March 2014 Archives

Trusting the Discretion of Judges

| No Comments
Should judges be given more leeway in deciding sentences?  In federal law, they already have considerable leeway, although they are constrained to an extent by mandatory minimum sentences.  (They used to be constrained as well by mandatory guidelines, but that ended with the Supreme Court's 2005 decision in Booker).

In considering whether judges should have more of a free rein (or is it reign?), it seems fair enough to take a look at who might wind up doing the judging.

News Scan

| No Comments
Thousands of 'Criminal Aliens' Released in 2013: Internal documents obtained by the Center for Immigration Studies  (CIS), a group advocating stricter immigration enforcement, have revealed that ICE (Immigration and Customs Enforcement) agents released nearly 68,000 foreign nationals with criminal covictions rather than pursing deportation.  Judson Berger of Fox News reports that ICE agents came in contact with 193,000 'criminal aliens' last year, but only targeted 125,000 of them for deportation.  CIS also revealed that in 2013, ICE charged less than 200,000 of the 722,000 "potentially deportable aliens" they came in contact with.

White House Shooter Sentenced Today: An Idaho man who in 2011 shot at and hit the White House several times is set to be sentenced today after agreeing to plead guilty.  The Associated Press reports that 23-year-old Oscar Ortega-Hernandez hit the White House roughly eight times and did nearly $100,000 in damage, the prosecution has asked that he spend the next 27 years behind bars.  Ortega-Hernandez was originally charged with attempting to assassinate President Obama, but prosecutors agreed to drop the charge in exchange for a plea deal in 2013.

Googling the Wiretap Act

| No Comments
Somewhat off-topic but interesting:  There has been a lot of controversy in recent years about the amount of data about Americans that the NSA and other government agencies have been vacuuming up.  But private businesses have been vacuuming orders of magnitude more.  Most of that activity is perfectly legal, so far, but some maybe not.

Here is the court summary of Joffe v. Google, Inc., USCA 9 No. 11-17483:

The panel granted in part a petition for rehearing, filed an amended opinion affirming the district court, and denied a petition for rehearing en banc on behalf of the court in an interlocutory appeal from the district court's order denying a motion to dismiss claims that Google violated the Wiretap Act when it collected data from unencrypted Wi-Fi networks in the course of capturing its Street View photographs.

The Wiretap Act imposes liability on a person who intentionally intercepts any electronic communication, subject to a number of exemptions. In the amended opinion, the panel held that data transmitted over a Wi-Fi network is not a "radio communication" exempt from the Wiretap Act under 18 U.S.C. § 2511(2)(g)(i) as an "electronic communication" that is "readily accessible to the general public."

The panel held that the phrase "radio communication" in 18 U.S.C. § 2510(16) excludes payload data transmitted over a Wi-Fi network, and that as a consequence, the definition of "readily accessible to the general public [ ] with respect to a radio communication" set forth in § 2510(16) does not apply to the exemption for an "electronic communication" that is "readily accessible to the general public" under § 2511(2)(g)(I).

The certiorari petition asking the US Supreme Court to review this case was filed March 27 as Google, Inc. v. Joffe, No. 13-1181.

News Scan

| No Comments
Mississippi Execution Delayed: A Mississippi woman sentenced to death for the murder of her husband was scheduled to be executed Thursday evening, but was granted a temporary reprieve while the state Supreme Court reviews her post-conviction motion.  Marlena Baldacci of CNN reports that after the delay, Mississippi Attorney General Jim Hood filed a motion with the state's high court to schedule another execution date for 57-year-old Michelle Byrom, but that motion was ultimately denied.  If the execution is carried out, Byrom would become the first female prisoner executed in the state in 70 years.

Repeat Felon Arrested in Navy Ship Murder: The Naval Criminal Investigative Service (NCIS) has identified 35-year-old Jeffrey Savage as the person responsible for killing a Navy sailor on board the USS Mahan earlier this week.  WAVY News reports that Savage has a violent criminal past and was sentenced to almost four years in prison for a manslaughter conviction in 2008, but was released after serving only a year and a half behind bars.  Officials say Savage attempted to board the USS Mahan Monday evening and was confronted by a sailor on the ship, a struggle ensued and Savage killed Petty Officer 2nd Class Mark Mayo.  Authorities are still unsure why Savage, a civilian truck driver, was trying to board the Navy ship.

Newlywed Sentenced for Murdering Husband: A Montana woman who pushed her husband off of a cliff just eight days after their wedding day will have to spend the next thirty years of her life behind bars.  Sasha Goldstein of the New York Daily News reports that 22-year-old Jordan Graham pled guilty to second-degree murder and admitted to pushing her husband off a 200 foot cliff during an argument at Glacier National Park last summer.  Graham, who was convicted in federal court, will have to serve her entire 30 year sentence without the possibility of parole.

Some things are not that important, but too delicious to pass up.  This is one of them, from Roll Call:

Capitol Police stationed outside the Senate gallery got a surprise Thursday afternoon when they asked one visitor to empty his pockets in accordance with procedure.

Sherman Tyrone Edwards Jr., 32, placed a bag of marijuana on the stand next to the security checkpoint, manned by three uniformed officers.

According to sources on the scene, Edwards pulled out a bag of bud big enough that the U.S. Attorney could probably hold onto it and bust him for distribution, rather than tossing the evidence, as normally happens when lesser amounts -- such as joints -- are confiscated.

Sources also said that based on his demeanor and expression, they were not too shocked that this particular Capitol visitor would be in possession of large quantities of dope.

A Tribute to Drug Legalizers

If we legalize drugs, we will remove one barrier to their availability.  When we remove that barrier, more will be consumed.  The idea that they'll be "taxed and regulated," and thus safe, is baloney, though frequently peddled baloney.  They'll be as taxed and regulated, and as safe, and as far removed from use by people too immature to handle them, as "taxed and regulated" booze is now.  If you want to see how much that is, sneak into any high school party where the parents are away for the weekend.

Strict libertarians support legalization, and not limited to pot.  This is a growing belief in the academic world where I spend part of my time.  They are good-hearted people, but too captured by ideology.  They think legalization will bring freedom. This is  what it will actually bring.

News Scan

| No Comments
TX Set to Execute Convicted Killer: A Texas man convicted of murder and sentenced to death nearly ten years ago is scheduled to be executed by lethal injection Thursday evening.  Jon Herskovitz of IOL News reports that Doyle was convicted of beating a food delivery woman to death with a baseball bat, putting her body in a trash can and stealing her car.  If the execution is carried out as scheduled, Doyle will become the fourth person executed in Texas so far this year.

Realignment Not Living up to Expectations: Governor Brown's Realignment plan, which reduced prison overcrowding by shifting many inmates to county jails, has not produced the kind of positive results many law enforcement agencies were hoping for.  Jean Reynolds writes in Law Enforcement Today that data collected after Realignment went into effect revealed that nearly 60 percent of parolees released to counties were arrested for a new crime within 12 months, a 12 percent increase in recidivism.  Prison costs were also expected to decrease as inmates were moved to the county level, however, it has been reported that the budget actually increased by $200 million.

OK Execution Drug Privacy Law Ruled Unconstitutional: An Oklahoma judge has ruled that the law governing the state's executions is unconstitutional due to privacy provisions that prevent anyone from learning where the lethal injection drugs are coming from.  Bailey McBride of the Associated Press reports that Judge Patricia Parish ruled against the privacy statute, revealing that she believes it is a violation of due process.  Both Arkansas and Missouri keep their execution information private, and just last week, officials in Texas elected not to reveal where they obtained their new batch of pentobarbital.  Oklahoma is scheduled to carry out its next execution April 22.
The Delaware State Lodge of the Fraternal Order of Police, the Delaware State Troopers Association, the Correctional Officers Association of Delaware and the Delaware Police Chiefs' Council have this letter in the Middletown Transcript:

All law enforcement groups in the State of Delaware have joined together to oppose Senate Bill 19, an initiative to strike from the Delaware Statutes what is commonly referred to as the "Death Penalty."

Never before in the history of the state has the law enforcement community come together to present one united voice. Representing over 5,000 individual members, this coalition includes the State Lodge of the Fraternal Order of Police, the Delaware State Troopers Association, the Correctional Officers Association of Delaware and the Delaware Police Chiefs' Council.

