July 2014 Archives

Libertarians Endorse Murder

OK, they don't endorse murder, exactly, but they come too close for comfort in a truly idiotic, and dishonest, article in Reason Magazine by Nick Gillespie. Its title is, "Why the Death Penalty Needs to Die."  Here's how it starts:  

Another week, another botched killing under the legal euphemism of capital punishment. After macabre screw-ups in Oklahoma and Ohio, it was Arizona's turn last week, when double-murderer Joseph Rudolph Wood III took about two hours to die. The specific problem this time around was an apparently unreliable "cocktail" of the drugs used in the lethal injection process. 

But let's face it: There's no good way to kill a person, even one as completely unsympathetic as Wood (he killed his ex-girlfriend and her father, shooting them at point-blank range). 

That's it!  The people we execute are no worse than "unsympathetic."  But "unsympathetic" is the last we hear in this article about any particular murder or the people who commit them.  The rest of it is just the usual supercilious, if surprisingly unoriginal, lecture.

It's not that libertarian ideas are bad; on the whole, they're quite good.  I only wish the people holding them would put some effective effort into pushing back the overweaning, tax-eating, initiative-destroying welfare state they say they oppose rather than trying to score brownie points with the press with this sort of snide breast-beating.

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Prosecutor Challenges Early Release of Inmates: An Ohio prosecutor has issued a court challenge against a policy that allows prison directors to recommend to judges the early release of certain offenders, calling it a violation of separation of powers.  Andrew Welsh-Huggins of the Associated Press reports that Prosecutor Mark Kuhn is challenging a law that allows the Ohio prisons chief to recommend early release for inmates that have served at least 80% of their sentence. The law was adopted in 2011 as an attempt to save money by reducing the number of 'low-level' offenders behind bars.  In the last two years, judges have granted early release to 94 of the 414 eligible offenders.

Chief Judge of the Ninth Circuit Believes Death Penalty is Needed: Ninth Circuit Court of Appeals Judge Alex Kozinski stands by his belief that the death penalty is a necessary form of punishment, and suggests that using a firing squad may be the best method.  Pat Morrison of the Los Angeles Times reports that Kozinski acknowledges the issues surrounding lethal injections, saying he never believed using lethal drugs was a good idea for executions.  Kozinski believes support for the death penalty in America is as strong as ever, however, he says the process needs to be fixed.  

Prisoner Convicted in Cellmate's Death: A California man with an extensive history of violent assaults behind bars has been convicted in the murder of his cellmate nearly ten years ago.  KION News reports that 48-year-old David Gomez strangled and beat his cellmate to death in 2005 while already serving a 91-year sentence for forcible rape and burglary.  Along with the murder conviction, Gomez was also convicted of two more attacks on inmates in 2009 and faces a maximum sentence of three consecutive life terms.

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Good Samaritans Attacked for Reporting Child Locked in Hot Car: A Colorado woman who alerted police about a child being locked in a hot car has been seriously injured after the child's mother ran the woman and her boyfriend over.  Tammy Vigil of Fox Denver reports that 27-year-old Kristina Riddell, angered about the couple calling police, physically attacked them before running them over and fleeing the scene.  This is not Riddell's first incident with police, she has prior arrests for assault, domestic violence and multiple driving violations.  She now faces charges of hit-and-run, assault and child abuse.

Murder Re-Trial May Result in Death Sentence: A California man behind bars for murder may be sent to death row if found guilty of two more killings at the conclusion of his re-trial.  KESQ News reports that 30-year-old Angel Esparza, a parolee, was tried for the three murders together and was convicted of one.  The jury deadlocked on the other two murder charges forcing a re-trial.  Two of Esparza's accomplices pled guilty to the murders and were sentenced to 15 years to life behind bars.

Teens Charged in Beating Death: Four California teenagers have been charged with the beating death of a University of Southern California graduate student in an attempted robbery.  The Associated Press reports that two of the suspects were juveniles but will be charged as adults after allegedly beating the student to death with a baseball bat and wrench.  The defendants will be arraigned in two weeks on charges of murder during an attempted robbery.
Not all capital defense attorneys see themselves as being on a crusade to abolish the death penalty or to throw sand in the gears in the meantime.  David Goodwin has a letter to the editor in the L.A. Times in reaction to a column by George Skelton:

As a criminal defense attorney with four capital cases, I agree with Skelton that the death penalty system is broken. Here's a radical idea: Fix it.

Skelton is right that Gov. Jerry Brown and Atty. Gen. Kamala Harris, both lifelong death penalty foes, will do nothing to fix the system. It is unethical for them not to zealously enforce the law just because they don't like it. Unable to win at the ballot box, the opponents win by obstruction and refusing to do the job they are obligated to do.

Someday a governor may be in office who does not like certain environmental protections or civil rights statutes. If that happens, I hope it is remembered where the precedent arose that the executive need not do the public's bidding.

We need more with attitudes like Goodwin's.  Specifically, we need capital defense lawyers who will do their duty as advocates to make the best case for their assigned client but who will not delay, obstruct, or bury the courts with patently meritless pleadings.  (See In re Reno, 55 Cal. 4th 428 (2012).)  Capital cases should be just like noncapital cases in this regard.  A lawyer assigned an appeal for a rapist sentenced to prison is not on a crusade to abolish imprisonment.  He just makes the case that his particular client shouldn't have been convicted or shouldn't have been sentenced to as much time as he got.

Retired prosecutors might be good candidates to step up and take capital appeals and state habeas petitions.  Any takers?

John Gleeson, Defense Lawyer in a Robe

A long time ago, in a galaxy far, far away, judges were neutral.  Parities made their arguments as best they could, and the judge, not taking one side or the other, decided the case under the law.

Then there's the Eastern District of New York, otherwise known as Brooklyn, and its twin pro-criminal zealots, Jack Weinstein and, of late, John Gleeson.  Gleeson is young enough to know better, and I'm sure he does.  The problem is he doesn't care.

Recently he accused federal prosecutors of being extortionists because they do what the Supreme Court explicitly authorized them  to do, to wit, offer sentencing inducements in order to settle cases by plea bargains, Bordenkircher v. Hayes. (His screed neglected  to point out that the defense bar demands, and for all practical purposes lives off, exactly such plea offers).  His most recent stunt, however, takes pro-criminal huckstering to a new level.  I'll just let the New York Times article describe it (emphasis added):

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

Does anyone see something amiss in that sentence?

Exoneration Inflation

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This issue usually comes up in capital cases, and I have shamelessly pirated the title of this post from Ward Campbell's article demolishing the so-called Innocence List.

It happens in noncapital cases, too, though.  A conviction is set aside, and no new conviction is obtained against the defendant.  There are many reasons consistent with guilt why this can happen.  Essential witnesses may be dead.  Evidence may be suppressed for reasons other than its reliability.  In noncapital cases, the defendant may have already served most or all of the prison sentence that could be obtained, so no additional criminal sanction is available or needed, so the prosecutor may just drop it.

Despite all this, there is frequently a PR campaign declaring the defendant "exonerated" with the implication that he has been proved innocent and scathing condemnation of the criminal justice system.  Sometime, to be sure, actually innocent people are convicted, and sometimes condemnation of actual misconduct is warranted.  But sometimes the "exonerated" defendant actually committed the crime.  Sometimes the defendant actually committed part of the crime.  Michael Armstrong, former Queens DA, has an article in the WSJ, Persistent Myths in the Central Park Jogger Case.

The panel's report to Police Commissioner Kelly in 2003 suggested that it was "probable" that the defendants participated only in a preliminary "hit and run" attack on the jogger, similar to the other assaults for which they had been convicted. If that theory is correct, it seems clear that they served excessive prison terms. Others, pleading guilty to such offenses occurring on the same night, served two to three years, not six or 13.

Perhaps it is fair, though not required as a matter of law, to compensate the defendants for their extra prison time. But some thought should also be given to the blameless police officers and assistant district attorneys who, as a result of a well-orchestrated publicity campaign, have been subjected to public vilification, anonymous death threats and petitions calling for them to be fired.

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Serial Killer Sentenced to Death: A Kentucky man released on parole after serving time for murder has been convicted and sentenced to death for the cold-case rape and murder of a mother of five in 1983. Claire Galofaro of The Courier-Journal reports that 56-year-old Larry White was sentenced to death in 1985 after being found guilty of murdering two young women, but two years later the state Supreme Court ruled that his confession was illegally obtained and reduced his sentence to  28 years. Since 1976, Kentucky has only executed three murderers, most recently in 2008.

Parolee Named Person of Interest in Recent Murder: A Colorado man with a lengthy criminal history has been arrested after  he fled his court-ordered halfway house.  Police believe that he may be responsible for his mother's disappearance and murder.  Jesse Paul of the Denver Post reports that 31-year-old Daniel Stetzel has been arrested more than a dozen times on a variety of charges including drug possession, robbery, assault and parole violations.  Stetzel is being held in county jail in lieu of $20,000 bond.

Teen Convicted in Cop Killing: A 19-year-old Texas man has been found guilty of beating to death an El Paso police officer in 2012.  The Associated Press reports that the off-duty officer confronted Juan Gonzalez and two of his friends after he caught them vandalizing his car.  When the officer identified himself, prosecutors say Gonzalez violently assaulted him causing critical injuries  that he died from nine days later.  Gonzalez now faces between five and 99 years in state prison.

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CA High Court Upholds Death Sentence: In a unanimous ruling, California's Supreme Court upheld the death sentence for a man convicted of murdering an off-duty Los Angeles County deputy sheriff in 1997.  Ann Anooshian of Metropolitan News-Enterprise reports that the officer and his fiancee, who was also a peace officer, were at a hair salon when two men entered the building in an attempt to steal the cash register, when the men found out he was a sheriff they shot him in the head and fled with his fiancee's debit card.  The gunman, Kevin Boyce was sentenced to death for the murder, his accomplice was also convicted of murder and sentenced to 75 years to life. 

TX Governor Seeks Help From National Guard to Deal with Immigration: Texas Governor Rick Perry is asking for the National Guard to be deployed along the state's border with Mexico in order to deter and detain criminals who have illegally entered the country.  Salena Zito of Newsmax reports that the governor is concerned with the number of criminals entering the state, and is requesting the National Guard's presence to assist Border Patrol and other agencies protecting the border.  Since 2008, 203,000 illegal immigrants have been arrested in the state and charged with more than 640,000 crimes including thousands of homicides and sexual assaults.

Parolee Found Guilty in Cop Killing: A New York man has been found guilty of killing a Long Island police officer and an innocent motorist in October 2012.  Joe Kemp of the New York Daily News reports that 34-year-old Darrell Fuller, who was out on parole at the time of the crime, shot the officer at point-blank range after being pulled over for a traffic stop, he then shot another man in attempt to steal his car and flee the scene.  Fuller faces life in prison without the possibility of parole.

