May 2013 Archives

The Washington Examiner has a report about Eric Holder's off-the-record meeting with several press outlets.  As I noted earlier, the meeting was designed to give reassurance that DOJ really does respect the First Amendment.  Many, probably most, of the press organizations invited declined to attend a gathering whose substance they would be unable to share with their readers and viewers.

Susan Ferrechio reports Friday [that] most news organizations boycotted on principle Attorney General Eric Holder's offer to join a press conference Thursday  in which he discussed the Obama's White House various efforts to monitor, intimidate and harass journalists. Holder's condition was that the meeting be "off the record," meaning none of the reporters would be allowed to report what was said at the meeting.

Among those who did attend was the Washington Post. Today's Post has an account of the meeting -- sort of. That is, they have a story about what the Justice Department allowed them to say about its efforts to protect press freedom. The result is just beyond parody...

Tom Brady reports for the Irish Independent:

Four of five jailed burglars commit crime again within three years of being released from prison.

Burglars top the table of recidivist offenders in a study compiled by the Irish Prison Service and the Central Statistics Office.

The full report is here.

The actual rate of new offenses is higher than the study's definition of recidivism, which is:

For this report, a re-offender is defined as an individual who committed a recorded offence within three years of prison release date; and who is subsequently convicted in court proceedings. For example, if a person is released on December 31st 2007, and committed an offence on the December 30th 2010, they would be considered as having re-offended within three years if the court proceedings lead to a conviction....

Court proceedings leading to a conviction do not include those cases where appeals are pending.

In other words, a new crime is not counted if the perpetrator is not caught or not convicted or has an appeal pending at the time of data collection.

Kent just mentioned the ACLU, an organization known for its robust (shall we say, to be nice about it) defense of the Fourth Amendment and privacy generally. 

On Wednesday, Bill had this post praising the nomination of James Comey to head the FBI.  Now we have another strong indication that this is indeed a good pick.  Jerry Markon and Sari Horwitz report in the WaPo:

One day after President Obama's plan to nominate the former senior Justice Department official to run the FBI became public, the American Civil Liberties Union became the second civil liberties group to raise questions about Comey's involvement in the Bush administration's post-Sept. 11 anti-terrorism tactics, such as warrantless surveillance and tough interrogations.

The ACLU is one of the most reliable contrarian indicators around.  If these visitors from Bizarro World oppose something, it is nearly always good, and vice versa.

It's a not-infrequent practice among corrupt city bureaucrats to seek "voluntary contributions" from firms the city regulates or licenses.  In impolite language, this is called a "shakedown."  Thus comes to mind a story from the Washington Post that begins:

Health and Human Services Secretary Kathleen Sebelius has gone, hat in hand, to health industry officials, asking them to make large financial donations to help with the effort to implement President Obama's landmark health-care law, two people familiar with the outreach said.

Her unusual fundraising push comes after Congress repeatedly rejected the Obama administration's requests for additional funds to set up the Affordable Care Act, leaving HHS to implement the president's signature legislative accomplishment on what officials have described as a shoestring budget.

Over the past three months, Sebelius has made multiple phone calls to health industry executives, community organizations and church groups and asked that they contribute whatever they can to nonprofit groups that are working to enroll uninsured Americans and increase awareness of the law, according to an HHS official and an industry person familiar with the secretary's activities.

As expected, the California Court of Appeal, First District, today affirmed the decision of the Marin Superior Court that the Department of Corrections and Rehabilitation did not follow proper procedures in promulgating its present three-drug execution protocol.  This does not really change the status of the death penalty in California, as that protocol is enjoined by the federal court anyway. 

Most of the procedural issues discussed in the opinion are one-time issues that are unlikely to be repeated when CDCR announces its single-drug protocol, which should be soon.  Indeed, one of the main issues was CDCR's failure to explain why it didn't go for the single drug in the first place.

The opinion completely fails to address the more difficult, more interesting, and more important question.  Is enjoining executions an appropriate remedy?  The Administrative Procedure Act is a law, to be sure, but so is the death penalty.  The APA was never intended to make other laws unenforceable.

But CDCR did not brief these issues, and Presiding Justice Anthony Kline, Jerry Brown's Legal Affairs Secretary in the 70s, blocked our attempt to bring these issues to the attention of the court.  (In California appellate courts, the P.J. makes this decision unilaterally.)

Gov. Lincoln Chafee of Rhode Island, erstwhile Republican and Independent, has joined the Democratic Party.  I am not a Democrat, but this is sad news.  The Party of FDR and Truman deserves better.

It's reported that the embattled Eric Holder, already under scrutiny for seeking wiretaps on a Fox News reporter, clandestinely pulling Associated Press phone records, and repeatedly dissembling in Congressional testimony, is seeking to smooth things over by inviting major press outlets to come in for a little chat about how there's really nothing to worry about.

Homeless Hypocrisy:  California, a mecca of political correctness, has struggled for decades with how to deal with the vagrants, bums, and addicts that the more sensitive among us call the "homeless."  The liberal narrative describes them as average folks pitched into the streets through no fault of their own by heartless businesses and conservative economic policies.  Even places like San Francisco and Berkeley have gone from allowing bums to literally take over parks and sidewalks to adopting ordinances banning camping in city parks and sleeping or lying on sidewalks.  As reported by Charles Johnson of the Daily Caller, the California Legislature is coming to the rescue with the "Homeless Person's Bill of Rights and Fairness Act."  The bill, AB 5, would overturn local ordinances against vagrancy and restore the right of the homeless to move freely, rest, eat, share, accept, or give food or water, and solicit donations (panhandle), in public spaces.   But when folks posing as homeless people went to the home of one of the bill's major supporters, Sacramento Assemblyman Roger Dickinson, to exercise their right to hang out on the sidewalk, he called the police (see the video at the link).  Apparently he did not intend that the law apply to him.  As Orwell noted, some pigs are more equal than others.   

Recall of Sheriff Joe Floundering:  The effort to recall longtime Maricopa County Sheriff Joe Arpaio faces a 4:00 pm deadline today for turning in 335,000 valid signatures, and organizers of the effort are not optimistic.  AP writer Jacques Billeaud reports that the campaign to retire America's toughest sheriff has had difficulty raising funds and will fall far short of the signatures needed to force a vote to remove him.  Arpaio, who supported Arizona's widely-criticized law on illegal immigration and earned a national reputation for housing low level offenders in tents and utilizing inmate labor to perform county services, is accused by opponents of racial profiling and of failing to investigate sex crimes.

Yesterday, I noted that basic questions about the Attorney General's veracity extend beyond his almost certainly false testimony that he knew nothing of a "potential prosecution" of Fox reporter James Rosen  --  even as he was signing a wiretap request that targeted Rosen as an "aider, abettor, and/or co-conspirator" in the very serious federal offense of helping leak classified national security material.  I observed, following Andy McCarthy's lead, that Holder also gave misleading, if not point-blank false, testimony to Congress about his role in securing a pardon for fugitive billionaire Marc Rich.

Reports in the New York Times and Politico, among other sources, have it that President Obama will nominate former Deputy Attorney General James Comey to become head of the FBI when Robert Mueller's term ends in September.

One of the ironies of military service is that those who defend the freedom of Americans have to give up a good chunk of their own for the duration of their service.  Andrew Tilghman reports for the Army Times:

Making a sex tape is a crime under the Uniform Code of Military Justice, the military's highest court has ruled.

While it is perfectly legal for civilians to make videos of themselves having sex, service members are prohibited from doing so because it is "both prejudicial to good order and discipline and service discrediting."

The US Courts of Appeals for the Sixth and Ninth Circuit, and to a somewhat lesser degree the Third, have a dismal record in the Supreme Court in capital cases.  In part, that has been because the full courts have insufficiently exercised their authority to correct outlier decisions by rogue panels.  When a decision is so blatantly wrong that the Supreme Court reverses summarily and unanimously, the en banc court of appeals didn't do its job.

But we are seeing some gradual improvement.  Yesterday, the Sixth Circuit en banc corrected a particularly wacko panel opinion in United States v. Gabrion, No. 02-1386.

The execution of Elmer Carroll for the rape and murder of 10-year-old Christine McGowan has been carried out, News 13 in Orlando reports.  As noted in yesterday's News Scan, Carroll already had two convictions for child molestation when he committed the crime. 

Justice took 22 years in this case of clearly aggravated murder with no doubt that we have the right guy.  There is no reason for such a case to take so long.  Yet the usual suspects are actually calling on Governor Scott to veto the modest step toward reform taken by the Legislature, HB 7083. 

That act merely (1) fixes the entirely unnecessary and pointless delay of executions while waiting for the governor personally to get around to signing the warrant, and (2) imposes some reporting requirements on the courts regarding delays in their reviews of the case.  The bill does not directly mandate the courts to speed up processing.  The Legislature has caved in to the Florida Supreme Court's dubious invalidation of its 2000 reforms.

The only valid criticism of HB 7083 is that is does not go far enough.  Governor Scott should sign it promptly and ask the Legislature to pass stronger reform in its next session.

Lydia Saad of Gallup reports on a poll that is as interesting for polling methodology as it is for the underlying question.  How would you answer these two questions?

A:  When a person has a disease that cannot be cured, do you think doctors should be allowed by law to end the patient's life by some painless means if the patient and his or her family request it?

B.  When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it?

Substantially the same question, right?  The two questions should produce the same result, right?

Yesterday I wrote that, on the current evidence, it appears that Attorney General Eric Holder committed perjury in his Congressional testimony on May 15.  In response to a comment from the ever-perceptive federalist, I said that it seemed to me that Holder was "damaged goods," had shown "problems with truthfulness," and would probably be gone within a matter of weeks.

Fort Hood Gunman to Represent Himself:  The saga of prosecuting Major Nidal Hasan for gunning down 45 people, leaving 13 dead at Fort Hood in November of 2009 continues, with his request today that he be allowed to act as his own attorney.  Jim Forsyth of Reuters reports that the judge will have little choice under U.S. law but to grant Hasan's request, although it will almost certainly prolong the trial and create more opportunities for appeal.   Hasan had earlier indicated that he is willing to plead guilty if the government would agree not to ask for a death sentence. 

