June 2013 Archives

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Colorado Prepares for Movie Theater Murder Case: An Arapahoe County judge has made several decisions concerning the upcoming trial for accused movie theater killer James Holmes.  Shawn Nottingham and Greg Botelho of CNN report that during the trial, Holmes will be restrained by a hidden harness anchored to the floor (a request made by his defense attorneys to prevent the jury from seeing him in visible restraints).  The defense also requested that the jury be sequestered and prevented from using their phones and computers during the trial; however, both of those requests were denied.  The judge has said he will send out 5,000 jury summons for the case, making this the largest jury pool in state history.

California Inmate to Face Murder Charges in Nevada: A man serving a 13-year prison sentence in California has been transported to Las Vegas to face murder charges for the 2006 slaying of his estranged girlfriend.  CBS Las Vegas News reports that police have charged Shaun Leflore in the 2006 murder; a case police originally believed to be a suicide.  Leflore was sentenced to 13 years in prison for assaulting and threatening to kill a California woman less than a year after the 2006 murder.

Texas Woman Indicted in Obama Ricin-Letter Case
: A Texas woman was indicted today on charges that she mailed ricin-laced letters to President Obama and New York Mayor Michael Bloomberg.  The Associated Press reports that Shannon Richardson mailed the letters in an attempt to frame her estranged husband. If convicted, Richardson could face up to 10 years in federal prison. 

California Supreme Court Upholds Death Sentence: The California Supreme Court upheld the death sentence for a man convicted of raping and murdering his 12-year-old neighbor in 1999.  Kenneth Ofgang of Metropolitan News-Enterprise reports that Daniel Linton challenged his death sentence after making claims that detectives tricked him into giving a confession in exchange for leniency.  The high court ruled against Linton, noting that he had waived his Miranda rights prior to the confession.

He Just Lost Track of It

Jon Corzine is the high-finance billionaire who (as is his right) used a goodly chunk of his money to win a Senate seat, and then the Governor's chair, in New Jersey. After he left public "service," he became head of MF Global Holdings, Ltd.  

Under Mr. Corzine's leadership, Global went belly-up, taking more than a billion (that's "billion" with a "b") of investors' money with it.  When called before Congress to explain what happened to the dough, Corzine said, gosh, he just didn't know.  

Not buying this "explanation," the Commodity Futures Trading Commission has filed a civil suit against Corzine seeking restitution for the investors, penalties, and a permanent ban on Corzine's financial escapades.  The WSJ has the story here.

The question is:  Why is this not a criminal case?  The CFTC complaint is essentially that Corzine diverted what was supposed to be segregated investor funds to try to head off the bankruptcy his reckless bets on European debt made inevitable.  When I was an AUSA, that sort of "diversion" was a polite name for theft.

P.S.  As Governor, Corzine made a somewhere-beyond-smug statement in signing the bill that ended the death penalty in his state.

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Convicted Murderer Killed in Maine Prison: A fight between two convicted murderers in a Maine State Prison left one inmate dead and the other facing another murder charge.  Nok-Noi Ricker of Bangor Daily News reports that the man being charged in the inmate's death, Guy Hunnewell III, is serving a 40-year sentence for the stabbing death of his estranged girlfriend.  This is not the first prison altercation Hunnewell has been involved in, he was indicted in 2003 for allegedly assaulting another inmate with a shank.

US Marine's Murder Conviction Overturned: A U.S. Marine, Sgt. Lawrence Hutchins III, had his murder conviction overturned after a federal judge ruled his Fifth Amendment rights were violated during an interrogation.  The Associated Press reports that Hutchins was the leader of a group accused of kidnapping and murdering an Iraqi man in 2006.  Hutchins will be released after serving roughly half of his 11-year sentence.

Columbian Police Make Arrest in DEA Agent's Murder: Four men have been arrested in Columbia and charged in the murder of U.S. DEA agent James Watson.  Jim Wyss of the Miami Herald reports that the men could be extradited to the United States to face murder charges.  Authorities believe the murder was the result of a botched robbery and not related to Watson's employment with the DEA.

Update:  Texas Executes 500th Inmate:  Convicted murderer, Kimberly McCarthy, became the 500th inmate to be executed in Texas since the death penalty was reinstated in 1982.  She was pronounced dead Wednesday evening after Texas prison officials administered a single lethal does of pentobarbital.

Texas Execution

The vast majority of people on death row are men, even though men are a tad less than half the population.  Few people get exercised about that because with sex, unlike race, most of us recognize that the general population is an irrelevant denominator.  Female murderers are a much smaller group than male murderers, and even among murderers fewer women commit the especially heinous kinds of homicide that warrant the death penalty.  Few, but not zero. AP reports on last night's execution in Texas:

McCarthy, 52, was executed for the 1997 robbery, beating and fatal stabbing of retired college psychology professor Dorothy Booth. Booth had agreed to give McCarthy a cup of sugar before she was attacked with a butcher knife and candelabra at her home in Lancaster, about 15 miles south of Dallas. Authorities say McCarthy cut off Booth's finger to remove her wedding ring.

It was among three slayings linked to McCarthy, a former nursing home therapist who became addicted to crack cocaine.
Yes, three killings including an exceptionally treacherous and grisly one qualifies as deserving the maximum punishment.  Then there is this:

Texas has carried out nearly 40 percent of the more than 1,300 executions in the U.S. since the Supreme Court allowed capital punishment to resume in 1976. The state's standing stems from its size as the nation's second-most populous state as well as its tradition of tough justice for killers.
Not quite.
Reasonable people largely agree that repeat offenders should be punished more severely than first offenders.  When a criminal is convicted of the new offense in a different jurisdiction, though, categorizing the prior offense has proven to be a continuing problem.

Classifying a federal defendant as a "career offender" under § 4B1.1 of the Sentencing Guidelines requires deciding if his prior conviction qualifies as a "crime of violence."  How about this crime?  Is this violent?

When petitioner pleaded guilty, this is what was said:

"'[Assistant District Attorney]: On . . . April 27, 2004, . . . [petitioner] grabbed Mrs. Marrero by the neck, attempting to drag her upstairs to the second floor. When she tried to make a phone call, he ripped the phone cord out of the wall as she was attempting to call 911.'"

"'The Court: Do you admit those facts?'"

"'The Defendant: Yes, Sir.'"
Sounds violent to me.  What's the problem?
Contrary to much speculation, the US Supreme Court has taken up the case on the "no adverse inference" instruction in the penalty phase for full review, rather than summarily reversing the Sixth Circuit.  See prior posts here and here. The case is White v. Woodall, No. 12-794.

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Hollywood Murder Raises Realignment Concerns: The man charged with stabbing a Hollywood tourist to death was a parolee released under California's Realignment law just 11 days prior to the attack.  CBS Los Angeles reports that the suspect, Dustin Kinnear, had been arrested at least 46 times before the attack, seven of those arrests being for assault with a deadly weapon.  Under the so-called Public Safety Realignment law, assault with a deadly weapon is not considered a serious or violent crime.

Oklahoma Executes Man Despite Parole Board Objection: An Oklahoma man convicted of raping and murdering his girlfriend's mother was executed despite a recommendation by Oklahoma's Pardon and Parole Board.  Fox News reports that the recommendation made by the parole board came after the suspect apologized for his actions and took responsibility for his victim's death.  Governor Mary Fallin stands by her decision and is "satisfied that justice is being served in this case." 

Texas Prepares to Execute 500th Inmate: Texas is set to execute death row inmate Kimberly McCarthy later today marking their 500th execution since the state resumed carrying out death penalty sentences in 1982.  The Associated Press reports that McCarthy was convicted of first-degree murder after robbing and fatally stabbing a retired professor in 1997.  Texas has carried out almost 40 percent of the more than 1,300 executions in the U.S. since the Supreme Court voted to reinstate capital punishment in 1976.

Four LAPD Officers Shot in Less Than 24 Hours: Two separate attacks resulted in four officers from the Los Angeles Police Department being shot on Tuesday.  The Associated Press reports that the first incident involved two undercover officers being ambushed as they returned to a police station.  The suspect in that incident has yet to be found.  Later in the day, officers conducting a parole-probation search were shot at, resulting in one officer being shot in the face.  The incidents appear to be unrelated, and all of the officers are expected to survive.