HIPAA Consequences

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Stewart Baker has this post at Volokh Conspiracy, "HIPAA is an arguably well-intentioned privacy law that seems to yield nothing but 'unintended' consequences."  I'm not quite as cynical on HIPAA as Stewart, and I wouldn't have said "arguably" or put "unintended" in quotes.  He is right that the law has had numerous bad consequences, though, including this gem from the Daytona Beach News-Journal:

In the name of patient privacy, a Daytona Beach, Fla., nursing home said it couldn't cooperate with police investigating allegations of a possible rape against one of its residents.
If I were Attorney General of California, Judge Carney's decision in Jones v. Chappell, noted here, here, here, here, and here would have been greeted the same day by a fiery denunciation and a Churchillesque pledge to fight it wherever, whenever, and for as long as it takes.  Instead, we have who we have, and we hear [sound of crickets chirping].

The Attorney General is the chief law enforcement officer of the State of California and has a constitutional duty to see that its laws are enforced.  (Cal. Const. Art. V § 13.)  Until we hear otherwise, we should assume that Ms. Harris will do her duty and do everything in her power to have this clearly erroneous obstruction of the law overturned.  Purely hypothetically, though, I have been musing about the possibilities.  So let's take a little stroll down the "what if" road.

In California, can the District Attorney intervene in a federal habeas corpus collateral attack on a felony conviction and appeal a grant of relief if the Attorney General fails to?
Today in Los Angeles, Judge Cormac Carney entered final judgment on Claim 27 of Jones v. Chappell, his absurd decision that delay in the review of capital cases is a reason to change a death sentence to life imprisonment.

Federal Rule of Civil Procedure 54(b) permits a judge to enter final judgment on one claim while other claims remain pending "if the court expressly determines that there is no just reason for delay," which this judgment does.

This final judgment is appealable under 28 U.S.C. § 1291.  See, e.g., Brown v. Eli Lilly & Co., 654 F.3d 347 (CA2 2011).  A notice of appeal must be filed within 30 days.

There is no reason not to appeal this decision.  There is no excuse not to.

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Northern California City Struggling Under Realignment: A California State Senator has dubbed Redding, CA as one of the cities hit hardest by Realignment after taking a tour of the Shasta County Jail earlier this week.  Vienna Montague of KRCR News reports that since Realignment went into effect in 2011, the city of Redding has seen higher rates of auto theft, robbery and drug use, and it has caused major problems throughout the community.  The senator mentioned additional funding that has been set aside to combat Realignment issues, but believes money is a simple fix to a problem that requires a long-term solution.

Man Sentenced in Cold Case Rape: A Chicago man has been sentenced to 40 years in prison after DNA from a rape kit linked him to a cold case sexual assault committed more than ten years ago.  The Associated Press reports that the rape kit was one of dozens left untested and forgotten about in a suburban police station.  He became the 15th person to be either charged or convicted as a result of the discovery of the untested rape kits. 

CA High Court Denies Murderer's Appeal: A California man convicted of murdering five people will stay behind bars for the rest of his life after the state's Supreme Court denied to review his case.  Ivette Lopez of the Santa Monica Lookout reports that William Vasquez, a documented gang member, was found guilty in 2008 and linked to five murders that took place around Southern California between 2002 and 2005.  Two of Vasquez's accomplices in the murders are also serving life sentences without the possibility of parole.  

Culture, Values, Politics and Crime

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A commenter recently took me to task, disturbed that I criticized the Administration for its tepid response to the Russian-sponsored mass murder of 298 people in the Ukraine.  The commenter thought my remarks went too far in the direction of a strictly political attack.

Let me say that reasonable minds could differ about that post.  My own view is that (1) the episode was indeed mass murder, (2) our government's response was, and is, feckless, both for moral and practical purposes, and (3) fecklessness in the face of murder, and of crime generally, is a huge problem just now, and I'm going to continue to talk about it when it rears its head.

Intent, Plagiarism, and Politics

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In criminal law, intent is a big deal.  The prosecutor must often prove not only what the defendant did but his state of mind while he was doing it.  Even though the harm to the victim may be the same, there is a fundamental moral difference between intentional and accidental harm.  "Even a dog distinguishes between stumbled over and being kicked," Justice Holmes famously said.  He had a knack for putting legal concepts into concrete terms everyone can understand.

How do you prove intent?  It's usually clear from the circumstances that an act is intentional.

Intent matters in politics as well.  Aaron Blake at the WaPo's political blog, The Fix, is incredulous of Montana Sen. John Walsh's claim of accidental plagiarism at the Army War College.

It also takes a pretty big suspension of disbelief to think that Walsh lifted those passages without ill intent. Proving someone's intent is always difficult, but believing that this was anything other than an attempt to cheat takes some logical leaps that are pretty hard to make.
We will be addressing intent in a Supreme Court case on threats in the coming term, Elonis v. United States.

Update:  Bill's later post asks whether plagiarism can be a crime.  Could be.  "Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."  10 U.S.C. § 933; see also Parker v. Levy, 417 U.S. 733 (1974).  The military is different.  Funny the statute still says "gentleman."  We've had women officers for a long, long time.
Arizona Director of Corrections Charles Ryan has this statement on the execution of Joseph Wood (emphasis added):

The Department of Corrections followed the execution protocol and, as with every execution, it was monitored by an IV team of licensed medical professionals in control of the medical procedures.

The first confirmation that inmate Wood was fully and deeply sedated occurred at 1:57 PM, five minutes after the direction to proceed with the administration of drugs was given. The medical team re-affirmed the inmate remained deeply sedated seven additional times before death was pronounced at 3:49 PM.

Once the inmate was sedated, other than sonorous respiration, or snoring, he did not grimace or make any further movement. Throughout this execution, I conferred and collaborated with our IV team members and was assured unequivocally that the inmate was comatose and never in pain or distress.

Physiologically, the time to complete an execution varies for each individual. The Department of Corrections will conduct a full review of the execution protocol and process. We will await the results of an independent autopsy from the Pima County Medical Examiner and we have requested a toxicology study as well.
Also, Ashby Jones and Jacob Gershman have this story in the WSJ.

De-policing New York

Incredible as it seems, the people who want to undo the policing reforms that made New York City a much safer and more livable place than it used to be are gaining ground.  The current poster boy for this movement is Eric Garner, who died after being put in a chokehold while resisting arrest.  Heather MacDonald has this article in the City Journal on the dire consequences of undoing New York's very successful policing efforts.  The article concludes:

The biggest threat facing minority New Yorkers now is not "over-policing," and certainly not brutal policing. The NYPD has one of the lowest rates of officer shootings and killings in the country; it is recognized internationally for its professionalism and training standards. Deaths such as Garner's are an aberration, which the department does everything it can to avoid. The biggest threat facing minority New Yorkers today is de-policing. After years of ungrounded criticism from the press and advocates, after highly publicized litigation and the passage of ill-considered laws--such as the one making officers financially liable for alleged "racial profiling"--NYPD officers have radically scaled back their discretionary activity. Pedestrian stops have dropped 80 percent citywide and almost 100 percent in some areas. The department is grappling with how to induce officers to use their lawful authority again to stop crime before it happens. Eric Garner's death was a heartbreaking tragedy, but if the unjustified backlash against misdemeanor enforcement takes root and finds a sympathetic audience in Mayor Bill De Blasio, the consequences for all New Yorkers will be even more dire.

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Judge Asks Why Murder Suspect Wasn't Already Behind Bars: A Michigan judge has revealed that the man suspected of murdering a two-year-old girl earlier this month should have been in jail at the time of the killing, and is asking why he was released from custody early.  CBS Detroit reports that 25-year-old Raymone Jackson was sentenced to 11 months in prison last September, but was released just six months later. Police believe Jackson killed the girl as form of retaliation against her father.
Delaware High Court Upholds Death Sentence: The Delaware Supreme Court has ruled to uphold the death sentence for a man convicted of murder nearly ten years ago.  Joe Jenkins of the Daily Voice reports that James Cooke was sentenced to death in 2012 for the rape and murder of a University of Delaware student in 2005.  Cooke was originally sentenced to death for the killing in 2007, but that conviction was ultimately thrown out by the state's high court in a divided ruling.  He was tried again and sentenced to death five years later.

Increase in Murders After Death Penalty Abolished: South Africa has experienced a sharp increase in murders and violent crimes in recent years, which some believe was caused by eliminating the death penalty. Laura Oneale of Guardian Liberty Voice reports that the murder rate has continued to increase since the death penalty was abolished in 1996.  South Africa, which has been rated the most murderous society in the world, averages more than 47,000 killings annually. 


Colorado Gov. Race Now A Toss-Up

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Colorado Governor John Hickenlooper was considered "safe" for reelection not so long ago.  Real Clear Politics changed its rating to "toss-up" last week.

On July 15, I noted that the NBC/Marist Poll had Hickenlooper ahead 49-43.  Conventional political wisdom is that an incumbent is in trouble if early polls show less than a majority, even if leading the opponent.

Two polls since then have come out 43-44 and 44-43, Quinnipiac and PPP respectively.  I generally dislike the term "statistical dead heat" in political poll reporting, but it fits here.  That's a dead heat.
Dan Frosch has this story in the WSJ:

Republicans have tried to cast Mr. Hickenlooper as indecisive, noting his move last year to delay the execution of a convicted murderer, Nathan Dunlap, over concerns about the death penalty's morality. Mr. Hickenlooper didn't grant Mr. Dunlap clemency either, instead issuing a "temporary reprieve."
The Federal Public Defender for Arizona has filed a motion to stop the execution of Joseph Wood already in progress.  The first paragraph says:

The Arizona Department of Corrections began the execution of Joseph Rudolph Wood III at 1:52 p.m. At 1:57 p.m ADC reported that Mr. Wood was sedated, but at 2:02 he began to breathe. At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. At that time, staff rechecked for sedation. He is still alive. This execution has violated Mr. Wood's Eighth Amendment right to be executed in the absence of cruel and unusual punishment.
The conclusion does not follow from the premises.  The motion does not dispute the ADC's conclusion that Wood is sedated.  If he is sedated, he is not in pain, and nothing happening here remotely qualifies as "cruel."  Gasping and snorting do not necessarily mean a person is in pain, and if he is sedated he certainly is not.

When states were able to use the single-drug protocol with pentobarbital, the executions went smoothly.  The problem here has been caused by those who pressured the suppliers to stop supplying pentobarbital, and any response should be directed at reopening that supply line.

Update:  AP reports the Arizona AG says the execution is completed, though it took about 2 hours.

