January 2014 Archives

There has been a great deal of grousing among defense lawyers about how the power of presidential clemency has been all but ignored by Obama and his most recent predecessors. Is all the talk a prelude to a mass pardon?

I don't know, of course, but I don't think it's a coincidence that (1) the so-called Smarter Sentencing Act is only very slowly making its way through Congress, (2) the President tells New Yorker Magazine that we've gone overboard in sentences for drug offenses, and (3) in his SOTU address, the President pretty directly said that he'll robustly use his executive powers, with Congress or without.

Doug Berman over at Sentencing Law & Policy has some interesting observations about the possibility of many, many more pardons.  See, e.g., his posts here, here and here.

Obama has been increasingly aggressive in his second and last term, so no one should be surprised if he's aggressive in the use of his clemency power, too.  Still, I think we can be reasonably sure we won't see a whole lot of it until November 5.

The Internal Revolt Against Eric Holder

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I promised in an early post that I would link the letter from the National Association of Assistant United States Attorneys to the Attorney General.  In that letter, NAAUSA lays out an unambiguous case against the AG's support for legislation that would trash mandatory minimum sentencing.  Not surprisingly, career federal prosecutors oppose giving a windfall to heroin and meth dealers.  Also not surprisingly, they couch their opposition in respectful language; he is, after all, the boss.

But make no mistake about it, this is a revolt.

The letter is here.

Re-breaking the Windows

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Heather MacDonald has this story in the City Journal:

Bill de Blasio won the mayoralty of New York by running a demagogic campaign against the New York Police Department. He has now compounded the injury by dropping the city's appeal of an equally deceitful court opinion that found that the department's stop, question, and frisk practices deliberately violated the rights of blacks and Hispanics. De Blasio may thus have paved the way for a return to the days of sky-high crime rates.

The Prisoner Sex-Change Case

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Today's News Scan notes that the Massachusetts Department of Corrections intends to seek further review of the decision of a panel of the U.S. Court of Appeals for the First Circuit that it must pay for sex-change surgery for a murderer.  More precisely, the DoC is seeking rehearing en banc.

The First Circuit only has six "active" judges.  Three of them were on the panel and split 2-1.  (Opinion here.)  To get a majority, the DoC will have to pick up all three of the others.  I'm not terribly optimistic.

If rehearing en banc is denied, DoC can file a certiorari petition with the Supreme Court, which may be the main plan.

More on the Marathon Bomber

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Catherine Shoichet has this story for CNN on the decision to seek the death penalty for the Marathon Bomber.  Most interesting to me are the quotes from victims and their families:

For Liz Norden, it's one small step forward.

Her sons, JP and Paul, each lost a leg in the bombings, which killed three people and injured more than 250 at the April 15 race.

"I just am relieved that it's going forward in the right direction, one step forward in the recovery process, just that the option is out there on the table for the jurors, if that's the way it goes," she told CNN's The Situation Room.

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News Scan

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Mass. Prison Officials Appeal Sex-Change Ruling: Officials with the Massachusetts Department of Corrections are appealing a decision that would require them to use taxpayer dollars in order to fund gender-reassignment surgery for a convicted murderer.  The Associated Press reports that a panel of federal judges handed down the decision two weeks ago granting Michelle Kosilek, formerly known as Robert Kosilek, taxpayer-funded sex-reassignment surgery after an appeals court deemed the procedure a medically necessary treatment.  Kosilek, convicted of murdering his spouse in 1990, claims to have gender identity disorder and has been given female hormones, laser hair removal and psychotherapy while incarcerated.

Italian Court Finds Amanda Knox Guilty of Murder for Second Time: An Italian appeals court has overturned Amanda Knox's not guilty verdict, sentencing her to 28 ½ years in prison for the murder of her former roommate, Meredith Kercher.  The Associated Press reports that Knox, who was originally found guilty for the murder in 2009, had her conviction overturned in 2011 and was able to return to the U.S.  Italy's supreme court later vacated that decision and sent the case back for a third trial.  Knox, who has no plans to return to Italy, will appeal her conviction.

Convicted Cop Killer Arrested for Attempted Murder: A Tennessee man who pled guilty to killing a Memphis police officer, and was later freed after a retrial, is back behind bars after being accused of trying to kill again.  Nick Kenney of WMC TV reports that 39-year-old Timothy McKinney, who was originally sentenced to death for the murder of a police officer, had his conviction overturned and pled guilty to second-degree murder in exchange for his release after both of his retrials resulted in  hung juries.  Six months after his release McKinney is back behind bars after police say he entered a convenience store last week and fired several shots, injuring two store employees and leaving an innocent teenager in critical condition.  He is facing several charges including attempted first degree murder. 

Not a Peep

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Suppose a politically appointed bigwig at the Justice Department made a decision on a major, hot-button issue that was unpopular with Liberal Orthodoxy, and did so contrary to the advice of, say, half a dozen of so of the career lawyers working under him?  Do you think the mainstream media might do a story about that?

Let's get more specific.  Suppose, say, Alberto Gonzales had gone before Congress to ask it to water down voting rights laws, contrary to the advice of dozens of career lawyers in the Civil Rights Division.  Do you think the mainstream media might do a story about that?

Let me revise that question.  Do you think the mainstream media would go ballistic, and that, say, the New York Times would run a ten-part series on how politics had overtaken sound, experienced judgment in running the Justice Department?

One more question.
Tuesday, the US Court of Appeals for the Ninth Circuit took a bite out of federal court micromanagement of prisons in Griffin v. Gomez, No. 09-16744.

Griffin has been in prison since 1970 and was validated as an Aryan Brotherhood member in 1979.  Gang members can and do commit crimes while in prison, sometimes within the prison and sometimes by arranging them on the outside.  Griffin was therefore confined to the secure housing unit, known as the SHU.  He petitioned for release, claiming he had sworn off the gang and was a changed man.

"Procedurally, this case is a mess" (p. 17).  I'm sure judges say that a lot in chambers, but it's quite another thing to read it in the opinion.

News Scan

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More Small Town Crime Due to Realignment: Residents in Lakewood, a small Southern California town, have seen an increase in the amount of burglaries and other property crime in their community since the implementation of Realignment in 2011.  Brittany Woolsey of the OC Register reports that the Lakewood Police Department has been overwhelmed with the increase in burglaries, and officers have been arresting the same people repeatedly for crimes that prior to Realignment, would have earned them time in state prison rather than the overcrowded county jails.  In addition to the increase in burglaries, Lakewood police also reported an increase in robberies.

Justice Dept. to Seek Death Penalty for Boston Bomber: The Justice Department has finally announced they will seek the death penalty against accused Boston Marathon bombing suspect, Dzhokhar A. Tsarnaev.  Matt Apuzzo of the New York Times reports that Tsarnaev, who is accused of killing four people and injuring more than 260 others, has pled not guilty but has admitted to having some involvement with the attack.  Since the federal government reinstated the death penalty in 1988, it has only executed three people, including Oklahoma City bomber Timothy McVeigh.

NY Will Settle Stop-And-Frisk Lawsuit: New York City Mayor Bill de Blasio has revealed that an agreement has been reached between the city and civil rights lawyers over issues surrounding the NYPD's stop-and-frisk policies.  Benjamin Weiser of the New York Times reports that the policy will be reformed and a federal monitor will oversee the stop-and-frisk practices after a federal judge ruled that police officers were using the stops as a form of racial profiling.  The federal monitor will be in charge of overseeing policy changes and developing training materials to better train officers on the issue of racial profiling.

Obama to Commute More Drug Sentences: The Justice Department has announced a plan to expand upon President Obama's efforts to commute the sentences of low-level drug offenders in order to release them from prison.  Maya Rhodan of Time Magazine reports that the Obama administration has been working the last few years on sentencing guidelines and the handling of so-called low-level drug offenders, focusing primarily on the sentencing disparities between crack and powder cocaine.  In order for an inmate to be eligible for early release, they must be a non-violent offender with no connections to large scale drug organizations.

Is that "navigator" who is supposed to help you through ObamaCare enrollment, and who gets lots of personal information about you in the process, an honest and trustworthy person?

Maybe not.  National Review Franklin Center Fellow Jillian Kay Melchior appears in this video interview with some disturbing findings.

OK, But What Took You So Long?

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The US Department of Justice has this press release (emphasis added):

Attorney General Eric Holder today released the following statement regarding the case of Dzhokhar Tsarnaev:

"After consideration of the relevant facts, the applicable regulations and the submissions made by the defendant's counsel, I have determined that the United States will seek the death penalty in this matter. The nature of the conduct at issue and the resultant harm compel this decision."

Of course they do, as obviously as the sun rose in the east this morning.

Update:  Jon Kamp and Devlin Barrett have this article in the WSJ on the decision.
I joined the Department of Justice straight out of law school in 1974.  I spent 25 years there, split between Main Justice in Washington and the US Attorney's Office. Today something happened that, in my experience, is unprecedented. Hundreds of career lawyers broke into open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing.  If something like that had happened in the Bush Administration, I guarantee you it would be a Page One story. Whether it gets any coverage at all in the present Administration remains to be seen.