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The US Supreme Court also issued one criminal law opinion today, though few will notice.  Sekhar v. United States involves the interpretation of the federal extortion law, the Hobbs Act.  If Don Corleone wants a government lawyer to issue a certain opinion and makes him an offer he can't refuse, is that extortion?  No.  Extortion under this law requires "the obtaining of property from another," and the opinion is either not something one can obtain (according to the majority) or not property at all (according to the concurrence).  Such threats can be and should be crimes, but the prosecution will have to be under another law.
The big news out of the US Supreme Court today is, of course, the same-sex marriage cases.  CJLF takes no position on the underlying issue.  We are quite interested in the "standing" question.  When the state's executive fails to defend the constitutionality of an initiative measure in court, can the proponents step in and defend it?

The answer should be yes.  Initiative proponents invest much time and money getting their measure qualified and then campaigning for it.  Whether their interest is tangible or intangible, that investment should be more than enough to allow them to defend their measure in court.

Even more importantly, without such standing, the people's precious power of initiative can be defeated by collusive litigation between an opponent and an executive that simply does not want to enforce the measure.  This is a very dangerous situation indeed.

Today in the Prop. 8 case, the Ninth Circuit is directed to dismiss the appeal for lack of jurisdiction, leaving in place an unreviewable district court injunction against enforcing a state statute.  Even if one disagrees with the statute and believes it to be unconstitutional (a point on which I know our readers are sharply divided), this is not a good result.

Justice Kennedy dissents, joined by Justices Thomas, Alito, and Sotomayor, a line-up you don't see every day:

In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court's view of how a State should make its laws or structure its government. The Court's reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials--the same officials who would not defend the initiative, an injury the Court now leaves unremedied.

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Last Minute Insanity Claim Halts Florida Execution: A federal appeals court halted the execution of Florida death row inmate, Marshall Lee Gore, an hour before he was set to die by lethal injection.  David Ovalle of the Miami Herald reports that Gore, who was convicted of murdering two women 25 years ago, was granted a stay of execution after his lawyers made an insanity claim on his behalf.  Gore has no documented history of mental illness, and was found to be mentally sound by psychiatrists after the governor ordered him to be evaluated.

Baby Killer Granted Parole: A California appellate court ignored Governor Brown's decision to deny parole for convicted baby-killer, Christopher Fowler, and agreed with the Parole Board to release him.  Nannette Miranda of ABC 7 Sacramento reports that the court believes Fowler's good behavior and participation in rehabilitative programs while incarcerated indicate that he will be a "low-risk offender" in the community upon release.  Governor Brown is currently reviewing the case, and can ask the California Supreme Court for a hearing if he decides to intervene in Fowler's release. 

Convicted Murderer Kills Again While Serving Life Sentence: An inmate at the California Medical Facility in Vacaville has been ordered to stand trial for the 2010 death of a fellow inmate.  Ryan Chalk of The Reporter reports that Andrew Roman, 46, allegedly assaulted another inmate and threw him over a third floor railing resulting in his death.  Prosecutors say Roman was already serving a life sentence after being convicted of second-degree murder.     

Convicted Rapist Linked to Cold Case Murder:  A cold case from 1982 has been solved after DNA evidence linked John Ernest Walsh, a convicted rapist, to the murder of Stefanie Watson.  Brad Bell of ABC News reports that Walsh was given a life sentence in 1969 for a rape he committed, but murdered Stefanie while he was out on parole from 1980 to 1989. Walsh, now 68, will be charged with first degree murder.
One of the most important challenges facing those who demand respect for law is Racial Whinerism.  This is a subset of General Whinerism, in which the thug victim of adverse social forces purports to show that serious punishment Draconian mean-spiritedness flows from society's refusing to indulge phony excuses understand his difficult childhood.  One favorite item in the inventory of Whinerism Excuses is racism.

Now before any liberals reading this go ballistic, let me say that we all know racism still exists.  We all know it has had an appalling history in this country, including but hardly limited to rampant unpunished murder.  We all know that dramatic steps were needed, and were undertaken, to overcome it.

We also know that the same liberals who understand all that likewise, although very quietly, understand that minority group (mostly black) criminals in this day and time wind up in court for exactly the same reason that whites do:  Greed, wanting to make a fast buck, a quick trigger, severe lack of empathy, dishonesty, refusal to grow up, and me-first thinking.  If you're looking for the "root causes" that people wind up as criminal defendants, I just listed them.  The race in which these characteristics "disproportionately" appear is well known.  It's the human race.   
Senators Patrick Leahy (D-VT) and Rand Paul (R-KY) have introduced a bill (S.619) that would effectively end mandatory minimum sentencing in federal law.  Judges would be able to sentence at any level below the minimum they wished, provided only that they explain the sentence (which should be routine anyway under existing sentencing standards).  The government would be able to appeal, but that prospect is largely both illusory--given the resistance at Main Justice to approving any sentencing appeals except in the most egregious cases--and ineffective even when it happens, given the very deferential appellate standards imposed on the circuits by Booker, Gall and Kimbrough.  The overall effect is that district judges so inclined would be able to go below the mandatory minimum whenever they wished, and almost always get away with it.
The Leahy/Paul bill is a disaster, both for US Attorneys Offices and, more importantly, for the country.  In the Eighties, Congress saw the need for mandatory sentencing guidelines and statutory minimums on top of that.  The reason for these measures was the scandalously low (and dishonest) sentencing of the Sixties and Seventies, and the accompanying explosion of the crime rate, illustrated by the numbers here.  As determinate sentencing and mandatory minimums gained traction over the last generation, the crime rate has plummeted by 50%.  Federal crime is, of course, only a small fraction of crime generally, but the significant improvement in the safety of citizens from crime both state and federal is an accomplishment to be safeguarded, not risked.
Having become complacent with our success, some in Congress have made proposals, like the Leahy/Paul bill, to go back to the bad old days of luck-of-the-draw sentencing.  If adopted, some judges would continue to adhere to mandatory minimums, but some wouldn't.  Judicial indiscipline would increase over time, just as the number and rate of non-government approved downward departures has increased over time since mandatory guidelines were overthrown eight years ago in Booker.  For the reasons I shall now explain, the ensuing one-way ratchet downhill will produce at least three perverse results.
No criminal law opinions from the high court today.  There is only one argued criminal case left, Sekhar v. United States, a minor case on interpretation of the federal extortion statute.  Meanwhile, we have a landmark case on some issues of federalism that often creep into criminal law.

The people of the several states have a right to govern themselves and exercise all government powers that the Constitution neither takes away nor assigns to the federal government.  The amendments adopted after the Civil War provide protection against racial discrimination by state governments.  The decision of particular cases often involves surveying the boundary between these potentially conflicting rights.

The historic Voting Rights Act of 1965 adopted a drastic measure for a drastic problem.  The states, and some counties, that had the worst record of denying people the right to vote on the basis of race had to get preclearance from Washington for any change in their election practices, while the rest of the country could continue to make changes at will, subject only to challenge after the fact.  How long would the people of these particular jurisdictions be subject to such a reduction in their right of self-government?

Forty-eight years.  Nobody running the government in these areas today had anything to do with pre-1965 practices.  Discrimination remains a problem, to be sure, but it is no longer the kind of barrier is was then.  It is more diffuse, and the assumption that these particular places have discrimination problems so much worse than the rest of the country as to justify such a drastic differential in their right of self-government is no longer valid.

Early in his tenure, Attorney General Eric Holder called for an honest conversation about race.  Well, we have some honesty from the Supreme Court today in Shelby County v. Holder.  Is he going to applaud?  Very doubtfulNope.
The Kentucky capital case of White v. Woodall, No. 12-794 has apparently been relisted yet again. The case involves the defendant's claim that he was entitled, in the penalty phase, to a jury instruction not to draw adverse inferences from his failure to testify.  See prior post from April 15.

Since the April post, the case has been on the Supreme Court's conference list seven more times without action by the Court.  That often (but not always) means a summary reversal is being prepared but the Court is having difficulty coming to agreement on the opinion.

Federalism and Sex Offenses

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The US Supreme Court today decided a case on the Sex Offender Registration and Notification Act (SORNA), a law passed by Congress in 2006.  The majority upholds SORNA as applied to the particular offender in a rather peculiar and fact-specific opinion.  The case is United States v. Kebodeaux, No. 12-418.

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Sentencing in Immigrant Smuggling Case: A federal judge has sentenced two former Border Patrol agents to serve at least 30 years in prison for their involvement in smuggling more than 500 illegal immigrants into the United States.  Julie Watson of the Associated Press reports that the two agents, who happen to be brothers, charged each immigrant about $10,000 to bring them into the country.  It has been estimated that the brothers smuggled in as many as 1,000 immigrants, resulting in a profit of over $700,000. 