Murderer Drops Appeal:   AP writer Lynne Tuohy reports that Steven Spader, who was convicted of the 2009 home invasion murder of Kimberly Cates and the maiming of her 11-year-old daughter, has asked that his appeal for a reduced sentence before the New Hampshire Supreme Court be dropped.   Spader who had been sentenced to life without parole (LWOP) was re sentenced last month to life plus 76 years in response to last June's Supreme Court ruling in Miller v. Alabama.  In that case, the Supreme Court forbade mandatory LWOP sentences for those who commit murders before their 18th birthday, although allowing such sentences when the sentencer has discretion.  Spader was one month shy of 18 when he and and two accomplices broke into the Cates home and hacked the 42-year-old nurse to death with a machete and attempted to murder her daughter, who faked her death to survive, although permanently disfigured.  In a letter to the court expressing remorse, Spader wrote "I choose not to slip by on some technicality." 

Kent notes a WSJ article about efforts in some states to reform and expedite the death penalty.  The article is worth the read, and attempts to be neutral, but in some places is considerably misleading.  It says, for example:

The efforts to carry out more executions run counter to a growing tide of disenchantment with the death penalty in parts of the country, often because of a widespread belief the death penalty as practiced is costly and inefficient.

Maryland Democratic Gov. Martin O'Malley made cost a centerpiece of his successful campaign to get rid of the death penalty earlier this year. The state became the sixth to abolish capital punishment since 2007.

Public support nationwide for capital punishment, at 63%, is near its lowest level in 39 years, according to the most recent Gallup poll on the topic, released in January.

Ashby Jones has this article in the WSJ on efforts in several states to implement rather than scrap their death penalty laws.  He notes the use that opponents have made of the cost argument.

Death-penalty backers in Florida and elsewhere largely agree with the criticisms over cost. But rather than end capital punishment, they aim to make the process more efficient.

"Too many defendants are gaming the system with legal maneuvers that have no bearing on guilt or innocence.... This law will put teeth back into Florida's death penalty," said Rep. Matt Gaetz, a Republican and a sponsor of the Florida bill.

Florida's reform includes a long-overdue change to a law that requires the governor personally to sign death warrants.  That procedure has resulted in additional delays after the appeals are over, just waiting for the governor to get around to it.  Also noted is the pending repeal of North Carolina's misnamed and ill-advised "Racial Justice Act" and Arkansas's fix of its execution method problem.

Arian Campo-Flores reports in the WSJ:

A Florida judge overseeing the coming trial of George Zimmerman, who is charged with second-degree murder in the killing of 17-year-old Trayvon Martin last year, ruled Tuesday that attorneys can't mention the teenager's alleged drug use, school suspension or past fighting in their opening statements.

But Seminole County Circuit Judge Debra Nelson said she would consider permitting some of those matters to be raised at trial if she deemed them relevant to the proceedings.

Prior post is here.

Two weeks ago, in testifying under oath before the House Judiciary Committee, the Attorney General was asked whether the Justice Department could prosecute reporters under the Espionage Act of 1917.  His response was (emphasis added):

In regard to potential prosecution of the press for the disclosure of material -- this is not something I've ever been involved in, heard of, or would think would be wise policy.

You have to marvel at how liberals package criminal law issues.  They love dope, so that, according to Time magazine, is the wave of the future.  They detest the death penalty, so that is on the way to history's dustbin. 

FL Girl's Murderer Set for Execution Wednesday:  A habitual child molester who was twice released early from prison faces execution Wednesday for the 1990 rape and strangulation murder of a 10-year-old girl.  Susan Jacobson of the Orlando Sentinel reports that in the fall of 1990 Elmer Carroll had only been out of prison for 6 1/2 months after serving less than half his sentence for molesting a young girl, when he broke into the home of Christine McGowen and killed her while her stepfather slept and her mother was at work.  Carroll had previously served roughly one-third of his sentence for the 1976 sexual assault of another young girl. In 1992, when a judge sentenced him to die for Christine's "savage and barbaric" murder, Carroll vowed to rise from the grave to seek revenge on the prosecutors who convicted him.  Update:  The US Supreme Court denied a stay and denied review of the case Wednesday morning.  No dissents are noted.

More Cops Killed by Cars Than Guns:   While most people believe that the biggest threat to a police officer is a criminal with a gun, according to report by the National Law Enforcement Memorial Fund, more officers are killed by vehicles than by guns.  News writers Sarah Moore and Tim Monzingo report in the Beaumont Enterprise that between 2003 and 2012 vehicles, including motorcycles were involved in 672 police officer deaths while 564 officers were killed by gunfire.  While many of the deaths occurred when officers were accidentally hit by cars during traffic stops, in some cases criminals used vehicles as weapons against the police.  High speed chases of fleeing criminals and accidents involving drunk drivers were also responsible for a number of officer fatalities. 

The second habeas corpus decision today is McQuiggin v. Perkins, No. 12-126.  Justice Ginsburg performs an escape act worthy of Harry Houdini to find an "actual innocence" exception to the federal habeas statute of limitations despite the inconvenient truth that Congress did not include one, even while it was building such an exception into other parts of the law.

I don't find the result offensive at all.  Many times I have called for an increased focus on actual innocence in habeas matters, harkening back to Judge Friendly's famous 1970 article.  As Justice Ginsburg notes, substantial claims of actual innocence are rare.  But that is not what the statute says, and the fix should have been legislative, not judicial.

As for the actual case before the Court:  "Moreover, the proffered evidence, even if 'new,' was hardly adequate to show that,had it been presented at trial, no reasonable juror would have convicted Perkins."  That is "speaking in a judicial voice" for "this claim is crap."

Today a bare majority of the US Supreme Court took a major step in the wrong direction, making the seemingly endless chain of appeals even longer.  In the 1991 case of Coleman v. Thompson, the Court provided a definite cut-off to the practice of perpetually asking for new reviews of a case, each time claiming that the supposed incompetence of the lawyer in the previous review was "cause" for not making the claim on the previous round.  Opposing bogus ineffectiveness claims is one of the most difficult tasks for the prosecution team.  They must defend their former adversary, who often has no interest in helping and sometimes falls on his sword and assists the attack on his own performance.  Further, essential facts are shielded by attorney-client and work-product privileges.  Coleman cleanly cut off the use of ineffectiveness as cause where the constitutional right to counsel ends -- at the first appeal as of right.

Last year in Martinez v. Ryan, the Court made an exception to the rule, but it emphatically promised that the exception would be narrow.  It was only for states that forbid ineffectiveness of trial counsel claims to be raised on direct appeal.

Today in Trevino v. Thaler, the Court broke its promise in Martinez.  It expanded the "exception" to all states where the record on direct appeal is typically inadequate, as a practical matter, to make ineffectiveness claims.  That includes nearly all, if not all, states.  Coleman is effectively overruled in its most important application.  Chief Justice Roberts notes this betrayal in his dissent.  (CJLF's brief made a similar argument.)  Justice Scalia adds a brief note quoting his dissent in Martinez and saying, in essence, "I told you so."

For capital cases, where the problem is most acute, the statutory fix is already in place.  States must move forward aggressively to revive the moribund "fast track" of Chapter 154 of Title 28, U.S. Code.  That chapter includes its own statutory procedural default rule, 28 U.S.C. §2264(a), which does not have the exception announced today.

Arizona Attorney General Tom Horne has taken the lead.  Other AGs should join him.  Don't retreat.  Charge!

One valid criticism we often hear of modern criminal law is that too often the mental component of crimes, the mens rea or guilty mind, has been watered down or eliminated.  Today, the US Supreme Court took up a case on the mens rea of the federal law on use of a firearm in a violent or drug crime, Rosemond v. United States, No. 12-895.  The Question Presented is:

Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

Rosemond is represented by John Elwood, who writes the Relist Watch feature at SCOTUSblog.  The case was granted at the first conference, not relisted.

How many times in history have zealous reformers gone too far, with the result that the reforms are as bad or worse than the problems they were intended to fix?  Deinstitutionalization of the mentally ill is a prime example.  James Panero has this article in the City Journal.

The connection between mental illness and crime would come as no surprise to law enforcement professionals. Since deinstitutionalization, police and sheriffs' departments have reported an overwhelming increase in mental illness-related calls, a trend that continues today. A 2011 survey of 2,400 law enforcement officials reported that responding to these calls had become "a major consumer of law enforcement resources nationally." A TAC study in 2010 found that there were now "three times more seriously mentally ill persons in jails and prisons than in hospitals." Many county sheriffs' associations estimate that over a quarter of their jail population is mentally ill. The Los Angeles County Jail has become the largest de facto inpatient psychiatric facility in the United States, says Torrey; New York's Rikers Island Prison Complex is the second-largest.

"Are you in favour of reintroducing the death penalty for serious terrorism offences?"

Yes - 63.4%
No - 26.3%
Don't know - 10.3%

This is the result of a survey by Survation for the Mail.  The Belfast Telegraph has this story.

DP opponents never tire of saying that the United States keeps a penalty that Europe has rejected, as if there were something wrong with being different from Europe.  (If I made an argument based on the practices of countries populated mostly by white people while ignoring those populated mainly by "people of color," I would swiftly be denounced as racist.  But the other side of the aisle gets a free pass.)

But it is not the people of the UK (or Canada) who have rejected the death penalty; it is the government.  Close to two-thirds of the people are in favor, and more than twice as many are in favor as opposed.  These numbers are comparable to the U.S.

We have the death penalty while Britain does not because our form of government is more responsive to the will of the people.  It was designed that way.

Andrew Welsh-Huggins has this story for AP on the possibility of the death penalty in the Cleveland horror case, headlined, "Experts question death penalty in Cleveland case."  Despite the headline, the first expert quoted is OSU Professor Doug Berman saying, "Ergo, Castro, at least as the facts have been described and developed, would seem to be the poster child for the worst of the worst unlawful pregnancy terminator."