On March 26, 2013, this initiative passed the Senate by a bare majority and now awaits action in the State House of Representatives. We view this action, and potential for action, as a direct threat to the welfare and safety of those that we represent and to the community at large that we have sworn to serve and protect.

Old-School Methods of Execution

With the difficulties in obtaining the needed drugs for lethal injection, legislators in some states have been proposing return to the methods of execution that lethal injection was adopted to replace.  Unfortunately, in most of the states where this is being proposed, the prior method is the electric chair.

Return to the electric chair is a thoroughly bad idea.  That method was held unconstitutional by the Georgia Supreme Court, hardly a bastion of liberal judicial activism, in 2001 and by the Nebraska Supreme Court in 2008.  The last thing we need to do is reopen that can of worms.

The gas chamber is a different matter.  The constitutional attacks that were made on the gas chamber were not based on the method as such but on the particular gas, hydrogen cyanide.  Those attacks had some validity.  Cyanide is a bad way to go.  There are, however, other gases available that are both painless and easy to acquire.

Good News and Bad News

| No Comments
The good news is that, as the News Scan reports, Missouri went ahead with the execution of Jeffery Ferguson, who abducted, stripped, raped and strangled to death a teenage girl, Kelli Hall.  The better news is that it did so after courts, including the Supreme Court, rejected what is becoming the tiresome challenge that the state refused to identify the pharmacy that supplied the execution drugs.

The bad news is that it took 25 years to get this done.  Ferguson committed the rape and murder on February 9, 1989.

The other bad news is that there continues to be no visible limit on just how sick some criminals can be.  Hence this story from East Moline, Illinois.  It starts:

An Illinois playground was [booby]-trapped with straight-edged razors glued to equipment frequented by children, reported.

The sharp razors were discovered by parents at Millennium Park in East Moline, near the state's western border with Iowa. The parents say their 2-year-old son was cut by one of the blades on the monkey bars.

Here's betting dollars  to doughnut holes that if and when the guy who did this  gets caught, his defense lawyer will pony up for a rent-a-shrink whose opening paragraph will contain the word "bi-polar."  Any takers?

News Scan

| No Comments
MO Executes Convicted Killer: A Missouri man sentenced to death for the kidnapping, rape, and murder of a 17-year-old girl more than 25 years ago was executed early Wednesday morning, making it the state's fifth execution in five months.  The Associated Press reports Jeffrey Ferguson abducted the teen from her workplace, raped, and strangled her before dumping her body in a field, where she was found 13 days later.  An acquaintance of Ferguson was also convicted of first-degree murder for the crime, and is serving a life sentence. 

Bin Laden's Son-in-Law Convicted in Terror Trial: Osama Bin Laden's son-in-law, Sulaiman Abu Ghaith, was convicted in federal District Court today of conspiring to kill Americans and providing support to terrorists.  Benjamin Weiser of the New York Times reports that the jury reached their verdict after two days of deliberation, finding 48-year-old Abu Ghaith guilty on all charges.  He is scheduled to be sentenced September 8, and faces a possible life sentence.

CA Bill to End Backlog of Rape Kit Testing: A bill to reduce the overwhelming backlog of untested rape kits in California has passed out of its first hearing in the State Assembly.  Jeffrey Schaub of CBS San Francisco reports that AB1517 would require law enforcement to submit rape kits for testing within five days of a sexual assault, and ensure that forensic laboratories submit the information collected from the kits to the national database CODIS within 30 days.  Alameda County District Attorney Nancy O'Malley testified on behalf of the bill Tuesday, informing the Assembly committee that only 21 percent of all rapes result in an arrest in California.

SCOTUS Wednesday

| No Comments
Today, the US Supreme Court decided United States v. Castleman, No. 12-1371, a case involving the interpretation of the federal statute restricting gun ownership by a person convicted of "a misdemeanor crime of domestic violence," 18 U.S.C. §922(g)(9).  The Court holds unanimously that this includes a state conviction for "having 'intentionally or knowingly cause[d] bodily injury to' the mother of his child," reversing the Sixth Circuit.  There is some disagreement on how much further the statute reaches.

What about the Second Amendment?

Finally, Castleman suggests--in a single paragraph--that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.
Now there's a public spanking for an inadequate argument, but no precedent on the Second Amendment question.

For today's oral argument session, the Court is hearing Wood v. Moss.  Aside from its interesting name (placing it in a category with the famous Plough v. Fields and Silver v. Gold) the case is about qualified immunity for Secret Service agents who were sued for thinking that demonstrators against the President just might pose a greater threat than demonstrators for him and acting accordingly.

Update:  Adam Liptak has this article in the NYT on the argument, noting that some of the justices urged the lawyer for the government to take a bolder position than the one he was taking.

News Scan

| No Comments
Just Released Robber Hits Same Shoe Store.  After serving 15 years in state prison for robbing a Stride Rite shoe store in 1999, New Jersey police say 40-year-old Christopher Miller headed back to the same store and robbed it again. NBC New York reports that after being released from prison on Friday, Miller took a bus to the same exact store, demanded money from the employees, and eventually took the cash register drawer which contained nearly $400.  Miller was found a few blocks away with the cash hidden in a nearby gutter.  He has been charged with robbery and held on $100,000 bail.

Oklahoma Introduces Five Execution Methods: After experiencing a shortage of its traditional lethal injection drugs, the state of Oklahoma has announced new drug protocols that can be used in upcoming executions.  Bailey McBride of the Associated Press reports that Oklahoma has adopted five 'acceptable ways' to put an inmate to death, making it easier for the Department of Corrections to obtain the drugs from different manufacturers.  Just last week, Oklahoma was forced to postpone two executions because lethal injection drugs were not available. 

AZ Sheriff Introduces Segregated Jail Unit for Veterans: Sheriff Joe Arpaio of Maricopa County, Arizona has introduced a new segregated jail unit designed specifically for inmates who have served in the military.  Aalia Shaheed of Fox News reports that unit, which is painted red, white, and blue and decorated with military flags, is home to 250 inmates and is designed to help get the veterans back on the right track.  The Maricopa County Jail is offering special services to the veterans including psychological attention and job training.

The Real Root Cause

| No Comments
Those of us who believe that criminals should be held accountable have heard over and over that we ignore the "root causes" of crime.  These causes never turn out to be greed, selfishness, callousness, lack of empathy for victims or stuff like that. Instead they turn out to be racism, militarism, Puritanical neuroses or some subset of the general theory that America stinks.

For purposes of deciding the punishment in individual cases, I don't think it makes much difference what, as a general matter, the "root causes" of crime may be.  But for deciding the overall approach law should take to criminal behavior, figuring out, and correcting, "root causes" makes a world of difference. 

My friend Paul Mirengoff at Powerline puts his finger on the Number One root cause. It's not racism.  It's the mirror image of racism, to wit, race huckstering.  Race huckstering is designed less as a smear against CJLF and like-minded people (although that too) than as an all-purpose excuse, borne of guilt and carried by a culture of grievance, that, among other very bad things, makes it harder than it ever ought to be for blacks truly to have an equal shot. 

Paul's essay is here
As noted previously on this blog, an initiative to fix California's death penalty is now circulating.  The initiative has been carefully drafted so that few solid arguments can be made against it from either a policy or a constitutional perspective.  The opposition will be from people who do not want the death penalty to work so that they can claim its "broken" status as a reason to repeal it.  That ulterior motive should be transparent to the voters, who overwhelmingly favor mending it over ending it.

So I've been curious to see what arguments the opponents would come up with.  We are now seeing them trickle out.  One bogus argument being floated is that the initiative would overwhelm California's intermediate appellate courts, the courts of appeal.

News Scan

| No Comments
Realignment Causing More Violence in California Jails: The rate of violent attacks against Ventura County jail guards has doubled since 2012, and authorities believe Realignment is to blame.  Cindy Von Quednow of the Ventura County Star reports that county jail guards have been forced to deal with more hardened and serious offenders that, prior to Realignment, would have been housed in state prisons- a situation that resulted in 16 deputies being attacked last year. Guards have also noticed an increase in inmates assaulting each other in order to be moved to state prison, where there are more amenities and better living conditions.

Federal Prosecutors Oppose Holder's Sentence Reductions: Attorney General Eric Holder's Smarter Sentencing Act, which would reduce mandatory minimum sentences for most drug crimes, has is created a rift between the Attorney General and federal prosecutors.  Claudia Cowan of Fox News reports  that Holder believes eliminating mandatory minimum sentences for drug crimes would save tax payers billions of dollars while keeping citizens safe, but federal prosecutors are concerned that reducing sentences would result in an increase in drug crime.  The bill has already passed out of the Senate Judiciary Committee, and will now move to the Senate floor.

