidnapper/rapist Richard Cobb has been executed. The US Supreme Court denied a stay Thursday afternoon.  No dissent is noted. Maegan Prejean had this story earlier this week for KTRE:

The state of Texas has set an execution date for an East Texas man. Richard Cobb of Rusk was convicted of kidnapping and murder in 2002. KTRE spoke to one of the victims who escaped the tragedy he caused.

Nikki Daniels escaped abduction, sexual assault, and death. She was and still is a brave woman who will be present for the execution of Cobb Thursday.

"I feel that I was put in a victims place that night but I came out a survivor," Nikki Daniels said.

She's a survivor who will never be the same emotionally or physically.

News Scan

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GA Killer May Face Death Penalty After All:  Kate Brumback of the Associated Press reports that a federal appeals court lifted the stay of execution for killer Warren Lee Hill of Georgia. Hill's execution was blocked in February, based on claims that he was mentally disabled and therefore ineligible for the death penalty. A three-judge panel of the 11th U.S. Circuit Court of Appeals decided 2-1 that Hill's challenge was directed at his eligibility, not his guilt; a challenge he was not allowed to make because his claim for exemption on grounds of mental disability had been made previously. A new execution date can now be set based solely on the availability of execution drugs in the state. Continued from this News Scan.

CA Fire Camps to Receive County Offenders:  Don Thompson of the Associated Press reports that the Riverside County Board of Supervisors approved a five-year contract this week that will send a maximum of 200 of its offenders to state-run fire camps. The CAL FIRE program uses specially trained inmates to fight wild fires, deal with floods and other emergency situations. Statewide, the inmates generally log about 2.5 million hours in a year and save the state about $80 million annually.

GA Murderer Sentenced to Death:  Marcus K. Garner of the Atlanta Journal-Constitution reports that Jeremy Moody, 35, has been sentenced to death in Fulton County Georgia. Moody pleaded guilty last week to the April 2007 murders of two teenagers. Both victims were found stripped and fatally stabbed with a screwdriver in the head and neck. The girl, age 13, was fatally stabbed 17 times while being raped. The 15-year-old boy was stabbed nearly 40 times. Fulton County Superior Court Judge Christopher Basher gave Moody two death sentences in addition to three consecutive life sentences and 40 years prison time.

CA Counties Oppose Inmate Releases:  Rina Palta of KPCC News reports that California counties are not willing to take in any more inmates under Realignment. The state must submit a plan to a federal court by May 2 that will reduce its prison population by 9,000 by the end of the year. Los Angeles County Chief Probation Officer Jerry Powers told the Los Angeles Board of Supervisors Tuesday that counties would not accept any plan that would either realign more prisoners to jail or release state offenders early.

So Much for the Public Safety Exception

Kent and I have noted, here and here, that Miranda does not create a freestanding right to be warned before custodial questioning.  Miranda is an admissibility case; if a defendant's custodial statement is to be admitted, it must be preceded by the warnings.

The theory of the exception to Miranda created in Quarles was that the authorities may legitimately decline to, in effect, invite the suspect to clam up about information immediately vital to public safety.  They may delay the warnings until after (an undefined) reasonable time in which they will have had the chance to obtain such information.

Someone needs to tell this to federal magistrate judge Marianne Bowler, who decided on her own to give the warnings before the interrogators were finished their job.

The surviving bomber of course immediately clammed up when the warnings were given.  Who knows what information we will now never get?

Ineffective Assistance and Funding

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The problem of ineffective assistance of counsel is all about funding, some would have us believe.  See, e.g., this report from the Brennan Center. If a defendant had the kind of lawyer rich people would hire, we wouldn't have these ineffective assistance claims, right?

John Christoffersen reports for AP:

Kennedy cousin Michael Skakel launched a barrage of criticism Thursday against the attorney who represented him at his murder trial, saying he failed to track down key witnesses while having fun and basking in the limelight.

Skakel was convicted in 2002 of killing his Greenwich neighbor in 1975 after a trial in which he did not testify. He testified Thursday in his latest appeal, arguing that trial attorney Michael Sherman failed to competently defend him.

Skakel's current attorney says Sherman got caught up in the limelight of the case and failed to prepare. Sherman rejects that claim and says he did all he could to prevent Skakel's conviction.
  A bit more response to the ACLU-subsidiary's attack on California Senate Bill 779.  Their email is appended to this post.

   During the Prop 34 campaign, the proponents were running around saying things like "This is an opportunity to have a debate on the death penalty."  Okay, we had the debate, and the people decided to retain it.

    With repeal off the table, the choices are to keep the ineffective, expensive status quo or implement the reforms to make the system work.  SB 779 is a broad reform to remove the many unnecessary obstacles to implementation of the death penalty while keeping and improving needed reviews.

    The most important reform is state habeas corpus.  This review is for claims based on facts outside the record, and it belongs in a trial court.  No other state does it like we do.  The state supreme court mulls over it for years and then issues a one-paragraph order that just says whether the claims are defaulted, denied on the merits, or both.   A trial court decision that actually addresses the claims would be far better.

    Also, most cases should only get one state habeas review.  Randy Kraft is on his 10th, even though he was caught with the body of his last victim in his car.  Repeated reviews should be reserved for substantial claims of actual innocence.

    Various other reforms are also included such as clarifying that the Administrative Procedure Act does not apply to execution protocols, abrogating 1DCA's erroneous decision.

    Now, as for the gas chamber and Minsker's ridiculous statement:

Delaware DP Repeal Stalls

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AP reports:

A bill to repeal Delaware's death penalty stalled in a House committee Wednesday after barely clearing the Senate last month.

Members of the Judiciary Committee took no action on the measure after it appeared it would fail to win passage.

*                         *                       *
Attorney General Beau Biden and several other law enforcement officials argue that Delaware's death penalty is fairly and judiciously applied, even though supporters of the bill note that people sentenced to death in other states have later been exonerated.

"Is there something that's broken in our system that I'm not aware of?" asked Rep. John Mitchell, D-Elsmere, a retired police officer.

"I'm still convinced that Delaware's death penalty is working as it should," Mitchell said.
My statement to the Delaware committee is here.
My last entry concerned Princeton Professor Emeritus Richard Falk, who has been gracious enough to tell us, even as the Boston bombing victims (such as is left of them) are being buried, that they brought it on themselves by living in the Imperialist Leviathan.

Now comes Florida Atlantic Professor James Tracy to "correct" Professor Falk.  The victims didn't bring the bombing on themselves, because there was no bombing.  It was all staged  --  an evacuation drill. 

In [Tracy's] blog, which isn't affiliated with FAU, Tracy argues that the amount of damage captured on video cannot be reconciled with the homemade bombs that authorities say caused the damage.

More likely, the tenured professor says, what happened in Boston was a "mass casualty drill."

In an April 23 posting entitled "Witnessing Boston's Mass Casualty Event," Tracy contends that "photographic evidence of the event suggests the possibility of play actors getting into position after the detonation of what may in fact have been a smoke bomb or similarly benign explosive."

You can't make this up.  You can't make it up, that is, unless someone is paying you to be a "professor."


"SAFE California" is an organization set up to push last year's death penalty repeal initiative.  Any doubt about who they really are is dispelled by the fine print at the end of the emails they send out: "'SAFE California' and 'Justice that works for everyone' are Service Marks of ACLU of Northern CA."

Now that California voters have rejected repeal of the death penalty, the question facing the Legislature is whether to stick with the status quo, which everyone agrees is a huge, ineffective waste, or enact the reforms that will save time, save money, and improve justice in one sweep.  Senator Joel Anderson has introduced a pair of measures, SB 779 and SCA 13, to do just that.  These are broad-ranging reforms that will address the problems that have needlessly held up enforcement of the death penalty, while maintaining and improving the reviews of capital cases that are actually needed.  [I wrote parts of it, BTW.]

One minor provision of the measure addresses the fact that California law permits the gas chamber as an alternative method of execution.  Given that the alternative exists in current law and inmates have chosen alternative methods in other states, it needs to be operational.

The ACLU-puppet "SAFE California" has focused on this provision in their attack on the measure.  I have copied their email after the break.  For one particular aspect of their email, I will quote Carl Adams, the plain-speaking District Attorney of Sutter County and President of the California District Attorneys' Association:

   I also think it is fair comment to quote Natasha Minsker's e-mail on behalf of the A.C.L.U.  She writes, in part:

   "The California District Attorneys Association and Senator Joel Anderson of San Diego have introduced a bill to bring back the gas chamber. Yes, you read that right: after the SAFE California Campaign nearly succeeded in replacing the death penalty, the District Attorneys of California respond by proposing to take our state back to an even darker age."

   What she describes as the anti-death penalty campaign "nearly succeeding in replacing the death penalty" was in fact a simple loss.  It is the A.C.L.U. who is arrogantly out of touch with the will of the people of California who want a death penalty that works and while those concerned with public safety work to fulfill the will of the people of California, extremist groups like the A.C.L.U. continue to broadcast their minority viewpoint.  It would be like Mitt Romney proclaiming that he "nearly succeeded in replacing President Obama" and demanding to have the country follow his ideas.  Everyone would look at him as arrogantly crazy and that is how the A.C.L.U. should be viewed.
When the U.S. Supreme Court makes a new rule of law favoring criminal defendants, it applies to all cases not yet final on direct appeal.  If the rule is one of substance rather than procedure, it applies to cases final on appeal but pending on habeas corpus as well.

How about when a state supreme court corrects a misinterpretation of the law by lower courts, an error that had favored defendants?  Does the defendant have a vested right to the case law as it existed at the time of the crime?

The Ex Post Facto Clause prohibits legislatures from enlarging the definitions of crimes or eliminating defenses retroactively.  For case law, the picture is more muddled.  The case of Bouie v. City of Columbia, during the civil rights struggle, involved a sit-in demonstration that was not a criminal offense at the time of the demonstration, but the state courts expanded the definition of the relevant offense to include it.  The Supreme Court said that violates due process of law.  More recently, in Rogers v. Tennessee, the high court allowed retroactive application of a decision dumping the old rule that a crime is not murder unless the victim dies within a year and a day.

Metrich v. Lancaster, argued today in the high court, involves the Michigan law of diminished capacity. 
I've been blogging about a lot of serious and heart-wrenching stuff.  Time for something on the light side.  This headline should do:

Woman Calls 911, Asks Police for Help Getting
Refund from Her Drug Dealer

This is the story:

After handing over her last $50 to a drug dealer for cocaine and marijuana, a Florida woman suffering from buyer's remorse called 911 and asked cops for help in securing a refund.

Katrina Tisdale, 47, explained to St. Petersburg police that she would be penniless until her next Social Security disability check arrived. Hence the pressing need to recover her $50 from the unnamed narcotics salesman.

Despite Tisdale's explanation for her two calls to 911 Monday evening, officers arrested her for misusing the police emergency system...Tisdale was booked into the Pinellas County jail, where she is being held on $100 bond.

According to jail records, Tisdale has been arrested many times over the past several years, including six arrests for cocaine possession. Tisdale was convicted in mid-2011 of calling 911 to falsely report that she had been robbed by her drug dealer.   

Salinas v. Texas Podcast

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The Federalist Society has this podcast by yours truly on the oral argument in Salinas v. Texas last week.  The capsule description of the case is:

On April 17, 2013, the Supreme Court heard oral argument in Salinas v. Texas. This case considers whether, when a suspect is silent in response to a single question during a voluntary interview with police before he has been arrested or read his Miranda rights, use of that silence at trial violates the Self-Incrimination Clause of the Fifth Amendment.

Prof. Boudin, Meet Prof. Falk

You might be surprised to learn that the little boy killed by Jihadist bombers, and the other casualties in that gruesome attack, are mere canaries in the mine of American imperialism.

So says Prof. Emeritus Richard Falk of Princeton, in his commentary on the Boston Marathon atrocity:  "We should be asking ourselves at this moment, "how many canaries will have to die before we awaken from our geopolitical fantasy of global domination?' "  The learned Professor was not, however, entirely critical; he noted that America's reaction has been

...generally benevolent, especially when compared to the holy war fevers espoused by national leaders, the media, and a vengeful public after the 9/11 attacks that also embraced Islamophobic falsehoods. Maybe America has become more poised in relation to such extremist incidents, but maybe not. It is soon to tell, and the somewhat hysterical Boston dragnet for the remaining at large and alive suspect does suggest that the wounds of 9/11 are far from healed.

Yup, that "hysterical dragnet" was soooooooo out of line.  We should have let the bomber brothers shoot a few more cops and plant the rest of their bombs.

There is not a whole lot more I care to say about Princeton's Prof. Falk, except that he rivals Columbia's learned (in murder) Prof. Kathy Boudin.

Call It What It Is

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How does President Obama propose to defeat our terrorist enemy if he won't even call it by its name?

According to the Obama's administration superior understanding of Islam, none of this terrorism should be happening. That is why they call these acts "incomprehensible," ["senseless"] and "tragic." They use the language of passivity to divert attention from their refusal to engage known and preventable jihadism.


Its plea for Americans to "understand" Islam is nothing more than a demand that they misunderstand it: close your eyes to its dangers and then accept terrorism from time to time as an acceptable price for maintaining that enlightened posture.


Buried Yesterday

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                          Martin Richard

                  Dorchester, Massachusetts

                       2005 - April 15, 2013

8-year-old Boston bombing victim mourned

News Scan

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CA Kidnapping Second Suspect Charged:  Fox News reports that Tobias Summers, 30, was captured in Mexico Wednesday.  Summers is a suspect in the kidnapping and sexual assault of a 10-year-old Northridge girl. He has been charged with kidnapping, burglary and over 30 counts of sexual assault. Summers was tracked using information obtained from the FBI. Continued from this News Scan.

MA House Rejects Death Penalty Reinstatement:  Stephanie Ebbert of the Boston Globe reports that a proposal to reinstate the death penalty was rejected by the Massachusetts House of Representatives Tuesday. Capital punishment would have been reinstated through a state budget amendment. State Representative James R. Miceli's amendment would have made those who commit either the murder of any law enforcement officer, tortures, terrorism, or mass killings and have been convicted at least twice in prior federal and state cases eligible for execution.

Slain Boston Bomber Suspected of Triple Homicide:  Adrian Lowe of The Age News reports that police are investigating Tamerlan Tsarnaev, the slain Boston bombing suspect, for a 2011 triple homicide in Massachusetts. Tsarnaev's close friend Brendan Mess, 25, along with two others, were all found murdered in Mess' home. According to police, the victims were nearly decapitated and covered with marijuana. Tsarnaev had also been arrested in July 2009 for assaulting his then-girlfriend, but the case was dropped.

CO House Passed DNA Bill:  Ivan Moreno of the Associated Press reports that Colorado's HB 13-1251 passed the House 43-21 on Tuesday. The bill would expand DNA collection only to those convicted of Class 1 criminal misdemeanors such as  theft and assault. The bill will go to the Senate for consideration. Continued from this News Scan.