Most of the rest of the comments are fairly predictable, but this one set me back in my chair:

It's not unheard of for prosecutors to seek capital charges even when a body hasn't been located. But the Castro case brings up another layer of difficulty given that no human remains of any kind have been found on his property.

"How does the prosecution prove a pregnancy? How do you prove that Castro caused the termination of the pregnancy?" said Michael Benza, a Case Western University law professor who has also represented death row clients.

Well, professor, there is one small difference between this case and the usual missing body case.  There are three living eyewitnesses, one of whom, in each case, was the mother of the deceased victim and the direct victim of miscarriage-inducing beating.  How do you prove it?  Sheesh.

I wish my title were hyperbolic or intended as humor.  It isn't.

DNA Testing of Arrestees Moving Though Wis. Legislature:   Wisconsin Governor Scott Walker's proposal to require DNA testing of anyone arrested for a felony passed out of a key committee Thursday.  AP writer Todd Richmond reports that if adopted, the law will pump about 68,000 new samples into the state and federal DNA databases.  The proposal allows a suspect's sample to be removed if he is not convicted or if his conviction is reversed.  Civil rights advocates are criticizing the expanded testing  as an invasion of privacy.  The U.S. Supreme Court will rule on a challenge to a similar law in Maryland sometime in the next few weeks.  

Holder OK'd Search of Reporter's Emails:  NBC News writer Michael Isikoff reports that the DOJ has confirmed that the warrant to seize Fox News reporter James Rosen's emails was approved "at the highest levels" of the Department after "discussions" with Attorney General Eric Holder.  This admission came after blistering criticism by news and media groups over the warrant and secret subpoena for the phone records of AP reporters.  The Department says that the warrant was a legitimate effort to obtain evidence against former intelligence analyst Stephen Kim, who is suspected to have leaked classified information to Rosen.  Critics point to the warrant and subpoena as efforts to chill investigative reporting.  

Matthew Huisman has this article in the NLJ (free reg. required):

When Lois Lerner of the Internal Revenue Service invoked her Fifth Amendment right against self-incrimination before a House committee on Wednesday, she did so after making a brief statement.

Those remarks have triggered a debate over whether Lerner waived her Fifth Amendment rights. While case law on the subject is limited and fuzzy, most practitioners agree that Lerner risks being held in contempt.

*                                                *                                            *

George Washington University Law School professor Orin Kerr, in a post on The Volokh Conspiracy blog, pointed to the 1999 Supreme Court ruling in Mitchell v. U.S. that a witness "may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details."

Another Supreme Court precedent on the subject of selective silence is forthcoming.  Salinas v. Texas was argued in April and will probably be decided in June.  CJLF's brief is here.  My podcast for the FedSoc is here.  I don't know if Salinas will shed any additional light on the Lerner situation, but it might.

The US Court of Appeals for the Third Circuit today affirmed, with one exception, the conviction of a corrupt former Pennsylvania judge in United States v. Ciavarella, No. 11-3277.  Mark Scolforo has this story for AP.  From the opinion:

The charges resulted from the so-called "Kids for Cash" scandal that erupted in Luzerne County, Pennsylvania in late 2008. Ciavarella and his fellow judge, Michael Conahan, were accused of receiving over $2.8 million in three years from a commercial builder, Robert Mericle, and an attorney and businessman, Robert Powell, in exchange for helping to construct and operate juvenile detention centers and placing juvenile offenders there.

*                                    *                                *

Over the course of several years, Ciavarella committed hundreds of juveniles to detention centers co-owned by Powell, including many who were not represented by counsel, without informing the juveniles or their families of his conflict of interest.

Todd Ruger reports for the NLJ (free registration required):

The U.S. Senate unanimously confirmed Sri Srinivasan to the U.S. Court of Appeals for the D.C. Circuit on Thursday, making him President Obama's first successful nomination to the court and the first new judge there since 2006.

Srinivasan, the principal deputy solicitor general in the U.S. Justice Department, saw his nomination sail through a normally contentious Senate confirmation process. The 97-0 vote reflected his broad support from the legal community and legal pedigree that included work for both Democrat and Republican administrations.

The D.C. Circuit does not handle as many criminal cases as most circuits.  CJLF filed its very first brief in that court just this year.  The circuit has no jurisdiction to review criminal cases from the local D.C. court system, either on appeal or habeas.*

The crime-related cases the D.C. Circuit does handle, though, include some of the most controversial ones.  The Gitmo detainee cases are there.  The lethal injection importation case, noted above, is there.  The habeas "fast track" case will be there shortly.

So where does Judge Srinivasan stand on the issues of greatest importance to enforcement of the criminal law?  I have no idea.  His work as an advocate for the government in his present position is highly regarded, but that work is advocating for positions determined by others.  A Lexis search for articles turned up nothing on criminal law or anything else.  We will have to wait and see.

* No, that doesn't violate the Suspension Clause.  Not even liberal demigods Brennan and Marshall thought it did.

Standard operating procedure in the U.S. Supreme Court is that the party who lost in the lower court asks the Court to take the case, and the party who prevailed there files a "brief in opposition" telling the Court why the case is not worth its time.

Occasionally, though, the prevailing party below joins in the request to take the case up, even though it believes the Court should affirm once it does.  The U.S. Government is the party most likely to do this, as it is uniquely hampered by having to enforce different interpretations of the law in different federal circuits.  Much more rare is such a request by a private party, but one has been filed by Noel Canning, the bottling company that prevailed in the NLRB recess appointments case.  "Respondent does not oppose certiorari because this case presents a constitutional question of extreme importance."

Noel Canning asks the Court to add an additional Question Presented to the two proposed by the Government:

Rene Stutzman and Jeff Weiner report for the Orlando Sentinel:

The evidence that George Zimmerman's attorneys have uncovered on Trayvon Martin's cell phone paints a troubling picture of the Miami Gardens teenager: He sent text messages about being a fighter, smoking marijuana and being ordered to move out of his home by his mother.

And photos from that phone offer more of the same: healthy green plants - what appear to be marijuana - growing in pots and a .40-caliber Smith & Wesson handgun.

Defense attorneys on Thursday gave formal notice to prosecutors that they intend to use those and other reputation-damaging pieces of evidence about Trayvon once Zimmerman's second-degree murder trial begins June 10.

Prosecutors say they're not relevant and should be barred.

Florida defines "relevant" in pretty much the usual way.  "Relevant evidence is evidence tending to prove or disprove a material fact."  That is simpler than the Federal Rules of Evidence phrasing, but not really different.  Any probative value that nudges the probability meter one way or the other to any degree is enough to make evidence relevant.

Is this evidence relevant?  It's probative value is certainly quite weak.  Is there any at all?  Doubtful.

Off topic but funny.

Governor Blocks Execution:  Colorado Governor John Hickenlooper announced Wednesday that he will not allow the execution of condemned murderer Nathan Dunlap so long as he is in office, as reported in this ABC news story.  In 1993, Dunlap murdered four people in an ambush at a Chuck E. Cheese restaurant in Aurora.  He was convicted and sentenced to death for in 1996.  The announcement drew immediate criticism from the families of the victims, who have been waiting twenty years for justice.  Arapahoe County District Attorney George Brauchler told reporters that Hickenlooper has "made himself Nathan Dunlap's guardian angel."  The Governor will be up for reelection next year. 

Researcher Calls Realignment an Experiment:  AP reporter Don Thompson writes about the growing criticism of California Governor Jerry Browns Realignment law.  Preliminary reports by the FBI on 2012 crime rates indicate that violent crime increased in 40 of the state's 69 largest cities, the largest such increase in 20 years.  While most criticism of the law has come from Republican legislators and victims' groups, some Democrats have indicated that they are open to reforms.  One expert who has been studying the shift of thousands of felons from state prison to counties, Stanford University law professor Joan Petersilia, said the policy is serving as a national experiment about whether prison populations can be reduced significantly without posing a threat to public safety. 

Brian Skoloff and Josh Hoffner report for AP:

Jurors in Jodi Arias' murder trial resume deliberations Thursday after they were unable to reach a unanimous verdict on whether she should be sentenced to life in prison or death for killing her one-time boyfriend, prompting the judge to instruct them to keep trying.

In the wake of Ring v. Arizona, the Arizona Legislature had the good sense to enact a true penalty-phase unanimity rule.  Just like in the guilt phase, the jury must be unanimous one way or the other.  If they are truly deadlocked, that is a mistrial.  A new jury will be impaneled to retry the penalty phase unless the prosecution gives up and accepts a life sentence.

In many jurisdictions, there is a false unanimity rule, more aptly described as a single-juror veto rule.  If eleven jurors believe the death penalty is the just sentence and one disagrees, the one can simply hold out and impose his will on the eleven.  Jurisdictions that have such a rule need to fix it.  Congress needs to fix it immediately for the federal system, before the trial of the Marathon Bomber.

Not really.

The discovery of cannabinoid receptors was fairly recent.  Undoubtedly, sometime down the road therapeutic uses of drugs that act on those receptors will be discovered.  But we're not there yet and even when we get there the prescription will not be to toke up but will likely involve highly refined, pharmaceutical-grade pills at doses much lower than are used by recreational marijuana users.    

FL Mass Murderer Held Competent:  CBS Miami reports that the Eleventh Circuit has denied the claim that mass murderer John Ferguson is not mentally competent to be executed.  Ferguson was convicted of the execution style murders of eight people in 1977.  Last year Florida Governor Rick Scott signed his death warrant.  

Med Marijuana Users Can Drive in Michigan:  The Michigan Supreme Court unanimously held that medical marijuana users have some protection against a conviction of driving while intoxicated in a ruling Tuesday reported by the Associated Press.  While it is illegal for drivers to consume marijuana in the state, the medical marijuana law "shields" registered patients for the internal possession of the drug according to the court.  The prosecution must show the driver was actually under the influence.  Unlike alcohol, there is no defined blood concentration limit, but the court invited the legislature to establish one.  The decision overturned an appeals court ruling which held that the defendant, medical marijuana user Rodney Koon could be prosecuted for driving under the influence.