The Attorney General announced last week that he would support the Durbin-Lee bill pending in the Senate.  That legislation would drastically cut back on mandatory minimum sentences for drug pushers  --  not just for pot, but for all drug offenses, including major and repeat trafficking in heroin, meth, PCP and other extremely dangerous, and often lethal, drugs.

As career DOJ prosecutors know, strong mandatory minimum statutes are essential to rein in the sometimes ideological, sometimes naive, and sometimes careless decisions of sentencing courts.  I explained why here, here and here, keying off a recent discussion by the Second Circuit.

When the Attorney General decided to join the effort to kneecap mandatory minimums, career attorneys could remain silent no longer.

Another Clueless Baldwin Rant

Before you blast someone, especially in public, it's a good idea to make sure you have your facts straight and are aiming at the right target.  The notorious Alec Baldwin is apparently unaware of this.  Nardine Saad reports in the L.A. Times that Baldwin tweeted this on Monday:

"Flying from Nassau, Bahamas 2 NY. TSA 'random selects' my 5 month old daughter 4 a pat down. I am not kidding. #travelinginUSisadisgrace."
The TSA is, of course, a part of the United States Department of Homeland Security.  The TSA does not do the airport screenings in the Bahamas for the obvious (to persons of sense) reason that the Bahamas are not part of the United States.  The esteemed (by many, though I can't fathom why) Mr. Baldwin was apparently unaware that he was in a foreign country being screened by an agency of a foreign government.  So his hashtag says traveling in the United States is a disgrace because of an incident that occurred outside the United States completely out of the control of the U.S. government.

Upon this being pointed out, his "correction" says, "I guess what I'm saying is: Traveling in the US is a pain in the ... ass."  Ms. Saad notes, "Still not the U.S., though, Alec."

Science Might Help Out After All

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Often nowadays, we hear that science can help "reform" how we go about reaching decisions in criminal justice.  When you read a story like that, remember to consult your decoder: Such science inevitably involves the identification of a previously unheard-of "syndrome" that accounts for why Mr. Nicey belted Grandma over the head with a tire iron to get her purse.  (These syndromes always seem to have a lot of syllables, never a single syllable like "greed").

Another story I hear quite a bit is that science has determined that the human brain develops more slowly than we had believed, so Mr. Nicey is not truly responsible for his behavior until he reaches his mid-twenties mid-thirties mid-sixties.

I ran across an article, however, suggesting that science might actually have discovered a part of the brain with something defense counsel could usefully supply to the client.

They'll Say Anything

The Associated Press has a story about a man who was sentenced to five years' imprisonment for starving his daughter to the vanishing point.  The article begins:

A Wisconsin father convicted of abuse for starving his teenage daughter down to 68 pounds was sentenced Wednesday to five years in prison.

Before being sentenced by Dane County Circuit Judge Julie Genovese, the 42-year-old man read a statement insisting his daughter suffered from severe emotional and behavioral problems that he couldn't handle, that his job as a trucker kept him away from home and that he didn't notice how thin she had become.

Hard to disagree with that.  Kids who get starved can indeed develop "emotional and behavioral problems."  And how could a man be expected to notice that a 68 pound teenager was thin?  Gads, our society is sooo judgmental.

But it was this part that caught my eye:

The man's attorney, Jessa Nicholson, countered he deserved probation. He already has lost his family and his job, his wife is in prison and his reputation has been destroyed, she said.

"Apparently we are still a society that favors punishment," she told reporters after the hearing.

It's all true.  When a father starves his daughter nearly to death, "we are still a society that favors punishment."

Honestly, is there something these people won't say?

Justice At Last

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Toying with justice finally came to an end for career criminal and ice-cold killer Herbert Smulls.  Missouri executed him, without reported incident, at about 10 p.m. It did so after the Supreme Court lifted a stay of execution granted Wednesday by the Eighth Circuit.  Reuters has the story.

The Mulls case is the latest example of what the defense bar calls zealous advocacy but any normal person would call gaming the system.  There was no doubt whatever of Smulls' guilt or of his ability to understand either what he did or why he was being punished.  This did not stop his lawyers from deliberately last-minute appeals in an exercise that is more typically called "throwing it up against the wall to see if anything will stick."

Nothing actually did stick, but that's not the point.  The point is to throw so much of it against the wall, so late in the game, that the courts will have to postpone the execution just to keep an eye on what's falling to the floor.

A sane justice system would sanction the lawyers who put on a circus like that, but that's not going to happen.  What's more likely is that Smulls' lawyers will be lionized at ACLU banquets at the Four Seasons.

Kent's earlier post is here

Missouri Execution Stay

Today's News Scan notes an AP article on the stay of execution given to Missouri murderer Herbert Smulls and discussing his claim regarding the lethal injection drug.  However, we are informed that the case in which the stay was granted actually involves a claim concerning jury selection under Batson v. Kentucky.

Also, the stay order is unusual in that Justice Alito issued it alone.  Congress long ago vested the stay authority in individual justices, but in capital cases the assigned circuit justice routinely refers the applications to the full court.  It could be that given the last-minute nature of the application, Justice Alito took an informal poll of his colleagues and then acted according to the view of the majority, or it could be that there just wasn't time to even do that.

The Attorney General of Missouri has issued this news release:

Jefferson City, Mo. - At approximately 9:30 p.m., the United States Supreme Court issued a temporary stay of the execution of Herbert Smulls. The Court is expected to rule tomorrow on two petitions pending before it, and could then lift the stay for the execution to proceed.  The Attorney General's office will update the media as appropriate throughout the coming day.
Update:  The Supreme Court has entered this order:

The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is denied. The petition for a writ of certiorari is denied. The order heretofore entered by Justice Alito is vacated.
Update 2:  See Bill's later post.

News Scan

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MO Inmate Given Stay of Execution: The U.S. Supreme Court has granted a Missouri man a temporary stay of execution in order to give the court more time to review the case.  Jim Salter of the Associated Press reports that lawyers for Herbert Smulls asked for the last minute stay of execution after the state refused to disclose which pharmacy they used to acquire the lethal-injection drug, pentobarbital.  Smulls has previously lost several appeals and was already denied clemency by the governor earlier this week.  Update:  See subsequent post.

S.F. Plans to Distribute Free Crack Pipes: Activists are planning to hand out free crack pipes to San Francisco drug users despite heavy opposition from city government officials, including Mayor Ed Lee.  Holly Quan of CBS San Francisco reports that the group plans to hand out 25-50 clean pipes at an exchange event in March, a move that violates both state and federal drug paraphernalia laws.  The city of San Francisco already hands out over 2 million clean needles every year to Heroin users in an effort to reduce the amount of users contracting HIV from dirty needles.

Louisiana to Switch Lethal Injection Drugs for Upcoming Execution: The Louisiana Department of Corrections has made the decision to switch to the same two-drug lethal injection combination used earlier this month in Ohio for the execution of Dennis McGuire.  Ed Payne and Dave Alsup of CNN report that the Department of Corrections announced the switch after efforts to obtain pentobarbital were unsuccessful.  The new combination to be used is midazolam; a sedative, and hydromorphone; a painkiller.  Louisiana death row inmate Christopher Sepulvado, who was sentenced to death in 1992 for the murder of his 6-year-old stepson, is scheduled to be executed February 5.

What Didn't Get Said

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President Obama gave his State of the Union speech tonight.  Its full text is here.

I've always found it instructive to listen for what I don't hear.  Tonight, I didn't hear a word about criminal justice or sentencing, except for a for what might have been a reference to school shootings, and thus a pitch for gun control.  But it was barely mentioned and opaque.

Why is it interesting that criminal justice and sentencing went unremarked? Because Pat Leahy, the chairman of the Senate Judiciary Committee, has a hearing scheduled in 36 hours on the Durbin-Lee bill (to which he has added his name). That legislation would dramatically slash mandatory minimum sentences for even the most serious and deadly drug offenses, including major trafficking in heroin, PCP and meth.  

Leahy has been pushing this "reform" for months, after his own proposal (with libertarian Senator Rand Paul) exploded on the launching pad because of its radicalism.

Leahy heard the same omission from the President that I did.  He must be furious. Good.
AP has this story on allegations that an attorney for recently executed inmate Dennis McGuire urged him "to fake symptoms of suffocation" during his execution.

The allegation is that McGuire told prison guards about this, but then said he would not do it.

State prison records released Monday say McGuire told guards that Lowe counseled him to make a show of his death that would, perhaps, lead to abolition of the death penalty. But three accounts from prison officials indicate McGuire refused to put on a display.

"He wants me to put on this big show in front of my kids, all right when I'm dying!" McGuire is reported as having told one guard. "I ain't gonna do this. It's about me and my kids, not him and his cause!"