The anti-death-penalty crowd is already throwing around their favorite word, "botched."  Wrong.  Joseph Wood died, as he should have, and he was sedated, not suffering extreme pain or, for that matter, any pain.  That is not "botched."

Vietnam Lethal Injection

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Ha An reports for Thanh Nien News:

The Hai Phong man who outraged the nation by killing and dismembering an ex-girlfriend was executed by lethal injection on Tuesday night, despite his pleas for mercy.
*                                    *                                  *
Nghia was watching his new girlfriend's apartment while she was out of town when he called Linh, his one-year college lover, to come over.

After they made love, he stabbed Linh to death, wrapped her torso in a blanket and stashed it on the building's rooftop.

He pawned her motorbike, laptop and mobile phone for VND5 million (US$240).

He was arrested on May 22, 2010 while hiding out in Thai Nguyen Province, one day after police discovered Linh's naked, rotting body.
*                                    *                                  *
Starting in late 2011, Vietnam officially switched from dispatching convicts with firing squads to lethal injections. An EU ban on exports of the lethal cocktail to Vietnam caused a lengthy backlog and drove many convicts to insanity and suicide--until Vietnam began manufacturing its own lethal serum.
So there is a source of supply.  We need the House of Representatives to slip a provision exempting lethal injection drugs from FDA importation requirements into a bill that the Senate politically cannot refuse to pass and the President politically cannot veto.  See prior post.
Ryan v. Wood, 14A82 (today):

The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted. The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction. The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.
No dissent is noted.  That does not necessarily mean the decision is unanimous, but any Justice voting against the order, if any, did not feel strongly enough about it to have it noted.

The Court denied Wood's motion for stay and petition for certiorari in the parallel case seeking review of the Arizona Supreme Court's decision.

Wood's execution is set for 10:00 a.m. Mountain Standard Time tomorrow.  Arizona doesn't go in for that biannual clock-fiddling nonsense.  That's 10:00 a.m. PDT and 1:00 p.m. EDT.

Update (Wednesday, 7/23):  Yesterday the Ninth Circuit rejected an attempt by Wood to reopen his case via Federal Rule of Civil Procedure 60(b).  This morning the U.S. Supreme Court denied a stay of execution and writ of certiorari in that case.  No dissent is noted.

Update 2:  Now the Arizona Supreme Court has issued a stay, according to this AP story 1:41 p.m. EDT 7/23.

Update 3:  The 2:48 EDT update of the AP story (same link) says Arizona Supreme lifted the stay an hour later.  "The appeal focused on arguments that Wood received inadequate legal representation at his sentencing, along with a challenge about the secrecy of the lethal injection drugs."
Twenty-five years ago, the U.S. Supreme Court announced one of the most important decisions* in the modern history of criminal procedure, Teague v. Lane, 489 U.S. 288, 306 (1989).  Adopting a rule proposed by Justice Harlan 20 years earlier, the court decided that new rules of constitutional law would not be applied retroactively to cases that were already final on direct review at the time the rule was announced.  A corollary rule was that new rules could not be announced in habeas review of final convictions.

In his decision declaring California's death penalty unconstitutional, Judge Carney has this cursory discussion of the Teague issue:

The rule Mr. Jones seeks to have applied here--that a state may not arbitrarily inflict the death penalty--is not new. Rather, it is inherent in the most basic notions of due process and fair punishment embedded in the core of the Eighth Amendment. See Furman, 408 U.S. at 274-77 (Brennan, J., concurring) (describing the principle that "the State must not arbitrarily inflict a severe punishment" as "inherent in the [Cruel and Unusual Punishment] Clause" and tracing its application in Anglo-American jurisprudence); see also id. at 242 (Douglas, J., concurring) ("There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature."). This rule is certainly one "so deeply embedded in the fabric of due process that everyone takes it for granted." Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en banc). It is therefore not a new rule for Teague purposes. See id. ("[A] rule needs to be announced for purposes of Teague only if it's new.").
Judge Carney is breathtakingly ignorant of the most elementary principles for applying the Teague rule.

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Colorado Residents Using EBT Cards to Buy Marijuana: According to an analysis conducted by National Review Online, welfare recipients in Colorado have been withdrawing thousands of dollars worth of their cash benefits at marijuana retailers and dispensaries since the state began selling recreational marijuana earlier this year.  Jillian Kay Melchior of National Review Online reports that in the last six months, more than $23,000 has been withdrawn at a variety of marijuana establishments across the state, however, officials have yet to determine how much was spent on marijuana exclusively because some of the stores sell groceries as well.  In order to combat the issue, the state has enacted an emergency rule restricting the use of EBT cards at marijuana shops, bars, liquor stores and gambling establishments.

Convicted Killer Released From Prison Early, Arrested for Murder Again: An Indiana man convicted of murdering his first wife more than 20 years ago has been arrested and charged with murder yet again after authorities say he killed his current wife over the weekend.  The Associated Press reports that 50-year-old Tony Degrafreed was convicted of murder and sentenced to 30 years behind bars in 1995, but was released early and paroled after spending just 12 years in prison.  Authorities arrested Degrafreed on Sunday, charging him with murder and separate assault charges for stabbing his wife's son in the chest, causing minor injuries.

Convicted Killer up For Parole Under New Law: A Massachusetts man convicted of murder and sentenced to life in prison at the age of 17 is now eligible for parole after the state ruled that minors can not be sentenced to life in prison without the chance of parole.  Angie Angers of WPRI reports that Anthony Rolon was convicted of murder and sentenced to life after authorities say he stabbed another teen to death at a party, and so far, has spent just 17 years behind bars.  In 2013, a Massachusetts court ruled it is unconstitutional to sentence a minor to life without parole because their brains are "not fully developed."

Arizona Moves to Vacate Wood Stay

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The State of Arizona has filed in the U.S. Supreme Court an application to vacate the stay of execution of murderer Joseph Wood, noted yesterday.  The case is Ryan v. Wood, 14A82.

The Ninth Circuit has a very helpful collection of the pleadings in this case.  The Supreme Court papers are in green.  The administrative folks at the Ninth really do an excellent job.  Now if we could only do something about the substance of the opinions . . .

Lest we forget what this case is about:

Too Much Safety

Justice William J. Brennan had a way with words.  One of the most memorable examples was his asking, in the lead dissent in McCleskey v. Kemp, why the majority was afraid of "too much justice."

Today, we need to ask why those arguing that the incarceration rate is the lodestar of the criminal justice system are afraid of too much safety.
From the Federalist Society:

The Supreme Court issued a number of notable opinions in the area of criminal law during the recently concluded term. Members of the Federalist Society's Criminal Law & Procedure Practice Group Executive Committee offered their analysis on recent developments in the Supreme Court's criminal law jurisprudence and fielded questions from a call-in audience.

    • Dean Mazzone, Chief of the Enterprise and Major Crimes Division, Massachusetts Attorney General's Office

    • Kent S. Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation
Last Wednesday, I noted in this post some of the reasons why Judge Carney's decision in Jones v. Chappell (declaring California's death penalty unconstitutional due to delays in execution) was wrong.  The opinion is wrong in so many ways that it will take a number of posts to catalog them.

To that end, former California Supervising Deputy Attorney General James Ching has this post at law.com giving some more reasons:

There is no doubt that the District Court condemns only state processes: "The Eighth Amendment simply cannot be read to proscribe a state from randomly selecting which few members of its criminal population it will sentence to death, but to allow that same state to randomly select which trivial few of those condemned it will actually execute."
The placing of blame is underlined by the District Court's failure to address any federal responsibility for the delay or to issue relief against the federal courts. However, if "[a]rbitrariness in execution is still arbitrary, regardless of when in the process the arbitrariness arises," it must surely apply to the 46.2% of the total delay and dysfunction.
Today's News Scan notes the stay of execution granted by a divided panel of the Ninth Circuit to Arizona murderer Joseph Wood so he can litigate his supposed First Amendment right to information about the source of Arizona's execution drugs.  The Ninth swiftly denied rehearing en banc with a dissent joined by 11 of the courts active judges.  The split was largely but not entirely on party-of-appointment lines, with Clinton appointee Richard Tallman and Obama appointee John Owens joining the dissent and Bush appointee Richard Clifton not joining it.

I have no doubt this case is headed for the Supreme Court.  It might be there already.

News Scan

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AZ Murderer Granted Stay of Execution: A federal appeals court has ruled to delay an Arizona man's execution until prison officials reveal details on the two-drug protocol to be used to put him to death.  Jacques Billeaud and Andrew Dalton of the Associated Press report that Joseph Wood's attorneys argued that the murderer's First Amendment rights were violated when officials refused to disclose the source of the drugs and how they would be administered.  Wood was sentenced to death for the 1989 murders of his estranged girlfriend and her father, he was originally scheduled to be executed Wednesday afternoon.

Thousands of Drug Felons set to be Released: The U.S. Sentencing Commission has unanimously voted in favor of retroactively reducing prison sentences for more than 46,000 drug offenders currently serving time behind bars.  Eric Tucker of the Associated Press reports that tens of thousands of these inmates may now be eligible for early release in what officials are calling a 'cost-cutting' proposal aimed at reducing the nation's prison population.  The releases would begin happening in November 2015 and continue on for a period of years.

FL High Court Debates New Juvenile Sentencing Law: Florida's Supreme Court is debating whether or not a new law changing the state's juvenile sentencing guidelines should apply retroactively.  Margie Menzel of The News Service of Florida reports that the new law, HB 7035, which went into effect July 1, requires a hearing in cases involving juvenile murderers facing a life sentence to determine if that sentence is appropriate.  If the life sentence is determined inappropriate, the murderer can  instead by sentenced to a minimum of 35 years in prison.

It's the Culture, Continued

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Persons of sense have known for a long time that the primary "root cause" of crime is culture.  Kids growing up are subject to influence from parents, peers, schools, and popular media.  These influences instill in the growing kids either an attitude that (1) they should "do the right thing" in obeying rules (in all but extreme circumstances) and respecting the rights of others or (2) it's every person for himself and they should take whatever they can get away with.

Empirical validation of theories is difficult in social sciences because we generally cannot do controlled experiments.  That is why, for example, much of the "evidence" touted for rehabilitation programs is tainted by selection bias, as noted in posts last February here and here

Every once in a while, though, we get a "natural experiment" where a comparison becomes available between two groups that do or do not receive some "treatment" or "intervention" selected in a way that gives us increased confidence that the "treatment" and not the selection of the groups is the reason for the difference in outcomes.

One such "natural experiment" is forthcoming in the next issue of Pediatrics.  It is titled, "Successful Schools and Risky Behaviors Among Low-Income Adolescents."  The abstract is here and is copied at the end of this post.  The AAP press release is here.  AP has this story.