A new study out published in the Journal of the American Academy of Psychiatry and the Law seems to answer the question in the negative.  Psychiatric News has the backdrop:

The researchers assessed 270 Colorado prison inmates charged with violating prison rules and who, after a disciplinary hearing, were placed in one of three prison environments. Subjects in the first group, which included individuals with or without a mental illness, were placed in a super-maximum security environment in which they were locked in their cell 23 hours a day. Inmates in the second group, which also included individuals with or without a mental illness, were assigned to a general-population maximum-security housing unit, where they had more out-of-cell time per day than the first group had.
...

Whereas some of the inmates' psychological health deteriorated over the course of the study, this was generally not the case, even among inmates in solitary confinement. "We were surprised that only a small number of inmates in segregation got clinically worse," Metzner told Psychiatric News.

Nasser Karimi and Brian Murphy report for AP:

Iran's election overseers removed potential wild-card candidates from the presidential race Tuesday, blocking a top aide of outgoing President Mahmoud Ahmadinejad and a former president who revived hopes of reformers.

Their exclusion from the June 14 presidential ballot gives establishment-friendly candidates a clear path to succeed Ahmadinejad....  It also pushes moderate and opposition voices further to the margins....

The candidate-vetting group is called the Guardian Council.

Many US States have a similarly undemocratic system for choosing judges.  A commission, unaccountable to the people and typically dominated by the state bar either outright or as a practical matter, approves a short list of candidates.  The person who actually is accountable to the people, the governor, gets the same kind of lesser of evils (but not by much) choice that the people of Iran will get for their president.

The selection commission serves the same function as the Guardian Council.  It makes sure that the Great Unwashed, through the person they elected, do not choose any candidates of insufficient ideological purity.  The Orwellian name for this system is "merit selection."

I have been reluctant up to now to weigh in on the IRS scandal, simply because, in my view, not enough of the facts are known.  What is knows is:  (1) the IRS targeted conservative groups seeking non-profit tax status; (2) this occurred during the election campaign, in which it was advantageous to the President to discourage spending by his opponents while making it relatively easy for his friends; and (3) White House Counsel's Office knew about this before the White House previously claimed.

When the prosecution's evidence in a major criminal case depends heavily on a jailhouse informant, you know as surely as night follows day that there will be a claim of nondisclosure of evidence regarding the informant.  Zoe Tillman has this post at BLT on the Chandra Levy case.  The US Attorney's Office says the allegations are "baseless."

The DC Circuit today issued a per curiam decision in Judicial Watch v. Department of Defense, No. 12-5137:

Judicial Watch filed a Freedom of Information Act request seeking disclosure by the Central Intelligence Agency of 52 post-mortem images of Osama bin Laden. The agency refused on the ground that the images were classified Top Secret. Judicial Watch sued, and the district court granted summary judgment for the agency. We affirm because the images were properly classified and hence are exempt from disclosure under the Act.

The US Supreme Court today took up once again the problem of searches by consent when one lawful occupant of the property consents and another, the defendant, refuses.  In Fernandez v. California, No. 12-7822, the Court decided to review the decision of the California Court of Appeal in a Los Angeles case, People v. Fernandez, 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51 (2012).  An excerpt follows the jump.

The US Supreme Court today unanimously reversed a decision of the Sixth Circuit, overturning a Michigan murderer's conviction on habeas corpus.  The Michigan Legislature passed a reform of mental defenses in 1975, but the state Court of Appeals failed to recognize that the statute had abolished the "diminished capacity" defense.  It was not until 2001 that the Michigan Supreme Court corrected that error, and the underlying question in Metrish v. Lancaster was whether that correction could apply in the retrial for a 1993 murder.  The case is described in more detail in my post after the oral argument.

The Supreme Court's jurisprudence on retroactivity of court decisions (as opposed to statutes), is less than crystal clear, and one might make a reasonable argument on the merits that this retroactive application crosses the fuzzy line.  Under Congress's 1996 reform of federal habeas corpus (AEDPA), though, that is not the question for the federal court.  The Michigan state courts decided the merits question, adversely to Lancaster.  "To obtain habeas corpus relief from a federal court, a state prisoner must show that the challenged state-court ruling rested on 'an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.' Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 12-13)."

Where the merits question is close, the AEDPA question is easy.  The state court decision was well within the bounds of "fair minded disagreement."  The Sixth Circuit decision to the contrary was beyond wrong.  It was lawless.

Technically, the California Legislature has not actually legalized theft.  It has, however, reduced the consequences to the point that, for some people, it might as well be legal.

Ben Boychuk has this article in the City Journal on the brazen theft of his expensive new laptop from beneath his fingers at a Starbucks in Fontana.

It isn't easy looking at a photo lineup. But one mug shot was unmistakable. I paused for a long moment, and I must have had a strange look because the officer asked if I recognized someone. "Yes," I said. "That's the driver." Of all the forlorn faces staring up at me, his was the only one smiling.

"He was probably smiling because he knew he got one over on you with your computer," the officer said.

"I guess so. But why would he be smiling now, when he's under arrest?"

It looks like this.

Lena Sun reports in the WaPo on the 5th edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, to be released tomorrow. She also discusses the controversies, some of which we have noted on this blog here, here, and here.

Well, at least they dumped the Roman numerals.

Update:  According to the listing at Amazon, the book will actually be available for purchase on May 27.

CA Corrections Tries to Sugarcoat Realignment:   Paige St. John of the Los Angeles Times reports on a new study by the California Department of Corrections promoted by a press release announcing that arrests are down under Realignment.  What was not mentioned by the press release is that repeat offenses are up.  Roughly half the criminals released from prison before Realignment were rearrested more than once for new crimes.   After Realignment 63% of those released are rearrested more than once.  Our review of the study found that felony arrests for criminals released after Realignment were up significantly.  Also omitted from CDCR's press release is the fact that the number of parolees arrested for new felonies is up.  The total arrests are down a little because a decrease in arrests for supervision violations offsets the increase in felony arrests.

Court to Rule on Mississippi Murderer's Second Conviction:   A Mississippi man who had his execution for the 1992 murders of two college students stayed by the state Supreme Court earlier this month will receive a ruling on his post-conviction claims for two other murders in late June.  AP reporter Jack Elliott writes that Willie Jerome Manning was within hours of execution on May 7th when the state high court issued a stay to allow a DNA test Manning claims will exonerate him.  His conviction and death sentence for the 1993 murders of two elderly woman were upheld on direct appeal.  A judge's ruling on his post conviction claim that prosecutors withheld evidence will be announced on June 28. 

It didn't take defense-oriented types long to come up with the theory that Dzhokhar Tsarnaev was merely the teenage tag-along to his charismatic older brother when he planted the Boston Marathon bomb.  He wasn't really a Muslim radical, you see, just a fun-loving, impressionable kid.

"F*** America, Boston Marathon Suspect Wrote in Boat."

As police searched for him, and as he lay bleeding in his boat hideout, Boston Marathon bombing suspect Dzhokhar Tsarnaev wrote "F*** America" on the side panel of the boat, police in Massachusetts told ABC News.

Officers said they also discovered the phrase "Praise Allah" on the boat's side panels and several anti-American screeds, including references to Iraq, Afghanistan and "the infidels."

It's not just California.  Fox News carries this story, which begins:

Hundreds of illegal immigrants with criminal records were released earlier this year as the Obama administration prepared for budget cuts, according to newly released data that challenged claims the program involved "low-risk" individuals ****Of the 2,226 detainees that were released in February, the department revealed, "622 have been identified as having some type of criminal conviction."

Nelson Peacock, assistant secretary for legislative affairs, said ICE focused on [releasing]  those that "posed no significant threat to public safety."

Florida prisons must provide inmate Bruce Rich with kosher meals under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Eleventh Circuit has held.  Jacob Gershman has this post at WSJ Law Blog. "Mr. Rich ... is a lifelong Orthodox Jew who observes the Sabbath and 'believes that keeping kosher is fundamental to the Jewish faith and is necessary to conform to God's will as expressed in the Torah,' his attorneys stated in an appellate brief."

Lifelong?  He has not always been so scrupulous about obeying God's will, such as "Honor your father and mother..." and "You shall not murder."  Exodus 20:12-13.  At least he didn't ask for sympathy because he is an orphan, the classic example of chutzpah.

I'm kind of surprised that Florida officials resisted as long as they did.  This is precisely why Congress included prisoners in RLUIPA, for better or worse.

When the IRS scandal first broke, I noted one possible criminal violation, 18 USC §241.  John Malcolm and Hans von Spakovsky have this post at The Foundry, the blog of the Heritage Foundation, noting this a few other possibilities.

Jeffrey Williams was executed in Texas for the murder of Houston police officer Troy Blando in 1999.  Allan Turner has this story in the Houston Chronicle.  The US Supreme Court order denying a stay and a writ of certiorari is here.  No dissent is noted.

The problem with the grotesque tale out of Cleveland in which Ariel Castro kidnapped, raped, starved, chained, beat and abused three young women for ten years is not Mr. Castro.  It's with those who have prejudged him.

"The initial portrayal by the media has been one of a 'monster' and that's not the impression that I got when I talked to him for three hours," [defense counsel Craig Weintraub] said to Cleveland's WKYC-TV. "I know that family members who have been interviewed by the media have expressed that as well."

Craig argues that Ariel is a loving father who is committed to his daughter.

He is "extremely committed to the well being and positive future for his daughter, who he loves dearly. And if people find that to be a disconnect from what he's alleged to have done, then the people will just have to deal with it. We just know how he feels about his little girl."

Gov. Brown's New Budget Has Little Impact on Realignment:  Andrew Edwards of the Daily Bulletin reports that Gov. Brown's Revised budget proposal will make few changes to current realignment policy. Under the new budget a county could exchange felons facing sentences of three years in county jail with prison inmates whose remaining terms were less than three years.   This is a weakened version of recently killed legislation that would have required offenders sentenced to more than three years to serve that time in state prison rather than a county jail. The proposal also allocates a small increase in funds for county probation departments.