Sex Offender Charged in Florida Girl's Murder:
A Florida man, Donald Smith, has been charged in the kidnapping and murder of an eight year-old girl reported missing last Friday.  The Huffington Post reports that Smith, a registered sex offender since 1993, kidnapped the young girl after befriending her mother and offering to buy the family food and clothing.  Smith was released from jail only 21 days prior to the kidnapping on charges stemming from a 2009 attempted child abuse case.
The Supreme Court has taken up the recess appointments case, discussed in this post, and added the third question requested by the employer, Noel Canning: "Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions."

As I noted previously, I think the answer to that question is so clearly "no" that it warranted summary affirmance.  The Court did not take that route, which it very rarely takes, but I would still wager that it will affirm on that basis by a lopsided vote and leave the more difficult questions to a case that requires their decision.

In some civil cases with crime-related implications, the Court took up Lozano v. Alvarez, No. 12-820, on the Hague Convention of the Civil Aspects of International Child Abduction, and McCullom v. Coakley, No. 12-1168, on buffer zones around abortion clinics.  No action on Amy & Vicky v. United States, No. 12-651, on child pornography restitution, which has already been relisted twice and apparently will be again.

Don't Monkey With The Mandate

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From today's per curiam reversal of the Ninth Circuit in Ryan v. Schad, No. 12-1084.

Federal Rule of Appellate Procedure 41(d)(2)(D) sets forth the default rule that "[t]he court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed." (Emphasis added.)
What part of "must" does the Ninth Circuit not understand?
Justice Alito gave a talk with the above title to the State Bar of Texas yesterday,  Nomaan Merchant reports for AP. The story doesn't list all ten, unfortunately.  Here is one gem:

Trying to get in a question at oral argument is really like trying to grab an item that's on sale at Walmart the day after Thanksgiving.
But don't worry:

Hearing oral argument is a small and comparatively unimportant part of the work that we do.

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Blinking Testimony Used to Convict Ohio Murderer: An Ohio Man, Ricardo Woods, was convicted and sentenced to 36 years in prison after being identified by a paralyzed man that only had the ability to blink his eyes.  The Associated Press reports that jurors found Woods guilty after watching a 17 minute video in which the victim blinked three times to identify Woods as the man who shot him.  The victim succumbed to his injuries, which elevated the original charge of felonious assault to murder.

Cold Case Slaying Solved 39 Years Later: Ohio police used fingerprint evidence to charge a man, already serving prison time for murder, with a 1974 triple homicide.  The Associated Press reports that James Ferrera was indicted Thursday after evidence from the 1974 case was submitted into the Bureau of Criminal Investigation database and matched Ferrera's fingerprints.  Ferrera is currently serving a life sentence for two unrelated murders.

Former Bush Official Selected as new FBI Director: James Comey, a top Justice Department official during President George Bush's presidency, was selected to be the new director of the FBI.  Adam Aigner-Treworgy of CNN reports that Comey, a former prosecutor, focused on cases involving terrorism, organized crime, and fraud.  Current FBI director, Robert Mueller, will step down from the position in September after serving as director for the past 12 years. 

Holder Letter on the Rosen Matter

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Todd Ruger has this post at BLT on AG Holder's letter of June 19 to the House Judiciary Committee regarding his May 15 testimony and the James Rosen search warrant.  The letter is on the committee website.

And Speaking of Flagrant Lying.......

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...while I have more than a few problems with our country's chief prosecutor, I don't want to neglect our friends in the defense bar, for whom, I am constrained to confess, lying, or the functional equivalent thereof, is often the only way out, given the clientele.  While in my opinion deceit degrades the legal profession, misleading tactics by the defense are accepted by professional norms, at least as long as they don't devolve into point-blank perjury, fabricating evidence, assassinating witnesses or something unpleasant like that.

Still, one would think that basic decency would intrude at some point.  It certainly should have when the lawyer for Ariel Castro, Craig Weintraub, told a gaggle of reporters (tape here) that he was "very concerned about having the [victims] go through the stress of a trial."

At first I thought this re-defined the word "cynical," but on reflection, I think it re-defines the word "disgusting."  It's somewhere in the Twilight Zone to think that the defense has anything a normal person would regard as "concern" for the victims. What's actually going on is that Mr. Weintraub is using what he hopes will be the victims' anguish at having to relive their ordeal in order to goose the prosecutor into a favorable plea bargain for the man who relished his ten fun-filled years of putting them through it.  

This is the defense bar version of "concern for victims."  It's also a good thing to remember when some holier-than-thou defense lawyer starts in on how he's just standing up for the Constitution.

The New Normal: Flagrant Lying

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Kent posted here about what he correctly called a "bald-faced lie" in a Huffington Post entry attacking the death penalty.  Unfortunately, lying has become all the rage in current debates affecting criminal law and terrorism.  Victor Davis Hanson brings home the point in his NRO piece today, which notes, among many other things:

Attorney General Eric Holder -- who had already been held in contempt by he House of Representatives for declining to turn over internal Justice Department documents in the earlier Fast and Furious scandal -- swore to Congress that he had no knowledge of any effort to go after individual reporters. But according to an official Justice Department statement, Holder had in fact signed off on the search warrant to monitor the communications of Fox News reporter James Rosen. In other words, the attorney general of the United States under oath misled -- or lied to -- Congress.

Director of National Intelligence James Clapper was recently asked by Senator Ron Wyden (D., Ore.) whether the National Security Agency collected the phone and e-mail records of millions of ordinary Americans. Clapper said that it did not. That, too, was an untruth. Clapper's supporters argued that Wyden should not have asked in public a sensitive question that threatened the needed secrecy of the program. But Clapper did not demur or request a closed session. He instead found it easier to deceive, later dubbing his response the "least utruthful" answer possible.

I have explained, here and here, why Holder's testimony was untruthful, and won't repeat it.  Hanson is on the mark in going after Clapper as well, although it seems to my friend Paul Mirengoff, and to me, that Clapper was put in a nearly impossible position by a grossly irresponsible question from Sen. Wyden.

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Woman who Buried Mom in Yard Headed to Prison: An Ohio woman, Patricia Hodges, has been sentenced to 30 days in prison after authorities discovered she buried her mother in their backyard and lived off of her Social Security checks for 14 years.  The Associated Press reports that a Social Security Administration officer went to the home in November of 2011 seeking proof that Hodge's mother, who would have been 103, was still alive.  The judge also ordered Hodges to pay back more than $141,000 in Social Security benefits.

Federal Judges Order Immediate Release of California Inmates: A panel of federal judges ordered Governor Jerry Brown to begin releasing inmates from California state prisons immediately.  Paige St. John of the Los Angeles Times reports that the judges ordered the governor to expand good-times credits which would enable inmates to finish their prison sentences early.  Governor Brown has challenged the federal laws responsible for establishing prison populations.

All Female Jury Selected for Zimmerman Trial: The two-week long jury selection process for the George Zimmerman trial ended today, and the six-person jury is made up exclusively of women.  Fox News reports that an additional two men and two women were selected as alternates in a case that is expected to last up to four weeks.  The presiding judge decided earlier this week that the jury will be sequestered throughout the duration of the trial.
North Carolina Governor Pat McCrory has signed the bill to repeal that state's ill-conceived and misnamed "Racial Justice Act."  The Associated Press misreports the event thusly:

Gov. Pat McCrory has signed into law a repeal of a landmark act that allowed convicted murderers in North Carolina to reduce sentences to life in prison if they could prove racial bias.
In reality, the law allowed attacks on death sentences with statistics that proved very little about bias and nothing whatever about the defendant's case.

Maggie Clark had this article yesterday in Stateline on efforts in several states to mend, not end, the death penalty.

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One of FBI's Most Wanted Arrested in Mexico: Former USC professor, Walter Lee Williams, was arrested Tuesday after being placed on the FBI's Ten Most Wanted Fugitives list 24 hours earlier.  Gabriel Alcocer of the Associated Press reports that Williams was wanted on federal charges of sexual exploitation of children and traveling abroad for the purpose of engaging in sexual acts with children.  The indictment alleges that Williams traveled to the Philippines in 2011 and sexually exploited two 14 year-old boys he met online.