The thrust of the story is that kids randomly selected to go to better schools have a variety of better outcomes, including reduced gang membership.
Four days ago, Russian-backed separatists using a Russian-supplied surface to air missile shot down a commercial passenger jet, killing the 298 people on board, all civilians. Since then, those same Russian-backed separatists have taken control of the crash scene, seized the "black box" (and reportedly sent it to Moscow), stuffed the bodies in a bunch of bags like they were picking up trash, stonewalled the mourning relatives, and generally behaved as you would expect from people who murder about 300 of their fellow creatures because, ya know, these rocket launchers are really cool and fun to set off.

News Scan

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Parolee Accused of Murder: An Arkansas man released from prison and placed on parole just two months ago has been arrested in connection with a Memphis murder that took place earlier this week.  Jason Pederson of KATV reports that 33-year-old Will Johnston has been in and out of prison for more than a decade, serving time for burglary, parole violations and drug offenses.  A study conducted by the Department of Justice shows that 38% of individuals on parole end up violating their release orders and are sent back to prison.

CA Family Outraged Over Death Penalty Ruling: A Northern California family fighting for justice for their murdered relative expressed outrage after a federal judge ruled the state's death penalty unconstitutional. Brian Chalk, who has been waiting since 1981 for the execution of his sister's murderer called the ruling a "slap in the face not only to families, but to every citizen."  Maria Medina of CBS Sacramento reports that murder victim Terri Winchell's family thought the the killer, Michael Morales, would finally pay for his crime in 2006, but two hours before his scheduled execution the state put all executions on hold.  The family fears that this ruling sends the message that California's worst murderers will never be executed.

High-Risk Sex Offender Released: A Canadian man with a lengthy history of violent and sexual offenses has been released from prison despite being a high-risk to the community.  Lara Schroeder of Global News reports that 41-year-old Rene James Everett was placed on a 10-year supervision order in 2009 and will be required to participate in a treatment program, police believe he is at high-risk level of re-offending; especially when it involves women or children.  Everett's criminal record includes convictions for sexual assault, robbery and weapons offenses.  

Prison Holiday

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The US Sentencing Commission voted to support more and earlier heroin (and meth and PCP et al.) trafficking.  It did so by deciding to make its already ill-advised all-comers-welcome reduction of the guidelines for drug sentencing fully retroactive. Here's the USSC press release.

Today I'll be flying back to the mainland from Hawaii, so I can't go into the detail this story deserves.  I'll say only two things.  First, the Commission's press release is astonishingly (and I have to believe intentionally) deceptive.  It states:

The Commission studied offenders released early after a similar 2007 amendment to the guidelines reducing sentences for crack offenders and found that those offenders were no more likely to re-offend than offenders who had served their original sentences.

How slick is that!  The newly retroactive guidelines apply to all drugs, not just the drug (crack cocaine) dealt with in the 2007 amendment.  And the recidivism rate for all drugs is 77%  --  an enormous figure, and more than twice the number the USSC had been trumpeting previously.  In other words, slightly more than three-quarters of drug offenders return to crime.  I guess it's no surprise that the actual drug recidivism rate is cleverly, if very conspicuously, invisible in the Commission's press release.

Second, one of the stated grounds for slimming down the federal criminal justice system has been its budget.  But re-litigating between 40,000 and 50,000 sentences will have gigantic costs.  How gigantic?  Well, we don't know, because the whole cost-of-re-litigation issue is swept under the rug by the Commission  -- the same Commission that undertook the guidelines reductions in the first place largely, it claimed, because of  -- you guessed it  --  its grave concern that costs are getting out of hand.

News Scan

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Recently Released Immigrant Accused of Murder: A Guatemalan immigrant, released by immigration officials after entering the country illegally last month, has been arrested and charged with murder after authorities say he killed his girlfriend Sunday in Louisiana.  Alicia A. Caldwell of the Associated Press reports that 43-year-old Pedro Monterroso was released by immigration authorities on June 26 after it was determined that he had no criminal history or gang affiliation and was issued a notice to report back once he got settled in the U.S.  Monterroso's girlfriend had also entered the country illegally earlier this year, but had successfully followed up with immigration authorities after settling in Louisiana.

Families Outraged Over Juvenile Parole Bill
: Families of murder victims in Massachusetts are outraged after lawmakers announced plans to water down parole guidelines for juveniles convicted of first-degree murder.  Christian M. Wade of Newbury Port News reports that the new legislation would make juveniles convicted of first-degree murder eligible for parole after serving 20 to 30 years behind bars.  The law would only affect murderers convicted after the new legislation is enacted.

Gang Members Lead Police on Deadly Chase: Three men led Stockton, CA police officers on an hour-long chase after authorities say they robbed a bank, took three women hostage and fired shots at responding officers.  Sarah Heise of KCRA reports that by the end of the pursuit, two of the robbers and one hostage were killed.  The third robber was arrested and the two surviving hostages were hospitalized.  All three of the robbers were known gang members, two of which had prior convictions for narcotics, firearms and domestic violence.

Baghdad Harry

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Alexander Bolton of the Hill covers  Senate Majority Leader Harry Reid's statement to reporters yesterday assuring the nation that America's southern border is secure.  He made this remarkable statement as news video streams across the airwaves showing tens of thousands of foreigners flooding across the border into Texas, Arizona and New Mexico overwhelming the already inadequate border patrol and forcing agents to become caregivers to thousands of Central American children rather than a security force looking for drug smugglers and terrorists.   In the face of what is clearly a complete breakdown of U.S. border security Senator Reid is trying to BS the entire country.  Some may remember Mohammed Saeed al-Sahaf, Saddam Hussein's Minister of Information better known as Baghdad Bob, who in April 2003 stood in front of cameras on a Baghdad street and announced that Saddam's army had repelled coalition forces, while U.S. tanks were passing behind him. 

Summing up the Jones Death Penalty Case

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Every now and again, an anonymous Internet commenter hits the nail on the head, and one calling himself "Daniel" did so in summing up the Jones v. Chappell decision:  "The judiciary gets to make a hash of the death penalty and then claim the death penalty is unconstitutional because they made a hash of it."

Middleton Executed in Missouri

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Despite the best efforts of an obdurate judge and a ready-to-fudge-it shrink, the Eighth Circuit and the Supreme Court saw through it, and the state of Missouri executed multiple killer and meth dealer John Middleton.  Here's the story:

For the sixth time this year, Governor Jay Nixon declined to grant clemency to a death row inmate minutes before the execution deadline. John Middleton, a former meth-dealer convicted of three grisly murders in 1995, was injected with a dose of pentobarbital at 6:58 p.m. and pronounced dead at 7:06.

Middleton had spent nearly two decades in prison since his conviction in 1997. He was 54 years old.

Last night, U.S. District Court Judge Catherine Perry halted the former meth dealer's execution less than two hours before the 12:01 a.m. deadline, arguing that Middleton's demonstrated mental health issues "[have] made a significant threshold showing he is incompetent to be executed," and that he should be granted a legal hearing to evaluate his sanity.

In an affidavit, a psychologist who examined Middleton stated he "lacks a rational understanding of the reason for the execution and is therefore not competent to be executed due to a diagnosis of delusional disorder, a psychotic mental illness."

I might add that Judge Perry already had one stay lifted by her superiors, as Kent noted, but, hey, what the heck, she granted another on approximately the same grounds anyway.  (I'll abjure for the moment any comment on the sick irony of Judge Perry's doing her best to add yet more delay to the 19 years it took to carry out the sentence on the very day her colleague across the country was finding that the death penalty is unconstitutional because of too much delay).

[Editor's Note: The U.S. Supreme Court orders denying stay, writs of certiorari, and original habeas corpus are here, here, here, and here.  No dissents are noted. -- KS]

Miranda is one of the Supreme Court's most flagrantly lawless decisions.  One can agree, as I generally do, that it's wise as a policy matter to help insure the voluntariness of a defendant's statement by advising him that he has no obligation to make one, while still being clueless as to where in the Fifth Amendment the failure to give such advice per se makes the statement "compelled" and thus automatically subject to exclusion.

The most coherent, although still inadequate, excuse for the Court's effectively splicing Miranda warnings into the Fifth Amendment is that such is necessary, or at least very useful, as a "prophylaxis" to insure  --  without the courts having to examine each case in its own inscrutable detail  --  that the defendant's statement was in fact voluntary.  (Of course this rationale' disintegrates as soon as the ink is dry, because even defendants who admit they've been given the warnings are still able to, and routinely do, raise voluntariness challenges on all manner of other grounds  -- challenges the courts must decide long after the litigants have walked away from the Miranda motion).

I say this to make a point:  Miranda establishes, for good or ill, that the Court can adopt specific prophylactic rules to safeguard a defendant's constitutional rights. And Miranda is going on fifty years old.  Especially after the Court re-affirmed Miranda in Dickerson, it's too late to un-ring the prophylactic rights bell.

Today's death penalty decision from the district court in California thus gives us an unexpected but important lesson:  It's time to apply Miranda's ad hoc creativity to safeguard a defendant's rights, not under the Fifth Amendment, but under the Eighth. 

The Lackey Claim, Again

It's been almost twenty years since Justice Stevens, alone, took seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it, all or most of them initiated by the defendant.  That was in Lackey v. Texas, 514 U.S. 1045 (1995).  The full court has turned the claim down every time.  Although denial of certiorari (meaning simply that the high court declines to hear the case) does not form a precedent binding on lower courts, the consistency of rejection of this claim has generally been understood as a signal that the issue was dead.

Prior posts on the high court's rejection of Lackey claims are here, here, here, here, and here.

Justice Thomas noted in Knight v. Florida, 528 U.S. 990 (1999):

I write only to point out that I am unaware of any support in the American constitutional tradition or in this Court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Indeed, were there any such support in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.
Now comes a federal district judge in California who accepts the claim based on the particularly extended delays in California.  The order is here.

Judge Carney's thesis, in a nutshell, is that the death penalty lacks a penological basis after such a long delay.  But the retribution interest, at least, is still there.  The defendant still deserves this punishment for the very worst murders, and society has a valid interest in carrying it out, no matter how long it takes.

The problems Judge Carney notes are violations of rights, though -- the rights of the victims' families.  See 18 U.S.C. § 3771(a)(7); Cal. Const., Art. I, § 28(b)(9).  The California Legislature has been derelict in its duty to pass the needed reforms, killing them in committee time after time.  The Department of Corrections and Rehabilitation, and ultimately the Governor, have been derelict in their duty to carry out their responsibilities to execute judgments and implement a protocol that will allow them to do so.  The California Supreme Court has been derelict in its duty to resolve state habeas petitions in a reasonable time by referring them to the superior court where they belong.  The federal courts have been derelict in their duty to fully implement the Antiterrorism and Effective Death Penalty Act of 1996, evading it at every turn despite numerous reversals by the Supreme Court.