Convicted Killer Wants New Parole Rights: A Massachusetts man convicted of murder and sentenced to life in prison as a teenager in 1981 is expected to make several demands today, including a request that would give convicted felons the chance to cross-examine anyone who testifies against their release at parole hearings.  Laurel J. Sweet of the Boston Herald reports that Gregory Diatchenko won an appeal to the Massachusetts Supreme Judicial Court allowing juveniles convicted of murder to be considered for parole after serving as little as 15 years behind bars.  In addition to asking for the chance to cross-examine witnesses, Diatchenko is also asking the judge to allow for appointed counsel and defense experts at parole hearings.

The Smarter Sentencing Act, co-sponsored by Sens. Dick Durbin (D-IL) and Mike Lee (R-UT) would substantially reduce the mandatory minimum sentences that must be given defendants convicted of dealing in Schedule  I drugs  --  everything from pot to methamphetamine and  heroin.

Proponents of the Act say that we have gone too far with mandatory minimums, and that they impose excessively harsh terms on low-level, non-violent offenders without permitting the judge to tailor the sentence to individual circumstances. Opponents say that mandatory minimums  have helped bring  down crime, are imposed  only  on serious or repeat offenders, are essential in securing cooperation against higher-ups, and  rein in irrational disparity among judges of various ideologies.

Supporting the SSA will be John Malcolm, a former Assistant US Attorney and Deputy Assistant Attorney General in the George W. Bush Administration.  John is now Director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation. Opposing the SSA will be yours truly.

The teleforum begins at 2 pm EDT.  The call-in number is 888-752-3232.  All should feel welcome to join.

News Scan

| No Comments
Condemned Killer Won't be Allowed to Donate Organs: The state of Ohio has decided that convicted killer and death row inmate, Ronald Phillips, will not be allowed to donate his organs to family members before his execution.  Andrew Welsh-Huggins of the Associated Press reports that Phillips' request was denied after officials said he would not have enough time to undergo organ donation surgery and recuperate before his scheduled execution on July 2.  Phillips was sentenced to death for the rape and murder of his girlfriend's three-year-old daughter in 1993.

Illinois Supreme Court Makes Controversial Ruling
: An Illinois mother whose 10-year-old daughter was raped and murdered more than 30 years ago is upset about the re-sentencing of her daughter's killer.  Chris Minor of WQAD reports that the Illinois Supreme Court recently ruled that juveniles convicted of murder and sentenced to life in prison will be eligible for re-sentencing and possibly given shorter prison terms.  Illinois, along with several other states, have initiated the re-sentencing of those who received life terms as juveniles following the 2012 Supreme Court decision in Miller v. Alabama.

Tracking CA Sex Offenders May Get Tougher: For the second consecutive year California's Sex Offender Management Board is proposing to drop so-called "low level" sex offenders from the state's sex offender registry in as little as ten years after their convictions in order to conserve scarce resources.  Mike Luery of KCRA reports that California has an estimated 78,000 sex offenders currently registered in the state, all of whom by law must remain on the registry for life.  The Board's proposal would allow those designated as low level offenders to be dropped after between 10 and 20 years, leaving them virtually unsupervised.  A bill to implement this proposal introduced last year by Assemblyman Tom Ammiano (D) San Francisco failed to pass.  No word yet on who will introduce this year's bill.  

A New Defense Theory

| No Comments
For those of you who thought the Twinkie Theory of defense was as outlandish as you were going to see, think again.

Academic Robbery

| 1 Comment
Eugene Volokh has this post at his eponymous conspiracy on a bizarre incident at the University of California at Santa Barbara.  Dr. Mireille Miller-Young -- an associate professor with UCSB's Feminist Studies Department -- was offended by an anti-abortion demonstration with graphic images.  (CJLF takes no position on the underlying controversy, BTW.)

According to the police report,

Miller-Young said that she "just grabbed it [the sign] from this girl's hands." Asked if there had been a struggle, Miller-Young stated, "I'm stronger so I was able to take the poster."

Miller-Young said that the poster had been taken back to her office. Once in her office, a "safe space" described by Miller-Young, Miller-Young said that they were still upset by the images on the poster and had destroyed it. Miller-Young said that she was "mainly" responsible for the posters destruction because she was the only one with scissors.

The definition of robbery in California, unchanged since 1872, is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Penal Code § 211.)

Miller-Young confessed to taking the property, and the "I'm stronger" statement effectively confesses the "force" element. (See 2 Witkin & Epstein, California Criminal Law, Crimes Against Property § 99.) This is not only a felony, but a "violent" one. (Penal Code § 667.5(c)(9).)

"Miller-Young said that she did not feel that what she had done was criminal."

In my view, one of the greatest problems in our society today is the extent to which our young people are being taught by persons utterly devoid of common sense. Miller-Young should be convicted of robbery. Whatever direct consequences the court may impose, the collateral consequence should be that she is fired and never teaches in this state (or hopefully any other) again.
The Nashua Telegraph has printed this letter from the New Hampshire Police Association.  It's so good that I am going to copy it in its entirety.

Editor's note: This article was co-signed by nine members of the board of the New Hampshire Police Association and represents the official position of that organization.

We felt compelled to respond to the March 9 letter from 16 Nashua-area representatives calling for the repeal of the death penalty in New Hampshire. While we understand that some people may oppose the death penalty for personal and moral reasons, that does not give those people license to misrepresent information related to this controversial subject. Space precludes us from responding to each point, so we will address only the most egregious.

With regard to the claim that 140 "wrongly convicted" persons on death row were later found to be "not guilty," that claim is put forward by the Death Penalty Information Center, an anti-death-penalty advocacy group. A closer examination shows that this claim is largely false. It fails to distinguish between those who are legally "not guilty" and those that are factually innocent - a crucial and important distinction. For example, if a convicted person won an appeal for a new trial after 20 years and the prosecution declined to retry that person because key witnesses have died, the DPIC would list the person as "exonerated." That does not mean that the person was factually innocent, legally found "not guilty," or even "wrongly convicted."

1998:  The California Legislature provides for DNA testing of everyone convicted of certain felonies.

2004:  The voters expand the sampling and testing to everyone arrested for any felony, effective in 2009.

2009:  U.S. District Judge Charles Breyer denies a preliminary injunction against the law.

2012:  A three-judge panel of the Ninth Circuit affirms, finding the program valid.  Five months later the court grants rehearing en banc.

2013:  The Supreme Court decides in Maryland v. King that DNA testing of all persons arrested for violent crimes is valid.  The Ninth orders supplemental briefing and reargument.

Today: The en banc Ninth Circuit affirms the denial of the preliminary injunction on the ground that plaintiffs asked for an injunction against DNA testing of anyone arrested for a felony, and that they are obviously not entitled to.  After King, the law is clearly valid as applied to the arrestees for violent crimes, and the court of appeals will not consider an injunction limited to the arrestees for nonviolent crimes until such a motion has been made and heard in the district court.

Well that was a long trek for not much.  If you read a news story that says California's program was upheld today by the Ninth, don't believe it.

The upside, though, is that there is no injunction in place against the program, and the ACLU has wasted years of litigation effort as a result of overreaching and asking for too much.  We will take a little satisfaction in that.

To be continued ....

Florida Execution

| No Comments
Brittany Wallman of the Sun Sentinel reports:

Broward killer Robert Lavern Henry, who viciously beat and burned his co-workers in order to steal $1,269.26, was put to death by lethal injection Thursday at Florida State Prison.

Janet Cox Thermidor, 35, and Phyllis Harris, 53, lost their lives in the sadistic crime more than 26 years ago.

Henry blinked repeatedly and appeared to be talking or praying as the injection began. His lips slowly stopped moving but he continued breathing for several minutes. He was declared dead at 6:16 p.m.

News Scan

| No Comments
Maryland Man Sentenced for Killing Cellmate:  A Maryland inmate already serving a 60 year sentence for killing his girlfriend in 2008 has been ordered to serve another sentence after pleading guilty to murdering his cellmate early last year.  The Associated Pres reports that 44-year-old Vernon Cowan killed his cellmate because he wanted his own private cell. He was sentenced to serve an additional 30 years in prison after pleading guilty to second-degree murder.  The inmate killed, 51-year-old Ricky Bailey, was serving a life sentence from Connecticut and was transferred to the Maryland prison under an interstate prisoner agreement.