What punishment should society impose on a prisoner, already in for life, who murders a correctional officer?

1) Death.
2) No punishment at all (i.e., a meaningless additional prison sentence).

A jury in Everett, Washington made the correct choice today.  Steve Miletich has this story for the Seattle Times.

Had enough of OJ?

One of the principal arguments for legalizing drugs is that they are "victimless."  This is false even when the argument concerns only the user.  It is all the more so when one considers the large number of non-user deaths and injuries caused by drug-impaired driving.

Maryclaire Dale reports for AP:

Dr. Kermit Gosnell gave up his right to appeal and in return will spend life in prison. Gosnell, 72, was found guilty Monday of first-degree murder in a case that became a flashpoint in the nation's abortion debate.

Former clinic employees testified that Gosnell routinely performed illegal abortions past Pennsylvania's 24-week limit, that he delivered babies who were still moving, whimpering or breathing, and that he and his assistants dispatched the newborns by "snipping" their spines, as he referred to it.

Unless Pennsylvania reformed its glacial capital appeals process, there would be no chance of the 72-year-old Gosnell being executed anyway.  (If they got the job done in 6 years, like Virginia, it would have been a strong possibility.)

CBS is reporting that abortionist/butcher Kermit Gosnell has been sentenced to life imprisonment on two of the three first degree murder charges of which he was convicted.  The deal is that he escapes the death penalty in exchange for his agreement to forego all appeals.

NE Death Penalty Repeal Dies:  The Associated Press reports that a bill to repeal Nebraska's death penalty, which had been thought inevitable, was killed Tuesday. The bill was filibustered, a vote to end the filibuster fell five votes short. Though the death penalty remains in Nebraska, some lawmakers expressed frustration with the already hampered process. The state, which has 11 death row inmates, has not carried out an execution since 1997.

WA Prison Guard Killer's Fate Being Considered:  The Associated Press reports, that the jury that convicted Byron Scherf for the murder of a prison guard at Washington State Prison began the sentencing trial Monday.  Already serving a life term for multiple rapes, Scherf strangled Jayme Biendl to death in the chapel at the prison. In Washington, aggravated murder carries the death penalty or life in prison without parole. Continued from this News Scan.

CA Lax Oversight Leads to Convicts Becoming Counselors:  Jim Miller of the Press-Enterprise reports that the Senate Office of Oversight and Outcomes announced findings Monday indicating that California's no-background check policy for hiring substance abuse counselors has resulted in convicts filling positions. The investigation uncovered convicted sex offenders, child molesters, substance abusers, and embezzlers working as counselors. The report says the power held by such individuals puts those seeking help at great risk. Senate President Pro Tem Darrell Steinberg says the state must take action to keep children and other vulnerable parties safe. Past efforts to legislate more rigorous background checks have died in committee.

Howard Mintz reports for the San Jose Mercury-News:

Gov. Jerry Brown on Monday followed through with his vow to turn to the U.S. Supreme Court in a bid to end years of judicial control over California's overcrowded prison system.

In a three-page filing, the governor and his top prison officials notified a three-judge panel the state is appealing an April order requiring California to shed at least 10,000 more inmates by the end of December. The attorney general's office now has 60 days to file its full legal arguments with the Supreme Court.

The special three-judge panel has threatened the governor with contempt if his administration does not comply with a 2009 order requiring California to reduce its inmate population to about 110,000 inmates to satisfy concerns that prisons are so overcrowded they fail to provide adequate medical and mental health care.

Brown, however, said in Monday's filing that the court "did not fully or fairly consider the evidence showing that the state's prison health care now exceeds constitutional standards."

Unlike most cases, where parties must ask the Supreme Court to take the case (a petition for writ of certiorari), Congress has placed prisoner release orders into that select group of cases where a party can appeal to the Supreme Court as a matter of right.  If the jurisdictional prerequisites are met, the high court has to take it.

PA Abortion Doctor Guilty:  Sarah Hoye of CNN reports that on Monday Pennsylvania abortionist Dr. Kermit Gosnell was convicted of three counts of murder in the first degree. Gosnell performed illegal late term abortions at his "house of horrors" Philadelphia clinic, 21 of which he was convicted for. In addition to other charges, he is accused of killing babies post-birth. Gosnell could face the death penalty. Continued from this News Scan.

OK Sex Offender Restrictions May Ease:  Fox News' Mark Taylor reports on a May 8 federal ruling in favor of convicted sex offender Charles Goodwin, granting him access to Internet use. The ruling currently only applies to federal convictions, but may set a precedent for sex offenders convicted in Oklahoma's lower courts. According to legal analyst David Slane, future convictions may be less restrictive on sex offenders, prohibiting only specific activities related to their offenses.

Astonishing.  Dean Erwin Chemerinsky of UC Irvine Law writes an entire article in NLJ on the subject of what the law "requires" in terms of Miranda and the Tsarnaev interrogation, yet he seems to be entirely unaware of a critical distinction and does not mention at all the primary Supreme Court case on the point.  He says the questioning of Dzhokhar Tsarnaev for hours without being Mirandized is "disturbing for what this says as to [the Justice Department's] view of the Constitution."  At the end of the article, he writes, "But the Constitution is not a luxury to be indulged until the ends justify other means. The Fourth, Fifth and Sixth Amendment rights of all criminal defendants must be obeyed, no matter how heinous the crime and regardless of whether it is labeled an act of terrorism. The Bush administration repeatedly forgot this, and it is a shame that in treating Tsarnaev the Obama administration did, too."

There is a distinction between the law requiring someone to do something as an affirmative obligation and requiring the same act as a mere condition to something else.  Chemerinsky writes, "The law is clear that when a suspect is taken into custody, he or she must be given Miranda warnings, and all questioning must cease when the suspect requests a lawyer. Any statements gained in violation of these requirements must be suppressed and cannot be introduced as evidence."  The second statement is true, with some important exceptions, but it does not follow that failure to Mirandize is a violation of the Constitution by itself.

The US Supreme Court announced three opinions today, all in civil cases.  On the orders list, there was one grant of certiorari, also in a civil case. Burnside v. Walters, No 12-7892, is a federal civil procedure case arising out of a 42 USC §1983 suit against the police claiming a wrongful arrest.  The question has to do with whether procedural amendments in the Prison Litigation Reform Act preclude the plaintiff from amending his complaint to avoid dismissal in the screening process.  The Prisons & Corrections Section of the Michigan Bar has the certiorari petition here.

TX Two-Strikes Child Sex Offender Bill Passes House:  According to a report from Glenn Evans of the News-Journal,  House Bill 1302, a two-strikes bill for child sex offenders, passed unanimously in the Texas House, Tuesday. If the bill becomes law sex offenders convicted of sexual violence against children under age 14 would be sentenced to life in prison without parole upon second offense. The measure will also prohibit-first time offenders from holding job positions where it is determined they may interact with children.

L.A. Compliance Checks Result in Arrests, Discovery of Violations:  CBSLA reports on a three-week compliance check operation in Los Angeles which resulted in the arrests of 21 probationers, all with sex crimes on their records. The 137 checks also found children present at a residence where an offender convicted of sexual offense against children was living. Additionally computers, phones, and drugs were seized during the operation. Probation Department Assistant Chief Margarita Perez says over 61 percent of probationers are high risk to very high risk; Only one to two percent are assessed as low risk. Perez states that the figures are contrary to the situation presented by the media.

Last February, I noted a bizarre ruling out of King County, Washington (Seattle and vicinity), in which a trial judge said it was improper for a prosecutor to consider the strength of the evidence in deciding whether to seek the death penalty.  Utter nonsense.  Residual doubt should be, and is, considered by both prosecutors and juries.

Sara Jane Green reports in the Seattle Times on argument before the Washington Supreme Court yesterday:

A King County judge overstepped his bounds when he ruled that prosecutors can't seek the death penalty against the two people accused of killing a family of six on Christmas Eve 2007 in Carnation, the state Supreme Court was told Thursday.

King County Senior Deputy Prosecutor James Whisman argued that under the state's death-penalty statute, "discretion is placed with the prosecutor" to decide whether to seek capital punishment.

And of course the defense plays the race card:

Some conservative groups have believed for some time that they were unfairly singled out by the IRS for special scrutiny of their nonprofit status.

Turns out that is actually true, Zachary Goldfarb and Karen Tumulty report in the WaPo.  An IRS official said the actions were "not motivated by partisan concerns," but that seems doubtful.

Is this a crime?  Possibly a violation of 18 U.S.C. §241, conspiracy against exercise of constitutional rights.

Allen Frances, chairman of the DSM-IV and a strong critic of the forthcoming DSM-V, has this strong editorial regarding the recent decision by NIMH to abandon the DSM.  Dr. Frances states:

The flat out rejection of DSM-5 by National Institute of Mental Health is a sad moment for mental health and an unsafe one for our patients. The APA and NIMH are both letting us down, failing to be safe custodians for the mental health needs of our country.

DSM-5 certainly deserves rejecting. It offers a reckless hodgepodge of new diagnoses that will misidentify normals and subject them to unnecessary treatment and stigma.

The NIMH director may have hammered the nail in the DSM-5 coffin when he so harshly criticized its lack of validity.

This is misleading and dangerous stuff that is bad for the patients both institutions are meant to serve.

NIMH has gone wrong now in the very same way that DSM-5 has gone wrong in the past -- making impossible to keep promises. The new NIMH research agenda is necessary and highly desirable -- it makes sense to target simpler symptoms rather than complex DSM syndromes, especially since so far we have come up empty. And the new plan will further, and be furthered, by the big, new Obama investment in brain research. But the likely payoff is being wildly oversold. There is no easy solution to what is in fact an almost impossibly complex research problem.

Isaac Newton said it best almost 250 years ago; 'I can calculate the motions of the heavens, but not the madness of men." Figuring out how the universe works is simple stuff compared to figuring out what causes schizophrenia. The ineffable complexity of brain functioning has defeated past DSM hopes and will frustrate even the best NIMH efforts.