All of these people need to do their duty and fix the delays -- for the victims, not the perpetrators.

The facts of the particular case follow the break.

News Scan

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NJ Lawmaker Seeks to Restore Death Penalty: After this weekend's killing of a New Jersey police officer, a state lawmaker is pushing to restore the death penalty for individuals convicted of killing police.  The Associated Press reports that Assemblyman Ron Dancer is pushing lawmakers to reinstate the death penalty as punishment not only for police officer killings, but for those convicted in child murders and murders committed by terrorists as well.  New Jersey voted to abolish the death penalty in 2007.

TN Woman Convicted Under new Drug Law: A Tennessee woman was ordered to spend 12 years behind bars after being convicted under a new law that allows judges to send expectant mothers who use drugs while pregnant to prison.  News Channel 9 reports that 27-year-old Lacey Weld was sentenced to more than twelve years in prison and five years of probation after being convicted of both using and manufacturing methamphetamine while in her ninth month of pregnancy.  Weld also plead guilty in 2013 to federal charges of conspiracy to manufacture methamphetamine.

OK Lawmaker to Explore Other Methods of Execution: A study conducted by an Oklahoma lawmaker will examine different methods of execution, and possibly recommend that the state bring back the firing squad, hangings and the electric chair.  Brian Shlonsky of KOCO reports that Rep. Mike Christian will look at current execution protocols, procedures and alternatives as well as exploring the idea of allowing members of the victim's family to have a say on how the inmate is executed. Christian got involved with death penalty reform after this year's botched execution in Oklahoma.  He was quoted as saying; "People say that Clayton Lockett suffered, but people tend to forget about the victim."

On Deterrence

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Last year, many of us enjoyed watching Tom Hanks play the title role in the movie Captain Phillips, who had to deal with the takeover of a freighter by pirates off the Somalian coast.  The movie, which was based on a true story, bothered me because, while piracy in those waters was a nationally reported issue and well known to freighter companies and crews at the time the Maersk Alabama was captured, these huge ships remained virtually defenseless to the lightly armed groups of unsophisticated pirates in small boats.  A story published Monday in the Christian Science Monitor reports that things have changed dramatically over the past couple of years.  In 2011, 237 ships were attacked by pirates around northeast Africa.  So far this year there have been seven attacks which all failed.  What happened?  Warships were dispatched to patrol the area and the shipping companies hired armed security guards to repel the pirates.  The pirates who have been captured have been prosecuted and imprisoned.  Interviews with gang leaders who had previously managed the pirates and the pirates themselves reveal that, due to the increased consequences for piracy, it is no longer worth the risk.  This is called deterrence. 

The Training of Federal Agents

Even though I was at one point Counselor to the Administrator of the DEA, I did not know this until just now:  The DEA, along with the FBI, Immigration and Customs Enforcement,  the Secret Service and the U.S. Marshals, sends its agents-in-training to the Holocaust Museum to give them a close up look at what happens when legitimate law enforcement morphs into a police state.

I wonder how many of those who routinely accuse federal agents of being Nazis have ever even visited the Holocaust Museum.
Today's News Scan noted that a federal district court had stayed the execution of Missouri triple murderer John Middleton.  The U.S. Court of Appeals for the Eighth Circuit has vacated that stay, Jim Salter reports for AP.
Ever heard the complaint that the criminal justice system punishes only the poor and powerless?

News Scan

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Update: Missouri Execution Delayed: A federal judge has granted a stay of execution for convicted triple-murderer John Middleton.  Carey Gillam of Reuters reports that Middleton, who was scheduled to be executed at 12:01 a.m.. Wednesday, was granted the last minute stay in response to claims made that he is not competent enough to be executed.  Middleton has been granted a hearing in order to present evidence pertaining to his mental status. 

Wisconsin: Repeat DUI Offenders to Serve Time in Prison: In a ruling handed down by Wisconsin's state Supreme Court, judges will now be required to sentence chronic drunken drivers to at least three years behind bars.  The Associated Press reports that the law affects those convicted of their seventh, eighth or ninth DUI offense and mandates a minimum three-year sentence.  The sentencing structure mirrors the state's system of gradually increasing punishment for chronic offenders.

Judge Denies Convicted Murderer's Appeal: An Alabama man convicted of murdering his one-time friend and sentenced to life in prison will remain behind bars after the state's Court of Criminal Appeals denied his request to reverse his conviction.  Michael Dumas of AL.com reports that 27-year-old Brandon Estle beat his victim to death in October 2012 before stuffing his body in a toolbox and hiding the storage container on property owned by Estle's parents.  It is believed that Estle, a known drug user, owed the victim several hundred dollars and killed him over a loan.

Colo. Gov. Race Poll: 49-43

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NBC News and Marist College have a new poll on the election in Colorado.  Incumbent Governor Hickenlooper leads former Congressman Bob Beauprez, 49-43.  A lead is a lead, of course, but for an incumbent governor facing a not-that-well-known opponent, to have less than a majority and only a six point lead this early in the election cycle is not good.  I would dearly love to see the voters of Colorado give Hickenlooper the heave-ho, as noted in my prior post.

More on Corrupt Peer Review

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Mary Kissel of the WSJ has a video interview with James Taranto on the peer review corruption scandal, similar to Taranto's column noted earlier

Podcast on Hall v. Florida

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The Federalist Society has a podcast on the U.S. Supreme Court's decision in Hall v. Florida, regarding definition of intellectual disability for the purpose of exemption from capital punishment, by CJLF's Legal Director Kent Scheidegger.

The Opposition's All-Star Lineup

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"Thank God for your enemies" is one of many wise lessons my father taught me.

I give special thanks to them today, reminded to do so by Doug Berman's post, "Former Rep. (and former felon) Duke Cunningham now says "my Democrat colleagues were right and I was wrong on some issues as far as criminal justice." The post sets forth the deep thoughts of Mr. Cunningham  --  a Republican ex-con who was given an eight year prison term for selling his office  --  on the numerous and flagrant deficiencies of the criminal justice system.

Other Republicans who have made the New Enlightenment All-Star team include fellow ex-cons Bernie Kerik and George Ryan

I wonder if it ever occurs to our friends on the other side to reflect on the astounding self-servingness of a bunch of corrupt officials ruminating on how they suddenly became victims of The Fascist Prosecution because  --  ready now?  -- their years of corruption got exposed and punished.  I also wonder if it occurs to our friends to ask themselves how these people, principally by virtue of hubris, self-justification and self-pity, became experts on the criminal justice system, positioned to lecture the rest of us on its flaws.  Finally, I wonder if any thinking has been done about what it means that people of this sort have to be enlisted in the flagging campaign for sentencing "reform."

DOJ to Investigate Outhouse

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No, I am not making this up.  The Omaha World-Herald reports:

The U.S. Department of Justice has joined the discussions over a controversial float in the Norfolk [Nebraska] Independence Day parade.

The Department sent a member of its Community Relations Service team, which gets involved in discrimination disputes, to a Thursday meeting about the issue. Also at the meeting were the NAACP, the Norfolk mayor and The Independent Order of Odd Fellows.

The Odd Fellows organized the parade. One of the floats included a zombie-like mannequin standing near an outhouse labeled "Obama Presidential Library."

The float's creator, Dale Remmich, has said the mannequin depicted himself, not President Barack Obama. He said he is upset with the president's handling of the Veterans Affairs Department.

The Real Threat to Freedom

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One of the blessings of being a law professor is the opportunity to meet sharp minds and learn from them.

One of those minds belongs to Ilan Wurman, formerly head of the Federalist Society at Stanford Law School and now a clerk to Judge Jerry Smith of the Fifth Circuit. In the Weekly Standard, Ilan has written a review of Columbia Law Prof. Philip Hamburger's brilliant new book, "Is Administrative Law Unlawful?"

Much of what the Left (and libertarians) say about criminal law focuses on the cops and prosecutors as the signal threat to the freedom of American citizens.  This is so much baloney.  For whatever else might be said of criminal law, (1) imprisonment is easy to avoid by living a normal, honest life (which is why the overwhelming majority of Americans have never been in prison); and (2) if you get accused of a serious crime (the kind that, realistically, can get you a prison sentence), you have the right every single time to demand that your guilt be determined beyond a reasonable doubt by a jury of ordinary citizens.

No, it's not criminal law that threatens American freedom.  As Prof. Hamburger shows, and Ilan explains, it's the growing, grasping, blob-like administrative state.

News Scan

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Alleged Cop Killer had Lengthy Criminal Past: Authorities in New Jersey say the suspect who shot and killed a 23-year-old rookie police officer Sunday afternoon did so in an effort to become famous. Jill Colvin of the Associated Press reports that  27-year-old Lawrence Campbell staged a fake armed robbery at a drugstore in order to lure officers to the area so he could ambush them when they arrived in the parking lot. Campbell had a lengthy criminal history dating back to 2011 and was released from prison in January 2014.  He was wanted by police at the time of the killing for his role in a previous homicide.

Missouri set to Execute Convicted Killer: A Missouri man sentenced to death for murdering three people is scheduled to be executed by lethal injection Wednesday morning after spending more than 15 years on the state's death row.  Ed Pilkington of The Guardian reports that lawyers for Middleton claim their client is innocent based on the claim that he was incarcerated on the day one of his victims was murdered.  The Missouri Supreme Court rejected that claim.  Middleton is one of 42 inmates currently on the state's death row.

Holder Continues to Label Americans as Racists: Attorney General Eric Holder is once again citing racism as the reason why both he and President Obama have been criticized by the administration's opponents.  Justin Sink of The Hill reports that in a recent interview, Holder said he and Obama had been targets of a "racial animus", and that he stands by comments he made in 2009 where he called America a "nation of cowards."  This is not the first time Holder has accused administration critics as racist.  In April, Holder called Texas Congressman Louie Gohmert a racist during a congressional hearing, and a month later  cited  the "subtle racism" in American culture during a commencement speech at Morgan State University.  In a speech delivered this January to the Rev. Al Sharpton's National Action Network annual convention, Holder said he and the president have dealt with "unwarranted, ugly and divisive adversity", that no other president or attorney general has ever had to deal with.  In March 2011, Holder played the race card again,  saying that white people living in America couldn't possibly be victims of racial injustice because they simply haven't suffered enough.  There have also been a number of instances where the Attorney General has ignored racially-motivated crimes when the victims happened to be white. 
Last week, I had a post about the malleability of computer models and the problem of models done by advocates with no effective check in our Politically Correct academia.  Bill had a post on the scandal of peer-review corruption.