PA Abortion Doctor Shirks 3 Murder Charges:  The Associated Press reports that three of the eight murder charges against late-term abortionist Dr. Kermit Gosnell were dropped Tuesday. One of Gosnell's employees had previously pleaded guilty to killing a newborn. Continued from this News Scan.
Kent and I have posted on the law governing terrorist interrogation.  The rules are unsatisfactory, largely because neither Miranda nor the limited exception to Miranda explained in Quarles was designed for the world of terrorist warfare.

Another sensible explanation is set forth in this article in Atlantic magazine.  Its penultimate paragraph is a good sample:

[I]n a case such as this one, where it seems likely both that the government will have overwhelming evidence to convict (without relying on any post-arrest statements) and that Tsarnaev may be in possession of valuable information that implicates national security, the rationale behind the government's choice emerges: Even if the public-safety exception is determined to have been wrongfully invoked, this would not threaten the government's case in a meaningful way. One may certainly contest whether the Court's shifting on Miranda is correct or whether the government's choice not to Mirandize Tsarnaev is desirable as a policy matter. Nor have the media been wrong to question the government's broad interpretation of the public-safety exception. But it is misleading to paint the decision not to Mirandize as trampling Tsarnaev's constitutional rights as an American citizen.

In fact, and as I expect to explain in a later post, Eric Holder is on shaky ground in thinking that the Quarles exception will carry him as far as he seems to think it will.  It might or it might not.  What is actually needed is for the Court to revisit Miranda itself, which was incorrect the day it was decided and is increasingly a relic of a different time in any event.  But that is beyond the scope of my present ambition.
Actually, they're not coming.  They're already here.

Remember when multiple killer Christopher Dorner had his flock of Internet cheerleaders?  Same deal now for Boston's original Mr. Nicey,  Dzhokhar Tsarnaev.

Yahoo News reports:

Many Twitter users have been expressing support for Dzhokhar using the hashtag #freejahar.

And just like the conspiracy theorists who claimed last week that the Boston Marathon attacks were staged, the support for Dzhokhar has been fervent despite his reported confession.

A Change.org petition to "guarantee Dzhokhar Tsarnaev the right to a fair trial," addressed to President Barack Obama, has more than 6,000 supporters.

"We believe that within the chaos caused by the Boston Marathon explosion, two young men were wrongfully accused of something they did not do, and one of them has lost his life before even getting the opportunity of a proper trial," Anita Temisheva, the user who launched the petition, wrote. "We do not wish to see blood of yet another innocent victim, someone who, by U.S. law, is innocent until proven guilty. It is vital to end this persecution, as all the conflicting information shown by the media, and footage from the incident, seen by people from all corners of the world, doesn't manifest itself as enough evidence to condemn Dzhokhar Tsarnaev of this heinous crime."

I was about to conclude by saying that you can't make this stuff up, but, on second thought, when mainstream liberal pundits can try to pin it on the Tea Party, Republicans, etc., this is just the "logical" next step.

All By Themselves?

The ABC story I linked in my last post is headlined, "Simple Boston Bomb Plot Hatched Without Foreign Help, Authorities Believe,"  This is its second paragraph:

For all the power of the two explosions at the Boston Marathon finish line, and for all the dramatic gun fights on the streets of Watertown, and for all the suppositions about the role of disciplined, well-trained terrorists, the college student reportedly told investigators the whole attack was devised from the Internet. The two brothers, he said, had no direction or financing from governments or rogue groups overseas.

Am I the only one skeptical of this?  First, let's state the obvious:  Simply because this is Dzhokhar's story hardly means it's true.  Second, look at the wording.  Even if he had "no direction or financing from governments or rogue groups overseas," that does not mean he had no direction or financing from rogue groups in this country that are operated, influenced and/or funded by overseas sources.

Peggy Noonan also seems to have some questions on this score.

The Bombers' Inspiration: Hate

ABC News carries this story about the first disclosures of Dzhokhar Tsarnaev to his interrogators.  It recounts:

Authorities tell ABC News they now believe the two foreign-born brothers were inspired to violence by the Internet preaching's of al Qaeda leader Anwar al-Awlaki, the charismatic American-born radical jihadist, who has been dead now for more than a year. They used instructions from an al Qaeda Internet magazine to make their pressure cooker bombs.

What a surprise!  It was Jihad!  Gosh, what next?  (That, unfortunately, is a serious question).  I guess I should add here that al-Awlaki, the Joseph Goebbels of radical Islam, "has been dead now for more than a year" because we sent a drone to kill him, much to the consternation of feckless airheads the ACLU.   The real problem with killing al-Awlaki was not, of course, that we did it, but that we didn't do it earlier, thus enabling him to inspire the likes of Dzhokhar Tsarnaev.

That Didn't Take Long

It didn't take long, that is, for pundits to start making excuses for the terrorists who bombed the Boston Marathon.  Although the President said not a week ago that we would "come together as one nation," or some such thing, I knew the moment it was out of his mouth that it was nonsense.  

Yesterday, on NBC's "Meet the Press," Tom Brokaw got the Excuse Parade underway.  Heads up, Mr. Federal Defender  --  here's Brokaw beginning his outline of your sentencing pitch:

"We have to work a lot harder at the motivation here. What prompts a young man to come to this country and still feel alienated from it, to go back to Russia and do whatever he did?"

Ah, yes, alienation.  Kind of a retread from the 70's, but we've got to start somewhere.

And "do whatever he did."  Now what would that be?  I think it was, like, killing an eight year-old by blowing a bunch of nails through him, but we wouldn't want to be too specific about that sort of unpleasantness (or the other cadavers).

For those of you with the stomach, Brokaw goes on for a while in the same vein. Here's the whole thing.

News Scan

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Boston Bomber Suspect Could Face Death:  The Associated Press reports that suspected Boston bomber Dzhokhar Tsarnaev could face the death penalty under federal prosecution. Although Massachusetts does not have the death penalty, Tsarnaev is expected to be charged federally with using weapons of mass destruction to kill people, which is a capital offense. Because of the nature of the attack, Tsarnaev will be interrogated by the High-Value Detainee Interrogation Team, a group of CIA officers who have been involved in questioning prominent terror suspects at Guantanamo Bay. The suspect will be tried in a civilian court, rather than as an enemy combatant, because he became a naturalized U.S. citizen in September 2012. According to a report by the Boston Herald, Boston Mayor Thomas M. Menino would support a death penalty sentence, saying that Tsarnaev "should be prosecuted to the fullest extent of the law." Continued from this News Scan.

NC Killer's Death Penalty Trial Delayed Over Mental Evaluation:  WRAL News reports that Mario Andretti McNeill, charged with the murder, rape and kidnapping of Shaniya Davis, 5, has had his trial delayed pending questions of his mental capacity. The child's body was found on November 16, 2009 six days after her mother had reported she was missing. McNeill's capital murder trial was put on hold when defense attorney's asserted he may not have the mental capacity to proceed. Superior Court Judge Jim Ammons has postponed the trial, ordering jurors to reconvene next Monday.  The judge has ordered an independent mental evaluation for McNeill, to be conducted this week. McNeill is alleged to have taken Davis from her mother, Antoinette Nicole Davis, because the woman failed to pay a drug debt. The mother is also facing multiple charges including first-degree murder, indecent liberties with a child, and human trafficking.
DOJ has charged Dzhokhar Tsarnaev with using a weapon of mass destruction against persons and property at the Boston Marathon last Monday, resulting in death.  Three people, including an eight year-old boy, were killed.  In addition, injuries, some permanently disfiguring, were suffered by more than 200 people. The charge carries a potential death sentence.

The key word there is "potential."  Whether DOJ actually seeks capital punishment will depend in significant part on the recommendations of the US Attorney's Office and an internal review committee.  This could take months (and probably will).  The decision ultimately rests with Eric Holder, who is on record as personally opposing the death penalty. 

If the decision is made on the merits rather than personal ideology, however, it shouldn't take months and it shouldn't be that hard, either.  Mr. Tsarnaev is a poster boy for capital punishment: No sane doubt of guilt; a planned attack on innocents; unbelievable and deliberate sadism; child murder; cop murder (if you count the MIT officer); multiple murder; terrorist murder; no racial angle; no mental impairment.

Those are the facts indicated by every report I have seen. It's all aggravators and no mitigators. Unless Holder indulges his personal opposition to the death penalty  --  opposition his boss says he does not share  --  DOJ has an easy choice.

It's clear by now that the Boston bombers were Islamic radicals (not Senate Republicans, with all due respect to NYT columnist Nicolas Kristof).  In an Atlantic article  --  certain to be a model for the coming defense narrative  --  they are portrayed as just, you know, ordinary guys who happened to be Muslim.  Indeed, the title of the article, by Ms. Megan Garber, is, "The Boston Bombers Were Muslim: So?"

John Hinderaker at Powerline makes fast and hilarious work of that one:

Before taking a close look at Ms. Garber's article, let's advise The Atlantic not to put away that headline. It could come in handy so often. "The Cole Bombers Were Muslim: So?" "The Embassy Bombers Were Muslim: So?" "The First World Trade Center Bombers Were Muslim: So?" "The September 11 Bombers Were Muslim: So?" "The Madrid Bombers Were Muslim: So?" "The London Bombers Were Muslim: So?" "The Shoebomber Was Muslim: So?" The Underwear Bomber Was Muslim: So?" "The Fort Hood Shooter Was Muslim: So?" "The Beslan Child-Murderers Were Muslim: So?" "The Times Square Bomber Was Muslim: So?"

John's devastating essay spoofing liberal knownothingism about terror is very much worth the read.

Where Are the Apologies?

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In the immediate aftermath of the Boston bombings, the same leftists who regularly play Church Lady in admonishing against premature accusations were out in force with innuendo  --  innuendo being the only thing available  --  pinning the murders on conservatives, tax protesters, the Tea Party and, yes, Senate Republicans.

The list includes New York Times columnist Nicolas Kristof, who, in an amazing leap of "logic," wrote, "[E]xplosion is a reminder that ATF needs a director.  Shame on Senate Republicans for blocking apptment."  (Kristof did not get around to explaining what the ATF had to do with this, much less that the previous director had to resign because of Eric Holder's "Fast and Furious" scandal).  (Under subsequent pressure, Kristof did walk back and delete his comment).

The list also includes the steadfast anti-American 400-pounder, Michael Moore, who helpfully observed that the bombings occurred on "Tax Day.  Patriots Day,"  and then that "2+2 =  "  That's it, Michael!  Figuring out that the bombing was the work of tax protesters on Patriot's Day is as easy as 2+2!  Gosh, why did we spend all that time tracking down those Islamic radical brothers?

Then there was MSNBC's Luke Russert, CNN's Peter Bergen, and Hardball's Chris Matthews, who ominously pointed out that Boston was a "liberal city," the plain implication being that the bombing was the work of revenge-lusting conservatives.  A partial list of the smears is here.  If any of our readers has heard a single apology for this rancid stuff, please let me know.

Where Rote Libertarianism Leads

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It leads to failure  -- failure to gather and follow critical intelligence.

That is one important point made by today's editorial in the WSJ.  The editorial notes that the FBI was onto Boston Marathon bomber Tamerlan Tsarnaev last year, when he returned from Chechnya, a hotbed of radical Islam.  It had been warned about Tamerlan by a foreign intelligence service (presumably Russia), and interviewed him, but then walked away, even "though media reports now say that within a month of returning...he was posting jihadist videos on websites."

The editorial continues:

The Boston bombing...ought to chasten Senators Rand Paul, Mike Lee and other libertarians who keep insisting that the U.S. homeland is not part of the terror battlefield.

"It's different overseas than it will be here. It's different in the battlefield than it will be here," Mr. Paul told Fox News earlier this year. "Which gets precisely to the argument I have with some other Republicans who say, well, 'the battlefield is everywhere, there is no limitation....'" 

Boylston Street sure looked like a battlefield on Monday, and so did Watertown on Thursday night. The artificial distinction is Mr. Paul's focus on geography. The vital distinction for public safety is between common criminals, who deserve due process protections, and enemy combatants at war with the U.S., wherever they are.


Sens. Paul and Lee are wise, in my view, to be leery generally of President Obama's limitless blob of a government and, in particular, of his increasingly reckless and politicized Justice Department.  But they are wrong, and dangerously so, about what is Constitutionally legitimate and needed to defend ourselves from terrorist-sponsored mass murder.  

No Witness, No Case, Part III

In my previous entry, I discussed the conviction of prominent defense lawyer Paul Bergrin for zealous advocacy witness murder.  Reading over the NYT story, this part struck me as remarkably noteworthy, so much so that it deserves its own post:

In his trial, which began in January, prosecutors were permitted to play recorded conversations between Mr. Bergrin and a former gang member who had worn a wire for months to record conversations as Mr. Bergrin tried to hire him to kill a witness.

"We've got to make it look like a robbery," Mr. Bergrin was heard saying on grainy tapes. "It cannot under any circumstances look like a hit."

Mr. Bergrin argued that prosecutors were corrupt and that the witnesses against him were seeking -- and had received -- shorter sentences for their crimes. He explained the recordings by saying he had known all along that the "hit man" was an impostor and had gone along in the hopes of extracting legal fees from him.

In his three-and-a-half-hour closing statement last week, Mr. Bergrin pleaded with the jury for forgiveness, insisting that he was ashamed of the things he had been heard saying but that he was merely defending his clients.

"I get caught up in them, their families, their anguish," he said. "You try to work tirelessly and endlessly, as if they're your own children, as if they're your own family. I tried to be there for the downtrodden, for the underdog, for the destitute, to show the client and the people that they have somebody who is willing to stand up for them."

What is remarkable about these last few paragraphs is not how different they are from what you see every day on defense blogs, but how stunningly similar.  It is nothing short of "Paul Bergrin: The Defense Lawyer's Creed."

No Witness, No Case, Part II

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A year and a half ago, I wrote about Paul Bergrin, a prominent New Jersey defense lawyer who took seriously the creed of standing up to prosecutors' bullying and their freelance destruction of Constitutional rights.  Bergrin was having none of it.

In what was obviously a vindictive prosecution, designed to intimidate the defense bar generally, the US Attorney for New Jersey decided to indict Bergrin on numerous charges.  The first jury deadlocked.  The second jury, clearly caving in to illicit prosecutorial tactics, convicted.  The verdict came in more than a month ago, but the story was tucked deep in the New York Times's "N.Y./Region" section, so I missed it until just now.

For those of you wondering what, specifically, Bergrin did, you have to read down to the twelfth paragraph to find out.  Here it is (emphasis added):

[The first judge on the case, later removed by the Third Circuit] refused to allow the authorities to try him on any of the charges other than two murder counts, for allegedly ordering members of a Newark gang to kill Kemo DeShawn McCray, a confidential F.B.I. informant who was to serve as a crucial witness in a case against one of Mr. Bergrin's clients.