TX Obtains New Supply of Execution Drugs: Following its most recent execution last night, the Texas Department of Criminal Justice has announced they have obtained a new supply of execution drugs available for use after the existing supply expires at the end of the month.  Michael Graczyk of the Associated Press reports that officials will not reveal where they purchased the drugs to protect the privacy the supplier.  The state's next execution is scheduled for April 3.

Pedophile Pleads Guilty to Rape, Murder
: A New York man on bail awaiting sentencing on federal child porn charges has plead guilty to the carjacking and murder of a mother and the rape of her 10-year-old daughter.  The Associated Press reports that while out on bond, 30-year-old David Renz removed his court-ordered GPS monitoring device, carjacked a woman and her daughter in a mall parking lot.  While in custody for the murder and rape, Renz was sentenced to 30 years on the porn charges.  He could be sentenced to life without parole for the carjacking, rape and murder.  His sentencing is set for May 16.

On the Success of Community Monitoring...

| 1 Comment
This article speaks for itself.  It begins:

A New York man who cut off his ankle monitor before killing a woman and raping her 10-year-old daughter was sentenced Wednesday to 30 years in federal prison for possessing more than 11,000 images and 1,100 videos of child pornography.

U.S. Attorney Richard Hartunian said 30-year-old David Renz will begin the 30-year sentence after completion of whatever sentence he receives for his guilty plea in state court for the murder and rape. U.S. District Judge Norman Mordue went beyond the 19 to 24 years recommended by federal sentencing guidelines.

Good grief.  The only encouraging part is the next paragraph:

Sentencing on the state charges is scheduled for May, but it has been postponed several times while the U.S. Department of Justice decides whether to charge Renz on a federal carjacking statute that could carry the death penalty if he is convicted.

Texas Execution

| 1 Comment
Michael Graczyk reports for AP:

A former San Antonio rap musician has been executed for a knife attack and robbery that left a recording studio owner dead.

Ray Jasper was injected with a lethal dose of pentobarbital Wednesday for the November 1998 stabbing death of 33-year-old David Alejandro.

Jasper had acknowledged he slit Alejandro's throat to steal equipment from the San Antonio studio. But he insisted a partner was responsible for Alejandro's fatal stab wounds.

In Enmund v. Florida (1982) the Supreme Court limited the use of the death penalty on an accomplice in the underlying felony "who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed."  In Tison v. Arizona (1987) the Court included "reckless indifference to human life" as well.

Jasper would have been eligible even under the earlier, more restrictive Enmund rule.  Slitting a person's throat is "lethal force" even if another wound is the actual cause of death.

This case is a good example of why accomplice liability under the felony murder rule is proper.  Two miscreants go in with knives to attack and rob a person.  Do we really need to prove beyond a reasonable doubt which one actually inflicted the death-causing wounds?  No.  They both intended that deadly force would be used and knew death of the victim was a very real possibility.  If we have to prove which one inflicted which wounds, both will often escape the deserved punishment.

One of the crazier allegations I hear from people who read and believe the anti-death-penalty propaganda is that under the Texas "law of parties" a person can be put to death merely for being present at the killing.  Nonsense.  That isn't the law of Texas (Penal Code §7.02), plus the Enmund/Tison rule provides a further limit.

Chemerinsky and Ginsburg

Jennifer Rubin has this column at the WaPo:

Erwin Chemerinsky, the liberal (are there any who aren't?) dean of University of California at Irvine's law school, recently wrote to tell Supreme Court Justice Ruth Bader Ginsburg her days are numbered so she should get off the court before she dies. No, really, he did. He opines: "She turned 81 on Saturday and by all accounts she is healthy and physically and mentally able to continue. But only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values." Regardless of what you think of Ginsburg (or of Chemerinsky), this is a rotten, obnoxious suggestion.

First, on a human level, it's disgraceful to tell an older person to stop doing what they are doing because they might keel over any day. If Chemerinsky's parents are living I'm sure he would be offended if someone told one of them to get out of the way before they croak on the job. Former Colorado governor Richard Lamm got in a heap of trouble when he opined that rather than undertake life-prolonging measures the elderly have "a duty to die and get out of the way. . . . Let the other society, our kids, build a reasonable life." It is quite simply an affront to human dignity to predict the timing of another person's death and tell them to make room for others for the good of society.

News Scan

| No Comments
Illinois Man Pleads Guilty to Murdering Niece: An Illinois man agreed to plead guilty to first-degree murder for his role in the death of his 7-year-old niece.  Paul Donnelley of the Daily Mail reports that 22-year-old Justin DeRyke was babysitting the girl late last year when he claims that she pierced her neck after falling onto a pile of sticks, so in order to 'put her out of her misery', DeRyke slit the child's throat and stabbed her in the heart five times before wrapping her body in plastic bags and dumping her outside.  As part of the plea deal, other charges against DeRyke were dismissed, and he will be sentenced to spend the rest of his life in prison.  

Convicted Rapist-Murderer Sentenced to Life: A Michigan man has been sentenced to life in prison without parole after being convicted of the rape and murder of Jennifer Phillips.  John S. Hausman of M Live reports that the man responsible, 36-year-old Christopher Wallace, was a repeat rapist with prior convictions for sexual assault.  Along with the life sentence, Wallace will serve a separate but concurrent sentence for a cold-case rape he was found guilty of committing in 2005.

LA House Backs Expansion of Death Penalty: A Louisiana House committee has voted in favor of advancing legislation that would expand the application of the death penalty.  Michelle Millhollon of The Advocate reports that House Bill 278 would make the killing of any prison employee a capital crime punishable by death.  Presently, Louisiana law considers the murders of firemen, peace officers, young children and the elderly as capital crimes.

Federal District Judge Amy St. Eve (ND Ill.), Illinois Circuit Judge Charles Burns, and Michael Zuckerman have this article with the above title in Duke Law & Technology Review.  Here is the abstract:

This Article presents the results of a survey of jurors in federal and state court on their use of social media during their jury service. We began surveying federal jurors in 2011 and reported preliminary results in 2012; since then, we have surveyed several hundred more jurors, including state jurors, for a more complete picture of juror attitudes toward social media. Our results support the growing consensus that jury instructions are the most effective tool to mitigate the risk of juror misconduct through social media.  We conclude with a set of recommended best practices for using a social-media instruction.
The introduction section (footnotes omitted) follows the break.

News Scan

| No Comments
Convicted Murderer Suspected of Killing Again: Authorities at a Northern California prison have named convicted killer Floyd Bailey as the prime suspect in the murder of his cellmate a few days ago.  The Associated Press reports that 50-year-old Ervin Savoy, who was serving a 25 years to life sentence, was found unresponsive with severe injuries in the cell he shared with Bailey Saturday morning, prompting the District Attorney's Office to launch a homicide investigation.  Bailey was convicted of first-degree murder in 1993 and was serving a life sentence. 

OK Struggling to Obtain Drugs for Upcoming Executions: Oklahoma's Attorney General has announced that the state has yet to come up with the drugs needed to carry out two upcoming executions, prompting the inmates' attorney to seek a delay.  The Associated Press reports that the state has approved the use of a firing squad or electrocution as alternative methods, but they are only to be used if lethal injection has been declared unconstitutional. The state is working on an alternative to one of the drugs used in the three-drug cocktail, and still plans to execute convicted murderer Clayton Lockett this Thursday.

Conn. Man Sentenced to Death for the Second Time: A Connecticut jury has sentenced Richard Roszkowski to death for the second time after a judge overturned his original sentence based on an error made during jury instructions at his first sentencing hearing.  The Associated Press reports that Connecticut abolished the death penalty for murders committed after April 24, 2012, but still allows it for murderers who killed their victims prior to the law's enactment.  Roszkowski was convicted in 2009 of capital murder for killing two adults and a nine-year-old girl in 2006.

A Death Sentence in Connecticut

| No Comments
A second jury has unanimously reimposed the death penalty on a man who murdered three people, including 9-year-old Kylie Flannery, in Bridgeport, Connecticut in 2006.  AP has this story.

The Connecticut Legislature voted in 2012 to abolish the death penalty for future cases but not past ones.  CJLF's brief in the Connecticut Supreme Court supporting the prospective-only feature is here.