Progress in understanding mental disorders will necessarily be slow, retail, and painstaking -- with no grand slam home runs, just occasional singles, no walks, and lots of strikeouts. No sweeping explanations -- no Newtons, or Darwins, or Einsteins.

Experience teaches that there is very little low hanging fruit when you try to translate the results of exciting basic science into meaningful clinical advances. This is true in all of medicine, not just psychiatry. We have been fighting the war on cancer for 40 years and are still losing most of the battles.

Good stuff and it's worth reading the whole thing as they say, but I'd also read Neuroskeptic's always insightful post on the issue.  This may not really be a seismic shift after all and what may replace the DSM at NIMH may be just as bad.  

When the story of the Cleveland horror first broke, I said that the crimes, however horrible, could not be capital because there was no murder.

Now we have learned more.  There may indeed have been murders in the house of horrors.  Brandon Blackwell reports for the Plain Dealer:

The man accused of kidnapping and imprisoning Amanda Berry, Gina DeJesus and Michelle Knight in his home could face the death penalty, says Cuyahoga County Prosecutor Timothy J. McGinty.

McGinty said Thursday that he will pursue charges against Ariel Castro "for each act of aggravated murder he committed by terminating pregnancies" during the women's decade of captivity.

CA Former Lt. Gov. Rails Against AB109:  Paige St. John and Seema Mehta of the Los Angeles Times report that former Lt. Gov. Abel Maldonado is beginning a campaign to overturn realignment. Maldonado says AB109 is effectively an early release program for criminals as counties are not able to handle the influx of state prisoners to their jails. Hoping to get a repeal initiative on the ballot, Maldonado has suggested building more prisons to house inmates, a plan already adopted by previous Gov. Arnold Schwarzenegger until Gov. Brown cancelled it. Maldonado hopes that by repealing AB109 the state will be able to comply with federal standards without compromising public safety.

Fed. Prosecutors Seeking to Reinstate Death Penalty for MA Killer:  Lane Lambert of the Patriot Ledger reports that federal prosecutors are seeking reinstatement of the death penalty for Gary Sampson, convicted of three Massachusetts homicides in 2003. Because the state does not have a death penalty, Sampson was prosecuted under federal law.  In October 2011, U.S. District Court Judge Mark Wolf overturned the sentence citing a juror's falsification of her family's criminal history.  Federal prosecutors argued Wednesday that the sentence should be reinstated as the juror's failure to disclose information had no bearing on Sampson's case.

The Cleveland Plain Dealer reports:

Cleveland police this afternoon announced that they have charged Ariel Castro with four counts of kidnapping and three counts of rape in connection with holding Amanda Berry, Gina DeJesus and Michelle Knight captive for the last decade.

Police Capt. Ed Tomba said Pedro and Onil Castro will not be charged, though they have warrants on misdemeanor cases, to be heard Thursday morning.

City Prosecutor Victor Perez said there was no reason to believe the brothers were involved. Kidnapping charges against Ariel Castro include the 6-year-old child found in home.

Also in the Plain Dealer, Brandon Blackwell reports on what we know so far about the case, including:

MS Killer Wins Last Minute Stay:  CBS News Crimesider reports that Willie Jerome Manning was given a stay of execution by the Mississippi Supreme court hours before he was set to die. In 1994 Manning was convicted of shooting college students Jon Steckler and Tiffany Miller to death. Despite what the Mississippi attorney general's office described as overwhelming evidence, FBI agents reported that there were errors in its expert testimony regarding ballistics and hair analysis. Miller's family was en route to view the execution when they were informed of the indefinite delay.

Shasta County Considers Realignment Criminal Housing Plan:  According to a report from the Record Searchlight, Shasta County is set to vote on an investment plan for subsidizing post-release housing of AB109 criminals in their county. The contract will allocate up to $544,250 to Northern Valley Catholic Social Service, for a housing assistance program in conjunction with a newly opened local corrections center.  It is hoped the plan will help curb recidivism by giving qualifying offenders subsidized rent, under the terms that they work to gain employment, stay sober and, if able, eventually pay back the subsidy.
 
San Mateo Courts Struggle Under AB109:  Callie Shanafelt reporting for the California Health report says San Mateo County courts are struggling under AB109 due to a perfect storm of budget cuts, higher caseloads, overcrowded jails and a workforce diminished by over 30 percent. Judges have expressed frustration saying that with limited sentencing options and little actual jail time, their sentences are rendered meaningless.  Although a new jail is being built to increase capacity, funding remains scarce and San Mateo Presiding Judge Robert Foiles says justice and public safety of citizens will be affected by the limited capability of the courts to operate effectively.

Mostly off-topic political note.

The Bureau of Justice Statistics announced that homicides with firearms dropped 39 percent from 1993 to 2011.

Is this newsworthy?  We have known for a long time that crime rates dropped dramatically during the 1990s, after we saw the folly of our soft ways and got tough.  The drop continued, although at a slower rate, in the years following.  The rate of gun homicides specifically would be news only if there were reason to believe that gun homicides were a special category.  But the data don't show it.  The drop in gun homicides is the same, within about a percent, as the drop in homicides generally for the same period.  It is also reasonably close to the drop in violent crimes generally for the same period.

The cause of crime is criminals, not weapons.

Michael Graczyk reports for AP:

HUNTSVILLE, Texas -- A Texas death row inmate convicted of killing a fellow drug dealer while robbing him outside of a Waco convenience store 10 years ago has been executed.

Carroll Joe Parr received a lethal injection Tuesday evening. Appeals to block the punishment were rejected last week in the state and federal courts. And last-day appeals filed by Parr himself were denied at the U.S. Supreme Court and his trial court.

The SCOTUS denial is not on the high court's website as of this writing. 

Update:  Ed Marshall informs us in the comments that Justice Scalia denied the application on his own, so there will not be an order of the Court.

Congress vested the stay power in individual justices (see 28 U.S.C. §2101(f)), so the procedure is to apply to the justice assigned to the circuit from which the case comes.  For Texas (Fifth Circuit), that is Justice Scalia.  However, the Court established long ago (in a case related to the Aaron Burr conspiracy) that a power vested in individual justices may be exercised by the full court.  For stays of execution in capital cases, the usual practice is for the individual justice to refer the stay application to the court for decision.

Why wasn't that done in this case?  Probably the time crunch.  It is also possible that Justice Scalia conferred with his colleagues informally and determined the full court would deny it before issuing the denial individually.

Update 2:  The docket is now available here.

Trust in the Supreme Court is routinely higher than in either the President or Congress, but this is not necessarily good news for the Justices.  My own view is that growing skepticism about the Court is the product of judicial sprawl.  The Court is seen, all too often correctly, as adopting the policy views of the majority of its members at any one time, rather than adhering to law.  This is the sort of judicial indiscipline that brought us such decisions as Miranda and Kennedy v. Louisiana.

• We trust TV judges more than Supreme Court Justices. Straight-talking dispute settler Judge Judy (51%) had the highest score of all the judges on our list - including all nine Supreme Court Justices, and was closely followed by Judge Joe Brown (48%).
  
  Read more here: http://www.heraldonline.com/2013/05/07/4840121/readers-digest-announces-100-most.html#storylink=cpy

• 
  Read more here: http://www.heraldonline.com/2013/05/07/4840121/readers-digest-announces-100-most.html#storylink=cpy

Former Congressman Jesse Jackson, Jr., pleaded guilty to siphoning off about three quarters of a million bucks from his campaign contributions in order to fund personal luxuries like super expensive wrist watches.  He faces prison time, but of course his lawyers and his friends want no such thing.

"Not only is he highly intelligent, he is charming and entertaining," Fudge wrote. "When things got tough or extremely difficult on the House floor, we could count on Jesse to bring levity to an otherwise daunting situation with a bad joke or a one-man skit. Jesse was the highlight of our karaoke nights and always made everyone feel like an integral part of, and not apart from, various activities. He made us realize that we could still have fun, while addressing important national issues."

CA Counties Frustration Mounts as Law Enforcement Struggles Under AB109:  Kurtis Alexander of the Fresno Bee reports problems are mounting for California law enforcement under realignment, as a combination of limits on parole time and overcrowding cause parole violators to be released quickly or not incarcerated at all. In the first two months of realignment Fresno County Jail ran out of space and was forced to adopt a non-incarceration policy towards violators. San Joaquin and Merced counties have taken to similar methods. Merced County Sheriff Mark Pazin says the problem is affecting jails throughout California. Mark McDavitt, a Fresno sex offender, was caught and released six times for violating parole until he was charged with annoying or molesting a child after he accosted girls in a park. Another parolee and sex offender Jerome DeAvila raped and murdered his 76 year old grandmother in Stockton last year. Parole agents express frustration with the lack of ability to enforce compliance under AB109, and say that with no threat of incarceration, parolees will continue to do as they please.

CA Officer Shot in Coulton, Suspects Held:  John Asbury of the Press Enterprise reports correctional officer Tom Dennie, 52, was shot Thursday night at a Coulton, California gas station en route to work. Two suspects, Christopher Josephat Marquez, 24, and Anthony Gomez Jr., 31, have been arrested. Gomez, discharged from parole in March, 2012 has an extensive criminal history. It is reported that after asking Dennie for directions, the two suspects opened fire, shooting the officer in the leg and head. The suspects were apprehended shortly after the incident, and are being held on $1 million bail. Dennie remains in critical condition at last report.

TX Shooter Sentenced to Death:  Juan A. Lozano of the Associated Press reports Bartholomew Granger, 42, received the death sentence, Thursday, for the fatal shooting of Minnie Ray Sebolt, 79. Granger ambushed his daughter in March, 2012 outside of the courthouse where she went to testify against him for a case of sexual assault. Granger's attack resulted in Sebolt's death, the near death of his daughter and the wounding of one other woman. The jury recommended the death penalty after 2 hours of deliberation.

Every news source is reporting the horrifying story from Cleveland.  Debbi Wilgoren has this story in the WaPo:

Three women and a 6-year-old girl rescued from a house in Cleveland Monday night after years in apparent captivity have been medically evaluated and are in good health, police said Tuesday morning.