Translation:  What a "zealous defense" actually means is "witness murder."  And no, this is hardly typical defense lawyering.  But it's worth remembering when one of our friends in the pristine defense bar starts bellowing about flagrant prosecutorial abuse.

The Public Safety Exception, Another Look

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Kent is correct in noting that there is no freestanding requirement to give Miranda warnings.  The authorities only need give them if they want to use the ensuing statements in a criminal prosecution.

But that's not the end of the story.  It's a risky thing for prosecutors to think they already have enough evidence to take a pass on the admissibility of the defendant's statements.  It is therefore a serious question whether, in a terrorist case, where there may very well be a bomb or a bomber still out there waiting to strike, the warnings (essentially, an invitation to clam up) should be given at the outset of interrogation  --  which is the necessary road to admissibility  --  or withheld  --  which is the more likely road to getting needed intelligence but a serious obstacle to admissibility.

Eric Holder has attempted to finesse this question, citing the Quarles "emergency exception" to Miranda.  The problem is that, under the 2000 decision in Dickerson and DOJ's perverse position in that case, the political branches have no authority to craft on on their own or expand an exception to Miranda.  The Department there agreed with the defendant  that Miranda's exclusionary rule was, in effect, a component of the Fifth Amendment. What this means is that, if the Department ever wants to use the bomber's unMirandized statements in a prosecution, it is going to have to unravel the mess it did everything it could to create by its stance in Dickerson.  It's too big a gamble for the Department to bet that a cautious Court will be willing to extend the Quarles unwarned interrogation window beyond a very few minutes after the suspect's capture.

Not to fear.  In the context of the Times Square bomber about three years ago, I gave DOJ some help.
With the arrest and non-Mirandizing of the Boston Marathon bomber, there is much confusion floating around today about the "public safety" exception to the rule of Miranda v. Arizona.  The confusion about the exception has its basis in confusion about the underlying rule.

The Fifth Amendment guarantees that no person may be compelled to be a witness against himself in a criminal case.  It follows that a violation occurs when a suspect is compelled to answer questions and those answers are introduced in a criminal trial.  The government can and does compel people to speak (or otherwise communicate) all the time.  All of us who recently filed our tax returns are keenly aware of that.  If the statements are not incriminating, there is no Fifth Amendment violation.  Even if they are incriminating, if the person is guaranteed they won't be used against him in a criminal trial, such as by a grant of use immunity, there is no Fifth Amendment violation.  No, you don't "have a right to remain silent" as such.  The right is narrower than that.

What the Supreme Court did in Miranda v. Arizona was create a rule of evidence for criminal trials.  If the police question a suspect and don't follow the rules laid down in that case, the suspect's statements are conclusively presumed compelled and therefore cannot be admitted at the suspect's trial.  That's it.  The court did not make a law requiring police to Mirandize everyone they arrest.  There is no right to the warnings as such.  There is no right to have counsel present during questioning as such.  An arrestee cannot sue the cops for questioning without Miranda warnings.  Although the Supreme Court case of Chavez v. Martinez, 538 U.S. 760 (2003) is a jumble of opinions, that much at least is clear.

Beating a confession out of an arrestee that is never used in a trial is, of course, a violation of his rights.  It is a due process violation, and the arrestee can sue for that.  See the very brief Part II of Justice Souter's opinion in Chavez, which is the opinion of the Court on that point.  The Miranda requirements are prerequisites for introducing the fruit of the interrogation at trial, period.  Questioning for other purposes is not subject to these requirements.  They still can't beat him, of course, but that has nothing to do with Miranda.  It's not even the Self-Incrimination Clause* at issue in that circumstance.

With the nature of the rule clearly in mind, let us turn to the exception.

DP Legislative Notes

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Oregon:  The death penalty repeal bill died in committee yesterday, Helen Jung reports for the Oregonian.

Delaware:  The House of Representatives Judiciary Committee will hold a hearing next Wednesday.  The repeal bill, SB 19, has passed the Senate.

Massachusetts:  Two candidates running in the special election to fill John Kerry's seat have said Thursday the Boston Marathon bombers deserve the death penalty.  Jim Hand has this story in the Sun Chronicle.  (One of the bombers has since been killed, as noted in this post.)

News Scan

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Third-Striker to be Released in Sacramento:  Suzanne Phan of ABC News reports that a judge approved the first resentencing and release of a third-striker from prison into Sacramento County on  Wednesday. Following the passage of Proposition 36, inmates serving life sentences under California's three-strikes law have been applying for re-sentencing hearings statewide. These inmates could could be granted release based on the severity of their third offense. Courts and attorneys have been reviewing cases to see which inmates still pose a threat to the public. Continued from this News Scan.

TX DA Murder Suspects Charged: 
Danny Robbins of the Associated Press reports that Eric Lyle Williams, a former justice of the peace in Kaufman, Texas, and his wife have been charged with the shooting deaths of District Attorney Mike McLelland, his wife, and assistant prosecutor Mark Hasse. It is alleged that Williams was the shooter, his wife the getaway driver. The McLellands were fatally shot at their home in March, two months after the murder of Hasse. Evidence linking Williams to the murders was found in a storage unit filled with weapons. Continued from this News Scan.

Boston Bombing Suspect Killed, Second Escaped: 
Eileen Sullivan, Meghan Barr and Katie Zezima of the Associated Press report that one of two suspects in Boston Marathon bombing was killed during a shootout with officers. The brothers allegedly killed three and injured more than 180 on Monday. Tamerlan Tsarnaev, 26, was killed, while his brother, 19-year-old Dzhokhar Tsarnaev, managed to escaped. The pair fatally shot a Massachusetts Institute of Technology police officer late Thursday night. Responding officers were then led on a car chase. The suspects had thrown explosives and fired shots out of the vehicle. A transit police officer was seriously injured during the gunfight. Continued from this blog post.


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How many people in America said "Good" when they heard that Marathon Bomber Tamerlan Tsarnaev had been killed in a shootout with police?  That was, I suspect, a common reaction.

It is common because death is the only adequate punishment for this crime, and people have no confidence in the ability of our government to deliver it.  They know to a certainty that the government will not deliver it in anything like the time frame it should.

The Massachusetts Legislature has unwisely failed to reinstate capital punishment after the judiciary struck down the prior law on dubious grounds.  The federal government is utterly inept in capital cases.  The primary Oklahoma City bomber was executed, but his accomplice got off with a life sentence due to Congress's failure to fix the preposterous single-juror-veto law.  The "20th highjacker" got off the same way.  The 9/11 mastermind and the Foot Hood shooter haven't even gone to trial yet, years after their crimes.

It is not good when our government is so inept at delivering justice that people cheer at the news of someone being gunned down in the street, even a terrorist.  We need to fix the system.

People you may know

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Kate Stanton reports for UPI that Facebook's "People you may know" feature introduced two women to each other on the basis of a common friend -- their husband.

Alan L. O'Neill has been charged with bigamy.  His lawyer says, "He is extremely embarrassed and remorseful."  I do not doubt that he is extremely embarrassed.

News Scan

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CA Building New Prisoner Mental Health Facility:  Correctional News reports that a new $23 million mental health facility will open at the California Men's Colony in San Luis Obispo this July. The Correctional Treatment Center is designed to house inmates who are potential threats to themselves and others. Approximately 25% of the 5,000 inmates at CMC are in a mental health service program of some type. Lieutenant Robert Furster, CMC's public information officer, hopes the facility will lower rates of recidivism through treatment.

CA Sex Offender Bill Gains Ground: 
Eric Kurhl of San Jose Mercury News reports that California's SB 326, authored by Sen. Jim Beall, was approved by the Senate Education Committee on Wednesday. If passed into law, the legislation would mandate that school officials check with authorities before allowing a registered sex offender to volunteer at campus activities. Then, if considered at risk to reoffend, parents would have to be notified. The legislation came about after convicted child molester Mark Gurries was given permission by the Diocese of San Jose to attend a St. Frances Cabrini Parish event where many children were present. The bill now moves on to the Public Safety Committee, where it is expected to pass.

MT Law To Allow Re-categorization of Sex Offenders: 
Jodi Hausen of the Bozeman Daily Chronicle reports that Montana Gov. Steve Bullock signed HB 335 into law this week. It gives prosecutors the ability to re-evaluate offenders for potential inclusion in MT's three-tiered sex offender registry system. The three-tier system has only been in place since 1997. It categorizes offenders as low, moderate, or high risk. All those sentenced before 1997 are treated as low risk by default. The new law allows these earlier convicted sex offenders to be categorized by prosecutors and potentially placed under closer watch.
When Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, one of the principal provisions was the new Chapter 154 of U.S.C. Title 28.  The new chapter was based on a proposal drafted seven years earlier by a committee headed by retired Justice Lewis Powell.  In return for providing counsel on state collateral review, with qualification standards and adequate funding, states would receive a number of advantages to expedite their cases in federal habeas corpus.  Among these were time limits on both the district court and the court of appeals.

It didn't work out that way.  The lower federal courts were hostile to a law that would place time limits on them.  Most egregious of the decisions was Spears v. Stewart, 283 F.3d 992 (CA9 2002).  The Ninth Circuit found, correctly, that Arizona met all of the requirements for qualification that are written into the text of the statute, but it wrongly denied Arizona the benefits of qualification because it found a violation of a requirement of timely appointment that it read into the statute.

In 2006, Congress amended the law.  It took the decision on qualification away from the courts subject to the time limits -- which have a conflict of interest -- and gave it to the Attorney General with de novo review by Court of Appeals for the D.C. Circuit, the one federal circuit that does not do state-prisoner habeas cases.  In addition, Congress expressly provided that the requirements in the statute are the only requirements for qualification.  Neither the AG nor the court can make up additional requirements.  Finally, in a seemingly innocuous provision, Congress directed the AG to "promulgate regulations to implement the certification procedure ...."  Congress did not authorize regulations to impose additional requirements for certification, obviously, having expressly forbidden any additions.

News Scan

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TX Executes Carjacking Killer: The Associated Press reports that convicted killer Ronnie Threadgill, 40, was executed by lethal injection Tuesday in Texas. On April 15, 2001, Threadgill fatally shot 17-year-old Dexter McDonald in the chest during a carjacking. Threadgill was released from prison on parole just three months before the murder. He had a long criminal history including assault, theft, burglary, criminal trespassing, criminal mischief, felony cocaine possession, and misdemeanor marijuana possessions.

Realignment Hits San Bernardino County Hard: Imran Ghori of the Press-Enterprise reports that the probation caseload in San Bernardino County is the second-highest, per capita, in the State of California. On Tuesday, Chief Probation Officer Michelle Scray Brown told the Board of Supervisors that since the October 2011 start of Realignment through last March, 4,711 probationers have been sent to the county, 25 percent more than anticipated. County risk assessments show that 58 percent of offenders sent to the county are at a high-risk of violence. Sheriff John McMahon explained that as a result, assaults among inmates have surged by 100 percent, while assaults on deputies rose by 50 percent. According to McMahon, the number of inmates being sent to prison from county jail has declined dramatically under Realignment, from about 400 per month to around 80 to 85. Public safety officials also told the Board of Supervisors Tuesday that some so-called low-level offenders are being released back into communities without serving any jail time.

Poll: Gun Control Not Most Important: Only 4% of Americans believe that gun control is the most important problem according to an April 4-7 Gallup survey of 1,005 adults.  A story by Michael James of CNS news reports on the polls finding that, in order of importance; the economy, jobs, dissatisfaction with government, federal debt, healthcare, and the decline of the family all ranked higher than guns and gun control, which was tied at 4% with the issues of immigration, education, and North Korea. 

DUI, Blood Tests, and Warrants

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Do police need a warrant to take a blood sample from an apparently intoxicated driver without his consent?  The U.S. Supreme Court today decided Missouri v. McNeely, No. 11-1425:

We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.
The answer is no, they need a warrant, but the Court is surprisingly fractured in this case.

On the narrow question stated above, the Court ruled 8-1 that the dissipation of alcohol alone does not amount to an exigent circumstance.  The opinion by Justice Sotomayor (the opinion of the Court at this point) distinguishes Schmerber v. California, 384 U.S. 757 (1966), a rare case where Justice Brennan cast the deciding vote in favor of the prosecution and wrote the opinion.  Schmerber involved additional facts supporting exigency beyond dissipation alone.  Also, advances in technology make quick issuance of a warrant much easier now than it was then.

So what else is needed?  Justice Sotomayor's opinion provides little guidance, and this is where four Justices split off.  Chief Justice Roberts writes for himself and Justices Breyer and Alito:

A police officer reading this Court's opinion would have no idea--no idea--what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court's "totality of the circumstances" approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.
Justice Kennedy seems sympathetic to this view, but he would wait for another case to provide that guidance.

News Scan

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CA Killer Hangs Self Behind Bars:  Henry K. Lee of the San Francisco Chronicle reports that murderer Justin Helzer, convicted of killing five people, hung himself Sunday with a bed sheet at San Quentin. The suicide follows a previous attempt in 2010.  In 2000, Helzer, his brother and a third accomplice murdered Ivan Stineman, 85, and his wife Annette, 78. Their bodies were dismembered, put in gym bags, then dumped in the Sacramento-San Joaquin River Delta. The Stinemans were murdered in an extortion plot to get $100,000.  Later, they murdered Selina Bishop, he mother and her boyfriend to eliminate witness after collecting the money. The brothers were sentenced to death and the accomplice received 38 years to life in prison.

Seven Murdered at Cancun Resort in Mexico:  Isela Serrano, Gabriel Stargardter and Eric Walsh of Reuters News report  that five men and two women were found dead in a shack in Cancun, Mexico Sunday. Six of the slain were strangled; the seventh was decapitated. The deputy attorney general of Quintana Roo Juan Ignacio Hernandez said the victims were independent drug dealers, unaffiliated with the cartels. Mexico's drug related violence, which has claimed more than 70,000 lives since the former President of Mexico, Felipe Calderon, declared war on the drug cartels. It appears to finally be catching up to Cancun, which until recently managed to avoid it. Last month, two men shot up a Cancun bar, leaving six people killed and five wounded. And, in a separate incident Sunday, police found another man murdered on the outskirts of the city.

PA Abortion Doctor Trial:  Sarah Hoye of CNN reports on the trial of Dr. Kermit Gosnell, who ran an illegal late-term abortion clinic West Philadelphia. He is charged with the deaths of 41-year-old Karnamaya Mongar and seven babies. Gosnell allegedly severed the spinal cords of living fetuses after they were born. Despite multiple reports over two decades, health and licensing officials failed to take action regarding his practices. Authorities discovered fetal remains and frozen fetuses when searching the office.  Unlicensed medical school graduate Eileen O'Neill, 56, who worked with Gosnell is also charged with participating. If found guilty, Gosnell could face the death penalty. Continued from this News Scan.