This verdict illustrates why the repeal vote was wrong.  Not once but twice, 12 citizens have decided unanimously that any punishment less than death for this particular crime is insufficient.  By taking that option off the table for future cases, the Connecticut Legislature has turned its back on justice.

Abolition of the death penalty is essentially an elitist cause.  People who live in safe, leafy neighborhoods can wring their hands over the poor, unfortunate wretches on death row and ignore the suffering of the people these monsters have murdered as well as the families left behind.  For politicians, a vote to abolish gets them good press and brownie points with some well-heeled supporters.  It appears not to hurt them with the general public as long as crime remains low on most voters' list of priorities.

In recent years, crime has been off the radar screen as wars in the Middle East, the financial crisis, the recession, and the fight over health care have taken center stage and while crime rates have dropped to lows unseen in decades.  In part, "tough on crime" has been a political victim of its own success.  In part, it has been undermined by the ebb and flow of unrelated historical events.

Will this be the year crime reappears on the voters' radar?  In Colorado, it is an element of Gov. Hickenlooper's surprising electoral weakness.  In California, backlash against Gov. Brown's "realignment" folly may be an element in California Republican Party's return from the grave.  We will have to wait and see.

News Scan

| No Comments
Convicted Killer Sentenced to Death: A South Carolina man has been sentenced to death for his role in the kidnapping and murder of an 8-year-old girl in 2009.  The Daily Mail reports that 55-year-old Ricky Blackwell, who was recently divorced from the victim's mother, choked and shot the girl four times in front of her mother and his grandsons in what prosecutors say was an act of revenge.  Blackwell's execution date has been set for June 14, but will likely be delayed once his attorneys file an appeal.

CA High Court Upholds Death Sentence: California's Supreme Court unanimously upheld the conviction and death sentence of  a man found guilty of kidnapping and murdering a teenager nearly 20 years ago.  Met News reports that Joseph Montes was charged with first-degree murder after he and a group of friends kidnapped and carjacked a southern California teenager so that they could to get to a birthday party. They forced the boy to wait in the trunk while they attended the party and then proceeded to drive him to a remote location where he was shot and left to die.  Montes' co-defendants were also found guilty, and were sentenced to life in prison without parole.  

KS Man Sentenced to Two Life Terms: A Wichita, Kansas man has been sentenced to two life terms plus 228 years in prison after being found guilty on two counts of first-degree murder.  Hurst Laviana of the Wichita Eagle reports that 21-year-old Shawn Brown, along with his two brothers, shot and killed two men in separate drug-related crimes early last year, marking the city's first two homicides in 2013.  Brown's oldest brother was sentenced last month to life in prison for his role in the murders, the youngest brother is scheduled to be sentenced next month.

First Pot, then............

| No Comments

The drug legalization camp breaks down into several components.  There are those who would legalize everything and say so.  I admire these people for their honesty if not their judgment.  Then there are those who would legalize only pot and keep the harder drugs illegal.  I admire their judgment, as far as it goes, which for my money is not far enough.

Then there are those who would legalize pot, but remain silent or remarkably fuzzy about what they want to do about the harder drugs.  I admire their shrewdness in recognizing a dumbed-down culture.  Their judgment, while poor, vastly outstrips their honesty.

For a better look at what's coming up after pot gets the green light, take a look at this article.

Hat tip to former Philadelphia police officer Mike Tremoglie.

Mortgage Fraud, No Big Deal

| No Comments
Mortgage fraud  --  that is, millions of non-credit worthy mortgage applicants lying about their income, assets and debt, and bankers turning a willfully blind eye to it  --  was the major cause of the housing crisis several years ago, and the ensuing financial collapse that ushered in the Great Recession.

The following massive destruction of wealth, lowered incomes, persistent high unemployment and slow growth during the so-called "recovery" have caused considerable suffering, particularly among the young looking for work.  My nephew, for example  --  a highest honors graduate of Duke this last May and a great kid  --  couldn't get a job until two months ago.

So you would think prosecuting mortgage fraud cases would be a front-and-center item for the Justice Department, right?

Think again.

As an example of how the country's reaction to murder descends further into cultural mush, one could hardly do better than this zinger from CBS News in Boston:

For the first time ever, this year psychologists will be stationed along the Boston Marathon route to talk with people who may feel emotionally overwhelmed.

That's it, people! Instead of expeditiously trying the bomber and giving him the execution he deserves, the thing to do is line the parade route with shrinks because, ya  know, people might be anxious:

Between now and race day, Dr. Chris Carter of Spaulding Rehab Hospital says it's likely we'll feel a range of emotions.

Carter believes people may be more reactive.

"They may be feeling a little more on edge. A little more tearful perhaps or a little more irritable and less patient," he said.

When justice is replaced by psychobabble, this is what you  get.

Jacques Billeaud reports for AP:

A man convicted of killing nine people, including six monks, during a robbery at a Buddhist temple in metro Phoenix was sentenced Friday to 249 years in prison, marking the end of one of the most notorious criminal cases in Arizona over the past 25 years.
The crime was committed in 1991.  The original conviction and effective-life sentence were upheld by the Arizona courts but overturned by the Ninth Circuit on a Miranda claim in 2011.  Judge Tallman noted in dissent:

The Arizona courts did everything we can demand of state courts. The trial court held a ten-day evidentiary hearing before concluding the Miranda warnings were adequate and the confession was voluntary. More importantly, the jury independently and necessarily concluded the confession was voluntary and reliable in convicting Doody for his role in the murders. The Arizona Court of Appeals affirmed this determination in a comprehensive, reasoned opinion. Its holding on the facts presented fell squarely within the bounds of Supreme Court precedent on voluntariness.
*                                               *                                          *
In violation of AEDPA, the majority adjusts the scales and weighs the facts anew. This sort of appellate factfinding on habeas review is contrary to the congressionally mandated standard of review.
Notwithstanding the AP report, it's not the end.  There will be another appeal, another habeas petition.
As noted in this post last month, parenting issues are of interest here because bad parenting is one of the actual "root causes" of crime.  Ruben Navarrette has this column on the parenting style that produced a brat so incredibly spoiled that she sued her parents for support and education even though she is an adult.

Sean Canning, a former police chief, admits that he was better at laying down the law with the officers under his command than with his own daughter.

"I'm a liberal, liberal parent," Sean told the New York Post. "I wish I could have grown up in my house."

You have to wonder if the chief has figured out that, with young people, being too lenient often does more harm than being too strict.

From media reports, it seems that the Cannings wanted to raise a child with a lot of self-esteem.

Mission accomplished. When you sue your own parents, you're no shrinking violet. The trouble is, what Rachel Canning has is what psychologists call "cheap" self-esteem. The real thing comes from striving, failing, persevering and eventually succeeding -- not from having your parents clear a path for you.

What is astonishing and disheartening to me is how many educated and intelligent people do not know the basic fact that permissive parenting is just as bad as authoritarian.  We have known that since Diana Baumrind's pioneering research in the 60s. 

This guy was a chief of police and he didn't know that.

The optimum balance, BTW, is what Baumrind called "authoritative" parenting, the kind we saw modeled on television from Father Knows Best to Andy Griffith to The Cosby Show.

News Scan

| No Comments
Driver in Deadly Crash had Lengthy Criminal Past: Authorities in Austin, Texas have named 21-year-old Rashad Owens as the person responsible for running over several concert-goers at the South by Southwest festival earlier this week, leaving two dead and nearly two dozen injured.  Fox News reports that Owens, who has been arrested multiple times for DUI, intentionally drove into a crowd of people in an effort to flee from officers attempting to pull him over.  Owens faces charges of capital murder and aggravated assault with a deadly weapon, and if convicted, faces a possible death sentence.

Former Charles Manson Follower One Step Closer to Parole: A California board has once again granted parole for ex-Charles Manson follower Bruce Davis, but he still must get approval from Governor Jerry Brown, who chose to deny his request for parole just last year.  The Associated Press reports that 71-year-old Davis, who was sentenced with Manson, has spent the last 43 years behind bars for his role in the murders of two men in 1969.  Former California Governor Arnold Schwarzenegger also denied Davis' request for parole in 2010.