The girl is believed to be the daughter of Amanda Berry, the woman who triggered her own rescue and that of her fellow captives by flagging down a neighbor and begging him to help her escape. 

Berry, now 27, disappeared in April 2003, a day before her 17th birthday, after calling her sister to say she was getting a ride home from her job at a Burger King. Gina DeJesus went missing a year later, at age 14, while walking home from middle school. The oldest of the women, Michelle Knight, disappeared in August 2002, when she was 20 years old.

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[Ariel] Castro was arrested Monday night, along with his brothers Pedro Castro, 54, and Onil Castro, 50. [See update note on the continuation page.]  The brothers are in custody and must be charged within 36 hours, law enforcement authorities said. They declined to specify what charges the men are likely to face or to detail how they were placed under arrest. Pedro and Onil Castro have addresses elsewhere in Cleveland, police said.

If Ariel Castro is convicted of holding these women prisoners for years, how will our society punish him?  By holding him prisoner for years.  Does anybody have a problem with that?  Will there be protests that "it is wrong to hold people prisoner to show that it is wrong to hold people prisoner"?  Will there be sanctimonious declarations that by holding them prisoner we are lowering ourselves to their level?  There weren't any such protests for Phillip Garrido, to my knowledge, and I doubt there will be any for Castro.

IA Sex Offenders Legally Carrying Guns:  The Associated Press reports over 50 registered sex offenders in Iowa are legally carrying guns, due to a law change made in 2011. IA state law has made it difficult for sheriffs to deny gun permits to registered sex offenders; prior to 2011 sex offenders were frequently denied permission to carry a gun. Washington County Sheriff Jerry Dunbar is concerned that sex offenders may use guns as an intimidation tactic to get victims to cooperate. Maia Christopher of the Association for the Treatment of Sexual Abusers argues that if the sexual offense did not involve a gun, the offenders should not be prohibited from access to guns. Rob Burdess, president of the Iowa State Police Association counters, citing sex offenders' propensity for violent behavior.

CA Police Departments Struggle to Deal With Rising Crime Under Realignment:  According to a report by Beatriz E. Valenzuela of the Inland Valley Daily Bulletin, Pomona Police Chief Dave Keetle is working with police departments in six other Los Angeles County cities to form a task force specifically designed to handle rising crime rates under AB109. Keetle blames realignment and post release community supervision probationers for the criminal upsurge Pomona has experienced recently. 12 people have already been killed in the city this year. Almendra Carpizo of the Oroville Mercury-Register reports Butte County's four police chiefs are working together to deal with the crime experienced in Chico, Gridley, Oroville, and Paradise, also rising significantly under realignment. The departments are collaborating with funding, as they follow a format used in an anti-drunk driving campaign previously. Police will be working overtime, conducting more searches, and targeting gang, drug, property, and sex crimes in the streets. Chico Police Chief Kirk Trostle calls the program a short term solution. The new program's funding will be implemented in July, at the beginning of the 2013-2014 fiscal year.

Gary Fields and Neil King report in the WSJ:

Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.

The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats. It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.

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Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force. He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.

Efforts at criminal law reform are often covers for people whose real agenda is to repeat the disastrous soft-on-crime mistakes of the 60s and 70s (e.g., California's realignment), so my skeptical antenna goes up immediately.  However, the fact that sensible Sensenbrenner is chairing the committee is reassuring.

Our main concern here at CJLF is with acts that every rational person agrees should be criminal, such as murder, rape, robbery, and burglary.  "Overcriminalization" is the use of criminal law to address issues that should be civil matters, and we are okay with efforts to prune that back.  Indeed, the moral force of the criminal law is enhanced by reserving it for genuinely evil acts with evil intent.  It is diluted by extending it to lesser transgressions and by blurring the distinction between intent and error. 

In addition, most crimes should be matters of state law, and as all-weather federalists we are fine with efforts to trim federal law back to its proper territory.  If the committee comes up with proposals to address these issues without going soft on crimes that genuinely deserve strong punishment and genuinely should be federal, it can make a positive contribution.

Last Saturday's neurocriminology essay in the WSJ by Adrian Raine (noted here) gets four thumbs-down in today's letters to the editor.  Chuck Klein of Georgetown, Ohio suggests, "Perhaps we should study the minds of the scientists to learn why they so resist executing these murderers. Might there be something missing in their frontal lobe that negates the practicality of executing killers?"

Meanwhile, in the Books section, Michael Gazzaniga reviews The Anatomy of Violence by, you guessed it, Adrian Raine.  Gazzaniga says Raine's discussion of the science is useful for those not familiar with it, but he is skeptical of the policy leaps.  He recites the history of the pseudoscience of phrenology and of the days when Freudian psychoanalytic theories held sway.  "As psychoanalysts' fairy tales about the nature of human behavior lost influence, their role in the courts began to recede as well." 

In all of these earlier attempts to explain the causes of antisocial behavior and violence, the hope was to provide a scientific explanation for the acts of the defendant--such that, at sentencing, justice could be served. Now our ability to observe what is happening within the brain has much improved, but the question remains how to explain or make use of this in the courts.

Michael Dresser reports for the Baltimore Sun:

One day after Gov. Martin O'Malley signed legislation to abolish capital punishment in Maryland, death penalty supporters said Friday they will launch a petition drive to give voters the opportunity to overturn the new law.

At a news conference, Baltimore County State's Attorney Scott Shellenberger said he plans to lead the effort to "repeal the repeal" of the state's death penalty.

"We need to retain the death penalty for those prosecutors who wish to seek it because it is simply the right thing to do for public safety," said Shellenberger, a Democrat. "We want the people of Maryland to decide whether Maryland should have the death penalty."

Del. Neil Parrott, a Western Maryland Republican, said he would mobilize his signature-gathering operation, MDPetitions.com, to try to put a death penalty question on the ballot in November 2014.

Best wishes to the forces of justice.  If the California experience is any indication, you will be massively outspent.  Yet Maryland is a small enough state that the media disadvantage may not be as important.  Local leaders making personal appearances and refuting the deception were an important part of the effort in California, and they may be even more effective in Maryland.

From Dunlap v. Clements, 476 Fed. Appx. 162, 163-164 (CA10 2012):

In February 1996, Mr. Dunlap was convicted of four counts of capital murder and various other crimes in connection with the murder of three teenagers and a 50-year-old mother of two at a Chuck E. Cheese's restaurant in Aurora, Colorado. In May 1996, in accordance with jury verdicts, he was sentenced to death on the four murder counts and consecutive terms totaling 113 years on the other counts.

In July 1993, Mr. Dunlap had been fired from his position as a cook at the restaurant and wanted to "get even." On the night of December 14, 1993, he hid in the bathroom until closing, then emerged and shot employees Sylvia Crowell, Colleen O'Connor, Bobby Stephens, Marge Kolhberg, and Ben Grant. Mr. Stephens was hit in the face at close range but survived.

Wednesday, a judge set the week of August 18 for the execution, with the Department of Corrections to pick the exact date, Karen Augé and Adrian Garcia report for the Denver Post.

LA Probation Arming Officers in Response to Realignment:  Christina Villacorte of the San Bernardino Sun reports that the Chief Probation Officer of Los Angeles County, Jerry Powers,  is following suit with other probation departments to increase the number of armed probation officers.  Before AB109 most probation officers were not armed as they supervised the petty thieves and minor offenders in their charge, but now that Realignment has shifted large numbers of hardened criminals from state parole to county probation there are real concerns about probation officer safety. Of the probationers realigned to L.A. County, 499 are classified as "very high risk", and 7,197 are classified as "high risk." The Probation's Special Enforcement Operations Unit is stepping up recruitment to handle the unprecedented challenges. Supervisor Michael Antonovich says nearly 12,000 of the state's AB109'ers have been rearrested for violating parole or committing new crimes.

Jerry Brown Submits Incarceration Reduction Plan "Under Protest":  According to a report by Howard Mintz of the Mercury News, Thursday night Gov. Jerry Brown submitted a plan to reduce California's prison population by 10,000 inmates by years end. The plan, submitted "under protest", saves Gov. Brown from being held in contempt of court for failing to comply with the federal court ruling ordering CA to reduce its prison population. The state disagrees, claiming that current prison housing facilities; medical and mental health facilities are adequate. Realignment, Gov. Brown's attempt to reduce overcrowding by shifting criminals from prisons to county jails, is proving to be a major threat to public safety. Gov. Brown cites further concerns over public safety under the federal mandate to release more prison inmates and has vowed to appeal to the U.S. Supreme Court. Continued from this News Scan. 

Monday, a customer and employees of a Starbucks in San Jose foiled an attempt to poison customers with tainted orange juice.  Ramineh Behbehanian, 50, was arrested on suspicion of attempted murder and poisoning.  Yet she will be released because the lab results haven't come back within the two-day window for formally charging an arrestee, Henry Lee reports for the SF Chron.

And then there is this gem:

According to her LinkedIn profile, Behbehanian has a master's degree in physical chemistry and chemical engineering from Lehigh University in Pennsylvania and works at a pharmaceutical subsidiary of Johnson & Johnson.

The profile says Behbehanian has more than 15 years of experience in the pharmaceutical, diagnostic and medical device industries and has expertise in "drug delivery and controlled release technologies."

I just checked.  The profile is still there.  It says she is a "Six Sigma Black Belt Principal Scientist/Engineer."

This morning, the Ninth Circuit denied a petition for writ of mandamus by two child pornography victims in Amy & Vicky v. U.S. District Court, No. 13-71486. The victims challenged the award of $17,307.44 and $2,881.05 as inadequate.  The panel declined to overrule United States v. Kennedy, 643 F.3d 1251 (9th Cir. 2011).  (No surprise there.  You have to go to the en banc court to overrule a circuit precedent.)

Amy and Vicky are represented by our good friend, Professor Paul Cassell.  I expect he will take the case further.