I don't believe there was any actual faking.  In addition to McGuire's statement, there is a more basic reason.  He couldn't fake for the same reason he couldn't feel pain.  The procedure began with a massive dose of sedative.

The Office of the Public Defender lifted the attorney's suspension after "an internal review failed to substantiate the allegation."  I don't think the public should settle for that.  Public defender's offices in many places have developed a fanatical anti-death-penalty culture.  We should not trust an internal review.

News Scan

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Bill Would Provide Condoms in CA Prisons: State Assembly members have approved a bill that would allow condoms to be distributed to inmates in California prisons, setting the stage for a decision to be made by Governor Brown who vetoed a similar measure last year.  Sharon Bernstein of Reuters reports that the bill, which still needs to be passed by the state Senate, would allow inmates in state prison to have access to condoms, even though current law makes it illegal for inmates to have sex, regardless of consent.  Governor Brown has not indicated whether or not he intends to sign the revised bill.

Claim: Inmate Faked Suffocation During Execution: The attorney for Dennis McGuire, an Ohio man executed nearly two weeks ago, has been temporarily suspended after it was revealed the McGuire told prison guards that his attorney told him to exaggerate the pain felt during his execution.  The Associated Press reports that McGuire, who was sentenced to death for raping and killing a pregnant woman in 1989, told guards that his attorney wanted him to feign suffocation during his execution in the hope that it would lead to the abolishment of the death penalty.  The execution, which used a new combination of drugs never tried before in the U.S., sparked controversy after members of McGuire's family sued the state claiming he suffered undue cruelty.

Criminal Free Under Realignment Suspected in Attempted Murder: Officers with the Solano County Sheriff's Department have arrested 32-year-old Nicholas Cornwell, who is currently on Post Release Community Supervision, after he was identified as the individual wanted in a brutal altercation that left another man with a critical stab wound to the neck.  Ryan McCarthy of the Daily Republic reports that Cornwell, who already had a warrant out for his arrest for violating his PRCS, was arrested after officers saw him walking around wearing a bullet-proof vest.  Cornwell was booked into county jail on charges of attempted murder, being a felon in possession of body armor, and violating terms of his release.

The Fraud of Drugs as a "Victimless Crime"

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The massive overreach of government fuels skepticism about almost everything it does, including law enforcement and, especially, drug enforcement.

The mantra  --  not without appeal, especially to those, like me, with libertarian sympathies  --  is that, "What I put into my body is my business.  It doesn't affect anyone else, so they can keep hands off."

The idea that drugs affect only the user is simply false.  And I'm not talking just about impaired driving collisions, either.  What I'm talking about  --  the social effects of drug use  --  is captured in the harrowing story (from Quora) that follows the break. It's about a mother's addiction to cocaine, and it's not pretty.

Superfluous Adjective Award

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Fred Barnes has this article in the WSJ (subscription) on responses to the State of the Union Address and this year's Republican responder, Rep. Cathy McMorris Rodgers.

Mr. Barnes wins the Superfluous Adjective Award of the day, and is the front-runner for the year, for writing, "She's the only female member of Congress to give birth to three children while in office."

News Scan

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Iowa Benefits From New DNA Law: Law enforcement officers in Iowa are anticipating an expanded DNA database when a new state law takes effect on July 1.  Nick Hytrek of the Sioux City Journal reports that current law limits DNA testing to  convicted of felons and sex offenders.  The new law will allow collection of DNA from a majority of crimes including assault and burglary.  Governor Terry Branstad, who signed the bill into law last May, is hopeful that the change will help law enforcement  more crimes while exonerating innocent suspects.

Pharmacy Boards Reject Execution Drug Complaint: Pharmacy boards in Oklahoma and Missouri have announced that they will not take action against an Oklahoma compounding pharmacy that has been producing lethal injection drugs for Missouri.  Jeremy Kohler of the St. Louis Post-Dispatch reports that attorneys for a Missouri death row inmate, Herbert L. Smulls, were seeking a 60-day stay based on the claim that the pharmacy is licensed in Oklahoma, not in Missouri where his execution is set to take place.  The Board noted that they do not have jurisdiction over entities that obtain prescription medication, but only over those that dispense or distribute prescriptions in the state.

Man Found Unfit to Stand Trial For Brutal Murders: 26-year-old Mingdong Chen, a Chinese transient who came to the U.S. illegally in 2004, has been found unfit to stand trial for the murders of his cousin's wife and four children.  Oren Yaniv of the New York Daily News reports that Chen, who is not a U.S. citizen, confessed to police that he murdered the woman and her four children with a large "restaurant style kitchen knife" because he believed the family was using him to get a green card.  He is currently being medicated and will be reevaluated until he is fit to stand trial, if convicted, Chen faces life in prison without the possibility of parole.   

Broken Glass in Cal. Supreme, Part II

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Prior post was November 6, oral argument. The opinion came down today.

Glass and the witnesses who supported his application stress his talent in the law and his commitment to the profession, and they argue that he has already paid a high enough price for his misdeeds to warrant admission to the bar. They emphasize his personal redemption, but we must recall that what is at stake is not compassion for Glass, who wishes to advance from being a supervised law clerk to enjoying a license to engage in the practice of law on an independent basis. Given our duty to protect the public and maintain the integrity and high standards of the profession (see Gossage, supra, 23 Cal.4th at p. 1105), our focus is on the applicant‟s moral fitness to practice law. On this record, the applicant failed to carry his heavy burden of establishing his rehabilitation and current fitness.
The US Supreme Court today decided Burrage v. United States, No. 12-7515, a case involving the criminal liability of a drug dealer for a user's death by overdose.  From the syllabus:

Held: At least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable for penalty enhancement under [21 U.S.C.] §841(b)(1)(C) unless such use is a but-for cause of the death or injury.
Opinion by Justice Scalia.  No dissent.  Justices Ginsburg and Sotomayor note separately that they will not apply a rule of lenity to civil discrimination cases.

No new cases taken up in the orders list.

Barack Obama Gets Groovy, Part II

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Not everyone was thrilled at the President's quasi-endorsement of pot in his New Yorker interview.  One of those in dissent was none other than Michele Leonhart, Obama's appointed head of the DEA.  The Weekly Standard blog carries a story about Ms. Leonhart's comments last week titled, "DEA Chief Rips Obama's Pot Remarks."  It starts:

The head of the federal Drug Enforcement Administration is now openly criticizing Barack Obama for his recent comments over the question of marijuana legalization, according to multiple reports.

The Boston Herald reports it has sources who heard DEA chief Michele Leonhart "slam" Obama at last week's National Sheriffs' Association winter meeting in Washington. The Herald reports the sheriffs in Bristol County, Massachusetts, and Kern County, California, both reported that Leonhart was critical of the president's claim that marijuana's affects are no different than alcohol's.

I have known Michele for years.  I met her during the Bush Administration, when I was Counselor to the DEA Administrator and she was Deputy Administrator.

I came to have great admiration for her incredible work ethic, knowledge and integrity.  I am prouder than ever to be her friend.

Opponents of the death penalty never tire of telling us how other countries have rejected it.  That rejection, though, is usually by a fiat from above, not by the people.  Nowhere is the disconnect between the government position and popular opinion greater than south of our border.  David Agren has this story in USA Today.

Texas' execution of Edgar Tamayo for the murder of a U.S. police officer was heavily criticized by Mexican officials, who say their country rightly banned capital punishment years ago.

But if many people in Mexico had their way, the death penalty would be an option to deal with murderers such as Tamayo, surveys and criminal experts say.

Surveys by polling firms and media outlets in Mexico over the past seven years show that support for the death penalty has increased to a point where a majority would like to see it reinstated. Recent polls found 70%-80% would like to see the death penalty imposed for crimes such as murder and kidnapping, a rate above the majority support for the death penalty in the USA.

News Scan

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CA Governor Wants More Time to Address Prison Overcrowding: California Governor Jerry Brown has asked a panel of federal judges for a two-year time extension in order to meet the court ordered demand to reduce the state's  prison population by  7,000 inmates.  Howard Mintz of the Mercury News reports that the panel of judges gave Governor Brown until April to meet the deadline, but the state and lawyers for inmates have been unable to agree on a solution.  The governor's most recent proposal is to expand parole eligibility for nonviolent inmates and release elderly and medically incapacitated inmates who have served at least 25 years in prison.

OK Executes Convicted Murderer: An Oklahoma man convicted of stabbing a woman to death more than 25 years ago was executed by lethal injection Thursday evening.  The Associated Press reports that 52-year-old Kenneth Hogan, who claims to have acted in self defense, stabbed the woman more than 25 times in the back, neck, and chest before knocking over several items in her apartment in an effort to make police believe she was killed in a robbery attempt.  Hogan, who is the second person to be executed by the state of Oklahoma so far this year, was granted a retrial in 2003.  The second jury ultimately found him guilty and sentenced him to death for a second time.