TN to Consider Using Electric Chair for Future Executions: Tennessee Attorney General Bob Cooper has announced that the state can begin lawfully using the electric chair as a method of execution if lethal injection is stopped by the courts or if the state is unable to acquire lethal injection drugs.  Sheila Burke of The Republic reports that Tennessee has not executed a condemned murderer since 2009.  The last time the state used the electric chair was in 2007 when convicted quadruple-murderer Daryl Holton requested that it be used.

News Scan

| No Comments
Murder Suspect On Probation When Homicide Occurred: A West Virginia man released from jail only a few weeks ago has been arrested as the prime suspect in the murder of a 72-year-old woman.  Edward Marshall of The Journal reports that 37-year-old William Jackson, who was released from custody and put on probation February 21, was arrested on Tuesday on one count of first-degree murder and six counts of fraud, after authorities say he stole the victim's bank card and made several fraudulent transactions.  If convicted of murder, Jackson faces a possible life sentence. 

Bill Would Put Habitual Property Criminals Behind Bars: A Hawaii lawmaker is seeking to crack down on the state's repeat burglars by requiring that offenders be put behind bars instead of being placed on probation. Tim Sakahara of Hawaii News Now reports that state Representative Chris Lee is proposing a bill that would eliminate probation as a sentencing option for anyone convicted of three or more burglaries within five years and require a judge to sentence the individual to serve up to five years behind bars.  A community meeting about the bill is scheduled to take place later this week.

Attorney General Pushes Sentence Reductions For Drug Dealers: In an effort to reduce the federal prison population, Attorney General Eric Holder is encouraging the U.S. Sentencing Commission to reduce sentences for non-violent drug offenses.  Evan Perez of CNN reports that Holder believes the change would make the federal justice system more effective and efficient, and if adopted, could reduce the federal prison population by more than 6,000 inmates in five years.  The plan would affect individuals convicted of so-called low level offenses while maintaining tough penalties for violent criminals.

Is There Anything They Won't Say?

| No Comments
I really don't mean to be taking after defense lawyers (well, not any more than I usually do), but sometimes a story just grabs you.  This one is a real peach.

The general context is familiar.  A thug gets mad at his wife/girlfriend because she's had enough and wants to break up.  This is not acceptable, so she must be punished.  The punishment consists of killing their kid.  I have used stories like this when I debate the death penalty at law schools, see, e.g., this and this.

Today's story is neat, in the sick sort of way these stories tend to be, because of defense counsel's "argument."  It was a difficult case, since apparently no one contested the fact that Mr. Nicey ushered his two year-old into icy water weighted down with a tire iron.  

On the one hand, you have to commend counsel's unusual honesty:

In his opening statement, defense attorney Ryan Moriarty told the jurors their task is to decide "what form of homicide applies to this defendant...."We're not asking you to presume Arthur Morgan innocent of responsibility," he said. "It is our contention that he did not act knowingly and purposefully on that day but, rather, recklessly.

OK, fair enough.  Unfortunately, Mr. Moriarty added:

"Was Tierra thrown off a bridge, or was she placed there, still alive, for God to determine the outcome?"

Yes, well, when you throw a two year-old in icy water weighted down, you can take a pretty good guess how "God is going to determine the outcome."  But we appreciate counsel's insight.

Fatal Vision

| 1 Comment
Gene Weingarten has this story in the WaPo on Joe McGinniss, who died Monday.

McGinniss was invited by Dr. Jeffrey MacDonald and his legal team as MacDonald was on trial for the murder of his wife and two daughters.  He was "to be a fly on the wall" and tell the story of the team's fight to free the innocent man wrongly accused.  A funny thing happened on the way to the verdict.  McGinniss came to realize that MacDonald was guilty.

Weingarten writes:

But I am writing this because of "Fatal Vision," which was as good and as rigorous a work of nonfiction as there is. It belongs right here, in the same sentence as Truman Capote's "In Cold Blood," which may be the greatest true-crime book ever written.

What was McGinniss supposed to have done when he realized, midway through the reporting, that the man he was writing about had lied to everyone? That he had killed his wife and older daughter in a rage -- and then calmly, methodically hacked to death his sleeping two-year old, stabbing her 33 times with a knife and ice pick, just to strengthen his alibi? Was McGinniss required to dutifully inform the murderer that he now believed him guilty, and invite him to withdraw his cooperation if he wished, possibly killing the book outright, but certainly killing it as a meaningful, enlightening, powerful examination of the mind of a monster?

News Scan

| No Comments
Habitual Criminal Leads Police on High Speed Chase: A Colorado man with a lengthy criminal record dating back to 2003 was arrested this morning after leading police on a high speed chase that resulted in a variety of charges including carjacking and kidnapping.  Erik Ortiz of NBC News reports that the incident began this morning when 28-year-old Ryan Stone, who was already wanted on two warrants, stole an SUV from a gas station with a 4-year-old boy inside, he eventually ditched the SUV and proceeded to carjack two additional vehicles before police were finally able to take him into custody.  A police officer attempting to lay stop spikes in the road was hit by Stone and remains in the hospital in serious condition.

Inmate Pleads Guilty to Murder to Avoid Possible Death Sentence: An inmate at a federal prison in California has plead guilty to murder for his role in the 2008 killing of a correctional officer, eliminating the possibility of a death sentence.  Scott Smith of the Associated Press reports that 48-year-old James Leon Guerrero was already serving a life sentence for bank robbery when authorities say held a corrections officer while another inmate stabbed him more than 20 times, resulting in the officer's death.  The other inmate, Jose Sablan, is scheduled to stand trial in April 2015, and if convicted, faces a possible death sentence.

OpEd Questions WA Gov's Death Penalty Announcement:  Washington Governor Jay Inslee's announcement last Tuesday that he was suspending the death penalty in order to "join a growing national conversation" has garnered praise from opponents of capital punishment.  There was no hint that he might do this in 2012, when Inslee was seeking election.  Washington Congressman and the former lead investigator in the Green River Killer case, Dave Reichert, has this OpEd piece in the Seattle Times raising questions about the wisdom of Inslee's decision. 
Sadie Gurman has this story for AP in Denver about Jaacob Vanwinkle:

Vanwinkle had been required to register as a sex offender since 2004, when he was convicted in Indiana of child molestation and other sex crimes involving girls as young as 5 and 7.
*                               *                               *

Vanwinkle served less than two years of his seven-year sentence and was in and out of prison in Indiana for parole violations and theft. He was released in 2012. Less than two months later, police in Colorado say his pregnant ex-girlfriend told them he beat her. She told officers he tied her wrists with shoe laces, held a pillow over her head and threatened to rape her.

Vanwinkle pleaded guilty to a misdemeanor count of domestic violence and was sentenced to 18 months in Fremont County jail.

So what's he been up to lately?

Authorities said Tuesday that they were pursuing a man who failed to register as a sex offender before he was arrested and accused of killing a mother and her two young children and sexually assaulting her teenage daughter in southern Colorado.

Sheriff's officials said they were seeking an arrest warrant for Jaacob Vanwinkle, 31, before he was apprehended Sunday night at the Canon City home where the three bodies were found. The victims included a 5-year-old boy, a 9-year-old girl and their 35-year-old mother. The woman's 15-year-old daughter fled to a neighbor's house, saying she had been raped.

News Scan

| No Comments
Judge Rules Against Delaying Upcoming Executions: An Oklahoma judge has ruled against delaying the executions of two death row inmates despite a legal challenge to the origination of the execution drugs.  Bailey Elise McBride of the Associated Press reports that Oklahoma state law protects the anonymity of pharmacies that provide the state with their supply of execution drugs.  Clayton Lockett and Charles Warner, both convicted murderers who have been denied clemency, are scheduled to be executed March 20 and March 27 respectively. 

Peru to Extradite Joran Van der Sloot to the U.S. in 2038
: Officials in Peru have announced they will extradite Joran Van der Sloot, the main suspect in the 2005 disappearance of an Alabama teen, to the United States after he finishes serving a 28-year murder sentence in 2038.  Joe Kemp of the New York Daily News reports that Van der Sloot will face charges in the U.S. alleging that he extorted and defrauded the mother of missing 18-year-old Natalee Holloway after authorities say he took a $25,000 down payment from her family in exchange for leading lawyers to the teen's body.  Holloway, who disappeared while on a high school graduation trip to Aruba, has never been found and has since been declared dead by an Alabama judge.