'Obamaphones' Sold for Drug Money, Shoes, and Handbags: Undercover video was used in an investigation led by James O'Keefe concerning the government-backed program responsible for passing out free cell phones.  Fox News reports that the video footage reveals employees distributing phones to individuals after they admit they are going to sell the phones in order to purchase illegal goods.  In 2012, the cost of the program tripled to $2.2 billion from $819 million in 2008.

Alabama Roadblocks Request Saliva and Blood Samples: Off-duty Sheriff's deputies in Alabama flagged down motorists and directed them to federal highways safety researchers who offered $10 for saliva samples, and $50 if they submitted blood for a study aimed at determining the amount of drivers with alcohol or drugs in their system.  Matt Smith of CNN reports that these roadblocks will be set up in multiple communities across the country by the end of the year.  The survey is both anonymous and voluntary, but participants often times feel pressured to comply after being flagged down by police officers.


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Today, June 19, is a day to mark the emancipation of slaves in 1865.  Why June 19?  President Lincoln signed the preliminary Emancipation Proclamation on September 22, 1862.  He signed the second, immediately effective (on its face), on January 1, 1863.  So why June 19?

The Union Army entered Galveston, Texas, where the celebration began, on June 18, 1865.  General Gordon Granger read an order announcing emancipation on June 19.

A declaration of freedom means nothing by itself.  It took a military victory to transform the promise of freedom into the reality of freedom.  The people who praise liberty and sneer at the military would do well to remember that.

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Oklahoma Murderer to be Executed: Convicted murderer James Lewis DeRosa is set to be executed at the Oklahoma State Penitentiary tonight at 6:00 p.m.  Rachel Peterson of McAlester News reports that DeRosa was convicted in 2001 on two counts of first-degree murder.  The Oklahoma Pardon and Parole Board denied DeRosa's request for clemency earlier this month by a vote of 3-2.    Update:  DeRosa was pronounced dead at 6:07 pm last night as reported here.

Sentencing in Obama-Clinton Primary Fraud Scandal: Four Indiana Democrats who pleaded guilty in their state's presidential petition fraud scandal were sentenced on Monday.  Eric Shawn of Fox News reports that a student at Yale University noticed multiple signatures, over 200 of them, written in the same handwriting for the presidential petitions used to place candidates on the ballot.  Had Hillary Clinton challenged the petitions during the Indiana primary race, election fraud would have been detected, which could have resulted in Obama's removal from the Indiana primary ballot.       

Federal Appeals Court Releases Admitted Murderer: A federal appeals court has freed a convicted murderer based on the location of his crimes.  KOCO Oklahoma City News reports that David Magnan, who was sentenced to death for a triple homicide, was freed because the crimes were committed on Indian land.  The state lacks authority to prosecute crimes committed on Indian land.  However, it is likely that Magnan will be rearrested by federal authorities since he admitted to the murders.

Inmate Release Judge to Rule on Valley Fever Case:  A lawyer from the Prison Law Office is demanding that 3,250 inmates be moved from San Joaquin Valley prisons to prevent deaths from the fungus-born Valley Fever.  Over the past seven years an estimated three dozen inmates have died from the disease.  Mihir Zaveri and Don Thompson of the Associated Press report that Judge Thelton Henderson will decide if the move is necessary.  Judge Henderson was a member of the three judge panel which in 2010, ordered California to release roughly 36,000 inmates after it found that overcrowding had resulted in inadequate prison healthcare.  The state has asked for more time until a CDC study of the issue is completed. 

Florida Gov. Signs DP Reform Bill

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On Friday, Gov. Scott of Florida signed the relatively modest reform bill that passed the Legislature.  The primary fix in the bill is to address the delays in issuing warrants for execution after the judicial reviews of the case have concluded.  The postconviction review processes are not significantly changed, although the bill contains a reporting requirement for the courts.

Mary Ellen Klas has this story for the Tampa Bay Times.  Among others, she quotes the ACLU reaction:

"Gov. Scott came to Tallahassee to restructure our economy and drag us out of the recession, but if this happens history will note him as the governor who signed more warrants than anyone else,'' said Howard Simon, executive director of the American Civil Liberties Union of Florida.
This is nonsense of course.  Scott will be known primarily by the outcome of his economic efforts.  But there is certainly nothing wrong in being known, additionally, as a governor who delivered effective justice in the very worst murder cases.

Update:  The Governor's signing statement is here.

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Supreme Court strikes down Arizona's new Voting Law:  An Arizona voter-approved proposition requiring proof of U.S. citizenship prior to voting registration was overturned today in a 7-2 ruling in the Supreme Court.  Bill Mears of CNN reports that Proposition 200 interfered with the National Voter Registration Act of 1993 which forbids states from demanding additional information beyond what is required on the federal voting registration form.  Arizona voters passed Proposition 200 in an attempt to prevent voter fraud.   

Indiana Woman Sentenced to die at 16 to be Released: Indiana's Supreme Court has decided to release 43 year-old Paula Cooper after she was sentenced to death in 1986 at the age of 16.  The Associated Press reports that Cooper's death sentence sparked global protests after she was put on death row for the murder of a Bible school teacher at the age of 15. Cooper, who confessed to the murder, was sentenced to die in the electric chair at the age of 16 making her the youngest inmate in the U.S. on death row. 

Defendant's Challenge Bite Mark Evidence: USA Today reports that a New York judge's ruling later this month could help to end the admissibility of bite mark evidence-a practice not recognized by both the FBI and the American Dental Association.  Supporters of this method cite notorious criminals like Ted Bundy as being convicted through the use of bite mark evidence.   A forensic dentist interviewed for the story noted that  "if the analyst is ... not properly trained or introduces bias into their exam, sure, it's going to be polluted, just like any other scientific investigation. It doesn't mean bite mark evidence is bad."    
The US Supreme Court today upheld, 3-2-4, a prosecutor's comment on the fact that a murder suspect failed to answer a single question during a voluntary interview.  He was not under arrest at the time, and the case had been litigated on the assumption he had not received Miranda warnings.  (He actually had, according to the state's brief, but apparently no one brought that to the attention of the trial court.)  The case is Salinas v. Texas, No. 12-246. CJLF's brief is here.

The plurality opinion by Justice Alito (joined by Chief Justice Roberts and Justice Kennedy) is based on the fact that the suspect did not expressly invoke his Fifth Amendment right.  In Berghuis v. Thompkins, decided three years ago, the Court held that a prolonged silence during most of an hours-long custodial interview did not invoke Miranda rights so as to require a cut-off of questioning, and thus the suspect's response to a single question was admissible.  This case is a mirror-image.  Salinas freely answered most questions but made no verbal response to the one most incriminating question.  The plurality extends, slightly, the express invocation requirement to cover this situation.

Justice Thomas, joined by Justice Scalia, concurs in the judgment on the broader ground that commenting on silence is not compulsion within the meaning of the Fifth Amendment, and Griffin v. California, 380 U.S. 609 (1965), forbidding comment on the defendant's failure to testify at trial, was wrongly decided.  There is zero chance of overruling Griffin with the current Court, but there is much to be said for not extending it.

New Defense Tactic: YouTube the Crime

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I scarcely know what to make of this, but the ABA Journal reports that a criminal defense lawyer has been suspended from practice for five months for posting a video of his client committing the crime (buying drugs).

The lawyer "admitted hiring a company to post the video because, at the time, he believed it showed drugs being planted on his client."

Oh, OK.  There are those of us who think there's a pretty clear difference between drugs being "planted" on your client, and your client buying them, but whatever.  Only Puritanical prosecutors would insist on distinctions like that.

Still, as I say, I don't know what to make of the suspension.  On the one hand, I suppose it's "poor customer service," as the IRS would say, to make it obvious to the entire world that your client is guilty.  On the other, it's refreshing to see a defense lawyer publicize the truth, even if only by mistake.

Mile High Justice

The WaPo's political blog, The Fix, has this post on the governorships deemed in play this year and next.  Most pertinent for us:

Colorado comes onto the line for the first time this cycle following a Quinnipiac University poll showing former congressman Tom Tancredo (R) running neck-and-neck with the once highly popular governor. Hickenlooper's decision to grant a temporary reprieve to a convicted murderer was received very poorly by Colorado voters in the survey. It's just one poll, and time will tell whether it is an outlier. But for now, this race is worth keeping an eye on.
The poll is here.  Quinnipiac says,

Colorado voters say 69 - 24 percent that the death penalty should stay on the books and not be replaced by life in prison with no chance of parole, according to a Quinnipiac University poll released today. At the same time, Gov. John Hickenlooper finds himself running neck and neck with possible challengers in the 2014 governor's race.