Today in the WSJ, Hank Campbell has an op-ed titled The Corruption of Peer Review Is Harming Scientific Credibility, subtitled Dubious studies on the danger of hurricane names may be laughable. But bad science can cause bad policy.  See also James Taranto's Best of the Web column today, also in the WSJ.

Campbell notes, "in biomedicine faulty research and a dubious peer-review process can have life-or-death consequences."  That is also true in criminal justice.  There is now a concerted effort to affect public policy with studies and papers downplaying the public-safety effect of punishment and touting alternatives.  Can we trust any of this?  Can we trust it with our lives?
About six weeks ago, I testified before the House Task Force on Over-Criminalization.  The focus of the hearing was on mandatory minimum sentencing in federal law and, more generally, on whether federal drug sentences are "too long."  

I closed my remarks by asking Congress to wait for the results of a couple of recent developments (the AG's effective abandonment of mandatory minimums for many drug crimes, and the USSC's two-level guidelines reduction for drug offenses).  For those who believe in "evidence-based" sentencing, it would seem natural to want to see some, well, evidence:  Maybe these new measures would work out, and maybe not.  Time would tell.

I can't say that Congress took my advice exactly, but the Smarter Sentencing Act, which would lighten if not cripple drug sentencing, has stalled in Congress over the summer.  And sure enough, evidence from the new norm of lighter sentencing has started to come in, reported by, of all things, the NYT.

The story, and the evidence, is underneath this headline:  "Second Thoughts for Lighter Sentences for Drug Smugglers".

My goodness.
Today the Washington Supreme Court entered the following order in State v. McEnroe and Anderson:

On June 26, 2014, the Court heard oral argument in this case on review of the King County Superior Court's January 31, 2014, order ruling that if the State wishes to continue to pursue the death penalty in these prosecutions for aggravated first degree murder, it must amend the informations to allege that there are insufficient mitigating circumstances to merit leniency, and that if the State does not amend the informations, the superior court will entertain defendant Joseph McEnroe's motion to plead guilty to aggravated first degree murder without the death penalty. In light of the nature of this action, the Court has determined that the case should be decided expeditiously, by this order, with explanatory opinions to be filed in due course.

The Court having unanimously voted in favor of the following:

Now, therefore, it is hereby


The King County Superior Court's January 31, 2014, order is reversed. The State's request that the cases be assigned to a different department of the superior court is denied.
How many stupid orders, demonstrating that the judge is determined to obstruct the death penalty no matter what, does a trial judge have to enter before the appellate court removes him?  See prior post last year.

News Scan

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Study: Plea Bargains May Increase Violent Crime: A study conducted by the University of California, Davis indicates that plea bargaining down felonies to misdemeanors is likely to increase violent crimes.  Sacramento Today reports that the study found nearly 25% of offenders who plead down a felony and subsequently purchased a gun were charged with a new firearm-related or violent crime within three years.  The law prohibits felons from purchasing guns but not for those convicted of misdemeanors.

Georgia Commutes Death Sentence for Convicted Killer: A Georgia man convicted of murder and sentenced to death more than 20 years ago was granted clemency and had his death sentence commuted just a day before he was scheduled to be executed.  David Beasley of Reuters reports that 68-year-old Tommy Lee Waldrip, who would have been the oldest person executed in Georgia since the death penalty was reinstated, lost an appeal earlier this week, but was ultimately granted clemency and given a life sentence instead.  This was the fifth death sentence commuted by the state's parole board since 2002.

Study: More Pot Related Fatal Accidents in Colorado: A study conducted by the University of Colorado has shown that more drivers involved in fatal car crashes are testing positive for marijuana.  John Ingold of the Denver Post reports that Colorado has a higher percentage of drivers testing positive for pot than other states.  When certain variables are controlled, however, the data is unable to specifically point to whether or not the drivers were impaired at the time of the crash or were at fault.  Another study also showed that perceptions of marijuana's risks have decreased across all age groups since the drug was legalized last year.  

Hold Your Horses

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The Federal Judicial Conference got it mostly wrong, but got the bottom line right, in assessing the need for "sentencing reform."  That phrase has a more common sense translation meaning, "let felons out earlier than present law would provide and hope for the best."

The Conference Report, out today, noted that:

...policy initiatives curbing over-federalization of criminal law, reforming mandatory minimum sentences and amending the Sentencing Guidelines have the support of the Judicial Conference, but that the Judiciary currently lacks the resources to shoulder resulting increased workload.

"Policy-makers must not create a new public safety crisis in our communities by simply transferring the risks and costs from the prisons to the caseloads of already strained probation officers and the full dockets of the courts," said Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee." 


"The Conference most recently supported, with certain conditions including delayed implementation, retroactivity for the Sentencing Commission's recent amendments to the Drug Quantity Table. Implementing this policy on a retroactive basis will result in many inmates being released from prison and into the custody of probation officers, who work for the Judicial Branch.  Without delayed implementation for the Judiciary to seek necessary resources and prepare for this influx of offenders into the probation system, public safety could be compromised."

Very roughly translated, what this means is that we should stand back, take a deep breath, and examine, with patience instead of haste, what the measures already in train (such as lowered present guidelines and DOJ's cutting back on mandatory minimum charges) produce.  Will there be big cost savings?  Or will there be, as there has been in California, significantly more crime?  The Conferences's explicit warning that public safety may be compromised by moving too quickly is a particularly welcome reminder, and should weigh heavily with policy makers.

About Those Peer Reviewed Studies...

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Yesterday, Kent noted, with respect to computer modeling of the sort we see so much of in academia and in academia's ponderous claims:

There is little independent funding to do research in the area, and most of it ends up being done by [professors].  Because academia is poisoned by Political Correctness, a lot more studies are going to be done by people with a pro-defendant agenda than a pro-prosecution one.  There is nowhere near enough scrutiny of studies with a pro-defense bottom line, while any academic who publishes a study with a bottom line useful to the prosecution will be savagely attacked regardless of actual merit.

As if on cue, the Washington Post reports:

Now comes word of a [scholarly] journal retracting 60 articles at once...The reason for the mass retraction is mind-blowing: A "peer review and citation ring" was apparently rigging the review process to get articles published.

My goodness!!!  Our holier-(and smarter)-than-thou friends  --  the ones who go on and on about how their "peer reviewed" studies expose us hayseeds who support the death penalty and other retrograde ideas  --  have been faking it.

I previously noted how frivolity beat sobriety in deciding to treat the terrorist murderer in the Benghazi case, Ahmed Abu Khattala, as a defendant to be tried in civilian court rather than as an enemy combatant.  But it's worse than I thought. Andy McCarthy, the former AUSA who convicted the Blind Sheikh, explains why as only a sharp-eyed and experienced prosecutor could.  The basic problem is that  -- for reasons that cannot be other than political  --  the indictment omits essential background information needed to get the whole truth before the jury:

Khatallah has been identified by the State Department as a "senior leader" of Ansar al-Sharia, one of the al-Qaeda-tied franchises in Libya. Yet there is no mention of Ansar al-Sharia in the indictment, much less of al-Qaeda or the Islamic-supremacist ideology that ties jihadist affiliates together. In fact, the indictment does not even accuse Khatallah of being a terrorist.


Nothing about a long-running, ongoing jihadist war against the United States.

Instead, the indictment is written to portray a sudden, spontaneous eruption of violence, without much planning or warning, in which Khatallah -- who knows . . . perhaps inspired by a video -- abruptly joined a disgruntled group of protesters that turned out to include some shady terrorists motivated by . . . well, who can really say? All we know is the violence started without warning and, before you could scramble a fighter-jet or fuel up Air Force One for a Vegas campaign junket, it was all over.

There are a lot of downsides to giving enemy-combatant terrorists all the majesty of American due process. But at least it used to mean that, by the end, you'd have the truth, the whole truth, and nothing but the truth. Now, it's starting to look like what you get on the Sunday shows.

Florida Execution

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Suzie Schottelkotte reports for the Ledger in Lakeland, Florida:

Eddie Wayne Davis was put to death this evening for the murder of 11-year-old Kimberly Ann Waters in Lakeland in 1994.

Davis was executed at Florida State Prison by injection. He was declared dead at 6:43 p.m.

Davis, 45, was convicted in 1995 of first-degree murder, kidnapping and sexual battery in the slaying of Kimberly, the daughter of a woman Davis had dated briefly.

*                                *                             *

His DNA was found inside her and her blood was on his boot.

Davis had dated the girl's mother, who had left her two daughters at home alone that March night while she worked a double shift at a Lakeland nursing home.

Davis told police he broke into the Waters home about 2 a.m. and pulled Kimberly from her mother's bed, where she had been sleeping. He took the girl to his mobile home, which was just over the back fence, and raped her, according to court records. He gagged her and forced her to walk to the parking lot of a nearby Moose Lodge, where he raped her again, hit her several times, suffocated her and threw her body in a trash bin.

*                                *                           *

Kimberly's mother passionately battled against her daughter's killer for nearly a decade until 2004, when she lost her life in a motorcycle accident in Lakeland at the age of 42. After that, Kimberly's grandmother, Mary Hobbs of Brooksville, and Crystal Waters took up the fight.

"Does he deserve to die? You bet your bottom dollar he does," Hobbs said in November. "This scum has torn our family to pieces. Kimberly was such a sweet little child, and she didn't deserve this."

See also this article yesterday by the same reporter on the victim and her family.

Only in Berkeley (So Far)

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Lauren Raab reports on the L. A. Times Now blog:

Medical marijuana dispensaries in Berkeley must give some of their pot free of charge to low-income patients under an ordinance approved by the City Council.

At least 2% of the marijuana each dispensary doles out needs to be given free to dispensary members who have "very low" incomes and are Berkeley residents, the ordinance, approved Tuesday, says.

The ordinance also stipulates that free pot must be the same quality, on average, as the pot that other members buy.

According to NBC Bay Area, the City Council has defined very low income as $32,000 a year for one person and $46,000 a year for a family of four.

Berkeley had three permitted dispensaries as of early 2012, according to the ordinance.

Keep in mind that in California "medical" marijuana is defined so loosely than anyone who wants weed just to get high can qualify.  So now it's an entitlement.

News Scan

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L.A. Violent Crime Rate up for the First Time in 11 Years: The violent crime rate in Los Angeles is up by 2.9% in the first half of 2014, a number that hasn't been on the rise since 2003.  Kate Mather and Ben Poston of the Los Angeles Times reports that aggravated assaults are up by 12% since 2013, which is alarming LA Police Chief Charlie Beck as he indicates that aggravated assaults are the precursors to shootings and homicides.  Beck also indicated that crime overall is down in the city of Los Angeles, citing a decrease in homicides, robberies and rapes.