In late April, a few members of our Foundation's Board and I toured San Quentin, the oldest prison in California and home to the state's death row.  While I have been through some other state prisons, San Quentin was different.  It was opened in 1852 as the state's first prison.  It was located on a 432 acre point facing the San Francisco Bay because, at the time, the city was overrun with crime.   Although it's obvious that the prison has been expanded over the years,  walking through the main gate into the actual prison compound is like stepping back in time.  The gate itself is original and large enough to accommodate a stagecoach.  Inside the compound is a grassy quad flanked by the gate wall, a cell block, a hospital and a building housing several small churches.  In addition to death row, which is isolated from the rest of the prison, roughly 4,500 inmates are housed inside the main prison.

Following the links in Steve's post on the DSM-5 led me to this post by Allen Frances.  Neuroskeptic refers to Frances as "the creator of the more reliable DSM-IV."  Frances begins with a process criticism of the way the DSM-5 was created and approved (emphasis added):

This is no way to prepare or to approve a diagnostic system. Psychiatric diagnosis has become too important in selecting treatments, determining eligibility for benefits and services, allocating resources, guiding legal judgments, creating stigma, and influencing personal expectations to be left in the hands of an APA that has proven itself incapable of producing a safe, sound, and widely accepted manual.

New diagnoses in psychiatry are more dangerous than new drugs because they influence whether or not millions of people are placed on drugs -- often by primary care doctors after brief visits. Before their introduction, new diagnoses deserve the same level of attention to safety that we devote to new drugs. APA is not competent to do this.

Diagnoses are also dangerous because of their potential to convince gullible jurors, and sometimes even judges, to let criminals off with less than they actually deserve. 

CA Version of Jessica's Law Rendered Ineffective by Court:  According to a report from ABC News 10 an unnamed registered sex offender living 350 feet from an Sacramento area elementary school is not a violation of California's Jessica's law, a ballot measure adopted in 2006  which prohibited offenders from living within 2,000 feet of a school or park. The unnamed sex offender's record includes assaults on children of the same age as the students at the elementary school. After a 2010 ruling by a LA Superior Court judge announcing that the restriction was unconstitutional hundreds of registered sex offenders in Sacramento county have been granted writs of exemption by local judges.

MD Abolishes Death Penalty:  Gov. Martin O'Malley made Maryland the 18th state to abolish capital punishment when he signed Senate Bill 276 into law, Monday, according to a report from the Associated Press. The law is not retroactive; meaning the five men on MD's death row still face execution. Gov. O'Malley said each case will be considered individually for commutation to life in prison without parole. Continued from this News Scan.

Gov. Brown Turns to Private Prisons:  Paige St. John of the Los Angeles Times reports that California Gov. Jerry Brown is pushing for a contract to reduce prison overcrowding, while simultaneously keeping inmates in the state. CA is seeking to move 1,225 inmates to private "modified community" prisons. At present just 600 inmates are housed in the state's only private prison. Prior to 2012 over 5,600 inmates were kept in such facilities. The state determined the programs weren't cost effective and decided some inmates were better housed on a county level. Despite the contract bid, the problem of prison overcrowding remains severe; Brown still faces potential contempt of court charges at a federal level.

CA Bill to Streamline Death Penalty Defeated:  San Francisco Chronicle writer Bob Egelko reports that a measure to streamline California's lengthy and expensive death penalty process was defeated 5-2, Tuesday, on a party line vote in the Senate's Public Safety Committee. SB779 (Anderson) would have shortened the appeals process, removed the bureaucratic obstacles  to establishing protocols and eliminated the issues that have allowed judges to block executions since 2006.  Despite Californians voting to retain the death penalty last November, a majority of state legislators appear unwilling to end the unnecessary delay of executions or the millions wasted by the state's glacial post-conviction review process.  CJLF Legal Director Kent Scheidegger joined several state law enforcement leaders testifying in support of the bill. 

Thomas Insel, director of the National Institute of Mental Health has announced that the organization will not use the new edition of the Diagnostic and Statistical Manual for Mental Disorders:

In a few weeks, the American Psychiatric Association will release its new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). This volume will tweak several current diagnostic categories, from autism spectrum disorders to mood disorders. While many of these changes have been contentious, the final product involves mostly modest alterations of the previous edition, based on new insights emerging from research since 1990 when DSM-IV was published. Sometimes this research recommended new categories (e.g., mood dysregulation disorder) or that previous categories could be dropped (e.g., Asperger's syndrome).

The goal of this new manual, as with all previous editions, is to provide a common language for describing psychopathology. While DSM has been described as a "Bible" for the field, it is, at best, a dictionary, creating a set of labels and defining each. The strength of each of the editions of DSM has been "reliability" - each edition has ensured that clinicians use the same terms in the same ways. The weakness is its lack of validity. Unlike our definitions of ischemic heart disease, lymphoma, or AIDS, the DSM diagnoses are based on a consensus about clusters of clinical symptoms, not any objective laboratory measure. In the rest of medicine, this would be equivalent to creating diagnostic systems based on the nature of chest pain or the quality of fever. Indeed, symptom-based diagnosis, once common in other areas of medicine, has been largely replaced in the past half century as we have understood that symptoms alone rarely indicate the best choice of treatment. (emphasis added).

But with its reliability also in question, the new DSM5 is turning out to be quite controversial.

Former AG Michael Mukasey has this op-ed in the WSJ with the above title.  He notes what could and could not have been done differently in the Marathon Bomber case.  No, we can't try him before a military commission, but the questioning could have gone on considerably longer.

Didn't Dzhokhar Tsarnaev have the same right as Abdulmutallab, and weren't officials legally required to inform him of it? Well, not quite. The right in question is not, strictly speaking, a right to remain silent. Rather, it is derived from the Fifth Amendment, which guarantees that a defendant in a criminal case may not be compelled to be a witness against himself. But if an interrogation is being conducted to gather information, not to build a criminal case, then no right to remain silent exists. Law enforcement already has a surfeit of evidence--including photographs and videos of him at the scene of the bombing. The HIG interrogators weren't trying to help prosecutors construct their case.

Brian Z. Tamanhana of Washington U., St. Louis Law School has this article with the above title on SSRN.  He charges his fellow lefty law professors with hypocrisy and is well aware he will lose some friends.  Here is the abstract:

Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation's highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.

OH Baby Killer Executed:  Amanda Lee Myers of the Associated Press reports that Steve Smith, convicted of raping and killing a 6-month-old baby, was executed in Ohio, Monday. Up until his death Smith refused to take responsibility for his actions, instead blaming alcohol. The OH Parole Board and Gov. John Kasich unanimously rejected his plea. Smith is the 51st inmate executed in OH since 1999. Continued from this News Scan.

3 Men Taken in By Police in Boston Bombing Case:   Scott Malone, Tim McLaughlin and Ross Kerber of Reuters News report that three men suspected in the Boston Bombing have been charged with conspiring to obstruct justice and making false statements. Two of the men, Dias Kadyrbayev and Azamat Tazhayakov both from Kazakhstan, had already been arrested for violation of immigration on April 20. The third man, Robel Phillipos, is a U.S. citizen charged with making false statements. The men were friends with suspect Dzhokhar Tsarnaev, when they attended the University of Massachusetts at Dartmouth with him. They are suspected of attempting to dispose of computer equipment, fireworks and other evidence from Tsarnaev's apartment after the attack. The three are considered high-risk for flight and are being held by U.S. Marshals. Continued from this News Scan.

CA Bill Aimed at Funding Realignment Fails:  Jasmine Viel of Central Coast News reports that California Sen. Anthony Cannella's Realignment Reinvestment Act, SB 144, was voted down 5-9 in the Senate Budget Committee, Monday. Cannella had hoped the bill would be a solution to the problems counties are having handling the influx of realigned inmates. The bill would have reallocated funds to local law enforcement, jails, and job training programs that would otherwise have been spent in state prisons prior to realignment. Cannella says he remains committed to providing funding for counties and curbing recidivism rates.

Federal Official Orders Inmates Out of 2 CA Prisons:  The Associated Press reports that federal medical receiver J. Clark Kelso has ordered, Monday, that over 3,000 inmates from California's Avenal and Pleasant Valley prisons be moved out in the wake of Valley fever affecting the two facilities. The order came days before the deadline for Gov. Jerry Brown to submit his inmate reduction plan to federal courts. Kelso's order directs the Department of Corrections and Rehabilitation to move black, Filipino, and other groups known to be susceptible to the disease. Multiple problems now face the system as the state must decide where to house the inmates. The state is looking into how much control Kelso has over where the inmates should be placed, and is considering swapping inmates with high susceptibility for those deemed less at risk to illness with other state prisons as an option. Since 2012, Valley fever has been deemed a primary or secondary cause of nine inmate deaths, costing over $23 million annually to treat.

We saw in the Christopher Dorner case that an Internet subculture grew up to cheerlead for the multiple killer.  We now have something even crazier, or more disgusting, I'm not sure which.  I'll just give a sample from this piece in gawker.com:

#FreeJahar resists describing itself as a "fandom." Because #FreeJahar is mostly young and largely female, its habitués struggle with the perception that their interest in the Tsarnaev's case is mostly about Tsarnaev himself. "i've noticed the only thing the haters can say is: all the people on this tag are young horny girls [and] we are only defending Jahar because he's good looking," one blogger wrote. (The fact that dedicated #FreeJahar blogs routinely reblog posts calling Tsarnaev "the world[']s hottest terrorist" or collecting tweets about Tsarnaev's good looks doesn't help.)

I thank all of you who tuned in and have given me the benefit of your comments, almost all of which were very generous.

A poll has once again confirmed that the generic poll questions understate support for the death penalty and overstate opposition.  When asked about a specific, especially heinous crime, more people support the death penalty than answer yes to an abstract question.  Jon Cohen reports on a WaPo/ABC poll.

Overall, 70 percent of those surveyed say they support the death penalty for 19-year-old Dzhokhar Tsarnaev. While most Democrats and Republicans alike say they would support the death penalty for Tsarnaev, there are deep racial divisions on the matter, reflecting a common gap in public views of the death penalty itself.

The overall result is 70-27.