Voters disapprove 67 - 27 percent of Gov. Hickenlooper's decision to grant convicted murderer Nathan Dunlap a reprieve, and 74 percent say the death penalty will be "very important" or "somewhat important" in their vote for governor next year, the independent Quinnipiac (KWIN-uh-pe-ack) University poll finds.
I would dearly love to see Hickenlooper get the boot and for it to be clear that this is the reason.  It would be just deserts for Hickenlooper himself.  It would allow a reboot of justice for Colorado, one of the states stabbed in the back by the Supreme Court's Walton/Ring flip-flop.  It would send a strong signal to governors elsewhere considering similar shenanigans.

The clemency power is a necessary and important safeguard to correct miscarriages of justice in individual cases that have somehow slipped through the cracks, uncorrected by the judicial process.  Using it to block the enforcement of a law altogether is a misuse of authority.

News Scan

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No Clemency for Oklahoma Death-Row Inmate: Oklahoma's Governor Mary Fallin denied a clemency request made by convicted murder Brian D. Davis despite recommendations for clemency made by the Pardon and Parole Board.  Cary Aspinwall of Tulsa World reports that the Davis is now set to be executed on June 25th at Oklahoma State Penitentiary in McAlester.  The Pardon and Parole Board recommended that the death sentence be commuted to a life sentence without the possibility of parole, however, Governor Fallin denied the clemency request.

Newtown Photos Won't Fuel Gun Control Debate: Governor Dannel Malloy of Connecticut quickly shot down attempts made to have gruesome photos of the Newtown school shooting available to the public.  Shanta N. Covington of MSNBC reports that the photos won't be used as tools in the gun control debate in an effort to maintain privacy for the victim's families.  Newtown victim's family members have been very active on Capitol Hill in their quest to refine gun legislation in order to hopefully prevent future tragedies like the one they have experienced.   
Most of the time, opponents of the death penalty employ the intentionally misleading half-truth as their weapon of choice.  However, they are not above outright lies when they think they can get away with it.

Has the Supreme Court said that the death penalty is unconstitutional?  Not just in particular cases or through particular procedures, but generally?  Everyone knowledgeable in the area knows the answer is no.  But the Huffington Post Blog yesterday said the answer is yes.

It doesn't matter if the murder in question -- the death penalty -- is legal. It is still wrong. More importantly, it is unconstitutional.

The Supreme Court itself said so back in 1972. That's right, writing in 1972 the Court argued that "the imposition and carrying out of the death penalty ... constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."
Note the "..." in the quote.  What the Supreme Court actually said in Furman v. Georgia is, "The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." (Emphasis added.)

In the five separate opinions concurring in that judgment that follow, only two of the Justices said that the death penalty is unconstitutional in general.  Three say only that it is unconstitutional under the standardless discretion statutes used in the cases before the Court.  Those statutes were swiftly repealed and replaced, and none of the death sentences carried out since 1977 or still pending have been imposed under such statutes. 

Citing this quote, with essential words omitted, to say that the Supreme Court has held that the death penalty itself is unconstitutional is a shameless lie.

Gratitude for What We Have

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Much of the criticism of the criminal justice system takes root in the belief that America is a fundamentally flawed country  --  racist, classist, beset with the inequities of capitalism and callous (or, worse, cruel) to those who suffer from them. This belief suffuses criminal defense, which scarcely ever anymore contests whether the accused did it, and concentrates instead on the poisonous social forces that led him to do it.

A different view of our country was presented last night by Yuval Levin, as he accepted the Bradley Prize at a ceremony at the Kennedy Center.  His talk was not directly about criminal law, but bears repeating as an antidote to the dim view of America I described above.  Mr. Levin said, among other things:

To my mind, conservatism is gratitude. Conservatives tend to begin from gratitude for what is good and what works in our society and then strive to build on it, while liberals tend to begin from outrage at what is bad and broken and seek to uproot it.

You need both, because some of what is good about our world is irreplaceable and has to be guarded, while some of what is bad is unacceptable and has to be changed. We should never forget that the people who oppose our various endeavors and argue for another way are well intentioned too, even when they're wrong, and that they're not always wrong.

But we can also never forget what moves us to gratitude, and so what we stand for and defend: the extraordinary cultural inheritance we have; the amazing country built for us by others and defended by our best and bravest; America's unmatched potential for lifting the poor and the weak; the legacy of freedom--of ordered liberty--built up over centuries of hard work.

We value these things not because they are triumphant and invincible but because they are precious and vulnerable, because they weren't fated to happen, and they're not certain to survive. They need us--and our gratitude for them should move us to defend them and to build on them.

Protesting at SCOTUS

Well, that was quick.

Congress has long forbidden demonstrations at the Court.  In 1983 the Court held that statute unconstitutional as to the sidewalks in United States v. Grace.  The law has continued to be enforced as to the grounds.  Earlier this week, a federal district judge found it unconstitutional as to the grounds as well.  The Court swiftly reacted with this revised regulation:

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Texas Executes Confessed Murderer of Five:  Elroy Chester, a confessed murderer of five, was executed yesterday after spending 14 years on Texas' Death Row.  The Associated Press reports that Chester was put to death by lethal injection after failed attempts for appeal to the Supreme Court based on his claim of mental retardation.  Willie Ryman, a decorated Port Arthur firefighter, was killed in February 1998 when he interrupted Chester as he sexually assaulted Ryman's two teenage nieces during a break-in at their home. Chester was the 499th murderer Texas has put to death since the United States reinstated the death penalty in 1976.

Florida Suspect Admits to Over 30 Murders: The Marion County Sheriff's Office has solved a double homicide case from 2006, and the suspect in custody is now claiming to be responsible for 30 more murders throughout the country.  Anne Claire Stapleton of CNN reports that DNA evidence from the victims' truck linked 50 year-old Jose Manuel Martinez to the double-homicide.  Martinez claims to have killed over 30 people from around the country in an effort to collect debts for the Mexican drug cartel. 

Eric Holder, at It Again

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Contrary to some other conservative/libertarian bloggers, I believe Eric Holder did not tell the truth about his supposedly not being "involved" in the "potential prosecution" of a Fox News reporter.  My view rested on the fact that Holder had previously told a court, inter alia, that the reporter was probably an aider, abettor or co-conspirator in a federal felony; might be a risk to flee; and (later, and with amazing candor) characterized his application to the court as having "branded" the reporter "a criminal."  That's not a "potential prosecution?"

But our Attorney General is irrepressible.  Although, as Kent noted yesterday, New York City has had tremendous success with its "stop-question-and frisk" policing  -- having reduced major felonies by an astonishing 75% over the last generation  --  Mr. Holder is having none of it.  His DOJ has filed papers in a suit challenging the program  --  not on the side of the city, but on the side of the city's opponents. Readers will not be surprised to hear that one of the main arguments DOJ is making is Old Reliable itself, racial profiling.

That's it!  Michael Bloomberg's police department is a bunch of Klansman.

Give it a rest, Mr. Holder.  The notion that the very liberal mayor of one of the country's most liberal cities is, in 2013, running a racist police department is so much Al Sharptonesque nonsense.

No serious person thinks that Mayor Bloomberg discriminates based on the color of your skin.  Now the color of your 20-ounce soft drink............

Ms. Rehab Strikes Again

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It didn't take even three months.

I wrote here about the latest stern talking-to by the judge directed to Ms. Rehab herself, Lindsay Lohan.  I also bet any reader who cared to take me up that Ms. Rehab, who has been given approximately 74 "last chances," would be back in trouble in less than a year.

I gave her too much credit.

Today comes the report:

Just when Lindsay Lohan seemed to be making progress in her court-ordered rehab, FOX411's Pop Tarts column has learned that the actress endured "several problems" while in lock down at California's Betty Ford clinic, and will now be getting help elsewhere.

Sources close to the situation tell us the District Attorney approved the change earlier this week, and on Thursday Lohan was being relocated to Cliffside Malibu.

In March, Lohan pleaded no contest to misdemeanor charges stemming from the June 2012 car accident; reckless driving and providing false information to a police officer. She was sentenced to 90 days in a lock down rehabilitation center, 30 days of community service, and 18 months of mandated psychotherapy.

Well gosh, at least she'll be getting that "mandated psychotherapy"  --  and at a tough-as-nails place like "Cliffside Malibu."