Wyoming Bill Seeks to Allow Firing Squads: A bill set for consideration in a Wyoming legislative committee next week would  to add firing squads as an approved method of execution.  Laura Hancock of the Star-Tribune reports that lethal injection would still remain the primary method of execution, but if for some reason it is ruled unconstitutional or can't be performed within the designated amount of time, then the death row inmate may be executed by firing squad.  Wyoming law also allows for lethal gas to be an alternative execution method, however, the state does not have a working gas chamber.

FL High Court Orders Attorney to Represent Death Row Inmate: In a 4-3 ruling, the Florida Supreme Court has ordered a public defender to represent a death row inmate who says he wants to be executed.  The Associated Press reports that James Robertson was sentenced to death in 2012 for the murder of his prison cellmate.  Robertson's attorneys asked to withdraw from the case because he did not want to challenge his sentence and was ready for execution.  Florida's high court ruled that if the attorneys were able to withdraw. it would pose a "serious threat" to the state's death penalty process. 

Here's a bit of old news.  On May 28, Neelabh Chaturvedi reported for the WSJ MoneyBlog that the very smart folks at Goldman Sachs "crunched lots of numbers. Lots and lots of numbers," to make the prediction that host Brazil would win the grand prize in the world soccer tournament.

Um, that didn't exactly work out.  Phillipa Leighton-Jones and Jon Sindreu have this follow-up on the same blog.

In December 2011, I wrote a post titled Models Behaving Badly about a book with the same title on the shortcomings of computer modeling of human behavior.  The post noted the implications for criminal justice.  (See also the noteworthy comment by federale86.)

All of these cautions apply when the modeler is actually trying to get to the truth.  An additional heaping scoop of skepticism is called for when the modeler is or is retained by an advocate trying to convince people of a position he would believe for other reasons.  On Tuesday, Robert Caprara had this op-ed in the WSJ titled Confessions of a Computer Modeler.  While working for the EPA, Caprara was told to go back and do his model over repeatedly until he got the "right" answer, the answer predetermined by the agenda of the official in charge:

Is Plea Bargaining Just?

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At Law and Liberty, psychiatrist and former prison doctor Theodore Dalrymple posts an essay severely critical of plea bargaining.  His focus is on capital cases, but the analysis is applicable across the board.

I disagree with most of what he says, and I think he simply refuses to come to grips with the realities of the criminal justice system, particularly the limitations on its funding and the scope of the social problem it is designed to attack.  But the article struck a chord with me, as it makes a case I have long thought appealing:  That plea bargaining is deeply unsatisfying if not, at some level, unjust.

As the author says, "[P]lea-bargaining is intrinsically unjust because it may induce the innocent to plead guilty and the guilty to hold out for a lesser punishment than they deserve."  I have lots of doubts about the first part of that sentence, although there may be rare cases in which it is true.  The second part, however, is true in spades, although hardly ever mentioned in today's debates.  Simply because the money is not there to take anything but a small percentage of cases to trial  -- and because trials have become so time consuming, complex and expensive  -- criminals routinely get lesser punishment than their behavior has earned or the law (at least theoretically) provides.
My friend Paul Mirengoff was a star student at Stanford Law and is even better now. See, e.g., his entry today on the civilian trial of terrorist warrior Ahmed Abu Khattala:

According to this report:

The Justice Department says its case against [Ahmed Abu Khattala], accused in the 2012 attacks on a U.S. diplomatic compound in Benghazi, Libya, is unusually complex and involves "novel questions of fact and law."

In a Washington, D.C., federal courtroom Tuesday, Assistant U.S. Attorney Michael DiLorenzo said the government had already begun sharing sensitive documents with defense attorneys. But many of the hundreds of people interviewed by the FBI remain overseas, and many documents are either top secret or in Arabic, or both. . . .

Fantastic! Lawyers live to try cases involving novel questions of fact and law, and judges live to try them. A good time will be had by all.

The terrorist defendant might even be convicted -- I assume he probably will be, complex though the case may be. At that point, the trial judge can lecture the defendant about the virtues of our system of justice and its ability to withstand terrorism. The defendant, and terrorists in general, will be unimpressed, but that's okay. The judge will get plenty of good press and liberals will feel good about themselves for a day.

A Parody of Drug "Strategy"

The White House has come out with its 2014 edition of the National Drug Strategy.  

In a sense, I have to take my hat off to anyone who can write 79 pages of pure mush, using every left wing shibboleth for the last generation, and never come up for air. The idea that a sensible strategy might include putting meth (etc.) traffickers in the slammer is all but invisible.
Still, I'll give the authors credit for a sense of embarrassment (for once).  Out of all 79 pages, they could only choke out four sentences buried in the middle to give a pat on the head to Eric Holder and "smart" sentencing.  Part of this, of course, stems from their unwillingness to understand that any kind of sentencing might be useful.
I'm truly astonished that they can find someone to sit at a computer all day and churn out this stuff.  The job market must be even worse than the White House is admitting.

News Scan

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Convicted Killer set to be Executed: A Florida man sentenced to death nearly 20 years ago is set to be executed Thursday evening.  The Associated Press reports that 45-year-old Eddie Wayne Davis was sentenced to death in 1995 for the rape and murder of an 11-year-old girl.  Yesterday, Florida's Supreme Court denied Davis' final appeal seeking to delay the execution based on the claim that a possible blood disorder may interact with the lethal injection drugs and cause him extreme pain.

Study: When Concealed Carry Permits Rise, Murder Rates Drop: According to a study conducted by the Crime Prevention Research Center, as the number of Americans allowed to carry concealed weapons increases, the rate of murder and violent crime decreases.  Fox News reports that the increase in concealed carry permits has risen by 146%, while the murder and violent crime rate has dropped by 22%.  The study concludes that since more people are allowed to carry concealed weapons criminal behavior has changed out of fear that their potential victims may be armed.  Earlier this year, Illinois became the 50th state to start issuing concealed carry permits.

Chicago and Black Criminality

Jason Riley has this article with the above headline in the WSJ:

"In the roughly 84 hours from 3:10 p.m. Thursday until 3:30 a.m. Monday, gunfire struck 82 people, 14 of them fatally," reports the Chicago Tribune. "Both tallies include two boys shot by police: a 14-year-old who allegedly pointed a long-barreled .44-caliber revolver at officers, and a 16-year-old who--after first eluding cops who had responded to a report of shots fired--allegedly refused officers' instructions to drop a .380-caliber semi-automatic handgun as he crawled out from beneath a car. That's right, a 14-year-old wielding a .44-caliber revolver and a 16-year-old with a semi-automatic handgun."

So here we go again. Another spate of shootings that feature, almost exclusively, young black and brown men. Another liberal clarion call for more gun control. And another collective dodge of the real problem, which is ghetto culture.

News Scan

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Murder Rate up in California City: Police in Fresno, California are saying that while the amount of overall shootings in the city have gone down, the murder rate has continued to escalate.  Rick Montanez of ABC 30 reports that Fresno's murder rate is up 27% so far this year and they believe the blame can be linked to illegal guns and gang members.  Shootings in the city are down by 13%, however, authorities say more victims are dying from their injuries as gang violence continues to flourish.

Sex Offender Assaults Grandmother, Uncle: A convicted rapist and registered sex offender is behind bars after authorities in Portland, Oregon say he sexually assaulted his grandmother and uncle.  Maxine Bernstein of The Oregonian reports that 34-year-old Willie Johnson, who committed his first rape at the age of 15, broke into his 81-year-old grandmother's home and violently attacked her before moving to another bedroom where he sexually assaulted his uncle as well.  He has been charged with first-degree attempted rape, kidnapping and sexually assault, and is being held on $780,000 bail. 

Conviction Upheld for Killer: A New Jersey man sentenced to life in prison for his role in a cold case murder will remain behind bars after a judge ruled in favor of denying his appeal and upholding his conviction.  Tom Haydon of The Star-Ledger reports that 70-year-old William Crowley was sentenced to life in prison after being found guilty of murdering a rival drug dealer more than 20 years ago.  Crowley was finally arrested for the crime in 2008 and was convicted in 2011, he must serve at least 30 years in prison before he becomes eligible for parole.

John Fund on Holder's DoJ

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Two weeks from today, Tuesday, July 22, the Federalist Society of Sacramento will have a lunch event with John Fund, discussing his book (with Hans von Spakovsky), Obama's Enforcer: Eric Holder's Justice Department.

The event announcement is here.

Amazon's page for the book is here.

Impeach Earl Warren

Most readers are probably not old enough to remember the demand, largely but not entirely from segregationists unhappy with Brown v. Board of Education, to "Impeach Earl Warren."  Although in criminal law Warren was a willing tool of the much smarter William J. Brennan, and the author of one of the all-time most lawless decisions (Miranda), there were no grounds to impeach him.  Just being a liberal or not very smart is not an impeachable offense.  So the "Impeach Earl Warren" crowd was relentlessly dismissed and ridiculed, not without reason.

Yesterday, the new version of "Impeach Earl Warren" showed up in the form of Senior United States District Judge Richard Kopf, who, in expressing his disagreement with the Hobby Lobby decision, point-blank told his superiors on the Supreme Court to "shut the f___ up."  He did this on his widely read blog, "Hercules and the Umpire."

The question has understandably been raised whether Judge Kopf should continue blogging.  It's the wrong question.  The correct one is whether he should continue judging, and the answer is no.

News Scan

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Violent Killer to be Released from Prison:  A Michigan murderer, sentenced to life in prison without parole is set to be released from custody later this month after serving 40 years behind bars.  Jonathan Wolfe of Opposing Views reports that 54-year-old Timothy Spytma, along with an accomplice, broke into his neighbor's home to commit a burglary.  When the woman returned early they brutally raped and beat her to death, then stole thousands of dollars worth of property.  His LWOP sentence was for first-degree murder and burglary.  In 1982, the Michigan law changed its burglary law, requiring that burglary could only take place during the night.  The law was applied retroactively voiding Spytma's burglary conviction and reducing his murder to second degree, making him eligible for parole. 

Chicago Experiences Deadly Holiday Weekend: At least 14 people are dead and another 82 have been injured in one of Chicago's most violent and deadly weekends in history.  Peter Nickeas of the Chicago Tribune reports that the shootings began Thursday afternoon and lasted well into Sunday evening as police were overwhelmed with calls for service across the city.  So far this year, Chicago has seen more than 170 homicides-a number that is down from both 2012 and 2013.

WA Begins Selling Legalized Marijuana: Marijuana shops in Washington state have been given the green light to begin selling the drug to patrons beginning Tuesday morning.  Gene Johnson of the Associated Press reports that two years after Washington voters approved legalizing marijuana for adults over the age of 21, the state has approved licenses for 24 stores in cities such as Seattle, Tacoma and Vancouver. Colorado, which also approved legalizing marijuana in 2012, began allowing recreational pot sales January 1. 