CA Man Found Guilty of Murder at Retrial: A Northern California man who managed to escape the death penalty on appeal, has been convicted of murder again after acting as his own defense attorney in a bizarre retrial.  Jennie Rodriguez-Moore of the Record Net reports that 58-year-old Blufford Hayes Jr., who was found guilty of first-degree murder in 1982, was noticeably absent throughout the duration of his retrial, only showing up to court for jury selection and the reading of his verdict. Hayes missed days of testimony where he was supposed to be acting as his own attorney.  Prosecutors in the case worry that even though Hayes elected to be absent for most of his own trial, he may be able to win an appeal based on his absence and the fact that he didn't have an attorney.  The District Attorney's office did not ask for a death penalty during the retrial, and sought a life without parole sentence. Sentencing for Hayes is set for March 3.  

Attorney General Eric Hamlet Holder is apparently having a hard time deciding whether to seek the death penalty for the accused Boston Marathon bomber.  Pete Williams has this story for NBC.  He now says he will decide by the end of the month.  The answer, of course, is obvious:

"If you don't use it in this kind of case, where someone puts down bombs down in crowds, then in what kind of case do you use it?" asked Aitan Goelman, a former Justice Department lawyer who helped prosecute Oklahoma City bomber Timothy McVeigh.

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Michael Sullivan, a former U.S. Attorney in Boston, agrees. "A jury should have the opportunity to consider death. This is a horrific terrorist act that occurred on our soil."

News Scan

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Murder Sparks Call For Tougher Penalties in Iowa: State lawmakers in Iowa will consider enhanced penalties for kidnapping and other crimes in response to a case involving Kathlynn Shepard, a 15-year-old girl who was kidnapped and murdered by a convicted sex offender who had been released from prison early.  William Petroski of the Des Moines Register reports that House Study Bill 501 increases the mandatory sentence for kidnapping from 10 years to 25 years if the victim is 15 years old or younger, and eliminates good time credit for conviction of certain crimes.  Outrage about the Shepard murder increased when the public learned that her killer, a registered sex offender, was released without supervision after serving less than half of a 41 year sentence for two previous kidnappings.  

Florida Killer's Sentence may be Reduced: 25-year-old Ashley Toye, serving a life without parole (LWOP) sentence for a murder committed at the age of 17, may be released from prison early after a judge ruled she qualified for re sentencing.  Laura Roberts of NBC 2 reports that Toye, one of 10 people charged in the brutal murder of two brothers in 2006, was sentenced to LWOP after being found guilty of first-degree murder, aggravated kidnapping, torture, and other felony charges.  Toye's attorney appealed her sentenced after a 2012 Supreme Court ruling in Miller v. Alabama announced that state laws which require LWOP for juveniles are unconstitutional.  Toye will still have to serve the mandatory 25 year sentence for the kidnapping which was not effected by the Miller ruling.

Smith & Wesson to End Sales in CA: Gun maker Smith & Wesson has announced it will no longer sell semi-automatic handguns in California due to new microstamping requirements that went into effect in 2013.  Awr Hawkins of Breitbart reports that microstamping requires gun manufacturers to equip each firearm with a costly special firing pin that leaves a unique fingerprint on every bullet fired, a process that would be expensive to both the manufacturer and the consumer.  Microstamping, which is virtually another form of gun registry, is still a relatively new concept and has yet to be proven to be a reliable form of identification.  

Virginia House Votes to Revive Electric Chair: Virginia lawmakers, facing a shortage of available lethal injection drugs, are one step closer to making the electric chair the default method of execution.  Fox News reports that since 1995, when the state began allowing inmates to choose their method of execution, only six of the 85 prisoners put to death chose electrocution over lethal injection.  Virginia is one of only six states that still authorizes use of the electric chair, and in each of the six states, it is only used if requested by an inmate.  

Tamayo Execution Proceeds

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Edgar Tamayo was executed in Texas last night for killing Police Officer Guy Gaddis in 1994.  AP story here.  Prior post here.

The U.S. Supreme Court denied petitions for certiorari and stays of execution in two orders, here and here.  No dissent is noted for the first.  Justices Ginsburg, Breyer, and Sotomayor would have granted the stay in the second.  That is the last-minute Atkins claim of supposed mental retardation.  The Fifth Circuit held, correctly IMHO, that the District Court did not need to put up with this strategy of holding a claim until election eve.

Finally, we agree with the district court that Tamayo's claim was not brought within a reasonable time." See, e.g., In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004). The [Supreme] Court's opinion in McQuiggin was issued on May 28, 2013, nearly 8 months ago. Tamayo waited until January 20, 2014, two days before his scheduled execution, to file this motion. The district court did not abuse its discretion in concluding that this was not a "reasonable time" and in denying the motion. [Footnotes omitted.]

Vienna Convention, Once Again

The State of Texas intends to execute Edgar Arias Tamayo at 6:00 p.m. CST today, which is about five hours from this writing. Tamayo is one of the murderers whose case was included in the International Court of Justice (ICJ) case of Mexico v. United States, more commonly known as the Avena decision.  The issue in these cases has to do with the failure of the police to advise an arrested foreign national of his right to have the consulate notified, as required by the Vienna Convention on Consular Relations.  The AP has this story on the objections of the Mexican government.  Update:  Michael Graczyk has this story for AP on the case, including the Fifth Circuit's rejection of Tamayo's Atkins claim.  Update 2:  Tamayo was executed.  See later post.

As of this time, a certiorari petition is before the Supreme Court as case No. 13-8358, and a stay application has been filed as No. 13A762.  The Supreme Court denied relief in similar circumstances in 2011 in the Leal case, and nothing has changed since.  See this post at that time.

The problem is considerably more complex than is commonly perceived.  In a nutshell, I believe the United States should comply with the decision of the ICJ in the cases actually before it in Avena, which includes Tamayo, and not otherwise.

News Scan

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Governor Signs Bill Toughening Megan's Law Penalties: New Jersey Governor Chris Christie has signed a bill that calls for tougher penalties under the nationally supported sex offender registry guidelines of Megan's Law.  Keith Brown of Wall Patch reports that the law requires stiffer penalties for individuals if their victim is physically or mentally incapacitated and also charges convicted sex offenders a $30 monthly fee in order to offset the cost for offender supervision.  The law also prohibits parole officers from handling more than 40 sex offender cases at once in an effort to reduce overwhelming case loads.

Secretary of State Asks to Delay Texas Execution: In a rare move, Secretary of State John Kerry has asked the state of Texas to delay the execution of a Mexican national convicted of murdering a police officer almost 20 years ago.  The BBC reports that while Kerry believes that 46-year-old Edgar Tamayo was tried and prosecuted fairly, he has asked the Texas Department of Corrections to delay the execution out of concern for how the case could affect relations between the U.S. and Mexico and the negative impact it may have on the way Americans are treated overseas.  Texas Governor Rick Perry is reportedly planning on allowing the execution to take place as scheduled later today.  

Judge Sentences Mass Murder to Six Life Terms: A Tennessee judge has sentenced a man convicted of murdering six people in 2012 to spend six consecutive life sentences in prison.  Nicole Emmett of AL.com reports that 32-year-old  Zakkawanda Moss was found guilty of murdering six people, including an unborn child, after police say he robbed his former crime partner, and in an effort to hide the crime, proceeded to kill all of the witnesses.  Moss' co-defendant, 36-year-old Henry Burrell, has also been charged with six counts of capital murder and is scheduled to begin trial early next month.

Barack Obama Gets Groovy

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The President gave an interview to the New Yorker in which he all but embraced the legalization of pot.  The WSJ has a good editorial on it today.  Some of the more pungent paragraphs are (emphasis added):

"Middle-class kids don't get locked up for smoking pot, and poor kids do," Mr. Obama added. Actually, almost nobody gets locked up for pot. Americans collectively smoke for three billion days a year and use has increased 38% since 2007, according to a Rand Corp. analysis of federal health survey data, yet there were merely about 750,000 marijuana-related "arrests" in the U.S. in 2012. In the official FBI statistics that can mean anything from a ticket or summons to a full booking.

Very few people are incarcerated for simple possession, which makes up about 88% of arrests. There are currently about 40,000 state and federal prisoners serving time for marijuana-related convictions, and most have violent criminal histories. Most judges must be persuaded that someone is a true danger to society to sentence prison for mere drug use.

I thought the best observation was this:

If the President believes that marijuana prohibition is an injustice, he has an obligation to propose his own legislative reforms, instead of unilaterally suspending the enforcement of federal drug laws that don't fit his political agenda. Why not start with the State of the Union address? Whatever Mr. Obama's personal views on marijuana, his picking and choosing from the U.S. code is far more corrosive to the rule of law and trust in government.

News Scan

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Kansas Bill Seeks to Expedite Death Penalty Appeals: Kansas prosecutors will testify in support of a bill that would force the Kansas Supreme Court to process appeals from death row inmates more quickly.  Tim Carpenter of CJ Online reports that Senate Bill 257 would allow capital punishment appeals to be funneled through the court system in about three years, a vast improvement to a process that could sometimes take decades to complete.  Kansas authorized the use of capital punishment in 1994, but has yet to execute any of its 13 death row inmates.