The US Supreme Court has reversed the decision of the Eleventh Circuit in United States v. Davila, No. 12-167. The lower court held that the judge's participation in plea bargaining voided the plea.  The Supreme Court found no prejudice.

Other cases decided today are civil, including the much-awaited gene patenting case.  Isolated, naturally occurring genes are not patentable.
Heather MacDonald has this article with the above title in the WSJ.  We already know the California method for increasing crime -- ram a flaky, untested idea through the Legislature in a single day and then test it on 38 million people to see if it works.  MacDonald, though, is worried about a New York development that she anticipates might spread nationwide.  Instead of trying a new program that probably will not work, tear down an existing one that has proven effective in reducing crime.

A racial-profiling lawsuit over the New York Police Department's "stop, question and frisk" policies is now in the hands of a judge whose decision is expected within weeks. Many New Yorkers watched the two-and-a-half-month trial nervously, concerned that a ruling against the NYPD by U.S. District Court Judge Shira Scheindlin could spell an end to a police practice that helped the city achieve an astonishing drop in violent crime.

But non-New Yorkers would do well to worry about the case too. A decision against the NYPD would almost certainly inspire similar suits by social-justice organizations against police departments elsewhere. The national trend of declining crime could hang in the balance. And the primary victims of such a reversal would be the inner-city minorities whose safety seems not to figure into attempts to undermine successful police tactics.

See also prior posts of March 28, Feb. 13, Jan. 24, and another Jan. 24.

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Stay Denied for Fla Murderer: The U.S. Supreme Court today denied a last minute stay for a condemned murder scheduled for execution tonight.  Tamara Lush of the Associated Press reports that the execution by lethal injection of William Van Poyck is set to take place at 7:00 pm at the Florida State Prison.  Van Poyck was convicted of murder after an attempt to free a prisoner from custody resulted in the death of a guard.  In his appeals, Van Poyck maintains that his accomplice was responsible for the shooting, and that his sentence would have been different if the jury had known that.  Update:  The execution was carried out at 7:24 p.m., AP reports.

Senate Fight Over ATF Nomination: The Bureau of Alcohol, Tobacco, Firearms and Explosives has been without a confirmed director since 2006, and acting director, B. Todd Jones, is looking to fill the vacancy.  Dan Freedman of Hearst News reports that during Tuesday's Senate confirmation hearing, Jones expressed his desire to improve "an agency in distress" and move beyond mistakes that have been made in the past.  Jones who has been the acting director of the agency since 2011, faced tough questioning from Senators Charles Grassley and Ted Cruz over issues including mismanagement of the agency and the Fast and Furious gun running scandal.

Triple Slayer gets Death Sentence: A death sentence was handed down yesterday in a Japanese courtroom for a man convicted of murdering the parents and the mother of two of his former homosexual partners.  The Japan Times reports that judge Masahiro Hiraki, a lay judge, had no choice but to sentence Katsumi Asayama, 47, to death because he murdered his three victims for "selfish reasons".  This was the 18th death sentence delivered since 2009 when Japan began incorporating citizens in the criminal justice process by allowing them to be judges in criminal cases.

County Receives Funds to Help Pay for Realignment: The Community Corrections Partnership Executive Committee, the agency responsible for overseeing local prison realignment spending in Riverside County, has been given a $51.2 million allotment from the state for 2013.  Richard K. De Atley of Press Enterprise reports that the money will be spent on agencies such as county probation, mental health, and the sheriff.  The Sheriff's Department, which is in charge of overseeing county jails, has been struggling to keep up with the influx of inmates being sent in from area prisons due to realignment.  Besides overcrowding, Chief Deputy Sheriff Raymond Gregory reports that since realignment became law misdemeanor assaults on jail staff have increased 143 percent, and felony assaults have increased by 133 percent. 
A judge in San Joaquin County, California has overturned the jury's death verdict for a repeat murderer, Jennie Rodriguez-Moore reports in the Stockton Record.  John Lydon was already in prison for 69-to-life when he murdered his cellmate.  Society's choices to punish him therefore come down to two: (1) death; or (2) no punishment at all.

The jury was unimpressed with Lydon's "bad childhood" mitigation and chose to punish him.  In California (unlike, e.g., Florida), the jury returns a penalty verdict, not a recommendation.  The judge has the authority to set it aside on the ground that it "is contrary to law or evidence," not merely that the judge would have reached a different decision if it has been his to make from the beginning.

The story says that the prosecutor, Robert Himelblau, said that the decision is not appealable.  I knew that is not correct, so I clarified it with him by email.  His actual position is that he does not believe an appeal would be successful.

When the aggravating and mitigating factors are clear, and the question is the discretionary one of which predominates, I do not believe the judge can or should substitute his judgment for the jury's, at least as long as the jury's judgment is within the realm of reasonable disagreement.  It certainly is in this case.  Prior conviction of murder is such a powerful aggravating circumstance that the Supreme Court at one time held open the possibility it could justify a mandatory death penalty by itself without any weighing, even when it banned all other mandatory death penalties.  See Woodson v. North Carolina (1976), footnote 7.  The Court ultimately closed that door in Sumner v. Shuman (1987), but the fact that it was held open for a decade demonstrates how important this factor is.

This decision is wrong.  It ought to be reversible.

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Oakland Teen Pleads Not Guilty to Murdering Paramedic: 16 year-old Christian Burton has pleaded not guilty in the murder of an off-duty paramedic two months ago in the Oakland hills.  KTVU reports that Burton is being tried as an adult after shooting Quinn Boyer in an attempted car-jacking.  If convicted, Burton could be eligible for the death penalty. 

Defendants laughed about High School Gang Rape: Testimony continues today in a Martinez, CA courtroom in the case of a 16 year old girl that was gang raped after attending Richmond High School's Homecoming Dance in 2009.  Malaika Fraley of the Contra Costa Times reports that a former Richmond High School student testified last Thursday that the day after the rape, three of the six individuals accused of the crime were "laughing and joking" about their involvement in the attack.  The trial is a double-jury trial for two of the suspects accused in the case.

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Grand Jury Investigates PA Building Collapse: Last Wednesday's deadly building collapse in Philadelphia could now result in multiple manslaughter charges.  Jason Hanna of CNN reports that the crane operator responsible for the building collapse will be charged with six counts of involuntary manslaughter after toxicology results indicate he was under the influence of marijuana and pain medication at the time of the incident.  Along with the manslaughter charges, Sean Benschop faces 13 counts of reckless endangerment and another count of causing a catastrophe. 

Mobster Seeks Delay:  Jury selection in the racketeering trial of James "Whitey" Bulger was halted this morning after his defense attorneys asked the judge for a delay in opening statements.  The Associated Press reports that the defense has requested time to look into claims that law enforcement protected a hit man slated to be a star witness for the prosecution. Defense attorneys for Bulger allege that James Moreterano, who has admitted to killing 20 people, has been protected by law enforcement since his release from prison in 2007. 

Cleveland Kidnaper Indicted on 329 Counts:  The man accused of holding three young women captive for over ten years in his Cleveland home will be arraigned this week.  Michael Martinez of CNN reports that Ariel Castro faces 329 charges, including 139 counts of rape, 177 counts of kidnapping and one count of aggravated murder for purposely causing the unlawful termination of a pregnancy.  Once the indictment process is completed, the prosecutor's capitol review board will determine if seeking the death penalty is appropriate for this case
The US Supreme Court today decided, 5-4, that an amendment to the Federal Sentencing Guidelines that increases the guideline range for a crime cannot be applied to a crime committed prior to the amendment.  Such application would violate the Ex Post Facto Clause of Article I, Section 9.  (The same holding would apply to states under the parallel Article I, Section 10 clause.)  The case is Peugh v. United States, No. 12-62.

The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.
Justice Kennedy did not join part III C of Justice Sotomayor's opinion, making that part a plurality opinion.  That part concludes, "But, contrary to the dissent's view, see post, at 11-13, the Ex Post Facto Clause does not merely protect reliance interests. It also reflects principles of 'fundamental justice.' "

What makes this case close is that the Sentencing Guidelines were transformed from mandatory to advisory in the Booker case.  Justice Thomas notes in the dissent (joined by Chief Justice Roberts and Justices Scalia and Alito):

First, the Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant's sentence. Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines' persuasive force, not any legal effect. The Guidelines help district judges to impose sentences that comply with §3553(a). The risk of an increased sentence is, in essence, the risk of a more accurate sentence--i.e., a sentence more in line with the statutory scheme's penological goals. Guideline changes that help district courts achieve such pre-existing statutory sentencing goals do not create a risk of an increased sentence cognizable under the Ex Post Facto Clause. We have never held that government action violates the Ex Post Facto Clause when it merely influences the exercise of the sentencing judge's discretion.
I have taken the position that Eric Holder lied when he insisted under oath that he was not involved in a "potential prosecution" of Fox News reporter James Rosen.  I have also maintained that Prof. Orin Kerr's defense of Holder on the Volokh Conspiracy doesn't hold up.  (Prof. Volokh himself has chimed in to agree with Orin).