A Masterpiece of Bad Timing

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Not 24 hours after the country suffered another gruesome terrorist attack, and at a time when authorities are in a desperate search for information, the New York Times reports that the "Constitution Project" has issued a 577-page report trashing the United States for using "torture" against al Qaeda detainees in order to obtain information about the 9-11 attacks and plans for future attacks.
The Times observes that the report takes aim primarily at President Bush and his Administration, although President Obama does not entirely escape blame.

I have not read the report, which was put out just this morning.  But so much for Mr. Obama's notion that we'd all be united as one nation.

United, sure.  United except for the Holier-Than-Thou crowd who think today  --  a day when, literally, the blood is still being cleaned off Boston's streets  --  is a good time to scorch those who did their best (and were successful, I might add) in keeping our homeland safe from exactly the sort of terror attacks from which we are reeling. You really have to marvel at the Constitution Project's timing.

A Teaching Moment for the Death Penalty

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Yesterday's gruesome bombings in Boston should be used by death penalty supporters as the Newtown shootings have been used by gun control supporters:  As Exhibit A.

It is simply impossible for a normal person to contemplate the bombers' state of mind  -- to contemplate their savagery, their relishing death, their glee at the lifelong mutilation of their victims, and their indifference to whether and how many of the corpses would be children  --  and believe that a prison sentence, no matter what its length, is "justice."

Abolitionists' usual (and by now tiresome) lectures about cost, race, the preferences of Europeans, and all the rest of it, now show up for what they've been all along:  The talking points for a moral holiday.

Every member of the Massachusetts legislature with a conscience should sponsor a bill re-establishing the death penalty.  Let their abolitionist foes wear proudly and prominently the handiwork of those in whose behalf they bellow.  They can start with these (warning, photos are graphic):

It's Not "Senseless"

I should begin what may be an unpopular entry with a reminder that I am a guest blogger here, not an officer of CJLF.  What I say does not necessarily reflect CJLF's views.

Much  --  almost surely too much  --  will be said in coming days about the Boston Marathon bombings.  A considerable portion of it will be self-congratulatory mush about how we "come together as a people" in the face of the "senseless loss," to use President Obama's exact phrase in his reaction yesterday

This is so much nonsense.  First, we will not come together.  The same fundamental divisions about security, intelligence operations, interrogation and civil liberties about which the nation has been divided for years will re-surface almost immediately.

Second  --  and this is the point I want to stress for now  -- the bombings were not "senseless," and if Obama really thinks anything like that, he is deluded.  They make plenty of sense.

News Scan

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TX Ex-Justice of The Peace Suspected of Murdering DA, Wife:  FOX News and the Associated Press report that Eric Lyle Williams, a former justice of the peace in Texas, was arrested Saturday on charges of making a terrorist threat. Williams is now a prime suspect in the murders of Kaufman County District Attorney Mike McLelland and his wife. Williams, 46, was arrested after agents investigating the killings found multiple weapons and a car similar to one described leaving the neighborhood of the murders in a storage unit linked to him. An email threatening another attack against Kaufman County officials was traced back to Williams' computer. McLelland and Mark Hasse, also recently slain, were both crucial to prosecution against Williams over theft charges last year. The trial resulted in Williams losing his justice of the peace position. Williams has a reputation of making violent threats. He is known to have threatened his ex-girlfriend Janice Gray with a gun on multiple occasions. Continued from this News Scan.

Court to Review Order Blocking CA Executions:  Howard Mintz of the Mercury News reports that on Tuesday, the 1st District Court of Appeal will review a Marin County judge's 2011 order halting executions. The ruling announced that the state had failed to adequately follow the Administrative Procedures Act when revising its execution protocol.  The Department of Corrections and Rehabilitation appealed the ruling.  The State Attorney General office argues CA satisfied the rules and did more than was required, including holding public hearings and considering 29,000 public comments. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said such administrative rules should not take precedence over enforcement of a state law such as the death penalty statute. Continued from this News Scan.

CO Teen Enters Not Guilty Plea for Murder of Girl:  Thomas Peipert of the Associated Press reports  that Austin Sigg, 18, pleaded not guilty to murder, kidnapping, sexual assault and robbery on Friday. Allegedly, Sigg earlier confessed that he kidnapped, murdered, and dismembered Jessica Ridgeway, 10. Some of her remains were also found at Sigg's home. He also pleaded not guilty to attacking a 22-year-old jogger in the same neighborhood as Jessica, in May. Three counts of sexual exploitation of a child have also been entered by prosecutors based on the alleged discovery of child pornography in the investigation. Because he was 17 when the slaying occurred, he is ineligible for the death penalty. A maximum sentence would give him life in prison with possibility of parole after 40 years. Continued from this News Scan.

OK Court Set to Hear Murderer's Appeal:  Tim Talley of the Associated Press reports that Oklahoma Death Row inmate Roderick Lynn Smith will have his appeal heard on May 7. Smith was convicted of the 1993 murders of his wife Jennifer Smith and her four children.  Two of the children, Glen Carter Jr., 9, Ladarian Carter, 7, were stabbed to death. The other two, Shemeka Carter, 10, and Kanesha Carter, 6, had been strangled. The Oklahoma Court of Criminal Appeals will hear arguments that Smith's death sentence should be overturned because the jury failed to consider evidence that Smith is mentally retarded. His defense attorney alleges he was deprived of his constitutional rights because of improper jury instructions. Smith, 47, first went to death row in November 1994 when he was convicted on five counts of first degree murder. His five death sentences were overturned in 2004 by the Tenth Circuit ruling finding ineffective assistance of counsel at sentencing.  Resentencing resulted in Smith receiving two death sentences for the girl's murders and LWOP for the stabbing of his step sons and wife.

CA Child Killer Suspect in Several Cold Cases:
KTVU News reports that the FBI is looking for six more victims of convicted child killer Curtis Dean Anderson. In 2007, one month before he died, Anderson told investigators he had killed six other victims. Anderson had been convicted of kidnapping and murdering 7-year-old Xiana Fairchild in Vallejo. He also confessed to the kidnap-murder of Amber Swartz.  From 1986 to 1999, Anderson had been arrested and released from prison 10 times. Anderson told the federal investigator he would have continued killing more women if released. The FBI is out of leads and is seeking help from the public to solve these murders.

Transient Boxer is a Suspected Serial Killer: Russell Goldman of ABC News reports that career criminal Samuel Little, 72, is being investigated as a possible serial killer. Little had been arrested in Kentucky in September for the possession of drug paraphernalia. He was extradited to Los Angeles after his DNA was linked to three 1989 unsolved murders. In all three cases, the victims were knocked out and strangled. Little's criminal record covers 56 years of crimes across 24 states. There have been a significant number of unsolved cases matching Little's method of operation in areas and at times when he resided nearby.  

Bombing At The Boston Marathon

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The Boston Globe has coverage here.  "Two people were killed and 22 were injured this afternoon as two powerful explosions detonated in quick succession near the Boston Marathon finish line in Boston's Back Bay section, turning a scene of celebration into bloody chaos."

Guns Don't Kill People

The title of this post is the title of an opinion piece in, of all things, the University of Washington student newspaper.  (The piece is two years old, but timely considering the renewal of the gun control debate).

The most dreadful murderers in our history did not use guns  --  Osama, McVeigh, John Wayne Gacy, Ted Bundy, Ted Kaczynski, Jeffrey Dahmer, the "BTK killer" (Dennis Rader)  --  I could name quite a few more.

I have made this point before, but this seems an apt time, in a horrible way, to re-emphasize it, in light of today's bombing murders at the Boston Marathon.

Controlling guns may well, to some extent, be part of the answer.  But we are simply deluding ourselves if we think the main answer is anything other than controlling criminals.  If we fail, through hand-wringing, diversionary thinking, political agendas, delusional self-blame, or any other excuse, we will continue to invite what we saw this afternoon.

UPDATE: Having been informed that the link doesn't work, I have copied the piece and have put it after the break.

Eyewitness Focus

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One well-known problem with eyewitnesses is that they are sometimes focused on one aspect and don't see or don't remember other aspects.  The most common example is the armed robbery victim who is understandably focused on the gun and can't describe the robber.

Ellen Huet of the SF Chronicle has this twist on the witness focus phenomenon:

Adverse Inference Instruction

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Another case apparently relisted in Friday's Supreme Court conference (see post earlier today) involves instructing the jury not to draw adverse inferences from the defendant's failure to testify.

In Carter v. Kentucky, 450 U.S. 288 (1981), the Supreme Court decided that, in the guilt phase of a trial, the defendant is entitled to such an instruction on request.  Not all defendants request the instruction, though, because it highlights the fact that the defendant has not testified.  Telling people "don't pay attention to this" is a pretty good way of getting them to pay attention to something.

Does the Carter rule apply to a case where the defendant pleads guilty to the crime and admits the eligibility circumstance, so the jury is impaneled only to decide whether an admittedly death-eligible murderer should be sentenced to death?  The trial judge in the case of Robert Woodall did not think so, and neither did the Kentucky Supreme Court.  The federal district judge did, though, and a majority of a three-judge panel of the Sixth Circuit decided that the state court's contrary decision was contrary to clearly established Supreme Court precedent, the standard established by Congress for a lower federal court to overturn a state court decision on habeas corpus.  Judge Cook did not agree:

Monday SCOTUS Orders

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Not too much exciting in today's orders list from the US Supreme Court.  A number of capital cases were turned down.  The cross-petitions in the Phillips case, noted here, were relisted yet again.  The court turned down Indiana's petition in an AEDPA case, Butts v. Hall, previewed at SCOTUSblog.  The court also turned down a New York Second Amendment case, Kachalsky v. Cacace, No. 12-845.  Lyle Denniston has this post at SCOTUSblog.  The USCA2 summary follows the jump.

Question: When Does Murder Disappear?

Answer:  When it presents a problem to the liberal agenda.

The case I'm referring to is the hushed-up Philadelphia murder trial of Kermit Gosnell.  Gosnell spent decades providing abortions.  When some of his extremely late term work turned out to produce the live birth of a viable baby, he had the answer.  The answer was murder.  This happened repeatedly.

When Matthew Shepard was murdered, it was national news for weeks, and rightly so, because it opened the window on a national problem, that being bigotry and violence against gays.  Shepard's killers richly deserved the death penalty, but unfortunately got off with LWOP.

I don't know yet if Gosnell deserves the death penalty, but I know his trial deserves coverage in the press.  The Washington Post has quietly admitted as much, belatedly covering its backside.

But the question remains:  Why the blackout?  Jeremy Lott of RealClearPolitics explores the answer.  Hint:  It has to do with which crime narratives advance Political Correctness and which don't.

Note:  CJLF takes a position on murder but no position on Roe v. Wade or related issues.

Drugs, the Victimless Crime...

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...or maybe not.  From the local radio station in Washington, DC:

WASHINGTON - A Loudoun County teen is in the hospital after overdosing on synthetic marijuana which is often found in gas station type convenience stores. The 15-year-old was taken to Inova Loudoun Hospital in critical condition but is now listed as stable.

Dr. Ed Puccio, the medical director of the hospital's emergency department says these cases of young people overdosing on this drug can be common in Loudoun.

"There could be several cases in a week and sometimes there maybe be several weeks without a case," he says.

If you want your kid to wind up in the ER in critical condition, by all means support legalization, and thus even broader use, of drugs. 

News Scan

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CA Crime Rate Rises Sharply Under AB109:  Ben Shapiro of Breitbart News reports that California Governor Jerry Brown's Realignment is creating major public safety issues as crime is on the rise across the state. Statewide, there are more than 43,000 inmates are in county jails instead of state prisons. By 2014, the number is expected to reach 54,000. In the six-months since AB 109's implementation there has been a 7.6% rise in homicides statewide. Despite this, Gov. Brown states new prisons are not necessary. The article cites data from this CJLF Press Release.

CA Man Arrested for 1988 Cold Case Murder:  KCRA News reports that the Sacramento Police Department arrested Stanley David Grow Wednesday on suspicion of a 1988 cold-case homicide. On the morning of October 19, 1988, a Sacramento police officer found Manuel Morales, 51, dead in a gutter in a blood-drenched sheet. His body had multiple stab wounds. Before being found, Morales had been seen driving some women home in his car. The 25-year-old investigation was reignited when a DNA match was made to a DNA profile in July 2012 to a blood sample taken from the car. Grow's DNA was on file from a felony, and proved to be a match.

Bid to Regain Control of Prisons Denied:  The Associated Press and Lauren Sivan of FOX News report that a federal court rejected Gov. Jerry Brown's bid to halt the reduction of California's prison population. The three judge panel ruled that Gov. Brown and corrections officials must further reduce the state prison population to 137.5 percent of capacity or face contempt of court.  The state also failed to regain control of its prison mental health care. More in this News Scan. The original mandate was issued in 2009, after the panel determined that overcrowding was the main contributor to its findings of substandard inmate health care.   Though the court acknowledged the state has made progress, it ruled that a further reduction of about 9,000 inmates needed to be made. CA has 100 days to report to identify candidates for early release to the judges.

The Memorial Service for Judge Bork

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My wife and I had the sad honor earlier this week of being invited by Judge Bork's family to a memorial service dedicated to his life and work.  It was a bracing reminder of how Judge Bork, with few others by his side at the time, led a revolution in legal thinking that benefits jurisprudence to this day, even if not followed nearly as often as its power rightly commands.

The service, shown here, also contained not a few reminders of his wicked sense of humor.

The Latest Defense: Zombies

I sometimes go after defense lawyers for concocting wacko stories, but I can't this time.  Nope, on this occasion, it was the client himself.

It seems that Jeremiah Hartline stole an 18-wheeler, no less, and drove it erratically until he got into a horrendous wreck on the freeway.  He did this because, you see, he was being chased by zombies.

I really, really hope he refuses to plead and goes to trial.

News Scan

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More CA Fugitive Sex Offenders Than Originally Reported:  Paige St. John of the Los Angeles Times reports that California has twice the number of fugitive sex offenders than the state previously reported. According to new data released Wednesday, there was a 65% rise in the number of warrants issued for paroled sex offenders that absconded from October 2011 to January 1, 2013. The prior report had the number at an increase of 30%. Nearly 5,000 warrants were issued over the period since Realignment took effect far more than the 3,251 the department reported in March The discrepancy comes because multiple releases for the same offender were not originally accounted for. Parolees disabling or removing GPS devices suffer little to no consequences when caught due to overcrowding in county jails. Some parole violators go on to commit very serious offenses, including rape and murder. Sen. Ted Lieu introduced SB57 which would make it a felony to remove a GPS monitor punishable by prison time. Discussed in this News Scan.

OH Baby Killer's Plea Denied: 
Andrew Welsh-Huggins of the Associated Press reports that the Ohio Parole Board denied Steven Smith's plea for mercy on Wednesday. On September 29, 1998, Smith, 46, raped the six-month-old Autumn Carter, the daughter of his girlfriend. The attack that lasted up to a half hour and resulted in the infant's death. His attorneys argued for his sentence to be commuted, claiming Smith had only intended to rape but not kill the little girl. Smith, a known alcoholic, has taken no responsibility for his crimes, instead blaming it on being drunk. The parole board was not convinced. Though not directly charged with rape, prosecutors used it as an aggravating circumstance in the murder to secure a death sentence. Prosecutors say Smith beat the girl to death in the course of the rape, while expert witnesses testify the baby may have suffocated while Smith lay on top of her.