White House Drug Experts Contradict Obama's Pot Claims: President Obama's recent claim that marijuana is no worse than cigarettes or alcohol is directly contradicting research posted by the Office of National Drug Control, which is part of the White House.  Ernest Istook of the Washington Times reports that the anti-drug website run by the White House has several pages devoted to explaining the serious dangers of marijuana, and even states that marijuana smoke contains "50-70 percent more carcinogenic hydrocarbons than does tobacco smoke."  The Drug-Free America Foundation has labeled the statements made by the President as irresponsible, and anti-drug leaders are concerned that these types of statements may have negative repercussions with youth.

Supreme Court Rejects Death Row Inmate's Appeal: The U.S. Supreme Court has rejected an appeal filed by convicted  murderer, Charles Rhines.  The Argus Leader reports that Rhines, who challenged his conviction amid claims that South Dakota's execution protocol was inhumane, was convicted of murdering a 22-year-old donut shop employee during a botched burglary in 1992.  Rhines also has a federal habeas corpus claim pending in federal district court.

More Crime in San Diego County Due to Realignment: County Supervisor Dianne Jacob warned the La Mesa County Chamber of Commerce to be prepared to see an increase in thefts, burglaries, and other offenses due to the effects of Realignment.  The La Mesa Courier reports that in 2012, which was the first full year Realignment was in effect, the crime rate in La Mesa rose 11 percent and the property crime rate increased by 12 percent.  Prison Realignment shifted more than 3,000 former state prison inmates to San Diego county, and three out of four of these offenders were labeled as being 'high risk' for reoffending.  

News Scan

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MO Lawmakers Suggest Adding Firing Squad as Death Penalty Option: A Missouri lawmaker is proposing a bill that would allow the state prison system to use a firing squad for upcoming executions.  Jadiann Thompson of KSHB News reports that the state of Missouri carries out executions in two ways; lethal injection and lethal gas,  House Bill 1470 would add 'death by firing squad' as a third option.  Missouri reinstated the death penalty in 1988, since then, sixty-nine inmates have been put to death.  

Overcrowded Jail a Hot Issue in Political Race: The race for San Joaquin County Sheriff will be centered around the issue of jail overcrowding, a problem that has become a problem after passage of AB109, also known as Prison Realignment.  Jennie Rodriguez-Moore of Record Net reports that the two frontrunners have different opinions on how to reduce overcrowding, with the incumbent seeking to build a $33.3 million long-term facility and the challenger suggesting more flexible modular buildings that can be moved around as inmate population fluctuates.  The issue of overcrowding has forced the county to release inmates hours after they've been booked, which has caused increased crime throughout the region.

AL Bill Seeks to Expedite Executions: A bill introduced to the Alabama Legislature is seeking to speed up the death penalty process by shortening the amount of time between sentencing and execution.  Kim Chandler of AL.com reports that the legislation, known as "The Fair Justice Act", would streamline the appeals process by requiring the filing of the direct appeal and state collateral review simultaneously.  The bill is scheduled to be voted on as soon as Wednesday.

News Scan

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Convicted Cop Killer Sentenced to Two Life Terms: A Delaware judge has sentenced 35-year-old David Salasky to two life sentences plus 157 years for his role in the stabbing death of a beloved local police officer.  Sean O'Sullivan of The News Journal reports that the victim, Lt. Joseph Szczerba, was responding to a service call and attempted to detain Salasky when he was stabbed multiple times and left for dead.  Salasky, who pled guilty but mentally ill, claims he was under the influence of bath salts at the time of the murder and was hallucinating when he killed Szczerba.

Family Outraged After Man Acquitted in Brutal Cold-Case: The parents of a teenage girl murdered 23 years ago are outraged after the man accused of brutally killing their 19-year-old daughter was acquitted and allowed to walk free.  Lia Eustachewich and Laura Italiano of the New York Post report that while jurors in the case believed 54-year-old Edwin Alcaide was guilty of murder, they didn't believe that the evidence, which included a DNA match linking Alcaide to the victim's body, was enough for a conviction.  Alcaide, who is a registered sex offender with a long criminal history, was linked to the murder when the case was re-opened in 2010 after a DNA sample collected from the victim's fingernails linked him to the case.    

Mexican Vigilantes in Standoff with Military Forces: Federal forces in Mexico are trying to put an end to a group of armed vigilantes who have taken the law into their own hands in an effort to stop violent drug cartels.  Catherine E. Shoichet of CNN reports that the vigilante groups have taken over small communities and told members of drug cartels and the federal government to stay out in order to avoid a violent confrontation.  In an effort stop this, the Mexican government has sent in small groups of armed soldiers in an attempt at regaining control of the region. 

Cellphone Searches

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The US Supreme Court today agreed to take up the cellphone search cases, Riley v. California and United States v. Wurie.  Lyle Denniston has this post at SCOTUSblog.
Campbell Brown, founder of the Parents' Transparency Project, has this op-ed in the WSJ (subscription):

When a Michigan middle-school teacher was denied $10,000 in severance pay last month, the local teachers union filed a grievance against the school board on his behalf. Given the union's mission to defend the rights of educators, this would appear to be routine. Not so fast: The teacher is a convicted sex offender.

Neal Erickson was sentenced in July to a 15- to 30-year jail term after acknowledging that he had sexual relations with a male student beginning when the boy was 14 years old. The school board denied him severance once he was charged. But the local chapter of the National Education Association thinks this criminal deserves his severance, which says a lot about the mindset of teachers unions, which are also trying to weaken a bipartisan bill in Washington that would help keep sexual predators out of schools.

Controversy on Ohio Execution

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Rick Lyman has this article in the NYT on the controversy over the execution of Ohio rapist/murderer Dennis McGuire, previously noted in this post.

The opponents regularly whine about "untested" methods of lethal injection without acknowledging that it is the opponents who have created the situation.  The single-drug method with pentobarbital works just fine, and if it were not for the supply problem created by the opponents, there wouldn't be a problem here.

A simple solution is to declare it to be an illegal restraint of trade for any seller of pharmaceuticals to restrict resale for the purpose of lethal injection.  Congress should get on that.

News Scan

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CA Recidivism Rate Was Dropping Prior to Realignment: A report released by the California Department of Corrections has revealed that the state's recidivism rate had been dropping prior to Governor Brown's implementation of Realignment.  The Associated Press reports that the recidivism rate had dropped from 67 percent in 2005-2006 to 61 percent in the years right before Realignment.  California, which has one of the nation's highest recidivism rates, is still waiting to see if Realignment has any influence on the previously declining recidivism rate.  

Virginia to Reconsider Electric Chair for Future Executions: After experiencing a shortage of lethal injection drugs, a group of Virginia lawmakers have proposed reinstating the electric chair as a method of execution.  Louis Hansen of the Virginian-Pilot reports that Virginia's death row inmates are given a choice of execution methods-lethal injection or electric chair.  One of the proposals introduced would allow the Department of Corrections to override the inmate's choice of lethal injection if the drugs were unavailable, allowing the state to implement the electric chair instead.  Virginia has electrocuted three prisoners since 2009, and currently has eight men on death row.

Retrial For Florida Murderer: Daytona Beach prosecutors are hoping to send a convicted murderer and rapist back to death row after the Florida Supreme Court overturned his conviction last November.  Frank Fernandez of the Daytona Beach News-Journal reports that prosecutors are hoping to link 67-year-old Roy Swafford to an additional murder at his re-trial after police matched his DNA to an unsolved murder case in order to further support their hopes of another conviction.  Swafford came within hours of being executed in 1990, but a last minute decision from the federal court of appeals stopped the execution.  


McGuire Executed in Ohio

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Andrew Welsh-Huggins reports for AP:

An Ohio inmate condemned to die appeared to gasp several times during his prolonged execution Thursday with the first use of a lethal injection process never before tried in the U.S.

Death row inmate Dennis McGuire made several loud snorting or snoring sounds during the more than 15 minutes it appeared to take him to die. It was one of the longest executions since Ohio resumed capital punishment in 1999.

Ohio officials used intravenous doses of two drugs, the sedative midazolam and the painkiller hydromorphone, to put McGuire to death. The method has been part of Ohio's execution process since 2009, though was never used.

The other side will surely try to make hay out of the breathing issues, but given that he was under a sedative at the time, there is little realistic doubt that this execution was well within the broad bounds permitted by the Eighth Amendment.  I've been known to make "loud snorting or snoring sounds" myself, or so I've been told.

And lest we forget what this is all about ...

SCOTUS Denies Stay of Ohio Execution

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The US Supreme Court has denied a stay to Ohio rapist/murderer Dennis McGuire.  No dissent is noted.  See prior post Monday.