News Scan

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FL Supreme Court Revamps Rules for Death Penalty Appeals: Florida's highest court has approved a series of proposed changes aimed at improving and expediting death penalty appeals.  CBS Miami reports that some of the changes involve revising requirements for attorneys in charge of handling death penalty cases as well as preventing defendants from representing themselves in post-conviction proceedings.  Another rule will require attorneys involved in death penalty appeals to have at least three years experience in post-conviction litigation and have experience with capital cases.

Parole Officer Warns Against Releasing Convicted Rapist: The former parole officer of a California man known as the 'Pillowcase Rapist' is speaking out against his upcoming release, calling Christopher Hubbart scarier than a "Mexican Mafia killer."  Christina Corbin of Fox News reports that Hubbart, who is scheduled to be released later this month, has admitted to raping more than 40 women between 1971 and 1982.  Hubbart will not be on formal probation or parole, but will be required to wear a GPS ankle monitor and register as a sex offender.

Utah Seeks to Expedite Upcoming Execution: Utah's Attorney General's Office has asked a federal judge to continue moving forward with convicted killer Ron Lafferty's pending execution.  Ben Winslow of Fox 13 reports that Lafferty was convicted of murdering his sister-in-law and her daughter in 1984, claiming that he was forced to do so because of orders from God.  Attorneys for Winslow claim their client suffers from religious delusions and competency issues, however, a federal judge earlier this year ruled he was in fact competent and able to assist in his own defense.

Libertarian Silliness on Drugs

Libertarianism is a growing and welcome element of American politics.  It exists, so far as I know, only in the Republican Party, as the Democrats fade into a collection of snarling grievance groups.  But it's not at the center of Republican thinking and will never get there until it quits honing in on fringe issues and takes on the real threat to liberty  --  the explosive growth of the administrative/regulatory/entitlement/welfare state.

The chief fringe issue that preoccupies libertarians is the legalization of drugs.  As John Hinderaker puts it, libertarians:

...have not contributed as much as they should to the conservative movement...because they have tended to focus on secondary, or tertiary, issues of domestic policy.

A couple of years ago I was invited to a gathering on behalf of Gary Johnson, the former governor of New Mexico who then was a libertarian candidate for the Republican presidential nomination. I was well disposed toward him, but when he started talking, his first subject was legalization of drugs. Now he is the CEO of a marijuana company. Rand Paul is probably the leading libertarian at the moment; he purports to take seriously the threat that someone drinking coffee in an American cafe will be struck by a drone-fired missile, [in addition to supporting dumbed-down drug sentences]....

A battle is being fought for the liberties of the American people and, frankly, it isn't going well. The fight has little or nothing to do with drugs and drones. If libertarians are serious about preserving and expanding liberty, they should join the fight that matters.

News Scan

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Bill to Expand GPS Monitoring: In an effort to accommodate Realignment issues, a California legislator has introduced a bill aimed at expanding GPS monitoring programs in order to ease prison and jail overcrowding.  Keith Carls of KEYT News reports that AB 2499 would allow the Sheriff and the County Board of Supervisors to expand the GPS monitoring program to a number of prisoners that have been sent to county jail under Realignment.  Anyone caught tampering with or removing their monitoring device would be subject to arrest and face a possible 180 days in jail.

FL Judge Denies Stay of Execution: A Florida judge has denied a stay of execution for a convicted killer who has spent nearly 20 years on the state's death row.  Suzie Schottelkotte of The Ledger reports that 45-year-old Eddie Davis was sentenced to death for the 1994 kidnapping, rape and murder of an 11-year-old girl.  Davis is scheduled to be put to death July 10.

NY High Court Strikes Down Cyberbullying Law: In a 5-2 ruling, the New York Court of Appeals has struck down an Albany County law making cyberbulling a crime.  Joe Palazzalo of The Wall Street Journal reports that the law was overturned after it was determined that it prohibited a wide variety of speech and was a violation of the First Amendment  More than a dozen states and four other New York counties have similar laws.        

The Bergdahl Non-Pardon

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Early last month, on Sgt. Bowe Bergdahl's return to American forces in Afghanistan, I wrote the following:  

In recent days, the Administration has justified releasing five top terrorist commanders to return to the battlefield (after a fig-leaf stopover in Qatar) on the grounds that Bergdahl was still an American soldier, and America does not leave its people behind.  The President's supporters tell us that, if Bergdahl deserted  -- or even became a collaborator  --  we have the military justice system that will, at the right time, fully investigate the matter, put the facts on the table, and, if warranted, impose punishment.

Ladies and gentlemen, it's not gonna happen.  There isn't going to be any honest investigation, and there isn't going to be any punishment.  The President is going to issue a preemptive pardon to make sure the process never gets off the ground.

It may be time for me to confess error.  I overestimated the President's willingness to act directly and take responsibility for letting Bergdahl off the hook.  It now appears more likely that, while I was correct in saying there isn't going to be any honest investigation, there may not be any pardon as such, either.  Why should there be? Why should there be, that is, when the President can just believe  --  not unintelligently  -- that, if dragged out for long enough, the whole thing will disappear into the fog of even more prominent scandals?
Fifty years ago today, President Johnson signed the most important legislation of modern American history, the Civil Rights Act of 1964.

Bonds En Banc

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Last September, a three-judge panel of the Ninth Circuit upheld the obstruction-of-justice conviction of Barry Bonds. From the court's summary:

The panel affirmed Barry Bonds's conviction of one count of obstruction of justice, in violation of 18 U.S.C. § 1503, arising from Bonds's testimony before a grand jury investigating whether the proceeds of the sales of performance enhancing drugs were being laundered.

The panel held that § 1503 applies to factually true statements that are evasive or misleading.

The panel held that there was sufficient evidence to convict Bonds because his statement describing his life as a celebrity child - in response to a question asking whether his trainer ever gave him any self-injectable substances - was evasive, misleading, and capable of influencing the grand jury to minimize the trainer's role in the distribution of performance enhancing drugs.
Yesterday the Ninth Circuit granted rehearing en banc.  Because of its size, the Ninth does not generally sit truly "en banc," with all its judges participating, like the other circuits.  The Ninth's pseudo-en-banc procedure is to make an 11-judge panel consisting of the chief judge and 10 others chosen at random.
Dan Walters had this post, with the above title, on the Sacramento Bee's Capital Alert blog last Friday:

Gov. Jerry Brown's "realignment" of criminal justice procedures, aimed at reducing overcrowding in state prisons by diverting more felons into local jails and probation, has not resulted in lower rates of new criminal activity among offenders, a study by the Public Policy Institute of California concludes.

New offenses by those released from custody are known as "recidivism" and putting felons under local control was supposed to include more drug treatment and other programs to reduce their criminal activity.

However, the PPIC study concludes, "We find that the post-realignment period has not seen dramatic changes in arrests or convictions of released offenders. In the context of realignment's broad reforms to the corrections system, our findings suggest that offender behavior has not changed substantially."

"Overall arrest rates of released offenders are down slightly, with the proportion of those arrested within a year of release declining by two percentage points," the authors of the study, Magnus Lofstrom, Steven Raphael, and Ryken Grattet, continue. "At the same time, the proportion of those arrested multiple times has increased noticeably, by about seven percentage points. These higher multiple arrest rates may reflect the substantial increase in the time that released offenders spend on the streets--a result of counties' limited jail capacity."

The PPIC study may provide new ammunition for the critics of realignment who contend that the state is solving its prison overcrowding problem under pressure from federal judges but in doing so is putting new burdens on local governments, particularly county jails, that result in more criminal activity.

News Scan

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CA Seeks More Time to Address Prison Overcrowding: California prison officials have asked for a two-month extension in order to meet their first court-ordered deadline for reducing the state's overwhelming prison population.  Paige St. John of the Los Angeles Times reports that the state was supposed to have reduced its prison population down to 143% of so-called "design capacity" by Monday, but just one week earlier was told that empty medical beds in the newly completed Stockton prison would not be counted as available space and a way to alleviate overcrowding in other facilities.  In the last five months, 1,200 inmates have been released from state-run facilities.

Indiana to Implement Tougher Sentencing: Starting today, sentences in Indiana will mean more for those convicted of committing a violent crime.  Julian Grace of WTHI-TV reports that anyone sent to prison for committing a violent crime must serve at least 75% of their sentence as opposed to just 50% which it was in the past.  The move comes after detectives with the Indianapolis Metropolitan Police Department discovered that 15 murders committed last year would not have happened if those convicted in the cases had been given longer sentences for prior crimes.

CA High Court Upholds Death Sentence: California's Supreme Court has upheld the death sentence for a man convicted of murdering a 5-year-old girl more than a decade ago.  The Associated Press reports that 39-year-old Alejandro Avila appealed his sentence based on the claim that he was unable to receive a fair trial due to public outrage and prejudice against him.  Avila was convicted in 2005 for the kidnapping, sexual assault and murder of 5-year-old Samantha Runnion.

Oh, Never Mind

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I spoke a bit too soon yesterday in saying the U.S. Supreme Court had wrapped up its term.  Today we have an odd little one-paragraph per curiam disposition in Willams v. Johnson, 13-9085, a sequel to last year's Johnson v. Williams, 11-465.

The underlying issue has to do with a trial judge's dismissal of a juror.  As with a great many issues in criminal procedure, there are state law requirements overlaid with federal constitutional case law.  The state appellate court, in its decision rejecting the claim, did not separately discuss the federal question.  In the Ninth Circuit, the notorious Judge Stephen Reinhardt engaged in his favorite pastime of evading the habeas corpus reforms enacted by Congress in the Antiterrorism and Effective Death Penalty Act of 1996.  Declaring that the state court had ignored the federal claim and therefore not ruled on the merits, he found himself freed from the deference shackles imposed by Congress and proceeded to decide the claim de novo, a bit of legal Latin which, in this context, means "we don't give a damn what the state court decided."  The mercurial Chief Judge Alex Kozinski went along with this, as did a district judge sitting by designation.

SCOTUS was not amused and slapped down the Ninth in yet another unanimous AEDPA reversal last year.  However, the Supreme Court committed its own error in the process.  Along with saying that the Ninth should have applied the deference standard, for reasons well explained and quite correct, the opinion contains an otherwise unexplained line that "under that standard respondent is not entitled to habeas relief."  The Court also denied a petition for rehearing.

On remand, the Ninth thought it was bound by this statement.  Today, the Supreme Court said no, go ahead and decide the case under the deference standard.  No explanation; no apology.

The Court also issued a short orders list vacating and remanding some cases in light of recent decisions and granting certiorari in some civil cases.

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