OH Rapist's DNA Identified: 
The Associated Press reports that a grand jury in Ohio has indicted an unknown man for a rape committed 20 years ago based on his DNA. The six count indictment is over the separate rapes and kidnappings of a 13-year old-girl on April 21, 1993 and a 37-year-old woman on June 15, 1996. The indictment will keep the statute of limitations from running out for "John Doe (hash)1, unknown male." An arrest warrant has been issued for his DNA profile. According to Cuyahoga County Assistant Prosecutor Brian McDonough, DNA technology will keep rapists from getting away with their crimes. Over 2,300 untested rape kits have been sent in by police from across Ohio as part of an initiative begun by OH Attorney General Mike DeWine.

Is There Something Missing on this CV?

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Kent followed my post about Columbia Assistant Professor Kathy Boudin with a post quoting the nephew of one of the police officers whose murder Professor Boudin enthusiastically brought about.

It occurred to me just today that academia seems to have shifting standards, and they shift pretty fast. Wasn't it just last week that a Rutgers basketball coach got fired for shoving his players, throwing basketballs at them, and yelling homophobic slurs?  But Ms. Boudin gets hired for a faculty position at a more prestigious school in spite of (or is it because of?) her participation in an armed robbery and ensuing multiple murders, including the murders of two policemen.

On reflection, I found the story so astonishing, even given the degraded standards of academia, that I wondered whether I had been snookered, and whether it was really a plant from the Onion.

So I looked on Columbia University's website.  The following is what I found. 

Long Overdue Florida Execution

ElisaNelson.jpegElisa Nelson should be 42 years old now.  Tragically, she died at the age of 10.  Sarina Fazan reported Monday for ABC Action News in Tampa:

After more than 30 years, a Pinellas County family may finally see justice this week.  In 1980, a sexual predator on parole snatched and killed a 10-year-old girl on her way to school.
*                              *                             *
Jeff Nelson plans on attending.  He said he will speak on camera after the verdict.  And he made one statement: "Why did it take 32 years to bring a confessed murderer to justice?  Something needs to be fixed."
The US Supreme Court denied three certiorari petitions and stay requests today in cases 12-9643, 12-9671, and 12-9672.  No dissents are noted.

The first petition challenged the Supreme Court of Florida's rejection of Mann's fifth state collateral review petition.  The second petition challenged the Eleventh Circuit's rejection of Mann's method of execution challenge.  The last one challenged the Eleventh Circuit's decision in case 13-11322, which I was not able to find.

Update:  The Tampa Tribune reports:

Larry Eugene Mann has been executed for the 1980 murder of 10-year-old Elisa Nelson of Palm Harbor.
"Thank God it's over," said Katy DeCarolis, Elisa's cousin.

News Scan

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CA Senator Clarifies Realignment: California State Senator Jim Nielsen has this press release explaining the truth behind Governor Jerry Brown's AB 109.  Realignment reduced penalties for many felons who reoffend after November 1, 2011.  Many of the criminals being placed on county supervision are habitual assault and firearm offenders, commercial burglars, auto and identity thieves, and drug dealers. They are often released from overcrowded jails early on electronic monitoring, day reporting, or other non-custodial programs. Under Realignment parole terms were cut from three years to one, with most parolees passed off to counties for supervision.  On July 1, 2013, most parole revocation proceedings, will transfer from the state Board of Parole to county superior courts.  Violators will serve a maximum of 90 days in jail instead of a year in prison. Due to overcrowding most will spend less than week in jail before they are back on the street. 

CO Prison Staff Killer Could Face Death Penalty:  P. Solomon Banda of the Associated Press reports that prosecutors will seek the death penalty for Edward Montour Jr., accused of the 2002 killing of a prison worker in Colorado. Montour allegedly fatally struck Eric Autobee, 23, in the head with a kitchen ladle. At the time of the murder, he was serving a life term for his role in the 1997 death of his 11-month-old daughter. The case has been held up by legal wrangling.  Banda's previous death sentence, which was given by a judge, was overturned 2007 by state' Supreme Court ruling announcing that only a juries are able to give death sentences. 

LAPD Unit Follows Realigned Felons:  Patrick Healy of NBC News reports that the Los Angeles Police Department has put units of officers in place to keep watch on AB109 parolees. Detective Jim Hays cites the influx of parolees as a major contributing factor to crime in his Hollywood division.  Hollywood's Impact Team says their work is paying off. Despite statewide trends of rising property LAPD claims that the rate in Los Angeles has stayed flat. Still the officers are frustrated by the fact that many of those they arrest are released in a matter of days. Sgt. Chad Costello says efforts to keep criminals in custody are not successful. In Los Angeles County, 95 percent of those jailed have been sentenced to straight time, meaning early release without having to check in for probation, due to overcrowded jails.

MS Set To Make Terrorism a Capital Offense:  Emily Wagster Pettus of the Associated Press reports that Senate Bill 2223 is about to be signed into law by Gov. Phil Bryant, making terrorism an aggravating circumstance in death penalty cases in Mississippi. The definition of terrorism under SB 2223 is an act committed to influence government by intimidation, coercion, mass destruction or assassination, or to intimidate or coerce civilians. Provisions in the bill are included to protect peaceful protests, boycotts and nonviolent actions. The bill passed the House, 113-1, and the Senate unanimously on April 3. It is set to become state law on July 1.

TX Executes Rapist, Killer: 
Michael Graczyk of the Associated Press reports that murderer and rapist Rickey Lynn Lewis was executed in Texas on Tuesday. In 1990 Lewis fatally shot George Newman and raped Newman's fiancee, Connie Hilton, during a home invasion in Smith County.  In recent weeks the Texas Court of Criminal Appeals rejected Lewis' most recent claims and   the U.S. Supreme Court declined review.   The Texas Board of Pardons and Paroles unanimously refused to grant clemency.

The Balm of Gun Control

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The title of this entry is the title of an opinion piece in the Washington Post.  The piece expresses many of my reservations about gun control.  It's not that I'm a priori opposed to some kinds of gun control, nor do I think that all forms of it are inconsistent with the Second Amendment (as Heller made quite clear in dictum). It's that gun control won't solve the real problem, which is controlling unstable and/or malevolent people.

If we control criminals, or those with crime imminently on their minds, we won't have to worry about controlling guns.  If we don't, the amount of good gun control will do is sparse.


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Bill posted last week on Columbia's terrorist professor, Kathy Boudin. Stefan Kanfer has this article at the City Journal on the same subject.  I thought the last paragraph was worth quoting here.

When it became known that Boudin was hiding in plain sight at Columbia, the New York Post interviewed the nephew of one of the police officers shot to death in Nanuet. He reminded readers of the consequences of that long-ago incident: "Nine children grew up without their dads because of her actions." None of this, course, has any effect on Columbia. Associate dean Marianne Yoshioka, who hired Boudin, rose to her defense. Kathy Boudin has been "an excellent teacher who gets incredible evaluations from her students each year," Yoshioka said. "Incredible" does seem the operative word.

Intellectual Diversity Conference

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Last week I noted the Intellectual Diversity Conference put on by the Harvard Chapter of the Federalist Society.  Video of the conference is now up at the conference webpage.

Bringing a Knife to a Gunfight

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Generally, attacking someone armed with a gun when you have only a knife would be the height of folly.  However, when the perpetrator has his gun pointed at your wife's head, it is the right and gallant thing to do.  That is what a 61-year-old doughnut shop owner in San Francisco did at 3:00 a.m. Monday, according to Ellen Huet in the SF Chron.

The heroic husband was shot in arm but stabbed the robber, who remains at large.  Want to bet the next thing he does is buy a gun?

Knife Control

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CNN reports that 14 people were injured today, two now in critical condition, in a knifing attack on a Texas college campus.

I guess this means President Obama will be telling us tomorrow that we need expanded federal knife control, and  --  as he did just recently in Connecticut  --  that anyone not in full agreement with his suggestions must have forgotten the horror.

It may well be that some of Obama's proposals are good ideas.  I'm willing to assume arguendo that they are.  The problems are that (1) it's unworthy (not to mention stupid) of President Nixon Obama to impugn the humanity and motives of the opposition, and (2) as today's episode illustrates, the focus should be on the person using the weapon, not on the weapon itself.

Today's attacker didn't use a gun.  Neither did John Wayne Gacy or Timothy McVeigh.  Eliminate the criminal  --  as justifiably both of them were eliminated  --  and we won't need to worry so much about the type of weapon he'll no longer be able to use. 

"Scare Tactics"

Today's News Scan notes yet another case of a major crime of violence, in this case murder, attributable to California's misguided "realignment" program.  The comments of the police chief are worth quoting in full.

"This is yet another glowing example of the failure of California's prison realignment. Dangerous prisoners that belong in state prison continue to be released early, time and time again, to return to our communities and endanger our families and friends," said Fontana Police Chief Rod Jones.
"Had Mulder remained incarcerated, on either recent occasion, for his full sentence, this woman would still be alive and this entire incident would not have occurred. I see this situation only continuing to get worse as California continues to reach the federally mandated levels of the prison population this year. This is going to result in approximately 9,000 more dangerous prisoners soon being released into our communities. I fear the worst is yet to come. "
Meanwhile, this weekend the Sacramento Bee had this editorial denouncing "scare tactics."  Publicizing real cases of real people really killed, raped, or kidnapped because of this law is "scare tactics"?  Well, sometimes people should be scared.  If are out hiking and see a rattlesnake, it is far better to be afraid of it and avoid it than to walk blithely by and be bitten.

And then there is this bit of chutzpah:  "A one-year uptick in crime is a reason for counties to make adjustments, not to generate uproar and premature calls to reverse policy."

Wow.  A supporter of an ill-conceived plan that was cobbled together and rammed through the legislature before the public even knew any major change was being considered has the audacity to complain about prematurity

Read more here: http://www.sacbee.com/2013/04/07/5320482/editorial-enough-with-all-the.html#storylink=cpy"

News Scan

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AB109er Killed After Allegedly Stabbing Woman to Death:  Doug Saunders of the Redlands Daily Facts reports probationer David Mulder is suspected of fatally stabbing Elisa VanCleve at a Fontana Park and Ride on Sunday. A California Highway Patrol officer arrived at the lot in response to a domestic disturbance call. Mulder ran at responding officers with a knife. The CHP officer shot and killed Mulder. VanCleve had been found stabbed multiple times in a car nearby. The Fontana Herald News reports Mulder had an extensive criminal history including grand theft, commercial burglary, and possession of a controlled substance. Mulder was released from prison for a most recent conviction of substance abuse and was placed on Post Release Community Supervision in September. His probation officer found that he violated the terms of his PRCS in December by not registering a change of address. A warrant was issued for Mulder's arrest. He was located on March 25 and sentenced to serve 30 days in jail. He was released eight days later on GPS monitoring, five days before the murder.

U.S. Army Veteran May Get Death Penalty:  Matthew Barakat of the Huffington Post reports United States Army Veteran Eric Harroun, 30, is accused of using a weapon of mass destruction outside the U.S. alongside a terrorist organization. From January to March, Harroun fought against the Syrian government alongside the group Jabhat al-Nusra, the "al Qaida in Iraq." The group was classified as a terrorist group by the U.S. Government in December. Harroun, 30, was at a court hearing on Monday, where U.S. Magistrate Ivan Davis decided there is probable cause and the issue will go to a grand jury. It was revealed at the hearing that Harroun could face the death penalty if it is found that his actions caused a death. Harroun recalls shooting 10 people during the attacks, but is not sure if they were killed. His lawyers argue that his actions were in line with U.S. interests, as he aided Syrian rebels. Whether he was a willing participant or a prisoner forced to fight was at the center of debate.

White Supremacist Prison Gangs Gaining Influence Beyond Bars: 
Alan Greenblatt of NPR News reports white supremacist gangs are expanding their influence beyond prison bars and out into the streets. James Lohr, 47, was taken in for questioning on Friday, in regards to the murder of Colorado Department of Corrections Director Tom Clements. Lohr was known to have associations with white supremacist prison gang the 211 Crew. Another man wanted for questioning, who was wanted for questioning, died in a Texas shootout and was also a known 211 Crew member. The Aryan Brotherhood of Texas, another white supremacist prison gang, is suspected of ties to the killings of the Kaufman County District Attorney, his wife, and the assistant DA. If suspicions are confirmed, the influence of racist prison gangs is reaching unprecedented levels. According to Mark Potok of the Southern Poverty Law Center, the gangs are building criminal empires. He says prison gang leaders are able to get messages out through girlfriends, spouses and even attorneys. Some information in this report taken from CBS Crime Insider, here. Continued from this News Scan.
Last month, US News & World Report released its annual rankings of law schools.  There was considerable turmoil in the middle ranks, as many schools went up or down a substantial number of rungs on the ladder.  See, e.g., this post by Jacob Gershman at WSJ Law Blog.  There is a lesson here on the limitations of studies.

Cookie Monster Busted

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Shane Dixon Kavanaugh reports for the NY Daily News:

A costumed creep dressed as Cookie Monster was arrested Sunday after he shoved a 2-year-old boy during a crazed confrontation with the tot's mom in Times Square, cops said.

Osvaldo Quiroz-Lopez posed for a photo with the child about 3:20 p.m. and then demanded the mother cough up $2, police said.

The mother refused, causing Quiroz-Lopez, 33, to behave monstrously, cops said.  Police charged him with assault and endangering the welfare of a child.

Shield Laws

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The WSJ has this editorial denouncing the efforts of the trial judge in the Aurora massacre case to force a Fox News reporter to disclose her source.  Someone in law enforcement, apparently, told her about the shooter's notebook.

The First Amendment is not superior to all other constitutional rights, and there are times when the right to a free press collides with the right to a fair trial. Hard calls then have to be made, especially when a journalist has information that bears on the guilt or innocence of the accused.

Nothing like that is at issue here. Ms. Winter's role is peripheral to the case against Mr. Holmes. The court has access to the notebook and has the authority over whether to admit its contents as evidence in the trial. Her confidential information concerns only who disregarded the judge's order.

The extent of First Amendment protection in this area is fuzzy, but many states, including Colorado, have state laws that go beyond constitutional requirements.  The text of CRS § 13-90-119 follows the jump.

News Scan

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CA Sex Offender Arrested for Murder: Phil Willon of the Los Angeles Times reports that transient sex offender Jerome Anthony Rogers was arrested for the November 14 home-invasion murder of 76-year-old Mary Beth Blaskey. According to San Bernardino Police Chief Rob Handy, Rogers' DNA matches a sample taken from the crime scene. Rogers is also being investigated for the December 2010 murder of Wanda Paulin, 86, and the September 2005 death of 90-year-old Josephine Kelley. Rogers' criminal history includes sodomizing a 14-year-old girl. Melissa Pinion-Whitt of the San Bernardino Sun reports Rogers was sentenced to 36 months probation late last year for failing to register as a sex offender.