I am happy to report that an unexpected source has now given support to my view, that source being Eric Holder.

Nearly lost in the hubbub over the DNA decision, the FBI on Monday released its preliminary full-year crime statistics for 2012. (The first-half stats were released in January.)  The national data show an uptick in violent crimes (1.2%) and a downtick in property crimes (-0.8%).

Naturally, I was curious to see how California fared relative to the nation as a whole in the first full year of realignment.  Not good.  The FBI strangely does not give state totals in this report, but it gives numbers for cities over 100,000 population, which covers about half of the population of the state.  So I totaled these city numbers for 2012 and compared them with 2011.  Crime rates are generally higher in urban areas, of course, but we are dealing with year-to-year differences here, so that factor cancels out.

Unlike the mixed bag in the national numbers, California city crime is up in every category.  Not only that, but California city crime increased more than the national figure in every category.  Violent crime is up 2.9% compared to 1.2% nationally, but when we focus on the most violent crimes, we see murder up 10.5% v. 1.5% nationally and rape up 6.4% v. a 0.3% drop nationally.

For property crime the difference is even greater, just what you would expect in a state that has decided to coddle its property offenders.  Overall, California cities had a 9.7% increase v. a 0.8% drop nationally.

Auto theft is particularly telling, as it is not a "serious" offense (although it is very serious to the victims), and thus the entire category comes under the realignment law.  California cities had a staggering 15% increase in auto theft, while the nation as a whole had only a 1.3% increase.  I noted the same effect in the first-half data on this blog here.

The evidence continues to mount, confirming what persons of sense knew from the beginning.  Realignment is a disaster.

Former AUSA Becomes US Senator

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It's always a good sign when someone with day-to-day exposure to the realities of the criminal justice system gets a voice in a body as powerful as the US Senate. Today, Gov. Chris Christie, himself a former US Attorney, appointed his one-time chief adviser in the USAO, Jeff Chiesa, to serve as the interim Senator from New Jersey, taking the seat of the late Frank Lautenberg.

I don't know Mr. Chiesa, but I'm glad to see a fellow former AUSA in Congress.  No doubt he'll talk some sense into Pat Leahy and Rand Paul.

OK, that last part was a joke, but I'm still glad to see his promotion.   

A History of Discrimination

In recent days, here for example, I have criticized the reigning theory of Political Correctness.  The theory takes root in what is called "white privilege."  The main idea, in the abstract at least, is that white males have spent almost all of American history pushing everyone else around. The result is that women, minorities and, most recently, (domestically) smaller religions such as Islam have suffered discrimination.

The criminal law implications of this theory are clear and important.  One specific manifestation is the argument that crack cocaine offenses, committed disproportionately by blacks, have been penalized with excessive harshness borne of racism.  Another is that our reaction to Jihadist attacks, on 9-11 and in Ft. Hood and at the Boston Marathon, has unfairly targeted the huge majority of American Muslims who, like everyone else, want only to live in peace and safety. Thus we need to be, uh, careful about what we say.

The most ambitious goal of Political Correctness as applied to criminal law goes a great deal farther, however.  It is, by ginning up guilt, to erode the moral confidence we need to remain resolute in dealing with violent and dangerous people, whatever their race or religion. It is in no way to dismiss or diminish the cruel abuses of Jim Crow or of religious bigotry to understand that it is no favor to minorities to be timid in confronting crime  --  crime that, it should be noted, disproportionately and grievously injures them.

But the PC crowd is in a sense correct in pointing out that white males have shoved their way to the front of the line.  Today, June 6, is an apt occasion to remember yet another place where they are over-represented.

NC RJA Repeal Passes House

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North Carolina was one of the few bright spots in the last election.  One forthcoming consequence is the repeal of the misnamed, ill-conceived, so-called "Racial Justice Act," which allows dubious statistical claims to hold up or prevent the deserved execution of clearly guilty murderers.  Colleen Jenkins reports for Reuters:

North Carolina lawmakers took additional steps on Tuesday to repeal a divisive racial bias law in a move designed to restart executions in the state.
*                                       *                                     *
"No one wants actual racial discrimination," Representative Paul Stam, a Republican, said during the debate of the proposed repeal. "What we don't want also is for race to be used for a pretext in order to stop the death penalty."
Regrettably, Ms. Jenkins cannot resist The Fallacy of the Irrelevant Denominator:

Statistics show that of the 152 people on death row in North Carolina, 80 are black, 62 are white and the remainder fall into other racial categories in a state where African Americans overall make up around a fifth of the population.
The proportion of the population is irrelevant.  What is the proportion of murderers?  The article doesn't say.  Nationally, we have long known that white people make up a somewhat larger percentage of death row than their percentage of murderers, just the opposite of what the anti-DP folks imply with their irrelevant denominator.

The bill goes back to the Senate, where it has already passed.


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The January 2013 issue of the Journal of Legal Studies (42:1) arrived in my mailbox today.  (Punctuality is not their long suit.) Steven Raphael and Michael Stoll have an article titled Assessing the Contribution of the Deinstitutionalization of the Mentally Ill to Growth in the U.S. Incarceration Rate, pp. 187-222.  Here is the abstract:

Ah-ooooo Werewolves of Supermax

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Pelican Bay, on California's north coast, is much too nice a place to build a prison.  Even so, that is the site of the state's highest security lockup, also known as "Slammer by the Sea" and "Dungeness Dungeon."

So what can prisoners read while doing their (usually long) time there?  Scott Graham reports for the Recorder:

Bringing a scholarly take to trashy literature, the First District Court of Appeal ruled Friday that state prison officials can't stop an inmate from reading an erotic romance novel built around human-werewolf relationships.

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Death Sentence for Florida Murderer:  A Florida judge today sentenced Kenneth Ray Jackson to death for the 2007 rape and murder of a mother of three.  The Tampa Bay Times reports that a jury voted 11-1 for the death sentence after ninety minutes of deliberation.   Jackson was found guilty of abducting Cuc Thu Tran during her morning jog.  After raping her, Jackson stabbed her in the throat, then drove to a remote location, left her in a van, and set it on fire. 

The PC Attempt to Intimidate Judges

I wrote recently about US Attorney Bill Killian's snarling threat to demonstrate "what the consequences are" to those with the temerity to say anything "offensive or inflammatory" about Muslims.  If President Obama, who appointed Killian, has done anything to rebuke him, I haven't heard about it.  (Not that rebuking him would be sufficient, and not that Obama has any desire to rebuke him, either).

As if going after the ordinary citizen who might criticize Muslims, fairly or unfairly, were not enough, we now see that the PC crowd will go after federal judges, too. Thus, when Fifth Circuit Judge Edith Jones said at a University of Pennsylvania Law School talk that blacks and Hispanics are more violent than whites, a consortium of civil rights* organizations filed a complaint.  The complaint calls for stern discipline, on the grounds that the remarks were "discriminatory and biased."

So far as I have been able to discover, it makes no mention of the fact that they're true.

*  I am old enough to remember that civil rights used to include the First Amendment.

Major Hasan's Defense

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Maj. Nadal Hasan, the Jihadist Ft. Hood shooter, has been allowed to represent himself.  Fine.  He has a Constitutional right to do so, if sane, which he is after a fashion.  

Indeed, it seems that Maj. Hasan is as creative as any defense lawyer, which is saying something.  The Washington Post reports that he is going to argue he needed to act to protect others.  

Now admittedly that might be a bit of a stretch, since the doctrine of defense-of-others requires that the defendant have an objectively reasonable belief that the others were in imminent danger of great bodily harm or death from the persons he attacked.  

At a hearing Tuesday, [Judge] Osborn asked what evidence he had to support his defense. He said Taliban leader Mullah Omar [about 10,000 miles away, so far as is known] and "leadership of the Taliban in general" were in immediate danger from American troops on the Texas Army post, because "the U.S. has attacked and continued to attack the Taliban."