Convicted Felon Arrested 66 Minutes After Release From Prison: An Arizona man was released from prison and free for less than two hours before being arrested again and sent back to jail.  Fox Phoenix reports that 34-year-old Daniel Clegg had been free for a little over an hour when he was pulled over for making several traffic violations, the responding officer noticed that Clegg's shirt was covered in marijuana flakes and that he had a loaded gun sitting on top of his prison paper work.  He was immediately arrested.  He has been charged with marijuana possession, possession of drug paraphernalia and misconduct involving a weapon.

Nominee for USCA 6?

| No Comments
Andrew Wolfson reports for the Louisville Courier-Journal:

Kentucky Supreme Court Justice Lisabeth Hughes Abramson of Louisville is being vetted by the FBI for a seat on the U.S. Court of Appeals' 6th Circuit.
I have it on solid local authority that she would be a vast improvement over the departed Judge Boyce Martin.

How Bad Can a Network Be?

| 1 Comment
Dudley Sharp has this post at ProDPinNC on the "Death Row Stories" series at CNN.  It would appear that CNN is engaging in "actual malice," as defined by the Supreme Court 50 years ago Sunday, a "statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false."

Need a Defense Lawyer?

| 1 Comment
I have no idea whether this is real.  It's bad enough that it could be.

News Scan

| No Comments
Convicted Killer Awarded Nearly $500,000: An Illinois man convicted of murdering seven people and sentenced to life in prison has been awarded nearly $500,000 after filing a lawsuit in which he alleged that he was punched in the face by a jail guard.  Michael Tarm of the Associated Press reports that 41-year-old James Degorski was sentenced to life in prison after authorities say he and an accomplice shot and stabbed two restaurant owners and five employees during a robbery attempt at a Chicago restaurant in 1993.  Degroski filed a civil lawsuit with the court claiming that a jail guard punched him the face after his arrest, leaving him with a broken cheekbone and eye socket.  Prison officials may potentially seize the money awarded to Degroski in order to cover his incarceration costs.  

FL High Court to Hear Case Involving Juvenile Life Sentences: A Florida woman convicted of murder when she was 15-years-old and sentenced to life in prison is asking the Florida Supreme Court to be re-sentenced under the US Supreme Court's 2012 ruling in Miller v. Alabama which prohibits mandatory sentences of life without parole for juveniles.  Kareem Copeland of the South Florida Times reports that attorneys for Rebecca Falcon are asking that Miller be applied retroactively to juveniles sentenced prior to the ruling. A lower court has rejected that request.  Legislation providing for sentencing review for juveniles convicted of serious crimes is currently moving through the Florida legislature. 

Felon That Inspired Three Strikes Law Arrested Again: The California man who inspired adoption of the state's Three Strikes and You're Out law, law was arrested for beating his wife on February 26, three months after being released from prison.  The Associated Press reports that 49-year-old Douglass Walker was convicted of being an accessory to murder in the 1992 killing of 18 year-old Kimber Reynolds, but was released after serving only half of his nine-year prison sentence.  He continued to commit crimes and has been in and out of prison ever since.  He was released from prison last November and placed on light supervision as a low-level offender under the state's Realignment law. 


| No Comments
The US Supreme Court decided one civil case today and took up one civil case for full briefing and argument.  (Yawn.)  The next scheduled session day is two weeks from today, March 24.

News Scan

| No Comments
Mom Charged With Attempted Murder: The South Carolina woman who drove her minivan into the Atlantic Ocean with her young children inside has been charged with three counts of attempted first-degree murder. Erin McClam of NBC News reports that 32-year-old Ebony Wilkerson locked the doors of her vehicle, rolled up the windows and told her three children to close their eyes and go to sleep as she drove the family vehicle into the ocean earlier this week.  Witnesses ran into the surf and managed to pull the woman and children to safety.  Wilkerson, who is nearly seven months pregnant, has also been charged with three counts of aggravated child abuse. 

Teen Charged in Murder of 12-Year-Old Friend: A 15-year-old New Mexico boy accused of killing his 12-year-old friend last month has been indicted by a grand jury and charged with first-degree murder and tampering with evidence.  The Associated Press reports that the boy will most likely be charged as an adult, but the presiding judge will have the option to sentence him as a youthful offender.  New Mexico law allows the state to charge minors as adults as long as they are at least 14 years old.

Rare Death Penalty Trial Set to Begin in Hawaii: A murder trial is scheduled to begin next week in Hawaii for a man accused of beating his daughter to death.  If convicted the murderer could be sentenced to death even though Hawaii abolished capital punishment more than 50 years ago.  Jennifer Sinco Kelleher of the Associated Press reports that because the murder occurred on a military base, the defendant, Naeem Williams could face a possible death sentence, which is available under federal law.  It is rare for the federal government to seek the death penalty in a state that doesn't allow it. Currently, only seven of the 59 federal inmates on death row come from states that had abolished the death penalty at the time of their sentencing.

LA radio's John and Ken are holding a live on-air event to gather signatures for an initiative to fix California's death penalty.  You can listen live here.  Former Governor Pete Wilson is on as I type this.

Update:  The show is over, but it was a big success.

The campaign website is here.  You can order printed petitions to sign and get others to sign, and you can make a donation online.

News Scan

| No Comments
TX Man to Be Tried for Crime he Committed as a Teen: A Texas judge has ruled that a man who poured gasoline on a young boy and lit him on fire when he was a teenager can be tried as an adult for murder after the victim died from his injuries nearly 13 years later.  The Associated Press reports that 28-year-old Don Collins was 13 when he doused the boy in gasoline and set him on fire.  The victims suffered burns over 99% of his body which doctors say resulted in skin cancer causing his death in 2011.  Collins was originally arrested in 1998 for the crime and spent several months in juvenile detention, but prosecutors were forced to drop the case due to a lack of evidence.  Shortly before the victim died, he gave a videotaped deposition accusing Collins of sexually assaulting him two weeks prior to the attack prompting investigators to reopen the case.
Arrest Made in 2011 Murder of TN Girl: Authorities in Tennessee have arrested 29-year-old Zachary Adams and named him as the prime suspect in the 2011 kidnapping and murder of 20-year-old nursing student, Holly Bobo.   Adrian Sainz of the Associated Press reports that Adams was charged with murder despite the fact that authorities have yet to locate the girl's body.  Investigators believe that the evidence they collected from Adams' home will assure a conviction.  Prosecutors are considering asking for a death sentence if Adams is found guilty.

Delaware Unable to Carry Out Executions: A severe shortage of execution drugs has left the Delaware prison system unable to carry out executions of its 17 condemned death row inmates.  Randall Chase of the Associated Press reports that Delaware, along with several other states, have been struggling to find pharmacies willing to sell lethal injection drugs after manufacturers refused to sell products used in executions.  Delaware hasn't executed an inmate since April 2012. 


News Scan

| No Comments
Prisoner Stabs Fellow Inmate 87 Times: A Maine State Prison inmate has been charged with first-degree murder after authorities say he stabbed a fellow inmate 87 times.  David Harding of the New York Daily News reports that 35-year-old Richard Stahursky, who was originally incarcerated for burglary and theft, told prison officials that he stabbed the other man because he blamed him for this loss of his prison job.  While incarcerated, Stahursky has been convicted multiple times for trafficking.  In 2011 he was sentenced to eight additional years for assaulting a corrections officer.

Convicted Killer to be Released From Prison Early: The family of a murder victim is outraged after their mother's killer is set to be released from prison after spending less than half of her sentence behind bars.  Jennifer Jensen of ABC 10 reports that 69-year-old Delores Jackson is scheduled for release after serving 10 years of a 25-year sentence so she can be placed in a convalescent home and receive cancer treatment.  Jackson was convicted of murder in 2004 for killing an elderly woman who had been providing her financial assistance.  She stabbed the victim more than 50 times and then watched her die.  

Police Solve Decades-Old Homicide: Police in a Northern California town have closed a homicide case that had been left unsolved for more than thirty years. Ian McDonald of Fox 40 reports that the case involved a woman who was found brutally beaten and murdered in her Fairfield, CA home in August of 1983.  At the time police collected DNA and fingerprints from the crime scene, but did not get a match from the national database.  In 2012 the case was re-opened and the fingerprints matched 48-year-old Robert Hathaway, who was childhood friends with the victim's son.  After being questioned by investigators last month, Hathaway hanged himself in his home and left behind a short note explaining he "took the coward's way out."  