Assaults Increase in San Joaquin Jail Under Realignment: Jennie Rodriguez-Moore of the Record reports that San Joaquin County Jail has seen a surge in inmate violence, gangs, and drug smuggling under Realignment. According to Sheriff Steve Moore, AB109 is sending felons and parolees that are used to prison incarceration to jail. Assaults in the jail increased 27 percent from 2011 to 2012. In 2011, there were 152 assaults, 52 involving gang members, in the jail. In 2012, the number soared to 209, with over half involving gang members. So far this year there have been 59 assaults, 29 involving gangs.

CA Prison Mental Health System Not Ready for Transition:  Don Thompson of the Associated Press reports that U.S. District Judge Lawrence Karlton has rejected California's bid for transition of control over its prison mental health care facilities back to the state. The federal judge ruled Friday that CA did not prove its level of care meets U.S. Constitutional standards. With more than 32,000 mentally ill prisoners, the CA prison system has a suicide rate at 24 per 100,000 inmates. The figure is three times higher than the national average of 16 per 100,000 inmates. Judge Karlton threw out some data pointing to improved conditions gathered by state experts because they had talked to inmates without alerting their attorneys. The state will appeal the ruling on behalf of Governor Brown. Continued from this News Scan.

AL Murderer Loses Appeal, Stays on Death Row:  Kelsey Stein of Alabama News reports that Alabama murderer Robert Bryant Melson's appeal of his death sentence was rejected Thursday, by the 11th Circuit U.S. Court of Appeals. Melson was convicted of the 1994 shooting murders of three employee of a Popeye's restaurant, and leaving a fourth for dead.  Melson, 22 at the time, and accomplice Cuhuatemoc Hinricky Peraita, who was 17, entered through the back of the establishment, stole $2,000, forced the employees into the restaurant's freezer unit, then shut them inside. When the door opened one of the pair, believed to be Melson, opened fire on the employees.  In his third unsuccessful appeal Melson's claimed  "attorney abandonment" had been rejected by the U.S. District Court.  His accomplice was serving a life sentence until he was sentenced to death for murdering a fellow inmate.

Concerned Clovis Citizens Call for Realignment Reform: Stephanie Stone of ABC News reports that parents in Clovis, California are trying to organize against, and raise awareness about, AB109. Autumn, a Clovis resident with three children, cites the influx of criminals such as Michael Anthony Wyatt into her neighborhood. Wyatt, a felony sex offender, was arrested on a high school campus in March. He was released from Fresno County jail because of overcrowding, a direct result of Realignment. The Sacramento-based Advocates for Public Safety is trying to change AB109. The group's director, Lynne Brown, is raising awareness about AB109's dangers in neighborhoods statewide. Under Realignment, 500 felonies are classified as non serious, non violent, and non sexual. Brown says this broad definition is letting violent, dangerous criminals back into communities like Clovis, placing the public at risk.

Santa Cruz Crime Rate Among Top in CA:  Jason Hoppin of the Santa Cruz Sentinel reports that crime in Santa Cruz, California is becoming a major issue. The city had a rate of one property crime for every 18 citizens in 2011, higher than Los Angeles, San Francisco, and Vallejo. The rise in violent crime claimed the lives of two police officers in February. Discussed here. In response Santa Cruz residents have formed groups like Take Back Santa Cruz, co-founded by City Council member Pamela Comstock. City Councilman Don Lane cites the city's party town environment as a contributing factor to crime, noting that people often come to the city to drink and indulge in drug use, particularly meth and heroin. Due to the city's 2006 adoption of Measure K, weakening marijuana laws, the Police Department lost some of its cohesion with the DEA, weakening its ability to enforce laws against harder drugs. The city also has a large transient population, which is debated as a possible factor for the high crime levels.The City Council will be discussing Santa Cruz's crime problem this week.

A Defense Shrink Makes Parody Blush

I have been staying miles away from the Jodi Arias trial because there is only so much I can take.  To sum it up very briefly, Ms. Arias does not deny stabbing her boyfriend (or ex-boyfriend, it's not clear which) 27 times, shooting him, and then slitting his throat.  She is claiming "self-defense" and no, that is not a typo.

As is almost always the case, the defense has shifted away from what the killer did to what, supposedly, she was thinking.  This has the advantage, from the defendant's point of view, that, while that a guy with his head nearly cut off can show up in a photograph to be shown to the jury, the defendant's mind can't, so you can always spin some yarn about it if you're creative enough.

It also has the advantage of allowing the defense to call psychiatric "experts," one of whom I have disrespectfully labelled a "shrink" in the title of this post.  But I have my reasons: The shrink is now testifying about one area of her expertise, to wit, whether Snow White was an abused woman.  And no, I am not making this up.

Margaret Thatcher, RIP

Alistair MacDonald reports in the WSJ:

Margaret Thatcher, the former British prime minister who became one of the most influential global leaders of the postwar period, died on Monday, three decades after her championing of free-market economics and individual choice transformed Britain's economy and her vigorous foreign policy played a key role in the end of the Cold War.
Margaret Thatcher and Ronald Reagan were the towering giants of their time.  We could really use a leader like them in the United States right now.

First the Death Penalty, then LWOP

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Since the public overwhelmingly supports the death penalty, the opposition has to rely, and does rely, on deceit about their proposals for alternate punishments.  It takes many forms.  One is the promise of compelling inmate/killers to provide restitution (see Prop 34), which abolitionists know full well will never happen. Another is to pretend to seek merely a "moratorium"  -- only it's a "moratorium" with no ending date.  Probably the most common is the promise of ironclad LWOP.  Only it won't be ironclad, and it won't long be LWOP either. 

 Dudley Sharp, in an emailed message, reminds us of this, noting:

For those of us active in the death penalty debate, we have been saying for some time that the end of the death penalty would usher in the beginning of the end of LWOP. This has been the "canary in the mine shaft" warning for decades.
Our anti death opponents have been saying "nonsense", with as much sincerity as North Korea and Iran in curtailing their nuclear efforts.
We were wrong, in our prediction of timing.  The effort to end LWOP started much sooner than expected and, as predicted, is following the same game plan as the anti death penalty movement did with that sanction.

Kamala Harris for SCOTUS?

President Obama is taking flak today for calling California Attorney General Kamala Harris "the best looking attorney general."

The President might be criticized for many things, like bankrupting the country, but the yelping that he's "sexist" is nonsense.

Liberals, please, get a life.  Obama hit the nail on the head:  Ms. Harris is, indeed, very attractive.

The problem is not her appearance or remarks about her appearance.  The problem is her public record and legal philosophy, which includes, but is hardly limited to, opposition to the death penalty, a punishment California voters recently reaffirmed.

Ms. Harris, it seems, is being "mentioned" as a possible Supreme Court nominee. But her noteworthy path to prominence eclipses her legal acumen, as Ed Whelan demonstrates.

News Scan

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CA Jail Medical Costs Increased Under AB109:  Jennie Rodriguez-Moore of the Record News reports inmates being moved to San Joaquin County Jail as a result of Realignment are costing the county more than initially estimated. The number of inmates in need of medical service rose from 162 to 730 from the first month of Realignment through September. One inmate's medical expenses over a one month period amounted to $18,000. San Joaquin County Jail, like other California jails, was not meant to hold inmates long term. AB109 has forced jails to be filled with offenders serving lengthy sentences and  medical treatments for long term inmates are now being added to the county's costs. 26 percent of the 2,282 inmates seen on-site from October 2011 to September 2012 were AB109ers. Hospital costs for inmates reached $530,000 in the first year, $105,600 of which came from realigned inmates. Prescriptions totaled $740,208, $180,408 of that from realigned inmates. San Joaquin County Sheriff Steve Moore hopes the Realignment jail population will level off, but says that the situation needs to be monitored.

Ex-Felons to Be Given Health Coverage Under Obamacare:  Michael Ollove of Stateline News reports that many of the almost 5 million ex-offenders and the 650,000 inmates released annually will be eligible for health coverage under the Affordable Care Act by January 2014. Arguably, this will fight the spread of chronic and infectious diseases including HIV, Hepatitis C. Inmates have a highers than average disease rate compared to the general population. Ex-cons not eligible for Medicaid due to their income levels may also still be able to get federal tax credits which they could use to pay for health insurance.

MS Murder Suspect Shoots Cop, Himself During Questioning:  Holbrook Mohr and Jeff Amy of the Associated Press report Jeremy Powell, 23, shot and killed Detective Eric Smith before turning the gun on himself Thursday in Mississippi. Powell, a murder suspect, was being questioned at police headquarters in Jackson when he wrestled Smith's gun away from him, fatally shot the detective, then took his own life. Autopsies are being performed Friday and the investigation into the incident is ongoing.

SCOTUS TV Debate, Cont.

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Last week veteran WaPo journalist Walter Pincus had this column making the case for keeping cameras out of the U.S. Supreme Court.  Yesterday the WaPo printed this letter from veteran Supreme Court reporter Tony Mauro in reply.

My suggested compromise is here.
Q:  What's worse than a bunch of defense-friendly Stanford Law students presenting Gov. Moonbeam with their "study" about the wonderfulness of Realignment?

A:  Not a whole lot.

The story is almost (but not quite) indecipherable because of its intentionally opaque academic gobbledygook.  Maybe someone smarter than I am can translate it.  I was able to figure out, however, that it never contains any plain truth like, "California citizens are going to suffer more crime because of this thing; it's only a matter of how much and how bad."

Still, stuck in near the end is this paragraph:

One repeated concern the student researchers heard from numerous practitioners across the state is the challenge counties face in effectively supervising a new type of offender. As explained by second-year student Mariam Hinds, "Counties are dealing with a more criminally sophisticated and hardened caseload due to the fact that some realigned offenses are more serious than pre-Realignment offenses that would have been sentenced locally and some inmates being released back to the counties from prison on post-release community supervision have serious or violent criminal histories."

You can kind of see what they're saying, or, more correctly, prefer not to say.
"Everything should be made as simple as possible, but not simpler."  This variation on Occam's razor, attributed to Albert Einstein, shifts the emphasis to warn against oversimplification as well as overcomplication.

In drug policy debates, there is a lot of oversimplified claptrap on both sides.  A note of caution on marijuana comes to us from across the pond.  The title of this post is the headline of this story in the London Telegraph by John Bingham.

Drowning in Diversity

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This post has nothing to do with crime, but it's too good to pass up, especially since one of today's posts was about diversity and the next was about dihydrogen monoxide.  This post is about both, after a fashion.

The title, from "The Corner" at National Review Online, says all you need to know.  

City of Phoenix Recruiting Minority Lifeguards
Even If They Can't Swim

The story remarks, "The kids in the pool are all either Hispanic or black or whatever, and every lifeguard is white, and we don't like that," said [a city] official, who cited a language barrier as one of the city's concerns."

Some of us had been under the impression that, for the work of a lifeguard, drowning would be "one of the city's concerns," but, hey, that was then.
Orin Kerr at VC points us to this opinion of the Appellate Division of the Fresno Superior Court.

Public concern about the dangers of distracted driving has led to legislation that limits the use of cellular phones and electronic communications devices while driving. The drive behind this legislation was the concern about the interference with the driver‟s attention caused by the physical aspects of using these devices. This case requires us to determine whether using a wireless phone solely for its map application function while driving violates Vehicle Code section 23123. We hold that it does.
At the time the law was enacted, phones were phones.  Now phones are minicomputers.  It's not against the law to look at a paper map while driving.  Should it be against the law to look at a map on a smart phone while driving?  Is a phone still a phone when it's being used as a map?

News Scan

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OH Craigslist Killer Sentenced to Death:  Kim Palmer of Reuters reports that Ohio Judge Lynne Callahan sentenced Richard Beasley to death Thursday. Beasley, who used the website Craigslist to lure his victims, was convicted of kidnapping and murdering three people and attempting to murder a fourth. Beasley's fourth attempted victim, Scott Davis said he will be watching and will be happy to see him executed. Continued from this News Scan.

CA Man Pleads Not Guilty in Northridge Kidnapping:  Greg Risling of the Associated Press reports that alleged child kidnapper Daniel Martinez entered a not guilty plea Wednesday to the charges of kidnapping and burglary. Martinez, 29, is believed to have aided Tobias Summers, 30, in kidnapping a 10-year-old girl from her Northridge home on March 27. Prosecutors say Martinez left after the abduction, and Summers repeatedly raped the girl. Summers is still on the loose and is thought to be in the San Diego area or in Mexico. Summers has been convicted of robbery, theft, kidnapping, and explosives possession since 2002. He was also suspected of battery in a child annoyance case in 2009. He was put on probation under Realignment in July 2012. According to LAPD Deputy Chief Kirk Albanese, Summers was arrested on January 13, 2013 for violating his probation and released only three days later. Continued from this News Scan.
Update: Los Angeles Police Chief Charlie Beck announced Friday that police have a video of alleged child killer and rapist Tobias Summers entering Mexico a few days ago. Chief Beck is unclear whether Summers is still in Mexico or back in California at this time.

CA Convict Released Under Realignment Held for Rape: 
Robert J. Lopez of the Los Angeles Times reports that Juan Francisco Aguilera is now being held on suspicion of rape. He had been released from prison to probation in San Bernardino County under AB 109. Aguilera allegedly raped his victim at a motel Monday night threatening to kill her if she reported him. He has an extensive criminal record, including: convictions for robbery, grand theft auto, drug possession, receiving stolen property, intimidating or dissuading a victim or witness, and is known to associate with gangs. Fontana Police Chief Rod Jones cites the case as a prime example of his concerns under Realignment and expects the problems to increase.

The Supreme Court's jurisprudence on lab techs and the Confrontation Clause is a mess.  The fractured opinions leave everyone scratching their heads trying to figure out what the law is.  There are huge practical problems with having the person who did the analysis testify.  First, the process is often a team effort, so there is no one person.  Second, people often quit or get laid off.  Sometimes a key person is dead by the time of the trial.

For more background, see this post from last year on Williams v. Illinois and this post from 2011 on Bullcoming v. New Mexico.

Today, the Court of Appeals for the District of Columbia decided Young v. United States, throwing out the conviction of a rapist because the supervisor, not anyone who actually worked on the lab analysis, testified at trial.  Zoe Tillman has this post at BLT.  "A spokesman for the U.S. attorney's office, William Miller, said via email that his office is 'reviewing the decision and has no further comment at this time.' "

The D.C. Court of Appeals is treated like a state supreme court for many purposes, including review of its decisions.  If DoJ wants to take it up, they have to file a certiorari petition with the U.S. Supreme Court.  (See 28 U.S.C. §1257(b).)

Dihydrogen Monoxide

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The dreaded substance dihydrogen monoxide is in the news yet again. (See this post.)