News Scan

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Study Reveals Handguns, Not 'Assault Rifles', Used in Most Mass Shootings: A study conducted by a Northeastern University professor has revealed several myths surrounding recent mass shootings.  The claimed surge of assault weapon use and sudden influx of incidents are inaccurate.  Paul Bedard of the Washington Examiner reports that while the media suggests that mass shootings are on the rise, data reveals that the number of mass shooting incidents has remained stagnant over the last 34 years, averaging 20 a year.  The study also suggests that an assault weapon ban, proposed by President Obama and Vice President Biden after the Sandy Hook shooting in 2012, wouldn't end these types of incidents because nearly half of them involved handguns.

Realignment Bill Passes First Committee Test: A bill introduced by Assemblyman Chris Holden, D. Los Angeles, has passed out of the Assembly Public Safety Committee, after failing to pass last year. The measure is designed to give counties more time to prepare for the dumping of severely mentally ill inmates into communities as required by Realignment.  Melanie C. Johnson of Monrovia Patch reports that AB 1065 would give county probation departments 30 days to establish appropriate supervision and treatment for seriously mentally ill offenders prior to their release from state custody.  Prior to this bill, counties were given 5 days or less to prepare for the arrival of these serious offenders.  The next step for the bill is the Assembly Appropriations Committee for financial consideration. 

Judge Vacates Death Sentence for Convicted Cop Killer: The family of a slain police officer is outraged after a Philadelphia judge vacated the death sentence for Edward Bracey, the man convicted of killing the officer more than 20 years ago.  Dave Schratwieser of Fox Philadelphia reports that the judge vacated Bracey's death sentence and ordered him to serve life without parole after finding that Bracey was "mentally retarded" and ineligible for execution after the 2002 SCOTUS holding in Atkins v. Virginia.  The city's district attorney has 30 days to review the case and decide whether or not to appeal the judge's ruling. 
For many years, the U.S. Supreme Court has been pruning back one of the most repugnant notions of criminal procedure -- the idea that a clearly guilty criminal can suppress rock-solid reliable evidence of his crime on the basis of how it was obtained.  If someone violated a law in the process of obtaining that evidence, that person should be prosecuted or sued for the violation, but it is utterly irrelevant to the justice of the case at hand -- whether the defendant did or did not commit the crime of which he is accused.

On Monday, the U.S. Court of Appeals for the First Circuit in Boston rejected a novel attempt to expand the exclusion of evidence instead of retract it.  The home of "tax protestor" Charles Adams was searched by IRS agents with a search warrant.  Under U.S. v. Leon, a warrant itself is generally sufficient to defeat any claim of exclusion, except in highly unusual circumstances, but Adams made the creative claim that because the agents were armed and were not authorized to be armed, the evidence must be suppressed.

"Huh?" you might ask.  That's pretty much what the court said, but of course more judicially.

News Scan

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Supreme Court Review of MS Death Row Case Delayed: An appeal request made by a Mississippi woman on death row has been delayed after a request by the U.S. Supreme Court to see more court records.  The Associated Press reports that Michelle Byrom has asked the court for a new trial based on the claim that her original attorney failed to present evidence concerning physical and sexual abuse at the hands of her husband, as well as physical abuse during her childhood.  Byrom was convicted in 2000 for the murder of her husband, and at the time of sentencing, asked that the judge decide her sentence rather than the jury that found her guilty.

No Agreement Expected in CA Prison Overcrowding: A panel of federal judges has revealed that ongoing discussions aimed at settling the overcrowding in California prisons is at a standstill, prompting the judges to issue their own ruling within the next 30 days.  Sam Stanton and Denny Walsh of the Sacramento Bee report that lawyers for the state and California inmates have failed to reach an agreement on how to properly reduce the state's prison population to meet the judges' order, and only have until January 23 to make their recommendations to the court.  The panel of judges plans to announce whether or  not they will approve the state's request for a time extension to comply with the release order.

Appellate Court Denies Challenge From 'Underwear Bomber': The federal Sixth Circuit Court of Appeals has decided to uphold a life prison sentence for Umar Abdulmutallab, also known as the 'underwear bomber.'  United Press International reports that Abdulmutallab was sentenced to life after authorities say he attempted to detonate an explosive device hidden in his underwear on a flight from Amsterdam to Michigan on Christmas Day, 2009.  Abdulmutallab was challenging his sentence based on his claim that life in prison is cruel and unusual punishment.

News Scan

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Arias Re-Trial Scheduled for March: An Arizona judge has scheduled jury selection to begin March 17 for the second penalty phase of convicted murderer, Jodi Arias.  Stephanie Slifer of CBS News reports that Arias, who was found guilty of first degree murder in May 2013, faces another penalty trial after the original jury presiding over her case failed to reach a unanimous decision on whether she should receive life in prison or a death sentence.  If the new jury also fails to reach a unanimous decision, the judge will be forced to automatically remove the death penalty option and Arias would be sentenced to life in prison with the eligibility of parole after 25 years.

Supreme Court Rejects Oklahoma Death Row Appeals: The U.S. Supreme Court has rejected the final appeals of two Oklahoma men that have been on the state's death row for more than 10 years.  Chris Casteel of News OK reports that one of the men, Charles Frederick Warren, was found guilty and sentenced to death in more than a decade ago for the 1997 rape and murder of an 11-month-old child.  The court has yet to schedule execution dates for the two men. 

Prosecutor Wants Death Penalty Option for some Convicted Human Traffickers: An Arizona prosecutor is proposing an addition to the state's death penalty law that would make human smugglers who are also found guilty of murder eligible for a death sentence.  Jackie Kent of Tucson News Now reports that Pinal County Attorney Lando Voyles has proposed adding human smuggling to a list of 14 other aggravating circumstances, that along with a first-degree murder conviction, can make an individual eligible for the death penalty.  Arizona law states that a person can only receive the death penalty if they are found guilty of first-degree murder and at least one aggravating circumstance.  

Executions and Risk of Pain

Judge Frost in Ohio has denied a temporary restraining order against the use of Ohio's midazolam/hydromorphone protocol in the case of Dennis McGuire, scheduled for execution January 16.  Judge Frost considered the claim on the merits but served notice that holding claims to the last minute may be grounds for denial in the future.

The Court will not deny McGuire consideration of his merits arguments today, but the parties and counsel in this litigation long ago all but exhausted the patience of this Court. Other plaintiffs seeking a stay in the future should note this point and make informed litigation choices accordingly.
An important point here is that the constitution does not guarantee a murderer a painless death or freedom from any risk of pain.  We don't intentionally inflict physical pain as punishment any more, although the same Congress that proposed the Eighth Amendment did prescribe whipping.  All of the changes we have made to methods of execution since then have been for the purpose of reducing pain and risk of pain, but the murderer is still not entitled to a guarantee.

300 Strikes and Still Not Out?

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The Mirror (London) reports:

Career criminals are avoiding jail despite committing more than 300 offences.

Eight crooks with the shock crime record escaped prison in 2012, figures released under freedom of information have revealed.

Dozens more hardened offenders avoided time behind bars - despite racking up more than 250 offences.

Critics said the revelations exposed Britain's soft-touch justice system for repeat offenders.
The author of the study, Peter Cuthbertson of the Centre for Crime Prevention, said:

"The most prolific offenders are responsible for a growing percentage of all crime, and locking them up would have a massive impact on the crime rate.

"New Zealand recently fought rising crime by letting criminals know that it is 'three strikes and you're out'. In Britain, we don't even have 300 strikes and you're out."

The majority of the country's most prolific criminals avoided prison despite their previous offences often numbering in the triple figures, according to the study.
We learned that lesson the hard way in the United States, but apparently we have now forgotten it and are rushing headlong to repeat the mistakes of the past.  See, e.g., this post.


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The US Supreme Court had a conference today and issued an orders list taking up eight cases, all civil, for full briefing and argument. Lyle Denniston has this post at SCOTUSblog.

If the usual pattern holds, the long list issued Monday will have no grants for full briefing and argument, although some cases may be summarily decided, possibly including the much-relisted Ryan v. Hurles.

First Execution of 2014

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AP reports:

A co-worker of a man beaten to death nearly two decades ago at the Tulsa convenience store where the two worked was executed by lethal injection Thursday at the Oklahoma State Penitentiary.

Michael Lee Wilson, 38, orchestrated the brief but brutal assault on Richard Yost, whose dream was to one day manage the store. Wilson, who was convicted of first-degree murder, was the third person executed for the Feb. 25, 1995, crime; the fourth defendant is serving a life term.

The men loitered nearly an hour while waiting for customers to leave, then struck Yost with an aluminum baseball bat 54 times in 131 seconds. They jostled a safe while removing it, but Wilson posed as Yost when a security company called to check an alarm.

And to dampen suspicions among middle-of-the-night customers, Wilson put on Yost's uniform and worked the cash register as Yost lay dying in a pool of blood, beer and milk behind the cooler doors.

Prison spokesman Jerry Massie said Wilson's time of death was 6:06 p.m. Thursday.