Adegbile Nomination Defeated

| 1 Comment
Susan Davis reports for USA Today:

The U.S. Senate narrowly defeated President Obama's nominee to oversee the Justice Department's Civil Rights Division due to Republican and law enforcement objections to the role he played in the defense of convicted cop-killer Mumia Abu-Jamal.

Only 47 senators, all Democrats, voted to advance Debo Adegbile's nomination while 52 senators voted to block him, including 7 Democrats. Vice President Biden presided over the vote in the event he could break a tie, which was unnecessary after Democrats failed to muster enough support.

Of course, supporters say the predictable things:

Democrats, lawyers groups and civil rights activists hailed Adegbile as one of the nation's leading civil rights attorneys with impeccable credentials honed over two decades in the profession. He has worked as an aide in the U.S. Senate as well as the NAACP Legal Defense and Education Fund and has argued two civil rights cases on voting rights before the Supreme Court.

"There is no question about his competence," said Senate Minority Whip Richard Durbin, D-Ill., prior to the vote.

Senator Durbin is actually the Majority Whip, but that's a nice thought.  Maybe next year.  [Update: The article has been corrected.]  Did Senator Durbin say that competence is all that matters when Justice Alito was nominated?  I don't think so.  As always in Washington, "where you stand depends on where you sit."

See also yesterday's post, containing links to numerous earlier posts on this matter.

Aiding, Abetting, and Guns

| No Comments
The US Supreme Court has decided Rosemond v. United States, exploring yet another facet of the federal law on use of a gun in a crime, 18 U.S.C. § 924(c).  This case involves the "what did he know, and intend, and when did he know/intend it" aspect when an accomplice to a robbery uses a gun.

We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.
*                              *                           *
An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope--that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen ... to align himself with the illegal scheme in its entirety--including its use of a firearm.
In practice, proving that a participant knew in advance that another participant was armed is going to require accomplice testimony in nearly every case, with all the problems that entails.

Car Chase Argument

| No Comments
The US Supreme Court heard oral argument today in yet another case where the family of a person killed by police while engaging in extremely reckless, life-endangering conduct claims it is the police's fault rather than the deceased's, and therefore the police (and ultimately the taxpayers) should pay them big bucks.  The transcript in Plumhoff v. Rickard, No. 12-1117, is here.

Adam Liptak reports for the NYT:

The Supreme Court seemed to have little trouble concluding during an unusually one-sided argument on Tuesday that Arkansas police officers who had used deadly force to end a high-speed car chase could not be sued by the family of the driver.

Adegbile Nomination in Trouble

| No Comments
Wesley Lowery has this post at The Fix, the WaPo's political blog, on the nomination of Debo Adegbile to head the USDoJ Civil Rights Division.  It is titled, "Remember Mumia Abu-Jamal? He may derail Obama's pick for top civil rights post."

Under new Senate rules approved last November, Adegbile will need to secure a simple majority of senators -- 51 votes -- to clear a procedural hurdle before he is confirmed. But Adegbile's confirmation is at risk of falling short of the votes needed as Democrats face pressure from Republicans and several national law enforcement groups who oppose his nomination.

The first sign that the Adegbile nomination could be in real trouble came last week, when Sen. Bob Casey (D-Pa.) said he would not vote in favor of confirmation.
See earlier posts Jan. 9, Feb. 4, Feb. 6, Feb. 6 (again), Feb. 19, and Feb. 26.

News Scan

| No Comments
CA Supreme Upholds Death Sentence: In a 6-1 decision, the California Supreme Court upheld the death sentence for a convicted murderer who was forced to wear a stun belt during his trial.  Maura Dolan of the Los Angeles Times reports that Jonathan Jackson was appealing his sentence based on the claim that the fear of being electrically shocked by the belt during trial negatively affected his demeanor in front of jurors, resulting in a guilty verdict.  The justices ultimately sided with the prosecution, noting that there was no evidence to suggest that jurors knew Mr. Jackson was wearing the stun belt under his clothing.

FL Considering Tougher Sexual Predator Bills: A package of bills that would crack down on sexual predators is before the Florida state senate on its first day in session.  Tonya Alanez and Dana Williams of the Sun-Sentinel report that the bills are designed to toughen sex-crime sentences, increase community monitoring after release, and keep more of the most dangerous predators incarcerated after their prison terms end.  Another bill would create a 50-year minimum sentence for anyone convicted of raping children, the developmentally disabled or the elderly.

Convicted Killer Denied Clemency: The Oklahoma Pardon and Parole Board has rejected the clemency request of convicted murderer and death row inmate, Charles Frederick Warner.  The Associated Press reports that Warner was convicted of rape and first-degree murder in the death of his girlfriend's 11-month-old daughter in 1997.  He is scheduled to be executed March 27.

News Scan

| No Comments
Accused Boston Bomber Wants Charges Dismissed: Attorneys for accused Boston Marathon bombing suspect, 20-year-old Dzhokhar Tsarnaev, are arguing to have multiple charges against him dropped, saying a majority of them are repetitive and that the number of charges could influence jurors when deciding whether or not he should be sentenced to death.  Denise Lavoie of the Associated Press reports that more than half of the 30 federal charges brought against Tsarnaev carry a possible death sentence.  Opening statements in the trial are set to begin November 3.

Supreme Court Debates IQ Testing in Death Penalty Case: Supreme Court justices are set to hear arguments today on whether Freddie Lee Hall is "smart enough" to be executed.  Michael Doyle of McClatchy Newspapers reports that Hall, who was convicted of a double murder nearly 40 years ago, has an IQ that hovers in the low 70's, prompting his attorneys to claim he is mentally retarded and therefor unable to be executed.  A 2002 Supreme Court ruling barred states from executing mentally retarded murderers and, until now, has left it up to the state to decide the standards qualifying a defendant as mentally disabled.  The Court's decision on the matter is expected to come this June.  Nina Totenberg of NPR also has an article reporting on the case.

Murder Trial Begins for Olympic Sprinter: Opening testimony began today in a South African courtroom for the murder trial against Olympic sprinter and amputee track star Oscar Pistorius.  The Associated Press reports that 27-year-old Pistorius is on trial for the murder of his girlfriend in February 2013 and has pled not guilty.  Pistorius claims that the killing was accidental and a result of mistaken identity.  His fate is in the hands of the presiding judge, as South Africa has no trial by jury.  If  convicted, he faces a possible life sentence.

Today the Supreme Court heard oral argument in Hall v. Florida, regarding when a murderer is deemed mentally retarded so as to be exempt from execution regardless of how heinous, callous, premeditated, or sadistic his actual crime really was.

In the course of this discussion, there was much talk about the 95% confidence interval in statistics.  Contrary to myth, this 95% number is nothing but a conventionally adopted rule of thumb.  There is nothing magic about it, and there is no compelling reason to use 95% in every circumstance, rather than some other number tailored to the needs of a particular situation.

The rule of thumb goes back to the period between the two world wars and the work of R. A. Fisher.  A common problem in studies is that we find that two things, call them A and B, tend to go together, and we want to get a handle on whether this is coincidence or a true correlation.  The rule of thumb is that we "reject the null hypothesis" and say it's not just a coincidence if the correlation between A and B is strong enough that the chance of it being a coincidence is less than 5%.  This is expressed in journals as p < .05.  A result meeting that criterion is pronounced "statistically significant" and given the coveted asterisk, as if there were a big difference between p = 0.051 and p = 0.049.  (There isn't.)

The quasi-religious devotion to this arbitrary criterion was skewered by the famed psychological statistician Jacob Cohen in a classic article:

The atmosphere that characterizes statistics as applied in the social and biomedical sciences is that of a secular religion [citation], apparently of Judeo-Christian derivation, as it employs as its most powerful icon a six-pointed cross, often presented multiply for enhanced authority.
The U.S. Supreme Court today took up a case that may be as remarkable for how it got to the high court as it is for the eventual holding.  Arkansas prisoner Gregory Holt, alias Abdul Maalik Muhammad, filed a handwritten certiorari petition on his own.  He claims the State's anti-beard policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Free Exercise Clause of the First Amendment.  The case is Holt v. Hobbs, No. 13-6827.

Back in November, the Court enjoined Ark. DoC from enforcing its policy against Holt, for the first 1/2 inch of beard, until disposition of the case.

Update:  The Court subsequently amended its grant of certiorari to narrow the Question Presented to "Whether the Arkansas Department of Correction's grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs."

Monthly Archives