Two Florida DJ's reported, on April 1, that the substance has been detected in the Lee County water supply.


We hear a lot about diversity.  Yet the kind of diversity that academia needs most is rarely mentioned.  Nick Rosenkranz at VC notes that the Harvard Federalist Society is doing something about it:

The Harvard Chapter of the Federalist Society is hosting a very important conference tomorrow on intellectual diversity in the legal academy.

Many people realize that legal academia "leans" to the left. But even alumni -- indeed, even major donors -- are often unaware of the extent of the imbalance. At Georgetown, for example, the ratio of liberals to conservatives/libertarians is roughly 116 to 3. At most top schools, the ratio is similar. One might quibble about definitions, but even on the broadest conception of "conservative" or "libertarian" or, let's just say, "right of the American center," most top law schools can count such professors on one hand. In public law, and particularly constitutional law, the disparity is even more extreme.
The conference agenda is here.  I won't make it to Cambridge tomorrow, so I hope this comes out is some recorded form in the not-too-distant future.

Just Say No to Drug Legalization

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Peter Wehner asks whether the Republican Party should "get with it" by supporting drug legalization.  His answer is "no."

CJLF takes no position on legalizing pot.  Colorado and Washington voters supported it; Oregon and California voters (in Prop 19) declined.  No state has legalized the harder drugs and, to my knowledge, none is even considering doing so.

With all respect to my libertarian friends, I oppose legalization for the reasons Wehner explains in his thoughtful essay.  Here, I will only repeat its conclusion:

[I]n some liberal and libertarian circles, the "language of morality" is ridiculed. It is considered unenlightened, benighted and simplistic. The role of the state is to maximize individual liberty and be indifferent to human character.

This is an impossible stance to sustain. The law is a moral teacher, for well or ill, and self-government depends on certain dispositions and civic habits. The shaping of human character is preeminently -- overwhelmingly -- the task of parents, schools, religious institutions and civic groups. But government can play a role. Republicans should prefer that it be a constructive one, which is why they should speak out forcefully and intelligently against drug legalization.

There is an intriguing study about the fall of the Berlin Wall that is producing a lot of misleading headlines.  For example, the London Telegraph has this story by Jeevan Vasagar, which an editor has headlined, How the fall of the Berlin Wall may have raised a generation of criminals.

Huh?  Could the fall of the Berlin Wall really have had the pernicious effect of causing people to be criminals?  No.  That is not what the study actually shows.

Start with the unremarkable proposition that good parenting is a major determinant in whether a person grows up to be a law-abiding citizen.  Add the equally unremarkable proposition that, as an overall trend, babies born to families who planned to have them are more likely to be blessed with good parenting than those whose arrival was not a desired result.

Next, if events cause great uncertainty for the future, so that women who would otherwise have had planned pregnancies decide to put off their childbearing for a few years, then the unplanned will be a greater proportion of the cohort of children born in those years.  If the unplanned have the same crime rate as they otherwise would, the overall crime rate for the cohort is higher because their numbers are not buffered by as many of the planned children as they otherwise would have been.

That is apparently what happened in East Germany in the early 1990s.

Open Season

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Now comes word that a recently elected West Virginia sheriff, Eugene Crum, was gunned down yesterday.  A suspect has been shot and is in the hospital.

The story notes:

Though there is no indication of any connection, Mr. Crum's killing comes on the heels of a Texas district attorney and his wife being shot to death in their home over the weekend, and just weeks after Colorado's corrections director [Tom Clements] also was gunned down at his home.

Not mentioned is the murder less than ten weeks ago of Assistant DA Mark Hasse, also in Texas.

I am tempted to launch a little nasty snark here by wondering whether the "atmosphere of hate" directed against prosecutors and police is responsible for what's going on.  I will resist the temptation.  First, I have no specific evidence to support it, which is sufficient per se to counsel circumspection.  Second, accusations like that, even if they turn out to be true, are poisonous.  The great majority of our adversaries aren't haters, they're just wrong.  But they would get tarred with the "hater" brush, just as are so many of us who support the death penalty. Third, while everyone is at some point tempted to hit back at opponents who routinely use ad hominem instead of analysis, it's the wrong thing to do.

This blog is ultimately about argument, and it's impossible to have a wholesome or even a sensible argument when people are tossing around this "atmosphere of hate" stuff.  Let's just find the killers and give them justice.

Barack Obama, Gun Control Demagogue

Gun control rouses considerable passion, to say the least  It's also a complicated subject, because it involves a mix of mind-numbing horror (e.g.,the Sandy Hook child massacre and the Aurora shootings), the difficulties in a free society of preemptively institutionalizing possibly quite dangerous people, and the Constitutional right to keep and bear arms, a right intimately linked to the right of self defense.  There's also the more "routine" fact that almost all murder is committed with guns.

So I don't blame people for being emotional about it.  I do, however, blame the President of the United States for being a shameless, huckstering demagogue.  He's pushing several gun control proposals in Congress.  There is a great deal of controversy about them by people of good faith, many who support some elements but would change or supplant others, and some who might be ready to support most of them, but are nervous about what they fear may be the President's broader gun agenda.  

The problem is that Obama, insultingly and falsely, implies that his opponents, simply by virtue of their opposition, have "forgotten" the Sandy Hook victims, are insincere and not "serious," or are just politically craven.  Watch the tape here.

For a man who so often calls for "civility," this bullhorn impugning of the other side's motives and basic humanity is appalling.  And from the President of the United States, it's worse than appalling.  It's dangerous.
Campbell Brown has this op-ed in the WSJ:

There was something missing from President Obama's Wednesday speech in Denver about gun violence. He focused almost exclusively on passing gun-control laws, and not at all on one of the nation's biggest promoters of violence: the entertainment industry.

The president's campaign against gun violence has produced a stale debate marked by lots of speeches with little achieved. A more creative chief executive would have used this moment to widen the discussion by drawing attention to the increasingly graphic violence so pervasive in television shows, movies and videogames. Mr. Obama is particularly well positioned to challenge Hollywood because of his special relationship with the media world's elites. They might be more likely to heed criticism coming from Mr. Obama than from any other president or member of Congress.

Denver Post Letter

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As Bill noted yesterday, the Denver Post has editorialized against the DA's decision to seek the death penalty for the Aurora theater mass-murderer.  Today they printed my letter to the editor on the subject.  Letter writers only get 150 words.

Who's Winning the Death Penalty Debate?

Reader Federalist notes in a comment that, while abolitionists do indeed lie in the death penalty debate, they're winning.

I can see why he's worried.  On the whole, however, abolitionism is not winning.

The best evidence of this is the defeat of Prop 34 in California five months ago.  It lost by close to a half million votes, at the same time Californians were overwhelmingly choosing to loosen their three-strikes law (by over four and a half million votes) and re-elect President Obama (by over three million votes).  When voters in our largest and one of our most liberal states choose the death penalty over LWOP, and do so on the same day they are otherwise massively choosing two distinctly liberal outcomes, it's just very, very hard to make the case that abolitionism is winning.  When it's losing in California, it's losing period.

I explained the ramifications of the Prop 34 vote at some length here, but there is yet more evidence that our side is doing better than the opposition.  Five items in particular should be noted.
A few years back, I was interviewed by Atlantic magazine for an article they were doing on the death penalty.  As you can imagine for that publication, I was carrying water uphill.

Times have changed, but the Atlantic hasn't.  It now has a piece by Andrew Cohen titled, "In Aurora Shooting Case, a Public Pushback Against the Death Penalty."  The article begins thusly:

To give you a sense of how far the public debate over capital punishment has moved toward rationality over the past few decades you need only read Tuesday's house editorial in The Denver Post [opposing] a Colorado prosecutor's decision to seek the death penalty in the Aurora theater shooting case.

It's telling that Cohen uses one editorial in a leftist newspaper to assess the broad "movement" of the "public debate" (he does later cite a second newspaper editorial).  One might think he'd consult a wider variety of sources.

Out of curiosity, I did.  What I found is that  Andrew Cohen is a flagrant liar.

Wisconsin Supreme Court Election

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Patrick Marley reports for the Milwaukee Journal Sentinel:

State Supreme Court Justice Patience Roggensack easily won a second term Tuesday, overcoming Marquette University law professor Ed Fallone.

With 93% of precincts reporting, Roggensack had 57% of the vote to Fallone's 43%.
From the story, it doesn't appear that criminal law issues were much involved in the campaign.  Well, unless you count the assault/self-defense dispute between two of the other justices.
In McCleskey v. Kemp (1987), the US Supreme Court rejected an attack on a death sentence based on a statistical study.  The study supposedly showed that, even though black defendants were no more likely to be sentenced to death than white defendants for similar crimes, there was a disparity based on race of the victim.  (The study did not really show that, as explained in my OSJCL article, but the Court assumed that it did for the sake of argument.)

The New Jersey Supreme Court accepted the McCleskey argument on independent state grounds, but in the end the murderers failed to prove their case.  The Kentucky Legislature adopted it by statute, but apparently nothing ever came of that.

In 2009, the North Carolina Legislature adopted a similar statute, vague and badly drafted.  The proponents gave it a grossly misleading name, which I decline to use here.  The act has held up executions in that state, along with the lethal injection litigation.

Today, the North Carolina Senate passed a bill, 33-14, to repeal the anti-McCleskey act.  SB306 also fixes the misuse of medical regulation to block a lawful procedure that has nothing to do with the practice of medicine.

Paul Woolverton has this article in the Fayetteville Observer.

News Scan

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Realignment Criminal Arrested After Robbery Spree: Kim Minugh of the Sacramento Bee reports that Emanuel Looney, 28, was arrested Tuesday for multiple robberies in the Sacramento area. At about 1 a.m. on Tuesday, Looney allegedly entered a convenience store and robbed the clerk at gunpoint. Immediately after, he allegedly knocked on the door of a home, still armed, and forced his way inside when the door opened. He demanded money and stole the victim's car. The vehicle was spotted by officers at 1:45 a.m. Looney led officers on a pursuit then fled the car on foot. He was arrested after running into a park which deputies surrounded. In 2008, Looney received a 3-year prison sentence for the felony charges of possession of stolen property, grand theft auto, resisting arrest, and falsely identifying himself to police. He was released on probation (called Post Release Community Supervision) rather than parole because of Realignment. 

CA Convicts Released Early, Unsupervised:  The Associated Press reports that many California counties are sentencing the majority of convicts to straight jail sentences in lieu of a combined custody and supervision program. Due to continued jail overcrowding under Realignment, convicts are being released before their time is served and are exempt from supervision under the terms of their sentences. Law enforcement and probation officers say they have no way of tracking these felons, stressing the growing threat to public safety. According to data covering October 2011 through September 2012, only 31 percent of convicts realigned to county jails have been given split sentences; Over two-thirds have opted for straight time without supervision upon release. Only five percent of inmates in Los Angeles County are serving split sentences. More in this blog entry.

CA GPS Trackers Flawed: 
The Associated Press reports California officials replaced thousands of parolee ankle monitors last year after field tests confirmed flaws. The devices were found to have inaccurate location reporting problems and ineffective tamper alert systems. Some devices could be disabled when covered with foil, or by using illegal GPS jammers. 3M Co., the GPS supplier for about 4,000 parolees, was denied a state contract worth approximately $51 million over a six year period after a second round of tests confirmed the faulty nature of the devices. Although a Sacramento County judge ruled that Denise Milano, head of the state's GPS monitoring program, violated  contract laws by rejecting 3M Co.'s bid, her decision was still upheld based on the flaws discovered. The devices were replaced by another company, Satellite Tracking of People, based out of Houston, Texas. About 7,900 people are currently monitored by the new devices.

Double Cop Shooter Gets 60 Years: 
The Sun-Times reports that Rashaun Carlisle was sentenced Tuesday to 60 years in prison for shooting two Illinois police officers in 2010. Carlisle, a gang member, got into a fight with rival gangsters at around 2:30 a.m.on May 8, 2010 in a liquor store parking lot. Following the altercation, he retrieved a sawed off double-barreled shotgun from his home then returned to the parking lot. The area had been vacated except for police officers and one of the men involved in the fight. Carlisle opened fire on the officers, permanently disfiguring the face of one and killing another with a shot to the chest.

Aryan Brotherhood May Be Responsible for TX Law Enforcement Killings:  Pierre Thomas and Russell Goldman of ABC News report that investigators are examining whether a white supremacist prison gang played a role in the recent Texas slayings of District Attorney Mike McLelland and his wife and Assistant DA Mark Hasse. Both men were responsible for indicting members of the Aryan Brotherhood of Texas and members of Mexican drug cartels. Law enforcement officials have been on the alert for retaliation since December, a month after 34 suspected associates of the prison gang were indicted on federal racketeering, murder and drug conspiracy charges. Ten of those indicted could receive death sentences. Authorities also suspect they may be involved in the March killing of Colorado Prisons Chief Tom Clements. Alleged gang member Evan Ebel had various white supremacist tattoos on his body. Continued from this blog entry.

DNA Helps Close Cold Case From 1996: 
The Philadelphia Inquirer reports that Florida convict Rafael Crespo was linked to the 1996 rape and murder of 17-year-old Anjeanette Maldonado Monday in Philadelphia. The match came from a sample that was entered into the Federal Bureau of Investigation's Combined DNA Index System during the cold case investigation.

Good News in Academia Didn't Last for Long

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I recently posted about good news for legal education, to wit, that Columbia, Stanford and NYU have adopted a program under which military veterans can get a law degree without being charged tuition.

It didn't take Columbia long to throw a wet blanket on all that.  As my friend Scott Johnson on Powerline notes:

[T]he New York Post reports that Columbia University has honored Kathy Boudin -- the Weather Underground terrorist who spent 22 years in prison for the armored-car robbery that killed two police officers and a Brink's guard -- with an adjunct professorship at Columbia's School of Social Work. Columbia lists her as an assistant professor. Among her listed areas of expertise is "restorative justice." In 2003 Boudin was paroled for felony murder that resulted in a lot of kids being left without dads. I wonder if she has restored any justice to them.

My credentials as an adjunct professor are no match for Ms. Boudin:  The worst I did was spend a few years as an AUSA and a White House aide for President George H. W. Bush.  Maybe if I blow up a Brinks truck, I can ask the University for a raise. 

Meet Professor Boudin:

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Libel Suit By Convicted Murderer

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Zoe Tillman has this post at BLT:

Yorie Von Kahl was convicted of second degree murder in the 1983 fatal shooting of two deputy U.S. marshals in North Dakota. Kahl was sentenced to life in prison, but he scored a recent win from a Washington federal judge who found that Kahl could proceed with a libel suit against The Bureau of National Affairs, Inc. (BNA) over a summary of his case published by the company.
BNA's summary of the case said Kahl "showed no hint of contrition."  That turned out to be a prosecutor's argument rather than the judge's ruling, but Kahl himself may be partly responsible for the confusion.