News Scan

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Gov. Brown Wants Shorter Sentences:  Paige St. John of the Los Angeles Times reports that California Governor Jerry Brown's proposed budget includes increasing "good time" credits for second strikers from the maximum of 20%, mandated by the voters through the "Three Strikes" initiative, to 30%.  Second strikers are criminals who have been convicted of two violent or serious crimes.  Brown's proposal would limit the sentence reduction to inmates whose most recent conviction was not for a violent crime, which includes crimes such as arson, residential burglary, attempted murder, and child molesting among others.  Brown also wants to require California judges to use split sentencing for convicted car thieves, drug dealers and wife beaters who are no longer eligible for state prison under Realignment.  The mandate would prevent judges from making habitual felons spend their full sentence in county jail, requiring instead that they be released to community rehabilitation programs. 

Death Sentence Upheld for Cop Killer:  The Arkansas Supreme Court has upheld the death sentence Jerry Lard who murdered a police officer during a 2011 traffic stop.  Jill Bleed of the Associated Press reports that the court denied Lard's request for a new trial because, among other things, Lard claims it was unfair for the prosecutor to show dash-cam footage of the murder.  The footage shows Lard sitting in the back seat of the stopped car and when the door was opened he shoots officer Jonathan Schmidt in the face, then exits the car and continues to shoot the officer as he pleads for his life. 

DNA Solves Arizona Cold Case:  An Arizona prison inmate serving time for a drug offense has been indicted in Maricopa County for first degree murder based upon a match of his DNA with evidence found at the scene.  The Associated Press reports that Jose Manuel Muros Nevares is facing charges for beating 75-year-old Patricia Staggs to death at her home during a 2006 burglary.  If convicted of felony-murder Nevares could be sentenced to death.

USDoJ Civil Rights Nominee, Part II

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President Obama once said to Vladimir Putin, in one of these famous "open mike" episodes, that he would have "more flexibility" in a second term, in that he would not again have to face the voters.

What Mr. Obama meant at the time was that he would have "more flexibility" to placate the Russian desire for power and influence (in the Middle East, for example) at the expense of American power and influence.  But the President has apparently discovered that he has "more flexibility" in domestic affairs as well.  It is difficult to understand how, otherwise, he could nominate a flaming radical to be an Assistant Attorney General.  Is this how he's planning to promote racial healing?

The letter by the Fraternal Order of Police, mentioned by Kent, is here.

USDoJ Civil Rights Nominee

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Mary Kissel has this "Political Diary" article in the WSJ (subscription):

It's hard to find a lawyer who could do more damage to the Justice Department's civil-rights division than former chief Tom Perez--who wielded race as a political weapon, interfered with the Supreme Court's docket to protect his discrimination agenda from legal review, and snubbed a House subpoena before taking the job as Labor Secretary--until you consider the record of the man the president nominated to replace him, Debo Adegbile.
*                                    *                                   *
In a letter sent to President Obama Monday, the National Fraternal Order of Police recounted how Mr. Adegbile volunteered to get cop-killer Mumia Abu-Jamal off death row with "unfounded and unproven allegations of racism." The group's more than 330,000 members expressed "extreme disappointment, displeasure and vehement opposition" to his nomination, calling it "a thumb in the eye of our nation's law enforcement officers"--unusually strong language from the Order.
It is one thing to represent a murderer.  That function needs to be done, and people who do it ethically ought not be disqualified from appointments.  It is quite another to run around making "unfounded and unproven allegations of racism."  For prosecutors, it is universally considered unethical to accuse a person without probable cause.  That restriction ought to apply to all lawyers.  No one should accuse anyone of a crime, a tort, or a breach of ethical duty without probable cause to believe the allegation is true.  Those who do should certainly not be considered for high office.

Free Choice of Defense Counsel

My friend Tim Lynch of the libertarian Cato Institute brings to my attention what strikes me as an excellent idea:  Allowing indigent defendants to choose their own counsel, using what amount to "lawyer vouchers."  This would track the idea of allowing poor parents to escape failing public schools through education vouchers.

The story is here.

My experience is that public defenders are, by-and-large, quite good, and at least as energetic, competent and committed as privately-retained counsel.  But we often hear that defendants distrust their public defenders, and view them as just another appendage of The Big, Bad System, and thus never fully trust them no matter how good a job they do.

Better to let them select their own lawyers.  I don't expect them to understand that it's the evidence, not the lawyer, that drives the result, but there's a better chance that this will eventually get understood when, after a few years of free choice, the conviction rate stays exactly what it is now.

News Scan

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Ohio Murderer Faces Execution Next Week:  Dennis McGuire, sentenced to death for the 1989 rape and stabbing murder of a newly married, pregnant 22-year-old, lost his last bid to avoid execution when Gov. John Kasich turned down his request for clemency.  Robert Higgs of the Cleveland Plain Dealer reports that McGuire's lawyers argued he deserved clemency because he was abused as a child, lacked proper role models, and has impaired brain function.  McGuire is scheduled for execution by lethal injection on January 16, and will be the first person to use Ohio's new, two-drug, lethal injection cocktail.   

Bank Teller Can't Read Holdup Note:  A scene from Woody Allen's hilarious 1969 movie, Take The Money And Run, played out in an Antioch, CA bank yesterday.  Jon David Kahn of Breitbart.com reports that would-be bank robber Jamal Garrett handed a Wells Fargo Bank teller a note, which the teller could not decipher.  Just like in the movie, the teller contacted her manager for assistance.  While they were figuring out what the note said, Garrett, who was on parole at the time, fled and was later arrested.
Florida triple murderer Thomas Knight, who had since changed his name to Askari Abdullah Muhammad, was finally executed today for a murder committed in 1980.  While already on death row for killing a Miami couple, Sydney and Lillian Gans, Knight killed correctional officer Richard Burke with a sharpened spoon.  Tamara Lush has this story for AP.

"This is where my dad took his last breath," said the slain guard's daughter, 47-year-old Carolyn Burke Thompson. She was among several family members who witnessed the execution and could be seen crying in the front row as it was carried out.

"The system finally has worked. I am at peace knowing I don't have to wait any longer. I miss my dad a lot," she said.
One of the reasons that the case took so long is that the Supreme Court in 1976 approved Florida's sentencing system with its specified list of mitigating circumstances and then later simply changed its mind and mandated that the defendant be allowed to introduce everything including the kitchen sink.  Applying that rule retroactively, the federal court of appeals in 1987 overturned a judgment that had been rendered correctly under the law in effect at the time of the trial and the direct appeal.  Today, the rules of Teague v. Lane and 28 U.S.C. §2254(d) would forbid that.

The defense lawyers filed five petitions with the U.S. Supreme Court, denied here, here, here, here, and here.  The only dissent is in the fourth, where Justice Breyer asserts once again that he would grant review to decide the so-called Lackey claim -- whether, if a murderer can gum up the process long enough, he is entitled to escape his just punishment for good.

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Los Angeles Sheriff Retires Under Fire:  Four term Los Angeles County Sheriff Lee Baca announced his retirement effective January 31 as reported by Greg Risling of the Associated Press.  The LA Sheriffs Department has been under scrutiny by the LA County Board of Supervisors and a special commission on jail violence.  As reported in the Los Angeles Times, the Department is also being investigated by the FBI.  Recently eighteen former and current deputies were indicted for misconduct including beating jail inmates and visitors, falsifying evidence and obstructing justice.  The Sheriff was facing a heated campaign for reelection this year. 

100 Charged in NY For Disability Fraud:  Aaron Katersky of ABC News reports that over 100 mostly New York police officers have been indicted today for disability fraud following a two year investigation.  The Social Security Administration has been under pressure from Congress to tighten up its disability process in the wake of major increases in claims.  According to a story in today's Wall Street Journal the fraudulent claims scam began in 1988, but most of the current defendants claimed that they were disabled due to the terrorist attack on New York on September 11, 2001.  Several hundreds of millions of tax dollars were paid to the defendants who submitted false claims.

Record Gun Sales Reported in 2013:  David Sherfinski of the Washington Times reports that firearm sales in the United States were the highest in history during 2013, marking the 11th straight year of increases.  More than 21 million applications were submitted for criminal background checks required for gun purchases, with increases in virtually every state from New Hampshire to Hawaii. Second Amendment advocates cite the interest by the President, members of Congress and several states to adopt further restrictions on gun sales. 


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CO Senator Wants to Arm Teachers:  A Colorado State Senator whose son attends the same high school where a recent shooting occurred has introduced legislation that would allow teachers to carry firearms while at school.  On Dec 13,  James Pierson, an angry Arapaho High School student, gunned down fellow student Claire Davis, before setting fire to the library and committing suicide.  A FoxNews story by Maxim Lott reports that Senator Ted Harvey's son was on the school's debate team with Pierson.  Harvey noted that many Colorado schools do not have armed guards.  "I don't think schools are safe when they are gun free zones and criminals are the only people who carry guns," he said. 