Oh, OK.  Of course the more nettlesome obstacle to the defense-of-others theory might be that the "others" are foreign terrorists at war the United States, and Maj. Hasan is a member of the US Army.

An Oldie But Goodie

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Race baiting has become a favorite indoor sport these days, certainly among the pro-defense crowd who want to put their opponents on perpetual defense with yarns about how imprisonment disproportionately "targets" black criminals.  They tend to be a good deal quieter about how crime disproportionately targets black victims, because that's not nearly as good a narrative for whipping up white guilt.  Such guilt is an important tool for dumbing down the moral confidence we need to remain resolute in dealing with thugs, black or white.

John Hinderaker reminds us that race baiting has a long and dishonorable history. One of its most memorable episodes celebrates its 25th anniversary (more or less) this year.  That would be the famous Tawana Brawley hoax.  John's Powerline entry features an excellent New York Times film on the story.  It's 14 minutes and worth your time.

News Scan

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Violent Crime in U.S. Rises for First Time Since 2006: Preliminary data on crime for 2012 from the FBI confirms that for the first time in six years, the United States experienced an increase in the rate of violent crime.  Timothy Williams of the New York Times reports that the data shows that cities with populations exceeding 500,000 residents experienced the largest increase, including a 12.5% increase in the murder rate.  The last increase in the national rate was in 2006 when violent crime rose by 1.9% after a decline of 17.6% from 1996 to 2005.  The data indicates that increased crime in the Western United States drove the national rate, with over twice the spike in violent crime than the Midwest five times the increase in the South.  The rate in the Northeast actually declined.  The rates for robbery, burglary and other property crimes, which declined in every other region, also climbed in the West, with auto theft increasing by over 10%.  While some experts opine that these increases are due to cuts in police, this does not explain why the West has suffered the most. 

Colorado Theater Killer Pleads Insanity:
A decision today by a Colorado judge could ultimately spare accused movie theater killer, James Holmes, from the death penalty.  Carol McKinley of ABC News reports that Holmes' plea of not guilty by reason of insanity was accepted today and will be his defense for the murders of 12 people and injury 70 more.  The next step will be a court-ordered psychiatric evaluation, a time consuming process that could take months to complete.  If convicted,  Holmes could face a death sentence, unless he is determined to be mentally incompetent. 

Crime up in Oakland, much of Bay Area: The F.B.I.'s preliminary report on crime rates for 2012 showed that Bay Area cities suffered disproportionally.  Henry Lee of the San Francisco Chronicle reports that 11 of the 15 largest cities that encompass the Bay Area experienced higher levels of violent crimes in 2012 after a drop in 2011.  Serious violent crimes such as murder, rape, and robbery all increased in Oakland along with increases in property crime resulting in Oakland having the highest per-capita crime rate in the state. Oakland also saw a 29 percent increase in robberies, averaging almost a dozen a day.  Both the Oakland and San Jose police departments suffered budget cuts last year resulting in police lay offs.  San Jose recorded a 10 percent increase in violent crime, along with a jump in homicides from 39 in 2011 to 45 in 2012.    
In 1982, Officer Joe Vega and colleagues entered the Brooklyn junkyard of Joe Burger, without a warrant or any individualized basis of suspicion, and started writing down VINs.  Surprise, surprise, some of the cars were hot, and Junkyard Joe went directly to jail.

Why were Officer Vega et al. poking around junkyards, with their notoriously mean dogs?  Not for fun.  They were looking for evidence of a crime, fencing stolen property.

New York had an administrative scheme for junkyards, but the sole purpose of the scheme was to deter and detect fencing hot cars.  Cops did the inspections, and the record that junk dealers were required to keep was even called the "police book."  The New York Court of Appeals thought that searches conducted without warrants or individualized suspicion under this statute were unconstitutional.  The US Supreme Court granted certiorari in New York v. Burger to decide "whether an otherwise proper administrative inspection is unconstitutional because the ultimate purpose of the regulatory statute pursuant to which the search is done -- the deterrence of criminal behavior -- is the same as that of penal laws...."  Six justices, including Justice Scalia, were cool with it.

Today, Justice Scalia begins his dissent in Maryland v. King thusly (emphasis added):

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.
Nope.  Not correct.

DNA Testing of Arrestees Upheld

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From the syllabus in Maryland v. King, No. 12-207:

Held: When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
The opinion is by Justice Kennedy.  Justice Breyer is in the majority, and Justice Scalia wrote the dissent.

I will have more to say on this later.

News Scan

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Nevada Adopts Brianna's LawBeginning July 1, 2014, individuals arrested for a felony in Nevada will have their cheek swabbed upon booking under SB 243, also known as Brianna's Law.  Matt Woolbright of the Associated Press reports that after the arrest is determined to be justified, the DNA obtained from the cheek-swab will be cross-referenced against DNA collected from other crime scenes.  If probable-cause is lacking in the case, the DNA obtained will be destroyed prior to the cross-referencing process.  Brianna's Law was introduced after 19 year old Brianna Denison was murdered in 2008 by James Biela; a previously convicted felon.  The bill was signed into law last Wednesday, days before the Supreme Court announced its decision in Maryland v. King, ruling that DNA testing does not violate the Fourth Amendment.  The DNA collected is to be used in aiding law enforcement with future cases, and can be removed from the system three years after the date of collection by request of the arrestee.    
The US Supreme Court today decided Nevada v. Jackson, No. 12-694:

In this case, the Court of Appeals held that respondent, who was convicted of rape and other serious crimes, is entitled to relief under the federal habeas statute because the Supreme Court of Nevada unreasonably applied clearly established Supreme Court precedent regarding a criminal defendant's constitutional right to present a defense. At his trial, respondent unsuccessfully sought to introduce evidence for the purpose of showing that the rape victim previously reported that he had assaulted her but that the police had been unable to substantiate those allegations. The state supreme court held that this evidence was properly excluded, and no prior decision of this Court clearly establishes that the exclusion of this evidence violated respondent's federal constitutional rights. The decision of the Court of Appeals is therefore reversed.
The "clearly established" standard applied here is the standard set by Congress in its landmark 1996 reform of federal habeas review of state cases, 28 U.S.C. §2254(d).  This is not the first time the Ninth Circuit has been so obviously wrong in applying that statute that  the Supreme Court reversed without the need for merits briefing or oral argument, and without a single justice saying the Ninth was correct.  It is not the second time.  Or the third or fourth or fifth.

When AEDPA was going through Congress, Senator Kyl predicted that this compromise standard would not be applied as Congress intended it.  To a large degree he was correct.  His amendment to give state court decisions the same kind of finality that the decisions of the local D.C. courts receive was defeated back then, but it is time to reconsider it.
In a post here, I directly implied that Eric Holder committed perjury in his May 15 Congressional testimony, and would wind up "in big trouble" because of it.

On the invaluable Volokh Conspiracy, two very bright legal minds, Orin Kerr and Jonathan Adler, take issue with me.  Prof. Adler does so explicitly; Prof Kerr does so implicitly, saying that that the case that Holder perjured himself is weak "bordering on silly." 

Pooh-poohing the rampant dishonesty and dissembling of this Administration is not a habit with the libertarian-leaning Conspiracy, so I have reconsidered my post. I now think Holder is in even bigger trouble than I did initially.
Politico tells us that a US Attorney in Tennessee is "vowing to use federal civil rights statutes to clamp down on offensive and inflammatory speech about Islam."

So it's gone beyond targeting conservative groups for "special treatment" by the IRS. It's now that if you say something "offensive and inflammatory" about Muslims, the federal prosecutor is coming for you.

"This is an educational effort with civil rights laws as they play into freedom of religion and exercising freedom of religion," [US Attorney Bill] Killian said about the meeting. "This is also to inform the public what federal laws are in effect and what the consequences are."

Oh, OK, Mr. Killian.  Why don't you tell us specifically "what the consequences are?"  And don't we love DOJ's version of "an educational effort?"  Wasn't this sort of "educational effort" most recently used by the Khmer Rouge?

"If a Muslim had posted 'How to Wink at a Christian [with a target picture],' could you imagine what would have happened?" Killian asked, according to the newspaper.

Yes, I can.  Nothing.  

Didn't it used to be liberals who told us that First Amendment protections are most vital precisely when speech was offensive and inflammatory?  Yeah, well, I guess that was when Obama's minions were screaming in the streets that George Bush is Hitler.  How times have changed.

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