News Scan

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Another Bill Proposed to Change Realignment:  Don Thompson of the Associated Press reports that Assemblyman Ken Cooley (D Sacramento) has proposed AB222 an an attempt to change part of California's realignment law AB109. The proposal would send anyone convicted of selling or transporting 2.2 lbs or more of heroin, cocaine, or methamphetamine to state prison. Approximately 40 offenders meeting these conditions are currently serving lengthy sentences in county jails, some of which are longer than a decade. If AB222 passes, it would free up county jail space making room for less serious offenders and keep major drug traffickers in prison.

WA Sex Offender Accused of Rape Just Days After Release:  Christine Clarridge of the Seattle Times reports that convicted sex offender Ricky Lee Lewis, 55, allegedly kidnapped and raped an 18-year-old woman on March 20 in North Seattle. After failing to check-in with the King County Sheriff's Office, he was summoned to court on March 14. However, the judge set him free without bail less than a week later. Lewis was a level III sex offender at the time of his release, considered to be at high risk for reoffending. He was released from prison in 2003 after serving a 10 year sentence. In 1993, Lewis was convicted of raping a woman. He also raped a 15-year-old girl in 1985. If convicted, Lewis will serve a mandatory life sentence under Washington's two-strikes sex offender law.

MT Sex Offender Bill Becomes Law:  Bryan Cohen reports that Montana Attorney General Tim Fox's bill, SB 213, was signed into law by Gov. Steve Bullock last week. The new legislation closes a loophole in the state's sex offender registry law. It allowed sex offenders from out of state to opt out of providing a DNA sample to the state's database. Fox hopes the law, which goes into effect October 1, will help solve cold cases and increase public safety.
Carol McKinley and Christina Ng have this story for ABC on the Arapahoe County DA's decision to reject the plea bargain offer and seek the death penalty for James Holmes for the murder of 12 people in a theater in Aurora, Colorado last year.

Friends of Aurora shooting victims applauded prosecutors' decision today to seek the death penalty for James Holmes, with one friend saying he wanted to be in the room if Holmes is executed.

"I don't know if it's painful. I want him dead. I just want to be there in the room when he dies," Bryan Beard said outside the Colorado courthouse. "He took one of my friends from this Earth. Death equals death."

*                             *                          *
Brauchler said his office has reached out to 800 victims and that he had personally spoken with relatives of 60 victims who died and were injured.

Near the end, the story notes the victims' families are divided on the question.  Another story today (which I don't have a link to) quoted one as concerned with the 15 years of appeals.

But these cases don't have to take 15 years.  In a case with no doubt of the identity of the perpetrator, we should have all reviews done in 6 years or less.  Virginia did it with the D.C. Sniper, and cases don't come any more complex than that one.

The penalty decision in a capital case should get one full and fair review.  Any reviews after the first should be limited to issues of guilt.
One of the principal claims made in the argument to replace the death penalty with LWOP is that the latter will keep us just as safe as the former.

There a number of flaws in the argument, but the main one is that it's an outright lie.

An executed murderer cannot do it again.  A murderer sentenced to prison can, and this blog is replete with stories of its having happened.  My "favorite" is the Clarence Ray Allen case, but that's far from the only instance.

The basic (but not the only) reason LWOP can never displace the death penalty as the only sure way to de-commission killers is easy:  Prisons are fallible.

The most telling example (this week) of this fact is the disclosure, by ABC News among other outlets, that the violent inmate who killed Colorado Corrections Commissioner Tom Clements "was released from prison four years early because of a clerical error."

The severe risk of danger to innocent life is acceptable  --  indeed it is necessarily acceptable  --  to those pushing LWOP as the alternative to the death penalty.  I just wish they'd be honest enough to say so out loud.

Bi-Partisan Cooperation on Crime

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Usually, when I read a story about "bi-partisan cooperation" on crime, what that tells me is that some Republican with the IQ of a grapefruit got snookered by a smooth-talking Democrat into co-sponsoring legislation to dumb-down criminal law.

Not this time.  This story may well redefine the meaning of "bi-partisan cooperation on crime."  It is about politics, and certainly about crime, but not about legislation.

It's almost enough to make me wish that Mayor Bloomberg would stay on.  Almost  --  but not quite.

Fatal Tagging

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Bill Lindelof reports for the SacBee:

The Sacramento County Coroner's office has released the name of the man whose body was discovered Monday morning hanging from rope outside the 16th floor of a downtown building.

He was identified as Craig Michael Fugate, 30, of Vancouver, Wash. The coroner's website lists the cause of death as undetermined.

Sacramento police spokeswoman Michele Gigante said Fugate apparently died accidentally while trying to vandalize the building's exterior.

Battalion Chief Craig Wiedenhoeft, of the Sacramento Fire Department, said Fugate accidentally asphyxiated himself.

Wiedenhoeft said the rope that looped around his chest and legs had constricted him. "He got pulled into a fetal position when the rope cinched up on him," he said.

Your Tax Dollars At Work

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Denise Lavoie reports for AP:

A ruling ordering Massachusetts officials to provide sex-change surgery for a transgender inmate takes prisoners' constitutional rights to adequate medical care to "new heights," a government lawyer argued Tuesday to a federal appeals court.

You Can't Make This Stuff Up

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Yesterday, I wrote about a defense lawyer whose pretrial spin on his client was denial of factual guilt.  That's hardly out of the ordinary; indeed it's standard practice. It's not uniform practice, however, because there are some cases  --  James Holmes, the Aurora, Colorado shooter, for example  --  where it just makes the defense seem disconnected from reality to maintain factual innocence.  Yesterday's case was like that:  A father, furious at his wife for leaving him, drove to her new house and butchered (literally) the couples' three little girls, then called his estranged wife to say, "You can come home now because I killed the kids."  To refuse to concede factual guilt on a record like that seems not just misleading but foolish.  Are you doing the client any favors?

Anyway, after most or all of the suppression motions tanked, the defense lawyer finally publicly conceded factual guilt, shifting to the usual Plan B (the client did it, but only because he had "a major depressive disorder").

Just when you think things can't get any sillier (or more nauseating)...
Chad Flanders of St. Louis U. School of Law has posted this paper on SSRN.  Here is the abstract:

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders. This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment. The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor of the death penalty. Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that are not intrinsic to the theory of punishment or puts into question that theory's ability to serve as a theory of punishment in general. Punishment theory provides little basis for sound arguments against the death penalty. Perhaps one could mount a better attack on the death penalty using ideas outside of punishment theory, such as "dignity," "decency" or "civilization," but so far, the death penalty's opponents have not met their burden of persuasion.

News Scan

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CA Gov. Grants 65 New Pardons:  David Siders of the Sacramento Bee reports that California Gov. Jerry Brown pardoned 65 convicted criminals on the day before Easter. Those pardoned had not reoffended since their release from prison ten years ago. Most were convicted for drug or property crimes. However, one of the pardoned was a convicted murderer; two were convicted of manslaughter. The 65 are in addition to 128 pardons the governor granted last year. Gov. Arnold Schwarzenegger had pardoned only 16 people and commuted 10 sentences while in office. Schwarzenegger's predecessor, Gray Davis, pardoned no one. KCRA News reports the pardoned can serve on a jury and purchase firearms. Governor Brown had also signed 79 pardons on Christmas Eve. Advocates for Public Safety Founder Lynne Brown said, "Now, we're pardoning murderers as well? ...When does justice for victim's take priority?"

Suspected CA Kidnapper Was Released Under Realignment:  Jason Kandel, Samantha Tata, and Christina Cocca of NBC News report that Tobias Dustin Summers, 30, is being sought by the LAPD as a suspect in the kidnapping of a 10 year old girl in the Northridge, CA area. Summers is a long time criminal who, despite a criminal record including kidnapping and assault and battery, was released from prison in July 2012 under Realignment. Jonathan Lloyd and Toni Guinyard of NBC News report that a suspected accomplice in the kidnapping, Daniel Martinez, 29, was arrested Monday. The search for Summers has expanded to the San Diego area. The kidnapped girl, who is now safe but not being named, was abducted from her bedroom at 3:00 a.m. on March 27. She was dropped off at a hospital and walked to a Starbucks where she was recognized.  Police found her barefoot with bruises and cuts on her face about 12 hours after she was kidnapped. In this Press Release, Los Angeles County Supervisor Michael D. Antonovich said:

"The Governor's FAILED realignment program is a proven threat to public safety which has overwhelmed probation departments and local law enforcement agencies statewide. The Governor needs to take the proper steps and call a special session of the legislature to repeal this reckless program."

Critics Cite AB 109 Failures, Call for Repeal:  Mike Luery of KCRA News reports victim's rights advocates from across the country gathered in Rancho Cordova Friday to protest AB 109, Governor Brown's Realignment law. The law has shifted 24,000 inmates from state prisons to county jails. Local jails are often filled beyond capacity which forces the early release of criminals. Marc Klaas, president and founder of Klaas Kids Foundation, says the program would more appropriately be called "felon dump" instead of realignment. Kathleen Moore, of Army of Angels, says the program should be repealed completely. Advocates maintain that, if they cannot get a repeal, they will begin gathering signatures to take the issue directly to voters.

Los Angeles Shootings May Be Connected to AB 109 Releases:  The Huffington Post reports that local police are concerned the recent upsurge in shootings in Los Angeles County may be due to Realignment. Covina Police Chief Kim Raney told reporters that the past 16 months have shown an increase in property crimes and that crimes are turning violent. In the three days before March 20, 11 shootings were reported in southern California. Raney believes the uptick in violent crime is directly connected to dangerous criminals who are no longer serving their sentences and are being released with minimal supervision under AB 109. There have been 13 bills put forward by Republicans aimed at fixing some of the problems with AB109. These measures would send some offenders back to prisons, increase parolee supervision, and strengthen penalties for sex offenders and illegal arms dealers. Bills discussed in this News Scan.

AZ Campaign Seeks to Give Free Shotguns to High Crime Areas:  The Associated Press reports a campaign has been launched in Tucson, Arizona by the Armed Citizen Project to introduce free shotguns to high crime neighborhoods. The group began a similar campaign in Texas earlier this year, where some residents have said the program has given them a renewed sense of security. Conflicting statistics and studies over whether or not gun ownership reduces crime have proved inconclusive. Continued from this News Scan.

CA Trafficking Case 1st Under Prop. 35:  Mike Landa of KNX 1070 reports that a prostitution case in Orange County will be the first under the state's recently implemented Prop 35. Chuncey Tarae Garcia, 33, has been charged with felony counts for human trafficking and forcible rape. Cierra Melissa Robinson, 27, is charged with human trafficking in the same case. The pair forced a 14-year-old out of state runaway into prostitution. Under the new human trafficking law, Garcia faces a possible maximum of 28 years to life in prison. Robinson faces a maximum sentence of 12 years in prison.
The WSJ has an editorial titled "Judges, Politics, and George Soros."

Of all the ways to select judges, among the worst is to restrict the chief executive to choosing from a short list given to him by a committee dominated by the state bar.  This method is sometimes called the "Missouri plan."  A common and grossly misleading name is "merit selection."  The theory is that the commission is made up of fine, nonpartisan, upstanding people who will select on the basis of merit, free from political considerations.  The reality is that the commissions come to be dominated by the political left, and the governor is forced to choose the least bad of a short list of judicial activists.  So-called "merit selection" actually just substitutes bar politics for general politics, a change from bad to worse.

Another bad way to choose judges is to have them run for election like other elected officials, with political party nominations and named opponents on the ballot.  Pennsylvania has had some bad experience with this lately.  The editorial notes that three former governors are now pushing for the state to change from bad to worse.

Meanwhile, states that have tried the "Missouri plan" and are fed up with it are moving in the other direction, according to the editorial.
Remember when Gov. Moonbeam told us about "realignment?"  Remember that we were all going to be safe?  That crime wasn't going to spike just because we were putting criminals back on the street?  Remember that?  Remember when "community supervision," strongly fortified with ankle bracelets, was going to do the job, keep tabs on everybody?  Don't need all this prison stuff  --  remember that?

Hey, look, can't you take a joke?

Hat tip to Doug Berman at Sentencing Law and Policy for this astounding post.   It starts with the sub-heading of an LA Times article:  "Tests found major flaws in parolee GPS monitoring devices: One company's devices were deemed so unreliable that California ordered a complete switch to another firm's, citing 'imminent danger' to the public."

How's that?  Imminent danger to the public?  My goodness.

Doug's entire post follows the break.

The Wall Street Journal reports that prosecutors have decided to seek the death penalty for mass killer James Holmes, who murdered 12 people at a theater in Aurora, Colorado.  Holmes's lawyers had offered to plead guilty to LWOP charges in exchange the the government's taking the death penalty off the table, as reported in the News Scan here.

The prosecution made the correct choice.  

Like the Beltway sniper (who killed "only" ten), Holmes is a poster boy for the death penalty. He'll put on an insanity defense, sure. Let him. He's going to wind up in secure custody for life one way or the other; it's not like the prosecution has to worry about his walking away if there isn't a conviction on a death penalty charge.  That's what makes this decision easy.  The government is not confronting the typical downside when considering a defendant's plea offer. Normally, the prosecutor must consider the possibility that there might be an outright acquittal and the defendant will walk.

Not here.  If there is an acquittal, it will only be by reason of insanity, so the only place Holmes will be walking is the most secure and least pleasant insane asylum you can imagine. 

The orders list is here.  The Supreme Court took up one civil case.  No action on the Phillips cross-petitions from California, noted here.

In Marshall v. Rogers, 12-382, the Ninth Circuit was reversed for failure to observe Congress's limitation on habeas corpus in the so-called "deference" provision.  The high court once again has reversed the Ninth summarily and unanimously, meaning not a single justice thought the Ninth was right, and this conclusion is so obvious as to not require full briefing or oral argument.  Here is the first paragraph:

Respondent Otis Lee Rodgers, challenging his state conviction, sought a writ of habeas corpus from the United States District Court for the Central District of California. He claimed the state courts violated his Sixth Amendment right to effective assistance of counsel by declining to appoint an attorney to assist in filing a motion for a new trial notwithstanding his three prior waivers of the right to counseled representation. The District Court denied respondent's petition, and he appealed to the Court of Appeals for the Ninth Circuit, which granted habeas relief. 678 F. 3d 1149, 1163 (2012). Because the Court of Appeals erred in concluding that respondent's claim is supported by "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1), its judgment must be reversed.
When Congress enacted §2254(d), it specifically provided that the reasonableness of the state court's resolution of an issue will be judged only by its conformity with U.S. Supreme Court precedents, not federal court of appeals precedents.  The federal courts of appeals are not "higher" courts over the state courts in the sense that their precedents are binding, and Congress acted decisively to prevent them from making their precedents binding in practice by granting habeas relief whenever a state court disagrees.  A study I did shortly before the law passed showed that, in capital cases in the Ninth Circuit, the Supreme Court ultimately resolved these disagreements in favor of the state court's decision most of the time.

But many federal judges still don't get it:

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