Vets Help Track Down Child Predators:  The Associated Press reports that military veterans, wounded during their service, are now participating as interns in a program that has them working with ICE to track down and prosecute criminals who prey upon children for sex trafficking and pornography.  The veterans receive 11 weeks of training before being assigned to ICE field offices to scour computers and flash drives seized by agents during searches of suspected predators.  While the veterans are unpaid for their work, most receive disability for their injuries.  As one vet put it, "I feel that I'm still serving my country and protecting my family at the same time."

Ohio Police to Get Criminal's Mental Health Info:  The Ohio Supreme Court has cleared the way for enforcement of a new law that provides police with the mental health evaluations of violent offenders who receive a conditional release from a treatment facility.  The Associated Press reports that the law was adopted after the 2011 murder of Deputy Suzanne Hopper by a habitual felon who had been released form a mental health institution.  Deputy Hopper was unaware that recently-released criminal Michael Ferryman had been found not guilty by reason of insanity for an earlier shooting, when she approached him in response to a "shots fired" call at a trailer park.  

Pot Prices Double in Colorado:  Alison Vekshin of Bloomberg News reports that recreational marijuana is selling for twice the price for medical marijuana during the first week since pot became legally available on the retail market.  An ounce of weed goes for $400 at Medicine Man, a pot retailer in Denver, while an ounce runs $200 for customers who have a prescription.  Shop owners say that the higher prices are in response to the high demand.  "It is very comparable to what black market prices are," said one retailer.  
For my entire blogging life, I've been angling for an excuse to say something, anything, about the Little Sisters of the Poor.  That's because, as a sports fan, I've spent years needling fans of opposing teams by snickering, "Sure you've got a winning record, but that's only because you play the Little Sisters of the Poor."

It seemed inconceivable that someone could actually target the Little Sisters of the Poor, but the Obama Administration remains full of surprises.  Teeth bared, it has taken the Sisters to court, and done so at exactly the time that it has released from prison the traitorous Lynne Stewart.  This is the Lynne Stewart who was convicted of abetting terrorism against the United States.

Ms. Stewart, a veteran criminal defense lawyer who initially sneered that she could serve her prison sentence "standing on my head," has recently been claiming that she has terminal cancer. I assume this is true, although one must wonder whether whether she has the same kind of "terminal cancer" suffered by Abdelbaset al-Megrahi, the bomber of Flight 103 over Lockerbie, Scotland (Abdelbaset al-Megrahi was likewise prematurely released, also ostensibly on "compassionate" grounds, but actually because of a crooked deal.  He lived the life of a celebrity/hero for three years after his release).

Having had, but miraculously survived, a cancer that is 96% terminal, I don't wish it on anyone, no matter how vile.  But the juxtaposition of the Administration's oozing compassion for Ms. Stewart (if compassion is what it is, which I doubt) with its snarling legal attack on the Little Sisters of the Poor, is just too much to pass without notice.  Paul Mirengoff has the story, from which the title of this post is taken.

Talking Sense about Legalizing Pot, Part II

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Ruth Marcus, an utterly reliable liberal, and Peter Wehner, a traditional-values conservative, have also chimed in about legalizing pot.  The Marcus piece starts off with something of an apology for being a fuddy-duddy, but goes on to make a powerful case. These paragraphs in particular struck home:

On balance, society will not be better off with another legal mind-altering substance. In particular, our kids will not be better off with another legal mind-altering substance.

As the American Medical Association concluded in recommending against legalization in November, "Cannabis is a dangerous drug and as such is a public health concern." It added: "It is the most common illicit drug involved in drugged driving, particularly in drivers under the age of 21. Early cannabis use is related to later substance use disorders."

And this point, for me, is the most convincing: "Heavy cannabis use in adolescence causes persistent impairments in neurocognitive performance and IQ, and use is associated with increased rates of anxiety, mood, and psychotic thought disorders."

Next time you hear that pot should be treated as a medical issue, not a legal one, remember what the AMA has to say about its wonderful medical effects.

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FL Governor Signs Death Warrant for Convicted Child Murderer: Florida Governor Rick Scott has signed a death warrant for 46-year-old Juan Carlos Chavez, the man convicted of kidnapping, raping, and murdering a 9-year-old boy nearly 20 years ago.  The Daily Mail reports that the notorious murder led to the passage of the Jimmy Ryce Act, a law allowing authorities to commit dangerous sexual predators to mental institutions after they have served their prison sentence. Chavez will be put to death by lethal injection on February 12, 2014.

Man Charged in CA Murder Released From Jail Hours Before Attack: Authorities have announced that the man suspected of murdering a beloved Northern California priest on New Years Day had been in police custody for public intoxication just hours before the attack.  CNN reports that 43-year-old Gary Lee Bullock had been released from Humboldt County Jail a few hours before breaking into a Eureka, CA church and bludgeoning the priest to death, leaving his body in the church rectory.  Court records indicate that Bullock didn't have a violent criminal history, but had been arrested in April 2013 and charged with two misdemeanors for cocaine possession.

Judge Allows Border Searches of Electronics: A federal judge has upheld the government's right to search electronics at border crossings, dismissing a lawsuit filed by civil rights attorneys claiming the practice was unconstitutional.  The Associated Press reports that U.S. border patrol agents will have the authority to search laptops carried by members of the media and other travelers without reasonable suspicion.  The decision puts an end to claims by the plaintiffs stating that the searches could jeopardize confidential news sources or potentially reveal sensitive professional or personal information.

Talking Sense about Legalizing Pot

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David Brooks, the New York Times columnist, generally drives me nuts because he's so smart yet gets so many things wrong.  Not for nothing is he known as the liberals' favorite conservative.  But yesterday he wrote a column about pot legalization that puts my views about it into words more apt than I think I have ever used.

Hat tip to Will Haun, a future leader of the conservative legal movement.
A recently released report from the California Department of Corrections and Rehabilitation (CDCR) indicates that fewer criminals released from prison under Realignment have been arrested for crimes than those released before the law took effect.  The CDCR press release, picked up by Sacramento Today, reports that under Realignment, fewer released inmates have been rearrested and the conviction rate for those released one year prior to Realignment is nearly the same as for those released over the first year under the new law.  The report also notes that fewer ex-cons are returning to prison under Realignment.  All this great news is right up front where everyone can see it; the not-so-great news in the report but did not make the press release. 

While arrest rates are slightly lower, conviction rates are slightly higher, and the felony arrest rate is 6% higher.  Fewer arrests for misdemeanors and supervision violations are what drove the total arrest rate down.  This makes perfect sense, because after Realignment, criminals can commit drug and property felonies without worrying about going to prison.  Why steal a six pack of beer when you can steal the whole beer truck and the worst you can get is time in county jail?  Under Realignment, most criminals released from prison receive light supervision on county probation rather than the intense supervision on state parole.  It is no surprise that fewer relatively unsupervised ex-cons are being arrested for supervision violations.  The report also points out that no prison inmates are being released early under Realignment.  True enough, but now that many county jails are filled beyond capacity with thousands of former prison inmates convicted of new felonies which no longer carry a prison sentence,  thieves, drug dealers, and wife beaters are being released on probation after serving a few weeks because there is no room to hold them.  Realignment has created conditions that force the early release of criminals who are no longer eligible for prison.

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Convicted Sex Offender Pleads Guilty to 297 Charges: An Ohio man has accepted a plea deal that will require him to spend the rest of his life in prison after pleading guilty to hundreds of charges including murder, kidnapping and rape.  Thomas J. Sheeran of the Beatrice Daily Sun reports that 49-year-old Elias Acevedo pled guilty to the cold-case murders of two women more than 15 years ago as well as sexual attacks and assaults on minors, some dating back more than 25 years.  Authorities had re-opened the murder cases and presented Acevedo with mounting evidence linking him to the crimes, offering him a plea deal that would take the death penalty off the table if he provided details about the crimes he had committed.

Convicted Killer set to be Released Early: A gang member convicted of murdering a young California woman ten years ago is set to be released from a juvenile justice facility after serving only eight years of his suggested 10-year sentence.  Larry Altman of the Daily Breeze reports that 22-year-old Doheen Pratt, who was just 13-years-old at the time of the murder, was convicted and sentenced in 2006 to spend nearly 10 years in juvenile hall, the maximum sentence a 13-year-old can receive in the state of California.  Had Pratt been a year older at the time of the murder, prosecutors could have tried him as an adult and pursued a possible life sentence.  

Ohio to Use Two-Drug Method in Upcoming Execution: The Ohio Department of Corrections will use a two-drug combination in an upcoming execution for a man convicted of raping and murdering a pregnant woman more than 20 years ago.  The Associated Press reports that the state has elected to use a combination of midazolam, a sedative, and hydromorphone, a painkiller, making Ohio the first state in the U.S. to use this particular method of lethal injection.  This is Ohio's second attempt at using the two-drug method, the first attempt was halted after the inmate's request to donate organs to his family resulted in a last-minute reprieve from the governor.       

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